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  • Military Justice and the War

    Posted by Jonathan on October 31st, 2007 (All posts by )

    Interesting article. NPR tries to spin it against the Bush administration, but it seems to me that the controversy reflects more the politicization of and conflicting goals being pursued by today’s JAG corps. On the one hand the govt biases the Haditha trial in favor of the prosecution. On the other hand (the only side of the issue NPR notices) there are complaints about detainees in Guantanamo — men who could have been summarily executed without legal controversy when they were caught on the battlefield — who are being prosecuted based on confessions extracted by means that would be unacceptable under domestic law.

    The controversy over Guantanamo confessions is really the smallest part of a much larger issue, which NPR ignores and whose resolution is not yet clear, about how we should treat hostile war detainees who don’t fit old legal categories such as POW or civilian internee. The anti-war Left pretends that the only question is whether Bush plays by the rules. But the more important question is how to modernize rules which don’t fit current reality and which make it harder for us to fight. The question of how to modernize these rules, if not resolved, will dog any coming Democratic administration as much as it does the current Republican one. Pretending that Bush is the problem only delays the inevitable reckoning.

    It seems that the JAG community lags the rest of our military in addressing these issues.

     

    5 Responses to “Military Justice and the War”

    1. joseph hill Says:

      Of important, co matter whih side of the water board you fall on: how good is information obtained under extreme torture?

    2. w sol vason Says:

      if the liberals really believed water boarding was torture, they would end water boarding immediately by passing a law making it illegal. Absent a law it is obvious liberals plan to use waterboarding when they get into office.

    3. Shannon Love Says:

      Joseph Hill,

      … how good is information obtained under extreme torture?

      Very good, Humans have not tortured each other for information for all of our history because it does not work. We have an unfortunately large body of information on the subject and I had the misfortune to study it rather extensively some 20 years ago. Based on contemporary neurobiology we understand that Intense pain physically disrupts the operation of the brain causing the victim to enter a state not unlike a high fever in which they lose impulse control. Since lying take more mental effort and self-control than telling the truth, this physical assault causes the brain to default to the simplest and least energy intensive option i.e. telling the truth.

      Our military and intelligence agencies all operate on the proven assumption that no individual can withhold critical information in the face of torture for more than three days. The concept of need-to-know comes from the very real knowledge that if a ruthless enemy captures someone with the right information, the will, without any doubt rapidly extract any information they seek.

      The strange idea that torture doesn’t work seems to derive from evidence based on torture used for reasons other than interrogation. For example, the torture of US airman by North Vietnam was aimed not at extracting information but in producing brainwashed turncoats for propaganda purposes. Most people tortured under Stalin suffered so that they would produce false confessions so that they or others could be enslaved in the Gulags.

      I think a lot of people like to believe that torture doesn’t work because that frees them from the moral responsibility in deciding when and when not to use it. Every form of interrogation, even that conducted by civil police in the presence of a suspects lawyers uses at least the threats of fear and pain (don’t bend over for the soap in prison, buddy) to coerce suspects in saying things they otherwise would not reveal. The only difference is where different people draw the line.

    4. Ginny Says:

      The obfuscation & self-righteous posturing of Congress is really irritating; on the other hand, this disccussion of waterboarding is thoughtful and persuasive.

      We aren’t going to define the distinctions & how a civilized nation can handle terrorism until we see terrorism as different from war but not unlike war, as on-going and an important threat.

      Much discussion about Iraq is pointless because the two arguments are based on two different assumptions – one of which is, I think, loopy, but then, they believe the same of me. One assumes there is no war – it is “Bush’s” war and was a choice, generally seen made for ulterior motives. From this position, terrorism is an inconvenience and a crime. The other side sees terrorism – well, the jidhaist mentality – as a real and present danger. Of course, it is less dangerous to those of us in the relatively safe world of the North American continent. However, we sympathize with those across the world (in Iraq, in Spain, in Israel) whose lives are dictated by a constant awareness of if not fear of an ideology that sees the lands in which they live as belonging to others and any means to obtaining that end as righteous. In other words, we see a war – an ideological war some of the times. But we would rather win a skirmish than become entangled in another world war – and we optimistically think that is the choice. Not a great choice but the only one. And we remember history – man’s propensity for violence, the fact that when places, even far away, fall apart, America is entangled because America is big and is entangled everywhere. But of course, if we don’t believe it is a war, then the JAGs can continue as they did before – for nothing has changed. Only if it is seen as war do people feel an urgency to such decisions, to clarity. But, hell, the UN hasn’t defined terrorism.

    5. JoseAngel Says:

      It is a somber scene.

      A beautiful country, a great nation of industrious people who live in peace and freedom, highly esteemed values. One of the largest, oldest and most stable democracies in the world. A country of checks and balances, a solid judicial system and a tradition of law enforcement, having to fight a war against decades-old, well-funded and organized and ruthless and brutal Islamic fundamentalist terrorists organizations that play and make their own rules of engagement as they see fit and hid amongst poor and religiously fanatic populations in states ruled by tyrants and kings who fund, nurture and tolerate them.

      While you have to attend to scrutiny from state and public institutions, media, human rights organizations and anti-war movements alike both at home and abroad who are ready to audit you, to prosecute you because in their eyes, you are the aggressor. You are the bad guy in the story already.

      While the “insurgents” can kill children, women and men, in restaurants, hotels, hospitals, the street, anywhere, anytime.
      They can bomb night clubs, coffee shops and restaurants where your citizens and others from the free world go.
      They can bomb your subway and kill hundreds of your people anytime
      They can bomb buses full of people
      They can bomb your embassies in Africa and other parts of the world killing hundreds of people.
      They can bomb your ships too
      They can abduct your citizens, slit their throat and post the video on the internet.
      They can highjack your civil airplanes and kill every one of your citizens on board.
      They can take your civil airplanes down from the ground too, killing hundreds of your citizens
      They can try to kill the Pope.
      They can spread hate against your citizens and culture and way of life.
      They can teach hate to their little ones
      They can stone their women to death in public plazas
      They can mutilate their young men too, and they can hang them
      They can mock your god
      They can kill film makers and threaten to kill intellectuals who dare to speak against them.

      And they want to kill your people and have already killed thousands of them and of citizens of other nations too, but you have to fight a war against them almost by yourself because none else will do it
      And while they can afford to fail many times in their efforts to kill and terrorize your people you can not fail once in your efforts to stop them
      While they hide and gather to pray in full freedom in your own country teaching hate and plotting to kill your people and terrorize you
      You can’t draw a comic of their deity or they will burn your embassies down
      You can´t criticize them or make documentaries about their religion for you can get killed
      You are not supposed to interrogate them without a defense lawyer, and you have to pay for the lawyer too. You are already a criminal, same as them, for not doing so.
      You can’t let them go free either because they will continue plotting to kill your citizens elsewhere.

      And while the rest of the world, except for a few true allies, disdainfully stares and scorns every one of your efforts.

      You are running against the wind.