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Jun. 13th, 2006 07:28 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
vicarzLast night in our criminal procedure class we had Jack Einwechter speak to us. He was a prosecutor in the office of military commissions, now with Greenberg Trauig (big ol firm). He described himself as a conservative democrat after 21 years of military service, and not a fan of the Bush admin. He has been there, lived on the base, worked with the very prisoners in question - his opinions were based at least in part on direct experience. He noted he has been on NPR about 4 times, and many other programs I now forget. He said that on every front the actions of detaining combatants was perfectly legal in both US and foreign law. He said while you should always question these conclusions, it was really hard to argue against them. However, the harder question was if what we were doing was right (legal and right are not synonymous).
Here is a link to one of his appearances on NPR: http://www.npr.org/templates/story/story.php?storyId=5005799
One point that struck me was that most of the laws and classifications are in place to minimize civilian casualties during war. What were the 4 conditions to be allowed to be a POW, someone who is allowed to kill but not prosecuted when captured? 1) wear a uniform (so the enemy can distinguish between soldiers in combat and civilians, 2) answer to a responsible commander (who will control you and keep you from raping / murdering civilians, 3) bearing open arms (like 1 I guess?), 4) who complies with the rules of war (once again, to prevent civilian killing my rogue soldiers). How does any of this apply when the sole goal of a force is to use clandestine methods to kill civilians almost exclusively?
Similarly the purpose of a tribunal or commission was typically to classify what kind of combatant you were dealing with, and then try them. The overall purpose there was to punish those who broke the rules of war - which almost all require intentional killing of civilians.
Most of our law about prisoners of war and other forms of enemy combatants is based on well...war. Usually you capture an enemy soldier and when the war is over they are let go. What do you do when there is no formal enemy and the war is ongoing?
This guy had a good answer to the criticism the US is facing over the 3 coordinated suicides in Guantanamo. He noted some stats: the average prisoner gains 20 lbs in 3 mos, that when they stop being star-raving hostile loons they are allowed to live in group settings, many US prisoners of war in Japan in WW2 were kept 4-7 years with huge fatality rates, similarly in Vietnam US POWs faced over 10 years in horrific conditions and torture, with no such mass protests or suicides as such. He believes these people are indeed psychologically damaged, but not from our treatment. He concedes that being captured and in a form of jail absolutely sucks, but that they are treated decently by and large, and many of them were utterly fucked when they arrived from growing up in horrible places and the bizarre treatment they had all their lives.
What he absolutely disagreed with was any form of giving our enemies to foreign governments, knowing that they would engage in torture. He noted that he knows how to interrogate, and as such is against torture as wrong and for the practical reason that it doesn't yield valuable information. It isn't used much for the worthless nature of the information produced, not because it is immoral or wrong.
Some of the key differences between normal criminal court and commissions are
1) Hearsay is admissible. This isn't a great surprise, for other courts allow such information in, and even here we have over 20 exceptions with a residual in case something credible appears that isn't in the rules yet,
2) You can have evidence presented against you that is classified, so you won't know what it is. This sounds horrible except for a few things i) we don't want to give damaging information to enemy agents, ii) even if they don't get to hear it, their lawyer often does and either way the defendant gets to hear a declassified version of that used against him, and iii) we classify to much, and due to the probative nature of much of the evidence it is likely (not assured) that they will declassify a lot of information for the sole purpose of performing these tribunals.
Another was that for all the kvetching about how US treats its prisoners, why does no one mention the horrid things that happen to victims of Al Queda? I mean boo hoo we put guys in jail for years, vs. they cut your head off live on video?
I liked his final point - he argued that he believed that what we do is 100% legal, and he didn't feel like a pawn for saying it. He said the tougher question was should it be legal, or was it morally right? That is a tougher dialogue, and one that we didn't address in a class on criminal procedure.
I listened to NPR this AM with the usual battles between Israel and Palestine. Israel is being berated because they are starting to respond to a rain of rockets, was it 5 randomly fired rockets a day, into their land. Palestine fighters often carry children with them at all times so when Israel strikes back they can almost guarantee civilian deaths - poor children they scream. Both the US and Israel are being attacked by disguised enemies, both are really trying to show restraint, both are lambasted for being barbaric in their methods...but both are facing enemies who engage in horrific acts that seem not to be criticized. I think you absolutely should question these more powerful forces, but no matter how I look at it, both the US and Israel come out so far ahead morally it's almost not worth discussion. I absolutely believe that the US and Israel are trying to minimize civilian casualties and treat prisoners with some decency and fairness. I do not believe the same of our respective enemies, and wonder why that isn't discussed as much.
I think the more I learn about these complex situations the more I am glad I don't have to make these decisions in the heat of battle. It's very easy to paint the issues as simple for both the left and the right, and I have more and more respect for those that are willing to admit, discuss, and address the complex issues head-on.
Here is a link to one of his appearances on NPR: http://www.npr.org/templates/story/story.php?storyId=5005799
One point that struck me was that most of the laws and classifications are in place to minimize civilian casualties during war. What were the 4 conditions to be allowed to be a POW, someone who is allowed to kill but not prosecuted when captured? 1) wear a uniform (so the enemy can distinguish between soldiers in combat and civilians, 2) answer to a responsible commander (who will control you and keep you from raping / murdering civilians, 3) bearing open arms (like 1 I guess?), 4) who complies with the rules of war (once again, to prevent civilian killing my rogue soldiers). How does any of this apply when the sole goal of a force is to use clandestine methods to kill civilians almost exclusively?
Similarly the purpose of a tribunal or commission was typically to classify what kind of combatant you were dealing with, and then try them. The overall purpose there was to punish those who broke the rules of war - which almost all require intentional killing of civilians.
Most of our law about prisoners of war and other forms of enemy combatants is based on well...war. Usually you capture an enemy soldier and when the war is over they are let go. What do you do when there is no formal enemy and the war is ongoing?
This guy had a good answer to the criticism the US is facing over the 3 coordinated suicides in Guantanamo. He noted some stats: the average prisoner gains 20 lbs in 3 mos, that when they stop being star-raving hostile loons they are allowed to live in group settings, many US prisoners of war in Japan in WW2 were kept 4-7 years with huge fatality rates, similarly in Vietnam US POWs faced over 10 years in horrific conditions and torture, with no such mass protests or suicides as such. He believes these people are indeed psychologically damaged, but not from our treatment. He concedes that being captured and in a form of jail absolutely sucks, but that they are treated decently by and large, and many of them were utterly fucked when they arrived from growing up in horrible places and the bizarre treatment they had all their lives.
What he absolutely disagreed with was any form of giving our enemies to foreign governments, knowing that they would engage in torture. He noted that he knows how to interrogate, and as such is against torture as wrong and for the practical reason that it doesn't yield valuable information. It isn't used much for the worthless nature of the information produced, not because it is immoral or wrong.
Some of the key differences between normal criminal court and commissions are
1) Hearsay is admissible. This isn't a great surprise, for other courts allow such information in, and even here we have over 20 exceptions with a residual in case something credible appears that isn't in the rules yet,
2) You can have evidence presented against you that is classified, so you won't know what it is. This sounds horrible except for a few things i) we don't want to give damaging information to enemy agents, ii) even if they don't get to hear it, their lawyer often does and either way the defendant gets to hear a declassified version of that used against him, and iii) we classify to much, and due to the probative nature of much of the evidence it is likely (not assured) that they will declassify a lot of information for the sole purpose of performing these tribunals.
Another was that for all the kvetching about how US treats its prisoners, why does no one mention the horrid things that happen to victims of Al Queda? I mean boo hoo we put guys in jail for years, vs. they cut your head off live on video?
I liked his final point - he argued that he believed that what we do is 100% legal, and he didn't feel like a pawn for saying it. He said the tougher question was should it be legal, or was it morally right? That is a tougher dialogue, and one that we didn't address in a class on criminal procedure.
I listened to NPR this AM with the usual battles between Israel and Palestine. Israel is being berated because they are starting to respond to a rain of rockets, was it 5 randomly fired rockets a day, into their land. Palestine fighters often carry children with them at all times so when Israel strikes back they can almost guarantee civilian deaths - poor children they scream. Both the US and Israel are being attacked by disguised enemies, both are really trying to show restraint, both are lambasted for being barbaric in their methods...but both are facing enemies who engage in horrific acts that seem not to be criticized. I think you absolutely should question these more powerful forces, but no matter how I look at it, both the US and Israel come out so far ahead morally it's almost not worth discussion. I absolutely believe that the US and Israel are trying to minimize civilian casualties and treat prisoners with some decency and fairness. I do not believe the same of our respective enemies, and wonder why that isn't discussed as much.
I think the more I learn about these complex situations the more I am glad I don't have to make these decisions in the heat of battle. It's very easy to paint the issues as simple for both the left and the right, and I have more and more respect for those that are willing to admit, discuss, and address the complex issues head-on.
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no subject
Date: 2006-06-13 01:33 pm (UTC)We're not so much in control of how Al Queda treats their prisoners. And "look! we're better than those assholes!" isn't so convincing.
no subject
Date: 2006-06-13 01:37 pm (UTC)That's not to say we shouldn't be the best we can, but it doesn't look like a close race to me.
no subject
Date: 2006-06-13 04:12 pm (UTC)Having said that, I think your speaker has interesting things to say about this issue. I'm (naturally) more interested in the moral questions surrounding it than the legal ones. (I'm appalled that there's a legal case to be made that there's nothing illegal happening at Gitmo...)
no subject
Date: 2006-06-13 04:14 pm (UTC)no subject
Date: 2006-06-13 07:13 pm (UTC)