Compare and Contrast


Will writes from Washington, D.C. (well, Arlington, Virginia). You can reach him at willblogcorrespondence at gmail dot com.

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42 Responses

  1. Art Deco says:

    Does the Geneva Convention apply to irregular troops who behave inconsistently with customs of war? To which iteration of the Geneva Convention was this application applied? If it ain’t there, it ain’t there.Report

    • Dave in reply to Art Deco says:

      Common Article 3Report

      • Scott in reply to Dave says:

        Yes but that doesn’t mean that POWs have to get full blown civil trials with all the rights an American citizen would get. We had military tibunals in WW2 and no one seemed to think the nazi’s were treated badly.Report

        • Dave in reply to Scott says:


          I’ve never made that claim. In fact, you don’t try POWs at all because they have not violated the laws of war.

          We have had military tribunals going back to the Founding era. Again, this per se, at least for me, is not the issue. The issue is one of jurisdiction. I have no problem with trying suspected terrorists in a military commission (in theory at least) so long as the crimes they are being charged with are recognized internationally as violations of the laws of war.Report

          • Scott in reply to Dave says:

            Sorry you are wrong. Once you capture someone you can hold a military tribunal to determine if the person actually deserves the protect of the GC. The Taliban and AQ carry arms and fight while in civilian clothes, fight from protected sites such as religious places or hospitals, execute POWs, set off bombs, suicide and otherwise which are only directed at causing civilian casualties and destroying civilian property. I’m sure I left something out but these are all violations of the GC and it seems would strip them of the protections of the GC.Report

            • Dave in reply to Scott says:

              Sorry you are wrong. Once you capture someone you can hold a military tribunal to determine if the person actually deserves the protect of the GC. The Taliban and AQ carry arms and fight while in civilian clothes, fight from protected sites such as religious places or hospitals, execute POWs, set off bombs, suicide and otherwise which are only directed at causing civilian casualties and destroying civilian property. I’m sure I left something out but these are all violations of the GC and it seems would strip them of the protections of the GC.


              How am I wrong? In my previous post, I acknowledge the use of military commissions to try unlawful enemy combatants charged with violating the laws of war (ununiformed Taliban and Al Qaeda fighters qualify).

              The major disagreement I have with your statement is that you assume that Al Qaeda or Taliban fighters deemed unlawful combatants have no protections under the Geneva Conventions. They may not have the full set of rights accorded to POWs but Common Article 3 provides the bare minimum.

              Deserve has nothing to do with it.Report

            • Kyle in reply to Scott says:

              I’m going to push back along a different line mostly because whenever I hear “they kill civilians!” as if that’s what makes them so markedly different from us, I roll my eyes.

              Would anybody view 9/11 differently if Al Qaeda had declared war on us previously (though arguably they did) and used UAV’s instead of airliners? Would we have said, well that’s terrible, but I guess it’s like Dresden and Tokyo so we’ll just consider them POW’s?

              I don’t think so. It’s clear that we have an unsatisfactory legal regime for dealing with terrorism and that’s going to be one of the great challenges of the 21st century, I think. Not because terrorism is such an existential threat but because globally, it’s a very confused subject area.

              To be clear I don’t believe in equivalency here but I don’t think “destroying civilian property” is the most damningly relevant distinction to be made.Report

      • Art Deco in reply to Dave says:

        If I am not mistaken, that was an innovation of the Hamdan decision, judical power grab no. 3068902. The article itself refers to ‘members of the armed forces’.Report

        • Dave in reply to Art Deco says:

          This was perhaps the most controversial aspect of the Hamdan.

          I’ll also note that Justice Thomas’ dissent found the majority opinion’s interpretation plausible and did not reject it. What he did was suggest that the government’s interpretatation was also plausible and, as such, we should defer to that judgment.

          It’s also worth noting that not a single member of the Supreme Court specifically said that Common Article 3 can not be interpreted to cover Al Qaeda.

          judical power grab no. 3068902

          You may as well put a “Kick Me” sign on your back.Report

          • Art Deco in reply to Dave says:

            Care to elaborate?Report

          • Art Deco in reply to Dave says:

            Judge Thomas’ opinion contained the following:

            In addition to Common Article 3, which applies to conflicts “not of an international character,” Hamdan also claims that he is entitled to the protections of the Third Geneva Convention, which applies to conflicts between two or more High Contracting Parties. There is no merit to Hamdan’s claim.Report

            • Dave in reply to Art Deco says:

              Instead, the Court, without acknowledging its duty to defer to the President, adopts its own, admittedly plausible, reading of Common Article 3Report

              • Dave in reply to Dave says:

                What is above is also from the Thomas dissent, which I took from the Volokh link.

                Care to elaborate?

                Sure. It is my belief, derived mostly from experience, that a large percentage who use the term “judicial activism” or some variation thereof as an “epithet”, when forced to engage in an extended debate on the cases or constitutional issues, lose badly. I would hope that I’m wrong about you. You seem intelligent enough to back up your opinions when called upon to do so.

                That is as true for conservatives who complained about the WoT cases or anything other ruling they disagreed with as it is for the liberals who complained about the Ricci, Citizens United or Heller decisions.

                I would have left your comment alone but to me, Hamdan was at its heart a separation of powers question. In terms of the military commissions, the court simply said the President can not unilaterally establish military commissions and must consult Congress. Where’s the power grab in that?

                Boumediene would be a much better candidate if you were going to go that route.Report

    • Jaybird in reply to Art Deco says:

      We do not abide by the Geneva Conventions because “they” “deserve” it.

      We abide by the Geneva Conventions because “we” “deserve” it. We deserve to be able to say “we were good”, we deserve to say “we treated them as we would have our own soldiers be treated”, and we especially deserve to say “we do not torture”.

      Now all we can say is the first 8 words in the first sentence of this comment and those words turn to ash in my mouth.Report

    • Will in reply to Art Deco says:

      Leaving aside the fact that the Geneva Conventions do guarantee a minimal level humane treatment for all detainees, the larger point is that declaring one group beyond the bounds of “civilized” conflict results in terrible human rights abuses.Report

  2. Dave says:

    Agreed Will. I love Sowell’s commentary. His weakmanning makes for a great punching bag.Report

  3. North says:

    Very clever that’s a good catch. A pity that the conclusion leaves me with ashes in my mouth just like Jay.Report

  4. Bob Cheeks says:

    They are uncivilized!
    By their own words we can not share the world. How many of our people have die until you believe them?Report

    • North in reply to Bob Cheeks says:

      Ah so Bob? So in response to their barbarity we should become barbarians ourselves? Is that is the lesson that the berserk Republicans would proffer and the cowardly Democrats would allow?
      The founding Fathers would weep and curse us through their tears.Report

      • Scott in reply to North says:


        It worked for the Marines in the Pacific during WW2.Report

        • North in reply to Scott says:

          Do elaborate Scott. Ol’ FDR was no saint (Japanese camps for instance) but I’m sure if he and Fala had been institutionalizing and authorizing torture *cough* sorry Mr. Yoo’s interesting enhanced interrogation techniques, then I imagine it’d have been all over Fox long ago.Report

          • Scott in reply to North says:

            Please, back then no one had to authorize torture, people knew what they had to do b/c unlike us, they knew that they were in a war. The Marines in the field met Jap barbarism with their own so they could survive and win.Report

            • greginak in reply to Scott says:

              I am too disgusted by the fact that we now have these discussions in America so I usually stay out. But obviously I can’t help myself.

              Scott that is a bad load of history you are shoveling. The Marines were indeed barbarous, in the course of active combat napalm was often used and hand to hand combat was common among many other things. Of course that was during active combat so that is , you know, completely F’ing different from how we treat prisoners. Apples meet lotus blossoms.

              The Japanese indoctrinated their troops and civilians that we would kill and torture them so that they would fight to the death which many did……HMMMMM let me put a think on that. The bad guys wanted their people to believe we were barbarians so they would fight harder. HMMMMM. And yes the Marines were brutal in combat and often didn’t take prisoners, combat will do that to ya. But they also treated their prisoners well enough and treated civilians well. When they weren’t in combat they lived up to the standards American’s should, and that led to the captured being more helpful to us and better relations after the war.

              You might also consider that the Russians treated German prisoners brutally while we did not. So while German solders fought bitterly against the Russians as the war was ending they were rushing to surrender to us. All those German scientists who ended up working for us during the war went to the West because we were far more just then the Russians.Report

            • North in reply to Scott says:

              Gonna have to call bullshit Scott. There’s an enormous difference between what happens in combat and what you do when combat is done and the enemy lies in your power. If you have any cites of marine torture of captured Japanese soldiers I’d invite you to share them now. Otherwise I’d advise steering clear of any assemblies of WWII veterans, when you go about implying that they behaved dishonorably out of combat.Report

              • Scott in reply to North says:

                I suggest you read one of the best first hand accounts of the Pacific war by a Marine, With the Old Breed-At Peleliu and Okinawa.

                Here is a link to a summary that only relates a few of the occurrences.

              • North in reply to Scott says:

                I’ve followed the link. It mentions one marine taking a gold tooth out of a still living Japanese soldier after a battle and getting shouted down by his comrades. Somehow that doesn’t strike me as the same as Bush Minors’ habits of ordering the methodical torturing of people to try and get information or our latest Gutanamo spectacle of sending “suicides” back with their throats completely removed so that we can’t verify that their deaths were accidental.Report

              • Scott in reply to North says:


                This wasn’t about comparing WW2 and today. This was about my comment and you calling BS. I backed up my statement so don’t try and change the subject. Maybe you should read the whole book and it would open your seemingly naive eyes as to some of the things that took place. There is much more in the book than that one incident. Also, if you get a chance you should listen to the interview with Sledge.Report

              • Mark Thompson in reply to Scott says:

                This thread is specifically about torture or, if you’d prefer, enhanced interrogation techniques. North’s comment to which you responded with the cite was specifically distinguishing between what is done in the heat of battle and what is done outside of the heat of battle. North’s comment specifically asked for a citation that references “Marine torture of captured Japanese soldiers.” The article to which you link does not appear to contain any such references.Report

              • North in reply to Scott says:

                Thanks Mark. Scott, for clarification if you could cite some WWII examples like the CIA torture err enhanced interogation manuals described in detail here:
                Then I’ll be willing to reconsider my high high opinion of the greatest generation.Report

              • Art Deco in reply to North says:

                That particular magazine article has already been discredited.Report

              • Scott in reply to Art Deco says:

                Which magazine article are you referring to? Sledge’s book is real and is part of the inspiration for the HBO series, The Pacific.Report

    • Mike Schilling in reply to Bob Cheeks says:

      Which “they” are uncivilized? The innocents who would up in Guantanamo by mistake (or worse still, to earn some miscreant a bounty), or the ones who tortured them?Report

  5. Bob Cheeks says:

    Northie, dude, how eloquent!
    No, actually it has to do with the right of self defense.
    And, I do agree that we’d be much better off staying home and minding our own business, sadly that cat’s already outta the bag.Report

  6. The problem isn’t so much what we do to them after we have them, the real problem is that we go out of our way to such a ridiculous extent to make sure we take them alive to begin with. Aside from the arguable two or three days we might spend “torturing” them, as a general rule I suspect most of them are living better than they ever lived before, or ever could imagine living in their wildest dreams. I am fine with that, too, what I am not fine with is the fight with one arm tied behind our backs philosophy that seems incumbent on any participant in any warfare situation in order to assure the rest of the world, generally the third world thugs who comprise the majority of the UN that, yes, we are civilized, and you should kindly take note of that. In the meantime if anybody calls into question the treatment of the people of Darfur by the thugs of Khartoum, we are laughed at, behind our backs and to our faces.

    In an earlier era, say fifty years ago, this would have been over with within three or four years, incidentally at far less expense and far less total loss of lives.Report

    • Will in reply to PatrickKelley says:

      Wait, what? So Sudan’s genocide hasn’t provoked any moral outrage? Have you tried Google News recently?

      More seriously, the case for treating detainees decently isn’t contingent on UN brownie points. It’s about a) fulfilling our constitutional obligations, b) generating goodwill during a grueling counter-insurgency campaign and c) respecting the intrinsic dignity of every human being.Report

      • PatrickKelley in reply to Will says:

        “So Sudan’s genocide hasn’t provoked any moral outrage?”

        Yes, just not with the folks in Khartoum, who don’t seem to care about anybody’s opinions, seeing as how the situation continues, and who are the ones I was referring to. We depend on them for intelligence information, the Chinese kiss up to them for oil, and so they just laugh it all off. At the end of the day, it comes down to choices. Maybe if it weren’t for the Chinese factor, we would act differently, but honestly, what difference would it make. I have an idea the only way we could stop them would be to start another war. Good luck getting anybody to go along with that even if China were not a factor. If we did, you could be sure it would be the same old mess.Report

  7. Kyle says:

    It seems to me there is only one relevant question here are our rules and prohibitions vis-a-vis torture, conduct of war, and the treatment of prisoners reflective of a compact amongst the civilized states of the world or a codified reflection of our values and guide to conduct.

    If it is the former and there seems to be little evidence of that, then the Yoos and Sowells and anyone else arguing in the weeds of are they or aren’t they deserving of rights has a point.

    If instead, our laws relating to the conduct of war exist to guide our conduct of war, then who we fight is irrelevant and any discussion of their status is only appropriate insofar as distinguishing which legal protections and liabilities relate to them, not whether they get legal protections in the first place.

    I happen to believe the latter position, but considering the tenor of the day it seems that the question of what exactly our rules of war are is more open than previously assumed.Report

    • Hopsong in reply to Kyle says:

      I’m usually just a bystander but since I’m a military member who just happened to attend Law of Armed Conflict training today I’d like to answer Kyle’s point about the rules. Here is the executive version: 1)You must follow lawful orders–and you assume most orders are lawful; 2)you must not follow unlawful orders–training, common sense, and reasonably good upbringing should tell you the difference. Tellingly, the JAG paused on a slide, pointed out the Geneva Convention, and asked if we thought it was the highest law we had to follow. Only 3 of us out of about 40 raised our hands. Of course the answer was ‘Yes’ because the Constitution requires us to follow ratified treaties like Geneva. (In our defense, most of the officers were absent and we’re not deploying so we got the abbreviated version.) It’s hard enough to remain a “Gentleman” amidst the passions of war, but these arguments of ‘they’re uncivilized’ and ‘they don’t follow the rules’ and ‘they’d do it to us’ confuse what should be a black-and-white situation. Nobody expects the grunt on the ground to be able to argue the applicability of Common Article 3, but fundemental training (like I got starting when I was a Midshipman at the Naval Academy) backed up by common sense and a decent upbringing should have provided all the rules we need to tell service members it was wrong to chain detainees in painful positions, not letting them get decent sleep for days on end, all the while exposing them to extremes of heat/cold/sound/light. Therefore I think it took some legalistic, pursuasive, and confident orders from high up the chain of command to get soldiers, sailors & marines to do those things, which is why I am disappointed that, to my understanding, no officer senior to a Lieutenant Colonel has ever been convicted of violating the LOAC–and that guy just got a reprimand! Yoo, Rumsfeld, and 19th Century French explorers don’t convince me otherwise.Report