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July 11, 2006

Hip, Hip, Hoo—
Posted by Patrick at 01:35 PM *

U.S. detainees to get Geneva rights. Terrific. Except, not really. Via Matthew Yglesias on Tapped, we see that the CIA’s worldwide gulag is entirely exempt from today’s ukase.

Just like yesterday, if our lords and masters decree it, you can be disappeared without trial and without recourse down a very deep hole. Yay, us.

Comments on Hip, Hip, Hoo--:
#1 ::: Nancy Lebovitz ::: (view all by) ::: July 11, 2006, 01:58 PM:

Could you guys help me out? There's been something I've been trying to get framed about how the current administration (and too many folks who love it) are entranced with the idea of defining some people as outside the bounds of entitlement to decent treatment. Any thoughts on the subject?

Part of it is the sadism, but another piece is wanting it to be legal, I think.

#2 ::: JC ::: (view all by) ::: July 11, 2006, 02:11 PM:

I guess I'm being cynical, but I believe it when I see it.

As for defining some people as being out of bounds, it seems to me that it's the standard tactic of defining a set of people as not being human. It seems to me that those who do this are invariably doing it out of fear.

What disturbs me (and I feel a bit like China Mieville when I write this since this seemed to be a running theme of his through Readercon) is that they know that the things they do are wrong, but they keep doing them anyways. e.g., with respect to prisoner abuse, given the prevalence of such acts, even if we believe it was the work of "a few bad apples", we'd still have to conclude that the responsible leaders are allowing it to happen by not enforcing discipline.

(Is there a script that gets passed from former global powers to current global powers so that the current global powers know how they can inevitably work towards their own downfall? It's as if a slim majority of us decided that the American Century ought to be over and worked towards that cause.)

#3 ::: Patrick Nielsen Hayden ::: (view all by) ::: July 11, 2006, 02:13 PM:

What's become evident is that Cheney and Rumsfeld came into office with an overriding agenda, which was to overturn the post-Nixon reforms and rebuild the Presidency as an unstoppable, uncheckable, essentially dictatorial power center. Finding and establishing areas (referred to by these guys, slangily, as "outer space") where Congressional limitations, or the writ of the Federal judiciary, or our treaty obligations, don't limit executive action, has been a significant part of this larger project.

Their determination to do this long predated 9/11. They've been thinking about it and making plans since the end of the Ford administration. This New Yorker profile of David Addington, Cheney's longtime legal adviser, documents and substantiates this to an impressive degree.

#4 ::: Lenora Rose ::: (view all by) ::: July 11, 2006, 02:19 PM:

"the CIA’s worldwide gulag is entirely exempt from today’s ukase"

Yes, that's even in the main article -- in the very bottom paragraph. Are they hoping people will stop reading before they catch on?

#5 ::: Nancy Lebovitz ::: (view all by) ::: July 11, 2006, 02:24 PM:

One structural (rather than emotional) possibility is that since these guys believe in unlimited punishment, they do everything they can to make sure they're not at risk for *any* punishment themselves.

#6 ::: Teresa Nielsen Hayden ::: (view all by) ::: July 11, 2006, 02:27 PM:

They're big on scaring people. It's gotten them a long way.

#7 ::: Writerious ::: (view all by) ::: July 11, 2006, 03:58 PM:

This administration -- well, the far right in general -- is notorious for redefining words for their own benefit. "Liberal" for example has transformed from a position of broad-minded tolerance and social reform for the benefit of all, to that "volvo-driving, latte-drinking, body piercing freak show" or however that anti-Howard Dean ad went.

So perhaps shoving anyone they want away in gulags for torture is how they now define the "freedom" that our soldiers are supposed to be fighting for.

#8 ::: dolloch ::: (view all by) ::: July 11, 2006, 04:48 PM:

Nancy,

Near as I can figure, the mentality is that of the vigilante, i.e. extraordinary circumstances (surprise terrorist attacks) require extraordinary measures (lockdown on rights, torture, invasion). From their standpoint the system as is has failed, therefore the system must be circumvented for justice to prevail. They attribute the failure to "liberalism" which becomes defined as whatever causes something to go wrong. I find it interesting that Bush portrays himself as a cowboy, and this is right in line with the cowboy mythos ("Open Range" and "Unforgiven" being two movies that leap to mind where the law is corrupt and must be ignored).

This idea ignores that 9/11, while surprising, was one in a long list of attacks. It was not the beginning of an uber-threat as it's being presented.

Although it's off-topic, I wonder to what extent the Right is correct about the Media's liability. We in Hollywood tend to adore the rebel-against-the-system stories, the "cop who plays by his own set of rules". The whole anti-hero movement is a great example. I remember on one of these threads someone mentioning "Batman Begins" and how the Bat's tactics walk (or perhaps cross) the line between intimidation and torture. If our stories are how we define ourselves and our society, then how can we be surprised when the principles from those stories are applied to different ends?

Naturally, entertainers shouldn't be responsible for raising other's children. Plus, the system being rebelled against in those stories is almost always shown as corrupt. But in the case of the Neo-conservatives, they've painted a working system as corrupt (how else could have 9/11 happened?) and in need of outside justice.

#9 ::: Dave Bell ::: (view all by) ::: July 11, 2006, 05:59 PM:

Quoting the BBC report which is the first you link to, When the detention centre was established in 2002, President Bush ordered that detainees be treated "humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva".

This doesn't look like much of an improvement, and we all know how Bush's initial orders were carried out.

#10 ::: John ::: (view all by) ::: July 11, 2006, 06:42 PM:

Wasn't it Andrew Jackson who said "the Judicial Branch has made their decree, now let them enforce it" when the SC declared his forcible relocation of the Cherokee Indians unconstitutional?

Bush is doing the same thing with his "interpretations" of laws and rulings where he says he'll follow them only when it suits him.

#11 ::: Fragano Ledgister ::: (view all by) ::: July 11, 2006, 07:22 PM:

In a republic such as this one which extends over a not insignificant portion of the earth, there is a tension between the demands for centralisation and efficiency and the demand for civil and civic liberty. The one, taken far enough tips the republic into empire. The other keeps it a republic, though there will be constant disagreement about its ends.

The Great Republic (and I capitalise without any ironic intent)is founded on a set of principles that involve civic equality and (from Lincoln on, in theory at least, political equality) of all citizens. That means, to quote one of my heroes C.L.R. James, that 'every cook can govern'. Of course, to those who believe that central control increases efficiency, and most especially to those who believe that human beings are not and can never be equal in any real sense, this is nonsensical. The counter-argument is that for the state to survive free (that is, uncontrolled by outside forces) it requires leadership, and in times of crisis the need for leadership is greater.

The problem is, of course, that the more you give power to the leader the less the power of the republic (in the sense of the people as a whole)becomes until you no longer have a republic, you have an empire and Georgius Præsidens becomes Augustulus Cæsar. At that point, we enter an orwellian world in which key terms, like 'freedom' become the opposite of what they used to mean. (To give a classical example, the word which in classical Athens was used to refer to a citizen's right to speak out in his behalf became by the time of high Byzantine empire one of the words for 'rude'. Note:If I'm wrong, Candle, correct me gently)

#12 ::: flaring ::: (view all by) ::: July 11, 2006, 08:29 PM:

Nancy, there's an internal inconsistency in all this that's been niggling me. I'm trying to work it out:

The most recent reason for the occupation of Iraq is that we are 'exporting democracy'. If it's accurate to say that a democracy must include the rule of law, then we are supposedly exporting that as well. And yet, with respect to prisoners and even sometimes even our own naturalized citizens, we have discarded the rule of law. We're trying to export the idea of basic human rights, but we don't respect them.

Well, there's something in that, but ragged.

#13 ::: Clark E Myers ::: (view all by) ::: July 11, 2006, 08:38 PM:

Wasn't it Andrew Jackson who said "the Judicial Branch has made their decree, now let them enforce it" when the SC declared his forcible relocation of the Cherokee Indians unconstitutional?

Not exactly - the opinion was to the effect that Georgia - not Jackson - lost and there was never a finding the relocation - by statutory order - was unconstitutional.
....In December 1835 the Treaty of New Echota, signed by a small minority of the Cherokee, ceded to the United States all their land east of the Mississippi River for $5,000,000. The overwhelming majority of Cherokees repudiated the treaty and took their case to the U.S. Supreme Court. The court rendered a decision favourable to the Indians, declaring that Georgia had no jurisdiction over the Cherokees and no claim to their lands.

Georgia officials ignored the court's decision, and President Andrew Jackson refused to enforce it. As a result, the Cherokees were evicted under the Indian Removal Act of 1830 by 7,000 troops commanded by General Winfield Scott. Some 15,000 Cherokees were first gathered into camps while their homes were plundered and burned by local residents. Then the Indians were sent west in groups of about 1,000, most on foot.

The eviction and forced march, which came to be known as the Trail of Tears, took place during the fall and winter of 1838–39 and was badly mismanaged. Inadequate food supplies led to terrible suffering, especially after frigid weather arrived. About 4,000 Cherokees died on the 116-day journey, many because the escorting troops refused to slow or stop so that the ill and exhausted could recover....

"Cherokee."Encyclopædia Britannica. 2006. Encyclopædia Britannica 2006 Ultimate Reference Suite DVD 11 July 2006 .

2 interesting bits somewhat related as background:
.....One popular technique for dealing with unpopular decisions has been defiance. During Andrew Jackson's presidency, the states sometimes defied Supreme Court decisions, such as when Georgia went through with the execution by hanging of a Cherokee named Corn Tassels in the face of a Supreme Court order not to do so. Jackson was thought to lack the will to enforce federal court mandates. In another Cherokee controversy with Georgia, Jackson reputedly said, "John Marshall has made his decree, now let him enforce it." As one newspaper aptly reported, "We are sick of such talks [of defiance]. If there is not power in the Constitution to preserve itself--it is not worth keeping." It is notable, however, that when John Calhoun launched the nullification movement, Jackson made it clear he stood behind the Court....
Judicature, the journal of the American Judicature Society, January-February 1998.
Barry Friedman,

Pause a moment to consider the relationship between the federal government and the Native Americans on the one hand and the relationship between the federal government and the states on the other. What other relationships exist outside the federal-state-people power relationship which mostly defines the constitution?

Con Law I § 2 Handout I p. Trail of Tears Case Notes from Howard University School of Law

Bush is doing the same thing with his "interpretations" of laws and rulings where he says he'll follow them only when it suits him.

I'd say Bush is not doing the same thing as refusing to enforce against a somewhat sovereign State - (remember this was well before Sumter and the amendments following the 1861-1865 conflict) nor do I recall Jackson ever denying the effect of decisions on him personally or his office. This was still - as always - a period of feeling things out and cases of first impression - the Constitution and the Court as the whole nation had only a brief past for guide. Obs SF Eric Flint The Rivers of War The Arkansas War et. seq.

#14 ::: Lizzy L ::: (view all by) ::: July 11, 2006, 08:52 PM:

I am reminded of Stalin, asking how many legions the Pope has...The Busheviks do remind me often of Stalinist Russia. Amusing (not very) testimony in the Senate Judiciary Committee hearing today on the subject of developing regulations under which the Gitmo prisoners may be tried: the administration witnesses basically said, Gee, why don't you just leave it all up to the President? He can make it up as he goes along.

To which Lindsey Graham remarked, I don't think so.

I wonder if he'll stick with that.

Excuse me, but I feel an attack of total rage coming on. Again.

#15 ::: TexAnne ::: (view all by) ::: July 11, 2006, 09:26 PM:

flaring: If you think of life as a zero-sum game, which arguably the crooks in power do, it makes perfect sense: if we export all our democracy to Iraq, there will be none left over here. This raises the question of where the democracy went, since obviously there isn't any in Iraq either. I'm going to bet it was skimmed off by Halliburton in a sweetheart deal.

#16 ::: Shlmpy™ ::: (view all by) ::: July 11, 2006, 09:36 PM:

Ths 5 jstcs f th Sprm Crt hvn't vn rd th Gnv Cnvntn t vn knw wht thy'r tlkng bt, lt ln hw t ppls t th ppl t Gntnm. Ths ppl r TRRRSTS! Thy r nt sldrs f frgn rmy, thy r TRRRSTS! Thy'r nt qt crmnls, thy'r nt qt sldrs, thy r thr wn nq ntty n nd f thmslvs. Th Gnv Cnvntns wr nt wrttn t hndl ppl lk ths! Prsdnt Bsh hs bnt vr bckwrds t trt ths ppl s HMNLY s pssbl nd yt tht s nt ngh fr y ppl! r th Sprm Crt!

Gntnm s nt Glg! Sch cmprsn s PRPSTRS! Trrrsts wll stp t nthng t KLL Y ND VRYN Y LV wtht mmnt's hsttn. Thy r nt jst pltcl dssdnts wh dsgr wth th gvrnmnt, thy r nsn mncs wh wll stp t NTHNG t dstry th ntd Stts nd brng TRRR t th hrts f hr ctzns! Y r cmprng PPLS wth RTTN GRPFRTS!

#17 ::: P J Evans ::: (view all by) ::: July 11, 2006, 09:42 PM:

Shoelimpy is, on the wording of its post, a troll. However, it might actually have something worth listening to, if it isn't a troll and decides to lose the screaming caps and bangs.

#18 ::: flaring ::: (view all by) ::: July 11, 2006, 09:45 PM:

Now I have an image of democracy being a liquid, dripping out of leaky, rusted pipes.

It's alarming to me (such a gross understatement) that some many people I see posting and commenting around the net seem to believe that a democracy can exist without the rule of law. Or maybe they just don't understand the consequences of what they advocate.

#19 ::: Patrick Nielsen Hayden ::: (view all by) ::: July 11, 2006, 09:51 PM:

Clicking through to Shoelimpy's own URL, I literally can't tell whether this is a real wingnut or a parody of one, a la Jesus' General or the Landover Baptist Church.

#20 ::: Shlmpy™ ::: (view all by) ::: July 11, 2006, 10:08 PM:

Dmcrcy xsts wth th rl f lw. TRRRSTS r nt prt f dmcrcy. Thy RJCT dmcrcy nd ll tht t stnds fr. Thy r nt sldrs, thy r nt crmnls, thy r nt cvlns, thy r s sd bfr smthng cmpltly nd ttlly dffrnt nd shld b trtd s sch. Th Sprm Crt hd n d wht t ws dng whn t md ths dcsn. PRD!

Why dn't w jst gv ll f th nmts t Gntnm CTZNSHP n th ntd Stts f mrc? Thy r HMN BNGS ftr ll, shldn't thy gt Mdcr? Scl Scrty? Shldn't thy b prtctd ndr th bsc rghts nd frdm w ll njy?

HLL N! Thy wld dstry vry sngl rght nd frdm f thy wr gvn th chnc! Tht s why thy r TRRRSTS!!!!

#21 ::: Teresa Nielsen Hayden ::: (view all by) ::: July 11, 2006, 10:09 PM:

Patrick, don't you remember these guys? They're the same ones who posted about How to handle an open thread on liberal blogs, only to have their own thread turned into a festival of pinatas.

They're kind of like satirists, only without the startling reframes, incisive commentary, humor, or other unnecessary stuff like that. I'd classify them as belonging amongst the right-wingers because they don't know much and they aren't particularly talented, but they're nevertheless sure they're entitled to our respectful attention.

#22 ::: Avram ::: (view all by) ::: July 11, 2006, 10:14 PM:

Is the SUPREME COURT trying to put DEMOCRACY out of BUSINESS?!?!?!

#23 ::: adamsj ::: (view all by) ::: July 11, 2006, 10:23 PM:

No, the POSTER is trying to run the TYPESETTER out of CAPITAL LETTERS!?!?!?!?!?!

#24 ::: Michael Weholt ::: (view all by) ::: July 11, 2006, 10:23 PM:

Avram: Is the SUPREME COURT trying to put DEMOCRACY out of BUSINESS?!?!?!

Oh, Jesus... I'd completely forgotten about that one. LOL. Those were the days...

#25 ::: Shlmpy™ ::: (view all by) ::: July 11, 2006, 10:26 PM:

n wy, ys thy r, bt thnk tht s smwht f n xtrm pstn t tk, vrm. wld nvr sggst t myslf, bt thr mtvs n ths prtclr cs r crtnly sspct.

#26 ::: Teresa Nielsen Hayden ::: (view all by) ::: July 11, 2006, 10:34 PM:

Shoelimpy, you aren't amusing.

#27 ::: Shlmpy™ ::: (view all by) ::: July 11, 2006, 10:36 PM:

Ppl wh lv frdm nd stnd p fr wht thy blv n vn whn t sms th ntr wrld s gnst thm rrly r, Trs.

#28 ::: Michael Weholt ::: (view all by) ::: July 11, 2006, 10:42 PM:

If only we could get Miss Caroline Weber to weigh in on the Supreme Court.

"I am totally psyched about THE TERRORISTS!"

And so forth.

Now that could be funny. Though Shoelimpy's response would, perforce, be funnier.

#29 ::: Teresa Nielsen Hayden ::: (view all by) ::: July 11, 2006, 10:46 PM:

No kidding? So are self-congratulating bores.

#30 ::: Stefan Jones ::: (view all by) ::: July 11, 2006, 10:47 PM:

What a brave, noble man, taking on the mantle of spittle-flicking boor in order to better defend freedom. Carry on!

#31 ::: Teresa Nielsen Hayden ::: (view all by) ::: July 11, 2006, 10:48 PM:

I was, of course, addressing Shoelimpy.

#32 ::: Shlmpy™ ::: (view all by) ::: July 11, 2006, 10:48 PM:

dn't ndrstnd wht y fnd hmrs n th d tht w shld gv trrrsts spcl prvlgs. Myb whn th Sprm Crt dclrs tht t s n-Cnstttnl fr TRRRSTS t kdnp cvlns wtht cs nd thn bhd thm n ntnl TLVSN thr mght b sm cs fr rsnbl dbt n th ss. Bt thy wn't bcs thy cn't nd gss wht? Thr s n l Qd Sprm Crt t rl n th ss thr bcs TRRRSTS d nt blng t gvrnmnt t frc thm t b hlfwy hmn, thy r TRRRSTS.

#33 ::: Shlmpy™ ::: (view all by) ::: July 11, 2006, 10:53 PM:

Why r y tryng s dsprtly t trn ths nt prsnl dscssn, Trs? s t bcs y hv n rsnbl dfns why w shld pply cnvntns dsgnd t prtct sldrs f cntrs wth whm w r t wr wth t trrrsts wh swr llgnc t n ntn nd n flg? spclly whn th fct f th mttr s tht th prsnrs t Gntnm hv bn trtd n th mst prt qt hmnly, s hs bn th pstn f Prsdnt Bsh frm dy n?

#34 ::: Lisa Goldstein ::: (view all by) ::: July 11, 2006, 10:55 PM:

Re: exporting democracy -- As Jon Stewart said when Iraq was trying to come up with a constitution -- "They can have ours -- we aren't using it."

#35 ::: Teresa Nielsen Hayden ::: (view all by) ::: July 11, 2006, 10:55 PM:

Okay, that does it. You're killing the conversation.

#36 ::: Shlmpy™ ::: (view all by) ::: July 11, 2006, 10:58 PM:

R: xprtng dmcrcy -- s Jn Stwrt sd whn rq ws tryng t cm p wth cnstttn -- "Thy cn hv rs -- w rn't sng t."

Th Cnstttn dsn't pply t trrrsts.

#37 ::: Teresa Nielsen Hayden ::: (view all by) ::: July 11, 2006, 11:01 PM:

Stupid ignoramus. The Constitution is law, and the law applies to everyone.

#38 ::: Lizzy L ::: (view all by) ::: July 11, 2006, 11:22 PM:

Shoelimpy -- why not? That is, why doesn't the Constitution apply to terrorists? Don't get snarky. I mean it. The Constitution is our Rule; Americans observe it the way Benedictines observe the Rule of Benedict -- we consider it a living document which should be applied to all situations in American life requiring the application of legal principles. Congress is empowered by the Constitution "to make rules concerning captures on land and water" (Article 1, Section 8.) All treaties made "under the authority of the United States...shall be the supreme law of the land." (Article 6, Section 2.) The Geneva Conventions are a treaty. There is nothing in the Constitution which states that "terrorists" (who may, indeed, not be so; we can't know unless and until they are tried either by a criminal court or a military one) constitute a special class of enemy -- the Constitution does not provide for a special class of enemy. Why isn't the Rule we have followed for 219 years, since 1787, appropriate to this situation, as it has been for all others, including a terrible civil war in which our country nearly destroyed itself? I say it is.

(Tell me why I bother....)

#39 ::: Patrick Nielsen Hayden ::: (view all by) ::: July 11, 2006, 11:32 PM:

I'm actually not interested in arguing with these people at all, even to the extent of letting their nonsense stand in disemvowelled form.

That goes emphatically for the secondary character whose posts Teresa just now deleted outright. This isn't a public bulletin board. If you're going to be obnoxious, be smart and interesting.

#40 ::: Teresa Nielsen Hayden ::: (view all by) ::: July 11, 2006, 11:42 PM:

Basic principle: no one is outside the law. If you think you are, or if you think someone else is, you can be certain that you're wrong.

Our legal tradition used to allow for the possibility of removing oneself from the law's jurisdiction. It wasn't pleasant.

#41 ::: Randolph Fritz ::: (view all by) ::: July 11, 2006, 11:49 PM:

Do Not Bother The Moderator, For Your Name Looks Silly Without Vowels.

#42 ::: Samantha Joy ::: (view all by) ::: July 11, 2006, 11:53 PM:

Nancy--I think that Shoelimpy has addressed the basic issue for you, but it has nothing to do with either sadism or legality. The folks to whom you are referring aren't necessarily all sadists; they are tribalists who do firmly believe in the rule of law.

The problem is that "the rule of law" has as its necessary corollary the concept of the outlaw, the person who does not abide by the law and is therefore not entitled to the law's protection.

The idea you express ("defining some people as outside the bounds of entitlement to decent treatment") is much, much older than the relatively recent and utterly revolutionary idea that all people are entitled to equal protection under the law.

The law is intended to protect societies, and once you've accepted that premise, you must ask from whom societies need to be protected--sometimes the answer is "foreigners bent on waging war", but more often it's from the internal elements, the outlaws, those who do not conform.

I think you're going to have a difficult time framing the issue as "sadism" because I don't think that sadism really has anything to do with it.

Re-read what Shoelimpy said, and consider it from this point of view.

Dmcrcy xsts wth th rl f lw. TRRRSTS r nt prt f dmcrcy. Thy RJCT dmcrcy nd ll tht t stnds fr. Thy r nt sldrs, thy r nt crmnls, thy r nt cvlns, thy r s sd bfr smthng cmpltly nd ttlly dffrnt nd shld b trtd s sch. Th Sprm Crt hd n d wht t ws dng whn t md ths dcsn. PRD!

Why dn't w jst gv ll f th nmts t Gntnm CTZNSHP n th ntd Stts f mrc? Thy r HMN BNGS ftr ll, shldn't thy gt Mdcr? Scl Scrty? Shldn't thy b prtctd ndr th bsc rghts nd frdm w ll njy?

HLL N! Thy wld dstry vry sngl rght nd frdm f thy wr gvn th chnc! Tht s why thy r TRRRSTS!!!!

--Shlmpy

#43 ::: Jen Roth ::: (view all by) ::: July 12, 2006, 12:00 AM:

UN-altered REPRODUCTION and DISSEMINATION of this IMPORTANT Information is ENCOURAGED.

#44 ::: TomB ::: (view all by) ::: July 12, 2006, 12:07 AM:

I was listening to Talk of the Nation this morning. They had a lawyer speaking very clearly and forcefully about the inhumane treatment of the detainees, and the need to follow the applicable law in the UCMJ and Article 3 of the Geneva Convention.

For balance, they brought on a lawyer who'd served in the Justice Department under Reagan and G.H.W. Bush. He sounded very articulate and reasonable, and did his best to support the administration. His approach was to use the term "unlawful combatants" and say that the Geneva Conventions didn't protect them because they weren't following the rules. This seemed like backwards logic. If we believe him, the Geneva Conventions spell out the rules for how we will allow ourselves to be attacked. Those who follow the rules will be treated with honor and respect, unless of course we kill them first. But woe to anyone who does not follow the rules, who does not wear a uniform, who does not serve in an organized military unit, who does not have a home country. They will be punished for their transgressions by being tortured and detained indefinitely without any legal recourse. This is true even if they are innocent, because revealing their innocence could jeopardize the war on terror.

Back in the real world, my understanding is the Geneva Conventions apply to the states that signed them. The rules bind the states to treat humanely those of their enemies that fall into their hands. To me, it seems immaterial whether our enemies play by the rules. If they attack us, they will meet overwhelming force, and if we capture them, they are at our mercy. At that point, it would be a good idea, practically as well as legally and morally, for us to actually have mercy. To follow the laws and treaties we signed, and that previous generations fought for. To demonstrate that we're better than the people attacking us.

I don't think that trolls came up with the idea on their own that terrorists aren't protected by the Constitution or by the law. It is the administration party line.

#45 ::: Jen Roth ::: (view all by) ::: July 12, 2006, 12:16 AM:

I don't think that trolls came up with the idea on their own

They never do.

I have never been able to get any of the "don't you understand, they're TERRORISTS!" cowards to answer the question of what should be done about people who have been detained wrongly and are not, in fact, terrorists. The official position of the Bush Administration, which has not allowed them a trial, appears to be "We don't make mistakes, and if we do, too bad. They can rot." How this is meant to be compatible with ideals of freedom and justice is beyond the ability of my mere liberal mind to comprehend.

#46 ::: James D. Macdonald ::: (view all by) ::: July 12, 2006, 12:35 AM:

There is no class of person who does not fall under the Geneva Conventions. The class "unlawful combatant" does not exist; neither in law nor in custom and tradition.

There is no class of person who can be treated in a cruel or inhumane manner under the Geneva Conventions.

America abandons its core values only at its great peril.

#47 ::: miriam beetle ::: (view all by) ::: July 12, 2006, 04:20 AM:

wow.... Cnstttn & trrrsts are way fun-looking, disemvowelled.

#48 ::: Michael Weholt ::: (view all by) ::: July 12, 2006, 06:37 AM:

Samantha Joy: The problem is that "the rule of law" has as its necessary corollary the concept of the outlaw, the person who does not abide by the law and is therefore not entitled to the law's protection.

I'm unclear whether this is your view or the view of someone else you are describing here.

There is no such concept in our legal system of people who do not abide by the law being "therefore not entitled to the law's protection".

Certain parties may behave as if that concept exists, but when they do they are operating outside the law themselves and are therefore liable to punishment under the law. But they are also protected by the law from being, for example, summarily executed, or detained indefinitely without hearing or trial.

A legal system that doesn't protect everyone, even outlaws, is totalitarianism. You're talking Robert Mugabe's Zimbabwe, here.

#49 ::: Marna ::: (view all by) ::: July 12, 2006, 07:09 AM:

There is no class of person who does not fall under the Geneva Conventions.

Well, not strictly true.

Unless I've slipped a gear here, the original intent of Geneva was to establish that POW's and political detainees are not criminals and are not to be treated like criminals. NOT to say that anyone not falling under it had no rights.

If you don't fall under it -- which is supposed to be decided by an tribunal, NOT by the government doing the detaining -- you are supposed to fall under (aside from the right of the accused wherever you happen to be) Human Rights In The Administering of Justice.

(they're both linked here, with other stuff)

http://www.unhchr.ch/html/intlinst.htm

IOW, not falling under Geneva doesn't mean they can treat you badly. It means they have to charge you and try you and convict you -- honestly and openly -- or let you the hell alone.

Classing a lot of these detainees under Geneva makes me nervous as Hell; Geneva is NOT meant to apply to situations where guilt or innocence is relevant; it presumes that you have the right to detain persons who fall under it as part of war, but that they are by definitions not guilty of anything.

And a lot of the people currently detained seem not to have been any sort of combatant at ALL, lawful or not.

#50 ::: Fragano Ledgister ::: (view all by) ::: July 12, 2006, 07:40 AM:

Samantha Joy: Apparently your mind took a wrong turn and landed in the middle ages. Not very well either.

The concept of outlawry, as it existed in some mediæval European countries, arose at a time when the public authorities had limited power to enforce the law. It made sense then to define -- normally by a judicial process -- some persons as outside the protection of the law; this meant that law-abiding persons had the right to act against those people in the name of the law.

In an age in which the agencies that enforce the law are somewhat larger than the personal following of a large landowner, that concept is worse than useless. That's because it invites retaliation. If I say you're outside the law how, exactly, do you stop me from saying the same of you and seeking to kill you before you kill me? Once you claim that some people are outside the law you have no moral right to complain when you are so defined.

#51 ::: Eve ::: (view all by) ::: July 12, 2006, 08:34 AM:

wow.... Cnstttn & trrrsts are way fun-looking, disemvowelled.

They sure are. Also, does anybody else keep parsing 'Sprm Crt' as Sperm Count?

#52 ::: John ::: (view all by) ::: July 12, 2006, 09:56 AM:

Nothing has really changed. Read this article about what the Executive attorneys said to Congress on this issue:

http://www.washingtonpost.com/wp-dyn/content/article/2006/07/11/AR2006071100953.html

#53 ::: Laurence ::: (view all by) ::: July 12, 2006, 11:02 AM:

wow.... Cnstttn & trrrsts are way fun-looking, disemvowelled.

I myself am extremely fond of "PRPSTRS."

Thy wld dstry vry sngl rght nd frdm f thy wr gvn th chnc! Tht s why thy r TRRRSTS!!!!

Simply killing people is not enough to dstry thr rghts nd frdms. The only way that I can think of to do that is to take over the government and abolish the Constitution.

Oh, wait . . .

#54 ::: P J Evans ::: (view all by) ::: July 12, 2006, 11:23 AM:

And now that I have my received-late jury summons straightened out (thanks to the nice people at the court's website, since the computerized phone system is useless if you actually have a problem)...

If we aren't going to be serious about "liberty and justice for all" then maybe we shouldn't be serious about requiring kids in schools to say it every day. If we're going to have a government that talks big about liberty and democracy, maybe we should have a government that actually puts some effort into, you know, practicing it. At home, where it's supposed to be the norm.

#55 ::: TexAnne ::: (view all by) ::: July 12, 2006, 11:41 AM:

"PRPSTRS"? Prepsters are destroying r frdms? I knew there was something wrong with all those Abercrombie & Fitch droids!

#56 ::: Graydon ::: (view all by) ::: July 12, 2006, 11:51 AM:

Way back up there, Nancy asked a question.

People deal with unmanageable complexity by making gods.

Some folks make gods out of the market, or the presumption of benevolence, or duty, or service, or love; the Bush administration -- though this is much more Cheney and Rumsfeld, since Bush's own god is privilege -- has made a god out of naked force.

You could say unconstrained power, too, but the way they deal with feeling uncertain and knowing that the world is more complicated than they can understand or control is to worship naked force. If they have enough force, everything and everyone which frightens them will submit in fear or die in pain, and they will be safe.

It's not a helpful god, it is not a wise god, and theirs is not a worship known for working, but it is their god and their worship and their faith is very strong.

#57 ::: Xopher ::: (view all by) ::: July 12, 2006, 03:11 PM:

Given that Shlumpy is just noise, and has nothing of any interest to contribute, why let its posts keep wasting space, even disemvoweled?

It's amazing, Teresa. Even though I can slowly decipher them, you appear to have removed any meaningful content along with the vowels. Just as those damn Martians keep removing the gold coins from my avocados! I never find gold in avocados anymore! MARTIANS ARE NOT ENTITLED TO THE PROTECTIONS OF THE GENEVA CONVENTION!!!!!

#58 ::: Linkmeister ::: (view all by) ::: July 12, 2006, 03:55 PM:

xopher, haven't you heard? The Geneva conventions were updated to include all solar system inhabitants at Vatican XLVII (Anacron Creed, para ii[b]).

#59 ::: Stefan Jones ::: (view all by) ::: July 12, 2006, 04:05 PM:

"The Geneva conventions were updated to include all solar system inhabitants at Vatican XLVII."

Just don't try to marry them.

#60 ::: Teresa Nielsen Hayden ::: (view all by) ::: July 12, 2006, 05:25 PM:

Samantha Joy:

"The problem is that "the rule of law" has as its necessary corollary the concept of the outlaw, the person who does not abide by the law and is therefore not entitled to the law's protection.

The idea you express ("defining some people as outside the bounds of entitlement to decent treatment")is much, much older than ..."

No. That's never been held to be a corollary, necessary or otherwise, of the existence of rule of law. Michael Weholt's dead right on this one.

The idea that some people won't abide by the law is implicit in legal codes: "No householder shall dump garbage in his neighbor's garden. If, in disregard of this statute, a householder shall dump his garbage in his neighbor's garden, upon the third such offense he shall be fined eight pazoozles, and three more pazoozles for each like offense thereafter." The peccant garbage-dumping householder has failed to abide by the law, yet he, his offense, his punishment, and his ongoing relationship with his neighbor are still within the scope of the law.

Basically, anything that happens on this planet falls under the rule of law, in theory if not always in practice.

If you want to talk about a bizarre novelty with no grounding in preceding codes of law, it's the idea that anyone can decree that some alleged offense puts the offender outside the protection of the law, including having recourse to standard legal procedure and access to courts. What that boils down to is "We can do whatever we want to anyone whom we accuse of this offense" -- a formulation that would have shocked European witch-hunters and Spanish Inquisitors alike. It's not law. It's a denial and a violation of the entire concept of law.

Once upon a time, so long ago that weregild and compurgation were still part of everyday legal practice, it was possible for a person to be declared an outlaw, a wolf's head (weargesheafod), meaning they were dead in the eyes of civil society. No one could give them assistance. They had no right to sue in court, though others could sue on their behalf. They could be killed out of hand, a sort of laudable homicide, as long as their killer reported it to the authorities ASAP.

There are two things you should note. First, outlawry wasn't necessarily imposed for heinous crimes. You could chop someone into kindling as long as it wasn't done under unfair or improper circumstances, you didn't use excessively cruel methods, and you paid weregild afterward. More than anything else, outlawry was imposed as a punishment for holding yourself above the law, or failing to acknowledge that the law applied to you.

Second, an outlaw was still covered by the law. There were rules and procedures for declaring someone an outlaw, getting a sentence of outlawry lifted, and punishing people who aided and abetted persons who'd been outlawed. Which is as it should be. The law does not contemplate an end to its own jurisdiction.

"... the relatively recent and utterly revolutionary idea that all people are entitled to equal protection under the law."
You only get to say that's "relatively recent" if you make a habit of selling your great-great-grandmother's antiques at yard-sale prices. "Utterly revolutionary" isn't accurate under any circumstances. Equal protection under the law was codified and confirmed, not created, by constitutional amendment. Before that, it was implicit and emergent in our law. Whoever told you it was a revolutionary change was lying to you, most likely with the intent of seducing you to your own ruin.

#61 ::: Dave Bell ::: (view all by) ::: July 12, 2006, 05:26 PM:

Marna, it may be that you're thinking that there's only one one Geneva Convention, covering Prisoners of War. It seems to be a common mistake.

The Wikipedia entry is a good start. It's the Third and Fourth Geneva Conventions which would be applicable.

Note that Afghanistan is a party to the Geneva Conventions, and so all Afghans are entitled to GC4 protection. Foreign nationals detained in Afghanistan are entitled to the normal consular protection provided by any government.

#62 ::: Teresa Nielsen Hayden ::: (view all by) ::: July 12, 2006, 05:28 PM:

Xopher, they're there to serve as an example. But if they really are cluttering up the place to no good effect, I'll nuke 'em.

Opinions?

#63 ::: TexAnne ::: (view all by) ::: July 12, 2006, 05:41 PM:

Madame Teresa: I'd say let 'em stay; without context, our mockery isn't as funny.

#64 ::: John Stanning ::: (view all by) ::: July 12, 2006, 06:09 PM:

To hell with the Geneva Conventions (plural) and laws generally.

How were these people brought up? Didn't anyone instil into them, at the age of about five, even the most basic morals? Can't they understand that treating people in a cruel or inhumane manner is simply wrong - as in bad, wicked, unacceptable, contemptible - and that no amount of legal finagling will make it right?

#65 ::: adamsj ::: (view all by) ::: July 12, 2006, 06:09 PM:

Lk n m wrks mght nd dspr

#66 ::: John Stanning ::: (view all by) ::: July 12, 2006, 06:30 PM:

Oh, and if you really want law:

Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super cum ibimus, nec super cum mittemus, nisi per legale judicium parium suorum vel per legem terre.
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
[article 39 of Magna Carta, 1215 - British Library translation]

Of course, they didn't keep to it. But the principle goes as far back as that, and probably farther.

#67 ::: Jen Roth ::: (view all by) ::: July 12, 2006, 06:33 PM:

John, you seem to be implying that morality applies to subjects other than sex. That's a completely foreign concept in our political climate.

#68 ::: P J Evans ::: (view all by) ::: July 12, 2006, 06:37 PM:

Of course, they didn't keep to it. But the principle goes as far back as that, and probably farther.

Definitely farther, or the king wouldn't have been forced to sign on to it. The barons who forced him certainly thought it was a Good Idea.

#69 ::: TomB ::: (view all by) ::: July 12, 2006, 06:44 PM:

Thy wld dstry vry sngl rght nd frdm f thy wr gvn th chnc! Tht s why thy r TRLLS!!!!

Sorry, just had to get that out of me.

#70 ::: Marva ::: (view all by) ::: July 12, 2006, 07:14 PM:

For a bit of self-promotion:

My story titled "Extraordinary Rendition" will be in the September issue of The Deepening.

I kept seeing that phrase in the news and I had to write something about it.

#71 ::: Fragano Ledgister ::: (view all by) ::: July 12, 2006, 07:40 PM:

John Stanning: Of course, there is also the article following: Nulli vendemus, nulli negabimus aut differemus rectum aut justiciam. To none will we sell, to none will we deny or delay right or justice. Something that the Shrub administration doesn't seem to believe in much.

#72 ::: Marilee ::: (view all by) ::: July 12, 2006, 08:17 PM:

Today's WashPost lead article states that "The administration also has decided that even prisoners held by the CIA in secret prisons abroad must be treated in accordance with international standards, an interpretation that would prohibit prisoners from being subjected to harsh treatment in interrogations, several U.S. officials said."

#73 ::: James D. Macdonald ::: (view all by) ::: July 12, 2006, 09:22 PM:

Until those prisons are open to random, surprise inspections by the International Red Cross, that's rather meaningless.

==========

And there is still no purpose whatever to this set of secret prisons. All they do is blacken America's reputation and pull down the respect for human rights worldwide.

Suppose they got information from their prisoners through torture. It's widely known that the information gained in that way is useless. A fantasy constructed by the prisoner out of his best guesses at what the torturers want to hear. Afterward he himself won't be able to tell fact from fiction because he'll no longer remember the facts.

And suppose one of the prisoners wasn't tortured and today, some three years after going into the system, decided of his own free will to tell, honestly and openly, everything he knew. Again, the information would be useless. All the codes, all the plans, all the meeting places, would have been changed long since.

The Geneva Conventions admit the possibility that prisoners of war, protected persons, displaced persons -- can also be common criminals. In those cases, they are tried in the normal courts, under the usual rule of law, of the power that holds them. Nor are those accused of war crimes or crimes against humanity exempt from being tried and punished for their offenses, regardless of what category they fall into under the Geneva Conventions. But in no case is torture permitted, not even for those accused of the gravest crimes.

#74 ::: abi ::: (view all by) ::: July 13, 2006, 01:55 AM:

Xopher:

It's amazing, Teresa. Even though I can slowly decipher them, you appear to have removed any meaningful content along with the vowels.

There was meaningful content?

(goes back and rereads)

All I see is meaningless discontent.

#75 ::: Eve ::: (view all by) ::: July 13, 2006, 05:22 AM:

adamsj: I know it's a meaningless coincidence, but I do like the way that 'I' and 'you' are completely obliterated by disemvowellment.

#76 ::: Teresa Nielsen Hayden ::: (view all by) ::: July 13, 2006, 08:19 AM:

John Stanning:

"How were these people brought up? Didn't anyone instil into them, at the age of about five, even the most basic morals? Can't they understand that treating people in a cruel or inhumane manner is simply wrong - as in bad, wicked, unacceptable, contemptible - and that no amount of legal finagling will make it right?"
I can't speak for their upbringing, but no, these people don't believe that cruelty for its own sake is not a legitimate tactic. They use it all the time. Look at episodes like the destruction of John McCain during the 2000 South Carolina primary. (McCain is pretty much their creature now, whereby we may judge that they're more effective torturers than the North Vietnamese.) Their constantly implied threat is that not only will they beat you in the current political fight; they'll go all-out to destroy you personally, and your career, and all the people close to you, including noncombatant junior staff and family members; and they'll make it as painful and humiliating as possible.

#77 ::: Fragano Ledgister ::: (view all by) ::: July 13, 2006, 11:59 AM:

TNH: The difference between the Rovebots and the North Vietnamese, in the case of McCain, is that the former have something that he wants desperately -- control of a key bloc within the Republican party -- and the latter could offer him nothing except surcease of suffering.

#78 ::: Rob Rusick ::: (view all by) ::: July 13, 2006, 12:01 PM:

James D. Macdonald: Suppose they got information from their prisoners through torture. It's widely known that the information gained in that way is useless. A fantasy constructed by the prisoner out of his best guesses at what the torturers want to hear. Afterward he himself won't be able to tell fact from fiction because he'll no longer remember the facts.

This thought reminded me of the Star Trek TNG two-part episode Chain of Command. Part II has Captain Picard captured and tortured by Cardassian Gul Madred (played by David Warner). At the time this episode first played [1992], much was made about how Patrick Stewart and David Warner (both British actors) modeled the scenario on actual interrogation techniques used by the British on IRA suspects.

Picard is asked, "How many lights are there?", and answers (truthfully, literally) "Four". He is then tormented, told there are five lights, and then asked again. And so on.

In the end he is rescued, and the final scene shown is a conversation with Conselor Troi, where he describes his final session with Madred. He was told the battle had already been fought, the Federation forces defeated, the Enterprise left a burning wreck adrift in space, and the information they sought from him was irrelevant. He could remain in prison, or he could be retired to an acedemic career. All he had to do, was give Madred the answer he sought.

Troi says something like "In those circumstances, anyone would be tempted to lie and give the answer that was wanted."

Picard's responds, "That isn't what bothers me. What bothers me is, in that instance, I saw five lights."

#79 ::: Lisa Padol ::: (view all by) ::: July 14, 2006, 09:29 AM:

Hm. Kipling is definitely in again (if he was ever out). Avram posted "The Old Issue" back in October of 2004, and I'm now hearing The Reeds of Runnymede.

-Lisa Padol

#80 ::: Xopher ::: (view all by) ::: July 14, 2006, 11:35 AM:

abi, that was exactly my point.

#81 ::: Stefan Jones ::: (view all by) ::: July 14, 2006, 01:58 PM:

Dug up by William Gibson:

"The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious, and the foundation of all totalitarian government whether Nazi or Communist."

~~Winston Churchill

#82 ::: Marna ::: (view all by) ::: July 14, 2006, 09:36 PM:

Dave: no, I know that. I did link to all four, I believe.

But some of the people we're talking about are not Afghanis, nor Iraqis, nor in any other way involved in these idiot war. Unless we're accepting the contention that the US is at war with the world.

By applying the Geneva Conventions, sure, you address the issue of their treatment.

But you basically rubber stamp the question of their detainment.

#83 ::: Meg Thornton ::: (view all by) ::: July 23, 2006, 03:35 AM:

One very interesting thing I found myself considering recently (after reading "Dining With Terrorists" by Phil Rees; ISBN 0-330-43305-9) is what people actually *mean* by the word "terrorist". As Rees points out through the course of his very interesting book, there is not an internationally agreed definition of the term. Instead, what's being used is a media-fed yardstick, where "terrorist" is taken to mean "anyone who opposes the current US policy regarding their country".

However, this particular meaning also catches a lot of other groups in the one net. There are the resistance movements which are started against foreign invasions (eg Hezbollah in Lebanon, the French Resistance in WW2) who are now "terrorist". There are those who have been displaced in their native lands and who are protesting about this (Palestinian Arabs, Aboriginal Australians) who are "terrorists". There are groups which are working to achieve political change in their own countries (Basque separatists in Spain, the Sinn Fein party in Ireland) which are now identified as "terrorist organisations" or "supporting terrorism". There are people who are visually different within their own countries (Islamic French, African-Americans) who are now identified as "supporting terrorism" when they demand equal treatment. As Rees points out - if you look at *any* group defined as a "terrorist" group today, you'll find a parallel group which was supported by the Western powers in recent history.

One man's terrorist is another person's freedom fighter. Or at least, he used to be. These days, I live in the expectation of discovering that the minor political parties here in Australia have been labelled "terrorist" for opposing the government, or that democracy has been discarded as "supporting the growth of terrorism".

#84 ::: Randolph Fritz ::: (view all by) ::: July 23, 2006, 04:36 AM:

There is a workable definition of terrorism though: it's the use of violence as a tool of political propaganda, rather than directly to achieve a military victory. It usually makes matters much, much worse. The use of nowhere near enough force in Iraq, in the hope that the Iraqi would be awed into submission, fits the definition.

Have a nice day.

#85 ::: Randolph Fritz ::: (view all by) ::: July 23, 2006, 04:45 AM:

"Their constantly implied threat is that not only will they beat you in the current political fight; they'll go all-out to destroy you personally, and your career, and all the people close to you, including noncombatant junior staff and family members; and they'll make it as painful and humiliating as possible.". What surprises me is that no-one has counter-attacked. What little I know about the personal lives of the Republican leadership is apalling: addiction in the Bush family, Abramoff, Gingrich and his first wife. Surely some digging would show them up as the sleaze they are. Yet, somehow, none of their political opposition seems willing to undertake the work, even at the most desperate need. Are all the Democratic pols--with the possible exception of the current version of Al Gore--cowards? In this regime they're toast--they'd be better off putting up a good fight.

#86 ::: Jacque sees yet more spam on ::: (view all by) ::: November 18, 2011, 03:20 AM:

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