re: "Libya and MI6 (again): Sir Mark Allen"

Charles Crawford at Blogoir ("A digital hybrid of blog and memoir presented on a daily basis, or not.") described a thorny British problem that parallels one we have in the U.S.

Money quote(s):

"The issue here is not any claim that MI6/HMG engaged in torture. Rather it is that MI6/HMG are said to have been 'complicit' in torture in Libya of certain Libyans by certain other Libyans. Which raises the question: what does complicity mean?"

Let's see where he goes with this.

"(M)aximalists insist that even to possess information which is suspected as having come from torture amounts to 'complicity'. That position, as the House of Lords found in 2005, is incorrect as a matter of law (and common sense)" (Bold typeface added for emphasis. - CAA.)

Not that this finding carries any water in the U.S., but one hopes that the U.S. Supreme Court would reason as well as the House of Lords.

"The problem here is that any secret 'rendition' by us or even a contribution to secret rendition by others is likely to have been endorsed by Ministers, either specifically or as a general rule. So to single out one civil servant for litigation is mischievous if not malevolent.

Second, the whole case turns on the idea that 'complicity' can be stretched far beyond any immediate link to maltreatment. Any abuse or torture was not committed by HMG or its officials. Is it really fair to make us legally responsible for horrors committed by others far away?

Even if you think that it is reasonable to do so on the moral level, you need to draw a line somewhere and say that the actions alleged were too 'remote' to amount to complicity. Under what principle should the line be drawn in specific cases? What balancing factors should be taken into account?" (Bold typeface added for emphasis. - CAA.)

British civil (or foreign) servants are as unlikely as our own to go "rogue" and try to "Lone Ranger" this sort of thing. They like a policy, preferably written, that delimits what their authority, and liability, is.

"This nasty, bleak, lonely policy and moral frontier was where Mark Allen and his colleagues were operating. If the way is opened to sue them for outcomes which were far from ideal if not awful, who is going to be ready to do this sort of fundamentally important work?

The issue here is simple. Not what the 'right' choice is when you are dealing with a regime like Gaddafi's. There isn't one.

Rather it is 'who decides?'.

We seem to be ending up in the absurd position that sanctimonious lawyers and unelected judges far from the operational and policy realities of such questions are seen as more 'responsible' than elected politicians and civil servants who are elected to do our dirty work while operating to arguably the highest standards of public probity in human history.

Yes, judges have the benefit of detachment. And yes, Ministers and officials can get so wrapped up in what they are doing that serious errors get made. But this is one where the best people to judge are voters, not lawyers."

Our own courts, operating under our unitary written Constitution, have taken some pains over the years to differentiate between the political and judicial spheres of authority, ceding that some things are not for courts to decide, but are the province of executives and legislators.

1/31

re: "Defense Secretary Panetta Makes the Mother of All Kinsley Gaffes (Update: Correcting the WaPo)"

A "kinsley gaffe" is defined as "when a politician accidentally says the truth."

Aaron Worthing at Patterico's Pontifications ("Harangues that Just Make Sense") provided an example:

"Panetta has a history standing up and telling the truth that liberals deny. For instance, after the death of bin Laden, it was Panetta who admitted that waterboarding gave us information that led to bin Laden. And in a weird way, I really respect that."

Is waterboarding torture? Is the torture of unlawful combatants (i.e., those not eligible for POW status under the Geneva Conventions) even illegal? Is it illegal under under those treaties to which the U.S. is party, under U.S. federal law, or under some broader interpretation of "international law"?

I wouldn't much appreciate being waterboarded myself, but am under no illusions that I would be subjected to anything so mild-mannered and gentle were I, or any of my military, diplomatic, or other civilian colleagues fall into the hands of our AQ enemies.

7/11

re: "Rule of law watch: Does Barack Obama have a fool for a client?"

Tigerhawk ("thoughts of the day on international affairs, politics, things that strike us as hilarious and personal observations") remarks on the first stage of some recent opinion shopping.

Money quote(s):

"Long-standing fans of the back-and-forth will remember the enormous grief that the Bush administration got for following the opinions of the Office of Legal Counsel, particularly on the question of enhanced interrogation (or, if you are a liberal, "torture"). The accusation was, more or less, that the OLC's incumbent, John Yoo, was turning analytical cartwheels to arrive at the result that Dick Cheney wanted. Well, it turns out that on the question of the Libya war, Barack Obama overruled the OLC." (Emphasis in original text. - CAA.)

&

"(I)t is "extraordinarily rare" for a president to overrule the OLC -- prior to Barack Obama, the last president to do it was FDR. Obama has now done it twice. Perhaps the president has such confidence in his own legal acumen that he does not need no stinkin' OLC approval."

re: "Not To Compare Bataan To Baghdad, But…"

Robert at Expat Yank ("One American living in the south of England") reminds us about the nature of the enemy. And does so exceedingly well.

Money quote(s):

"(F)or years we have endured bemoanings about “lack of proof,” unfair trials and above all, “torture.” And not just from every released prisoner (Allied forces have evidently “tortured” EVERY captured jihadist) and their lawyers. We’ve also heard it endlessly from many politicians, “activists” and much media.

Ironic all that. For coalition behavior towards this enemy in the War on Terror, 2001-2009, had actually been far better than its behavior in any previous conflict. In fact, it has inarguably been the best treatment ever meted out policywise to captured enemy in all of human history.

Consider this: imagine any enemy held previously engaging in a “hunger strike“? Those held in the past didn’t hunger strike: that’s a “privileged captive’s” jail tactic."

U.S. service members are given some training on how they are expected to conduct themselves if taken prisoner. Unlike our enemy, that indoctrination does not include how to wage lawfare against our captors by making false accusations of mistreatment.

"(A)fter page upon page of Mr Hastings’s having shared numerous examples of Japanese mistreatment (to be polite) of Western and Chinese PoWs and civilians. They ran the horrific gamut from of course starving and working them to death, to beheadings, tying them to trees and bayoneting them, leaving them to drown in the sea, kicking them into latrines and drowning them in excrement, casually pushing them over cliffs, and even subsequently noting how Japanese doctors engaged in the murderous vivisections, without anaesthesia, of eight living (at least, they were at the outset), captured U.S. pilots.

Another source tells us, for example (and no doubt Mr Hastings would not be surprised), of two downed U.S. pilots having been plucked from the sea and “rescued” by Japanese submarine and interrogated — but not harshly. Yet after questioning, their personal effects were parcelled out among the crew and the unfortunate PoWs (men captured in uniform, clearly engaged in military activity against another military) were taken up on deck, (and without even a “military tribunal” finding) weighted down with water-filled gasoline cans, and thrown overboard. And the barbaric list could go depressingly on."

Whole library shelves can attest to the barbaric treatment received by Allied prisoners of Imperial Japan. As it happens, my own family included a Baatan survivor. I grew up listening to his stories, when he would tell them. It's the sort of thing that forever innoculates one from developing an overly-optimistic or romantic view of warfare or defeat.

"(D)id any of that sort of treatment regularly happen at the hands of coalition forces in Iraq or to Guantanamo detainees? For example, was Khalid Sheik Mohammed “waterboarded” (which would have likely been considered a holiday “swim” to many an American or Briton tortured by the Japanese) . . . and then removed to shark-infested waters by U.S. submarine and unceremoniously tossed into the ocean?

During WWII, Western media rightly made much of Japanese atrocities. Yet today Western media has almost nothing to say of the last eight years’ enemy’s."

"(W)hile the Japanese were indisputably brutal in the extreme, even they never reached the all-encompassing depths of depravity and viciousness of the current enemy?"

"(I)nsofar as this blog is aware, not a single coalition serviceman, over the last eight years, has been released alive willingly by the current Islamist enemy.

That bears repeating: not one.

Nor are any now held alive anywhere."

&

"(H)ow such now almost Spartan-obsession to leave no one behind stems from the foreknowledge that every single one captured might just as well be tallied with the rest of the dead?

However one gets there, that means the current Islamist enemy has murdered 100 percent of coalition military personnel (primarily Americans, Britons, and Australians, coincidentally enough) who have fallen into their hands. No enemy has ever engaged in such barbarity in the entire history of warfare. That is to say nothing of the fate of nearly all Western non-combatants who’ve been taken.

Thus the most damning perspective of all is almost universally overlooked. That level of murderous brutality makes Japanese atrocities pale in comparison. And it makes Abu Ghraib, Guantanamo, and a few hours in a dog pen, look like child’s play.

Do we even want to think that in this conflict the Islamist enemy is even more inhumane that WWII Japanese? One suspects we’d rather not."

LAT - U.S. to reopen Canadian's torture case.

From my archive of press clippings:

Los Angeles Times

U.S. to reopen Canadian's torture case.
Homeland Security's inspector general says new evidence suggests officials may have broken laws by sending Maher Arar to Syria.

By Maggie Farley, Los Angeles Times Staff Writer

June 6, 2008

NEW YORK -- A top Department of Homeland Security investigator said Thursday that his office would reopen an inquiry into the case of a Canadian engineer who was sent secretly by the U.S. to his native Syria for interrogation because of suspected ties to Al Qaeda.

Read the whole article here.

Snippet(s):

"Inspector General Richard L. Skinner, who spoke at a congressional hearing in Washington, said new evidence had emerged that U.S. officials may have broken laws related to torture in the case of Maher Arar.

Canadian officials have said Arar was tortured while in custody for a year in Syria, where he says he was kept for the bulk of the time in a dark solitary cell slightly larger than a grave. The Canadian government has acknowledged that it supplied faulty information to the U.S., which probably led to his arrest, and neither Canada nor Syria found any evidence of terrorist links.

Last year, Canada apologized to Arar, who now lives in Ottawa, and agreed to pay him almost $10 million in compensation. The apparent mishandling of his case has resulted in a rare public examination of what is known as "extraordinary rendition," a covert U.S. practice of sending foreign terrorism suspects to other countries for interrogation. Congressional members called Thursday for a special prosecutor to lead the investigation so criminal charges could be filed."

&

"Immigration officials detained Arar in September 2002 at New York's John F. Kennedy International Airport while he was in transit from Zurich, Switzerland, to Montreal, based on information from the Canadian government. A four-year U.S. investigation found authorities acted appropriately to deport Arar although normal procedures for deportation were not followed, with a rushed hearing without his attorneys present. U.S. authorities secretly flew Arar in a small plane to Syria and handed him over with a list of interrogation questions after receiving only "ambiguous" assurances of fair treatment, the report says. The U.S. has previously said it had independent intelligence that supported the officials' actions, but it refused to release the classified information."