Made in China

NYT reports on evidence from the June 17th Senate Armed Services Committee hearings. To wit: training materials for interrogation techniques used at Guantanamo were lifted directly from a 1957 Air Force study of techniques used by China to extract confessions from US prisoners during the Korean War.

"The 1957 article from which the chart was copied was entitled “Communist Attempts to Elicit False Confessions From Air Force Prisoners of War” and written by Albert D. Biderman, a sociologist then working for the Air Force, who died in 2003. Mr. Biderman had interviewed American prisoners returning from North Korea, some of whom had been filmed by their Chinese interrogators confessing to germ warfare and other atrocities."

Now there's globalization for you.

Senator Carl Levin stated that "every American would be shocked" at the origin of these techniques, but look closely at his reasoning:

“What makes this document doubly stunning is that these were techniques to get false confessions,” Mr. Levin said. “People say we need intelligence, and we do. But we don’t need false intelligence.”

Apparently, it's not that we imported a morally suspect product from China, it's that the product is defective.

Norms, Shmorms? Maybe not.

In comments over at Duck of Minerva, Prof Burgos challenges us to show that international norms (especially the Geneva Conventions) "matter" - by which he seems to mean, will powerful states follow them when it's not in their interest to do so.

When I saw the Supreme Court had ruled that the USG's denial of habeus corpus rights to Guantanamo detainees was unconstitutional, at first I thought this demonstrated that such rules do matter and was all prepared to create a blog response.

Then I read this headline at Voice of America this morning: "US Attorney General Says Military Trials to Proceed."

"Mukasey told reporters in Tokyo Friday he was disappointed with the decision, because it will lead to hundreds of challenges from so-called "enemy combatants."

Then again, later in the article, the Bush Administration is quoted as accepting the decision:

"Mr. Bush said in Rome Thursday he will abide by the court's ruling but said, in his words, 'that doesn't mean I have to agree with it.' He said his administration will study the opinion and determine whether additional legislation might be appropriate."

Well, in measuring the impact of norms, the story isn't over. The question is not entirely whether a superpower will or won't try to break the rules. As Charli Carpenter writes, half the question is whether others will push back at that superpower. The human rights community and our allies have consistently done that. A second question is whether this pressure leads to any genuine response. Each time the Supreme Court has ruled against the Bush Administration, the White House has taken steps to modify its position - and has come a long way since January 2002, when it originally argued that the Geneva Conventions "don't apply" to GWOT detainees.

But what Burgos is waiting to see, I think, is whether the US will actually respond to the pushback in a meaningful way that results in protection for detainees, or will continue its search for new loopholes in the law. History will decide.

For more analysis on what the Supreme Court's ruling does and doesn't mean, Benjamin Wittes has a helpful op-ed in the Washington Post.

Slate Magazine Take Two

No sooner did I criticize Slate Magainze for not including war law in its military fix-it list, then Jack Goldsmith posts on fixing "The Laws in Wartime."
Among his suggestions:

1) "Close Guantanamo." (He doesn't address what to do with the detainees or why closing Guantanamo is preferable to simply upholding detainee rights there.)

2) "Boost Trust" (By - wait for it - making more threat information available to a public that distrusts the government for inflating threats. Question: to what classified arseal of threat data does Goldsmith have access on which to build this case?)

3) "Fix Interrogation." He thinks we can do this not by preventing the CIA from breaking the rules, but by requiring the President to "make a classified finding giving reasons why aggressive techniques are required":

"This approach would maintain the option of using lawful interrogation techniques that might stave off a crisis, while at the same time addressing legitimate concerns about... legal compliance."

Come again? Lawful interrogation techniques are already an "option"; we don't require torture warrants for them. And how would another layer of justification for wanton violations of international law address concerns about the law?

One thing Goldsmith suggests makes sense: that the US should work with its allies to clarify how to apply the laws of war to asymmetric conflicts, instead of contining to interpret international law unilaterally. There is more support than is recognized for modifying the "quaint" old rules, but to be more than just treaty noncompliance the US needs to get its allies on board.

Ack!-tivism

Amnesty International sent me this plea for donations the other day. Go check it out.

Defending the Death Penalty

Not me (necessarily). The Bush Administration.

Funny that they feel that need to defend their decision to seek the death penalty against 6 Guantanamo inmates accused of various levels of involvement in the events of 9/11. After all, no international law prevents the US from executing convicts - though there may be an emergent international norm against the death penalty, the US is not bound by the Optional Protocol to the International Covenant on Civil and Political Rights. So the Bush Administration really doesn't need to bother justifying this.

Besides, the strategy being used - comparing the US military commissions to the Nuremberg tribunals - is going to backfire, because there is a significant difference and a significance similarity that doesn't work in the Bush Administration's favor.

The difference is 60-some years of international jurisprudence and the establishment of the International Criminal Court by multilateral treaty - a court which does not allow for the death penalty, even for the architects of genocide.

The similarity is the lack of due process in the two proceedings (required, by the way, by Common Article 3, Article 1(d) of the Geneva Conventions even for unlawful combatants - the Bush Administration has admitted this article applied to GWOT detainees). At Nuremberg, Nazis were executed for "crimes against humanity" - a concept that did not exist prior to the crimes being committed, so court's legitimacy was undermined by claims of ex-post-facto justice. As for the Guantanamo Six, at least one of them, Khalid Sheikh Mohammad, is known to have been tortured by the US government during interrogations, so evidence that could hang him is unlikely to be accepted by advocates of due process.

In other words, invoking Nuremberg was exactly the wrong strategy for the White House. Instead, they should have stuck to the letter of the Geneva Conventions. The conventions provide no immunity from prosecution and even execution for those who engage in political violence without formal combatant status - that is, being incorporated into the legitimate armies of parties to an conflict. The Guantanamo Six do not qualify and therefore the question of whether they can be executed is moot under international law.

It's ironic that the White House would raise this at all then, given its penchant for flouting well-established norms. In this case, the law seems actually to be on the US side. Rather, this would have been a great opportunity to demonstrate our adeherence... complete adherence... to the spirit and letter of the Geneva Conventions. Oh, but wait, there's still that due process / torture thing...

Human rights? We've got your rights, now where's the human?

While breaking my fast today, I idly scanned the latest headlines, and was both amused and saddened (though hardly surprised) to find the State Department tap-dancing around whether the Geneva convention applies to those interned in Guantanamo Bay, our very own latter-day Hanoi Hilton.

The Administration's stance remains that because the prisoners are "non-state actors", that is, they were alleged to be fighting with a guerrilla group at the time of their capture, that we needn't trouble ourselves with the Geneva Convention, not to mention the Constitution, the Magna Carta, or the Ten Commandments.

Consider the reverse implications; we've bewailed the treatment of US servicemen captured in Vietnam, but by our own interpretation of the "rules", there should have been two very different standards applied to US prisoners during the Vietnam War; those captured by the NVA, the military branch of a recognized state, should in fact have received their rights under the Geneva Convention (including between 8 to 75 Swiss francs monthly, depending on their ranks) - while those prisoners captured by the Viet Cong, an unrecognized insurgent group, could have been tortured, errr, I mean of course, questioned with no regard to any pesky "rights"...

Let's decipher the State Department's pontificating. What they're really trying to say is "When is a human not a human?" When kidnapping becomes "extraordinary rendition", when torture becomes "robust interrogation", when politicians and state-sponsored lawyers begin rewriting the lexicon; when Nationalist sentiment is on the rise, when you're a Jew in Berlin in the 1930s, when you're a Muslim in Iraq just after the turn of the millenium, it makes you wonder.

To paraphrase the Bard; "If you prick me, do I not bleed? If you tickle me, do I not laugh? If you torture me, do I not scream?"

Apparently, there are no screams in Guantanamo, just the hearty exclamations of "robust answers".

Gitmo Psychologists

Earlier this month, Wikileaks publicized the USG's operations manual for the running of the Gitmo detention center. Last weekend, Stephen Soldz of Psyche, Science and Society and Julian Assange penned an op-ed about the document, entitled "Guantanamo Document Confirms Psychological Torture: Will the APA Protest?"

They write:

"It is time for the APA to stop word parsing and make clear, unequivocal statements about what in their view is and is not ethical. I, for one, feel that the use of isolation, is well over the line into unethical territory. Does APA agree?"

While the use of psychological expertise to abet human rights violations is certainly unethical, one wonders what these authors hope the APA will accomplish by taking a position on broader matters of US policy. The purpose of such associations are to provide guidelines for practitioners in a profession, not to pronounce on national security matters.