The horizon is not so far as we can see, but as far as we can imagine

Glenn Greenwald Hammers Preventative Detention

And no, it’s not like holding POWs for the duration of a normal war.  Go read.


How Owning Genetic Materials Drives Farmers Into Bankruptcy and Suicide


In Memoriam


  1. JustPlainDave

    Sorry, but I think Glenn’s wrong (to some extent) on the POW issue. He marshals two main arguments in favour of this position:

    1) “The circumstances of the apprehension” – Essentially that many people picked up as combatants were not picked up on a battlefield and were not part of any army and did not wear uniforms.

    2) The likely duration of the conflict.

    As to point 1, I disagree for two reasons:

    a) In my view, Glenn ends up defacto arguing to reward perfidious conduct. Because the enemy has failed to live up to the letter of what they are required to do by the law of international conflict (i.e., to clearly distinguish themselves as combatants distinct from the civilian population) they should be rewarded? I have some real problems with that.

    b) More operationally, a lot of the people that ended up being scooped up in error were actually those who were taken early in the conflict, in the conditions that were most “conventional” (i.e., they were on a battlefield, they had weapons, they had as much indication as anyone else around that they belonged to an enemy force etc.). They were brought to American forces for a range of reasons (monetary, revenge, etc.) and ended up not being what they were billed as. The folks that get scooped by American forces, far from a recognizable battlefield, from their homes or off the street and end up dumped into Gitmo are actually much more likely to be who they are billed to be in spite of the lack of these criteria (note, however, that this isn’t necessarily true of detention in Iraq and Afghanistan at various points so there is real cause for concern about any flow between the systems).

    As to point 2, I would suggest that Glenn’s argument is based on a bias towards the American experience of war, which is not so typical as wars go. Although American popular experience is of short war there have been a lot of wars a lot longer than two to five years experienced by others. By the standards of war, particularly war in the modern era, two to five years is a pretty short war. In any case, when it comes to conflict duration, it takes two to tango – the enemy gets a vote as to when conflict terminates. They should be rewarded legally for pursuing an asymmetric strategy with lower inputs required to sustain conflict?

    In short while I have a lot of support for the notion that any tribunal system has to be a lot better than anything that has ever been put into operation before – and in fact it may well end up having to be an awful lot like an actual American criminal court in its functioning in order to be sufficiently fair, I have a real problem with thinking that there’s something wrong with locking up a military enemy indefinitely. One would generally be legally entitled to kill the guy in many if not most of the circumstances in which they are captured – with far less evidence and oversight – but there’s something wrong with indefinite detention? That’s a real logic challenge, in my books. I would suggest that it is entirely possible to have a very well reasoned and sound opposition to the processes around indefinite detention and to demand that they be beyond reproach, but that it is pretty difficult to logically argue that one shouldn’t be able, as a principle, to detain a military enemy indefinitely without them having committed a criminal offense. The whole question for me turns around whether such an enemy can be reliably and fairly identified.

  2. JustPlainDave

    Just a note to add that one of the underlying things that seems to be causing a lot of disagreement on the issue of indefinite detention is dissent as to what constitutes a crime. Glenn approvingly quotes Hilzoy here:

    “If we don’t have enough evidence to charge someone with a crime, we don’t have enough evidence to hold them. Period.

    Look, foreign nationals taking up arms against the United States are not necessarily commiting a crime. There are a range of ways of doing this that are criminal and there is a perhaps even broader range of actions that constitute offenses against the laws of war, but the act of taking up arms is not itself necessarily either of these things.

  3. Lex

    And so, Dave, how would you propose that we deal with US military and civilian leaders who regularly fail to “live up to the letter of what they are required to do by the law of international conflict”?

    So far as i know, bombing civilian infrastructure is prohibited by the law of international conflict…among a host of other actions that we regularly take.

  4. scott

    So Dave believes that we haven’t scooped up a lot of these folks in error, despite estimates by our own military that maybe 60-80% of them were (estimates that are likely to give the military the benefit of the doubt). He also sees nothing wrong with the idea that an amorphous war that we declared on a method and not an enemy (the war on terror), and whose nature and extent only we get to define, may never end and may result in the detention of a lot of these folks forever. I respectfully disagree. It’s disturbing that we want to give deference to our government as it claims the right to declare people it scoops up rightly or wrongly enemy combatants, craft special review procedures for that decision for the specific purpose of making them less onerous than civilian courts of military courts-martial, and hold them all potentially until the end of time. I wouldn’t give that kind of deference to the holiest and most angelic government that we could conceive of, let alone the compromised and corruptible version that we always wind up with. When did we start to think that trusting anyone with that kind of power was a good idea?

  5. JustPlainDave

    Scott, in no way did I say that US forces haven’t scooped up lots of folks in error – I said that they did so more commonly in circumstances that were a lot more related to “battlefield conditions” than the more unconventional circumstances that Glenn asserts. Taking someone off an unfamiliar battlefield isn’t a great guarantee that one has the right guy – this is true to such an extent that more intelligence-driven operations off the battlefield seem to me to be doing a lot better at getting the right guy.

    As to whether I think it’s okay to declare war on a tactic – well, you got the wrong view of me, I’m afraid. Look around for posts under my cognomon at the Agonist – you’ll find I’m pretty down on that as viable strategy. To the point that Jon Stewart’s related one liner at William and Mary was my sig for a goodly while.

    I’m receptive to the notion that one should be extremely hesitant to give any government this type of power, but my receptivity is tempered by a couple of things:

    1) Taking up arms isn’t necessarily criminal. What does one do with these guys if they haven’t committed any criminal offences? Catch and release and hope they don’t get lucky next time? Hard to see how that works. Criminalize the taking up of arms? Not sure the US really should want to go down that road, for obvious reasons. Long-term detention may be the least bad option.

    2) Were this set of issues not to have been so totally pooched by the previous administration this would have been an entirely different debate. In my view people are having a lot more trouble with this notion because of past stupidity than it necessarily merits.

  6. scott

    I guess I’m considerably less sanguine than Dave is that indefinite, preventive detention of people we kinda maybe think might be threatening to us at some future date could be anything other than “totally pooched.” To the extent that their status as so-called enemy combatants is raised by our government, then roll the dice in military courts-martial to prove it, or STFU. The fact that we won’t do that and have spent the last eight years and counting trying to rig the game with more permissive and government-friendly systems doesn’t fill me with confidence that our leaders are acting in good faith. Because they’re not.

  7. Formerly T-Bear

    Argue as you will as to how many angels dance upon the head of a pin, the fact remains both the Afghanistan and Iraq assaults, bombings, invasions, and occupations with subsequent installations of servile governments IS ILLEGAL from the inception. Your military personnel ARE CRIMINAL AND TERRORIST ENFORCERS of imperial pretensions and the nation IS COMPLICIT IN ITS SILENCE.

    Those who require their nation do no wrong are likely those who threw their captives from helicopter doors at 3000 ft. They must have it so to justify themselves, their acts, their complicity in crimes against humanity and their life itself. Do not support them, do not become one of them yourself. You either have a conscious and a voice, or you do not. Pseudo philosophy and legalistics do not hide the stench, nor the history.

  8. JustPlainDave

    Um, no. The legality of the invasion of Afghanistan is well established. Iraq is far, far more contentious and on much shakier legal footing, but Afghanistan is not even close to being in the same boat.

  9. Lex


    Would you like to answer my question?

  10. JustPlainDave

    Sorry, but I didn’t find it particularly germane to the argument. Whether one identifies oneself as a combatant according to the rules and customs of war is absolutely central to the status determination issue. Conversely, that the US is alleged to regularly bomb civilian infrastructure has no great relevance to this issue as far as I can see – sorry.

    That party B sucks does little to inform us as to whether party A sucks, particularly when the forms of suckage are divergent – conflating the two is intuitively effective but it doesn’t really help understanding much. That said, generally speaking, I’m in favour of blading people who commit war crimes, no matter who they are. From an applied standpoint, however, I would have to know a lot more about the specifics of the cases that you are thinking of – it’s a cloudy [and contentious] issue, to put it mildly.

  11. Formerly T-Bear

    JPDave – “Um, no. The legality of the invasion of Afghanistan is well established. Iraq is far, far more contentious and on much shakier legal footing, but Afghanistan is not even close to being in the same boat.”

    Um, NO. What has been expressed are two opinions. One is untested. One is supported by the UN Charter. The untested opinion is that of a rogue administration. The other supported by Geneva Conventions. The one opinion is that of propaganda disinformation of NYT and Washington Post, the other is what the balance of the world was informed of. The one opinion is of a craven cowering population, the other of an educated, informed public.

    The US diplomatic demand that Bin Laden be surrendered was answered in the UN by a request for official charges against BL and the offer to surrender BL to a country having an operating judicial system for trial on the charges. Do recall, even the FBI could find no evidence to link BL to 9/11. This was ignored by the rogue administration which shortly began a military attack upon a country not at war nor threatening war with the US, having no means to defend itself against such an attack by a superpower, and a country so poor there wasn’t even a pot to piss in. Anything else is recalled propaganda and you are welcome to it, just do not pass it off as fact, please, it is unbecoming an otherwise respectable commentator.

    Until such time real facts are presented, the attacks upon both Afghanistan and Iraq are ILLEGAL. You are welcome to continue your opinion, but please present it as such.

  12. JustPlainDave

    I guess the “propaganda disinformation” explains UNSCR 1368, 1373, and 1386 (among others).

  13. Formerly T-Bear

    From Wikipedia:–present)

    “The UN Security Council had issued Resolutions 1267 and 1333 in 1999 and 2000 directed towards the Taliban which applied financial and military hardware sanctions to encourage them to turn over Bin Laden for trial in the deadly bombings of two U.S. embassies in Africa in August 1998, and close terrorist training camps …”

    Resolutions: 1267 and 1333 in 1999 and 2000, purpose: Financial and military hardware sanctions. Clinton Admin.

    30 days after the events of September 11, 2001, U.S. President George W. Bush identified Osama Bin Laden as the ‘prime suspect’ in the attacks. (…) “They will hand over the terrorists or they will share in their fate” said Bush. No specifics were attached to the threat, though there followed a statement suggesting military action: “Our war on terror begins with al Qaeda, but it does not end there.”

    “The Taliban government responded through their embassy in Pakistan, asserting that there was no evidence in their possession linking bin Laden to the September 11 attacks. They also stressed that bin Laden was a guest in their country. Pashtun and Taliban codes of behavior require that guests be granted hospitality and asylum.[36]”

    “On October 7, 2001, before the onset of military hostilities, the Taliban did offer to try bin Laden in Afghanistan in an Islamic court.[37] This offer was rejected by the U.S., and the bombing of targets within Afghanistan by U.S. and British forces commenced the same day.”

    The United Nations Security Council (UNSC) did not authorize the U.S.-led military campaign in Afghanistan (Operation Enduring Freedom). There is some debate as to whether UNSC authorization was required, centered around the question of whether the invasion was an act of collective self-defense provided for under Article 51 of the UN Charter, or an act of aggression.[39]
    Also, the U.S. Administration did not officially declare war, and labeled Taliban troops and supporters terrorists rather than soldiers, denying them the protections of the Geneva Convention and due process of law. This position has been successfully challenged in the U.S. Supreme Court[40] and questioned even by military lawyers responsible for prosecuting affected prisoners.[41]

    Your quoting UN resolutions 1368, 1373 on terrorism and resolution 1386 dated 20 Dec 2001 concerning situation in Afghanistan (after the fact of invasion) is disingenuous, deceiving, and erroneous, but great use of propaganda and disinformation. Nice.

  14. JustPlainDave

    Interesting how you hop so quickly to the accusations of propaganda and deceit based on the 0h-so-solid foundation of a wikipedia cite. That someone has the poor taste to disagree with you does not make them either deceptive or a propagandist. How be we agree to consider each other to have the slightly more elevated status of simply being in error?

    If the invasion of Afghanistan was so illegal why the immediately central role (i.e., preceding the invasion) for the UN? Why no objection to the formal invocation of Article 51? Why the conspicuous lack of protest from other nations?

  15. Formerly T-Bear

    Stated just as a consumer of propaganda would respond. Attack a source and question its provenance should it not support your opinion. How Republican! Such dissemination of half-truth, misinformation, disinformation, and downright deception is used by purveyors of propaganda; this is the motive and purpose for “framing”.

    When you state that the US had “UN authority” to attack Afghanistan, you overlooked one fact. Only twice has the UN given such authority, once in Korea, and once for Gulf War I. For you to state otherwise is a lie and acts to deceive others not so well informed. I stand by my assessment of your opinion – it fails the fact test.

    Save the comity for congress, your comments regurgitate the self-serving party line of a discredited administration and its sycophantic corporate purveyors of indoctrination. You would be hard put to point out where there wasn’t a lie or deception being presented by either the government or those who report upon the government; you apparently buy that product, hook line and sinker without question. Compromise with error is third rate behavior and the principle cause the country is in the state it is; it is far better to attempt excellence and fail.

    End of discussion.

  16. JustPlainDave

    When attacking another individual personally it’s frequently best to know who they actually are. As you might note, were you to take a look at the profile under my cognomon at the Agonist mentioned upthread, you’ll find I’m Canadian. You may wish to add to the apparently growing list of things that people who have the poor taste to disagree with you are not the notion they may also not be looking at it through the same explicitly partisan lens.

    What you’ve engaged in here is far from a “discussion” – hurling invective that misses the points raised by the person holding divergent views does not constitute discussion. Discussion looks a little more like this:

    Near as I can tell, you believe that the US-led invasion of Afghanistan in the absence of a UN resolution specifically authorizing the use of force was, by definition, illegal. Me, I disagree – I believe that UNSCR 1368 explicitly recognizing the collective and individual right to self-defence, followed by an explicit Article 51 invocation of that right, followed by silence from the UN and accompanied all the while by intimate involvement in planning for the post-Taliban political regime is a pretty good indication that the invasion wasn’t illegal in the eyes of the UN.

    Discussions also try not to place words in the mouths of their opponents. I said that the legality of the Afghanistan invasion was well established and continued to focus on the central theme of “legality” – you may place all the quotes you like around “UN authority” and say that that’s what I stated, but the construct focusing on authority and authorization is yours, not mine.

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