Double Binds

At some point in the last 15 years -- this may be something we can blame on Clinton -- a chunk of the chattering classes concluded that apologies are more important than justice. We may see some fallout from that when the Abu Ghraib torturers go on trial: As Gail Gibson points out in the Baltimore Sun, Bush and Rumsfeld's comments on the scandal "may have jeopardized a basic protection of military law -- the idea that commanding officers should not prejudge cases where they ultimately could determine a soldier's fate."

Amid rising public outcry, Bush apologized yesterday for the abuse of Iraqi prisoners, saying, "The wrongdoers will be brought to justice." Rumsfeld, who is expected to testify before Congress today, has called the soldiers' actions "un-American."

The comments were all but demanded to calm what has become a foreign policy nightmare for the Bush administration. But they present a potential problem in the military court system, where the president, as commander in chief, and the defense secretary could end up reviewing the charges against six reservists from the 372nd Military Police Company based in Cresaptown, Md., as well as any possible convictions in the case.

"Can they get a fair trial? Yes. Will they? Not unless there is some significant damage control," said Donald G. Rehkopf Jr., a civilian military lawyer from Rochester, N.Y. "If [U.S. leaders] are prejudging the case, that causes real problems."

Rumsfeld is certainly aware of the potential problem. Is Bush?

Comments

[Jason Ligon]

"At some point in the last 15 years -- this may be something we can blame on Clinton -- a chunk of the chattering classes concluded that apologies are more important than justice."

Absolutely. They also decided more broadly that the visible scape goat is an essential ingredient if one is going to demonstrate that Something Is Being Done.

The result is that an apology followed by someone getting fired are now the necessary and sufficient conditions for the public to be satisfied. Some would include a commission on which House and Senate members can posture, but really, I think the public would be just as happy so long as you fired someone they recognize. The acceptability of the sacrificial lamb has nothing to do with his involvement, but is more related to his current stature. Issues with large public recognition require a big personality to fall.

Oh, well. Maybe this isn't anything new, after all.

[D Anghelone]

If the apologies do not begin with, I take full responsibility for..., then they are likely sincere.

[Ken Shultz]

From Jesse's comment and the linked article, it could be infered that if the accused can't get a fair trial in a military court, and if the alleged crimes occured on foreign soil, perhaps the military should seek an international venue for a trial.

This morning, the local news is reporting that there's film of U.S. soldiers beating a POW to death like a bunch of skinheads; now I'm really starting to regret coming out so strongly against a treaty subjecting U.S. soldiers to an international tribunal for human rights violations.

But even without a treaty, the military could send accused war criminals to stand trial in an international court, and maybe that's what they should do.

[Walter Wallis]

We try our own. I don't want some fucking Frog lecturing us on appropriate soldier behavior.
As Robert Heinlein said, "A real man shoots his own dog."

[David Covin]

There's nothing about the concept of apologizing that requires one to blame one's subordinates. Some might even consider that to be a way to weasel out of ultimate responsibility.

[garym]

The concept of responsibility as a media term is often confusing.

From http://www.foxnews.com/story/0,2933,119374,00.html :

With his future in the Cabinet possibly in jeopardy, Rumsfeld
apologized and told House and Senate committees Friday that he took
full responsibility for the abuses at the?Abu Ghraib (search)?prison.
Rumsfeld offered "my deepest apology" to Iraqis abused by American
soldiers and said he would seek compensation for them. He also said
those responsible would be punished.

This says, on the face of it, that Rumsfeld is preparing to accept punishment, or perhaps to impose it on himself. Yet I don't think that's what he meant.

[mojo jojo]

What a perfect move. Now they can let the soldiers off the hook.

[John Hensley]

The chattering classes didn't just spontaneously conclude that apologies were more important. They were led to it by 8 years of empty Clinton apologies.

An apology is for when you have an argument or step on someone's toe, not for when you ass-rape someone with a broomstick. That's what punishment is for.

[Joe L.]

Ken Shchultz 1: ?This morning, the local news is reporting that there's film of U.S. soldiers beating a POW to death like a bunch of skinheads? ? I understand that there is also film of an alien being autopsied that proves there are indeed sophont life forms in the Galaxy besides ourselves. There is a report by the Army detailing the conditions and charges. I think that if there was film of this it would have been out there by now. I don?t mean to be flip or sarcastic, but there are always rumours; that doesn?t make them true.
?But even without a treaty, the military could send accused war criminals to stand trial in an international court, and maybe that's what they should do.?- Well no actually I don?t think they could. Service members are subject to the UCMJ, not International law. I can no more ship them to an international tribunal than I can ship YOU to an international tribunal for a parking ticket. Parking tickets have not been made subject to international adjudication, and until such time as they are I can not simply hand you or the service members over to an international court. I might also point out that there would be great grounds for appeal, if this International tribunal did not operate under the same Constitutional guarantees that an American court would. In short, we can not arbitrarily change the rules of prosecution without violating the rights of the accused.
Also, I don?t think that Rumsfeld and Bush will be reviewing the cases, no more so than your Governor reviews the cases or the President reviews the cases in Federal Court. So, I don?t think that there is any problem with Undue Command Interference here. The accused get a General Court Martial (military) and can appeal to an appeals court that is also MILITARY. Final appeal is to the US Supreme Court. Unless there is a death penalty issue here, and I don?t see that there is AT THIS POINT, neither the President nor the Secretary of Defense have much say in the court martial proceedings. And even if it?s an issue of Capital Punishment the President does not sign the Death Warrant, I believe. So the argument about Bush et al prejudging is rather moot.
I have no problem believing that the military justice system can handle these cases. This is just so much ado about nothing. The military justice system is fairly insulated from the chain of command, for just these reasons. Plus, this will ultimately take years to work thru the courts and by the time it reaches the D.C. level Rumsfeld and Bush will be gone (as in the second term of Dubya will be up). So not only can we NOT transfer them to an international court there is no need to do so.
John Hensley: ?They were led to it by 8 years of empty Clinton apologies.? It?s more than that. Read Lehman?s ?Command of the Seas? and you will see his objection to Reagan accepting ?Full responsibility? for the 1982 Beirut Barracks Bombing. Lehman argues that this undercut the efforts of the Navy and others to affix blame on the chain of command. The President said ?It was my fault? and that slowed efforts to discover whose fault it truly was. So, to be fair I?d say this goes much further back than ?Slick Willy?-whom I personally despise, but don?t think is the cause of ALL that is wrong in the world.

[Jennifer]

Members of an occupying army committing crimes against the citizens of occupied nations--sounds like exactly what the ICC was intended for. But there's another, tactical, reason why we should send these soldiers for trial in The Hague, rather than the military court: suppose, somehow, the evidence demands that one of the Abu Ghraib soldiers should be acquitted. The world might accept an acquittal from the ICC, but there's NO WAY they'd accept it from an American court. Not after all that's happened.

[Joe L.]

And if God Forbid, Jennifer, should you ever be accused of a felony, shall we bind YOU over to an international tribunal? It saves the locality from having to judge and sentence you, and IF you crime was heinous enough but you were to be cleared of the charge it would also PROVE that there were no politcs involved.
Of course, it might be illegal to turn you over to such a tribunal, but I'm sure that you would understand. After all, even if the laws of your locale state the venue for trial and specify the procedures and protections to which you are entitled it would be all in the interest of Justice.
Read the posting above and I hope it's clear as to why we can't simply turn people over, when its expedient.

[Ken Shultz]

When can anyone be tried for a war crime in an international court then? Is it only when the nation in question has signed the final version of the ICC treaty? Neither Serbia nor Rawanda were signatories of the final document at the time of their atrocities, so under what pretense are Serbian and Rawandan war criminals being tried? By your explanation, shouldn't they be tried in Serbian and Rawandan courts? Under what pretenses did we try the Nazis at Nuremburg and Japanese war criminals in Tokyo?

All these tribunals, that's the Japanese, Nuremburg, Serbian and Rawandan tribunals, were set up ad hoc by the Security Council, and there's no reason another ad hoc tribunal couldn't be set up to try American war criminals. (This is all so painfully humiliating; I never thought I would type the words "American war criminals" in anything but a theoretical context.)

Do military courts have juristiction over contractors? If they don't, who does? Surely you'll conceed that if contractors are charged with war crimes, they should be tried in an international court; I mean, what U.S. District Court has juristiction over Iraqi prisons? Who is responsible for charging them? Would you rather those charges were leveled against American contractors by "Frogs" (as you so poorly put it), or would you rather the charges were leveled by the United States military?

As I stated before, I was very much against us signing onto the ICC. But there is a big difference between voluntarily referring our own cases to an international tribunal and being required by treaty to turn our own people over, military or contractor. We can get as impartial a trial for our troops as any other accused war criminal gets, and, as Jennifer noted, no one in the Muslim world is going to accept the legitimacy of an aquittal by a U.S. court anyway.

Like the Tokyo trials, we could even have the tribunal here in the United States.

The descriptions I'm hearing of some of these atrocities, if they're true, rank among the ugliest chapters of our government's history. Sending our own to be judged by the world is one of the few things we can do to restore some sense of legitimacy and honour. Besides, if the U.N. ever comes to Iraq, and I'm not sure that's such a bad idea anymore, they're probably going to demand it.

P.S. I've heard numerous confirmations that there are already, at least, two homicide charges being filed against our own, and the victims are among those on film. When I wrote that they were reporting that, "...there's film of U.S. soldiers beating a POW to death like a bunch of skinheads.", it would have been more clear if I had written, "...they're reporting that there's film of U.S. soldiers beating a POW to death. Wow, that sounds like something a bunch of skinheads would do!"

[Ken Shultz]

Jennifer is right. The benefit of an international tribunal is that it would have legitimacy with the Iraqi people. I don?t think you appreciate how important that is.

I always tell people I was against the war, and my reasons for being against it had nothing to do with WMD or ties to terrorism. I thought that invading Iraq would cause tens of thousands of civilian casualties, and I thought there would be a humanitarian disaster like what we saw after the Gulf War. I was wrong about that. I also thought that in the aftermath of our invasion, we might get bogged down into a Vietnam like quagmire or we might ignite a civil war, and, either way, I thought that would lead to tens of thousands of civilian casualties, at least. I pray to God that I was wrong about that too.

The Bush Administration, on the other hand, used WMD and ties to terrorism to justify the invasion of Iraq. Both assertions turned out to be false. The last standing justification for being there was that America was going to bring freedom and democracy to Iraq. But even after the Taguba Report was completed in February, the Bush Administration bragged that it had shut down the torture chambers and the rape rooms. Our enemies, those who do not want freedom and democracy in Iraq, are pointing to our own pictures and our own reports and saying that America lies about its actions and it lies about its intentions. Let me repeat, we have lost our last legitimate justification for bombing and invading these people.

Why is it so important that the people of Iraq believe that our presence there has some legitimacy? Because the only major difference between Vietnam as it became and Iraq as it is now, is that in Iraq, up until now, we have enjoyed a critical mass of public support. To a certain degree, a certain portion of everyday Iraqis believed that America was going to be different. If you take that legitimacy away, I?m afraid it?s Vietnam all over again. I?m afraid of the U.S. getting bogged down again, and I?m afraid that we may abandon the people of Iraq to a brutal civil war. I?m also afraid that what will emerge after that war will be much worse that Saddam Hussein.

So if we?ve lost our legitimacy, and that?s the key to winning the war, then we need to get our legitimacy back as quickly as possible. I propose that the fastest way to show that we are still committed to justice and freedom for the people of Iraq is by referring accused American war criminals to an international tribunal, even if it?s just the accused murderers and rapists. Because, once again, if we lose our legitimacy with that section of the Iraqi people who believe that America is more useful than it is expensive, then it?s Vietnam all over again, and I can?t stand the thought of America losing another war, and I can?t stand the thought of losing the War on Terrorism.

In terms of restoring our legitimacy, referring accused American war criminals to the same military system whose systemic failure brought about the atrocities in question, just doesn't have the same effect as bringing them before the world for justice.

P.S. I'm glad to hear that contractors are subject to military law. Because any international tribunal would have to comply with U.S. Military Law. But I disagree that this would necessarily make for a legal precedent, not that we have any plans to murder, rape and electrocute POWS in the future. Do we?

[Jennifer]

Ken-
Certain civilians in Iraq have been granted criminal immunity by order of the President; do a Google on "Executive order 13303." I tried to cut and paste parts of it, but the Adobe Acrobat document wouldn't let me. Apparently nobody can get into trouble concerning their actions with the Iraqi petrochemical industry; whether or not this includes the civilian who raped a teenage boy at Abu Ghraib is unknown to me.

[Phil]

EO13303, like all Executive Orders, is available at the National Archives, and I do not believe, from a cursory reading, that it does what Jennifer claims it does. Particularly when one looks at the prior Executive Orders that it rescinds or supercedes, most of which are labeled, "Blocking Iraqi Government property and prohibiting transactions with Iraq," and date back to 1990.

[Phil]

I should add that, whatever our responsibilities to the Iraqi people -- and they are many -- we also have a responsibility to see that those accused of torture and abuse, as American citizens and employees of the U.S. government, get a just and fair trial, and if that's more likely to happen in courts-martial than in the ICC (which I happen to believe it is), then so be it.

[Jennifer]

Joe L.--

Considering who I am and what career paths I have chosen, chances are good that even if I did commit a felony, I would not do so while wearing the uniform (and presumably exercising the authority) of the United States military. Nor would my crimes be committed against foreign nationals over whom the US military granted me the power to abuse. As a private citizen, I would be tried under the laws of whatever country I was in when committing the crime--most likely the United States or a Western European country. The ICC wouldn't apply to me, so no, I don't think turning me over would be appropriate.

I think you are quite capable of seeing the difference here; you just choose not to, so as to remain comfortable with your set-in-concrete political notions.

[Joe L.]

Ken, the trials you mention Tokyo, Nuremburg, Serbian and Rawandan were ad hoc arrangements, put together by the victors. The first two worked OK and delivered justice the last two have stunk. So, I?d say International Tribunals have a mixed record. The trial of Milosevic has gone on FAR longer than anticipated, the prosecution just rested after 18 months and cost far more than anticipated. It?s done such a good job of discrediting Slobodan that he just re-elected tot eh Serbian Parliament. Rawanda has been plagued by slow verdicts and huge costs. I?d say the Rwandans have done as equally good job with their domestic trials of war criminals.

The civilian contractors is something of a red herring, Ken. The people in trouble aren?t contractors; they?re personnel subject to the UCMJ. Contractors would be subject to the law specified in the Status of Forces Agreement (SOFA). The SOFA creates the legal environment for the US military to operate in a host nation. It is signed by BOTH governments. Right now I don?t know if there is a SOFA with the IGC or not. If there is NOT then, the contractors would be subject to the USC. I?m willing to bet that that provision is in their contracts. The Army has used Blackwater et. al. for several campaigns and these issues will have arisen prior and will have been dealt with in contractual negotiations prior to their commitment.

And as a practical matter, one doesn?t easily voluntarily transfer people to an international tribunal. It sets a precedent. The NEXT time it happens Carla Ponte and Ramsey Clark will demand that they be handed over too. What will we say, ?THIS time is different?? So, we can?t just hand these guys and gals over without making it very likely that there will be a fight to do so again. And again, as American citizens you?re guaranteed certain rights, rights that an ICC does NOT necessarily recognize. This would be unconstitutional to hand over people, without having signed a treaty. It?s changing the rules in mid-stream.

Finally, why do I want to transfer them? WHY IS AN INTERNATIONAL COURT SUPERIOR TO A US COURT? Jennifer, Ken, explain please. You?re comments seem to be based on the belief that justice, for the accused and for the victims can only occur in an international venue, why is that? Nurnburg was practically necessary because the crimes were so enormous and widespread, the Holocaust affected persons from Moscow to the Channel Islands and the levying of aggressive war likewise. Rather than Britain, France, Belgium, the USSR, Poland etc. EACH charging and trying Nazi?s for the specific acts against their subjects they combined cases into a set involving all the nations. Still, each nation victimized by the Nazis got to try Nazi?s for acts specifically against their subjects, the Brit?s sought out the Nazi commanders that ordered the execution of the Great Escape prisoners, and France just tried Klaus Barbie-All for acts committed specifically against Brit?s or the French.
In this case, the victims are Iraqi and the accused are American, and the crimes all occurred in one place. Nurnburg is not necessary. I don?t see why, just because Jesse Walker raises this issue, that the US military can not try the accused fairly. The military commits these acts daily-it?s made up of human beings, they all aren?t heroes-and we mange to clean our own dirty laundry. I think the best motto is, ?We take care of our own.? For good or ill.
Sorry for the recent Steven Den Beste length posts.

[Joe L.]

But Jennifer don't you see, THE US MILITARY PERSONNEL CAN MAKE THE SAME CLAIM. They are subject to the UCMJ, not international law. What's the difference? In either case, you or they, we are changing the rules under which you operate in mid-stream, for political purposes. That's not what law is about.
I DON'T see the difference. To continue the example, if you commit a felony in Spain, you'd expect to be tried in Spain, but let's say we think you'd do better in a trial in Slovakia, can we just move the trial there, and by "better" we mean that it will be less embarassing to us, even if Slovakian courts aren't efficient or fair.

[Jennifer]

Why is the ICC superior in this case to a US military court? Well, there's an old saying--I don't remember the exact wording--to the effect that you can't be trusted to judge your own self.

Technically speaking, the invasion of Iraq was in itself illegal--we invaded another country on false pretenses. We broke the law to get there in the first place, we continued breaking the law once there, and now we say that really, honestly, we can be trusted to police ourselves.

If a cop smashes down my door, trashes my house AND abuses me on what proves to be an invalid warrant, the judge who signed the warrant and gave him permission to enter my home is NOT the judge who can be trusted to hear my case against the cop.

[MJ]

Wow, how easily some would throw away the legal rights of American citizens for political expediency. Whatever these soldiers may be accused of, whatever they may have actually done, they deserve the right to a fair trial in an American court of justice. An international court does not have the same protections given to the accused that an American court does, even a court martial. We cannot throw our people to the international wolves just to gain a propaganda coup.

[J]

MJ said: "An international court does not have the same protections given to the accused that an American court does, even a court martial."

Could you detail the protections offered by an American court martial (or civilian court)? I don't mean this to be accusative or sarcastic, but (and I guess I'm revealing my ignorance here) I really don't know and am curious.

[Walter Wallis]

A court must have a process to compel attendance at trial. I am not ready to concede the authority of another political body over the United States.
Jennifur seems to think that an international tribunal would protect her rights better than the U.S. courts. Loony.

[J]

Just so I'm clear, I meant "protections offered by an American court martial (or civilian court)" that aren't offered by an international court.

[Jennifer]

Walter-
I am not worried about my rights, but the rights of those Iraqis abused by those wearing the uniform and backed by the firepower of the US military.

[Ken Shultz]

If we have an ad hoc tribunal, then the ICC is beside the point. Oh, and I don't believe that international tribunals and military justice are mutually exclusive.

[Ken Shultz]

U.S. military justice, that is.

(Please pardon the slip, I'm thumbing it in by way of my phone again.)

[Joe L.]

Jennifer, using your won analogy shows the flaws of your argument. What you posit happens ALL the time... and people sue and win judgements against the police or have their consvictions or arrests overturned on procedural grounds, all the time. We do judge our own and do it often and well.