A Response to the Usual
"New Sisyphus" (NS) is so consistent in his use of false statements, half truths, and spin that I sometimes wonder if he is not in fact Bill O'Reilly. This article is no exception.
I am, in fact, not Bill O'Reilly, much to my wife's displeasure. However, I am willing to host a Fox News program if so requested.
The articles to which NS refers do not say that the US "deliberately target[ed] civilians" in the attacks on Falluja. Instead, they say that there was "indiscriminate" use of white phosphorus (WP) and a modern version of napalm (Mark 77). The Pentagon admits to having used WP in an aerial mode, which by its very nature is indiscriminate. WP "is considered a dangerous disaster hazard because it emits highly toxic fumes" (quoted from the National Safety Council, a congressionally chartered nonpartisan, nongovernmental organization). The fumes (smoke), it turns out, is the very reason why the US military used it in Falluja.
TS is right that the articles referenced do not specifically state that the US "deliberately target[ed] civilians" in the attacks on Falluja. However, the charge that US forces used incendiary ammunition indiscriminately in a civilian area is tantamount to the same thing. Anyone using such ammo indiscriminately must know, as a matter of course, that civilians will be harmed. Still, there is a distinction to be made here, and TS is correct on this point. While the tone of the articles is certainly suggestive of a certain disregard for Iraqi life in the minds of US troops, they do not say that the US was specifically targeting civilians for death. I suppose in these anti-American times one must be thankful for small favors.
I also have no qualms with TS's classification of WP as dangerous. Of course it is. As to its admitted use in Fallujah by the Pentagon, it is TS that is engaging in a half-truth. As we have learned from the U.S. Government's official explanation of the matter, US forces used WP in Fallujah both for illumination purposes (i.e. flares) and for smoke-laying purposes (i.e. to provide screening cover and to smoke out enemy fighters from entrenched positions). At no time, however, did US forces deploy any version of Napalm, as TS states. To quote from the statement: "no Mark-77 firebombs were used in Fallujah." Given the USG's extreme openness on this topic, and the fact that it has clarified its use of WP as late as yesterday, and given the absence of any proof to the contrary beyond that of mere allegations (some of which, as the USG points out, originally charged that the US used "napalm gas" until such time as they learned that such a thing does not and cannot exist, whereupon the charge was amended to read simply "napalm") TS's assertion does not have credibility.
NS excuses the use of WP as legitimate simply because the US never signed on to the Chemical Weapons Convention Protocol III. The fact that most of the world's nations have signed on is of no consequence to him. This facile approach to international law would exclude Hitler, for example, for not having signed any treaty banning genocide. We must accept that a predominate acceptance of a principal in international law amongst the community of nations should be binding on others, just as our domestic laws do not require the agreement of each and every citizen to become enforceable.
First, the weapons control treaty in question here is the 1980 Convention on Conventional Weapons, Protocol III ("CCW") and not, as TS states, the "Chemical Weapons Convention Protocol III." The distinction is important since WP's inclusion in the 1980 treaty clearly demonstrates that the world has always looked upon WP as a variant of conventional weapons and not, as TS and the left is charging, a chemical weapon.
Second, my point was not to excuse the US or any other power from the sanctions of international law merely because the US is not a signatory to CCW Protocol III. Obviously, Hitler was guilty of war crimes on the basis of international "common law" and the Allied Powers did not have to rely on a specific undertaking by Germany not to commit genocide before holding senior Nazis to account. Rather, my point was that the numerous references to WP as "banned" and "illegal" failed to take into account that they are neither under current recognized international law as it relates to the United States of America.
However, TS articulates another source of law. If there is a "predominate acceptance of a principal in international law amongst the community of nations," then that principal should be a binding article of international law. That is true insofar as there are broad categories of recognized activity that constitutes clear war crimes. It is from such consensus that the common law of war crimes has arisen. However, on a broad range of issues about which there is no such consensus, such as the use of WP, the matter was presented by the United Nations as a "take it or leave it" matter connected to the CCW. Why would there be an optional treaty that a power could refuse to sign if the point it sought to enforce was the subject of a solid international consensus? TS's approach simply makes no sense in this regard.
The "always out-of-touch" Independent (a UK newspaper) has consistently been more accurate in their reporting on Iraq than the mainstream media. They have pointed out from the start the inaccurate intelligence reports, misleading statements by White House officials, Halliburton corruption, etc., more consistently and earlier than US mainstream media (which conservatives like to claim is so liberal).
This is, of course, a matter of opinion, though I note that it is with the Independent's Middle Eastern correspondent that the verb "to fisk" was born and that the Pentagon has uncovered a whole lot more Halliburton corruption than the Independent ever did.
I would agree with NS's sarcastic comment that WWII vets who engaged in war crimes against Japanese or Germans be held accountable. If he has any specific information pertaining to such crimes I would encourage him to assist in bringing those criminals to justice.
Since my point was that almost every unit that fought in WWII used WP as a weapon (WP shells were standard issue to tank and artillery units, and were carried as mortar rounds by infantry units), TS's response can only mean that he/she considers all of our WWII era fighting men and women war criminals. (There's a nice Veteran's Day message). This obvious absurdity reveals the weakness of TS's position and that of the Left on this matter in general. The use of WP was not a war crime in WWII when it was used as a direct anti-personnel weapon and it is not a war crime now when it has been used for illumination and smoke-creation purposes.
Finally, NS mentions that the US under FDR executed "enemy combatants" (a term not used in connection with those cases and without meaning in international law but rather invented by the Bushies to avoid compliance with the Geneva Conventions, to which the US is a signatory). This reference is meant to suggest that FDR was more extreme in his treatment of "enemy combatants" than is the current administration. By his own admission, however, these men were charged and tried by a military tribunal. The detainees at Gitmo and elsewhere have not been charged with any crime, have in most cases been denied any form of due process, and are commonly denied any legal representation or contact with family. The administration claims the authority to hold them indefinitely under these circumstances. While Bush supporters defends these acts by saying that the detainees are terrorists,
I hardly know where to begin with here, TS's arguments are so wrong. I often find it helpful when in this situation merely to take it line-by-line.
1) The term "enemy combatants" was used by FDR , was used in connection with those cases, even in connection with US citizens, and has concrete meaning under international law as it was understood in WWII and now. To argue, as TS does, that Bush "invented" the concept and his power to hold such people out of whole cloth is to ignore the entire constitutional law history of the debate. To quote from the Supreme Court's opinion in Ex Parte Quirin, 317 U.S. 1, 37, 87 L.Ed. 7 (1942):
Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused.
In short, FDR labeled the Nazi saboteurs of Ex Parte Quirin enemy unlawful combatants, had them tried before a military tribunal and executed, all in accordance with recognized international law. (Note: over time the more archaic sounding "enemy belligerent" merged with the concept of "unlawful combatant" to become today's designation of "enemy combatant"). This concept was upheld again by the US Supreme Court in Hamdi v. Rumsfeld when it held that:
The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again.
* * *
There is no bar to this Nation's holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. We held that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ... the law of war." While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States,"; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.
This fact has been litigated and re-litigated over and over again by legal scholars who share TS's mistaken outlook. To date, the courts have unanimously found that far from "inventing" a category and "making-up" non-existent powers, the President has been properly discharging his duties. As the Fourth Circuit noted in Padilla v. Hanft on September 9th of this year:
The exceedingly important question before us is whether the President of the United States possesses the authority to detain militarily a citizen of this country who is closely associated with al Qaeda, an entity with which the United States is at war; who took up arms on behalf of that enemy and against our country in a foreign combat zone of that war; and who thereafter traveled to the United States for the avowed purpose of further prosecuting that war on American soil, against American citizens and targets.
We conclude that the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001.
2) Since FDR executed the enemy combatants instead of merely holding them as prisoners as Bush is doing, it is self-evident that FDR treated them "more harshly" than the current administration.
3) TS then turns his sights to the Geneva Convention, repeating the same tired mantra that the U.S. is somehow in violation of it. No such violation has ever been found by a court during the numerous challenges to its conduct the Bush Administration has been subjected to. The Geneva Convention's protections extend only to organized soldiers, who fight in uniform and report to a central authority. (Soldiers, in other words). The only thing the Bush Administration has done with regard to the Geneva Convention is to state the obvious: it's protections apply to regular soldiers of the Iraqi Army, but do not apply to the Taliban (except in certain limited cases) or al-Qaeda.
4) TS then makes the common error of the Left when he states that while FDR tried his enemy combatants, the people at Gitmo have never been tried, do not have due process rights, etc. The root of this error is failure to distinguish the two types of captivity an enemy combatant may be subjected to. First, as the U.S. Supreme Court upheld in Hamdi (see quotes above) an unlawful combatant can be held under the President's inherent war fighting powers, as authorized by Congress, until hostilities end. This type of detention is designed merely to prevent the enemy fighter from re-joining the fight. The innovation in Hamdi was that the Court directed the Executive Branch to hold a hearing to determine that the person so held was properly detained. This hearing is strictly perfunctory, and should not be confused (as it always is) with a military tribunal adjudicating a crime.
The second type of detention (and punishment) is for an alleged war crime. This would be tried before a different type of military tribunal, which would then hand down a sentence, confirmed by the President acting as commander-in-chief.
I realize that this is confusing. God knows there are a number of good law professors who can't get their minds around it (usually those who accuse the President of being dumb, ironically). Perhaps a good example would illustrate.
Example A: Ahmed is a Taliban supporter who has taken up arms against U.S. forces in Afghanistan. He is given a rifle, some basic training and then forms up to fight with a small group of Taliban fighters. Over time, he becomes a leader, leading his own small band in fights against US forces. One night, Ahmed's unit is surrounded by US Army forces and most of Ahmed's men are killed. Ahmed and eight other Taliban fighters are captured. US Army intelligence quickly learns that Ahmed was the leader of the band and that he represents both an above-average threat and that he may have valuable intelligence. Ahmed is sent to Gitmo.
-- Ahmed is an enemy, unlawful combatant. The terms of the Geneva Convention do not apply.
-- Under the Hamdi decision, the President has the authority to hold Ahmed at Gitmo until hostilities between the Taliban and US forces cease in Afghanistan.
-- Under the Hamdi decision, a tribunal of some kind (the Court did not specify its exact make-up, though it strongly suggested that a military tribunal would suffice) must hear evidence of Ahmed's capture sufficient to lead to a conclusion that he was an enemy combatant and not, say, a farmer who was in the wrong place at the wrong time. This is an Executive Branch hearing, not a trial.
Example B: During questioning at Gitmo, Ahmed boasts that it was he who beheaded three schoolgirls in a remote Afghan village for the crime of attending school and not being properly attired. The US brings war crime charges against Ahmed specifically for these killings. He is tried for the war crime before a military tribunal, sentenced and executed.
As you can see, the US can hold Ahmed just as effectively under Example A as it can under Example B, except that were hostilities to cease Ahmed would have to be released. Since the US is not in the mood to execute these guys, we by and large have been sticking with Example A, though some of the first trials under Example B are coming up.
5) This is why the detainees at Gitmo have not been charged with a crime or received the due process rights such suspects are given: they are not being criminally held. They are being held as prisoners in connection with the President's authority to fight this war, an authority that has been scrutinized again and again by the courts and found to have been properly executed. On this point especially, TS is simply misinformed and wrong.