Habib again

The Monday Message Board has a lively discussion of the Habib case, and I thought I’d make my own observations. Based on the evidence I’ve seen, I’m fairly confident of three things

* Habib was up to something connected with Islamic militants in Afghanistan

* After his arrest he was tortured (in Pakistan and Egypt) and subject to cruel and degrading treatment (in Guantanamo Bay)

* The Australian government knew about and approved Habib’s treatment[1].

A lot of participants in the debate seem to assume that, if you accept the first point, the second and third don’t really matter. I would have hoped that this kind of position didn’t need to be refuted, but that’s apparently not the case, so I’ll try.

Update A lengthy comments thread already, but it’s interesting that no-one, as far as I can see has disagreed with my factual conclusions. If there are people out there who think that Habib is an innocent bystander they haven’t shown up here. And, although there are plenty of commenters willing to defend torture, no-one, it seems, is willing to put their name (or handle) to a claim that the government is telling the truth.

First, torture is evil.

Second, whether or not Habib was guilty as insinuated (he’s never been charged), if you approve of torture you approve of torturing innocents because this will inevitably happen. In fact, it already has.

Third, Habib’s own case illustrates the point that torture doesn’t work, and is counterproductive. The Americans had him (and many of his alleged accomplices) for three years and still couldn’t pin anything on him. If he was a terrorist to start with, he’s a hardened terrorist now. If he was a noisy malcontent, he and all his friends have a lot more reason to be noisy and malcontented, and some will probably go further.

fn1. Of course, with the kind of definitional legerdemain that characterises this government, no evidence could possibly prove this claim. In matters of this kind, things are now set up so that everyone knows and nobody knows.

127 thoughts on “Habib again

  1. Ah, what nostalgia. Reruns of “Dad’s Army”.

    Corporal Jones Quote I

    “A taste of the cold steel … the Mahdi … they didn’t like it up ’em sir. They didn’t like it up ’em”

    Corporal Jones Quote II

    Don’t panic! Don’t panic!! Don’t panic!!!

    Just heard on the radio Howard breaking yet another non-core promise. Seems Our Boys are off to combat in the “New Iraq”.

    No, this isn’t Vietnam. In that country Australia fought against insurgents who spearheaded the military effort to create a middle-sized single-party communist power.

    In Iraq, on the other hand, Australia is fighting against insurgents who are fighting to prevent the creation of a major single-party Islamist power.

  2. Although the US Federal Court has affirmed the right of Gitmo detainees to civil legal trial the courts have not seen fit to revoke the legitimate power of the state to detain GWOT prisoners at Gitmo.

  3. Michael,
    I agree with much of what you are saying. I support the action in Iraq – it was not handled the best, but it was, and is, the only real solution to the problem. Oppression of anyone on spurious grounds, whether for reasons of race, sex, sexual orientation, religion or thousands of other reasons is wrong.
    However, we do not prove to those undertaking this opression that it is wrong by embarking on it ourselves – even if it is in the name of self defence. As I have said before, I lost a friend and (former) colleague in the September 11 attacks. He was a good man. I also have two daughters who I want to see grow up. I would rather they grew up in a word with a fear of the occasional act of senseless violence than in the constant fear of a government that can act without fear of judicial or other oversight.

  4. As I’ve said several times before, I remain far more worried about the US Govt., and now about our own Govt., than about any terrorist group. Their capacity to hurt us is far, far greater.

  5. It is difficult to know where to begin with most of this self-indulgent tough talk. But I want to focus on one point: all sorts of radically illiberal measures, such as torture, indefinite detention and murder are being justified on the grounds that they will preserve lives (only of our sort of people). I don’t think that the lives of our sort of people will be preserved by these policies (even Richard Posner has noted the importance of maintaining the loyalty of Arab-Americans for example). But even if they did preservation of human life is not the absolute basis of policy. The preservation of British lives would have been best served by not declaring war in 1939. A policy of continental isolation, as favoured by the Republican right in the late 1940s, would have saved many American lives. Melvyn Leffler in A preponderance of power argues that American policy-makers rejected isolationism because it would have required such a degree of internal mobilisation that it would have placed American liberalism at risk. More recently if we accept the arguments of the Bush administration it has brought liberty to foreigners at the cost of many American lives. There was some truth to the slogan better dead than red, life is not an absolute value. The contest with radical Islamism should not just be one to preserve lives but in defence of liberal values. Freedom is worth risks. Richard Rorty’s comments are insightful here: http://www.theage.com.au/articles/2004/04/26/1082831494716.html.

  6. First, torture is evil.

    I can’t see how you can make that statement as a matter of fact. What specifically is “evil” about torture in the “ticking time bomb” case? Let me guarantee everyone here that if any of you kidnapped a friend or member my family then I wouldn’t think twice about torturing any of you bastards if I thought it would help to get them back.

    Second, whether or not Habib was guilty as insinuated (he’s never been charged), if you approve of torture you approve of torturing innocents because this will inevitably happen. In fact, it already has.

    If you approve of prisons, then you approve of imprisoning innocents because this will inevitably happen.

    Regardless of whether or not someone is proved innocent after the fact, they can never get back the time they lost in prison.

  7. Jack nails the reasons for Beazley’s recent sea-change for Labor. Essentially we can have any laws we choose from Sharia to don’t be a naughty boy and have a slap on the wrist. Also the way in which the law is implemented, can always be a recipe for tyranny. What checks this is a general sense of community standards and fairness, which in open liberal democracies, is the best judge and jury you can get. Authorities acting behind closed doors from time to time, naturally have to be mindful of this in all their deliberations and actions. Sooner or later they will find the light of day and consequences met for contravening community standards.

    With all this worrying over the state vs the individual expressed here, I can only say look at the specifics. If the specific cases of Hicks and Habib are your most worrying outliers in this regard, you need to take an aspirin and lie down, is what your community and political leaders are saying. These individuals are not being systematically persecuted for their race, religion or sexual proclivities, but rather were detained for being dangerous nutters. OTOH, if a benign individual like Ms Rau falls through the cracks of our system, we view the healthy indignation of the community toward authority, to shake their butts, to ensure such occurrences are negligible in future. And this despite the fact that in two WWs, Ms Rau’s treatment, as a person of German extraction, would have been quite lawful at the time, probably irrespective of her mental condition. At present in the WOT, the community doesn’t view all muslims as automatically guilty, but then unlike some, it doesn’t believe that they’re all automatically innocent either. In this regard they’re prepared to trust their appointed leaders until there is evidence to the contrary. Experience tells them they predominantly can. Naturally enough, they always have one ear cocked for any real evidence that they can’t.

  8. Whether they meant to or not the British by declaring war certainly saved a lot of British Jewish lives surely. how would the Japanese have treated Australians if the Yanks hadn’t stopped them. Certainly they may have understood life is not an absolute value, I don’t.
    Life is not an absolute value, I don’t even know what that means Geoff. In an argument about whether torture is right or wrong I struggle with the notion that it is better to be dead than red. My personal preference given the choice would be to be tortured. I have given birth so I have some experience of awful inescapable pain. Like I was never keen on it is better to be dead than raped.
    Andrew while your comment re fear of dying because of terrorism legitimately suggests that the probability of being hurt by terrorists is exaggerated, also the possibility that Habib demonstrates the dangers of an authoritarian state are also exaggerated.
    This is weird, to put the argument that a consequentialist moral position on torture may well justify it at least in certain circumstances invites abuse and dismissal. But it is dismissed by many on the grounds that the common good is better served by the death of some Australians rather than pain to others, surely a consequentialist argument? Or Gordon who appears to believe that one should fear our government more than terrorists because, they will torture more people than the terrorists wish to kill? sorry gordon I don’t know what you have said before.

  9. observa,
    To me at least the problem is not in detaining dangerous nutters, as you put it. Society at large has a self-evident right to self-protection. The problem is in determining who those dangerous nutters are and for how long they remain dangerous. Are you seriously maintaining that the executive arm of government has the right (nay, the duty!) to lock up anyone it likes on the pretext that they say that they are dangerous nutters? If not, what limits should be placed on that?
    To me it appears you are setting few limits. Public opinion (or in other words a general sense of community standards) can only be influenced by what comes out and that can be managed by spin. The ‘sooner or later it will come out’ argument just does not wash – it may come out after all the participants are dead.
    In any case, it was not that long ago that the general sense of community standards was that it was right to persecute Jews, homosexual, people of differing skin colour etc. That does not mean that it was right to do so.

    My challenge to you is to state where you see the limits (if any) on the rights of the executive arm of the government to detain a person that it sees as a dangerous nutter.

  10. “Although the US Federal Court has affirmed the right of Gitmo detainees to civil legal trial the courts have not seen fit to revoke the legitimate power of the state to detain GWOT prisoners at Gitmo.”

    There are several writs of habeas corpus currently before US courts as result of the Supreme Court decision challenging precisely the legality of the detention of foreigners at GTMO. The Supreme Court has already ruled that the GTMO detainees can access the US judicial system.

    BTW, there is nothing legitimate about the detention of prisoners at GTMO. The US government chose the location because of the legal fiction that it is not US sovereign territory (technically it’s part of Cuba), and therefore not subject to US law. The US Supreme Court ruled that that subterfuge is the bullshit it appears to be.

  11. What is good enough for non-Australians (and that includes Habib in the PM’s eyes) is not necessarily the same as what’s acceptable for Australians. No one’s forgotten the PM’s comment about the death sentence for the Bali bombers. To paraphrase him…. “we don’t believe in hanging offenders in Australia, but we won’t oppose Indonesia hanging the Bali bombers”. WTF?! Some principled stand he is taking.

  12. < >

    The Japanese invasion of Australia was prevented by the victories of the Australian army at Milne Bay and Kokoda. The only American troops involved were a detachment of American combat engineers who were building an airstrip at Milne Bay.

  13. Ian,
    You forget why the Japanese found it necessary to go over the Owen Stanleys in the first place – their tactical defeat in the Coral Sea, against a mainly US force.
    In addition, can you imagine what would have happened if the full wieght of the Japanese Imperial Army was trying to cross the Owen Stanleys? I somehow doubt that the battalion of reservists, for all their great abilities, could have stopped them. We can thank the US (and China) for tying them up so they were not doing so.

  14. Let me guarantee everyone here that if any of you kidnapped a friend or member my family then I wouldn’t think twice about torturing any of you bastards if I thought it would help to get them back.

    Yobbo – back off. I’ve never even met any of your family.

    But seriously, the key phrase in your argument is the last one; that’s a mighty big ‘if’. What if it doesn’t help get them back? What if your loved ones are killed by people who are retaliating at the torture of one of their brethren? Would you still think it was the right strategy, and why is this a less likely outcome than the one you envisage?

    I note with interest that those here who would defend the use of torture in certain circumstances are relying on a nice, linear equation: torture = valid confession = lives saved. I wish I lived in their neat, predictable world. In the world I live in and observe, so-called liberal states that go down the path of legitimised torture are unleashing forces that no one can predict.

    And, as I’ve suggested previously, bear in mind that the people you are torturing are products of a culture that celebrates death. They’ve basically been brainwashed by a cult; de-programming would be a much more effective strategy than physical torture.

  15. But seriously, the key phrase in your argument is the last one; that’s a mighty big ‘if’. What if it doesn’t help get them back? What if your loved ones are killed by people who are retaliating at the torture of one of their brethren? Would you still think it was the right strategy, and why is this a less likely outcome than the one you envisage?

    You’re right, of course. I wouldn’t proceed with the torture if I thought it would increase the chances of my loved one being killed.

    If I judged it to be neutral, however, I’d go right ahead and torture you – because fuck you, you started it.

  16. But seriously, the key phrase in your argument is the last one; that’s a mighty big ‘if’. What if it doesn’t help get them back? What if your loved ones are killed by people who are retaliating at the torture of one of their brethren? Would you still think it was the right strategy, and why is this a less likely outcome than the one you envisage?

    You’re right, of course. I wouldn’t proceed with the torture if I thought it would increase the chances of my loved one being killed.

    If I judged it to be neutral, however, I’d go right ahead and torture you – because fuck you, you started it.

  17. “My challenge to you is to state where you see the limits (if any) on the rights of the executive arm of the government to detain a person that it sees as a dangerous nutter.”

    That’s the delicious irony Andrew, I don’t know and neither do you, but we all do, at least within jurisdictional limits. Look around you Andrew. Habib was in Gitmo for 3yrs. Hicks is still there with many others. Carr enacts retrospective law to keep the Skafs from getting a shorter sentence. Rann intervenes in Von Einem’s parole chances coming up by saying he’ll never be released on his watch and harangues the DPP to get Nemer 2yrs in jail instead of $200 fine, Cornelia Rau did time in Baxter and is now in Glenside, and you can get executed for trafficking drugs in Singapore and Bali, or stoned for adultery in Africa. Here we’re arguing about the ethics of torture. Whaddya reckon Andrew?

  18. Comment # 61 by Fyodor — 22/2/2005 @ 8:36 pm fancies himself as an eminent jurist:

    There are several writs of habeas corpus currently before US courts as result of the Supreme Court decision challenging precisely the legality of the detention of foreigners at GTMO. …there is nothing legitimate about the detention of prisoners at GTMO

    Did someone die and make Fyodor Chief Justice? In which case we may as well hand the terrorists the keys of NYC and all go home.
    In reality the US Supreme Court has done nothing of the sort. GTMO remains a legitmate detention centre and a useful clearing house for sorting through the catch in the GWOT.
    The GWOT requires both a global martial and a local judicial approach. Fyodor would have us fight with one hand tied behind our backs.

  19. This thread is spluttering and dying so I might as well snuff it out by way of a summing up. It is clear, from the incendiary nature of some exchanges, that the whole subject of torture and the GWOT has opened up a can of worms. Much of the wriggling is due to the fact that the adjudication of the Habib case has tapped a deep, not-very-well-examined, vein of unrequited anger.
    On the Hawk/Dry side, the anger provoked by the 911/Bali atrocities, at both terrorist perps and their appeasers & sympathisers, is still pretty close to the surface. There is also some long festering disgust with various forms of Cultural Wetness. And to top it off, there is embarassment and shame that some dreadful aspects of the chickenhawks practices and excesses, carried out in the name of the GWOT, have come home to roost.
    On the Wet/Dove side, there is plenty of (justified) anger at the Hawks for driving the Anglophone powers into the colossally expensive and bloody blunder that is Iraq-attack. There is also anger at the moral insult that torture allegations have added to the Anglos political injury. And there is probably an uneasy conscience that the practice of “ritualistic libertarianism” has mislaid so many well-intentioned plans.
    What really annoys the Dove/Wets is the fact that the majority of their fellow citizens (beloved democracy!) appear to agree with, or at least tolerate, the Hawk/Dries political militarism and cultural conservatism. Not only have the Hawk//Dries got away with it, they have, for the moment, come out on top.

  20. Stating that the government is telling the truth is a bit difficult when its hard to get a handle on what are the lies that we should be denying. There is the fact that they practise sleight of hand which seems to be a part of politics and those who comment on it. There is the usual liar liar liar context. Or the “The Australian government knew about and approved Habib’s treatment”. Presumably the lie is that are saying they didn’t know and they didn’t approve, which they couldn’t of course if they didn’t know.
    So did they know that he got knocked around in Pakistan. Well I would imagine that they could guess that might happen. Did they know that he was in Egypt. They warn Australians travelling that a country may not permit Australian consular assistance to be given to Australian citizens who, according to its laws, it considers and treats as its own nationals. It would seem that Egypt was of this view in relation to Habib so I see no reason to disbelieve the government when they say that Egypt would not tell them whether they had him, which certainly limits the ability to provide consular support. And it was clear that the Egyptians didn’t consider that he was entitled to access Australian consular support. Under international law I read countries are not obliged to accept dual nationality. Further as a canadian site points out Whenever you are in a country that recognizes you as a citizen, its laws take priority over the laws of any other country of which you may be a citizen. Does anyone know how Habib’s Egyptian nationality was recognised. Was it because the Pakistanis knew quite a bit about this innocent abroad or did he claim it? his lawyer tried to argue that he had abandodned his Egyptian citizenship, because he had visas for entry into Egypt but this is not an uncommon way of travel for dual nationals.
    So did they know he was in Egypt? I don’t think so. Did they suspect it, possibly. Again they are known for beating people up, so did the Australian government approve of this. Moot point really Don’t beat up this person that you say you haven’t got but even if you did you consider that he is your citizen and Australian laws and support don’t apply.
    G Bay, did they know he was suffering cruel etc, well as the international moving feast on this extends to not being allowed to offer reward inducements or treats to talk, let alone being nasty one could argue that in the strictest sense they would suspect it. They asked and were told no. Leaves us with the Australian government would have to be of the view that the Yanks were liars as a matter of course thus the only solution was to demand his return. Well they never lied about that. they weren’t interested in that outcome for quite some time.
    Now of course we have got him back and considerable resources of our intelligence will have to be expended watching the nasty little sod.
    And now of course he is a hardened terrorist, presumably because people have been mean to him rather than he has been training to kill.
    So I am prepared to put my name to it, the Australian government did not know about Habib’s treatment and therefore they couldn’t approve of it. I would acknowledge that as concerns for Australian citizens go they have probably been more worried about the Australian citizen who as I read spends his days chained in a squatting position to a post in a Thai gaol until he is executed. So they prioritised differently to what some would like. Don’t have a problem with that myself.

  21. Jack,

    You obviously need to do some homework on the legal issues surrounding GTMO. As an illiberal statist, I’m not surprised you’ve chosen to remain ignorant [see no evil etc.], but do make an effort for the sake of the debate.

    This may have been hard for you, arguing with yourself at 3am, but did you have a point in that last post? A summary usually discusses the issue at hand, e.g. Habib and torture.

  22. It’s disappointing that a lot of discussion can’t move beyond the normal dividing lines.

    I’m as bad in my own way, not necessarily conceding that Habib was up to no good in Pakistan. But, as JQ suggests, we ought to suspend some positions for the purpose of considering the merits or otherwise of torture.

    The best argument I’ve seen against torture being justifiable was by Christopher Hitchens, a supporter of the invasion (well, war or liberation if you prefer).

    He pointed out that despite its extensive use in Northern Ireland, the only effective intelligence came from constant sifting of the facts and the spotting of inconsistencies. It is time-consuming and labour-intensive unfortunately.

    He reinforced that position by showing that in WWII the value of SS Intelligence declined as torture replaced the more tedious methods. In the end, being captured by the SS was a likely-fatal and terrifying experience, but it still didn’t help the Nazis.

    Despite its extensive use in the Afrikaner era, it is questionable how helpful it was. It didn’t break Mandela or Sachs, but as the Truth Commission has revealed, it demeaned many of the torturers.

    Some have mentioned regimes in Central and South America. There, it seems to have been used as a weapon of terror more than one of gathering information.

    The evidence suggests that it ought to be opposed on humanitarian and rational grounds.

  23. Fyodor comment # 72 23/2/2005 @ 7:42 am drones on in his new found role as eminent international jurist:

    You…illiberal statist…obviously need to do some homework on the legal issues surrounding GTMO.

    .
    Enough with the over-lawyering already! Fyodor obviously needs to do some homework on the sociological facts surrounding GTMO. He, & his fellow Wets, confirm “Karl Marx’s famous quip…that it is the mark of fools to analyse social and political systems [solely] on the basis of their formal constitutions.”
    As Henderson observes, the Fyodor-types “just don’t get it”. The US is at war and GTMO is under martial law. The majority of the US people are happy with this legal arrangement, going by the recent results of elections.
    With friends like Fyodor, liberalism does not need enemies. The forequote is courtesy of Dr Knopfelmacher, used in a similar context when demolishing the bogus liberal pretentions of Fyodor-types. One hopes, pace Popper & Hook, that liberalism will be spared from the perverse fetishes of “ritualistic libertarians”.

    A summary usually discusses the issue at hand, e.g. Habib and torture.

    ….
    Fyodor’s comprehension slips are showing. The “issues at hand” have been done to death. I was, as explicitly indicated in the last couple of comments, summarising tacit & meta aspects of the debate rather than raking over the, mostly boring & irrelevant, legalistic minutiae which was causing the debate to “splutter and die out”.
    The meta “gorilla squatting in the living room” aspect is the failure of most commenters to consider the realistic sociological implications of implementing abstract ideological principles (“mark of fools” and all that). The tacit
    “unspoken motive” aspect of the debate is the unwillingness of commenters to acknowedge their underlying personal agendas eg “anger” about 911,
    shame over Abu Gharib, “disgust” with terror-symp Wets, “uneasy conscience” about policy failures of the “multicultural” political racket. This last is especially germane to Habib’s case.
    Fyodor immediately presents with textbook symptoms that are diagnostic of both aspects of this debate’s disorder. The man is a clinical psychologists dream and a satirists nightmare. Beyond parody.

  24. I probably agree with Don’s assessment here although it doesn’t get you off the hook as to what will define torture for the interrogator. eg sleep deprivation, disorientation, truth drugs, or degrees of cultural humiliation. I guess from a practical point of view it would be best to ask the Israelis. After all they would be closest to the threat of terror and yet most mindful of the moral dilemma.

  25. Jack,

    It’s a simple issue: if you’re going to summarise, discuss the issue at hand, don’t introduce OT irrelevancies. It’s obvious yet again that you’d prefer to derail the existing discussion on to your own pet theories rather than debate the actual issues of this thread.

    Your persistent bleating of the “we’re at war, dammit!” argument is tiresome and irrelevant. Unless you’re prepared to set a limit to state action in all circumstances, including wartime, you might as well out yourself as a fascist and move on. You say you’re a liberal: how about supporting the rule of law and the rights of individuals?

    The illegal incarceration of foreigners on GTMO is a disturbing precedent in US political life, and one that the republic will regret.

  26. Not bad, Observa. Jeez, me agreeing broadly with you, too? Next thing you’ll be sympathising with the Crows and I’ll be be feeling for the Power. Byron got a bit of a rough spin by the way.

  27. Fyodor — 23/2/2005 @ 10:44 am will have us miss the bigger political picture in order to satisfy his irresistable urge to over-lawyer & ethnic pander:

    It’s a simple issue: if you’re going to summarise, discuss the issue at hand, don’t introduce OT irrelevancies [sic]

    …………………….
    The terrorist chickens are flying home to roost in their droves but Fyodor wants us to pore over the legal fine print. The iniquities and ineptness of Wet liberalism are all-too-relevant to this issue, despite Fyodor’s efforts to obscure this point. Ethnic pandering by Norquist, Fyodor’s brother in arms in the US, helped to give a free pass for the terrorists to commit the 911 massacre. Habib was granted citizenship by a liberal Wet Minister despite being completely unsuited to a liberal civil order. Pandering to sectarians by the fledgling INDON democracy is a major reason why JI were able to murder almost 100 Australians at Bali with impunity. Not that Fyodor has shown the slightest interest in stopping that sort of atrocity. Thank God that Howard, a “realistic liberal”, is on deck.

    illegal incarceration of foreigners on GTMO

    Incarcerating terrorists perps & suspects at GTMO is still legal. It would be nice, for once, if Fyodor did not preempt the US Supreme Court’s prerogatives. I am sure “the Republic” can survive without his gruesome attentions.

    Unless you’re prepared to set a limit to state action in all circumstances, including wartime, you might as well out yourself as a fascist and move on.

    ……..
    Churchill and Roosvelt, by this absurdly ahistorical standard, were more fascist than liberal. Which just shows how ignorant Fyodor is of both social history and liberal philosophy.
    Its typical of “ritualistic libertarians” like Fyodor to bandy about words like “fascist” in disrespect of anti-fascists. I am sure my father, an actual and existing anti-fascist warrior, would have been offended by this debasement of ideological currency. Orwell, Dad’s contemporary comrade-in-arms, nailed Fyodor’s type of language perverter long ago:

    The word Fascism has now no meaning except in so far as it signifies “something not desirable.”

  28. “…miss the bigger political picture in order to satisfy his irresistable urge to over-lawyer & ethnic pander.”

    The “bigger picture”, as you call it, isn’t in question here. Habib’s alleged torture is. Stick to the point. I haven’t mentioned ethnic pandering – you’re the one who keeps bringing up that particular strawman.

    “Ethnic pandering by Norquist, Fyodor’s brother in arms in the US, helped to give a free pass for the terrorists to commit the 911 massacre.”

    I seem to remember the terrorists who executed the 9/11 attacks were in the USA on valid visas. If anybody’s responsible, it’s the US intelligence services for not picking them up. You’re fighting a strawman yet again.

    “Pandering to sectarians by the fledgling INDON democracy is a major reason why JI were able to murder almost 100 Australians at Bali with impunity.”

    Irrelevant hyperbole x3.

    “Not that Fyodor has shown the slightest interest in stopping that sort of atrocity.”

    Irrelevant, incorrect ad hominem conjecture.

    “Incarcerating terrorists perps & suspects at GTMO is still legal.”

    Except for those 50 blokes Judge Green, DC, was referring to in her judgement of 31-Jan-05.

    You can read her judgement here:
    http://host3.uscourts.gov/02-299b.pdf

    The key points are that:

    1)”…the petitioners have stated valid claims under the Fifth Amendment to the United States Constitution and that the procedures implemented by the government to confirm that the petitioners are “enemy combatants” subject to indefinited detention violate the petitioners’ right to due process of law”; and,
    2) “The Court also holds that at least some of the petitioners have stated valid claims under the Third Geneva Convention.”

    You’re on a losing horse, Jack. Get off it, before it embarasses you like your position on Iraq.

    “Churchill and Roosvelt, by this absurdly ahistorical standard, were more fascist than liberal.”

    Assertion, not evidence. The allies never imprisoned suspected enemy combatants in an extra-judicial location purely to prevent: a) civil law; or b) the Geneva conventions, applying to those prisoners. Despite your hysterical insistence of its over-arching importance, the GWOT hardly compares with WWII.

    “The word Fascism has now no meaning except in so far as it signifies ‘something not desirable.'”

    Your advocacy of raison d’etat over individual rights and liberties is entirely consistent with the fascist ideology’s promotion of state and national interests over those of the individual. I think the description’s apt, given you seem unwilling to draw any line limiting the authority of the state. If you think your dad can argue the case better than you [quite likely, but that’s not saying much], get Papa on the line. Incidentally, I’m not calling you a fascist, but I am challenging you to declare yourself on the side of the rule of law, not arbitrary statism.

    In the meantime, stick to the point.

  29. Fyodor — 23/2/2005 @ 2:03 pm …whatever….
    Fyodor is running out of steam, but can stil build up sufficient head to spout some more nonsense. Who is this self-appointed thread maestro who takes it upon himself to orchestrate other peoples comments? This is typical of “libertarians” like Rand who, whatever the liberality of their politics, are forever stomping around in a bossy-boot persona. Talk about “fascism”!
    Its a diagnostic of the Wets political Decline that they keep focusing on the judicial wood and fail to see the political trees. I will continue to point this out, if only to rub it in on Fyodor.
    He is hopelessly naive about the reality of modern US “interest group” politics. The 911 murderers were Saudis. This national group are notoriously prominent in modern terrorism (remember Bin Laden?). They were the beneficiaries of Norquist’s “libertarian” opposition to ethnic profiling and support of other security laxities. This was part & parcel of a classic Wet multiculturalist pander to Arab ethnic lobbies in an attempt to get their vote/donations. ie philosophical vanity & political amenity purchased at the expense of a sociological atrocity.
    The case of JI is more complicated by the fact that INDON is not a fully Open Society. However the INDON’s contorted treatment of terrorist agitators and conspirators like Bashir shows what happend when a lawful state needs to pander to sectarian Islamic parties to its Right and over-lawyering judicial busybodies on the Left. No doubt Fyodor is poised to crack open a bottle of bubbly in celebration of the justice of Bashir’s reprieve. I am disgusted by it.
    Incarcerating terrorists at GTMO is still, in principle and in general practice, legal – whatever exceptions are found in breach. This policy has, unlike Iraq attack, the benefit of being effective (no further Homeland Attacks) and popular (Coalition of Willing parties get more votes for being tough on terrorists). Not exactly a “losing horse”.
    The operation of the Machiavellian principle under conditions of lethal security threat is consistent with any kind of statism. So I suppose that means it is consistent with fascist (and liberal) statism. This is the kind of empty tautological point that I am happy to concede Fyodor now and again.
    He is throwing around, by implication, charges of fascism at war-time leaders – like Churchill & Roosevelt – for failing “to set a limit to state action in all circumstances, including wartime”. I suppose it was remiss of Machiavellians like Churchill & Roosevelt to fail in this juridical duty but, what with a World War an all to fight, they could be forgiven for letting it slip. There was a little thing called the Four Freedoms which they managed to jot down in their spare time, but perhaps that was too vague and windy for Fyodor’s pedantic mind.
    The Allies interned multitudes of civilians in WWII, used heavy bombing of urban areas made an alliance with General Stalin and so on, which was an unlimited application of martial law in prosecution of military victory alright. This may have been a wrong or ineffective thing, but it certainly was a thing. So Fyodor should control his urge for sweeping world-historical denunciations – unless he really does believe that Roosevelt and Churchill were “fascists”.
    Fyodor appears to think that liberalism must always and everywhere cleave to the Lockean principle of inviolable individual rights. This is too silly for words as it implies that Millian utilitarianism is illiberal in that it allows constraints on indvidual rights under conditions of national emergency, pursuit of common good etc. Therefore Mill must be a fascist too.
    So, according to Fyodor’s ideo-logic, Mill and Churchill are fascists. Now I see why Fyodor sticks to legal pettifogging as prospects for a career in political theory look dim.
    Fyodor’s usage of the word fascism in relation to GWOT politicians like Bush, Howard et al who have, whatever their faults, helped to promote democracy in Islamic countries is similarly delusional.
    I am not advocating abandoning the rule of law, still less the establishment of fascism. I am arguing that authorising some aspects of martial law in relation to constraining terrorist perpetrators is, under certain conditions, acceptable. The case of Al Quaeda suspects and accomplices (members & associates of international terrorist agencies who are reasonably suspected of being in on plots to commit mass-casualty attacks) fits my template.
    This is a communitarian concern which, like libertarian and egalitarian principes, has its place in the liberal creed.

  30. Jack,

    If we can (temporarily at least) leave aside the abuse the argument gets down to this.
    In a normal war (i.e. one between States) the laws of war apply – if you catch someone on the battlefield that is in the uniform of the enemy you are entitled to either kill them (if they are fighting) or capture them (if they give up or cannot fight). If they are on the battlefield but are not fighting and not in uniform they should be classed as civilian and you can either intern them or leave them alone.
    If they are fighting you but are not in uniform you may arrest them as a spy unless they are trying to kill you, in which case you may kill them in self-defence. If you arrest or capture them you then have to go through a recognised judicial process before you can penalise (i.e. shoot or imprison) them.
    You may kill civilians if it is not your intent. At no stage are you allowed to torture anyone. Ever.
    These laws exist for a very good reason – it has long been recognised that, after a war, the previously combatant States still need to be able to get along with each other and, if these rules are followed then there is little reason to get upset at one another once the issue has been decided on the battlefield.
    The problem with a war on an abstract noun is that there is no enemy State, there are no enemy uniforms – sorry, a towel on the head and the propensity to cry to Allah is not good enough – and very few of the enemy will admit to being your enemy to your face. They know they cannot win on any normal battlefield.
    The problem then comes down to how do you remove your enemy from the battlefield when;
    a) the battlefield effectively is the size of the world
    b) the enemy does not wear a uniform
    c) the war is unlikely to ever end.
    I believe this means that you have to treat all of the people that appear to be fighting you as spies. This means that, according to the rules of war, you are entitled to imprison them indefinitely – but crucially, you need to apply a judicial process – you have to prove they are ‘spies’ through a recognised judicial process. This is not being done at GTMO.
    The only way you can win a war on an abstract noun is to remove the reason why people revert to it. Beating them up, torturing them (or looking the other way while they are being tortured), humiliating them and imprisoning them without even the appearance of justice does not remove the reasons for the war.
    That is why I support the invasion of Iraq – to remove at least one of the reasons why the Muslims are perpetually poor and therefore angry. A good, stable democracy, if it can be achieved, would, I believe reduce the incentive to revert to a terror campaign.
    It is also why I believe that what has happened in GTMO and elsewhere is wrong – it is wrong, not only in itself, but in the context of the war itself. It increases the reasons why the Muslims believe that they are being persecuted and therefore makes the war harder to win and costs us lives in the long run.

  31. AR, you missed some things there.

    You are entitled to kill an enemy who is not fighting, unless he has surrendered; but you are under no obligation to accept a surrender even if it is offered. Surrender takes two sides.

    A person not in uniform who is not fighting may still be detained on suspicion of espionage.

    A trial need not be of the form suitable for peacetime conditions; a drumhead court martial is perfectly valid.

    Even if a prisoner surrenders in due form he may still be tried – and the law need not extend him mercy, though it may be wise to do so. See, for instance, what happened to certain Spanish who wound up in English custody in Ireland after the Armada.

    An officer, although prohibited from torture, may find himself in circumstances in which he would be guilty of some other dilemma if he extended all the duty of care he should. Then he faces a dilemma. (It is this dilemma that means that surrenders need not be accepted; “no quarter” is a lawful behaviour.)

    I could go on, but I ought to digest all the posts and make a more comprehensive reply.

  32. Agreed on the surrender, but if you do not accept it, you must release the enemy – although you can strip them of their weapons. Simply shooting them is not legal.
    Also agreed on the suspicion, but, again, you must go through a trial.
    The ‘drumhead’ court martial is not in the Geneva Convention and you would still need a proper trial.
    I would think that examples from the Spanish Armada of 1588 would be an interesting precedent to introduce into a modern trial.
    No quarter is not lawful. Several of the charges at the Tokyo trials after WWII related to this behavior.

    The point here is, though, that not even a drumhead court martial has been held for any of the people at GTMO – I just cannot see where this fits into the rule of law. I do not believe it does. If they are POWs then they deserve to be treated as such. If they are not they are either non-combatants and should have been released or they are spies and should be tried.

  33. Jack,

    Obfuscatory, evasive blah x n until we, finally, get you to focus on the issue:

    “I am not advocating abandoning the rule of law, still less the establishment of fascism. I am arguing that authorising some aspects of martial law in relation to constraining terrorist perpetrators is, under certain conditions, acceptable. The case of Al Quaeda suspects and accomplices (members & associates of international terrorist agencies who are reasonably suspected of being in on plots to commit mass-casualty attacks) fits my template.”

    There. Now was that so hard? I was beginning to suspect you capable of justifying any state action on the basis of raison d’etat, but you’ve come back from the brink. Now we can talk sensibly.

    AR makes the key point at #81 that a judicial process must be applied to suspected combatants or spies to make their detention legitimate. Likewise, torture for whatever its supposed worth, is illegal under our laws and under the Geneva Convention.

    As AR put it very well, the treatment of prisoners at GTMO is wrong in itself and is poor strategy.

  34. I think most people at heart are actually a little uneasy about the statement ‘torture is always evil’, because they imagine a situation where it is either torture someone and avert disaster, or let many other people die. A thought experiment for those who try to dissemble with complaints about the danger of torture speading from isolated ‘ticking bomb’ cases to more routine interrogations:

    Imagine you are in a room with someone you *know* is a terrorist and has knowledge of a plan to kill hundreds (thousands, whatever number you like) of people. You are in a room, alone with this person, and you are able to extract information from this person only through torture. You can do this with no fear of ever being caught. Would you torture them to extract the necessary information?

    I wager that most people would do it, and I think there is a moral justification for doing. Complaining that things are never this clear-cut is just avoiding the central issue. If you agree to torture in this hypothetical case, you cannot claim that torture is always evil.

    However, I think it is perfactly acceptable to hold the view that torture is acceptable in some circumstances, but to still view it as unacceptable for any government or other organisation to hold such a view, even in special circumstances. I believe that governments (including their security and intelligence wings) need to be forcefully anti-torture (both officially and also in practice), but if I were one of those intelligence officers, and were in a dark room, presented with the sort of dilemma I’ve just posed, I dare say I would consider using torture. At the same time, I also believe that the government should show no leniency if anyone were they ever caught engaging in such practices.

    I think how the government has acted in relation to Habib has been atrocious and absolutely gutless.

  35. Peter,
    That is all the more reason why procedures should and do exist to stop this situation happening.

  36. > Comment by Andrew Reynolds — 24/2/2005
    >
    >That is all the more reason why procedures >should and do exist to stop this situation >happening.

    Andrew, I agree. Totally. I just disagee with John Q’s original unqualified premise ‘torture is evil’.

  37. I agree with JQ – to me what your point shows is that all of us, even with the best will in the world, are capable of evil if we are able to justify it to ourselves. It is why there must be some point where we are capable of saying “no, this is just wrong no matter why we do it” so that the matter is clear.
    As soon as we start trying to justify some of it we can then start justifying a lot of it.

  38. Andrew, I dont think it is possible to maintain that “torture is evil, no matter what we do”. Having these black-and-white categories of evil inevitably leads to contradictions — If someone gave you the option of torturing one person, or they would torture 1000 people, what would you do?

    In the thought experiment I proposed, you are forced to make a choice betweem two ostensibly ‘evil’ choices — either torture someone, or knowingly let thousands/millions of people die. Both are bad choices, but suppose you *have* to make one? I think the torture choice is more defensible, from a moral point of view.

    Realistically, though, I acknowledge that this is a very dangerous position both for governments and for individuals, for all the reasons people have outlined here and elsewhere. This is the why I am still strongly *for* procedures to prevent torture and *for* laws to punish those who are caught doing it.

  39. No contradiction there – evil is being done. The only question is who does it. If I were a catholic, either way I would have to go to confession.

  40. AR, you can shoot rather than accept surrender – you simply continue the attack. Consider the situation after the Armistice of 1918. Also consider the lawfulness of Banastre Tarleton’s actions (the rebels accused him of murdering prisoners).

    By drumhead court martial, I merely refer to the allowance made for availability of rewsources. Think of the court martial described in the Shaw play set during the US War of Independence – I forget the title offhand.

    The “no quarter” order in advance is unlawful, but what I was getting at was that there is no obligation to offer quarter when the time comes, i.e. accept a surrender. The enemy does not have the right to make himself a human shield, as it were.

  41. P.M. does that mean that you believe that it is lawful to shoot an unarmed person with their hands up approaching you in a non-threatening manner provided you simply decide to “continue the attack”? If you do I would question your reading of the law and also your moral position.

  42. Fyodor — 24/2/2005 @ 7:00 am confuses Machiavellian tactics with a despotic strategy:

    Now was that so hard? I was beginning to suspect you capable of justifying any state action on the basis of raison d’etat, but you’ve come back from the brink. Now we can talk sensibly.

    …………..
    Fyodor makes a howler that is very common amongst “ritualistic libertarians”. Although it is true that most (modern) despots are Machiavellian it does not follow that all Machiavellians are despots. Churchill and Roosevelt were good example of the latter (see below).
    Yes it is hard to ask me to assent to Absolute unconditional moral prescriptions (“Torture is Evil.” “Private Property is Sacred.”) – like pulling teeth. They are ahistorical and counter-evolutionary. Perhaps one day such propositions can be validated for all times and places but no-one has managed to pull that feat of yet.
    The pervasive and perpetual reality of evolution makes a mockery of our universal generalisations. Absolutism, whether Randian or Leninist, is ahistorical: moral codes evolve relative to varying conditions of time and place. Adapt to survive.
    Much of political life under conditions of security threat boils down to the choice between competing evils. Goodness then consists in choosing the lesser necessary evil.
    These are truisms alright, but they are fraught with enormous practical implications. In the last Great War Churchill and Roosevelt, the rotten despots, laid waste to cities and formed a pact with the Devil in order to save our skins and our souls. Is Fyodor, now that he is riding his high moral horse, going to morally condemn them too?
    No doubt there are times and places where we can all agree on doing the right thing. We should encourage impulses, and construct institutions, that favour humanitarian (Golden Rule etc).
    But it is facile, and literally “ideo-cratic” [sic], to pretend that we can lay down ideologies that now that will rule us forever. For one thing, as the fossil record shows, human nature changes. Or is Fyodor going to lay down an eternal & universal line on that too?

    the treatment of prisoners at GTMO is wrong in itself and is poor strategy.

    ……….
    The application of martial law is not “wrong in itself” (Absolutism again!). It may be right or wrong according to circumstances. Torture, as things stand, is inappropriate ineffective and unworthy in the GWOT.
    The treatment of prisoners at GTMO appears to have fallen, in some cases, below a fair and reasonable standard given the scale of the threat. But so far, going by the lack of successful Homeland Attacks, GTMO has not failed. The spartan and uncomfortable conditions of a military stockade can wear down an uncooperative inmate. We know that there has been some critical information gleaned there, and in some measure this may be due to its being a harsher martial facility.
    We are at war. Terrorists are warriors (jihadists). Therefore the more humane standards of Anglo civil law are not always and everywhere appropriate.

  43. “We are at war .. [t]herefore the more humane standards of … law are not always and everywhere appropriate.”

    Jack, Stalin could not have phrased this better. All those sordid South American generals always claimed they were at war (well, soldiers everywhere tend to like war – it justifies their jobs. And politicians also like it because humans are very tribal and stop questioning their leaders when told there is another tribe out there).

    As someone else said, I fear a handful of foreign terrorists far less than I do our home-grown politicians and generals. Especially when those politicos and generals start to see virtues in arbitrary detention and even torture …

    But Jack, I should have thought the peculiar combination of malice, lies and incompetence our leaders have displayed on Iraq would have given you some pause before you happily entrusted them with these sorts of powers.

  44. Jack,
    The proof that GTMO has worked can never be that there has not been another attack – that is similar logic to the old joke about pink elephants:
    “Why to you have a sign ‘Pink Elephants, keep away?'”
    “To keep the pink elephants away”
    “There are no pink elephants here!”
    “It’s working, isn’t it”.

  45. “Not bad, Observa. Jeez, me agreeing broadly with you, too? Next thing you’ll be sympathising with the Crows and I’ll be be feeling for the Power. Byron got a bit of a rough spin by the way.”

    Well Don I was cogitating about the ether as to how the object of our moral dilemma could get there until you snapped me back. You’re not insinuating that we don’t have a lot in common are you? Why, I came over all lefty, po-mo, warm n fuzzy when I hit the office after hearing about Byron. As I recall it was like this:

    ‘Get me Williams on the phone.’

    ‘Choko, maaate! What the hell are those racist, culturally oppressive pricks over at the AFL, doing to our boy. Haven’t we got their Reconciliation Officer off his arse, to get Byron off under customary tribal law or something? What about using the elders in the Port Magpies catchment area to get him off? Sorta reconcile em beforehand with some tickets complete with refreshments to the Power’s corporate box eh…?’

    ‘Now, now Observa, you know we would exhaust all avenues in a totally professional manner as always.’

    ‘Yeah… And…?’

    ‘Turns out he’d most likely get a ritual spearing in the thigh….. recovery time about 12 weeks.’

    ‘The Bastards!!!!’ Slam!

    ‘Whatta you smirking at girl………get me a cup of coffee………and make sure it’s in my favourite Power Mug!……..on second thoughts, get back here and take a memo….Subject, Occupational Health and Safety……Attention all staff….nah scratch that, not warm enough for the union rep……….Dear people, As you know management is always concerned about your welfare and in particular the possibility of a health risk with cross contamination of dishes and the like in the smoko room. Now, it has come to management’s attention that there are a plethora of identical crows mugs in the smoko room, probably riddled with bacteria…….’

    Well Don, if that isn’t concern for your fellow man then I’ll eat my Footy Park membership ticket. We business types aren’t just all about balance sheets and bottom lines you know.

  46. Andrew Reynolds — 24/2/2005 @ 11:22 pm in a revealing insight into the Wet mind, constructs an analogy relating imaginary to actual beasts:

    “There are no pink elephants here!�


    So Andrew Reynolds equates terrorists to Pink Elephants. Tell that to the maimed and mutilated survivors of Bali.

  47. derrida derider — 24/2/2005 @ 9:17 pm, on queue, committs the classic Wet howler :

    Jack, Stalin could not have phrased this better. All those sordid South American generals always claimed they were at war (well, soldiers everywhere tend to like war – it justifies their jobs. And politicians also like it because humans are very tribal and stop questioning their leaders when told there is another tribe out there).

    …………..
    The Howler goes as follows: “Although it is true that most (modern) despots are Machiavellian martialists it does not follow that all Machiavellian martialists are despots.” (See Comment #93 above.)
    No doubt Stalins, Latin dictators and common demagogues have always used bogus conflict to wrap themselves around the flag. But civil statesmen faced with real threats, who are serious about winning, have also resorted to martial jurisprudence and martial laws when in the midst of a war. Is derrider et al saying that these statesmen were illegitimate use of powers when using extra-ordinary powers (not to mention the “Bodyguard of Lies” and other necessary evils that went with many of our wars).
    Horses for courses. Terrorists are warriors. A limited application of martial, rather than civil, law is appropriate in dealing with them.

    But Jack, I should have thought the peculiar combination of malice, lies and incompetence our leaders have displayed on Iraq would have given you some pause before you happily entrusted them with these sorts of powers.

    …………
    Iraq-attack was based on lies and implemented on blunders alright, even I know that. But GTMO was estabished after Afghan-attack which was not based on lies and was not blundered. So I was, and am fine, with it in principle.
    Of course since then the US admin have gone overboard with some interrogation policies. So derrider has a point, this US admin is prone to stuff things up.
    And now the over-lawyeres and ethnic lobbyists have now turned it into a cause celebre. So, in practice, GTMO is probably more political trouble than its worth. But the martial principle underlying it is valid, and that is what I am concerned to defend.

  48. Nice, Jack, nice. WTF does that have to do with GTMO? Most of the prisoners from the Afghanistan war had been at GTMO for close to a year by the time the Bali Bombing occurred. Are you suggesting that if they’d been held longer it wouldn’t have happened? The alternative explanation – that detention on GTMO had no effect on global terrorist activity – is probably closer to the mark.

    It was a cheap shot, even by your usual standards.

  49. “But GTMO was estabished after Afghan-attack which was not based on lies and was not blundered. So I was, and am fine, with it in principle. Of course since then the US admin have gone overboard with some interrogation policies. So derrider has a point, this US admin is prone to stuff things up.
    And now the over-lawyeres and ethnic lobbyists have now turned it into a cause celebre. So, in practice, GTMO is probably more political trouble than its worth. But the martial principle underlying it is valid, and that is what I am concerned to defend. ”

    You really are a buffoon, Jack. Martial law is NOT a carte blanche to arbitrary statism, at least in the West. The US has very specific constraints on the application of martial law, and the US government has been found by the Supreme Court to have acted illegally in the case of GTMO.

    That is all you have to know to understand that the cant you’re spouting is total bullshit.

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