Sometimes, watching this circus of the Obama administration, you just have to shake your head and laugh a bit, even if the laughter is rueful:
The Obama administration is moving toward reviving the military commission system for prosecuting Guantánamo detainees, which was a target of critics during the Bush administration, including Mr. Obama himself.
Officials said the first public moves could come as soon as next week, perhaps in filings to military judges at the United States naval base at Guantánamo Bay, Cuba, outlining an administration plan to amend the Bush administration’s system to provide more legal protections for terrorism suspects.
Continuing the military commissions in any form would probably prompt sharp criticism from human rights groups as well as some of Mr. Obama’s political allies because the troubled system became an emblem of the effort to use Guantánamo to avoid the American legal system.
The more this crew gets into the weeds concerning Gitmo, the more they seem to validate all the moves Bush made.
I’m sure it’s a bit maddening for them.
Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies.
That was the Bush administration argument for some time. Congress passed legislation to enable it, the SCOTUS shot it down and told them how to fix it and Congress did, only to see SCOTUS change its mind and shoot it down again.
And, of course, that made it very easy to denounce from the campaign trail. But now the reality of governing intrudes:
Obama administration officials — and Mr. Obama himself — have said in the past that they were not ruling out prosecutions in the military commission system. But senior officials have emphasized that they prefer to prosecute terrorism suspects in existing American courts. When President Obama suspended Guantánamo cases after his inauguration on Jan. 20, many participants said the military commission system appeared dead.
But in recent days a variety of officials involved in the deliberations say that after administration lawyers examined many of the cases, the mood shifted toward using military commissions to prosecute some detainees, perhaps including those charged with coordinating the Sept. 11 attacks.
“The more they look at it,” said one official, “the more commissions don’t look as bad as they did on Jan. 20.”
Heh … what a surprise.
Administration officials said Friday that some detainees would be prosecuted in federal courts and noted that Mr. Obama had always left open the possibility of using military commissions.
… is pure and unadulterated BS.
Still, during the presidential campaign Mr. Obama criticized the commissions, saying that “by any measure our system of trying detainees has been an enormous failure,” and declaring that as president he would “reject the Military Commissions Act.”
But according to both Sec. Gates and AG Holder, military commissions are still very much on the table, because, as Holder said:
“It may be difficult for some of those high-value detainees to be tried in a normal federal court.”
Gee — I wonder who else’s administration said that?
And while we’re at it, let’s close the War Colleges as well.
That’s the prescription the Washington Post’s Thomas Ricks puts out today as a great way to save federal funds. Why is it the ideas these guy’s come up with to trim the federal budget are always aimed at the military and never at entitlements and the like.
Anyway, here’s what Ricks proposes:
Want to trim the federal budget and improve the military at the same time? Shut down West Point, Annapolis and the Air Force Academy, and use some of the savings to expand ROTC scholarships.
After covering the U.S. military for nearly two decades, I’ve concluded that graduates of the service academies don’t stand out compared to other officers. Yet producing them is more than twice as expensive as taking in graduates of civilian schools ($300,000 per West Point product vs. $130,000 for ROTC student). On top of the economic advantage, I’ve been told by some commanders that they prefer officers who come out of ROTC programs, because they tend to be better educated and less cynical about the military.
Now, I’ll admit it’s been a while but I’m sure the dynamic is pretty much the same now as it was when I was in.
I was an ROTC grad. Anyone who believes I was as well prepared as a West Point grad to function at the same level as them doesn’t know what they’re talking about. In today’s parlance, the West Pointers were “shovel ready” while most of us ROTC grads hadn’t even begun the bid process yet.
Of course I’m talking about my initial entry into the Army as a 2LT (of course our NCOs thought none of us were worth a crap). I had a good idea of what to expect, what was expected of me and what I’d experience, but I was far behind my West Point peers in real actual experience.
In fact, as I observed it, at company grade (the ranks 2LT, 1LT and CPT are considered “company grade” ranks), the West Point grad and the OCS grad were usually the best officers (and with obvious exceptions, I felt most of the OCS grads were a touch better than the WP guys) while the ROTC guys were playing catch-up. Around the 5 year mark, at the rank of CPT, everyone was pretty much even.
Again, these are my observations, but as we moved into the field grade ranks (the ranks MAJ, LTC and COL are “field grade” ranks), the ROTC and West Pointers began to pull away from the OCS grads. However, at both levels, West Pointers were right there among the best because they’d been taught and taught pretty well to function at both levels.
So I don’t buy this fellow’s two-year informal study at all.
I mean think about it – I went to one drill a week, not a number off them daily. And, in advanced ROTC, I went to ROTC classes three times a week. If you believe that schedule can compete with 4 years of being steeped in the military culture, visiting various military posts and schools, lectures from leaders in your field and having real, actual leadership and command responsibility during that time, then I’ve got a bridge in Brooklyn in which you’d be interested. Not even close.
Ricks’ tries the usual academic elitist argument as well:
They remind me of the best of the Ivy League, but too often they’re getting community-college educations. Although West Point’s history and social science departments provided much intellectual firepower in rethinking the U.S. approach to Iraq, most of West Point’s faculty lacks doctorates.
Of course, as regulars here have had the opportunity to discover, PhD’s aren’t all they’re cracked up to be as the one who roams the comment section here demonstrates almost daily. Obviously the “intellectual firepower” Ricks notes would seem to be a fairly important to a school of that type. I don’t remember any of the schools with ROTC adding to that process of rethinking our strategy in Iraq.
That’s because you’ll find some of our finest military minds teaching at West Point. They’re also immersed in a culture that inspires and promotes that sort of thinking. What they bring to those schools can’t be bestowed by any sheepskin. Many of them are serving officers who come from a stint in the field to the classroom where they bring a freshness to their teaching which is utterly unlike the stale academic atmosphere found in most traditional institutions of higher learning.
Lastly, the comparison to a community college education is pretty ignorant because it ignores the purpose of the service academies. They do what they are there to do and do it well. And I have never heard an academy grad complain about his or her education. Their ability to earn advanced degrees at elite civilian universities seems to argue that it is much more than the level of a community college (unless we now have community college grands routinely headed to Harvard, Yale and Princeton as WP grads do).
I’d apply the same arguments to the War colleges. They’re there to serve a part of a very important process – to provide the transition from field command to higher command and staff positions involving policy, strategy and international relations for the brightest and best. They’re very selective. They also provide the next generation of the nation’s senior leaders the opportunity to begin networking among those with whom they’ll most likely be serving as general officers.
So, as you might imagine, I find Ricks conclusions based in some fairly poor assumptions based in conversations instead of any real experience. Not that such conclusions are surprising anymore – we’re no longer strangers to journalists who think a couple of years and a couple of conversations somehow bestow a depth of knowledge about a subject which is simply irrefutable.
Personally, I’d much rather Ricks take a look at the massive waste to be found in most of the rest federal government’s spending and tell us why it’s involved in programs that build museums for Liberace, bailing out failing car companies, or paying to research the mating habit of wombats, or sea slugs, or whatever.
Who knows, he might actually know something about those subjects. If we’ve got to get rid of something, I personally think this is a good idea.
I have to admit to some surprise in seeing Michael’s post on torture below. QandO has been pretty much opposed to the use of torture, and we’ve taken some heat for it every time the subject has come up. But, once you open up a libertarian blog to others to write for it, and tell them to feel free to write their own opinions without prejudice or favor, then, before you know it, they go off getting ideas of their own, disagreeing with you, and generally acting with an outrageous sense of independence.
What’re you gonna do?
I understand the attraction of torture, both on utilitarian grounds, and in terms of what I will call “emotional reciprocity”, so I won’t re-cover Michael’s arguments, tendered, as they are, more inquisitively than asseveratively.
When I speak of “torture”, I want to be sure that we all have the same thing in mind when I use the word. So I will define it here as the intentional application of physical pain, accompanied by the possibility of permanent injury, scarring, derangement, or death. This will, I think, encompass the entire spectrum pf physical discomfort comfort from beatings to anything else more severe. I specifically reject a definition of torture that includes psychological pressure, such as putting a particularly nasty-looking beetle in the cell of a prisoner who’s afraid of bugs. I also reject questioning methods as sleep deprivation for a couple of days, or discomfort from keeping the air conditioning too low as torture. These things might be unpleasant, but they are not physically or mentally harmful in any significant sense.
It’s possible to construct any number of scenarios in which torture is acceptable–perhaps even moral. But that doesn’t negate the general rule that torture is, in fact, wrong.To continue, I would then proceed to the question, “Is torture always wrong?” Well, that’s a silly formulation of the question. In every human action, context matters. I think there is general agreement that lying is generally wrong, yet if a terrified woman approaches us and pleads for us to hide her from a crazed stalker who intends to kill her, I think there is also general agreement that if the stalker subsequently approaches us, we would have a positive moral duty to lie to the stalker and deny any knowledge of her whereabouts. There might also be general agreement that lying has a social purpose at times, in the sense that the answer to the question “Does this dress make me look fat?” is pretty much always, “No.”
In light of the above, it’s possible, then, to construct any number of scenarios in which torture is acceptable–perhaps even moral. But that doesn’t negate the general rule that torture is, in fact, wrong, in the widest range of circumstances. If we actually believe in all that stuff about “inalienable rights”, then certainly the right not to have hot needles shoved under our nails is one of them.
Beyond that, however, we enter a terrifically complicated area, when we begin to discuss giving the government the power to have recourse to torture as a matter of policy. As a practical matter, it is nearly impossible to construct a system in which any official sanction to torture will not inevitably spiral out of control. Once a set of rules is in place–any set of rules–there will inevitably be torture imposed on anyone on whom an official wishes to impose it. Officials will ensure that the rules will apply to the persons they wish to torture. Sure, the guy may look like an innocent Kabul taxi driver, but there will always be an official who “knows” better, and who will ensure that all the proper boxes are checked before the flensing knives are brought out.
We have elaborate rules, for instance, covering the issuance of search warrants, and severe criminal and civil sanctions for their abuse, yet, oddly enough, police agencies fairly routinely deliver no-knock drug warrants on innocent homeowners, which, not infrequently, result in homeowners or policemen getting shot. Or in the case of 90 year-old Kathryn Johnson in Atlanta several months ago, police just ignore those rules, and seek to provide creative ex post facto justifications. In that case, of course, we learned that such actions were not at all uncommon in portions of the Atlanta PD.
It is nearly impossible to construct a system in which any official sanction to torture will not inevitably spiral out of control.Providing legal sanction to use torture invites similar overzealousness on the part of officials. Moreover, if the government can point to some cases of torture’s utility, the pressure to increase the range of acceptable subjects will inevitably increase–just as the drug war has increased the incidence of no-knock warrants being issued to “take down” non-violent drug offenders. And, frankly, we haven’t done a very good job of guarding the slippery slope in these and similar areas of government activity.
That doesn’t make me sanguine about giving the government the legal sanction to engage in torture, especially in an environment where heathen foreigners will be on the receiving end of it, and their redress in case of mistakes are…limited. That seems to me to have all the element necessary for an unconscionable abuse of power.
Now, let’s look at the question of whether torture works. That answer to that is, yes, but not reliably. There are a number of celebrated cases in World War II where French or Yugoslav partisans were captured by the Germans, turned over to the Gestapo, and essentially tortured to death without telling the Germans anything. We also have, conversely, literally thousands of “confessions” of witchcraft during the Inquisition, extracted under torture.
What does that tell us? Well, nothing really that we didn’t already know, which is that if you wish to get a suspect to talk, 220 volts to the genitals will probably work better than a medium-rare steak au poivre with shallots, and a robust glass of Côte de Nuits.
Whether the subject can be relied upon to tell you the truth, or just what he thinks you want to hear, is more problematic. Torture can work–by which I mean you can receive reliable information from it– through the following iterative process:
1) The subject can be induced to talk through physical pain. You can eventually get someone to tell you something, if enough torture is applied. To ensure that something is useful,
2) You must be able to verify the subject’s information in whole, and provide…correction if any part of the subject’s statement appears to be untrue.
You must be able to repeat the above steps until the subject is convinced of your ability to verify his statements and punish evasions or subterfuges. This can, needless to say, become an elaborate process. If you can’t go through the process, then you don’t really know if you’re getting reliable information from it, or if the subject is shining you on to obtain relief. Perhaps he’s telling you the truth. Perhaps he’s just getting you to look askance at an innocent taxi driver in Kabul.
Moreover, if it really is ineffectual, why does it continue to happen? Clearly, somebody somewhere is getting results.
Two things come to mind.
First, the vast majority of torture use, both historically, and in the modern world among those regimes that use it, is directed to obtaining confessions of guilt from criminal suspects. It comes as no surprise that it’s highly effective at obtaining them. Again, I refer to the Inquisition, where the possibility of death at some unspecified future date became more attractive than than the prospect of a continuance on the rack in the present case.
Second, as I wrote previously, torture does provide more information than would be obtained by abstaining from it. One wonders, however, how much of that information is actually reliable, as opposed to how much of that information is beleived to be reliable by officials. Or simply politically convenient. Those two latter things may not, in fact, be the same as the former.
Finally, the question arises, “who do we torture?” Certainly, every real terror suspect has some knowledge that can be useful. Do we get to torture all of them? Most of the justifications I’ve seen would give us the option to torture someone in a ticking bomb scenario. Which sounds nice…if you actually know there’s a ticking bomb. In the normal scheme of things, though, you really need to torture people to find out if a ticking bomb exists, not to figure out where it is.
The vast majority of torture use among those regimes that use it, is directed to obtaining confessions of guilt from criminal suspects. It comes as no surprise that it’s highly effective at obtaining them.Or do we just torture the higher-ups in the terrorist movement, as a sort of fishing expedition? This is, I gather, the justification for the interrogation techniques used on some of the al Qaeda biggies. We thought they were up to something, and we used harsh interrogation to find out what they knew.
The most interesting thing about that is that we didn’t have to brand these guys with hot pokers to get them to give it up. These guys apparently have little resistance. Threaten to open a box of StayFree® Maxi-Pads in front of them, and they sing like superstars. So maybe we got lucky in that some of these guys were easy marks.
But, as the Gestapo experience of WWII shows, sometimes, people will let you torture them to death without telling you anything. Even in Vietnam, our POWs in Hanoi would resist real, actual torture for extended periods before giving up a “confession” to their captors.
But I digress.
Either you are going to define the torture-liable population so broadly, that officials will pretty much have a license to torture, or so narrowly that, as a practical matter, you’ll never use it. If the former, you’ve got a slippery slope problem, if the latter, it’s not useful enough to even worry about sanctioning it, rather than just worrying about it on an ad hoc basis.
Jonah Goldberg has written often about the unwritten law, vs. the written law. Fifty years ago, it was against the law for the police to dispense street justice. In practice, the beat cop, who walked the same neighborhood day after day and who knew the residents, would occasionally rough up some troublemakers pour encourager les autres, and in so doing, kept the peace on his block. It wasn’t legally sanctioned, but it worked–and the cop knew that when he did it, he was risking at least his career, if it became a problem.
For a variety of reasons discussed above, as well as other, more prudential reasons in terms of the country’s image, and diplomatic reputation, I’d prefer never to see torture be enshrined in the written law.
I’ve noted before that, when I was on active duty, if I’d ever been faced with getting caught behind enemy lines in a Soviet attack in Europe, I would like to have the option of capturing a Russian officer, and finding out how to get back to our lines. And, if I had to hook up a field telephone, and make a collect call to his genitals, I’d do it without blinking, if that’s what it took to get my guys back home alive.
I wouldn’t brag about it, or mention it to anyone in responsible authority later, but if I got found out, I’d expect to take the Court-Martial. And, as long as I’d gotten my guys out, I’d have been happy to do it.
Necessity, it’s often said, knows no law. But the law shouldn’t explicitly bow to necessity. I would rather have it understood that any torture inflicted is done without sanction, and the official authorizing the torture may be in danger of serious sanctions if he uses it.
It’s probably not the best solution. But, on balance, I think it’s a better solution than giving the government explicit permission to conduct torture however they see fit. Torture is problematic for a number of reasons, and the ethics of engaging in it are, at the very least, difficult to parse. And, as Michael should well know, “hard cases make bad law”.
UPDATE [McQ]: What Dale said.
Paralleling the song, the answer should be “absolutely nothing” with a testosterone laced “Huhn!” thrown in for good measure. Personally, I have my doubts.
This is not a new topic here at QandO, as my esteemed brethren have weighed in on numerous occasions, each time settling on an emphatic “No! Torture is not acceptable.” While it would be difficult, if not impossible, to put into words the esteem that I hold for my blog brothers, I have to say that I disagree. That may be because I have never been in the military, nor been subjected to anything close to the sort of forced life-or-death decision making that breeds a camaraderie distinct unto itself. And it may be because I have the luxury (thanks to said camaraderie) to simply ponder these things at my leisure. Just the same, I cannot say that I am opposed to torture of our nation’s enemies, nor can I honestly say that any experience will change my opinion.
First, the reason I even broach the subject: release of “secret torture memos” (link added):
President Barack Obama’s administration said it would Thursday release four memos, with sections blacked out, covering the Bush administration’s justification for CIA interrogations of terror suspects … The memos were authored by Jay Bybee and Steven Bradbury, who at the time were lawyers for the then-president George W. Bush’s Justice Department Office of Legal Counsel.
The memos provided the legal framework for a program of interrogations of “war on terror” detainees that included techniques widely regarded as torture such as waterboarding, in which a detainee is made to feel like he is drowning.
I have not read the memos, and I probably won’t. The sole reason being that I’ve slogged through enough of these legal documents to have a pretty good idea of what’s in there, and to know that there is plenty of qualifying language to mitigate whatever damning quotes are eventually culled therefrom. In point of fact, these “memos” are little more than legal research projects specifically drafted so as to provide both the underlying judicial framework for the issue at hand, and the best guess at how the current policy might fit into that framework under certain factual parameters. They are merely legalese for “this is what the law says, and this is how the policy may not run afoul of that law.”
Leaving aside definitional problems (does being confined with an insect constitute “torture”?), let’s just assume that what the memos described was not only policy, but a policy that was carried out. Why is that a bad thing?
Tom Maguire provides some thoughts:
IN OUR NAME: The newly released torture memos are cold-blooded and clearly client-driven – the lawyers knew the answers they wanted and reasoned backwards. Quick thoughts:
1. The US concern about actually harming someone comes through on every page. In fact, at one point (p. 36 of .pdf) the legal team wonders whether it would be illegal for the interrogators to threaten or imply that conditions for the prisoner could get even worse unless they cooperate. I suppose these memos will provide welcome reassurance of our underlying civility to both the world community and the terrorists in it.
2. There are some fascinating legal gymnastics on display. My favorite might be on p. 39, where we learn that Article 16 of the Geneva Convention does not apply because the CIA is operating in areas not under US jurisdiction. Nor do the protections of the US Constitution extend to aliens being held prisoner under US control but abroad outside of US jurisdiction.
However, another contender for the “It Would Take A Lawyer To Think Of This” prize is the argument that waterboarding does not constitute a threat of imminent death because, even though the prisoner thinks they are drowning, they are not, and anyway, the mental effect is transitory and does not result in long term mental harm – call it the “Psych!” defense. (The absence of long term harm comes from the experience of US sailors and soldiers passing through SERE school in the service of their country; whether a jihadist waterboarded by the Great Satan would also rebound psychologically is not explored here). I would think that a game of Russian Roulette played with a fake bullet might pass all these requirements other than the SERE experience.
Tom’s comparison to Russian Roulette intrigues me because I think it is the perfect analogy. I’ve written before that, in my opinion, waterboarding crosses the legal line because of the way the law is written. I’ve never been convinced that the technique crosses any moral boundary because I’m not so sure that it’s any different than placing a caterpillar in the same cell as a man who’s deathly afraid of caterpillars. Playing on the mind’s fears is part and parcel of both manipulation and torture, but does not mean that the two are equivalent. Morally speaking, therefore, I have doubts that techniques akin to waterboarding amount to “torture” per se.
But assuming that they do, again, what exactly is the problem? Aficionados of the subject will say that torture is ineffectual. Yet, Khalid Shaikh Mohammed would appear to be a test case in contrast to that wisdom, as would the fact that our own soldiers are routinely informed that “everyone breaks eventually.” Moreover, if it really is ineffectual, why does it continue to happen? Clearly, somebody somewhere is getting results.
Even leaving aside the efficacy vel non of torture, does it hold such moral deficiency as to abandon it altogether? Here I plead ignorance because, in my mind, I view enemies to my country as enemies to my family. By that I mean, if anyone were to hurt, or even threaten to hurt, a member of my family, I can’t even begin to express the unholy hell I would visit upon such a cretin. When I view A Time To Kill I can’t help but think that that the murderous, rapist scum got off too lightly (which, of course, was the point of Grisham’s characterization). Other than the fear of anything nefarious happening to my children, my greatest fear is of what I would try to do to those who hurt them or even suggested that they might do so. I have the same feeling when it comes to anyone who seeks to destroy my country and her citizens with whom I’ve (gratefully) cast my lot. My morality directs me to say that what any of you visit upon the least of my fellow countrymen, I will repay you a thousandfold and more. That may be my Irish bravado speaking, but it speaks as honestly as any man possibly can.
So I am left with the conundrum of how my actions in response to an attack on my family should be any different than an attack on my country, and why I should feel any differently about the perpetrators of such actions, whether they have followed through with their plans or not. I understand that my response — i.e. the sanctioning of “torture” — may not be entirely rational. Indeed, if a firetruck runs over my child while rushing to save an orphanage, I would feel no less grief, and probably wish an equal amount of horror upon the transgressors as I would upon 19 hijackers who murdered 3,000 of of my fellow citizens. In fact, probably more. There is nothing particularly rational in such a response. But I have little confidence that, should I have the chance to avoid either disaster, I would refrain from running the perpetrators’ minds through a psychological cheese grater if there was even a small chance that the disaster could be avoided. That may be little more than a testament to my weakness as a moral human being, but I think that I’m not alone.
Torture, however defined, is not a pretty thing. I make no bones about having zero regard for my enemies (i.e. those who want to destroy my country a la 9/11). If subjecting them to extreme psychological and/or physical discomfort, or the threat of such, will prevent further attacks, then I confess that I am happy to reward those monsters with the penalty they richly deserve. I accept that I may be wrong in such thinking, but I don’t find that case has been successfully made as of yet. Indeed, I defy you to take this test and declare that “torture” can never be acceptable.
The ultimate point is, torture is a horrible thing and should be avoided if at all humanly possible. But, unfortunately, we live in a world where the “humanly possible” has limits. In those cases, why is it that torture should be off limits? Is there a rational reason? I’m willing to be convinced, but I have my doubts.
If you look at the big picture, you realize that the pirates off the Somali coast are more of a nuisance than a problem. Estimates are that 25,000 to 30,000 ships per year transit the Gulf of Aden (headed for the Suez Canal) or the east coast of Somalia. The bulk, of course, go through Suez. The successful hijackings over a multi-year period have been very low in comparison. In 2007, for instance, there were 12 successful hijackings.
The area of ocean in which these events take place cover approximately a million square miles. Here’s a great map (pdf) which shows the areas and the incidents through 2007. Obviously the pirates can pick and choose where to strike while the navies of the world can only react and hope they are close enough to prevent the hijacking. That was demonstrated quite clearly in the latest hijacking of the US ship in which Capt. Phillips was taken hostage. It took hours for the USS Bainbridge to arrive on scene and the rescue was only effected because the skiffs the pirates had used had been destroyed and they were forced to use a lifeboat.
20 countries are now concentrating naval assets within the area, most concentrated in the Gulf of Aden. A coalition of nations commanded by a US admiral constitute Task Force 151 which is strictly an anti-piracy task force. TF 151 operates in the Gulf. China and Russia have also committed naval assets to the task but do so outside TF 151. They coordinate with the TF but only escort their country’s flagged ships.
With the amount of traffic which transits the area, it is obvious that no navy has the assets to escort all of the ships.
But there is a tool through which the TF can coordinate its efforts and ensure those ships which are most likely to be attacked have a safe passage. One of those tools is a website. There vessels transiting the area can register their vessel and alert the TF of their time of arrival in the area in which hijacking is most likely. There are also tips for the masters of vessels transiting the area, maritime intelligence reports and alerts.
Obviously with that number of ships transiting the area, some are more susceptable to attack than others. What type of ship are the pirates looking for? According to Admiral Terry McKnight, (pdf) the TF 151 commander, they’re looking for ships traveling under 15 knots and with a low freeboard with aids boarding. As Adm. McKnight says, those sorts of ships seem to scream “pirate, me, pirate me”. If the TF knows ships which fit this template are going to be transiting the region, they can arrange to group them with other ships, track their movement and arrange for that movement at a time when the pirates are less likely to be out hunting.
The pirates have also adapted their tactics, especially off the eastern shore in the Indian Ocean. As shipping has moved further and further off shore to avoid the skiffs employed to board them, the pirates began using “mother ships”. Those are larger ships which carry a number of skiffs and 10 to 20 pirates. This enabled the pirates to go further and further off shore to attack shipping.
As you’ll note on the map linked above, there are three major areas on the eastern shore (to include Mogadishu) where the pirates seem to be concentrated, one on the tip of the Horn of Africa and one on the north shore of Somalia on the Gulf of Aden. Admiral McKnight said that “99.99 percent” of the pirates they’ve run across have been exclusively Somali.
The question, however, is would a land-based military mission which attacked these centers of piracy successfully end the attempted hijackings?
In my opinion, probably not. To date the risk to reward has been so low that there is a seemingly endless supply of would-be pirates. And, as long as shipping companies are willing to pay the ransom when one of their ships is hijacked, it will, in relative terms, remain a fairly low-risk way of making huge sums of money. Shipping companies know the numbers and recognize that the real chance of hijacking is very low, relatively speaking, and seem to prefer to pay off the hijackers if their ship ends up hijacked. And, of course, they’re all insured, so that is also part of the equation.
While we may clean out the nests of pirates for a short time if we mount a military operation, I find it hard to believe that others won’t step in, adapt to the new reality (perhaps by moving their base of operations frequently) and again head out into the Gulf or Indian Ocean in search of easy prey.
Punitive military operations may be satisfying in some way but in reality I would think their effect would be a very short term one. Just like war against insurgents, war against the pirates will see a constant adaptation by the pirates to any tactics the military might use. But this isn’t a military problem – it is a failed state problem. The problems ashore – a failed government, abject poverty, and few choices for gainful and legal employment – are what must be solved if we hope to see piracy in that area defeated. Until they are solved, there will be plenty of eager replacements for whatever casualties we might inflict on the current pirates, and the attacks on shipping will continue.
Meanwhile, what can be done to make attacks on the high seas less likely? Well the obvious way is to arm the merchantmen. But for various and sundry reasons, most shipping companies don’t want to do that. They range from liability concerns, to concerns about essentially untrained crewman with weapons to concerns about gun laws in the various countries the ships go. We know there aren’t enough naval ships to escort each merchant ship, so options are limited. Some merchantmen have armed their ships with high-pressure water cannons which have succesfully thwarted a few pirate attacks.
What I expect to see offered soon, perhaps by Blackwater, now known as Xe, is rent-a-gun teams. For those that want them, a team is air-lifted to the ship as it enters the pirate zone and taken back off by air as they successfully exit the zone. I’m sure there are some legal and liability concerns there as well, but it may be one of those times when showing up at the rail and pointing a few automatic weapons at a very vulnerable skiff below you would be enough to disuade the would be pirates from attempting to board.
Food for thought.
Anne Scott Tyson, at the Washington Post, seems to have the low-down on how the mission to rescue Captain Phillips went down.
The pirates apparently were growing increasingly agitated with the situation and were making threats when they made a fatal mistake and gave SEAL snipers 3 targets at once. Feeling that Captain Phillips life was in imminent danger, the on-scene commander called the shot and the snipers took all three of the pirates out.
Okay and well done. But there seems to be a whole bunch of spin on both sides as to what role Obama played. The left seems bound and determined to spin this as some sort of “military victory” which proves Obama has stones of steel and the right seems equally as determined to deny him any credit for the rescue, claiming it was the “on-scene commander” who made the decision.
Look – Obama was most likely briefed and asked for the go ahead to use both the military and lethal force if the situation called for it. He gave his approval for both. I doubt he tried to tell them what tactics to use or how to carry out the rescue. Instead he allowed those on the scene to make that determination. His concern was Phillips and resolving that situation in a way that the captain was rescued unharmed. By approving the use of lethal force, he made it clear he had no concern for the final disposition of the pirates and placed no constraints on the military in that regard, assuming the main mission – rescuing Phillips unharmed – was accomplished.
Great – that’s what he should have done.
But a “military victory”? It was a hostage situation – albeit on the high seas with lots of drama. But at its foundation, it was no different than a situation the local sheriff finds himself in with a domestic disturbance gone bad and hostages held in a house. The reason the national command authority and the military were involved at all is because the situation developed on the high seas in international waters. But at base, it was a run-of-the-mill hostage situation that law enforcement deals with routinely without presidential input.
So? So Obama did the right thing (at the right level of visibility) and so did the military. The situation was resolved. To the right – Obama did a good job. Get over it and understand that it wasn’t his job to “call the shot.” He gave the on-scene commander, through his authorization to use deadly force, the latitude to make that call himself without seeking further permission.
To the left – this was no more a “military victory” than was Ruby Ridge or Waco. Quit trying to make it more than it is. If you think popping 3 rag-tag pirates is going to be interpreted by Iran or North Korea as a demonstration of our military might, you’re dreaming. Obviously, had it gone bad, it would have reflected badly on the US. However it didn’t (thankfully). But it proves nothing more than in the situation presented – a hostage situation – we were able to resolve it to our advantage. That’s good and it reflects well on us. But a “military victory”? For heaven sake, get a clue.
Some form of strange aquatic life, not native to the coast of Somalia, helped Captain Richard Phillips escape his pirate captives. He’s now safe aboard the USS Bainbridge.
The pirates? Not so good:
The American captain of a cargo ship held hostage by pirates jumped overboard from the lifeboat where he was being held, and U.S. Navy SEALs shot and killed three of his four captors, according to a senior U.S. official with knowledge of the situation.
You knew it was coming – you just wondered when.
My guess is remaining pirates will now immediately go to remedial flag identification class and learn the difference between the US flag and the flag of Panama.
Pirates, operating off the coast of Somalia, have grabbed an American flagged ship. Although they’re rare, it’s just not a good idea to grab American flagged ships because it is likely to bring a response that for which the pirates aren’t looking. I.e., a crew that fights back, and every available American military vessel in the area.
As it turns out the pirates grabbed the Masersk Alabama off the eastern coast of Somalia yesterday. That’s below the Horn of Africa since the Gulf of Aden, their previous hunting grounds, has been pretty effectively policed by TF-151 – a coalition of 12 navies.
It is assumed, since the attack on the Alabama occurred 350 miles off the coast of Somalia, that the pirates came from a “mother ship”, a larger ship from which they launch their attacks in the small, swift skiffs they use.
The pirates grabbed the Alabama early in the morning but by afternoon, the crew had retaken the ship. All except the captain who the pirates somehow kept in their custody. Apparently they negotiated with the crew for a pirate the crew had captured and agreed to an exchange. But the pirates didn’t keep their side of the bargain and kept the captain while the crew gave up the pirate.
The pirates and captain are now, apparently sitting in a lifeboat near the ship, negotiating with the crew. On site are the destroyer USS Bainbridge and some air assets.
My guess is this will go on a couple more days with the military content to let it continue as long as they don’t threaten to kill the captain or try to move out of the area. In the meantime they’ll gather as much intel as they can and formulate a plan to retake the captive.
Lesson to pirates? When they see that flag with a blue field full of stars and red and white stripes below it – let it pass. Not worth the effort. They don’t play patsy like the others do.
Oh – and too those trying to make this a presidential level “crisis”, it’s not unless he injects himself into it (and I don’t think he will). If the Pentagon needs guidance or permission for something, they’ll ask. Otherwise they should keep the administration informed and be left to do their job (here’s an interesting rundown of the last US ships taken in international waters and the reaction of three different presidents).
However, one has to wonder if the seizure of a US flagged ship might not increase calls for this:
Retired U.S. Ambassador Robert Oakley, who was special envoy to Somalia in the 1990s, said U.S. special operations forces have drawn up detailed plans to attack piracy groups where they live on land, but are awaiting orders from the Obama national security team.
“Our special operations people have been itching to clean them up. So far, no one has let them,” Oakley told the Daily News.
The veteran diplomat, who also was ambassador to Pakistan, said teams of Army Delta Force or Navy SEALs “could take care of the pirates in 72 hours” if given the order to strike.
“They have plans on the table but are waiting for the green light,” Oakley said.
A Special Operations Command spokesman at McDill Air Force Base in Tampa, Fla., declined comment.
A U.S. intelligence official, though dismissive of the pirates having any terrorism links, said “there is a more intense focus” now on these criminal gangs.
We’ll see. What concerns me about this is the administration may see this as a relatively cheap opportunity to demonstrate its willingness to use military force to protect American interests. Piracy, while a pain in the rear, is not such a threat that it requires that level of a response (of the 33,000 ships that transit the Gulf of Aden, less that 1% are hijacked).
I was wondering if this would happen:
The top U.S. commander in Iraq, Gen. Ray Odierno, met Obama shortly after Air Force One landed in Baghdad about 4:42 p.m. local time (9:42 a.m. ET).
Obama chose to visit Iraq rather than Afghanistan because of its proximity to Turkey, which Obama just visited, said Robert Gibbs, the president’s spokesman.
In addition, Obama wanted to discuss Iraq’s political situation with Iraqi Prime Minister Nouri al-Maliki and Iraqi President Jalal Talibani, Gibbs said.
Mostly, however, the stop is about Obama visiting troops, he said.
Good – a tip of the cap. This is important and I’m glad to see President Obama made time to see the troops. We can get all cynical about a lot of things, but I, for one, appreciate the effort and the gesture.
A federal judge ruled on Thursday that prisoners in the war on terror can use U.S. civilian courts to challenge their detention at a military air base in Afghanistan.
U.S. District Judge John Bates turned down the United States’ motion to deny the right to three foreign detainees at Bagram Airfield in Afghanistan.
The U.S. Supreme Court ruled last year that detainees at Guantanamo Bay, Cuba, have the right to challenge their detention in court. But the government had argued that it did not apply to those in Afghanistan.
Bates said the cases were essentially the same and he quoted the Supreme Court ruling repeatedly in his judgment and applied the test created by it to each detainee. It is the first time a federal judge has applied the ruling to detainees in Afghanistan.
Similarly, extending habeas corpus rights to prisoners detained on the battlefield is an exercise in futility. Of course, that ship sailed with the ruling in Boumediene v. Bush. I’m not sure what argument the government could make that any prisoners under the control of the U.S., regardless of where they are being held, are not entitled to some sort of habeas proceeding. And since the very procedures deemed constitutionally valid by the Supreme Court in Hamdi were struck down as inadequate in Boumediene, I don’t know what options are actually left to the Obama administration other than the unsavory prospect of field executions.
Barring a contrary ruling from the Supreme Court, I think this most recent case proves the point.
But, Ed Morrissey seems to think the Bates’ decision does much more. Where he (reasonably) finds that the foregoing is an unconstitutional interjection of the judiciary into matters delegated to the Executive, Ed also seems to think that Bates’ order violates the Geneva Conventions (his bolding applied):
Not only does this violate the separation of powers in the Constitution, it actually violates the Geneva Convention. Article 84 states clearly that prisoners of any stripe shall not get tried in civil courts:
A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.
In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.
We do not try our military personnel in civil court for offenses committed in the service. Therefore, we do not have the right to try prisoners in our civil courts, either.
There are a few problems with that conclusion:
(1) The detainees are not being tried. They’re challenging their detention. Another way of putting it is that they’re the plaintiffs in such an action (habeas hearing) as opposed to the defendants (as in a trial).
(2) Civilian courts may be used under the GC where the crimes/offenses alleged are already illegal (i.e. no a bill attainder or ex post facto law) and the court procedures provide the minimum guarantees set forth in the GC (this is spelled out in the rest of Ed’s Article 84 excerpt starting with “unless”).
(3) The Boumediene decision pretty much made this ruling necessary since the SCOTUS designated anywhere under U.S. control as being “U.S. territory”, with a few exceptions. An active battlefield is one of them IIRC and the judge may have decided that Bagram AFB doesn’t qualify.
In fact, on that last point, Judge Bates specifically noted that:
… non-Afghan detainees captured outside the country and moved to Bagram for a lengthy detention should have access to the courts to prevent the United States from being able to “move detainees physically beyond the reach of the Constitution and detain them indefinitely.”
As Boumediene is written, I think Bates got it exactly right. I do think that the entire line of reasoning and case law is incorrect from both a policy and constitutional basis, but Judge Bates is required to follow Supreme Court precedent. That his ruling serves as a perfect example how reductio absurdum can happen in real life doesn’t make him wrong.
Furthermore, I don’t see how allowing detainees to challenge their detention could possibly violate the Geneva Conventions. Again, that does not mean detainees should be afforded such rights, just that such a grant does not in any way run counter to either the letter or spirit of those treaties.