TAMANAHA ON BALKINIZATION: WHAT IF TALIBAN WATERBOARDED U.S. SOLDIERS?

I just read a post by Brian Tamanaha on Balkinization in which he theorizes about the scenario where members of the Taliban capture U.S. soldiers in Afghanistan and subject them to waterboarding. The Bush administration especially Dick Cheney claim that waterboarding is not torture, so there is no violation of any Geneva Convention provisions. Furthermore, Tamanaha "quotes" the Taliban as saying that eminent legal scholars (one thinks of former Attorney General Michael Mukasey, John Yoo, David Addington, Jay Scott Bybee and Steven Bradbury) have opined that waterboarding is not torture, therefore the Taliban are not committing war crimes.

JUDGE MUKASEY WILL BE TOP LEGAL U.S. OFFICER AND HE DOESN'T KNOW IF WATER-BOARDING IS TORTURE?

The negative reaction to Judge Mukasey's testimony on torture this past week before the Senate Judiciary Committee has not only not died down. It has increased. There were five letters in today's The New York Times, all decrying Mukasey's hedging, and both David Luban and Brian Tamanaha comment critically about his testimony on water-boarding in the legal blog Balkinization.

Writes Tamanaha:

"I had lunch today with a prominent German Constitutional scholar who was flabbergasted about something that I could not adequately explain. He asked me how the candidate to become the top legal official of the U.S. government could say that he does not know whether water-boarding constitutes "torture" (as Judge Mukasey stated yesterday in his confirmation hearings). My colleague insisted that in Germany any person who uttered such a statement would be finished. He found it shocking that a person could say this in America and still become our Attorney General.

"At first I was surprised at his genuine disbelief; and then I felt a bit ashamed that I did not also react with disbelief. I have become so cynical about the Bush Administration on the torture issue that this strikes me as ordinary stuff. Seeing the astonishment through the eyes of an outsider made me realize how far we have deteriorated in our moral sense about the impropriety of torture.

"For Mukasey to say that he first must study whether water boarding is "torture" is a disgrace."

And Luban presents an easy test for Mukasey and anyone else who equivocates on whether water-boarding is torture:

"So: does waterboarding inflict severe suffering? If you want to do a quick, common-sense reality check, try this. Blow all the air out of your lungs. Then stare at your watch and try not to inhale for ninety seconds by the clock. Then take one quick half-breath and immediately do it again. Now imagine that you’re tied down while you’re doing it and water is pouring over your head and rolling up your nose. Or, if you’re really ambitious, get in the shower and turn it on and try the same hold-your-breath-with-no-air-in-your-lungs experiment with your head tilted up and the water pouring up your nose. Then decide for yourself whether it’s severe suffering."

And here is a letter to the editor printed in today's NY Times by George I. Gordon:

"To the Editor:

"How can the United States hope to regain its position as a respected world leader on the great issues of human rights if its chief law enforcement officer cannot even bring himself to acknowledge the undeniable verity that waterboarding constitutes torture, applying any conceivable definition of that term?"

George I. Gordon, Bronx, Oct. 19, 2007

"The writer served as an assistant United States attorney in the Southern District of New York from 1958 to 1961 and was chief appellate attorney in the United States Attorney’s Office for that district, 1960-61."

BUSH SHOULD BE LEADING TROOPS IN IRAQ

I want to bring to everyone's attention an important post today by Brian Tamanaha of Balkinization on how rulers of old conducted wars versus how modern leaders do it.


Tamanaha quotes from Martin van Creveld (in The Rise and Decline of the State), and it is such an illuminating passage that I repeat it below:

"Having defeated their rivals by one method or another, the monarchs soon began to change the way they did business and presented themselves to the world. One of the earliest, and most important, changes took place in the military field. Owing partly to the personal nature of politics, partly to the knightly ethos, medieval rulers had normally commanded their armies in person and often fought hand to hand in the front ranks. Consequently casualties among them were by no means rare: some died; others were taken prisoner and had to be ransomed. For example, both the king of France and his heir were captured at the Battle of Poitiers in 1356. James IV of Scotland was killed at Flodden in 1513; as already noted, the Battle of Pavia in 1525 ended with the capture of King Francis I of France. Not to be outdone, Francis' rival Charles V fought hand to hand in front of the walls of Tunis and had several horses killed under him....

"By contrast Charles' prudent son Philip II preferred to direct the far-flung campaigns by bureaucratic methods, relying on field commanders whom he selected from the highest nobility and surrounded with closely worded letters of instruction. By the time of the Thirty Years War his approach had come to be shared by most of the principal monarchs....During the eighteenth century, the decline of the number of royal field commanders continued....

"To compensate themselves for the lost joys of battle, some eighteenth-century monarchs, especially Louis XIV, would present themselves at the end of a siege, assume formal command, and put on heroic airs."

Tamanaha then goes on to compare the bravado of the Sun King, Louis XIV, with that of George W. Bush in proclaiming mission accomplished after landing all decked up in a military flight suit.

"That last bit sounds like President Bush's "Mission Accomplished" moment on the aircraft carrier. There is something to be said for the long lost "knightly ethos." Wars are easier to start and continue when one's own life is not on the line."