Mark Kleiman's Specialty: Pounding The Table

by Pejman Yousefzadeh on July 9, 2009

For the (apparent) sin of agreeing with him, I’ve been subjected to yet another round of table-pounding by Mark Kleiman, who is deeply upset that I have written something mildly critical of his political golden calf. The effort to criticize is more amusing than accurate, but that is par for the course from Kleiman.

1. Kleiman argues that there is a difference between convicted criminals and prisoners of war, in that convicted criminals can be subjected to hard labor, can be interrogated, and can be kept in supermax prisons, while POWs cannot be required to work, cannot be interrogated for anything beyond name, rank, and serial number, and cannot be kept in supermax, or supermax-equivalent prisons. Thus, my statement that “irrespective of the outcome of a trial, the defendant will remain in prison, and that will mean that many of those trials are going to have no effect whatsoever on the lives of the defendants in question. And that means that the Obama Administration’s guarantee of a fair trial or due process for these defendants is utterly meaningless,” is supposedly refuted. Of course, I never said that POWs can be subjected to hard labor, or that they can be interrogated beyond name, rank, and serial number, or that they can be kept in supermax or supermax-equivalent prisons, and no fair reading of my post can suggest otherwise (I know that Kleiman is not given to fair or honest readings of the writings of his interlocutors, but his overreach here is silly, even for him). The point I was making–and this should be obvious from a cursory examination of my post–was that the Obama show trials do nothing whatsoever to affect the liberty of the POWs. Quoting from my post:

. . . In the strictest sense, the legal status of the detainees is affected by whether they are found guilty or not-guilty in these trials, but as Kleiman writes, if someone has engaged in warfare against the United States, that person “should be held as long as the conflict lasts, even if that turns out to be forever.” So irrespective of the outcome of a trial, the defendant will remain in prison, and that will mean that many of those trials are going to have no effect whatsoever on the lives of the defendants in question. And that means that the Obama Administration’s guarantee of a fair trial or due process for these defendants is utterly meaningless.

The post–and my present argument with Kleiman–concerns the assertion of “post-acquittal detention power” on the part of Barack Obama. Note the word “detention.” The issue here isn’t the interrogation of the POWs, or the subjection of POWs to hard labor–something I would have thought Kleiman would have grasped without outside help. Nor is the issue “torture,” Kleiman’s further attempts to distract and mislead his readers notwithstanding. The issue is whether the POWs remain deprived of their liberty after one of the Obama Administration’s show trials. It is irrefutable that they are. Again, I agree with Kleiman that they should be deprived of their liberty, for the reasons that Kleiman states, but it is utterly ridiculous for the Obama Administration to put forth Potemkin due process and show trials for the POWs when even an acquittal may not–and likely, will not–mean that the POWs will regain their liberty. “Post-acquittal detention power” goes beyond any assertion of authority that the Bush Administration dared to make, and at the end of the day, it means that the Obama Administration will keep people imprisoned even if they are found not-guilty in a court of law for any crimes they are accused of.

It would have been perfectly respectable if the Obama Administration simply stated that it would not try POWs, but that rather, it would keep them detained for the duration of the conflict. That’s essentially what the Bush Administration did, and it got slammed for it. The Obama Administration is essentially doing the same thing that the Bush Administration did, substantively, but seeks to charm us with promises of due process and trials that will do nothing whatsoever to allow POWs to walk out into the bright sunshine and regain their freedom, absent the approval of the White House. Why the gloss of Potemkin due process and show trials when the POWs can be kept irrespective of acquittal?

Kleiman’s objection to my post is even more difficult to appreciate or respect given his own admission that POWs cannot be interrogated, cannot be punished with sentences like hard labor, and cannot be housed in supermax or supermax-like prisons. Given that they cannot–and the Third Geneva Convention makes this clear–what is the point of trying them in the first place? We would utterly obliterate the purpose of the Third Geneva Conventions by trying POWs, finding them guilty, and then treating them like convicted criminals. Can there be any clearer showing that the Obama Administration’s promises of due process and fair trials are worthless given that (a) if the defendant is convicted, he/she cannot be subjected to any punishment that violates his/her status as a POW; and (b) if the defendant is acquitted, he/she may still be detained thanks to the President’s “post-acquittal detention power”? The Administration’s promises of due process and fair trials are incomprehensible . . . until one recalls Glenn Greenwald’s observation that the Administration will “create various procedures to prettify the process, but the outcome is always the same — ongoing detention for as long as the President dictates,” and that for political purposes, the Administration seeks “exactly the same [policy outcome the Bush Administration wanted] while creating the false appearance that there is due process being accorded.” I am sorry if Kleiman is fooled by the Administration’s legal magic act–it does not seem hard for the President to put one over on him–but the rest of us should not be bothered by his incoherent fury merely because we insist on not being bamboozled.

2. On a less important front, Kleiman seeks to augment the table-pounding process by claiming that my critique of Obama is based on “insensate loathing” of the President, and because I “can’t stand liberals or Democrats, and [I am supposedly] doing [my] dishonest best to tear down a liberal Democratic President.” Kleiman should refrain from accusing others of dishonesty; unless he is simply incapable of understanding my objections, his post reveals that he did his level best to misrepresent my arguments (of course, as Kleiman regularly proves, the incapability to understand and the incapability to be honest are not mutually exclusive). As for “insensate loathing” of the President or not being able to “stand liberals or Democrats,” this is more Kleiman silliness, buttressed by a fair amount of Kleiman projection; he thinks that just because he is a Bush-hater, this means that people who disagree with Barack Obama are Obama-haters.

Life is more complicated than that–something that Kleiman would understand if he ever bothered to venture outside his cocoon. I’m not much for going into personal details on this blog, but my family and I moved to the emphatically non-Republican Hyde Park neighborhood of the blue city of Chicago–you know, the place where the President I supposedly “loathe” lives–in 1983. I went to the same school the Obama kids attended before they went to Washington, I continued on to go to college and graduate school in Hyde Park at a university which employed the President I supposedly “loathe” as a lecturer in its law school, and my synagogue is in Hyde Park . . . right across the street from the house of the President I supposedly “loathe.” I regularly, and voluntarily go back to the Hyde Park area to listen to concerts, buy books, worship God, and reunite with old friends.

All of this hanging around Barack Obama’s neighborhood, and cavorting with its inhabitants means that I spend at least as much time with Democrats as Mark Kleiman does–and have been doing so for nearly 30 years. The difference between me and him, however, is that I like having Democratic friends because they help broaden my horizons. Kleiman apparently likes having Democratic friends because they help reinforce his prejudices. By the way, I am willing to bet dollars to donuts on the proposition that Kleiman will read all of this and conclude that in addition to “loathing” Barack Obama, and not being able to “stand liberals or Democrats,” I am a masochist for interacting with them as often as I do. After all, Kleiman has demonstrated a gift for missing the point.

UPDATE: Jacob Sullum gets it, even if Mark Kleiman does not:

So the Obama administration is all for due process, as long as it produces the correct result. Obama already has said that Guantanamo detainees who cannot be successfully tried by military commissions or civilian courts can still be imprisoned indefinitely if they are considered too dangerous to release. Now [Defense Department General Counsel Jeh] Johnson is saying that even those who are prosecuted can be kept imprisoned regardless of the verdict. The only point of prosecuting them, it seems, is to create an impression of due process while continuing the Bush detention policies that Obama condemned during the campaign.

ANOTHER UPDATE: Of course, POWs can be tried for war crimes, but per the Third Geneva Convention, trials proceed on the following principles:

Chapter III

PENAL AND DISCIPLINARY SANCTIONS

I. General provisions

Article 82

A prisoner of war shall be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power; the Detaining Power shall be justified in taking judicial or disciplinary measures in respect of any offence committed by a prisoner of war against such laws, regulations or orders. However, no proceedings or punishments contrary to the provisions of this Chapter shall be allowed.

If any law, regulation or order of the Detaining Power shall declare acts committed by a prisoner of war to be punishable, whereas the same acts would not be punishable if committed by a member of the forces of the Detaining Power, such acts shall entail disciplinary punishments.

[. . .]

Article 87

Prisoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.

When fixing the penalty, the courts or authorities of the Detaining Power shall take into consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will. The said courts or authorities shall be at liberty to reduce the penalty provided for the violation of which the prisoner of war is accused, and shall therefore not be bound to apply the minimum penalty prescribed.

Collective punishment for individual acts, corporal punishments, imprisonment in premises without daylight and, in general, any form of torture or cruelty, are forbidden.

No prisoner of war may be deprived of his rank by the Detaining Power, or prevented from wearing his badges.

It ought to be noted that disciplinary sanctions can include “[f]atigue duties not exceeding two hours daily.” The difference between this and “hard labor” is not clear, but “[i]n no case shall disciplinary punishments be inhuman, brutal or dangerous to the health of prisoners of war.”

POWs are subject to the death penalty per Chapter III, Sec. III, Articles 100-101.

A note: Given the degree to which the Third Geneva Convention outlines acceptable judicial procedures to be followed concerning POWs, the introduction of new due process rules and show trials by the Obama Administration are–in addition to being completely disingenuous–superfluous to the point of being otiose.

  • FredrickG

    An accurate breakdown of the status of actual POWs under Geneva Convention III – however I have yet to see any valid claim that the detainees at Guantanamo are legitimate POWs under that Convention. If the US had accepted the 1978 Protocols you might be able to make that argument about some of them, but the US very deliberately did not accept them. Nor do the detainees meet the criteria of Geneva Convention IV of residents of Occupied Territories. Now, the Supreme Court seemed to indicate that Common Article 3 of the Geneva Conventions applies, but that is a very much lower standard of “rights” than what Geneva Convention III provides to full POWs.

  • eric4000

    they…. are…… not….. prisoners… of….. war….
    3rd geneva convention, part 1, article 4.

  • StevenDB

    Kleiman is wrong: POW's can be required to work. See articles 49 and 50 of the Third Convention:

    http://en.wikisource.org/wiki/Third_Geneva_Conv

    Many German and Italian POW's during WWII were kept in POW camps in Nebraska and Iowa and worked on farms there.

  • Pejman_Yousefzadeh

    See my second update concerning the rules on POW labor.

  • jthomason

    It seems like you and Kleiman are to some extent talking about different things. You are talking about the result of a not guilty verdict. He is talking about the results of a guilty decision. He doesn't say it in so many words, but it seems that in his opinion these trials are a form of heads I win, tails you REALLY lose.

    If they are found not guilty, then (as you say) their status will essentially not change. If they are found guilty, however, now Obama is free to institute punishment which Kleiman says in his opinion may rise to the level of “crimes against humanity”. You see? The trials DO matter, because if the defendants lose, then no more cushy Guantanamo cells for them!

    That isn't quite the “change” Obama and his people (or supporters) were talking about last year, is it?

    PS How many of the “POWs” in question actually meet the definition of a Prisoner of War under the Geneva Conventions? Not many, I would think. I notice that Kleiman only talks about the 'logic' of treating them as POWs.

  • http://twitter.com/lonetownwood Robert MacInnes

    The difference may be that Obama intends to put them to hard labor in supermax facilities if convicted at the show trial.

    So if acquitted they are simply detained and if convicted they do the dishes.

  • PRIM

    Pez: You are spot on as usual. In topic number 1, next to last paragraph, sub-item (b), I think you mean “acquitted” rather than “convicted.”

  • Pejman_Yousefzadeh

    Thanks. But my name is not “Pez.”

  • gridlock2

    As soon as we get some POWs we will have to examine these treaties to determine how to handle them.

    All of the legitimate POWs from the Iraq War, which is to say the uniformed military personnel who were captured, have long since been released. Many are still in the Iraqi armed forces.

    As for Afghanistan, did they have any uniformed military prior to the war? If they did, there is a possibility that some POWs were captured in that action. I would be surprised if that is the case, though.

  • DL13

    The question is, are these “Freedom Fighters” to be tried as criminals or enemy combatants, even though they are not technically enemy soldiers? Legally, they could have been executed as spies, much like we did the Nazi's that infiltrated our East Coast during WW2, with the intention of doing sabotage and creating mayhem. Either way, I don't want them released where they can go back into the battle to do harm to our troops and world civilian populations, like so many of those that were released have already done. Let's get real….

  • PRIM

    Sorry, no disrespect intended, as respect is all that's felt. You were
    the only poster I looked for at RedState, and now that you've moved, I
    don't go back. My name's not PRIM either, but I can't figure out how to
    get Disqus to change it.

  • Charlie

    We're not talking prisoners of war here. We're talking non-uniformed enemy combatants, whole different matter altogether.

  • Pejman_Yousefzadeh

    No worries. Sorry you are having Disqus problems. I don't know what should be done to change the situation, save going back to your Disqus profile, or just creating a new one.

  • harryflashman

    Winston Chruchill made the subject much simpler – “A prisoner of war is a man who tries to kill you and fails, and then asks you not to kill him.”

    Under that simple definition, it then seems that anything one holding a prisonor of war does to him, short of killing him, is an epitome of justice, mercy and magnanimity.

    But – thence come the lawyers and nothing means anything. From that point on all logic, reasoning, honor and justice dissipates in direct inverse proportion to the amount on sophistries, half-truths, personal ambitions and political agendas bloviated by “learned counsel.”

  • Pejman_Yousefzadeh

    Thanks. But my name is not “Pez.”

  • gridlock2

    As soon as we get some POWs we will have to examine these treaties to determine how to handle them.

    All of the legitimate POWs from the Iraq War, which is to say the uniformed military personnel who were captured, have long since been released. Many are still in the Iraqi armed forces.

    As for Afghanistan, did they have any uniformed military prior to the war? If they did, there is a possibility that some POWs were captured in that action. I would be surprised if that is the case, though.

  • DL13

    The question is, are these “Freedom Fighters” to be tried as criminals or enemy combatants, even though they are not technically enemy soldiers? Legally, they could have been executed as spies, much like we did the Nazi's that infiltrated our East Coast during WW2, with the intention of doing sabotage and creating mayhem. Either way, I don't want them released where they can go back into the battle to do harm to our troops and world civilian populations, like so many of those that were released have already done. Let's get real….

  • PRIM

    Sorry, no disrespect intended, as respect is all that's felt. You were
    the only poster I looked for at RedState, and now that you've moved, I
    don't go back. My name's not PRIM either, but I can't figure out how to
    get Disqus to change it.

  • Charlie

    We're not talking prisoners of war here. We're talking non-uniformed enemy combatants, whole different matter altogether.

  • Pejman_Yousefzadeh

    No worries. Sorry you are having Disqus problems. I don't know what should be done to change the situation, save going back to your Disqus profile, or just creating a new one.

  • harryflashman

    Winston Chruchill made the subject much simpler – “A prisoner of war is a man who tries to kill you and fails, and then asks you not to kill him.”

    Under that simple definition, it then seems that anything one holding a prisonor of war does to him, short of killing him, is an epitome of justice, mercy and magnanimity.

    But – thence come the lawyers and nothing means anything. From that point on all logic, reasoning, honor and justice dissipates in direct inverse proportion to the amount on sophistries, half-truths, personal ambitions and political agendas bloviated by “learned counsel.”

Previous post:

Next post: