This week we spent part of the time trying to apply some lessons from the past to our current conflicts in Iraq and Afghanistan. Central to our discussion was the following idea:
Acts of violence do not win wars.
This was a quote from the FLN leader Ben ‘Hidi in the movie, “The Battle of Algiers.” We discussed what it is exactly that does win wars, and what happens when you make military action your strategy, rather than a tactic.
Everything needs a context that gives it meaning. For example if a random person came up to you on the street and declared, “I love you!” the words would have no real meaning to you. The words fit into no known context. The person is not nice but weird. His words would not have the desired effect.
In the same way, the violence of wars needs a proper context. It must proceed from a defined moral and political reality. Furthermore, the violence used must make sense within that defined reality for it to have real effectiveness.
For example, I think it no coincidence that the Union army fought much better after they had the liberating mission proclaimed by the Emancipation Proclamation. No longer did they fight for the political abstraction of “Union” but the definite moral aim of freeing slaves.
In our discussion of the movie we focused on the question of torture and the question of French identity in particular, and democratic identity in general.
For homework recently I had the students look at various internal memos related to our use of “enhanced interrogation” tactics with enemy suspects (I’ll include what the students read at the end of the update). Next week we will discuss John Yoo’s famous/infamous memo and in large part our reactions should center around two questions:
- To what extent should American values be used as a “weapon” in the War on Terror? What is our greatest asset in the war, and how can we use it?
- Can torture be a tactic in fighting a “just war?” If so, how, and if not, can we ever use it?
We used some of these questions to look at the war in Iraq from 2003-2009.
When we went into Iraq initially, we had fairly narrow military goals. We planned the military campaign to make it as easy as possible for our troops to overthrow Saddam. This meant focusing on the destruction of Iraq’s infrastructure (i.e. power, communications, etc.) among other things. In a narrow military sense, we had quick and stunning success, but almost immediately afterwards, the situation deteriorated. We faced grave problems of violence and unrest, some of them of our own making. After all, the destruction of infrastructure itself created by the war made their lives more tenuous and unpredictable.
Iraqi’s also faced the question of the rule of law, or more pointedly, its absence. A few years ago I had a chance to talk to an army major who was in Baghdad just after Saddam’s regime collapsed. A respected local elder came up to him and said,
Thank you for removing Saddam. But now we are confused. What law do we follow? Are we still under Saddam’s law? Or is it the martial law of the U.S. military? Or is it local tribal law? Or is it Sharia law?
I remember the captain telling me that,
When I had no idea what the answer was, I realized we were in trouble.
In other words, our violence effectively removed the regime, but did not have any discernible meaning — it had no larger moral and political context that the Iraqi people could latch onto. Thus we should not be surprised that chaos and confusion reigned in the aftermath. Violence alone failed to come even close to achieving our objectives.
At first we used our military in Iraq to ‘kill the bad guys’ rapidly making headway amidst the chaos. We holed up in the Green Zone, rode out in armored vehicles, and retreated back. By 2006/7 the situation looked bleak. General Petraeus had a different concept of what the war was about and changed everything. The goal was no longer to kill bad guys but to protect Iraqi citizens. To even find the bad guys, we needed better intelligence, and we were only going to get that from the people themselves. Petraeus was right to surmise that the Iraqi’s didn’t want Al Queda as part of Iraq, but also realized that no one was really sharing in their struggle. He took troops out of the Green Zone and embedded squads in local Iraqi neighborhoods. As much as possible, soldiers were to appear without helmets and weapons — things average Iraqi’s did not have.
While the final chapters of Iraq’s transformation have not been written, no one can doubt the progress made since this change of strategy. Perhaps this gives insight also as to how our values might be a weapon, and how a military can be used to combat an idea. He strongly emphasized the idea that “We should be first with the truth, even on bad days.” When senior administration officials urged him to change his message to reflect a more positive image of the war, he argued that, “We don’t have an image problem. We have a results problem.”
If you are curious, this site communicates in visuals some of what Petraeus hoped to and did accomplish. The visual below shows the extent to which he broadened our field of vision as to how we fought the war.
Many believe that “The Surge” and this change in strategy helped to transform Iraq, though the final chapters of this tale will not be finished for many years. Of course, Petraeus has his critics, and one of them writes here, if you are interested.
I wanted the students to think about the extent to which we believe that our democratic values are an asset or a hindrance in the War on Terror, a decision that reveals much of what we really think of democracy in general. Generally two main schools of thought exist:
- Our values/freedoms are the essential foundation of who we are, not a mere add-on when things go well. Therefore the wars we fight, and the way we fight them, must reflect those values, lest we lose our identity.
- As valuable as our values/freedoms are, they only exist because of the foundation built by security. Without security as the proper soil, freedoms cannot exist. Therefore in war, we fight to protect our values by making sure we have adequate security.
This debate has great relevance for how we think of torture. Some see it as necessary to preserve freedom, others see it as a betrayal of our identity, and therefore off-limits to us. Students felt the tension between our responsibility to protect the innocent and also protect who we are as a people. Both sides have costs. To not torture might cost lives. To do so might cost us something different — our image, identity, our reason for being a nation in the first place.
I hope you enjoy the weekend. Voices on both sides of the torture debate follow, if you have interest.
DEPARTMENT OF THE AIR FORCE, OFFICE OF THE JUDGE ADVOCATE GENERAL,
Washington, DC, February 5, 2003.
Subject: Final Report and Recommendations of the Working Group to Assess the
Legal, Policy and Operational Issues Relating to Interrogation of Detainees
Held by the U.S. Armed Forces in the War on Terrorism (U)
1. (U) In drafting the subject report and recommendations, the legal opinions of the Department of Justice, Office of Legal Counsel (DoJ/OLC), were relied on almost exclusively. Although the opinions of DoJ/OLC are to be given a great deal of weight within the Executive Branch, their positions on several of the Working Group’s issues are contentious. As our discussion demonstrate, others within and outside the Executive Branch are likely to disagree. The report and recommendations caveat that it only applies to “strategic interrogations” of “unlawful combatants” at locations outside the United States. Although worded to permit maximum flexibility and legal interpretation, I believe other factors need to be provided to the DoD/GC before he makes a final recommendation to the Secretary of Defense.
2. (U) Several of the more extreme interrogation techniques, on their face, amount to violations of domestic criminal law and the UCMJ (e.g., assault). Applying the more extreme techniques during the interrogation of detainees places the interrogators and the chain of command at risk of criminal accusations domestically. Although a wide range of defenses to these accusations theoretically apply, it is impossible to be certain that any defense will be successful at trial; our domestic courts may well disagree with DoJ/OLC’s interpretation of the law. Further, while the current administration is not likely to pursue prosecution, it is impossible to predict how future administrations will view the use of such techniques.
3. (U) Additionally, other nations are unlikely to agree with DoJ/OLC’s interpretation of the law in some instances. Other nations may disagree with the President’s status determination regarding the Operation ENDURING FREEDOM (OEF) detainees; they may conclude that the detainees are POWs entitled to all of the protections of the Geneva Conventions. Treating OEF detainees inconsistently with the Conventions arguably “lowers the bar” for the treatment of U.S. POWs in future conflicts. Even where nations agree with the President’s status determination, many would view the more extreme interrogation techniques as violative of other international law (other treaties or customary international law) and perhaps violative of their own domestic law. This puts the interrogators and the chain of command at risk of criminal accusations abroad, either in foreign domestic courts or in international fora, to include the ICC.
4. (U) Should any information regarding the use of the more extreme interrogation techniques become public, it is likely to be exaggerated/distorted in both the U.S. and international media. This could have a negative impact on international, and perhaps even domestic, support for the war on terrorism. Moreover, it could have a negative impact on public perception of the U.S. military in general.
5. (U) Finally, the use of the more extreme interrogation techniques simply is not how the U.S. armed forces have operated in recent history. We have taken the legal and moral “high-road” in the conduct of our military operations regardless of how others may operate. Our forces are trained in this legal and moral mindset beginning the day they enter active duty. It should be noted that law of armed conflict and code of conduct training have been mandated by Congress and emphasized since the Viet Nam conflict when our POWs were subjected to torture by their captors. We need to consider the overall impact of approving extreme interrogation techniques as giving official approval and legal sanction to the application of interrogation techniques that U.S. forces have consistently been trained are unlawful.
JACK L. RIVES,
Major General, USAF,
Deputy Judge Advocate General.
DEPARTMENT OF THE NAVY, OFFICE OF THE JUDGE ADVOCATE GENERAL,
Washington, DC, February 6, 2003.
Subj: Working Group recommendations relating to interrogation of detainees.
1. Earlier today I provided to you a number of suggested changes, additions, and deletions to the subject document.
2. I would like to further recommend that the document make very clear to decision-makers that its legal conclusions are limited to arguably unique circumstances of this group of detainees, i.e., unlawful combatants held ” outside” the United States. Because of these unique circumstances, the U.S. Torture Statute, the Constitution, the Geneva Conventions and customary international law do not apply, thereby affording policy latitude that likely does not exist in almost any other circumstance. (The UCMJ, however, does apply to U.S. personnel conducting the interrogations.)
3. Given this unique set of circumstances, I believe policy considerations continue to loom very large. Should service personnel be conducting the interrogations? How will this affect their treatment when incarcerated abroad and our ability to call others to account for their treatment? More broadly, while we may have found a unique situation in GTMO where the protections of the Geneva Conventions, U.S. statutes, and even the Constitution do not apply, will the American people find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values? How would such perceptions affect our ability to prosecute the Global War on Terrorism?
4. I accept the premise that this group of detainees is different, and that lawyers should identify legal distinctions where they exist. It must be conceded, however, that we are preparing to treat these detainees very differently than we treat any other group, and differently than we permit our own people to be treated either at home or abroad. At a minimum, I recommend that decision-makers be made fully aware of the very narrow set of circumstances-factually and legally-upon which the policy rests. Moreover, I recommend that we consider asking decision-makers directly: is this the “right thing” for U.S. military personnel?
MICHAEL F. LOHR,
Rear Admiral, JAGC, U.S. Navy,
Judge Advocaate General.
Charles Krauthammer, columnist, writing for National Review online:
I don’t see [the release of Bush administration memos on interrogation techniques] as a dark chapter in our history at all.
You look at some of these techniques — holding the head, a face slap, or deprivation of sleep. If that is torture, the word has no meaning.
I would concede that one technique, simulated drowning, you could call torture, even though the memos imply that legally it didn’t meet that definition. I’m agnostic on the legalism….
But let’s concede that it’s a form of torture. I think it’s perfectly reasonable to use it in two cases, that the ticking time bomb, if an innocent is at risk and you’ve got a terrorist that has information that would save that innocent and isn’t speaking. That’s an open and shut easy case.
A second case is a high-level Al Qaeda operative, a terrorist, who knows names and places and numbers and plans and safe houses and all that, and by using techniques to get information, you’re saving lives.
If I have to weigh on the one hand the numberless and nameless lives saved in America by the use of these techniques, and we had a CIA director who told us that these techniques on these high-level terrorists was extremely effective in giving us information.
If you have to weigh on one hand that the numberless and nameless lives saved, against the 30 seconds or so of terror in the eyes of a terrorist who is suffering this technique, I think the moral choice is easy.
It’s not a dark chapter in our history. It is a successful one. We have not had a second attack, and largely because of this.”