M.E.J.A.

MEJA was brought up today in class in response to the presentation on creating an additional protocol to the Geneva Convention to encompass Private Security / Military Companies, so I thought I'd elaborate on it just a little bit.

Passed in 2000, the Military Extraterritorial Jurisdiction Act was intended to fill the jurisdictional gap that existed when Americans committed crimes on foreign territory and the host nation could not or would not pursue legal action.
MEJA grants jurisdiction over members of the Armed Forces or persons employed by or accompanying the Armed Forces (including civilians) outside the United States if they commit an offense punishable by imprisonment for more than one year.

When originally passed, MEJA had the potential to be a great tool for prosecutors in the fight against IHL and IHRL violators, however, in the four years between passage and amendment, only one person has been tried under MEJA. Perhaps this is because there is a inherent loophole in the definitions accompanying the Act. The definitions require that the civilian upon which jurisdiction is exercised be a DoD contractor or contractor's employee. This definition is a HUGE loophole. It means that it'll be impossible to use MEJA to prosecute employees or contractors of other branches of the government. Employees of the CIA, State, or any number of other government agencies with large numbers of employees posted overseas are not subject to the jurisdictional reach of MEJA. Thus, a large numbers of overseas U.S. employees falling outside of MEJA. Furthermore, it creates a situation where contractors and employees can escape potential accountability by simply establishing contracts with any other branch besides the DoD.

This loophole isn't just theoretical, but proved to be a real problem in the case of Abu Ghraib. As part of the scandal, CACI, Inc., a defense-contracting firm located in Arlington, Virginia was named as one of the two firms responsible for the prisoner abuses. However, U.S. courts could not exercise jurisdiction over CACI, Inc. employees because CACI, Inc.’s contract was with the Interior Department’s National Business Center in Fort Huachuca, Arizona and NOT DOD.

However, there are proposals to amend MEJA's definitions to include all employees, contractors, and employees of contractors of any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas. Thus, we shall see if MEJA will prove to be effective in the long run...

U.S. military contractors

The NY Times (apparently my favorite source of news since the majority of my blog posts involve a link to them) reported this morning that the U.S. has now charged a contractor with a crime while in the services of the military.

Now this phenomenon of the U.S. military hiring contractors is nothing new, but this attempt at holding a contractor liable for a crime is a new test of the military's legal jurisdiction.

Over the years, the “War on Terror” and the scandals at Abu Ghraib have raised public awareness of the use of private security/military forces, the use of contractors, and the privatization of traditional state functions. Much of the controversy and dialogue related to this issue has centered on the legal loopholes that allow violators of IHL to go unpunished. (granted the contractor in this article arguably did not commit an IHL violation, it is still relevant to this discussion)

Arguments have been raised that the issue could be resolved by applying the existing international legal instruments addressing mercenaries, however, the use of military contractors may not fall neatly within these confines. Yet, states still have a responsibility to ensure that the PSCs they hire respect international law. What should they do? Honestly, how easy is it for an individual country to regulate companies that primarily operate in a foreign jurisdiction? In my opinion, it's not.

It is not easy to legislate or regulate these types of actions because, beyond the logistical question of how to monitor activity in a foreign jurisdiction to ensure compliance with the regulation, there is the question of accountability. For regulation compliance to occur, there must exist an accountability / sanctioning mechanism. Now, this article has shown that the Uniform Code of Military Justice is being tested for this purpose, but how successful will it be is yet to be determined.

Generally, when it comes to accountability for PSC action in foreign jurisdictions, there are the legal hurdles to the proper exercise of jurisdiction. Without the legal instruments in which to hale the violator into court, there is no threat of punishment, thus no incentive to comply with the regulation.

Yet another comment on this John Yoo saga

Here is a NY Times editorial discussing the ongoing saga of the infamous Bybee memo.


Some of my favorite quotes from this editorial include:

Eighty-one spine-crawling pages in a memo that might have been unearthed from the dusty archives of some authoritarian regime and has no place in the annals of the United States. It is must reading for anyone who still doubts whether the abuse of prisoners were rogue acts rather than calculated policy.

Or this comment on Yoo's brilliant legal reasoning

American and international laws against torture prohibit making a prisoner fear “imminent death.” For most people, waterboarding — making a prisoner feel as if he is about to drown — would fit. But Mr. Yoo argues that the statutes apply only if the interrogators actually intended to kill the prisoner. Since waterboarding simulates drowning, there is no “threat of imminent death.”

Introducing the ex-Mr. Reese Witherspoon

Last weekend I saw the movie Stop-Loss and I have to admit that for an MTV movie, it was not that bad. The movie, created by the director of Boys Don't Cry (really good movie), followed the experiences of 3 soldiers who had served in Iraq but were now back on home leave. Of these 3 soldiers, 2 were suppose to be "getting out." Ryan Phillipe's character, Sgt. King, gets stop-loss but refuses to comply with the order. He then proceeds to go on the run. His best friend, Sgt. Shriver, voluntarily reenlists despite not having been stop-lossed.
I thought the movie was interesting because it depicted a situation were Sgt. King is damned if he does and damned if he doesn't. According to the movie, the only options Sgt. King had available to him were either comply with the stop-loss or be a fugitive from his own government forever.
Now I know that stop-loss and military recruitment issues are not really things we have touched upon in class, however, I thought that this movie was not a bad way to explore the lives of our weapons bearers. We spend a lot of time talking about training our troops to respect IHL and to not create an atmosphere of tolerance. What I wonder is, if we continue to abuse our troops and violate their civil rights, then what expectations do we have that they will respect other's rights? I think that if we continue to send troops against their will, we will be depleting morale and creating an atmosphere of resentment. I am not saying that all stop-lossed troops will commit violations of IHL, I am just saying that creating disgruntled and embittered troops is probably not going to help the cause.

Stop-Loss the Movie

Washington Times Article

US Code Section authorizing stop-loss

On April 2, The New York Times published an article entitled: NY 03 U.S. Memo Approved Harsh Interrogations
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Reading this article, I was torn as to how to feel. As a budding lawyer who has taken the federally mandated ethics exam, the idea that we are officers of the court has been drilled into my head. Lawyers have an obligation to not misrepresent the law, regardless of whether it is hurtful to our case. With this principle in mind, I had a hard time sympathizing with the OLC lawyers underfire over the Bybee memo and the waterboarding controversy.

That being said, I am also a realist. I realize that the OLC lawyers, although meant to be independent, are under pressure to please their clients, which in this situation is the Bush Administration. Furthermore, in the aftermath of 9/11, the country was caught up in an atmosphere of fear and terror. People were scrambling to find ways in which to cope with the atrocities that had happened. The administration felt the pressure to but didn't know how to catch "the bad guys." Therefore, the lawyers at the OLC may have been inclined to read the law in such a way that it would give Americans the tools to catch those that threatened our safety and way of life. This mentality I can understand. I'm not saying that I approval of it from a legal ethics standpoint, but I can understand it.

This leads me to my current conundrum. Dont' get me wrong, I am outraged at the audacity of the current administration's attempt to scapegoat their blatant flouting of international law. However, there is a small part of me that feels that the OLC attorneys should not have taken a part in creating a situation which has been turned around and used against them.

Stanford Experiment

Wow! Because of concerns regarding the protection of human subjects, there is absolutely NO WAY this experiment could be replicated today! After reading about the experiment, I really am quite shocked by the severity of the student's actions and how involved the experimenter became. I was surprised that the experiment lasted only 6 days and that the students underwent that transformation in such a short period of time. I truly thought it would take weeks before that authoritarian mentality would solidify within the students. Wow.

Well, I guess this does reveal some interesting things that directly parallel and potentially explain the abuses that took place at Abu Ghraib. Some of the parallels I saw were:

1) From the very first minutes, the experiment was already geared at humiliating and dehumanizing the students/prisoners. I was shocked to learned this because I kind of just pictured the students showing up to the experiment and voluntarily changing into their prisoner roles. But I guess it makes sense because in real imprisonment situations, such as Abu Ghraib, the morale breaking down process begins from the very first encounter. Beginning with the arrest/abduction of the prisoners, the men and women of Abu Ghraib were treated with the sort of disdain and abuse that laid the foundations for their dehumanization.
[Slide]

2) The Stanford experimenters, like the Abu Ghraib guards, continued this dehumanization in every aspect of the prisoner's experience. Like in Abu Ghraib, the Stanford experiment attempted to divorce the prisoners from their former selves. I was surprised to see that they stripped the prisoners, deliced them, dressed them the way they did, and shackled their feet. [Slide] The uniform dresses the prisoners were forced to wear and the numbers by which they were now solely identified by really paralleled the more subtle morale breaking tactics of Abu Ghraib.

3) The military men at Abu Ghraib were not MPs. In the video, one of the men expressed shock at the idea of being assigned to prison duty at Abu Ghraib and commented that this was a real morale breaker for him and his colleagues. Like many of the guards at Abu Ghraib, the students were not trained in how to be a prison guard and at first they seemed unsure how to assert their authority. [Slide] I feel like this probably parallels the experience of many of the new Abu Ghraib, and like those guards, the students quickly learned that power is dangerous.

4) The concept of iteration is also demonstrated in the experiment because originally the guards used seemingly benign punishments such as push ups and gradually escalated to more and more extreme techniques. [Slide] This clearly parallels the experience of the Abu Ghraib guards who gradually committed more and more grave atrocities as their thirst for power grew and consequences did not manifest as a result of their actions.

5) The use psychological punishment is also something that was present at both Abu Ghraib and the Stanford experiment. The use of a special privilege cell really instilled doubt in the Stanford prison population much like how the sounds of other screaming prisoners broke down the morale of prisoners at Abu Ghraib. [Slide]

6) The Stanford experiment's use of "counts," sometimes several times per hour, also parallels the Abu Ghraib's guards tactic of sleep deprivation. [Slide] In both situations, the prisoners were not allowed to sleep and were constantly being disturbed.

ADS

The 60 minutes piece prompted me to consider what else is out there about the ADS sytem, so here are a few links I found useful when looking into the U.S. military`s use of ADS.

Wikipedia (I know, not always the most accurate, but informative nonetheless). There is an interesting point made under the section labeled "Controversies".

Controversy as to the methodology of testing, in which volunteers were asked to remove glasses, contact lenses and metallic objects that could cause hot spots, has raised concerns as to whether the device would remain true to its purpose of non-lethal temporary incapacitation if used in the field where safety precautions would not be taken.

Again, keeping in mind that this is wikipedia, so its veracity may be in question, a good point is raised regarding testing conditions and actual use. A weapon may appear compliant with all necessary standards in the most ideal of situations, but what about in realistic use situations? I've been told that this is one of the controversies surround testing of cluster munitions. Apparently, when cluster munitions are tested, to establish dud rate, they are tested under very controled dropsites, with very level ground of a known density and with low wind. However, since the bombs are used in a myriad of places and under various conditions, the dud rate present in the testing zone never corresponds to the dud rate experienced in the field. I wonder if the testing of ADS systems under controled circumstances will also lead to similarly skewed results.

I also found it amusing that the ADS has been refered to as the Pain Ray.

Joint Non Lethal Weapons Program (I especially found the fact that they had a humans effects advisory panel interesting).

Waterboarding and DOJ

Saw this article and thought it was interesting: Waterboarding and the DOJ

I especially thought it was interesting that despite the fact that the CIA admits that legality of the method is questionable, they were basically trying to absolve themselves of any future or pending suit by pinning the blame upon the attorneys at the DOJ.

The C.I.A. director, Gen. Michael V. Hayden, publicly admitted for the first time two weeks ago that the agency used waterboarding in 2002 and 2003 in the interrogation of three Qaeda suspects but said that the technique was no longer used, and its legality under current law is uncertain. The technique, which has been used since the Spanish Inquisition and has been found illegal in the past by American courts, involves water poured into the nose and mouth to create a feeling of drowning.

After General Hayden’s acknowledgment, Attorney General Michael B. Mukasey rebuffed demands for a criminal investigation of interrogators who used waterboarding or of their superiors, saying C.I.A. officers could not be prosecuted for actions the Justice Department had advised them were legal. Mr. Jarrett’s review focuses on the government lawyers who gave that advice.

Three questions came to my mind as I read this, 1) if prior courts had held that the method was illegal, then what distinguishing factor did the lawyers find with modern day waterboarding, 2) if there were no distinguishing factors or if the factors were flimsy at best, to what extent did the DOJ lawyers compromise their professional ethics in order to provide their client (the CIA) with the results it desired and lastly 3) is this the beginnings of some convoluted form of command liability where the CIA is just going to claim that it cannot be held responsible for its practices simply b/c someone else told them it was fine?

Hmmm...

Cluster Munitions

Cluster munitions is a very controversial topic and from what I have gathered, it is very difficult to determine exactly what is truth and what is myth. I've had conversations with attorneys who are bringing a products liability suit against the manufacture of these cluster munitions and from these conversations, I have heard time and time again that these munitions are not dangerous because of their use but because they were manufactured to be that way. The dud rate (rate of unexploded remnants) was unacceptably high and as such, manufacturers should be held liable for the secondary harm caused by the bomblets. According to these plaintiffs, the dud rate was further exacerbated by the fact that the governments were misusing the munitions by dropping them in populated areas (i.e. the war in Lebanon) despite the fact that they were designed to be used in non-urban conflict areas. I think that a products liability suit used to deal with a borderline rules of war violation is an interesting strategy. Although it might give parties a way to get the issue into court, it doesn't address the underlying IHL violations and does little to condemn the use of cluster munitions itself. All it does is condemn the use of these particular munitions.
However, I have also sat in on meetings of DoD attorneys who claim that the real issue when it comes to the indiscriminate nature of the cluster munitions is not with the dud rate but the fact that using cluster munitions to bomb an area was more discriminate and more conservative then carpet bombing with conventional bombs. They argue that because of the small, more concentrated nature of each bomblet, armed forces could more accurately (and NOT less accurately) target particular areas then they would be able to with larger more conventional bombs.

I don't which of these arguments I agree with, but I find both sides of the argument to be very interesting.

Handicapped International Press Release

U.S. CCW Delegation

Bush's IHL Violations - Discreet?

When thinking about this week's blogging assignment, I was torn between whether I thought Bush was doing more damage to IHL and norms by not blatantly flouting them or if he was really respecting them in some roundabout way. Granted, the outcome of both of these sides of the debate is still that he is doing a great deal of irrevocable harm regardless.
On the one hand, by not blatantly flouting the IHL or norm violations, he is implicitly acknowledging that the norm does have value and a regulative effect. He is reinforcing the fact that the IHL and norms matter, just that in his opinion, they do no apply to him. Likewise, he is forced to justify his actions as not violative of the norms, which in and of itself reinforces the power of the norm. By paying lip service to the norm, he is implicitly acknowledging that he is aware of the fact that if he were to blatantly violate the norms, he would receive backlash from the international community.
On the other hand, if he were to just come right out and say that he was violating the norm, then the international community may be better armed with options for a reaction. The international community would be able to deal with his violations within the framework of the existing disciplinary measures, but then the question becomes, would they? At that point, the problem may become that they are unable or unwilling to sanction Bush and the U.S. for its actions, due to many other competing factors. If this is the case, wouldn't this arguably do even more damage to the norm? It would open the floodgates for all other IHL and norm violates because they can always point to the hypocrisy of punishing them and not the Bush and U.S. for its violations.
...In the end, however, maybe Bush just doesn't realize they are violations...maybe he truly believes his actions are legal...ignorance may be bliss at times...

Norms

One norm that I think is universally followed, at least within my peers, is the norm of raising one's hand before speaking in class. After close to 20 years of formal education, I find that this norm is strongly ingrained in myself and those around me. The regulative effect of this norm is so strong that it is at the point of being automatic. When I want to speak in class, I raise my hand without thinking about it. Furthermore, when others speak without raising their hands, I am incredibly irked by it, if not personally offended. Although it would be in my own personal interest and to my own advantage in terms of voicing my opinion to simply just speak up whenever I feel like, the thought of doing so within a classroom setting makes me uneasy. I am currently enrolled in a class that is conducted in a group conversational style. Although this set up is quite effective, I sometimes find myself uncomfortable with the potential chaos that I see arising when there is no governing professor to decide who speaks next and when. Maybe this is a psychological trait of mine that is unique to just me, but I think not since I know other students who get as equally annoyed as I when other students are allowed to monopolize the conversation do to the lack of the "hand raising" norm.

My identity of myself as an educated member of the classroom / academic sphere is partially hinged on the fact that I can conduct myself with the proper classroom decorum, which has come to encompass the norm of raising my hand. In other settings, I never feel the need, and would find it incredibly formal and somewhat silly, if others raised their hands before speaking. Could you imagine general grocery store conversations if everyone had to raise their hands before speaking?

3 Kings

This past Monday was the first time I had ever seen the movie "3 Kings" and I have to admit that I enjoyed it more than I thought I would. Whether or not it is an accurate depiction of the situation in the Middle East during the 1st Gulf War is another issue. Leaving that aside, I noticed some glaring violations of IHL.
- The first of these violations was the treatment of POWs. Mark Walhberg (a.k.a. Marky Mark of the infamous funky bunch) was captured by the Iraqis in the film, after which he was attached to electrodes and forced to drink oil. These acts can only be characterized as acts of torture. (Perhaps there are those that would classify them as "aggressive interrogation tactics"...) This is a blatant violation of Article 3 of the Third Geneva Convention's requirements for the treatment of prisoners of war.
- A second violation of IHL was the requirement that all combatants be clearly marked or wear a distinctive symbol. Also codified in the Third Geneva Convention, this provision was violated by many of the Iraqi troops in the film.
- Thirdly, chemical and biological weapons were used in the film. This is arguably in violation of Protocol III of the CCW's prohibition against the use of excessive or indiscriminate weapons.

Lt. Watada

After having read this article, I have to say that I commend Lt. Watada for his actions. It has been clearly established that the only "legal" wars or acts of aggression are those that take place with UN Security Council approval or those that are in response to the threat of imminent attack. Despite what some may say, the U.S. is not facing an "imminent" threat, nor did it face such a threat in the spring of 2003. Therefore, the Bush Administration's invasion of Iraq, without Security Council approval, was an illegal act of aggression that Lt. Watada rightfully refused to take part in. Critics may assert that Lt. Watada is not courageous for defying the wishes of the current administration but is actually a coward for refusing to answer his country's call. To this I say that Lt. Watada is not a coward. He requested to be posted to other places, including conflict zones such as Afghanistan. He is not shying away from carrying out his country's legal missions in dangerous places. He is only refusing to take part in an illegal war waged for an improper purpose.

Attacks on Peacekeepers in Darfur

Although this news story isn't 100% related to the course, I thought it was an interesting read:
BBC Story

The Sudanese government admits to having attacked members of the UN peacekeeping operation, UNamid, in the Darfur region of the country. The government claims that it was a joint mistake between itself and the UN. Mistake or not, I think that its sad that peacekeepers and humanitarian aid workers have, in some ways, become acceptable targets in conflicts zones. Aid workers are meant to provide relief to victims of conflict and when they are placed in vulnerable positions or seen as viable targets, this inhibits their ability to perform their functions and deprives those in need.

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