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...