How Neal Katyal expresses his gratitude to the US:
Defending Osama bin Ladin’s driver, Salim Ahmed Hamdan

This month’s Yale Alumni Magazine interviews celebrity alumnus Georgetown Law Professor Neal K. Katyal, ’95JD Yale Law, preening over his victory in Hamdan v. Rumsfeld, which challenged the authority of the President to consign illegal combatants to trial by military courts, and which elicited the absurd majority opinion, written by Justice Stevens, which erroneously applies the language of Article 3 of the Geneva Convention, viz.,

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions (to):

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause…

to illegal combatants and terrorists captured outside the territory of the United States.

Katyal shares with the Yale Alumni Magazine the heart-warming story of his moving reply to Hamdan, when the imprisoned jihadi asked: “Why do you want to help me?”

So I paused for a long time, and then I said that I was doing this because my parents came to America to give their children better opportunities, and I couldn’t imagine another country on earth in which I would be able to do what I have been able to do. My parents came here from India, literally with eight dollars in their pockets, each of them. And what bothered me the most about the president’s order is that it said only foreigners would get this military justice system. If you were an American citizen, then you got a civilian trial. But if you were a green-card holder or a foreigner, then you got something really inferior. That was the first time that I felt our country was so fundamentally on the wrong path — and I had to do something.

I can relate to Mr. Katyal’s strong feelings of gratitude and appreciation toward the United States, as I come from immigrant background myself. My grandparents arrived here from Lithuania in the 1890s.

Professor Katyal and my father have a lot in common. Both were of the first generation brought up and educated in the United States. Both were grateful for the opportunities offered by the United States, though my father was not so quite so fortunate as Professor Katyal, who attended Dartmouth and Yale Law School.

Because his own father was dying of miner’s asthma, my father had to quit school after 8th grade and go to work in the coal mines to help support the family. But he was still grateful to grow up in the United States, rather than in Russian-occupied Lithuania, grateful for both America’s political freedom and for her economic opportunities, even though he had much less access to the latter than some others.

Despite the things they have in common, still, I cannot help reflecting that my father’s gratitude toward this country expressed itself in forms distinctly different than Professor Katyal’s, forms more recognizable as gratitude. I feel sure that my father left America better off by his relatively obscure contributions, a lifetime of hard labor and wartime military service, when he died in 1997. If Professor Katyal passed away tomorrow, I’m afraid I would find it very difficult to say the same of his more celebrated ones.

I do agree with Professor Katyal on one thing, though. I too cannot “imagine another country on earth in which (he) would be able to do what (he) ha(s) been able to do.”

How my father expressed his gratitude to the US:
Serving in the Marine Corps in the South Pacific

Winchester Model 1897 trench gun

The Bush Administration has been widely criticized for the allegedly unprecedented policy of interpreting the definitions of portions of the Geneva Conventions. And Senators McCain, Graham, and Warner recently waged a very public battle in the Senate specifically to ensure “that there be no attempt to redefine U.S. obligations.”

Bush Administration opponents are mistaken. There is a very prominent case of the United States refusing to accept the definition of treaty terms used by the enemy, and openly defying world opinion.

In WWI, the US military issued Winchester Model 1897 slide-action shotguns to US troops, along with buckshot-loaded cartridges. Each 12 gauge round contained nine size 00 buckshot. The shotguns featured a bayonet lug, and a perforated metal cover to protect the hand from the barrel becoming over-heated by rapid fire.

The shotguns were found to be desirable weapons, very useful for clearing trenches and in close combat. They were particularly popular with the Marines, who put them to conspicuously good use in Belleau Wood.

Germany, in 1918, protested US use of shotguns firing multiple projectile buckshot ammunition as a violation of Section II of the 1907 Hague Convention (the Geneva Convention’s predecessor treaty), which forbade belligerents to employ arms, projectiles, or material calculated to cause unnecessary suffering.

But, as W. Hays Parks, Special Assistant for Law of War Matters, Office of The Judge Advocate General, U.S. Army, notes in a 1997 paper, DA-PAM 27-50-299, the United States interpreted the Hague Treaty differently, rejecting the German protest.

The highly-effective use of the shotgun by United States forces had a telling effect on the morale of front-line German troops. On 19 September 1918, the German government issued a diplomatic protest against the American use of shotguns, alleging that the shotgun was prohibited by the law of war.

After careful consideration and review of the applicable law by The Judge Advocate General of the Army, Secretary of State Robert Lansing rejected the German protest in a formal note.

Threats to punish captured American soldiers found armed with shotguns met the stern US warning that any unjustified measures taken against US prisoners of war would be retaliated in equal measure upon captured Germans.

The reality is that international agreements of this kind invariably include substantial quantities of broad and unspecific statement, inevitably requiring interpretation. Someone has to decide whether 00 buckshot constitutes the kind of projectile “calculated to cause unnecessary suffering.” Someone has to decide today whether keeping someone in a cold room, or subjecting someone to “water-boarding,” constitutes torture.

What is remarkable is that, in the old days, Germany would argue for definitions which were in Germany’s interest, and United States officials would argue for interpretations which were in the interest of the United States. Today, our leading media outlets, a substantial portion of the body of active participants in policy debate, the former Secretary of State, and even three prominent Republican senators are found shouting their heads off in the public square, demanding that the United States adopt interpretations as inconvenient to US interests as possible.

Some of us find all this more than a little grotesque.

The White House has struck a deal with grandstanding GOP Senators McCain, Graham, and Warner intended to allow the Executive Branch to continue to defend the country against terrorist attacks on civilian population centers. Nice of them to agree, don’t you think?

New York Times

Isn’t it wonderful, that, as the calendar ticks forward to the month of Ramadan in which one or more nuclear terrorist attacks on US cities are rumored to be scheduled, three Republican senators and the former Secretary of State Mr. Powell have stepped forward to take control of the fate of the American public, demanding that due regard be paid to our country’s image and to extravagant projections of domestic American legal practice into the unlikely context of the International Underworld of homicidal conspiracy.

OK, Jack Bauer, just make sure that you Mirandize that terrorist, before you remove his finger from the nuclear bomb’s triggering device.

It would be nice to know where the second WMD has been placed, but, remember: you must give Achmed access to his pro bono attorney from Wachtell, Lipton, or Georgetown Law, before you are allowed to ask him if he’d (pretty please, with sugar on it!) like to reveal the other bomb’s location.

Jim Dunnigan’s Strategy Page reports the Judge Advocate General Corps’ military lawyers have grown far more numerous and influential, and that far too many of its members are on the wrong side:

Big brawl going on in the Pentagon between the JAGs (Judge Advocate General, the lawyers) and the operators (combat and intelligence types.) JAGs have become more important, decade by decade, over the last sixty years. This has happened in parallel with the growing influence of lawyers in civilian society. However, lawyers doing what they do has brought them into conflict with the operators. For example, the war on terror has created a murky legal area for captured terrorists. Many JAGs want to give the captured terrorists most of the privileges of civilians, or even soldiers, accused of criminal acts. This creates a conflict with the combat and intel officers, who do not want to give the terrorists access to the identity of informants within terrorist organizations, or other information they have on the terrorists, and how they got it. In the civilian world, the prosecution has to let the defense know all this stuff. That’s why there’s a witness protection program, or cases where the government will not prosecute in order to preserve valuable intel. But such procedures don’t work when most of your witnesses are living in a combat zone, and many of your intelligence collection techniques will be worthless if the enemy knows what they are, putting your own troops at greater risk.

On top of all this, the size of the JAG force has grown some ten percent since the end of the Cold War, while everyone else has shrunk by about a third. As a result, the senior JAGs in each service wants to be three star generals, instead of the current two star.

Now the JAGs are aware of the circumstances under which U.S. troops are fighting, and the importance of OPSEC (Operational Security, keeping info about your activities from the enemy). Even so, many JAGs seem to lose their perspective, and advocate strongly for giving the terrorists the information. Operators believe the JAGs are grandstanding, especially by saying one thing to uniformed people, and something else to the media and Congress. The situation has divided the JAG community as well, and it’s getting ugly.

Lindsey Graham (R-SC) has got to be an idiot. AP reports that Graham said:

If it‘s seen that our country is trying to redefine the Geneva Convention to meet the needs of the CIA, why can‘t every other country redefine the Geneva Convention to meet the needs of their secret police?” Graham asked.

The entire point of the Geneva Conventions is reciprocity. A signatory only promises to take prisoners, treat them decently, not use germ warfare or poison gas, not because they are trying to prove who is more humanitarian than whom, but merely so that their own troops will enjoy the decent treatment and the enemy’s restraint.
But our enemies, in recent years, have rarely been civilized European states, like Germany, who are signatories. Our enemies lately have been terrorists and illegal combatants, who simply torture, murder, and mutilate the remains of any Americans so unfortunate as to fall alive into their hands.

It is the misapplication of the Geneva Convention, and the unwarranted extension of its privileges to latrunculi (pirates and brigands), which jeopardizes US troops, by preventing just punishment for violation of the customs and usages of war. Obviously, the way you protect your own troops is to deny Geneva Convention protections to those who do not live up to its prescriptions, not by giving away Geneva Convention status to to our adversaries, however they choose to behave.

“Oh, I say, old boy, go right ahead and kill every prisoner out of hand. Use poison gas and germ warfare, if you like. Butcher all the non-combatants you please. But we Americans are simply too good, and fine, and pure to stoop to mistreating you. Keep the secret of the location of the diabolical device which will blow up one of our major cities, and kill a hundred thousand Americans. We certainly won’t beat it out of you.”

Democrat control of either house of Congress will almost certainly result in grandstanding Congressional committees investigating alleged violations of international law and human rights in the detention and interrogation of terrorists. It has been generally recognized that restraints on US Intelligence operations imposed as a result of the 1970s Frank Church-led CIA hearings had a great deal to do with the government’s failure to prevent the 9/11 attacks. The consequences of another Congressional Intelligence witch hunt are likely to be just as devastating.

The Washington Post reports that CIA officers are buying Congressional politics insurance.

It takes our own unique combination of vicious partisanship, habitual domestic treason, and opportunistic litigation to produce the need for such insurance for those who protect America from foreign enemies. We could translate Juvenal’s Quis custodiet ipsos custodes? differently today: Who will defend our defenders

CIA counterterrorism officers have signed up in growing numbers for a government-reimbursed, private insurance plan that would pay their civil judgments and legal expenses if they are sued or charged with criminal wrongdoing, according to current and former intelligence officials and others with knowledge of the program…

Justice Department political appointees have strongly backed the CIA interrogations. But “there are a lot of people who think that subpoenas could be coming” from Congress after the November elections or from federal prosecutors if Democrats capture the White House in 2008, said a retired senior intelligence officer who remains in contact with former colleagues in the agency’s Directorate of Operations, which ran the secret prisons.

“People are worried about a pendulum swing” that could lead to accusations of wrongdoing, said another former CIA officer.

The insurance policies were bought from Arlington-based Wright and Co., a subsidiary of the private Special Agents Mutual Benefit Association created by former FBI officials. The CIA has encouraged many of its officers to take out the insurance, current and former intelligence officials said, but no one interviewed would reveal precisely how many have bought policies…

The insurance, costing about $300 a year, would pay as much as $200,000 toward legal expenses and $1 million in civil judgments. Since the late 1990s, the CIA’s senior managers have been eligible for reimbursement of half the insurance premium.

In December 2001, with congressional authorization, the CIA expanded the reimbursements to 100 percent for CIA counterterrorism officers. That was about the time J. Cofer Black, then the CIA’s counterterrorism chief, told Bush that “the gloves come off” and promised “heads on spikes” in the counterterrorism effort.

“Why would [CIA officers] take any risks in their professional duties if the government was unwilling to cover the cost of their liability?” asked Rep. Rob Simmons (R-Conn.), a former CIA officer, during congressional debate that year.

Although suing federal officials for their actions is not easy, it is possible; the Supreme Court left the door ajar in two rulings. It ruled in 1971 that six narcotics agents could be sued for monetary damages arising from a warrantless search. Eleven years later, it held that government officials should be immune from civil liability only if their conduct does not violate clear statutory or constitutional rights that should be known by “a reasonable person.”

William L. Bransford, a senior partner at the law firm that defends people who take out the insurance, said he is unaware of any recent increase in claims. But agency officials said that interest has been stoked over the years by the $2 million legal bill incurred by CIA officer Clair George before his 1992 conviction for lying to Congress about the Iran-contra arms sales; by the Justice Department’s lengthy investigation of CIA officers for allegedly lying to Congress about the agency’s role in shooting down a civilian aircraft in 2001 in Peru; and by other events.

CIA employees outside the counterterrorism field who are eligible for reimbursement include the agency’s supervisors, attorneys, equal-opportunity- employment counselors, auditors, polygraph examiners, security adjudicators, grievance officers, inspectors general and internal investigators, he said. One in 10 eligible employees sought reimbursement last year, Mansfield said, adding that the fraction from previous years and a breakdown on those in the counterterrorism field were not immediately available.

Douglas R. Burgess Jr. makes the argument again that Islamic terrorists should be being viewed legally as a contemporary species of pirate.

More than 2,000 years ago, Marcus Tullius Cicero defined pirates in Roman law as hostis humani generis, “enemies of the human race.” From that day until now, pirates have held a unique status in the law as international criminals subject to universal jurisdiction—meaning that they may be captured wherever they are found, by any person who finds them. The ongoing war against pirates is the only known example of state vs. nonstate conflict until the advent of the war on terror, and its history is long and notable. More important, there are enormous potential benefits of applying this legal definition to contemporary terrorism…

Until 1856, international law recognized only two legal entities: people and states. People were subject to the laws of their own governments; states were subject to the laws made amongst themselves. The Declaration of Paris created a third entity: people who lacked both the individual rights and protections of law for citizens and the legitimacy and sovereignty of states. This understanding of pirates as a legally distinct category of international criminals persists to the present day, and was echoed in the 1958 and 1982 U.N. Conventions on the Law of the Sea. The latter defines the crime of piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends.” This definition of piracy as private war for private ends may hold the crux of a new legal definition of international terrorists…

TO UNDERSTAND THE POTENTIAL OF DEFINING TERRORISM as a species of piracy, consider the words of the 16th-century jurist Alberico Gentili’s De jure belli: “Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they find no protection in that law.” Gentili, and many people who came after him, recognized piracy as a threat, not merely to the state but to the idea of statehood itself. All states were equally obligated to stamp out this menace, whether or not they had been a victim of piracy. This was codified explicitly in the 1856 Declaration of Paris, and it has been reiterated as a guiding principle of piracy law ever since. Ironically, it is the very effectiveness of this criminalization that has marginalized piracy and made it seem an arcane and almost romantic offense. Pirates no longer terrorize the seas because a concerted effort among the European states in the 19th century almost eradicated them. It is just such a concerted effort that all states must now undertake against terrorists, until the crime of terrorism becomes as remote and obsolete as piracy.

But we are still very far from such recognition for the present war on terror. President Bush and others persist in depicting this new form of state vs. nonstate warfare in traditional terms, as with the president’s declaration of June 2, 2004, that “like the Second World War, our present conflict began with a ruthless surprise attack on the United States.” He went on: “We will not forget that treachery and we will accept nothing less than victory over the enemy.” What constitutes ultimate victory against an enemy that lacks territorial boundaries and governmental structures, in a war without fields of battle or codes of conduct? We can’t capture the enemy’s capital and hoist our flag in triumph. The possibility of perpetual embattlement looms before us.

If the war on terror becomes akin to war against the pirates, however, the situation would change. First, the crime of terrorism would be defined and proscribed internationally, and terrorists would be properly understood as enemies of all states. This legal status carries significant advantages, chief among them the possibility of universal jurisdiction. Terrorists, as hostis humani generis, could be captured wherever they were found, by anyone who found them. Pirates are currently the only form of criminals subject to this special jurisdiction.

Second, this definition would deter states from harboring terrorists on the grounds that they are “freedom fighters” by providing an objective distinction in law between legitimate insurgency and outright terrorism. This same objective definition could, conversely, also deter states from cracking down on political dissidents as “terrorists,” as both Russia and China have done against their dissidents.

Recall the U.N. definition of piracy as acts of “depredation [committed] for private ends.” Just as international piracy is viewed as transcending domestic criminal law, so too must the crime of international terrorism be defined as distinct from domestic homicide or, alternately, revolutionary activities. If a group directs its attacks on military or civilian targets within its own state, it may still fall within domestic criminal law. Yet once it directs those attacks on property or civilians belonging to another state, it exceeds both domestic law and the traditional right of self-determination, and becomes akin to a pirate band.

We previously cited Mackubin Thomas Owens’ Detainees or POWs?, which identifies Sir Michael Howard as making the same point in 2001:

The real reason the detainees are not entitled to POW status is to be found in a distinction first made by the Romans and subsequently incorporated into international law by way of medieval European jurisprudence. As the eminent military historian, Sir Michael Howard, wrote in the October 2, 2001 edition of the Times of London, the Romans distinguished between bellum, war against legitimus hostis, a legitimate enemy, and guerra, war against latrunculi — pirates, robbers, brigands, and outlaws — “the common enemies of mankind.”

The present governments of Britain and the United States have vast military resources and enormously large cabinet departments filled with trained attorneys. It speaks eloquently of the decay of our educational system internationally that this fundamentally important aperçu needs to be advanced in the remoter reaches of the blogosphere five years after 9/11.

The Guardian writes (with big salty tears running down its editorial cheek):

“Why are the liberals always on the other side?” asks the fictional French military commander Colonel Mathieu when he is challenged, in The Battle for Algiers, for using torture to fight terror. The film suggests that torture works as a tool of immediate necessity, even if the consequences are a blurring of morality and so final defeat. Four decades on, Mathieu’s charge against liberal scruples is still being raised, implicit in the defence of the means being used in a modern battle against Islamic terror…

Reports from Pakistan suggest that much of the intelligence that led to the raids came from that country and that some of it may have been obtained in ways entirely unacceptable here. In particular Rashid Rauf, a British citizen said to be a prime source of information leading to last week’s arrests, has been held without access to full consular or legal assistance. Disturbing reports in Pakistani papers that he had “broken” under interrogation have been echoed by local human rights bodies. The Guardian has quoted one, Asma Jehangir, of the Human Rights Commission of Pakistan, who has no doubt about the meaning of broken. “I don’t deduce, I know – torture,” she said. “There is simply no doubt about that, no doubt at all.” If this is shown to be the case, the prospect of securing convictions in this country on his evidence will be complicated.

Rational adults would suppose that a terrorist, apprehended outside British jurisdiction, might have to take his chances with the local legal system, and the sort of unsympathetic treatment traditionally meted out to hostes humani generis [the common enemies of mankind], who have by their own actions placed themselves outside both the laws of ordinary society and the laws of war.

Faced wih a choice of, say, 3000 innocent lives versus Mr. Rauf’s supposed privileges and comfort, any responsible person charged, like Colonel Mathieu in the Pontecorvo film, would inevitably be forced to do what was necessary to protect the innocent.

Only imbeciles and sentimental poseurs would agree with the Guardian.

The Financial Times reports

the White House on Tuesday confirmed that Gordon England, deputy defence secretary, sent a memorandum to senior defence officials and military officers last week, telling them that Common article III of the Geneva Convention — which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial — would apply to all detainees held in US military custody.

The Administration is knuckling under to the Supreme Court’s preposterous application of Geneva Convention status in Hamdan.

The sanctimonious do-gooder element is burbling with joy. Dave Hoffman aptly compared Hamdan with Brown, and he’s perfectly correct.

As in Brown, the Hamdan decision takes a leap of faith in the legitimacy of particular justices’ self-righteous moral intuitions as a basis for overruling objective law, counting on the sentimentality of the general public to affirm politically over time the Court’s decision.

There is a difference, though. The Brown decision was made at a time when state segregation represented a strange anachronism, when the laws under scrutiny were nearly universally despised, when the legal fruit was already overripe and ready to drop off the vine of its own accord.

The principle of reciprocity in the laws and usages of war has considerably greater vitality and reason behind it than Jim Crow ever did. The entire point of the Geneva Convention is to encourage humane treatment of prisoners of war on the basis of reciprocity. Signing the Convention is a promise that, if you do not abuse our soldiers who fall into your hands, we will also spare yours.

Justice Stevens’ generosity in the awarding of honorable status, rights, and protections to illegal combatants really represents a fraudulent check written at the expense of American fighting men.

When Justice Stevens effeminately promises that illegal combatants, terrorists, murderers, and brigands will all be treated as honorable adversaries, attempting to preclude the American fighting man, exposed to the hazard of falling alive into the hands of a merciless and barbarous enemy, from punishing violations of the customs and usages of war, he goes far beyond his own legitimate perogative. The decision to spare this enemy’s life, or that, belongs to the man who bested him, not to some theorist and scribbler sitting in a marble building in the District of Columbia.

In WWII, my father served in the USMC on Guadalcanal. He told me that the Japanese had people able to speak English, and in the long tropical nights, the Japanese forces would amuse themselves by imitating the pleas for assistance of a wounded American lying helpless between the fighting lines. Naive young Marines often had to be restrained physically from climbing out their foxholes and dashing off into the night to the rescue of their miserable and suffering fellow Marine. Every now and then, an individual hero would break free, and go out there. They always found him the next day, crucified with Japanese bayonets to a palm tree, his reproductive organs cut off and stuffed insultingly in his mouth. The Marines on Guadalcanal consequently took no Japanese prisoners, except for the purpose of short and forcible interrogation.

In today’s absurd world, bourgeois lawyers, safe in the United States and far from the fighting (who know nothing of war) would interpose their own opinions and emotions between the just revenge of American fighting men and a cowardly and dishonorable enemy.

The answer to Justice Stevens is simple. US forces will need to be certain to take no illegal combatants alive.

Members of the Trans-Atlantic intelligentsia today live unprecedently comfortable and domesticated lives, and enjoy such affluence and personal security that instead of worrying about the basics of survival (like people in the past) they are apt to seek the perfection of their selves. They take care to obtain the finest educations, they select and pursue the most prestigious and gratifying careers, they exercise and jog, and they contemplate with great care all questions of ethics. Even ordinary and banal matters, like cooking lobsters, to them commonly rise to levels of grave and serious concern.

So exquisite and precieux have become the souls of our contemporary elites that they simply cannot bear to contemplate the idea of themselves (or anyone else) inflicting suffering on human or animal, crustacean or terrorist.

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When I was a little boy, I once had a dog I loved very much, but who was unfortunately a very bad dog. You couldn’t walk him on a leash: he was strong, willful, and could pull even an adult off his feet.

My dog would obey no one. He terrorized the neighborhood, and frequently treed one neighbor’s cat. One day, he escaped from our backyard, and proceeded to the unimaginable atrocity of attacking a neighbor’s freshly washed sheets drying outdoors on a clothes-line. He tore most of them to shreds, and soiled the rest. My father had to face a female neighbor’s righteous wrath, and he had to make expensive restitution.

I woke up one morning shortly afterward to find my beloved dog missing.

I was heartbroken, but my parents explained that, though he was a wonderful dog, he had not really been happy living in a town (where he would get into trouble playing with people’s bed sheets). So they decided it would be best for him to go and live on a farm in the country, a place where dogs could run free.

The farm was a wonderful place, and a dog could have fun all day doing all the things he liked to do. The farmer was delighted to own such a wonderful dog, and this was the best possible arrangement for everyone. I missed my dog, of course, but I was happy to think of him happy, safe, and enjoying himself.

Many years later, when I was an adult, my father admitted to me that he took that dog up on the mountain, fired both barrels of his 12 gauge shotgun into him, and walked away.

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In a lot of ways, our intelligentsia today are like children. They have no first hand experience commonly of the harsh and difficult choices adults have to make. And, like children, they are naive and sentimental, and do not understand evil.

What the rest of us need to do for Justice Stevens, Andrew Sullivan, and the Trans-Atlantic chattering classes generally is just explain that those Islamic terrorists weren’t happy in Afghanistan, Iraq, or Guantanamo Bay. They were only getting into trouble. So we had to let them all go off and live on the farm, where they could run free, set off all the bombs they like, and do all those other fun Islamic things they like to do. The farmer had never seen such wonderful terrorists, he said. He used to raise terrorists, he said. He loved terrorists, and he was delighted to adopt these.

The Russian News and Information Agency Novosti reports that Vladimir Putin has put out a hit order on the insurgent killers of the four Russian diplomats slain in Iraq.

President Vladimir Putin Wednesday ordered Russia’s special services to do everything necessary to find and eliminate the killers of four Russian diplomats in Iraq, the Kremlin press service said….

Nikolai Patrushev, the head of the Federal Security Service, told journalists that his service had received the instructions. “We will work to ensure so that not one of the terrorists who committed the crime escapes just punishment,” he said.

It is credibly rumored that when several Russian diplomatic personnel, including the KGB rezident, were kidnaped by Hezbollah in Lebanon back in the 1980s, Russian specialists were dispatched to Beirut, who proceeded to kidnap near relatives of Hezbollah’s leadership. The male apparatus of those captured relations was delivered to Hezbollah bosses, along with a promise that the Russian security forces would be collecting theirs as well, if the Russian diplomats were not released immediately unharmed. The Russians were released.

The effectiveness of Russian measures contrasted with useless American pleas for the release of Beirut CIA station chief William Buckley, whose death by torture was videotaped and tauntingly released to the Press.

Whatever will the Council of Europe, the New York Times editorial page, and Andrew Sullivan have to say, do you suppose, about the soon-to-occur treatment of the insurgent kidnappers by avenging Russian security forces?

Will accusations of denial of due process and Geneva Convention Rights make the front page of the Post and the Times? Will Seymour Hersch expose Russsian brutality in the New Yorker? Will the lachrymose chorus of blogging bed-wetters spill another few trillion electrons condemning Russian coercive interrogation?

Frankly, I doubt it.

Terrorists in Iraq, wearing no uniforms, recently violated the laws of war by the barbarous murder of two US soldiers.

AP:

The U.S. military recovered the booby-trapped bodies of two missing soldiers Tuesday, and Iraqi officials said the Americans were tortured and killed in a “barbaric” way. An insurgent group claimed the new leader of al-Qaida in Iraq executed the men personally…

“Coalition forces had to carefully maneuver their way through numerous improvised explosive devices leading up to and around the site,” the military said in a statement. “Insurgents attempting to inflict additional casualties had placed IEDs around the bodies.”

A number of the usual offenders from the Blogosphere have taken this occasion, when we should all be voicing our indignation at the conduct of the enemy, and wishing our troops success in hunting the malefactors down and exacting vengeance, instead to strike moralizing poses and quote grave legal opinions, informing us of imaginary obligations to avoid excessive injury to the enemy.

Stephen Bainbridge turns to Blackstone’s Commentaries on the Laws of England:

Islamofascist terrorists will use torture regardless of whether the US responds in kind or not…

The Anglo-American tradition, according to the great English jurist William Blackstone, includes a “prohibition not only of killing and maiming, but also of torturing (to which our laws are strangers).” We thus ought to abstain from torture simply because a prohibition of torture is part of the moral and legal heritage we are fighting to defend.

Andrew Sullivan gets carried away with himself to the point of spouting treason, attributing to us moral equivalence with this particularly vicious and cowardly enemy.

One can only wish that Andrew Sullivan would go out to a workingman’s bar, and repeat exactly the same sentiments, in order to give some right-thinking American the opportunity to rebuke them in the most appropriate fashion.

My point is that we can no longer unequivocally condemn the torture of these two soldiers because we have endorsed and practised torture ourselves. What was once a difference in kind between us and our enemy is now a difference in degree. That fact profoundly weakens our moral standing in the world, the power of our cause, and impedes the long-run success in the war of ideas that the war on terror involves.

Gregory Djerejian contributes additional sanctimony.

Clearly, when American soldiers are tortured, murdered, and multilated by illegal combatants, the decision of just how the perpetrators should be punished, were the perpetrators of that outrage so unfortunate as to fall alive into the hands of US forces, ought to be the perogative of the local American commander. Politicians should not interfere, and the opinions of domestically-based law professors, corporate attorneys, and old ladies are completely beside the point.

The Laws of England and the Laws of the United States have not a thing to do with any of this. War takes place outside the jurisdiction of civilian law, and the murderers of Privates Menchaca and Tucker have no claim whatsoever to the privileges and immunities of the US legal system nor the least pretence to a right to be treated as prisoners of war.

They are unlawful combatants, and are eggregiously guilty of violating the customs and usages of war. Their lives ought to be regarded as forfeit, and the only questions a US commander on the scene ought to be asking himself in the event of their capture are: what form of execution would be regarded as most disagreeable by primitives infatuated with Islamic superstition? and, what would make the most dramatic impression, and provide the greatest deterrence to future outrages?

The British avenged the Sepoy Rebellion of 1857 by tying the mutineers to the muzzles of cannons, which were then fired. Surely, we can do better today.