Thursday, June 26, 2003

Legal Affairs has a brief, interesting argument about the legal issues surrounding the killing of Iraqi soldiers during the US lightning invasion. Thanks to the indispensible Arts & Letters Daily for the link.

David Bosco writes, "Estimates of Iraqi military deaths are hard to come by, but it may turn out that close to 10,000 Iraqi soldiers died in the war, compared to just over 100 coalition soldiers killed in combat. The numbers demonstrate that American military technology is rendering enemy combatants less and less dangerous.

"To further blur the moral distinction between combatant and civilian, many of the Iraqi dead were conscripts who fought under threat. Lopping off the ears of draft-dodgers seems to have been a favorite Saddam tactic. The U.S. fought to end a horrific regime against an army partially made up of the regime's victims."

That's troubled me, but according to Bosco, a lawyer in Washington who has reported on peacekeeping efforts in Bosnia and Kosova, in order to protect civilians -- which the US did admirably by all reports -- the "Law of War" must be strictly observed -- killing civilians is wrong, killing soldiers is right. In fact, Bosco expresses concern that US military planners tried to hold down the numbers of conscripts killed by going after Baath party officials running the country. In other words, civilians.

Bosco writes, "The law must be agnostic about the motivations of the parties to be effective. It can treat targets only as lawful or unlawful, not as guilty or innocent. Viewed through the leveling lens of the law, an Iraqi television facility [airing propaganda to incite civilians] is equivalent to the offices of The New York Times. A civilian, however implicated in brutality, has to remain off limits—while a conscript fighting for Saddam with a gun to his head is fair game."

Clearly the moral view — kill the totalitarian leaders to shorten the war, thus saving the lives of ordinary grunts — is going to bump against the legal view if we follow the Bush admin's policy of preemption and our high-tech weaponry continues to improve on the ability to target individuals remotely.

Also instructive is Alan Berlow's reporting on "The Texas Clemency Memos" (there's a number of interesting articles in The Atlantic this month, I'll talk about Kaplan's argument one of these days).

It seems that Alan Gonzales, now the White House counsel, and a frontrunner (though still a longshot, I think) for the Supremes, prepared 57 of these memos for then-Governor George W. Bush. The memos, Berlow writes, are prosecutorial in viewpoint and the very definition of the word, "brief." "In his summary of the case of David Wayne Stoker, Gonzales left out the fact that James Grigson, the psychiatrist who testified that Stoker was a sociopath who would 'absolutely' be violent again, had never even examined Stoker."

Apparently, the Stoker case was the norm, not the exception. "Consider the case of Billy Conn Gardner, whose death-penalty case was plagued by issues of incompetent counsel, dubious witness testimony, and unheard mitigating evidence.

"Gonzales's report to Bush gave no sense of these circumstances..."

Berlow continues, "Gonzales's written execution summaries were Governor Bush's primary source of information in deciding whether someone would live or die. But Gonzales usually presented them to Bush on the day of an execution, and his oral briefings typically lasted no more than thirty minutes."

This is pretty surprising -- or not, depending on your view -- Berlow cites several instances where Bush or his handlers conveyed a very different face to his approach to the death penalty. In "A Charge to Keep" Karen Bush wrote that "For every death penalty case, they brief me thoroughly, review the arguments made by the prosecution and the defense, raise any doubts or problems or questions." His advisor on criminal-justice policy, Johnny Sutton, told The New York Times in May of 2000, "This is probably the most important thing we do in state government."

But this fits a pattern. Clearly, Bush early on in his term as governor -- perhaps well before taking office -- indicated that he wasn't interested in commuting death penalty cases. If the defendent had run out of his appeals, Bush would not act as a last resort, and that only the narrowest of interpretations of the case at hand would be tolerated.

Gonzales, then, simply provided his boss what he wanted -- a straightforward, black & white support for not commuting the sentence. Ambiguity annoys Bush. Extenuating circumstances are not appreciated. Point out the grey areas to him and you may not keep your job for long.

Berlow doesn't make this point, but his story does make the tale of the missing WMDs a little easier to understand. What did George Bush know and when did he know it? It's likely that Bush didn't know because he didn't want to know. And that was made clear to the intelligence community. Suggesting that the intelligence couldn't precisely say what stage Iraq's weapons programs were in would simply not be tolerated. "Can't see it?" I can hear Rumsfeld and Cheney saying to George Tenet. "Well, you didn't see 9-11 either, did you? You had better find a way to see it."

They're then able to deliver to their boss a brief, easy to understand series of "proofs" that Iraq should have its head lopped off. And soon.

But what I find troubling in both the execution memoranda and the events leading up to Bush's state of the union address, where he cited the known-to-be-bogus information about Iraq's nuclear program and ties to al Qaeda, is this: Ok, Bush is not intellectually curious. And yes, I understand he surrounds himself with a small coterie of loyalists who supply him with arguments that reinforce his worldview. I get all that. But does that mean Bush lives in a vacuum, totally devoid of information from other sources. I mean, I know he hates the Times and probably the WaPost, but doesn't he even glance at these papers. Doesn't someone brief him on what the Times and Post -- and Wall Street Journal -- are saying about him and the events that affect his presidency?

Surely, during his time in Texas, where, according to Berlow, "more than a third of executions in the United State since 1976 have occurred; where half of all capital cases are overturned on appeal because of errors during the trial; where seven innocent men have been freed from death row, including one under Bush...," the extenuating circumstances surrounding the trials of the condemned hoping for Bush's mercy must have been reported on by the Dallas Morning News and other papers.

But Bush couldn't be bothered to check it out and his advisors knew better than to inform him of those circumstances.

Speaking of the Supremes, I don't know enough to comment on the Affirmative Action decisions, though they seem typically -- Supremely, in fact -- schizoid. But I did find Maureen Dowd's column a great examination of the weird and tortured soul that is Clarence Thomas.


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