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April 04, 2007

Staring Into The Abyss

There are many kinds of courage.

In a man's world, conquest is the crucible in which he is measured and found worthy; the road to Valhalla. Small boys eagerly gobble up tales of heroes performing feats of daring against mighty foes. Young men dream of glory, imagining themselves in countless confrontations against dastardly and despicable enemies. But in the end, virtue and valour win the day.

In such childish imaginings the lines between good and evil are drawn with brilliant clarity, each limned with its own blinding corona. It is impossible to mistake one for the other. If only real life were that simple:

When the Pentagon needed someone to prosecute a Guantanamo Bay prisoner linked to 9/11, it turned to Lt. Col. V. Stuart Couch. A Marine Corps pilot and veteran prosecutor, Col. Couch brought a personal connection to the job: His old Marine buddy, Michael "Rocks" Horrocks, was co-pilot on United 175, the second plane to strike the World Trade Center on Sept. 11, 2001.

The prisoner in question, Mohamedou Ould Slahi, had already been suspected of terrorist activity. After the attacks, he was fingered by a senior al Qaeda operative for helping assemble the so-called Hamburg cell, which included the hijacker who piloted United 175 into the South Tower. To Col. Couch, Mr. Slahi seemed a likely candidate for the death penalty.

"Of the cases I had seen, he was the one with the most blood on his hands," Col. Couch says.

But, nine months later, in what he calls the toughest decision of his military career, Col. Couch refused to proceed with the Slahi prosecution. The reason: He concluded that Mr. Slahi's incriminating statements -- the core of the government's case -- had been taken through torture, rendering them inadmissible under U.S. and international law.

Torture is a strong word. An ugly word. We instinctively avert our gaze, change the subject, get away if we can before we are forced to take a stand. The very mention of torture repulses us, as it should, and for very different reasons.

Some maintain that any coercive interrogation measures which temporarily degrade the essential dignity of a human being amount to torture. This would include even such treatment as deceiving, pressuring, ridiculing, humiliating, or frightening prisoners and placing them in 'stress positions'. Others contend anyone who has undergone severe physical torture (broken bones, rape, burns, electrical shock, dislocated joints) rightly considers such timid half measures a walk in the park.

Then there are those who adamantly maintain that torture doesn't work, an odd contention for a practice which has survived for thousands of years; a premise belied by the testimony of hundreds of torture survivors who say that eventually, everyone breaks under unrelenting physical abuse. Others say statements given under torture cannot be relied upon, that torture victims simply agree to whatever they are asked. But this premise, too, is easily refuted. While it is clearly a danger that coerced prisoners may simply tell their interrogators what they want to hear, more comprehensive answers (especially those which volunteer information not contained in the question) can easily be checked against pre-existing knowledge.

In the end, it is only the third objection which is compelling: is torture ever morally justified? Do two wrongs make a right? And herein lies the rub:

The Slahi case marks a rare instance of a military prosecutor refusing to bring charges because he thought evidence was tainted by torture. For Col. Couch, it also represented a wrenching personal challenge. Laid out starkly before him was a collision between the government's objectives and his moral compass.

These kinds of concerns will likely become more prevalent as other high-level al Qaeda detainees come before military commissions set up by the Bush administration. Guantanamo prosecutors estimate that at least 90% of cases depend on statements taken from prisoners, making the credibility of such evidence critical to any convictions. In Mr. Slahi's case, Col. Couch would uncover evidence the prisoner had been beaten and exposed to psychological torture, including death threats and intimations that his mother would be raped in custody unless he cooperated.

Col. Couch began his assignment at the Office of Military Commissions in August 2003. Soon after arriving at the commissions' offices in Crystal City, Arlington, Va., he was handed files on several Guantanamo prisoners. The Slahi file stood out as the one directly connected to 9/11.

Mr. Slahi, now 37, is the eighth of 12 children born to a Mauritanian camel herder, according to his lawyers. He studied electrical engineering in Germany and later ran an Internet cafe. Before 9/11, U.S. authorities tried unsuccessfully to link him to the so-called Millennium Plot to blow up Los Angeles International Airport. Mauritanian authorities picked him up after Sept. 11, and shipped him to Jordan, according to testimony he gave to a Guantanamo detention board.

The U.S. got a break one year later, when Ramzi Binalshibh, a top al Qaeda operative, was captured in Pakistan. He told the CIA that in 1999, Mr. Slahi sent him and three future 9/11 hijackers -- Mohammed Atta, Ziad Jarrah and Marwan al-Shehhi -- from Germany to Pakistan, and then to al Qaeda headquarters in Afghanistan. There, according to the 9/11 Commission, Mr. bin Laden assigned them to the 9/11 operation.

But beyond Mr. Binalshibh's uncorroborated statements, Col. Couch had little additional evidence.

In Crystal City, morale was sinking. Several junior officers complained that, in its rush to win convictions, the office was proceeding with shaky cases, overlooking allegations of abuse and failing to protect exculpatory evidence. Allegations of torture at places such as Abu Ghraib had not yet surfaced, but some officers were starting to express their unease in private. A handful of prosecutors would later quit rather than take part in trials they considered rigged.

Subsequent internal reviews found no criminal wrongdoing, but prompted a shake-up in which the then-chief military commissions prosecutor was ousted.

Col. Couch had his own misgivings. On his first visit to Guantanamo in October 2003, he recalls preparing to watch an interrogation of a detainee when he was distracted by heavy-metal music. Accompanied by an escort, he saw a prisoner shackled to a cell floor, rocking back and forth, mumbling as strobe lights flashed. Two men in civilian dress shut the cell door and told Col. Couch to move along.

"Did you see that?" he asked his escort. The escort replied: "Yeah, it's approved," Col. Couch says. The treatment resembled the abuse he had been trained to resist if captured; he never expected Americans would be the ones employing it.

The incident "started keeping me up at night," he says. "I couldn't stop thinking about it."

Col. Couch contacted a senior Marine lawyer who had been an informal mentor. The officer said: "I know there's a lot of stuff going on, and that's why we need people like yourself in this situation," Col. Couch recalls. "You're shirking your responsibility if you've got issues and you're not willing to do something about it."

It was thus that Lt. Colonel Couch found himself staring into the abyss, that dark and treacherous place for which boyish dreams failed to prepare him.

Some may think the choice Lt. Col. Couch faced a simple one. Perhaps it was, in the strictly legalistic sense in which such decisions are often taken:

The military commissions trying the cases of foreign terrorists don't hew to the rules that govern civilian courts or courts-martial. The 2006 Military Commissions Act permits use of evidence obtained before Dec. 30, 2005, through "cruel, inhuman or degrading" methods, although it bars any obtained by torture.

Top U.S. government officials won't specify which practices cross the line beyond stating that prisoners should be treated "humanely." Such ambiguity has forced decision-making down the chain of command. Even Guantanamo's chief prosecutor, Air Force Col. Moe Davis, says he's still not sure how the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment applies to military commissions.

A report into abuses at Guantanamo concluded that the "threats" made to Mr. Slahi "do not rise to the level of torture as defined under U.S. law" but did violate the Uniform Code of Military Justice, which governs the conduct of the armed forces. The Pentagon won't say how the report reached that conclusion.

By May 2004, Col. Couch had most of the picture relating to Mr. Slahi's treatment, and faced a painful dilemma: Could he seek a conviction based on statements he thought were taken through torture, as permitted by President Bush's November 2001 military commission order citing a "state of emergency?" Or was he nonetheless bound by the Torture Convention, which bars using statements taken "as a result of torture...as evidence in any proceedings."

The convention says "no exceptional circumstances whatsoever" can be cited to justify torture, which it defines broadly. The 1994 federal statute implementing the treaty contains additional definitions, including the "threat of imminent death" or "severe physical pain or suffering," as well as the actual or threatened use of "mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality."

Col. Couch was uneasy over interfering with plans to try Mr. Slahi, given the detainee's history. He turned to others with his dilemma, including Marine lawyers he knew and his wife's two brothers -- one a Protestant theologian, the other a retired Marine infantry officer. Because of the classified nature of the information, Col. Couch didn't give them specifics about the case, and spoke only in generalities. Their advice conflicted.

"He wanted to be a good solider and yet on the other hand felt his duty to his God to be the greatest duty that he had," recalls Bill Wilder, director of educational ministries at the Center for Christian Study, Charlottesville, Va. "He said more than once to me that human beings are created in the image of God and as a result we owe them a certain amount of dignity."

Mr. Wilder says he agreed with Col. Couch's concerns. "Stuart, you need to pray about this," Mr. Wilder says he advised.

Briant Wilder, the other brother and a former Marine lieutenant, urged Col. Couch to instead consider the context of the war on terrorism, where obtaining intelligence could be crucial to protecting innocent lives.

"I have to also say that I don't agree with everybody's definition of torture," Mr. Wilder says. "If some of the things that people say are torture were torture, then I was tortured at Officer Candidate School at Quantico. And so was he."

In May 2004, attending a baptism at Virginia's Falls Church, Col. Couch joined the congregation in reciting the liturgy. The reading concluded, as is typical, with the priest asking if congregants will "respect the dignity of every human being."

"When I heard that, I knew I gotta get off the fence," Col. Couch says. "Here was somebody I felt was connected to 9/11, but in our zeal to get information, we had compromised our ability to prosecute him." He says, in retrospect, the tipping point came with the forged letter about Mr. Slahi's mother. "For me, that was just, enough is enough. I had seen enough, I had heard enough, I had read enough. I said: 'That's it.' "

In May 2004, at a meeting with the then-chief prosecutor, Army Col. Bob Swann, Col. Couch dropped his bombshell. He told Col. Swann that in addition to legal reasons, he was "morally opposed" to the interrogation techniques "and for that reason alone refused to participate in [the Slahi] prosecution in any manner."

To frame Couch's dilemma, it is necessary to pull out a few salient points:

1. Lt. Colonel Couch believed Slahi to have "blood on his hands".

2. Though only indirectly referenced by the WSJ article, Slahi had been under suspicion of al Qaeda involvement as early as 1998, when he was overheard on transmissions of a cellphone traced to bin Laden. He also admits travelling to Afghanistan in 1990.

3. Slahi was implicated by another detainee in the formation of the Hamburg Cell involved in the 9/11 attack on the WTC. He was also under suspicion in the Millenium plot, though the evidence was extremely tenuous:

In 1999, U.S. authorities tried to link Mr. Slahi to the so-called Millennium Plot to blow up Los Angeles International Airport. The would-be bomber, Ahmed Ressam, had attended a Montreal mosque where the Mr. Slahi, a Mauritanian, had been installed as prayer leader. U.S. officials suggested Mr. Slahi had come to activate a terrorist cell. Canadian authorities put Mr. Slahi under surveillance but lacked grounds to arrest him.

The following month, Mr. Slahi left for Mauritania, where he was questioned repeatedly by local authorities and the U.S. During three weeks in custody, Mr. Slahi denied knowledge of the Millennium Plot, and the Americans gave up, according to news reports and his own later testimony.

4. Though Slahi had been in custody for quite some time without cooperating with interrogators, Couch oddly complains that the government "ruined" the case against Slahi. This makes little sense, since it doesn't appear there was much of a case against Slahi until he started talking.

The only real evidence against Slahi was the "uncorroborated" testimony of another detainee - Binalshibh - and the fact that he was intercepted on a cell phone linked to bin Laden in an unrelated matter (evidence which may well have been disallowed as immaterial in this case). This hardly seems a slam dunk for the prosecution, nor a case one the government is likely to have ruined by making inadmissible evidence that would not have existed but for the very behavior that made it unusable in court. Lt. Colonel Couch's quote seems all the more puzzling in this light.

5. If we are to believe the WSJ article, prosecution of the majority of detainee cases at Gitmo is hampered by the very same issues that plagued Mr. Slahi's case. No, not torture. Lack of physical evidence:

Guantanamo prosecutors estimate that at least 90% of cases depend on statements taken from prisoners, making the credibility of such evidence critical to any convictions.

Add to this the sensational scene painted for us at the beginning of the piece: that of a detainee shackled to the bottom of his cell, forced to listen to heavy metal while strobe lights pulsed in the background; a scene Couch was haunted by. A scene Couch says he was trained to resist in boot camp. Now ask yourself, how are interrogators supposed to get detainees to cooperate?

The answer is simple: they aren't allowed to. Next point.

6. Slahi was not treated badly until he was directly implicated in the 9/11 attack by Binalshibh, at which point he was reclassified as a high-value detainee potentially possessing information about high level al Qaeda members in terrorist sleeper cells. This will be important in a moment. One quote from the linked article provides a hint that prosecuting Slahi may no longer have been the goal:

Gen. Romig, recently appointed dean at Washburn University law school, Topeka, Kan., says within the government "there was a view that we have got to get intelligence out of these guys, and we don't care we if we prosecute them or not."

7. In the end, Lt. Col. Couch stated that it was not the law, but his moral objections which drove his decision to refuse to prosecute the case against Mr. Slahi.

Last night over dinner in my peaceful Western Maryland home I had a conversation with my daughter in law over an unusually tasty diet pizza. I asked her how her day was.

She replied that she had not had to send any of her second grade pupils home that day. The previous day she'd had to send a foreign pupil home again. He constantly hits the other children in her class. He is not the only child who does this - the American ones do too. The principal at her school will not remove disruptive students from class. She sends someone down to "talk to them". And then she leaves and they do it again because there is no penalty which bothers them enough to make them stop.

I expressed some frustration at this news.

Not, of course, by hitting my son's wife, because I was never allowed to do such things when I was growing up.

My daughter in law gets in trouble if she writes too many of these daily incidents up. "It's the language barrier". "He's expressing frustration", they say. "We should try to understand." What I understand is that the adults who run this school are sending a message, and it is unmistakeable. They are sending a message, every day, to the students who follow rules, who do not hit, that the school will not protect them from students who do hit.

They are sending a message that the social contract: the idea that, if they cooperate peacefully and follow the rules, society will confer upon them some degree of mutual protection, is fatally flawed because all that is necessary to blow this system straight to hell is the determined persistence of a few individuals and the acquiescence of society's leaders.

How does this apply to the case of Mr. Slahi and Colonel Couch? It does, and it doesn't, depending upon whether you want to view the issues involved through a martini straw or a fire hose.

How do we disrupt terrorist sleeper cells when, according to some of our own best and brightest legal minds, we may not lawfully "spy" within our own borders because the rights of a few to make those friends and family calls to Osama bin Laden outweigh the rights of every American not to be blown to smithereens?

How do we fight terrorism when we may not use our military because war is wrong/bad? How do we use law enforcement tactics like the SWIFT program when, though it called for us to use these very measures under President Clinton, the New York Times claims the "right" to publish classified details of such programs at will?

What do we do with suspected terrorists when we can't kill them, we can't use profiles of known terrorist traits because innocent people with the same traits might be questioned, we can't deport them to countries who may torture them, we can't spy on them domestically, we can't imprison them unless we have evidence that will hold up in a US court of law, they won't talk voluntarily but we can't use coercive measures even if we suspect they are planning an attack on us?

How do we conduct fair trials when the enemy doesn't fight fair? What rules of evidence apply on a battlefield? How do we apply civilian criminal evidence standards to a wartime setting where terrorists are captured in countries which don't follow our laws, where no chain of custody is established for evidence, where no Miranda rights are read defendants, where some of the evidence may be in the hands of foreign intelligence services who may not be willing to release it to us or may not be willing to testify in court? How do we build a strong case when the "arresting officer" is an untrained Lance Corporal or worse, some Pashtun villager whose name we don't know?

It is no accident that some of the nation's priciest law firms are pressing to have these cases tried in civilian courts. They would make mincemeat of the prosecution and they know it. Which does not mean that none of these detainees are guilty.

What measures are left? How do we fight them?

The answer is plain. We must wait until they have killed, and killed again. Only then may we take action, and even then we may not be able to prove anything since many of these are suicide attacks. There is no acceptable prevention against another 9/11, notwithstanding the rhetoric of the John Kerrys of this world, and to all appearances no acceptable way to fight terrorists without the possibility that somewhere, sometime, an innocent person might be accused or detained. It is time we faced that most inconvenient of all inconvenient truths.

This is the uniquely American dummitude to which we have succumbed: the tyranny of the minority over the majority. We are like the Spanish after the Madrid bombing who rose in outrage because they thought the attacks had been committed by one of their own, Basque separatists. Only when they learned radical Islamists were the perpetrators did their outrage subside: it's not nice to refuse to tolerate oppresssed minority groups, even when they're trying to kill you.

All of the foregoing must sound as though I disapprove of Colonel Couch's decision. I do not. I disagree vehemently, unless there is information missing from the WSJ article, with his assessment of the situation. Absent the coercion applied to Mr. Slahi to produce the list of al Qaeda names, there was no real prosecution case for the government to "ruin". Slahi had been in custody for quite some time and had never talked. He was unlikely to talk. He had almost certainly been trained to resist such mild measures as Col. Couch would approve. So it seems almost certain that, absent some kind of coercion, there would never be any case against Mohamedou Ould Slahi.

His only value was as a source of intelligence against al Qaeda.

Colonel Couch was faced with two courses of action. He could view his role as merely that of a prosecutor faced with a legal and moral decision in the instant case, or he could try to take on all the larger societal questions of whether Shahi needed to be punished and try to take the law into his own hands. Faced with two equally unpalatable courses of action: take the narrow view and risk letting a guilty man go unpunished, or take the large view and see justice done but compromise his own morals and that of his country, Couch took the more humble stance. He declined to be responsible for matters above his pay grade and did his job as he thought best. And he let the chips fall where they would. It is notable that there were no recriminations, though one doubts his career will go far.

Few of us in his place could do other than he did and still sleep at night. Laws themselves, no matter how well written, cannot guarantee against tyranny and it is foolish to try to build rigid fail safes into them, for that only brings about the opposite dangers from the ones we hoped to avoid. At best, good laws balance the twin dangers of an overbearing government and the venality of our fellow men. But in the end, justice relies on the honor of good men.

The irony in this case is that the courage of a good man did not defeat the foe. So much for boyhood dreams. That is where we have failed men like Stuart Couch, because we send them out to fight monsters without a sword or a suit of armor and then wonder why they cannot protect us?

Posted by Cassandra at April 4, 2007 05:38 AM

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D'ya think that that is part of the reason the prisoners have been detained so long? Not so much for interrogation/torture but the simple fact of being imprisoned would eventually loosen their tongues?

Scruples aside, at what point do you define what is acceptable for a free society to do to protect itself? We think we are better than that, but
I can tell you this: On a visceral level, the opposition is playing for keeps and will do whatever it takes to win.

And we have to be above that, but how do fight an enemy who uses our rules against us? We have people telling us the end doesn't justify the means, but are willing to give jihadists that reasoning to do what they are doing. It can't be both ways. I have a personal interest in this as well...but will decline further comment.


Posted by: Cricket at April 4, 2007 08:53 AM

I suppose if it were me that had to decide this, and please note that I am quite happy that such is not the case, I would have to make a distinction between the coercive methods used to detect and prevent an incident versus the techniques used to attain a conviction after the fact. One potentially saves lives, while the other... not so much.

Posted by: DaveG at April 4, 2007 09:26 AM

Obviously, the military itself is divided on this issue.
Coercive methods.

These three terms have different meanings, but are used intergchangeably by some of those who wish to define this 'struggle' we are in (the struggle that cannot be named, lest we offend), in the most self-destructive way.

What are the limits we will push to defend the West, and how will be restrain and define ourselves?

Posted by: Don Brouhaha at April 4, 2007 10:12 AM

Well, now that this has come to light, he can't go back and get another deposition from the
defendant. That will be tainted too.

I would prosecute or turn it over to another attorney.

Posted by: Cricket at April 4, 2007 10:19 AM

Trackbacked by The Thunder Run - Web Reconnaissance for 04/04/2007
A short recon of what’s out there that might draw your attention.

Posted by: David M at April 4, 2007 10:34 AM

I can see the rub...but:
1. This is not a prosecution in a civilian court
In the civilian world a child murder could walk because evidence gathered wasn't IAW the Miranda ruling and he didn't have a lawyer present when he said he killed the kid. Even if based on his what he said the police were able to go directly to the location of the murdered child (somewhere they never would have gone to without the "suspect's" information).
In the military tribunal world, if you did the crime, you will get your punishment. This bleeding heart "everything" except living in a 5 start resort is torture is complete crap. While I went through the same "resistence" training that LtCol Couch did, I never got the impression that loud music/strobe lights/sleep depredation/verbal threats are torture. They are methods used to breakdown your resistence.
2. Does LtCol Couch believe the guy is guilty?
If so, prosecute.

I'm sure the MSM and our friends on the left just eat up this type of navel gazing. This discussion of western ideals and how far should we go is paralyzing us with inaction.

All the more reason to keep these peace loving people captured on the battlefield in the country where they are captured, interogate them there and then let that country (Afghanistan/Iraq/etc.) send them to meet Mohammed and his 72 goats because we are to wussified to do it ourselves.

Posted by: Sluggo at April 4, 2007 11:09 AM

"I would prosecute or turn it over to another attorney." _ I agree with Cricket - this is what should be done.

"never got the impression that loud music/strobe lights/sleep depredation/verbal threats are torture."

I understand that strobe lights can induce epilepsy and seizures (funs stuff, huh?), and that a person can die if deprived of sleep long enough. This stuff is torture, but we just can't imagine OUR government torturing anybody, because historically it has been our ENEMIES who did the torturing - the Catholic Church (sorry mom, they did), the Germans and the Japanese (no disagreement among the Villainous Company on THIS point, I presume).

Posted by: Mark In Irvine at April 4, 2007 01:24 PM

I guess I just don't get it. If you saw a man in a park about to kill an innocent victim, you could use whatever force needed, up to and including killing the perpetrator, to stop it.

When you have a terrorist, who by his silence is causing the murder of many innocent people, we should be able to deal with him up to and including killing him to get the information (that is if we know beyond a shadow of a doubt he has it).

If we knew, for a fact, that cutting him open and reading his entrails would save innocents that he and his cohorts had marked for elimination, why wouldn't we do it?

I guess I'm just a barbarian who doesn't deserve to live among civilized people. But I don't understand the mollycoddling we give vicious murderers. We shoot mad dogs, don't we?

Posted by: Tony at April 4, 2007 01:32 PM

But sticking with the program... Torturing someone to convict them after the fact is not kosher at all and the evidence should be thrown out.

Posted by: Tony at April 4, 2007 01:38 PM

But was he tortured to convict him?, said the Queen, slyly.

Posted by: Queen Elizabeth II at April 4, 2007 01:42 PM

Well, God tortured Pharaoh with the plagues of Egypt.

Posted by: Cricket at April 4, 2007 01:48 PM

Yes, but the ICC at the Hague issue a sternly-worded condemnation and He was forced to call the plague of frogs back.

Multilateralisme works, cherie. Even the King of Kings can't stand firm in the face of one of Kofi Annan's pouty looks.

Posted by: Queen Elizabeth II at April 4, 2007 01:53 PM

Kofi isn't in charge of the UN anymore, so maybe the Almighty has staged a comeback.

Posted by: pffff at April 4, 2007 02:13 PM

Stuart Couch did not "fail." He decided, based upon what he had been instructed and what he believed to be the requirements of justice, that he could not, in good conscience, go forward prosecuting a charge, the evidence of which he beleived was obtained by unlawful means. Would that all such prosecutors had such high standards. (Yeah, you, Fitzpatrick, you stooge. Yeah, you, Nifong, you miserable f**k.)

I understand the bigger question here involves, introspectively, a review as to what lengths a freedom loving people will dare go to ensure their own freedom when such action implicitely denies the freedom of others who would trod liberty underfoot. It's a delicate question, folks. And one that might need to be answered in a manner that none of us dare yet acknowledge. But in the interim, I applaud Mr. Couch for pounding that stake into the ground and declaring his affiliation with what's left of the rule of law. No one feels a greater loss of liberty than he.

Posted by: spd rdr at April 4, 2007 02:32 PM

"And one that might need to be answered in a manner that none of us dare yet acknowledge."

This is too intriguing to let pass by, spd-rdr. C'mon - fess up - what do you have in mind when you say this? Go ahead - take the dare.

Posted by: Mark In Irvine at April 4, 2007 03:09 PM

If that was directed at me, I don't recall saying Couch failed. I said we failed him.

Those two statements are two very different things. I think you have missed my point.

I am simply puzzled by his insistence that the government ruined a nonexistent case as there really was no case for him to prosecute within the confines of his duty as he saw it and I don't see any evidence that there ever would have been under our existing system. And yet Couch clearly believes he is guilty. I don't really think the article brought this out.

In such a circumstance, refusing to prosecute was still the right call, but it certainly begs an awful lot of other questions. Such as, "Why are we asking these men to do an impossible job?"

Posted by: Cassandra at April 4, 2007 03:17 PM

I feel for LtC Crouch.
What was he doing in the military?
Why had he not resigned his commission years ago?

Ordinarily lawyers begin at the rank of Captain. So LtC Crouch had been a military lawyer for some time. Now justice, as administered in courts in the United States, properly pertains to United States Citizens. The Consitution, according to itself, anyway, does not pertain to persons who are not United States Citizens, and are actively involved in warfare against the United States.

Such persons are covered by the UCMJ.

Persons who are regular members of organized armed forces of countries at war with the United States, wearing uniforms, enrolled in organizations with recognizable chains of command, are covered by the Geneva Conventions.

There is a third category of persons. And that is stateless persons, not recognizably parts of militas of any nation, who engage in warfare against the United States.

Those persons are not covered by the U S Constitution, nor are they covered by the Geneva Conventions.

Those persons have information which needs to be extracted. They have no rights. They have no dignity. They have no protection under any law. They are not protected by international law.
They are not covered by any UN rule, nor by any international court.

I have not heard that LtC Crouch is alleging that any detainee has had his tongue removed, his hand or foot removed, or his genitals removed. These were standard in Iraq, as it was under Saddam Hussein. I have not heard that LtC Crouch is alleging that any detainee has been required to watch his wife raped, his daughters raped, or any member of his family executed. Again, these were standard in Iraq. I am not aware that LtC Crouch has alleged that any detainee has been roped (tied up, for instance roped at the elbows and tied into a Z position, for a day or so). This was done in North Vietnam. I am not aware that LtC Crouch is alleging that any detainee was starved (many Geneva signers have done this). Russia, Korea, North Vietnam, Iraq, and so on.

Unfortunately LtC Crouch seems to act like a conscientious objector, not a uniformed lawyer.

He should be given an unsuitable discharge and sent on his way.

Posted by: mathman at April 4, 2007 03:18 PM

"Those persons have information which needs to be extracted. They have no rights. They have no dignity. They have no protection under any law. They are not protected by international law. They are not covered by any UN rule, nor by any international court."

Does anything from one's religious beliefs have anything to say about how these people should be treated? Or are we operating strictly at the Darwinian level of the "survival of the fittest", such that "if we've got you in custody and can do what we what with you - we're the survivors and you're not, so prepare for a bumpy ride".

Posted by: Mark In Irvine at April 4, 2007 03:22 PM

Go ahead - take the dare.

Dear Lord. Am I going to have to separate you two again?

Posted by: Sister Mary Bag O'Metaphors at April 4, 2007 03:26 PM

"Dear Lord. Am I going to have to separate you two again?"

It seemed as though spd-rdr had something in mind, and I figured it'd be interesting .. you know, maybe involving space flight or time travel or molecular rearrangement or something WILD. It was not meant to be taken as a "glove in the face", "pistols at 20 paces" kind of thing.

Posted by: Mark In Irvine at April 4, 2007 03:39 PM

Oh. I am relieved.

And here I was envisioning spanking, and rulers.

Posted by: Sister Mary Bag O'Metaphorovna at April 4, 2007 03:41 PM

"And here I was envisioning spanking, and rulers."

I suppose it depends on who's doing the spanking and who's being spanked. As you may have noticed, Sister [?!], I think the "ruler" of the "free world" could use a good spanking.

Posted by: Mark In Irvine at April 4, 2007 03:58 PM

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!


LTC Couch is troubled by his conscience, and what he knows to be right, and wrong, as he was trained as a lawyer. His "guide" is the law, as he understands it. Is he to cut down every law and concept he understands, to "get after" these people (as he thinks as a soldier)? Where is the guidance that he and others military lawyers need to navigate this situation?
Clearly, the Geneva Conventions are of no use here, because these "Combatants" and prisoners clearly fall outside of the definitions of uniformed soldiers that have generally guided the UCMJ. Frankly, under the Geneva Conventions (there are four, I think) they could justifiably be stood up against a wall and shot as non-uniformed 'partisan' combatants. But that would little serve the larger purpose; it gives the tribal nutcases more of "eye for an eye" purpose for more of there alleged "wrongs" perpetrated against them. The blithering murderous morons that they are.

Somewhere, the so-called civilized world has to come up with some kind of rational and realistic code to deal with these kinds of combatants, because they are not going away.

Posted by: Don Brouhaha at April 4, 2007 04:14 PM

I did not mean to infer, Cass, that you had stated that Mr. Couch had "failed." That aside was my personal rejection of an aspect of Mr. Couch's performance that I beleived was attributed to him based upon the outcome, rather than the integrity, of his his aborted prosecution. In other words, Mea culpa, mea culpa mea maxima culpa, but I ain't damned wrong.

I admit to tilting a legal windmills here. I am as confused as the next American as to how to deal effectively with blood-thirsty murdering religious zealots while still maintaining our white-gloved view of justice for all. I can't toss the Constitution out the %^&*(&^% window without endangering all I hold dear. At the same time, I cannot disrespect those that would protect the constitutional rights of those who would gleefully trample those rights for others.

It's not easy being correct. Balancing one's right against that of another has never been more challeging. But being "right" has never guaranteed a verdict in you favor, either. The law, such as we hold, is an unfixed lens on human ineptitude and evil. In the end, the qustion comes down to what do you want? Less freedom for others means more security for you. Less security for others means more freedom for you. It's a Hobson's choice best served straight over rocks. But don't call it justice.

Posted by: spd rdr at April 4, 2007 04:24 PM

If a confession or evidence was extracted from this man by use of torture, then I think its right that the Lt Col. stuck to his conscience.

But stuck to his conscience in the manner that this is a legal court proceeding, not a military intelligence investigation or whatever they call it. In one, they are concerned with the man and his guilt, the other they are concerned with what he has to tell them to kill more of the enemy.

Posted by: Kevin L at April 4, 2007 04:31 PM

"Does anything from one's religious beliefs have anything to say about how these people should be treated?"

Well, some of the main tenants of my faith is that we are to forgive people. And yes, I forgive them. But, we don't have to forget.

We are to be merciful. And, in contrast to the way they treat us and our captured? We were merciful.

And lastly, we are born in sin. There is no escaping that. And by no earthly works can we pay for those sins. So, it is callous to say, but we do what we need to do and apologize for it later, knowing it was wrong.

And not to be flippant on the idea of torture, as I don't like it and think its barbaric but necessary in some cases, but many of the same definitions apply to child-rearing, or elderly care, or dating. Sleep deprivation, emotional manipulation, mental scars and wounds.

Posted by: Kevin L at April 4, 2007 04:44 PM

"And lastly, we are born in sin. There is no escaping that."

Kevin, my brother, I must disagree.

Any father who has held a small pink wriggling creature in his arms and pronounced upon that being a name knows that such precious lump is without guilt or worry because it has no sense of itself or that of competition with others of its own kind. An infant is only of itself, and without question, the purest being upon the planet.

After a lifetime of ingesting and arguing Catholic dogma, I am left to conclude that Original Sin, as advertised by the Church, is .... mistaken.

Posted by: spd rdr at April 4, 2007 05:16 PM

I had a post that got et.
Our children at the hours of their births had their father wrapped around their helpless little baby fingers. If that isn't the power of purity I don't know what is.

And I will do what it takes to protect it. Any
one who wants to off me as being filthy kaffir
hasn't read the original contents of the Good Book, Acts chapter 10.
But then I am a mother, so what the helk do I know?

Posted by: Cricket at April 4, 2007 05:29 PM

"Kevin, my brother, I must disagree. ... After a lifetime of ingesting and arguing Catholic dogma, I am left to conclude that Original Sin, as advertised by the Church, is .... mistaken."

Uh oh [sky darkens; wave of lightening flits across darkened sky; thunder rumbles in the distance and slowly approaches; sky opens up and torrential rain pours forth] I think the twain are about to meet.

Posted by: Mark In Irvine at April 4, 2007 05:38 PM

Saints presairve us!

Where is me whiskey-baugh when I need it?

Posted by: Sister Mary Bag O'Metaphors at April 4, 2007 05:42 PM

"Kevin, my brother, I must disagree."

Okay.:) So, we agree to disagree. Or agree to hash out the dogma. But, the thrust of my statement was "People aren't perfect". So we do our best.

Posted by: Kevin L at April 4, 2007 05:43 PM

[uh oh - here we go ...]


It has always seemed to me that if religion really does have all the answers [and I'm talking Christianity here, folks, for lack of any other social, religious, cultural references], i.e. that upon accepting Christ as one's personal savior, salvation is a given, then in the grand scheme of things, “turning the other cheek” and being merciful would seem to be the way faith suggests we ought to go.

[crouching under the desk in "duck and cover" position, concerned that all hell may break loose (npi)]

Posted by: Mark In Irvine at April 4, 2007 05:58 PM

I think that Sister Mary Bag O'Metaphors has the right idea - drinks all around ...

Posted by: Mark In Irvine at April 4, 2007 06:00 PM

" ... who by his silence is causing the murder of many innocent people, we should be able to deal with him up to and including killing him to get the information (that is if we know beyond a shadow of a doubt he has it)."

Of course, there's the rub - we couldn't possibly know "beyond a shadow of a doubt" that the guy actually has the information, if we've been hurting him so much that it would be reasonable for him to tell us SOMETHING to make us stop hurting him. The only thing we're sure of "beyond a reasonable doubt" is that we hate the guy for what he represents and for what we assume he wants to do to us.

Posted by: Mark In Irvine at April 4, 2007 06:05 PM

drinks all around...

Either that, or spankings.

Posted by: Sister Mary Bag O'Metaphors at April 4, 2007 06:06 PM

"It has always seemed to me that if religion really does have all the answers ... “turning the other cheek” and being merciful would seem to be the way faith suggests we ought to go."

Erm... that's perhaps, one of the many reasons why we're not perfect, Mark.:) Our inability to do that. Not lack of desire.

Posted by: Kevin L at April 4, 2007 06:06 PM

The cardinal error was not getting the terms right at the beginning.

Members of international terrorist groups are exactly equal to pirates: roving bands who attack the infrastructure on which civilization is based. They are the enemies of all mankind; and the penalty should be death, based not upon conviction for a particular crime, but simply based on proof that you were member of such an organization. If you're on a pirate crew, you hang as a pirate. If you are a member of al Qaeda, you hang as a terrorist.

That was the right answer, and we missed it. We'll get back to it eventually, though, because it's the right answer. We'll just have to be hit a few more times, harder, to shake us out of this mistaken habit of thought.

Posted by: Grim at April 4, 2007 06:10 PM

Well, when you run out of cheeks you cleanse the temple.

Posted by: Cricket at April 4, 2007 06:30 PM

And I take my lemonade neat. No whiskey or sugar or anything.

But if you would like a nightcap or two to toast your new found agreeings, well, wat's a former barkeep to do but dispense cheer all around?

I see Cass has started on the Kahlua.

Posted by: Cricket at April 4, 2007 06:33 PM

"Either that, or spankings."

Methinks that Sister Mary Bag O'Metaphors has a wee bit o' the dominatrix in her!

Posted by: Mark In Irvine at April 4, 2007 06:38 PM

"We'll just have to be hit a few more times, harder, to shake us out of this mistaken habit of thought." - Grim indeed.

Posted by: Mark In Irvine at April 4, 2007 06:47 PM

Oddly enough I just said something quite similar on the phone with Carrie, Grim :p

Mark, regarding your comment:

...upon accepting Christ as one's personal savior, salvation is a given, then in the grand scheme of things, “turning the other cheek” and being merciful would seem to be the way faith suggests we ought to go.

Mercy is relative. Christ also said, "Render unto Caesar what is Caesar's and unto God what is God's". It's a fine line, trying to figure out where earthy punishment leaves off and divine retribution begins but that is essentially the choice Couch made, though as I noted I'm not sure it was as enormous a choice as all that in practical terms b/c there wasn't much of a case to 'ruin' - at the point they decided on that course of action, I don't believe prosecuting him was the primary goal anymore. Surely he was smart enough to see that? But it takes tremendous moral courage to go against what you know people would like you to do and I will not take that away from him.

Let me state this another way.

You weren't here during the Roberts hearings, but one of the reasons I liked Roberts was his philosophy of judicial humility: the idea that if each cog of government would just stick to its own function and not try to do the job of other branches, everything would function a lot smoother. Therefore, he said, a judge looking at a legal issue ought to frame the question before him as narrowly as possible, knowing his decision will become precedent for other decisions and can have unintended consequences down the line.

Most Marines have an "I love me" wall - filled with parting gifts from completed tours. My spouse never puts his stuff up. Our house is suspiciously free of Marine paraphrenalia. But every now and then I'll find a room in one of our houses and put a few of his items up for him. On the only item he really likes all that much is a quote from Robert E. Lee:

"Do your duty in all things.
You cannot do more,
You should never wish to do less."

Couch did his duty as he saw it. He didn't try to strong-arm fate. Imagine what the world would be like if every person did their duty within the course and scope of their employment.

Of course we have people who can't understand, too, that the duty of some will inevitably conflict with the duty of others, or that sometimes two people won't see their duty the same way. We have people who find it easier to blame one person, the President, for all the problems of America because they mistakenly think he controls everything that goes on: the economy, our laws, the actions of foreign powers, the vast workings of that behemoth we call the federal government, the actions of independent state officials which he may not, by law, command (Hurricane Katrina, anyone?).

And so they would like to spank him. They are welcome to try.

Posted by: Sister Mary Bag O'Metaphors at April 4, 2007 06:48 PM

And I would make a poor dominatrix. I'd probably start laughing in the middle of whatever it was I was doing.

I take few things seriously.

Posted by: Sister Mary Bag O'Metaphors at April 4, 2007 06:55 PM

You'd make a lousy Nun, too. Seriously.

Posted by: spd rdr at April 4, 2007 07:17 PM

Start running, mr rdr... :)

The rulers are coming out.

Posted by: Sister Mary Bag O'Metaphors at April 4, 2007 07:20 PM



Posted by: Sister Mary Bag O'Metaphors at April 4, 2007 07:21 PM

Posted by: Mark In Irvine at April 4, 2007 06:05 PM

You are very willing to pull out all the ACLU strawmen. I guess you probably agree that all the stupid human tricks done by our college students are "hazing" and they are forced to do that. Why not call it "torture"....the same things done throughout the western world as initiation stunts or sping break rites of passage (which I don't condone, but have a real hard time calling it torture) is called torture by the ACLU and the whinners of the world who were always picked last in team sports during school and felt despondent/suicidal when other kids called them names. I stand by my statement "I never got the impression that loud music/strobe lights/sleep depredation/verbal threats are torture." You can find a non-science study that says blue/green/red lights cause seizures also, does that mean putting someone in a blue/green/red room now classifies as torture.

Yours and your leftist "America is evil" friends need to comeup with another meme, your "victim" meme is really old.

Posted by: Sluggo at April 4, 2007 09:41 PM

Flashing lights can induce seizures in one who already has epilepsy. That's one reason I won't be flipping lights off and on in my classroom.

I wouldn't consider the flashing lights "torture"; to do so, IMO, minimizes the true horrors of real torture. This being said, I'm comfortable with taking the risk that one of these terrorists is epileptic and we don't know it, and he gets a seizure...

Posted by: Miss Ladybug at April 4, 2007 11:04 PM

Of course, there's the rub - we couldn't possibly know "beyond a shadow of a doubt" that the guy actually has the information, if we've been hurting him so much that it would be reasonable for him to tell us SOMETHING to make us stop hurting him. The only thing we're sure of "beyond a reasonable doubt" is that we hate the guy for what he represents and for what we assume he wants to do to us.

Yes, that is the rub, isn't it. I would not feel comfortable killing or severely torturing a man with less than that.

As far as "hating". I believe that these terrorists are no better than rabid dogs. You don't hate a rabid dog, but you have to put him down for the safety of everyone else. You don't "forgive him" after he's bitten you numerous times, you don't let your children play with him, you kill him. Dispassionately, without malice, because it's the only way to keep your family (community, country) safe.

These terrorists, have no honor. Their word is worthless. They dress in civilian clothes placing their fellow citizens in danger purposefully. They don't deserve Geneva Convention protection, and they certainly don't have Constitutional rights.

Posted by: Tony at April 4, 2007 11:17 PM

Prosecute and be damned. Sometimes you don't have the luxury of taking the moral high ground because I pay good money to be protected and I darn well want my dollar's worth. I am not paying LTC Couch to develop a conscience, I am paying him to try persons who have been designated as enemy combatants; who have sworn to
eliminate me and my family, as well as his and everyone else's simply because we choose to exercise our right to be different.

Posted by: Cricket at April 4, 2007 11:31 PM

What is that officer, Army? I know that Navy and Marines are stuck in small boxes, beaten, left without water and have up to two bones broken during their basic SEAR school, lasting three to seven days. The advanced one is worse.

No flashy lights, or loud music-- well, I went through that in the *barracks*, but I don't think that counts.

Posted by: Sailorette/Foxfier at April 5, 2007 12:07 AM

He is a Marine. He isn't being a wimp like Waaataaada...he has a long and stellar career
and wants to make sure his case is air tight in all respects. Can't fault him for that.

We are just disagreeing with him.

Posted by: Cricket at April 5, 2007 01:13 PM

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