Marty Lederman has once again taken aim at Heather MacDonald, self-appointed apologist for administation policy about Guantanamo and Abu Ghraib. In a recent item in Balkinization, he writes “Let’s be very clear about this: The DoD General Counsel (who’s recently been renominated for a seat on the U.S. Court of Appeals for the Fourth Circuit) concluded that threats of killing a detainee’s family members, and waterboarding, and forced nudity, and the use of dogs to induce stress, etc., not only did not violate the UCMJ, but are ‘humane’! There is no indication in the public record that Secretary Rumsfeld or any other high-level DoD official ever contradicted or overruled these legal conclusions — and every indication that Rumsfeld agreed with them.”
And while it’s a point that has been made before, let me repeat: would Ms. MacDonald regard such policies as “humane” and “legal” if they were applied to captured US troops by another power – North Vietnam, say, or perhaps Iran? (Arguing for a difference between regular troops and “terrorists” won’t wash – most of the prisoners in Abu Ghraib had not been legally classified, and the presumption should have been that they were therefore covered by Geneva.) Such an acknowledgement is unlikely to be forthcoming any time soon….