In which Glenn Reynolds gets fisked

The following is the complete text of an item from Instapundit. (*)

TONY ADRAGNA WRITES on a U.S. “war crime” that wasn’t.

There have been a lot of those, haven’t there? But somehow I had missed this one.

That item turns out to refer to the matter of snatching the wife and daughter of an Iraqi general and leaving a note telling him to turn himself in if he wanted them released, an event commented on in this space (*) a few days ago.

The Adragna piece (*) is long and convoluted, with a number of references to various bits of international law. He makes out a reasonable case — which he admits is not a conclusive case — that the actions in question might be legal under the law of war.

If the wife and daughter were seized as potential sources of information, rather than merely to put pressure on the general,

and if the threat to hold them until he gave himself up was mere bluff, as the American colonel in charge says,

and if the ban on threats of hostage-taking in Protocol I means only threats that the threatening party means to carry out, rather than mere verbal threats,

or if we aren’t bound by that provision because we haven’t ratified Protocol I

and if the language in conventions we have ratified that seems to ban threats doesn’t apply to threats of this type,

then — Hurrah for our side! — what the colonel did was legal.

Adragna’s conclusion:

So far I’m not convinced that there was a violation of either international or U.S. law; not in spirit nor letter. The only thing I’m convinced of is that lots of people are wanting to make a big deal out of an incident that doesn’t deserve the attention.

So where Adragna is merely not convinced that there was a violation, Instapundit, speaking in Andraga’s name, somehow knows that this was “a US ‘war crime’ that wasn’t.” (Adragna gives no reason for his judgment that the accusation that the US military is engaging in hostage-taking doesn’t deserve attention.)

Adragna refers to an analysis by Tacitus (*), taking a similarly judicious stance:

The laws of war, of course, forbid the taking of hostages. But do they forbid detaining civilians in areas under military rule? They don’t, and herein lies a gray area that’s getting ignored in the general indignation. [snip] If the family would have been released unharmed in due course regardless of the general’s actions, then they were never hostages. That the general believed them hostages is a different matter entirely; but this in itself is not a moral (or legal) wrong. Interrogation, for example, often involves the threat of acts — murder or torture, for example — that the subject believes credible. But if these acts are not actually undertaken, then no moral or legal opprobrium attaches to the belief in their imminence.

Obviously the exculpation here rests in an unknowable — only Col. David Hogg truly knows the fate of this family if the general had not caved. But if we take him at his word, then there is something less to this than the outraged parties allege.

Now you needn’t agree with Tacitus’s bland assertion that it is not immoral to threaten that which it would be flagrantly immoral to do. That’s certainly not the rule in domestic law: an extortionate threat is a criminal act, even without any evidence that the threatener would have carried it out. But Tacitus’s case is at least an arguable one.

However, Tacitus, being an intellectually honest sort, quickly retracts in the face of expert opinion:

UPDATE: SSG Terry Karney has this to say in comments:

Speaking as a professional (SSG, US Army, interrogation) I can say that what was done was a violation of the Geneva Conventions. Note that COL Hogg did nothing to imply, to the person he was manipulating; by the seizing of his family, that they would be released soon.

Tacitus then adds:

The gist being (as articulated by cmdicely, among others) that it doesn’t matter what the actual status of the detained family was — the standard here rests wholly upon the belief of the targeted individual (in this case, the Iraqi general). This doesn’t strike me as a particularly airtight standard, but in lieu of a better one, I’ll defer to professional judgment here.

Phil Carter, who also qualifies as an expert on the law of war, agrees that the actions in question were probably illegal:

The U.S. did sign the 4th Geneva Convention of 1949, and it explicitly precludes hostage taking in armed conflict:

Art. 34. The taking of hostages is prohibited.

There is also a norm of international law known as “distinction” — which literally means distinguishing between combatants and non-combatants. This principle would probably preclude the kind of conduct conducted by COL Hogg in Iraq, since the Iraqi Lt. Gen.’s family members are unquestionably non-combatants.

Again, that opinion isn’t ironclad: arguably, as Col. Hogg’s defenders have pointed out, the wife and daughter were legitimate targets for detention as possible sources of information about the whereabouts of their husband and father.

But Phil, unlike some of the other parties to this debate, notes that the question has moral and operational aspects as well as legal ones:

Doing what’s unlawful is one thing; doing something which is counter-productive is quite another. We’re trying to rebuild Iraq as a kinder, gentler place — a nation that contributes to regional stability, economic growth, personal liberty, etc. To accomplish our mission, we need to win the Iraqis’ hearts and minds. Kidnapping the wives and daughters of our adversaries is not a way to win hearts and minds — it’s a way to squeeze their private parts. This is the kind of tactic that can backfire, bigtime.

My own view is that threatening women to put pressure on the men who love them is despicable, whether lawful or not. (Yes, I know American prosecutors do it almost routinely, though the threats are of criminal prosecution rather than of indefinite detention, and I don’t approve of that, either.) I assume that Glenn Reynolds agrees; if not, he should explain why.

But whether Glenn agrees or not on the moral proposition, he seriously misleads his readers when he describes this situation summarily as “a U.S. ‘war crime’ that wasn’t.” Not only is it still an open question whether a crime was committed, but the source he refers to makes it clear that the question is still an open one.

When is the Titan of the Blogosphere going to start to hold himself to the same standards of accurate reporting he expects of the New York Times or the BBC?

Update: Glenn Reynolds, who has a remarkably thin skin for someone so gleeful in his condemnation of others, makes a big fuss about a spelling error (corrected above), agrees that he was wrong on substance, and never tells us what he thinks of the morality of forcing a man to do what you want by seizing, and threatening to hold, his wife and daughter.

Glenn is right to point out that the conventions of blogging, which require links to sources, provide more safeguards against misquotation than the conventions of mainstream journalism.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: