Monthly Archives: November 2005

William Arkin on White Phosphorus in Fallujah: “It is a representation of a losing strategy”

William Arkin not only organizes what we know about the use of white phosphorus in Fallujah, but he puts in context — which just makes it all the more depressing. This is a rich posting, and I urge you to go read more than the excerpt below. (More kudos to the Washington Post for giving Arkin a platform!)

“White Death” Is A Losing Strategy: … When used in artillery ammunition, “Willy Pete” as it is called, can produce white smoke and illumination, and is particularly useful for target marking. It has been a standard and inexpensive weapon in world arsenals for decades.

… The [Italian TV] documentary shows close-ups of Fallujah civilians, badly burnt, their skin dissolved or caramelized. An Iraqi biologist in Fallujah is interviewed, saying “a rain of fire fell on the city,” burning people’s flesh, but strangely leaving “their clothes intact.”

…White phosphorus, though used, the Pentagon said, is “simply another conventional munition” that is neither outlawed nor illegal.

Well not simply. …

I for one am reluctant to pronounce whether the use of white phosphorous for “shake and bake” missions in Fallujah and the evident blundering use of white phosphorous in areas known to be occupied by civilians is illegal. Neither am I buying the State Department’s line that the use of white phosphorous in this way — that is, to possibly inflict unnecessary suffering — is not “illegal” use. What I’m sure of is that the use of white phosphorous is not just some insensitive act. It is not just bad P.R. It is the ill thought out and panicked use of a weapon in an illegitimate way.

U.S. military forces have the most stringent legal rules, the most aggressive internal lawyer class, the most constraining rules of engagement with regard to the laws of war and civilian casualties — even under the shoot-em-first-ask-questions-later Bush administration. Those rules are scrupulously followed, as long as everything is going well and the chain of command is strong and in control.

When the chain of command breaks down and military formations turn into a mob, Abu Ghraib’s result. …

When soldiers and commanders are discouraged and following a losing strategy, “taking” Fallujah, let’s say, not for the first or second or even third time; when they are trying to use “psychology,” that is, demoralize the enemy, then it is not enough to just defeat them. That is where shake and bake comes in, the desire to do something in a different way, to “shock and awe” the opposition, to sow chaos. …

In Fallujah, the Army employed a terribly ill-conceived method for using white phosphorous, evidently interested only in the immediate tactical gain and its felicitous shake and bake fun. Higher level commanders were either absent or oblivious to the larger issues. They did not impose order and encourage precision. They should be held accountable. They won’t.

It really is Vietnam all over again, isn’t it?

Posted in Iraq | Comments Off on William Arkin on White Phosphorus in Fallujah: “It is a representation of a losing strategy”

Life’s Little Mysteries

Why did someone from the Czech Lands call my cell phone three times in quick succession this morning while I was teaching, but leave no message? The number doesn’t work when I try to call it back…

Posted in Personal | 4 Comments

A Grim Compromise

Balkinization has a first take on what seems to be the language the Senate enacted today as a “compromise” on the Graham amendment.

It does not look at all good.

Posted in Guantanamo | 2 Comments

News Flash: Federal Judge Suspends Hicks Trial Pending SCT Ruling (Plus News on Bingaman/Graham/Levin Amendment(s))

According to wire service reports, the ‘military tribunal’ hearing the Hicks case is enjoined from proceeding pending a decision by the Supreme Court decision on the legality of the process.

US District Judge Colleen Kollar Kotelly said in her ruling that the parties “are enjoined from going forward with any and all legal proceedings associated with the military commission process.”

She said the suspension will remain in effect “pending the issuance of a final and ultimate decision by the Supreme Court in that case.”

This is the same Hicks case discussed in Is the Trial of David Hicks a War Crime?.

Of course, all bets are off if the Senate — which has apparently agreed a very watered down version of the Bingaman Amendment to the Graham Amendment (with a vote scheduled today) were to cut off review in courts…. The new version is called the “Graham-Levin” Amendment, and although I’m uncertain if I’ve seen the final text, what I have seen does not look good.

When a text appears, look out for these issues:

  • Can a detainee be heard to complain of being tortured? Or subjected to “cruel, inhumane or degrading” treatment?
  • Can a detainee be heard to complain that he is in fact a POW?
  • Can a detainee be heard to complain that he has been found not to be an enemy combatant, but is still being held?
  • Can the rules of the tribunal be challenged for failing to meet minimum standards of due process?
Posted in Guantanamo | Comments Off on News Flash: Federal Judge Suspends Hicks Trial Pending SCT Ruling (Plus News on Bingaman/Graham/Levin Amendment(s))

A Constitutional Law Scavenger Hunt With A Serious Purpose

Around the country, law students who study Constitutional Law in the Fall sone will be studying for their finals; not long afterwards, those who study it in Spring will start up their course. So it’s as good a time as any to list the questions that, back in the days I used teach Constitutional Law I, I used to ask my students during the first week of class.

Some of these questions are very easy (although even in those cases, the answers may surprise you); some only appear to be. Others are inspired by real and difficult cases; a few illustrate doctrines of constitutional interpretation, some more controversial than others. And perhaps one or two don’t have answers, or at least not answers that everyone agrees to. Which is remarkably odd given the simplicity of most of these questions….

Read The US Constitution, and the Amendments then take the quiz…

Continue reading

Posted in Law: Constitutional Law, Law: Reading the Constitution | 18 Comments

Ten Ways to Protect Your Privacy

EPIC’s Chris Hoofnagle (who has great taste in jackets, IMHO), posts his Consumer Privacy Top 10–things US consumers can do to safeguard their privacy. What’s great about this list is that, unlike so many I’ve seen, it’s actually realistic and do-able.

Well, nine out of ten anyway (number six isn’t actually practical unless your tolerance for travail in doing things like getting phone service is much greater than mine).

Posted in Law: Privacy | 3 Comments