For purely bureaucratic and political reasons Rumsfeld should definitely resign. While Wolfowitz and Feith should go also, the confirmation hearings can be defused by nominating someone loyal but yet with credibility on the hill. Perhaps someone who has taken a neutral or even lightly critical role in the public debate so far.

Rumsfeld is damaged goods and it's apparent that the center of power has shifted away from him with him being damaged goods. The President could conveniently ask him to fall on his sword and become the scapegoat. There is significant reason for Rumsfeld to cooperate. He's probably sick of being blamed for everything but not willing to undergo further investigation and possible criminal charges later.

Helping GWB into a second term would nicely nip that possibility in the bud. At this point Rumsfeld has become contaminated by the failure and frankly bizarre sexual antics in Iraq which are repugnant to all civilized persons. Ditching him would probably be good for a good two or three points of job approval to the plus side for Bush if Bush moves forcefully to replace him with someone who can win the confidence of the Senate and the American Public.

For crying out loud ditch him already so someone else can show they can do a good job before the elections.

It's Osama...waiting to announce it till just before the election...

Yes, Rumsfeld should resign, and yes, this would most likely be good for Bush, at least in the short term.

But there is a problem: if Bush actually appointed someone honest to do some serious house-cleaning, then this person would probably uncover so many skeletons in the Bush admin's closet that they might as well all resign now, Bush included.

Of course, that leaves the option of appointing a mellow, clueless guy or a true believer who is in on everything already. I don't think he would get very far with either of those.

In any case, this discussion is moot, because Bush said this morning:

The Secretary and I discussed [the matter of the missing prisoner] for the first time this morning. And he's going to hold a press conference today to discuss that with you. I'm never disappointed in my Secretary of Defense. He's doing a fabulous job, and America is lucky to have him in the position he's in.

And Bush never changes his mind, right? ;-)

Oh, and Bush also said:

The reason I keep insisting that there was a relationship between Iraq and Saddam and al-Qaeda is because there was a relationship between Iraq and al-Qaeda.

Sorry, couldn't resist.

Doesn't this essentially go to a question of the concept of "ministerial responsibility," which as far as I know, is not an established precedent in the US. For example, if we uniformly subscribed to that doctrine, then Janet Reno should have bailed after Waco.

Answer part three:

No.

I agree, Bravo. There were several posts about this at the Volokh Conspiracy a month or so ago. Essentially there is one precedent (a secretary of the Navy who resigned over the Tailhook incident). Other than that, it has never happened in the U.S. for a Cabinet official to resign over policy mistakes. Certainly, if Janet Reno, whose Waco policy was (i) universally condemned by everyone who analyzed the event and (ii) resulted in a number of American children being burnt to death and (iii) lest we forget, provoked a terrorist attack here in America--if that doesn't call for a resignation, it's hard to see why forgetting to interrogate some prisoner in Iraq should be such a big deal.

Check me on this but isn't it conventional wisdom that this sort of behavior is standard operating procedure w/the CIA? Am I just being overly cynical when I say that this is just the only one we know of or that they have admitted to? Have I just been watching too many Xfiles reruns?

I stand by my original prediction: Rummy will resign at a time calculated by Karl Rove to effect maximum political gain for Bush.

Clearly, I agree with post. The whole "few bad apples" defense by this administration is absolutely wretched. The "legal defenses" for torture lite are inexcusable. The permissive procedures allowed are inexcusable.Someone must take responsibility:

But, as Ken Mcleod (an amazing science fiction writer), says:

When the President claims for himself powers outlawed in every country issuing from the English Revolution, and last exercised when James the II & VII personally supervised the splitting of Presbyterian shins, I guess we have to admit that in the long run the English Revolution failed.

Obligatory link to the Magna Carta:

http://www.magnacartaplus.org/1689-rights/.

A couple of key points:

That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.

That the pretended power of dispensing with laws, or the executions of laws, by regal authority, as it hath been assumed and exercised of late, is illegal.

"Essentially there is one precedent (a secretary of the Navy who resigned over the Tailhook incident). Other than that, it has never happened in the U.S. for a Cabinet official to resign over policy mistakes."

You're forgetting Les Aspin, Clinton's Secretary of Defense who took the fall for Mogadhishu.

Here is the transcript of Rumsfeld's comments.

Secret jails??? We should have just taken them out back and shot them.

You people are idiots. These people want us dead and will stop at absolutely nothing to kill us.

If you want to go to the front of the line to be blown up, be my guest. But me, I'll have a nice M-16 or Uzi waiting to blow them to pieces.

... And on a parting thought: Time to bomb damascus.

Cynical conjecture is not the equivalent of legitimate skepticism.

Intellectual curiosity is not restricted to intellectuals.

Our nation maintains the core concept: civilian control of military forces.

In my opinion, the above concept does not include a requirement that the electorate give equal weight on the subject of our common defense to citizens who deliberately remain uninformed about our security issues and choices, or in extreme cases, loath both our military and it's mission.

Political thought which is based upon class envy and division has long outlived it's usefulness to those it presumes to serve, and most others as well.

I am not an academic and hence am not pressured to think fashionably.

I support the spirit and thrust of the Bush doctrine. I support Donald Rumsfeld for as long as our President chooses to have him serve.

I've read Daniel's recent posts on the subject of 'Rummys' potential demise.

For some reason, I recall Colonel Kurtz's final speech in the film "Apocalypse Now". Kurtz conveys his perceptions of our will to prevail in war as opposed to our opponent's will. Although the character of Kurtz is clearly insane, I acknowledge the relevance of his statements.

First off, it is important to note that those who have opposed the President's preemptive initiative in Iraq have been willing to grab hold of any issue with which they can gain political traction, without regard to consequences in the long term.

If these issues weren't so grave, some mild amusement could be had from the multitude of contradictory concurrent statements emanating from the general direction of the "Bush Haters".

The President and his administration are criticized for being too idealistic in their belief that the tenets of Democracy have universal appeal.

They have at the same time been savaged for not being idealistic enough to believe that UN inspections and un-enforced resolutions would assure us that Saddam's documented threats have been made benign, and that a portion his formerly vast resources could not in the future be diverted to organizations who are waging war on the U.S.A and others in the world who will not capitulate by advancing a policy of appeasement in response to terrorism.

In the same vein, I find it intellectually dishonest to criticize the President for both an attempt at nation building and being inexperienced at nation building.

I support Donald Rumsfeld because he asks the right questions. I support Donald Rumsfeld because he maintains a grasp of the necessity for us as a nation to develop and maintain the capability to operate in dynamic environments.

And for those of you who don't get it yet, that is exactly what we are facing.

As the President has repeatedly stated, this is a long-term struggle.

Our new enemies are not the same type as we have faced in previous wars between nations. Those opponents were bacterial in nature, whereas, this new enemy is definitely viral both in nature and action.

Not only did he knowingly violate American laws, he then tried to cover it up (Sulivan has more on that). He lied under oath. Given that Rummy, Cheney, Wolfie, Feith, Aschroft, and Rice all need to go --- I think its pretty clear who needs to go in November.

The most common justification which I have heard in favor of granting Geneva convention rights to any combatant, aligned or non, is that our troops will benefit from reciprocal behavior on the part of our adversaries, whomever they may be.

This is clearly not the case, nor is it likely to be, as we can all conclude.

A stronger argument, and one in which most of us find commonality, is that this behavior is not what we are about as a nation. I agree with this in princible.

This brings up a key challenge. How do we prevail against an opponent who would be granted by the most generous of us, all of the rights of a combatant under the Geneva convention while at the same time warring to bring about the downfall of the very culture which solidified and has heretofore sought to guarantee those rights.

An even greater challenge is that of how we maintain the rights and liberties which have been granted by our founders, and effectively provide for our common protection from unlawfull attack as well, in light of 9/11.

We're dealing with people who employ human shields, use places of worship, humanitarian buildings and vehicles to support military attacks.

This may seem simplistic but you are asking our forces to fight a 'gentleman's war' against an opponent who has historically never acknowledged the battlefield limitations imposed by the Geneva Convention, and who will willingly exceed the limits of western civility in furtherence of their cause.

What is disturbing to me is not the menu of interrogation techniques from which we may choose, but the apparantly indescriminate application of extreme coercive techniques without due supervision and regard for the intelligence value of the individual subject.

In an administrative sense, the failure was local.

It is a failure of direct supervision in my perception. Something that happens in all organizations, and with which our military is equipt to contend.

The difficult questions remain. Where do we draw
lines?

War is horrific. No disaggreement here. It has always been about trading our's for their's.

What is even worse in my view is the potential for war in our cities and towns, when we would lose the advantage of risking only well equipt and trained volunteers, and incur the costs and horror of further losses of untrained, undefended, civilian casualties.

Who is willing to take that risk?

Who is willing to assume those costs?

John, would you please bother to actaully read the articles? The deep questions you ask are meaningless. By now, incompetence and mendacity go hand in hand. You have mendacity (Rummy lieing under oath) as well as the outright disregard for American principles and law. You should assume incompetence is bound to follow. They (the bush admin) no longer deserve any benefit of the doubt. Read the article. They actually never bothered to really interegate the guy they illegally held. And now they lost him, like they dont know where he is. I swear to god you can't make this shit up.

It's not just the retreat from human dignity, the ceding of moral high ground and the mistreatment of OUR soldiers that makes torture a fool's errand, torture makes war plain harder to fight.

"The best reason for abiding by the Geneva Convention (and other prohibitions on torture) is NOT the prevention of reciprocal violations. Even if the Iraqis began torturing our troops, there is a very good strategic reason for treating our prisoners properly: We want those still at large to surrender.

If an Iraqi militiaman thinks he is going to be mistreated by the coalition, or shipped off without rights to a Caribbean island for indefinite detainment, he is much less likely to surrender. Why not simply fight to the death?"

http://www.unlearnedhand.com/archives/000794.html

When exactly does the Red Cross get to visit the civilian hostages that the Iraqis are currently holding? Perhaps these Iraqis need to be called before Congress so we can get a definitive answer.

In a better world, Rumsfeld would have to resign so that he would have time to prepare for his trial in the Hague.

There seems, both in the Administration and in most of the comments above, to be a belief that the Geneva Conventions, the Convention Against Torture, and the UCMJ are bilateral contracts whose performance is contingent on something Osama and al-Sadr do. This simply isn't true. They're unilateral principles about fighting honorably, and whatever exceptions they admit of are specified therein. For example, if we capture the war criminals on the Iraqi side who tak hostages, we can try them and execute them. We do not get to imitate their criminal behavior, even if it is psychologically appealing—as it most evidently is to this Administration and its supporters.

Here's how the Geneva Conventions distinguish particpants in a conflict:

Combatants

The Geneva Conventions distinguish between lawful combatants, noncombatants, and unlawful combatants.

Lawful Combatants. A lawful combatant is an individual authorized by governmental authority or the LOAC [Laws of armed conflict] to engage in hostilities. A lawful combatant may be a member of a regular armed force or an irregular force. In either case, the lawful combatant must be commanded by a person responsible for subordinates; have fixed distinctive emblems recognizable at a distance, such as uniforms; carry arms openly; and conduct his or her combat operations according to the LOAC. The LOAC applies to lawful combatants who engage in the hostilities of armed conflict and provides combatant immunity for their lawful warlike acts during conflict, except for LOAC violations.

Noncombatants. These individuals are not authorized by overnmental authority or the LOAC to engage in hostilities. In fact, they do not engage in hostilities. This category includes civilians accompanying the Armed Forces; combatants who are out of combat, such as POWs and the wounded, and certain military personnel who are members of the Armed Forces not authorized to engage in combatant activities, such as medical personnel and chaplains. Noncombatants may not be made the object of direct attack. They may, however, suffer injury or death incident to a direct attack on a military objective without such an attack violating the LOAC, if such attack is on a lawful target by lawful means.

Unlawful Combatants. Unlawful combatants are individuals who directly participate in hostilities without being authorized by governmental authority or under international law to do so. For example, bandits who rob and plunder and civilians who attack a downed airman are unlawful combatants. Unlawful combatants who engage in hostilities violate LOAC and become lawful targets. They may be killed or wounded and, if captured, may be tried as war criminals for their LOAC violations.

Is the Left suggesting that the killers of Nick Berg, the car bombers, the snipers hiding in mosques, and the rest of the terrorists are lawful combatants? Apparently so. The truth of the matter is that they are War Criminals under the Geneva Conventions. Telling the Red Cross about them is an act of charity, not a requirement under the Geneva conventions. I'd say hanging is too good for them.

The idea that Rumsfeld should resign because he authorized tough interrogation techniques against War Criminals is ludicrous. The Left has been trying desperately to conflate the widely publicized abuses at Abu Ghraib with tough interrogation by Military Intelligence and the CIA. That is dispicable.

Question for all those who think Al Qaeda terrorists should be treated as combatants under the Geneva Conventions. How the hell do we stop the next attack if the only information they need to supply, under the conventions, is name, rank and serial number?

We need to recognize when a train has left the station. Rumsfeld resigning when Abu Ghraib broke would have done positive good. Having him resign now would just look like political collapse. In addition to this, no replacement this close to the election could be more than a caretaker, who would have to deal with the large number of Rumsfeld holdovers in DoD.

On a more positive note (and a different subject), check out the interesting post on Phil Carter's blog (http://www.intel-dump.com) abotu how the Patriot Act enables the Justice Department to prosecute American nationals accused of mistreating detainees overseas. Like Carter, I had not read the Act closely enough before to see this among the things it does.

In addition to Andrew J. Lazarus' well-stated comments, would the torture apologists here please also take note that the administration itself officially condemns torture?

Ashcroft condemns torture

Attorney General John D. Ashcroft told Congress yesterday that the Bush administration "rejects torture," but he refused to comment on a series of internal legal memoranda about the treatment of detainees, further fueling speculation that administration policies led to the abuse of prisoners in Iraq and the war on terrorism.

[...]

[Senator] Biden also asked Ashcroft whether he believed torture is justified.

After first declining to discuss "hypotheticals," Ashcroft finally responded, "I condemn torture. I don't think it's productive, let alone justified."

So what are the people who are justifying torture here saying?

That the administration is lying about it, but that that's quite ok because torture is really justified by the circumstances, but the administration has to lie about it and cover it up because dumb courts wouldn't understand?

Or that the administration has so far not engaged in using torture, but should be doing it?

The secret detention was not illegal. See my site for a post on the Geneva Conventions and UN Convention on Torture. These people do not qualify for protection under the Geneva Conventions (which are not "unilateral principles about fighting honorably," they require the other side to follow "the laws and customs of war" as well). And even if they were eligible for Geneva protection, there are exceptions to the right of notification if it is deemed "prejudicial to the security of" the US. There is no clear-cut case for the Rummy having done anything illegal.

"doesn't cut it for me". You are really getting in touch with your liberal side these days, Daniel. If I had a high value terrorist person in custody, I would not want anyone to know about it, especially the IRC. I suppose the men and women on the ground in Iraq would want the prisoner held in the most beneficial manner also.

Results oriented policies within reason are the only concerns our leadership should be worried about at this time. Daniel wants our Secretary of Defense to give detailed time line explenations on individual prisoners. Dan, don't you think he has more pressing matters. I would hope he does.

The Geneva Convetions explain what we may do to persons who don't follow the laws of war (and I agree this describes Al Qaeda): we may give them a fair trial where they may defend themselves (even at Gitmo, we have detained civilians who were simply in the wrong place at the wrong time), and then we may punish them including execution.

We may not lawfully torture them, because the Convention Against Torture has no exceptions whatsoever. If we didn't mean to follow that, we shouldn't have made it our law. Does anyone think for a minute that we would excuse Hezbollah their torture of a captured CIA agent because he was information-rich and knew of many threats against them? Goose meet gander.

It's almost comical to see the attempt to differentiate "tough investigation" by military intelligence and the CIA from gross torture (rape and murder are in the videos we haven't seen yet) also conducted by military intelligence and the CIA. It's as if Hitler defended himself by saying "I only wanted labor camps!" Do you really think that our interrogators were told "tough but legal methods of interrogation" and then they somehow decided to exceed these boundaries all on their own? Even though the White House and Pentagon civilians had written memos saying that the Commander in Chief could lawfully order "Sky's the limit"? Which seems more likely: that they were informed of the memos and took action accordingly, or they didn't know about their superiors' opinions but violated the plain reading of the UCMJ and other laws?

By "unilateral", I mean that we are obligated to follow the Geneva Conventions, except insofar as they withdraw their own protection from illegal combatants. We may not use this as an excuse to withdraw from those clauses that apply even when the enemy does not follow the laws of war. For example, the taking of noncombatant hostages (which we have done) is prohibited in all cases whatsoever (Article 3). The clause allowing for secret detention applies only to suspected spies or saboteurs arrested during civilian occupation. It does not apply to battlefield detainees or members of the Iraqi Armed Forces, that I can find. I believe that the Taguba Report says the latter situation applies to the actual "ghost detainees". (Carl is mixing-and-matching Conventions.)

It is quite simple: are we a government of laws, or not. Under fear of terrorist attack, people like Pat have decided not. They are making a terrible mistake. Tyrants always take freedom away on pretext of some emergency, sometimes even a genuine emergency. They must be resisted nonetheless.

brian, are you really that inane? Did also not read the article? Not only did they illegally hold "high-value" prisoners. They then FORGOT to interrotgate them. Do you understand wha this means? STOP DRINKIG THE dAMN KOOL-AID BEFORE IT KIllS ALL YOUR BRAIN CELLS.

I suppose the men and women on the ground in Iraq would want the prisoner held in the most beneficial [sic] manner also.

No, I really doubt that. I think our forces in harm's way would like to know that if they are captured, the Red Cross and their families will be notified. In fact, I think most of our troops would like to feel they are following the laws of war, and aren't teamed with a bunch of sickos who get free rein because the USA has the largest arsenal.

Let's write, say, John McCain and ask. I bet $10 on the answer.