Friday, September 08, 2006
(CIA) Business as Usual?: Would the Administration Bill Effectively "Overrule" Hamdan?
Jack's scenario below -- in which Al Qaeda operatives seeking intelligence information from U.S. prisoners subject those detainees to mild physical assault, sleep deprivation, "long time standing," hypothermia and waterboarding -- points out a certain irony at the heart of the Administration's draft bill -- namely, that although it codifies numerous crimes in violations of the laws of war, it would appear to legalize one set of war crimes that are currently unlawful.
May I suggest that the thing about all of these points is that this is all inside-US foreign relations law baseball and not international law? Congress and the President can play all kinds of word games and create two tracks etc but the background obligation as stated in Hamdan is Common Article 3. Congress can overrule Hamdan and interpret everything to make all words have indeterminate meaning within the United States as long as it passes constitutional muster - but so what? We should not fool ourselves into thinking - as apparently some of the people in this Administration are trying to do to themselves again - that we can just "fix it the way we want it" and get away with it. This is not a set of legal gymnastic games. This is a situation where every little game we play can be replicated in every country in the world where Americans (civilian, CIA and military) are forwardly projected (some 130 countries for military and more for the rest). So if we we play this game and they play this game in a race to the bottom we will all lose, particularly our military. Congress should take a page from Nancy Reagan and "Just Say No" on this draft and the compromise draft of Warner which is itself still weak. Can we please not - repeat not - try to weaken the Geneva Conventions? Are we not capable of that? All of these persons were complicit in allowing these things to happen. I talk about this over at Jurist today at http://jurist.law.pitt.edu/forumy/2006/09/moving-beyond-secret-prisons.php . Why don't we start with an apology to the world - especially by the lawyers - for weakening the rule of law?
The Congress doesn't have any more authority to commit or authorize war crimes than the President does, and there is nothing about such criminal acts that can rightly be called "law". We have faced worse dangers than these with better leaders than the disgraceful hypocrites of the Bush Administration and their supporters in the 109th Congress...
LIEBER CODE (1863)
Martial Law is simply military authority exercised in accordance with the laws and usages of war. Military oppression is not Martial Law: it is the abuse of the power which that law confers. As Martial Law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity - virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed.
General Orders No. 100, US War Dept. (1863)("Lieber Code"), art. 4.
IMT CHARTER (1945)
The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.
The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.
The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.
Charter of the International Military Tribunal (London / Nuremberg 1945)("IMT"), articles 6-8; UN G.A. res. 95(I)(1946).
Thanks for this post. This blog, along with some other legal blogs, have been absolutely essential to laypeople like myself.
But I'd like to emphatically agree with your commenters here. The most troubling thing of all is that we seem to have become a nation that is openly debating the nuances of torture, instead of one that rejects it categorically. The Congress should, indeed, just say no; and the next President (hopefully Gore -- something I wish for almost enough to get religion and start praying) should make it his or her top priority to openly and immediately reverse all of these disgusting "anti-terrorism" policies, which have not only created terrorists rather than eliminating them, but are simply immoral, illegal, and unacceptable for any people that wishes to consider itself civilized.
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