Balkinization  

Thursday, April 17, 2008

John Yoo and the Problem of Constitutional Evil

Mark Graber

Having just excerpted the Yoo memo for Gillman, Graber, and Whittington, AMERICAN CONSTITUTIONALISM (forthcoming, 2010), let me suggest that the claims are constitutionally plausible or as plausible as most of what I read when I read legal materials. I found myself disagreeing with most of this, taking offense at various points. Nevertheless, the arguments seemed no more or less scholarly than the constitutional theory in the average top-twenty-five law review. I was no more impressed by the Roberts opinion in Parents Involved (the Seattle school district case) then the Yoo memo.

The notion that Yoo ought to be disciplined for his involvement in a criminal conspiracy also strikes me as a bit strange. I confess to thinking that both that Yoo probably knew he was facilitating torture, but that there was no conspiracy in the non-legal sense of the word. We normally think of conspiracies as secret plots. If Yoo and company had been secretly plotting to murder liberal opponents of the war, that’s a conspiracy. President Bush and the Republican Party, however, repeatedly and publicly declared that their philosophy during the war on terrorism was "whatever it takes." Of course, there were occasional denials that torture was going on, but I suspect they were not believed or even intended to be believed. Campaigning on a platform of "whatever it takes," Republicans won two elections and lost one. The reason they lost the last election had little to do with torture and a good deal to do with the failure of the Iraq policy in general. If torture had helped pacify Iraq, I suspect the results in the 2006 election would have been quite different. Significantly, Democrats did not make opposition to torture a central plank in any of these elections. The main public difference seems to be over how much torture, rather than whether torture is legitimate.

Several conclusions can be drawn from this. First, many Americans support torture as a policy during the war against terrorism, particularly if there seems to be some visible evidence that torture is working. If there is a conspiracy, we probably should arrest about 60% of the country. Second, Yoo and company were largely engaged in providing legal justifications for policies that were largely well known and publicly defended. Moreover, to the extent that many Democrats seemed willing to sanction some torture, the Yoo memo provided constitutional justification for what may be the majoritarian constitutional understanding in the United States. Again, as a legal matter, you could still confine conspiracy to Yoo and a few others, but there would be an awful lot of unindicted co-conspirators. Third, a great deal of what goes on in the war against terrorism violates both international law and international human rights. I suspect attorneys in the Obama, Clinton, or McCain Administrations will champion policies that many internationally believe violate international law and human rights.

The Yoo memo is reprehensible because it supports torture when plausible constitutional arguments against torture exist. Alas, the constitutional support for Yoo’s position is gaining strength. In a period of time when Congress passively defers to the president and few Americans take any substantial interest in government policies that violate fundamental human rights, one should hardly be surprised that the weight of precedent increasingly is found on the side of the Yoo memo. Constitutionalists who disagree had better spend more of their time explaining to their fellow citizens what is wrong with torture than suggesting the problem might be cured by better legal methods courses in the first year of law school.




Comments:

"Let me suggest that the claims are constitutionally plausible or as plausible as most of what I read when I read legal materials."

"The weight of precedent increasingly is found on the side of the Yoo memo."

Mark: If these two assertions were true, I'd agree that this is a tempest in a teapot. But I find it a bit difficult to credit them.

Which examples of "legal materials" and "precedent," exactly, did you have in mind?
 

Oh, that's rich.

Back in 2002 when I was saying that the 2001.11.13 represented a conspiracy to violate 18 USC 2441 it never failed that I had to explain that I meant nothing more or less than in the sense the term is used in 18 USC 371.

Now you suggest that it's all a triffle becasue you don't see any deep nefarious plot, mostly because you seem unaware of the Cheney / Addington program for establishing the Constituional doctrine that the President as C-i-C has all the poowers of a Hitler, Charles I, or Caligula.

But that's besidfe the point: the reality is that these people conspired to commit war crimes and crimes against peace, and then commited those crimes, which are ongoing. If you don't see the difference between that and the run of the mill constituional arguments, it only becasue you aren't looking. In point of fact, thios particular conspiracy represents a de facto attempt to subvert the laws wholesale and overthrow the government of the United States for all practical purposes, in exactly the same sense that the Nazis subverted the government of Germany to criminal purposes.

It's my understanding that lawyers swear an oath when they are admitted to the bar. Did you mean it, or did you have your fingers crossed?
 

That s/b 2001.11.13 PMO on detentions etc supra, and pardon all the typos too, but this one got me a little bit steamed.
 

An entire national security law industry has developed to support the demand generated by the Bush Administration. I am sure there is not a major ISP or telecom company that doesn't employ several such people. Airlines, railroads, shipping companies and similar firms have to respond to the TSA. Government contractors need such people to address computer security, export control issues, visas, etc. And of course nobody is permitted in this homeland security community unless they support the expansion of security measures (and employ a few retired generals). As long as you accept the position of these people that the war against terrorism is necessary, endless and unprecedented, anything goes.
 

How about examining Yoo's torture memos in the context of Bush Administration officials charged with war crimes asserting the defense of reasonable reliance on the the advice/opinion of competent legal counsel? (I am not suggesting that Yoo is competent (or incompetent) or that these Bush officials were reasonable (or unreasonable) in their reliance upon Yoo's memos. Rather, I'm thinking of tax shelter opinions of tax attorneys that their clients relied upon on tax matters that are challenged by IRS.)
 

"Nevertheless, the arguments seemed no more or less scholarly than the constitutional theory in the average top-twenty-five law review"

That's hardly saying much, given how degraded constitutional theory has become over the last few decades, as a result of efforts to pretend that the Leviathan we live under actually comports with the Constitution.
 

the Yoo memo provided constitutional justification for what may be the majoritarian constitutional understanding in the United States

I see that you think so. Would you cite one of these "justifications" in detail, please, so we can see how you're using that word?
 

Professor Graber:

The Yoo memo is reprehensible because it supports torture when plausible constitutional arguments against torture exist. Alas, the constitutional support for Yoo’s position is gaining strength. In a period of time when Congress passively defers to the president and few Americans take any substantial interest in government policies that violate fundamental human rights, one should hardly be surprised that the weight of precedent increasingly is found on the side of the Yoo memo. Constitutionalists who disagree had better spend more of their time explaining to their fellow citizens what is wrong with torture than suggesting the problem might be cured by better legal methods courses in the first year of law school.

What constitutional arguments do you have in mind?

Arguably the least objectionable and best supported opinions Yoo provided in his memo argued that the 5th and 8th Amendments do not apply to warfare in general and in particular to foreign enemy combatants captured and held abroad. Indeed, I am unaware of precedent extending any constitutional rights to foreign enemy combatants (pending Kennedy's decision on the Suspension Clause, of course).

Historically, POW treatment has generally been a matter of treaty, statute and CiC discretion.
 

Charles:

You can start lecturing Professor Graber when you can offer an actual prima facie case of conspiracy.

You assume without evidence Yoo entered into an agreement with the President and his subordinates and personally intended to have the CIA commit an alleged war crime by implementing the coercive interrogation program.

The fact that you have no evidence of an actual conspiracy makes your slander of Preofessor Graber as being unethical for not indulging in your conspiracy theories all the more foolish.
 

We normally think of conspiracies as secret plots.

Hmmm. One might think the intent of classifying memoranda was intended to keep secrets.
 

Alice has gone through the looking glass...

you make several unsupported claims concerning the support American's have for torture...

your insistence we should have seen through the lies and denials offerred up by the bush administration...

you did warn us you would do whatever it takes...

Americans were asking for it!

We have NO right to complain now.

See, you can impeach us if you don't like it...


bi-partisan date rape indeed.
 

Strange of me to agree with Bart, but he's basically right here. I would not go so far as he does and say there's no constitutional violation that can possibly be asserted (the law as to whether the Eisentrager case really means that there is no Fifth Amendment protection with respect to the torturing of detainees is actually rather murky, see, e.g., United States v. Toscanino), but there is certainly plenty of caselaw that Yoo could reasonably cite to holding that the Eighth Amendment doesn't apply at all and that there are either no or extremely limited Fifth Amendment protections that might not extend even to acts of torture.

Where Yoo goes off the rails is in interpreting the statutory and treaty protections, and in interpreting Congress' Article I powers, not in interpreting the Bill of Rights.
 

this has been a secret plot!

we still don't know the details.

this post is a ludicrous presentation of the facts in much the same fashion yoo's memos were.

those memos should never have been issued from an OLC. they are so flawed that reliance upon them is no defense.

the memos purport to authorize the president to commit what would, according to American law, war crimes.

this is res ipsa war crimes for yoo and bybee and the whole criminal lot of them...

they have irreparably stained this nation's honor.
 

President Bush and the Republican Party, however, repeatedly and publicly declared that their philosophy during the war on terrorism was "whatever it takes."

Of course, there were occasional denials that torture was going on, but I suspect they were not believed or even intended to be believed.


So you concede Bush was breaking the law and because it was winked at, at the time, we should leave these poor patriots alone...

they were simply doing what we wanted?

is that the theory here?

never mind the geneva convention or prohibitions on torture, habeus corpus, due process and fourth amendment rights... of Americans!

Your lack of outrage at clear violations of the law resulting in war crimes is telling...
 

garth sullivan said...

this has been a secret plot! we still don't know the details.

This perfectly summarizes the sum and lack of substance of the accusations that Yoo committed war crimes.
 

Prof. Graber:

First, many Americans support torture as a policy during the war against terrorism, particularly if there seems to be some visible evidence that torture is working.

I'm sure that "many people" would support the police breaking in to the houses of big drug dealers and using anything they find there against them. And would support the beating, starvation, and/or 24X7 questioning of a person thought to have locked up a kidnapped kid in a closet somewhere.

I don't disagree with your point (that such "excesses" might be 'popular'), rather with the notion that this has some bearing on the law.

Cheers,
 

The elephant in the room is the lack of anybody providing a critique of Yoo from the standpoint that it is good law. Plenty of people saying that there's no evidence that it's bad law, but nobody saying it's a good opinion. The closest I've seen are those who say it's plausible.
 

dilan said...

Where Yoo goes off the rails is in interpreting the statutory and treaty protections, and in interpreting Congress' Article I powers, not in interpreting the Bill of Rights.

IMHO Yoo erred when he claimed that the President's CiC powers were plenary when they overlapped Congresses' Article I powers. Yoo relies far too much upon expansive court dicta to make this argument.

So far as interpreting the statutory definition of "torture," Yoo's subjective opinion (and that is all that is possible) is as good as anyone else's. Contrary to the wild speculation prior to the release of his memo, Yoo did not make up his standard for severe pain out of whole cloth. Yoo's reliance on a definition of "severe pain" from a health care statute is questionable. But then again, Congress didn't provide him with anything else to work with.

However, I do not see much problem with Yoo's opinion that the President has the constitutional authority to ignore treaty provisions. If the President can completely withdraw from treaties, he can almost certainly ignore them for a period of time.

I look forward to Marty's promised substantive legal critique of Yoo's actual legal opinions. It will be a refreshing change from the repeated and unsupported rants that Yoo's arguments are completely flawed or worse.
 

I've told you before Bart:

The memos themselves are prime evidence.

See for example the footnote where he claims 18 UCS 2441(c)(2) is inapplicable because Al Qaeda etc aren't party to Hague IV. Notice that the statute doesn't in fact say anything about anyone being a party to Hague IV, where it clearly does say something about someone (namely, the US) ratifying the additional protocols to Geneva. The same is true for 18 USC 2441(c)(1) in regard to grave breaches of Geneva and CA3.

then there's this business of claiming that any "generally worded statute" doesn't apply to the President or his agents. The intent of the entire memo, like his memo on 18 USC 2441, is quite plain: to nullify all the applicapble laws entirely -- and that's all the intent required. I get that you think he has a plausible defense, but also get that you are liar who thinks committing war crimes is just a good idea, and that merit of a potential defense is for a jury to decide.

And the precedents of Nuremberg and the IMT for the Far East just couldn't be more plain regarding this stuff -- and neither could the "original meaning" of the Constitution regarding claims of unlimited executive authority or torture.

And I ask again, Bart:

Are you a Christian?
 

"there was no conspiracy in the non-legal sense of the word. We normally think of conspiracies as secret plots...

Maybe so, Mark, but people are obviously referring to the legal sense, so this is a straw man argument in the service of I don't know what but whatever it is it ain't pretty.

What's more, it certainly was secret. Principals' meetings were not open to the public and I assume the discussions were classified. That's pretty damn secret.

Your argument here is an example of facile contrarianism. You should be ashamed of yourself for defending torturers.

...the Yoo memo provided constitutional justification for what may be the majoritarian constitutional understanding

That may be, but in that case the majority would be wrong. I'm pretty sure the Constitution doesn't allow for majority rule in constitutional law cases but perhaps there is some majoritarian understanding operating here that you'd like to explain to us that supercedes the actual Constitution?
 

I can't decide whether this is just intended to provoke, or whether writing that book on Dred Scott has affected your judgment. I didn't agree with your thesis there in any case, so it's probably needless to say that I don't here.

Your post is notably vague, as others have pointed out. Instead of relying on generalities, perhaps you could provide some specific defense of Yoo. Start with the criticisms Dilan has made here on this site.

While you're doing so, you can explain how the law of conspiracy extends so far that it captures those in philosophical agreement with the actual conspirators, but have no other connection to the conspiracy. You can also explain how winning an election or two meets anyone's criteria for Constitutional change. Especially when the actual facts were not made public but were concealed amid lies such as repeated denials by the Administration that it was torturing anyone. And when polls (see here) consistently show that substantial majorities of the American people reject torture.

I do agree with Brett that you've set a pretty low standard for what constitutes "scholarly".
 

Charles:

1) Your citation to alleged errors in Yoo's legal reasoning is not evidence that Yoo entered into an agreement with the President and his subordinates and personally intended to have the CIA commit an alleged war crime by implementing the coercive interrogation program.

2) The fact that an attorney writes a brief arguing that the law does not reach his client's conduct does not mean that the attorney entered into a conspiracy with the client to commit a crime.

3) The Nuremberg precedent involved German jurists who directly participated in sham trials and other legal action against opponents of the Nazi regime. That precedent does not apply to the Yoo memo.

4) Christianity is about forgiving sin, not lynching those who you believe without evidence to have committed sin.
 

...the Yoo memo provided constitutional justification for what may be the majoritarian constitutional understanding

Actually, polls show that this is completely false.

What are you trying to accomplish with this ludicrous line of "argument"?
 

"Christianity is about forgiving sin, not lynching those who you believe without evidence to have committed sin."

Hey Bart, you intellectually dishonest ideologue: does Christianity include getting a million people killed with an illegal war based on a hoax?

Does it really include torture?

Your attempt to use Christianity to further your contemptuous and immoral policies is sacrilege. if there's a Hell, you're going to burn there.
 

when "plausible constitutional arguments" against torture exist.


You misspelled "laws"
 

The notion that Yoo ought to be disciplined for his involvement in a criminal conspiracy also strikes me as a bit strange. I confess to thinking that both that Yoo probably knew he was facilitating torture, but that there was no conspiracy in the non-legal sense of the word. We normally think of conspiracies as secret plots.

Why are you mixing criminal conspiracy in the legal sense with conspiracy in the non-legal sense. You apparently know that secrecy is not an element, and are just fudging this. I would hope that a law professor could speak more clearly on a subject of this importance.

The Yoo memo is reprehensible because it supports torture when plausible constitutional arguments against torture exist.

You trivialize torture by calling the failure to invoke an argument "reprehensible." What's reprehensible is facilitating torture.

You seem to be saying that if enough constitutional law scholars say that it's OK for the president
to crush a child's testicles, then arguments to the contrary are implausible and it would not be reprehensible for those scholars to make the argument in the first place.

In fact, by saying "plausible constitutional arguments against torture exist," you are taking Yoo's position that the supposed scope of the president's power is what decides the issue, not international treaty or domestic statute.
 

Second, Yoo and company were largely engaged in providing legal justifications for policies that were largely well known and publicly defended.


this too is not entirely correct. while it is true that yoo and company were largely engaged in providing legal justifications for terror policies, they were not largely well-known and publicly defended.

it had to be pried out of this administration. did you watch the mukasey hearings, just a few months ago, he was almost derailed over torture.

you are simply wrong in your estimation of american tolerance for yoo's conduct. not only yoo, but the rest of the gang.
 

the justifications were not well known or debated... in fact they were kept secret.
 

Mark Graber,

Aside from the general conspiracy statute found at 18 USC 371, there's a specific torture conspiracy provision at 18 USC 2340A(c). That latter statute provides for possible life sentences for those convicted of torture conspiracy. The last time I checked, secrecy is not an element of a valid conspiracy charge. Rather, the elements of conspiracy are: (1) an illegal agreement, (2) criminal intent, and (3) an overt act in furtherance of the conspiracy. But if you want secrecy with regard to President Bush's torture policy, we have it with regard to the long-classified OLC torture memos and the secret White House meetings of the "Principals Committee."

Certainly a courageous federal prosecutor could bring a winning torture conspiracy case. There are a lot of inculpatory Bush administration documents showing deep awareness of the statutes Bush officials wanted to violate. There is sworn testimony from courts martial showing that torture took place. And there are autopsy documents on several people who were tortured to death. The prima facie case already can be made from the documents which have been leaked or released to the public domain.

Even President Bush's public statements help make the case. When gave his exclusive interview to ABC News reporter Martha Raddatz on April 11, 2008 and admitted approving of the meetings by the "Principals," he admitted taking part in that torture conspiracy. Bush's statements to ABC News are not excluded by the general hearsay rule and are admissible in court against him. Under the Federal Rules of Evidence, an inculpatory statement against a declarant's interest is not excludable if it tends to subject the declarant to criminal liability. Fed. Rule Evid. 804(b)(3).

With hindsight it's pretty plausible to conclude that President Bush and his cohorts knew they were breaking the law, but arrogantly believed they would never be held accountable -- until Hamdan v Rumsfeld was issued in June of 2006. Now that there is some doubt, Bush has to agonize over whether and who to pardon before he leaves office. There is a big battle for public opinion in the meantime because Bush and friends know they are in deep trouble if they ever end up in court charged with torture conspiracy. Look at how this battle shapes up in the blogosphere: Bush supporters, often very skillful, quibble every point in attempts to refute the unrefutable. Some of these people post so often throughout the day and the night one wonders whether they get paid from some "swiftboater" slush fund.

I don't care whether 90% of Americans support torture. I don’t care if 99% support torture. The validity of well-settled human rights is not subject to the will of the majority. If it was any other way, every generally unpopular or hated group would be legally relegated to second or third class status or even subject to extermination. Neither U.S. domestic human rights law nor international human rights law work that way.

There's a lot at stake here. John Yoo's theories about the scope of presidential power during wartime were evidently accepted by President Bush when he mentions the "unitary executive" in some of his signing statements. In fact, it appears that Bush's expanded and novel use of signing statements is an attempt to create precedential value in such statements. Through the dissipating fog we can see an alarming presidency that believes it is not subject to statutes or constitutional delegations of authority during times of war. And the enemy to be defeated is so shadowy he can never be defeated. How clever and convenient.

Did we go through three years of law school? Fill out all the lengthy character and fitness forms? Pass the bar exam? Throw it all away. Everything we know is wrong if Bush’s view of the law wins.
 

Although I have the utmost respect for the authors of this blog and am a frequent visitor, I think the debate about Yoo (and Bybee to a lesser extent) has become side-tracked. There are two separate issues: 1) Was the advice Yoo gave wrong (e.g. did he ignore crucial precedents under both domestic and international law) and 2) Did Yoo's work make him an accomplice to torture?

Many commentators, including Marty and Mark, seem to think that those of us who feel that a criminal prosecution of Yoo is realistic (internationally, not domestically) are seeking to punish Yoo because his arguments are wrong. I think his arguments are wrong, spectactularly so. But lawyers give poor advice to their clients every day, especially if the advice is what the client wants to hear, and in very few instances is such advice criminal.

What makes Yoo's advice criminal is the context in which it was given. Yoo wrote the memoranda (I am referring to both of the released Torture Memos) knowing that he was shaping interrogation policy and that his superiors would be relying on his advice to determine what to do with certain high-level al Qaeda detainees.

In the memos, Yoo exhibited no concern for the fate of the detainees, couched none of his arguments, and outright encouraged their degradation by stating that the actions of interrogators could be justified by relation to the 9/11 threat. (The last is a legal argument in only the broadest sense, particularly given the CAT explicitly rejects such a justification for torture).

Therefore, I think we are left with two unassailable propositions: 1) Yoo wanted to see detainees roughed up, if not outright tortured, because he believed it might help the US avert another 9/11 and 2)Without his memorandum, the torture policy would not have as easily been carried out.

I am not saying this is an open and shut case, and maybe John Yoo was just a lowly functionary who is now the victim of liberal law professors second-guessing his work. But my point is that no one is advocating a prosecution of Yoo merely because he was wrong. He was wrong, but he also was indifferent to the fate of the detainees and contributed to their abuse. The latter two grounds are why he may be a war criminal.
 

"First, many Americans support torture as a policy during the war against terrorism, particularly if there seems to be some visible evidence that torture is working."

Since polls show this is clearly not true, we must rely on Mark's tenuously drawn assertion that since we reelected Bush, we must support torture. And even though they said they didn't torture, we must have known they did.

So we support torture. And even if Mark has a poll showing we do, what does this have to do with the law and Yoo's memo? Nothing?

After all, don't 81 percent of Americans disapprove of the current administration? And as any conservative will be quick to point, what does that have to do with anything?

Mark also begins this as a legal essay but then spends the entire time justifying his thought process with pseusdo-political sophistry and how it's actually everyone else's fault.

Good thing in the last paragraph he used the word constitutional a lot.
 

Bart,

The dishonesty of you people just never ceases to amaze me, and the only lynchings in evidence here would be the administration's unlawful detentions and kangaroo courts, which Yoo -- and Addington -- are implicated in every bit as much as they are the torture. It's equally clear that no amount of evidence would ever overcome the unreasoning hypocrisy and prejudices of you and all the other fools who support them for the simple reason that you think committing the crimes is just a good idea for exactly the same reasons the Nazis did.

I didn't ask you for your opinion as to what Christianity says, I asked you if you were one. Your answer was just as dishonest as everything else you and the Bush administration say about these issues.
 

The notion that there is all this political support for these crimes is just preposterous.

a) They've systematically lied about everything from day one.

b) Even they'd told the truth, the Nazis had more political support for their crimes than these gangsters do. A gang rape or riot isn't improved by being popular.

It's just a BS argument, and the idea that we can't try them here in the United States is just a reflection of how much contempt there is among politicians, lawyers, and citizens for the laws of the United States. We had damn well better prosecute these criminals under domestic law if we want to go on believing that there actually is any law, or that there is anything which could accurately be described as "democracy" here in the United States.

If we don't, then we are just a nation of degenerate hypocrites like Nazi Germany. It's just absolutely appalling how weak-minded, dishonest, and conniving we've become. And I got news for you: stupidity like this will not go unpunished forever -- the only real question is whether or not we will allow these neo-fascist goons to drag us all down with them.

Sooner later, that is exactly what they will do unless they are stopped. These people aren't just liars and moral degenerates, they are TRAITORS in everything but the Constitutional sense of the term -- traitors to human reason itself.

And people like David Addington, John Yoo, or Bart De Palma aren't fit to practice law in the same sense that a child molester isn't fit to teach Kindergarten.
 

A post like this is intensely depressing on its first reading.

“First, many Americans support torture as a policy during the war against terrorism, particularly if there seems to be some visible evidence that torture is working.”

Is that a good reason for suggesting the law should not be enforced ?

It’s a fair bet that quite a number would also be prepared to subscribe to a Pay-TV channel featuring torture sessions provided the victims were “gooks”, or “ayrabs” or “fuzziwuzzies” or “towelheads”, and no doubt sponsors could be found. Perhaps the Federalist Society could solicit donations during the commercial breaks “neoconservatives working to bring back judicial floggings for the hooligans in your neighbourhood”

But what I do know is that the United States of America subscribed to the Geneva Conventions and to the Torture Conventions and has ratified them. The obligations on the United States of America could not be more clearly written.

The Bybee-Yoo memoranda, written within the holy of holies of the Federal Government legal service, are an affront to the rule of law and not "plausible" although they are plainly designed to be just that - an apologia for the unwashed to rely upon.

I suspect Professor Graber well knows this because he goes on to say:

“Third, a great deal of what goes on in the war against terrorism violates both international law and international human rights.”

Absolutely so – extraordinary rendition, illegal detentions, excessive delays in considering appeals from Habeas Corpus petitions which really should take precedence over ALL other judicial business, etc, etc.

Much abuse stems from the wrongful characterisation of the fight against terrorism as a “war” which, of course, it is not, since wars can only take place between sovereign nations.

Terrorists are suspects until convicted and criminals thereafter and they have the rights of any defendant in the criminal justice system.

Yet lawyers are discussing this as if it is all a matter of “nice and subtle points” rather than a cancer eating away at the rule of law.

I hope that Professor Graber's studied nonchalance is that of the oncologist who is about to recommend some unpleasant but effective chemotherapy.

There is hope: Obama has promised an investigation into Administration illegalities if he is elected. He has had the support of Professor Kmiec, who headed the Office of Legal Counsel under Reagan and Bush Senior for some time. Today, William D. Ruckelshaus also announced his support for Obama. Ruckelshaus was Nixon’s Deputy Attorney General in 1973 who was fired together with the then Attorney General, Elliot Richardson, when they both refused Nixon’s order to dismiss the independent counsel investigating the Watergate break-ins.

I refuse to believe that there are not many Republican jurists out there who are just as horrified by these memoranda and other affronts to the rule of law as anyone else who posts on this blog.

Is there an incipient movement to cleanse the Augean Stables ? Might it have legs ?
 

"Let me suggest that the claims are constitutionally plausible or as plausible as most of what I read when I read legal materials."

Suggest away.

I think you could also "suggest" that it's "constitutionally plausible" to claim that the president, during wartime, has the power to summarily imprison vocal critics of administrative policy. Those two "suggestions" are equally laughable under any modern concept of constitutional powers.

I'd love to see somebody with a convincing argument that Yoo's analysis was anything other than negligent, if not criminally slanted as advice on which the government relies.
 

Professor Graber's short piece is interesting.

But there a number of assertions in it that are surely debatable.

Secrecy: there was secrecy. this activity was done outside of media and public view and supported by classified memos. People who leaked information about it were subject to discipline. What we know of it came slowly through leaks, resigned personnel and so forth.

The public sense or approval: There was none except in the vaguest of terms. I dispute the claim that the people approved of "whatever it takes" in the sense of torture. When the Abu Ghraib photographs broke, there was mass revulsion everywhere. And still is.

Popular sense of the constitution: Outside of the legal profession, there is very little beyond, the sketchiest of facts. And that is irrelevant anyway.

Conspiracy: This is a legal term of art and we have to use it carefully. The essay seems to waiver.

Claims and plausibility: that is of course in the eye of the interpreter, the plausible claim may be a distinctly minority position within the academy.

Weight of precedent inclining toward Yoo. I dont know how to respond to that. I see no sign of it.

And so forth.
 

I just want to know what Graber's problem with Roberts' opinion in Parents Involved is. Personally I think that was an extremely easy case.
 

the idea that we can't try them here in the United States is just a reflection of how much contempt there is among politicians, lawyers, and citizens for the laws of the United States. We had damn well better prosecute these criminals under domestic law if we want to go on believing that there actually is any law, or that there is anything which could accurately be described as "democracy" here in the United States.

Amen to that.

Can we afford to have our president and his officers be above the law? Is starting a war going to be a get-out-of-jail-preemptively card for any offense whatsoever?

I mean, Jesus H. Christ, we are talking about TORTURE here.
 

The thing that strikes me about Mark's essay is how wan it is. It's as if he feels he must minimize Yoo's actions, but can't really think of any very compelling reasons why.

Mark: That feeling you're getting, the one you can't quite put your finger on? Most of call that "a sense of wrong".

It's SO obvious that you can barely muster a defense. WHY do you feel you have to write something that essentially says "everyone else did it... or something".

THAT'S your legal reasoning?

Just admit it's a crock. Just try it once! You'll be amazed how good it feels to stop having to make excuses for these people.

I mean, doesn't it get tiring?

Cause you sound tired.
 

[our indefatiguable spinster "Bart]"]: So far as interpreting the statutory definition of "torture," Yoo's subjective opinion (and that is all that is possible) is as good as anyone else's.

You might be amased that "sexual penetration" is not as clear cut as one might think at first blush. Yet juries can figure it out. Why don't we give 'em a shot?

Cheers,
 

If the President can completely withdraw from treaties, he can almost certainly ignore them for a period of time.

Never mind that the syllogism is faulty. Where does it say in the Constitution that the preznit can "completely withdraw from treaties"?

Somewhere near the spot where is says that Congress can undeclare wars, perchance?

For a "textualist", "Bart" has quite an imagination....

Cheers,
 

thanks
www.worldgames1.com
 

The problem of Mark Graber is that he is stuck in a constitutional vision of these crimes. It is a frequent problem in academia simply because the foreign relations law vision that is part and parcel of the constitutional vision simply misses the point. The point is that the United States has an obligation on it not to torture and not to do cruel inhuman and degrading treatment.

I am also not surprised that there would be degraded analysis in the constitutional vision because all that they have is a foreign relations law vision of these matters.

Mark Graber is another person seeking to sap the energy to prosecute these crimes. Does everyone notice this recurring litany here?

It is a litany we see over and over. Why? That is what baffles me?

I still believe that the reason for this litany is that those stating it don't want the prosecution and second they don't want those who do want to do it to do it without them. They want their cake and eat it too. I will have none of that acquiescence to torture.

Let the cases be brought and let a jury hear it.

As to Bart and

"Yoo's reliance on a definition of "severe pain" from a health care statute is questionable. But then again, Congress didn't provide him with anything else to work with."

I have explained in some detail over at Jurist why the standard as he applied it did not track with the health statute that he cited. His words such as "permanent damage" or "permanent impairment" or "death" have no predicate in the statute he cited. Yoo pushed the "seriousness" standard of the health statute to mean a higher threshold then the statute provides.

His "severe pain" standard is made up from whole cloth completely outside the language of the statute he chose. Just bring up the statutes and see the words - my God is that so hard to do? It took me five minutes to debunk this 10 days ago.

Maybe to make it clearer - the standard is bullshit that Yoo creates. It has no relation to what the statutes he cites say.

Best,
Ben
 

arne:

1) You are welcome to do what the medical professionals cannot and provide us with an objective definition of "severe pain."

2) As for the argument that the President may suspend treaties if he may end them, that is simply a matter of the lesser act falling within the greater.

3) Finally, the ability to negotiate treaties implies the power to end them. As you well know, this is a universally recognized executive power which has been exercised repeatedly.
 

Bart wrote

"You are welcome to do what the medical professionals cannot and provide us with an objective definition of "severe pain"

I've heard you say that before. Both medical and mental health doctors have myriad definitions of pain, multiple scales of tracking them, testing and evaluating them.

Next, instead of simply confirming that's true, you'll pretend it's not until someone posts information showing you that you're absurdly wrong.

Then, you'll find one piece of information that agrees with what you'd like to be true, probably found on a website of people like yourself who defend torture.

Then, someone will point the dubiousness of that information and its sources and you'll come to your very thin and weak argument that "pain is subjective" which is apparently code for "I can ignore and dismiss other's people pain, because I am selfish and have empathy issues".
 

An objective definition of "severe pain" isn't difficult:

Any amount of mental or physical suffering that could be reasonably believed by the perpetrator to cause the victim to speak against his will.

Given the aggravating circumstance of someone being disappeared by the CIA, that is a very low threshold indeed. The fact the apologists even think this point is arguable is simply telling evidence of their profound dishonesty, depravity, and malicious CRIMINAL intent.

The truth is that it's an absolute no-brainer given the abundant legal and historical precedents. These people are arguing for Hitler and Stalin, on the theory they were just smart politicians doing their job, that every applicable treaty and the customary laws of war are inapplicable, and that the US Constitution allows the President to commit any of the crimes committed by Charles I of England at his sole discretion.
 

Professor Graber defended Dred Scott. Why not the Torture Memo? Both are examples of the same basic process; deciding the outcome in advance and then looking backward for some sort of law to justify it. So far as I can tell, Prof. Graber's basic argument is that this approach is legitimate because everyone does it all the time.

Although I think it is true that judges (and lawyers) reason backward from results all the time, usually to far less egregious results, it does not logically follow that this approach is legitimate. Rather, the bare fact that reasoning backward from results can result in such monstrosities as Dred Scott or the Torture Memo should be enough to call the whole practice into question.
 

2) As for the argument that the President may suspend treaties if he may end them, that is simply a matter of the lesser act falling within the greater.

3) Finally, the ability to negotiate treaties implies the power to end them. As you well know, this is a universally recognized executive power which has been exercised repeatedly.


Taken to their logical conclusion, these two premises would mean that the President's authority to negotiate treaties implies that the treaties he negotiates are not binding on him, but purely a matter of voluntary compliance. A "creative" interpretation, I suppose.
 

charles gittings said...

An objective definition of "severe pain" isn't difficult:

Any amount of mental or physical suffering that could be reasonably believed by the perpetrator to cause the victim to speak against his will.


Thank you for at least trying. It is more than most here are willing to do.

The problem with your suggested definition is that it relies upon an element which has nothing to do with pain.

All interrogation is premised on causing the target to speak against his will. The Army Interrogation Manual is filled with dozens of pages of techniques to do just that, none of which inflict pain, nevertheless "severe pain."

The Torture Statute would not be hard to apply if it merely said "pain." However, by adding the term "severe," the statute expressly allows some measure of pain without defining how to objectively make that measure so an interrogator is put on notice as to what is prohibited as is required by the Due Process Clause.
 

enlightened layperson said...

BD: 2) As for the argument that the President may suspend treaties if he may end them, that is simply a matter of the lesser act falling within the greater.

BD: 3) Finally, the ability to negotiate treaties implies the power to end them. As you well know, this is a universally recognized executive power which has been exercised repeatedly.

Taken to their logical conclusion, these two premises would mean that the President's authority to negotiate treaties implies that the treaties he negotiates are not binding on him, but purely a matter of voluntary compliance. A "creative" interpretation, I suppose.


All treaties are a matter of voluntary compliance out of self interest.

There is no world government with a legislature enacting these treaties, an executive to enforce the treaties and a judiciary to adjudicate claims under the treaties.

The only war crime trials are held by the victors in wars.

The real penalty for withdrawing from or suspending a treaty is that the other signatories may reciprocate and withdraw or suspend their compliance.

The GCs are based upon just such reciprocity. al Qaeda and the Taliban do not extend GC rights to others, so others are under no obligation to extend them to al Qaeda apart from the barest minimum required of signatories towards those who do not qualify as privileged POWs.
 

The GCs are based upon just such reciprocity. al Qaeda and the Taliban do not extend GC rights to others, so others are under no obligation to extend them to al Qaeda apart from the barest minimum required of signatories towards those who do not qualify as privileged POWs.

As Dean Kuo recently said in a conference; whales are not signatories to fishing treaties either. The point of such treaties is to protect us from ourselves.

We take on affirmative obligations to abstain from acting in certain ways whether or not there is reciprocation.
 

Bart, just in case you haven't been reading the Constitution lately, it clearly says that treaties have the force of law.
 

el:

Treaties have the force of law so long as they are in effect.

Because the President can withdraw from treaties, treaties are only in effect as a matter of US domestic law against the Executive if the Congress enacts statutes to enforce them.
 

Ya well most treaties specify the conditions under which a party can suspend or abrogate them. When ratified, they are law.
 

Charles:

The Constitution is a superior law to treaties.

Treaties cannot amend the Constitution to set conditions on the President and Congress' constitutional powers to withdraw from or suspend treaties.
 

A treaty doesn't need to amend the Constitution:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

Const. art VI, cl 2.
 

PS:

The Constitution itself is in fact an international treaty.
 

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

Am I correct in assuming that this means that if a president wants to withdraw from a signed and ratified treaty, he must get Congress to pass a law which allows it? Or does he need an ammendment?
 

No, it's an executive function. He can withdraw from a treaty subject to the conditions under which it was adopted is my understanding of it. It's also very fuzzy around the edges, depending on the particulars.

It's just not as cut and dried as Bart makes out.
 

It's just not as cut and dried as Bart makes out.

# posted by Charles Gittings : 2:31 PM


I have come to believe that anything Baghdad Bart says is a lie, or is based on lies.

The current rightwingnut spin seems to be that the president withdrew from the Geneva Conventions by violating it. While the current AG might be corrupt enough to buy that BS, the next one hopefully will not.
 

This comment has been removed by the author.
 

This comment has been removed by the author.
 

I suspect Baghdad has convinced himself that his God is ok with torturing muslims.
 

This comment has been removed by the author.
 

The Constitution itself is in fact an international treaty.

Charles, wasn't that theory litigated extensively from 1861 to 1865, and ultimately found wanting?

I'm thinking of the case of United States v. Confederate States. Decided at the courthouse in Appomattox, IIRC.
 

I want to apologize for mangling Dean Koh's remarks.

It was at a symposium on the constitution and international law at Fordham, and the quote (from OpinioJuris)is:

"I recently was talking with a Senator who said to me, 'Professor, we didn’t ask the terrorists to sign the Geneva Conventions. How can you expect us to abide by commitments that they don’t adhere to?' To which I replied, 'Yes, and we didn’t ask the whales to sign the Whaling Convention either. We sign these treaties to protect us from ourselves, not from them.'"
 

Heh. I take it the Court's jurisprudence was, in effect, that it was a non-derogable treaty notwithstanding the heated dissent of the minority.

But seriously, I think the point is quite clear from the texts of the Declaration of Independence and Articles of Confederation. See, e.g., Ware v. Hylton, 3 U.S. (Dall.) 199:

"In June 1776, the Convention of Virginia formally declared, that Virginia was a free, sovereign, and independent state; and on the 4th of July, 1776, following, the United States, in Congress assembled, declared the Thirteen United Colonies free and independent states; and that as such, they had full power to levy war, conclude peace, etc. I consider this as a declaration, not that the United Colonies jointly, in a collective capacity, were independent states, etc. but that each of them was a sovereign and independent state, that is, that each of them had a right to govern itself by its own authority, and its own laws, without any control from any other power upon earth.

"Before these solemn acts of separation from the Crown of Great Britain, the war between Great Britain and the United Colonies, jointly, and separately, was a civil war; but instantly, on that great and ever memorable event, the war changed its nature, and became a PUBLIC war between independent governments; and immediately thereupon ALL the rights of public war (and all the other rights of an independent nation) attached to the government of Virginia; and all the former political connection between Great Britain and Virginia, and also between their respective subjects, were totally dissolved; and not only the two nations, but all the subjects of each, were in a state of war; precisely as in the present war between Great Britain and France.

"From the 4th of July, 1776, the American States were de facto, as well as de jure, in the possession and actual exercise of all the rights of independent governments. On the 6th of February, 1778, the King of France entered into a treaty of alliance with the United States; and on the 8th of Oct. 1782, a treaty of Amity and Commerce was concluded between the United States and the States General of the United Provinces. I have ever considered it as the established doctrine of the United States, that their independence originated from, and commenced with, the declaration of Congress, on the 4th of July, 1776; and that no other period can be fixed on for its commencement; and that all laws made by the legislatures of the several states, after the declaration of independence, were the laws of sovereign and independent governments."

Id. 224-5, Chief Justice Chase, seriatim (citations omitted).
 

michael said...

I want to apologize for mangling Dean Koh's remarks.

It was at a symposium on the constitution and international law at Fordham, and the quote (from OpinioJuris)is:

"I recently was talking with a Senator who said to me, 'Professor, we didn’t ask the terrorists to sign the Geneva Conventions. How can you expect us to abide by commitments that they don’t adhere to?' To which I replied, 'Yes, and we didn’t ask the whales to sign the Whaling Convention either. We sign these treaties to protect us from ourselves, not from them.'"


This comparison between the GCs and the Whaling Convention and between humans at war and whales is nonsensical.

The GCs are an agreement between potential combatants created to establish a set of rules by which combatants wage war. By establishing qualifications to receive POW privileges which include abiding by the GCs, the GCs are expressly intended to be reciprocal.

In stark contrast, whales do not wage war or war crimes against humans. Rather, they are passive participants in whaling.

The Whaling Convention is an agreement between humans to stop or limit the killing of Whales. Unlike the GCs, there is no requirement under the Whaling Conventions for the whales to do anything in order to qualify for the protection of the treaty.

The Senator made a valid point which is assumed in the text of the GCs itself.
 

"I have come to believe that anything Baghdad Bart says is a lie, or is based on lies.

"The current rightwingnut spin seems to be that the president withdrew from the Geneva Conventions by violating it. While the current AG might be corrupt enough to buy that BS, the next one hopefully will not."


I think you're about right there Bartbuster. The way I've been describing there argument over the last six years is that 1 + 1 = 0 or 3, the classic example being their phony arguments that "unlawful combatants" are a third category distinct from the two defined by Geneva, POWs and Civilians. The selectively argue the text of Geneva to support this, then turn around and claim that doesn't apply. Hence, 1 + 1 = 0 and 3 simultaneously. It's a bit like quantum physics minus the actual math.
 

Please stop. Persons who meet the GC III definitions have those protections. Those who do not are Common Article III of GCIII or GCIV. The ICRC keeps reminding us that the GC coverage of persons in armed conflict does not have holes in it. The Senator wants to have holes - sorry he can not have it. I can expect us to comply because we say we comply with our obligations.
Best,
Ben
 

"Bart" DePalma:

1) You are welcome to do what the medical professionals cannot and provide us with an objective definition of "severe pain."

Why? Why should I bother to address your "straw man"?

How about an "objective definition" of "driving while impaired" (to pick something from your line of work). Yes, there's a presumptive impairment in many states @ BAC >0.08, but that's hardly the end of it; for other intoxication (also illegal in many states), there's no such 'standard', not to mention, you can be found "impaired" despite not knowing the BAC. Yet, judges and/or juries can find people guilty of DWI. Imagine that....

And you didn't answer my question on "sexual penetration"....

2) As for the argument that the President may suspend treaties if he may end them, that is simply a matter of the lesser act falling within the greater.

Oh, horsepatooties. Here's what you said:

"If the President can completely withdraw from treaties, he can almost certainly ignore them for a period of time."

That kind of codswallop is why people here think you're either an eedjit or thoroughly dishonest.

Any reasonable person would know that the moment he "ignore[s] them", assuming he has power to do so, that he's broken the freakin' treaty, and that the treaty is broken. What makes you think that sudden adherence in and of itself will remake the broken treaty (say, you know, like building banned ABMs, and then when the Russians build their own, stop building and demand they stop as well.....)

This is just so stoopid on your part, "Bart", it's hard to credit you with arguing in good faith....

3) Finally, the ability to negotiate treaties implies the power to end them. As you well know, this is a universally recognized executive power which has been exercised repeatedly.

I don't disagree. What I don't understand is your insistence that Congress, having unarguable power to declare war, then has no power to undeclare (or end) it.

I'd note, though, that an honest equivalence would require the same "advice and consent" of the Senate to break a treaty.

Why do you assume many powers to the executive that are not even remotely in the text of the Constitution. As I said, your "texualism" is rather tattered....

Cheers,
 

In stark contrast, whales do not wage war or war crimes against humans. Rather, they are passive participants in whaling.

Unless the sink the whaling ships. Ask the Essex crew. FWIW, I'd say they have every right to do such.

But you haven't addressed Dean Koh's point, "Bart". It applies regardless of whether the whales attack us.

Cheers,
 

Bart is not to be condemned for his take on the applicability of the Geneva Conventions. It is an area where even experts disagree.

I think a most common misconception is the one on reciprocity. Does the GC require signatories to extend the GC floor of humane treatment to non-signatories. I believe the answer is that it does and it doesn't matter whether the non-signatory party is a state actor or not.

I commend to Bart and anyone else interested to read Professor Jinks' paper on the topic available on SSRN.
 

"Bart is not to be condemned for his take on the applicability of the Geneva Conventions. It is an area where even experts disagree."

...

From the Conservative Manual, page. 408

Making a topic controversial: If there is a widely accepted practice, find other people to say they disagree.

Then say "this topic is controversial." Or "there is widespread disagreement."

Voila! It is now controversial or under dispute.

Authority of experts: Anyone who agrees with you is an expert.

Qualifications of experts or sources: Anyone that agrees with you is an authoritative source. Anything that disagrees with you must meet a 90,000 page requirement list. But if you still don't like the source, just ignore it.
 

benjamin davis said...

Please stop. Persons who meet the GC III definitions have those protections. Those who do not are Common Article III of GCIII or GCIV. The ICRC keeps reminding us that the GC coverage of persons in armed conflict does not have holes in it.

Things are not all that cut and dry. If words have meaning, the GCs appear to have a a hole into which the al Qaeda and the Taliban fall.

As irregular combatants who fight without uniforms and do not follow the GC or any other law of war, al Qaeda and the Taliban do not qualify as privileged POWs under GC III (4). These are the reciprocal rights to which I was referring.

Also, if the term civilian is given its normal meaning, al Qeada and the Taliban military combatants do not fall under GC IV. These are not muggers, but rather organized militaries.

The more interesting question concerns the application of GC III (3). This provision is expressly limited to an "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." This provision pretty clearly applies to a civil war. How does a war involving the United States and al Qaeda and/or the Taliban qualify as an "armed conflict not of an international character?"

The Hamdan majority interpretation of the term international character as a war between nations is plausible, but not very probable. The court wanted to fill in the hole left by the plain language of the GCs.
 

Reno,

I suppose the manufactured "debate" on global warming is illustrative of your point.

All,

Bart mentions that the point of interrogation is to coerce information against the will of the questioned. Perhaps so in some countries. But in our system; that is decidedly not so and all the more so for evidentiary purposes.

We don't need to cite Hague or Geneva to see that our own courts long ago took up this issue:

Watts v Indiana, 338 U.S. 49 (1949)

Mr Justice Frankfurter announced the judgment of the Court and an opinion in which Mr. Justice Murphy and Mr Justice Rutledge [two sainted souls] join: [excerpts follow]

“There is torture of mind as well as body; the will is as much affected by fear as by force. And there comes a point where this Court should not be ignorant as judges of what we know as men. See Taft, C.J., in the Child Labor Tax Case, 259 U. S. 20, 37.”

“A confession by which life becomes forfeit must be the expression of free choice. A statement, to be voluntary, of course need not be volunteered. But if it is the product of sustained pressure by the police, it does not issue from a free choice. When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal. Eventual yielding to questioning under such circumstances is plainly the product of the suction process of interrogation, and therefore the reverse of voluntary. We would have to shut our minds to the plain significance of what here transpired to deny that this was a calculated endeavor to secure a confession through the pressure of unrelenting interrogation. The very relentlessness of such interrogation implies that it is better for the prisoner to answer than to persist in the refusal of disclosure, which is his constitutional right. To turn the detention of an accused into a process of wrenching from him evidence which could not be extorted in open court, with all its safeguards, is so grave an abuse of the power of arrest as to offend the procedural standards of due process.”

Now comes the heart of Frankfurter’s analysis:

“This is so because it violates the underlying principle in our enforcement of the criminal law. Ours is the accusatorial, as opposed to the inquisitorial, system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end. See Ploscowe, The Development of Present-Day Criminal Procedures in Europe and America, 48 Harv.L.Rev., 433, 457-58, 467-473 (1935). Under our system, society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case not by interrogation of the accused, even under judicial safeguards, but by evidence independently secured through skillful investigation. “The law will not suffer a prisoner to be made the deluded instrument of his own conviction.” 2 Hawkins, Pleas of the Crown c. 46, § 34 (8th ed., 1824). The requirement of specific charges, their proof beyond a reasonable doubt, the protection of the accused from confessions extorted through whatever form of police pressures, the right to a prompt hearing before a magistrate, the right to assistance of counsel, to be supplied by government when circumstances make it necessary, the duty to advise an accused of his constitutional rights — these are all characteristics of the accusatorial system and manifestations of its demands.”

“Protracted, systematic and uncontrolled subjection of an accused to interrogation by the police for the purpose of eliciting disclosures or confessions is subversive of the accusatorial system. It is the inquisitorial system without its safeguards.”
==============================
Now this is the common-law, due process accusatorial system that the distinguished jurists of the previous generation left us.

There is no room in it for the abuses we have seen in the last 8 years.
 

michael:

BD: All interrogation is premised on causing the target to speak against his will...

michael: Bart mentions that the point of interrogation is to coerce information against the will of the questioned.


I think you misunderstood my point. The point of all interrogation is to cause the target to provide information against his or her will. Otherwise, the target would simply march in and voluntarily tell you all he or she knows.

The distinction between "cause" and "coerce" is key because one of the privileges of POWs under GC III (4) is not to be coerced.
 

Torturing prisoners is a war crime regardless of their status as a POW or Civilian, and there is no third category, as Geneva IV arts. 4 and 5 will show anyone who bothers to read them.
 

charles gittings said...

Torturing prisoners is a war crime regardless of their status as a POW or Civilian, and there is no third category, as Geneva IV arts. 4 and 5 will show anyone who bothers to read them.

The CAT and the Torture statute are not dependent on the status of the combatant, the GCs are.

I am not arguing that al Qaeda and the Taliban fall into a third category of the GC. Rather, I pointed out that these combatants do not fall under any category actually set forth by the text of the GC.

The Hamdan majority rewrote GC III (3) to extend those minimal protections to al Qaeda and the Taliban, but those protections read very much as does the Yoo definition of statutory torture - "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture."

The Congress through the MCA defined "cruel treatment and torture" essentially the same way as they did in the Torture statute, with all that statutory definition's vagueness problems. That is why Congress keeps trying to amend the torture statue so that it is workable as a criminal cause of action.

In sum, nothing much has changed. The GCs through the MCA do not provide any real additional protections above and beyond the CAT through the torture statute.
 

Bart,

I think to understand Frankfurter, we have to look at this sentence.

"And there comes a point where this Court should not be ignorant as judges of what we know as men. See Taft, C.J., in the Child Labor Tax Case, 259 U. S. 20, 37.”

Beyond a certain point, the great jurists don't shelter in literal meanings of words on paper..they reach to the animating spirit of the law, and the intent of Law itself. You see Frankfurter doing this, visibly, for our benefit.

Best wishes,

Mike
 

michael:

The New Deal court abdicated its responsibilities to enforce the Constitution's limitations on the government. Its deference to the Executive and Congress makes Yoo's expansive view of the Executive look tame in comparison. I hardly look to the New Deal court as an exemplar of how the judiciary should act.
 

All interrogation is premised on causing the target to speak against his will.

You are a very ignorant man. Do you ever say stupid things like that in front of people who will laugh out loud at you?
 

"I am not arguing that al Qaeda and the Taliban fall into a third category of the GC. Rather, I pointed out that these combatants do not fall under any category actually set forth by the text of the GC."

Gee, that sounds a lot like a third category to me Bart, especially since the language of Geneva IV art. 4 clearly states that anyone who isn't protected by Geneva I, II, or III is protected buy Geneva IV, and Geneva IV art. 5 underlines that by explicitly stating that includes spies and saboteurs.

And who the hell do you think your kidding with this transparently fraudulent BS??

Only your deeply delusional New-Age-Nazi self, and that goes double for your vacuous right-wing fictions concerning the Roosevelt administration.
 

Charles:

Do you read the provisions to which you cite?

GC IV (5) applies to civilian spies and saboteurs (destruction of property), not enemy combatants bent on mass murder of combatants and civilians.
 

"not enemy combatants bent on mass murder of combatants and civilians."

What proof do you have they were bent on murder of combatants and civilians?

Or even that they were enemy combatants?
 

Of course I read it Bart. Where do your read anything in it that would support the preposterous claim there's a distinction between "spies or saboteurs" and "enemy combatants bent on mass murder of combatants and civilians"?

A spy is a spy, a saboteur is a saboteur, and the terms apply to both military personnel and civilians operating as such with equal force -- OSS or French Resistance, same difference. Military personnel operating in uniform behind enemy lines would not not fall under GC IV art. 4 under any circumstance.

You're just spinning up circular arguments and transparently fraudulent BS, as usual.
 

Bart missed my gentle point, but that is understandable seeing the pivotal role he plays on this salon of ideas (which I have just recently joined). His plate is constantly full and that probably effects some of his posts.

Anyway, I happen to be admirer of the New Deal Court and its successors up to the Rehnquist court. I believe our jurisprudence reached an apogee of sorts during that era and has since slid back some.

Bart, I think I was trying to make the point that if you confine yourself to a narrow textualism, you miss the forest for the trees.

I have to admit my own prejudices; I am one of those dreaded "Crits" so my take on the law is decidedly a minority position.
 

I'm trying to understand the constitutional basis for Bart's view of the President's treaty making and breaking power, but I'm clearly missing something. Below are all the Constitution's references to treaties:

"No State shall enter into any Treaty,..."

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties," (He being the President.)

And that's it.

Why would anybody believe that a President who can't make treaties without the advice and Consent of the Senate, can break them without it?
 

smokes said...

"not enemy combatants bent on mass murder of combatants and civilians."

What proof do you have they were bent on murder of combatants and civilians?

Or even that they were enemy combatants?


Have you watched the news for the past 15 years?

al Qaeda and the Taliban are terrorist organizations which have slaughtered tens of thousands.

These organizations are quite open about their objectives - to conquer the Middle East and then the rest of the world to establish a new Caliphate. The fact that their goal is madness does not detract from the fact that it is their goal and that goal is a military one. That makes them enemy combatants waging a war of conquest.

What is amazing is the amount of effort expended by American targets of al Qaeda to argue that al Qaeda are not what they proudly proclaim and perpetrate.
 

Charles:

The ICRC provided commentary on GC IV (5) whcih included this passage:

" . . . as a spy or saboteur ". Article 29 of the Regulations annexed to the Fourth Hague Convention of 1907 gives the following
definition of a spy : "A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party ".

That definition of a spy is still valid. Article 30 of the same Regulations stipulates that a spy taken in the act shall be punished without previous trial-a provision in keeping with the general rule in Article 3 of the Convention, which we have already discussed...

Sabotage is harder to define, as no definition of it is given in any text in international law. The term "sabotage " should be understood to mean acts whose object or effect is to damage or destroy material belonging to the army of occupation or utilized by it.


Members of terrorist groups, whose objectives are neither to spy or to damage or destroy material but rather the mass murder of civilians and the military, do not fall under this provision.

None of this is surprising. al Qaeda style terrorism was not common at this time and was not specifically addressed outside of the provisions of GC III (4) dealing with irregular forces and those provisions required that irregular forces comply with the laws of war to receive privileges.
 

brett said...

I'm trying to understand the constitutional basis for Bart's view of the President's treaty making and breaking power, but I'm clearly missing something. Below are all the Constitution's references to treaties:

"No State shall enter into any Treaty,..."

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties," (He being the President.)

And that's it.

Why would anybody believe that a President who can't make treaties without the advice and Consent of the Senate, can break them without it?


The ability to make treaties implies the ability to withdraw from them otherwise all treaties would be eternal.

This provision requires the President to get Senate approval to implement treaties. There is no provision which requires the President to get Senate permission to withdraw from a treaty. Article II has similar provisions concerning going to war and nominating officers. When taken in para materia, these provisions suggest that the Constitution requires the President to seek Senate permission to initiate acts, but not to end them.

Goldwater made your argument to the Supremes seeking to require a Senate vote on Carter's withdrawal from the Panama Canal Treaty and the Supremes punted, claiming it was a political matter.
 

Tireless, Bart is, in sharing his foolishness with the rest of us.

In response to smokes question, What proof do you have they were bent on murder of combatants and civilians? Or even that they were enemy combatants?

Bart answers, Have you watched the news for the past 15 years? al Qaeda and the Taliban are terrorist organizations which have slaughtered tens of thousands...

Your insight is deep and remarkable, Bart!

In a brilliant stroke of taking the general to be the particular, you rid us of the tiresome nuisance of due process. Thanks to your touching faith in the infallibility of the President, not to mention anyone whose brutish lust for vengeance matches your own, we needn't concern ourselves with whether our government might make a mistake and torture innocent innocent people to their deaths.

Take Dilawar, for example.
 

mattski:

You are welcome to offer evidence that an individual al Qaeda or Taliban prisoner is a spy or a saboteur of a hostile power who would fall under GC IV (5).

Wiki has a list of detainees with links to the unclassified status hearing summaries and the prisoner's own statements as to his status.

Good hunting.
 

"The ability to make treaties implies the ability to withdraw from them otherwise all treaties would be eternal.

This provision requires the President to get Senate approval to implement treaties."


Now, that's just plain nonsense, Bart. The Constitution doesn't require the President to get Senate approval to implement treaties, it requires that approval to make them. This is a power which is split between the two branches, can't be exercised by either alone. There's zip in the way of constitutional basis for claiming that the President can unmake a treaty by himself, anymore than he could repeal a law by himself.

Only if the treaty itself stated that it could be terminated by the executive alone could this be legitimate.

I've got to say that my opinion of Bart is dropping rapidly, in the face of his defense of executive power far beyond anything the text of the Constitution allots the executive.
 

Bart says: You are welcome to offer evidence that an individual al Qaeda or Taliban prisoner is a spy or a saboteur of a hostile power who would fall under GC IV (5).

Your schtick is essentially one of diversion. We're talking about the limits of executive power and the role of due process. You simply assert the status of a "AQ" prisoner with no basis for that assertion other than your unblinking faith in the executive. But that is the subject of this debate.

Hey, Bart, why don't you screw up your manly courage and watch 'Taxi to the Dark Side.' I don't expect it will prick your conscience greatly, but it might sow the seeds of decency where decency is currently lacking.
 

Brett:

The term make treaties in the Constitution means to implement them. Presidents negotiate treaties all the time, but they do not have the force of US law until the Senate ratifies them.

My contention that the President may withdraw from treaties without some sort of reverse ratification from the Senate is hardly controversial.

To start, the text of Article II requires no such thing. A Pressident must seek congressional approval to put a treaty into effect as he must to go to war and to appoint executive officers. The text does not require a reverse ratification process where the President must seek congressional approval to end a treaty or a war or to fire a his executive officers.

Historically, Presidents have ended dozens of treaties without congressional approval (as they have ended wars and fired officers), mostly leading up to or after war has started with a signatory, but sometimes during peacetime as with Carter's withdrawal from the Panama Canal Treaty and Bush's withdrawal from the ABM Treaty.

You are of course welcome to offer contrary authority which holds that a President must have congressional approval to end a treaty, but that is not what is required by text or practice.
 

mattski said...

Bart says: You are welcome to offer evidence that an individual al Qaeda or Taliban prisoner is a spy or a saboteur of a hostile power who would fall under GC IV (5).

Hey, Bart, why don't you screw up your manly courage and watch 'Taxi to the Dark Side.' I don't expect it will prick your conscience greatly, but it might sow the seeds of decency where decency is currently lacking.


Instead, I would suggest that you actually read the GCs and stop getting your information on international law from propaganda films.
 

Bart,

What BS.

We all get that you don't think they fall under any provision because you say so --- a demented liar indulging circular arguments and wishful misrepresentations.

This is not complicated: you are either a privileged belligerent under under Geneva III or you are not, in which case you are subject to prosecution for any and all crimes under CIVIL law.

PERIOD.

And it's really quite obvious from the meaning of the term "civilian" itself --- look it up.

There's nothing going on here except you trying to nullify the laws in order to commit war crimes with impunity, for exactly the same reasons the Nazis made such arguments.
 

Bart, I have enough familiarity with your modus operandi (and thanks to the many knowledgeable folks who have repeatedly rebutted you here) to be able to say with confidence that the drafters of the US Constitution would hold your arguments in utter contempt.

But do carry on.
 

In reality, the international community needs to convene another Geneva Convention to clarify the standards for dealing with enemy combatants who do not follow the laws of war.

The problem with supplementing the GCs is that the EU nations do not recognize that they are at war and do not even know what to do with captured terrorists.

This weekend, it was reported that the British Foreign Office told the Royal Navy not to capture Somali pirates because the British law will not allow the Navy to return the pirates to Somalia because the Somalis would :::gasp::: execute them and the pirates could actually claim asylum in Britain!

As piracy scholar John Burnett noted: "The British attitude has come a long way since the days when pirates were chained to pilings at Wapping and left there until the tidal water of the Thames ebbed and flowed over the bodies three times. So much for Britannia ruling the waves."
 

Bart,

BS -- your only interest in the Geneva Conventions is violating them.
 

Also, re "propaganda films": You're no stranger to propaganda, Bart. If not for propaganda you would be blissfully silent.

So, have you the manly courage to watch the film or not? Maybe--and it pains me to suggest this--you're just a little sissy-boy?
 

Mr. Gittings, I appreciate your willingness to call a spade a spade with your constant comparisons of Bart and his ilk to the Nazis.
Anyone who's read his robust but morally bankrupt defenses of this administration and their war crimes have few illusions about whose bidding Bart would have been doing had he been a German in 1940. Or,for that matter, a Russian during Stalin's reign of terror, a Cambodian in 1976, or an Iraqi in 1988 (when Saddam was gassing Kurds and Iranians but wasn't Hitler and was still our friend).
You should be proud of the historical company you keep, Bart-sycophants and apologists for the best monsters we humans have bred.
 

Mattski,

I doubt Bart is a "sissyboy", he simply is a well-intentioned proponent of a view that carried all before it in the aftermath of 911 and still has considerable potency within the Beltway.

There is no doubt in my mind, that this exigent approach to law will be repudiated in the history books and that some of the principles will indeed face prosecutions after a certain interval has passed. And Bart is probably well aware of this. But to him and his fellow-travellers, national survival trumped the law.
And there were a very large number of judges, politicians and powerful figures who agreed with them....at least initially.

The worst of the excesses have probably (although we can't truly be sure)stopped and we could say, if we were terribly naive, that the torturer community is a spent force.

Unfortunately it isn't and won't be until corrective actions are taken to definitively bring it to justice.

But Bart will never change his stance for his initial equation remains unchanged.
 

"Bart" DePalma:

As irregular combatants who fight without uniforms and do not follow the GC or any other law of war, al Qaeda and the Taliban do not qualify as privileged POWs under GC III (4).

Fine if you want to assume your conclusions. Bad habit of yours,
"Bart".

But while it's arguable that al Qaeda falls under GC3, Article 4 (which, FWIW, only gets any al Qaeda prisoners such things as regular pay while in custody), it's really a stretch to say that the Taliban, as the ruling gummint of Afghanistan, were not "regular forces". They met the requirements of GC4 (which are inclusive WRT who is classified a POW, not exclusive) in more that one way. People didn't have too much difficulty in determining who was Taliban, they were under regular command, and they were "following the laws and customs of war" pretty reasonably (if not to our tastes). The Taliban were not attacking us on 9/11. They, for better or worse, were a problem local to Afghanistan (and while we're at it, were certainly more of an army than the "freedom fighters" that we armed and supported when they were fighting the Russians and the Communist gummint of Afghanistan.

The "crime" of the Taliban, if there is to be one, was to provide sanctuary for al Qaeda there (and blow up historical statues at Bamiyan; that's a crime against humanity). But that "crime" is not one which is sufficient to deny POW status to the members of the country's "armed forces", at least not under GC3.

Cheers,
 

"Heads I win, tails you lose" (or, in the parlance of the military, "Catch-22"):

As irregular combatants who fight without uniforms and do not follow the GC or any other law of war, al Qaeda and the Taliban do not qualify as privileged POWs under GC III (4). These are the reciprocal rights to which I was referring.

So, according to "Bart", not CG3.

Also, if the term civilian is given its normal meaning, al Qeada and the Taliban military combatants do not fall under GC IV. These are not muggers, but rather organized militaries.

So, according to "Bart", not GC4. But CG4 doesn't say any such thing, saying that "organized militaries" are excluded from CG4 protection. In fact, his referring to them as "organized militaries" would seem to make them POWs under the auspices of CG3....

Cheers,
 

"Bart" DePalma:

The Hamdan majority rewrote GC III (3) to extend those minimal protections to al Qaeda and the Taliban, but those protections read very much as does the Yoo definition of statutory torture - "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture."

The Congress through the MCA defined "cruel treatment and torture" essentially the same way as they did in the Torture statute, ...


Note the use of the words "in particular", not "limited to" or "specifically".

"Violence to life and limb" is at the very least battery.

Slapping someone is battery. Tying them down, wrapping them in cellophane, and pouring water over them is at the very least battery (albeit a very sophisticated form, honed to a fine art over the centuries).

"Bart", why don't you go back to your real 'justification', and just keep insisting that we need to assault and batter people because we 'need' the information, and our 'needs' come first, before any law?

Cheers,
 

Ignerrence (n): "al Qaeda style terrorism was not common at this time"

Terrorism is pretty much as old as 'civilisation' itself. You'd think that a person that purports to be some kind of buff of military history would know things like that....

Cheers,
 

More sophistry:

The ability to make treaties implies the ability to withdraw from them otherwise all treaties would be eternal.

My point about wars. "Bart" ignores it.

This provision requires the President to get Senate approval to implement treaties. There is no provision which requires the President to get Senate permission to withdraw from a treaty....

All laws are aeternal as well, unless, say, repealed by legislation or explicitly sunsetted. Obviously, no law can be aeternal (or we'd have an ever-expanding U.S. Code that would eventually become a black hole).

But, wonder of wonders, there is a cure for this conundrum. Despite the fact that the Constitution says nothing about power to "repeal" laws, some Very Smart Persons have figured out that this is implicit in the powers of Congress: They may pass legislation that repeals previous legislation, removing such from the books (as you can see just by perusing enough U.S. Code). And they do this by the very same process that they used to pass it in the first place: Oassage by both houses of the repeal act, and signature by the preznit (or Congressional override of a veto). Amasing. Problem solved.

Why "Bart" thinks that treaties should be different, despite the same textual predicate in the Constitution as with legislature, and despite no Constitutional language to suport his manufactured "plenary preznitential power" to abrogate treaties (or just "ignore them" for some period) is beyond me. Outside of the fact that "Bart" thinks the preznit can do anything he damn well pleases, COnstitution or no Constitution, of course....

... Article II has similar provisions concerning going to war ...

Huh? Where?

... and nominating officers. When taken in para materia, these provisions suggest that the Constitution requires the President to seek Senate permission to initiate acts, but not to end them.

It is true that the preznit may be able to fire (some of) those officers (but certainly not judges). But removing someone is not nearly as significant as who you put in their place. And for that, the preznit must still seek Congressional approval (or proceed with a vacant office).

And as stated above, legislation requires Congressional action (and preznitential approval) to reverse. And it can be argued that, treaties being the "law of the land", treaties should be considered more like legislation than an executive appointment.

Cheers,
 

It is difficult not to read Bart De Palma’s posts and not feel obliged to respond. One appreciates that in general his stance purports to be that of a lawyer of a potential US defendant to a US criminal trial, although one does wonder whether getting up the nose of the trial judge with unarguable propositions of law is part of his strategy.

But he also comes up with some strange assertions on the side of which the latest (on this thread) is the following:-

“The problem with supplementing the GCs is that the EU nations do not recognize that they are at war and do not even know what to do with captured terrorists.”

I presume Mr De Palma is speaking of the so-called “war on terror”. Mr De Palma ought to have enough law to know that there is no such beast. A “war” is something which takes place between two sovereign states. To speak of a “war” on terror is no more than political hyperbole. One cannot have a “war on terror” any more than a “war” on drugs, or a “war” on poverty.

As for the assertion that the Europeans do not know what to do with “captured terrorists”, I suggest he reads the trial records of those who have been put on trial and convicted of terrorism offences in (among other jurisdictions) France, Germany, Spain and the UK. I think many more have been successfully prosecuted before our courts than before US Courts.

So instead of bleating about the European concern that those who seem to be responsible for encouraging or legitimising the use of torture may escape their just deserts unless they are foolish enough to travel overseas, Mr De Palma might care to reflect on the situation which results from the mistreatment of detainees by US persons which is that a court of a country signatory to the Torture Convention may be unable to use evidence so obtained.

Accordingly, because of US disregard of generally accepted standards for the treatment of persons in custody, a person who might well be guilty has to be set free because the evidence from an accomplice held in US custody is inadmissible.

Due process is also about convicting and punishing the guilty, Mr De Palma, and that principle applies in equal measure both to torturers and aiders and abettors of torture and to terrorists and aiders and abettors of terrorism.
 

Mourad:

As for the assertion that the Europeans do not know what to do with “captured terrorists”, I suggest he reads the trial records of those who have been put on trial and convicted of terrorism offences in (among other jurisdictions) France, Germany, Spain and the UK. I think many more have been successfully prosecuted before our courts than before US Courts.

You're just a Devonshire clotted-cream-eating surrender monkey. Don't you know that it is just the Yoo Ess of Effin' Aye that is Serious™ About Terra?

"Bart" doesn't hurl any actual truthful facts at you, so you should be polite (and fair) and not do that to him.

Cheers,
 

I doubt Bart is a "sissyboy

Michael, I appreciate your comments. I hope you are correct about some of the perps eventually facing justice.

I think it is a fair question to ask (on the assumption that he would be loath to) by what pretext Bart would justify a reluctance to watch a film like 'Taxi to the Dark Side.' Because I think it boils down to courage or a lack of it.

Here's a thought experiment for you: Ask yourself, has Donald Rumsfeld watched this film, or perhaps similarly themed, rigorous and professional productions like 'No End In Sight?' Now, assuming he has not, imagine the excuses he would give as to why not. Now ask yourself, would you accept his reasons for not viewing at face value or would you consider it more likely that he lacks the stomach for sitting through a compelling and unsympathetic critique?

They don't call them chickenhawks for nothing.
 

Bart, I asked you a very straight-forward question. I must admit, even I was surprised at how little effort you made to answer.

You wrote: "GC IV (5) applies to civilian spies and saboteurs (destruction of property), not enemy combatants bent on mass murder of combatants and civilians.

I asked:

What proof do you have they were bent on murder of combatants and civilians? Or even that they were enemy combatants?

You then said, "Have you watched the news for the past 15 years" and proceeded to describe the objectives of Al Qaeda.

I didn't ask you to describe Al Qaeda. I asked how you know that the people we captured are enemy combatants?

How do you know that they are not innocent people that were swept up by competing warlords for bounties? Because I watch and read the news and that's what I hear.

How is it that someone who over and over and over asks people for "proof" of Yoo's guilt gives an answer like "have you watched the news?"

That's your answer?

You post here day after day after day and that's your answer?

It was on the news.

I haven't seen anyone on the news say they know if these people are enemy combatants. I've heard some people give their opinion that they are. Just like some people on the news think Yoo is guilty of war crimes.

If you can't apply the same standards of logic to asking questions as you can to answer them, then... I feel sorry for you. Really. I really, truly feel very sorry for you.

Sometimes one debates someone and suddenly looks at them and says "okay" and walks away, because you realize there's something wrong with the person. And there's no point to debating, even if you wanted to.

You believe that people you personally think are guilty are entitled to different standards than the people you personally think are innocent. This has been hashed over with you repeatedly, you don't get it, you don't understand the legal system and I don't give a damn that you defend minor crimes and DUIs. I have friends who are lawyers who as dumb as dirt and friends who are lawyers that are sharp as a tack. Same as every other profession.

I always felt you should be free to make your arguments here, but you don't argue, you insult us. And yourself, which unfortunately you don't comprehend.

I'm going to try and recommend strongly to people to stop engaging you here.
 

Hi Mattski,

I suppose what is more fearful than someone unwilling to watch something that shows the real world outcome of his philosophical/legal stance, is the person who can watch, and then say, "And your point is...?" I am not trained in psychology but I suspect Addington and Bart and Rumsfeld and perhaps even Yoo, might be of that latter type.

I would like to think that people have consciences to be shocked, but the sad truth is that different things shock different people's sensibilities. For Bart, a torture might be perfectly watchable, but a mass release of prisoners from Abu Ghraib might disturb him deeply.

In the end I can't say he, Bart, lacks courage. I can safely say that he is comfortable with humans inflicting agonies on other helpless humans (perhaps for the sake of a greater good achieved or a greater harm prevented.)

I am not of that camp. I can bearly endure seeing an ant stepped on, and routinely escort spiders out of the house rather than resort to bug spray!

But like my IHR/IHL beliefs, this sentimentality and reverence for life itself is probably a minority position.

Frankfurter worried about the brutalization of the public temper and what he feared (and tried to prevent occurring) has indeed come about.

I would like to think Bart could not watch a torture, much less authorize one, but I know that for some, it is comprehensible and doable. And that is way of our times, sad to say.
 

The act of inflicting agony on a helpless being unable to defend itself, be it a dog, or a human, is the stuff of nightmares.

It is always, always a speculative act even when so called, "high value" prisoners are the subjects. Interrogators are like prospectors in a sense, panning for gold, except they use pain, degradation, and the breaking down of the spirit as their tools in searching for truth. But they are never certain at the outset that the subject has the information they seek.

It is punishment without judicial conviction of guilt. It is casting a net of brutality out over a helpless captive population purely on speculation.

The documentaries don't go far enough in fact. Men were hung in "palestine cross" positions and died suspended. Men were beaten to death. Men's hearts gave out while being battered.

And yet Yoo and his supporters say it was okay, and that more than that, our very Constitution permitted it!

Not at all. The constitutional ratifying debates show questions being asked by delegates concerned that the old world practices of torture might be allowed by the new document. I recall it was George Mason who assured the questioners that the self-incrimination clause and the cruel and unusual clause would prevent that.

But Yoo knew better I suppose than the framers, what the framers intended....

What a sorry story.
 

Trying to pick up on some of the points ventilated in various posts, it may be worth revisiting the law of treaties.

A treaty may be defined as a contract between two (bilateral) or more (multilateral) nations. For most common law countries, treaty making is the sole prerogative of the executive (historically, the Crown). In the USA, treaty ratification is subject to the “advise and consent” power of the Senate. Most treaties contain provisions permitting a party to withdraw from the treaty by following a defined procedure.

Apart from self-executing provisions (rare), while courts will seek to interpret domestic legislation consistently with a treaty obligation, where the domestic legislation is incompatible with the treaty provision, then the domestic legislation prevails. That it is why it is generally necessary to enact domestic legislation giving effect to a treaty.

But once enacted, the treaty provisions so enacted are domestic law like any other. Unless the enacting domestic legislation contains a clause empowering the executive to suspend the domestic provisions by some form of subordinate instrument (e.g. by Order in Council (UK) or by Executive Order (USA), the domestic law remains in full force and effect until it is repealed by statute.

As I recall, the US Founding Fathers were very keen not to vest in the office of president the powers generally to historic prerogative powers to suspend the operation of domestic laws or to grant particular dispensations to individuals (powers claimed by the Stuart Kings which had led to the Glorious Revolution of 1688 and the UK Bill of Rights and therefore no longer claimed by British monarchs at the time of US independence).

So although the President was granted the Crown’s ex post facto power of pardon, the anticipatory prerogative powers of dispensing and suspending were not vested in the President who was expressly charged with securing due execution of laws enacted by the Congress.

I would therefore suggest to Bart, that an anticipatory “get out of jail free card” may only be found in the decks forming part of the Monopoly™ board game, and the President has no power to suspend a law or to grant dispensation from its provisions unless that power is written on the face of the statute.

Anyone disagree thus far ?
 

I would like to think Bart could not watch a torture, much less authorize one,

# posted by Michael : 10:34 PM


I have no doubt that Baghdad Bart would have been an excellent Nazi concentration camp guard.
 

Bartbuster,

We just can't be sure. There's a big gulf oftentimes between words and deeds, both in the elevated and in the ignoble. Bart speaks one way, but who can say what he would do were the "chips" down. He reminds me of a less placatory version of J Bellinger.

I was thinking about the mistaken claim that the Bill of Rights doesn't prohibit torture, and found this from the ratifying conventions:

In the 1788 Virginia ratifying convention, a delegate rose to express his fear that the proposed constitution did nothing to protect the people from a government employing torture. The very famous George Mason rose and replied to this fear:

“Mr. GEORGE MASON replied that the worthy gentleman was mistaken in his assertion that the bill of rights did not prohibit torture; for that one clause expressly provided that no man can give evidence against himself; and that the worthy gentleman must know that, in those countries where torture is used, evidence was extorted from the criminal himself. Another clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition.”

 

Michael - that reference is certainly helpful.

George Mason was one of the most influential speakers at the Constitutional Convention, but he refused to sign the Constitution as originally signed because it lacked the provisions, eventually added by way of the Bill of Rights, itself modelled on the 1776 Virginia Declaration of Rights drafted by Mason. Mason, however, had no formal education.

Mason’s legal knowledge came from his uncle, John Mercer, an Irishman who emigrated to Virginia in 1720. A barrister and legal author (two of his works codifying Virginia Statutes are in the Jefferson Papers in the Library of Congress), Mercer was both the King’s Prosecutor for Virginia and George Washington’s lawyer. He had one on the finest libraries in the colonies, said to contained more than 1,500 volumes and he was George Mason’s uncle by marriage and tutor.

It is inconceivable that Mercer and Mason did not know their Blackstone and in Book 1 Chapter 1 – of The Absolute Rights of Individuals – Blackstone discusses the right to personal security of life and limb and observes that the law prohibits torture.

The use of torture was considered abhorrent to the law, before and upon US independence, and there would accordingly have to be clear statutory authority to abridge the inalienable common law right to personal security of life and limb.

The common law of England was certainly enacted in Virginia:-

"That the common law of England, and all statutes, or acts of parliament made in aid of the common law, prior to the fourth year, of James the first, which are of a general nature not local to that kingdom, together with the several acts of the colony then in force, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be considered as in full force, until the same shall be altered by the legislative power of the commonwealth." Ordinances of Convention May, 1776.

Thus the idea of what constituted torture and that it was wrong was well-known to the founding fathers.

Given the common law position, I find it very hard to understand Bart De Palma’s argument that the US torture statute is bad because there is no sufficient definition of torture. Looking at our old (English) Offences Against the Person Act 1861, it is replete with offences which are expressed in general terms: e.g

“Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, ... with intent, ... to do some ... grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable ... to be kept in penal servitude for life.”

“Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve, or annoy such person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable ... to be kept in penal servitude”

As a matter of English law it would be impossible to argue that the statute should set out which woundings are to be considered “grievous” and those which are lesser, or to enumerate in extenso all the “noxious things” which are to be equated with poisons. A jury is to use its common sense guided by directions on the law from the Court.

Is Bart’s position tenable as a matter of US law ?
 

Michael, do you have a reference for that quote? Much as I like it, it strikes me as odd because there was no Bill of Rights at the time of the VA ratification convention. Thus, Mason couldn't have referred to it in that context.
 

mourad said...

A “war” is something which takes place between two sovereign states.

Neither the GCs or history is so limited.

Many if not most of our wars have been waged against non state groups in our country or others.

The GCs recognize and provide protections for non state militaries so long as they comply with the laws of war.
 

mourad said...

Apart from self-executing provisions (rare), while courts will seek to interpret domestic legislation consistently with a treaty obligation, where the domestic legislation is incompatible with the treaty provision, then the domestic legislation prevails. That it is why it is generally necessary to enact domestic legislation giving effect to a treaty.

But once enacted, the treaty provisions so enacted are domestic law like any other. Unless the enacting domestic legislation contains a clause empowering the executive to suspend the domestic provisions by some form of subordinate instrument (e.g. by Order in Council (UK) or by Executive Order (USA), the domestic law remains in full force and effect until it is repealed by statute...

I would therefore suggest to Bart, that an anticipatory “get out of jail free card” may only be found in the decks forming part of the Monopoly™ board game, and the President has no power to suspend a law or to grant dispensation from its provisions unless that power is written on the face of the statute.

Anyone disagree thus far ?


What I argued is that President's may withdraw from treaties without approval by the Senate.

I never argued that the President could withdraw from a federal statute implementing treaty requirements.
 

michael said...

I was thinking about the mistaken claim that the Bill of Rights doesn't prohibit torture, and found this from the ratifying conventions:

In the 1788 Virginia ratifying convention, a delegate rose to express his fear that the proposed constitution did nothing to protect the people from a government employing torture. The very famous George Mason rose and replied to this fear:

“Mr. GEORGE MASON replied that the worthy gentleman was mistaken in his assertion that the bill of rights did not prohibit torture; for that one clause expressly provided that no man can give evidence against himself; and that the worthy gentleman must know that, in those countries where torture is used, evidence was extorted from the criminal himself. Another clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition.”


The Bill of Rights do not extend to enemy combatants in a time of war and most certainly not to foreign enemy combatants captured and held overseas who are under no rational understanding of the term can be considered part of the People of the United States.

On this point, Yoo was on solid ground.
 

Mark,

See:

Debate in Virginia Ratifying Convention
16 June 1788, Elliot 3:447-48, 451-52.

Which is from the online edition of...

Philip B. Kurland and Ralph Lerner (eds.), THE FOUNDERS' CONSTITUTION, University of Chicago Press (1986).
 

Bart,

BS -- the calling an accused criminal an "enemy combatant" doesn't nullify the law, and the law doesn't permit the President to apply attainder by fiat. Yoo's arguments on such matters are circular and fraudulent.
 

Mark,

It was from the Speeches of the ratifying convention of Virginia 1788, June 16 as transcribed by Elliot.

The interchange is between Mr Nicholas and Mr. Mason and is at the very end of the day's proceedings.

www.constitution.org/rc/rat_va_14.htm

Mr Nicholas's concern: "If we had no security against torture but our declaration of rights, we might be tortured to-morrow; for it has been repeatedly infringed and disregarded. A bill of rights is only an acknowledgment of the preëxisting claim to rights in the people. They belong to us as much as if they had been inserted in the Constitution. But it is said that, if it be doubtful, the possibility of dispute ought to be precluded. Admitting it was proper for the Convention to have inserted a bill of rights, it is not proper here to propose it as the condition of our accession to the Union. Would you reject this government for its omission, dissolve the Union, and bring miseries on yourselves and posterity? I hope the gentleman does not oppose it on this ground solely. Is there another reason? He said that it is not only the general wish of this state, but all the states, to have a bill of rights. If it be so, where is the difficulty of having this done by way of subsequent amendment? We shall find the other states willing to accord with their own favorite wish. The gentleman last up says that the power of legislation includes every thing. A general power of legislation does. But this is a special power of legislation. Therefore, it does not contain that plenitude of power which he imagines. They cannot legislate in any case but those particularly enumerated. No gentleman, who is a friend to the government, ought to withhold his assent from it for this reason."
 

Bart, you hold yourself out as a lawyer so you ought to know the difference between a term of art and vulgar parlance.

The "Indian Wars" is not a use of the term "war" as a term of art.

“War” properly speaking for legal purposes must be between one or more sovereign states – See Vattel.

Wars ought properly to be declared, but the last example of that happening that I can think of was the 1939-45 World War in which the USA declared war against Japan after Pearl Harbour (The USA came into that one late, as it had for the 1914-18 War).

Declarations of war fell out of favour after the signing of the UN Charter which outlawed aggressive wars. No state likes openly to acknowledge that what it is doing is unlawful in international law.

In popular language the expression “war is often misused. What is referred to as “the Korean War” was in fact a UN authorised Chapter 7 military intervention and not legally a war at all.

Military lawyers speak of “armed hostilities” or “warlike operations” for operations which do not qualify as “wars”.

If done under UN Chapter 7 or with the consent of the lawful government of the state where the operations take place (eg to defend an ally acting in self-defence) or to assist a civil power with insurrection, such operations may be lawful.

When not authorised, such acts are simply unlawful as a matter of international law (eg the UK/French invasion of Egypt over Suez which Eisenhower rightly castigated).

There is a developing doctrine of intervention for humanitarian purposes (eg Kosovo).

The last true war in which the USA and the UK were engaged was the invasion of Iraq. The invasion was unlawful as a matter of international law and probably for that reason neither government had the balls to call a spade a spade and declare war. Although undeclared and unlawful, that was a genuine “war”.

But in legal terms that war is over. There is now a sovereign government of Iraq and US and UK troops are presently there with the consent of that government and the approval of the UN Security Council.

My dear Bart, when officials of the CIA kidnaps a UK citizen in a third country in Africa, sedate him, fly him to Bagram air base, torture him and then detain him unlawfully at Guantanamo Bay, those are criminal acts.

A completely bogus “war on terror” which is not legally a war does not make those acts legal as a matter of international law or of the law of civilized sovereign states.

I hope that one day, the perpetrators will answer for these acts before a court of competent jurisdiction.

I recall one of HM Judges in England sentencing a then member of the USAF for a serious offence. He said: “The jury having found you guilty on the indictment, I must now pass sentence. I view with utter disgust the necessity of imposing your maintenance in prison on the British taxpayer. However, that is one of the many crosses the British taxpayer will have to bear. You will go to prison for x years."

In much the same way, I would be disgusted if the US authorities did not investigate and prosecute the perpetrators of such acts. But if not, then justice demands that some other jurisdiction takes up the burden if and when the perpetrators can be brought before it.
 

Michael and Charles, thanks for the link. I see that Mason was referring to the VA Declaration of Rights (which he personally wrote). That makes sense.
 

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