Balkinization  

Thursday, April 03, 2008

There's A War Crimes Tribunal in Your Future

JB

Phillippe Sands reminds us that even if the Military Commissions Act of 2006 may have insulated American officials from domestic criminal liability under the War Crimes Act, they may someday face liability based on precedents created in part by American lawyers and jurists following World War II. Indeed, the passage of the Military Commissions Act, far from insulating these officials from liability from war crimes, may have made it easier to prosecute them:

Those responsible for the interrogation of Detainee 063 face a real risk of investigation if they set foot outside the United States. Article 4 of the torture convention criminalizes “complicity” or “participation” in torture, and the same principle governs violations of Common Article 3.

It would be wrong to consider the prospect of legal jeopardy unlikely. I remember sitting in the House of Lords during the landmark Pinochet case, back in 1999—in which a prosecutor was seeking the extradition to Spain of the former Chilean head of state for torture and other international crimes—and being told by one of his key advisers that they had never expected the torture convention to lead to the former president of Chile’s loss of legal immunity. In my efforts to get to the heart of this story, and its possible consequences, I visited a judge and a prosecutor in a major European city, and guided them through all the materials pertaining to the Guantánamo case. The judge and prosecutor were particularly struck by the immunity from prosecution provided by the Military Commissions Act. “That is very stupid,” said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country—one of the trip wires enabling foreign courts to intervene. For some of those involved in the Guantánamo decisions, prudence may well dictate a more cautious approach to international travel. And for some the future may hold a tap on the shoulder.

“It’s a matter of time,” the judge observed. “These things take time.” As I gathered my papers, he looked up and said, “And then something unexpected happens, when one of these lawyers travels to the wrong place.”


Comments:

L.S.,

I've quoted some excerpts from the Yugoslavia Tribunal, the Pinochet case, and the US 9th circuit's ruling in Siderman, all repeating that the ban on torture is ius cogens. I didn't quote the specific discussion of universal jurisdiction in the Pinochet case, but anyone who's interested can see for themselves.
 

I do believe Philippe Sands has it wrong - the MCA does not confer the kind of domestic immunity he is positing in his message. The more difficult problem is the unwillingness and inability of Americans to prosecute high-level civilians and military generals. Given the unwillingness of the Germans to open such a case, it is hard to believe that somewhere down the road some tribunal somewhere in the world is going to take this on. We, unfortunately, have to do this ourselves here in the United States. Or maybe fortunately.
Best,
Ben
 

The last time I tried to thread a path through the thickets of the MCA, it seemed to me that there was a loophole -- that violations under the War Crimes Act weren't covered by the immunity provisions.

Anyone got the kind of encyclopedic recall required to check this?
 

The United States does not recognize so called "universal jurisdiction" of courts like the one in Spain.

While some may fantasize about EU countries arresting our CIA agents and trying them for "war crimes," such an arrest would in reality be an act of war against the United States.

It is one thing to try this against a stateless ex dictator and quite another thing altogether to try it against an agent of the United States.
 

L.S.,

such an arrest would in reality be an act of war against the United States.

I guess you're thinking of something like this:

"SEC. 2008. AUTHORITY TO FREE MEMBERS OF THE ARMED FORCES OF THE UNITED STATES AND CERTAIN OTHER PERSONS DETAINED OR IMPRISONED BY OR ON BEHALF OF THE INTERNATIONAL CRIMINAL COURT.


AUTHORITY- The President is authorized to use all means necessary and appropriate to bring about the release of any person described in subsection (b) who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.

PERSONS AUTHORIZED TO BE FREED- The authority of subsection (a) shall extend to the following persons:

- Covered United States persons.
- Covered allied persons.
- Individuals detained or imprisoned for official actions taken while the individual was a covered United States person or a covered allied person, and in the case of a covered allied person, upon the request of such government.

AUTHORIZATION OF LEGAL ASSISTANCE- When any person described in subsection (b) is arrested, detained, investigated, prosecuted, or imprisoned by, on behalf of, or at the request of the International Criminal Court, the President is authorized to direct any agency of the United States Government to provide--

legal representation and other legal assistance to that person (including, in the case of a person entitled to assistance under section 1037 of title 10, United States Code, representation and other assistance in the manner provided in that section);

exculpatory evidence on behalf of that person; and

defense of the interests of the United States through appearance before the International Criminal Court pursuant to Article 18 or 19 of the Rome Statute, or before the courts or tribunals of any country.

BRIBES AND OTHER INDUCEMENTS NOT AUTHORIZED- This section does not authorize the payment of bribes or the provision of other such incentives to induce the release of a person described in subsection (b)."

...that should be fun... I guess we'd better hurry up and get our army on high alert.
 

martinned:

Actually, I was merely observing that another nation arresting and trying an agent of the United States for "war crimes" which did not occur in that nation would be an act of war against the United States. I had not reached whether and by what authority a President could wage war to free our citizen.

However, it is interesting to note the authority Congress is granting the President under Section 2008:

AUTHORITY- The President is authorized to use all means necessary and appropriate to bring about the release of any person described in subsection (b) who is being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.

That can be arguably interpreted as a standing AUMF.

Does Congress read what they enact?
 

Stateless dictator.
You mean a senator for life in Chile who had been granted immunity from prosecution.

Also, I am not quite sure what a statute threatening all sorts of dire consequences in respect of the ICC has to do with domestic prosecutions. i doubt whether a torture prosecution can be mounted in the UK as the consent of the AG is required. We have seen, however, that Spanish investigating magistrates appear to cling the maxim fiat justicia.
 

Anderson,

The way I read the immunity provision of the MCA, it applies specifically to prosecutions under the War Crimes Act for violating Common Article 3 during the period in question.

Section 8 (b) of the MCA reads:

(b) Protection of Personnel- Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to any criminal prosecution that--

(1) relates to the detention and interrogation of aliens described in such section;

(2) is grounded in section 2441(c)(3) of title 18, United States Code; and

(3) relates to actions occurring between September 11, 2001, and December 30, 2005.


Section 2441(c)(3) of title 18 describes one definition of "war crime" as follows:

[any conduct] which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; ...
 

Thanks, JaO -- now I remember what the loophole seemed to be.

Section 2441(c) lists 4 definitions of "war crime," of which you correctly cited (c)(3), violations of CA3.

However, subsection (c)(1) reads:

defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party

That would include CA4, which lists torture as a "grave breach."

And, answering my own question from another thread, even though the Torture Act applies only to acts outside U.S. jurisdiction, the WCA expressly applies inside or outside the U.S.

It's a mystery to me why anyone drafted the MCA to immunize against (c)(3) and not against the entire WCA.
 

L.S.,

@Bart: Yes, I interpret this The Hague invasion act also as a standing authorisation.

What puzzles me though is this idea of "act of war". Let's consider some authority. (This field of law is called ius ad bellum, as opposed to ius in bello, which is the kind of thing the Yoo memorandum deals with.)

First of all, the UN Charter.
- Art. 2(4): All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
- Exceptions: Self-defence (art. 51) and Security Council authorisation (art. 39)

Essentially, the UN Charter is a closed system. One can discuss the scope of the right of self-defence, but it would be quite a stretch to consider the arrest of one individual a "threat or use of force against the territorial integrity or political independence" of the United States.

Still, one could hold that a state is entitled, in certain circumstances, to use force in defense of its nationals. There is certainly precedent for such a move (Entebbe, Iran hostage crisis, Grenada). Even though the weight of academic opinion is that such operations are in any case unlawful, state practice would suggest a narrow exception in those cases where there is no alternative, and where the "threat" against the state's nationals is unlawful.

The Shaw (2003) handbook on international law, for example, endorses the position taken by the UK government in 1993. The UK foreign minister said:

"Force may be used in self-defence against threats to one's nationals if: (a)there is good evidence that the target attacked would otherwise continue to be used by the other state in support of terrorist attacks against one's
nationals; (b) there is, effectively, no other way to forestall imminent further
attacks on one's nationals; (c) the force employed is proportionate to the threat."

The author concludes:
"On balance, and considering the opposing principles of saving the threatened lives of nationals and the preservation of the territorial integrity of states, it would seem preferable to accept the validity of the rule in carefully restricted situations consistent with the conditions laid down in the Caroline case." (p. 1034)

Clearly none of this anticipates the possibility that a state might want to use force in order to protect a citizen against a lawful act by a foreign government. Even in the pre-UN period such a move would have been highly dubious, and in this day and age it is completely unthinkable.

So where's the act of war?
 

Btw, the WCA is evidently taken very seriously by our gov't, inasmuch as it includes conduct forbidden by Articles 23, 25, 27, and 28 of the Annex to the 1907 Hague Convention:

Art. 25.
The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.


How many USAF personnel in Iraq are war criminals now, under that definition?
 

I am way out of my league here, but I have a question which one of you may be kind enough to answer.

Article VI of the US Constitution provides that “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.”

The USA is signatory to the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”.

So why wouldn’t the torturers and those who authorize torture be subject to prosecution in the USA, pursuant to the unambiguous language of Article VI, for their acts; regardless of statutory law and how it might be interpreted by whatever rhetorical jujitsu on wishes to employ?
 

YKM, the courts have held that treaties give way to statutes -- if a later-enacted statute contradicts a treaty, the statute controls.

I don't pretend to understand this logic, but there it is.
 

Anderson,

Thanks for your response.

It seems very strange to me that a statute may trump the Constitution, the "supreme law of the land".

So congress could, for instance, enact a statute legalizing slavery?

Are you able to provide a citation of such court decisions?
 

Bart, we've had a Canadian citizen, who was 15 when we detained him, in Guantanamo for 5 years. He's faced no charges, no trial. Canada is very unhappy but we're not at war.

In 20 years, if another country nabs a (probably former) CIA agent and puts him on trial, we won't be going to war. I think you've seen too many movies.

It would become, as they say, a matter for the diplomats. The only way it would become an act of "war" is if we needed some pretext to attack a country. And since any such trial would likely be in one of our allies, there's not gonna be a war.
 

martinned said...

@Bart:

What puzzles me though is this idea of "act of war". Let's consider some authority. (This field of law is called ius ad bellum, as opposed to ius in bello, which is the kind of thing the Yoo memorandum deals with.)

First of all, the UN Charter.
- Art. 2(4): All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
- Exceptions: Self-defence (art. 51) and Security Council authorisation (art. 39)

Essentially, the UN Charter is a closed system. One can discuss the scope of the right of self-defence, but it would be quite a stretch to consider the arrest of one individual a "threat or use of force against the territorial integrity or political independence" of the United States.

Still, one could hold that a state is entitled, in certain circumstances, to use force in defense of its nationals. There is certainly precedent for such a move (Entebbe, Iran hostage crisis, Grenada). Even though the weight of academic opinion is that such operations are in any case unlawful, state practice would suggest a narrow exception in those cases where there is no alternative, and where the "threat" against the state's nationals is unlawful.


I think you just answered your own question. I would also add the Barbary Pirates capture of our sailor and British impressment of our sailors which was the primary grounds for the Barbary Pirate War and the War of 1812 to your list of examples.

As for the argument that the use of military force would be disproportionate for the unalwful holding of just one of our citizens, Teddy Roosevelt did not believe so when he dispatched Marines to rescue Mrs. Eden Petticaris from a Sultan of the Berbers.

Clearly none of this anticipates the possibility that a state might want to use force in order to protect a citizen against a lawful act by a foreign government.

As I noted in my first post, the United States has never recognized universal jurisdiction and would consider a detention of our citizens based upon such jurisdiction to be unlawful.
 

It seems very strange to me that a statute may trump the Constitution, the "supreme law of the land".

Well, not exactly. Article VI as you've quoted lists the Constitution, statutes, and treaties as the supreme law of the land, in that order. Statutes obviously are not equal to the Constitution, so they're not all equally "supreme law." Thus, arguably, treaties are inferior to statutes as statutes are to the Constitution.

I don't have a cite -- Wikipedia's article on the Treaty Clause notes that statutes can modify or abrogate treaties, but cites only to a 400-page CRS article, which I would invite you to consult. (And then to edit the Wiki article to include a case cite, if you find onw.)
 

sethidea said...

Bart, we've had a Canadian citizen, who was 15 when we detained him, in Guantanamo for 5 years. He's faced no charges, no trial. Canada is very unhappy but we're not at war.

It is perfectly legal for the United States to hold enemy combatants for the duration of that conflict.

We are instead discussing a situation where a foreign court unlawfully arrests one of our citizens who is not at war with that country nor has committed a crime in that country.
 

Teddy Roosevelt did not believe so when he dispatched Marines to rescue Mrs. Eden Petticaris from a Sultan of the Berbers.

Right. I'm sure we would regard the Brits, the Germans, or the French like we did the Berbers.

Time to dust off our war plan for the invasion of Belgium.
 

Actually, I was merely observing that another nation arresting and trying an agent of the United States for "war crimes" which did not occur in that nation would be an act of war against the United States.

Following your logic:

Germany committed an act of war against Rwanda in 2007 when it arrested Augustin Ngirabatware.

NATO committed such an act of war against Serbia when it arrested Radomir Kovac.

Argentina committed two acts of war against Serbia when it arrested Milan Lukic and Nebojsa Minic.

If we keep going down this path, we can also say Bolivia committed an act of war against Germany when it arrested Klaus Barbie.

The idea that war crimes can only be recognized and tried by the country in which the action took place (and to do otherwise is to commit an act of war) is not only illogical, but flies in the face of fact.

Put another way: If someone committed war crimes at Guantanamo Bay, who should be able to arrest and try the accused? Cuba and no one else?
 

Anderson,

In looking into the matter a bit I see that in Hamden v Rumsfeld the Supreme Court held, in part, that Hamden is due the protections of "Common Article 3" of the Geneva Conventions.

And in United States v. Rauscher, 1886, the court noted "(1) That a treaty to which the United States is a party is a law of the land, of which all courts, state and national, are to take judicial notice and by the provisions of which they are to be governed, so far as they are capable of judicial enforcement."

I really don't think Article VI establishes the hierarchy as you suggest.
 

anderson said...

BD: Teddy Roosevelt did not believe so when he dispatched Marines to rescue Mrs. Eden Petticaris from a Sultan of the Berbers.

Right. I'm sure we would regard the Brits, the Germans, or the French like we did the Berbers.


The Euros know better than to engage in this kind of nonsense. A typical Euro response to this kind of "outrage" from their left is to shuffle it off to a committee or to hold a show trial without defendants like the Italians did.
 

It's also lucky for the United Kingdom that Chile didn't declare war when it put Pinochet on trial.
 

The Euros know better than to engage in this kind of nonsense.

PMS Chicago has already refuted *your* kind of nonsense.

We are, after all, talking about the same Bart who claimed not to've seen any substantive criticisms of the new Yoo memo on any "blawgs." By which I guess you meant, Insty and PowerLine.
 

Here you go, YKM - the "Head Money Cases."

In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal.
 

L.S.,

@Bart: Clearly I should have been more precise still. I can see no way that it can be lawful to send your soldiers to "rescue" a US national abroad who is being detained lawfully pursuant to the laws of the place where he is being held. (Unless they kidnapped him to bring him there, I suppose.)

Whether US law recognises universal jurisdiction for violation of ius cogens is beside the point. (Incidentally, there is at least some language in the Siderman case to suggest that such universal jurisdiction is acceptable under US law, too.)
 

pms_chicago said...

BD: Actually, I was merely observing that another nation arresting and trying an agent of the United States for "war crimes" which did not occur in that nation would be an act of war against the United States.

Following your logic:

Germany committed an act of war against Rwanda in 2007 when it arrested Augustin Ngirabatware.


On what legal basis did they do so?

NATO committed such an act of war against Serbia when it arrested Radomir Kovac.

Argentina committed two acts of war against Serbia when it arrested Milan Lukic and Nebojsa Minic.


So long as you accept the United Nations as a legitimate source of jurisdiction, then there is no problem here.

If we keep going down this path, we can also say Bolivia committed an act of war against Germany when it arrested Klaus Barbie.

Germany recognized the Nazis as war criminals. This is not an act of war against Germany.

Put another way: If someone committed war crimes at Guantanamo Bay, who should be able to arrest and try the accused? Cuba and no one else?

If the alleged perpetrator committed a war crime against a nation's citizen, that nation's courts could have jurisdiction.

If the UN established a tribunal with proper authority, that tribunal could have jurisdiction.

None of this is the case in our hypo.
 

anderson said...

We are, after all, talking about the same Bart who claimed not to've seen any substantive criticisms of the new Yoo memo on any "blawgs." By which I guess you meant, Insty and PowerLine.

As of this morning, none of the lead posts on this blawg, Volokh or any of the blawgs linked from here have offered a substantive legal rebuttal with supporting authority to the legal arguments Yoo presented in his memo. Rather, there were several lead posts assuming that the Yoo arguments were meritless and voicing various degrees of "outrage."

90% of the comments posted in response to those threads did not offer any substantive and supported legal rebuttals. Rather, there was the usual bleating about how Yoo is a war criminal who justified torture and should be disbarred. You, I and very few others actually made an attempt to address the substantive issues raised in that memo after actually reading the memo.

Of the lead posters on the blawgs, I have only read Marty promising to offer a substantive critique of the arguments made in the memo. I look forward to it.
 

martinned said...

Whether US law recognises universal jurisdiction for violation of ius cogens is beside the point. (Incidentally, there is at least some language in the Siderman case to suggest that such universal jurisdiction is acceptable under US law, too.)

I would contend that this is precisely the point.

Although I have my doubts about Obama, no President is likely allow a foreign court to criminally prosecute one of our citizens for following our interpretation of international law under the orders of our government based on a claim of universal jurisdiction simply because they interpret international law differently and oppose our foreign policy.
 

Been in the news already.

Donald Rumsfeld charged with torture during trip to France
October 25, 2007
http://agonist.org/20071026/donald_rumsfeld_charged_with_torture_during_trip_to_france

..................................................
Former US Secretary of Defense Donald Rumsfeld got an unpleasant surprise during his visit to France today when human rights groups filed a complaint with the Paris Prosecutor before the “Court of First Instance” (Tribunal de Grande Instance) charging the chief architect of President George W. Bush's "war on terror" with ordering and authorizing torture.
..................................................


Fugitive Rumsfeld Cancels German Trip
January 25, 2005
http://www.outsidethebeltway.com/archives/2005/01/fugitive_rumsfeld_cancels_german_trip/

..................................................
The New York-based Center for Constitutional Rights filed a complaint in December with the Federal German Prosecutor’s Office against Rumsfeld accusing him of war crimes and torture in connection with detainee abuses at Iraq’s Abu Ghraib prison. Rumsfeld had made it known immediately after the complaint was filed that he would not attend the Munich conference unless Germany quashed the legal action.
..................................................

In a response to a "Rah! Rah! I could win the war in Iraq!" post by Wesley Clark at TPM a few years ago (which was basically a regurgitation of a previous Washington Post op-ed) I commented that the hatred America has generated in Iraq and the Muslim world would not be easily overcome, but that a giant step in that direction would be to turn over America's war criminals to prosecution by Iraq. If Saddam Hussein got a fair trial (according to America's leaders) then why not give them the same sort of fair trial - after our military has left. If by chance they should leave a bit too much rope and heads get ripped off, them's the breaks, so to speak. Someone once said something about "freedom" being "untidy." "Stuff happens."
 

The United States does not recognize so called "universal jurisdiction" of courts like the one in Spain. While some may fantasize about EU countries arresting our CIA agents and trying them for "war crimes," such an arrest would in reality be an act of war against the United States.

Bart, you as a conservative should well understand that international law depends on power, what power you can exercise and what you can't. Indeed, this is a point that you have made in past comments threads here.

Did you notice Chile didn't go to war with Spain and Britain? Do you think that the US would go to war with an EU country and NATO member over an issue such as this?

The reality is that if there was this type of arrest, I am sure there would be an outcry in the US and a diplomatic fracas as they tried to work something out. (Though one possible result of such a fracas might be a prosecution in the US.) But act of war? Be serious.
 

So why wouldn’t the torturers and those who authorize torture be subject to prosecution in the USA, pursuant to the unambiguous language of Article VI, for their acts; regardless of statutory law and how it might be interpreted by whatever rhetorical jujitsu on wishes to employ?

Because the Convention Against Torture had to be implemented and was not self-executing, i.e., it didn't create domestic crimes and torts by its very enactment.

However, the Convention Against Torture has been implemented-- the War Crimes Act makes torture a crime in or out of the US, the Torture Act also makes torture outside the US a crime, the Immigration Act and regulations prohibit shipping a person to a place where he or she is likely to be tortured, the Torture Victim Protection Act allows suits against torturers acting under color of foreign law, and 28 USC 1350 allows suits by aliens for violations of jus cogens norms (including torture) against US or foreign torturers.

Remember all this the next time that Bart DePalma lies and claims there's no jurisprudence on the issue of what constitutes torture.
 

90% of the comments posted in response to those threads did not offer any substantive and supported legal rebuttals.

I posted a comprehensive critique as soon as I got the chance to read the memos after they came out. I have already pointed this out to you, but you continue to lie.
 

L.S.,

@You Know Me: When the US ratified the Convention, it made a reservation saying it only consented to be bound to the same standard as that of the 5th, 8th and 14th amendments. In other words, the US agreed to exactly nothing.
 

Matinned,

Thanks for the response. However your comment applies only to Article 16 of CAT.

(1) That the United States considers itself bound by the obligation under article 16 to prevent `cruel, inhuman or degrading treatment or punishment', only insofar as the term `cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.
 

dilan,

Thanks for the response. I understand that the treaty was not considered "self-executing"; but, as you pointed out, it has been executed. So it seems the point is moot.

Thus, my original question, it seems, remains unanswered.
 

dilan,


Upon further thought, perhaps I misunderstand the concept of "self-executing".

Does the fact that the USA does not recognize the CAT as "self-executing" mean that the USA position is that the CAT does not infer a right to a private action of enforcement?
 

L.S.,

@You know me: True. (I was summarising off the top of my head.)

How about this "understanding" of art. 1?

"(1) (a) That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

(b) That the United States understands that the definition of torture in article 1 is intended to apply only to acts directed against persons in the offender's custody or physical control.

(c) That with reference to article 1 of the Convention, the United States understands that `sanctions' includes judicially-imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law. Nonetheless, the United States understands that a State Party could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture.

(d) That with reference to article 1 of the Convention, the United States understands that the term `acquiescence' requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity.

(e) That with reference to article 1 of the Convention, the Unites States understands that noncompliance with applicable legal procedural standards does not per se constitute torture."

Did you see how much fun John Yoo had with that "specific intent" requirement?
 

dilan said...

BD: The United States does not recognize so called "universal jurisdiction" of courts like the one in Spain. While some may fantasize about EU countries arresting our CIA agents and trying them for "war crimes," such an arrest would in reality be an act of war against the United States.

Bart, you as a conservative should well understand that international law depends on power, what power you can exercise and what you can't. Indeed, this is a point that you have made in past comments threads here.


Agreed. War crimes are usually prosecuted by the victor in a war against a defeated foe. Consequently, the fact that an unlawful prosecution may be an act of war is generally moot by that point.

Did you notice Chile didn't go to war with Spain and Britain?

Good example of how war crimes trials are a product of hard power. The relative strength of NATO vs. Serbia is another good example.

However, we are not Chile or Serbia. Our citizens are unlikely to be molested by a rogue court because our military and economic power is preeminent.

Do you think that the US would go to war with an EU country and NATO member over an issue such as this?

As discussed above, this is an unlikely event because the Euros are unlikely to resort to this nonsense.

Just because there is an act of war does not mean that we have to go to war. There are a myriad of ways we can employ considerable pressure behind the scenes if a rogue prosecutor or court decided to test us.

BD: 90% of the comments posted in response to those threads did not offer any substantive and supported legal rebuttals.

I posted a comprehensive critique as soon as I got the chance to read the memos after they came out. I have already pointed this out to you, but you continue to lie.


Your comments combined with the couple other serious commentators here do not make up more than 10% of the posts in reaction to the memos here.

My comment on the subject was primarily directed at the various professors and attorneys blawging on the subject without having read the memo and without offering a substantive and supported legal rebuttal.
 

Dilan:

The reality is that if there was this type of arrest, I am sure there would be an outcry in the US and a diplomatic fracas as they tried to work something out. (Though one possible result of such a fracas might be a prosecution in the US.) But act of war? Be serious.

Yu have to consider this from the "'Merkun Exceptionalism", "We get to kick anyone's a$$ we want for whatever reason we want" RW foamer POV. You know, like:

"It is one thing to try this against a [Chilean official] and quite another thing altogether to try it against an agent of the United States."

If the Yoo Ess of Freakin' Aye sez it's legal, then it's legal; whatcha gonna do about it, huh?, huh!?!, you talkin' to me!?!...

Cheers,
 

"Good example of how war crimes trials are a product of hard power."

i.e., Might makes right. Do what we say, not what we do, or else.

Let's hope the #1 & #3 economies in the world don't gang up on us, otherwise Bart will have to switch to his defense attorney mode and say it was legal because we had the power.

Although, I don't recall that being written down in Geneva as an exception.
 

Does the fact that the USA does not recognize the CAT as "self-executing" mean that the USA position is that the CAT does not infer a right to a private action of enforcement?

The US position is that you can't get a private right of action out of the CAT itself, but that the US did in fact provide for private remedies. In addition to suits under Section 1350 and (in some cases) the TVPA, there is the possibility of a Bivens claim, or even a common law tort action, depending on immunity issues.

Whether or not these remedies actually do provide for a private right of action in any case of a violation of CAT is a question that scholars have explored, but at least in theory, the US has implemented the convention in this respect.
 

No, arrest of John Yoo and putting him on trial for his war crimes would not be likely to be considered an act of war by the united states.

Republicans in Congress would huff and puff that this was the case, but it is rather unlikely that a Democratic President would feel politically compelled to take action to save him.

Instead the outcome would be more or less what occurred in Chile. The SCOTUS would suddenly discover that the grant of immunity did not apply to Yoo or whoever was being held and a basis would be found for holding the trial in the US.

The war crimes that Yoo and other members of the administration enabled are the reason that the US has lost the Iraq war. After Abu Ghraib there was no prospect of winning.

The US will in all likelihood join the ICC system in the near future as part of its efforts to rehabilitate its reputation in the post Bush era.
 

"It is perfectly legal for the United States to hold enemy combatants for the duration of that conflict."

Bart, it is very exhausting responding to your posts. You are quoting AMERICAN LAW in the detainment of a CANADIAN CITIZEN.

I can promise you that his detention is in violation of Canadian law and Canada doesn't care what we think the law is. But we are not at war with Canada.

You state that we would go to war if another country's LAWS detained one of OUR people. But according to your other statements, it appears all they have to do is say "but it's legal here."

As I said, these are diplomatic issues. Many of the people held in Guantanamo were who citizens of our allies have already been released. We didn't go to war with Britain over their citizens being held contrary to British law. We didn't go to war with Australia, where the public sentiment was extremely against our holding their citizens contrary to their laws.

It was resolved diplomatically.
 

"As discussed above, this is an unlikely event because the Euros are unlikely to resort to this nonsense."

In Italy, they already sought the arrest of 13 CIA agents in 2005 over illegal renditions.

I do not know what the status of that is, but indeed, it was probably solved diplomatically.
 

sethidea said...

BD: "It is perfectly legal for the United States to hold enemy combatants for the duration of that conflict."

Bart, it is very exhausting responding to your posts. You are quoting AMERICAN LAW in the detainment of a CANADIAN CITIZEN.


No, I am citing the standard law of war in place for the past few hundred years in most Western European countries and their colonies like Canada.

I can promise you that his detention is in violation of Canadian law and Canada doesn't care what we think the law is. But we are not at war with Canada.

Which part of Canadian law prohibits the detention of enemy combatants for the duration of a war?

As I said, these are diplomatic issues. Many of the people held in Guantanamo were who citizens of our allies have already been released.

This is also a variation of a very old fixture of the law of war. In lengthy wars where the warring nations could not afford or otherwise did not want to keep POWs, they would be paroled under the promise not to return to the battlefield. In this case, we are paroling lesser combatants over to allied countries we trust to keep an eye on them.

We would parole more detainees, but their home countries do not want them or would chuck them in actual dungeons and perform actual torture on them. It is interesting that the so called Gitmo Gulag is considered the safest place for these men.

BD: "As discussed above, this is an unlikely event because the Euros are unlikely to resort to this nonsense."

In Italy, they already sought the arrest of 13 CIA agents in 2005 over illegal renditions.


No, the Italians held a pretend political trial of suspected CIA agents in absentia. The trial was a knowing farce given that the Italian government was supporting the renditions to get the terrorists out of their country.

The Italian government was suitably shocked, shocked to find renditions going on in their country!

What is amusing is that so many on the left here and over in the EU took that farce seriously. Of course, that was the intent all along.
 

Did you just say POWs in relation to Guantanamo?
 

The UK and other Commonwealth nations all have a "Geneva Conventions Act" which is similar to 18 USC 2441.
 

Wow, it is exhausting responding to someone as dishonest as Bart DePalma. He writes:

"Which part of Canadian law prohibits the detention of enemy combatants for the duration of a war?"

That's a variant of "begging the question", also known as "circular reasoning". Very dishonest.

The kidnapped 15-year-old, currently being denied his habeas corpus rights, is probably not an enemy combatant, and he certainly alleges a set of facts under which he is not. Furthermore, under US-Canadian treaties of alliance, Canada's courts have pretty clearly got the jurisdiction to determine such questions with regard to its citizens. He must legally be repatriated to Canada to decide whether he is in fact an enemy combatant. (If they decide "yes", maybe they'll return him to the US.)
 

L.S.,

@Bart: You said: "No, I am citing the standard law of war in place for the past few hundred years in most Western European countries and their colonies like Canada."

If I'm not mistaken, I cited extensively (at least extensively for a blog) to illustrate what international law, or, more precisely, ius ad bellum, says at this point, and your response was "As I noted in my first post, the United States has never recognized universal jurisdiction and would consider a detention of our citizens based upon such jurisdiction to be unlawful.", which can be succinctly summarised as "it doesn't matter, all that matters is US law".
 

Tortured logic is part of the price paid for the First Amendment speech clause. I think of the example of res gestae from the evidence course I took back in 1951 explaining this exception to the hearsay rule: stepping on the cat's tail and the spontaneous yelp of the cat. Just step on Yoo and out comes the yelp from (you know) who. [No correction please that "who" should be "whom."] But here it is accompanied with tortured logic. Between Yoo and who is the start of an Abbott and Costello routine. But in the end it is Yoo and who being tortured by their own words. So hear-say who on Yoo.
 

nathanael said...

BD: "Which part of Canadian law prohibits the detention of enemy combatants for the duration of a war?"

The kidnapped 15-year-old, currently being denied his habeas corpus rights...


Under Anglo American law, habeas corpus has never been extended to foreign enemy combatants to determine whether they are being properly held as prisoners of war until our Supreme Court rewrote the US habeas corpus statute in Rasul. Indeed, the British courts expressly declined to do so during the Napoleonic Wars.

Has Canada reversed its British precedent in this area?

...Furthermore, under US-Canadian treaties of alliance, Canada's courts have pretty clearly got the jurisdiction to determine such questions with regard to its citizens.

Really?

Please provide me the treaty provision in which the United States allows Canadian courts habeas corpus jurisdiction to determine whether the US military is properly holding a Canadian citizen as an enemy combatant pursuant to US law.

Hell, we are still wrestling with the question of whether US civilian courts will seize such jurisdiction for the first time in our history.
 

L.S.,

@Bart: The fact that this issue is off-topic aside, for the moment, I don't think you're actually right here.

I'm still looking for authority, but this is what Wikipedia says (I know, authority will follow): "The privilege of habeas corpus has been suspended or restricted several times during English history, most recently during the 18th and 19th centuries. Although internment without trial has been authorised by statute since that time, for example during the two World Wars and the Troubles in Northern Ireland, the procedure of habeas corpus has in modern times always technically remained available to such internees."

To be continued...
 

Our citizens are unlikely to be molested by a rogue court because our military and economic power is preeminent.

All statutes aside, how is this just? Have we given up entirely on justice as a goal?
 

Martinned:

Given that your source was an unannotated claim in Wikipedia by an unknown commentator, I am unsure to which internees the article is referring. However, I am relatively sure that the internees during the Troubles and the World Wars were not foreign enemy combatants being held as prisoners of war. It appears that the article is referring to Irish internees. The British always treated the Irish as citizens (albeit second class citizens) and the IRA as a criminal organization. Consequently, I do not think this precedent applies.

This subject has been briefed to death to the Supremes. There are no cited Anglo British cases where a court granted habeas review to determine whether a foreign POW was being properly held as such. The British decisions to which I linked held that habeas corpus was a right of Englishmen which was not enjoyed by the foreign POW petitioners. The briefs to which I cited further note that British treatises on the subject recognized the ongoing validity of this precedent.

I am hoping this point will be addressed during the oral arguments on whether the Constitution extends habeas review to foreign POWs.
 

pms:

I do not see what is unjust about the fact that our military and economic power keeps rogue foreign courts from unlawfully prosecuting our war fighters as criminals under another country's idea of what US law should be.
 

Just a nit:

"Bart" DePalma [who doesn't agree with the U.S. Supreme Court]: "Under Anglo American law, habeas corpus has never been extended to foreign enemy combatants to determine whether they are being properly held as prisoners of war until our Supreme Court rewrote the US habeas corpus statute in Rasul."

Point of fact: Rasul did not purport to overturn or reverse any previous law or decision, so "Bart"'s claim that the law was otherwise until the renegade Supreme Court came up with this "rewr[i]te" is simply incorrect. As for what the law is, "Bart" is entitled to his opinion of what the law should be, but that hardly changes the actual law as set down by the Supreme Court. And on a blawg lke this, that ought to be the starting point for serious discussion, as opposed to bloviation.

Cheers,
 

I do not see what is unjust about the fact that our military and economic power keeps rogue foreign courts from unlawfully prosecuting our war fighters as criminals under another country's idea of what US law should be.

Good lord, the intellectual dishonesty here is stifling.

But let's play along a moment more.

Bart:

(1) Many other nations, such as the UK, France, Germany, have their own laws.

(2) Among those laws are laws against torture.

(3) Also among those laws is the rule of universal jurisdiction as to some crimes which are so awful as to merit prosecution no matter where committed; among these crimes is torture. (Dilan was educating us all about this in recent comments at this blog.)

(4) Thus, were John Yoo or William Haynes foolhardy enough to step off the plane in Munich or London, and were the local authorities to detain him and bring him up on charges, they would not be "rogue courts" and they would not be acting on any idea of what U.S. law may be. They would be regularly constituted courts carrying out their duty to enforce their country's laws.

That's as clear as I can make it without pictures. Oh, one more thing:

(5) The U.S. will not be going to war against any NATO member (for instance) which so detains anyone. If the suspect is set free, it will be by diplomatic efforts. This is evident to anyone above the mental age of 14.
 

L.S.,

foreign enemy combatants being held as prisoners of war

@Bart: Well, I haven't yet had time to look into this further, but if we agree that people originally detained in Afghanistan or Iraq are Prisoners of War, I think we would have already made quite a bit of progress.

I think someone else said it here as well (or maybe it was the parliamentarian I heard speak about this issue yesterday): it's not that there aren't reasonable arguments either way, the problem is that the US refuse to choose whether such people are civilians or POWs.

If they're POWs, you can't interrogate them at all, under the 3rd Geneva convention, and if they're civilians, they have habeas rights, etc. There's no such thing as a third category, some kind of inbetween labeled "enemy combattants". Every person on earth is either a civilian or a soldier.

And yes, that Wiki-quote of itself isn't worth the paper it could be printed on, but I'll look around and see if I might not be able to back that up with some actual precedent.
 

Mr De Palma asserts.

“The United States does not recognize so called "universal jurisdiction" of courts like the one in Spain.
While some may fantasize about EU countries arresting our CIA agents and trying them for "war crimes," such an arrest would in reality be an act of war against the United States.
It is one thing to try this against a stateless ex dictator and quite another thing altogether to try it against an agent of the United States.”

Mr De Palma cites no authority for these extraordinary proposition which I suggest are quite misconceived.

1. A CIA agent may well be ‘an agent of the United States’ but when he is outside the territory of the United States his legal status is no different to that of any other alien in that territory (unless he has cover as an accredited diplomat). If such CIA agents go into the territory of other states and apprehend a person without any legal authority from the judicial authorities of that state, then they are committing a criminal office by the law of that state and that state is perfectly entitled to issue warrants for the arrest of such agents. The initial crimes, by the way, are kidnapping and false imprisonment.

2. Mr De Palma’s “stateless ex dictator” is probably a reference to General Pinochet. Far from being stateless, General Pinochet (once (like the late Shah and General Musharaff) a dictator whose regime was enthusiastically supported by a US administration) was a citizen and senator for life of Chile and the government of Chile was represented in the English proceedings.

3. The concept of “ius cogens” crimes of universal jurisdiction has been part of US law since independence. For example, piracy on the high seas. Torture is recognised to be such a crime - see Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980).

4. The USA committed itself to recognition of torture as a “ius cogens” crime when it ratified the Torture Comvention.

Returning to the issue of the conduct of the legal officers of the United States, see the speech of Lord Hope of Craighead in Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet [2000] 1 AC 147, [1999] UKHL 17, in particular the following passage:-

“Read with the broad definition which the expression "torture" has been given by Article 1 of the Convention and in accordance with ordinary principles, the offence which section 134 lays down [torture] must be taken to include the ancillary offences of counselling, procuring, commanding and aiding or abetting acts of torture and of being an accessory before or after the fact to such acts. All of these offences became extra-territorial offences against the law of the United Kingdom within the meaning of section 2(2) of the Extradition Act 1989 as soon as section 134 was brought into force on 29 September 1988.” [Italics added].

His Lordship went on to hold that the ancillary offences could be tried in England no matter where they took place.

Many European states have had a number of their nationals or residents, kidnapped or otherwise apprehended by officials of the United States, those residents have then been unlawfully detained in Afghanistan and other places ultimately in Guantanamo Bay. There is credible evidence that they have been tortured, subjected to inhuman and degrading treatment and denied due process at the hands of officials of a foreign power.

There is accordingly a duty on prosecutors to consider whether crimes cognisable within our jurisdictions have arguably taken place and, if so, to take steps to bring the perpetrators to justice.

The question is therefore whether the Yoo Memorandum could properly lead to a charge of “counselling, procuring, commanding and aiding or abetting acts of torture and of being an accessory before or after the fact to such acts”.

My view is that a prosecutor or examining magistrate could properly conclude that there was a case to answer – so it follows that Professor Yoo, Judge Bybee and others might well one day stand in need of the assistance of competent Counsel should they be unwise enough to travel to Europe.
 

arne langsetmo said...

"Bart" DePalma [who doesn't agree with the U.S. Supreme Court]: "Under Anglo American law, habeas corpus has never been extended to foreign enemy combatants to determine whether they are being properly held as prisoners of war until our Supreme Court rewrote the US habeas corpus statute in Rasul."

Point of fact: Rasul did not purport to overturn or reverse any previous law or decision, so "Bart"'s claim that the law was otherwise until the renegade Supreme Court came up with this "rewr[i]te" is simply incorrect.


A court can rewrite the law in a de novo proceeding simply by adding law which is not present in the text.

There was no reference in the habeas statute to extending habeas review to foreign POWs. To the extent that the habeas statute was a codification of the prior common law, the British law which we inherited held that foreign POWs did not enjoy habeas review and the US common law never attempted to extend habeas to foreign POWs.

The Court effectively added a new provision to the habeas statute which is a departure from Anglo American law since the invention of habeas corpus.
 

anderson:

[T]hey would not be "rogue courts" and they would not be acting on any idea of what U.S. law may be. They would be regularly constituted courts carrying out their duty to enforce their country's laws.

Universal jurisdiction is is contrary to the basic concepts of jurisdiction and venue which underlie most western legal systems.

In a democracy, the People through their elected representatives enact laws to govern their own nation or lesser political unit. To allow a foreign nation to enact and enforce laws governing your citizens in your nation strips your People of their legal rights and disenfranchises them from enacting their own laws. No nation would recognize such foreign laws and would consider foreign attempts to prosecute their citizens under them as unlawful.

Let us assume arguendo that Texas law allows a person to use deadly force in self defense and New York law would consider this homicide. Now let us assume that a Texas citizen in self defense shoots and kills a man who had broken into his Texas home. The Texas DA declines to prosecute because Texas law allows lethal force in self defense. However, when the Texas citizen travels to New York on business, a New York DA arrests and tries the Texan for murder for the Texas killing based on "universal jurisdiction." Our legal system would categorically reject such an outrageous act as unlawful. The same principle applies internationally.
 

martinned said...

@Bart: Well, I haven't yet had time to look into this further, but if we agree that people originally detained in Afghanistan or Iraq are Prisoners of War, I think we would have already made quite a bit of progress.

Not as much as you assume.

I am using the term POW generically to mean a foreign enemy belligerent who is being detained for the duration of the war to prevent him from returning to the battlefield.

I am not using the far narrower definition of POW given by the GC for privileged prisoners who meet the guidelines set forth in the conventions.
 

Mr De Palma should be aware that the habeas corpus jurisdiction is an Anglo-Norman legal concept. It has proved so valuable over the centuries that it remains as a remedy in the US judicial armory. The UK and the Commonwealth jurisdictions have developed jurisprudence which holds that the question to be answered on the return to the writ is whether the person served is amenable to the coercive powers of the Court and has it within his power to bring the prisoner before the Court: thus the opening words: "You have the body...". A Secretary of State for Defence is a proper respondent to a writ relating to a person held in the custody of UK armed forces outside the UK. A subsidiary question is whether there is a local court with power to grant the remedy. Thus the writ will not issue from England in relation to a person in custody in Gibraltar because the Supreme Court of Gibraltar can grant the writ.

The sloppy scholarship of the Neocons was to assume that the writ had only territorial effect and that Guantanamo Bay was therefore a legal black hole. In holding that view fallacious SCOTUS has only returned to the historic jurisprudence on the matter.
 

mourad:

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980) involves an interpretation of the Alien Tort Statute which expressly limits jurisdiction over "torts only." We are discussing universal jurisdiction for criminal prosecution. Pena-Irala was criminally prosecuted in Bolivia where the alleged torture and murder occurred.

Criminal prosecution is fundamentally different from civil actions for money damages. Criminal prosecution entitles the suspect to a wide array of constitutional and statutory rights in the United States, many of which do not exist in the civil justice system or in overseas criminal prosecutions.

For example, criminal prosecution is not a common law matter where duties can be imposed ex post facto by courts implementing emerging norms of society as was the case in Filartiga.

One of our fundamental objections to subjecting our citizens to the universal jurisdiction of the new International Criminal Court was that court would strip our citizens of many of the Bill of Rights.

While the United States plays fast and loose with the rights of civil defendants where the only penalty is money damages, our legal system jealously protects the rights of criminal defendants where the penalty is loss of liberty and life. Consequently, Filartiga v. Pena-Irala has little value as precedent in our discussion.
 

mourad said...

The sloppy scholarship of the Neocons was to assume that the writ had only territorial effect and that Guantanamo Bay was therefore a legal black hole. In holding that view fallacious SCOTUS has only returned to the historic jurisprudence on the matter.

The territorial argument is weak and should be irrelevant.

The better argument is that the habeas corpus common law which was incorporated into the Constitution in 1787 simply did not extend the right to foreign POWs no matter their location. Indeed, the cases to which I linked denied habeas corpus to foreign POWs being held in Great Britain itself.

I have made this argument here from the beginning. I am pleased to see that DOJ and the amici are now making that argument to the Supremes. I will be interested to see whether this becomes a subject of oral argument. This argument should be right up Scalia's road.
 

Mr De Palma (who holds himself out as an attorney) writes:-

“Universal jurisdiction is contrary to the basic concepts of jurisdiction and venue which underlie most western legal systems.

In a democracy, the People through their elected representatives enact laws to govern their own nation or lesser political unit. To allow a foreign nation to enact and enforce laws governing your citizens in your nation strips your People of their legal rights and disenfranchises them from enacting their own laws. No nation would recognize such foreign laws and would consider foreign attempts to prosecute their citizens under them as unlawful.”

I suggest that if Mr De Palma were to refresh his memory of (inter alia) US anti-trust law he would find that the Congress has enacted many statutes giving “long arm” criminal and civil jurisdiction to the US Courts over persons and corporations outside the USA.

Further, just as increasing world trade and foreign travel make antiquated concepts of jurisdiction and venue less and less defensible, the increasing propensity of the United States to take unlawful actions outside its own borders makes it increasingly necessary for other jurisdictions to act to protect their own citizens and residents.

Thus if US officials conspire outside the UK to kidnap, unlawfully detain and torture a UK citizen I consider it entirely proper that such officials should be answerable to justice. If the US criminal justice system is not up to the task, then other systems should be given the tools to supply the deficiency.

What is distressing is the fact that the US criminal justice system is apparently not up to the task and perhaps in the interest of justice (which is what all lawyers are there to serve), Mr De Palma would better spend his time trying to fix the US system.
 

L.S.,

Just a quick response: A rule of ius cogens is an obligation erga omnes. That is the point. It is an obligation against mankind, and when such an obligation is violated, a crime has been committed against each and every one of us. (The judges in the precedents cited have phrased it better than I ever could.)

That is why universal jurisdiction logically follows. I, you, everyone is a victim here. (Although, admittedly, the guys exposed to that uniquest of bathing experiences suffered more than the rest of us.)
 

L.S.,

Oh, to clarify: my point was that, as a result, the NY vs. TX self-defence statutes analogy fails.
 

mourad said...

Thus if US officials conspire outside the UK to kidnap, unlawfully detain and torture a UK citizen I consider it entirely proper that such officials should be answerable to justice. If the US criminal justice system is not up to the task, then other systems should be given the tools to supply the deficiency.

We apparently need to clarify our terms as we are speaking past one another.

Let us use your hypo of a US CIA agent detaining and interrogating a UK citizen in a third country.

If jurisdiction and venue is proper, I see no problem with a US court trying a US citizen for violations of US statute. The problem you are facing is that DOJ and Congress do not think this is a violation of law.

Likewise, if jurisdiction and venue is proper, I see no problem with a UK court trying the CIA agent for violating British law in detaining and interrogating the UK citizen.

Our courts recognize an extraterritorial jurisdiction (what you call long arm) over defendants accused of murdering, kidnapping, assaulting, or threatening US citizens outside the territory of the United States. See e.g. United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991).

However, the "universal jurisdiction" to which Marty referred and I have been discussing is when a court in a fourth country with no relationship to the US CIA agent, the UK person or the location of the detention and interrogation seeks to criminally prosecute the case. This type of extraterritorial jurisdiction is not recognized in the United States and most other countries.

The problem here is that politics are clouding the debate here. Get rid of the entire "torture" debate.

No matter what the circumstances, I find the entire concept of allowing third party countries without any relation to the defendant, the complaining witness and the venue to arrest and criminally try our citizens without their Bill of Rights is a complete non starter. The United States owes a duty to its citizens to protect them from this kind of unlawful attack on their freedom.

Imagine Iran declaring that its religious courts have universal jurisdiction over all violations of Sharia across the world, arresting and trying our homosexual citizens for sodomy and then stoning them to death.

Would you then say it was fine and dandy for Iran to criminally prosecute our citizens because our courts simply were unwilling to do the job?
 

As an aside, it is interesting to find myself defending the Constitution as it is written both here and in a parallel debate over on Professor Balkin's thread against arguments from the left that unelected courts both here and overseas can disregard our Constitution's rights and limitations at their whim so long as the policy result is politically correct.

I find this entire approach to be a short sighted pawning of your own rights. The problem with setting up dictatorships, judicial or otherwise, is that they can be hostile as well as beneficent.
 

Mr De Palma: I see you under the illusion that the protections offered to defendants to criminal charges in the USA are superior to those offered to defendants in the UK or, for that matter, the other European Union countries).

Just as it took the USA longer to abolish slavery and longer to desegregate after it opted for its independence, I think it could be fairly said that your criminal justice system has lagged behind as well. You still practice judicial murder – no European country does.

While no criminal justice system is perfect (because no human institution is), that of the USA and its states is not exactly a model to hold out to other nations. The so-called constitutional rights of defendants in the various US criminal justice systems are all too often illusory because for the last 30 years or so the “originalist” heresy has been devoted to emasculating those rights by limiting the interpretation of the protections afforded to the understanding of the 1790’s. In contrast, the European Convention on Human Rights provides effective protections because we have learned both from our own and from US mistakes.

The US objections to the ICC treaty and the “Hague Invasion Act” were not rooted in any concern for the constitutional rights of defendants, but in a concern that US nationals would be deterred from acquiescing in unlawful wars of aggression, torture and other war crimes at the behest of an unprincipled executive. In fact the rights and protections afforded to defendants before international criminal courts are models the USA would be hard pushed to implement.

If you consider your justice system superior – show me how it will hold to account the perpetrators of the crimes committed at the hands of your co-nationals acting under colour of law against my co-nationals formerly detained in Guantanamo Bay.
 

Universal jurisdiction is is contrary to the basic concepts of jurisdiction and venue which underlie most western legal systems.

This is a nice example of where you are out of your element, Bart. Universal jurisdiction with respect to hostis humanae generis has been accepted in US jurisprudence for over 200 years.

There are certainly policy arguments against universal jurisdiction, as well as arguments as to its scope (i.e., who qualifies as hostis humanae generis), but the principle is well established. You haven't tried human rights cases, so you don't know this.
 

mourad said...

In fact the rights and protections afforded to defendants before international criminal courts are models the USA would be hard pushed to implement.

Hard pressed to implement? Try impossible. The ICC violates several provisions of our Bill of Rights and would be held unconstitutional in the United States.

(1) The Fifth Amendment to the U.S. Constitution states: "No person shall . . . be deprived of life, liberty, or property, without due process of law." One of the core due process rights guaranteed by the Fifth Amendment is clear notice before the act in question that the act is unlawful. Laws which do not provide such clear notice are void for vagueness.

As I have discussed in previous posts, our torture statute runs a substantial risk of being void for vagueness because "severe pain" has no objective definition since one cannot measure pain and the vagueness cannot be cured by the fact that torture is within the everyday experiences of a jury. Under the ICC, the UN judges get to subjectively decide for themselves after the fact what constitutes torture.

(2) The Fifth Amendment further states: "No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb." If the United States investigates and declines to prosecute for lack of evidence or tries and acquits a defendant, the ICC has the authority to decide the US judicial action was "ineffective" and retry the defendant again.

(3) The Sixth Amendment to the U.S. Constitution states: "In all criminal cases, the accused shall enjoy the right to a . . . trial by an impartial jury." The ICC replaces a jury with a panel of UN-appointed judges.

(4) The Sixth Amendment also states: "In all criminal cases, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The ICC permits hearsay testimony through recorded and written statements which are not subject to cross examination unless the Court deems them unfair.

(5) The Sixth Amendment further states: "In all criminal cases, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor." The ICC provides no mechanism for the defendant to obtain exculpatory testimony. The prior trial of Milosovich which the ICC was based was simply a parade of prosecution witnesses because the ICC could not or would not compel defense witnesses to appear.
 

dilan said...

Universal jurisdiction with respect to hostis humanae generis has been accepted in US jurisprudence for over 200 years.

This concept was generally limited to piracy and was developed out of necessity because piracy was usually committed outside of national territory and it was extremely difficult to prove whose flagged ships a particular pirate ship attacked unless you managed to catch one in the act. Consequently, sea faring nations agreed that any of them had jurisdiction to capture, try (sometimes) and then nearly always hang captured pirates.

None of those jurisdictional problems are present in Marty's fantasy of the some EU court or the ICC arresting and trying John Yoo for "war crimes."
 

IANAL, but:

If the United States investigates and declines to prosecute for lack of evidence or tries and acquits a defendant, the ICC has the authority to decide the US judicial action was "ineffective" and retry the defendant again.

Is it not possible in the US for someone who has been under investigation for a crime, but not prosecuted, to be later prosecuted with the same or additional evidence? I do not believe the first condition constitutes a "double jeopardy" defense even in the US, although I would like to know of examples where it would.
 

"This concept was generally limited to piracy and was developed out of necessity because piracy was usually committed outside of national territory and it was extremely difficult to prove whose flagged ships a particular pirate ship attacked unless you managed to catch one in the act. Consequently, sea faring nations agreed that any of them had jurisdiction to capture, try (sometimes) and then nearly always hang captured pirates.

None of those jurisdictional problems are present in Marty's fantasy of the some EU court or the ICC arresting and trying John Yoo for 'war crimes.' "


Actually, GC3 does allow such a construction, as any High Contracting Party can prosecute violators of the GC. From Article 129:

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed. or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Of course, the Yoo brigade would not like the rest of that Article, and a few of the following:

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.

Art 130. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.

Art 131. No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article.


I believe the US is a signatory to GC3, as are many other nations, and so as a part of US law, they have the right to prosecute violators of any nationality (apparently including our own).
 

Mr De Palma: For a lawyer you seem exceptionally keen to mislead the jury of public opinion. You write:

However, the "universal jurisdiction" to which Marty referred and I have been discussing is when a court in a fourth country with no relationship to the US CIA agent, the UK person or the location of the detention and interrogation seeks to criminally prosecute the case. This type of extraterritorial jurisdiction is not recognized in the United States and most other countries.

The suggestion that extraterritorial jurisdiction in cases of torture is not recognised in "the United States and most other countries" is factually untrue.

The Torture Convention has been signed and ratified by 142 counties including the USA. By signing all those countries have agreed that torture is a crime of universal jurisdiction. Those 142 countries include ALL member states of the European Union.
 

Mourad:

Mr De Palma cites no authority for these extraordinary proposition which I suggest are quite misconceived.

Just ask him. He really likes people to give cites:

["Bart" DePalma]: "No matter how learned my correspondent, I do not accept bare assertions as undisputed fact."

so I'm sure he will accommodate you.

Cheers,
 

"Bart" DePalma:

["Bart" DePalma [who doesn't agree with the U.S. Supreme Court]]: "Under Anglo American law, habeas corpus has never been extended to foreign enemy combatants to determine whether they are being properly held as prisoners of war until our Supreme Court rewrote the US habeas corpus statute in Rasul."

[Arne]: Point of fact: Rasul did not purport to overturn or reverse any previous law or decision, so "Bart"'s claim that the law was otherwise until the renegade Supreme Court came up with this "rewr[i]te" is simply incorrect.

A court can rewrite the law in a de novo proceeding simply by adding law which is not present in the text.


True. But this doesn't refute my point. If you want to claim that the Supes "rewrote" the habeas corpus statute[s], then please supply your evidence that they did so. Hint: Their deciding differently than what you thought (or think) the law should be doesn't count.

Cheers,
 

In his eagerness to act as an apologist for the misdeeds of US officials who have been principals or accessories in the kidnapping, incarceration without due process and torture of other human beings, Mr De Palma even seems to have difficulty with the very concept of torture:

“our torture statute runs a substantial risk of being void for vagueness because "severe pain" has no objective definition since one cannot measure pain and the vagueness cannot be cured by the fact that torture is within the everyday experiences of a jury.”

This is what one can describe as a “casuistry” –v- “common sense” approach.

Torture includes such practices as: searing with hot irons, electric shock treatment to the genitals, severe beatings, suspending by the legs with arms tied behind back, applying thumbscrews, inserting needles under the fingernails, making a person crouch for hours in the ‘Z’ position, submersion in or dousing with water to produce the sensation of drowning, the denial of food, water or sleep or subjection to extremes of temperature, light or noise for prolonged periods. This list is illustrative rather than exhaustive. I do not see a trier of fact – be it a panel of judges or a jury – having any excessive difficulty in deciding what kind of acts constitute torture.

Likewise the proposition that “one cannot measure pain”. I don’t know about Colorado where Mr De Palma resides, but here in London personal injuries claims constitute the single most common category of claim brought before the courts. Damages are awarded in such claims for “pain and suffering”. This involves an assessment of the degree of pain and suffering.

“… the fact that torture is within the every day experiences of a jury”. I checked the Colorado.com website and there is no reference to any widespread practice of torture in the state. However, if Mr De Palma still practices in the Colorado courts, I can conceive that prolonged exposure to his advocacy could well constitute a form of torture.
 

Bart may be a believer in "NO FAULT TORTURE" similar to the concept of no fault insurance for motor vehicle accidents eliminating, to some degree, pain and suffering from damages. But Bart knows what torture is, as he inflicts pain and suffering upon visitors to this Blog. But Bart's torture is non-life threatening and in fact makes its victims stronger. Maybe Bart keeps track of his conversions but I would venture to say the other side of the ledger gets longer and longer. Like the boy who cried wolf (or the originalist "The Skyscraper is falling!) or like ignoring Chuck Krauthammer or Jonah Goldberg's rants in their columns, the First Amendment's speech clause doesn't require us to pay heed to his comments. Maybe he should listen to little Lisa.
 

This concept was generally limited to piracy and was developed out of necessity because piracy was usually committed outside of national territory and it was extremely difficult to prove whose flagged ships a particular pirate ship attacked unless you managed to catch one in the act. Consequently, sea faring nations agreed that any of them had jurisdiction to capture, try (sometimes) and then nearly always hang captured pirates.

Bart, that is the argument made by those who don't want torturers to be considered hostis humanae generis, but note that it is quite contrary to your initial claim that universal jurisdiction was antithetical to American law. It is not; the issue is as to its scope.
 

"Bart may be a believer in "NO FAULT TORTURE"

Shag from Brookline - That's a very apposite observation, he certainly seems to believe there can be no fault providing the torturing is done at the best of the Bush Administration.

I wonder whether he has some secret CIA facility in his basement.
 

Bart de Palma wrote:-

"No matter what the circumstances, I find the entire concept of allowing third party countries without any relation to the defendant, the complaining witness and the venue to arrest and criminally try our citizens without their Bill of Rights is a complete non starter."

You are entitled to your view, but when your country has signed up to and ratified a convention and enacted it into its domestic law, it is not your view which matters.

You also said "Imagine Iran declaring that its religious courts have universal jurisdiction over all violations of Sharia across the world, arresting and trying our homosexual citizens for sodomy and then stoning them to death."

(1) Actually, courts applying Sharia principles do not always consider secular national borders of primary relevance to jurisdiction.

(2) Since, however, sodomy is lawful throughout the ECHR countries, it could not become a crime of universal jurisdiction, whatever some hypothetical state might decide to the contrary. Universal jurisdiction crimes are limited to those which are considered by the international community as serious crimes against all society: eg Piracy, Genocide and Torture.

Although, mind you, given the influence of the religious right in your country, there might be some risk of a recriminalisation of sodomy. Some of the "red" states seem to have some pretty loopy legislatures and with Neocons on the Supreme Court you might be back to 1791 again.

Believe me, no EU criminal justice system is going to want to run a trial of US nationals accused as accessories to torture. The costs of such trials would be horrendous and, as in most countries, the resources are finite. But if the US will not clean up its own poo - somewhere else may be obliged to take up the burden.
 

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