SubscribeIn practical terms, any indictments will give the democrats leverage to block reappointment under future Republican administrations.
(c) Definition.— As used in this section the term “war crime” means any conduct—
(1) 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;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
Actually, no. It is totally relevant. Cheney has no power to order anything. Anything. People did what he said in terms of handing him information, or leaking information to the press, but he does not have the power to order agents of the executive branch to do anything to citizens or non-citizens.He may not have had the formal authority, but it's pretty obvious that he had informal authority. I just don't understand why you think someone should get off the hook for telling someone "torture this person!" just because they may not have had the legal authority to demand that the person do it. Mafia dons don't have any legal authority to order anyone what to do, but they're still responsible for the crimes they request people to do. If you want to call it a "request" that's fine, but obviously there could be career consequences for people who refused the requests, or it may be that those people really wanted to torture and Cheney just gave them the excuse. Either way, the fact that he didn't have a formal constitutional ability to order people around means that he should escape punishment for being involved in a criminal conspiracy.
Now Cheney can be the power behind the throne and push Bush to do dumb shit, but he is not the responsible official in the eyes of US law.And this is happening in Spain.
I disagree with his analysis, but I don't see how what he said Bush could do was "illegal." You'll have to back that one up a lot more.You don't see how it could be 'illegal' for a president to order the crushing of a person's testicles? Really?
No. The United States is sovereign and its laws is the Supreme Law of the Land. No international authority has claim to a citizen of this country.International authorities can claim whatever they want. Their rulings may have no meaning here in the U.S. but they will apply in the areas that they govern.
Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
theroadahead: A better question is, what good is a legal system that turns on questions of politics, which are inherently populist? Such a legal system, by its nature, cannot protect the rights of minorities. Examples of such "legal" systems include medieval witch-hunts and ultra-fundamentalist Taliban Sharia courts.Oh, those poor beleaguered tortures. The most oppressed minority!
It is the strength of a democracy that it changes regimes without throwing the former regime in jail.Not if the former regime committed a bunch of war crimes.
My original point was that Addington, Cheney and Woo gave advice only. There isn't a scrap of evidence in any public record that any of them were granted the authority to directly order torture.Again, for like the millionth time, they gave legal advice that was used to justify torture. I don't see why they shouldn't be liable for it, in fact I think they should be. Everyone involved in the planning and execution should be liable, not just the person at the top with ultimate 'authority' The memos that Yoo wrote are enough to convict him in my mind.
The law's chief handicap is its strength--it must itself follow the rules.Yeah, and in Spain they follow Spanish law. Don't know why that's so hard to comprehend.
The individual may say for himself: "Fiat justitia, pereat mundus (Let justice be done, even if the world perish)," but the state has no right to say so in the name of those who are in its care. Both individual and state must judge political action by universal moral principles, such as that of liberty. Yet while the individual has a moral right to sacrifice himself in defense of such a moral principle, the state has no right to let its moral disapprobation of the infringement of liberty get in the way of successful political action, itself inspired by the moral principle of national survival. There can be no political morality without prudence; that is, without consideration of the political consequences of seemingly moral action.The need for prudence would apply to a political leader such as Obama or Zapatero. In the case of Garzon, though, I would think that his primary concern would be the first question: did Bush and his advisers commit war crimes, or not?
... 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.
Cruelty, humiliation, and the use of torture on detainees have long been prohibited by international law, including the Geneva Conventions and their Common Article 3. This total ban was reinforced in 1984 with the adoption of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which criminalizes torture and complicity in torture. ...In short, Feith believed that terrorists shouldn't be protected against torture; he pushed aggressively for the United States to torture them; and he was successful. Is this not a war crime?
[In January or February 2002, Feith] had gone to see Rumsfeld about the issue, accompanied by [JCS Chair Richard] Myers. As they reached Rumsfeld’s office, Myers turned to Feith and said, “We have to support the Geneva Conventions. If Rumsfeld doesn’t go along with this, I’m going to contradict them in front of the president.” Feith was surprised by this uncharacteristically robust statement, and by the way Myers referred to the secretary bluntly as “Rumsfeld.”
Douglas Feith had a long-standing intellectual interest in Geneva, and for many years had opposed legal protections for terrorists under international law. He referred me to an article he had written in 1985, in The National Interest, setting out his basic view. Geneva provided incentives to play by the rules; those who chose not to follow the rules, he argued, shouldn’t be allowed to rely on them, or else the whole Geneva structure would collapse. The only way to protect Geneva, in other words, was sometimes to limit its scope. To uphold Geneva’s protections, you might have to cast them aside.
But that way of thinking didn’t square with the Geneva system itself, which was based on two principles: combatants who behaved according to its standards received P.O.W. status and special protections, and everyone else received the more limited but still significant protections of Common Article 3. Feith described how, as he and Myers spoke with Rumsfeld, he jumped protectively in front of the general. He reprised his “little speech” for me. “There is no country in the world that has a larger interest in promoting respect for the Geneva Conventions as law than the United States,” he told Rumsfeld, according to his own account, “and there is no institution in the U.S. government that has a stronger interest than the Pentagon.” So Geneva had to be followed? “Obeying the Geneva Conventions is not optional,” Feith replied. “The Geneva Convention is a treaty in force. It is as much part of the supreme law of the United States as a statute.” Myers jumped in. “I agree completely with what Doug said and furthermore it is our military culture It’s not even a matter of whether it is reciprocated—it’s a matter of who we are.”
Feith was animated as he relived this moment. I remained puzzled. How had the administration gone from a commitment to Geneva, as suggested by the meeting with Rumsfeld, to the president’s declaration that none of the detainees had any rights under Geneva? It all turns on what you mean by “promoting respect” for Geneva, Feith explained. Geneva didn’t apply at all to al-Qaeda fighters, because they weren’t part of a state and therefore couldn’t claim rights under a treaty that was binding only on states. Geneva did apply to the Taliban, but by Geneva’s own terms Taliban fighters weren’t entitled to P.O.W. status, because they hadn’t worn uniforms or insignia. That would still leave the safety net provided by the rules reflected in Common Article 3— but detainees could not rely on this either, on the theory that its provisions applied only to “armed conflict not of an international character,” which the administration interpreted to mean civil war. This was new. In reaching this conclusion, the Bush administration simply abandoned all legal and customary precedent that regards Common Article 3 as a minimal bill of rights for everyone.
In the administration’s account there was no connection between the decision on Geneva and the new interrogation rules later approved by Rumsfeld for Detainee 063; its position on Geneva was dictated purely by the law itself. I asked Feith, just to be clear: Didn’t the administration’s approach mean that Geneva’s constraints on interrogation couldn’t be invoked by anyone at Guantánamo? “Oh yes, sure,” he shot back. Was that the intended result?, I asked. “Absolutely,” he replied. I asked again: Under the Geneva Conventions, no one at Guantánamo was entitled to any protection? “That’s the point,” Feith reiterated. As he saw it, either you were a detainee to whom Geneva didn’t apply or you were a detainee to whom Geneva applied but whose rights you couldn’t invoke. What was the difference for the purpose of interrogation?, I asked. Feith answered with a certain satisfaction, “It turns out, none. But that’s the point.”
That indeed was the point. The principled legal arguments were a fig leaf. The real reason for the Geneva decision, as Feith now made explicit, was the desire to interrogate these detainees with as few constraints as possible. Feith thought he’d found a clever way to do this, which on the one hand upheld Geneva as a matter of law—the speech he made to Myers and Rumsfeld—and on the other pulled the rug out from under it as a matter of reality. Feith’s argument was so clever that Myers continued to believe Geneva’s protections remained in force—he was “well and truly hoodwinked,” one seasoned observer of military affairs later told me.
Feith’s argument prevailed. On February 7, 2002, President Bush signed a memorandum that turned Guantánamo into a Geneva-free zone.
The words “security reasons” reminded me of remarks by Jim Haynes at the press conference with Gonzales: “Military necessity can sometimes allow … warfare to be conducted in ways that might infringe on the otherwise applicable articles of the Convention.” Haynes provided no legal authority for that proposition, and none exists. The minimum rights of detainees guaranteed by Geneva and the torture convention can never be overridden by claims of security or other military necessity. That is their whole purpose.
On the morning of Wednesday, January 15, [general counsel of the navy Alberto] Mora awoke determined to act. He would put his concerns in writing in a draft memorandum for Haynes and Dalton. He made three simple points. One: the majority of the Category II and III techniques violated domestic and international law and constituted, at a minimum, cruel and unusual treatment and, at worst, torture. Two: the legal analysis by Diane Beaver had to be rejected. Three: he “strongly non-concurred” with these interrogation techniques. He delivered the draft memo to Haynes’s office. Two hours later, at about five p.m. on January 15, Haynes called Mora. “I’m pleased to tell you the secretary has rescinded the authorization,” he said.
The abusive interrogation of al-Qahtani lasted a total of 54 days. It ended not on January 12, as the press was told in June 2004, but three days later, on January 15. In those final three days, knowing that the anything-goes legal regime might disappear at any moment, the interrogators made one last desperate push to get something useful out of al-Qahtani. They never did. By the end of the interrogation al-Qahtani, according to an army investigator, had “black coals for eyes.”
Meanwhile, unbeknownst to Dunlavey and the others at Guantánamo, interrogation issues had arisen in other quarters. In March 2002 a man named Abu Zubaydah, a high-ranking al-Qaeda official, was captured in Pakistan. C.I.A. director George Tenet wanted to interrogate him aggressively but worried about the risk of criminal prosecution. He had to await the completion of legal opinions by the Justice Department, a task that had been entrusted by Alberto Gonzales to Jay Bybee and John Yoo. “It took until August to get clear guidance on what Agency officers could legally do,” Tenet later wrote. The “clear guidance” came on August 1, 2002, in memos written by Bybee and Yoo, with input from Addington. The first memo was addressed to Gonzales, redefining torture and abandoning the definition set by the 1984 torture convention.
(e) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent....To me, it seems clear that Bush's legal advisers knew what they were counselling was violating the domestic and international laws against torture, and that their arguments wouldn't hold up to the slightest scrutiny. Hence the secrecy and the lying described by Sands. David Cole, writing in 2005:
Yoo's most famous piece of advice was in an August 2002 memorandum stating that the president cannot constitutionally be barred from ordering torture in wartime—even though the United States has signed and ratified a treaty absolutely forbidding torture under all circumstances, and even though Congress has passed a law pursuant to that treaty, which without any exceptions prohibits torture. Yoo reasoned that because the Constitution makes the president the "Commander-in-Chief," no law can restrict the actions he may take in pursuit of war. On this reasoning, the president would be entitled by the Constitution to resort to genocide if he wished.Another question would be whether the lawyers' participation rose to the level of "complicity" or "participation" in torture. Sands:
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.Apparently a number of the lawyers involved visited Guantanamo and witnessed interrogations.
On September 25 [2002], as the process of elaborating new interrogation techniques reached a critical point, a delegation of the administration’s most senior lawyers arrived at Guantánamo. The group included the president’s lawyer, Alberto Gonzales, who had by then received the Yoo-Bybee Memo; Vice President Cheney’s lawyer, David Addington, who had contributed to the writing of that memo; the C.I.A.’s John Rizzo, who had asked for a Justice Department sign-off on individual techniques, including waterboarding, and received the second (and still secret) Yoo-Bybee Memo; and Jim Haynes, Rumsfeld’s counsel. They were all well aware of al-Qahtani. “They wanted to know what we were doing to get to this guy,” Dunlavey told me, “and Addington was interested in how we were managing it.” I asked what they had to say. “They brought ideas with them which had been given from sources in D.C.,” Dunlavey said. “They came down to observe and talk.” Throughout this whole period, Dunlavey went on, Rumsfeld was “directly and regularly involved.”dios: And again I would point out that people are assuming their conclusion. They would only approve "torture" which was "legal." Well, assuming that the advice was correct, it was not torture.
Jim Haynes and Donald Rumsfeld may have reversed themselves about al-Qahtani in January 2003, but the death blow to the administration’s outlook did not occur for three more years. It came on June 29, 2006, with the U.S. Supreme Court’s ruling in Hamdan v. Rumsfeld, holding that Guantánamo detainees were entitled to the protections provided under Geneva’s Common Article 3. The Court invoked the legal precedents that had been sidestepped by Douglas Feith and John Yoo, and laid bare the blatant illegality of al-Qahtani’s interrogation. A colleague having lunch with Haynes that day described him as looking “shocked” when the news arrived, adding, “He just went pale.” Justice Anthony Kennedy, joining the majority, pointedly observed that “violations of Common Article 3 are considered ‘war crimes.’ ”Smedleyman: how should it be done? How should we pursue the Bush administration legally and successfully?
As the consequences of Hamdan sank in, the instinct for self-preservation asserted itself. The lawyers got busy. Within four months President Bush signed into law the Military Commissions Act. This created a new legal defense against lawsuits for misconduct arising from the “detention and interrogation of aliens” between September 11, 2001, and December 30, 2005. That covered the interrogation of al-Qahtani, and no doubt much else. Signing the bill on October 17, 2006, President Bush explained that it provided “legal protections that ensure our military and intelligence personnel will not have to fear lawsuits filed by terrorists simply for doing their jobs.”That isn't to say that any of these officials are likely to be arrested if they travel to the EU. I think the most likely outcome is that it'll be clear what happened and who was responsible, even if they can't be punished.
In a word, the interrogators and their superiors were granted immunity from prosecution. Some of the lawyers who contributed to this legislation were immunizing themselves. The hitch, and it is a big one, is that the immunity is good only within the borders of the United States.
I have asserted that our policy of cruelty has harmed our nation's legal, foreign policy, and national security interests. Let's examine how it has done so and what the damage has been. ...
Cruelty created a deep legal fissure between ourselves and our traditional allies, because none of them would follow the United States into the swamp of cruelty. And cruelty has exposed those U.S. policymakers and officials engaged in the practice to potential civil and criminal liability overseas. It has engendered a probability that litigation and prosecution overseas targeting U.S. officials will complicate our international relations for years to come. ...
Our use of the term "war" should not confuse us into thinking that this conflict will be won primarily by military means. The geographic dispersion of our enemies, the difficulty in locating them, and the underlying ideological nature of our adversaries' actions—all point to a conflict in which our military actions must necessarily be subordinated to our political strategy.
This political strategy should be geared to building and maintaining large, unified alliances capable of cooperating across this spectrum of conflict. We will not be able to build this alliance unless we are able to articulate a set of consistent political objectives, and prosecute the war using methods consistent with these objectives. We will not be able to build the alliance either, unless we construct a common legal architecture with our traditional allies. ...
Almost every European politician who sought to ally himself and his country with the United States in the war on terror incurred a political penalty—or experienced political difficulties, as Blair and Aznar demonstrated—as a result of that allegiance. And, because cruel treatment of prisoners constituted a criminal act in every European jurisdiction, there must be few European government officials, including military intelligence or police officials, who do not ask themselves at some point whether cooperating with the United States in the war on terror might not make them accomplices or abettors in criminal activity or expose them to civil liability.
All of these factors contributed to the difficulties our nation has experienced in forging the strongest possible alliance in this war. Because this is so, we consequently weakened our defenses. Whatever intelligence we obtain through the use of harsh interrogation tactics, on the whole these policies and practices greatly damaged our overall effectiveness and impaired our military intelligence capabilities in the war on terror.
An investigation by H. Marshall Jarrett, head of the Justice Department’s Office of Professional Responsibility, reached “damning” conclusions about numerous cases of “misconduct” in the advice from John Yoo and other lawyers in the Office of Legal Counsel during the Bush administration, according to legal sources familiar with the report’s contents.
OPR investigators determined that Yoo blurred the lines between an attorney charged with providing independent legal advice to the White House and a policy advocate who was working to advance the administration’s goals, said the sources who spoke on condition of anonymity because the contents of the report are still classified.
Mr. Jarrett’s letter, dated Monday, came in reply to a Feb. 12 letter from Mr. Durbin and Mr. Whitehouse to him and the Justice Department’s inspector general, Glenn A. Fine, seeking an investigation into the department’s legal approval of waterboarding.Whitehouse and Durban both have law degrees. I don't know if they favor criminal indictment or not, but they certainly don't seem to think this was all just hunky-dory run of the mill crap.
“Despite the virtually unanimous consensus of legal scholars and the overwhelming weight of legal precedent that waterboarding is illegal,” the senators wrote, “certain Justice Department officials, operating behind a veil of secrecy, concluded that the use of waterboarding is lawful. We believe it is appropriate for you to investigate the conduct of these Justice Department officials.”
(U) On April 16, 2003, less than two weeks after the Working Group completed its report, the Secretary authorized the use of 24 specific interrogation techniques for use at GTMO. While the authorization included such techniques as dietary manipulation, environmental manipulation, and sleep adjustment, it was silent on many of the techniques in the Working Group report. Secretary Rumsfeld’s memo said, however, that “If, in your view, you require additional interrogation techniques for a particular detainee, you should provide me, via the Chairman of the Joint Chiefs of Staff, a written request describing the proposed technique, recommended safeguards, and the rationale for applying it with an identified detainee.”There's a section titled "Aggressive Techniques Authorized in Afghanistan and Iraq (U)", but it doesn't state that Rumsfeld approved the "enhanced interrogation" at Abu Ghraib.
(U) Just a few months later, one such request for “additional interrogation techniques” arrived on Secretary Rumsfeld’s desk. The detainee was Mohamedou Ould Slahi. While documents relating to the interrogation plan for Slahi remain classified, a May 2008 report from the Department of Justice Inspector General includes declassified information suggesting the plan included hooding Slahi and subjecting him to sensory deprivation and “sleep adjustment.” The Inspector General’s report says that an FBI agent who saw a draft of the interrogation plan said it was similar to Khatani’s interrogation plan. Secretary Rumsfeld approved the Slahi plan on August 13, 2003.
Correspondents say that while Mr Conde-Pumpido's recommendation reduces the chances of Judge Garzon launching an investigation, he could still do so anyway.
« Older Microscope Imaging Station... | Make your own Choco Taco.... Newer »
This thread has been archived and is closed to new comments
“…the lawyers, and the victims they represent, argue that every step Garzon takes is at the very least a warning to rulers that they are accountable for their human rights abuses”.
posted by adamvasco at 11:30 AM on March 30 [1 favorite has favorites]