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View Diary: Interrogator who Located Zarqawi Rips U.S. Torture Policy (224 comments)

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  •  There's something called the War Crimes Act (27+ / 0-)

    and the Torture Act.  They don't require the ICC in the Hague to prosecute.  It's right there in the Federal Code: http://www.humanrightsfirst.org/...

    The War Crimes Act of 1996
    18 U.S.C. § 2441

    The War Crimes Act provides federal jurisdiction over prosecutions for "war crimes," which the law defines as "grave breaches" of the 1949 Geneva Conventions, violations of Common Article 3 to the Geneva Conventions, and certain other offenses. These so-called "grave breaches" can include offenses against noncombatants, or surrendered or injured combatants, involving "willful killing, torture or inhuman treatment . . . [or] willfully causing great suffering or serious injury to body or health."

    The Act applies whether the crimes are committed "inside or outside the United States," and whether the "person committing such war crime...is a member of the Armed Forces of the United States or a national of the United States." (It does not apply to non-citizens or nationals of the United States.) The statute also applies if the victim is in one of these categories. War crimes committed in the course of declared or undeclared armed conflicts, or during military occupation, are covered by the Act.

    The Torture Act of 2000
    18 U.S.C. §§ 2340, 2340A, and 2340B

    The Torture Act makes it a federal crime for any U.S. national (or anyone later found present in the United States) to commit torture or conspire or attempt to commit torture outside the United States. Crimes under the Torture Act are punishable by fine and/or imprisonment up to 20 years; or, if the victim dies, by life imprisonment or death.

    Although the Torture Act is intended to implement the United States' treaty obligations under the Convention Against Torture (which the United States ratified with certain reservations in 1994), there are some important differences between the definition of "torture" under U.S. law and the concept of torture in the Convention, particularly with regard to "mental pain or suffering," which is more narrowly defined in the Torture Act.

    Just convene a Grand Jury in the US District Court for the District of Columbia, where proper jurisdiction lies, and get on with it.

    •  The operative word there is "willful"-- (5+ / 0-)

      i.e. there has to be the intent to injure or kill.  If those results are merely incidental to extracting information or "protecting the American people," then there's no criminal intent.

      It's the difference between tearing the wings off a fly to see it squirm and doing it to collect the pheromone sacs for a science experiment.  Humans are really good at defining the moral value of their acts by their intent.

      It's logical.  After all, there's a difference between cutting off a man's leg to keep the gangrene from spreading and hacking it off in anger or to keep him from attacking.  And when it's to keep him from attacking someone else, it's even more complicated--especially if you've been misled about what he's actually doing.

      How do you tell a predator from a protector? The predator will eat you sooner rather than later.

      by hannah on Sun Nov 30, 2008 at 04:53:13 AM PST

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      •  A competent prosecutor could convince a jury (18+ / 0-)

        that these crimes were willful.

        As if the photos of Abu Ghraib documented some sort of accident site?

        Besides, the element of intent is established by the   willfulness to commit harm and suffering - that it had the purpose of extracting militarily useful information is no excuse.  That's well established in precedent in international human rights cases already prosecuted.  

      •  Sorry Hannah, but no. You've taken one word (24+ / 0-)

        from the wording of the acts quoted and used it as a legal fig leaf against criminal intent.

        It will not stand. Just as 'just following orders' didn't stand.

        The architects of the torture policies of chimpy's maladministration are guilty of war crimes and crimes against humanity, and there is nothing a carefully worded legal defense can do about it.

        Let us think the unthinkable, let us do the undoable. Let us prepare to grapple with the ineffable itself, and see if we may not eff it after all. -Adams

        by Clive all hat no horse Rodeo on Sun Nov 30, 2008 at 05:08:28 AM PST

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        •  Like to see it (4+ / 0-)

          and like to think torture act applies

          it's more than just hannah's "willful" though:

          there are some important differences between the definition of "torture" under U.S. law and the concept of torture in the Convention, particularly with regard to "mental pain or suffering," which is more narrowly defined in the Torture Act.

          we can hope john yoo's efforts have been or soon will be completely discredited.

          Love is the source, substance and future of all being. --St. Francis

          by ksingh on Sun Nov 30, 2008 at 07:47:09 AM PST

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        •  "just following orders" (2+ / 0-)
          Recommended by:
          ibonewits, linkage

          implies an awareness that the actions were wrong.

          When the only commandment and standard or behavior is obedience, then that awareness is absent.  Which, of course, was the whole idea of the faith-based regime.  You could almost say that both intent and consequence are erased as moral standards.

          There's a reason conservatives seem fixated on the law.  They see it as an instrument to either gain them or lose them dominion.  And dominion is the goal.  Let there be no doubt about that.

          How do you tell a predator from a protector? The predator will eat you sooner rather than later.

          by hannah on Sun Nov 30, 2008 at 08:13:09 AM PST

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          •  I'm confused. The 'just following orders' defense (2+ / 0-)
            Recommended by:
            NonnyO, linkage

            doesn't imply prior knowledge of guilt at all. All it does is admit lack of concern for the outcomes of actions. It is no defense against culpability.

            Let us think the unthinkable, let us do the undoable. Let us prepare to grapple with the ineffable itself, and see if we may not eff it after all. -Adams

            by Clive all hat no horse Rodeo on Sun Nov 30, 2008 at 09:13:36 AM PST

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            •  "Just following orders" is NOT a just defense (1+ / 0-)

              ... for committing war crimes.

              That was the determination at Nuremberg when defendants who had committed crimes at concentration camps tried to use it.

              That's the whole basis of the clause in the military code of conduct that says if a commanding officer gives an order that is known to be illegal or immoral, the soldiers receiving the order have a right, a duty, actually, not to follow illegal or immoral orders.

              Ergo, if a grunt soldier is told to torture or kill a prisoner, or if they are ordered into the battlefield in an illegal war, they have a right and a duty to refuse to follow those orders (even from the so-called Commander-in-Chief, a role the president does NOT play in peace-time, but only when there's a war - we do NOT elect a commander-in-chief when we elect a president, as idiot McCain/Palin and other Repuke surrogates tried to say/imply... they aren't paying attention to the wording in the Constitution).

              That is the defense Lt. Ehren Watada used.  He knew the war in Iraq was/is illegal, it is a war crime, and he staunchly said he refused to participate in the war crime.  that's why his trial had to basically be thrown out of court.  He was following the military code of conduct that says a soldier has a right and a duty to refuse to follow illegal or immoral orders.  (Watada is not against defensive wars; the invasion and occupaiton of Iraq is/was a war of choice, and it was an act of aggression, done for no good reason whatsoever, and that is a war crime under the Nuremberg Judgment and the Geneva Conventions.)

              If the entire US military in Iraq decided to tell their superior officers to go Cheney themselves, that they are refusing to participate in the war crime being perpetrated in Iraq, there's not a damned thing the CO's could do about it.  And they'd have the whole of the Nuremberg Judgment and the Geneva Conventions to back them up (the latter are incorporated into the US Constitution under the treaties clause and are thus the 'law of the land').

              (¯`*._(¯`*._(-IMPEACH-)_.*´¯)_.*´¯)

              by NonnyO on Mon Dec 01, 2008 at 01:18:28 AM PST

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      •  The War Crimes Act prohibites ... (1+ / 0-)
        Recommended by:
        NonnyO
        willful violations of common article 3 of the Geneva Conventions or "grave breaches" so any willful grave breach is a crime under the war crimes act no matter if it is to extract information or not.

        Furthermore, torture under the "CAT" is torture if you had "knowledge or notice" that your actions would cause severe mental pain and suffering.

        The ICRC has called the Bush practices "tantamount to torture".

        Honor bound to defend freedom. Freedom is long-standing army regulations.

        by RichardG on Mon Dec 01, 2008 at 12:25:40 AM PST

        [ Parent ]

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