Sometimes, events come together in a perfect storm. This week, the International Criminal Court is meeting in New York. The Senate report released today makes it clear--we knew this already--that George W. Bush and Dick Cheney actively oversaw a program of torture. The ICC, then, has ample evidence, and exquisite timing, to file an indictment against those two and their accomplices.
This is simply consistent with long-held international bans on torture. Explained here:
Q: What is torture?
The Convention against Torture defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession…." (Art. 1). It may be "inflicted by or at the instigation of or acquiescence of a public official or other person acting in an official capacity."
The prohibition against torture under international law applies to many measures—e.g. beating on the soles of the feet; electric shock applied to genitals and nipples; rape; near drowning through submersion in water; near suffocation by plastic bags tied around the head; burning; whipping; needles inserted under fingernails; mutilation; hanging by feet or hands for prolonged periods.
International law also prohibits mistreatment that does not meet the definition of torture, either because less severe physical or mental pain is inflicted, or because the necessary purpose of the ill-treatment is not present. It affirms the right of every person not to be subjected to cruel, inhuman or degrading treatment. Examples of such prohibited mistreatment include being forced to stand spread eagled against the wall; being subjected to bright lights or blindfolding; being subjected to continuous loud noise; being deprived of sleep, food or drink; being subjected to forced constant standing or crouching; or violent shaking. In essence, any form of physical treatment used to intimidate, coerce or "break" a person during an interrogation constitutes prohibited ill-treatment. If these practices are intense enough, prolonged in duration, or combined with other measures that result in severe pain or suffering, they can qualify as torture.
The prohibition against torture as well as cruel, inhuman or degrading treatment is not limited to acts causing physical pain or injury. It includes acts that cause mental suffering—e.g. through threats against family or loved ones. As the U.S. Supreme Court has recognized, "coercion can be mental as well as physical…the blood of the accused is not the only hallmark of an unconstitutional inquisition" Miranda v. Arizona, 384 U.S. 436, 448, (1966) citing Blackburn v. State of Alabama, 361 U.S. 199 (1960). As discussed below, the use of mind-altering drugs to compel a person to provide information would at least amount to inhuman or degrading treatment under the Convention against Torture.
And:
Q: What laws prohibit torture?
Torture is universally condemned, and whatever its actual practice, no country publicly supports torture or opposes its eradication. The prohibition against torture is well established under customary international law as jus cogens; that is, it has the highest standing in customary law and is so fundamental as to supercede all other treaties and customary laws (except laws that are also jus cogens). Criminal acts that are jus cogens are subject to universal jurisdiction, meaning that any state can exercise its jurisdiction, regardless of where the crime took place, the nationality of the perpetrator or the nationality of the victim.
In 1948, following the horrific abuses of World War II, the General Assembly of the United Nations inserted the prohibition against torture in the landmark Universal Declaration of Human Rights. Article 5 states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." This ban on torture and other ill-treatment has subsequently been incorporated into the extensive network of international and regional human rights treaties. It is contained in Article 7 of the International Covenant on Civil and Political Rights (ICCPR), ratified by 153 countries, including the United States in 1992, and in the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture), ratified by 136 countries, including the United States in 1994. It is also codified in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the African Charter on Human and Peoples' Rights, and the American Convention on Human Rights.
The prohibition against torture is also fundamental to humanitarian law (also known as the laws of war), which governs the conduct of parties during armed conflict. An important element of international humanitarian law is the duty to protect the life, health and safety of civilians and other noncombatants, including soldiers who are captured or who have laid down their arms. Torture of such protected persons is absolutely forbidden. Common Article 3 to the Geneva Conventions, for example, bans "violence of life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" as well as "outrages upon personal dignity, in particular humiliating and degrading treatment." The use of force to obtain information is specifically prohibited in Article 31 of the Fourth Geneva Convention: "No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties."
According to the 1999 Initial Report of the United States to the U.N. Committee against Torture, in the United States, the use of torture "is categorically denounced as a matter of policy and as a tool of state authority…No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form…Every act of torture within the meaning of the [Convention against Torture] is illegal under existing federal and state law, and any individual who commits such an act is subject to penal sanctions as specified in criminal statutes."
Although no single provision of the U.S. Constitution expressly prohibits torture as a means to extract information, secure a confession, punish for an act committed, intimidate or coerce, or for any reason based on discrimination, there is no question that torture violates rights established by the Bill of Rights. The U.S. courts have located constitutional protections against interrogations under torture in the Fourth Amendment's right to be free of unreasonable search or seizure (which encompasses the right not be abused by the police), the Fifth Amendment's right against self-incrimination (which encompasses the right to remain silent during interrogations), the Fifth and the Fourteenth Amendments' guarantees of due process (ensuring fundamental fairness in criminal justice system), and the Eighth Amendment's right to be free of cruel or unusual punishment. In numerous cases, the U.S. Supreme Court has condemned the use of force amounting to torture or other forms of ill treatment during interrogations, including such practices as whipping, slapping, depriving a victim of food, water, or sleep, keeping him naked or in a small cell for prolonged periods, holding a gun to his head, or threatening him with mob violence. Torture would also violate state constitutions, whose provisions generally parallel the protections set forth in the federal Bill of Rights.
Article 4 of the Convention against Torture obligates state parties to ensure that all acts of torture are criminal offenses under domestic legislation. Although there is no single federal law specifically criminalizing torture, the United States has insisted that existing federal and state laws render illegal any act falling with the Convention against Torture's definition of torture. In the United States, most criminal laws are state rather than federal. Although a few states have laws addressing torture as such, each state has laws that criminalize violence against persons (e.g. assault, rape), regardless of whether committed by public officials or private individuals. In addition, states typically have specific laws that criminalize acts by public officials that constitute abuses of authority, "official oppression," or the unlawful infliction of bodily injury. The principal federal law that would apply to torture against detainees is 18 U.S.C. 242, which makes it a criminal offense for any public official to willfully to deprive a person of any right protected by the Constitution or laws of the United States.
Q: Do non-citizens in the U.S. have the same right not to be tortured as U.S. citizens?
Yes. Neither international nor domestic law conditions the right not to be subjected to torture on citizenship or nationality. No detainee held by U.S. authorities—regardless of nationality, regardless of whether held in the U.S. or in another country, and regardless of whether the person is deemed a combatant or civilian—may be tortured. All applicable international law applies to U.S. officials operating abroad, including the Convention against Torture and the Geneva Conventions. The prohibition against torture is universal and covers all countries both regarding U.S. citizens and persons of other nationalities.[emphasis fucking added with gusto]
Honestly, today, I lost a lot of respect for the ACLU because of
this moronic op-ed that calls for a pardon for these two war criminals. Absolutely pathetic. Spineless.
Indict them.
PEOPLE: I've created this PETITION to the ICC. Can this community launch this and make it go viral? it is a simple demand:
The United States Senate Intelligence report reaffirms that U.S. President George W. Bush and Vice President Dick Cheney oversaw a program of torture, executed by CIA Director George J. Tenet and Defense Secretary Donald H. Rumsfeld.
Torture is prohibited by international law.
Therefore, we the undersigned, petition the International Criminal Court to issue indictments against George W. Bush and Dick Cheney, as well as George J. Tenet and Donald Rumsfeld.
Via
Kovie in the comments (H/T):
1 -
Foreword, Findings and Conclusions, and Executive Summary
2 - Additional Views
3 - Minority and Additional Minority Views