NLG calls for investigation into Bush Admin. & Torture Memos

The NLG has issued a White Paper explaining why the memos, which purported to give objective legal advice, subject all those involved to prosecution under international and U.S. domestic law. This includes people who ordered the torture, approved it or gave advice to justify it.

Guild President Marjorie Cohn testified on May 6 before the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Judiciary Committee, that some lawyers in the Department of Justice were "part of a common plan to violate U.S. and international laws outlawing torture."

The 14-page White Paper details the ways in which the lawyers, including Yoo, Jay Bybee, David Addington, and William Haynes, counseled the White House on how to get away with war crimes.

common dreams

NLG

I am soooo sick of hearing about people "CALLING for investigations or CALLING for impeachment proceedings". I am really starting to believe that this is merely a carrot being dangled in-front of the public to keep us thinking that something will be done. When the reality is that nothing will be done. It seems to me that the majority of people that have read Yoo's memo agree that it is essentially showing guilt of war crimes. Yet, people are only CALLING for an investigation. Freaking START an investigation and not by some biased party like the sham that was the 9/11 commission.

Like I always say I'll believe it when I see it.

Okay here's the first two pages of the "white paper"

WHITE PAPER ON THE LAW OF TORTURE AND HOLDING ACCOUNTABLE THOSE WHO ARE COMPLICIT IN APPROVING TORTURE
OF PERSONS IN U.S. CUSTODY

National Lawyers Guild
International Association of Democratic Lawyers

This paper provides the background to the legal issues underpinning the call by the National Lawyers Guild (NLG) to prosecute and dismiss from their jobs people like then Deputy Assistant Attorney General John Choon Yoo,  then Assistant Attorney General Jay Bybee  and others who participated in the drafting of memoranda claimed to be based on sound legal precedent that purported to authorize the commitment of acts of torture or other cruel, inhuman or degrading treatment  on behalf of the U.S. government. The memoranda were written at the request of high ranking U.S. officials in order to insulate them from the risk of future prosecution for subjecting detainees in U.S. custody to torture. By logical extension, this paper explains why all those who approved the use of torture and committed it—whether ordering it, approving it or giving purported legal advice to justify it—are subject to prosecution under international and U.S. domestic law.

The prohibition of torture is a jus cogens norm (these are principles of international law so fundamental that no nation may ignore them or attempt to contract out of them through treaties). The United States has consistently prohibited the use of torture through its Constitution, laws, executive statements and judicial decisions and by ratifying international treaties that prohibit it.  The prohibition against torture applies to all persons in U.S. custody in times of peace, armed conflict, or state of emergency.  In other words, the prohibition is absolute. However, the legal memoranda drafted by government lawyers purposely or recklessly misconstrued and/or ignored jus cogens, customary international law, and various U.S. treaty obligations in order to justify the unjustifiable, claiming that clearly unlawful interrogation "techniques" were lawful.

I.   THE PROHIBITION AGAINST TORTURE IS A JUS COGENS NORM.

The prohibition against torture is a jus cogens norm.   Jus cogens are defined as norms "accepted and recognized by the international community of states as a whole ... from which no derogation is permitted..."   In international criminal law, the legal duties that arise in connection with crimes designated as violations of jus cogens norms include the duty to prosecute or extradite, the non-applicability of statutes of limitations, the non-applicability of any immunities up to and including those enjoyed by Heads of State, the non-applicability of the defense of "obedience to superior orders" and universal jurisdiction over perpetrators of such crimes. Other jus cogens norms include the prohibitions against slavery, genocide, and wars of aggression.  Jus cogens norms, like customary international law norms, are legally binding. No affirmative executive act may undercut the force of these prohibitions nor may a legislature legalize crimes designated as violating jus cogens norms or immunizing from prosecution those responsible. Jus cogens norms differ from norms which have attained the status of customary international law by dint of their universal and non-derogable character and the fact that jus cogens norms are peremptory, that is, they trump any other inconsistent international law.

While legal scholars often differ as to what specific acts can be defined as being subject to jus cogens norms, it is beyond dispute that the prohibition against torture has attained that status.   The right to be free from torture and other cruel and inhuman treatment was recognized in Article 5 of the Universal Declaration of Human Rights (1948). It is contained in Article 7 of the International Covenant on Civil and Political Rights and Article 5(2) of the American Convention on Human Rights. Torture is also outlawed under the Rome Statute which created the International Criminal Court (ICC). The U.S. Army Field Manual 34-52 makes clear that techniques of interrogation are to be established under the rules laid out by The Hague and Geneva Conventions. Field Manual 34-52 is unambiguous in its prohibition on the use of torture and any other force in interrogation of prisoners.

Article 17 of the 1949 Geneva Convention III prohibits physical or mental torture and any other coercive action against prisoners of war, and Article 130 classifies violation of Article 17 as a grave breach of the Geneva Conventions. The Fourth Geneva Convention prohibits an occupying power from torturing protected persons (Article 32) or engaging in all other "measures of brutality" (Article 283). Common Article 3 (that is, Article 3 in each of the conventions) prohibits torture as well as the separate crimes of inhuman, humiliating and degrading treatment against those who are taking no active part in hostilities, members of armed forces who have laid down their arms, or those who are hors de combat.
 
The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention or CAT) codified the prohibitions against torture into specific rules. The Convention "prohibits torture and other acts of cruel, inhuman, or degrading treatment or punishment." It criminalizes torture and seeks to end impunity for any torturer by denying him all possible refuge. The Convention is categorical: "No exceptional circumstances whatsoever, whether a state of war, or a threat or war, internal political instability or any other public emergency, may be invoked as a justification for torture."

The prohibition against torture has attained jus cogens status. This means we must examine the actions of Yoo and the others who sought to provide legal cover for acts in violation of the prohibition through a lens which acknowledges that they violated a norm which the world has universally declared to be part of the highest and most compelling law. Because it is a jus cogens norm, no world leader has the right to resort to torture, nor may a legislature attempt to legalize it, nor may an official of the government use it. Indeed, if the rule of law is to have real meaning, it demands severe consequences for anyone who transgresses.

•  NLG rocks.

  

  by Code Breaker on Tue May 13, 2008 at 07:17:40 PM PDT

  •  yeah it's a repost

    but hell sounds like it needs to be

    by Code Breaker on Tue May 13, 2008 at 09:08:18 PM PDT

•  The Most Important Part

  Watch the hearing a couple times on CSpan and this last paragraph got to those Congressmen, it was as if they had never heard the term before. I admit I had never hear it before.

  The prohibition against torture has attained jus cogens status. This means we must examine the actions of Yoo and the others who sought to provide legal cover for acts in violation of the prohibition through a lens which acknowledges that they violated a norm which the world has universally declared to be part of the highest and most compelling law. Because it is a jus cogens norm, no world leader has the right to resort to torture, nor may a legislature attempt to legalize it, nor may an official of the government use it. Indeed, if the rule of law is to have real meaning, it demands severe consequences for anyone who transgresses.

  by SmileySam on Tue May 13, 2008 at 09:11:29 PM PDT

  •  if your talking about jus cogens here u go

    A peremptory norm (also called jus cogens or ius cogens, Latin for "compelling law") is a fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted.

    There is no clear agreement regarding precisely which norms are jus cogens — or indeed how a norm reaches the status of jus cogens — but it is generally accepted that jus cogens includes the prohibition of genocide, piracy, slaving in general (to include slavery as well as the slave trade), torture, and wars of aggression and territorial aggrandizement

    Jus Cogens

    by Code Breaker on Tue May 13, 2008 at 09:15:22 PM PDT

•  Thanks for the diary.

  And the education on jus cogens.  I hope this gets some coverage.  This last week, starting with the last paragraphs of Phillipe Sands article in Vanity Fair, I've started to think some people may actually come to justice.  I hope it's the politicians as well as the lawyers, though.

  by geomoo on Tue May 13, 2008 at 09:22:47 PM PDT

•  Go fellow Kossacks and spread the word

  Spread it as you would spread so much soft butter on warm toast.

  by Code Breaker on Tue May 13, 2008 at 09:29:23 PM PDT

  •  Yes. Yes. Yes! n/t

    by Somewhereinasia on Tue May 13, 2008 at 09:30:33 PM PDT

•  If anybody wants it

  I have the entire 14 page "white paper" my email is up on my page or just got to NLG.org

  by Code Breaker on Tue May 13, 2008 at 09:37:09 PM PDT

•  oh and try bombarding newspapers

  local tv stations, national news stations, etc. if you really want it out there

  by Code Breaker on Tue May 13, 2008 at 09:38:28 PM PDT

•  Representatives who endorsed this should

  be treated in the same manner that other war criminals are treated, or we are a banana republic and our standing in the world means nothing.

  by Septima on Tue May 13, 2008 at 10:00:48 PM PDT

•  This is great from Wikipedia:

  Torture
  The International Criminal Tribunal for the Former Yugoslavia stated in Prosecutor v. Furundžija that there is a jus cogens for the prohibition against torture.[10] It also stated that every State is entitled "to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction."[11] Therefore, there is universal jurisdiction over torture. The rationale for this is that "the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind."[12]

  here

  The full investigation of these apparent crimes and their prosecution would be one way of defusing the undeniable animosity the US has engendered against itself throughout the world.  That would be one way to make the citizens safer.

  by Somewhereinasia on Tue May 13, 2008 at 11:34:09 PM PDT