The Hamdan Decision reversed Bush's executive orders arguing that the Geneva conventions did in fact apply for Gitmo detainees Justice Kennedy Stated.
Article 3 of the Geneva Convention (III)Relative to the Treatment of Prisoners of War,Aug. 12,1949, [1955 ] 6 U..S.T.3316,3318,T.I.A.S.No.3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law. See id.,at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered "war crimes," punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U.S.C.§2441. There should be no doubt,then,that Common Article 3 is part of the law of war as that term is used in §821.
Here in this Press Conference Bush argues, in his response to Hamdan (which was really an attempt to restore his "protection from prosecution").
Reporter: What do you say to the argument that your proposal is just seeking support for torture, coerced evidence and secret hearings...?
Bush: This debate is occurring because of the Supreme Court ruling that we must conduct ourselves under Common Article 3 of the Geneva Conventions. And that Common Article 3 says that "there will be no outrages upon human dignity". It's a,.. it's like... it's very vague. What does that mean? "Outrages upon human dignity." It's a statement that is wide open to interpretation. And what I'm proposing is that there be clarity in the the law. So that our professionals will have on doubt that that which they are doing is legal.
So all he did was provide "clarity"?
Not exactly.
Prior to the Bush's legislation, which was the Military Commissions Act, the War Crimes Act was triggered by any "Grave Breach of Geneva" but it didn't list a specific set of circumstances where that would occur. The reason why is that Geneva itself doesn't get specific, because they knew if they did create a specific list of actions and circumstances somebody would come up with a specific circumstance not listed and then claim it DIDN'T APPLY.
And that is exactly what the Bush Administration did. The War Crimes Act as it's now written gives a list of things that are included, such as Murder, Rape and Mutilation. It even includes prohibitions against Torture, kind of...
(A) Torture.— The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
(B) Cruel or inhuman treatment.— The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.
Seems fine right? Yeah, except for this right here.
(D) the term “serious physical pain or suffering” shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves—
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or
(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty; and
With this language they've raised the bar on torture high enough to walk an elephant under it.
Most people's response to the MCA was to note it's removal of Habeas Corpus for Gitmo Detainees as you can see here with Keith does here in this Special Comment.
Yet most of the critics, from Glen Greenwald to Jeremy Scahill have hardly noticed what the MCA also did to the War Crimes Act, the Torture Statute and even the Army Field Manual (which used to ban waterboarding, but now doesn't). It's not about what's in the law anymore, it's about what's missing and that's how Bush was able to slip this in under the radar.
What the MCA did here is apply same arguments that nearly got John Yoo and Jay Bybee disbarred into the actual law. This means that the 17 techniques authorized by Donald Rumsfeld for use in Gitmo, and later exported to Abu Ghraib such as Slapping, Sleep Deprivation, Nudity, Fear Induction, Use of Dogs, Stress Positions, Hypothermia, Excessive Noise are all currently LEGAL under U.S. Law.
Anything is legal as long as the subject doesn't die, lose a limb or an organ.
But some detainees did die. Extensive use of stress positions can lead to renal failure and death. (In many ways, this is exactly what happened to Keith Olbermann's dad after he was stuck in a kneeling position for over 24 hours - after that his kidney's began to shutdown) Waterboarding or other tactics can lead to asphyxiation and "dry drowning" where the esophagus larynx involuntarily closes blocking the ability to take in air. (To avoid this during the 187 times that KSM was waterboarded a Doctor was kept on standby to do an emergency tracheotomy). And excessive sleep deprivation can lead to Psychosis which some argue that Jose Padilla is suffering from.
Working within the confines of the remaining law, Special Prosecutor John Durham has compelled a Grand Jury to look into the death of several detainees at Abu Ghraib at the hands of CIA officials which went clearly outside the confines of the DOJ memos and the law.
But that's just about all they can do under the current law.
The best we could hope for against Rumsfeld, Bush or Cheney is a conspiracy charge under the War Crimes or Torture Acts (which was also modified)- but that conspiracy has to be based on a plan for violating the law - and as it turns out all that they authorized is now Perfectly Legal and Sanctioned by Congress.
Their conspiracy going back to the original memo by Gonzales to Bush was to not get prosecuted, and so far that's worked exactly as planned.
The only way things can change is if the law changes. Yet there is a snag, and not being a attorney myself I have to wonder if at that point their crimes could still be sanctioned under the ex post facto rule which under the constitution prohibits laws being made that create retroactive Criminality. If the action was "legal" at the time it occurred, changing the law can't make it retroactively illegal under ex post facto - it can only make current or future actions illegal.
The problem with that that I can see though is that the Military Commission Act didn't pass until 2006, years after most of the actions took place in 2002-2003, so under the law as it stood at the time it was illegal and only sanctioned by Bush and the DOJ's memos, so it might be possible that ex post facto protections wouldn't apply if Congress simply repealed the Military Commissions Act. Then again it still might, as a layman, I'm not sure.
Another possibility, which might dodge that bullet, is if a torture lawsuit reaches the Supreme court and reverses the MCA on the Torture question just as Hamdan reversed Bush's original executive order and restored Geneva protections to Gitmo detainees, and the later Boumediene v Bush decision in 2008 reversed part of the MCA and restored their Habeas Corpus protections.
But there's yet another roadblock.
Detainees who may have been tortured Can't Sue the government over it due to the Graham-Levin Amendment to the Detainee Treatment Act.
..the legislation containing the McCain Amendment currently includes another provision -- the Graham-Levin Amendment -- that would deny the five hundred-some detainees in Guantánamo Bay the ability to bring legal action seeking relief from the use of torture or cruel and inhumane treatment. And it implicitly authorizes the Department of Defense to consider evidence obtained through torture or other inhumane treatment in assessing the status of detainees held in Guantánamo Bay.
So that's a problem.
KSM can't sue against the MCA because of the DTA. Neither can Zubahdah, or any of the "High Value" detainees who suffered the worst treatment.
But someone like Bradley Manning, as a U.S. Citizen could in fact sue - unfortunately so far he hasn't. (There is a Manning suit by a friend, but it's about an illegal search of his computer, not Manning's treatment)
Yet still there actually is a current lawsuit against Rumsfeld for Torture, Vance v Rumsfeld which so far has been moving forward past the Appeals Court as of just last month. The way that this has avoided the Graham-Levin Amendment is because it involves an American Citizen who was tortured overseas.
A lawsuit accusing former Defense Secretary Donald Rumsfeld of personal responsibility for U.S. forces allegedly torturing two American whistleblowers who worked for an Iraqi contracting firm will be allowed to move forward, a federal appeals court ruled Monday.
In their lawsuit, Donald Vance and Nathan Ertel claim U.S. forces detained them in 2006 after they alleged illegal activities by the Iraqi-owned company they worked for, Shield Group Security.
Among the methods of torture used against them during several weeks in military camps was sleep deprivation and a practice known as "walling," in which subjects are blindfolded and walked into walls, according to the lawsuit.
The lawsuit alleges Rumsfeld personally participated in approving the methods for use by the U.S. military in Iraq, making Rumsfeld responsible, it argues, for what happened to Vance and Ertel.
And there's ample evidence that Rumsfeld did approve the methods used against them. He signed a memo that did exactly that.
A Defense Department spokesman said last night that the March 2003 memo represented "a scholarly effort to define the perimeters of the law" but added: "What is legal and what is put into practice is a different story." Pentagon officials said the group examined at least 35 interrogation techniques, and Rumsfeld later approved using 24 of them in a classified directive on April 16, 2003, that governed all activities at Guantanamo Bay. The Pentagon has refused to make public the 24 interrogation procedures.
As I said before, these are the memos - under sanction by Bush's previous executive order denying Geneva protections and the later DOJ Memos by Yoo, Bybee and Bradbury redefining torture out of existence - that led directly to Abu Ghraib.
Again, under current U.S. criminal law thanks to the Military Commission Act this treatment isn't illegal - but it is against Geneva and therefore Unconstitutional. Bradley Manning could file a suit since his treatment which also involved sleep deprivation and nudity - almost exactly like what occurred in Abu Ghraib - could ad weight to the Vance case as well as another Army Vet suing Rumsfeld for Torture that is also working it's way through the courts.
All of this means of course that Cheney's argument that U.S. Forces shouldn't or couldn't be tortured by foreign agents such as Libya, while we're free to do as we please is patently bogus and dangerous. The scenario Matt Lauer presented him with isn't the worst of it, as the Vance, Ertel and Manning cases shows - the situation now is that U.S. Forces have been torturing U.S. Troops and Citizens when they've had them under detention.
They don't make any distinction, because under U.S. Law thanks to Bush there is no distinction.
Cheney might not consider what happened to Vance or Bradley to be Torture, but Geneva Does, and so do we. If he's going to be taken down, that's the way to do it.
Vyan
Comments are closed on this story.