Memos Reveal War Crimes Warnings

[zimv20]

link (http://msnbc.msn.com/id/4999734)


Could Bush administration officials be prosecuted for 'war crimes' as a result of new measures used in the war on terror? The White House's top lawyer thought so

May 17 - The White House's top lawyer warned more than two years ago that U.S. officials could be prosecuted for "war crimes" as a result of new and unorthodox measures used by the Bush administration in the war on terrorism, according to an internal White House memo and interviews with participants in the debate over the issue.
***
The concern about possible future prosecution for war crimes—and that it might even apply to* Bush adminstration officials themselves— is contained in a crucial portion of an internal January* 25, 2002, memo (http://msnbc.msn.com/id/4999148/site/newsweek/)*by White House counsel Alberto Gonzales obtained by NEWSWEEK. It urges President George Bush declare the* war in Afghanistan, including the detention of Taliban and Al Qaeda fighters, exempt from the provisions of the Geneva Convention.
****
In the memo,* the White House lawyer focused on a little known 1996 law passed by Congress, known as the War Crimes Act, that banned any Americans from committing war crimes—defined in part as "grave breaches" of the Geneva Conventions. Noting that the law applies to "U.S.* officials" and that punishments for violators "include the death penalty," Gonzales told Bush that* "it was difficult to predict with confidence" how Justice Department prosecutors might apply the law in the future. This was especially the case given that some of the language in the Geneva Conventions—such as that outlawing "outrages upon personal dignity" and "inhuman treatment" of prisoners—was "undefined."


In the end, after strong protests from Powell, the White House retreated slightly. In February 2002, it proclaimed that, while the United States would adhere to the Geneva Conventions in the conduct of the war in Afghanistan, captured Taliban and Qaeda fighters would not be given prisoner of war status under the conventions. It is a rendering that Administration lawyers believed would protect U.S. interrogators or their superiors in Washington from being subjected to prosecutions under the War Crimes Act based on their treatment of the prisoners.

[blackfox]

You know maybe I am missing something...but why can one supposedly dodge War Crimes liability/prosecution just by saying "I am not going to play by those rules" (eg Geneva Convention) or by refusing to call something what it obviously is (eg POWs)...doesn't that in effect give any person/leader effective free reign to do what they want? Please explain...

[Frohickey]

January 25, 2002

MEMORANDUM FOR THE PRESIDENT
FROM: ALBERTO R. GONZALES
SUBJECT: DECISION RE APPLICATION OF THE GENEVA CONVENTION ON PRISONERS OF WAR TO THE CONFLICT WITH AL QAEDA AND THE TALIBAN

Purpose
On January 18, I advised you that the Department of Justice had issued a formal legal opinion concluding that the Geneva Convention III on the Treatment of Prisoners of War (GPW) does not apply to the conflict with al Qaeda. I also advised you that DOJ's opinion concludes that there are reasonable grounds for you to conclude that GPW does not apply with respect to the conflict with the Taliban. I understand that you decided that GPW does not apply and, accordingly, that al Qaeda and Taliban detainees are not prisoners of war under the GPW.
The Secretary of State has requested that you reconsider that decision. Specifically, he has asked that you conclude that GPW does apply to both al Qaeda and the Taliban. I understand, however, that he would(??) agree that al Qaeda and Taliban fighters could be determined not to be prisoners of war (POWs) but only on a case-by-case basis following individual hearings before a military board.
This memorandum outlines the ramifications of your decision and the Secretary's request for reconsideration.

Legal Background
As an initial matter, I note that you have the constitutional authority to make the determination you made on January 18 that the GPW does not apply to al Qaeda and the Taliban. (Of course, you could nevertheless, as a matter of policy, decide to apply the principles of GPW to the conflict with al Qaeda and the Taliban.) The Office of Legal Counsel of the Department of Justice has opined that, as a matter of international and domestic law, GPW does not apply to the conflict with al Qaeda. OLC has further opined that you have the authority to determine that GPW does not apply to the Taliban. As I discussed with you, the grounds for such a determination may include:
- A determination that Afghanistan was a failed state because the Taliban did not exercise full control over the territory and people, was not recognized by the international community, and was not capable of fulfilling its international obligations (e.g., was in widespread material breach of its international obligations).
- A determination that the Taliban and its forces were, in fact, not a government, but a militant, terrorist-like group.
OLC's interpretation of this legal issue is definitive. The Attorney General is charged by statute with interpreting the law for the Executive Branch. This interpretive authority extends to both domestic and international law. He has, in turn, delegated this role to OLC. Nevertheless, you should be aware that the Legal Adviser to the Secretary of State has expressed a different view.

Ramifications of Determination that GPW Does Not Apply
The consequences of a decision to adhere to what I understood to be your earlier determination that the GPW does not apply to the Taliban include the following:
Positive:
- Preserves flexibility:
- As you have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians. In my judgement, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and scientific instruments.
- Although some of these provisions do not apply to detainees who are not POWs, a determination that GPW does not apply to al Qaeda and the Taliban eliminates any argument regarding the need for case-by-case determinations of POW status. It also holds open options for the future conflicts in which it may be more difficult to determine whether an enemy force as a whole meets the standard for POW status.
- By concluding that GPW does not apply to al Qaeda and the Taliban, we avoid foreclosing options for the future, particularly against nonstate actors.
- Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).
- That statute, enacted in 1996, prohibits the commission of a "war crime" by or against a U.S. person, including U.S. officials. "War crime" for these purposes is defined to include any grave breach of GPW or any violation of common Artile 3 thereof (such as "outrages against personal dignity"). Some of these provision apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that the GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actions taken with respect to the Taliban.
- Adhering to your determination that GPW does not apply would guard effectively against misconstruction or misapplication of Section 2441 for several reasons.
- First, some of the language of GPW is undefined (it prohibits, for example, "outrages upon personal dignity" and "inhuman treatment"), and it is difficult to predict with confidence what actions might be deemed to constitute violations of the relevant provisions of GPW.
- Second, it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.
- Third, it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.
Negative:
On the other hand, the following arguments would support reconsideration and reversal of your decision that the GPW does not apply to either al Qaeda or the Taliban:
- Since the Geneva Conventions were concluded in 1949, the United States has never denied their applicability to either U.S. or opposing forces engaged in armed conflict, despite several opportunities to do so. During the last Bush Administration, the United States stated that it "has a policy of applying the Geneva Conventions of 1949 whenever armed hostilities occur with regular foreign armed forces, even if argumentes could be made that the threshold standards for the applicability of the Conventions...are not met."
- The United States could not invoke the GPW if enemy forces threatened to mistreat or mistreated U.S. or coalition forces captured during operations in Afghanistan, or if they denied Red Cross access or other POW privileges.
- The War Crimes Act could not be used against the enemy, although other criminal statutes and the customary law of war would still be available.
- Our position would likely provoke widespread condemnation among our allies and in some domestic quarters, even if we make clear that we will comply with the core humanitarian principles of the treaty as a matter of policy.
- Concluding that the Geneva Convention does not apply may encourage other countries to look for technical "loopholes" in future conflicts to conclude that they are not bound by GPW either
- Other countries may be less inclined to turn over terrorists or provide legal assistance to us if we do not recognize a legal obligation to comply with the GPW.
- A determination that GPW does not apply to al Qaeda and the Taliban could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries.

Response to Arguments for Applying GPW to the al Qaeda and the Taliban
On balance, I believe that the arguments for reconsideration and reversal are unpersuasive.
- The argument that the U.S. has never determined that GPW did not apply is incorrect. In at least one case (Panama in 1989) the U.S. determined that GPW did not apply even though it determined for policy reasons to adhere to the convention. More importantly, as noted above, this is a new type of warfare-one not contemplated in 1949 when the GPW was framed- and requires a new approach in our actions toward captured terrorists. Indeed, as the statement quoted from the administration of President George Bush makes clear, the U.S. will apply GPW "whenever hostilities occur with regular foreign armed forces." By its terms, therefore, the policy does not apply to a conflict with terrorists, or with irregular forces, like the Taliban, who are armed militants that oppressed and terrorized the people of Afghanistan.
- In response to the argument that we should decide to apply GPW to the Taliban in order to encourage other countries to treat captured U.S. military personnel in accordance with the GPW, it should be noted that your policy of providing humane treatment to enemy detainees gives us the credibility to insist on like treatment for our soldiers. Moreover, even if GPW is not applicable, we can still bring war crimes charges against anyone who mistreats U.S. personnel. Finally, I note that our adversaries in several recent conflicts have not been deterred by GPW in their mistreatment of captured U.S. personnel, and terrorists will not follow GPW rules in any event.

[Frohickey]

- The statement that other nations would criticize the U.S. because we have determined that GPW does not apply is undoubtedly true. It is even possible that some nations would point to that determination as a basis for failing to cooperate with us on specific matters in the war against terrorism. On the other hand, some international and domestic criticism is already likely to flow from your previous decision not to treat the detainees as POWs. And we can facilitate cooperation with other nations by reassuring them that we fully support GPW where it is applicable and by acknowledging that in this conflict the U.S. continues to respect other recognized standards.
- In the treatment of detainees, the U.S. will continue to be constrainted by (i) its commitment to treat the detainees dumanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of GPW, (ii) its applicable treaty obligations, (iii) minimum standards of treatment universally recognized by the nations of the world, and (iv) applicable military regulations regarding the treatment of detainees.
- Similarly, the argument based on military culture fails to recognize that our military remain bound to apply the principles of GPW because that is what you have directed them to do.


=====

Phew. That was a long article.
(Transcribing these types of documents, in addition to reading them, I believe, improve your writing skills as well.)

[miloblithe]

It would be pretty great to see Bush and Rumsfeld convicted of war crimes...

[numediaman]

Frohickey probably is not aware that his post backs up blackfox's assertion perfectly. This administration thinks it can simply wave a magic wand and say "the rules do not apply to us" and think things will be OK.

But instead things are getting worse for them. This must be how Nixon felt when he knew he had been cornered.

Tomorrow's NY Times, tonight:

May 19, 2004

Officer Says Army Tried to Curb Red Cross Visits to Prison in Iraq
By DOUGLAS JEHL and ERIC SCHMITT

WASHINGTON, May 18 — Army officials in Iraq responded late last year to a Red Cross report of abuses at Abu Ghraib prison by trying to curtail the international agency's spot inspections of the prison, a senior Army officer who served in Iraq said Tuesday.

After the International Committee of the Red Cross observed abuses in one cellblock on two unannounced inspections in October and complained in writing on Nov. 6, the military responded that inspectors should make appointments before visiting the cellblock. That area was the site of the worst abuses.

The Red Cross report in November was the earliest formal evidence known to have been presented to the military's headquarters in Baghdad before January, when photographs of the abuses came to the attention of criminal investigators and prompted a broad investigation. But the senior Army officer said the military did not start any criminal investigation before it replied to the Red Cross on Dec. 24.

The Red Cross report was made after its inspectors witnessed or heard about such practices as holding Iraqi prisoners naked in dark concrete cells for several days at a time and forcing them to wear women's underwear on their heads while being paraded and photographed.

Until now, the Army had described its response on Dec. 24 as evidence that the military was prompt in addressing Red Cross complaints, but it has declined to release the contents of the Army document, citing the tradition of confidentiality in dealing with the international agency.

An Army spokesman declined Tuesday to characterize the letter or to discuss what it said about the Red Cross's access to the cellblock.

[Frohickey]

Frohickey probably is not aware that his post backs up blackfox's assertion perfectly. This administration thinks it can simply wave a magic wand and say "the rules do not apply to us" and think things will be OK.

What post? Aside from the last few sentences, that was a transcript of the memo. I stand by my post, transcribing helps in writing skills. :p

Okay, since you are going to try to attribute to me the mantle of proving blackfox's assertion, here is my analysis of the situation, using the transcription of the memo as evidence.

As an initial matter, I note that you have the constitutional authority to make the determination you made on January 18 that the GPW does not apply to al Qaeda and the Taliban.
This means that the President has the authority...

- Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).
- That statute, enacted in 1996, prohibits the commission of a "war crime" by or against a U.S. person, including U.S. officials. "War crime" for these purposes is defined to include any grave breach of GPW or any violation of common Artile 3 thereof
This might be the portion that you consider as proving your case, but it does not. This portion is not applicable since the GPW does not apply, as stated earlier in the document, and the constitutional authority is there.

On the whole, the memo cites what the President did (no GPW), determines the reasons for it (not soldiers, but terrorists), determines what might happen if he did something else (vulnerable to WarCrimesAct, have to provide workout suits to Taliban), and lists reasons for the decision (obtain information, prevent civilian atrocity), and the potential repercussions of that decision (France/Germany throws a hissy fit).

I don't see it as backing up blackfox's assertion at all.

Now, the key question should be, is the statement that the President has the constitutional authority to make the determination legally correct, or not. This is the crux of the whole issue. I'm not well versed in the War Powers act, so I defer to some other expert...Alberto Gonzalez is more of an expert than I.

[diamond geezer]

As the Iraqis are neither Taliban or A Q, and since the Iraqi invasion is a war, we would probably see some prosecutions on the way.

Except of course that the US has no interest in international justice and is a big enough bully to play by its own rules.

[Frohickey]

As the Iraqis are neither Taliban or A Q, and since the Iraqi invasion is a war, we would probably see some prosecutions on the way.

Except of course that the US has no interest in international justice and is a big enough bully to play by its own rules.

Just a guess, but maybe after that declaration of end of major hostilities, all the enemy captured are probably considered *NOT* to be POWs. Maybe, from the start and up until that declaration, the enemy captured are POWs, as would Saddam and the other former high-ranking Iraqi governmental officers.

Now, the one thing I could see that would trip GWBush up and really get him exposed to War Crimes Act violation would be, if (a) former Iraqi soldiers (b)reconstituted their army, (c) donned their uniforms, (d) fight as an army, (e) are captured and (f) exposed to the abuses listed in the Geneva Convention rules for war, *BUT*, and here is the big *BUT* :eek: if Iraq was not a signatory to the Geneva Convention, (http://www.religionnewsblog.com/2893-_What_is_Geneva_Convention_.html) none of this applies.



(is there a way to link an iTunes music selection to a word? sounds like the appropriate use of a Sir-Mix-A-Lot classic. :D :D :D)

[blackfox]

To clarify my point...
As it stands, the President has claimed the authority to invade any country he pleases, determine who is an enemy combatant, whether or not they can be detained indefinitely, whether they are to be tried before a commission (or not at all), what the rules for such commissions should be, and whether or not the results of such a trial are fair and just – solely at his own discretion.

One wonders if any of these people have ever read the Federalist, where Madison says:

"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

And whenever anyone dares to question the Bush Administration's actions – many of which these authors believe are violations of the Geneva Conventions and other treaties, and some of which are war crimes subject to capital punishment under U.S. law – the Administration always insists that it is following Geneva ... except to the extent that "military necessity" requires otherwise.

The President has claimed that the invasion of Iraq was a military necessity and we now know it was founded on forged documents. The President has claimed that the detention of persons at Guantanamo is "appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 1949." He has declared that the establishment of Military Tribunals in this country, even while the civil courts are open and fully functioning, is "necessary to meet the emergency."

The authors thus ask the question: is Bush complying with international law, and specifically with the Geneva Conventions? Or is he violating them? If government officials, including Bush and Rumsfeld, are violating Geneva, are they thereby committing war crimes? Or does military necessity dictate – and justify – their course? What do the Geneva Conventions require of the Administration? What is military necessary and what determines it?

2.

The United States Constitution expressly incorporates international treaties as “the supreme law of the land.” Article 6 of the United States Constitution states: The Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

All executive and judicial officers and members of Congress are bound by oath to support the Constitution, including Article 6. The term “treaties” includes those signed by the President and ratified by the Senate, as well as those not ratified or simply part of “customary international law” – meaning those principles which are recognized by most nations. The Geneva and Hague Conventions were signed and ratified by the United States in 1956. They have a long history. They were developed through many wars, starting in 1864. Their present versions arose out of the depredations of World War II. As the Geneva Convention requires, the United States codified their enforcement in the U.S. Code.

Geneva forbids “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” It is forbidden under the Hague Convention “to declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.” Think about what Bush has done by detaining combatants at Guantanamo for over a year without trial … or by taking persons out of civil courts and throwing them in military brigs for eventual trial before military tribunals … tribunals that do not have judicial guarantees that meet basic Constitutional or international human rights standards. Think about the lack of judicial guarantees, the lack of access to a jury of peers, of basic rules of evidence (that disallow hearsay, for example), the right to confidential communications with and zealous representation by an attorney, and the right to appeal to an independent judicial body. The Bush Military Tribunals fail to guarantee any of these protections.

In fact, the Geneva Convention not only requires due process by regularly constituted courts, but requires that every captured person “whose status is in doubt” have his status determined by a competent tribunal. The official Geneva Commentary states that “[t]his amendment was based on the view that decisions which might have the gravest consequences should not be left to a single person … The matter should be taken to court.” Because combatants might be subject to capital punishment, a further amendment was made, “stipulating that a decision regarding persons whose status was in doubt would be taken by a ‘competent tribunal,’ and not a specifically a military tribunal.”

A unilateral determination by the President that captives are “unlawful enemy combatants” does NOT meet the requirements of the Geneva Convention. It is rumored that some detainees have already been deported to other countries. (Some rumors have it that these persons were deported to countries that use harsher interrogation methods than we do.) The 1945 Charter of the International Military Tribunal forbids the deportation (not to mention the ill-treatment or murder) of “civilian population of or in occupied territory” for “any … purpose.” Geneva forbids the “unlawful deportation or transfer or unlawful confinement of a protected person … or willfully depriving a protected person of the rights of fair and regular trial.”

Geneva defines protected persons as 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. While Geneva makes rules for how combatants and civilians are to be treated, it also makes rules that apply to the nation who captures them – and to those that violate the treaty. The Geneva Conventions “were the first treaties to require States to prosecute violators, regardless of their nationality or the place where the offence is committed.” Furthermore, under Geneva, “States must not only respect but ‘ensure respect’ for [international humanitarian] law.” The 1929 Geneva Convention abolished the provision that the Convention is binding only if all the belligerents are bound by it. In other words, Geneva is binding on all.

Finally, Geneva is applicable in all circumstances. This means that “no Power bound by the Convention can offer any valid pretext, legal or other, for not respecting the Convention in all its parts.” Whether the war is just or unjust, a war of aggression or of resistance to aggression, all parties are bound, not merely to take the necessary legislative action to prevent or repress violations, but to search for, and prosecute, guilty parties. No signatory can evade this responsibility. The Bush Administration is denying terrorist suspects hearings by a competent tribunal on their status, and is disobeying the intent of the conventions that combatants should be classified as POWs until such a hearing finds otherwise. The legal processes that will be used in the military tribunals violate both the Conventions and any rational concept of justice; they presume guilt, lack independent counsel, and lack appeal to independent competent authority. These are all deeply troubling flaws that cannot be ignored. Any one of those things by itself would be a war crime. Taken together, they are an outrage against humanity.

The United States enacted section 2441 of Title 18 of the United States Code to enforce Geneva. Section 2441 states that “Whoever, whether inside or outside the United States, commits a war crime … shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.” In its pertinent part, subsection (c) defines a war crime as:

(1) 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;

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party … 12 Clearly, the Bush Administration is flagrantly violating Geneva, and in doing so, it is violating the United States Constitution, international humanitarian law, and domestic federal law. How can Bush get away with this? Military necessity.


continued....

[blackfox]

3. Military Necessity

The Bush Administration is violating Geneva, and in doing so, it is violating the United States Constitution, international law, and federal domestic law. The President and his officials get away with this by claiming "military necessity." The determination of military necessity shifts the balance on most prohibitions. The Third Geneva Convention forbids:

Wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

The Hague Convention prohibits destruction or seizure of "the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war."

"Military necessity" is a term that has been thrown around quite a bit by this Administration. What is it? According to one scholar:

Military necessity was first stated as a legal principle in General Orders No. 100, a codification of the law of war drafted by Francis Lieber and issued by President Lincoln in 1863. Controversial from the beginning, the principle was nevertheless intended as a new restraint on military discretion, as Lincoln's application of it during the Civil War demonstrates. Military necessity remains an important restraint on military operations in new situations for which specific rules have yet to be established.

Lieber wrote that "Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war."

Lieber's language is reflected in the Commentary to the 1977 Protocol Additional to the Geneva Conventions, which states that military necessity "means the necessity for measures which are essential to attain the goals of war, and which are lawful in accordance with the laws and customs of war."

The concept of military necessity comes from the idea of "just war," which is based on the idea of a human society with norms and morals that transcend national boundaries and apply to all humanity. According to the 16th century Dutch jurist, Hugo Grotius, war is just if

(1) the danger faced by the nation is immediate,

(2) the force used is necessary to adequately defend the nation's interests, and

(3) the use of force is proportionate to the threatened danger.

According to one commentator, there are three constraints on the free exercise of military necessity:

First, any attack must be intended and tend toward the military defeat of the enemy; attacks not so intended cannot be justified by military necessity because they would have no military purpose. Second, even an attack aimed at the military weakening of the enemy must not cause harm to civilians or civilian objects that is excessive in relation to the concrete and direct military advantage anticipated. Third, military necessity cannot justify violation of the other rules of IHL [International Humanitarian law].

"[T]he principle of necessity specifies that a military operation is forbidden if there is some alternative operation that causes less destruction but has the same probability of producing a successful military result."

The Truth About Bush's Wars

The question must be asked, then: is the Bush Administration following Geneva, except to the extent that "military necessity" requires otherwise?

Clearly not. Military necessity cannot justify violation of rules of international humanitarian law, which include those provisions in the Geneva and Hague Conventions relating to status determination of captives, right to a fair hearing, legal representation, and full due process. Military necessity does not justify indefinite detention of suspects without charge. It does not justify violation of the United States Constitution. Nor can military necessity sanction the violation of federal criminal law.

And, where is the necessity in committing an act that is explicitly prohibited by law? (Remember 18 U.S.C. 2441 explicitly prohibits violation of Geneva and Hague and requires the United States to prosecute violators. This means that not only is every official who violates 2441 guilty of a war crime, but every federal prosecutor in this country who does not prosecute them is failing his or her duty.)

What about protecting our freedoms could possibly justify preventing our laws from being enforced? And since when does "necessity" entail doing anything that someone happens to think is a good idea without the least regard for any civilized standard of conduct?

A real necessity is obvious. When we launched the D-Day invasion we knew that there were French civilians living in the beachhead area who would very likely be injured or killed, but we also knew that warning them of the invasion would seriously jeopardize the chance of it's success. That is an example of a real military necessity: a specific instance where the specific circumstances require a specific method.

It is not necessity to simply do whatever you think might possibly give you some tactical advantage or leverage. If we were to capture some of Osama Bin Laden's children, we might be able to exert some pressure on him by roasting them one by one over an open fire, but there wouldn't be anything necessary about it – it would simply be another atrocity committed by an administration that has not the least understanding of necessity because they are lost in hysteria, greed, and the self-serving conviction of their own infallibility.

responses? Seems pretty clear...

[numediaman]

Like a large ship at sea, it takes the press a long time to get moving and change direction. But there are a lot of newsrooms out there who don't want to be left behind in covering this story. Therefore, you are starting to see interesting stories come from unexpected places.

This one is from the Denver Post:

Brutal interrogation in Iraq

Five detainees' deaths probed

By Miles Moffeit
Denver Post Staff Writer

Brutal interrogation techniques by U.S. military personnel are being investigated in connection with the deaths of at least five Iraqi prisoners in war-zone detention camps, Pentagon documents obtained by The Denver Post show.

The deaths include the killing in November of a high-level Iraqi general who was shoved into a sleeping bag and suffocated, according to the Pentagon report. The documents contradict an earlier Defense Department statement that said the general died "of natural causes" during an interrogation. Pentagon officials declined to comment on the new disclosure.

Another Iraqi military officer, records show, was asphyxiated after being gagged, his hands tied to the top of his cell door. Another detainee died "while undergoing stress technique interrogation," involving smothering and "chest compressions," according to the documents . . .

http://www.denverpost.com/Stories/0,1413,36~11676~2157003,00.html

[mactastic]

Sounds like your typical fraternity hijinks. Right?

[IJ Reilly]

Meanwhile, the key witnesses in the college prank scandal take the Fifth:
3 Witnesses at Iraq Abuse Hearing Refused to Testify
By Richard A. Serrano
Times Staff Writer

May 19, 2004

WASHINGTON — Three key witnesses, including a senior officer in charge of interrogations, refused to testify during a secret hearing against an alleged ringleader of the Abu Ghraib prisoner abuse scandal on the grounds that they might incriminate themselves.

The witnesses appeared April 26 at a preliminary hearing behind closed doors for Cpl. Charles A. Graner Jr., who has been identified in court-martial documents as the leader of a band of military police guards who humiliated and abused Iraqi detainees and compiled a bizarre photographic record of their activities. The prospective witnesses' refusal to testify is described in court-martial documents obtained by The Times on Tuesday.

That all of the prospective witnesses called up by prosecutors invoked the military equivalent of the 5th Amendment right against self-incrimination indicates that key players in the abuse scandal may be closing ranks to save themselves and one another.

[...]

http://www.latimes.com/news/nationworld/iraq/la-fg-prison19may19,1,6028530.story

[skunk]

responses? Seems pretty clear...
Phew! :cool:

[takao]

hmm

1. the US government refers to people they caught as terrorists
2. they call this war :"war against terror"
3. so the opponents of the us army in this wars are 'the terrorists'
sure they are cruel and not wearing uniforms (actually it is only needed to have a badge or clear recognition symbol on your clothes) but they are still 'soldiers' in some way

but if they aren't soldiers (like some people say) then they should be treated like _civilian_ prisoners... especially by people who are prison gurds in their civilian lives (like 2 of the abusers)

actually the US of A has signed a UN convention against torture
http://www.unhchr.ch/html/menu3/b/h_cat39.htm

extract:

" 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture. "

[Frohickey]

actually the US of A has signed a UN convention against torture


Are you trying to link the 'no GPW' to the prison torture? If 'no GPW' allows prison torture, why is there even any court martial for the MPs/soldiers involved?

I think that the two are separate.
'No GPW' because of reasons outlined in the memo; information to avoid further atrocities against American civilians, no case-by-case determination, etc.

No prison torture because it is against the 'core humanitarian principles of the treaty as a matter of policy'.

[takao]

Are you trying to link the 'no GPW' to the prison torture? If 'no GPW' allows prison torture, why is there even any court martial for the MPs/soldiers involved?

I think that the two are separate.
'No GPW' because of reasons outlined in the memo; information to avoid further atrocities against American civilians, no case-by-case determination, etc.

No prison torture because it is against the 'core humanitarian principles of the treaty as a matter of policy'.

what do you mean with 'GPW' ? sorry but without know what you mean with this i can't understand your point

[blackfox]

what do you mean with 'GPW' ? sorry but without know what you mean with this i can't understand your point
GPW stands for Prisoner of War status under Geneva Convention...