Bush's military commissions are predicated on the flawed, and downright illegal, "legal" premises contained in the various “torture memos."
And if those torture memos are contrary to America's rule of law, then Bush's military commissions, backed by the
, are as well.
Repeal the MCA of 2006. There is no "fixing" such egregious legislation.
More especially legislation that could have easily been taken from the “legal” opinions known as the “torture memos”
- Continue reading ALL the documents and memos that accompany the above memo. You’ll read how since the Geneva Conventions don’t apply, they feel they have wider latitude on “enhancing….interrogation techniques”
(There’s that term Bush would go on to use repeatedly...talk about "birthing pangs", eh, Rice?)
- I trust I don’t need to tell anyone to note the “good faith” talking point.
- If an act isn't listed, which has been an argument championed by torture supporters, "it doesn't say we can't do it" or "it doesn't mention water-boarding specifically" and if it isn't of a prolonged nature, then it isn't torture per Yoo. So if you only water-board a person for 30 seconds...it doesn't rise to the level of torture...besides, water-boarding isn't named specifically as something you can't do.
- Yoo’s memo, like the Bybee memo before it, narrows the definition of what constitutes torture and attempts to redefine the meaning of the word severe to limit what actions rise to the level of torture.
Yoo also writes, "One of the core functions of the Commander in Chief is that of capturing, detaining, and interrogating members ofthe enemy. See, e.g., Memorandum for WilliamJ. Haynes II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of
Legal Counsel, Re: The President's Power as Commander in Chief to Transfer Captured
Terrorists to the Control and Custody of Foreign Nations at 3 (Mar. 13, 2002)
- While reading the various "torture memos", aside from them all sounding alike, you'll also notice that one torture memo will refer back to the other torture memos as a legal authority for substantiating the torture memo being presented at the time.
In the
April 16, 2003 memo, by Rumsfeld and Hill (Commander, Southern Command), Rumsfeld says, “The techniques I authorize are those lettered A-X set out at Tab A”
Interrogations Techniques
A. Asking straightforward questions.
B. Incentive/Removal of Incentive:
Caution: Other nations that believe that detainees are entitled
to POW protections may consider that provision and retention of religious items
(e.g.. the Koran) are protected under international law - see, Geneva III, Article
34. Although the provisions of the Geneva Convention are not applicable to the
interrogation of unlawful combatants. consideration should be given to those
views prior to application of the technique. Declassify on 2 April 2013 (or, after I’m out of office, or possibly even dead)
snip
* NOT RELEASABLE TO FOREIGN NATIONALS
I. Pride and Ego Down: Attacking or insulting the ego of a detain=,
not beyond the limits that would apply to a POW.
Caution: Article 17 of
Geneva Ill provides, *Prisoners of war who refuse to answer may not be
threatened, insulted, or exposed to any unpleasant or disadvantageous,
treatment of any kind." Other nations that believe that detainees are entitled to
POW protections may consider this technique inconsistent with the provisions
of Geneva. Although the provisions of Geneva are not applicable to the
interrogation of unlawful combatants, consideration should be given to these
views prior to application of the technique.snip
X. Isolation: Isolating the detainee from other detainees…
Caution: The use of isolation as an interrogation technique requires detailed
implementation instructions, including specific guidelines regarding the length of isolation, medical and
psychological review, and approval for extensions of the length of isolation by the appropriate
level in the chain of command. This technique is not known to
have been generally used for interrogation purposes for longer than 30 days.
Those nations that believe detainees are subject to POW protections may view
use of this technique as inconsistent with the requirements of Geneva ,
Article 13 which provides that POW must be protected against acts of
intimidation; Article 14 which provider, that POW8 an entitled to respect for
their person; Article 34 which prohibits coercion and Article 126 which ensures
access and basic standards of treatment. Although the provisions of Geneva
ate not applicable to the interrogation of unlawful combatants….” - The above “Caution” is repeated several times throughout A-Z.
Also from that memo:
“The title of a particular technique is not always fully descriptive of a
particular technique. With respect to the employment of any techniques
involving physical contact, stress or that could produce physical pain or harm,
a detailed explanation of that technique must be provided to the decision
authority prior to any decision.”
“Interrogations must always be planned. deliberate actions that take
into account numerous, often interlocking factors such as a detainees current
and past performance in both detention and interrogation. Detainee’s
emotional and physical strengths and weaknesses, an assessment of possible
approaches that may work on a certain detainee in an effort to gain the trust of
the detainee. Strengths and weaknesses of interrogators. and augmentation by
other personnel for a certain detainees based on other factors”
- Also, consider the overall timeline and the recent articles exposing the actions of the “Principals Committee”, and these words, “
The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed -- down to the number of times CIA agents could use a specific tactic. ”
Keeping in mind that Rumsfeld was a member of the “Principals Committee.”
Now a look at the Military Commissions Act of 2006.For comparison, see the above "torture memos"
‘‘§ 948a. Definitions‘‘In this chapter:
‘‘(1) UNLAWFUL ENEMY COMBATANT.—(A) The term ‘unlawful
enemy combatant’ means—
‘‘(i) a person who has engaged in hostilities or who
has purposefully and materially supported hostilities
against the United States or its co-belligerents who is
not a lawful enemy combatant (including a person who
is part of the Taliban, al Qaeda, or associated forces);
Or
‘‘(ii) a person who, before, on, or after the date of
the enactment of the Military Commissions Act of 2006,
has been determined to be an unlawful enemy combatant
by a Combatant Status Review Tribunal or another competent
tribunal established under the authority of the
President or the Secretary of Defense.”‘‘§ 948b. Military commissions generally‘‘(g) GENEVA CONVENTIONS NOT ESTABLISHING SOURCE OF
RIGHTS.—No alien unlawful enemy combatant subject to trial by
military commission under this chapter may invoke the Geneva
Conventions as a source of rights.
‘‘§ 948c. Persons subject to military commissions‘‘Any alien unlawful enemy combatant is subject to trial by
military commission under this chapter.
‘‘§ 948d. Jurisdiction of military commissions‘‘(c) DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS
DISPOSITIVE.—A finding, whether before, on, or after the date of
the enactment of the Military Commissions Act of 2006, by a
Combatant Status Review Tribunal or another competent tribunal
established under the authority of the President or the Secretary
of Defense that a person is an unlawful enemy combatant is dispositive
for purposes of jurisdiction for trial by military commission
under this chapter.
‘‘§ 948r. Compulsory self-incrimination prohibited; treatment
of statements obtained by torture and other statements‘‘(b) EXCLUSION OF STATEMENTS OBTAINED BY TORTURE.—A
statement obtained by use of torture shall not be admissible in
a military commission under this chapter, except against a person
accused of torture as evidence that the statement was made.
‘‘(c) STATEMENTS OBTAINED BEFORE ENACTMENT OF DETAINEE
TREATMENT ACT OF 2005.—A statement obtained before December
30, 2005 (the date of the enactment of the Defense Treatment
Act of 2005) in which the degree of coercion is disputed may be
admitted only if the military judge finds that—
‘‘(1) the totality of the circumstances renders the statement
reliable and possessing sufficient probative value; and
‘‘(2) the interests of justice would best be served by admission
of the statement into evidence.
‘‘(d) STATEMENTS OBTAINED AFTER ENACTMENT OF DETAINEE
TREATMENT ACT OF 2005.—A statement obtained on or after
December 30, 2005 (the date of the enactment of the Defense
Treatment Act of 2005) in which the degree of coercion is disputed
may be admitted only if the military judge finds that—
‘‘(1) the totality of the circumstances renders the statement
reliable and possessing sufficient probative value;
‘‘(2) the interests of justice would best be served by admission
of the statement into evidence; and
‘‘(3) the interrogation methods used to obtain the statement
do not amount to cruel, inhuman, or degrading treatment
prohibited by section 1003 of the Detainee Treatment Act of
2005.
‘‘§ 949a. Rules‘‘(a) PROCEDURES AND RULES OF EVIDENCE.—Pretrial, trial, and
post-trial procedures, including elements and modes of proof, for
cases triable by military commission under this chapter may be
prescribed by the Secretary of Defense,
‘‘(A) Evidence shall be admissible if the military judge
determines that the evidence would have probative value to
a reasonable person.
‘‘(C) A statement of the accused that is otherwise admissible
shall not be excluded from trial by military commission on
grounds of alleged coercion or compulsory self-incrimination
so long as the evidence complies with the provisions of section
948r of this title.
‘‘§ 949d. Sessions‘‘(f) PROTECTION OF CLASSIFIED INFORMATION.—
‘‘(1) NATIONAL SECURITY PRIVILEGE.—(A) Classified
information shall be protected and is privileged from disclosure
if disclosure would be detrimental to the national security.
The rule in the preceding sentence applies to all stages of
the proceedings of military commissions under this chapter.
‘‘(B) The privilege referred to in subparagraph (A) may
be claimed by the head of the executive or military department
or government agency concerned based on a finding by the
head of that department or agency that—
‘‘(i) the information is properly classified; and
‘‘(ii) disclosure of the information would be detrimental
to the national security.
‘‘(C) A person who may claim the privilege referred to
in subparagraph (A) may authorize a representative, witness,
or trial counsel to claim the privilege and make the finding
described in subparagraph (B) on behalf of such person. The
authority of the representative, witness, or trial counsel to
do so is presumed in the absence of evidence to the contrary.
‘‘(2) INTRODUCTION OF CLASSIFIED INFORMATION.—
‘‘(A) ALTERNATIVES TO DISCLOSURE.—To protect classified
information from disclosure, the military judge, upon
motion of trial counsel, shall authorize, to the extent
practicable—
‘‘(i) the deletion of specified items of classified
information from documents to be introduced as evidence
before the military commission;
‘‘(ii) the substitution of a portion or summary of
the information for such classified documents; or
‘‘(iii) the substitution of a statement of relevant
facts that the classified information would tend to
Prove
‘‘(B) PROTECTION OF SOURCES, METHODS, OR ACTIVITIES.—
The military judge, upon motion of trial counsel,
shall permit trial counsel to introduce otherwise admissible
evidence before the military commission, while protecting
from disclosure the sources, methods, or activities by which
the United States acquired the evidence if the military
judge finds that (i) the sources, methods, or activities by
which the United States acquired the evidence are classified,
and (ii) the evidence is reliable. The military judge
may require trial counsel to present to the military commission
and the defense, to the extent practicable and consistent
with national security, an unclassified summary
of the sources, methods, or activities by which the United
States acquired the evidence.
- Here everyone should recall how often we hear information can’t be released because of national security concerns. An excuse that has repeatedly stifled any real investigation into abuses and crimes by the Bush administration.
Also keeping in mind that with a judge, or convening authority handpicked by the Bush administration, “protecting the methods” used to “acquire evidence”, that allows “evidence” gained by torture to be introduced.
‘‘§ 950j. Finality or proceedings, findings, and sentences‘‘(b) PROVISIONS OF CHAPTER SOLE BASIS FOR REVIEW OF MILITARY
COMMISSION PROCEDURES AND ACTIONS.—Except as otherwise
provided in this chapter and notwithstanding any other provision
of law (including section 2241 of title 28 or any other habeas
corpus provision), no court, justice, or judge shall have jurisdiction
S. 3930—25
to hear or consider any claim or cause of action whatsoever,
including any action pending on or filed after the date of the
enactment of the Military Commissions Act of 2006, relating to
the prosecution, trial, or judgment of a military commission under
this chapter, including challenges to the lawfulness of procedures
of military commissions under this chapter.
SEC. 5. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR CERTAIN
CLAIMS.(a) IN GENERAL.—No person may invoke the Geneva Conventions
or any protocols thereto in any habeas corpus or other civil
action or proceeding to which the United States, or a current
or former officer, employee, member of the Armed Forces, or other
agent of the United States is a party as a source of rights in
any court of the United States or its States or territories.
- That put the quietus on habeas corpus (as well as the below section). And as you can see, the torture memos advocated that the Geneva Conventions - the treaty itself - do not apply to certain persons, and the MCA of 2006 just allowed for the same thing - but using kinder, gentler words. The memos also claimed a President could disregard the treaty - and by rewriting who is protected by the treaty, the MCA of 2006 complies with the torture memos.
Which brings us to this part of the MCA of 2006.
SEC. 6. IMPLEMENTATION OF TREATY OBLIGATIONS.(b) REVISION TO WAR CRIMES OFFENSE UNDER FEDERAL
CRIMINAL CODE.—
(1) IN GENERAL.—Section 2441 of title 18, United States
Code, is amended—
(A) in subsection (c), by striking paragraph (3) and
inserting the following new paragraph (3):
‘‘(3) which constitutes a grave breach of common Article
3 (as defined in subsection (d)) when committed in the context
of and in association with an armed conflict not of an international
character; or’’; and
(B) by adding at the end the following new subsection:
‘‘(d) COMMON ARTICLE 3 VIOLATIONS.—
‘‘(1) PROHIBITED CONDUCT.—In subsection (c)(3), the term
‘grave breach of common Article 3’ means any conduct (such
conduct constituting a grave breach of common Article 3 of
the international conventions done at Geneva August 12, 1949),
as follows:
‘‘(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.
‘‘(C) PERFORMING BIOLOGICAL EXPERIMENTS.—The act
of a person who subjects, or conspires or attempts to subject,
one or more persons within his custody or physical
control to biological experiments without a legitimate medical
or dental purpose and in so doing endangers the body
or health of such person or persons.
‘‘(D) MURDER.—The act of a person who intentionally
kills, or conspires or attempts to kill, or kills whether
intentionally or unintentionally in the course of committing
any other offense under this subsection, one or more persons
taking no active part in the hostilities, including those
placed out of combat by sickness, wounds, detention, or
any other cause.
S. 3930—35
‘‘(E) MUTILATION OR MAIMING.—The act of a person
who intentionally injures, or conspires or attempts to
injure, or injures whether intentionally or unintentionally
in the course of committing any other offense under this
subsection, one or more persons taking no active part in
the hostilities, including those placed out of combat by
sickness, wounds, detention, or any other cause, by disfiguring
the person or persons by any mutilation thereof
or by permanently disabling any member, limb, or organ
of his body, without any legitimate medical or dental purpose.
‘‘(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.—
The act of a person who intentionally causes, or conspires
or attempts to cause, serious bodily injury to one or more
persons, including lawful combatants, in violation of the
law of war.
‘‘(G) RAPE.—The act of a person who forcibly or with
coercion or threat of force wrongfully invades, or conspires
or attempts to invade, the body of a person by penetrating,
however slightly, the anal or genital opening of the victim
with any part of the body of the accused, or with any
foreign object.
‘‘(H) SEXUAL ASSAULT OR ABUSE.—The act of a person
who forcibly or with coercion or threat of force engages,
or conspires or attempts to engage, in sexual contact with
one or more persons, or causes, or conspires or attempts
to cause, one or more persons to engage in sexual contact.
‘‘(I) TAKING HOSTAGES.—The act of a person who,
having knowingly seized or detained one or more persons,
threatens to kill, injure, or continue to detain such person
or persons with the intent of compelling any nation, person
other than the hostage, or group of persons to act or refrain
from acting as an explicit or implicit condition for the
safety or release of such person or persons.
‘‘(2) DEFINITIONS.—In the case of an offense under subsection
(a) by reason of subsection (c)(3)—
‘‘(A) the term ‘severe mental pain or suffering’ shall
be applied for purposes of paragraphs (1)(A) and (1)(B)
in accordance with the meaning given that term in section
2340(2) of this title;
‘‘(B) the term ‘serious bodily injury’ shall be applied
for purposes of paragraph (1)(F) in accordance with the
meaning given that term in section 113(b)(2) of this title;
‘‘(C) the term ‘sexual contact’ shall be applied for purposes
of paragraph (1)(G) in accordance with the meaning
given that term in section 2246(3) of this title;
‘
‘(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
‘‘(E) the term ‘serious mental pain or suffering’ shall
be applied for purposes of paragraph (1)(B) in accordance
S. 3930—36
with the meaning given the term ‘severe mental pain or
suffering’ (as defined in section 2340(2) of this title), except
that—
‘‘(i) the term ‘serious’ shall replace the term ‘severe’
where it appears; and
‘‘(ii) as to conduct occurring after the date of the
enactment of the Military Commissions Act of 2006,
the term ‘serious and non-transitory mental harm
(which need not be prolonged)’ shall replace the term
‘prolonged mental harm’ where it appearsNote the wording of the definition under (2)Definitions - (D)
Also not the changes under (2) Definitions - (E) i and ii
Now, read what the ACLU has to say about that:
ACLU Letter to the Senate Strongly Urging Opposition to S. 3930, the Military Commissions Act of 2006 “The American Civil Liberties Union strongly urges you to oppose S. 3930, the Military Commissions Act of 2006, unless amended to ensure that:
the President will have no authority to authorize any of the acts prohibited by Common Article 3 of the Geneva Conventions and the Army Field Manual on Interrogations, which reinforces the Common Article 3 prohibitions;
the courts are not stripped of their historical and constitutional role as a check on the Executive Branch, in ensuring that the protections of the Constitution and Common Article 3 of the Geneva Conventions are enforced;
government officials who authorized or ordered illegal acts of torture and abuse will not receive retroactive immunity;
no one can be convicted on the basis of evidence that was literally beaten out of a witness or obtained through other abuse by either the federal government or by countries such as Syria, Jordan, or Egypt that tortured and abused persons sent to them by the federal government;
at minimum, those acts which violate the McCain anti-torture amendment remain criminal acts under the War Crimes Act.”
“Moreover, by revamping the War Crimes Act and retroactively applying the new provisions, S. 3930 replaces a provision criminalizing “grave breaches” of Common Article 3 of the Geneva Conventions with a list of violations that is less inclusive and less certain than current law. For example, subsection 8(b) of S. 3930 will give the Executive Branch and its prosecutors discretion to answer new questions such as:
- whether the “serious physical or mental pain or suffering” is different than “severe,”
- whether “cuts, abrasions, or bruises” can be the basis for a crime when they appear to be specifically excluded from the list of “serious physical pain or suffering,”
- whether the requirement of “bodily injury” in the definition of “serious physical pain or suffering” means that waterboarding cannot be “serious physical pain or suffering,” and
- whether the bill’s prohibition against “serious and non-transitory mental harm (which need not be prolonged)” bars prosecutions for brief use of waterboarding or mock executions.
Administration officials--instead of Congress--will be the ones specifying which acts fall within each of these new terms.”
- The Military Commissions Act of 2006 sounds an awful lot like the "legal" opinions contained within the various “torture memos”
- From the word "unitary executive", Bush's military tribunals have been a farce and a mockery of justice. The Military Commissions Act of 2006, which was heralded as bringing those tribunals more in line with law, did not accomplish that purported goal and should be repealed. Fact is, Bush, his "Principals Committee", and the authors of the torture memos pretty much got what they wanted.
Other articles worth noting ACLU MCA Fact SheetConvention Against Torture
Part I
Article 1
1. For the purposes of this Convention, torture means 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, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Prolonged Mental Harm: The Torturous Reasoning Behind a New Standard for Psychological Abuse
"The OLC position would require accepting, for instance, that not every case of administering “mind altering substances . . . calculated to disrupt profoundly the senses,” and not every “threat of imminent death” would result in prolonged mental harm, and thus are not always acts of torture.8 The OLC position inverts the absolute prohibition on torture by introducing a “wait and see” approach to psychological torture.9 This approach, as adopted in the MCA, relies on selective support from U.S. case law, misinterprets customary international law, undermines the purpose of the Convention Against Torture (“CAT”), and ignores standard rules of statutory and treaty interpretation."
Why The Military Commissions Act is No Moderate CompromiseTorture and Other Harsh Methods of Interrogation
Despite its title, the Military Commissions Act is not just about military commissions. It also contains provisions governing the treatment of detainees. Here the bill can only be described as an elaborate exercise in misdirection.
Section 5 of the MCA declares that no one may invoke the Geneva Conventions as a source of rights in a U.S. court case against the United States or one of its agents. Section 6 of the MCA then purports to implement the Geneva Conventions.
In principle, that is unexceptionable. The Geneva Conventions are treaties which the United States signed, and treaties frequently are not self-executing: that is, they can require implementing legislation. However, the substance of the MCA's Section 6 makes evident that it does not, in fact, implement the Geneva Conventions themselves but rather implements a watered-down version of them.
For example, while retaining criminal sanctions for "grave breaches" of common Article 3 of the Geneva Conventions, the MCA forbids U.S. courts from looking to any "foreign or international source of law" to determine what constitutes a grave breach. Yet even those Justices of the Supreme Court who object to the use of foreign or international law in interpreting the U.S. Constitution, readily acknowledge that foreign and international law are of course relevant in interpreting a treaty. The MCA therefore replaces the actual Geneva Conventions with a kind of special U.S. edition of them."
Additional reference:
Torture Memos
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
