Friday, May 15, 2009

International and American Laws against torture

       I gave a handout to people coming to the debate with State Senator Sean Mitchell (the third post back) on international and American laws against torture.  Obama's release of the four torture memos unredacted - perhaps the most courageous act so far of his administration - makes it palpable that the Bush-Cheney administration was systemically involved in criminal activity and creating a police state.  To see how courageous Obama's act was, try the following thought experiment: has another American President released secret evidence of criminal activity by the previous administration, over the impassioned objection of four former heads of the CIA?  Michael Hayden, in particular, said bellicosely on television that the American people shouldn't know many things, and the facts about American torture are among them; he revealed the danger to democracy of having covert actions forces, like the CIA and FBI, and the anti-democratic hubris such activity spawns even when it isn't criminal.  There is no previous parallel to what Obama did.  

      Two weeks ago, Condi Rice was confronted by students in a dorm at Stanford.  Not patsies to gain "access"  like the White House press corps and Washington punditry, they asked her difficult questions about torture, and her answers, that if the President commands it, it is not torture (recently refined to be: "of course the President only commands lawful things" - though plainly, Bush didn't) will perhaps be read back to her one day in a court of law.  I suspect with Andrew Sullivan that Obama is doing a lot not to involve himself in prosecution, but releasing information that will make - because Americans are decent and because international pressure is growing - prosecution inevitable.  Cheney and his daughter are on televison bellowing how they didn't torture and how torture  - "enhanced interrogation" - makes Americans secure.  Cheney criticizes the Obama administration for adhering to the law.  High administration officials (who of course don't have to go on record in our public media) say that Obama plans to release the 2004 CIA report that finds torture useless for gathering information (it was released to the ACLU with that entire section and many others redacted).  If so, it would be a great thing.  We need independent hearings and a special prosecutor to deal with the crimes of the Bush administration.  For as a North Korean prison official said to a reporter who had asked about the treatment of the two American women reporters currently jailed in that member of Bush's axis of evil, "we are not Guantanamo."  That  apt rejoinder, even by a representative of a terrible dictatorship, reveals the moral depravity to which the Bush-Cheney administration, with the aid or acquiescence of Democratic officials, have brought the country.  The air must be cleared.  Justice must be done.  This must never happen again.  

     Here are the laws on torture, the centerpiece of international law, what America once fought for, and which the last administration and the punditry that says - put two million people in jail but do not indict the elite off for crimes of torture - is the opposite of.


Should the “Principals” in the Bush administration,          

particularly  Condoleeza  Rice, be charged with war crimes?


American laws about torture:


Habeas Corpus: the doors of a Court shall be open to each arrested person.  No one will be indefinitely detained without legal process and no one shall be tortured.

Since the signing of the Magna Carta in 1281, this has been the cardinal principle of English and then American justice.  It is what distinguishes a system of law from tyranny.


The Supremacy Clause of the U.S. Constitution: Treaties signed by the United States and endorsed by Congress are the Supreme Law of the Land.

Art 6, section 2: This 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.


The United Nations Convention against Torture, signed by President Reagan in 1988 and ratified by Congress in 1994 overrides John Yoo’s and Stephen Bradbury’s torture memoranda and the Military Commissions Act of 2006.

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


Command Responsibility: those who order torture or who do not warn against torture are responsible for all crimes committed by underlings.

This is the law enforced by American prosecutors at the Nuremburg Trials and the Tokyo War Crimes Tribunals following World War II. 


The United Nations Convention against Torture bans extraordinary renditions to other regimes that torture, a common practice under the Bush administration.

Art. 3, sec 1: No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.


The Convention on Torture obligates each signatory to prosecute the crime.

Art. 4, sec 1.  Each State Party shall ensure that all acts of torture are offences under its criminal law.  The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

Consequently, the U.S. enacted 18 U.S.C. §§ 2340 and 2340A, which prohibit torture occurring outside the United States

Art 7, sec. 1.  The State Party in the territory under whose jurisdiction a person alleged to have committed any offense referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

 Art 7, sec 2.  These authorities shall take their decision in the same manner as in the case of any ordinary offense of a serious nature under the law of that State.


Equivalent bans can be found in the Geneva Conventions of which the United States was an instigator and signatory. 

 “The High Contracting Parties [signatories to the Geneva conventions, which includes the U.S.] undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.”

“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.”

Geneva III POWs, art. 129, Geneva IV Civilians, art. 146; see also 18 USC 2441(c)(1).


On the first day Bush left office, the special investigator and rapporteur to the United Nations on Torture and the leading international lawyer in Germany, Manfred Nowak called for the United States to institute criminal proceedings against the former President and members of his administration under the Convention against Torture.


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