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29 September 2006 @ 01:04 pm
I Am Not a Lawyer  
OK. I've read the section of S.3930 as amended that seems to be the one talking about the Geneva Convention (section 6, Implementation of Treaty Obligations).

I Am Not A Lawyer. I could be wrong, and I could be looking at the wrong cites.

HOWEVER, this is what I read it as:

1) There _is_ a section expressing the right of the President to interpret the Geneva Convention just as the President has the right to interpret the meaning of any other treaty when enforcing said treaty. My opinion: I'm not seeing much here that doesn't already exist in the constitution, as it does not deny the ability of the Judiciary to apply constitutional principles to the interpretation nor deny the Congress the ability to write law affecting said interpretation. The enforcement branch of the government is always the first to interpret any law - otherwise, the principle of Judicial Review would be Judicial Preview and no law could be enacted/enforced until the Supreme Court had reviewed it. Barring challenges that qualify for injunctive relief this would seem not to be usual. If it were made usual, it would effectively handicap the actual implementation of anything enacted by the Congress, not just target the Executive.

2) There is also very specific implementation within the US Code of specific breaches of the Geneva Convention. It would seem to me that this removes any ability of the President to re-interpret the treatment portion of the Geneva Convention - it is no longer interpretation of a treaty but specifically enshrined in the War Crimes provisions of US federal law. This was not previously the case!

So ... even though everyone is focusing on the torture aspect and appalled at John McCain for somehow "selling out" the treatment of prisoners, it seems to me that this portion has been dealt with. Granted, someone could probably go through a comparison of these with the Convention and find loopholes, but such loopholes always existed.

What is my point?

Folks, this is Bad Law not because of the so-called torture provisions but because due process for persons merely accused of certain "terrorist" activities is being legally curtailed and denied. Yeah, it's a lot easier to get emotional and worked up by accusing the bill and its supporters of favoring torture than it is to shout "Hell, no! Due process must be allowed to prevail!", but ultimately that is a distraction that targets the wrong problem.

So, if you are going after your representatives and senators, demand that habeas corpus be restored, that full disclosure of evidence under reasonable national security protections be required, and that all legal protections afforded to US citizens be available to those accused under this law.

Don't get distracted.


Note: I have left comments turned on because I welcome anyone with a direct legal opinion that clarifies what I have read. Please don't use this as a chance to repeat commentators commenting on other commentator's interviews of individuals who were told what the bill said by someone else.
 
 
Current Mood: confusedcross-eyed
 
 
 
Dave Alwaytnatj on September 29th, 2006 06:10 pm (UTC)
Torture may not be bad law; but I do think it is bad policy. Its application generates too many "false positives" in intelligence gathering to be useful; and it removes any contractual or moral scruples an enemy may have in the treatment of US prisoners of war. But of course, whether it will redound (or has redounded) negatively upon US military operations or forces is yet to be seen (or, due to secrecy, to be shown).

On a legal basis, I do agree that this bill would effectively suspend habeus corpus, the keystone in the rule of law and personal liberty, particularly without a fixed date of restoration. (In which case, is habeus corpus not just suspended; but abolished?)

I am minded of the beginning of Act IV of Julius Caesar, where Anthony, Octavius and Lepidus are proscribing the names — not necessarily of enemies or even potential adversaries — but of potential allies who would somehow upset the balance of power among the triumvirs: effectively doing so for an arbitrary reason, or just because they can.

I do hope that we do not retrogress to an event in politics 2000 years old; but this current business is not reassuring.
Bill Suttonbedlamhouse on September 29th, 2006 06:16 pm (UTC)
OK, I'm confused.

The law enshrines the Geneva Convention definitions of torture in US federal code. It was not there before. They are explicitly stated as illegal activities.

How did this turn into legalizing torture and endangering US soldiers? What is it that I am missing that makes this bill mean what so many people seem to think it means?
Dave Alwaytnatj on September 29th, 2006 07:16 pm (UTC)
The law enshrines the Geneva Convention definitions of torture in US federal code. It was not there before. They are explicitly stated as illegal activities.
Well, gosh, it seems that laws against torture exist already in US Statutes:
Military personnel who mistreat prisoners can be prosecuted by a court-martial under various provisions of the Uniform Code of Military Justice (UCMJ, arts. 77-134).

The War Crimes Act of 1996 (18 U.S.C. § 2441) makes it a criminal offense for U.S. military personnel and U.S. nationals to commit war crimes as specified in the 1949 Geneva Conventions. War crimes under the act include grave breaches of the Geneva Conventions. It also includes violations of common Article 3 to the Geneva Conventions, which prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; …outrages upon personal dignity, in particular humiliating and degrading treatment.

A federal anti-torture statute (18 U.S.C. § 2340A), enacted in 1994, provides for the prosecution of a U.S. national or anyone present in the United States who, while outside the U.S., commits or attempts to commit torture. Torture is defined as an “act committed by a person acting under the color of law 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.” A person found guilty under the act can be incarcerated for up to 20 years or receive the death penalty if the torture results in the victim’s death.

Military contractors working for the Department of Defense might also be prosecuted under the Military Extraterritorial Jurisdiction Act of 2000 (Public Law 106-778), known as MEJA. MEJA permits the prosecution in federal court of U.S. civilians who, while employed by or accompanying U.S. forces abroad, commit certain crimes. Generally, the crimes covered are any federal criminal offense punishable by imprisonment for more than one year. The MEJA remains untested because the Defense Department has yet to issue necessary implementing regulations required by the law.
Now, if these laws are already on the books, at least one of which already incorporates our treaty obligations against torture, why is it necessary to add this one?

I think it is quite reasonable to be suspicious. I think it is natural wonder if the listing of these proscribed activities of torture is actually an enabler to perform these activities, because of the suspension of habeas corpus associated with them, thus excluding the review of these cases by the court system. Effectively, Congress is saying: "No, you can't do any of these things (as listed); but should you do them, we've made your activities exempt from review by courts of law. And, by the way, a judge's ruling is the only way you can be made to stop in any particular case. Too bad no judge is ever going to hear about it. *wink* *wink* *nod* *nod*"

If reports of torture in currently existing prisons on foreign soil run by US Nationals are correct, this legislation also gives a retroactive Congressional stamp of approval to what Bush has been doing under the color of the "unitary executive" for the last several years.
Bill Suttonbedlamhouse on September 29th, 2006 08:04 pm (UTC)
First, prohibiting the actions "as in the Geneva Convention" makes it subject to interpretation of the Geneva Convention. Enumerating the actions specifically in the US code removes such interpretation. Forgive me, wasn't the fact that a president could do something so horrible as interpret a treaty part of the objection in the first place? Now, he can't do it, because it isn't a treaty any more.

Second, your statement:

I think it is quite reasonable to be suspicious. I think it is natural wonder if the listing of these proscribed activities of torture is actually an enabler to perform these activities, because of the suspension of habeas corpus associated with them, thus excluding the review of these cases by the court system. Effectively, Congress is saying: "No, you can't do any of these things (as listed); but should you do them, we've made your activities exempt from review by courts of law. And, by the way, a judge's ruling is the only way you can be made to stop in any particular case. Too bad no judge is ever going to hear about it. *wink* *wink* *nod* *nod*"

kind of reinforces my point. It is the suspension of habeas corpus that needs to be objected to.

However, your concept that the Geneva Convention torture definitions were mentioned so as to enable them is trying to tie your arguments together with bubblegum. In your example the suspension of habeas corpus is sufficient, and saying that McCain is so venal as to mention the specifics so that he can really get away with approving torture appalls me.
Bill Suttonbedlamhouse on September 29th, 2006 08:07 pm (UTC)
"isn't a treaty any more" = "isn't just in the treaty any more"

so many words, so little time...
markbernsteinmarkbernstein on September 29th, 2006 06:45 pm (UTC)
First of all, I generally agree*. While the debate about what constitutes torture is, in concept, kind of stomach-churning, habeus corpus is the greater issue. The powers vested in the Executive by this bill, and the total lack of checks and balances, is very, very scary.

But on that "lesser" issue, I'm a little confused. I followed the directions in your previous post to find SA 5085. The closest thing I saw to anything addressing the Geneva restrictions on detainee treatment was chapter 5, section G, which reads, "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." I read that to say that if DOD declares you to be an enemy combatant, they don't have to honor any portion of Geneva. What chapter and section are you referring to with "a section expressing the right of the President to interpret the Geneva Convention"?

* So, it appears, does Russ Feingold.
Bill Suttonbedlamhouse on September 29th, 2006 07:18 pm (UTC)
The way I read it is that section 6, which enshrines the Geneva Convention into law, does not state that its use is restricted to lawful enemy combatant. The most I saw was the discussion of the type of conflict, and I didn't read that as meaning that this type of conflict is excluded. In other words, I think that, even though section 5 says the detainees don't have Geneva Convention rights, section 6 still makes torture as defined in the Geneva Convention illegal. Again, I could be wrong and I would welcome legal insight to clarify the point (and to explain if it can actually be clarified and not just argued {in a legal sense}).

Section 5 really just sets out the issue that has been under discussion from Afghanistan forward - was the Geneva Convention established to protect the rights of anyone who claims political reasons for an attack, or was it meant only to protect combatants who can be readily identified as such as members of recognized groups in arms against one another.

If we use the former meaning, which means terror groups like al-Quaida and others are afforded Geneva Convention rights, that of course indicates that they can claim the rights without being under any obligation to follow them. In my mind that's no conflict, because the rules we follow should be based on our morals not someone else's lack thereof, but for many people that is a very specific line that has already been crossed.
Bill Suttonbedlamhouse on September 29th, 2006 07:44 pm (UTC)
Reading Feingold's letter, I note with respect his discussion of the "cruel and inhuman punishment" and that the problem with S3930 is that it muddies the waters and provides cover for those who might want to ignore it.

I specifically note this:

"Mr. President, we should just follow the approach originally endorsed by the Senate Armed Services Committee, which would have applied the language of the McCain amendment."

I'll try to see if somewhere there is text of McCain's original amendment.
Phil Parkertigertoy on September 29th, 2006 09:14 pm (UTC)
The nullification of habeas corpus is certainly a bigger issue than whether the executive branch gets to decide for itself whether intimidation with dogs or sleep deprivation is acceptable treatment, instead of leaving it up to international opinion. But I see a bigger issue still, that once again Congress is asserting the authority -- which I vehemently contend they do not have -- to redefine and restrict the Constitutional powers of the Judiciary.

If the Supreme Court is in fact bound by a law passed by Congress which asserts that the Supreme Court has no jurisdiction over an area, then the entire principle of judicial review exists only at the sufferance of Congress, and it will surely vanish entirely. The most basic bedrock of our Constitutional system is that the Supreme Court has the sole and final authority to determine what the Constitution means and what the powers of the three branches are under it. I believe that voting for a law of this type is a clear violation of a Congressman's oath of office and grounds for removal from office at least and probably prosecution for treason.
(Deleted comment)
Bill Suttonbedlamhouse on September 30th, 2006 10:35 pm (UTC)
Unfortunately, there seems to be ample precedent for passing additional laws against actions for which laws already exist on the books, usually differentiated from existing law solely on some subjective measure of intent. I suppose sauce for hate crimes is sauce for terrorist crimes.
(Deleted comment)
Elizabeth McCoyarchangelbeth on October 11th, 2006 09:46 pm (UTC)
Firstly, thank you for the friending permission.

Secondly, I'm glad that I'm not the only person who tried to wade into the exact text. (Though I suspect I more dabbled.) I think you're right; while there was a lot of stuff that I skimmed that made me uneasy, it didn't seem to me that torture was being condoned/permitted -- rather the opposite, though wrapped in legalese.
אליזהkestrels_nest on October 19th, 2006 04:06 pm (UTC)
Funny thing - I am a lawyer
You want a comment from a lawyer? Ok, I can oblige. I read the damn thing. I read it all the way through, and unlike its predecessor, the PATRIOT Act, I didn't thereafter throw the text across the room. (Of course, that would be a waste of a lovely little computer, now wouldn't it? I had the PATRIOT Act in hardcopy, required for my job at the time.)

First comment: I've written legislation. I have, in my career, seen some craptastically written code, but this is egregious even by those standards. Gaaaah!

Ok, that's out of my system now....

Two things in this concern me deeply, neither of which is the torture provision. I think that's getting so much attention because it triggers such a strong emotional response - it's gut-wrenching even to consider for most of us. That means it makes a good "sound bite". That worries me mostly in that it is so badly written that it's impossible to determine what they're banning. Maybe if I read it again...but then again, re-reading could be defined as torture!

One is the suspension of Habeas Corpus. When our government has screamed about "tyrants" one of the invariable accusations is that they arrest and hold people without charge. Hey, what did they just give themselves the authority to do? Hold people without charge. I can't think of anything more fundamental to what we are supposed to be.

And the other is the ability to define anything, at will, as enemy action. To define anyone, for any reason or none, as an "enemy combatant", devoid of all rights. *All* rights - not just habeas corpus, but of the right to counsel, to see and respond to the evidence against you, to face your accuser and ask your own questions, to have contact with the world outside whatever little box HS decides you should be locked up in...the list goes on. As this is written, our government can make people, not just men captured in Afghanistan but John Q. overly vocal Public, disappear. Legalized kidnapping. How charming.

In the early days of this country, John Adams pushed through the "Alien and Sedition Acts". Remember those? The first big showdown between the Executive and Judicial branches. Vocal public disagreement was labelled "Sedition" and made criminal. Joseph McCarthy, with his "House UnAmerican Activities Committee" did essentially the same thing. To my mind, this law is worse, because it relies on provisions that not only suspend habeas corpus, but enshrines a level of secrecy such that I can't come up with an example in our prior history. Now hopefully our judiciary doesn't have their collective heads in dark places.