As much as I don’t like the man, and as much as I can see the arguments of those charging him with war crimes, I must admit, the idea that our Secretary of Defense could be arrested if he traveled to Germany doesn’t sit well with me:
In a suit filed with German federal prosecutors, the New-York based Center for Constitutional Rights accuses Mr Rumsfeld of war crimes linked to the alleged abuse of detainees at Iraq’s Abu Ghraib detention centre.
US investigations into the abuse scandal have concluded that he was not directly responsible.
The complaint was filed in Germany as its laws allow war crimes and human rights violations to be prosecuted across international boundaries.
The prosecutor’s office has not taken any action on the complaint, filed last November.
I’m not quite sure why I find this objectionable. I mean this is Donald "you go to war with the armor you have" Rumsfeld here. Maybe I’m more "patriotic" than I think I am, and some part of me feels that because we’re in the middle of a war these kinds of theatrics are inappropriate. But I don’t think so. From the Center for Constitutional Rights website:
We are asking the German prosecutor to launch an investigation because the U.S. government is unwilling to open an independent investigation into the responsibility of these officials for war crimes and the U.S. has refused to join the International Criminal Court. CCR and the Iraqi victims brought this complaint to Germany as a court of last resort. Several of the defendants are stationed in Germany.
The Pentagon and the U.S. government are taking this suit very seriously. According to the Deutsche Press Agency, Donald Rumsfeld has warned Germany that he will not attend an upcoming security conference in Munich if there is any indication of an investigation going forward, and Chief Pentagon Spokesman Larry Di Rita, calling the complaint "frivolous," said that he raised the case with the State Department: "State is engaged in this. Obviously, it’s something that we’re focused on and very concerned with" Please encourage the German prosecutor not to bow to U.S. pressure.
Defendants in the suit include Secretary of Defense Donald H. Rumsfeld, former CIA Director George Tenet, Lt. General Ricardo S. Sanchez, Major-General Walter Wojdakowski, Brig.-General Janis Karpinski, Lt.-Colonel Jerry L. Phillabaum, Colonel Thomas M. Pappas, Lt.-Colonel Stephen L. Jordan, Major-General Geoffrey Miller, and Undersecretary of Defense for Intelligence Stephen Cambone.
Something about this being "a last resort" smacks of desperation and although I truly believe Rumsfeld should have been asked to resign, desperate actions like this in some way make a mockery of the real issue at hand. Maybe I’m wrong, but I can’t escape the feeling that this minimizes the atrocities committed somehow. Mostly perhaps because it’s not going to accomplish anything more than to embarrass the US.
Today we learn that Rummy twice offered his resignation to the President during the height of the Abu Ghraib scandal, illustrating again that the lack of accountability stems from the top. Gonzales and Bush are the two I hold most responsible for what happened at Abu Ghraib. Maybe keeping Rummy on was a conscious decision to confuse that issue.
Well, it’s not like he won’t have access to habeas coprus, or to counsel, or that he will be detained indefinitely.
And hey, isn’t Torquey Gonzales on that suit too?
So kids, if you don’t want to do the time, don’t do the crime. [/snark]
I don’t have any problem with Schroeder arresting Rumsfeld, but I do wonder why Bush isn’t on the list too. Apart from fear that the US would nuke Berlin for the very thought, of course.
Loose Links (Friday)
¶ Several hours were spent yesterday afternoon on an excursion through the Web logs of Edinburgh and Leith, or at least through the ones that Naked Blog lists on its Blogroster. I found one of these quite congenial. Richard Bloomfield…
Hey, turn about is fair play. I’m sure we’ll find, as our once heady air of invincibility quickly fades with our sinking dollar and rising debt, that there will be quite a few “unilateral” actions that other states can take which won’t sit well with us – and we won’t be able to do much about them, either. I’m sure that threatening with nukes will only go so far on the world stage.
What’s sauce for the goose is sauce for the gander, and pretty soon there’s going to be a heck of a lot more cooks. Preventing stupid backlash is a darn good reason for not doing stupid things that will generate backlash in the first place.
But that principle seems to have escaped the vast mind trust on the right who thinks they stride like gods across the continents.
Something about this being “a last resort” smacks of desperation and although I truly believe Rumsfeld should have been asked to resign, desperate actions like this in some way make a mockery of the real issue at hand.
I was going to disagree with you, but I see your point.
On the one hand, I feel that Rumsfeld (and Bush, and Cheney) deserve to be arrested and put on trial. (Actually, what I feel they deserve is to be locked up in a prison camp for three years solitary confinement. But give every man what he deserves, and who shall scape whipping?) They have been responsible for kidnapping, imprisoning, and torturing, literally hundreds of people.
On the other hand: regardless of whether or not there is a warrant out for their arrest, they will not go on trial. If I could believe that they would receive the justice they deserve in the United States – which I don’t, sorry – I would support you wholeheartedly. But I doubt it.
“US would nuke Berlin”
Yes… how quickly the U.S. is to use the bomb on people.
Hal,
“”unilateral” actions”
I’m confused. What unilateral actions has the U.S. taken? Please cite some examples!
I agree. They’ve done a lot of good work, when no one else was willing to. But this is a stunt. It might be emotionally satisfying for them, but it’s going to do more harm than good. It’s going to confirm all the right’s paranoia about the ICC, and feed into the refusal to let the ICC try to anything about Darfur. (Not that the ICC has much chance of succeeding but it would be better than nothing.) There are people in Guantanamo whose names we still don’t know, and U.S. federal judges who are more and more willing to stand up for the rule of law, and FOIA requests to file, and a need to track down information on what constraints the contractors are under, and a need to lobby the Senate.
smlook,
The President stated in no uncertain terms that the US would invade Iraq unilaterally if necessary. That as much as qualifies as a unilateral action then, because you could argue the only reason Blair went along was to temper the cowboy and the only reason anyone else went along was to cash in the favor later. Regardless, threatening to invade unilaterally, as he did, suggests our new policy is indeed unilateralism.
Well, if Germany wants to harden US opposition to the ICC, this is the way to go about it.
I’m no fan of Rumsfeld, but this is just stupid.
1)We all surrender some sovereignty and independence to live in a lawful society, and nations who want treaties respected must accept that. It is of paramount importance that there be restraints external to the US on its behavior, and that the world make Bushco understand that. Under the Eichman precedent, it would not disturb me to see Rumsfield kidnapped on American soil. If this be treason, hand me the rope.
2) Yes, Bush and Gonzalez may be more responsible, but I think this is best handled a level or two down. Subordinates must understand that they will not be protected but abandoned by their superiors, and that the responsibility for their actions is not transferrable. A Hitler or Saddam is powerless without a hundred people following his orders.
I actually think Rumsfeld is more responsible than Gonzales, for the record.
In retrospect, we should have pushed for Cambone’s resignation right after the photos came out, not Rummy’s, purely as a tactical matter.
I actually think Rumsfeld is more responsible than Gonzales, for the record.
hmmm…interesting. Why?
Katherin makes a lot of sense. If you are alarmed by the direction your country is taking, and you know you are right, work toward making the changes you feel are required. Form grass roots organizations, develop coalitions, raise funds, march, lobby, elect government officials that believe as you do and determine what measures are necessary under what conditions to achieve success. If you fail, there’s nothing left to do but submit endless comments in the blogoshere about how wrong everyone else is. But I’m from the paranoid right, what do I know.
He was in charge of actually giving the orders and setting the operational policy, especially in Abu Ghraib, and he is probably responsible for the heavy use of contractors, who seem to be in the middle of a lot of the horror stories & I’m sure that helped contribute to the breakdown of a clear chain of command. Gonzales didn’t put the brakes on as a good lawyer should have, but I doubt that so much of this was his idea originally. The OLC memo was probably originally meant to apply to the CIA, not the military–forget Geneva, there’s the UCMJ for God’s sake.
(note: that’s all highly speculative. We haven’t seen enough of the documents to know, and may not see them anytime soon.)
Except that we haven’t done anything unilaterally yet.
OT to Katherine: Have you seen this? “A federal court yesterday rejected a move by the Central Intelligence Agency to block a Freedom of Information Act request from the ACLU for CIA records concerning the treatment of detainees held in U.S. custody or “rendered” abroad to countries known to employ torture.”
Except that we haven’t done anything unilaterally yet.
Set up an illegal prison camp in Guantanamo Bay.
Phil–muchas gracias. We still may be a while away from actually seeing those, however.
Also OT, on a related God-bless-Article-III note:
This strikes me as a very, very bad way to get a federal judge on your side. I don’t think they’d be half this uppity if the administration had shown any restraint.
Prison camps don’t tend to be a multilateral effort, so this comment makes next to no sense to me.
oops, sorry, here’s the source for that.
Jonas: Prison camps don’t tend to be a multilateral effort, so this comment makes next to no sense to me.
The decision to set aside the Geneva Convention relative to the Treatment of Prisoners of War and illegally imprison hundreds of people, including the citizens of allied nations, on the shaky grounds of “we say they’re all bad men” was a unilateral decision on the part of the US. Setting up the oubliette which made this criminal behavior possible was, I suppose, a secondary but crucial action. (If Guantanamo Bay had not existed, would Bush & Co have had to invent it?)
It would have also been a unilateral decision to comply with the Geneva Convention.
Bob McMamus wrote:
I want a ruling from the moderator as to whether this falls within the posting rule that anyone who calls for the assassination of any politician will be banned immediately or if they are going to let it slide because Bob merely called for the “kidnapping” of our Secretary of Defense.
Keep in mind that however you rule will be construed as precedent for what’s permissible in the future.
Where did Bob “call for the kidnapping of the Secretary of Defense?” Exact quote, please.
Jonas: It would have also been a unilateral decision to comply with the Geneva Convention.
But that decision was made in 1977, when the US last ratified all the Geneva Conventions. I thought we were discussing recent unilateral decisions?
Phil wrote:
I already provided the quote, but if you want to accept Phil’s implicit argument so long as we preface our remarks with “it would not disturb me if . . .” or the equivalent weasel-words, we’re not really calling for kidnapping or assassination but merely speaking “hypothetically,” then that would be good to know as it will help set the tone in the future.
Thorley, if you think a commenter has violated the posting rules, e-mail the moderators.
I personally don’t think that kidnapping is identical to assassination, but it will be up to the mods to decide.
Jonas Cord wrote:
Quite correct as members of Al-Qaeda don’t fall within the requirements to be eligible for the privileges and protections afforded under the Geneva Convention. They are neither High Contracting Parties nor do they follow the protocols themselves and to suggest that they are entitled to these protections and privileges only undermines the limited value of the accords which is in their reciprocity.
While he’s doing that, I call for a 10-yard mindreading penalty on Thorley Winston. I think I’ll leave it up to Bob to explain what Bob meant, rather than rely on Thorley. That’s the normal sort of way this is done, yes?
Quite correct as members of Al-Qaeda don’t fall within the requirements to be eligible for the privileges and protections afforded under the Geneva Convention.
If only we had gone through the trouble to discover how many of those prisoners were actually al Qaeda members! Which we didn’t. Which is we have to, you know, let a lot of them go now. Whoops!
Thorley: Quite correct as members of Al-Qaeda don’t fall within the requirements to be eligible for the privileges and protections afforded under the Geneva Convention.
Indeed. But all detainees are entitled to be assumed to be eligible for the privileges and protections afforded under the Geneva Convention, until the Detaining Power proves via “competent tribunals” that they are not.
As Phil pointed out just above, it would have saved the US considerable embarrassment if Bush & Co had simply followed the requirements of the Geneva Convention, rather than unilaterally discarding them.
I agree 100%. That being said, I think that the use of “unilateral” in these cases is rather silly as any decision made by the US Government is “unilateral,” unless made with other nations – which does not make any sense in this context.
Jonas – fair enough. I’m not sure I agree, but I certainly think it’s not worth arguing about.
Phil wrote:
Fine then I’ll call for 30 minutes in the penalty box as well as forfeiture of all pay for the season on Phil Dennison for failure to make a substantive rebuttal. 😉
As far as the subjective intention of the poster, the rules make no allowance for a poster to come back and say “gee, I really didn’t quite mean it that way” as a means for skirting the rules. I’m looking for a ruling from the moderator on the (a) whether this falls within what a reasonable person would say is call for the assassination (or in this case kidnapping) of a politician and whether merely prefacing with “it wouldn’t bother me if . . . “ (or some other weasel-words) is going to be enough to say “the poster didn’t actually called for such-and-such but was speaking hypothetically” and (b) whether the “no calls for assassination” rule applies to only assassinations, in which case we can call for kidnappings or other things sort of their actual deaths.
For the love of God, Thorley, e-mail the mods with all of your thoughts on this Terribly Important Issue and quit taking up this thread with it!
See, Thorley, that’s just it — you’re not asking for a ruling on what Bob said, you’re asking for a ruling on what you think he said. While I’m sure you’re a reasonably fluent interpreter of the English language, let’s first let the mods decide if Bob said what he said, or what you said, hmmmm?
Also, what Jes said. Email the mods. There’s a little email link right there in the upper-left corner that goes to all of them. Just click it.
Jesurgislac wrote:
Actually it doesn’t state that at all. The tribunal provision of Article 5 is a limited protection for only those that fall within the enumerated categories of Article 4 (e.g. “lawful combatants,” their civilian support staff, inhabitants who spontaneously fight but within the rules of war, etc.). It is not a blanket protection for parties that don’t fall within Article 4 (e.g. “unlawful combatants” or other issues not addressed by the GPW, etc.) nor is there is even a presumption that a detainee is automatically afforded that protection unless you can show they fall within Article 4.
Actually it doesn’t state that at all.
Actually, it does. Article 5: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”
In short, if you doubt (as Bush & Co plainly did) that the people you hold prisoner fall under the provisions of Article 4, you can hold a “competent tribunal” and determine if they are entitled to the protections of the Convention, or if they’re not.
What Bush & Co did was decide that they didn’t need to follow the provisions of the Convention: they could just decide, without any competent tribunal, or indeed any other process, that their prisoners weren’t entitled.
That was illegal, and as Phil ably pointed out, it was also very silly of them.
Keep in mind that however you rule will be construed as precedent for what’s permissible in the future.
So that’s how precedents work! 😉
It did strike me when Bob first posted the bit in question that he was skirting close to the edge of the posting rules. What kept him from crossing over, IMO (and my co-bloggers can certainly chime in here) includes 1) the context, in which, the assertion by one group is already that Rumsfeld commited crimes, 2) the “wouldn’t disturb me” qualification, 3) the clear declaration that kidnapping him had an internationally legal precedent and that if such actions were acceptable wrt Eichman, then, debatably (which is what we do here), they would be acceptable for other world leaders accused of war crimes, and 4) the assumption that after the kidnapping Rumsfeld would still receive a fair trial.
I’m already on record as saying I think this is a bad idea, but, as adults (?), we can surely discuss whether leaders accused of war crime should be kidnapped to stand trial or not. I vote no, unless they’ve been implicated in another ongoing war crimes trail.
That’s my mod ruling, anyhow.
Edward,
“The President stated in no uncertain terms that the US would invade Iraq unilaterally if necessary.”
That’s just silly. Even in your own quote it says if necessary. That doesn’t mean we took unilateral action. Taking unilateral action in Iraq means we acted alone in Iraq.
“because you could argue the only reason Blair went along was to temper the cowboy and the only reason anyone else went along was to cash in the favor later.”
Yes and it could just a easily be argued and more likely true that he did it because Blair thought it was the right think to do. Which is his stated reason. What about Australia, Poland and all the other countries?
“Regardless, threatening to invade unilaterally, as he did, suggests our new policy is indeed unilateralism.”
Please point to a time or explain to me how that has not always been the policy of this country? Even John Kerry argues today that is the policy.
Jes,
” I thought we were discussing recent unilateral decisions?”
I must admit I thought we were only talking about military invasions.
Thorley,
“I want a ruling from the moderator as to whether this falls within the posting rule that anyone who calls for the assassination of any politician will be banned immediately”
I’m not a moderator, but as far as I can tell the posting rules mostly apply to those on the right.
Jesurgislac wrote:
(My emphasis added)
So which of the enumerated categories in Article 4 are you alleging that they fell into? Keep in mind that neither “being turned because someone wanted to get rid of a rival warlord who wasn’t really part of the Taliban” nor “I was captured by mistake without proper identification” are categories under Article 4 of the GPW.
Thorley, you’re missing the point.
Article 5 requires competent tribunals if any doubt arises. It doesn’t specify how much doubt has to arise – anything from “just a little” to “major doubts”. The point that I am making is that competent tribunals would have made sense and were a legal requirement. What is difficult for you to understand about either of those points?
Keep in mind that neither “being turned because someone wanted to get rid of a rival warlord who wasn’t really part of the Taliban” nor “I was captured by mistake without proper identification” are categories under Article 4 of the GPW.
Nor is “being kidnapped from a neutral country”, as has happened to at least nine prisoners in Guantanamo Bay.
I’m not entirely sure what to make of this comment, frankly. You acknowledge by this (I assume) that some of the prisoners in Guantanamo Bay were there illegally in any respect – they didn’t even belong in an ordinary PoW camp. Competent tribunals should have sorted out those prisoners from the rest, too – yet another good reason for them, if one were needed.
smlook: I’m evidence that posting rules apply to the left as well at Obsidian Wings. Sometimes I let rancor get the best of me and I start commenting like some of the tough guys on the right do, thus my conclusion is that when someone on the left begins acting like someone on the right, posting rules get invoked.
That’s not a complaint, just an observation.
Let’s amend “someone on the right” to “some on the right in the world at large”.
“Keep in mind that however you rule will be construed as precedent for what’s permissible in the future.”
Indeed. To quote:”Eh. Ban away”. It was a very passive statement to say I would “not be bothered”. As in not lose sleep. Certainly it does not explicitly call for the action, or imply that I would actively support or encourage it.
“Eichmann in Jerusaleum” was a very important book for me, as in raising the conflicts between the sovereignty of nations and our roles as members of the international community. The conclusion I drew from it was that the kidnapping of Eichmann was wrong, precisely because it was a violation of international law and norms.
But I think Arendt’s purpose was to try and establish an idea that international law and norms should take precedence over local sovereignty and nationalist feelings (which is why the kidnapping was wrong) at least in individuals faced with conflicts. This to me is the most important lesson to come from WWII and the Nuremburg trials. This principle is under direct attack and threat from the nation that did the most to establish it fifty odd years ago.
For instance, the treatment of Khalid Sheikh Mohammed is not dissimilar to the treatment of Adolf Eichmann, in practice and expressed principle. Except of course Eichmann was given a public trial, with a lawyer and a chance to confront his accusers. Excuse my outrage that my country should act this way, victimized by several orders of magnitude less than the Jews.
Now should a reputable foreign tribunal find through investigation that Rumsfeld was indictable, and the Bush administration was protecting him from prosecution, I would suggest that those of us who think an int’l community of law important would be under great conflict.
I would be greatly conflicted. I am already.
The time is not here. I support the German investigation. Should they indict, I would ask that Rumsfeld be extradited. Should the administration refuse…then we are in a an even more lawless condition.
Jesurgislac wrote:
Actually my point is rather clear; it’s yours that needs work. You started by making the usual false allegation that we somehow discarded the GPW because we didn’t use tribunals for detainees. I pointed out that they weren’t applicable in this case and asked you to point to which of those detainees that you believe should have received an Article 5 tribunal which applies only to detainees who fall into an Article 4 category would have been in an Article 4 category and which category. Article 5 doesn’t require anyone to use a tribunal for any persons in other circumstances.
If you cannot meet even this minimal burden, then your entire argument about the GPW as it applies to tribunals and allegedly “illegal” detentions under the GPW is fallacious.
The time is not here. I support the German investigation. Should they indict, I would ask that Rumsfeld be extradited.
That’s pretty much how I see it. If any citizen (of any country) is indicted in a foreign country, they should rely on extradition. Political pressure to extradite, if needed. No kidnapping. That’s wrong.
“I don’t have any problem with Schroeder arresting Rumsfeld, but I do wonder why Bush isn’t on the list too.”
Possibly because Bush as Head of State is covered by by the doctrine of sovereign immunity, but those under him are not. But I have no idea if this is a concept in German law.
Thorley: I pointed out that they weren’t applicable in this case
No, you’re still missing the point. Given that Article 5 competent tribunals are required before detainees can be removed from the protection of the Geneva Convention, there are no circumstances in which they are not applicable.
(Unless the prisoners are clearly being held under Article 4 and the Detaining Power does not wish to attempt to remove them from it. But that clearly doesn’t apply to any prisoner sent to Guantanamo Bay.)
You seem to think that the default category for prisoners is outside the Geneva Convention: that the GC is exclusive, not inclusive. I think you’re wrong, for two reasons.
First, because of the way the Geneva Convention is structured. Article 4 specifies who is entitled to its protection. Article 5, following Article 4, begins “Should any doubt arise” – in short, if the Detaining Power thinks that a prisoner does not belong in any of the categories under Article 4 – then competent tribunals are required. The intent is clearly inclusive – all prisoners are presumed to fall under Article 4, until the Detaining Power shows (by means of a competent tribunal) that a prisoner does not fall into any of the categories of Article 4.
Second, because presumption under US law is “innocent until proven guilty”. The judicial system of the US is that neither the administration nor any other power in the US is entitled to simply decide, without due process, that a person is guilty.
And finally, I note you still haven’t responded to the point that competent tribunals would, simply, have been sensible – since they would also have (hopefully) weeded out all the people who were not even PoWs, let alone al-Qaeda or other criminals: those kidnapped, those turned in by warlords, those not guilty of committing any belligerant act against the enemy.
TW: I would not mind it if Rumsfeld were pinched REALLY HARD. Or given a noogie. Do I fall under the ban on assassination talk?
The context is a thread about kidnapping people to stand trial. If this were a thread about Middle East kidnappings and beheadings — and then he’d used a whole different set of words to express an entirely different point — then yes, he should be banned.
I hereby recommend that Bob be banned in the alternate universe that TW is apparently visiting.
… for a court that doesn’t even have the death penalty, to forestall any attempts to bridge the two universes, possibly causing a rift between the two worlds and a kickin’ comic book crossover.
I gotta say, I find it ludicrous to approach the Geneva Conventions from the standpoint that the Article 5 provisions for tribunals apply only when someone previously thought to be in an enumerated category in Article 4 suddenly falls under doubt. For obvious reasons, assuming that everyone not otherwise obviously in one of those categories is fair game for
mistreatmentnot having the Conventions applied is . . . “problematic” is the most charitable word that comes to mind. The very fact that we have had to let so many people go after three effing years stands as testimony to that.“I’m not a moderator, but as far as I can tell the posting rules mostly apply to those on the right.”
I don’t want this to devolve into another posting rules issue. But I suspect this happens because I have a fairly high tolerance for junk from opposing commentors rather than from institutional bias. But I have been watching more closely as of late.
It took the Spanish court indicting Pinochet for the Chileans to summon the political will to try him. Incredibly, he is now on the verge of going to trial. I never expected this day to come. A chink in the almost seamless wall of impunity for Latin American crimes against humanity…
So let’s say we would like to see Donald Rumsfeld tried for war crimes in a U.S. court. I certainly would, but I am not a lawyer. What is the process? Assume it’s 2009, and that Rumsfeld is no longer a cabinet member. Who has standing, and in what court should the charge be brought?
The final line of my first comment was a vague recollection of a quote, I think Thomas More’s final defiant speech after conviction in “A Man for All Seasons” Been googling without success.
I believe the Geneva, Hague, and Torture conventions take precedence over US law, and are binding upon individuals. Should my nation withdraw from those treaties, I do not believe I would be released from my obligations. Should my government engage in sustained, flagrant, defiant violations of those conventions in an attempt to discredit and devalue them, actions that might be considered treasonous or seditious might be appropriate. Certainly such a government would take steps to broaden sedition’s definition.
Others should listen to their own conscience, but I take my own current position to be not so far from Thomas More’s. My heart is broke in half. But at least Thomas was wise enough to keep silent and obscure. If I spoke unwisely, ban me. I would accept your judgement graciously.
Bob, I ruled that you did not violate the posting rules. The context was clear in my opinion. You do understand why Thorley (or other people) would feel it’s appropriate to object to such a statement, though, no?
“You do understand why Thorley (or other people) would feel it’s appropriate to object to such a statement, though, no?”
Yes, I do understand.
Bob McManus said: I believe the Geneva, Hague, and Torture conventions take precedence over US law, and are binding upon individuals.
My understanding is that the Convention against Torture is U.S. law (in the form of the implementing legislation passed by Congress in 1994).
Who can use this law to charge Donald Rumsfeld, and how? Forget the likelihood of it actually happening; I’m interested in the how-to.
Treaties are binding on U.S. Courts, but the Convention Against Torture was ratified with the understanding that it would not be self-executing, so it did not create a cause of action to sue or charge someone in U.S. courts by itself–Congress had to pass implementing legislation.
There are a bunch of relevant laws. First, and most important for your question, is the Torture Statute, 18 USC 2340a. It states that:
Rumsfeld is clearly not guilty of torture under this definition. The only conceivable charge is conspiracy to torture. There are several obstacles here: first, the statute says “whoever outside the United States” and Rumsfeld has stayed in D.C. However, “outside the U.S.” probably refers to where the torture takes place, not where the agreement takes place. Second, and more importantly, I don’t believe Rumsfeld is guilty of conspiracy to commit torture. For a conspiracy charge to stick, you have to explicitly plan and agree to a criminal activity. We’ve not seen evidence of that and I would be completely shocked if Rumsfeld had been that careless. Third, it’s a criminal law; the U.S. Department of Justice would have to prosecute. I have a very, very difficult time imagining any administration, Democratic or Republican, doing that.
There are other statutes implementing the C.A.T. but they’re not relevant to this discussion. There’s also the War Crimes Act, about which I know close to nothing. Here’s the text:
At first blush this sounds like a stronger statute, but I doubt it’s interpreted very expansively and again, I doubt DOJ would ever prosecute. Someone else needs to step in though, I don’t know much about the war crimes statute.
For reference, the definition of “torture” cited in 18 USC 2340 is…
Which I don’t believe has ever been cited here before, arguments about the definition of torture notwithstanding.
“I have a very, very difficult time imagining any administration, Democratic or Republican, doing that.”
In an utterly hypothetical way, I’d like to point out that while that’s true in the near and mid-term, things sometimes seem very different after thirty or forty years have passed. Of course, since Rumsfeld is 72, I wouldn’t advise waiting for him to be put in the dock.
“torture” means 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;
As Anarch knows, this is not the definition ratified by the Senate of the United States of America.
so on and so forth
The intent to inflict permanent damage appears to be the key driver.
Timmy: you’re incorrect. You’re citing reservations to a treaty, which courts usually defer to in interpreting a treaty’s language. But Anarch cited a statute implementing the treaty, passed by Congress and signed by the President, after the treaty was ratified. Insofar as they are contradictory, the statute overrides.
(additional legalese if desired: It’s called the “last in time rule”. You interpret the treaty and the statute to both by binding if possible, but if there’s a contradiction between a treaty and a statute the one that was passed later wins. Anyway, another of the reservations to the Convention Against Torture said it was not self-executing, meaning it couldn’t be enforced by the courts until Congress passed a statute to do that. There is just no way a court applies a Senate understanding instead of the definition of a crime in the U.S. Code.)
Well Katherine not being a lawyer, the following seems to conflict with your comment.
The Senate’s advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Convention:
How is subject to construed in the nation’s law schools? Without the language, I doubt the treaty would have been ratified by the Senate. Am I incorrect in my observation.
There is just no way a court applies a Senate understanding instead of the definition of a crime in the U.S. Code
Courts apply “understanding” all the time in their decisions, isn’t it what SCOTUS is all about?
So, I understand you all to be saying that there is no way for Rumsfeld to be charged or tried under U.S. law.
That’s all I need to decide I’m completely in favor of the German case proceeding as far as it can.
In the meantime, how about Gen. Miller, the one who “Gitmo-ized” Guantanamo and then did the same for Abu Ghraib in fall 2003?
Gary Farber said: things sometimes seem very different after thirty or forty years have passed.
A pleasant thought. It took thirty years for Pinochet to get to the dock. What an excellent spur to exercise more and drink less, so that I’ll be around for the trials in 2035. How old is W? He seems to be in excellent shape, that mysterious device under the coat notwithstanding.
Timmy, the anti-torture statute has legal force independent of the treaty. It would be valid and binding even if there had never been a treaty and even if we unilaterally withdrew from the treaty, because Article I of the Constitution gives Congress the power to define and punish offenses against the law of nations. I asked this exact question directly to my (fairly conservative) professor last semester & that is what he answered. The stuff about the “last in time rule” and the legal effect of treaty reservations comes from a textbook written not by some hippy dippy international law professor, but by Jack Goldsmith, by a conservative guy who worked for the O.L.C. under the Bush administration.
Foreign affairs law is incredibly confusing & frustrating and does not provide a clear answer to a lot of questions. This is a question it answers clearly.
I am not going to argue this with you further. Other readers will just have to decide which of us they find more credible.
Katherine and Anarch, thanks very much for the information. My comments may have sounded flip, but that’s not how I really feel about this at all. I’m aware of a man, Charles something, who is already pressing charges under one of these statutes, I think the War Crimes Act. I’ll look that up and report back.
Katherine: Other readers will just have to decide which of us they find more credible.
If only all decisions we had to make were that easy…
What Katherine said. With bells on.
“Foreign affairs law is incredibly confusing & frustrating and does not provide a clear answer to a lot of questions.”
At risk of asking a terribly dumb question, but since although I’ve had considerable experience in the (somewhat distant, at this point, but a fair number of cumulative years, nonetheless) past working for law firms, and having read a considerable amount of American law as a lay person, I’ve never gone to law school or had any formal training whatever in the law (not to mention, as I’ve mentioned previously, having not had more than a year of college — oh, darn, I mentioned it), is “foreign affairs law,” as you refer to it, a distinct subject of domestic U.S. interpretation of international law, or merely a variant term, or what, Katherine?
Jes said: “If only all decisions we had to make were that easy….”
My default assumption, based upon past experience, and my judgment, is that Katherine generally knows what she is talking about when she speaks of it, and is likely correct. (Ditto hilzoy, among others here.)
But Anarch cited a statute implementing the treaty, passed by Congress and signed by the President, after the treaty was ratified. Insofar as they are contradictory, the statute overrides.
But they don’t contradict, now do they Katherine. Intent and permanent harm remain the key drivers as the following illustrates.
TITLE 18 > PART I > CHAPTER 113C > § 2340 Prev | Next
§ 2340. Definitions
Release date: 2004-08-06
As used in this chapter—
(1) “torture” means 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;
(2) “severe mental pain or suffering” means the prolonged mental harm…
Again the intent to inflict permanent damage appears to be the key driver and it has been mentioned several times under the treaty language here. Current Code is inline with the treaty language and that language certainly could be use to argue the intent of Congress which was my point.
Katherine says: ” Second, and more importantly, I don’t believe Rumsfeld is guilty of conspiracy to commit torture. For a conspiracy charge to stick, you have to explicitly plan and agree to a criminal activity. We’ve not seen evidence of that and I would be completely shocked if Rumsfeld had been that careless.”
Except there is evidence. The list of interrogation techniques Rumsfeld approved, but which we are not allowed to see. I think the onus is on Rumsfeld to prove they do not constitute torture, given everything we have found out about Guantanamo, Bagram and Abu Ghraib. From the NYT, January 1 2005: “The frustration caused by Mr. Kahtani’s refusal to cooperate set off a high-level review of allowable interrogation techniques, according to documents released earlier by the Pentagon. After officials at Guantánamo asked for more leeway in dealing with Mr. Kahtani, Defense Secretary Donald H. Rumsfeld in December 2002 approved a list of 16 techniques for use there in addition to the 17 methods in the Army Field Manual. He suspended those approvals the next month after some Navy lawyers complained that they were excessive and possibly illegal. But after a review, Mr. Rumsfeld issued a final policy in April 2003, approving 24 techniques, some of which needed his permission to be used.”
And what exactly is extraordinary rendition if not a policy of conspiracy to commit torture?
Oh great! Guilty until proven innocent…
Not exactly. We have an order. We have torture. Reasonable doubt disappeared a long time ago.
Besides, I’m not saying he should be locked up now. I’m saying the evidence should be presented in a court. Which is exactly what the CCR is asking for.
Smlook: Oh great! Guilty until proven innocent…
Rumsfeld has the same opportunity anyone else ought to have*: to present himself in court, where he will be presumed innocent unless he can be proven guilty.
*I say “ought to have” because of course that is a right that Rumsfeld has sought to deny to many hundreds of people.
Again the intent to inflict permanent damage appears to be the key driver and it has been mentioned several times under the treaty language here
Um, neither “severe physical or mental pain” or “prolonged mental suffering” is the same thing as “permanent damage,” so the passage you quoted does not support your repeated thesis, and if there is such a passage, you have not quoted it. Neither of the sections you bolded suggest, implies or insists that the damage must be permanent, only “severe” or “prolonged.” Of course, English is only my first language, so I may not be reading it correctly. If you don’t know the differences between “severe,” “prolonged” and “permanent,” I’d be happy to explain them to you.
Loose Links (Friday)
¶ Several hours were spent yesterday afternoon on an excursion through the Web logs of Edinburgh and Leith, or at least through the ones that Naked Blog lists on its Blogroster. I found one of these quite congenial. Richard Bloomfield…