McCain Torture Bill - Ticket to the Hague for GOP Lawmakers

leveymg

(1000+ posts) Send PM | Profile | Ignore

Tue Sep-26-06 11:08 AM
Original message

McCain Torture Bill - Ticket to the Hague for GOP Lawmakers

The Senate version of Bush�s torture Bill � S.3929 � is a classic �bait and switch� measure. It�s not a �compromise�, except between two versions of the same legislation, either of which if passed would trigger international war crimes prosecutions against the Bush Administration and GOP Congressmen. The House version is even worse, as it would among other things, seek to retroactively legalize acts of torture, no matter how severe, already committed by U.S. officials.

But, this is a highly risky strategy for GOP lawmakers. The proposed legislation violates The UN Convention Against Torture (CAT), as well as Common Article Three of the Geneva Conventions. U.S. officials partularly risk prosecution under the CAT, which contains a mechanism whereby any foreign state signatory to the convention could initiate prosecution of U.S. officials who ordered, condoned, assisted or incited torture of any person.

Under Article 21, if the U.S. shows that it is either unable or unwilling to prosecute such crimes in its own courts without �unreasonable delay� UN hearings could start immediately, leading toward war crimes trials. Passage of the proposed torture law -- either the House or Senate versions -- could trigger those prosecutions, opening Members of Congress, and Administration officials, to charges of complicity with war crimes.

***

Official Complicity with war crimes is potentially a violation of Third, Fourth, Sixth and Seventh Nuremberg Principles, which state:

Principle III
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law.

Principle IV
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Principle V
Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Principle VI
The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
(b) War Crimes:
Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation of slave labor or for any other purpose of the civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the Seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
(c) Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

Principle VII
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.

The McCain-Warner-Graham Senate Bill is not a clean bill. It has not corrected the violations of international law contained in the House version. Instead, it condones or seeks to legalize activities which are clearly war crimes and treaty violations under international law, including blocking access to court review (elimination of the ability to file habeas corpus) for detainees, rendition (�refoulement�) of prisoners to places where they would be subject to torture, and physical and psychological abuses that amount to torture.

1. SENATE COMPROMISE BILL VIOLATES UN CONVENTION AGAINST TORTURE, ARTICLE 1, ATTEMPTING TO REDEFINE TORTUROUS ACTS AS LEGAL.

The McCain-Warner Compromise as initially presented allowed the CIA to continue various forms of torture, including locking prisoners in cold rooms, severe sleep and food deprivation, and water-boarding. In the face of severe criticism, changes have been proposed by the Bill's sponsors, but the Senate Bill still allows specific forms of physical and psychological abuse that violate international standards. The UN Convention, which defines torture, forbids the following:

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.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

On Monday, the Washington Post reported that Senator John McCain would commit himself to the banning of only three specific practices, induced hypothermia, extreme sleep deprivation, and water-boarding. http://www.washingtonpost.com/wp-dyn/content/article/2006/09/24/AR2006092400952.html

However, a number of other specific physical and psychological abuses would be allowed under the Senate Bill. S.3929 introduced by Mitch McConnell (R-KY): http://thomas.loc.gov/cgi-bin/query/z?c109:S.3929:%22

Highlights --

1) approves the infliction of "transitory mental harm" (Sec. 950ss)
2) approves the infliction of "cuts, abrasions, and bruises" (Sec. 950ss)
3) Some risk of death is acceptable, as is minor "loss or impairment of the
function of a bodily member, organ, or mental faculty" (950ss b.2)
4) Non-severe physical pain has been deemed acceptable, as has minor
disfigurement.(950ss b.2)
5) The 1996 War Crimes Act is amended to allow "pain or suffering
incidental to lawful sanctions" for those in US custody (2441ss)

For the sake of comparison, contrast the above guidelines for CIA detainess with the Geneva Convention, Article 17:

"No physical or mental torture, nor any other form of coercion, may be
inflicted on prisoners of war to secure from them information of any kind
whatever. Prisoners of war who refuse to answer may not be threatened,
insulted, or exposed to any unpleasant or disadvantageous treatment of any
kind."

2. SENATE COMPROMISE BILL VIOLATES UN CONVENTION AGAINST TORTURE, ARTICLE 3, FORBIDDING DETAINEE REMOVAL TO COUNTRIES THAT PRACTICE TORTURE.

The McCain-Warner Compromise does not forbid the practice of �extraordinary renditions� of �high value� detainees to foreign countries where they would be subject to torture.

Specifically, the UN Convention Against Torture, to which the U.S. is a signatory, and implemented through the War Crimes Act of 1996 and the Torture Act of 2000, forbids torture and associated crimes. Article 3 explicitly forbids renditions to places where a detainee might be subject to torture:

SENATE COMPROMISE BILL VIOLATES UN CONVENTION AGAINST TORTURE, ARTICLE 3, FORBIDDING DETAINEE REMOVAL TO COUNTRIES THAT PRACTICE TORTURE.

The McCain-Warner Compromise does not forbid the practice of �extraordinary renditions� of �high value� detainees to foreign countries where they would be subject to torture.

Specifically, the UN Convention Against Torture, to which the U.S. is a signatory, and implemented through the War Crimes Act of 1996 and the Torture Act of 2000, forbids torture and associated crimes. Article 3 explicitly forbids renditions to places where a detainee might be subject to torture:

Article 3
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.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

3. SENATE COMPROMISE BILL VIOLATES UN CONVENTION AGAINST TORTURE, ARTICLES 13-16, GUARANTEEING THE OPPORTUNITY FOR VICTIMS OF TORTURE TO BE PROMPTLY HEARD AND GIVE EVIDENCE OF THEIR ABUSE.

By eliminating the right of Habeas Corpus to CIA detainees, the McCain-Warner Bill altogether curtails the access to federal court and international court to seek injunctions and relief from their torture. This is a direct violation of the CAT:

Article 13
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.
Article 14
1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.
2. Nothing in this article shall affect any right of the victim or other person to compensation which may exist under national law.
Article 15
Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
Article 16
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.
2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion.

4. SENATE COMPROMISE BILL VIOLATES COMMON ARTICLE 3 OF THE GENEVA CONVENTIONS, THAT GUARANTEE ESSENTIAL DUE PROCESS AND THE RIGHT OF APPEAL..

The McCain-Warner compromise bill contains provisions that make it impossible for detainees to seek judicial review of the conditions of their detention, including abuses of their persons, through the national courts or international courts. The draft Bill states:

Sec. 108:

"No person may invoke the Geneva Conventions...as a source of rights in any
court of the United States or its States or territories."
"...the President has the authority for the United States to interpret the
meaning and application of the Geneva Conventions..."

The United States is a party to both the Fourth Geneva Convention and the International Covenant on Civil and Political Rights, which lay out several requirements for trials of civilians detained as �enemy combatants�. These requirements include:
� the right to be informed of charges;
� to be tried without undue delay;
� to prepare and present a defense; to be assisted by counsel;
� the right not to be forced to confess, and to be presumed innocent until proven guilty.

Common Article 3 of the Geneva Conventions of 1949, which applies to noninternational armed conflict forbids:

�the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.�

Habeas corpus � the right of submission to a federal judge to challenge mistreatment or the terms of confinement -- is a central guarantee established in the 13th Century. Should the Compromise Bill be passed, it would effectively close the door to any judicial redress other than a summary review by the DC Circuit Court of issues bearing strictly on the conduct of military tribunals which would decide guilt or innocence, and impose sentence, up to and including death.

Under the present Bill, evidence remains privileged and confidential, and there is no guarantee that detainees or their attorneys can cross-examine witnesses or can appeal the denial of review of evidence. Even the appeal process does not meet the normal standard of due process, as guaranteed by the U.S. Constitution and Common Article 3.

These amount to very grave breaches of international law. Contrary to what the GOP bills are attempting to do, Congress cannot amend these conventions or the obligations of the United States to observe them. Furthermore, passage of an amendment that would seek or have that effect would likely trigger international enforcement under the Conventions against Torture and the Geneva Convention. For a detailed summary of the enforcement mechanism, see, http://www.dailykos.com/story/2006/9/21/125733/035

While it�s less odious than the House Judiciary Committee measure, HR 6054, which left the original Administration Bill intact, this is not a law that any lawmaker should put his name on, unless it is to be remembered along these guys:

NAME:
Hermann Goering
Former Air and Reichsmarschal of Nazi Germany.
STATUS:
Convicted January 1946 for crimes against humanity by the Nuremberg Tribunals. Committed suicide prior to execution of sentence of death.

NAME:
Slobodan Milosevic
Former President of Yugoslavia
STATUS:
Surrendered April 1, 2001 to Yugoslav authorities.
Turned over to The Hague Tribunal, June 28, 2001 by the Serbian government.
CRIME:
Formally charged with crimes against humanity for actions in Kosovo - May 27, 1999. No charges have been filed for actions in Bosnia or Croatia.
LOCATION:
The Hague, Netherlands
(deceased)
home.earthlink.net/.../main/criminals/c1.htm

home.earthlink.net/.../warcrim/blaskic.gif

NAME:
Tihomir Blaskic
Bosnian Croat General
STATUS:
Surrendered in April 1996.
Convicted March 3, 2000 of 20 counts of crimes against humanity, war crimes and grave breaches of the Geneva Conventions.
Sentenced to 45 years in prison.
Defense is appealing the ruling.
CRIME:
Charged with 20 counts of crimes against humanity, violations of the laws or customs of war and grave breaches of the Geneva Conventions. In addition, charged with leadership responsibility for attacks on Moslems in and around Ahmici in 1993.
LOCATION:
The Hague, Netherlands
home.earthlink.net/.../main/criminals/c1.htm

NAME: Foday Sankoh
As the leader of the Revolutionary United Front (RUF), Foday Sankoh used brutal tactics to sieze and maintain control over Sierra Leone's diamond mines, including extensive use of child soldiers, systematic amputation of limbs, and rape as a means of terrorizing civilians into submission. Even after the UN granted immunity to Sankoh while negotiating for peace in Sierra Leone, Sankoh continued his reign of violence, at one point kidnapping several hundred UN peacekeepers. Sankoh was arrested for his crimes and indicted by the UN-backed Special Court for Sierra Leone, but died before he could be tried. www.globalpolicy.org/.../wanted/wntdinxarch.htm

__________________________________________
2006. Mark G. Levey