Isn't it a little late to claim any moral high ground on this after causing years of international embarrassment and potential danger to American prisoners?

Rules? sense when do these Republic Party goons worry about "rules"?

Our treaties are placed higher in law than any Acts of Congress or Presidential Directives. In fact, our treaties (by vote of 2/3 of the Senate) are second in importance after the Constitution.

The Geneva Convention is the LAW, and any attempt by President Bush to circumvent this treaty is in itself a war crime.

Bush and Cheney's interrogation directives are War Crimes. They should be tried as such.

Uhm.., why not just follow the Geneva Convention, like they were obligated to do from the beginning?

Lefties, the Geneva Convention applies to organized, state-run militaries, not terrorists who operate for no country. Big difference.
If it were up to me I'd say to hell with all interrogation rules of head-chopping terrorists. The more torture done to them the better. I'm so mean and nasty, aren't I?

"If it were up to me I'd say to hell with all interrogation rules..."

Yes John, that would turn the tide in the war on terror & Islamic fanatics will stop supporting terrorists.

I don't recall chopping heads being very Christian, though some in this country would like to believe the US should be a "Christian" country.

danny & RomanB:

You both have made several assumptions about the Geneva Conventions which are simply not true. [There are at least four of them so its plural “Conventions,” and not “Convention.”]

First, not that it matters here, but it is simply untrue that treaties are always second in importance only to the Constitution. It is more correct to say that treaties are equal in dignity to federal statutes. This is because: (1) both statutes and treaties must adhere to the negative provisions of the Constitution; and (2) any rule embodied in a treaty that modifies or repeals a domestic federal law may, itself, be modified or even repealed by a subsequent act of Congress with regard to its domestic application.

Second, despite the status of the Geneva Conventions as U.S. “law,” not all attempts to circumvent them are war crimes. There are lawful ways to circumvent the Conventions. In some instances, adherence to the Geneva Conventions becomes “optional” by one party to a conflict if the opposing party does not abide by them. Furthermore, not all violations of the Geneva Conventions are considered “crimes.” Title 18 U.S.C. § 2441 defines the specific portions of the Geneva Conventions and Hague Convention that constitute war crimes under U.S. law, and it doesn’t incorporate every provision of the Conventions. The Conventions, themselves, only requires that signatory States make certain violation war crimes. U.S. law complies with the Conventions with its partial incorporation.

Third, John D. is correct in asserting that the Geneva Conventions do not immediately apply to all combatants in every war. As mentioned, non-compliance with, or being a non-signatory to, the Geneva Conventions can make some provisions of the Conventions inapplicable. Arguably, Afghanistan’s status as a “failed state” under the Taliban, meant that the signatory “State” no longer existed or could no longer comply, which made certain provisions of the Conventions inapplicable. Another portion of the Conventions, namely “Article 3 of the international conventions signed at Geneva, 12 August 1949,” doesn’t apply to wars that are “international,” as opposed to being fought entirely inside one country. The fact we are fighting Al Qaeda, an international terrorist organization, in an international conflict appears to make the Common Article 3 inapplicable in whole or in part. Other facts which are likely to make the Conventions inapplicable to some degree are: (1) Al Qaeda is not a signatory to the Geneva Conventions, (2) is not a “State,” (3) does not have a regular army or militia that is identifiable as such; and (4) neither recognizes or complies with the Conventions itself.

The same factors that make it difficult, if not impossible, to prosecute war crimes under the Geneva and Hague Conventions, would also make it impossible for prosecutions under the ICC. Besides, we have never agreed to jurisdiction in the ICC, so that wouldn’t happen anyway. So good luck in suggesting that Bush, Cheney or any of their underlings should be prosecuted. [I’m not saying they should or shouldn’t. I just don’t think its going to happen because of all these considerations.]

So good luck in suggesting that Bush, Cheney or any of their underlings should be prosecuted. [I’m not saying they should or shouldn’t. I just don’t think its going to happen because of all these considerations.]

Posted by: John W. | July 22, 2007 7:15 AM

John W-

They should be prosecuted under US Code Title 18, 2340A. Conspiracy to commit torture overseas

http://www.law.cornell.edu/uscode/18/usc_sec_18_00002340---A000-.html

"(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy. "

Tony:

Good luck proving that any torture, as defined in 18 U.S.C. § 2340, ever occurred. Mere allegations, without any specific instances or particular victims, is all anyone has right now. It is all anyone is ever likely to have. I hope I don't have to point out why a prosecution won't get very far without evidence of the conduct described in the statute I cited.

Sorry John W, You're wrong.

There is evidence of specific acts of torture on specific individuals.

http://www.slate.com/id/2100543

http://www.guardian.co.uk/international/story/0,,2098869,00.html

http://www.guardian.co.uk/usa/story/0,,2002971,00.html

http://www.boston.com/news/world/europe/articles/2005/06/25/italy_judge_seeks_arrest_of_alleged_cia_agents/?page=2

http://www.cbsnews.com/stories/2004/01/21/60II/main594974.shtml

You really should keep yourself more informed on these matters if you are going to make factual statements about them.

I hope that I don't have to point out to you that torture is a serious violation of basic human rights and that these allegations deserve the fullest legal investigation and prosecution.

Tony:

I read the stuff you posted. Its very interesting if not entirely disturbing.

However, even though I don't hope to appear contrary, I still believe that prosecution of Bush and Cheney is still difficult even if we assume the correctness of everything in those newspaper articles.

First, the only two persons arguably subject to torture by Americans was the one who was water-boarded and the cleric kidnapped from Germany to Egypt. The Canadian was, for all intents and purposes, tortured by the Syrian government – and not Americans – despite assurances given that he would not be tortured. [I have trouble believing any of that story, because It’s hard to believe we are so chummy with Syria at any level.]

The generic claim of abuse by the others does not meet the legal standard or "torture" under 18 U.S.C. § 2340. That section defines "torture” 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.”

General discomfort, or being subject to various changes in temperature do not qualify as “torture” because employment of such techniques neither inflict, nor are reasonably calculated to inflict, “severe” physical or mental pain or suffering.

In any event, the main difficulty in going after Bush or Cheney for a violation of 18 U.S.C. § 2340A is that a prosecutor would also have to prove: (1) Bush and Cheney knew about the torture and (2) aided, abetted, counseled, commanded, induced or procured its commission. See 18 U.S.C. § 2. Learning about it after the fact doesn’t make them guilty. Not only is there no evidence that either Bush or Cheney knew about it ahead of time, a number of the articles you provided give hints that low level officials had signed off on those crimes.

Guilt is always personal under the American system of justice. The laws do not hold members of the Executive Branch strictly liable for the crimes of their underlings. The defect here is that there is no good evidence, from what I have read, to link Bush or Cheney to the active procurement of those criminal acts. So, unless you have more, I still don't see a prosecution as viable.

John w.-

"Its very interesting if not entirely disturbing."

As a lawyer, you don't find the United States Government practicing torture disturbing? You aren't disturbed by the precedent being set?

Have you read the Washington Post articles on Cheney last month? Specifically the one about his role in the torture decisions? These guys are up to their eyeballs in it.

Unless you believe that the intelligence services and the US military have all gone rogue and are torturing individuals, and turning them over to other countries to be tortured without the knowledge of the President.

The biggest problem with your position is that you are demanding conclusive proof of guilt before the investigation has begun. There need to be investigation of these crimes, including a prosecuter, with supoena power, in order to find out exactly what has happened. European courts are investigating these crimes. Americans need to as well.

Tony:

Yes, it is disturbing. I tried to convey that idea, but I apparently still left questions in your mind. I also tried to say it was an "interesting" issue too. My bad.

I find torture disturbing on several levels. First and foremost, I find it personally and morally revolting that the government would use cruel methods of information extraction except in extreme and rare cases (such as to avoid a known WMD attack, when the suspect is known to have the info needed to avoid it). My moral revulsion toward such activity is even greater when cruel methods are used against a defenseless individual in custody.

On another level, I think torture is bad not only because is it cruel, but also because it is useless. Everyone knows that information extracted by coercion is not reliable. A person tortured for information will offer any information to make the torture stop – even if the individual knows nothing of value and the information is entirely false.

And, yes, I certainly do believe that our intelligence agencies are rogue elements in the government. They have a rather long history of being rogue elements in the government – just ask Mosaddeq, Diem and Kennedy. [Okay, don’t. But you get the picture.] Why, pray tell, would anyone expect them to stop on a dime, on their own, and change direction regarding that behavior now that we are at war? Covert governmental behavior is, and always has been, more likely to involve extreme and outrageous action precisely because it isn’t effective when everyone is watching.

As for the military, the only evidence we have is that those involved engaged in rogue behavior without as much as mid-level authorization. Even the commander of Abu Ghraib prison didn’t know what the guards were doing. Do you really expect that anyone further up the chain of command did? I don’t. We do not have good evidence that anything approaching torture took place in a non-rendition setting or at Guantanamo. So, that's a big "Yes" to that part of your question too.

And, no, I am not demanding conclusive proof of anything before an investigation should start. There is generally no legal requirement for evidence to exist before an investigation starts. It is enough to simply have a good question as to whether something is going wrong. I know this.

What I am saying is that I don't believe an investigation is going to turn up much. That's why I said "good luck," rather than "don't bother" or simply "don't."

Sure, lets get an investigation going. Why not? You never know. Someone may screw up just like they did in Watergate. But I wouldn’t count on it – especially when it comes to the President. He has a great deal of deniability – unless everyone here at the Swamp is wrong and he really is intelligent.

"We do not have good evidence that anything approaching torture took place in a non-rendition setting or at Guantanamo. "

You really need to do some more research on this matter John. Our use of torture is much more widespread than you believe.

http://www.washingtonpost.com/wp-dyn/content/article/2005/08/02/AR2005080201941.html

http://hrw.org/english/docs/2006/07/19/usint13767.htm

"Even the commander of Abu Ghraib prison didn’t know what the guards were doing."

She says she didn't know, but Donald Rumsfeld did:

http://www.alertnet.org/thenews/newsdesk/L25726413.htm

Even if we suppose that these wide spread abuses have occured without the approval of the President, is his inaction on the issue not itself a criminal act? He is commander in chief of the US Armed Forces. There have been credible and persistant allegations of torure by the Armed Forces. The Administrations response has not been to try and stop the actions, but to try to provide them with a veneer of legality.

http://blog.washingtonpost.com/cheney/chapters/pushing_the_envelope_on_presi/index.html

Tony:

You win on point number 1. I never previously heard of the general being beaten to death in the sleeping bag.

But I have to disagree with your characterization of what Donald Rumsfeld supposedly knew based on that article you provided. The treatment of prisoners, so described, did not constitute "torture" within the meaning of the statutes we previously discussed. The infliction of pain, ridicule or discomfort is not, itself, "torture." It only becomes torture when it is calculated to result in "extreme" physical or mental pain or suffering. See my previous post for the definition given in Title 18 U.S.C. § 2340, which controls the application of § 2340A. Similarly, the laws which make crimes out of violations of the Geneva Conventions require proof of "grave" violations of those provisions. Nothing in the article suggested that Rumsfeld knew of torture going on, much less of "grave" violations of the Geneva Conventions, as defined by law – even if we assume he knew of something that amounted to mistreatment or lesser violations of the Geneva Conventions.

Finally, one reaches an area that could best be described as "fuzzy" or "gray" when seeking to impose criminal liability for the acts of others simply based on one’s failure to act. A failure to act, is not generally a crime under federal law unless the law imposes a positive duty to act. This is why, for example, failure to “rat-out” a known drug dealer is not a crime (because of no duty) – whereas the willful failure to file a tax return after making more than a certain amount of money in a year is a crime (based on a positive duty). That is why I previously stated that one would not only have to prove the President knew about the practice of torture, but also that he counseled, aided, abetted, procured or commanded its commission per 18 U.S.C. § 2.

In this regard, I think it is significant that no one placed the President in the loop regarding the so-called “torture memo” or the machinations leading up to it. The only thing that can be said is that he signed off on a directive that permitted the infliction of pain and distress short of torture. But the very fact that his order did not permit torture tends to militate against finding him responsible for its commission. A commander can only command. He has to rely on the rest of the governmental and military infrastructure to insure that subordinates either comply with the rules or get punished for their violation. He can’t be expected to personally chase down every individual violator with a stick. So, no, I don’t think his failure to do more – in the light of reports of abuses – constitutes a crime. He did enough for the rest of the system to work – and that is all that is required of him.

Cheney might be another matter altogether. It is yet to be seen what a more complete investigation will turn up. Remember, all of these allegations have appeared in newspaper articles. I am unaware of any of these reports being verified through vigorous investigation techniques by government investigators. What I did learn from my time in the legal business is that there are often more than one side to every story, and not all serious allegations stand up to the rigorous scrutiny demanded in criminal cases. So, let’s just wait and see.

" I am unaware of any of these reports being verified through vigorous investigation techniques by government investigators."

Not in this country, no. Gee I wonder why? But a number of European countries have ongoing investigations and criminal proceedings in process on many of these charges. My hope is that, at the very least, Bush, Cheney and Rumsfeld get the Pinochet treatment, afraid to travel abroad for fear of being brought up on war crimes charges filed in third countries. Unfortunately, I don't think that there's much chance of these issues being examined closely in this country.

"The only thing that can be said is that he signed off on a directive that permitted the infliction of pain and distress short of torture. "

But only after the Administration had redefined "torture" to mean suffering equal to the pain of organ failure or death, a different and higher standard. If I redefine "murder" to only include beheading, does that, change the legal reality, even if I am the Vice President?

But keep up with your Pollyanna-ish belief that Bush really isn't responsible for any bad things. I'm afraid you're going to be disappointed though.