Friday, November 05, 2010

War Criminal

In his new memoir, former President George W. Bush says he personally gave the order to waterboard Khalid Sheik Mohammed in 2003.

According to the Washington Post, Bush writes that the CIA asked him if they could use the torture technique on Mohammed.

"Damn right," he said. [TPM]
War Crime in US Civil Code, US Constitution, Article 3 of the Geneva Conventions, and the Convention Against Torture:

U.S. Civil Code Title 18, Part I, Chapter 113C, § 2340 Definitions
...(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 caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;....
U.S. Civil Code Title 18, Part I, Chapter 118, § 2441. War crimes:
(c) Definition.— As used in this section the term “war crime” means any conduct—
(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character;...

(d) Common Article 3 Violations.—
(1) Prohibited conduct.— In subsection (c)(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
(A) Torture.— The act of a person who commits, or conspires or attempts to commit, an act 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 for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
(B) Cruel or inhuman treatment.— The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control....
Common Article 3 of the Geneva Conventions:
ARTICLE 3
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples....

[1984/force 1987. Signed by Pres. Ronald Reagan, April 1988, ratified by U.S., October 1994]
Articles 2.1, 2.2, 2.3:
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture...

Articles 4.1 and 4.2:
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature...

Article 5.1:
1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;
(b) When the alleged offender is a national of that State;
(c) When the victim is a national of that State if that State considers it appropriate...

Article 12:
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.
ARTICLE VI [Known as the "Supremacy Clause"]
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Just saying....

5 comments:

Charles Cameron (hipbone) said...

From Waterboarding Used to Be a Crime, a 2007 WaPo article by Evan Wallach, a judge at the U.S. Court of International Trade in New York:

QUOTE:

Here's the testimony of two Americans imprisoned by the Japanese:

They would lash me to a stretcher then prop me up against a table with my head down. They would then pour about two gallons of water from a pitcher into my nose and mouth until I lost consciousness.

And from the second prisoner:

They laid me out on a stretcher and strapped me on. The stretcher was then stood on end with my head almost touching the floor and my feet in the air. . . . They then began pouring water over my face and at times it was almost impossible for me to breathe without sucking in water.

As a result of such accounts, a number of Japanese prison-camp officers and guards were convicted of torture that clearly violated the laws of war. They were not the only defendants convicted in such cases. As far back as the U.S. occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers were court-martialed for using the "water cure" to question Filipino guerrillas.

More recently, waterboarding cases have appeared in U.S. district courts. One was a civil action brought by several Filipinos seeking damages against the estate of former Philippine president Ferdinand Marcos. The plaintiffs claimed they had been subjected to torture, including water torture. The court awarded $766 million in damages, noting in its findings that "the plaintiffs experienced human rights violations including, but not limited to . . . the water cure, where a cloth was placed over the detainee's mouth and nose, and water producing a drowning sensation."

In 1983, federal prosecutors charged a Texas sheriff and three of his deputies with violating prisoners' civil rights by forcing confessions. The complaint alleged that the officers conspired to "subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning."

The four defendants were convicted, and the sheriff was sentenced to 10 years in prison.

:ENDQUOTE

Charles Cameron (hipbone) said...

Perhaps I should add that I posted my comment above to add historical background to Helmut's post, not to propose or support legal action.

Although I abhor torture and believe it to be both counter-productive and morally base, I am not one of those who wishes to see President Bush or his subordinates indicted in this regard. For one thing, I do not believe that dragging an already polarized nation through court proceedings would serve a useful purpose.

In my view, what is needed here is something else entirely -- a shift towards a keener appreciation of our own ideals, not any further sharpening of the knives. As I see it, such a shift would bring into question many more issues than just that of torture: it would require systemic change.

Briefly, we need to learn to live together, sustainably -- believer and unbeliever, pauper and president, enemy and friend – on a smallish planet with limited resources and enormous potential...

The crux as I see it: we need to develop a more profound and moral imagination.

Peter said...

If nobody in DoJ does it, perhaps Spain would have the 'moral imagination' to hold the powerful accountable.

If Spain were to issue an indictment it would send a strong message that nobody is above the law.

I guess it's obvious that I disagree, and think that crimes should be punished, even if the next out-going president issues a pardon or commutation.

MT said...

Who needs extradition? No state knows citizen's arrests like Texas.

MT said...

Who needs extradition? No state knows citizen's arrests like Texas.