Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Monday, October 25, 2004

Geneva Conventions also waived for non-Iraqi prisoners in Iraq

The torture widespread. On the hands of the "liberators." In a surprising development, DoJ, DoD and CIA attorneys have admitted the scope of the plan to remove prisoners out of Iraq. Despite clear provisions within the Geneva Convention prohibiting such moves, the Administration used legal gymnastics to justify doing what was once denied.Ref Ref
Still, a Justice Department official said separately, "No matter what the provision is in the Geneva Convention, they are subject to legal interpretation." Ref Ref
This in stark contrast to the legal community which opined caution:
Because denial of POW status entails potentially serious consequences for combatants, such determinations must strictly comply with the dictates of the Third Convention. In this regard, Article 5 of that treaty creates a presumption that a captured combatant is a POW unless a competent tribunal determines otherwise on an individual basis.Ref
Danger of failed checks and balances

Quick marches to war, and speedy rubber-stamping Congressional bills do little to inspire the checks and balances are working. We've seen the results of failed oversight and secretive government in re Guantanamo:
a small group of people could create an entirely new judicial process - without many of the due-process guarantees we expect - and think it could survive real challenges.'' ,a href="a small group of people could create an entirely new judicial process - without many of the due-process guarantees we expect - and think it could survive real challenges.''Ref
Indeed, despite the law, these people within DoJ and the Pentagon skirted the law and sought to redefine what constitute "acceptable behavior," despite the standards in our founding documents.

There is no telling what other abuses, misconduct, and schemes have been hatched in the bowels of DoJ and the Pentagon. These officers and attorneys in the nation's government, when called to serve, clearly chose their institutional objectives of that of the constitution, Geneva Convention, or our founding principles.

These officers have shown that, in the vacuum of poor leadership and ineffective oversight, that they will push the law, and destroy the lives of those they dare accuse. Such are the acts of tyrants, to which the nation took up arms in 1776.

US disregard for POW rights and international law comes with great alarm for the US Latin American community, which raised concerns over this treatment when opposing HR 10, the bill to deny aliens the right to trial in deportations. Ref ref

More troubling, is that the same legal interpretations when applied to HR 10, the bill that would deport immigrants without judicial review, could effectively "justify" the same misconduct on US soil. Ref

In the wake of 9-11, such unconstitutional options were actively discussed; although though to have been rejected, it now appears these options not only are "back on the table," but are about to be codified in HR 10.
Mr. Yoo listed an inventory of possible operations: shooting down a civilian airliner hijacked by terrorists; setting up military checkpoints inside an American city; employing surveillance methods more sophisticated than those available to law enforcement; or using military forces "to raid or attack dwellings where terrorists were thought to be, despite risks that third parties could be killed or injured by exchanges of fire."

Mr. Yoo noted that those actions could raise constitutional issues, but said that in the face of devastating terrorist attacks, "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties." If the president decided the threat justified deploying the military inside the country, he wrote, then "we think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection." Ref
Iraqi abuses

The Administration's conduct shows the importance of declaring war against a specific enemy: To ensure that Prisoners once detained, are treated with respect, not so terribly treated that once they are released they re-enter the fight more determined.

Prisoners who would normally be granted protections under the Geneva Convention, were transferred out of Iraq, and the memo applied to anyone in Iraq, not just AlQueda. The Administration kept personnel off the Red Cross Lists so they could move prisoners freely without detection. Ref

Domestic Implications

The abuses overseas should give pause to those contemplating speedy action without adequate judicial review. HR-10 is designed to expedite visa revocation and can permit the same abuses. Yet such a possibility was only recently scoffed off as mere speculation:
Of course, the exclusion of any person, innocent or not, would be controversial, even if there were judicial review.Ref
In light of the legal hair splitting in re Iraqi prisoners and the Geneva Convention, this Administration, when asked to implement HR 10, can be reasonably be expected to selectively twist the language to justify a broader application of the law, and the forcibly removal of anyone to a undisclosed location, merely on the basis of an allegation; this imminent prospect is contrary to the intent of the Bill of Rights which applies to all, regardless their citizenship.

What comes as a surprise is the language of the justification--closely matching the current language before the Conference Committee, HR 10>:
C.I.A. could nevertheless permanently remove persons deemed to be "illegal aliens" under "local immigration law." Ref
HR 10 Details

Yet two of the contentions portions of the Bill include SEC. 3006. EXPEDITED REMOVAL, and SEC. 3008. REVOCATION OF VISAS AND OTHER TRAVEL DOCUMENTATION, which bar judicial review:
`There shall be no means of administrative or judicial review of a revocation under this subsection, and no court or other person otherwise shall have jurisdiction to consider any claim challenging the validity of such a revocation.'.Ref
ACLU raised concerns early this month, but the Bill is now before the Conference Committee, with Republicans eager to pass the bill. Ref.

Must broader waivers "justified"

The White House memo was originally much narrowly characterized as narrowly applied to AlQueda, was broadened to include anyone:
In a secret order dated Feb. 7, 2002, President Bush declared, as Hersh puts it, that ''when it came to Al Qaeda the Geneva Conventions were applicable only at his discretion.'Ref
Gonzalez memo: Ref. Retired General downplayed the apparent transfer of memo from Guantanamo, to Afghanistan, and finally Iraq.
superintendent of Guantánamo, Maj. Gen. Geoffrey Miller, traveled to Iraq to teach the command there the new interrogation arts. To the surprise of the Administration, the war was not going well, and the military command was hungry for intelligence from the prisoners at Abu Ghraib and elsewhere. A memo had gone out from a captain in intelligence stating, "The gloves are coming off gentlemen regarding these detainees. Col. Boltz has made it clear that we want these individuals broken." Ref
What we knew two months ago has no come full circle: The lessons of Iraq, Guantanamo, and Afghanistan have now arrived on America's shores.


This administration has already shown how far they will go regardless the law or international treaties to justify "whatever they want," without so much of a peep from the American Bar Association. Ref It took the ABA three years to speak out against Guantanamo abuses. More troubling, despite the Federal Court finding that the secret searches were unconstitutional, DoJ is set to appeal.

Based on the misrepresentations before the US Supreme Court just prior to the release of the Abu Ghraib photos, we can only wonder what legal absurdity DoJ attorneys may proffer.

Where's the true advocate of the Bill of Rights; and why do we require widespread, pervasive abuses to occur before a cursory investigation is done? We already know on the basis of the abuses in Guantanamo, Abu Ghraib, and Afghanistan that the same mindset is giving full support to more abuses under HR 10.

It is unfortunate that many have to suffer before the leaders are adequately checked and sanctioned. The wrong team is at the controls of this train. It remains to be seen whether this conductor is voted out of office, or impeached. Ref

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