White House Proposal Implicitly Asserts Violations of 2005 Detainee Treatment Act
The JAGs called attention to Section 6 and 7 because US military conduct fails to comply with the Geneva Conventions.
Regardless whether the JAGS change their testimony, in no way is the President's Proposal consistent, but implicitly argues there have been violations of other acts of Congress.
Ref: Retired judges speak out.
This may appear confusing, but the White House objective is simple: To get you to focus on whether there is or is not disagreement; not whether the US agents did or did not violate Geneva. The only standard that is relevant is Geneva. Whether the US Congress asserts that a bill is or is not consistent with Geneva is meaningless, but a subject of Article III judicial powers.
In effect, it is not Congress that it asserting whether the bill does or does not meet Geneva Requirements, but it's the President that is so-asserting. The Executive is illegally asserting Article III judicial powers, but hiding behind Congress. Yet, recall the lesson of Hamdan which struck down the conduct as illegal.
64,000-dollar question: How can [a] the President comply with a standard -- through an assertion of compliance -- that he is [b] otherwise ignoring/violating -- as was the case in Hamdan?
Answer: It is impossible.
The Supreme Court struck down the treatment in Hamdan because the treatment, procedures, and conduct did not meet the standard of Geneva.
Recall also after Hamdan, the President and others discussed the problem of the CIA sites. Hamdan in effect identified an ongoing problem for the Executive branch: The failure to comply with Geneva at the CIA locations, as they were always required to do.
The record is clear: Hamdan retroactively found that before 2006, the US had violated Geneva and that the current procedures in place were not sufficient. Prospectively, Hamdan then said in effect, "If you do not change to comply with Geneva, there will be other violations that you will have no defense."
To restate Hamdan, the only way the Supreme Court would conclude there was a problem was if the procedure did not meet the Geneva requirements. Notice we haven't considered the actual conduct, simply compared the written procedures as planned, with the written treaty requirements.
The moment we contrast the Hamdan-CIA nexus, with the Detainee Treatment-Military Commissions nexus, the President has a problem. Again, to restate the above, given Hamdan found the White House had been violating Geneva, then an assertion that the prisoner treatment relative to the detainee treatment act is meaningless. Hamdan, in finding the procedures did not comply with Geneva, would implicitly have also found the following:
A. Whether the procedures would or would not have complied with the Detainee treatment Act is irrelevant;
B. Given there were violations of Geneva in Hamdan, asserting that the conduct 2001-2006 did or did not meet the requirements of the Detainee Treatment Act is irrelevant;
C. Given there have been violations of Geneva, the President's asserted consistency between the Military Commission Act of 2006 and the Detainee Treatment Act is meaningless. It is an unprotected assertion of Article III powers;
D. The appropriate comparison is [a] the conduct at the CIA detention centers; and [b] Geneva; yet
E. After Hamdan, one reason to change the position and treatment at the CIA detention centers was if the ongoing activity was not consistent with Geneva;
The only reasonable conclusions are the following:
1. There have been violations of Geneva 2001-2006;
2. There is no legal justification for the illegal treatment;
3. There is a war crimes liability on the US Executive and Legislative Branches;
4. These known violations were not prevented as required under the Conventions.
5. The current debate over whether the JAGs do or do not agree with their previous statement is meaningless: The bill itself is evidence that the asserted standard is something other than what is required
6. The change in CIA detention policies is sufficient to show that the 2001-2006 treatment of prisoners at the detention centers was illegal
7. The only reason to mention whether the JAGs are or are not consistent has nothing to do with whether there have or have not been violations of Geneva -- there have -- but to create confusion as to whether or not the JAG written statement is or is not meaningful -- it is not.
The written statement of the JAGs is not under penalty of perjury. It merely says that their impressions are something else. however, the more reliable evidence is their original sworn statement.
Rather, the fact that they have recanted prior sworn statements, and asked the record change with an out of court signed statement is of interest only for purpose of impeaching the JAGs as to their assurances over whether they do or do not support the subsequent White House statements.
Judgments
The issue isn't whether the JAGs have changed. The issue is whether the original testimony under oath has less value than the signed letter. It does not. Rather, the JAG testimony subject to inquiry is more valuable and relevant than the subsequent change of position.
The letter is meaningless. The DoD General Counsel can be presumed to have made efforts to tamper with witnesses, and this would subject to the DoJ General Counsel to an allegation of witness tampering. It doesn't matter why or what was or was not said. The only issue is that the objective of the letter has to do with leaving an impression that is not consistent with a reasonable analysis of Section 6 and 7.
In light of Hamdan, the JAGs would know that the treatment of prisoners between 2001 and 2006 at the CIA sites did or did not meet a standard.
The real issue is that the JAGs appear to have been illegally tampered with not to pass legislation, but to mitigate the chances that the JAGs are called as witnesses to impeach Haynes, and subject Haynes to a war crimes-investigation for affecting witnesses, testimony, and public records related to the war crimes indictments.
These are serious issues not for the JAGs, but for Haynes. If as it appears to be the case, Haynes has tampered with the JAGs, and this is, as it appears, part of a White House effort to sway a war crimes prosecution, then the original problem -- that of violating Geneva -- is subsequently compounded with the obstruction of justice. A lawful penalty of engaging in a war crimes investigation is the same as the original offense itself: The death penalty.
Don't lose the big picture. The White House staff has allegedly engaged in war crimes. The JAGs aren't the problem. Their original testimony under oath is all that matters. Haynes problem is that he knows he's failed to prevent illegal activity at Guantanamo, and could not only be disbarred; he could be indicted for war crimes. Even if he is on the federal bench, as it Bybee, the war crimes prosecutors could use this incident as a means to have an upward adjustment in the sentencing.
All communications after 2001 are admissible. They are not protected by Attorney-Client. They are part of the post-decision consultation. The JAGs are not independent legal advisors. Rather, they are now targets of the war crimes prosecutors. The prosecutors will have to assess whether Haynes has committed other offenses, and whether the JAGs can or cannot be accepted as reliable witnesses.
It's one thing to talk about the risk of a coup. Quite another to backtrack, and sit silently while your Commander in Chief destroys the rule of law:
Match!
The JAGs have not aggressively asserted their oath. Their responsibility is to document what has happened, and then prepare to be subpoenaed by the war crimes prosecutors. The JAGs were under oath before the Senate. Out of court statements that are signed, but not consistent are less credible. It remains to be understood what Haynes threatened the JAGs with.
It’s a serious matter for the DOD General Counsel to have tampered with witnesses. These are issue of international war crimes. The coercion of the JAGs to issue that letter could subject Haynes to allegations of tampering war crimes witnesses-experts. It's one thing for Haynes to have not prevented violations of Geneva; it’s a secondary offense and another war crime to have allegedly tampered with legal experts. Regardless what Haynes thinks, the more reliable information is the sworn verbal testimony, not the subsequent letter. The War crimes prosecutor could conclude Haynes acted with an improper motive and attempted to obstruct justice related to a war crimes investigation.
References
Things you may wish to consult:
A. President's proposal
B. TPM: Ref
C. TPM Archive Ref
D. Haynes-JAG letter: Ref
E. Close-up of letter: Ref
Putting aside the White House-JAG disagreement over whether the JAGs testimony should or should not be relied upon, the question is whether there's something else with Section 6 and 7. There is.
[Ref: 78 of 86 ]
Notice the problem with the language: Rather than assert that the language is or is not favorable with respect to Geneva, the White House proposal mentions the Detainee Treatment Act, yet asserts that the Commission Act does comply with Geneva.
Section 6
21 SEC. 6. SATISFACTION OF TREATY OBLIGATIONS.
22 (a) IN GENERAL.—Satisfaction of the prohibitions
23 against cruel, inhuman, and degrading treatment set forth
24 in Section 1003 of the Detainee Treatment Act of 2005
25 (title X of Public Law 109-148; 119 Stat. 2739; 42
79
1 U.S.C. 2000dd) shall fully satisfy United States obliga2
tions with respect to the standards for detention and
3 treatment established by section 1 of common Article 3
4 of the Geneva Conventions, with the exception of the ob5
ligations imposed by subsections 1(b) and 1(d) of such
6 Article.
Let's play the White House game. If it is true that the current bill, based on the 2005 legislation does comply with Geneva, then the US conduct, which was struck down in Hamdan, violated the 2005 Detainee Act.
The White House shell game-argument is to pretend the new standard of reference to evaluate US actions is in the 2005 Detainee Act. This is incorrect. The White House error is threefold:
(1) Asserting that the standard is the 2005 Detainee Treatment Act;
(2) Failing to show that the treatment does or does not comply with Geneva; and
(3) Ignoring the issue of whether the US agent conduct does or does not violate Geneva.
In truth, the conduct violated Geneva regardless the reference to either the Military Commission Act or the 2005 Detainee Act.
Section 7 Discussion
Section 7 is also problematic. Let's rely only on the JAG initial reservations, and ignore their subsequent written changes.
If the Conventions cannot be invoked, then the US is violating Geneva. The US has no power to assert that an act does or does not satisfy Geneva, while denying the prisoner the right to invoke Geneva. Again, by defining US "compliance" with Geneva in terms of what is or is not in [a] this act; and [b] in the 2005 act, the current act does nothing to satisfy either standard.
How torture is or is not defined is meaningless as to whether or not there are or are not abuses relative to Geneva. Rather, the way that the torture definition is written, it is solely designed to be consistent with the illegal guidance in the Bybee Memo and other CIA-related Memoranda which White House counsel is subject to FOIA and subpoena.
The President's proposal in now way prohibits abuse. Rather, interrogators who engage in abuse, and unintentally kills a prisoner would be given amnesty. However, the only reason to afford amnesty was if the original treatment was abusive. The President's proposal is illegal. The same applies with issues of maiming: If there is abuse that falls below a threshold, then the President's bill would grants amnesty.
The problem is the President's proposal going forward would be meaningless to events and acts between 2001 and 2006. Even if the waivers were applicable -- which they were not -- the waiver is merely evidence that the White House knows there have been violations.
Whether the US code does or does not satisfy Geneva requirements is a separate issue.
Other Discussion
Ref Military Commission Act of 2006 is illegal.
Ref There have been violations of Geneva since 2001.
Ref War Crimes Indictments Against Members of Congress for failing to prevent Geneva Violations.
Sec 6,7: For Your Reference President's proposal
21 SEC. 6. SATISFACTION OF TREATY OBLIGATIONS.
22 (a) IN GENERAL.—Satisfaction of the prohibitions
23 against cruel, inhuman, and degrading treatment set forth
24 in Section 1003 of the Detainee Treatment Act of 2005
25 (title X of Public Law 109-148; 119 Stat. 2739; 42
79
1 U.S.C. 2000dd) shall fully satisfy United States obliga2
tions with respect to the standards for detention and
3 treatment established by section 1 of common Article 3
4 of the Geneva Conventions, with the exception of the ob5
ligations imposed by subsections 1(b) and 1(d) of such
6 Article.
7 (b) RIGHTS NOT JUDICIALLY ENFORCEABLE.—
8 (1) IN GENERAL.—No person in any habeas
9 action or any other action may invoke the Geneva
10 Conventions or any protocols thereto as a source of
11 rights, whether directly or indirectly, for any pur12
pose in any court of the United States or its States
13 or territories.
14 (2) CONSTRUCTION.—Paragraph (1) may not
15 be construed to affect the obligations of the United
16 States under the Geneva Conventions.
17 (c) GENEVA CONVENTIONS DEFINED.—In this sec18
tion, the term “Geneva Conventions” means the interna19
tional conventions signed at Geneva on August 12, 1949,
20 including common Article 3.
21 SEC. 7. WAR CRIMES ACT AMENDMENT.
22 Section 2441 of title 18, United States Code is
23 amended by replacing subsection (c)(3) with the follow24
ing:
80
1 “(3) which constitutes any of the following serious
2 violations of common Article 3 of the international con3
ventions signed at Geneva 12 August 1949, when com4
mitted in the context of and in association with an armed
5 conflict not of an international character—
6 “(1) TORTURE.—Any person who commits,
7 or conspires or attempts to commit, an act specifi8
cally intended to inflict severe physical or mental
9 pain or suffering (other than pain or suffering inci10
dental to lawful sanctions) upon another person
11 within his custody or physical control for the pur12
pose of obtaining information or a confession, pun13
ishment, intimidation, coercion, or any reason
14 based on discrimination of any kind, shall be guilty
15 of a violation of this subsection. ‘Severe mental
16 pain or suffering’ has the meaning provided in 18
17 U.S.C. § 2340(2).
18 “(2) CRUEL OR INHUMAN TREATMENT.—Any
19 person who commits, or conspires or attempts to
20 commit, an act intended to inflict severe physical
21 or mental pain or suffering (other than pain or suf22
fering incidental to lawful sanctions), including
23 severe physical abuse, upon another person within
24 his custody or physical control shall be guilty of a
25 violation of this subsection. ‘Severe mental pain
81
1 or suffering’ has the meaning provided in 18
2 U.S.C. § 2340(2).
3 “(3) PERFORMING BIOLOGICAL EXPERI4
MENTS.—Any person who subjects, or conspires or
5 attempts to subject, one or more persons within his
6 custody or physical control to biological experi7
ments without a legitimate medical purpose and in
8 so doing endangers the body or health of such per9
son or persons shall be guilty of a violation of this
10 subsection.
11 “(4) MURDER.—Any person who intention12
ally kills, or conspires or attempts to kill, or kills
13 whether intentionally or unintentionally in the
14 course of committing any other offense under this
15 section, one or more persons taking no active part
16 in the hostilities, including those placed hors de
17 combat by sickness, wounds, detention, or any
18 other cause, shall be guilty of a violation of this
19 subsection. The intent required for this offense
20 precludes its applicability with regard to collateral
21 damage or to death, damage, or injury incident to a
22 lawful attack.
23 “(5) MUTILATION OR MAIMING.—Any per24
son who intentionally injures, or conspires or at25
tempts to injure, or injures whether intentionally or
82
1 unintentionally in the course of committing any
2 other offense under this section, one or more per3
sons taking no active part in the hostilities, includ4
ing those placed hors de combat by sickness,
5 wounds, detention, or any other cause, by disfigur6
ing the person or persons by any mutilation thereof
7 or by permanently disabling any member, limb, or
8 organ of his body, without any legitimate medical
9 or dental purpose, shall be guilty of a violation of
10 this subsection. The intent required for this of11
fense precludes its applicability with regard to col12
lateral damage or to death, damage, or injury inci13
dent to a lawful attack.
14 “(6) INTENTIONALLY CAUSING GREAT SUF15
FERING OR SERIOUS INJURY.—Any person who in16
tentionally causes, or conspires or attempts to
17 cause, serious bodily injury to one or more persons
18 taking no active part in the hostilities, including
19 those placed hors de combat by sickness, wounds,
20 detention, or any other cause, shall be guilty of a
21 violation of this subsection. The intent required
22 for this offense precludes its applicability with re23
gard to collateral damage or to death, damage, or
24 injury incident to a lawful attack. ‘Serious bodily
83
1 injury’ has the meaning provided in 18 U.S.C.
2 § 113(b)(2).
3 “(7) RAPE.—Any person who forcibly or
4 with coercion or threat of force wrongfully in5
vades, or conspires or attempts to invade, the body
6 of a person by penetrating, however slightly, the
7 anal or genital opening of the victim with any part
8 of the body of the accused or with any foreign ob9
ject shall be guilty of a violation of this subsection.
10 “(8) SEXUAL ASSAULT OR ABUSE.—Any
11 person who forcibly or with coercion or threat of
12 force engages, or conspires or attempts to engage,
13 in sexual contact with one or more persons, or
14 causes, or conspires or attempts to cause, one or
15 more persons to engage in sexual contact, shall be
16 guilty of a violation of this subsection. For pur17
poses of this offense, ‘sexual contact’ has the
18 meaning provided in 18 U.S.C. § 2246(3).
19 “(9) TAKING HOSTAGES.—Any person who,
20 having knowingly seized or detained one or more
21 persons, threatens to kill, injure, or continue to de22
tain such person or persons with the intent of com23
pelling any nation, person other than the hostage,
24 or group of persons to act or refrain from acting as
25 an explicit or implicit condition for the safety or
84
1 release of such person or persons, shall be guilty of
2 a violation of this subsection. Any person who at3
tempts to engage or conspires to engage in this of4
fense shall also be guilty under this subsection.”.
posted by Constant @ 8:23 PM
<< Home