DoJ Memoranda Illegally Condones Inhumane Treatment

Peter Matthews pointed out something important I hadn't noticed. (Via Katharine)

Illustrative Chart: Use this link

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From Peter's blog [link added]:

A confidential Justice Department legal memo sent to the White House in August 2002 concluded that interrogation of detainees can involve "cruel, inhuman or degrading" acts without violating U.S. and international laws prohibiting torture.

Important points:

1. The DoJ Memo which Peter refers, explicitly uses the terms which Geneva forbids.

2. Conversely, it's impossible for DoJ to have asserted that "inhumane" treatment can be lawful in "some" situations; Geneva expressly forbids inhumane treatment at all times.

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Compare Geneva and the DoJ Language

The issue will crystallize when you read page 46, and contrast it with Common Article 3. Notice the contrast between Geneva and the DoJ Memo.

A. All

Here's Geneva Article 3: prisoners "shall in all circumstances be treated humanely"

B. Some

Here's a summary of the illegal DoJ Memo language:

Having opined that some cruel, inhuman, or degrading acts are not forbidden, only those that are “extreme acts” (committed on purpose), the memo moves on to “examine defenses” that could be asserted to “negate any claims that certain interrogation methods violate the statute.”Page 46 Via

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One thing Peter did was made me realize the problem. The issue isn't the law. It's the presenation of the problem.

Rather than point to the law, let's consider another approach: A picture.

This picture is a scale. Work from left to right.

There are two columns. Geneva, and US policies and action.

On the left side is the Separation between inhumane and humane treatement.

On the right side in the separation, in the inhumane treatement, between torture and non-torture.

Note the imprtant issue: Non-torture is still inhumane.

Back to top

Diagram 1 of 4: Abuse can be Torture or non-torture

I'm going to show you a simple box-diagram, then expand it in diagrams 2 and 3.

On the left side is Geneva: Conduct can either be legal or illegal; it is either OK, or it is a crime.

OK

CRIME

The treatment can either be abuse, non-abuse; torture or non-torture. Not that some "non-torture" is still abuse.

         Standard           Treatment
 _________________________________________

           CRIME          Abuse/Non-Torture

         Inhumane
                             Torture
------------------------------------------

           OK               Non-Abuse

         Humane

------------------------------------------

Diagram 2 of 4: Comparing Geneva To Current Debate

Let's split the prisoner treatement into two colums, and you'll see what the White House is doing: They're hoping to confuse people into believing that the issue is whether someone is or is not tortured. That is a redherring.

The only issue is whether the (a) Prisoner treatement is or is not (b) Meeting the geneva requirements related to (c) abuse. Notice Geneva does not mention torture; it only prohibits abuse. Torture is abuse; and non-torture can still be abuse.

The issue is in column 1: Whether the conduct is or is not humane. It doesn't matter whether the policy, memo, or treatment is or is not torture.

Note: Scroll Down For Third Diagram [3 of 4]

     [Column 1 ]        [Column 2]

          GENEVA           Bybee Memo/
                          Military Commission
                                Bill
      ^______________________________________
      i               I    Torture
      i               I
      i  INHUMANE     I----------------
      i               I//  / /  /  /
      i               I/  / NON TORTURE, Abuse
      i               I/ / /  /  /
      i---------------I----------------
      i               I
      i               I     Non-Abuse
      i  HUMANE       I
      i  [REQT]       I
      i standard      I
      i               I
      V

The only relevant standard is Geneva, not what the US does or does
not define as torture -- column two (2) is irrelevant as a standard, only a smokescreen. The strategy of the RNC is to shift the discussion from column one (1), to column two (2).

The Bybee Memo focused on an inrrelevant scale: Whethere there was or was not a difference etween torture and non-torture. As you can see, non-torture is adjanced to inhumane treatmeent; it doesn't matter how the US defines the inhumane treatment, it is still inhumane and a vialtion of Geneva.

- -

"Humane treatment" is the only acceptable standard. No abuse is allowed. "Non-torture" as the US has defined it, is still abusive, and illegal.

The problem is when we consider the contrast between (a) the standards, and (b) what was actually done:

Diagram 3 of 4: Comparing What the US Did (Column 2, upper right) vs. The Geneva Standard/Requirement (Column 1, lower left)

   [Column 1 ]        [Column 2]

          GENEVA            Bybee Memo/
(scale)                  Military Commission
                               Bill
      ^________________________________________
      i               I    Torture
      i               I
      i  INHUMANE     I----------------
      i               I//  / /  /  /
      i               I/  / WHAT THEY DID
      i               I/ / /  /  /
      i---------------I----------------
      i               I
      i               I
      i  HUMANE       I
      i               I
      i  WHAT THEY    I
      i  IGNORED      I
      V

Diagram 4 of 4: Showing All Possible Combinations

This is another version of the original, but shows you how the distinguishing elements of Geneva are the only concern; and the issue of how torture is or is not defined is irrelevant. The only issue is whether the treatment is or is not abuse.

               Geneva           Bybee Memo/Military
               Standard          Commission Bill/
                                Prisoner Treatment
 _________________________________________

Inhumane

CRIME            Abuse           Non-Torture


                 Abuse            Torture



Verdict: Illegal; guilty of war crimes 

------------------------------------------

Humane

OK             Non-Abuse       Non-torture


Verdict: Lawful; innocent of war crimes


------------------------------------------

The problem the RNC-White House have in 2006, is they've violated
Geneva 2001-2006. They can't change what they've done, only create the illusion that something else is the standard. This is impossible.

The Military Commissions Bill focused on the wrong thing: Redefining illegal, inhumane treatment as "non-torture," but that makes no difference. The only relevant comparison is (a) What they ignored -- Geneva; and (b) What they did -- the inhumene treatment. Again, how they define the action as "being or not being toture" is meaningless.

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Summary Rule

The issue, contrary to Bybee's assertion, is not whether the conduct is or is not torture. That is irrelevant. The issue is whether the treatment is or is not humane.

Moderate inhumane treatment, as Bybee would permit, may or may not be torture; but it clearly violates Geneva, which bars all inhumane treatment at all times.

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Conclusions

1. The DoJ Memo fails to meet the requirements of Geneva;

2. The Attorney who wrote the memo allegedly opined in an illegal manner;

3. All counsel associated with this memo have allegedly been complicit in war crimes planning, illegal memoranda, and for failing to prevent all inhumane acts, as required under Geneva;

4. The liability risk attaches not only to those who inflicted the abuse, but to those who knew Geneva under the 5100.77 laws of war program, but failed to ensure that the Geneva conventions were fully implemented;

5. No reasonable person, even if they were ignorant of Geneva, could argue that any abuse was permitted;

6. The DoJ Memo could not legally be relied upon by even people who were unfamiliar with Geneva;

7. It remains to be understood how many CIA agents involved with the abuse were former military personnel who knew, or should have known, the 5100.77 laws of war program, and were trained, or should have been trained on the Geneva Conventions.

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Filed: This link is located in the war crimes archive evidence, as the Bybee Memo.

Thanks, Peter and Katharine! Nice to meet you.

I'm all for investigations, the right ones. If only Members of Congress would listen to Peter.