Wednesday, April 9, 2008

Some do understand the lessons of Nuremberg - from Show Me Progress.

Some do understand the lesons of Nüremberg...

by: Michael Bersin

Wed Apr 09, 2008 at 20:35:41 PM CDT

...unfortunately, not anyone in this administration.

Digby got me going on this.

There are some names which most people don't know. They should. Samuel Provance. Charles Swift. Matthew Diaz.

On Thursday in the National Press Club in Washington, a crowd gathered to witness the presentation of the Ridenhour Prize for Truth-Telling to Lieutenant Commander Matthew Diaz...

Matthew Diaz was "...a staff judge advocate at Guantánamo..."

Principle IV

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Matthew Diaz made a moral choice and was sent to prison for it. His crime? He released the list of detainees to defense lawyers in violation of a direct order.

The Persecution of Lt. Cmdr. Diaz

Matthew Diaz also took an oath to the Constitution [pdf]:

I [name] do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.
"...and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice..." "It was not a lawful order" is a defense for disobeying an order.

Red Cross Monitors Barred From Guantánamo
By William Glaberson
November 16, 2007
New York Times

A confidential 2003 manual for operating the Guantánamo detention center shows that military officials had a policy of denying detainees access to independent monitors from the International Committee of the Red Cross.

The manual said one goal was to "exploit the disorientation and disorganization felt by a newly arrived detainee," by denying access to the Koran and by preventing visits with Red Cross representatives, who have a long history of monitoring the conditions under which prisoners in international conflicts are held. The document said that even after their initial weeks at Guantánamo, some detainees would not be permitted to see representatives of the International Red Cross, known as the I.C.R.C.

It was permissible, the document said, for some long-term detainees to have "No access. No contact of any kind with the I.C.R.C...."

And why would anyone not want the International Committee of the Red Cross to check on detainees? You think it might be because of an operational torture memo?

Camp Delta Standard Operating Procedures (SOP)
Headquarters, Joint Task Force - Guantanamo (JTF-GTMO)

Guantanamo Bay, Cuba
23 March 2003
[as leaked]

...17-4. Levels of Visitation

All detainees will have a level of ICRC contact designated for them. These different levels are as follows:
a. No Access: No contact of any kind with the ICRC. This includes delivery of ICRC mail.
b. Restricted: ICRC is allowed to ask the detainee about health and welfare only. No prolonged questions.
c. Unrestricted: ICRC is allowed full access to talk to detainees.
d. Visual: Access is restricted to visual inspection of the detainee's physical condition. No form of communication is permitted. No delivery of ICRC mail....

[emphasis added]

The United States prosecuted people for "grave breaches" of international law in the aftermath of World War II.

The United State is a signatory to (and duly ratified) the Geneva Conventions:

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.

Part I : General provisions


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.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

[emphasis added]

"Big deal!", you say, "It's an international treaty and we're under no obligation to follow that stuff ['hello' Antonin and Clarence!]" Au contraire. We are bound. There's even a Federal law in reference to this:

TITLE 18, PART I, CHAPTER 118, § 2441

§ 2441. War crimes

(a) Offense.- Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances.- The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

(c) Definition.- As used in this section the term "war crime" means any conduct-

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or

(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

[emphasis added]

But, you know, that Geneva Conventions stuff is "quaint". It's not like anyone on the United States Supreme Court would really care about that. Think again:

Kennedy, J., concurring in part

on writ of certiorari to the united states court of appeals for the district of columbia circuit
[June 29, 2006]

Justice Kennedy, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join as to Parts I and II, concurring in part.

...The Court is correct to concentrate on one provision of the law of war that is applicable to our Nation's armed conflict with al Qaeda in Afghanistan and, as a result, to the use of a military commission to try Hamdan. Ante, at 65-70; see also 415 F. 3d 33, 44 (CADC 2005) (Williams, J., concurring). That provision is Common Article 3 of the four Geneva Conventions of 1949. It prohibits, as relevant here, "[t]he 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." See, e.g., Article 3 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3318, T. I. A. S. No. 3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law. See id., at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered "war crimes," punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U. S. C. §2441. There should be no doubt, then, that Common Article 3 is part of the law of war as that term is used in §821.

The dissent by Justice Thomas argues that Common Article 3 nonetheless is irrelevant to this case because in Johnson v. Eisentrager, 339 U. S. 763 (1950) , it was said to be the "obvious scheme" of the 1929 Geneva Convention that "[r]ights of alien enemies are vindicated under it only through protests and intervention of protecting powers," i.e., signatory states, id., at 789, n. 14. As the Court explains, ante, at 63-65, this language from Eisentrager is not controlling here. Even assuming the Eisentrager analysis has some bearing upon the analysis of the broader 1949 Conventions and that, in consequence, rights are vindicated "under [those Conventions]" only through protests and intervention, 339 U. S., at 789, n. 14, Common Article 3 is nonetheless relevant to the question of authorization under §821. Common Article 3 is part of the law of war that Congress has directed the President to follow in establishing military commissions. Ante, at 66-67. Consistent with that view, the Eisentrager Court itself considered on the merits claims that "procedural irregularities" under the 1929 Convention "deprive[d] the Military Commission of jurisdiction." 339 U. S., at 789, 790.

In another military commission case, In re Yamashita, 327 U. S. 1 (1946) , the Court likewise considered on the merits-without any caveat about remedies under the Convention-a claim that an alleged violation of the 1929 Convention "establish[ed] want of authority in the commission to proceed with the trial." Id., at 23, 24. That is the precise inquiry we are asked to perform here.

Assuming the President has authority to establish a special military commission to try Hamdan, the commission must satisfy Common Article 3's requirement of a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," 6 U. S. T., at 3318. The terms of this general standard are yet to be elaborated and further defined, but Congress has required compliance with it by referring to the "law of war" in §821. The Court correctly concludes that the military commission here does not comply with this provision.

Common Article 3's standard of a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," ibid.,supports, at the least, a uniformity principle similar to that codified in §836(b). The concept of a "regularly constituted court" providing "indispensable" judicial guarantees requires consideration of the system of justice under which the commission is established, though no doubt certain minimum standards are applicable. See ante, at 69-70; 1 Int'l Committee of the Red Cross, Customary International Humanitarian Law 355 (2005) (explaining that courts are "regularly constituted" under Common Article 3 if they are "established and organised in accordance with the laws and procedures already in force in a country").

The regular military courts in our system are the courts-martial established by congressional statutes. Acts of Congress confer on those courts the jurisdiction to try "any person" subject to war crimes prosecution. 10 U. S. C. §818. As the Court explains, moreover, while special military commissions have been convened in previous armed conflicts-a practice recognized in §821-those military commissions generally have adopted the structure and procedure of courts-martial. See, e.g., 1 The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies 248 (2d series 1894) (Civil War general order requiring that military commissions "be constituted in a similar manner and their proceedings be conducted according to the same general rules as courts-martial in order to prevent abuses which might otherwise arise"); W. Winthrop, Military Law and Precedents 835, n. 81 (rev. 2d ed. 1920) ("[M]ilitary commissions are constituted and composed, and their proceedings are conducted, similarly to general courts-martial"); 1 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 116-117 (1947) (reprint 1997) (hereinafter Law Reports) (discussing post-World War II regulations requiring that military commissions "hav[e] regard for" rules of procedure and evidence applicable in general courts-martial); see also ante, at 53-57; post, at 31, n. 15 (Thomas, J., dissenting). Today, moreover, §836(b)-which took effect after the military trials in the World War II cases invoked by the dissent, see Madsen v. Kinsella, 343 U. S. 341 , and n. 6 (1952); Yamashita, supra, at 5; Quirin, 317 U. S., at 23-codifies this presumption of uniformity at least as to "[p]retrial, trial, and post-trial procedures." Absent more concrete statutory guidance, this historical and statutory background-which suggests that some practical need must justify deviations from the court-martial model-informs the understanding of which military courts are "regularly constituted" under United States law.

In addition, whether or not the possibility, contemplated by the regulations here, of midtrial procedural changes could by itself render a military commission impermissibly irregular, ante, at 70, n. 65; see also Military Commission Order No. 1, §11 (Aug. 31, 2005), App. to Brief for Petitioner 46a-72a (hereinafter MCO), an acceptable degree of independence from the Executive is necessary to render a commission "regularly constituted" by the standards of our Nation's system of justice. And any suggestion of Executive power to interfere with an ongoing judicial process raises concerns about the proceedings' fairness. Again, however, courts-martial provide the relevant benchmark. Subject to constitutional limitations, see Ex parte Milligan, 4Wall. 2 (1866), Congress has the power and responsibility to determine the necessity for military courts, and to provide the jurisdiction and procedures applicable to them. The guidance Congress has provided with respect to courts-martial indicates the level of independence and procedural rigor that Congress has deemed necessary, at least as a general matter, in the military context.

At a minimum a military commission like the one at issue-a commission specially convened by the President to try specific persons without express congressional authorization-can be "regularly constituted" by the standards of our military justice system only if some practical need explains deviations from court-martial practice. In this regard the standard of Common Article 3, applied here in conformity with §821, parallels the practicability standard of §836(b). Section 836, however, is limited by its terms to matters properly characterized as procedural-that is, "[p]retrial, trial, and post-trial procedures"-while Common Article 3 permits broader consideration of matters of structure, organization, and mechanisms to promote the tribunal's insulation from command influence. Thus the combined effect of the two statutes discussed here-§§836 and 821-is that considerations of practicability must support departures from court-martial practice. Relevant concerns, as noted earlier, relate to logistical constraints, accommodation of witnesses, security of the proceedings, and the like, not mere expedience or convenience. This determination, of course, must be made with due regard for the constitutional principle that congressional statutes can be controlling, including the congressional direction that the law of war has a bearing on the determination.

These principles provide the framework for an analysis of the specific military commission at issue here...

[emphasis added]

That's Justice Kennedy's way of saying, "somebody broke the law".

And those administration lawyers?:

...In powerful and extraordinary words, Justice Kennedy reminded the Administration that Common Article 3 of the Geneva Conventions was binding upon them, and that a violation could constitute a criminal act. One senior member of the Bush legal team, informed of the decision over lunch, was reported to have turned "white as a sheet" and to have immediately excused himself. For the following months, Bush Administration lawyers entered into a frenzied discussion of how to protect themselves from criminal prosecution...
[emphasis added]
They've got to be thinking "presidential pardon". I wouldn't be surprised. Like father, like son.

More on the Geneva Conventions:

Art 10. The High Contracting Parties may at any time agree to entrust to an organization which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the present Convention.

When prisoners of war do not benefit or cease to benefit, no matter for what reason, by the activities of a Protecting Power or of an organization provided for in the first paragraph above, the Detaining Power shall request a neutral State, or such an organization, to undertake the functions performed under the present Convention by a Protecting Power designated by the Parties to a conflict.

If protection cannot be arranged accordingly, the Detaining Power shall request or shall accept, subject to the provisions of this Article, the offer of the services of a humanitarian organization, such as the International Committee of the Red Cross to assume the humanitarian functions performed by Protecting Powers under the present Convention.

Any neutral Power or any organization invited by the Power concerned or offering itself for these purposes, shall be required to act with a sense of responsibility towards the Party to the conflict on which persons protected by the present Convention depend, and shall be required to furnish sufficient assurances that it is in a position to undertake the appropriate functions and to discharge them impartially.

No derogation from the preceding provisions shall be made by special agreements between Powers one of which is restricted, even temporarily, in its freedom to negotiate with the other Power or its allies by reason of military events, more particularly where the whole, or a substantial part, of the territory of the said Power is occupied.

Whenever in the present Convention mention is made of a Protecting Power, such mention applies to substitute organizations in the sense of the present Article...

...Art 13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

Measures of reprisal against prisoners of war are prohibited...

...Art 126. Representatives or delegates of the Protecting Powers shall have permission to go to all places where prisoners of war may be, particularly to places of internment, imprisonment and labour, and shall have access to all premises occupied by prisoners of war; they shall also be allowed to go to the places of departure, passage and arrival of prisoners who are being transferred. They shall be able to interview the prisoners, and in particular the prisoners' representatives, without witnesses, either personally or through an interpreter.

Representatives and delegates of the Protecting Powers shall have full liberty to select the places they wish to visit. The duration and frequency of these visits shall not be restricted. Visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure.

The Detaining Power and the Power on which the said prisoners of war depend may agree, if necessary, that compatriots of these prisoners of war be permitted to participate in the visits.

The delegates of the International Committee of the Red Cross shall enjoy the same prerogatives. The appointment of such delegates shall be submitted to the approval of the Power detaining the prisoners of war to be visited...

[emphasis added]

And John Yoo is now a law professor at the University of California, Berkeley?

Principle III

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Again, from "A Tale of Three Lawyers":

...Each of these techniques is long established as torture as a matter of American and international law. The application and implementation of these techniques was and is a crime.

The exact circumstances surrounding the dealings between Haynes and Yoo that led to the development of this memorandum are unclear. However, it is clear that Haynes had previously authorized the use of the torture techniques, and had secured an order from Secretary of Defense Rumsfeld authorizing them.

Following the implementation of these techniques, more than 108 detainees died in detention. In a large number of these cases, the deaths have been ruled a homicide and connected to torture. These homicides were a forseeable consequence of the advice that Haynes and Yoo gave...

I ask, what "moral compass"? Matthew Diaz spent six months in prison.;jsessionid=5C6853737D7D79AD3B29C27B332C4643?diaryId=927

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