Waterboarding Issues

There’s an interesting and generally literate discussion following the posting of the waterboarding video from Current TV on the North Dakota blog Say Anything. I added the following comments to that discussion, for anyone who doesn’t want to read 37 or so comments. To quote myself,

I’ve read through this often thoughtful discussion. Most of the problematic statements were soon corrected. There is one exception. Someone stated that persons such as the “enemy combatants” designated by Bush were treated by the Geneva Conventions as Brigands/Bandits, and could be immediately shot. There is no such category in the Geneva Conventions.

The following quote is the portion of the Conventions that most concerned the U.S. Supreme Court. There’s a link to the whole thing following the quote, but here is part of Common Article III. This is the part that the Supreme Court says applies to the enemy combatants held at Guantanamo.

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. Geneva Conventions Article 3

“No active part in the hostilities” means just that. People handed over to us by rival tribes in Afghanistan, who told us they were Al Qaeda (perhaps because they spoke Arabic or another foreign language) are not, until there is direct evidence, people taking an active part in hostilities. Many of the prisoners at Guantanamo, a portion of them already released, have been recognized to fall in this category.

<>We clearly, as the Supreme Court said, need to have good judicial process to recognize when there is evidence that shows prisoners *were* on the battlefield with guns in their hands, and when they just got rounded up and handed in for a bounty. Many of the JAGs are concerned about good compliance with the Geneva Conventions.

<>The concerns raised by waterboarding of a few “high-value” targets by trained CIA operatives acting under separate orders every step of the way (Brian Ross, ABC News) do not stop at whether they tell us something. We should also be concerned, as citizens, that the executive branch (the CIA) has taken on judicial functions, that these prisoners have little hope of a trial, that they have no access to the Red Cross, that perhaps we actually found or had handed to us some people with “high-value” information, that we could also have gotten without using waterboarding.

<>This last, that many psychologists familiar with interrogation methods will tell you, is the shame of it all. We could have gotten the information without the use of waterboarding and other “enhanced techniques.”

Torture is going under – for a little while

The following post is appearing out of sequence, and should have followed the post that consisted of a long letter to a constitutuent from the office of US Senator Arlen Specter. Specter’s letter is the full documentation for the excerpt that appears here.

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I cannot do better in this post than to quote from a long form letter sent to me by Arlen Specter, Senator from Pennsylvania and Chair of the Judiciary Committee. The Military Commissions Act, recently signed into law by President Bush, has one bad provision, according to Specter. That is, the denial to prisoners (“detainees”) of the use of a habeas corpus petition to challenge their detention. U. S. Courts recognized that use until December of 2005, which allowed for Hamdan v. Rumsfeld to be heard and decided. <>So I think, or more emotionally, I fear, that Senator Specter is a bit ingenuous in the following paragraphs from his letter:

In the June 2006 Supreme Court decision Hamdan v. Rumsfeld , the Court held that military commissions used in prosecuting enemy combatants at Guantanamo Bay must be authorized by Congress and must obey the legal obligations of the Geneva Conventions’ Common Article III and the Uniform Code of Military Justice. The decision explicitly urged Congress to legislate a solution by properly establishing military commissions to try alien unlawful enemy combatants.

Following the Hamdan decision, members of the Senate Armed Services Committee worked with President Bush to craft legislation to establish military tribunals. I generally supported the legislation dra fted by these Senators and the a dministration, however, I had serious reservations about a provision in the bill which eliminated detainees’ right to habeas corpus. Habeas corpus is the right of those in custody to challenge their detainment in court. As Chairman of the Senate Judiciary Committee, I held a hearing on September 25, 2006 to specifically address habeas corpus for Guantanamo detainees. During the Senate’s consideration of the legislation, I offered an amendment which would have guaranteed habeas\ncorpus for detainees. Unfortunately, the amendment failed on a narrow 48-51 vote.

On September 28, 2006 the Senate passed the Military Commissions Act by a vote of 65-34. Although my amendment was rejected, I voted in favor of the bill because I believe without this legislation, the ability of our government to effectively fight the global war on terrorism would be hindered. I am confident the courts will address the legislation’s constitutionality by ruling on the provision limiting habeas corpus.

The Military Commission Act is consistent with previous legislation prohibiting torture. The bill stipulates the military commissions must be established in accordance with the Uniform Code of Military Justice and Common Article III of the Geneva Conventions. Finally, it establishes specific guidelines for the use of hearsay evidence and coerced testimony and the handling of classified information.

During the Senate’s consideration of the legislation, I offered an amendment which would have guaranteed habeas corpus for detainees. Unfortunately, the amendment failed on a narrow 48-51 vote.

On September 28, 2006 the Senate passed the Military Commissions Act by a vote of 65-34. Although my amendment was rejected, I voted in favor of the bill because I believe without this legislation, the ability of our government to effectively fight the g lobal war on terrorism would be hindered. I am confident the courts will address the legislation’s constitutionality by ruling on the provision limiting habeas corpus.

United States Senator Arlen Specter, Chair of the Judiciary Committee, form letter/email, dated October 25, 2006, “regarding the treatment of prisoners detained by the United States in connection with the global war on terrorism.” Full contents uploaded to this blog, available in the post below.

As the excerpt shows, the topic is, in truth, the Military Commissions Act, signed into law by President George W. Bush in the third week of October, 2006.

Text of Arlen Specter letter/email of October 25, 2006

Emailed letter “Dear Friend” dated October 25, 2006.

——— Forwarded message ———-
From: Senator_Specter@specter.senate.gov <Senator_Specter@specter.senate.gov>
Date: Oct 25, 2006 10:09 AM
Subject: Re: Demand Fair Trials for Guantanamo Detainees
To: petersig@gmail.com

<>Dear Friend : <>
Thank you for contacting my office regarding the treatment of prisoners detained by the United States in connection with the global war on terrorism. I appreciate hearing from you. <>
The United States has no higher priority than the war against terrorism. In the course of this struggle, we must make every effort to detain those who engage in acts of terrorism and to obtain information from detainees that will enable us to prevent future attacks. At the same time, it is imperative we wage the war in a way that upholds the values the United States has always advanced, making clear by our actions and our example that we stand for freedom and fairness. <>
In the June 2006 Supreme Court decision Hamdan v. Rumsfeld , the Court held that military commissions used in prosecuting enemy combatants at Guantanamo Bay must be authorized by Congress and must obey the legal obligations of the Geneva Conventions’ Common Article III and the Uniform Code of Military Justice. The decision explicitly urged Congress to legislate a solution by properly establishing military commissions to try alien unlawful enemy combatants. <>
Following the Hamdan decision, members of the Senate Armed Services Committee worked with President Bush to craft legislation to establish military tribunals. I generally supported the legislation dra fted by these Senators and the a dministration, however, I had serious reservations about a provision in the bill which eliminated detainees’ right to habeas corpus. Habeas corpus is the right of those in custody to challenge their detainment in court. As Chairman of the Senate Judiciary Committee, I held a hearing on September 25, 2006 to specifically address habeas corpus for Guantanamo detainees. During the Senate’s consideration of the legislation, I offered an amendment which would have guaranteed habeas corpus for detainees. Unfortunately, the amendment failed on a narrow 48-51 vote. <>
On September 28, 2006 the Senate passed the Military Commissions Act by a vote of 65-34. Although my amendment was rejected, I voted in favor of the bill because I believe without this legislation, the ability of our government to effectively fight the g lobal war on terrorism would be hindered. I am confident the courts will address the legislation’s constitutionality by ruling on the provision limiting habeas corpus. <>
The Military Commission Act is consistent with previous legislation prohibiting torture. The bill stipulates the military commissions must be established in accordance with the Uniform Code of Military Justice and Common Article III of the Geneva Conventions. Finally, it establishes specific guidelines for the use of hearsay evidence and coerced testimony and the handling of classified information. <>
As a member of the United States Senate, I have a consistent record of voting to ensure we adhere to the same values we fight to protect. On October 5, 2005, I voted in favor of an amendment introduced by Senator John McCain to the Fiscal Year 2006 Department of Defense Appropriations Act prohibiting “cruel, inhuman, or degrading treatment” of detainees. This amendment passed on a 90-9 vote in the Senate and was signed into law by President Bush on December 30, 2005. During consideration of the Fiscal Year 2005 Defense Authorization Act, I supported an amendment offered by Senator Leahy that stated it is policy of the United States to treat prisoners in its control humanely. Furthermore, I cosponsored an amendment offered by Senator Durbin reaffirming prisoners of war and enemy combatants must not be tortured or treated inhumanely. In light of the abuses at Abu Ghraib prison in Iraq , I cosponsored the Senate resolution that condemned the abuse of Iraqi prisoners at Abu Ghraib and called for a full and complete investigation to ensure justice is served. <>
On June 25, 2003, I wrote to National Security Advisor Condoleezza Rice expressing my concern over the mistreatment of enemy combatants in the custody of the United States . Our reputation has been significantly marred by the abuse of some detainees. The images and stories appearing in both the American, and perhaps more significantly, the Arab and international media have the potential to damage America ‘s standing as the unquestioned champion of human rights and the rule of law. <>
I believe the United States should make it clear that all interrogations of enemy combatants are conducted in a manner consistent with our obligations under the “Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment.” This treaty, ratified by the United States , provides the most widely accepted definition of torture and other forms of unlawful mistreatment. <>
Thank you again for contacting me. The concerns of my constituents are of great importance to me, and I rely on you and other Pennsylvanians to inform me of your views. Should you have any further questions, please do not hesitate to contact my office or visit my website at http://specter.senate.gov .

Sincerely,

 

<> Arlen Specter

Thinking about Hamdan v. Rumsfeld

The highest crime, of the “high crimes and misdemeanors” for which Congress can impeach a President, is violation of her or his Oath of Office to defend the Constitution. In this part of an ongoing conversation between Walter Dellinger of Duke University Law School, and Dahlia Lithwick, an Editor of Slate, Dr. Dellinger lays out in stark and frightening exposition “exactly how this presidency departed from
fundamental legal principles. The problem is not the president’s assertion (or that of lawyers on his behalf) that he can ignore laws he believes to be unconstitutional. The problem is what laws he believes to be unconstitutional.”

In the area where no law exists, Dellinger explains, a sitting President can exert Executive authority, as in responding to surprise attack. While Dellinger’s explanations do not need me to explain them, I want to lay a foundation based on the points of argument that apply to a particular distinction in describing events and actions as “before the fact” and “after the fact,” as they will be the foundation of further posts of mine, posts that (perhaps or probably) go far afield of Dellinger’s cogent arguments.

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Undoing the Imperial Presidency

It is fairly clear from the New York Times lead article on the United States Supreme Court decision in Hamdan v. Rumsfeld that the Court has restored the Constitutional balance of powers. It is also clear, from the Deseret News article on the same decision by the Supreme Court, that there are many more turns of the screw before we have settled law in this matter. The Deseret News, of Salt Lake City, Utah, expresses points of view congenial to its readers, in the reddest of red states. The NY Times expresses views congenial to the bluest of blue cities, with twice the population of Utah.

Because the LDS Church (Mormons) revere the United States Constitution as second only to scripture, the Deseret News article is measured and respectful. What it does is outline the steps that are likely to come that will reconcile the Bush administration position with the Court’s decision.

Read together, as an accident of Google home page and frequent updates of “Google News, the two articles provide a more comprehensive perspective on the issues and consequences of this decision. No detainees will be moved from Guanta/namo; no tribunals will be held, and further judicial processes will be delayed until new law is written and passed that will enable the Executive branch to hold “commissions” (read tribunals) that will pass muster with the Supreme Court.

I think the outstanding part of Justice John Paul Stevens’s decision is the point that any legal process against detainees needs to comply with the Uniform Code of Military Justice and the Geneva Conventions (Convention on Prisoners of War, Article 3). What is outstanding, and one hopes it would be a binding precedent, is the specification of international law fixed by treaty to which the United States is signatory. Further, the Geneva Convention in the above link defines what we learned to call “enemy combatants,” that is, people we have detained though

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