22
   

Should we prosecute torture as a war crime?

 
 
Brandon9000
 
  1  
Reply Sat 30 May, 2009 07:41 am
What's flagrantly missing from this discussion so far is a legal definition of torture.
old europe
 
  1  
Reply Sat 30 May, 2009 07:53 am
@Brandon9000,

Would this definition work for you?

Quote:
TITLE 18"CRIMES AND CRIMINAL PROCEDURE

PART I"CRIMES

CHAPTER 113C"TORTURE

§ 2340. Definitions

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from"
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
Brandon9000
 
  1  
Reply Sat 30 May, 2009 07:55 am
@old europe,
old europe wrote:


Would this definition work for you?

Quote:
TITLE 18"CRIMES AND CRIMINAL PROCEDURE

PART I"CRIMES

CHAPTER 113C"TORTURE

§ 2340. Definitions

...

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.


It does. Thanks. Future discussions in the thread should refer to this legal definition. On the subject of prosecutions, torture is what the law says it is, not simply anything that members of the Bush adminsitration did.
parados
 
  1  
Reply Sat 30 May, 2009 08:27 am
@Brandon9000,
The legal definitions apply to THIS law
http://www.law.cornell.edu/uscode/18/usc_sup_01_18_10_I_20_113C.html
Quote:
(a) Offense." Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction." There is jurisdiction over the activity prohibited in subsection (a) if"
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy." A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.
0 Replies
 
georgeob1
 
  1  
Reply Sat 30 May, 2009 08:54 am
@old europe,
Well the definition, reasonable as it may appear, is from Cornell University, and not from a governing or lawmaking body. Moreover it purports to apply or be useful only with respects to the topics addressed in the accompanying paper.

In addition, in its opening paragraph it specifically and categorically exempts, "pain or suffering incidental to lawful sanctions".

Together these points very significantly limit its force with respect to the rather broad and wandering topic of this thread.

We are here addressing subjects as broad and weakly related as the controlled and very deliberate waterboarding of a few carefully selected high (potential) value subjects - acts knowingly directed by the government and rationalized as legal, and the entirely despicable abuses of prisoners at Abu Graib, mostly - based on what has been made public - involving clearly illegal misbehavior that had very little to do with the concrete objectives of our military or intelligence programs there, though very likely the crimes were indirectly facilitated or at least rationalized by the perpetrators as part of those efforts.

I believe the Military was right to dismiss the Brigadier General in charge of Abu Graib: indeed she got off easy. The Commanding Officer's job is to know and control what goes on in the command, and specifically to limit a large class of mostly predictable excesses that arise from human nature. She certainly appeared to be in over her head, and the assignment of an inexperienced National Guard officer to this job suggests a degree of accountable misfesance above her level in the organization.

I would never accept the forced extraterritorial jurisdiction of a foreign court over any U.S. citizen, particularly a member of the armed forces. No doubt this is inconsistent with the winner's "justice" we inflicted on Germany and Japan, unhappily rationalized with a lot of overinflated rhetoric; and, in addition, the many mostly meaningless and unenforcable "Declarations" of the United Nations. The idea of some self-important pipsqueak judge of the Balthazar Garzon ilk inflicting his prejudices on me or anyone of my service, or country is quite offensive to me.
old europe
 
  1  
Reply Sat 30 May, 2009 09:45 am
@georgeob1,
georgeob1 wrote:
Well the definition, reasonable as it may appear, is from Cornell University, and not from a governing or lawmaking body. Moreover it purports to apply or be useful only with respects to the topics addressed in the accompanying paper.


The text is from the US Code. You can find the original text file here: http://uscode.house.gov/download/pls/18C113C.txt


georgeob1 wrote:
In addition, in its opening paragraph it specifically and categorically exempts, "pain or suffering incidental to lawful sanctions".


True. Even sentencing someone to prison arguably causes suffering (which some might argue is exactly the purpose), but it's usually not regarded as torture.

georgeob1 wrote:
Together these points very significantly limit its force with respect to the rather broad and wandering topic of this thread.

We are here addressing subjects as broad and weakly related as the controlled and very deliberate waterboarding of a few carefully selected high (potential) value subjects - acts knowingly directed by the government and rationalized as legal, and the entirely despicable abuses of prisoners at Abu Graib, mostly - based on what has been made public - involving clearly illegal misbehavior that had very little to do with the concrete objectives of our military or intelligence programs there, though very likely the crimes were indirectly facilitated or at least rationalized by the perpetrators as part of those efforts.

I believe the Military was right to dismiss the Brigadier General in charge of Abu Graib: indeed she got off easy. The Commanding Officer's job is to know and control what goes on in the command, and specifically to limit a large class of mostly predictable excesses that arise from human nature. She certainly appeared to be in over her head, and the assignment of an inexperienced National Guard officer to this job suggests a degree of accountable misfesance above her level in the organization.


I would say that there's legitimate concern over how much of what the Bush administration declared to be isolated incidents was really institutional. I'm not propagating some kind of conspiracy theory here, and I'm perfectly willing to accept that the abuse at Baghram or Abu Ghraib or elsewhere was a result of excesses by individuals, but there's just as much evidence that it was accepted or even encouraged by superiors. There might be a connection between the Commander in Chief ordering "enhanced interrogation methods" and soldiers abusing prisoners, or there might not. Most people seem to agree that at least the kind of abuse seen in Abu Ghraib (along with evidence of apparently much worse incidents that has not been made public yet) clearly violated the law. I agree that dismissing Karpinski was the right decision, but it doesn't necessarily take away from her claims that this was only done in order to protect higher ranking personnel.

georgeob1 wrote:
I would never accept the forced extraterritorial jurisdiction of a foreign court over any U.S. citizen, particularly a member of the armed forces. No doubt this is inconsistent with the winner's "justice" we inflicted on Germany and Japan, unhappily rationalized with a lot of overinflated rhetoric; and, in addition, the many mostly meaningless and unenforcable "Declarations" of the United Nations. The idea of some self-important pipsqueak judge of the Balthazar Garzon ilk inflicting his prejudices on me or anyone of my service, or country is quite offensive to me.


I would be happy to see US law applied.
georgeob1
 
  1  
Reply Sat 30 May, 2009 10:16 am
@old europe,
old europe wrote:


I would say that there's legitimate concern over how much of what the Bush administration declared to be isolated incidents was really institutional. I'm not propagating some kind of conspiracy theory here, and I'm perfectly willing to accept that the abuse at Baghram or Abu Ghraib or elsewhere was a result of excesses by individuals, but there's just as much evidence that it was accepted or even encouraged by superiors. There might be a connection between the Commander in Chief ordering "enhanced interrogation methods" and soldiers abusing prisoners, or there might not. Most people seem to agree that at least the kind of abuse seen in Abu Ghraib (along with evidence of apparently much worse incidents that has not been made public yet) clearly violated the law. I agree that dismissing Karpinski was the right decision, but it doesn't necessarily take away from her claims that this was only done in order to protect higher ranking personnel.


Possibly true, However, I don't think it is worth all the often self-righteous and hypocritical attention it gets. Perhaps we should take the question up at about the same time that Germany inquires into the sudden prominence of former Chancellor Schroeder in Gazprom.

We see the same hand wringing with respect to Sudan and other currently fashionable bad guys, but only silence with respect to the favored icons (i.e. Cuba and others) of the compulsively anti establishment crowd. Moreover on really serious issues involving palpable common danger, for example North Korea, we see almost nothing at all but impotent indignation. None of it accomplishes anything except to entertain various single issue loonies.
parados
 
  1  
Reply Sat 30 May, 2009 10:23 am
@georgeob1,
It is the US code and states as much even though it is provided by Cornell.

Quote:
In addition, in its opening paragraph it specifically and categorically exempts, "pain or suffering incidental to lawful sanctions".
A lawful sanction would be one designated by law. Imprisoning a person for 20 years is a lawful sanction. Death is a lawful sanction if imposed by a court since the law requires conviction in a court. Imprisoning a person while they are being charged with a crime is a lawful sanction. A lawful sanction will require that it is put into law in some manner.

Holding prisoners of war is a lawful sanction. Treating them in a manner not consistent with the geneva convention would not be a lawful sanction.

Quote:
- acts knowingly directed by the government and rationalized as legal,
That is a rather interesting issue. "rationalized as legal" is not the same thing as "legal." Anything can be rationalized. I can rationalize that I need money so robbing a bank is OK but that doesn't make it legal.
But the statute says this..

Quote:
“torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

What does "under the color of the law" mean to you? It says to me, that rationalizing it as legal does NOT make it legal.

Then this statement in the law..
Quote:
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from"
...
(C) the threat of imminent death; or

It seems that waterboarding makes one think they are drowning. Someone that thinks they are drowning would think they are threatened with death.
That leaves only the argument that there is no mental pain and suffering in thinking you will die. An argument that is rather hard to make, don't you think george?


But that raises the question of whether the President can create law or ignore existing law. Some very real questions that should be answered, don't you think? If someone you like as President can do it, then someone you don't like can do it. It always amazes me how conservatives don't seem to realize that when they authorize those they support to do things. They always seem surprised when those the oppose use the powers they gave them.
old europe
 
  1  
Reply Sat 30 May, 2009 10:43 am
@georgeob1,
georgeob1 wrote:
Possibly true, However, I don't think it is worth all the often self-righteous and hypocritical attention it gets.


I think part of why it has gotten so much attention is a consequence of how the Bush administration portrayed America's role in the world. While there was a good deal of international consent in regard to Afghanistan, the administration just met any kind of criticism of the way it handled the Iraq issue with a stalwart claim of moral superiority. Countries who opposed the invasion were derided by administration officials as lacking the willpower to unilaterally, without mandate of the UN, enforce UN resolutions. Amongst the reasons given for the invasion were Saddam's failure to comply with international treaties and resolutions and his violation of basic human rights, and the invasion was propagated as a "liberation" of an oppressed people.

I think a good part of the criticism America was facing from foreign observers (I'm assuming that is what you're objecting to) was due to the way the Bush administration set itself up as morally superior, as the arbiter of truth and decency, as the bringer of freedom and democracy.

georgeob1 wrote:
Perhaps we should take the question up at about the same time that Germany inquires into the sudden prominence of former Chancellor Schroeder in Gazprom.


Because that has what to do with the price of rice in Beijing?

Look, I'm highly critical of the way Schröder (grudgingly) left office and went right on to accept a lucrative job with Gazprom. This is highly questionable, particularly given his role in negotiating contracts with Russia. However, I don't think this rises to the level of injustice and violation of human rights that the actions of member of the former administration - possibly - constitute.

If you want to accuse Schröder or his administration of hypocrisy, why not bring up the knowledge or possible complicity in secret CIA flights, in the operation of secret prisons, in the abduction of foreign nationals or in extraordinary renditions?
georgeob1
 
  1  
Reply Sat 30 May, 2009 03:17 pm
@old europe,
old europe wrote:

I think part of why it has gotten so much attention is a consequence of how the Bush administration portrayed America's role in the world. While there was a good deal of international consent in regard to Afghanistan, the administration just met any kind of criticism of the way it handled the Iraq issue with a stalwart claim of moral superiority. Countries who opposed the invasion were derided by administration officials as lacking the willpower to unilaterally, without mandate of the UN, enforce UN resolutions. ...

I think a good part of the criticism America was facing from foreign observers (I'm assuming that is what you're objecting to) was due to the way the Bush administration set itself up as morally superior, as the arbiter of truth and decency, as the bringer of freedom and democracy.


I generally agree with your proposition here. However, I strongly believe there are other factors equivalently at work as well. Prominent among them are (1) the observable fact that dominant powers (even temporarily dominant ones) don't really have any friends - everyone welcomes the opportunity to take them down a peg. (2) Europe has undergone a number of significant transformations, probably the result of its collective history, ranging from a widespread demographic collapse to the rejection of national soverignty in favor of Europe-wide (or mostly so) common government. These things have not occurred here (though a part of our political spectrum led in the creation of the UN, most of us see this country as distinct from the world), and they add significantly to a long-standing divide between the United States and Europe (a divide that was temporarily masked by the European wars of the 20th century, and which has since returned in force).

Add these factors to the mix and I think you will have an accurate description of what has gone on. Leave them out and you are merely engaging in some self-serving rationalizations.
0 Replies
 
Brandon9000
 
  1  
Reply Sat 30 May, 2009 03:33 pm
@parados,
parados wrote:

...Holding prisoners of war is a lawful sanction. Treating them in a manner not consistent with the geneva convention would not be a lawful sanction....

Strictly discussing legality, not everyone qualifies for coverage under the Geneva conventions. I don't recall who's eligible for what, but I do recall that not every prisoner is eligible for coverage. Maybe one of the lawyers on the board can say something more about this.
0 Replies
 
dlowan
 
  2  
Reply Sat 30 May, 2009 08:36 pm
I would love to see these bastards tried and convicted...just as I would love to see the junta in Burma, Kim in Korea and a whole bunch of other arseholes exposed to the rule of law. As I would love to see our own Prime Minister tried for lying re Iraq, and re things such as the "children-overboard" lie campaign, designed to keep the government in power in an election it feared losing.

But...it clearly ain't gonna happen.

And I agree with Georgeob that a major reason for that is that leaders don't want to see precedents like that happen, because they know that it opens up the door for them to similarly be held to account for whatever **** THEY get up to.

And, I suspect that we the people aren't all that keen, either, because I suspect we know, but don't want to have to admit we know, that a certain amount of illegal **** is done by most governments, in the name of national security...and we want to feel secure, without, if we believe in the rule of law and all and don't just believe "my country right or wrong but it's always right because it's America, or England etc." and suchlike immoral crap, being forced to REALLY know what is done in our name.


Leaders and their hench-crims generally only get tried if they lose a war quite convincingly, and have an occupying power ready and willing to try them, or just murder them...or if they experience an internal coup, or a superpower outside-supported coup, with said superpower/s quite happy to see murder and general mass slaughter and terror committed, as with the US and Pinochet in Chile, and the US and UK in Iran.

I do wonder though, with a government like Bush's which is accused of so many illegal acts and acts of true horror, if it is not truly indicated that there be a far-reaching truth commission and investigation....there has to be sme way of trying to determine the truth in such situations, and leaders ought to feel that, at the laest, they are going to have to get up and face some accountability for their actions.

Brandon9000
 
  1  
Reply Sat 30 May, 2009 10:14 pm
@dlowan,
dlowan wrote:

...I do wonder though, with a government like Bush's which is accused of so many illegal acts and acts of true horror, if it is not truly indicated that there be a far-reaching truth commission and investigation....there has to be sme way of trying to determine the truth in such situations, and leaders ought to feel that, at the laest, they are going to have to get up and face some accountability for their actions.

We conservatives can accuse Obama of a lot of crimes too, and then you can send him to jail. Of course, he wouldn't actually be guilty of any of them, but, hey, who cares?
JTT
 
  1  
Reply Sat 30 May, 2009 10:53 pm
@georgeob1,
Quote:
I would never accept the forced extraterritorial jurisdiction of a foreign court over any U.S. citizen, particularly a member of the armed forces. No doubt this is inconsistent with the winner's "justice" we inflicted on Germany and Japan, unhappily rationalized with a lot of overinflated rhetoric; and, in addition, the many mostly meaningless and unenforcable "Declarations" of the United Nations. The idea of some self-important pipsqueak judge of the Balthazar Garzon ilk inflicting his prejudices on me or anyone of my service, or country is quite offensive to me.


You really couldn't expect anything more from an ex-military butt licker.
Justice means nothing to people like Gob1. Who gives a rat's ass how many people are killed, eh, Gob1?

0 Replies
 
joefromchicago
 
  1  
Reply Sun 31 May, 2009 12:39 am
@old europe,
old europe wrote:

georgeob1 wrote:
Well the definition, reasonable as it may appear, is from Cornell University, and not from a governing or lawmaking body. Moreover it purports to apply or be useful only with respects to the topics addressed in the accompanying paper.


The text is from the US Code. You can find the original text file here: http://uscode.house.gov/download/pls/18C113C.txt

Laughing
0 Replies
 
dlowan
 
  1  
Reply Sun 31 May, 2009 02:40 am
@Brandon9000,
Of course...however there would need to be some evidence of law breaking.

With Bush there is.

I doubt there's any for Obama yet....and hopefully he will not be as appalling in his decisions as Bush.

You of course will deny any Bush wrongdoing, as is expected from you, but there are quite reasonable arguments rebutting your prejudices.

Only a proper investigation would determine the matter, and there won't be one...so don't worry, your heroes have got off scot free, as American leaders will continue to do while you guys still have power.
Brandon9000
 
  1  
Reply Sun 31 May, 2009 03:55 am
@dlowan,
dlowan wrote:

Of course...however there would need to be some evidence of law breaking.

With Bush there is.

What evidence?
0 Replies
 
Finn dAbuzz
 
  1  
Reply Wed 3 Jun, 2009 09:01 pm
@dlowan,
Quote:
Of course...however there would need to be some evidence of law breaking.

With Bush there is.

You of course will deny any Bush wrongdoing, as is expected from you, but there are quite reasonable arguments rebutting your prejudices.

Only a proper investigation would determine the matter, and there won't be one...so don't worry, your heroes have got off scot free, as American leaders will continue to do while you tguys still have power.


If there is evidence and "quite reasonable arguments," why is further investigation necessary? Where is the indictment?

And if further investigation is necessary why does it need to be conducted in a public forum ---- which, let's be honest, is what you are advocating.

The reason is that whether you know no crime was committed or you cynically contest none will ever be made to stick, you (and your liberal American friends) crave a public spectacle where a partisan majority can ruin the lives of low level political adversaries in a desperate effort to bring low the former chief of the tribe that vanquished yours for the last eight years.

If the Democrats appetite for "Truth Commissions," ( a fearfully Orwellian term if there ever was one) has abated of late (and it has), it's only because Madam Pelosi has assured that there is at least one important "truth" the Democrats don't want revealed.

If crimes were committed, our criminal justice system is certainly capable of ferreting them out without the theatre of the absurd know as a congressional investigation.

So much high handed bullshit is ladled out about how our system demands a public investigation. What our system demands is a public airing of the evidence, not the accusations, insinuations and perjury.

The Justice Department has the same, or better ability to get to the bottom of any charges than congress.

The only time that congress needs to flex it's muscles is when their might be a conflict of interest within the JD.

I could argue that there is an inherent conflict when the JD of one party's administration embarks on investigating the action of a prior administration of the opposition party, but I'm happy to waive that argument.

We are not faced with a Republican JD investigating Bush. We don't need a Dem controlled congress to insert itself into the process for fairness sake.

Let's have at it.

If someone in the Dem controlled JD believes there is a case to be made against Bush et al, make it!

Let's have the national debate we need.

Let's put the issues on the line and not mask them in manipulative polling questions.

As I've previously written in this thread, such a process will not be thwarted by Republicans, it will be stymied by Obama who wants to have the same cover afforded his predecessors.

Admittedly this is a response to you and a larger group.

If I read your post correctly you are arguing that American leaders (regardless of party) will never be called to task as long as America has it's "power."

First blush --- No kidding? I suppose the lion should subject herself to the tribunal of zebras.

Second blush --- Cuba, North Korea, Burma, Zimbabwe, Lybia, Iran etc is not being called to task and none of them are Super Powers so WTF?

Let's assume that the interrogation methods the US used on three murderous terrorists who were sworn to repeat 9/11 was actually "torture."

This is the most important geopolitical issue facing our world? This is the most heinous of examples of state sponsored brutality in the world? The people responsible for these acts of torture are the vilest criminals in the world?

If torture was committed, it is not to be excused because there are far worse act of brutality committed, but why should it jump to the top of the list because America is involved.

Does anyone really think that the transgressions of the American government (2000-2008) -- whatever you contend they may be -- rise to the level of the transgressions perpetrated during the same time period by China, North Korea, Burma, Vietnam, Sudan, Liberia, Congo, Libya, Syria, Iran, Ubekistan, Russia, Cuba, Venezuela, and any number of small Bum Fu*k countries around the world?

If you do, fair enough --- let's do the comparison.

This is not to say that America's transgressions are to be automatically forgiven, but it would help the credibility of America's critics if they spent, at least, equal energy condemning the transgressions of the many and varied mad dog nations of the world.
DontTreadOnMe
 
  1  
Reply Wed 3 Jun, 2009 09:05 pm
one has to wonder if the starr report was a truth commission.
dlowan
 
  2  
Reply Wed 3 Jun, 2009 11:52 pm
@Finn dAbuzz,
Is the only important thing to do to hierarchize who is worst?

The transgressions of most importance to me are those committed by my own government....and these I am active in attempting to address. You would note how concerned many of the Ozzians here are about abuses by Australia if you read in the

To whatever extent I can, I am active in opposing abuses in other countries (currently involved re Burma, Iran, China, the Congo, Zimbabwe, that I can think of off the top of my head, in whatever pathetic way I can...like Amnesty, Avaaz, micro-finance donations etc.

Your argument that other leaders have done worse than Bush co is irrelevant since nobody is arguing that they haven't.

What IS relevant is whether their actions broke US law, or the rules of behaviour expected by your citizens for decent policies and practices.

I imagine there are no indictments because there is insufficient will, power or money to seek them by those who believe the actions were unusually immoral or frankly illegal.

I have explained under what conditions I think it likely leaders will be indicted. You may recall that I consider the leaders of powerful nations are very unlikely ever to be called to account unless there is a coup (which usually seems to lead to slaughter rather than trial, in my experience) or they lose wars convincingly to an enemy willing to prosecute.

You are always obsessed with thinking people who don't agree with you are blind to the faults of any country but America.

Since I do not expect evidence of the contrary to affect your obsessions or your ravings, I doubt any rational debate with you re this is possible...so I guess you will just have to continue with your paranoid beliefs.


People from other countries are quite entitled to comment on a super power which invades countries it thinks cannot resist illegally and acts as a global bully.

That America is not the only country to behave in this way when it can makes no difference to concerns about the US. I guess you'll just have to deal with the fact that not only Americans can criticize other countries. You guys are very good at dishing out "axes of evil" and such epithets. You are not gonna be immune.

Nobody else can help you clean up your house...it would be cool if the US tried.

But, as I said, I doubt much will happen.

So..why are you whining? As I said, your boys got off scot free.



 

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