Harping On Abu Ghraib and Gitmo is Highly Misguided

Pictures of a dead Iraqi prisoner from Abu Ghraib, packed in ice and bound with duct tape have become infamous. Today, other photos came to light showing an additional victim of US Army interrogations at Abu Ghraib.

The dead man has been tentatively identified. His name is Manadel al-Jamadi. Mr. Jamadi is the second dead prisoner to appear in photographs taken at Abu Ghraib prison. An autopsy has determined that Mr. al-Jamadi was beaten to death.

US officials have declined to confirm his name.

Manadel al-Jamadi was captured in November by US Navy SEALs, an elite commando force. Pentagon sources and the CIA have said that Mr. al-Jamadi was already in poor health when he was turned over to prison authorities on Nov. 4, but the Navy has denied this, claiming that Mr. al-Jamadi was received at the prison in good health. His autopsy revealed that he had been beaten to death.

Seymour M. Hersh reported in The New Yorker that in November, a prisoner was beaten to death while undergoing interrogation. His body was packed in ice overnight. The next day Army medics placed an IV on one arm, and the body was walked out of the interrogation area on a stretcher.

The man on the stretcher was a "ghost prisoner"; he had no prisoner number. So-called ghost prisoners are not entered into the prison’s inmate tracking system -- they are non-persons whose disappearance or burial is not to be recorded.

Debra, I find your argument about POWs engaging, but this administration has interpreted the laws of this country and the Geneva Convention differently concerming the prisoners at Gitmo (and our other military prisons). Even the Attorney General of the US supports the position of this administration. Rather an argument in futility, don't you think?

Debra_Law wrote:

If they are prisoners of war, the Geneva Convention applies.

Is it your position, Debra, that the Geneva Conventions apply to all "prisoners of war," whether they are or are not signatories to the Geneva Conventions? What is the benefit of signing the document if your theory is correct?

Article 2

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

The White House's top lawyer warned more than two years ago that U.S. officials could be prosecuted for "war crimes" as a result of new and unorthodox measures used by the Bush administration in the war on terrorism, according to an internal White House memo and interviews with participants in the debate over the issue.

The concern about possible future prosecution for war crimes—and that it might even apply to Bush adminstration officials themselves— is contained in a crucial portion of an internal January 25, 2002, memo by White House counsel Alberto Gonzales obtained by NEWSWEEK. It urges President George Bush declare the war in Afghanistan, including the detention of Taliban and Al Qaeda fighters, exempt from the provisions of the Geneva Convention.

In the memo, the White House lawyer focused on a little known 1996 law passed by Congress, known as the War Crimes Act, that banned any Americans from committing war crimes—defined in part as "grave breaches" of the Geneva Conventions. Noting that the law applies to "U.S. officials" and that punishments for violators "include the death penalty," Gonzales told Bush that "it was difficult to predict with confidence" how Justice Department prosecutors might apply the law in the future. This was especially the case given that some of the language in the Geneva Conventions—such as that outlawing "outrages upon personal dignity" and "inhuman treatment" of prisoners—was "undefined."

One key advantage of declaring that Taliban and Al Qaeda fighters did not have Geneva Convention protections is that it "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act," Gonzales wrote.

"It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]," Gonzales wrote.

The best way to guard against such "unwarranted charges," the White House lawyer concluded, would be for President Bush to stick to his decision—then being strongly challenged by Secretary of State Powell— to exempt the treatment of captured Al Qaeda and Taliban fighters from Geneva convention provisions.

"Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution," Gonzales wrote.

The memo—and strong dissents by Secretary of State Colin Powell and his chief legal advisor, William Howard Taft IV—are among hundreds of pages of internal administration documents on the Geneva Convention and related issues that have been obtained by NEWSWEEK and are reported for the first time in this week's magazine. Newsweek made some of them available online today.

The memos provide fresh insights into a fierce internal administration debate over whether the United States should conform to international treaty obligations in pursuing the war on terror. Administration critics have charged that key legal decisions made in the months after September 11, 2001 including the White House's February 2002 declaration not to grant any Al Qaeda and Taliban fighters prisoners of war status under the Geneva Convention, laid the groundwork for the interrogation abuses that have recently been revealed in the Abu Ghraib prison in Iraq.

As reported in this week's magazine edition, the Gonzales memo urged Bush to declare all aspects of the war in Afghanistan—including the detention of both Al Qaeda and Taliban fighters—exempt from the strictures of the Geneva Convention. In the memo, Gonzales described the war against terorrism as a "new kind of war" and then added: "The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians."

But while top White House officials publicly talked about trying Al Qaeda leaders for war crimes, the internal memos show that administration lawyers were privately concerned that they could tried for war crimes themselves based on actions the administration were taking, and might have to take in the future, to combat the terrorist threat.

The issue first arises in a January 9, 2002, draft memorandum written by the Justice Department's Office of Legal Counsel (OLC) concluding that "neither the War Crimes Act nor the Geneva Conventions" would apply to the detention conditions of Al Qaeda or Taliban prisoners at Guantanamo Bay Cuba. The memo includes a lengthy discussion of the War Crimes Act, which it concludes has no binding effect on the president because it would interfere with his Commander in Chief powers to determine "how best to deploy troops in the field." (The memo, by Justice lawyers John Yoo and Robert Delahunty, also concludes—in response to a question by the Pentagon—that U.S. soldiers could not be tried for violations of the laws of war in Afghanistan because such international laws have "no binding legal effect on either the President or the military.")

But while the discussion in the Justice memo revolves around the possible application of the War Crimes Act to members of the U.S. military, there is some reason to believe that administration lawyers were worried that the law could even be used in the future against senior administration officials.

One lawyer involved in the interagency debates over the Geneva Conventions issue recalled a meeting in early 2002 in which participants challenged Yoo, a primary architect of the administration's legal strategy, when he raised the possibility of Justice Department war crimes prosecutions unless there was a clear presidential direction proclaiming the Geneva Conventions did not apply to the war in Afghanistan. The concern seemed misplaced, Yoo was told, given that loyal Bush appointees were in charge of the Justice Department.

"Well, the political climate could change," Yoo replied, according to the lawyer who attended the meeting. "The implication was that a new president would come into office and start potential prosecutions of a bunch of ex-Bush officials," the lawyer said. (Yoo declined comment.)

This appears to be precisely the concern in Gonzales's memo dated January 25, 2002, in which he strongly urges Bush to stick to his decision to exempt the treatment of Taliban and Al Qaeda fighters from the provisons of the Geneva Conventions. (Powell and the State Department had wanted the U.S. to at least have individual reviews of Taliban fighters before concluding that they did not qualify for Geneva Convention provisions.)

One reason to do so, Gonzales wrote, is that it "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act." He added that "it is difficult to predict with confidence what actions might be deemed to constitute violations" of the War Crimes Act just as it was "difficult to predict the needs and circumstances that could arise in the course of the war on terrorism." Such uncertainties, Gonzales wrote, argued for the President to uphold his exclusion of Geneva Convention provisions to the Taliban and Al Qaeda detainees who, he concluded, would still be treated "humanely and, to the extent appropriate and consistent with military necessarity, in a manner consistst with the principles" of the Geneva Convention on the treatment of prisoners of war.

In the end, after strong protests from Powell, the White House retreated slightly. In February 2002, it proclaimed that, while the United States would adhere to the Geneva Conventions in the conduct of the war in Afghanistan, captured Taliban and Qaeda fighters would not be given prisoner of war status under the conventions. It is a rendering that Administration lawyers believed would protect U.S. interrogators or their superiors in Washington from being subjected to prosecutions under the War Crimes Act based on their treatment of the prisoners.

Debra:

I wanted to thank you for the time spent finding the appropriate precedence in this case. Do you think it is the case that we are simply waiting for a lawsuit on behalf of a gitmo detainee for this to be cleared up on behalf of the administration that refuses to give the detainee's a legal status?

How do you, in your legal opinion think this will be resolved?

TTF

What do you know about torture, Parados. My brother drove trucks in Iraq for a year. If he had his way, he would "nuke" the whole country. I am sure you would never make even one delivery trip and put yourself at risk.

I still have not seen any hard evidence that we have "tortured" anybody. That is a canard.

The left wing will tell any lies to denigrate the Administration.

A Reuters Story written by Lori Santora tells us the truth( which the left does not mention)

quote:

"Despite highly publicized charges of US mistreatment of prisoners at Guantanamo, the head of Amnesty International USA said on Sunday that the group 'DOES NOT KNOW FOR SURE" that the military is running a "gulag"

DOES NOT KNOW FOR SURE--WHAT DO THEY KNOW FOR SURE????

About as much as you do, Parados--NOTHING.