Can we say, "96 War Crimes Act?"

• Geneva Convention Article 3 makes it clear that any inhumane treatment of anyone detained is a crime which could include the death penalty [if a prisoner dies as a result of the abuse].
• The 1996 War Crimes Act [are you following this Goobieman] makes the GC part of US criminal law.
• Alberto Gonzales is worried US officials could be charged with war crimes regarding interrogation techniques because the Geneva Conventions are absolute, with no room for interpretation.
• So the Adminstration invents new terminology (ie, unlawful combatant, detainee, etc) to circumvent the GC and leave room for interpretation in the military courts.
• Wide spread, systematic abuse of "detainees" ensues to the point where 35 have died in custody.
• Adminstration contends that these people [not the 35 that died] do not have rights and are to be tried in military courts.
• Supreme Court finally reviews case of Hamdan vs Rumsfield and says the Adminstration's position is bullshit!
• So now, they [the Admistration], is scrambling to intoduce legislation [before the Democrats take back power this fall] to shield them from criminal prosecution.

Detainee Abuse Charges Feared
Shield Sought From '96 War Crimes Act

By R. Jeffrey Smith Washington Post Staff Writer
Friday, July 28, 2006; Page A01

An obscure law approved by a Republican-controlled Congress a decade ago has made the Bush administration nervous that officials and troops involved in handling detainee matters might be accused of committing war crimes, and prosecuted at some point in U.S. courts.

Senior officials have responded by drafting legislation that would grant U.S. personnel involved in the terrorism fight new protections against prosecution for past violations of the War Crimes Act of 1996. That law criminalizes violations of the Geneva Conventions governing conduct in war and threatens the death penalty if U.S.-held detainees die in custody from abusive treatment.

http://www.washingtonpost.com/wp-dyn/content/article/2006/07/27/AR2006072701908.html

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Billo_Really said:

I don't know how many times I've seen posts saying the Geneva Conventions do not apply to "unlawful detainees". Or that it's ridiculous to think the Administration could be charged with war crimes. I can't count how many times people have tried to give me a little heat on this subject, when all the evidence they had was "...hope that it would not happen!"

Well, well, well, soon they won't even have that!

The jist of it goes like this:

• Geneva Convention Article 3 makes it clear that any inhumane treatment of anyone detained is a crime which could include the death penalty [if a prisoner dies as a result of the abuse].
• The 1996 War Crimes Act [are you following this Goobieman] makes the GC part of US criminal law.
• Alberto Gonzales is worried US officials could be charged with war crimes regarding interrogation techniques because the Geneva Conventions are absolute, with no room for interpretation.
• So the Adminstration invents new terminology (ie, unlawful combatant, detainee, etc) to circumvent the GC and leave room for interpretation in the military courts.
• Wide spread, systematic abuse of "detainees" ensues to the point where 35 have died in custody.
• Adminstration contends that these people [not the 35 that died] do not have rights and are to be tried in military courts.
• Supreme Court finally reviews case of Hamdan vs Rumsfield and says the Adminstration's position is bullshit!
• So now, they [the Admistration], is scrambling to intoduce legislation [before the Democrats take back power this fall] to shield them from criminal prosecution.

Will we ever get to a point where the people who support Bush finally say, "Ok, maybe he wasn't all that hot after all." Because if someone on the fanatical right told me that, I would respond, "Our guy wasn't that hot either!"

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Article 4

1. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
   1. Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
   2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[
      • that of being commanded by a person responsible for his subordinates;
      • that of having a fixed distinctive sign recognizable at a distance;
      • that of carrying arms openly;
      • that of conducting their operations in accordance with the laws and customs of war.
   3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
   4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
   5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
   6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
2. The following shall likewise be treated as prisoners of war under the present Convention:
   1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.
   2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.
3. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

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Originally posted by TOT:
Yep I'm definately not seeing terrorist's who intenonally murder innocent women and children being covered in there anywhere.

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Part I : General provisions
ARTICLE 3

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.

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Billo_Really said:

Nice try. Actually it was Article 3 the Supreme Court said was the minimum standard for treatment of "anyone" detained.

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(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.

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Originally posted by TOT:
You really ought learn to read it doesn't say anyone it's actually rather specific of whose entitled to this minimum treatment:

Well let's review the terrorist's aren't members of any nations armed forces now are they that puts them in a category not covered in Article 3.

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International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.

Article 5

1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.

2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.


PART III

Article 6

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

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Billo_Really said:

The bottom line is that you are argueing for the right to torture people before every finding out through a judicial process on whether these people are guilty of what you are accusing them of.

What does that say about you?

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Originally posted by TOT:
Well you and I have a different idea of what constitutes as torture.

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Billo_Really said:

So tell me, in a country where a person is innocent until PROVEN guilty, at what point is that person legally determined to be a terrorist?

Furthermore, you're not taking into account additional Articles that we have ratified and thus made our law as well.

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The United States Senate ratified the ICCPR in 1992, with a number of reservations, understandings, and declarations. In particular, the Senate declared that "the provisions of Article 1 through 26 of the Covenant are not self-executing." 138 Cong. Rec. S4781-84 (1992). The Senate stated that the declaration was meant to "clarify that the Covenant will not create a private cause of action in U.S. Courts." S. Exec. Rep., No. 102-23, at 15 (1992). Where a treaty or covenant is not self-executing, and where Congress has not acted to implement the agreement with legislation, no private right of action is created by ratification. Sei Fujii v. State 38 Cal.2d 718, 242 P.2d 617 (1952); also see Buell v. Mitchell 274 F.3d 337 (6th Cir., 2001) (discussing ICCPR's relationship to death penalty cases, citing to other ICCPR cases). Thus while the ICCPR is binding upon the United States as a matter of international law, it does not form part of the domestic law of the nation.

http://en.wikipedia.org/wiki/International_Covenant_on_Civil_and_Political_Rights#United_States

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Originally posted by TOT:
And seeing as we are not a member of the international criminal court this act is little more than a piece of paper.

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Billo_Really said:

And if you had to juxtapose this with the recent Supreme Court ruling and the part in our Constitution that has to do with treatise we ratify, you would say...

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Originally posted by TOT:
I would say that in effect the supreme court ruling only made it impossible for the detainees to recieve any trial what so ever and that I'm wondering how you think anyone in the u.s. will be prosecuted under this law.

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Billo_Really said:

That's easy. Through normal judicial processes instead of military banana courts.

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Originally posted by TOT:
Actually I meant how members of the administration would be prosecuted since we're not a member of the international criminal court and the ICCPR can not be invoked in the u.s. judicial system.


Furthemore; the supreme court decision gave the detainees POW status which means they are not even enitled to a military trial let alone a civilian one.

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Billo_Really said:

I don't think they did that. Because they don't deserve POW status. They don't wear uniforms or fight under a flag. They don't deserve the rights accorded to a POW.

The Supreme Court ruled on the minimum treatment of anyone detained shall be Article 3 of the Conventions.

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As to your first statement, I ofter wonder that myself.

On another front, hey, congratulations on getting the last word on billo in that other thread. I hear you left him without anything to say.

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Originally posted by TOT:
Ya you're right but my main point still stands now they're not even going to get a military tribunal.

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Billo_Really said:

That's the whole point. We don't want a military tribunal to hear these cases. You cannot get due process of law when you have rules like the defendant cannot be present in the courtroom or hear what charges or evidence the prosecutor has against him. In a regular judicial court of law, they have to present their evidence or the case will be thrown out.

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Now, I agree we shouldn't present evidence that compromises our national security, but their should be at least enough non-security evidence to present, if these guys are, in fact, terrorists. And at least a 1/3 of them were not captured anywhere near the battlefield.

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Originally posted by Trajan Octavian Titus:
Think about if for a second the ones not captured on the battlefield who we would actually have to prove to be terrorists had to be captured through the use of our intelligence agencies and confidential-informants so any evidence put forth would have to jeopardize our national security.

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Billo_Really said:

That's a very difficult notion to ponder. On the one hand, you can't jeopardize the life of a someone operating covertly for our government (unless your Valerie Plame.............sorry, that just slipped out before I could stop it) and on the other hand, one of the foundations of this country is that a person is innocent until proven guilty. Not just a US person. Anyone that has had to go through our judicial system begins there.

But the point you make is valid. And one for which I don't have an answer for. I'm glad I'm not a judge. I'm more glad YOUR not a judge. But that's a topic for another thread on another day.

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Originally posted by TOT:
I think the supreme court made a horrible decision, because I think the military tribunals were a great half way point between the "lawyer for every terrorist," ACLU crowd and the "lock them up and throw away the key," crowd. Under the military tribunals people were actually being found innocent you do understand that right? Now they don't even have access to that so in effect the scotus decision was a victory for the: "lock them up and throw away the key crowd."

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Billo_Really said:

Unless they have been convicted, you can't say with any certainty if they are a terrorist or not. So why treat them like they are? Not to say you should release them either. If you got valid evidence, then by all means charge them with a crime. Otherwise, you do not hold anybody without charges. That goes against the very foundation of what this country was built on. Although I think this war on terror is bullshit, I'll do my part in my own way to help fight it. What I'm not going to do, is give up my heritage or my civil rights to do so.

Why do you say these people cannot get into a court of law due to the recent Supreme Court decision? Explain thyself...

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Originally posted by TOT:
Because they have no inherent right to one since they are not u.s. citisens and are not on American soil and do you think that this administration will give them one if they don't have to?

Furthermore; these are not your average civilian criminals so their cases should not be held in a civilian court but by the same token they are not technically POW's and given the indefinite nature of the war on terror in which there will not be a clear victory or sessation of hostilities like in a conventional war they should not be held indefinately without trial like a normal POW would and that is why I think the military tribunals were the best option.

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Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

http://www.law.cornell.edu/constitution/constitution.billofrights.html

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Billo_Really said:

Show me where it say's citizen in the following document. You are familiar with it, are you not?

Well, hells bells, there's a billo in that link!

Well, there was. You'll have to read the unabridgd version.

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except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger

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The Constitution of the United States of America

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

http://en.wikipedia.org/wiki/Johnson_v._Eisentrager

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Johnson v. Eisentrager

Johnson v. Eisentrager, 339 U.S. 763 (1950), was a lawsuit in which the U.S. Supreme Court decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison. The prisoners had at no time been on American sovereign territory.

http://en.wikipedia.org/wiki/Johnson_v._Eisentrager

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