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Will former Bush administration officials be prosecuted in foreign countries?

Phillipe Sands says yes, here and here. He might be right, but there are grounds for skepticism.

First, some background. International law carves the world into states; within each state, the national government takes primary responsibility for enforcing the criminal law when crimes occur on its territory. States also claim jurisdiction when nationals commit crimes in foreign countries and sometimes when nationals are victims in foreign countries—leading to overlapping jurisdiction that is sorted out in various ways. States typically do not exercise jurisdiction over foreigner-against-foreigner crimes that occur in foreign territory. If a Russian murders another Russian in Russia, then travels to the United States, American authorities will not prosecute him, no matter how horrible the crime.

There is an exception to this rule—the principal of universal jurisdiction, which applies to certain international crimes. In the old days, the rule applied to piracy, which took place outside the territory of any state, and hence did not naturally fall within any state’s jurisdiction. Today, many international lawyers claim that universal jurisdiction applies to a poorly defined group of crimes that includes genocide and probably torture. Thus, in principle, Spain could exercise jurisdiction over certain international crimes committed by Americans against Afghans in Guantanamo Bay. A former Bush administration official or soldier or CIA agent who travels to Madrid in order to take in the splendors of the Prado could conceivably find himself staring at a cell wall.

I write with more hesitation than most international lawyers would. They have been persuaded by the Pinochet case that universal jurisdiction is now an accepted part of international law. In 1998, Pinochet, the then-former, now-dead, Chilean dictator, traveled to Britain for medical treatment, where he was detained on account of an extradition request filed by the Spanish judge, Baltasar Garzón. The British high court ruled that the extradition request was valid, rejecting the argument that Spain’s assertion of universal jurisdiction violated international law. Riots ensued in Chile, where a fragile democracy existed thanks to a tenuous amnesty program that protected Pinochet and his supporters (many in the army), who had killed and tortured thousands during Pinochet’s regime. Despite the high court’s ruling, the British government sent Pinochet home, claiming that he was too ill to stand trial. Pinochet would linger on for another six years after his release in 2000.

The denouement was a disappointment but the precedent had been set, and it is on this basis—plus the existence of laws in various countries that claim universal jurisdiction, and a handful of treaties—that the principle of universal jurisdiction rests.

It doesn’t count, as far as the international lawyer is concerned, that the British government engineered Pinochet’s escape and hence that he was never tried. Nor does it count that Spanish courts refrained from relying on universal jurisdiction when reviewing Garzón’s legal moves. It doesn’t count that when Garzón turned his sights on Spain itself, and sought to scare up Franco’s ghost, which had been so carefully laid to rest in Spain’s transition, the Spanish government showed as much enthusiasm for this inquiry as the Chilean rioters showed for Garzón’s earlier effort, and squelched it. It is all very well to prosecute a traveling foreigner from a developing country whose political system rests on a fragile compromise between authoritarians and democrats, but when it comes time to investigate our (much worse) crimes, well, forget about it!

Nor does it count that the various statutes that assert universal jurisdiction are, by design, limited, to say the least. The Belgian parliament emasculated its statute when Donald Rumsfeld pointed out that western governments would not want to hold NATO meetings in a place where government officials might be indicted—at the time, Ariel Sharon was under investigation, and (possibly frivolous) complaints had been filed against American generals and President George H.W. Bush, on account of the first Gulf War. Other countries, like Germany, ensure that complaints can’t lead to investigations without the consent of government authorities, in a departure from civil law criminal procedure. Amnesty International claims that most countries recognize universal jurisdiction in domestic statutes, but the number of successful prosecutions based on that principle is extremely low. The political risks of prosecuting foreigners for their crimes against foreigners on foreign soil are usually just too high.

All of this suggests that the hoped-for foreign trials of former Bush administration officials will not happen anytime soon. But this is not to say that such trials are impossible. Pinochet’s lawyers did not expect his apprehension in Britain. European countries have independent judiciaries, and they are capable of acting in ways that their governments—which, for reasons I explained in my last post, have no interest in prosecuting former Bush administration officials—disapprove. Still, the short, undistinguished history of universal jurisdiction so far might give pause even to crusaders like Garzón.

Phil Byler (mail):
Am I reading right when I see the words "the hoped-for foreign trials of former Bush adminsitration officials"? You are nuts. The Bush Administration kept the United States safe after 9/11 from the murderous radical jihadists. The Iraq War removed a murderous, ruthless dictator in Saddam frrom power after that dictator, among other things, violated 17 U.N. arms resolutions, used nerve gas on his own people and employed real torture. To write about about what country could prosecute Bush administration officials under international law is idiocy.

Will it take another attack like 9/11 so that lunatic articles such as this are written? The radical jihadists may oblige.
1.27.2009 11:56pm
nicehonesty:
Since Obama took less that a week in office to commit a few war crimes/crimes against humanity (by ordering the murders of those civilian Muslim men, women, and children via unmanned military strikes into sovereign, peaceful Pakistan), he'll probably be very limited in his travel capabilities during his 4 years in office if other countries start threatening to prosecute American government officials.
1.28.2009 12:00am
PatHMV (mail) (www):
The increasing development of "international law" will become one of the greatest threats to democracy and freedom. Once you forsake the concept of the nation-state and its primacy/near exclusivity for enforcement of criminal laws, it is a very, very small step to begin international prosecutions of anybody deemed undesirable by some government somewhere. And there are, as anybody with a brain can see, many anti-democratic, anti-freedom tendencies present in most of Europe at the moment. It will not be long before they assert power to prosecute, for example, executives for coal-based power plants for carbon emissions.

Heck, before you know it, we might see foreign countries prosecute Americans just for writing words that are deemed to be "offensive" to some favored sect. Oh wait...

We need to begin to lead the fight against the phony concept called "international law." The term itself gives legitimacy to naked exercises of power which are not actually based on any recognized and widely accepted source of law.
1.28.2009 12:08am
Nathan Richardson (mail):
@Phil Byler:

You might want to go back and read that sentence again, in context, before you go too crazy.
1.28.2009 12:09am
Cornellian (mail):
An arrest and trial based on pure universal jurisdiction seems highly unlikely to me. A more likely scenario based would be an arrest and trial in a country in which one of the purported torture victims holds citizenship or a country in which the alleged torture occurred so that a court wouldn't have to rely purely on universal jurisdiction.
1.28.2009 12:12am
Gulf Coast Bandit (mail):
Cornellian: Your comment reminds me of the French investigation of Rwandan government official Rose Kabuye. Back in 1994, the genocide was started by the crash of the Rwandan president's plane. Two theories exist as to who shot it down: the more accepted theory is that it was the genocidal elements within the government. A more fringe theory is that it was the rebel group that eventually took over and stopped the genocide.
The French decided to get involved because the plane's crew was French, and have charged Ms. Kabuye (part of the rebel group) with murdering the crew of the plane. According to the government's theory, a Rwandan killed a Frenchman in Rwanda, but they can claim jurisdiction.
1.28.2009 12:21am
NTB24601:
I am surprised that Professor Posner failed to address the Convention Against Torture in his post. Article 5, Section 3 appears to require the signatories to exercise universal jurisdiction over alleged torturers. It states:


Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article.


Furthermore, Article 6, Section 1 requires signatories to take into custody alleged torturers found in their territories:


Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

Professor Posner is likely correct that political considerations will stop some signatories from honoring these treaty obligations. But will all signatories? I think that Bush Administration officials involved in torture, or in authorizing torture, would be well advised to exercise caution in traveling abroad.
1.28.2009 12:35am
Nathan_M (mail):
Leaving aside universal jurisdiction and international law, countries could also have jurisdiction over former Bush administration officials based purely on domestic law. For example, Section 3.7 of Canada's Criminal Code reads:

(3.7) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that, if committed in Canada, would constitute an offence against, a conspiracy or an attempt to commit an offence against, being an accessory after the fact in relation to an offence against, or any counselling in relation to an offence against, section 269.1 [torture] shall be deemed to commit that act or omission in Canada if
...
(d) the complainant is a Canadian citizen; or
(e) the person who commits the act or omission is, after the commission thereof, present in Canada.

I imagine many other countries have similar laws, although I don't know for certain. If I was a former or current US official who might be suspected of torture I wouldn't take any international trips.
1.28.2009 12:39am
Soronel Haetir (mail):
Cornellian,

Domestic kidnapping charges could also come into play over rendition.

However, I have an extremely difficult time seeing any such thing happening for purely political reasons. The forces that would control such prosecutions want to continue to enjoy the benefits of international travel. Detaining the former head of a country without worldwide offensive capability is a far different matter from arrest and trial of a former POTUS. It would not surprise me if such an attempt would result in a military rescue effort, even for someone as currently unpopular as GWB. The precident of allowing such a prosecution to go forward would have extreme implications for US foriegn policy considerations.
1.28.2009 12:49am
Constantin:
Good, let's get them all out of the way at once. That way, Hillary can negotiate the terms of her husband's surrender when she visits foreign countries as Sec of State.
1.28.2009 12:50am
Ricardo (mail):
Pinochet isn't the only precedent, though. Nazis were prosecuted by the Allied victors for "foreigner-on-foreigner" crimes for murdering Jews in Poland as well as in Germany proper. Adolf Eichmann and other lesser Nazi officials were prosecuted by Israel for the Holocaust as well. Since Israel didn't even exist at the time of the Holocaust, that certainly relied on universal jurisdiction.

I don't agree with the argument that universal jurisdiction erodes national sovereignty. If former U.S. government officials want to avoid prosecution in other countries, the solution is simple: don't travel outside the U.S. Also note that the U.S. does claim a kind of universal jurisdiction in civil cases under the Alient Tort Claims Act. Robert Mugabe and banks that hold accounts of the now deceased Ferninand Marcos are two of the more recent defendants in cases under this law.
1.28.2009 1:34am
John Moore (www):
Has anyone noticed that as well intentioned laws proliferate, the possibility of frivolous persecutions increase?

International law that allows prosecutions like that of Pinochet is extremely dangerous, as PatHMV points out.

The Pinochet case is a good example, because Pinochet, a relatively minor despot by world standards, was singled out - probably because he was "right wing" and visible.

Meanwhile war crimes, torture and mass murder are carried out all over the world frequently, with no outcry for prosecution in almost all cases. The very nature of the heterogenous modern world is destined to cause highly selective prosecutions. Naturally, Americans will be the most likely targets, since we have the largest military and security footprint in the world.

Unless we have an international democratic government, and we are far from it, international law of this sort should be resisted in all cases.

There is no strong basic for international law - it doesn't arise from Democratic processes, has no checks and balances, and is used capriciously.

It is ripe for abuse, as we will probably see shortly regarding Bush and officials.


Adolf Eichmann and other lesser Nazi officials were prosecuted by Israel for the Holocaust as well.

No, it relied on kidnapping, as did the US prosecution of Noriega. Certainly Eichmann and other deserved what they got, but the world doesn't deserve for this sort of thing to be common or accepted.
1.28.2009 1:49am
John Moore (www):
Sigh. for "basic" substitute "basis"
1.28.2009 1:50am
John Moore (www):
If a former administration official is detained by a foreign country on charges based on that official's service to the US, the United States should consider that an act of war.

There's international law for you. Those with the biggest guns...
1.28.2009 2:03am
D.R.M.:
Ricardo, the Allies prosecuted as the Occupying Powers of, and thus sovereign government in, Germany, not under any theory of universal jurisdiction. Actions by German citizens acting in places under German rule (including de facto) or as agents of the German government were unquestionably fully within the jurisdiction of the government of Germany, and thus within the jurisdiction of the Occupying Powers as the government of Germany.
1.28.2009 2:07am
Scott_M:
Nathan_M: The former Deputy Assistant Secretary of Defense for Detainee Affairs, Charles "Cully" Stimson, recently gave a lecture here in Alberta. I agree that s.3.7 and s.269.1 (given the application for foreign officials in ss. (2) (d)) allow for someone like him to be charged, and his defence options are pretty slim:
"s.269 (3) It is no defence to a charge under this section that the accused was ordered by a superior or a public authority to perform the act or omission that forms the subject-matter of the charge or that the act or omission is alleged to have been justified by exceptional circumstances, including a state of war, a threat of war, internal political instability or any other public emergency."
Everyone treated him deferentially. I didn't get called upon to ask a question, and I'm ashamed I didn't have the guts to suggest we call the police.
1.28.2009 2:08am
PersonFromPorlock:
Somehow, I doubt that a practice that makes life harder for government officials is going to get a whole lot of government support - from any government.
1.28.2009 2:43am
Michael B (mail):
File under: After the Dead Have Been Buried

What has Europe done for Rwanda, Sudan, Congo, Zimbabwe and other former colonies? What enforcement mechanisms - i.e. armed forces and the will to commit those militaries - have they committed to international law?

The law, absent enforcement mechanisms, is what, exactly? It was either the ICC or the ICJ that prosecuted one or two of the genocidists in Rwanda, ex post facto and additionally after European and U.N. forces knowingly refused to intervene and begin to stop the genocide from occurring in the first place. Europe didn't even intervene militarily in their own backyard, in the case of Serbia/Kosovo, which is why Clinton came around to intervening. With a few exceptions only (e.g., Britain, Denmark, Lithuania) E.U. states don't even help out much in Afghanistan.

Likewise, the obverse side of the coin. In what sense should intl. law be instituted and deemed actionable against those who fail to intervene when they should - i.e. against forms of negligence in the international arena? Why is the subject of negligence in this field never broached in the first place?

Here's a subtle hint. Those Euros, they do love to wring their hands with moralistic self-regard and furrowed brows ... after the dead have been buried.

And if negligence were deemed an actionable offense, they wouldn't be able to furrow their brow with such comfortable, aesthetic abandon. Oh dear, that would be a problem, because that comfortable abandon, with furrowed brow, is one of the primary, unspoken objectives in the first place. But we're all suppose to pretend otherwise.
1.28.2009 3:04am
Ricardo (mail):
No, [the prosecution of Eichmann] relied on kidnapping, as did the US prosecution of Noriega. Certainly Eichmann and other deserved what they got, but the world doesn't deserve for this sort of thing to be common or accepted.

Kidnapping was the method of getting these people into custody. It wasn't what the prosecution "relied" on. Without jurisdiction, there is no case, so universal jurisdiction was needed to try Eichmann. The remedy for an illegal arrest has never been the release of the person arrested if there is a valid charge against the arrested. That is established precedent and was cited by the Israeli court when ruling on the legality of holding Eichmann for trial. And if you are going to call Noriega a kidnap victim, you would have to call every person who has ever been in Guantanamo a kidnap victim as well. Do you advocate the release of everyone in Guantanamo?

Ricardo, the Allies prosecuted as the Occupying Powers of, and thus sovereign government in, Germany, not under any theory of universal jurisdiction.

The charges included both war crimes and crimes against humanity. For the latter category, since they are not war crimes and were not necessarily crimes under German law at the time, the court would have needed to claim some form of expansive jurisdiction to maintain legitimacy. The idea of prosecuting a crime against humanity was a major point of departure and is usually the starting point for discussions of universal jurisdiction.
1.28.2009 3:11am
Ohio Scrivener (mail):
It's hard to credit this scenario as anything more than wishful thinking on the part of the European left.

Here is Phillipe Sands closing his article, the Green Light, by partaking in the fantasy of arresting Bush administration officials abroad:

For some of those involved in the Guantánamo decisions, prudence may well dictate a more cautious approach to international travel. And for some the future may hold a tap on the shoulder.

It’s a matter of time,” the judge observed. “These things take time.” As I gathered my papers, he looked up and said, “And then something unexpected happens, when one of these lawyers travels to the wrong place.


Ah yes, the dangers of traveling to Europe and being captured by small-minded Europeans. The story certainly has a familiar ring to it:

"I attempted to rise, but was not able to stir: for as I happened to lie on my back, I found my arms and legs were strongly fastened on each side to the ground; and my hair, which was long and thick, tied down I the same manner. I likewise felt several slender ligatures across my body, from my armpits to my thighs. I could only look upwards, the sun began to grow hot, and the light offended mine eyes. I heard a confused noise about me, but in the posture I lay, could see nothing except the sky."

- Jonathan Swift, Gulliver's Travels, Part 1, Ch. 1

I certainly hope Mr. Sands and his compatriots don't waste too much time measuring rope for Gulliver.
1.28.2009 4:30am
Visitor Again:
Has anyone noticed that as well intentioned laws proliferate, the possibility of frivolous persecutions increase?

International law that allows prosecutions like that of Pinochet is extremely dangerous, as PatHMV points out.

The Pinochet case is a good example, because Pinochet, a relatively minor despot by world standards, was singled out - probably because he was "right wing" and visible.


Prosecution of Pinochet might have been selective, but it was hardly frivolous. Selectivity and frivolity are not the same thing.

Among his many other crimes, Pinochet had two people murdered by car bomb in Washington, D.C. One of them was an American.
1.28.2009 5:01am
Lucius Cornelius:
IIRC, the western European countries typically use far harsher techniques with respect to their residents and terror organizations they are investigating...when it suits their purposes.

If they want to indict and try Bush, Cheney, or other high ranking US officials, I hope President Obama has the courage to respond by closing all American military bases in Europe, bringing home our troops, and cutting legal immigration from Western Europe to 0.
1.28.2009 5:51am
martinned (mail) (www):
@Nathan_M: The domestic statutes are Canada's implementing statutes of the Convention against Torture. How any of this is supposed to be "undemocratic" (viz. John Moore comments, above) is beyond me.
1.28.2009 6:11am
Brett Bellmore:

International law carves the world into states


Funny, I thought the states existed prior to international law.
1.28.2009 6:34am
martinned (mail) (www):
@Brett Bellmore: "State" is a term of art in international law, so clearly neither can exist without the other.
1.28.2009 6:40am
A. Zarkov (mail):
When will we see Cuban government officials arrested when they travel outside of Cuba? After all they have been torturing prisoners for decades. For example, Huber Matos. He says this about his confinement at Isla de la Juventud (formally Isle of Pines),
I was tortured on several occasions, I was subjected to all kinds of horrors, all kinds, including the puncturing of my genitals. Once during a hunger strike a prison guard tried to crush my stomach with his boot... Terrible things."
Funny how the world seems so preoccupied with Gitmo and so indifferent to those other parts of Cuba where real tortures occurs.
1.28.2009 6:52am
martinned (mail) (www):
@A. Zarkov: There's no reason why Cuban officials could not be arrested and prosecuted, if you can find a prosecutor who thinks it's worth the hassle. (Remember, the Pinochet case got started because Judge Garzon, unlike virtually everyone else in the world, thought it was a good use of his time to go after this guy.) There's a difference between the question whether certain people could be prosecuted, and whether one thinks they will be. The latter is more a political question than a legal one, and therefore not very interesting for this blog.

P.S. I highly doubt that anyone will ever get prosecuted for anything they did in or under the Bush administration.

P.P.S. I hope you agree with me that we should hold the US to a higher standard than some two-bit third world country.
1.28.2009 6:56am
Brian Mac:

P.P.S. I hope you agree with me that we should hold the US to a higher standard than some two-bit third world country.

Agreed. The "rule of law" is so very 18th century.
1.28.2009 7:13am
martinned (mail) (www):


P.P.S. I hope you agree with me that we should hold the US to a higher standard than some two-bit third world country.

Agreed. The "rule of law" is so very 18th century.

Huh? How did you get from what I wrote to that? Or are you arguing that we should go and prosecute all torturers. (That seems to be the minority position, so far, but I'd be more than happy to start a conversation on how that might be done.)
1.28.2009 7:16am
A. Zarkov (mail):
martinned:

"... if you can find a prosecutor who thinks it's worth the hassle."

It seems like it's never worth the hassle when communists torture people.

"The latter is more a political question than a legal "one, and therefore not very interesting for this blog."

The whole thing is basically a political and not a legal question. Ignoring the political aspect makes the whole discussion theoretical.

"P.P.S. I hope you agree with me that we should hold the US to a higher standard than some two-bit third world country."

I absolutely do not agree with you. We should not have two standards of justice, one for the US and Israel, and another for most everyone else. Holding third world countries to a high standards would be even more efficacious than the big powers because we have more of a chance of changing their behavior. Torture hurts just as much in the third world as it does in the first. Besides the US and Europe are headed towards becoming third world countries themselves if you look at where their economies are headed. If you think such a thing is impossible, I give you Argentina. Argentina was once about the fourth richest country in the world (certainly in the top 10), but became a third world country by the 1970s, and really fell off the cliff in 2002. I don't think we should change our standards if the US becomes poor.
1.28.2009 7:28am
Brian Mac:

Huh? How did you get from what I wrote to that?

Well as I understand it, the rule of law is about equality of all before the law, and protections against arbitrary enforcement. From your comments you seemed to be suggesting that the US should be selectively prosecuted for torture, presumably because they're a powerful, advanced democracy. Seems like a tension to me.
1.28.2009 7:28am
martinned (mail) (www):
@A.Zarkov: So far it has hardly ever been worth the hassle, given that I can't think of a single person who's been prosecuted in the manner here suggested other than before a UN tribunal. Communist and Fascist torturers alike have been getting away with their crimes.

The nature of the concept of universal jurisdiction is a legal question, not a political one. The same goes for the exact obligations of the signatory states of the Convention against Torture when it comes to crimes committed outside their territory by a non-citizen against other non-citizens. (Many more legal question arise here, these are just two examples.)

As for my different standards remark, (BTW, equality before the law is not a core part of the concept of rule of law) I would suggest that problems should be tackled in their order of importance. If the goal of bringing freedom and democracy to Cuba should require that its leaders be given immunity from prosecution, that is a good deal. In the US, which is already a free and democratic country, going after those allegedly responsible for torture should come much higher on the list.

The other sense in which I meant my remark was that in Cuba so many crimes are already committed that go unpunished, that it should hardly be surprising if no one gets prosecuted for this either. In the US, the criminal justice system is more active than anywhere else in the world, so why should the people of the US put up with their prosecutors making an exception for torture (wherever committed, by whomever committed, etc.)?
1.28.2009 7:41am
JB:
PatHMV,
"Heck, before you know it, we might see foreign countries prosecute Americans just for writing words that are deemed to be "offensive" to some favored sect. Oh wait... "

Like when the US arrested that British gambling executive who visited our shores? Even without international law, we are capable of being asses about our own moral eccentricities just fine.
1.28.2009 7:49am
A. Zarkov (mail):
martinned:

"If the goal of bringing freedom and democracy to Cuba should require that its leaders be given immunity from prosecution, that is a good deal."


So how come that doesn't apply to Pinochet? The whole deal was to give him immunity so Chile could get rid of a dictatorship. If you believe what you say then you should be opposed to the attempt to prosecute him. Similarly you should oppose the whole idea of universal jurisdiction.
1.28.2009 7:59am
martinned (mail) (www):
@A.Zarkov: I'm not sure if I would be in favour of Pinochet being prosecuted. I am in favour of the principle of universal jurisdiction, and I think Chile got a good deal giving him immunity. The question is whether Spain should be bound by the deal that Pinochet made with himself in Chile.
1.28.2009 8:01am
Brian Mac:

BTW, equality before the law is not a core part of the concept of rule of law

Eh? Wikipedia lied to me? Say it ain't so!
1.28.2009 8:30am
martinned (mail) (www):
@Brian Mac: Quoting the Wiki page you linked:


The concept "rule of law" is generally associated with several other concepts, such as:

- Nullum crimen, nulla poena sine praevia lege poenali — No ex post facto laws
- Presumption of innocence — All individuals are "presumed innocent until proven otherwise"
- Legal equality — All individuals are given the same rights without distinction to their social stature, religion, political opinions, etc. That is, as Montesquieu would have it, "law should be like death, which spares no one."
- Habeas corpus — in full habeas corpus ad subjiciendum, a Latin term meaning "you must have the body to be subjected (to examination)". A person who is detained has the right to be told what crimes he or she is accused of, and to request that his or her custody be reviewed by judicial authority. Persons unlawfully imprisoned have to be freed.
1.28.2009 8:32am
Richard Aubrey (mail):
Since we have some concerns about extra-territorial libel suits, it would seem reasonable to be concerned about the political use of such law, rather than a concern for justice.
Many torturers and murderers travel the world on their own countries's dimes and are welcomed in other countries who have nutcases muttering about prosecuting Bush.
Anybody who claims this is about justice is not fooling anybody, not even themselves.
And, as one poster pointed out, O has committed more war crimes in a week than Bush did in his first six months. No telling how much further O will go. No money on whether any self-righteous moron is going to suggest arresting O, either.
1.28.2009 8:32am
martinned (mail) (www):
@Richard Aubrey: I have to say, that remark (and the one by nicehonesty that is second from the top) intrigues me. Does your analysis that these acts constitute war crimes (which are, maybe I should add, a different crime than torture) imply that what Israel did in Gaza are also war crimes? (For the record, I'm not that sure on either count.)
1.28.2009 8:38am
Brian Mac:
martinned - also on that page:


"According to modern Anglo-American thinking, hallmarks of adherence to the rule of law commonly include a clear separation of powers, legal certainty, the principle of legitimate expectation and equality of all before the law."

My quote is from earlier in the article, so I win!
1.28.2009 8:53am
martinned (mail) (www):
@Brian Mac: Actually, I think the problem is the difference between equality before the law and legal equality. You were talking about the former and I was thinking about the latter. If you don't mind, I'd rather not give myself a headache trying to figure out the difference between the two. Off the top of my head, the former, i.e. the US (14A) version, is more modest. (Hence the alleged need for an equal rights amendment.)
1.28.2009 8:58am
PatHMV (mail) (www):
martinned, you say you are in favor of the concept of universal jurisdiction, but you also have acknowledged that the decision to bring all such cases is almost purely a matter of politics. Where exactly is the "law" in such prosecutions?

If "international law" allows for prosecuting U.S. officials for authorizing the waterboarding of about 3 terrorist suspects like KSM, while ignoring (for any practical purpose) officials of other countries who burned genitals, permanently maimed, and otherwise really tortured individuals whose only crime was to speak out against the dictators of those countries, why should I have the slightest bit of respect for "international law"? Where is the "law" in that circumstance? Where are the protections against prosecuting individuals simply because they are politically unpopular in the circles who control such "august" international affairs?
1.28.2009 9:03am
martinned (mail) (www):
@PatHMV: All prosecution decisions are political to some degree. That's why in many countries such decisions are placed in the hands of democratically elected or at least democratically legitimised officials. In the Wilders case, for example, I have been arguing in the Dutch part of the blogosphere that, even given the fact that this odious law exists, the prosecutor's decision not to prosecute should have been upheld by the court, because it correctly applies the rule of art. 167 (2) of the Dutch Code of Criminal Procedure, which states that the prosecutor can decline to prosecute for reasons of general interest. (Note, this rule is deliberately vague, so as to give the prosecutor significant discretion.)

For crimes of universal jurisdiction, the question of whether it is opportune (Dutch legal lingo) to prosecute should be left with the prosecutor in the same way that it is for all other crimes.
1.28.2009 9:10am
seadrive:
How could some foreign prosecutor get evidence to prosecute? It's all hearsay or classified.

Or perhaps NY Times news stories are enough.
1.28.2009 9:23am
martinned (mail) (www):
@seadrive: Yes, that's one of the factors that should play into the prosecutor's decision. Then again, if he has the budget to do so, why not fly in some witnesses?
1.28.2009 9:25am
Fedya (www):
Martinned:

I can't speak for Richard Aubrey, but I think one of the fundamental points is that these "universal jurisdiction" laws are going to be very selectively enforced. If Bush, or Israel, or bogeyman Pinochet does something, it's wicked. If Obama does the same thing, it's OK.

I've argued for years the Mikhail Gorbachev ought to be at the very least questioned in Lithuania for his role in the events of January 1991. But the same people who think it was virtuous to hound Pinochet to his grave are strangely silent about Gorbachev. And since the January 1991 events happened on Lithuanian soil, it's far more natural for legal proceedings to occur there than it is for Pinochet to have been prosecuted in Spain.
1.28.2009 9:44am
Don Meaker (mail):
I wish to add a niggling reminder that waterboarding, and interrogation as practiced in Gitmo, are not torture. It is less harsh than training provided to US service members.

Terrorists are not subject to protection by Geneva/Hague conventions. Protections are only extended to those who follow the Geneva accord. If the US extended protection to those who didn't follow the Geneva accord, the US would be in violation of the Geneva accord.

For example, Hague convention forbids use of expanding bullets intended to create greater harm, so soldiers in war are restricted to full metal jacket bullets, but this restriction does not apply to police forces. Police can and do use hollowpoint bullets, because kindness to someone bend on destructive evil is misplaced and immoral.

Those are the facts.
1.28.2009 9:47am
martinned (mail) (www):
@Fedya: True, and I agree with you on Gorbachev. Nevertheless, as someone pointed out, there is a difference between frivolous prosecution and selective prosecution. I would argue that such prosecutions are rarely frivolous, given the political and legal nightmare involved in doing something like this. They will be selective, as you say, but then, I don't see how having very few prosecutions is worse than having none at all. In fact, even if it were true that this approach leads to only fascist torturers being prosecuted while their communist counterparts get off scot free, how is that worse than letting all torturers off the hook?
1.28.2009 9:48am
martinned (mail) (www):
@Don Meaker: Don't be silly. a) No one can seriously argue waterboarding is not torture. b) No one was talking about the laws of war here, the question was the law under the Convention against Torture, which applies to all conduct of all people always. (Well, at least since its entry into force.)
1.28.2009 9:50am
Sarcastro (www):
[martinned I believe the US signed the Convention with the proviso that we took torture to be defined under our Constitution.]
1.28.2009 9:55am
AntonK (mail):
Not only should they be prosecuted, but they should be frog-marched before the cameras for at least the next four years.
1.28.2009 9:57am
martinned (mail) (www):
@Sarcastro: That hardly matters when we're talking about US citizens being prosecuted by one of the other signatory states. Also, the definition of the US Constitution, whatever it is, surely isn't that "death or organ failure" line that prof. Yoo came up with.
1.28.2009 10:03am
Strict:

"... if you can find a prosecutor who thinks it's worth the hassle."

It seems like it's never worth the hassle when communists torture people.


Wow. Really? One of the most famous criminal trials under international law ever conducted was Slobadan Milosevic, Communist leader of Yugoslavia.


If a former administration official is detained by a foreign country on charges based on that official's service to the US, the United States should consider that an act of war.


I agree - we should go to war, even nuclear war, with any nation that arrests An American.


Pinochet...was singled out - probably because he was "right wing"


Thomas Lubanga was the first person ever arrested on a warrant issued by the International Criminal Court. He's an ethnic militant, but could also be considered "left wing" or "Communist."


we might see foreign countries prosecute Americans just for writing words


"international law"


I like the scare quotes here, as though international law is some fictitious thing.

The paranoia and derangement in this forum is amazing.
1.28.2009 10:08am
Richard Aubrey (mail):
martinned.
My point was two-fold. One is that, if what Bush is going to be accused of is a war crime, the O should be accused as well because he's doing the same things.
The other point, less overt, is that there is no way on this green earth that anybody is going to use the same standards to reproach O and Bush. No way in hell.
I wanted to get that on the table so there won't be a lot of time wasted.

To make an example from the recent presidential campaign: The media were all over Palin's $150k wardrobe thing. But nobody knows where the Chicago Annenberg Challenge $150 mill went because NOBODY ASKED. Imagine $150 mill disappearing in Chicago, leaving no impact on the kids' education, and everybody presuming that IN CHICAGO, it's all copacetic. Nobody wanted to know how O and company pissed away $150 million. So NOBODY ASKED.

Different standards, you see. So, while I hold no hope for the same standards to be applied here, I did want the two-standards folks to know in advance that there is nobody who doesn't know better. Only question is whether one tries to pretend to principle.
1.28.2009 10:41am
Bob from Ohio (mail):
"Slobadan Milosevic, Communist" is accurate but misleading. Milosevic "re-invented" himself as a hardline Serbian nationalist after 1990. Europe does not like nationalists so it was easy to try him.

Lubanga is African so he gets arrested. Europe likes to prosecute weak African leaders because they can be moral without risk to trade or anything important. His left wing status does not matter much.

How many Communist leaders from China were prosecuted for Tieneman (sic) Square? Or Cuban leaders? Or Communists from other than Serbia?

Now, is it because these people were leftists that they were not prosecuted? That is an open question. I personally think it is because they come from countries where prosecution will entail risks to trade and other interests.

It is the weak that are tried. Which is why no trials for Americans.
1.28.2009 10:46am
Blue:
The problem with international law is that it isn't statutory law. The best example is the declaration by some of its putative adherents of claims that terrorists' Geneva rights are being violated. A clear reading of the Geneva conventions, on the other hand, shows that these terrorists do not fall under the vast majority of its protections because they did not comport themselves as responsible, identifiable soldiers within a chain of command.

While domestic statute can from time to time get penumbred the fact of the matter is that there is a huge and formal system of checks, balances, and appeals to counter the wayward reaches of a few nutcases. In I-Law, on the other hand, a communist local judge in Spain can create an international incident.
1.28.2009 10:46am
martinned (mail) (www):
@Richard Aubrey: To some extent you are certainly right. I would like to urge at least a bit of calmth, though. If there is one thing there is no shortage of in the US, it is journalists willing to go after Obama. (Or the right.) If nobody asked about that $ 150 milion, that's probably because there isn't a story there. At least since the Clinton era, instead of having one MSM, the US has had two, one for each party. And I see no evidence that either Kerry in '04 or Obama last year got off easy. Even now, at the top of his popularity (presumably), people like O'Reilly and Limbaugh are showing no reluctance to go after Obama. So if no one asked, you have to take into account the possibility that there simply wasn't anything there. (Or at least no story, which isn't quite the same thing.)
1.28.2009 10:48am
martinned (mail) (www):
@Blue: The Canadian statutes implementing the Convention against torture were already cited above. In the UK, for example, torture is in section 134 of the Criminal Justice Act 1988:


134 Torture
(1) A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.
(2) A person not falling within subsection (1) above commits the offence of torture, whatever his nationality, if—
(a) in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence—
(i) of a public official; or
(ii) of a person acting in an official capacity; and
(b) the official or other person is performing or purporting to perform his official duties when he instigates the commission of the offence or consents to or acquiesces in it.
(3) It is immaterial whether the pain or suffering is physical or mental and whether it is caused by an act or an omission.
(4) It shall be a defence for a person charged with an offence under this section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct.
(5) For the purposes of this section “lawful authority, justification or excuse” means—
(a) in relation to pain or suffering inflicted in the United Kingdom, lawful authority, justification or excuse under the law of the part of the United Kingdom where it was inflicted;
(b) in relation to pain or suffering inflicted outside the United Kingdom—
(i) if it was inflicted by a United Kingdom official acting under the law of the United Kingdom or by a person acting in an official capacity under that law, lawful authority, justification or excuse under that law;
(ii) if it was inflicted by a United Kingdom official acting under the law of any part of the United Kingdom or by a person acting in an official capacity under such law, lawful authority, justification or excuse under the law of the part of the United Kingdom under whose law he was acting; and
(iii) in any other case, lawful authority, justification or excuse under the law of the place where it was inflicted.
(6) A person who commits the offence of torture shall be liable on conviction on indictment to imprisonment for life.

135 Requirement of Attorney General’s consent for prosecutions
Proceedings for an offence under section 134 above shall not be begun—
(a) in England and Wales, except by, or with the consent of, the Attorney General; or
(b) in Northern Ireland, except by, or with the consent of, the Attorney General for Northern Ireland.

Technically, such implementing statutes are not necessary in the US, since art. VI (2) of the Constitution the US has a monist system of international law, meaning that treaties (can) have direct effect. Still, because of the Supreme Court case law undermining this principle, many treaties do have implementing statutes.
1.28.2009 10:54am
Blue:
That's not international law. It's a UK domestic law that applies international law concepts.
1.28.2009 10:56am
Blue:
Oh, and of course statutes are necessary...the reason being that the plain language of treaties gets ignored all the time in favor of the cause of the day.
1.28.2009 10:57am
martinned (mail) (www):
@Blue: No, that is international law incorporated in a statute. In the UK, treaties never have direct effect. Instead, they are given effect through implementing statutes. It's a difference of method, that's all.
1.28.2009 11:02am
Benjamin Davis (mail):
No one said it was going to be easy. We can insist with others abroad that the criminal prosecution be done here. We can insist with others abroad that it be done somewhere else in the world under their laws. If we insist, it will happen here or there. I will continue to insist.

As you aware we have a federal prosecutor in place in the name of John Durham who right now is working on the question of the obstruction of justice aspects of the destruction of the Al Qahtani torture tapes. He was put in place by AG Michael Mukasey in one of his last acts.

You are free to plead the case of persons who have authorized torture in this space in as many ways and in as many creative arguments to encourage our acquiescence and give it legitimacy.

International law has bite if we insist it has bite. As with any law.

States of all kinds of structures participate in the development of internatonal law - as has the United States in myriad areas. If we were willing to give up the state structure and form a universal legislature then we could have votes and all that but I am not sufficiently deranged yet to think that such a world will be possible anytime soon.

The fact that the world does not have a universal legislative here is therefore used to dismiss law that the entities we do agree to have in place - states - have put in place in agreements and in their actions, seems to be a straw person argument. And remember, international law forms part of the law of each state - including the United States.

Best,
Ben
1.28.2009 11:03am
Richard Aubrey (mail):
martinned.
There probably isn't a story about CAC's $150 mill?
Isn't that circular? Nobody asks, so there's no story, so nobody asks.
You really think anybody would believe there's no story in the expenditure of $150 mill in Chicago whose ostensible purpose, the improvement of education, failed? IN CHICAGO? Let me emphasize that. IN CHICAGO?
Do you have any evidence that anybody looked and decided there's no story? Not that there is a story we don't want to publicize. Not that there is a story under the standards of normal governance but, this being Chicago, no biggie.
But that the $150 mill was spent well and the books are straight.
Didn't think so.

Point is, right there we have a double standard. If nobody complains because nobody asks, everything's okay. On the other hand, if we have to fake crap up about Palin, well, politics ain't beanbag.
You really think people don't see this?

Back to B and warcrimes. O will not be prosecuted because the standards will be different. That is, if O does it, it's not a crime and if it is a crime, that's okay, too. Besides, as with CAC, nobody's going to look.

O has opened a CIA exception for harsh interrogation. Since nobody's going to look into it, no torture will be alleged or demonstrated. Pretty simple.
Collateral damage from missile strikes into Pakistan is unfortunate, but war is war and those things happen. Nobody's going to prosecute O, or even talk about it, because there will be separate standards.
I suspect the left is getting vexed enough to say what everybody knows. "Of course there are two standards, dummy. That's how we go after Bush. What, were you born yesterday?"
1.28.2009 11:12am
Al (mail):

If the goal of bringing freedom and democracy to Cuba should require that its leaders be given immunity from prosecution, that is a good deal.


martinned, your comment is confusing. Are you saying that the double standards and lack of prosecution of Cuban officials is a result of efforts to "bring freedom and democracy" to Cuba? If so, those efforts appear to have been very ineffective and pursued in a most secretive and peculiar manner, since most European countries do not appear particularly interested in freedom and democracy in Cuba (particularly if labor and economic freedoms in Cuba would interfere with the cheap vacations for Europeans).

On the other hand, if you are saying that immunity for Cuban officials in the future would be a good idea if it is necessary to bring about freedom and democracy, then you should be particularly troubled by both the attempted prosecution of Pinochet after his immunity deal (which led directly to freedom and democracy in Chile) and the lack of any serious threat of prosecution of Cuban officials, without which any offer of immunity would simply not be credible. Unfortunately, that does not appear to be the case.
1.28.2009 11:24am
martinned (mail) (www):
@Al: I choose door number 2. The question about Pinochet was asked and answered above. To put it briefly, I am, indeed, troubled, though I would like to point out that Pinochet got his immunity in Chile, which country did, in fact, do everything within its power to get the Spanish to drop their case. Spain never promised anything, though, as a matter of comity, they probably should not have pursued the case. (Unless, of course, they found fault with the deal that was struck. After all, Pinochet did sort of make the deal with himself.)
1.28.2009 11:29am
Strict:

Now, is it because these people were leftists that they were not prosecuted?


I've yet to see an explanation for this "leftists are exempted from prosecution" claim.

After WWII, Emperor Hirohito and the entire royal family was exempted from trial, but dozens of other Japanese leaders were tried (and executed).

Thus, Hirohito was off the hook because he's a "leftist" and his military commanders were tried because they were "right-wingers," right?

Also, a UN-created tribunal is set to try senior Khmer Rouge (Communist) leaders for their horrible crimes. Trial starts in a couple weeks.

If you loonies want to claim the poor Khmer Rouge as victimized "right-wingers," go ahead.
1.28.2009 11:29am
Constantin:
Ben:

Do you share similar thoughts on the Clinton Administration's use of like tactics? What about the case made by Hitchens et al that the bombings surrounding the Lewinsky deal were war crimes?

Best,
Constantin
1.28.2009 11:37am
Nathan_M (mail):
@Scott_M, I agree that, at least if there is admissible evidence of what we've all read in the newspapers, there at least seems to be sufficient evidence to lay charges against senior American officials to visit Canada.

It's probably unrealistic to except the Crown to bring charges any time soon, but it would be very interesting to see what would happen if a private citizen swore an information. I would expect that if there was a reasonable case the public pressure on the AG not to stay the charges would be fairly intense.

I expect it's more likely than not that at least right now the Crown would ultimately stay the charges, but I don't think there's much doubt that American officials visiting Canada are in potential legal jeopardy. It would be very interesting to know if Mr. Stimson considered that before his trip (unless of course he has diplomatic immunity).
1.28.2009 11:37am
Strict:
Anybody care to explain the trial (albeit unfair trial by international and American standards) and conviction of Afghan Communist leader Sarwari for torturing and murdering people?

That was the first war crimes (i.e. international law crime) trial ever in Afghanistan.

[Although it's true that Euro-socialist-sissies complained about faulty procedures].

I wonder why he didn't use his "I'm a Communist" get-out-of-jail free card?
1.28.2009 11:39am
Al (mail):

Also, a UN-created tribunal is set to try senior Khmer Rouge (Communist) leaders for their horrible crimes. Trial starts in a couple weeks.


Wow, only 30+ years after the fact...and only 30 years or so after their falling out with their North Vietnamese patrons.


If you loonies want to claim the poor Khmer Rouge as victimized "right-wingers," go ahead.


No, the Khmer Rouge certainly were not right-wingers. They were popular indigenous intellectuals whose alleged crimes were simply fabrications made up by the CIA and its corrupt cronies...just ask Noam Chomsky.
1.28.2009 11:40am
Nathan_M (mail):
@Blue, I quoted the section of the Criminal Code that gives Canada jurisdiction over torture committed outside Canada if the alleged offender is ever in Canada, but I didn't give the definition of torture, so I'll put it here for your convenience. Unlike the British statute martinned referred to, the Canadian version does not require the consent of the Attorney General before charges can be brought (or at least usually that requirement is fairly obvious and I can't find that requirement looking quickly through the Code, but I don't have an annotated copy on me right now).

269.1 (1) Every official, or every person acting at the instigation of or with the consent or acquiescence of an official, who inflicts torture on any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Definitions

(2) For the purposes of this section, "official" means

(a) a peace officer,

(b) a public officer,

(c) a member of the Canadian Forces, or

(d) any person who may exercise powers, pursuant to a law in force in a foreign state, that would, in Canada, be exercised by a person referred to in paragraph (a), (b), or (c),

whether the person exercises powers in Canada or outside Canada;

"torture" means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person

(a) for a purpose including

(i) obtaining from the person or from a third person information or a statement,

(ii) punishing the person for an act that the person or a third person has committed or is suspected of having committed, and

(iii) intimidating or coercing the person or a third person, or

(b) for any reason based on discrimination of any kind,

but does not include any act or omission arising only from, inherent in or incidental to lawful sanctions.

No defence

(3) It is no defence to a charge under this section that the accused was ordered by a superior or a public authority to perform the act or omission that forms the subject-matter of the charge or that the act or omission is alleged to have been justified by exceptional circumstances, including a state of war, a threat of war, internal political instability or any other public emergency.

Evidence

(4) In any proceedings over which Parliament has jurisdiction, any statement obtained as a result of the commission of an offence under this section is inadmissible in evidence, except as evidence that the statement was so obtained.
1.28.2009 11:48am
Thorley Winston (mail) (www):

The Pinochet case is a good example, because Pinochet, a relatively minor despot by world standards, was singled out - probably because he was "right wing" and visible.


I think the other factor that distinguished Pinochet was that he actually stepped down from power voluntarily after he restored elections and lost whereas most of the left wing despots like Castro stay in until the bitter end. The lesson then isn’t just to make sure you have the “correct” politics when you commit atrocities, it’s to never give up power!


"P.P.S. I hope you agree with me that we should hold the US to a higher standard than some two-bit third world country."


No, I'm not sure that I agree with that. If a school with 100 students wants to improve its test scores to some minimum level and there are 10 students getting A’s, 10 getting B’s, 10 getting C’s, and 70 students getting D’s and F’s, it makes more sense to try to raise the scores of the 70 that are doing poorly or failing than it does to concentrate your efforts into raising the B students to A-level or the C students to a B or A-level.

If this international law that we’re discussing is really about anything other than providing a club to bash the United States for our policies while giving a pass to actions to countries that do far worse things by pretty much any standard other than the fact that they’re not the United States, then it ought to be about setting some minimum standard of behavior. In which case then going after members of the Bush administration – if one believes that what they allegedly did violates some applicable law – ought to be pretty far down the list of actions that should be investigated and/or prosecuted to bring countries on average closer to this minimum level of behavior.
1.28.2009 11:49am
Strict:

Also, a UN-created tribunal is set to try senior Khmer Rouge (Communist) leaders for their horrible crimes. Trial starts in a couple weeks.

Wow, only 30+ years after the fact...


I get it now. The Communist get-out-of-jail-free pass expires after 30 years. Got it.
1.28.2009 11:52am
martinned (mail) (www):

It would be very interesting to know if Mr. Stimson considered that before his trip (unless of course he has diplomatic immunity).

Here's another interesting legal question: Does article 6 of the CAT trump the international law on diplomatic relations or not? Here's what it says:

Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

Given that the ban on torture itself is normally considered a rule of ius cogens, putting it at the very top of the law pyramid, and that this convention is of a later date (1984) than the law on diplomatic immunity (the Vienna Convention on Consular relations dates from 1961), an argument can be made that torturers cannot claim diplomatic immunity. (Pinochet did claim immunity, but not diplomatic immunity, so there is no direct precedent.)

P.S. I notice that Pinochet was prosecuted in Chile upon his return. While I don't know the details, on first impression I would say the should not have done that.
1.28.2009 11:53am
Benjamin Davis (mail):
Because I do not have the energy to review each setting that someone will bring up to try to see if I am consistent at all times I will go on record today stipulating that I am not consistent on all things and do not attempt to criticize all things that may be illegal in the world.

As to putting criminal prosecution of my own leaders far down the list because some bad things have happened in some other country somewhere in the world by their bad leaders, puh-leeze. Maybe 7 years of listening to people preening in word gymnastics to do torture in my name ticks me off a little more.

Best,
Ben
1.28.2009 12:00pm
Michael Ejercito (mail) (www):

Thus, in principle, Spain could exercise jurisdiction over certain international crimes committed by Americans against Afghans in Guantanamo Bay.

Of course, if there was evidence that an American actually committed crimes against Afghans in Guantanamo Bay, Spain would turn the American over to the Afghan authorities. Cheaper than a trial.
The political risks of prosecuting foreigners for their crimes against foreigners on foreign soil are usually just too high.

If an American committed war crimes against Afghans on Afghan soil, turn him over to the rulers of Afghanistan. They know how to properly deal with criminals.



Nazis were prosecuted by the Allied victors for "foreigner-on-foreigner" crimes for murdering Jews in Poland as well as in Germany proper

The Nazis were defeated in war.
1.28.2009 12:07pm
Nathan_M (mail):
@martinned This is getting wildly out of my area of expertise, but I'd note that paragraph 1 article 41 of the Vienna Convention on Consular Relations reads:

1.Consular officers shall not be liable to arrest or detention pending trial, except in the case of a
grave crime and pursuant to a decision by the competent judicial authority.

In Canada, the Foreign Missions and International Organizations Act says that:

The reference in paragraph 1 of Article 41 of the Vienna Convention on Consular Relations to a "grave crime" shall be construed as a reference to any offence created by an Act of Parliament for which an offender may be sentenced to imprisonment for five years or more.

So unless I am missing something, that would suggest that at least in Canada diplomatic immunity would not be a bar to prosecuting an official for torture.
1.28.2009 12:13pm
martinned (mail) (www):
@Nathan_M: Thanks. Maybe I've just seen too many episodes of Law &Order. (It isn't exactly my area of expertise either.)
1.28.2009 12:15pm
Al Maviva:
Shouldn't we also be seeking a trial of the people in the intelligence community and armed forces who have been involved in detention and interrogating alleged Al Qaida and other insurgents?

Currently, the only people proposed for war crimes trials are those public faces who are in high leadership positions far removed from actual crimes. It seems to me that if war crimes have been or are being committed, that the people who actually committed the crimes alleged would include a vast class of thousands of military and civilian interrogators, military police, infantry and support troops, and maybe a lot of foreign nationals who helped facilitate it. The last time I checked, "I was just following orders" was rejected as a defense, as was the defense of just having played a bit part.

If this is meant to be taken seriously, then the call should be for a massive international investigation of the U.S. intelligence community and military to determine exactly what happened, when, and who did it. Y'know, like the Nuernberg trials.

Otherwise, I'd be forced to conclude that this is just political theater and not a serious attempt to get to the bottom of the vast range of warcrimes alleged.
1.28.2009 12:55pm
Steve P. (mail):
The paranoia and derangement in this forum is amazing.

You must be new here. I see you've already met Mr. Aubrey, that's a good start.
1.28.2009 1:00pm
PubliusFL:
seadrive: How could some foreign prosecutor get evidence to prosecute? It's all hearsay or classified.

How about testimony of the actual alleged torture victims?
1.28.2009 1:08pm
PubliusFL:
Nathan_M: So unless I am missing something, that would suggest that at least in Canada diplomatic immunity would not be a bar to prosecuting an official for torture.

Diplomatic immunity doesn't apply to consular officials -- they're different categories.
1.28.2009 1:14pm
Michael B (mail):
Gitmo was mentioned a couple of times in the thread. Two volumes come highly recommended:

Honor Bound: Inside the Guantanamo Trials

Inside Gitmo: The True Story Behind the Myths of Guantanamo Bay (released just yesterday)
1.28.2009 1:17pm
PubliusFL:
To expand on my answer above, consulates and consular officers are covered by the Vienna Convention on Consular Relations. But diplomatic missions are covered by the Vienna Convention on Diplomatic Relations. The latter says:

"The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention." (Article 29)

"A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State." (Article 31[1])

"The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36." (Article 37[1])

"Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties." (Article 37[2])

That doesn't answer the question of whether a state's obligation to prosecute torture under the CAT supersedes diplomatic immunity under the Vienna Convention. I've seen both views advanced. In a 2004 war crimes complaint against Pres. Bush, however, the Canadian government apparently took the position that diplomatic immunity applied.
1.28.2009 1:26pm
martinned (mail) (www):
@PubliusFL: Thanks for the correction. (My bad.) I mixed things up a bit: The Vienna Convention on Diplomatic Relations is from 1961, the year I put next to the 1963 Vienna Convention on Consular Relations. As you note, the question still stands: Which one would win in a fight, the Vienna Convention(s) or the CAT? The argument could be made either way, making it a potential source of all sorts of fun.
1.28.2009 1:31pm
Nathan_M (mail):
@PubliusFL Thanks, that definitely seems more relevant than the law I was looking at. At least for Canada, the relevant provisions of the Vienna Convention on Diplomatic Relations you cited have been enshrined in domestic law, whereas article 6 of the CAT has not been (although Canada has signed and ratified the treaty). That would suggest the VCDR might take precedent although obviously there are more considerations.

Do you know how widely the VCDR applies? It says a diplomatic agent "is the head of the mission or a member of the diplomatic staff of the mission". In practice, do you know how often foreign officials who are not on the permanent staff of an embassy would have that status?
1.28.2009 1:46pm
jukeboxgrad's favorite YouTube video:
Back to B and warcrimes. O will not be prosecuted because the standards will be different. That is, if O does it, it's not a crime and if it is a crime, that's okay, too. Besides, as with CAC, nobody's going to look.

For me, a conservative who is opposed to torture under all circumstances, the Bush administration's use of torture is especially irritating because it has permitted the left to pretend that they're opposed to torture on principle. They're not, of course; their opposition depends entirely on who is doing the torturing. If it's Bush, it's a war crime. If it's Castro, Cuba has free healthcare and 100% literacy.

So too with Obama. Nobody's perfect, sometimes torture is okay, there's an exception to every rule, etc.
1.28.2009 1:50pm
jukeboxgrad's favorite YouTube video:
If there is one thing there is no shortage of in the US, it is journalists willing to go after Obama.... [P]eople like O'Reilly and Limbaugh are showing no reluctance to go after Obama.

You cannot be serious.

Limbaugh isn't a journalist, and to the extent that O'Reilly might be, he's an opinion journalist. Both are right-wing partisans. Sure, they'll go after Obama, but their opinions (and even facts that they turn up, if any) are easily dismissed as partisan posturing.

It is only when a partisan criticizes his own side, or an objective observer (as the MSM claims to be) reports information damaging to one side or the other, that public opinion can shift. And there's definitely a shortage of MSM outlets willing to go after Obama.
1.28.2009 1:57pm
wolfefan (mail):
Hello -

Richard Aubrey, you keep saying "NO ONE ASKED". With respect, is that really true? Has absolutely no one tried to investigate these matters? Has there been no question raised by anyone (besides your comments on this thread of course)? Why would O'Reilly, Hannity, Limbaugh, Malkin etc. give a free pass on this? So Katie Couric didn't ask, or David Gregory. So what? Why didn't Chris Wallace or Carl Cameron? The Washington Post gave it a pass? Well, where's the Washington Times? It's not ALL liberal media, after all.

On the left, there are always plenty of outlets willing to investigate and document if possible what sound to me like outlandish and ridiculous claims against conservatives. Are there no such outlets on the right?

You've asked others to prove that someone investigated and said it was all ok. Can we turn that around - what proof have you that no one has ever investigated (beyond the fact that you aren't personally aware of such an investigation?)
1.28.2009 2:02pm
Strict:

And there's definitely a shortage of MSM outlets willing to go after Obama.


"Go after him"....for what? War crimes? Torturing people?

Oh, you mean for being a secret Muslim communist black supremacist?

When Obama messes up, he'll get proper criticism. But he hasn't really messed up yet.
1.28.2009 2:04pm
The Oversimplifier:
No.
1.28.2009 2:06pm
Constantin:
Because I do not have the energy to review each setting that someone will bring up to try to see if I am consistent at all times I will go on record today stipulating that I am not consistent on all things and do not attempt to criticize all things that may be illegal in the world.

As to putting criminal prosecution of my own leaders far down the list because some bad things have happened in some other country somewhere in the world by their bad leaders, puh-leeze. Maybe 7 years of listening to people preening in word gymnastics to do torture in my name ticks me off a little more.

Best,
Ben


About what I figured after reading your deranged rants on here. Keep on rockin'.
1.28.2009 2:20pm
PC:
How could some foreign prosecutor get evidence to prosecute? It's all hearsay or classified.

No it isn't. Ask Maher Arar and Khalid el-Masri.

Prof. Posner, does Germany have jurisdiction over US officials that kidnapped and tortured a German citizen?
1.28.2009 2:38pm
martinned (mail) (www):
does Germany have jurisdiction over US officials that kidnapped and tortured a German citizen?

(I realise that I'm not Posner, but I'm thinking I'm more likely than he is to actually read this question.)

The answer probably depends on where this person was kidnapped from, unless a crime of universal jurisdiction is involved.
1.28.2009 2:40pm
Richard Aubrey (mail):
wolfefan
Let's modify the question a bit. The media sent, by some reports an incredible 400 reporters to Wasilla and environs to dumpster dive for anything they could find.
Even if it were only 100 reporters, it would be a huge number.
Do we have solid information that as many as one reporter went after CAC?
Malkin had a list of stories broken by bloggers, but compared to genuine media, they are few. Malkin is not herself, nor other bloggers, in a position to investigate something as arcane and twisted around Chicago politics and creative bookkeeping. But there were conservatives pointing to it and saying, "What happened?" The reponse was absolutely zero. Nobody even wanted to know why it failed.
If the media can make hay out of a question about banning books, certainly there must have been something equivalent--a coffee contract let to a buddy--in the CAC worthy of the same amount of ink. I suppose we can look at the zero reporting of anything wrong with CAC and take that as perfect and irrefutable proof that you can spend $150 mill in Chicago with nothing going wrong whatsoever. I know that's what acolytes of The One would like. In fact, we don't even know what they want us to think went right.
We can also take it for granted that it is Right and True and Always Good that gallons of ink spilled over one tenth of one percent of that amount is perfectly legitimate.
Pull the other one.
1.28.2009 2:53pm
PC:
The answer probably depends on where this person was kidnapped from, unless a crime of universal jurisdiction is involved.

He was going to Macedonia for vacation.
1.28.2009 3:01pm
martinned (mail) (www):
@PC: Under the normal rules of criminal jurisdiction that I am aware of, German courts would not normally have jurisdiction in a case involving a German citizen kidnapped in Macedonia by non-Germans. Since the crime occurred in Macedonia, their courts would be the most obvious forum. If the victim was unlawfully detained in any other states, their courts would have jurisdiction as well, but German courts cannot - to my knowledge - obtain jurisdiction only because the victim was German.
1.28.2009 3:06pm
martinned (mail) (www):
@PC: Yes, under section 7 of the Strafprozessordung (hereafter: StPO), the German Code of Criminal Procedure, the first most obvious court to have jurisdiction is the court where the crime was committed. Under section 8, the court where the accused has his habitual residence also has jurisdiction, as well as the court of the area where he was arrested (section 9). That is the normal rule. If I find any special laws on crimes with an international dimension, I'll let y'all know.
1.28.2009 3:13pm
Michael B (mail):
Voting Underway in Iraq, with a representative photo. Commenting on the same elections - Not Switzerland Yet:

"It is beautiful," said Hatim, pleased and proud over the tumult of the grass-roots campaigning and the pictures of candidates slapped on the sides of buildings.

Hatim's enthusiasm for the election is particularly telling because he's a Sunni Arab -- the once-disaffected group that largely shunned Iraq's provincial races four years ago.

Change!!! Hope!!! Change and hope that we - and both Sunni and Shi'a polities in Iraq, in addition to the Kurds in the north - can believe in!!! Thank you, George W. Bush!!!
1.28.2009 3:32pm
Blue:
Nathan_M, you are also confusing the difference between domestic law and international law. Canadian domestic statutes, no matter how wonderfully written, cannot serve as the basis for a claim about what international law is because only one state party is involved in drafting said statute.

Let me propose a silly example. Let us say that I have my own country, Blueistan. I promulgate a statute declaring that it is a war crime to Rick Roll someone. Then when my neighbor comes into Blueistan, I arrest him for being a war criminal.

It doesn't work. The reason it doesn't work is that the interpretive act of moving the international law into domestic statute binding on non-citizens never receieved any review (democratic or otherwise) from the citizens of the other contracting parties.

To reiterate: Geneva Convetion = international law. Canadian statute about the Geneva convention =/= international law.
1.28.2009 3:38pm
Nathan_M (mail):
@Blue I agree that Canadian statutes, even when based on international law, do not necessarily accurately state what international law is.

My point is only that for many purposes what will matter is domestic law and not international law. For example, if an American official visits Canada or the United Kingdom and is charged under one of the laws cited here it would not be a defence to say that the applicable law is a misapplication of international law.

Professor Posner might be correct that the trial would not be justifiable on international law grounds (I don't know enough to have any opinion on that myself) but it would be justified by the domestic law the courts would actually be called upon to enforce. So even if Professor Posner's arguments about international law are entirely correct, his conclusion that there will not be trials in foreign countries may not be.
1.28.2009 3:54pm
Richard Aubrey (mail):
Michael.
That's not exactly how it goes. It's a quagmire. And it won't be fixed until The One figures a way to sell it out.
1.28.2009 3:55pm
John A. Fleming (mail):
Given the Canadian definition of torture:
means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,
isn't the problem that waterboarding (or others) is an interrogation technique that reasonable people can disagree on whether a) it is always torture, or b) it depends on the application. And the weight of fickle public opinion can be easily shifted by partisans masquerading as journalists.

(E.g, "we boarded him once for one minute, it scared the crap out of him, and he squealed like a stuck pig after that", versus "we kept him on the board for a day and half, under more or less continuous inundation, until he was reduced to an incoherent babbling wreck. What do we care, he's a terrorist, responsible for the deaths of many innocents, and deserved it.")

If not waterboarding, there would be some other interrogation technique that people would argue about being borderline. Without a list of allowed and proscribed techniques (e.g USA Field Manual) an anti-torture law with universal jurisdiction enables capricious and/or selective political-based prosecutions by partisans acting under the color of law.

No list = poorly (or deliberately) crafted law.
1.28.2009 4:01pm
Blue:
"[I]t would not be a defence to say that the applicable law is a misapplication of international law."

And that, Nathan, is why sober-thinking people who aren't out for Bush Administration hides should be profoundly concerned about the effects of turning every tinpot local magistrate into an instrument of international justice.
1.28.2009 4:05pm
Richard Aubrey (mail):
Can there be a torture exception if it's shown that journalists have paid to have it done to them to see what it's all about?
Thing is, as long as waterboarding is done for intel and the guy is let up the instant he agrees to spill the beans, it's no worse than SERE training. One of my daughter's cute, button-sized female friends insisted on SERE so that she, as an AF intel weenie, could make combat flights. Otherwise, she has to stay home or something. So she got boarded, gave up the info and passed because everybody gives up the info. In reality, she didn't volunteer for waterboarding. She volunteered for what is undoubtedly hideously worse should her aircraft be shot down.
Which, should it happen, will interest nobody but the family.
But, anyway, if you let the guy up instantly, which might or might not be happening, he got a shot of unsupportable fear and is otherwise just dandy. He determines how long it lasts and how bad it is.

I suggest that waterboarding be put in a separate category from torture and be determined to be acceptable or unacceptable on its own. That way, we don't have to argue endlessly about whether it's torture or not.

Problem with that is, it might not impress people as torture and might impress people as acceptable, and then we get good intel. And that would never do.
1.28.2009 4:28pm
martinned (mail) (www):

No list = poorly (or deliberately) crafted law.

Do you have the same objection to negligent homicide statutes that don't come with a list of things that count as "negligent"?
1.28.2009 4:59pm
Michael B (mail):
Richard,

What?!? With such increasingly promising and increasingly substantial news I'm expecting the whole world to begin sending George W. Bush "thank you" cards :-/

(And in point of fact, BHO is gearing his rhetoric in precisely the manner you've suggested. Heard some of it this morning - precisely in that vein. Change.)

More seriously though, it is genuinely heartening to view those two photos from the links provided, and the accompanying reports. A study in contrasts: Iraq presently and its current long-term prospects, vs. Iraq under Saddam and sons Uday and Qusay and its long-term prospects under that regime.
1.28.2009 5:01pm
martinned (mail) (www):

More seriously though, it is genuinely heartening to view those two photos from the links provided, and the accompanying reports. A study in contrasts: Iraq presently and its current long-term prospects, vs. Iraq under Saddam and sons Uday and Qusay and its long-term prospects under that regime.

True. Very true.
Still, I would just like to remark that this does not somehow retroactively legitimise or otherwise excuse the US invasion.
1.28.2009 5:12pm
Benjamin Davis (mail):
Here is a nice Glenn Greenwald piece from today on criminal prosecutions.
Best,
Ben
1.28.2009 5:28pm
Benjamin Davis (mail):
Here is a list of the OLC memos some of which are still secret. The titles of them are especially eloquent for the detainee treatment ones.
Best,
Ben
1.28.2009 6:00pm
Michael B (mail):
"Still, I would just like to remark that this does not somehow retroactively legitimise or otherwise excuse the US invasion." martinned

Of course it does. They were also justified not merely retroactively but at the time as well, c. 2002/2003 - hence varied and sundry votes and quotes by people such as Hillary, Kerry and many others, during that period and previously.

All too obviously, it depends upon how "legitimise or otherwise excuse" are argued and defined, but that is prima facie obvious. I countered your assertion with another assertion.

But more substantively, the two links provided - here and here - represent substantive CHANGE!!! and HOPE!!!, as previously noted.
1.28.2009 6:25pm
martinned (mail) (www):
@Michael B: I didn't want to go any further down that path, since it is not the subject of this thread, but invading a country in order to make it a democracy is not a lawful reason to go to war under the ius ad bellum. There's a very simple reason for that as well: such a war is always messy, many will die, and it can't be that some guy in Washington who is only accountable to his own voters gets to make that call on behalf of the Iraqi people.
1.28.2009 6:34pm
John A. Fleming (mail):
No list = poorly (or deliberately) crafted law.

martinned asks:

Do you have the same objection to negligent homicide statutes that don't come with a list of things that count as "negligent"?


I say no, because of the objective dead body evidence and causation analysis. To prove negligence, it's either common-sense obvious (don't play with matches), in public law, or the defendant was warned and proceeded anyway. The legislature from time to time inserts or removes items from public law to remove ambiguity (the list is there but scattered throughout the Code, e.g. no cell phone use while driving). Product manufacturers provide warnings about improper use.

Torture acts are either obvious, debatable, or application based. Interrogation techniques are (should be) enumerated powers we the people grant to public servants for limited times and situations. The list is legal safe harbor for interrogators.

Whether waterboarding, or stress positions, etc. is intrinsically torture is uncertain. But it can be defined to be torture, or limited in duration and intensity, in the public law.

Negligence is tortious acts by citizens. Allowed/proscribed interrogation techniques are enumerated powers.
1.28.2009 6:57pm
martinned (mail) (www):
@John A. Fleming: You don't think "severe pain or suffering" is specific enough? That is the line. To the extent that it is vague, as all laws inevitably are, it needs to be cleared up through case law and other practice. Yoo's torture memo would have contributed to that process, except for the fact that it was so far into left field as to be frankly preposterous. Whether the people trust their "public servants" with certain other techniques is up to them, but anything that constitutes "severe pain or suffering" is off limits.
1.28.2009 7:06pm
ArthurKirkland:
I continue to believe we need more information. I do not understand the preoccupation with waterboarding (especially among those attempting to excuse U.S. government conduct of the past few years). If reports that shackled prisoners were beaten to death are true, waterboarding won't be the focus for long. If it is established that representatives of the United States government shipped prisoners -- a number of whom have been released without trial or charge -- to Syria and similar countries for old-fashioned electrical clamp-meathook-weighted hose torture, waterboarding will be out of the picture.

The United States has ventured to the likes of Grenada, Iraq, Guatemala and similar countries to impose its brand of justice on people whose susceptibility to U.S. legal jurisdiction was slim to nonexistent. During recent years, believable reports have depicted U.S. agents kidnapping in Italy, surveilling unlawfully in the United Kingdom, handing prisoners off for torture in Uzbekistan and Syria, and the like. Is there any basis for immunity with respect to crimes committed by Americans in Europe or the Middle East, even if a frightened President and his not-quite-up-to-the-job appointees approved it?

Again, the point transcending this debate is to arrange effective methods of deterring recurrence of the tawdry shortcuts our government chose during recent years. The methods should be adequate to restrain the next president and administration tempted to abuse prisoners, surveil improperly, hide behind national security skirts in court, kidnap around the world, operate secret prisoners, cooperate with sadists, etc.

Until these issues are sorted out, if any former American official involved in abusive conduct is dumb enough to stray beyond United States jurisdiction, I see no reason to devote a dime or a drop of blood to attempting to rescue that fool from self-inflicted folly.
1.28.2009 7:11pm
John Moore (www):

The United States has ventured to the likes of Grenada, Iraq, Guatemala and similar countries to impose its brand of justice on people whose susceptibility to U.S. legal jurisdiction was slim to nonexistent.


Please explain which actions we took in those countries that had anything to do with the idea of justice, as opposed to national defense?
1.28.2009 7:14pm
PC:
Can there be a torture exception if it's shown that journalists have paid to have it done to them to see what it's all about?

It might surprise you to learn that you can pay people to do all sorts of things that would be illegal if they didn't have your consent. I have heard rumors that there are women you can pay to tie you up and severely beat you and it is perfectly legal. But for some odd reason if that same woman were to tie you up and beat you without your consent it would be illegal. Strange, isn't it?

Whether waterboarding, or stress positions, etc. is intrinsically torture is uncertain.

In 1983 the federal government prosecuted Sheriff James Parker and three of his deputies for waterboarding suspects. The Fifth Circuit referred to waterboarding as torture 12 times. So at least two branches of the federal government regard waterboarding as torture.
1.28.2009 7:23pm
Nathan_M (mail):
@John A. Fleming I wish negligence was as simple as you say. If for some reason you ever want a headache read the Supreme Court of Canada's jurisprudence on criminal negligence.

I'm not suggesting Canada's prohibition on torture is particularly well drafted but it's done in a similar manner to the rest of our criminal law. Aside from prohibited weapons and substances, and the specific lists there are done by regulation instead of statute, our criminal law is full of general definitions as for torture and devoid of specific enumerations of prohibited activities.
1.28.2009 7:43pm
ArthurKirkland:
Invading Grenada was related to national defense in the manner bulldozers are to brain surgery, and arranging Guatemalan death squads was to American national security what PlayDoh is to the finest jewelry.

With respect to Iraq, it has been demonstrated to the satisfaction of most people that attacking the wrong country had little to do with national security. . . even before the issue of botching the occupation is addressed.

National security aspects to the Noriega case? To overthrowing a democratically elected government in Iran? Those were political judgments and partisan ideological crusades, not national security issues.

At least those who engineered kidnapping in Italy or consorted with torturous Uzbeks believed -- although they apparently were too scared, too dumb or too immoral to recognize the wrongfulness of their behavior -- they were addressing a threat to the United States. I find it hard to believe that even the likes of Elliott Abrams genuinely believed that equipping thugs to slaughter nuns in Central America was safeguarding the United States of America. They were settling political scores, perhaps currying petty favor, or advancing preferred ideology . . . but not defending their nation.
1.28.2009 7:49pm
Constantin:
With respect to Iraq, it has been demonstrated to the satisfaction of most people that attacking the wrong country had little to do with national security. . . even before the issue of botching the occupation is addressed.

No it hasn't.
1.28.2009 7:58pm
John A. Fleming (mail):
@martinned: You don't think "severe pain or suffering" is specific enough?.

Lot's of people claim waterboarding is torture. From the published reports I've read, it doesn't seem to obviously cause "severe pain" (e.g. like a cat o' nine tails flogging). If applied for short periods of time, it seems to cause mental panic. If done continuously for long periods of time, it most likely rises to the level of "severe suffering", and it's definitely gratuitous infliction, and then arguably of limited interrogation value.

Most interrogation professionals (at least those that get quoted in the press) say that boarding is beneath them, and/or useless. The U.S. Goverment has evidence that it can be effective when used particularly.

That's why I think boarding is so controversial. It's right on the line.

So for all these reasons "severe pain and suffering" is not enough. Put it on the proscribed list, and the anti-torture absolutists will start over with stress positions. Put it on the allowed lists, and then the absolutists will seek to limit its use. But that's better than keeping it all ambiguous. Right now waterboarding is a cudgel for partisans (local and international) to beat their opponents with. That's not good.

martinned suggests case law determination of what is and is not torture. So once one jurisdiction gets a waterboarding conviction, it's now torture everywhere in the world? I guess I'd rather put the legislature in charge.

Perhaps in an ideal world, GC signatories would agree to an inserted provision to define torture in their laws. The next best ideal (imo) would be for the leading nations to unilaterally codify torture and acceptable interrogation techniques. I don't find judges making/finding law as martinned suggests to be very satisfactory, because of the very real likelihood of partisan abuse, selective prosecution, and international gamesmanship.
1.28.2009 8:07pm
martinned (mail) (www):
@John A. Fleming:I'll ignore your apparent misconceptions about waterboarding, including your failure to appreciate that it is already torture under US law, at least within the domain of the 5th circuit court of appeals, a court well known for being full of lefty weenies.

I'd just like to take a moment to correct you on this one:

So once one jurisdiction gets a waterboarding conviction, it's now torture everywhere in the world?

That is emphatically not how precedent works. A ruling of the 5th circuit court of appeals on, say, the interpretation of a statute is only binding in the states where that court has jurisdiction. It can then be overruled by the Supreme Court, which ruling would then bind all US courts. Similarly, precedent by out of jurisdiction courts on the interpretation of CAT, for example as to whether something is torture or not, can have persuasive value, but nothing else.
1.28.2009 8:14pm
John A. Fleming (mail):
@PC: The Fifth Circuit referred to waterboarding as torture 12 times. So at least two branches of the federal government regard waterboarding as torture.

The link is not conclusory. Crimminal complaint was denial of civil rights, a catch-all the Feds use to selectively prosecute in high-visibility cases or when the State is unable or unwilling to. First use of torture was in quotes "water torture". All following uses were not quoted, but should be assumed to be so. The specific acts were not described.

I expect that all jurisdictions have clear procedures for detention and interrogation of suspects. Anytime the police exceed their enumerated powers, it could be a denial of civil rights case (e.g. Rodney King).

Intrinsic torture is my term of art for obvious stuff like flogging, continuous and severe electric shocks, beatings. Legally, torture is whatever we the people say our public servants can't do to detainees because it's torture, which normally includes all intrinsic torture and whatever else we decide to include.

Legally, the U.S Government has more or less decided on the USA Field Manual for POW's and unlawful combatants, although the Prez can authorize exceptions. For civil police, anything much beyond good cop/bad cop in your face yelling for 8 hours is "torture".
1.28.2009 8:46pm
Michael B (mail):
martinned,

That' fine, though it very much is directly related to the subject of the primary post. As to the added comment, that invading a country in order to make it a democracy is not a supportable reason to go to war within jus ad bellum considerations, we agree in priciple. But we disagree concerning Iraq specifically; we disagree concerning the very premise of that statement since pointing Iraq in the direction of a working democracy was not the originating rationale of the Iraq effort, debated in 2002 and initiated in 2003.

A more stable Iraq domestically and regionally was a primary motive, the fact deterrence and containment had failed to yield more propitioius results was another reason, concerns about Saddam's larger goals and alliances with regional terrorists were a motivating factor, his conventional forces alone posed a continuing and lingering threat (e.g., Iran, Kuwait), chemical and biological weapons were a concern and, yes, WMD concerns in general. There was a concern he would sell some of these chemical and biological weapons to regional or global terrorists, he had a ballistic missile program that included SAMs as well as SCUDs. He had failed to comply with U.N. ordered directives. Etc.

The hope of pointing them in a more democratic mode was purely subsidiary to those other concerns. It certainly developed into a strategic/political offshoot of those primary concerns, but it was not a primary factor per se.

But I give you credit for acknowledging the considerable progress made and that it is heartening to observe that progress as witnessed by the photos and articles in the links previously provided.
1.28.2009 8:51pm
John A. Fleming (mail):
@martinned: your misconceptions about waterboarding
C'mon martinned, I'm not stupid. I read the same stuff you do. It's interesting, it's a puzzle, and as a responsible citizen I want to be sure I don't allow our government to have terrible powers it shouldn't.

I don't care what other people, especially partisans (not you), conclude. I ignore their conclusions and arguments, and pay special attention to the facts. From all that I read, I don't find waterboarding to be obviously, always torture. Reasonable people, I'm sure, disagree with me. In the aggregate, we vote, and the ambiguous stuff flops back and forth across the bright line.
1.28.2009 9:02pm
martinned (mail) (www):
A more stable Iraq domestically and regionally was a primary motive, the fact deterrence and containment had failed to yield more propitioius results was another reason, concerns about Saddam's larger goals and alliances with regional terrorists were a motivating factor, his conventional forces alone posed a continuing and lingering threat (e.g., Iran, Kuwait), chemical and biological weapons were a concern and, yes, WMD concerns in general. There was a concern he would sell some of these chemical and biological weapons to regional or global terrorists, he had a ballistic missile program that included SAMs as well as SCUDs. He had failed to comply with U.N. ordered directives. Etc.

You do realise that none of this is a lawful grounds for war?

In fact, if you want to read the legal case for war, Yoo wrote a memo about that, too. (Sequel 1, sequel 2. N.B. I haven't read either of those, yet.) It's wrong, parts of it very wrong, but other parts come fairly close. Those are the parts that look for justification in the terms of the cease fire after Desert Storm. Since there was never a formal peace treaty, but only a cease fire, arguably a material breach of that cease fire would justify the US resuming hostilities. However, the only breaches Yoo suggested were the continuing difficulties with the WMD inspections. Those would certainly justify Clinton's air attacks, but not a full scale invasion.
1.28.2009 9:06pm
martinned (mail) (www):
@John A. Fleming: How is simulated drowning not "severe suffering"? Even if you don't like the CA5 precedent, how about US WWII practice of convicting Japanese for torture based on their use of waterboarding? How about common sense?
1.28.2009 9:10pm
ArthurKirkland:
I didn't assert that every American regrets the invasion of Iraq; I asserted that most Americans regret it. If the United States had another crack at the decision to invade and occupy Iraq, most Americans would shoot someone trying to launch the invasion rather than start shooting Iraqis. I am sure, however, that somewhere in the United States a group of next-generation Project For A New American Centurions is already busily preparing for the next chance to emulate Francis Sawyer (who was happiest when he observed, "All I know is, I finally get to kill somebody.")
1.28.2009 9:12pm
jukeboxgrad (mail):
aubrey:

Do you have any evidence that anybody looked and decided there's no story?


Yes. And why are you pretending to not know something you've already been told?

========================
fleming:

I don't find waterboarding to be obviously, always torture


There is a long history of US courts treating waterboarding as a form of torture (pdf).

And aside from the question of whether or not waterboarding is torture, Crawford says we tortured (without even resorting to waterboarding).

Also, Bush's own State Dept declared that "submersion of the head in water" is torture. Both this and waterboarding are methods of using water to asphyxiate, so it's hard to figure why they wouldn't be treated alike.
1.28.2009 9:12pm
John Moore (www):

Invading Grenada was related to national defense in the manner bulldozers are to brain surgery

So we did it, exactly, why?


arranging Guatemalan death squads was to American national security what PlayDoh is to the finest jewelry.


And who did that?



With respect to Iraq, it has been demonstrated [blah blah]


So your logic goes: if the majority of Americans think something is not related to National Security, then it is not related to national security. Very democratic of you, but logical it is not.
1.28.2009 9:19pm
martinned (mail) (www):
So your logic goes: if the majority of Americans think something is not related to National Security, then it is not related to national security. Very democratic of you, but logical it is not.
That's not a very fair description of the argument.
1.28.2009 9:23pm
John A. Fleming (mail):
Under the principle of universal jurisdiction being discussed here, country A says X is bad, by case law, statute, or treaty obligation, and country B is silent. Then, if a lawful agent of country B performs X anywhere in the world, country A must pursue prosecution when the agent visits A. So all it takes is one activist judge in one country to begin changing the precedent worldwide when nations are locked together by treaty. It seems like in some countries (Italy? Spain?) an individual judge is much more independent than we have in the United States.
Too haphazard and capricious for me. I prefer bright lines drawn and enumerated powers granted only after deliberations by we the people.
1.28.2009 9:31pm
martinned (mail) (www):
@John A. Fleming: And all I'm saying is that the definition of torture in CAT is as clear and "bright line" as any definition you're likely to see in a criminal statute.
1.28.2009 9:33pm
Blue:
However, the only breaches Yoo suggested were the continuing difficulties with the WMD inspections. Those would certainly justify Clinton's air attacks, but not a full scale invasion.

War is a unitary state--it either exists or it does not. If Iraq was in breech of the treaty ending Gulf War I--and it clearly was--than air strikes or invasion were both equally permissable.

Note that I did not say wise. But an illegal attack? Nonsense. This is yet another example of why "international law" often deserves scare quotes.
1.28.2009 9:50pm
LM (mail):
martinned:

@PatHMV: All prosecution decisions are political to some degree. That's why in many countries such decisions are placed in the hands of democratically elected or at least democratically legitimised officials. In the Wilders case, for example, I have been arguing in the Dutch part of the blogosphere that, even given the fact that this odious law exists, the prosecutor's decision not to prosecute should have been upheld by the court, because it correctly applies the rule of art. 167 (2) of the Dutch Code of Criminal Procedure, which states that the prosecutor can decline to prosecute for reasons of general interest. (Note, this rule is deliberately vague, so as to give the prosecutor significant discretion.)

For crimes of universal jurisdiction, the question of whether it is opportune (Dutch legal lingo) to prosecute should be left with the prosecutor in the same way that it is for all other crimes.

That's insane. Who knew there was a "Dutch part of the blogosphere?" Legal drugs, hookers.... Why would you ever waste your time arguing with these losers?
1.28.2009 9:52pm
martinned (mail) (www):
@Blue: Can't get into details now, it's long past my bedtime, but I suggest you look up the principle of proportionality, which is normally restricted mostly to the ius in bello.

However, since there was no peace treaty with Iraq, the US had been at war with that country since desert storm. There just wasn't any shooting for a number of years. In this context, the proportionality principle certainly applies to the question of what an appropriate punishment is for a (material) breach of the cease fire agreement.
1.28.2009 9:55pm
ArthurKirkland:
Why the United States attacked Grenada is an interesting question. Muscle-flexing and bored bullies are plausible answers. Ideological excess is another. Political score-settling, private economic interests . . . there are likely several more candidates. Defending the United States, however, is not a plausible answer. Perhaps someone who has studied the issue could illuminate it.

Who financed, trained, whitewashed, shielded and encouraged Central American death squads, in Guatemala and a number of other countries? American agents, acting overtly and covertly, from the mid-1960s to the most shameful and brutal period, the 1980s.
1.28.2009 10:03pm
Phil Byler (mail):
Sorry to the author of the article above, I wrote my 01/27 11:56 PM post when I was very tired last night late, and certain words do drive me nuts.

I really, really don't like the leftist political arguments that are being made under the guise of "international law." I don't think I am alone.
1.28.2009 11:00pm
Richard Aubrey (mail):
Arthur. The takeover of Grenada by Cuban backed New Jewel thugs was the point of the invasion.
You can say that had no bearing on national defense.
If you like.
During the Cold War,we were faced with a number of issues, none of which was, by itself, an existential threat. Cumulatively, eventually we could find ourselves in trouble.
For example, had the balloon gone up in Europe, half our stuff going over there would be coming through the Straits of Florida, from the Gulf ports. What it takes to close the Straits is mostly stuff not useful in the North Atlantic, the Western Approaches, or in Europe itself. Thus, the equipment the Sovs would have used would not have subtracted from their combat power elsewhere. While what it would take to fight the convoys through would be useful elsewhere. ASW ships and planes, attack subs, fighter cover. Thus subtracting from our combat power useful elsewhere.
Now, if we find ourselves unable to cover the Greenland-Iceland-UK gap due to getting aced out of Iceland, the Straits are likely to be stopped up pretty good, the Atlantic Narrows are Soviet due to basing rights and sundry other disadvantages, the Sovs might have been emboldened to take a shot. That would be a bad thing.
No one of those would be an existential threat. One could think of others, not including my examples, neutralizing Italy from NATO through Communist success in elections, or Greece, say.
But, in combination, there was potential trouble. Allowing Sov--which is to say Cuban--expansion in the Caribbean would be one non-existential threat. But if we chose to ignore each non-existential threat considered in isolation, we could find ourselves where the choices are surrender or go nuclear.
I don't think you're dumb enough not to know this. I think you hope the rest of us are.
Wrong.
1.28.2009 11:32pm
Michael B (mail):
"You do realise that none of this is a lawful grounds for war?" martinned

I was responding to jus ad bello considerations - which are not legal considerations as such. You had suggested the progress hi-lited (here and here) did not "legitimise or otherwise excuse" the Iraq effort. I responded to that. The legal argument as such pertains to U.N. resolutions, votes in the U.S. Congress, supportive facts and intelligence, etc. I didn't comment on the legal aspect per se, outside of mentioning some of the supportive facts, the votes in Congress (with large bi-partisan majorities and citing the 1998 Iraq Liberation Act) and U.N. resolutions (which even Hans Blix, c. 2002/03, acknowledged had not been kept by the regime of Saddam & Sons.
1.29.2009 12:20am
John Moore (www):
Richard Aubrey,

Well said.

If one accepts his explanation, one has to believe that one of his theories is Reagan sent men to their death out of boredom!

Anyone who throws out libel like that is either uninformed, a fool, a scumbag or a combination of the three.
1.29.2009 12:42am
Richard Aubrey (mail):
John Moore.
Have you exhausted the possibilities?
Give it some more thought.
1.29.2009 7:45am
jukeboxgrad (mail):
michael b:

the votes in Congress (with large bi-partisan majorities and citing the 1998 Iraq Liberation Act)


Your claim regarding "large bi-partisan majorities" is a stretch. Most Ds in the House voted against the invasion, and 42% of the Ds in the Senate also voted against the invasion.

And hopefully you are not implying that ILA was a justification for the invasion (although many people do precisely that). The Iraq Liberation Act of 1998 (link) called for support to "Iraqi democratic opposition organizations," via a limited amount of money, training and equipment. It specifically indicated we should have no military role beyond that: "Nothing in this Act shall be construed to authorize or otherwise speak to the use of United States Armed Forces (except as provided in section 4(a)(2)) in carrying out this Act."
1.29.2009 8:30am
PubliusFL:
jbg: Your claim regarding "large bi-partisan majorities" is a stretch. Most Ds in the House voted against the invasion, and 42% of the Ds in the Senate also voted against the invasion.

Most people understand a "large bipartisan majority" to be a large majority with substantial support from both parties, not necessarily that a majority of each party's caucus votes in favor of the measure. The recent SCHIP House vote was described as a "large/strong/wide/etc. bipartisan majority" because it was more than a 2:1 majority and a significant number of Republicans voted with the majority, even though overall Republicans voted 3.4:1 against the bill (much stronger opposition than the Iraq resolution had from Democrats in either house).
1.29.2009 12:17pm
jukeboxgrad (mail):
publius:

Most people understand a "large bipartisan majority" to be a large majority with substantial support from both parties, not necessarily that a majority of each party's caucus votes in favor of the measure.


I understand. However, on quite a few occasions I've run into folks who say, or imply, that most Ds in Congress voted for the war. Therefore I thought a clarification was warranted, because I think there's some ambiguity in the phrase that was used.
1.29.2009 1:01pm
Michael B (mail):
You're concerned with "ambiguity"? There was little if any ambiguity at all in what I stated and you contradicted none of it.

But as you're so conscientious, concern yourself with Barack Obama's and friend's lies.
1.29.2009 1:42pm
Richard Aubrey (mail):
WRT Central America:a couple of decades ago:
The Nicraguan campesinos voted for Chamorro, widely considered a contra figure.
They also declined to vote for the Christian Democratic Party in El Salvador, opting instead for ARENA, widely considered--by lefties--as the home of the death squads and their alleged leader, d'Aubuisson. The US was pushing the CDP, and the voters went 'way right of our druthers.
Maybe the dumb campesinos knew more than our lefties and MSM.
That's why they shouldn't be allowed to vote.
1.29.2009 3:24pm
jukeboxgrad (mail):
michael b:

concern yourself with Barack Obama's and friend's lies


I responded to you in the other thread, here.

Just when I think you couldn't possibly do further damage to your already shredded credibility, you manage to outdo yourself.
1.29.2009 3:45pm
wolfefan (mail):
Hi Richard -

I appreciate your response (except for that line at the end.) Your re-framing of the issue is more helpful to me. Of course, I can't prove that any reporters were sent to investigate the issue, and I've never claimed that any were. At the same time, you can't prove any weren't. If some reporters did investigate this and found nothing, I'm not sure that we'd ever hear about it. We'd likely only find out if there was something there to report.

I'd have to do a little more research (and I will try to do so) to see the extent of the reporting. It could be that this was checked into by local media years ago. If I find out anything (which is doubtful, I confess), I'll let you know.

Thanks again for your response
1.29.2009 4:47pm
Michael B (mail):
You need to attend to your own credibility. I responded.
1.29.2009 5:02pm
jukeboxgrad (mail):
I responded.


Yes, by admitting you were wrong. Good for you. Now you just need to clean up your other false statements in a similar manner. You're off to a good start, and I hope you keep up the good work.

You need to attend to your own credibility.


I'll start taking advice from you about "credibility" as soon as you demonstrate that I have a problem in that regard.
1.29.2009 5:13pm
Michael B (mail):
Dear, dear.
1.29.2009 5:21pm
jukeboxgrad (mail):
I guess that's your subtle way of admitting that you're not in a position to demonstrate that I actually need to attend to what you said I need to attend to.
1.29.2009 5:29pm
Richard Aubrey (mail):
wolfe.
While you're at it, see if this is the docdump that was resisted for so long. Possibly sterilized.
1.29.2009 7:27pm
Michael Ejercito (mail) (www):

Shouldn't we also be seeking a trial of the people in the intelligence community and armed forces who have been involved in detention and interrogating alleged Al Qaida and other insurgents?

Why?

Al Qaeda deserves nothing less than a free ride to the bottom of the Marianas Trench in the Pacific Ocean.
1.29.2009 7:52pm
Richard Aubrey (mail):
Michael:

Something wrong with interrogation of suspected bad guys, now? Where did you find this guy?
It is getting tough to keep up.
1.29.2009 8:06pm
jukeboxgrad (mail):
wolfefan:

I can't prove that any reporters were sent to investigate the issue


Reporters were sent to investigate the issue. Upthread I pointed to proof.
1.29.2009 8:24pm
Richard Aubrey (mail):
.
1.29.2009 8:53pm

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