09 May The ACLU Needs to Dial Down the Rhetoric!
I rarely have reason to criticize the ACLU, so I feel obligated to respond to Anthony Romero’s statement concerning the possibility that Obama’s revamped military commissions would continue to admit hearsay under certain circumstances:
Romero said allowing hearsay in any U.S. courtroom [would be] a “greater travesty than Bush administration justice.”
I doubt that any amount of revamping would fix the basic defects of the military commissions, such as their jurisdiction over offences that do not actually violate the laws of war (conspiracy and material support for terrorism foremost among them). And I am skeptical that the revamped commissions would contain sufficient procedural safeguards to justify admitting hearsay, such as requiring all of the finders of fact to be professional judges. That said, it is simply ridiculous to claim that the very idea of admitting hearsay is worse than the endless list of judicial atrocities brought to us courtesy of the Bush administration — the Military Commissions Act itself foremost among them. Hearsay has been admitted at every international tribunal since Nuremberg, without calamitous results. And it is difficult to argue that the admissibility of hearsay in civil-law systems means that defendants in the vast majority of the world’s countries routinely receive unfair trials.
I applaud the ACLU for taking a stand against reviving the military commissions. And I hope that revamped military commissions would not admit hearsay, because I certainly don’t trust the Obama administration to make the procedural reforms necessary to ensure that it is admitted fairly. But overheated rhetoric like Romero’s does more harm than good.
The real problem here is that the “military commissions” are simply illegal under US law:
18 USC 2441(c)(2) makes it an offense to commit any violation of the Hague IV (1907) Annex of Regulations (“HR”), arts. 23, 25, 27, or 28.
HR art. 23[h] provides: “In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.”
The new commissions cannot be rehabilitated for the simple reason that any procedural variance from preexisting standards of due process isin fact a war crimes under 18 USC 2441.
Further, there are two perfectly good legal swystems available to try any actual crimes the detainees may have committed: either the Article III Courts or the Military Justice System. Adopting these ad hoc abominations only insure that there will be endless litigation of every little procedural detail, followed by endless appeals to the real courts by whichever side loses.
It is utterly silly and craven to even consider salvaging these atrocious and criminal “military commissions”, and it will only continue the disgraceful sham we’ve witnessed over the last seven and half years into the future indefinitely.
Andanyone who thinks that thereare pragmatic reasons for these commission is simply a fool: it would be far better to simply release all of the detainees right now, including the guilty ones. That wouldn’t be politically viable, but it would be a lot better solution than continuing to subvert our own laws just because the peopleres ponsible for enforcing those laws aren’t competent or honest enough to perform theire duties without committing crimes in order to gaurantee a conviction. Thepeople responsible for creating thesecommission andthe Bush administrations idiotic Global War on Everything and Nothing are a far greater danger to this country than all the terrorists in the world combined. All they are doing is weakening us in the long term becasue they are too cowardly to do their jobs.
And make no mistake about it, that is exactly we’re talking about here: lawyers who don’t want to risk losing a case, and are therefore willing to subvert and violate the law in order to influence or predetermine a conviction.
I believe Barrack Obama is better man than that. I’m not so sure about some of the people working for him, especailly at DoD — keeping Gates on the job was a terrible mistake. Gates is a war criminal who is complit in all of the Bush administrations war crimes,including the torture, the unlawful detentions at Gitmo, andthe illegal “military commissions”, all of which violate 18 USC 2441.
Enough is enough. The Guantanmo Bay Kangaroo Courts are ILLEGAL and cannot be salvaged.
Oh Charles,
Once again, your quoted language does not mean what you think it does.
HR art. 23[h] provides: “In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.”
You then say, “The new commissions cannot be rehabilitated for the simple reason that any procedural variance from preexisting standards of due process is [in] fact a war crimes under 18 USC 2441.”
Charles, your argument does not follow from art. 23 because art. 23 does not tell you what rights the “nationals of the hostile party have.” Art. 23 states “rights” without explaining what “rights” those are. You have to look to other law for that.
I doubt you will understand this point just as you previously were unable to understand that early 20th century treaties recognized the importance of reciprocity. But hey, you can always accuse me of advocating for rape, murder, or cannibalism.
Kevin,
There is definitely support for the ACLU statement in U.S. law. It is a mistake to focus solely on a comparative law or international law analysis. The fourth ex post facto violation articulated by the Supreme Court in Calder v. Bull is “4th Every law that alters the legal rules of evidence and receives less, or different, testimony than the law required at the time of the commission of the offence, in order to convict the offender.” (emphasis added)
For me, the key to answering this question is whether the evidentiary rules ultimately adopted for military commissions are within the law controlling the evidentiary rules at the time the alleged crimes occurred. That law was Article 36 of the UCMJ, the same law at issue in Hamdan v. Rumsfeld.
Article 36(b) required that the rules at courts-martial and other military tribunals be uniform insofar as practicable (the MCA amended this provision to except its commissions from it, an apparent facial violation of Calder but only if of any actual substance). It is possible to argue that the the altered evidentiary rules of the Military Commissions Act, however they are ultimately implemented, are a congressional determination of practicability and are thereby within the scope of Article 36(b) at the time of the alleged offenses. It is also possible to view them as a violation of this aspect of Calder.
Given the rich history of military commissions in U.S. law, the answer to this question is not easy. Historically, military commissions applied the rules applicable at courts-martial only by analogy. A failure to comply with them was not fatal to the validity of a conviction. The key question appears to be the extent to which Article 36 was intended to alter that state of affairs. The Court’s decision in Hamdan is certainly relevant, but does not address the scope of Congress’s power to adopt “practicable” rules, or the extent to which “practicable” rules might be influenced by a comparative law analysis or with reference to the rules governing international tribunals.
As is the case with the substantive offenses of the Military Commissions Act, the relevant legal issues require a more nuanced analysis. For example, I believe that material support to terrorism might, under some narrow circumstances, constitute criminal complicity in an indiscriminate attack in violation of the laws of war (so long as the act of “terrorism” was an act of hostilities in an armed conflict of course). I am sympathetic to your earlier post, linked above, that Hamdan’s case may not meet the required circumstances and may be an ex post facto violation. Nevertheless, one must look past labels and to the substance of what is being punished to make an accurate evaluation. I am not sure how helpful it is to level broadside attacks based solely on labels.
Additionally, I would encourage you to consider my recent Journal of International Criminal Justice article regarding the municipal, common law basis of some offenses in the MCA…and the next one in that Journal (if accepted, currently pending) regarding the propriety of their application to conduct in an extraterritorial armed conflict – particularly given the legality principle (for those unfamiliar, similar to ex post facto in U.S. law) of modern IHL.
HLS,
What it means is that it is a war crime to deprive them of ANY right or action to which they are entitled by ANY applicable law.
And I guarantee you that I understand which laws are applicable in this case a LOT better than you do. They include:
Hague IV 1907
IMT Charter (London 1945)
Geneva 1949
ICAT
Title 10, U.S.C.
Title 18, U.S.C.
Then there is the Constitution itself, including the 5th amendment among so many other things that prohibit these outrageous kangaroo courts.
And just in case you’ve forgotten or didn’t bother to notice, Judge Green got the 5th amendment exactly right in In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005)… A decision that has held up pretty well through Boumediene.
I’ll bet you don’t even know what DOJ’s excuse for ignoring 18 USC 2441(c)(2) is — but I do. Let’s see you figure it out for yourself. Let me know when you’re ready to give up and I’ll clue you in.
Now get real. PLEASE.
I don’t think it’s defensible to argue ANY procedural variance from established civilian due process is a violation of 18 USC 2441 and the Hague Convention. I don’t disagree that the previous iterations of military commissions had some serious, if not fatal, flaws, but that’s far short of saying a judicial proceeding under different rules of evidence or with altered procedures would be a war crime under the Convention seems to stretch it.
Given the title of Article 23 (Means of Injuring the Enemy, Sieges and Bombardments), it seems much more likely the intent was ensure countries could not close their courts entirely to nationals of a hostile power, or nationalize and seize their property wholesale, solely because of their national origin. The same subpart quoted includes a prohibition on forcing nationals of a hostile power to fight against their home country.
For the sake of argument, though, and any deviation from preestablished standards of due process would be a war crime, what standard of due process do we use? Due process is very different between civilian federal district court and during a military court-martial, and both are different from, say, the evidentiary and procedural rules used by the ICTY or the ICC. Even a military commission has more due process guarantees than many of the home countries of the detainees; it doesn’t justify us falling short, but the black and white choice between using Article III courts/regular military courts-martial and committing war crimes is, I believe, a false one.
Charles,
And now you are changing your argument.
Your original argument regarding, “any procedural variance from preexisting standards of due process” is different from “ANY right or action to which they are entitled by ANY applicable law.” So, no, they don’t mean the same thing
You do cite some positive law that provides classes of individuals with particular rights. But, those laws don’t equate to due process.
Regarding the Fifth Amendment, as a matter of course, I wouldn’t rely on a federal district court opinion. In addition, assuming 5th Amendment due process applies to detainees that fact does not mean detainees are entitled to the exact same due process as US civilians are entitled to.
All your citation to art. 23(h) does is say that it is illegal to not provide detainees the rights that they are entitled to. Is does nothing to advance your argument regarding the content of their rights.
All,
I should add to what I said above that the simplest response to the ACLU statement is that while it may be true, it is probably irrelevant. The Supreme Court has repeatedly held that military commissions and other tribunals are not “courts” in the sense of Article III of the Constitution. (See Quirin, Yamashita, and Jecker v. Montgomery.) Of course, one could view the MCA as Congress creating a tribunal inferior to the Supreme Court and therefore a new brand of Article I adjunct to Article III courts. This conclusion is not required, however, as prior statutes recognizing the jurisdiction of military commissions (Art. 15 of the Articles of War, later adopted as Art. 21 of the UCMJ) have, in the past, been viewed by the Court as (at most) an exercise of the define and punish (offenses against the law of nations) power.
It may be a travesty for any court or tribunal in the U.S. to admit hearsay, particularly if the circumstances under which the extrajudicial statement was made involved coercion – rendering it presumptively unreliable. The problem with the MCA provision on this point is that the party opposing admission must demonstrate the statement is unreliable (10 U.S.C. 949a(b)(2)(E)(ii)). This is a complete reversal of the residual hearsay rule normally applicable in both federal courts and at courts-martial. That rule requires the proponent of hearsay evidence (not meeting one of the other defined exceptions permitting its admission) to demonstrate sufficient indicia of reliability surrounding the making of the statement.
As for this discussion of Art. 23 of the Hague Regulations, there is a more fundamental question to be addressed. It is not clear whether the treaty provisions incorporated by reference in the War Crimes Act (18 U.S.C. sec. 2441) must, by their terms, apply in order to fall within the terms of the statute. In other words, it is not clear if Congress intended to criminalize the conduct outlined in those treaty provisions in every armed conflict, or whether it intended to do so only when the treaties actually apply. The WCA can be fairly read either way in my opinion.
With regard to the Hague Regulations, this is a VERY important question. The Hague Convention to which these regulations are an annex has a general participation clause. All parties to an armed conflict must be party to the Hague Convention for its terms to apply as a matter of treaty law – an obvious problem in non-international armed conflict. While the annexed regulations may (and probably do, more certainly in international armed conflict) represent customary international law, it is not clear whether Congress incorporated them into the WCA on that basis.
Reposting without links to avoid the moderation…
Peter and HLS,
I’m sorry, but the text of HR art. 23[h] is absolutely unambiguous, and the title of the section is utterly irrelevant to the fact that the standard was incorporated into 18 USC 2441 by the Expanded War Crimes Act of 1997 as an expression of customary law; see the legislative history HERE. Note that the US statute incorporates only HR arts. 23, 25, 27, and 28; it does not incorporate HR arts 1 or 2, nor does it incorporate Hague IV 1907 itself. It simply says that ANY violation of those four articles is a war crime, period. The text is plain to anyone who actually bothers to read it.
Here, the case could not be more clear: the Bush administration spent seven and a half years arguing that these detainees have absolutely no rights or legal recourse whatever, and the military commissions were plainly intended to prevent them from ever seeing a legitimate military or civil court. You can fabricate all the phony excuses you want, but the military commissions displayed criminal intent from the start, and have functioned as a criminal enterprise ever since. It isn’t even remotely arguable that the commissions are lawful. Indeed, the outrageous post facto attempts to legitimize them via the DTA and MCA are BOTH strictly unconstitutional.
Why? Because they are both clearly post facto laws intended to implement a form of blank check attainder, whereby the President is able to declare accused criminals non-persons without the normal rights of accused criminals by fiat. The sheer hypocrisy, dishonesty, and weak-minded stupidity of it all is just appalling.
And where the White House, DoD, and DOJ have been involved, it was strictly CRIMINAL in exactly the same sense that the Nazi “Night and Fog” decree was criminal.
What laws you ask HLS?
Just all of the laws that actually apply to the facts.
There’s the Martens Clause of Hague IV:
“According to the views of the High Contracting Parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war, as far as military requirements permit, are intended to serve as a general rule of conduct for the belligerents in their mutual relations and in their relations with the inhabitants.
“It has not, however, been found possible at present to concert regulations covering all the circumstances which arise in practice;
“On the other hand, the High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders.
“Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”
There’s no doubt about what represents our understanding of the usages of civilized people, it’s our own laws, and gee — when exactly did you lawyers become so utterly contemptuous and dismissive of US laws??
You can look at the very first treaty we ever signed on the subject (the Treaty of Amity and Commerce with Prussia) and find the basic principle: you treat your enemies before the law the same as you treat your own. You can look at Geneva 1949 III and IV, and you can look at the IMT Charter.
There isn’t anything unclear about this. The Military Commissions are unlawful ad hoc procedures specifically intended to deprive the detainees of rights and due process in order to prevent them from getting a fair trial according to the standards of our “regularly constituted tribunals” — the art. III courts and the military justice system. And why??
Because people who swore oaths to faithfully execute our laws had nothing but contempt for those laws and preferred to operate like Nazis.
The ” military commissions” are just as criminal as criminal gets and there isn’t any way to rehabilitate them other than to SHUT THEM DOWN and PROSECUTING the people responsible for setting them up and operating them for their MANY CRIMES. That is what the law demands: these people are criminals who committed their crimes in direct violation of their oaths as public officials. The apologists can take all their gooey rhetoric about conscientious officers just doing their best to protect America and shove it:
These people were subversive derelicts who turned their backs on their duty in order to commit crimes we once executed Nazis for committing. This stuff was disgraceful form the start, and now it’s become grotesque. I read these op-eds and posts by apologists and want to VOMIT from the sheer unmitigated dishonesty, stupidity, and FAKE PATRIOTISM of the malicious degenerates who write them.
Facts are facts. 1 + 1 = 2, not 0 or 3.
You people are defaming both our military and civil courts, both of which are among the finest courts that have ever existed.
And if you don’t even believe in the law, why the hell did you become lawyers??
To make a lot of money by using the law as a weapon to rob people maybe??
I REPEAT:
THE MILITARY COMMISSIONS ARE ILLEGAL PURSUANT TO 18 USC 2441(c)(2).
I must confess to a Scalia-like mistrust of legislative history in determining the meaning of a statute. This is particularly the case when the WCA provision regarding the Geneva Conventions punishes grave breaches of those conventions “or any protocol to such convention to which the United States is a party“.
There seems to be little logic in requiring the U.S. to be a party to a protocol as a condition to punishment if its terms are incorporated as customary international law. The HR reference in the WCA is more generously worded and does admit of the broader reading that Charles suggests is supported by the legislative history.
One last thought though. Why wouldn’t the later-in-time Military Commissions Act supersede the WCA? In other words, when there is an irreconcilable conflict between laws passed by the same legislative body, the later-in-time usually provides the rule of decision for the courts. Additionally, later-in-time domestic legislation prevails over prior, inconsistent international obligations in U.S. law. Even if Charles is correct that some of the MCA constitutes a war crime under customary international law (only if actually implemented), that does not mean it is the case as a matter of U.S. domestic law. I note here that Congress excepted MCA military commissions from the Article 21, UCMJ requirement to comply with the laws of war…the Article relied upon by the Hamdan plurality to declare the President’s military commissions order invalid.
As I note above, and elsewhere, I believe there are some serious legal issues to consider regarding certain aspects of the MCA. I just don’t think labeling the Congress that passed the MCA or the prior administration as subversives or Nazis helps to resolve them.
My best to all.
*sigh*
One of my law professors once told my class, “Whenever a judge or lawyer says something is ‘clearly’ or ‘plainly’, it isn’t.” My guess is he would have a similar low opinion of the value of capital letters as a persuasive tool.
I don’t feel I’m being dismissive or contemptuous of our system of laws, nor defaming the courts by suggesting (rather politely, I thought) that the existing flaws in the military commissions as constituted did not rise to the level of a war crime under 18 USC 2441. Perhaps we should take a cue from the original poster’s point that “overblown rhetoric… does more harm than good.”
Peter and John, one simple sentence from Charles Gittings’s bio provides all the context one needs for his remarks.
And I quote from Charles’s website, “On 9/11/2001, it was immediately obvious to me the world was facing a crisis on the order of 1914 or 1939, and that the greatest danger by far was the Bush administration.”
I’ll let that sentence speak for itself.
Can somebody please explain something to me. Whether the U.S. allows hearsay or not is a relatively minor matter. I say minor as a point of reference in comparison to the massive human rights violations committed by Russia in Chechnya. However, this post has generated 12 comments while the post on Russia by Professor Borgen generated one.
I have gone back and forth with many of you as to whether you have some anti-American bias. I don’t want to re-argue those points. But this does show that many of you are far, far too America focused. There is a big, bright world of gross human rights violations, go out and explore it.
NSD,
This is a blog about IL and, naturally, largely populated with leftists. Criticizing America (oh, and must not forget Israel) is their raison d’être.
Why criticize countries that really do horrible stuff, and, you know, imprison or kill their critics?
America’s new slogan, pace NSD and HLS: “America, Not As Bad As Everyone Else!” Maybe we should put that on our currency.
Professor Heller
Decent zinger, nice with the currency, made me smirk.
But, doesn’t answer the question, why 14 posts on hearsay in military commissions and 1 post on Russian actions in Chechnya?
This may just be me, but if I had to choose how to spend my valuable time, I would try to get that whole Russian thing worked out, because it seems that would, you know, reduce a lot of human suffering. Hearsay in U.S. military commissions … important but I would trade that to end all the horribles outlined by Professor Borgen.
Again, I invite you to put on your “Prof.” hat and let me know what I am missing.
NSD,
Perhaps the volume this post generated reflects the importance of the U.S. setting a global example regarding the rule of law. Talk to almost anyone who has done field work with the International Committee of the Red Cross and they will tell you that it matters. The farthest reaches of the world remain acutely aware of what we do. Beyond that, my comments relate to the fact that the domestic incorporation of IHL is where I spend a great deal of time in my scholarship.
I can assure both you and HLS that I am not anti-American in any way, nor am I leftist. America’s doing the “right thing” is very important to me given that I have spent almost 23 years of my life in service to her (though I here feel the urge to once again say that my views to not reflect the views of the U.S. government or any department or agency thereof).
HLS,
HA — all that tells us is that I had a lot better understanding of reality back in 2001 than you do right now.
Did you figure out an excuse for art 23[h] yet?
Did you even try?
Well don’t strain yourself, I’m about to discuss it with John.
TNSD, the issue is very unlikely to be one of bad faith or anti-Americanism. This is a reasonably common phenonemon in fact. It can be seen when some of the most heated debates on Kos are about whether a given Democrat is a ‘real’ Democrat or a sell-out, for example.
It is common because there is not that much to say when everyone is in varying shades of agreement, it is only disagreement that calls us to express ourselves (although on a site such as Kos’, people are often in furious agreement as to eg how bad Bush is – this blog may have slighlty more measured commenters, with one notable exception).
In the immediate context, most people here (not I) are not only measured people but ILers – what can they meaningfully add on Chechnya except to agree how bad it is? Russia doesn’t care about the application of IL and nor do the Chechens and nor does any party even remotely likely to be in a position to do anything. IL is largely irrelevant in Chechnya, except as witness and maybe a yardstick of sorts.
And obviously very different circumstances exist here in a country of laws and lawyers and with respect to the procedural rules governing such exotic trials as these.
John,
I have no quarrel with you. My ire is directed at others.
Charles,
You are simply beyond the pale. That on 9-11, the day that terrorists struck, it was obvious to you that “that the greatest danger by far was the Bush administration.”
It wasn’t the planes flying into buildings. It wasn’t Osama bin Laden.
No, you had such amazing foresight to see the terrorist acts as mere distraction from the true threat — Bush. That is amazing.
Bush hadn’t set up military commissions. No one was at Guantanamo. No wars in Afghanistan or Iraq. No targeted killings. No detainees.
None of the policies which you object to had been formulated or implemented. And yet, you knew that Bush was the threat.
You are sick, and I’m through with you.
John,
“I must confess to a Scalia-like mistrust of legislative history in determining the meaning of a statute.”
But you’re missing something completely obvious. I didn’t bring up the legislative hisory to determine the meaning of the statute — I asserted the plain meaning of the statute and mentioned the legislative history because it deciseively refutes the fraudulent sophistry the apologists use to nullify the the statute out of existence.
“This is particularly the case when the WCA provision regarding the Geneva Conventions punishes grave breaches of those conventions “or any protocol to such convention to which the United States is a party”.
“There seems to be little logic in requiring the U.S. to be a party to a protocol as a condition to punishment if its terms are incorporated as customary international law.”
Well the protocols have not in fact been ratified by the US, and it is controversial as to whether or not they are in fact customary law. Here again the text is plain, and I don’t rely on the protocols at all. Geneva 1949, the IMT Charter, and Hague IV 1907 are what I rely on.
“The HR reference in the WCA is more generously worded and does admit of the broader reading that Charles suggests is supported by the legislative history.”
The HR reference is in fact absolutely clear: it simply and unambiguously incorporates certain prohibitions by direct reference without qualification or exception. It states a list of acts that are war crimes whenever and wherever committed by or against US nationals or service members, PERIOD.
“One last thought though. Why wouldn’t the later-in-time Military Commissions Act supersede the WCA? In other words, when there is an irreconcilable conflict between laws passed by the same legislative body, the later-in-time usually provides the rule of decision for the courts.”
Because Congress doesn’t have the authority to revoke or nullify a treaty in force by enacting a statute that violates the treaty. Geneva can only be “denounced” after one year advance notice to the Swiss Confederation, and remains in force until the cessation of hostilities, including the repatriation of all prisoners. If the MCA purports to immunize or nullify a grave breach, it thereby constitutes a grave breach in and of itself, and although Congress enjoys immunity for their legislative acts under the Constitution, they enjoy no immunity at all under Geneva 1949, the IMT Charter, or Hague IV 1907.
And beyond being a clear violation of those treaties, the MCA is also unconstitutional.
“Additionally, later-in-time domestic legislation prevails over prior, inconsistent international obligations in U.S. law.”
I don’t buy such breezy dicta. The proof’s in the pudding, and the particular facts of each case matter. I’ve been looking at this stuff in DOJ’s briefs for seven years now. If you want to get into the brass tacks on some particular aspect, I’ll be happy to oblige.
“Even if Charles is correct that some of the MCA constitutes a war crime under customary international law (only if actually implemented), that does not mean it is the case as a matter of U.S. domestic law. I note here that Congress excepted MCA military commissions from the Article 21, UCMJ requirement to comply with the laws of war–the Article relied upon by the Hamdan plurality to declare the President’s military commissions order invalid.”
18 USC 2441 and 18 USC 371 are US statutes, not customary law. Neither is the US Constitution or the IMT Charter, though both incorporate expressions of customary law.
In point of fact, my arguments do not depend on customary law — they are based squarely on statutes, treaties in force for the United States, and the US Constitution, all of which contain explicit provisions based on customary law which are intended to establish custom as writ.
I don;t know how much yuo know about formal logic or linguistics John, but I have to ask:
Just how much of the law do you want to nullify anyway?
You may not realize it, but you’re treading perioulously close to nullifying all of it, which is of course exactly what Cheney and Addington set out to do.
“As I note above, and elsewhere, I believe there are some serious legal issues to consider regarding certain aspects of the MCA.”
What serious issue?
“I just don’t think labeling the Congress that passed the MCA or the prior administration as subversives or Nazis helps to resolve them.”
The previous administration are war criminals who have committed a number of crimes that we once executed Nazis for committing.
That is a statement of fact, and you are a serving officer in the US military who has a fundamental duty to address such facts accurately and decisively.
Meaning no disrespect,
Charly
Charles,
You may have the last word regarding the relationship of the WCA to the MCA. Readers can make up their own mids at this point. I simply ecourage you to remain civil and understand that reasonable minds may differ. Ours apparently do in some respects.
As a citizen, you are also entitled to your opinion regarding my duties. I would say that regardless of which hat I am wearing (scholar, lawyer, professor, etc.) they are to responsibly and dispassionately evaluate the applicable law. That includes admitting to a lack of complete clarity where it does not exist. This does not mean that I can ever manipulate the law to meet nefarious ends. Even when clarity is lacking, I must speak clearly to what I believe the law requires — but only when giving advice, representing a client or taking a position in a scholarly publication.
I do not – indeed, could not — here speak in an any official capacity. I am engaged in academic discourse on my own time in my capacity as a U.S. citizen. Please ensure you understand that both now and in the future.
HLS,
Oh baloney, I just understand this stuff a lot better than you do, mostly because you aren’t evne trying.
I’m a systems analyst, and the first thing a systems analyst worries about when the crap hits the fan is the worst case scenario. In this case, my basic assumptions on 911 were:
The strategic aim of the attack was to provoke exactly the sort of reaction it got.
The Bush administration was predisposed to overreact in exactly the ways that they did.
We now have seven and a half years of evidence that confirms I was exactly right about the second point, and the fact that you didn’t understand what I said is purely a function of your own prejudices and ignorance.
Get it straight: while George Bush was in office, he was the best weapon that Al Qaeda had.
You hear that and immediately assume that it’s a slur simply because slurs are SOP for you neo-fascists, but to me it’s just a statement about the strategic and tactical realities of a war with terrorists, based on years of working out a general theory of such wars starting back in 1987.
And you can make of that whatever you want HLS, but it just happens to be true.
In the here and now, I support Barrack Obama in a way I’ve never supported any politician. I also think he’s made some bad mistakes, like for example, retaining a war criminal like Robert Gates as Sec. of Defense. I’m deeply concerned about the decisions they are making about Gitmo and the detainees and so forth, but also understand that it’s impossible to have a job like POTUS and NOT make mistakes. The trick is to learn from them and limit their effects, and one of the things I like the most about Obama is that he strikes me as a very intelligent man who can admit a mistake and take positive steps to rectify it. He’s a man who wants to do the right thing, not a fool who thinks that everythng he wants to do is right just because he wants to do it.
But that said, by my understanding of things in the here and now is that is literally the case that Barrack Obama is the best weapon that Al Qaeda has, for exactly the same reasons that George Bush was when he was President. That isn’t a statement about Obama or Bush as people, it’s an observation of the strategic and tactical reaqlities of a war with terrorists — the significant difference is that Obama isn’t nearly as easy to manipulate or as dangerously ignorant and confused as Bush was.
That isn’t meant to imply that either Obama or Bush want to help Al Qaeda, it’s just an observation that their mistakes can hurt us a lot more than the direct effects of any terrorist attack. In the event, the mistakes of George Bush and his gang of war criminals hurt this nation and the world more than all the terrorist attacks since 911 combined.
And that is nothing but a sad FACT.
Charly
PS for John Dehn:
So here is the John Yoo OLC spin on 18 USC 2441(c)(2), quoting from a longer article on my PEGC Blog (“18 USC 2441” 2008.10.05):
“With respect to the Hague Convention IV, section 2441(c)(2) criminalizes conduct barred by articles 23, 25, 27, 28, of the Annex to the Hague Convention IV. Under the Hague Convention, the conduct in these articles, like all of the regulations the Annex contains, is prohibited solely as between parties to the Convention. Hague Convention IV, art. 2 (“The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.”). Since Afghanistan is not a party to the Hague Convention IV, no argument could be made that the Convention covers the Taliban. As a non-state, al Qaeda is likewise not a party to the Hague Convention IV. Moreover, Hague Convention IV requires that belligerents meet the same requirements that they must meet in order to receive the protections of GPW, which al Qaeda, and the Taliban do not meet. Thus, conduct toward enemy combatants in the current war would not fall within the conduct proscribed by these articles.”
John C. Yoo, memorandum for William J. Haynes II, MILITARY INTERROGATION OF ALIEN UNLAWFUL COMBATANTS HELD OUTSIDE THE UNITED STATES, OLC (2003.03.14) (“Torture Memo”), at 33, footnote 39.
That argument derives from Yoo’s memos in 2001-2; the memo quoted above has since been rescinded on other grounds, but gives one of the most detailed expressions of the DOJ arguments regarding §2441(c)(2). A major defect is that §2441(a) and (b) provide jurisdiction whenever an offense is committed ‘inside or outside the US by or against a US national’, not ‘whenever such an offense would violate a treaty in force for the US’; and while the other three sub-sections (including (c)(3) as originally enacted) all make specific reference to treaty status, §2441(c)(2) does not.
A second point is that any determination of whether or not H.IV itself applies to a particular case requires, as Yoo says above, “that belligerents meet the same requirements that they must meet in order to receive the protections of GPW,” and under H.IV those requirements are stated in arts. 1, 2, and 3 of HR, not the convention proper. Hence, had the intent of Congress been what Yoo claims, they would have had to list HR arts. 1, 2, and 3 in addition to the four listed by the statute. The statute is plainly being misconstrued, because (c)(2) clearly adopts the four listed articles of HR by direct reference without regard to the status of H.IV.
Just as telling is the fact that the Nazi defendants at Nuremberg raised exactly the same argument Yoo does, but the judgment of the tribunal held that HR had the force of customary law (the tribunal’s ruling on that point is quoted in full in the notes below).
So contrary to the administration’s arguments, 18 USC 2441(c)(2) has full force without regard to the treaty status of H.IV, and HR art. 23[h] states:
“In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.”
While HR art. 23[i] states:
“A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent’s service before the commencement of the war.”
The significance of 23[h] to the habeas cases is obvious: the express purpose of the government from the outset has been to deny the detainees any rights at all. The significance of 23[i] to the government arguments regarding their need for information extracted by systematic abuse and torture is equally apparent. These are crimes pursuant to 18 USC § 2441(c)(2), and the role of Mr. Yoo’s memos as pretexts for those crimes is absolutely clear.
And there are now four decisions which confirm that the administration’s detainee policies are in violation of 18 USC § 2441(c)(2): Boumediene (detainees have the right to habeas); Hamdan (Gitmo military commissions are illegal; and the DDC opinions by Judge Green in In re Gitmo (5th amendment protects all detainees), and Judge Robertson in Hamdan (detainees have POW status under GPW arts. 4-5).
Charly
PS #2 to John Dehn,
Re the DTA and MCA being unconstitutional, see this article on my blog:
“Boumediene and 28 USC 2241(e)(2)” (2008.09.29)
And I have something to say to your last post too, but I have two doctor appointments this morning and will have to get to it later.
Charly
John,
So regarding your last comment, my brief in the Guantanamo Bay Detainee Cases in the US District Court for the District of Columbia is available here:
http://www.pegc.us/archive/DC_Gitmo_Cases_JHG/CBG_gitmo_amicus_20041012_full.pdf
And includes my earlier brief in the Hamdi case before the US Supreme Court as an exhibit.
You don’t have to read all of it, but note this…
“As stated [above], the interest of Amicus in these cases began on November 13, 2001, upon first reading the PMO, it being immediately apparent that the intent of that order was to circumvent compliance with the Geneva conventions and other laws enacted since the end the Second World War. I began with nothing more than a general commitment to advocate opposition to the PMO, but when the White House issued the “Fact Sheet” on detainees of February 7, 2002 it was apparent to me that the government was in fact violating the Geneva Conventions, and from that point forward I have considered my effort a volunteer criminal investigation to uphold the laws of the United States in the public interest.
“I claim no powers beyond those of a citizen of the United States, nor any authority beyond that which reason confers, but those suffice. Realizing that I would have to be absolutely on the level to have any chance of success, I voluntarily swore myself to defend the Constitution and laws of the United States, to be strictly impartial with regard to the facts and the law, and to act only in the public interest to the very best of my abilities. I have endeavored to live up to that oath ever since.”
Gitmo brief at 7.
And this was the major point of the brief:
“Therefore, and may it please this honorable court, on information and belief, and subject to the penalties for perjury in the U.S Code, amicus hereby solemnly affirms:
(a) That there is probable cause to believe that Respondents are engaged in a conspiracy to commit war crimes pursuant to 18 USC § 2441 (War crimes), 18 U.S.C. § 371 (Conspiracy to commit offense or to defraud United States), GPW, GC, CA3, and HR.
(b) That the petitions in these cases exhibit prima facie evidence of those crimes, including, but not limited to, unlawful detention, inhumane and degrading treatment, extra-judicial punishments, denial of lawful due process, unlawful coercive interrogations, unlawful deportations, and trials before unlawfully constituted tribunals.
(c) That the only purpose of the Respondents and counsel for Respondents in these cases is to deny the Petitioners / Plaintiffs their lawful rights and due process, which constitutes an offense pursuant to 18 USC 2441(c)(2) per HR art. 23(h).
(d) That in addition to the Respondents named herein, Richard Cheney, the Vice President of the United States, and John Ashcroft, the Attorney General of the United States are principals or co-conspirators in these crimes.
(e) That all of the criminal acts alleged were committed under a false color of authority in the PMO by the direct authorization of the President.”
Gitmo brief at 8-9.
Now I set out on my project with a clear understanding that I couldonly tell the truth as best I understood it and let everyoine else think for themselves. It isn’t for me to tell you your duty, andit hard enough judging my own.
But I NOT just acting as a citizen here, but equally as joint sovereign pursuant to the administration of MY LAWS, and the interesting questions here are these…
What right does the victim of a crime have to aid, rescue, law enforcement, and prosecution of the perpetrator?
What warrent exists for anyone in the military to aid abet or ignore a crime?
It’s illegal to obey an unlawful order, and it’s a breach of duty to act on an order you don’t understand.
I understand you’re not acting in your officail capacity when you post to a blog, but I also understnad that you are honor bound to the service of this country by your oath, just as I am by my purely voluntary and unofficial but nevertheless absolutely binding oath upon my personal honor.
And what I was trying to say to you was just this —
Lead me, follow me, or get out of the way.
And I only say it becasue I think you are a good enough officer and lawyer to reconsider the facts and do the right thing.
Yet I’ve thought that aboutalot of lawyers and officers over the last seven years, and everyone just seems to obstiantely cling to political spin to the exclusion of facts or law.
And it’s damned sad to see. It’s like thinking will just get you in trouble so you better not.
Why doesn’t reason alone suffice?
Still meaning no disrespect,
Charly