News Torturing Democracy" Documentary: Must See on PBS & Bill Moyers

[mheslep]

The waterboarding incidents (three) as a fairly small part of abuse. Most of it occurred by the military overseas, with more than 100 deaths of detainees, probably in violation of the field manual, and several prosecutions have resulted.

Deborah N. Pearlstein, author, is an attorney, scholar is Woodrow Wilson:
http://www.humanrightsfirst.info/pdf/06221-etn-hrf-dic-rep-web.pdf

I don't know how this compares with other wars, other than anecdotally; I'm aware of incidents in every major US war of this century where abuse of prisoners occurred.

 

[TheStatutoryApe]

The logic of your argument is that in a war the GC applies to everyone, all the time, until a court of law says otherwise, period. This is not what is stated in the Articles. Your definition obliterates the clause "Should any doubt arise...". Let's stick to what is said in the Articles, and not wonder into 'essentially' and other redefinitions.

You are arguing against a single point as opposed to the totality of my argument. Note please, again, that Afghanistan is a Party to the Geneva Conventions which means that the articles automatically apply unless it can be demonstrated they have breeched the rules of the Convention where upon the protections will be lifted. I believe the language of the GC provides that any challenges to application be made before "a compotent tribunal".
Please note Article 1

The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.

Would you care to endevour to explain what circumstances one might come up with to excuse a lack of respect for the Convention with regard to its signatories which would fall outside the set of "all circumstances"?

I believe my argument appeals to, rather than obliterates, the "Shall any doubt arise..." clause in article 5. Your seeming insistence on strict adherence to article 4 definitions would seem to be the argument which ignores that clause.

And it does not state 'court of law', it states tribunal.

My apologies. I apparently was under the mistaken impression that a "tribunal" is a court of law.

According to you then. How many were tortured?

I believe that the topic of the thread is the Bush Admin's willful ignorance of the law. I was pointing out that the GCs proscription against torture is not the only law allegedly broken. Pointing out that only a few detainees may have been tortured (depending on definitions) in no way reduces the totality of the issue.

 

[Al68]

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

"Belonging to a category" does not equal "cannot torture". Geneva forbids severe torture in some but not all circumstances. For example not in the case of an enemy that doesn't observe Geneva.

There seems to be a general confusion between whether an individual "belongs to a category", whether Geneva applies, and whether it forbids torture in a specific case. It is obviously not correct that one thing being true makes the rest true.

Except that Bush's instructions (regs) provided additional protection, which the Supreme Court upheld. There's a reason the treatment of prisoners was challenged on the basis of the President's own regs. Because that's where the protection was. The regs said that (most) prisoners would be treated as if Geneva applied even when it didn't.

 

[TheStatutoryApe]

"Belonging to a category" does not equal "cannot torture".

No but "...shall enjoy the protection of the present Convention..." does.

Geneva forbids severe torture in some but not all circumstances.

Article 13

Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

Measures of reprisal against prisoners of war are prohibited.

I do not see the words "severe torture" used.
And this bit "Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity." would seem to preclude anything resembling torture no matter how strong or watered down a definition you choose to use.

For example not in the case of an enemy that doesn't observe Geneva.

As a signatory Afghhanistan is legally considered a de facto adherent and challenges regarding their adherence must be made legally before determination of guilt. The clause regarding observants of the Convention is in reference to Powers which are not party to the Convention.

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

Edit: I corrected improperly cited sections of the GC in the preceeding comments.

Edit 2:
And further treatment of interrogation practices...

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

 

[Al68]

No but "...shall enjoy the protection of the present Convention..." does.

I agree with that.

I do not see the words "severe torture" used.

I should have just used "torture", since the UN's definition of torture is "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as ...".

As a signatory Afghhanistan is legally considered a de facto adherent and challenges regarding their adherence must be made legally before determination of guilt. The clause regarding observants of the Convention is in reference to Powers which are not party to the Convention.

I agree with that, as it would apply to members of their military. But different groups of people may not adhere, and should be treated separately, ie regular troops should be covered by Geneva even when members of a terrorist group within are not. We shouldn't exempt an entire country from Geneva for the actions of a small group of terrorists.

And whether Geneva applies, which, if any, category applies, and whether it forbids torture in the cases where it applies all depend on each specific case.

What specific case is claimed to be a "war crime" again?

 

[TheStatutoryApe]

And whether Geneva applies, which, if any, category applies, and whether it forbids torture in the cases where it applies all depend on each specific case.

What specific case is claimed to be a "war crime" again?

Neither of us has used the term war crime so I am not certain to what you are referring specifically. I have yet to look up specific definitions of war crimes since I have only alledged illegal activity and not used the label "war crime".

From what I have read and heard in the news most if not all of the detainees have been illegally treated according to the GC (supposing that my arguments are valid). If any person covered by the language of the GC is not accorded its protections until such time as they are deemed by a tribunal not to be covered then they have been illegally handled. The outcome of the tribunal and any conviction for war crimes in no way alters the legality of the treatment they received before the tribunal.

 

[drankin]

Neither of us has used the term war crime so I am not certain to what you are referring specifically. I have yet to look up specific definitions of war crimes since I have only alledged illegal activity and not used the label "war crime".

From what I have read and heard in the news most if not all of the detainees have been illegally treated according to the GC (supposing that my arguments are valid). If any person covered by the language of the GC is not accorded its protections until such time as they are deemed by a tribunal not to be covered then they have been illegally handled. The outcome of the tribunal and any conviction for war crimes in no way alters the legality of the treatment they received before the tribunal.

Who are they, specifically, that were tortured? You say that "what you have heard or read" that most if not all were illegally treated (you mean tortured?). Were most illegally treated/handled? If so, how, specifically? Can you back this up with actual data? Or have been snookered by the media frenzy?

Let's start there.

If you are only talking about a couple of detainees then it would be safe to say that this is not how they were all treated. We may be talking about isolated events that need further scrutiny.

 

[Al68]

Neither of us has used the term war crime so I am not certain to what you are referring specifically. I have yet to look up specific definitions of war crimes since I have only alledged illegal activity and not used the label "war crime".

Sorry, I must have mixed up the threads. What specific case are you alledging was illegal activity and on who's part?

 

[edward]

Again I must repeat that there is much more to this other than just the debate about torture. The documentary mentions dropping leaflets offering money for Arabs.

They fed them well. The Pakistani tribesmen slaughtered a sheep in honor of their guests, Arabs and Chinese Muslims famished from fleeing U.S. bombing in the Afghan mountains. But their hosts had ulterior motives: to sell them to the Americans, said the men who are now prisoners at Guantanamo Bay.

Bounties ranged from $3,000 to $25,000, the detainees testified during military tribunals, according to transcripts the U.S. government gave The Associated Press to comply with a Freedom of Information lawsuit.

http://www.commondreams.org/headlines05/0531-10.htm

Quite apparently in Afghanistan the U.S. just bought people who were turned in for a profit.

 

[TheStatutoryApe]

Who are they, specifically, that were tortured? You say that "what you have heard or read" that most if not all were illegally treated (you mean tortured?). Were most illegally treated/handled? If so, how, specifically? Can you back this up with actual data? Or have been snookered by the media frenzy?

Let's start there.

If you are only talking about a couple of detainees then it would be safe to say that this is not how they were all treated. We may be talking about isolated events that need further scrutiny.

Sorry, I must have mixed up the threads. What specific case are you alledging was illegal activity and on who's part?

http://www.nybooks.com/icrc-report.pdf
There is the report of the International Red Cross.
I am no ones lawyer. I have no access to to personal files on detainees. I have no access to government documents that the general public does not. It is completely rediculous for you to ask me to start making their individual cases right here on this forum for you. There have been several accounts of abuse from several sources. If you want more information on them then look them up. I am no more, and far less, capable of substantiating their claims than they are.

And Drankin, as I have already pointed out torture is not the only thing illegal under the protections of the GC. If you are interested in what the GC describes as illegal treatment then read it.

 

[Al68]

It is completely rediculous for you to ask me to start making their individual cases right here on this forum for you. There have been several accounts of abuse from several sources. If you want more information on them then look them up. I am no more, and far less, capable of substantiating their claims than they are.

I wasn't asking for you to make their cases, just which cases you were referring to. (Or maybe you meant that for drankin?). Thanks for the link, I'll check it out.

 

[TheStatutoryApe]

I wasn't asking for you to make their cases, just which cases you were referring to. (Or maybe you meant that for drankin?). Thanks for the link, I'll check it out.

Sorry, I guess I am still not understanding. My argument primarily refers to detainees taken from Afghanistan and perhaps from Pakistan who are allegedly linked to al Quada and/or the Taliban. I know that others have been taken from other locations and for other reasons. With out trying to look them up I can't really comment and I'm not going to look them up right now.

 

[TheStatutoryApe]

Again I must repeat that there is much more to this other than just the debate about torture. The documentary mentions dropping leaflets offering money for Arabs.



http://www.commondreams.org/headlines05/0531-10.htm

Quite apparently in Afghanistan the U.S. just bought people who were turned in for a profit.

This would border on hiring Mercenaries. Also a no no.

 

[mheslep]

You are arguing against a single point as opposed to the totality of my argument. Note please, again, that Afghanistan is a Party to the Geneva Conventions which means that the articles automatically apply unless it can be demonstrated they have breeched the rules of the Convention where upon the protections will be lifted. I believe the language of the GC provides that any challenges to application be made before "a compotent tribunal".
Please note Article 1

Would you care to endevour to explain what circumstances one might come up with to excuse a lack of respect for the Convention with regard to its signatories which would fall outside the set of "all circumstances"?

Two points.

First, yes Zahir Shah signed the signed the GC in '56. Was he 'Afghanistan'? The 'failed states' legalisms makes an argument about what Afghanistan is, in the sense of the entity that originally signed the GC. The government of Afghanistan that signed the GC no longer even remotely exists. One could even argue that society no longer exists. The Soviets and the Taliban did more than rearrange the furniture. Now, I likely could be quickly persuaded that the failed state construction is not valid, though I don't see that treaties signed by Alexander the Great must be honored because he happened to run the place for awhile. Anyway, as you pointed out earlier, the point is moot: the US signed the GC and must adhere to it regardless of Afghan status.

Second, adherence to the the GC under all circumstances also means adherence to Article 4. Article 4 does not vanish because one signed the treaty. GC signers have long been, for example, summarily executing spies and other out of uniform rogue actors.

... Your seeming insistence on strict adherence to article 4 definitions would seem to be the argument which ignores that clause.

Sorry I don't know what this means.

 

[TheStatutoryApe]

Two points.

First, yes Zahir Shah signed the signed the GC in '56. Was he 'Afghanistan'? The 'failed states' legalisms makes an argument about what Afghanistan is, in the sense of the entity that originally signed the GC. The government of Afghanistan that signed the GC no longer even remotely exists. One could even argue that society no longer exists. The Soviets and the Taliban did more than rearrange the furniture. Now, I likely could be quickly persuaded that the failed state construction is not valid, though I don't see that treaties signed by Alexander the Great must be honored because he happened to run the place for awhile. Anyway, as you pointed out earlier, the point is moot: the US signed the GC and must adhere to it regardless of Afghan status.

So there aren't any signatories to the GC that have rather different governments now other than Afghanistan?
Are there any judicial bodys that have upheld this contention that Afghanistan is no longer covered as a signatory of the GC? Does the US or anyone else not consider the new government put in place to not be covered by the GC? Has the UN invited the new Afghan government to come sign and once again be a GC signatory?

Second, adherence to the the GC under all circumstances also means adherence to Article 4. Article 4 does not vanish because one signed the treaty. GC signers have long been, for example, summarily executing spies and other out of uniform rogue actors.

Sorry I don't know what this means.

I was referring to your comment that I had "obliterated" the "Should any doubt arise..." clause of article 5. I stated that I think rather that I had appealed to it and that you are the one ignoring it with strict adherence to article 4.
And execution makes things a bit difficult. You see you can't really argue that someone has been mistreating a person who is dead. If you ask whether or not the person received a fair trial and found guilty of espionage I am certain you would be told that they had and there wouldn't really be anyone to argue.
Besides, many of the GC signatories have broken the rules in the GC. Not all of those breeches have actually been brought before the attention of a court and dealt with. Not all persons who break the law, even including the ones that are caught, are brought before a court. That doesn't mean that they were not breaking the law.

 

[Al68]

So there aren't any signatories to the GC that have rather different governments now other than Afghanistan?

Sure, the U.S. for example. The relevant thing is whether the current party at war adheres to it. Even if an enemy is not a signatory, it's to our advantage not to preempt their opportunity to choose to adhere to it. So we should treat any enemy as an "adherer" until they show otherwise.

Besides, many of the GC signatories have broken the rules in the GC. Not all of those breeches have actually been brought before the attention of a court and dealt with.

A big reason for this is that taking action against officials for breaches is generally reserved for "serious breaches".

The GC states the kind of breaches that are considered serious: "Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest."

 

[TheStatutoryApe]

Sure, the U.S. for example. The relevant thing is whether the current party at war adheres to it. Even if an enemy is not a signatory, it's to our advantage not to preempt their opportunity to choose to adhere to it. So we should treat any enemy as an "adherer" until they show otherwise.

I believe that Mheslep is pointing out that the government of Afghanistan was effectively removed. The US is not so different as that. The same government, generally speaking, still exists even though the people in office are different. There are arguments that could be made about Afghanistan but I would say they ought to be made in court before their conclusions are acted upon. At least before the UN if nothing else though the US generally does not like to concede anything to the UN.

As far as whether or not a power adheres to the GC that's again not something that ought to be decided by the parties involved. Obviously its easy for one to say that the other did not adhere to the GC and so they no longer need to adhere to the GC in respect to that party. Its particularly easy for a powerful country like the US.

When it comes right down to it seeking out legal loopholes to excuse and continue abusive treatment of detainees is just plain bad form and I hardly believe that it is at all in the spirit of the Geneva Convention.

 

[mheslep]

So there aren't any signatories to the GC that have rather different governments now other than Afghanistan?
Are there any judicial bodys that have upheld this contention that Afghanistan is no longer covered as a signatory of the GC? Does the US or anyone else not consider the new government put in place to not be covered by the GC? Has the UN invited the new Afghan government to come sign and once again be a GC signatory?

I agree the US is obliged to follow the GC in any conflict because the US signed it. Whether or not other countries join the GC does not relieve the US of its obligations, as I understand it. How other individual enemy combatants behave makes a great deal of difference as to whether or not the US is obligated to treat them as prisoners of war, the conditions of behavior being laid out in article 4, and a tribunal is not required for clear cases.

 

[TheStatutoryApe]

How other individual enemy combatants behave makes a great deal of difference as to whether or not the US is obligated to treat them as prisoners of war, the conditions of behavior being laid out in article 4, and a tribunal is not required for clear cases.

If you read the GC you will see that the language through out places the onus upon the detaining power. Article 4 defines guidelines for the detaining power to determine POW status not guidelines for the behavior of the other party to the conflict. The Hague outlines general standards of behavior in war, Geneva outlines only the standard of behavior incumbent upon the detaining power with regard to prisoners of war. The only article that can be construed as to relieve any party to the conflict of their obligation to respect the provisions of the GC based on lack of respect of the other power is if the other power is not a "High Contracting Party". Otherwise article 1 stipulates that the Convention be respected by all partys with regard to one another "in all circumstances".

As for "clear cases" reread articles 4 & 5 remembering that the onus of the entire document is placed upon the detaining power, not the detained.
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4..."
Looking at the relationship of the "any doubt" clause and the "belong to any of the catagories" clause it would seem to indicate that the only "clear cases" not requiring tribunal are those where the prisoner clearly belongs to one of the catagories in article 4.
I believe you will find that commentary and legal precedent both support this interpretation as well as the general rule of thumb taken as granted in most western courts of law usually worded "Innocent until proven guilty".

 

[mheslep]

...As for "clear cases" reread articles 4 & 5 remembering that the onus of the entire document is placed upon the detaining power, not the detained.
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4..."
Looking at the relationship of the "any doubt" clause and the "belong to any of the catagories" clause it would seem to indicate that the only "clear cases" not requiring tribunal are those where the prisoner clearly belongs to one of the catagories in article 4.

Yes, agreed this is about applicability of the art. 4 categories. So then you would agree that not every combatant out of uniform(b), with no military accountability(a), and hiding a suicide bomb under his cloak (c,d) requires a tribunal under the GC? That there are clear, easy to observe cases of Art 4 categories? We may still choose to treat combatants behaving in this way as POWs, but I assert the GC does not always require it.

 

[TheStatutoryApe]

Yes, agreed this is about applicability of the art. 4 categories. So then you would agree that not every combatant out of uniform(b), with no military accountability(a), and hiding a suicide bomb under his cloak (c,d) requires a tribunal under the GC? That there are clear, easy to observe cases of Art 4 categories? We may still choose to treat combatants behaving in this way as POWs, but I assert the GC does not always require it.

It seems that you missed something in my reasoning. You seem to interpret article 5 as referring to doubt of exclusion as opposed to doubt of inclusion. I am holding that it is obviously the latter.

 

[mheslep]

It seems that you missed something in my reasoning. You seem to interpret article 5 as referring to doubt of exclusion as opposed to doubt of inclusion. I am holding that it is obviously the latter.

Yes I think that is our point of disagreement. As a practical matter I think it must be the other way around.

 

[TheStatutoryApe]

Yes I think that is our point of disagreement. As a practical matter I think it must be the other way around.

As a matter of practicality it is probably much cheaper and easier to not honour the GC at all.

"Should any doubt arise as to whether persons ... belong to any of the categories enumerated in Article 4..."

The language is obviously inclusive rather than exclusive. Aside from the convenience of it can you make any argument as to why it should be interpreted the other way around? You realize that an interpretation of exclusion means that all POWs be tried to determine innocence save those that are apparently clearly guilty?