[Vision2020] Habeas Corpus at Bagram

[Andreas Schou]

On Wed, Apr 29, 2009 at 10:55 AM, lfalen <lfalen at turbonet.com> wrote:

> Andreas
> 1. One might start by changing the definition of torture or by making
> several categories of torture.


Actually, until we provided retroactive immunity to US torturers through
revisions to the War Crimes Act, our treatment of prisoners were covered
under the War Crimes Act. We have not provided such retroactive immunity
under either our international obligations or under otherwise existing US
law.


> 2. The Constitution not the UN should be our highest authority.


Treaties, when ratified, have the weight of law. Actually, slightly higher
than other laws. This is because for all intents and purposes, a ratified
treaty *is* a law. The UN Convention on Torture was signed by Ronald Reagan
in 1988 and became the law of the United States. That aside, US law
independently prohibits torture. 18 USC 2340 criminalizes torture committed
"under color of law." Its definition is relatively broad:  “[T]orture” means
an act committed by a person acting under the color of law specifically
intended to inflict severe physical or mental pain or suffering (other than
pain or suffering incidental to lawful sanctions) upon another person within
his custody or physical control;"

Waterboarding, sensory deprivation, and sleep deprivation fall under 18 USC
2340(2)(D), which criminalizes "[p]rocedures calculated to disrupt
profoundly the senses or the personality."  A profound disruption in the
senses and personality -- in particular, to break the will of our victims --
was the particular intention of our interrogators and those that directed
them. Further, waterboarding was also found to be torture under US law in
the only relevant case on the subject, U.S. v. Lee (744 F.2d 1124) in which
three Texas deputies waterboarded a murder suspect in order to obtain a
confession. You're most likely to find the affirmation (on other grounds) by
the Fifth Circuit if you search for it; the District Court opinion is
actually far more relevant.

Incidentally, on the subject of the lawyering that went into the relevant
opinions neither US v. Lee nor the Japanese waterboarding cases were
discussed in any detail in the so-called "torture memos."

3. I think one should listen to all side and try to get a balanced picture(
> Warren type Commission)


You're saying that the FBI investigation, the Taguba Report, the internal
memoranda of the OLC, the testimony of the interrogators, and the admissions
of the Bush Administration that the President himself authorized
waterboarding were insufficient? That we need yet more investigation? And
that we should take seriously the protestations of people accused of crimes
similar in severity to murder?

Whether or not we actually legalize torture, torture was a crime at the time
it was committed. OLC opinions provided in bad faith -- as the OLC opinons
legalizing torture must have been -- do not bar prosecution. You say we're a
nation of laws. But what effect do those laws have when the President,
instead of repealing those laws and withdrawing from the obligations,
decides to evade and blithely violate them?

-- ACS
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