Bush's book

[elder999]

Finally, for those interested, Marc Thiessen in his book discusses <snip!>.

Why would anyone be interested in anything a man who would make such an obvious error of fact, or deliberate lie, as to have someone disclosing information that led to an arrest two years before he was captured?

Well, the book's pretty bogus.

Ali Saleh Kahlah al-Marri was arrested in a routine traffic stop in Peoria, Illinois, in December of 2001, and transferred to New York as a material witness. It was ALi Soufan (FBI guy who says torture doesn't work) who's interrogation of another terrorist led to charges against al-Marri, in 2002.

All of that doesn't matter, though, because KSM WASN'T CAPTURED UNTIL MARCH,2003.
not going to even bother anymore....

 

[5-0 Kenpo]

The next question as to Bush's criminal culpability in this is whether there was a violation of the Geneva Convention. Everything that I have read, including a reading of the Treaty itself, shows that non-aligned entities, ie., terrorists, garner no protection from it.

So in that sense, to my understanding, there is no criminality there either.

The next facet is his criminal liability under U.S. Federal Law. Let's delve into that in our next episode. That one will be tricky as we may have some jurisdictional issues.

 

[Bruno@MT]

Well, I have to go so I will leave this idea out there. The terrorists just tried to blow up cargo plains. If we capture some of them I hope that we use some really, really stern questioning to get these hardened religous fanatics to give us the information we need to stop them. I know, maybe we should take the advice of Monty Python's flying circus because noone can withstand...the Comfy Chair. May the next victims of terrorism rest in peace.

You are intentionally palying dense. It is not about torturing terrorists, the whole debate is about torturing anyone who anyone thinks might have something to do with terrorism or might have just hung out with the wrong people.

 

[Bruno@MT]

The next question as to Bush's criminal culpability in this is whether there was a violation of the Geneva Convention. Everything that I have read, including a reading of the Treaty itself, shows that non-aligned entities, ie., terrorists, garner no protection from it.

So in that sense, to my understanding, there is no criminality there either.

The next facet is his criminal liability under U.S. Federal Law. Let's delve into that in our next episode. That one will be tricky as we may have some jurisdictional issues.

I have had this discussion with Don before so I could dredge it up if I had to. Basically, some of the stuff in the geneva convention deals with aligned parties (like terms for release or culpability, locality of where one was captured, etc) and some parts cover just everybody / everybody else.

In that regard it is like the US constitution, which sometimes covers 'Americans' specifically, and in other places covers 'Everyone'.

In the discussion I mentioned, between the various articles of the Geneva convention, it boils down to the fact that torture and abuse are always wrong, no matter the specifics. If you catch a saboteur (and even that is subject to specific definitions) on your own ground at wartime you only get to execute them, not to torture them. They are entitled to humane treatment right until the moment where you kill them.

 

[5-0 Kenpo]

I have had this discussion with Don before so I could dredge it up if I had to. Basically, some of the stuff in the geneva convention deals with aligned parties (like terms for release or culpability, locality of where one was captured, etc) and some parts cover just everybody / everybody else.

In that regard it is like the US constitution, which sometimes covers 'Americans' specifically, and in other places covers 'Everyone'.

In the discussion I mentioned, between the various articles of the Geneva convention, it boils down to the fact that torture and abuse are always wrong, no matter the specifics. If you catch a saboteur (and even that is subject to specific definitions) on your own ground at wartime you only get to execute them, not to torture them. They are entitled to humane treatment right until the moment where you kill them.

I would be interested if you could point me to some specifics which say that, because I can't find any. The Geneva Conventions speak specifically to who is protected. It does say that when the status of the captured party is unknown, they are to receive humane treatment. But what does it say about when the party is a known combatant, with no government affiliation for his actions, and had not surrendered but is captured on the battlefield or after an investigation?

In fact, let's look at the Third Convention, Article 5:

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Without listing the specifics of Article 4, none of the "terrorists" fit into that category. Which means that the Convention does not apply to them and they are not entitled to their protections.

Even looking at the provisions of the first and second Conventions, they speak specifically to who the Articles of those Conventions apply.

But let's look at your example, that of the saboteur. As you say, there is a very specific definition of such a person. The question is what classification do the terrorists which we are currently fighting fall under. There is no "general" provision which covers everyone.

In fact, one of the interesting aspects of the Geneva Conventions says that the Signatory Member is only obliged to abide by them if the non-signatory member abides by their provisions as well. Now, I think that the cutting off of the heads of captured U.S. soldiers would count as them not abiding by the provisions of the Geneva convention, even if we could classify them in some manner consistent with that of a nation-state. Therefore, I don't see how Bush violated any provision of the Geneva Conventions.

 

[Bruno@MT]

Ok hang on...

I started copy-pasting into this post but it is getting too complex since Don and I exchanged words over multiple posts with quotes.
My point starts here:
http://martialtalk.com/forum/showpost.php?p=1256336&postcount=12
and ends with Don in post 15 saying that he still thinks it is wrong.

Please read those couple of posts if you want to expand on this topic. My main arguments are that if Art 4 does not apply article 3 will by virtue of these people being detained.

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

and

Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

and

'including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause'

 

[Tez3]

We are not terrorists because we are not intentionally targeting civillians. We would stop fighting if the terrorists stopped killing innocent people. If we stop fighting they will just keep killing innocent people. They use real torture to enforce Shariah, killing non-believers, gays, Hindu's,christians, Jews etc. If you cannot see the difference between a free democratic nation defending itself, then my original example holds. No police officer should ever use violence to stop a criminal act, once he used violence he would be no better than the criminal. Any fire fighter who burned forest to create a fire break in a national forest would be no better than any other arsonist and should be prosecuted to the fullest extent of the law. Any doctor who intentionally took a knife to cut a seriously wounded person should be prosecuted for attempeted murder. Isn't that what murderer's do, cut people with sharp objects?

You are being very naive and I don't think you have a grasp on what the situation is tbh. You also have little knowledge of the law which although we have differences between our countries many parts are the same.

Yes, the surgeon cutting someone is assault but like boxing, sparring, MMA etc is it however it is not considered illegal as it's between consenting adults. Both parties are consenting to the procedures, fights etc. Arson isn't just setting fire to something, there has to be a context which makes it illegal. Police officers are allowed by law to use reasonable force in the course of their duties.

Intelligence is everything in the war against terrorism, physical intel not just the electronic type, hearts and minds ops plus talking, endless talking will stop the terrorists. We've had experience in this in several countries, Oman, Malaya, Cyprus, Northern Ireland, Aden, Kenya in recent times. My other half was in Oman in the 1970's fighting terrorists. We've both been in N Ireland and my shift partner was in Aden. Hearts and minds and Intel will win over crude torture which is all water boarding is, if you've got to the point where you are considering waterboarding etc you've lost anyway.

One must be judicious in choosing who to 'capture', don't imagine for one minute that all the detainees were captured on the battlefield shooting at the Allies. Many were reported on by neighbours or work colleagues, shades of the Gestapo, the Stasi etc there. Not a reliable way to pick up terrorist suspects. Things do escalate, the laws that are enacted to protect will end up strangling you. Look at history.

Waterboarding and other tortures are the response of scared people towards that which scares them. The terrorists expect to be tortured even welcome it as martyrdom and as justification for their actions. You catch more flies with honey than you do vinegar so don't do something that is morally and legally repugnant and also useless.

There was torture by the British in Northern Ireland, it was never for infomation it was for the revenge, troops were killed so the terrorists suffered, there wasn't evidence to take them to court so they were hurt instead. They also tortured ours for the same reason. Nothing to be proud of to be sure but it did feel good at the time, getting your own back.
I think you are advocating torture for the same reasons, that of getting your own back. You need however to look higher and further than this.

 

[WC_lun]

Its ironic that some of the best intelligence we have recieved from a prisoner came after the prisoner was given sympathy for his diabetes and cookies. He was expecting to be tortured. Instead he was treated like a human being so he gave up his information. According to LEO and inteligence professionals, this was text book on the best way to get information.

I do not agree with the assessment that we can torture and not violate the Geneva convention. However, even if it was not a violation, we as a country and a civilized people know it is wrong. All the justifications in the world does not remove the stain that we, as a country, allowed and then condoned the use of torture. When we committ actions that we know are wrong because we are afraid, the terrorist have won. It gives me a sick feeling.

 

[Tez3]

Police detectives in a great many countries aren't allowed to torture suspects and while there may be a case or two of beatings etc the vast majority of confessions etc are obtained by patience and good interrogation techniques that are proven to work which frankly torture rarely does. The suspect may give up 'the truth' eventually but there's no way to verify that what they say is in fact the truth or an attempt to stop the torture. Unless you are sure you have the top person in a terrorist organisation, the suspect will know little of immediate value, that's how the terrorist cells work for safety. What does work with the lower ranks is patient conversation which brings out information they think is of little use but can help Int officers piece pictures together with info gained from other people and places. Even sitting listening to a terrorist boasting about exploits is worthwhile. A quiet interrogator will learn so much more than a torturer.

We do have to take the moral high ground here in the use of torture, we can't justify it by saying it works, it doesn't, we can't justify it by saying the other side used it so we should. We are supposed to be the good guys we can't be that and look ourselves in the eye if we torture and abuse prisoners. Sure it's frustrating seeing people who have committed terrorist acts being treated with dignity but it's what makes us better, it's what makes us civilised, we are supposed to be the ones who value life. We have to live up to standards not drop to the terrorist levels of inhumanity.

 

[5-0 Kenpo]

If, as you post, they are not prisoners of war, then the Third Geneva Convention does not apply to them.

With regard to the Second Geneva Convention, they are not maritime personnel, so it does not apply.

The Convention that would seem to most appropriately apply would be that of the First Convention. They spell out, in Article 13, to whom it applies:

Art. 13. The present Convention shall apply to the wounded and sick belonging to the following categories:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civil members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions in international law.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

None of those conditions apply to those specific individuals who were waterboarded, therefore they do not receive protections from the Convention.

The problem as it relates to Article 3 (typically referred to as Common Article 3, as it is in all of the separate Convention treaties) is that does not apply in this situation. You have only partially quoted it. Here is the part that you have left out:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions…

From the Red Crosses website regarding Article 3:

Article 3, common to the four Geneva Conventions, marked a breakthrough, as it covered, for the first time, situations of non-international armed conflicts. These types of conflicts vary greatly. They include traditional civil wars, internal armed conflicts that spill over into other States or internal conflicts in which third States or a multinational force intervenes alongside the government.

None of those situations apply to this conflict, nor to the particular individuals who were waterboarded.

You quote the following Article from the Fourth Convention:

Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

This Article is intended to apply to civilians, not combatants. In fact, the official title of this treaty is:

Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.

But let’s say, for the sake of argument, that this Convention could in some way apply to international terrorists. I then point you to a more complete reading of Article 4:

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.

Let’s examine this. All three of the subjects who are known to have been waterboarded are citizens of ratifying countries of the Genva Conventions, two from Saudi Arabia and one from Pakistan. Currently, both of these states have normal diplomatic relations with the U.S. Therefore this Convention does not apply to them.

Suffice it to say that none of the individuals who were waterboarded meet the criteria cited within any of the Geneva Conventions. Your best bet would have been to use Protocol II of the Convention. The only problem with that would be that although the U.S. is a signatory to it, it has not been ratified, therefore the U.S. and it’s personnel cannot be bound to it’s articles.

 

[Bob Hubbard]

Tangenting here. Bear with me. I'll follow up with more shortly.
Lets assume that it's illegal in the US.
The action was performed by a US citizen, but in a foreign nation.
Who's laws apply? US or the foreign nations?

Lets assume it's illegal in the US, but NOT in the country where it was done.
Who's laws apply? US or the foreign nations?

 

[5-0 Kenpo]

Tangenting here. Bear with me. I'll follow up with more shortly.
Lets assume that it's illegal in the US.
The action was performed by a US citizen, but in a foreign nation.
Who's laws apply? US or the foreign nations?

Lets assume it's illegal in the US, but NOT in the country where it was done.
Who's laws apply? US or the foreign nations?

Not tangenting at all. In fact, I was gonna speak to this as soon as we got through all of the international law stuff. But, here is the U.S. Code that applies specifically to torture in the context of your question.

U.S. Code, Title 18, Part 1, Chapter 113C, Section 2340A:

(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if— (1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.



(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

So, if a CIA agent tortured someone in a country other then the United States, this section would still apply.

The conspiracy section would, on the face of it, seem to apply to George Bush, as he "conspired" to have the activity committed.

 

[Bruno@MT]

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions…

Actually, I think Art.3 still does apply. Because your war against terror is an armed conflict without an international character. It is a 'unofficial war' of individuals against a nation state. The list at the end is not an exclusive list. It merely lists a number of included examples, but it is not limited to those. Otherwise the word 'including' would not have been used.

Art 4 covers participants in an internation conflict, Art 3 covers the scenarios of a war without that declared international character. So imo both cases are covered.

 

[Bruno@MT]

Also, as a P.S. to my previous post I should acknowledge that I don't think the 3d article covers everyone. There has to be something that qualifies as an armed conflict, and the detention has to happen by one of the conflicting parties.

So for example, in the case of al-qaeda vs the US, we can safely say that a) there is an armed conflict, and b) the US (being the detainer) is also one of the parties. So anyone detained by the US in the context of that conflict is ccovered.

Otoh, the bloods vs the crips is an armed conflict, and not of an international character, but the party detaining them (the US gov or one of its local branches) is not party to the conflict. So neither the bloods nor the crips are covered. In this case the laws of the land still apply though, and these have provisions for treatment of prisoners.

If one of the Idaho militias would go to war with the US government, then that again would be covered under the 3d article, but also by the laws of the land. I am not smart enough to know what outcome is then. Since no international parties are involved, it would probably be the laws of the land but there is a good argument to say that both would apply and therefore the militia guys would be awarded the logical maximum of both protections.

I do agree it is not always a simple matter, and I am sure that high$$$ lawyers could argue each paragraph both ways, depending on who is paying for them to do such. But I do believe that the intent of the 3d article is to protect anyone in anything that can be qualified as an armed conflict, when detained by one of the parties of said conflict.

 

[5-0 Kenpo]

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions&#8230;

Actually, I think Art.3 still does apply. Because your war against terror is an armed conflict without an international character. It is a 'unofficial war' of individuals against a nation state. The list at the end is not an exclusive list. It merely lists a number of included examples, but it is not limited to those. Otherwise the word 'including' would not have been used.

Art 4 covers participants in an internation conflict, Art 3 covers the scenarios of a war without that declared international character. So imo both cases are covered.

How is the War on Terror not international in scope?


Al-Qaeda, the group we are ostensibly fighting, is considered an international terrorist group by many of the world's governments. It is believed to have the following franchises:

• Al-Qaeda in the Arabian Peninsula,which comprises
  • Al-Qaeda in Saudi Arabia, and
  • Islamic Jihad of Yemen
• Al-Qaeda in Iraq
• Al-Qaeda Organization in the Islamic Maghreb
• Harakat al-Shabaab Mujahideen in Somalia
• Egyptian Islamic Jihad
• Libyan Islamic Fighting Group
• East Turkestan Islamic Movement in Xinjiang

Khalid Sheikh Mohammed is Pakistani. He was involved in the 1993 World Trade Center Bombing. After that, he travelled to the Phillipines and worked on Operation Bojinka, a plot that involved planting bombs on 12 airplanes from different countries. Only 10% of the planted bombs were to be used on U.S. registered airlines. He was also involved in planning the September 11 attacks on the World Trade Center. He also convinced Richard Reid, the Shoe Bomber, to bomb an airliner. He has also been linked to the Bali night club bombing in the Phillipines. He was then captured in Pakistan. He is also reportedly said to have confessed to personally killing Daniel Pearl, which occurred in Pakistan.

Abu Zubaydah was a trainer at a camp utilized by Al-Qaeda, an internationally recognized terrorist group.

Abd al-Rahim al-Nashiri is a member of al-Qaeda, an international terrorist group. He attempted to attact the USS The Sullivans while it was in port in Yemen. He then, successfully, attacked the USS Cole, also ported in Yemen. This gave him enough reputation to be "promoted" as the chief of operations for the Arabian Peninsula, which covers about a dozen countries.

Article 3 is limited to engagements within a single country, or those that spill into neighboring countries. Again, I will point you to the Red Cross' own characterization of the circumstances over which Article 3 was to have jurisdiction:

They include traditional civil wars, internal armed conflicts that spill over into other States or internal conflicts in which third States or a multinational force intervenes alongside the government.

also:

The International Conference was thus envisaging, explicitly and for the first time, the application by the Parties to a civil war, if not of all the provisions of the Geneva Conventions, at any rate of their essential principles.
source: http://www.icrc.org/ihl.nsf/COM/380-600006?OpenDocument

All of these relate to internal conflicts within a country. If these terrorist do not represent a country, and are truly individuals, then they are not entitled to Geneva Convention protections.

It is interesting that you also call it an unofficial war of individuals against the United States. Well, the Geneva Conventions are specifically for wars between nations. If what you believe is true, that is even more credence that those that were waterboarded receive no protections.

At least not those of the Geneva Convention. (Hint, hint)

 

[5-0 Kenpo]

Also, as a P.S. to my previous post I should acknowledge that I don't think the 3d article covers everyone. There has to be something that qualifies as an armed conflict, and the detention has to happen by one of the conflicting parties.

So for example, in the case of al-qaeda vs the US, we can safely say that a) there is an armed conflict, and b) the US (being the detainer) is also one of the parties. So anyone detained by the US in the context of that conflict is ccovered.

It's not quite that simple. Each of the Conventions has provisions in it which specify who is and is not covered by that convention, even in the case of an armed conflict between a ratifying party and another group.

Even still, as stated before, this is a conflict which is international in character, and therefore this Article does not apply.

I do agree it is not always a simple matter, and I am sure that high$$$ lawyers could argue each paragraph both ways, depending on who is paying for them to do such. But I do believe that the intent of the 3d article is to protect anyone in anything that can be qualified as an armed conflict, when detained by one of the parties of said conflict.

If that were truly the case, then why repeat the same thing four separate times? The fact of the matter is that each provision has different categories as to whom they do and do not apply.

Also if true, there would have been no need to have the subsequent 1st and 2nd Protocols. Or other treaties (hint, hint).

 

[Bruno@MT]

Well, the Geneva Conventions are specifically for wars between nations.

Imo the 'international character' indicates the lack of official conflict between nation states. Just because individuals in al qaeda are not American does not mean it is an international conflict.

 

[5-0 Kenpo]

Imo the 'international character' indicates the lack of official conflict between nation states. Just because individuals in al qaeda are not American does not mean it is an international conflict.

It's international because it is happening in multiple countries and with citizens from multiple countries. Article 3 is specifically about internal national conflicts, nothing else. Every commentary that I have found on Article 3 states as much

Websters second definition of international is of or pertaining to two or more nations and it's citizens. So by definition an international armed conflict is a fight between two nations or the citizens of two nations. That's what the war on terror is.

I'm sorry, but you are trying to fit a square peg into a round hole. You should be looking elsewhere for you arguments, rather then the Geneva Conventions.

 

[5-0 Kenpo]

My suggestion for those who want to determine whether George Bush committed a war crime consistent with international law is that you look up two things:

The United Nations Convention Against Torture

and

the concept of Customary International Law (which is considered by the International Courts of Justice, the United Nations, and it's member States to be among the primary sources of international law).

This is what you are looking for in order to determine Bush's international criminal liability for the waterboarding, NOT the Geneva Conventions which don't apply in this case.

One issue that comes to mind in this whole debate though is this: is he liable for erroneous advise given to him by Department of Justice lawyers? He did not do this in a vacuum. He apparently had extensive meetings with them in order to determine what was and was not legal. They told him that waterboarding was legal.

I had thought about this yesterday, and then heard Matt Lauer's interview with Bush. When asked about the legality of waterboarding, Bush's reply was that it was legal because lawyers said it was legal.

 

[Bob Hubbard]

If it was bad advice Bush got in this matter, it wouldn't be the first time it happened. Bush, Obama, Clinton, etc tend to operate in a vacuum..the only intel they get distilled and summarized and spoon fed to them. This isn't to suggest they are idiots (though my opinion is that they are), but that the shear amount of data needed to sift through is incredibly huge. If Bush personally had to look up all possible laws, etc, he'd still be searching, where as an experienced and focused team could pull the data together in a brief time.

I've had discussions about things where the comment "well it was in the paper" were made...but how many papers are there in the US? This is why these guys start their day with daily briefings and have scheduled updates. Somewhere, IMO, this chain failed him, he got bad advice and ran with it. Now he, not some faceless clerk, gets the heat and hate.