Even here at DU, few of us really understand how high the stakes truly are for members of the Administration to keep control over Congress, the White House, the federal courts, and ultimately, the military. In the starkest possible terms, many ranking officials are facing the near-certainty of long periods of imprisonment even if Bush grants a presidential pardon to everyone. They are playing for keeps. Let me tell you why.
THE UN CONVENTION AGAINST TORTURE AND THE U.S. TORTURE ACT OF 2000In 1987, the United Nations Convention Against Torture (CAT) came into effect. The United States Senate ratified the CAT in 1994 and President George H.W. Bush signed the Torture Act of 2000. 18 U.S.C. §§ 2340, 2340A, and 2340B. That law provides domestic teeth to enabling legislation that penalizes anyone convicted of ordering, inciting, assisting or committing torture forbidden by the treaty. That felony statute provides for 20 years imprisonment for a U.S. person committing a torture crime, with the potential death penalty if the act results in death of the victim. American military personnel are subject to similiar measure under the Uniform Code of Military Justice. See,
http://en.wikipedia.org/wiki/International_Convention_against_Torture; also, see,
http://www.humanrightsfirst.org/us_law/detainees/us_torture_laws.htm The CAT treaty binds all 140 signatory states to arrest and try at the Hague anyone who violates the torture convention if the state in which the offense took place is either unable or unwilling to do so. There are no exceptions for perpetrators who have received pardons or amnesties from their own governments. It matters not at all whether this Administration refuses to acknowledge the jurisdiction of the International Court of Justice at the Hague. It is now clear that U.S. officials have committed offenses under the convention, as well as other crimes against humanity, and a trial cannot be prevented except by force.
"THE MEMO"Just before the media sand storm about U.S. ports blanketed the news earlier this week, The New Yorker magazine published another of its extraorinary articles about the crimes of state that have marked the Bush-Cheney era. On February 20, the on-line version of that magazine's February 27 issue appeared. It contained an article by Jane Mayer with the ominously simple title, "THE MEMO". The subtitle reads, "How an internal effort to ban the abuse and torture of detainees was thwarted." It is long, but absolutely required reading. It finally gives the details about the papertrail that was created by Pentagon lawyers that leads from Abu Ghraib directly to Defense Secretary Donald Rumsfeld as well as dozens of ranking officials at the Defense and Justice Departments. See,
http://www.newyorker.com/printables/fact/060227fa_fact.Mayer's article lays out the roadmap of evidence by which either the domestic or international torture prosecution of Rumsfeld, Wolfowitz, Gonzales, Yoo, and the others will inevitably have to follow.
A useful accompanying piece by Pat_K appeared here at DU earlier this morning. In addition to providing a good synopsis of the major points in Mayer's piece, it gives a comprehensive Guide to Key Players, that will be particularly helpful for those who have not been closely following the Abu Ghraib and Extraordinary Rendition stories. See,
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=503566&mesg_id=503566PROSECUTION UNDER US LAWThe organization Human Rights First provides a useful primer on the subject. HRF outlines the three relevant statutes under which domestic prosecutions of Iraq war crimes could take place (link above):
The Torture Act of 2000
18 U.S.C. §§ 2340, 2340A, and 2340B
SNIP
The Torture Act makes it a federal crime for any U.S. national (or anyone later found present in the United States) to commit torture or conspire or attempt to commit torture outside the United States. Crimes under the Torture Act are punishable by fine and/or imprisonment up to 20 years; or, if the victim dies, by life imprisonment or death.
Although the Torture Act is intended to implement the United States' treaty obligations under the Convention Against Torture (which the United States ratified with certain reservations in 1994), there are some important differences between the definition of "torture" under U.S. law and the concept of torture in the Convention, particularly with regard to "mental pain or suffering," which is more narrowly defined in the Torture Act.
The Torture Act defines "'torture' 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." The law then limits the scope of "severe mental pain or suffering" to mean "prolonged mental harm" resulting from (i) the intentional infliction or threatened infliction upon the victim or a third person of "severe physical pain or suffering"; (ii) the administration or threatened administration upon the victim or a third person of "mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality"; or (iii) the "threat of imminent death" of the victim or a third person. Unlike the U.S. law, the Torture Convention does not require that mental harm be "prolonged," nor does the Convention limit the types of causes for mental harm.
Most non-U.S. nationals fall outside the jurisdiction of the Torture Act, since it only applies to suspected torturers who are U.S. nationals, or who are later found physically present in the United States. Conduct prosecuted under the Torture Act need not, however, be linked to armed conflict, nor must the accused have any connection to the military. As with MEJA and the War Crimes Act, there have been no completed trials under the Torture Act" In addition to The Torture Act, there is a second US felony statute under which Bush-Cheney officials could be prosecuted for human rights offenses in Iraq.
The War Crimes Act of 1996
18 U.S.C. § 2441
"The War Crimes Act provides federal jurisdiction over prosecutions for "war crimes," which the law defines as "grave breaches" of the 1949 Geneva Conventions, violations of Common Article 3 to the Geneva Conventions, and certain other offenses. These so-called "grave breaches" can include offenses against noncombatants, or surrendered or injured combatants, involving "willful killing, torture or inhuman treatment . . . willfully causing great suffering or serious injury to body or health."
The Act applies whether the crimes are committed "inside or outside the United States," and whether the "person committing such war crime...is a member of the Armed Forces of the United States or a national of the United States." (It does not apply to non-citizens or nationals of the United States.) The statute also applies if the victim is in one of these categories. War crimes committed in the course of declared or undeclared armed conflicts, or during military occupation, are covered by the Act."Finally, HRN states that civilian contractors working for the US military could be tried for abuses under the The Military Extraterritorial Jurisdiction Act of 2000 (MEJA), 18 U.S.C. §§ 3261 - 3267. The full range of offenses and a detailed explanation of the crimes alledged have been committed by and with the complicity of the the Defense Secretary are laid out in a civil suit filed by Human Rights Now and the American Civil Liberties Union. See, the Amended Complaint of January 5, 2006,
http://www.humanrightsfirst.info/pdf/06105-etn-rums-complaint.pdf It is now clear, after "THE MEMO", and the filing of the suit against Rumsfeld, that U.S. officials have committed offenses in Iraq and at secret torture chambers around the world, as well as other crimes against humanity, and they face either a trial in federal court or by international tribunal. One or the other of these eventualities cannot be prevented except by force.
It is only a question of whether the U.S. courts or an international tribunal try and convict them. It would be better for all parties if America does this ourselves.
Mark G. Levey, 2006
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