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Compromised

Tuesday, Sept. 26, 2006 10:24 AM


For the moment, let's dispense with:

– John Negroponte's assertion that the National Intelligence Estimate does not, in fact, show that the United States is at greater risk of attack than it was in 2001. The report addressed the global terrorist threat, not just the impact of Iraq. Okay, so if radicalism is increasing globally, how are we safer?

– Dick Cheney's latest Pimp Da Fear routine, saying that Democratic leaders aren't doing enough to fight terrorism, and Americans must 'reject any strategy of resignation and defeatism in the face of determined enemies' (which sounds suspiciously like stay the course, not to mention contradicting Negroponte … or we've achieved nothing at all over the last five years).

– Condoleezza Rice disputing Bill Clinton's comments on FOX News Sunday. Richard Clarke wasn't demoted, he left in a snit after not being offered the Deputy Director's position at Homeland Security. That there couldn't have been a comprehensive anti-terror strategy because, well, the 9/11 Commission said one wasn't in place. So, clearly, it's Bill's fault.

Instead, let's talk about torture. As in that 'compromise' between our principled GOP leaders and the White House that has generated legislation like HR 6054, currently introduced in Congress.

First, the text of the War Crimes Act as it currently stands:

(a) Offense. – Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances. – The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

(c) Definition. – As used in this section the term 'war crime' means any conduct –

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or

(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

That seems pretty clear to me. But back to HR 6054, listed as the Military Commissions Act of 2006.

It is, on its face, legislation in which the 'clarity' so desperately sought by the White House is provided (but which White House counselor Dan Bartlett says isn't what they wanted).

But it revokes the right of habeas corpus on behalf of any alien detained by the United States as an unlawful enemy combatant. Except that when it comes to notable cases like Jose Padilla, the Bush Administration simply held him without charges. Padilla is a United States citizen (though, admittedly, not exactly a candidate for any awards).

Furthermore, no person in a habeas action or any other action may invoke the Geneva Convention as a source of rights in a court of law, and that this exclusion does not affect the obligations of the United States under the Geneva Conventions.

The proposed law also establishes that John McCain's Detainee Treatment Act fully satisfies our obligations under Common Article 3. (In case you're tuning in late, that's the law Bush tacked a signing statement to which affirms his right to ignore the law when he durned well feels like it.)

Torture is now qualified as other than pain and suffering incidental to lawful sanctions. Which would be ... what, exactly? I suspect we're not talking about a prisoner's handcuffs being too tight and chafing at the wrist. There's a wide gulf (at least from this writer's perspective) between severe physical/mental pain and suffering and that which is allowed to exist in some legal gray space.

The same exception appears under the definition of cruel or inhuman treatment.

Here's a thought. Would a presidential order be construed as a lawful sanction? How about a memo from the Secretary of Defense? And would the same qualify either office-holder as a person who commits, conspires, or attempts to commit such acts?

Interestingly enough, the proposed law is retroactive to September 11, 2001 – so if certain abuses at Abu Ghraib can be construed to not fit the definitions offered therein, it must not be torture.

I've commented before on how the Bush Administration, among others, appears to view the 'rule of law' as 'that which is not expressly forbidden by law is legal'. Which truly makes one wonder about the Chief and Vice Executive of this country, when the implications of cruel, degrading, or inhumane treatment aren't clear enough for them.

We should remember that the definition for 'compromise' also includes bringing something into disrepute or danger by indiscreet, foolish, or reckless behavior.



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