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I just dont get the "They were just following orders" argument, it seems to be entirely in opposition to my (Admittedly sketchy but logical) understanding of US law.

Article Six of the United States Constitution - Wikipedia, the free encyclopedia

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;

(my Bold) So any treaty that is entered into by the US is the supreme law of the land, on par with the constitution. The Torture convention, is not just signed by the US but also ratified by the apropriate political authorities. so qualifies (convention and treaty are interchangeable terms)  and from that

UN Convention Against Torture

  1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
  2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
  3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

So it completely escapes me how it can even be suggested that CIA agents can escape on those grounds.

Any idiot can face a crisis - it's day to day living that wears you out.

by ceebs (ceebs (at) eurotrib (dot) com) on Sat Sep 19th, 2009 at 05:03:14 PM EST
[ Parent ]
I think what you may be missing is the fact that laws implementing treaties are subject to interpretation and further that the defense in a criminal case may raise issues of law that override the letter of a treaty.  E.g., just because a treaty says thou shalt not kill does not mean everyone charged with or investigated for killing will be convicted. There are defenses to the charge.

In the case of torture, the definition is not completely agreed upon. While you and I may call something torture, a government, i.e., the one in the USA, may not. While many have long held that waterboarding is torture, the US Government, during the Bush Administration, officially stated it was not and directed government employees to behave as if it were not.  Now, suppose the accused CIA employees were acting upon a similar instruction.  Unfortunately, the wording of the treaty (particularly para 3), though it appears iron clad, potentially becomes full of holes when subjected to the law in local national jurisdictions.

  Please understand, I'm not saying the CIA employees will be able to escape justice using this defense. I am only providing my layman's interpretation of the possible legal defense set forth in the interviews referenced. I know almost nothing about the cases that are being investigated.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Mon Sep 21st, 2009 at 12:55:55 AM EST
[ Parent ]
Gringo:
In the case of torture, the definition is not completely agreed upon. While you and I may call something torture, a government, i.e., the one in the USA, may not. While many have long held that waterboarding is torture, the US Government, during the Bush Administration, officially stated it was not and directed government employees to behave as if it were not.

I understand it is a possible legal defence, but I do not see how any government, even with the most cursory investigation of the history and legal precedent could say this with any  sense of reality, and any departmental lawyer when handed this decision should have said to the people involved that the ruling was legaly dubious, rather than said "Well the department of justice says its ok, so lets go ahead" and should have cried off. The CIAs lawyers would have noted that the US government had declared waterboarding to be torture in the cases of German and Japanese members of their armed forces (Plus Norwegian and French police collaborators) in the aftermath of WWII, as a more recent example, a US sheriff and his associates had recieved ten years imprisonment for waterbording suspected criminals, from The Ronald Reagan Justice department.

Any idiot can face a crisis - it's day to day living that wears you out.

by ceebs (ceebs (at) eurotrib (dot) com) on Mon Sep 21st, 2009 at 12:21:19 PM EST
[ Parent ]
Ceebs, I agree, but we'll have to wait and see what becomes of the investigation. The justice system will, should a case go to court, provide the accused the same guarantees and opportunities it should provide anyone charged with a serious crime; therefore, the outcome is usually in doubt until the judge's gavel falls.

 

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Mon Sep 21st, 2009 at 11:19:12 PM EST
[ Parent ]

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