Welcome to European Tribune. It's gone a bit quiet around here these days, but it's still going.
Display:
I don't understand exactly what your are asking, or saying.  As I understand the conversation on the web, there are several complications that could arise relative to the charges against the CIA employees being investigated.  The primary one seems to be that they were just following orders, or instructions of a superior. While that may/has not count(ed) in some jurisdictions, apparently it can be a solid defense in the US where any charges will be filed and cases tried.  This is not to say that these complications will lead to a prosecutive failure, but they could.  Things are not always black and white, often just shades of gray. Personally, I would forget about Nurnberg unless it causes some comfort. Those particular circumstances are not likely to repeat themselves in scope or justification any time soon and if they do, the US cases being fought over these days will pale by comparison. In fact, IMHO they pale in comparison to other cases already. To us they are justifiably a big deal, but another Nurnberg trials situation, etc, is not likely to occur over this. The US problem has to be sorted out in the US according to US law using the US justice system, and it can be.

My point in referencing this piece was not so much because of the on-going investigation of CIA employees for torture (a positive though limited step) but to highlight the nature of international treaties, amendments, ratification, and the requirement in the US (and possibly most other countries) for local implementation via statute.

 

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 Sat Sep 19th, 2009 at 04:14:36 PM EST
[ Parent ]
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 ]
My point is that some rules are normally held to be beyond the power of any legislative body to sign away. In those cases where such rules have been violated, it is incumbent upon the first civilised government to seize power in the relevant jurisdiction to prosecute these violations. Indeed that is one of the litmus tests of civilisation.

So it fundamentally does not matter that Congress legalised torture, because Congress never had the authority to legalise torture. And if the US constitution gives Congress the right to legalise torture, then the US constitution is in the wrong - because the people of the US never had the authority to give their elected representatives the authority to legalise torture.

And if you object to citing Nürnberg as a precedent, you can strike that from the list. Still leaves a sufficiently solid precedent to go by. Certainly you would not argue that the crimes committed by Pinochet or various assorted Yugoslav war criminals were orders of magnitude more serious than the crimes here under consideration?

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sat Sep 19th, 2009 at 08:30:24 PM EST
[ Parent ]
I don't object to Nurnberg or the other references. Just see them as somewhat irrelevant.

Do you have a civilized government in mind? If so, where has it been throughout the "civilized" history of mankind?

Please don't take me wrong.  I agree with your ideals; things should be that way, but it ain't gonna happen.

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 01:04:10 AM EST
[ Parent ]
Do you have a civilized government in mind? If so, where has it been throughout the "civilized" history of mankind?

Civilisation is obviously a matter of degree, and no actual state in history has been what I'd call "fully civilised." But on this particular subject, I would say that the British, French and Americans in the immediate aftermath of the second world war were more civilised than contemporary Americans. Of course you can find other issues where this is not the case (colonialism, institutionalised racism, treatment of the poor, ill or mentally infirm, to name but a few). But on this particular topic, things have been slipping.

Please don't take me wrong.  I agree with your ideals; things should be that way, but it ain't gonna happen.

And I understand that. I just think it should be made clear that the reason it's not going to happen is that certain named political actors are determined and able to obstruct justice, not because there is a lack of jurisprudence on the issue or because their pseudo-legal defences have any merit.

I can accept that we're going to lose the political battle over whether due diligence will be observed in the investigations of Anglo-American torture programmes. What I will not accept is the fiction that due diligence was exercised and there was nothing there that could be prosecuted.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Mon Sep 21st, 2009 at 04:29:33 AM EST
[ Parent ]
The French in the immediate aftermath of WWII ? more civilized than the US ? You do mean the Indochina & Algeria wars France, right ?

Un roi sans divertissement est un homme plein de misères
by linca (antonin POINT lucas AROBASE gmail.com) on Mon Sep 21st, 2009 at 09:45:30 AM EST
[ Parent ]
I beg to disagree: the Algeria war was not in the immediate aftermath of WWII. Between 1945 and 1947, we just massacred 15 OOO in Algeria, 40 000 in Madagascar, 6000 in Haiphong (Tonkin) and a few dozens elsewhere... Isn't it civilised?

"Dieu se rit des hommes qui se plaignent des conséquences alors qu'ils en chérissent les causes" Jacques-Bénigne Bossuet
by Melanchthon on Mon Sep 21st, 2009 at 10:24:01 AM EST
[ Parent ]
What I will not accept is the fiction that due diligence was exercised and there was nothing there that could be prosecuted.

I had the same feeling every time I investigated a violent crime and no legal action was taken because an attorney declined to prosecute.  Sometimes the attorney simply feared the case would be lost due to lack of sufficient evidence.  In some cases I knew he may have been correct, but there was nothing else I could do.

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 11:51:35 PM EST
[ Parent ]
I don't understand why Nuremberg isn't relevent, could you explain?

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 11:20:05 AM EST
[ Parent ]
I just believe that in this tangled, chaotic world we live in history continually repeats itself, regardless of humanity's best intentions.  While Nurnberg and other historical cases involving prosecutions for war crimes may be recalled, I would predict that court decisions in the current cases will turn upon more recent events and court decisions.  

The other thing is that justice is not rendered exactly equally with regard to location and time.  Circumstances change even though the crimes remain basically the same. When circumstances change, laws and treaties may be viewed differently.  My opinion, take it or leave it.  

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 11:43:04 PM EST
[ Parent ]

Display:

Occasional Series