Sunday, October 08, 2006

Because it is good for you!

It is clear to ol' Spot, based on traffic statistics, that you, boys and girls, would rather hear about ex-Congressman Foley or Alan Fine than habeas corpus, detainee treatment, and military commissions. Think of Spot as your cod liver oil dispenser, however, because we're going back into these things, whether you like it or not. The last few, maybe several posts, have been about detaining people; this one is about how they are treated while in detention.

The Congress has taken a couple of swipes at the detainee treatment issue. There are really two intertwined issues afoot here: 1) how must detainees be treated, and 2) what happens to people who mistreat them? The first issue is important, but as we will see, the answer to the second one can render the first one moot.

John McCain has figured pompously prominently in both recent Kabuki theater productions, the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.

The DTA states that no person in military custody may be subjected to any interrogation that's not in the Army Field Manual. The Army Field Manual has been published on the web for some time. However, the AFM has been recently amended to include ten or so new classified pages. The Los Angeles times reported these changes removed the prohibitions in Common Article 3 of the Geneva Conventions against "humiliating a degrading treatment." You will recall, boys and girls, that John Yoo and Robert Delahunty opined for the Justice Department that Common Article 3 did not apply to the Taliban or al Qaeda, but they were wrong.

The DTA also prohibits treatment of detainees described as follows:

Cruel, Inhuman, or Degrading Treatment or Punishment Defined - In this section, the term `cruel, inhuman, or degrading treatment or punishment' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

Sounds good, eh? Well, until you read the next section:

Protection of United States Government Personnel- In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

That's pretty opaque. Here's Spot's paraphrase of the language that Spot has emphasized above:

If somebody acting for the US is involved in the detention and interrogation of a ferriner that somebody thinks might be a terrrist, and if they did things to the detainee that were authorized, but were a violation of international law, they may raise the defense, if sued or charged with a crime, that they were following orders. The interrogator is entitled to rely on advice from guys like Jay Bybee and John Yoo.

I vas only following orders! Boy, that has a familiar ring to it, doesn't it boys and girls? Of course, it's the so-called Nuremberg defense, named after the place of trial of the Nazi war criminals who tried to raise it to excuse their actions. Didn't work. Principle Four of the Nuremberg Principles reads as follows:

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

And that, boys and girls, is what we teach US service personnel, to this country's everlasting credit. A service person does not have to obey an illegal order. Is that a tough call? You bet it is, but we expect everyone, including the people of the absolute lowest ranks in the service to make it. But now, if you torture somebody under orders, that's cool.

Of course, after the protections of the DTA had been thoroughly neutered, the Prezinut had to issue a "signing statement" that included this just to be sure he didn't feel the smallest bit encumbered by the pesky provisions of the DTA:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

Spotty, what a urinary executive?

Unitary, grasshopper. Here's one description:

The unitary executive doctrine arises out of a theory called "departmentalism," or "coordinate construction." According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach "holds that all three branches of the federal government have the power and duty to interpret the Constitution." According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts.

In other words, Marbury v. Madison was a dirty trick played on the president a couple of hundred years ago.

Spot was going to go on and write about the effect of the Military Commissions Act on detainee treatment, but he has decided to save that for the next post.

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