"Unlawful Combatants" Legal Protections Query

[K. A. Pital]

I guess there is a form of confirmation bias there though - we get told about the cases that work.

They will all "work", but - without a full statistic, you can't even say what percent is the accuracy of torture-obtained information is.

Oftentimes you can't even figure out what is the percentage of correct information obtained from one tortured person - much less if you use it on many people.

The resistance to torture is irrelevant to the accuracy of information - the amount of people who "cracked" (presumably close to 100%) is not the same as the amount of reliable data obtained.

If anything, there's an inverse correlation - the more you torture, the less reliable information gets.

[Edi]

I refer to things like the bill of rights, which specifically uses the word "person" as opposed to citizen, or even The People (which implies citizen or perm resident) when it dilineates the legal protections guaranteed to individuals who fall under our jurisdiction. This prevents us from, for example, using coerced testimony or forcing an individual to incriminate themselves.

I'd refer you to the first part of said document - its the constitution of the United States of America. It applies only to the USA, the people within its teritorial limits and to its citizens when abroad. It does not apply to people who are not US citizens and who are outside the territorial limits of the USA (The and is very important there). Outisde the USA, it ony applies to dealings between US citizens - I'd refer you to the bar girl incident again.

I would argue that this is essentially correct, but a bit oversimplified.

Due to the nature of the concepts of state, sovereignty, and jurisdiction and how these concepts govern the international dealings between governments on a very fundamental level, the situation is more complex.

From a much earlier thread in N&P:

It is a pretty foundational principle of international law (not talking about specific treaties, but the framework assumptions that enable any kind of jurisprudential cooperation between different nations) that jurisdiction is NOT solely defined by the physical boundaries of the country. The jurisdiction of a court of a nation generally extends to:

• acts committed within the nation's borders
• acts committed against the nation outside its boundaries (but you need to get hold of the perps first)
• acts committed against citizens of the nation abroad (same requirement as above)
• acts committed by citizens of the nation abroad (unless the country where the actions occurred gets its hands on them first and decides to prosecute)
• acts committed by foreign nationals on other foreign nationals abroad under certain circumstances that touch the nation

Additionally, any area which is under the de facto control of a nation despite not belonging to it and where there are no other governing bodies present (e.g. Guantanamo) automatically falls under the jurisdiction of that nation's courts and the law of the land applies. Anything else and the whole underpinnings of the constitutional system come tumbling down into ruin.

All of the above is drawn directly on the basis of the axiomatic assumptions that underlie the whole international system as well as the legal systems of our various countries. They follow from the concepts of sovereignty, state, citizenship and jurisdiction, with cictizenship being the least important among them for these purposes.

[Elfdart]

It's more complicated than that. When a Treaty is signed and ratified by the US Government, it is written into the body of US Law and becomes part of the supreme law of the land. It therefore actually outranks the Constitution unless the Supreme Court say otherwise - in effect ratifying a treaty ammends the Constitution. So, if it is legal under a treaty to wire somebody up to a field generator and crank away until his toes sizzle and steam come sout of his ears, and the US ratifies that treaty, it becomes a constitutional ammendment. Unless the Supreme Court says otherwise. So, since the US has signed and ratified the Geneva Conventions, they take precedence.

Nonsense. Here's the text of Article Six:

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.

It doesn't elevate treaties above the Constitution, it defines them as being above any and all state laws. If treaties > Constitution, then all one would have to do to say, take away the 1st Amendment is to pass a treaty with some compliant state, giving the chief of police in that country the final say on matters of free speech.

If treaties did trump the Constitution, then it's even worse, since the Senate ratified the UN Convention Against Torture in 1994.

Federal law, state law, and military law are ALL unanimous on the subject: torture is illegal. Even the Military Commissions Act doesn't technically legalize torture, though it does grant immunity from prosecution for those who do it.

[K. A. Pital]

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

[Elfdart]

Two articles by Kenneth Roth of Human Rights Watch dispel a lot of the myths about prisoners, torture, etc. They are a few years old, but are still relevant:

http://www.counterpunch.org/rothgeneva.html

http://www.counterpunch.org/roth1227.html

[Stuart]

Here's the text of Article Six:

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.

Thank's for proving my point Elfie. I repeat from earlier posts 'unless the Supreme Coup says otherwise." So, if a treaty contradicts the Constitution it shoudl go to the Supreme Court, if the Supreme Court upholds the treay regardless, then the Constitution has been effectivley ammended. See earlier examples in earlier posts.

As to contradictory treaties, we have already dealt with this; the system was deisgned when international treaties were rare, now they're being signed every day. Contradictory treaty requirements is a problem.

Then we have the problem of defining "torture".........

[K. A. Pital]

Then we have the problem of defining "torture"

For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

There's no problem with the definition.

[Stuart]

Then we have the problem of defining "torture"

For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

There's no problem with the definition.

Now define "severe".

For example, is having a buxom blonde in a minimal state of dress sitting in your lap "severe"?

[K. A. Pital]

Now define "severe".

Simulated death by drowning is severe.

[Baal]

So why bring up Kennedy's stance on waterboarding in the first place?

Because Kennedy many years ago drove a car off a bridge and when he got out of the car he left his female companion in the car to drown to death? It has been a common snide comment made against Kennedy after his waterboarding comment.

[Baal]

Now define "severe".

Simulated death by drowning is severe.

Roll your eyes all you want but that is the very problem with the system. When adjectives are used to describe something you allow in personal opinion and bias and with those two things it is very easy to get wildly different opinions.

Example. If used for an extended period time the time honored method of sleep interruption, random feeding, and other sensory disorienting methods can potentially cause permanent physical damage to the target. Yet all you are doing is waking the person at odd times so they cannot get good sleep, giving them food at odd intervals, throwing stimulents into the food, etc. None of this would be called severe yet can do permanent damage.

Waterboarding when done right as far as I know will not do permanent physical damage to the subject. Yet you would call it severe.

Which one really is?

[The Spartan]

So why bring up Kennedy's stance on waterboarding in the first place?

Because Kennedy many years ago drove a car off a bridge and when he got out of the car he left his female companion in the car to drown to death? It has been a common snide comment made against Kennedy after his waterboarding comment.

Yeah, and? The fact that he's responsible for a drowning death in no way invalidates his stance that waterboarding is torture and thus illegal. That is backed up by both United States and international case law as well as the treaties to which the United States is a signatory.

[Elfdart]

Thank's for proving my point Elfie. I repeat from earlier posts 'unless the Supreme Coup says otherwise." So, if a treaty contradicts the Constitution it shoudl go to the Supreme Court, if the Supreme Court upholds the treay regardless, then the Constitution has been effectivley ammended. See earlier examples in earlier posts.

While it's true that as a practical matter, the Supreme Court is the final arbiter of questions regarding law -short of one of the other branches of government telling the Court to buzz off (like Andrew Jackson did)- that's not amending the Constitution -it's flouting the Constitution. A cracker sherriff who looks the other way as a mob lynches a black man hasn't amended the law, he has chosen to ignore it. There's a gargantuan difference.

As to contradictory treaties, we have already dealt with this; the system was deisgned when international treaties were rare, now they're being signed every day. Contradictory treaty requirements is a problem.

Just like any other law, if there's a contradiction, you would go by order of precedence, or the more recent one in cases where the two acts have equal standing.

For example, if the interstate speed limit was set at 55 during Carter's term, and raised in a later act of Congress, you would obviously go by the newer law. If a treaty ratified in 1799 says that the US Navy and Coast Guard will return runaway slaves found in US waters, but the 13th Amendment abolishes slavery and the 15th denies compensation rights to slave owners for lost or confiscated "property", then that part of the 1799 treaty is null and void. If a treaty was ratified in 1868 demanding the seizure of slave ships and freeing the slaves on board, then the new treaty trumps the old one. It's actually very simple.

How other countries handle these matters I'll leave for others to discuss because I don't know enough about law or government for other countries to give an educated opinion.

Then we have the problem of defining "torture".........

It's no more difficult to define torture than it is to define rape or child molestation. The Convention on Torture, like the GC, uses fairly plain language so one doesn't need a degree in law or Latin to understand it.

Now define "severe".

For example, is having a buxom blonde in a minimal state of dress sitting in your lap "severe"?

If she's smothering you, yes. If she's trying to arouse a boner out of you so the guards can pull off your pants and photograph you with a hard-on in a room full of naked men, then threatening to post copies all over neighborhoods where homosexuals are killed for sport; yes.

[K. A. Pital]

Waterboarding when done right as far as I know will not do permanent physical damage to the subject. Yet you would call it severe.

There's nothing about the permanency of physical damage, asshole.

None of this would be called severe yet can do permanent damage.

There are instances where prison conditions alone do permanent damage. Besides, if you are actively causing bodily harm such as sleep deprivation to obtain information, doesn't that also fall into "severe" category?

[Surlethe]

Solitary confinement can cause psychological damage (ref); is it torture?

[Knife]

Solitary confinement can cause psychological damage (snip link]); is it torture?

That's the rub ain't it? And the source of all the disagreements, one the one side it's a slippery slope while on the other it's a no limits fallacy.

[Elfdart]

Solitary confinement can cause psychological damage (ref); is it torture?

I think so. The only case I can think of where it could be justified is if one prisoner is attacking guards or other inmates and is an immediate danger to himself and others. Even then, it should only be long enough to get him to stop.

There is no justification for torture, except in bad movies and worse TV shows.

[NecronLord]

Waterboarding when done right as far as I know will not do permanent physical damage to the subject.

And the argument that this makes it not torture is absurd. Presumably you would have no problems with, say, the Agony Booth, which also doesn't cause permanant physical damage? You don't have to maim someone to torture them.