The War Crimes Act of 1996 makes it a crime for anyone, military or civilian, to violate the Geneva Conventions. The Bush Admin is proposing amendments:
Anyone care to make a case in support?
Here’s an interview with two lawyers, one of them an Admin supporter.
I’m no fan of Bush, but I gotta say it’s refreshing that he appears to be seeking to change the law, rather than ignoring it.
That said, there are four lights!
Why don’t they come right out with it and say what they really want?
The president shall have the right to do anything he wants, and anyone who disagrees will be charged with treason. Those so charged will be tried in a special tribunal and spirited away to an undisclosed location, where they will be forced to play gin rummy with Dick Cheney. :rolleyes:
In my view, it would be very difficult now to prosecute someone criminally for “outrages upon [the] personal dignity” of a prisoner. To survive a due process challenge, a criminal statute must “give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden” since “no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” US v. Harriss, 347 U.S. 612, 617 (1954). Of import to this discussion: it is the statute itself that must provide clear notice and definition of the unlawful conduct. See US v. Batchelder, 442 U.S. 114, 123 (1979).
To the extent that this proposed legislation substitutes a list of prohibited offenses for the vague and unenforceable phrase “outrages upon personal dignity” I favor the change.
So you SUPPORT the humiliation and forced degradation of captured US troops?
Yes.
Also the kicking of puppies and the anal rape of cruise director Julie McCoy.
How is that any more vague than statutes outlawing “disturbing the peace”? Yet people get arrested for that offense all the time.
Well, if that’s what he meant by his last post (which it clearly isn’t), then I suppose he does, if they are captured by other U.S. forces, since that’s the people whose behavior he references. Do we get to play the double standard game now Dio? Can we now treat captured enemy combatants the same way they treat U.S. soldiers? That would make things real simple, no more Gitmo, no more abuse, just a quick bullet in the back of the head or a sword across the neck.
“Disturbing the peace” is a common-law offense. That means that there are boatloads of case law outlining precisely what it means. In fact, typically the statute may be TITLED “disturbing the peace” but the language of the statute will itself provide a more detailed and specific notice of what conduct is prohibited.
In short: no, no one is ever convicted of “disturbing the peace” without a much more specific and detailed statutory or case law backdrop.
There is no such statutory or common law baseline for outrages upon personal dignity.
Arguement 1) While the current language is vague, it leaves it to the courts to extrapolate “outrages upon personal dignity”. One could argue that this is essenial to keeping a law current without having to strip down and rewrite enourmous sections of law as societal norms change. The new wording, while less challenging, opens up the door to anything not specifically spelled out.
Argument 2) It could be that ‘torture’ can be sufficiently vague as well. So you’re just replacing one vaguary with another.
But according to the article, it doesn’t do that. The proposed amendments are to address other aspects of Article III and the “outrages upon personal dignity” is left off.
Providing some would be no great challenge, but the Admin isn’t trying to do that, it’s trying to legalize acts that arguably would fall within the definition. Things like they did at Abu Ghraib. Can you defend that?
I guess I agree with David Rivkin in the interview to which you linked:
This is all kind of a guessing game right now, since we don’t know how the actual bill is going to read and to what it’s going to apply. Maybe the administration is going to withdraw the “degrading” langauge and insert something more specific, like a specific list of “degrading” acts. So instead of the potentially unconstitutionally vague language of “outrages upon personal dignity,” the act will prohibit “forced nakedness, clothing inappropriate for the individual’s gender, forced wearing of instruments suggestive that the individual is an animal,” etc.
I will say that I’m not sure how effective amending this one statute would be in removing potentially vague definitions from the list of prohibitions. On the one hand, if we want to prohibit all acts that are degrading to humans, then I’m not sure how we can make a totally comprehensive list. Any list will probably be incomplete as soon as some creative mind comes up with something potentially demeaning that’s not on the list.
On the other hand, there are already a number of other legislative pronouncements that will still apply, even if the War Crimes Act is amended. For example, even if we did away with the War Crimes Act altogether, Common Article 3 would still be applicable to Americans and other members of the armed forces, and the UCMJ still prohibits degrading treatment of prisoners.
So I think it’s potentially a good idea, and potentially a flawed idea, but it’s tough to tell how it’s going to turn out before we actually see the bill.
I’d think the best way to defend it is to say that our laws shouldn’t include statutes that we know can’t be enforced. What’s the purpose of a law that prohibits “degrading acts,” but can never be enforced? Why the insistence that it be left on the books if it’s not helping anything? It’s effectively already been removed because the wording is too vague to be enforced; so why should we proceed with the charade of leaving it on the books?
In addition, I don’t believe the article doesn’t say that the Admin is trying to legalize degrading acts. It says that they’re trying to amend the War Crimes Act to be more specific. They’re leaving the broad category of “degrading acts” out of the War Crimes Act, but those acts would presumably still be prohibited by other legislative and administrative pronouncements like the UCMJ and Common Article 3.
One can argue anything, but if one argues that a vague law can survive a due process challenge, then one is arguing against many Supreme Court precedents. So one’s argument won’t be very convincing.
I cited two cases that explain the standard test for vagueness. One argues against that exsting predecent at one’s one rhetorical peril.
If it were just the word ‘torture’ you’d have a better point. But in laws that forbid torture, there is typically a more robust definition.
I don’t understand this response at all – would you mind rephrasing what you’re saying?
I don’t quite understand. According to BrainGlutton’s quote, “outrages upon the personal dignity” would include “the forced nakedness, use of dog leashes and wearing of women’s underwear seen at the U.S.-run Abu Ghraib prison in Iraq”. Are you saying that a court wouldn’t rule that a person of ordinary intelligence should reasonably understand that those acts are proscribed?
There are some things done to prisoners at Abu Ghraib that should definitively be illegal. There are other things done to those prisoners that I don’t believe should constitute a criminal charge.
This proposal is, as I read the link in the OP, seeking to define some specifics of criminal acts. They mention three specifics:
I don’t believe that imposing forced nakedness (in a single-sex environment), the use of dog leashes (as props, not as instruments of physical pain), or the wearing of women’s underwear should constitute a criminal act if imposed on terrorism detainees.
In Arizona, I think, a sheriff requires his inmates to wear pink clothes. I’m OK with that, too.
Yes, I am. I, for one, don’t agree that these acts represent an “outrage” upon personal dignity. Forced nakedness is common in prisons and jails; prisoners are required to shower in communal settings. I mentioned in my post above Sheriff Joe somebody or other in Arizona, who forces his male prisoners to wear pink clothing. Nothing criminal about it.