Reading through the McCain Amendment article, I see that other law was passed that says the exact opposite thing as it. I’m not sure how that works to have competing law. I would suspect that our foreign treaties don’t give us the right to revoke legal protection to foreigners, so while as additions to their rights can be lawfully done, those which remove them can’t. So again, it looks like the court has ruled for something illegal.
My understanding of Hamdan was that war crimes tribunals hearing cases regarding alleged offenses against the laws of war must themselves be governed by the laws of war. (Geneva, treaties, maybe even UCMJ). There’s no trial here, alas.
Now, if they were still being held, I think they’d have the right to either a “Competant Tribunal” under Geneva to determine their combatant status, or a normal habeas petition, demanding to be released or be charged.
But let’s say that I’m an Iraqi. Can I sue George Bush for wrongful death and property damages from a dropped bomb on my house because the Iraq war is an “illegal war” under US law? I’d hope not.
And Der Trihs, I’m on your side when it comes to the utter depravity of torture and how antithetical it is to all moral systems worth the name.
Yes, but my point was that the Constitution isn’t the only source of Federal law. So regardless of whether there’s constitutional protection, I believe that there is other law which precludes any right to perform torture.
Though…going through the Geneva Convention, I think that I might have to agree with the ruling.
Protections against prisoners of war are only extended only to those who fought according to the rules of war. I.e. that they were wearing uniforms, dog-tags, etc. Terrorists are probably not protected against torture by any treaty. All that remains is the McCain amendment and whether it wins against competing legislation.
This page at the ACLU website has links to some of the documents filed in the case.
Are you sure about that? For example, you do have German constitutional rights. Of course criminal jurisdiction is a separate issue but in many cases that wouldn’t be a problem either.
From the link in my OP :
Do you have any evidence that they were terrorists ?
Assuming you are right, no one is protected from torture because the people deciding who is a “terrorist” are the ones doing the torturing. Not to mention that your legal theory means it’s perfectly OK to torture, say, resistance fighters against the Nazis.
And if the only reason somebody doesn’t torture people is because of a damned treaty, then they are a monster.
Although I find a lot of your posts over the top, I agree with this 110%
I still can’t believe that people haggle over legal niceties and this treaty or that law as to whether it does of does not bar us from torturing people.
It’s disgusting.
They don’t have to be a terrorist, as such. They just need to be someone who wasn’t an enemy soldier in proper military gear, from a country which we don’t have any “We won’t abduct and torture your people” agreement with.
Now seeing as that Iraq and Afghanistan are both United Nations members, it’s possible that some United Nations agreements might cover this territory. I’ll have to look.
Indeed, who needs laws! I know I’m morally justified, so let’s just all agree with me!
Well what makes your opinion of what is moral any better than what GW Bush and Jack Bauer think?
Everything seems to be an “advisory-only” status here…
That’s like something out of the Dark Ages. “We respect true warriors, but we do as we will with the rest.”
The fact that I oppose torture. You might as well ask why I think my moral judgement is better that Jeffrey Daumer’s or a child molester. A definition of evil that doesn’t include torture is so different from anything I’d call evil that we aren’t even speaking the same language.
Anyone who supports torture is a monster, period. Anyone who engages in it or orders it for any reason should be given life without parole or death. Torture is pretty much the apex of individual evil; only large scale evils like genocide are worse, and they tend to be accompanied by torture anyway.
I suspect that it just more of shows that people weren’t expecting that one day we would start picking up and torturing random people from nations around the world without charging them with any crime.
And yet I cheer for Jack Bauer…
I think that most people are to some extent fine with torture, but only so long as you know that the person you are torturing is an enemy and is known to have knowledge of immediately necessary information. But of course in the real way the only way to be able to determine those things would be to hold some sort of tribunal, at which point the urgency that compelled the need for torture becomes irrelevant.
But more to the point… What law does is codify the popular morality of the people. Until you’ve established and created that law through some means of verifying that that is indeed the will of the people, you have no way to say that it’s “commonly agreed upon.”
Just unfortunately, this hasn’t yet been verified in any way beyond the McCain amendment, which seems to be rather weak.
Actually, you do have french constitutional rights. Very generally speaking (and I’m not going to be more specific, because I’m not aknowledgeable on such issues), in France, fundamental rights are guaranteed to any man, regardless of its citizenship, on the basis that such rights have an universal value. Of course, it’s not as simple as that, but your blunt statement (“I’ve no french constitutionnal rights”) is wrong.
Actually, I was very surprised the first time I read (here) that aliens didn’t benefit from constitutionnal rights in the USA that I basically stated the poster was an idiot for making such an obviously ludicrous claim.
And I’m still not really convinced that aliens haveno constitutionnal rights in the USA. I somehow still doubt it could be as clear cut as that.
I don’t. I don’t watch the show, and I’ve made a point of avoiding it after hearing he tortures people. From what I’ve heard, it’s a show where the “good guys” should be killed.
I don’t really care. If the law allows torture, it’s wrong; if the majority of people support torture, then they are scum. Was segregation right when the majority supported it ?
It is only allows it in the sense that it hasn’t been outlawed yet.
If you want it outlawed, then start calling out for a Twenty-Eighth Amendment. I’d support it too. But I have to admit that, just like the guy who had sex with a horse in Washington and was found innocent of beatiality since beastiality wasn’t a crime yet, that we’ve got a hole in our laws that needs to be filled. But you’re going to have to work pretty hard to convince me that we should subscribe to some sort of half-assed shooting from the hip solution instead of creating a law.
Well, the Bill of Rights doesn’t differentiate between U.S. citizens and others. The Fifth Amendment, one of my all-time favorites, refers to “persons”, as in,
Sounds like basic human rights to me.
I think that future historians will talk about this “enemy combatant” bullshit as a shameful abomination.
I suppose I stand corrected with regards to French Constitutional rights. I just picked a random country and went with it. Oops!
Terrorists are indeed protected against torture under Common Article 3 of the Geneva Conventions.
I think this is a common misconception. The Geneva Conventions, as I understand them, provide for a certain standard of treatment of Prisoners of War. (Those who wear uniforms, fight according to the laws of war, etc.) We’re supposed to treat POWs very well. Give them accommodations at least as good as we give our own troops, we can’t interrogate them at all except to get their name, rank, and serial number, and so on. Now, if a “competent tribunal” makes a decision to the effect, they can be treated unlike POWs, but POW status is the default.
However, even if POW status isn’t granted, Geneva still requires that countries refrain from “cruel, inhuman, or degrading treatment” of absolutely everyone detained by that country. Even “enemy combatants.” Even Osama bin Laden, if we ever capture him. Torture is outlawed under Geneva, the US Constitution, US federal law, and the UCMJ. The question is whether these individuals can sue. If they can’t, it’s surely a gap in US law that should be remedied.
Again, I haven’t read the actual opinion (can’t find it). But torture is and always will be abhorrent under any system of morality worth the name.
I’m perfectly willing to believe that if you can show me what part of the document(s) says that.
I suspect that there isn’t such a part though because we were considering Russian spies, where theoretically torture and being tortured is part of the job, and where you have to be discrete or else you have a superpower to answer to. So while I do hope that there is such a rule somewhere that is legally binding, but minus a cite I wouldn’t be terribly surprised to find out that there isn’t.
Alrighty!
From the Third Geneva Convention
(Bolding mine.)
Now, there is some contention regarding the interpretation of the phrase “not of an international character.” Some say that this is a geographic definition, and that these protections only occur in the context of civil wars. But IMHO, this is clearly bunk because the rest of the treaty involves conflicts between nations. It would only make sense for this section to refer to conflicts not between nations (“not of an inter-national character”) such as the War on Terror.
Afghanistan, Iraq, Cuba, and the US are all signatories to this treaty, so it applies wherever we’re detaining folks.
The article 5 of the UDHR clearly forbids torture, and the USA is a signatory.