The Geneva Conventions, which Hamdan said apply to the United States, requires prisoners of war be treated humanely.
There are two issues: What is the requirement; and what is prohibited.
The former is explicit, the latter is illustrative. In matters of the law, the requirement takes precedence, that which is illustrative is not all inclusive.
The United States has the obligation to meet the Geneva standard of "humane treatment." The definitions of torture are irrelevant, merely non-exhaustive examples of what is not humane treatment.
The Geneva Conventions require humane treatment of prisoners:
each Party to the conflict shall be bound to apply, as a minimum, the following provisions. . .Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause,. . .shall in all circumstances be treated humanely Ref
1. The standard is a threshold, which is a minimum, and should be exceeded;
2. The detaining party, in this case the United States, is obligated to meet this requirement. It makes no difference who the prisoner is, or their status. The obligation is on the detaining power -- the United States -- regardless what the prisoner has or has not done.
3. People taking no part in the hostilities includes people who are detained, or have been denied their weapons, and can no longer fight in combat. This does not mean that prisoners, after being detained, cannot be restrained if they continue to fight while in custody.
4. The requirement is that the people taken out of the fight are treated humanely. It is the job of the United States to inform the prisoners of their rights, how the US will treat them if they end their fight. Once the United States restrains someone so that they are no longer able to fight, the US cannot then inflict any additional inhumane treatment. It makes no difference that American citizens are abused in US prisons.
Congress, as it debates this issue, is focusing on the wrong issue. Rather that look at the requirement to treat people humanely, is looking at the illustrative portions, which are not intended to be all inclusive. Again, the primary requirement on the United Stats is that prisoners be humanely treated.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
1. To meet the requirement of "humane treatment", the United States, as a detaining power may not do these things on the above list;
2. Examples of mistreatment are included in the above list;
3. The list is not all inclusive, other things can be inhumane;
4. Torture is inhumane treatment of prisoners;
5. Whether something is or is not an "outage" is irrelevant; the primary consideration is whether the prisoners are or are not being humanely treated;
6. The National leadership should know that inhumane treatment includes acts of violence, mistreatment, physical abuse, and other conduct that is inhumane;
7. If the United States has to be reminded that torture is or is not humane, then America has a legitimacy problem on the world stage;
7. It is irrelevant how you define torture. Inhumane treatment includes, but is not limited to, degrading abuse, physical abuse, roughly handling people, insulting them;
8. It makes no difference how the Vice President inhumanely treats Senators by swearing at them;
9. It is lawful under the laws of war for other nations to intervene in the United States to prevent further Geneva violations, and lawfully detain and prosecute the individual members of Congress for failing to prevent Geneva violations.
The above list is not intended to be all inclusive, but illustrates the general principle of "what is not humane." It is an error to look at the list as something that is a red line that can be creatively crossed through creative definitions.
Ref Members of Congress, if they pass this bill and permit war crimes, may individually be prosecuted for war crimes.
Ref If the United States does not enforce the laws, then it is not legitimate. Other nations and combat forces may lawfully intervene, impose discipline, and reassert the Rule of Law to restore order.
Ref Congress has no power to change Article 3 to permit inhumane treatment. Congress and the Joint Chiefs are focusing on the wrong issue. Instead of whether torture is or is not permitted/defined, the correct focus is whether the US will or will not humanely treat people.
Ref This is the debate we should have had in 2001, before we made the decision to use force, but illegally ignore Geneva. If we concluded were not going to follow Geneva or the Rule of Law in how we treated all prisoners or conducted combat operations, we should not have used force, but used open, legal prosecutions -- it would focus our finite resources.
Ref Again, the voters are being asked the wrong question. The wrong focus is whether torture should or should not be allowed; the correct focus is whether the US will or will not humanely treat people. Voters should be asked, "Do you think Americans should humanely treat other human beings?" If they answer no, then their vote should be ignored. There is no option, but to show humanity, not barbarity.
The Key Question: Is the United States humanely treating prisoners?
A. [ ] Yes; or
B. [ ] No.
1. Whatever the United Stats does to prisoners, other nations may lawfully reciprocate to military and non-military civilian contractor-leaders-prisoners; and
2. Whatever definition of “humane” Congress says is "good enough" to be applicable to prisoners under US care, could be applied to Members of Congress who may be prosecuted for war crimes.
Geneva is clear: You shall treat people humanely. The United States has violated that requirement. US personnel including the President and Gonzalez well know they have a war crimes indictment issue. The war crimes liability also extends to members of the Joint Staff and Military Flag Officers, called "Generals" and "Admirals."
As to the current "confusion" about what is or is not in Article 3, this Flag Officer has a problem:
Gen. Bantz Craddock, outgoing chief of the Miami-based U.S. Southern Command, said military interrogators needed a precise definition of what constituted "outrages on personal dignity" -- prohibited under Common Article 3 of the Geneva Conventions. Ref
General Craddock is arguably a reckless commander, and apparently knows he has a war crimes liability. Craddocks' problem is that despite 5100.77 and the Army Field Manual, he's arguably a war criminal and has failed to prevent violations of Geneva.
There is no requirement for interrogators to get a precise definition of anything. Clearly, interrogation on its surface could be argued to be inhumane, violating Geneva.
There's no credible basis to assert that Geneva is vague. Rather, Geneva is clear: Treat people humanely. If the Americans have to be told "what humane means," then America is not a legitimate source of any inspiration to inspire others with common values.
The issue is that despite Geneva, Congress essentially debating, "Should we or should we not be humane?" The fact that there's a debate on that issue should give American voters pause. The response is telling: This Congress says that "humane treatment" includes physically abusing people. However, it is a violation of Geneva and US Statute to incite others to commit acts of violence.
If Members of Congress pass the President's bill, then they could be indicted for war crimes, failing to prevent illegal activity, and inciting others to commit acts of violence under an illegal promise of immunity.
The Congress has two options:
1. Approve the illegal bill; and accept that the US has been and will continue to engage in Geneva violations, subjecting American leadership in Congress and the Executive branch, military personnel, contractors, and CIA interrogators to war crimes prosecutions. While waiting for trial they have no standing to complain about any treatment that substantially complies with the absurd definition of "what is or is not humane"; or
2. Enforce the existing war crimes statute that outlaws what Geneva already says: You must treat the prisoners humanely.
Rendering US Members of Congress to The Hague
Members of Congress must exit their bubble. The Acts of Congress amount to unlawful war crimes, and a clear refusal to prevent inhumane treatment. The laws of war provide a remedy. Lawful humanitarian interventions are possible and legal in the United States.
Foreign combat forces are capable of entering US airspace, land, and lawfully rendering to The Hague all 535 Members of Congress. White members of Congress await their war crimes adjudication, foreign fighters may lawfully reciprocate and subject individual members of Congress to the same "humane" standards. Congress has no basis to complain for this lawful reciprocation.
Reciprocity isn't an issue of foreign fighter attacks on US military personnel. It also includes how other fighters do or do not take action against American leadership, civilian prisoners, and other Americans who may have no relationship to combat.
Recall the abuses against the Jews. They were non-combatants. Using the Congressional-Presidential-definition of "humane," the Germany Nazis (arguably) could be found innocent of any war crimes: They have well met the Congressional definition of "humane treatment" and it was the fault of the Jews for not being able to endure the "humane treatment" the Nazis "allowed the Jews to enjoy." This is utter non-sense.
Again, The Key Question: Is the United States humanely treating prisoners?
A. [ ] Yes
B. [ ] No.
Whatever Members of Congress decide is permissible for others to endure, may lawfully be imposed upon individual Members of Congress. Choose wisely.
You wished this.
Beware False Attributions
Note to FrostedFlake from Conyers Blog,
Thank you for your diligent work and your many notes. I appreciate your time and attention you have been giving to these important Constitutional issues. It is through you that others, including me, get ideas. I appreciate the fact that you are relentless in your attention. Please do not let the following comments detract from my admiration from your work, or in any way send a message that I do not think highly of you and your valuable contributions.
Frosted, perhaps I have missed your humor, there is an slight error in something you have written. Perhaps I was not clear with something I had previously shared. I would be remiss if I failed to call your attention to something you may have missed. . This quote has a problem, it is incorrect, has not been cited, correctly, and the words have been changed:
"Beware the politician who beats the drums of war, for I have done this, and I am Ceasar."Caesar never said this. At best, this is a rewording of the quote which Barbara Streisand recited.
1. The original quote did not mention politicians, but leaders, whether they are or are not elected;
2. The drums, in the original quote, were banged, not beaten;
3. The quote was never attributed to Caesar. the Correct phrase was, "How do I know? For this is what I have done. And I am Caesar."
The quote, if corrected with the proper attribution, should read:
politicianleader who beatsbangs the drums of war, for I have done this, and I am Ceasar."
I, Constant, am the author of the quote, not Caesar.
Details -- Click this to read -- Ref
I take great sensitivity when my work is misattributed to low-lifes like Caesar who had no respect for the Rule of Law. :-)
Frosted, I appreciate your work. Thank you for my opportunity to blow