News from Gonzales

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News from the Bush's administration nominee for attorney general (who is certain to be elected)

now that is a questionable statement as it contradicts the spirit of the geneva convention which is basically to protect people from just that, 'cruel, inhuman or degrading' treatment.

He is the sort of lawyer who asks his client what he wants and writes an according legal position, instead of giving independent counsel on the actual legal situation as he ought to do. That is to say, while he is a successfull lobbyist he's a disgrace as a lawyer.
Gonzales' view is that the law is whatever the President says it is - that if the President says something isn't torture, then it's O.K. to order it.

Swell, so that man is a walking scandal - and one wonders how such a guy can be a nominee for a high administration position.

I daresay it is not in spite of his flaws, but just because of them.

Forcing him through the ordeal of Senate hearings where he is suure to be grilled is an excellent loyalty test. His dirty record is officially documented that way, too. That is not a flaw but an advantage.

He knows that everyone knows he's dirty, and as he got that job only because of his superiors it is guaranteed that he will work for them loyally - and they have a great fallguy if things eventually demand a degree of accountability. How convenient.

Further, it is a test case to see how far the opposition will go and how much energy they have to oppose that creep. And then, if they refuse him, they can be denounced as endangering national security through obstruction - like Kerry was denounced to be anti-Military for voting against some defense program

So we can expect more of Gonzales' expert advice on international law. American justice will reach a new low (IMO, while Ashcroft was just plain Gonzales is an sycophant) because the fox is guarding the henhouse.

I can't expect a loyalist like him to agree to any serious investigation of possible administration wrongdoing. Bush will sit it all out the second term, and Gonzales will help where he can.

Cheers

EDIT: Along the lines of Ray McGovern:

Remember why Sokrates was condemned to death?

The charges were two: Making the worse case appear the better, and corrupting the youth. Severe accusations, the first one especially.

Tragically, the accusation and the death sentence were the backlash of sophistry he opposed so much. Socrates opposed to sophistry more than anything else because that philosophical teaching was based more on false persuasion rather than on the fundamental knowledge and logical hypotheses.

Capital punishment for the high crime of sophistry would depopulate the white house PR staff, FOX News and right-wing punditry.

[ January 26, 2005, 14:43: Message edited by: Ragusa ]

 

So far as I know, international treaties regarding warfare are not meant to protect your own citizens.

Doubt that he would stick to his reasoning if a civil war broke out, let's say, or if someone with US citizenship got caught.

 

Ragusa,
...EXCELLENT !

 

How does legal jurisdiction matter if they are exercising factual administration in accordance with their internal laws which are affected by the treaty?

 

BTA, when you're in doubt wether some practices are torture or not, you sure are be referring to these "stress and duress" methods that were used in the U.S.'s war on terrorism, that had been sanctioned by the U.S. Executive branch of government at Cabinet level.
Similar methods in 1978 were ruled by ECHR to be inhuman and degrading treatment, but not torture, when used by the UK in the early 1970s in Northern Ireland ...

Well, the Geneva Convention in their latest form were a result of the experience of WW-II, and the according war crimes, mainly committed by Japan and Nazi Germany. The need to protect the civilian opulation from atrocities and violence was widely recognised.

A good link on that can be found here: A BRIEF HISTORY OF THE LAWS OF WAR. The term 'enemy combattant' is a Bush-new-speak term and doesn't appear in international law or the conventions. That is so on purpose to confuse and to obscure what this is actually about. It can be left aside wether insurgents are combattants, which the Bush-new-speak term suggests, or civilians who take up arms.

As for combattants:

If enemy combattants are combattants, any US violent, intimidating, insulting and humiliating treatment of Iraqis would be a breach of law.

When they are civilians:

So whatever point of view you take, things that are certainly not alowed are rape or sexual humiliation or any sort of prisoner.

To make things even more complicated, there is the so-called Unlawful combatant ... who is basically a criminal and deserves according treatment - but even he is certainly not soneone to be dealt with according to whim.

It's the slippery slope that I'm concerned of. The US practices are eroding the fight against torture, as easily seen by the the actual support for such practices among the US pro-war wing. You know, just fraternity pranks ...

And guess what a Mobutu or <insert arbitrary evildoing dictator> will tell the US when they accuse him of human rights violations the next time ... "Hey, I hired a Gonzales myself and he said it's, technically speaking, almost perfectly legal!"

 

E.g. from being televised or taken photos for the press. This was remembered when Saddam's guys were showing American POWs, but wasn't when the coalition was showing Iraqi POWs at the same time.

Collective responsibility? Don't know. Torturing women and children to make men talk doesn't really make collective responsibility per se...

Humiliating treatment? Hoods, chains, forced sodomy, sure.

Rape? Hell, yeah. But not only of grown men. Not only of males and not only of grown.

If you call rape "having sex with a female detainee", then Gonzales is nothing but right when he claims it's all in accordance with the Geneva Convention.

I have an idea. Let's take Mr Gonzales, put him on the other side of Rio Grande without any ID and see what happens when he tries to come back to his office...

 

Why may I ask are children being locked up anyway? What information can they provide and why 'force' information out of them.

The above is supported and then:

The US has always supported letting Irish terrorists out of prison after 2 years for killing people just because they happen to be Protestant or British?

I also notice that various Islamic charities have had funds 'frozen' whether they had terrorist connections or not but NORAID is still going strong because they are 'concentrating on the Middle East at the moment'.

People can be detained anywhere in the world for unknowingly giving funds to charities with terrorist connections but Americans are still free to arm the IRA, INLA etc without consequences?

I could provide tons of links on what these funds accomplish in N.I from this year alone!

I guess the Geneva convention only needs to be applied when it can be of benefit.

 

BTA,
I admit that I went astray in my lengthy post yesterday. So I want to make this as clear as possible.

So what’s the scandal about this scumbag?

Well, I’ll tell you.

The title of the ‘ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment‘ (CAT) should tells you what it is about - torture AND something else - cruel, inhuman and degrading treatment. By separating torture from the latter Gonzale’s is blurring the discussion because he suggests, and that seems to me what’s haunting you too BTA, that the CAT while prohibiting torture isn’t about ‘cruel, inhuman and degrading treatment. Au contraire.

As I said, the “stress and duress” tactics were ruled to not be torture but instead cruel, inhume and degrading” treatment by the European Court for Human Rights (ECHR), a multinationa european court reflecting the legal consensus of the european countries. Let's just keep that in mind and come back to it later.

What is the CAT about? The preamble gives the clue of the 'ratio legis' behind it, it sais, and I'll condense it to the essentials:

To achieve that is the aim and sole purpose for what all the following rules are there for.

The CAT outright bans torture in Art.1, and stresses in Art. 2 Nr.2 that (as a result of the inherent human dignity of every individual as stressed in the preamble) not even extraordinary circumstances or in Nr.3 higher orders can be a justification for torture - it’s a universal ban.

In a sidenote, Art. 4 in Nr. 2 notes that torture is a severe crime - just because it violates the inherent human dignity of every individual.

It gets really interesting in Art. 16 - the one about ‘cruel, inhuman and degrading treatment’. It obliges the signatory countries to also implement effective bans on these treatments other than torture, again as a reflex of the inherent human dignity of every individual.
Why is this prohibited, too? The answer is simple - to avoid circumvention like through Mr. Gonzales’ “Well, technically it isn’t exactly torture, just about as painful, he-he!“ approaches.

The US have signed and ratified CAT in iirc 1988, so they are bound and obliged by the treaty.

After this introduction:
Now read Gonzales’ initial statement carefully - what does he say?

It doesn't prohibit? Well, of course it does but that's beside the point. Gonzales' idea rotates around Art. 5. He admits that ‘cruel, degrading and inhuman treatment’ has been dealt out by U.S. authorities. But he goes on, and there is the scandal, that this is not punishable because it hasn’t happened in the US.

See? Ordering an Abu Ghraib or Gitmo is not punishable because the actions occur outside U.S. territory. Ordering and implementing that in, say, Florida, would be a punishable criminal offense, but not so if the tormenting occurs in Iraq or some other country and as long as the victims are Iraqis - the handpicked Iraqi gvt will sure not accuse the U.S.

So he basically admits the US are guilty but that he sees no legal basis on which to punish the crimes

Imagine Saddam signing the CAT. So Saddam would only have to rent a base in, say, Syria, and to torture his folks by some hired goons, from say Sudan, there to be able to say: “Well, I do oblige to CAT but sadly that’s happening outside Iraqi jurisdiction, the offenders are outlanders, and the place it occured is a foreign country - so I can’t punish these evil offenders! Riiiigggghhhht.

Reading the reply it becomes pretty evident what opinion Gonzales’ had been asked to produce: “Tell me Gonzales’, how can I merrily torture or deal out *just* cruel, inhuman and degrading treatment - and avoid legal repercussions?”

Or: How can I break the law without liability? Now that's a splendid menthality for an attorney general, ain't it?

So you have a clear violation of at least the spirit of the CAT, and the U.S. are trying to avoid the obligation by relocating their otherwise illegal CAT breaching activities offshore - to their bases in Iraq and Afghanistan or Diego Garcia or a ship under Panama’s flag - or wherever. Everything swell then!
Well, almost. Gonzales’ must have over-read Art. 5 Nr.1 b CAT that jurisdiction is generated when the perpetrator is a U.S. soldier or citizen, as well as when the victim is US citizen. No problem - hire some Ugandan experts to do the dirty work and that’s no problem, too! Ain't outsourcing great?

And no problem with the victims after Art. 5 Nr. 1 c CAT too - just some ragheads, no Americans!

So let’s recap: ‘Cruel, inhuman and degrading’ treatment is prohibited to avoid circumvention of the ban on torture, because it is about a fundamental human right and fundamental human dignity inherent to every individual.
If that is so, what about circumventing state responsibility for conscious breaches of CAT and simply refusing legal responsibility by relocating the violations offshore and playing stupid?

That’s not even a bad joke. Gonzales’ and the Bush administration are making a travesty out of obliging the CAT.

You get the idea what this will be about when he’s attorney general - how can I circumvent the bill of rights to expand administration’s executive powers to do whatever the administration deems desirable to do?

Notes in the margin:
Article 3. Is interesting too, as it prohibits to send a person to another country where he would be subject to torture. The US sending detainees for ‘treatment’ to Morocco, Jordan or Egypt act in direct violation of Article 3.

Art. 15 is interesting because it prohibits the use of coerced testimonies or confessions against a person in court - which should explain a lot of the resistance to the US military courts - from groups like ACLU and international human rights groups - a trial where coerced testimonies and confessions can be used isn't a fair trial, it's as simple as that.

[ January 28, 2005, 12:53: Message edited by: Ragusa ]

 

Even in the oh-so-evil Prussia, torture was abolished already in 1740 by Frederic II the Great (r. 1740-1786) after he personally reviewed one recourse from a verdict the year he became the king.

 

Territory under your occupation is under your jurisdiction, as well. Otherwise, the Convention would only bind the losing side of a conflict.

The spirit under which a state signed a treaty matters only so long as it is consistent with the letter and does not lead to absurdity. A treaty establishes a set of regulations binding equally between the contracting parties with no exception derived from individual attitude unless it is noted in a clause attached to the treaty prior to signing.

Article 17 para 1 of the Vienna Convention on the Law of Treaties says:

I'm not aware of any reservations made by the US when signing international conventions, especially as such provisions would defeat the purpose of the treaty, therefore most likely wouldn't be allowed.

Article 26 says:

Good faith implies no fooling around with non-standard interpretations and application.

Should the policies made by Gonzales & co even come into legal force, Article 27 says:

Expressly: (Art 31 para 1)

On special meanings:

A contrario from above:

1. It must be established that the contracting parties intended such a non-standard interpretation when concluding the treaty.

2. Such an interpretation cannot be effected by only one of the parties.

Regarding the process of amending treaties, Article 40 demands:

Clearly, there is no unilateral amending.

Vienna Convention on the Law of Treaties (UN).

[ January 28, 2005, 17:35: Message edited by: chevalier ]

 

,

your debating legalities when none of us here are laywers.

the fact of the matter: is that Gonzales is supporting 'lite' torture to be used against specified enemies of the state.

the fact: is the United States is rightly losing credibility as a defender of freedom.

the fact: is the United States is rightly gaining the reputation of a unilatarlist, pompass, arogant and warmongering state.

Gonzales is just another cog in the conservative's new and improved police states of Amerika

 

Well, the problem with Gonzales is that he is making up theories to justify illegal treatment of prisoners. So he will try to downplay torture and to claim that those other things aren't unconditionally illegal etc.

His main argument is that Iraq or Guantanamo isn't US territory, but that argument doesn't hold. The problem is not territory per se but jurisdiction. In this sense, occupated territories qualify. Besides, doesn't the convention apply directly to armed forces of the signataries rather than stick to territorial distinctions? The territory trick is meant to allow people like Gonzales to say "hey, it wasn't on our territory or anything, so it doesn't apply to us there".

In fact, even the mere act of arresting someone is an act of administration and exercise of jurisdiction, so it doesn't really matter where it happens. It only matters if those who perform the act are on the service of the state.

The trick with private contractors doesn't work, as it's a clear circumvention of the regulations pertaining to the use of armed force, so it's not good faith. And they are de facto US armed force if they are bound by military orders, let alone if they are somewhere in the chain of command. This still doesn't mean they can't be treated as mercenaries if they are caught, which means less protection than for regular soldiers.

My bad, I should be more clear. Violation (although indirect) of the letter comes from drawing upon non-standard meanings of words and phrases. A direct violation would have to be something more direct and obvious, like burning alive a soldier of another country who signed the treaty on your own territory until he discloses confidential information. Absurdity comes from the fact that Gonzales' theories need a lot of playing around with word and phrase meanings to justify and the aim is to circumvent the regulation.

 

dmc,
thanks for informing me.
now I'll run through this thread again; armed with the knowledge you just shared.
I'm betting it'll make a difference on my interpretation.

dmc,

re-read the thread.

seems the weight of opinion is that Gonzales is in fact enabling the Bush administration to circumvent a specific treaty obligation in order to practice 'lite' torture techniques.

I can only comment in my sophistry.

the United States is practicing torture.

about the treaty being ignored...well look at what the past history of the US government is in relation to their own internal treaties with the American Indians...when a treaty is the only thing that stands between what the US government wants and what the US government has, the treaties are always broken.

the US government always speaks with forkqued tounge.

[ January 28, 2005, 19:58: Message edited by: Ox ]