Congress May be Prosecutable For Participating In Bush War Crimes

[kpete]

FORUM
Op-eds on legal news by law professors and JURIST special guests...
A Plea to Congress on Military Commission Procedures
Congress may be prosecutable under international law if it helps him do this

JURIST Guest Columnist Jordan Paust of the University of Houston Law Center says that minimum due process guarantees under customary international law must not be denied when Congress attempts to articulate forms of procedure for new US military commissions...



Members of Congress are thus on notice that minimum due process guarantees under customary international law must not be denied when Congress attempts to articulate what forms of procedure a military commission should adopt. If members participate in a plan to do so or are complicit in the deprivation of minimum due process guarantees under customary international law incorporated by reference in common Article 3 of the Geneva Conventions or any other rights or protections under common Article 3 (e.g., concerning the right to humane treatment even at the hands of CIA interrogators), they would be participating in the denial of rights, protections, and duties under Geneva law. Such denials are war crimes.

Moreover, “wilfully depriving a protected person of the rights of fair and regular trial prescribed in the ... Convention” constitutes a more egregious “grave breach” of Geneva law. Denial of what the world knows are minimum due process requirements would also resonate against us like the crimes at Abu Ghraib and the Administration’s criminal torture memos and authorizations.

War crimes policies and authorizations are not merely a threat to constitutional government and our democracy. They threaten law and order more generally, violate our common dignity, degrade our military, place our soldiers and CIA personnel in harms way, thwart our mission, and deflate our authority and influence abroad. They can embolden an enemy, serve as a terrorist recruitment tool, lengthen social violence, and fulfill other terrorist ambitions.

Additionally, Congress should not attempt to provide domestic immunity for criminal violations of rights and protections contained in the Geneva Conventions. Tin-horn dictatorships attempt such forms of impunity, but the attempt would itself violate several treaties of the United States and (as Marcos, Milosevic, Noriega, Pinochet, various Argentinian generals, and others learned) have no legal effect abroad in foreign or international fora. Instead, Congress should protect the honor of the United States and maintain the rule of law.

more at:
http://jurist.law.pitt.edu/forumy/2006/09/plea-to-congress-on-military.php

[grizmaster]

1. great post- kicked

[rrasile]

45. Great Post

So what's the point. In our government the elected can do anything they wish. They write the laws, that doesn't mean that they understand them or have to abide to them.

[redqueen]

2. Brilliant! Call Harry Reid and Cat Killer Frist about this TODAY!

888-355-3588

:bounce:

[rodeodance]

3. send them this article also.

[redqueen]

18. Good idea!

:kick:

[rodeodance]

4. so--will Congress slip in a provison for self-immunity?

[Tyler Durden]

7. Won't work overseas...

Would LOVE to see Cat Killer picked up somewhere outside of the country on vacation after he gets out of office.

Perp walk to THE HAGUE, motherfucker.

[kpete]

8. rodeodance

you "know" too much!

[warrens]

5. Allowing coerced testimony

That was the main story on NPR this morning. I woke up stunned that the Bushies could be so blatantly unAmerican. COERCED TESTIMONY. That's a polite way of saying information they got from torture.

[berni_mccoy]

6. Combine that with this story and you've got some EXPLOSIVE news ==>

http://journals.democraticunderground.com/berni_mccoy/81

[John Gauger]

44. According to US legal code

our government is a terrorist state. We quite simply are terrorists. It's no wonder over 100 countries are trying to get us labeled as such. They are afraid of us: not just our enemies but all countries fear our irresponsible violence.

[Thoreau-Ly]

51. I Like Ike

Disarmament, with mutual honor and confidence, is a continuing imperative. Together we must learn how to compose differences, not with arms, but with intellect and decent purpose. Because this need is so sharp and apparent I confess that I lay down my official responsibilities in this field with a definite sense of disappointment. As one who has witnessed the horror and the lingering sadness of war -- as one who knows that another war could utterly destroy this civilization which has been so slowly and painfully built over thousands of years -- I wish I could say tonight that a lasting peace is in sight.

Dwight D. Eisenhower

http://coursesa.matrix.msu.edu/~hst306/documents/indust.html

[AntiFascist]

86. Consider this next time you travel overseas...

when will they begin hunting us down?

[redqueen]

9. Kick!

:kick:

[indepat]

10. Congressional minions in effect are saying "f*ck the rule of law"

[brer cat]

11. k&r great post!

[Raffi Ella]

12. Excellent post.Thanks kpete

The only way this President was able to break any laws was because the Congress allowed/enabled him to do it.
When we restore the checks and balances of the 2 party system to our Government I hope the Republican owned Congress is investigated just as thoroughly as the President is.

:kick:

[Just-plain-Kathy]

39. The only way we could win in Novemeber...

...is to get the word out to average voters, that it's been the Republicans in charge for the last six years.

Most people don't follow politics the way we do. All they hear is how bad and useless Democrats are. We have to show ads showing clips of Democratic Senators fighting to raise minimum wage. Or explain that it was the Democrats who saved Social Security.

"Subpoena Power" should become our mantra. Americans have to realize that the reason Bush has been getting away with murder is because his Republican-led Congress and Senate refuse to hold him accountable.

We have to WIN!! :kick: :kick: :kick:

[Raffi Ella]

49. You are SO right!!

I don't know if people realize that the Government is fully Republican at the moment...I mean you're right WE do but the average voter?

But the numbers are polling in our favor so...


Welcome to D.U. btw! :patriot:

[Tom Joad]

13. Could they also be held responsible for promoting, funding (!) wars

of aggression?

[petgoat]

14. Dahr Jamail said the US news media are prosecutable under

the Nuremberg Principles for stirrung up enthusiasm for
illegal aggressive wars.

Judith Miller to The Hague!

[Joanne98]

23. YES!

[kestrel91316]

87. Very interesting. I have to agree.

[The Magistrate]

15. Not A Chance Of It, Mr. Joad

Nor is the item pressed in the O.P. likely ever to become actionable. The fact is that a law in this matter that conflicts with the governing treaties would be un-Constitutional, and so will not stand when it is appealed to the Supreme Court, which it would be. The treaty requires the same process be extended to prisoners as would be extended to personnel of the country's own service.

[Demeter]

61. I Expect When the Washing Is Out On the Line, The Supremes Go To Hague

At least those who have been instrumental in this coup! I can hardly wait--this will be a time of caviar and champagne, not just popcorn.

[Independent_Liberal]

16. Ship the whole damn GOP off to the Hague!

:bounce:

[Bitwit1234]

17. A scholar of the Constitution answer this please.

The constitution says that (not in these exact words but the meaning is clear) warrant less wiretapping is illegal. The congress passed a law in 1978 giving permission to wiretap if within 72 hours a warrant is obtained.

Now the Weasel bush and his administration want to trash the constitution further, but trying to pass a law that gives them permission to wiretap when, where, how and without authorization. This was taken before a federal judge and the judge ruled it is unconstitutional. Now my question is this. How can congress PASS A LAW THAT VIOLATES THE CONSTITUTION. Isn't the only way to bypass something in the constitution is to pass an amendment, and after it goes thru both houses it has to be put before the public to vote on.

What my question is - is this, how can they pass this law and it be legal without going thru the proper procedure.

[Geoff R. Casavant]

19. Your analysis is 100% spot on.

Congress cannot pass an unconstitutional law -- but since it's the courts that declare constitutionality, the law will remain in effect until struck down, because legally all laws are presumed constitutional until ruled otherwise.

[The Wielding Truth]

32. It can't be legal in any sense. It is corrupt in many ways.

Any law that has been passed through both houses of congress cannot be retroactively reversed on a whim of the Executive branch. This cannot wait until the election. Stop this law rigging now! Organized crime has hold of the USA.

[geek tragedy]

36. Congress is the first judge of the constitutionality of its

own measures.

If the Supreme Court disagrees, then the measure is struck down.

Under our system, the Supreme Court does not issue advisory opinions, but only deals with actual cases and controversies, i.e. cases dealing with real world harm, instead of hypothetical rules.

If Congress passes a law that is unconstitutional, then it can get challenged in court.

[Geoff R. Casavant]

20. Jordan Paust taught me International Law

The man couldn't lecture worth spit, but his writing and reasoning are always excellent.

He was a former Army JAG, and I believe he was on the prosecution team for the My Lai massacres, so the man knows from war crimes.

[doctor_garth]

21. oh sure

that'll happen.

It'll b easier to just build a wall around the Capitol and call it a prison. They are ALL utterly corrupt, no exception.

[Joanne98]

22. Let them give him a free pass NOW!

[Anakin Skywalker]

24. Ah Hah Hah Hah. Send these bigwigs all to jail.

[Marrak]

25. You mean we don't...

have to subvert the Constitution and the Geneva Conventions to convict the Bush-War ba$tards?
<>

[focusfan]

26. I wish Bush's congress could be held accountable

that would be fun to look at

[texpatriot2004]

27. Seriously, how cool is that, the Cover-Up Congress can go down

with the whole Rethug criminal syndicate! Awesome!

[Red Right and BLUE]

28. bookmarked, kicked, recommended

and on that note, goodnight :)

[Land Shark]

29. A kick, a recommendation, and a chair thrown across the room n/t

[kpete]

30. Lets ALL

start throwing chairs!!!

Thanks Land Shark...

[Binka]

35. What About Shooting People In The Face?

And throw some chairs?!!?

[midnight]

31. If congress sits idly by why these war crimes occur then

they need to be prosecuted along with Bush and Co. Lets do it before Michael Lynne gets approval to microwave us.

[rosesaylavee]

33. Wonderful - they will answer

to someone eventually.

K & R and Bookmarked.

[geek tragedy]

34. Bullshit and dishonest legal reasoning. Completely preposterous.

The good professor didn't point to a single example where a legislator was found criminally liable for a vote. Under ANY legal precedent now honored by the community of nations.

Don't get me wrong--Rumsfeld, Cheney et al--those actually in charge of handling prisoners and their treatment--may very well be liable.

But subjecting legislators to criminal liability based on a vote? Horseshit.

[grizmaster]

41. He doesn't cite specific cases

but he does seem to indicate that similar issues have come up in international courts.

from the last paragraph

"Additionally, Congress should not attempt to provide domestic immunity for criminal violations of rights and protections contained in the Geneva Conventions. Tin-horn dictatorships attempt such forms of impunity, but the attempt would itself violate several treaties of the United States and (as Marcos, Milosevic, Noriega, Pinochet, various Argentinian generals, and others learned) have no legal effect abroad in foreign or international fora."

As to holding politicains responsible for rubberstamping crimes, isn't that what happened in the Nuremburg trials?

[geek tragedy]

46. There has never been a case of someone being

prosecuted (by a legitimate tribunal) for merely casting a vote in a legislative body.

That sovereign immunity argument is applied to the figures actually carrying out the war crimes and human rights abuses--Pinochet, Kissinger, Sharon, Saddam, etc.

It's an incredible stretch to suggest that there's accomplice liability for war crimes for casting a vote, as opposed to actually ordering torture or killings.

And those cheerleading this kind of rhetoric should deeply contemplate the prospect of lawmakers being prosecuted for their votes. It is an idea that is extremely hostile to the idea of Democracy itself.

[grizmaster]

53. This isn't an ordinary vote

they are advocating torture. Without precedent or not I have no problem with legisltors being held to account for advocating war crimes.

I'll defer to you on the legal background on this, but personally I like the idea of reminding the Congress of their responsibilities even if it is a bit over the top.

[geek tragedy]

62. There are lots of extraordinary votes.

Why not arrest people for voting to authorize the attack on Iraq? Why not arrest people for voting to fund it? Why not arrest people for voting for the AUMF that the administration cites for its authority to detain and torture people?

Congress does have a grave, constitutional duty to oversee the executive branch.

The punishment for failing this duty should be to be voted out of office.

[grizmaster]

64. I see your legal points (and the slippery slope inference)

but I still say let's make them defend it in court. They can shoot the case down with legal arguments but it will force them to defend in detail their passing legislation which condones war crimes.

Bet that will really improve their election chances.

Like you say, Congress does have a grave responsibility, let's remind them of that in every way we possibly can.

[geek tragedy]

65. To put it another way: Do you want liberals/progressives

put on trial for the way they voted?

Dangerous territory, my friend.

Prosecuting legislators for the way they voted is the stuff of banana republics and totalitarian regimes. One would expect it out of Pinochet's Chile or Mao's China.

[grizmaster]

67. I understand what you're saying

but since you bring up Pinochet and Mao, should those who rubberstamped their criminal juntas get away without any consequence? (The obvious trouble being determining who went along willingly and who was coerced)


I understand that you're saying the ballot box and criticism might be preferable because they don't involve setting dangerous precedents, and with that I'm in about 95% agreement. But having no possibility of legal repercussions smacks of the kind of excuses the Germans tried using during the Nuremberg trials.


Like you say, dangerous territory indeed. With a little luck and much effort maybe us Americans will be able to put aside such questions after November.

btw- Thanks for the food for thought

[geek tragedy]

73. I have no trouble whatsoever prosecuting the Kissinger's and the

Rumsfeld's and the Cheney's of this world.

What is troubling is extending criminal liability beyond those who commit abuses towards those who, in one way or another, made it possible.

I think these issues should be politicized and the voters should decide. If the American public genuinely wants the US to be a state that disregards these things, then the fault lies with the public.

Anyhow, hopefully we can throw those Repugs in Congress into the ultimate dungeon--minority party status.

[marions ghost]

81. And why is our being able to find

any correction to our disastrous course only "hopefully" dependent on castrating the party in power?

Why can't our government work better than this? This casting of one party into the dungeon, followed by throwing the other party into the dungeon--is this an effective way to run a country?

Blaming it all on the relatively powerless "voters" is not appropriate now. When a plane has been hijacked, you don't blame the passengers.

[marions ghost]

80. You're hitting some important points...

one thing that strikes me tho--should we really have to depend on "luck" to get us out of this political hellhole of nightmarish proportions? Can we really afford to 'put aside' such questions if we have "luck" in November?

I agree with you in general--there are not enough institutional safeguards against what has happened to this 'democracy.' I wouldn't water down that thought.

[Occulus]

60. The reasoning for this is further down in the article

It is set forth in Article 23(h) of the Annex to the 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land, which reads: “it is especially forbidden ... o declare abolished, suspended, or inadmissible in a court of law the rights ... of the nationals of the hostile party.” Similarly, as part of the law of war, a violation of the Hague Convention is a war crime.

I think what this means (IANAL) is, it's illegal under the Conventions to pass laws which violate the Conventions, and the act of doing do, by violating the Conventions, is in itself a war crime. This isn't hostile to democracy itself; this is a treaty we signed protecting itself.

Thus, there actually does appear to be liability for casting a vote which would constitute a war crime under the Genevea Conventions, and moreover, we previously agreed to such liability, and are bound to it by our own Constitution, which makes it the law of the land. Our Constitution even spells out as much in Article 6, clause 2.

The only possible 'wiggle room' I can find is that the Congress conducts its business in a Federal district, and not a state, and "therefore" "is not" subject to the provisions of that clause. That would be something the Bushies would probably try to argue: Congress doesn't conduct legislative business in a State, but in a Federal district, and are thus exempt from laws which refer to "in any State" or make similar references. Looneytunes, yes, but I wouldn't put it past this wonderfully brilliant bunch.

Someone else said it far more succinctly: everything Hitler did was legal.

[geek tragedy]

63. As a signatory to a treaty, the US is also free to withdraw from

the treaty at any time.

There is no such thing in International law as "Withdraw from this treaty, and you go to jail."

What that language means is that, IF you are a signatory to those conventions, you can't then suspend them. Tautologically, if Congress votes to suspend those obligations, it is in effect withdrawing the US as a signatory from the convention.

[The Magistrate]

66. The Congress Declares Nothing, Sir

What it passes is made law by the signature of the Executive, and that would be the "declaration" refered to, if anyone were ever to engage in the frivolous pursuit of this line before a panel of judges.

[TankLV]

48. Post withdrawn.

your posts below explain your reasoning adequately to me...

[Solly Mack]

37. and they should be

America tortures - it already violates Common Article 3. Congress should have already held Bush accountable. They're complicit now(for their inaction)...and they are well on their way to being accomplices.

If Congress writes law to by-pass Common Article 3, that is still a breach of international law (laws that the US used to hold the Nazis accountable, btw). - and while Congress can do that ("legally" under our laws), America would still be in breach of international law.(and a hypocrite, and a war crime nation, and would make Nuremberg a mockery)


Sure, it may become "legal" under our laws after Congress by-passes Common Article 3 to commit crimes against humanity (torture and everything else)...but it was legal under Hitler's laws to be a war criminal too.


Everything Hitler did was legal. Everything. Under German law, it was all legal.

Everyone does understand the significance of that, right?

It means the "law" can be used to legalize any crime, whatsoever...against anyone. Including you.
It means the law can be used to cover up torture and rendition and illegal dententions and the lack of due process.


That's not exactly something to emulate.

[melissinha]

58. doesn't the Constitution hold treaties as higher than domestic laws?

I remember hearing that the Constitution holds international laws to which we have signed as higher laws than our own laws, would that not prohibit Congress from "by-passing COmmon Article 3"?

[Solly Mack]

59. Congress can nullify a treaty by making a statute

at least that's how it's been interpreted before...supremacy clause is what it's called, IIRC

not so sure Congress can just nullify a portion of a treaty though without nullifying the entire treaty...Common Article 3 of the GC. But I do believe Congress can modify a treaty (precedent for it)

"As a result, Congress can modify or repeal treaties by subsequent legislative action, even if this amounts to a violation of the treaty under international law"

Very informative link
http://experts.about.com/e/t/tr/Treaty.htm

[marmar]

38. SOMEBODY needs to be held accountable....

:grr:

[civildisoBDence]

40. Good news, bad news

The bad news here, I think, is that while Congress may be morally culpable, it's not legally culpable.

The good news is that the possiblility of Congress being held responsible may prompt Congresspeople to more quickly and thoroughly prosecute DUUUUHbya and his cabal for their obvious war crimes and crimes against humanity.

Newsprism

[Marnieworld]

42. That's what I've been trying to say

;-)

I certainly haven't said it this well. This is the best thing that I've seen in a very long time. Love it. Love it. Love it. :woohoo:

[John Gauger]

43. Congress must be protected from liability

for their crimes. If there is a chance they will go to jail, they will not impeach Bush. Once Bush and Cheney are out, then we should look at putting members of Congress in jail. First thing's things.

[savemefromdumbya]

47. who is going to haul Congress and the POTUS, VPOTUS into court?

The Supreme Court won't do it? Can anyone else?

[intaglio]

68. Just imagine

April 2009 Bush goes to visit some good friends in, say, Australia. An Iraqi goes to the International Court of Justice in the Hague and asks for a warrant.

Remember what happened to Pinochet? :evilgrin:

[savemefromdumbya]

72. Bush would probably nuke the international court of justice

The French might get him in the end? LOL!

[WA98296]

50. Congress made it all possible...The media should be liable as well.

[Raffi Ella]

55. AMEN

The Media! ugh my GOD!My contempt for the media knows no bounds.

[aquart]

52. I wouldn't have a problem seeing them hang.

They will, however, be very healthy up to that point due to their excellent medical benefits.

[cali]

56. Yeah,

let's just fucking hang people for casting votes in a legislative body. That's the ticket.

[clydefrand]

54. Lordy lordy, I sure do love this growing amount of talk

about 'WAR CRIMES'. I hope the Hague is keeping up with all this and take action soon.

[Tierra_y_Libertad]

57. What a novel thought. Hold the bosses responsible?

Make the lawmakers obey the law? Naaah...we must respect our "leaders" and their devotion to humanity that allows them to vote for torture, imprisonment without trial, and kangaroo courts.

[lumberjack_jeff]

69. As a practical matter...

... The political system would have to be entirely replaced before any future leaders would offer their predecessors up for international justice. Think Nuremburg, Germany didn't volunteer their villians.

I don't see it happening. At worst, I could envision international warrants issued for the perps.

[Initech]

70. Good. Throw the whole damn government in jail.

They're all criminals at this point. Sure, there's a few bright spots here and there but as far as I'm concerned, everyone who voted for the war should be in jail, and that goes all the way up to the president. As for the people who helped SELL the war (you know - Beck, O'Reilly, Carlson, Coulter, Hannity, Limbaugh... ), they should all lose their broadcasting licenses and be sent to the very prisons they help endorse. We'd be much better off as a country if that happened.

[zestfolly]

71. see below

http://www.nogw.com/warcrimes.html

[illinoisprogressive]

74. I've been wondering about this for awhile

It's occurred to me that this may be the case. If congress, in thier rush to always lay down thier responsibilities to bush, is indeed an accomplice in his twisting of laws and the constitution. This would also make them in some way traitors to the country by forfitting thier duties, thier oaths and putting this country at risk. Allowing Bush to destoroy the bill of rights and constitution and not doing anything to fight for it.

[emald]

75. GWBusit is a war criminal

he advocates TORTURE, throws tantrums over it. This little puke needs to be in prison and read the constitution and the geneva conventions over and over till he gets it.
I can't understand why americans don't see the rotten and ugly core of this group of criminals running this country. Lies to start a war, lies to smear people who wont go along, torture when torture has been proving unproductive even if it wasn't a reprehensible act. The ruling junta of the GOP is rotten, ugly, vile, despicable, something a sane person would spit out of their mouth were it a flavor.
GWBushit is indeed a war criminal.

[Erika]

76. W is risking our own troops by jacking around the Geneva

Conventions agreement. He is saying that all countries can legally give their own interpretation of the agreements and change their own laws, and make it binding on other countries.

W has always been a snakeoil salesman. He wants our laws changed to protect his own ass from prosecution.

[Bette Noir]

78. He won't get it.

No matter how many times you make Bushie read the Geneva
Conventions, he won't understand.  Remember that reporter Bush
went off on this morning, who asked him whether he would want
an American, detained in Iran or Korea, to be interrogated
according to their own interpretations of the Conventions? 
Bush didn't see that for what it was-- a simple piece of
Golden Rule training.  

We're living in Germany, in the late 1930s. It's up to us, to
make sure it doesn't become Germany in the 1940s.

[NotGivingUp]

77. They are all criminals of the highest degree...lock 'em up and

throw away the key!!!

[orleans]

79. well, no matter how she votes, there goes hillary's run for president

too bad

:sarcasm:

[Roland99]

82. Impeach! Indict! Imprison!

[focusfan]

83. Bush shouldn;t be too good to go jail

if he does wrong he should go to jail along with congress

[Imagevision]

84. Bush covering his ass with geneva convention changes to protect

his crew from war crimes charges once the house and/or senate go to the Dems power grid. Bush knows he's broken the law allowing torture to run rampant on his watch.

[Imagevision]

85. Bush changing geneva convention rules to savee his own ass...