Military Commissions Act34/38
‘(A) TORTURE.—The act of a person who commits, or
conspires or attempts to commit, an act specifically
intended to inflict severe physical or mental pain or suffering
(other than pain or suffering incidental to lawful
sanctions) upon another person within his custody or physical
control for the purpose of obtaining information or
a confession, punishment, intimidation, coercion, or any
reason based on discrimination of any kind.
‘‘(B) CRUEL OR INHUMAN TREATMENT.—The act of a
person who commits, or conspires or attempts to commit,
an act intended to inflict severe or serious physical or
mental pain or suffering (other than pain or suffering incidental
to lawful sanctions), including serious physical
abuse, upon another within his custody or control.
‘‘(C) PERFORMING BIOLOGICAL EXPERIMENTS.—The act
of a person who subjects, or conspires or attempts to subject,
one or more persons within his custody or physical
control to biological experiments without a legitimate medical
or dental purpose and in so doing endangers the body
or health of such person or persons.
‘‘(D) MURDER.—The act of a person who intentionally
kills, or conspires or attempts to kill, or kills whether
intentionally or unintentionally in the course of committing
any other offense under this subsection, one or more persons
taking no active part in the hostilities, including those
placed out of combat by sickness, wounds, detention, or
any other cause.
S. 3930—35
‘‘(E) MUTILATION OR MAIMING.—The act of a person
who intentionally injures, or conspires or attempts to
injure, or injures whether intentionally or unintentionally
in the course of committing any other offense under this
subsection, one or more persons taking no active part in
the hostilities, including those placed out of combat by
sickness, wounds, detention, or any other cause, by disfiguring
the person or persons by any mutilation thereof
or by permanently disabling any member, limb, or organ
of his body, without any legitimate medical or dental purpose.
‘‘(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY.—
The act of a person who intentionally causes, or conspires
or attempts to cause, serious bodily injury to one or more
persons, including lawful combatants, in violation of the
law of war.
‘‘(G) RAPE.—The act of a person who forcibly or with
coercion or threat of force wrongfully invades, or conspires
or attempts to invade, the body of a person by penetrating,
however slightly, the anal or genital opening of the victim
with any part of the body of the accused, or with any
foreign object.
‘‘(H) SEXUAL ASSAULT OR ABUSE.—The act of a person
who forcibly or with coercion or threat of force engages,
or conspires or attempts to engage, in sexual contact with
one or more persons, or causes, or conspires or attempts
to cause, one or more persons to engage in sexual contact.
‘‘(I) TAKING HOSTAGES.—The act of a person who,
having knowingly seized or detained one or more persons,
threatens to kill, injure, or continue to detain such person
or persons with the intent of compelling any nation, person
other than the hostage, or group of persons to act or refrain
from acting as an explicit or implicit condition for the
safety or release of such person or persons.
‘‘(2) DEFINITIONS.—In the case of an offense under subsection
(a) by reason of subsection (c)(3)—
‘‘(A) the term ‘severe mental pain or suffering’ shall
be applied for purposes of paragraphs (1)(A) and (1)(B)
in accordance with the meaning given that term in section
2340(2) of this title;
‘‘(B) the term ‘serious bodily injury’ shall be applied
for purposes of paragraph (1)(F) in accordance with the
meaning given that term in section 113(b)(2) of this title;
‘‘(C) the term ‘sexual contact’ shall be applied for purposes
of paragraph (1)(G) in accordance with the meaning
given that term in section 2246(3) of this title;
‘‘(D) the term ‘serious physical pain or suffering’ shall
be applied for purposes of paragraph (1)(B) as meaning
bodily injury that involves—
‘‘(i) a substantial risk of death;
‘‘(ii) extreme physical pain;
‘‘(iii) a burn or physical disfigurement of a serious
nature (other than cuts, abrasions, or bruises); or
‘‘(iv) significant loss or impairment of the function
of a bodily member, organ, or mental faculty; and‘‘(E) the term ‘serious mental pain or suffering’ shall
be applied for purposes of paragraph (1)(B) in accordance
S. 3930—36
with the meaning given the term ‘severe mental pain or
suffering’ (as defined in section 2340(2) of this title), except
that—
‘‘(i) the term ‘serious’ shall replace the term ‘severe’
where it appears; and
‘‘(ii) as to conduct occurring after the date of the
enactment of the Military Commissions Act of 2006,
the term ‘serious and non-transitory mental harm
(which need not be prolonged)’ shall replace the term
‘prolonged mental harm’ where it appears.Example:
‘‘(B) CRUEL OR INHUMAN TREATMENT.—The act of a
person who commits, or conspires or attempts to commit,
an act intended to inflict severe or serious physical or
mental pain or suffering (other than pain or suffering incidental
to lawful sanctions), including serious physical
abuse, upon another within his custody or control.”
Remembering that the
now stated definition of serious is :
‘‘(D) the term ‘serious physical pain or suffering’ shall
be applied for purposes of paragraph (1)(B) as meaning
bodily injury that involves—
‘‘(i) a substantial risk of death;
‘‘(ii) extreme physical pain;
‘‘(iii) a burn or physical disfigurement of a serious
nature (other than cuts, abrasions, or bruises); or
‘‘(iv) significant loss or impairment of the function
of a bodily member, organ, or mental faculty; andAnd also remembering that serious is now supposed to be a lesser category than severe….abuse versus torture.
And applying:
‘‘(E) the term ‘serious mental pain or suffering’ shall
be applied for purposes of paragraph (1)(B) in accordance
S. 3930—36
with the meaning given the term ‘severe mental pain or
suffering’ (as defined in section 2340(2) of this title), except
that—
‘‘(i) the term ‘serious’ shall replace the term ‘severe’
where it appears; and
‘‘(ii) as to conduct occurring after the date of the
enactment of the Military Commissions Act of 2006,
the term ‘serious and non-transitory mental harm
(which need not be prolonged)’ shall replace the term
‘prolonged mental harm’ where it appears.The result being that the definition of torture was so narrowed, or if you prefer, the bar set so high on what constitutes torture, that Bush could now claim “We don’t torture”, all the while engaging in torture.
The below article is well worth the read and fully explains how the
MCA of 2006 gets around the Anti-Torture Statute.
Prolonged Mental Harm: The Torturous Reasoning Behind a New Standard for Psychological Abuse“While the MCA has been attacked for provisions stripping habeas rights and expanding executive power,4 its further delineation of the U.S. position on torture risks
being overlooked.
Specifically, the MCA’s definition of mental torture does
not simply rely on the definition set forth in the Federal Anti-Torture Statute.5
Rather, the
MCA adopts a problematic interpretation of that statute
introduced by a 2004 memorandum from the U.S. Justice Department’s
Office of Legal Counsel (“OLC”) (the torture memos)
The 2004 memo, on which this Article will focus, narrows the definition
of torture by insisting that “prolonged mental harm” is an independent
element required for the crime of mental torture. This reading of the Federal
Anti-Torture Statute requires a separate showing of “prolonged mental
harm” in every case of alleged mental torture following one of four proscribed
acts.7 According to this requirement, no act, however obviously
damaging to the victim by its very nature, is psychological torture per se.
The OLC position would require accepting, for instance, that not every case
of administering “mind altering substances . . . calculated to disrupt profoundly
the senses,” and not every “threat of imminent death” would result
in prolonged mental harm, and thus are not always acts of torture.8 The
OLC position inverts the absolute prohibition on torture by introducing a
“wait and see” approach to psychological torture.9
This approach, as
adopted in the MCA, relies on selective support from U.S. case law, misinterprets
customary international law, undermines the purpose of the Convention
Against Torture (“CAT”), and ignores standard rules of statutory
and treaty interpretation.
(snip)
In some ways, the MCA’s definition of mental torture goes even further
than the OLC interpretation. It is not just that cruel and inhuman treatment
is “serious” and torture is “severe.” The definition of cruel and inhuman
treatment actually encompasses “serious or severe” harm. This blurs
the distinction between cruel and inhuman treatment and torture. The Geneva
Conventions and international criminal tribunals have always considered
cruel and inhuman treatment less severe than torture,35 traditionally
treating torture and cruel and inhuman treatment as a progression on a
spectrum of unlawful acts.
Actions that cause “severe” harm, creating prolonged
mental harm,36 could formerly only be classified as torture, but
under this new Act, they now might only amount to cruel and inhuman
Treatment. In practice, this could result in downgrading a torture charge to
a cruel and inhuman treatment charge.”
It allowed the Bush administration to inflict severe harm, call it “serious” - but not severe - and claim they weren’t torturing …because their actions (head slapping, stress positions, and even water-boarding, didn’t rise to the level of “severe” and “prolonged harm”…so no torture.
It downgraded torture, in other words, and grouped what was and is considered torture by others, into the cruel and inhumane category.
ACLU breaks down the same issues in a letter from Christopher E. Anders and Caroline Fredrickson ACLU Letter to the Senate Strongly Urging Opposition to S. 3930, the Military Commissions Act of 2006 (9/25/2006)
“RE: Oppose the Revised “Military Commissions Act of 2006,” S. 3930, Unless Amended to Correct Five Serious Problems that Undermine the Geneva Conventions and the Rule of Law
Dear Senator:
The American Civil Liberties Union strongly urges you to oppose S. 3930, the Military Commissions Act of 2006, unless amended to ensure that:
the President will have no authority to authorize any of the acts prohibited by Common Article 3 of the Geneva Conventions and the Army Field Manual on Interrogations, which reinforces the Common Article 3 prohibitions;
the courts are not stripped of their historical and constitutional role as a check on the Executive Branch, in ensuring that the protections of the Constitution and Common Article 3 of the Geneva Conventions are enforced;
government officials who authorized or ordered illegal acts of torture and abuse will not receive retroactive immunity;
no one can be convicted on the basis of evidence that was literally beaten out of a witness or obtained through other abuse by either the federal government or by countries such as Syria, Jordan, or Egypt that tortured and abused persons sent to them by the federal government;
at minimum, those acts which violate the McCain anti-torture amendment remain criminal acts under the War Crimes Act.
Unless Congress makes these five changes to the legislation, we urge you to vote “no” on the legislation.
Congress Should Not Give the President the Authority to Authorize Any Acts in Violation of Common Article 3 of the Geneva Conventions or the Army Field Manual on Interrogations
S. 3930 not only lacks any explicit prohibition against the horrific abuse inflicted on persons by the federal government during the past four and one-half years, but it provides the President with explicit authority to define Common Article 3 violations and revamps the War Crimes Act without providing any specific guidelines.
As a result, there is no clear bar to the Bush Administration once again authorizing the federal government to engage in illegal acts such as water-boarding, death threats, induced hypothermia, use of dogs, and stress positions. Paragraph 8(a)(3) of S. 3930 provides that “the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions,” while subsection 7(a) provides that the Geneva Conventions may not be invoked in any habeas or civil action “as a source of rights in any court of the United States.” As a result of these two provisions, the President will have unparalleled and unilateral authority to determine which interrogation tactics he will authorize.
Moreover, by revamping the War Crimes Act and retroactively applying the new provisions, S. 3930 replaces a provision criminalizing “grave breaches” of Common Article 3 of the Geneva Conventions with a list of violations that is less inclusive and less certain than current law. For example, subsection 8(b) of S. 3930 will give the Executive Branch and its prosecutors discretion to answer new questions such as:
- whether the “serious physical or mental pain or suffering” is different than “severe,”
- whether “cuts, abrasions, or bruises” can be the basis for a crime when they appear to be specifically excluded from the list of “serious physical pain or suffering,”
- whether the requirement of “bodily injury” in the definition of “serious physical pain or suffering” means that water-boarding cannot be “serious physical pain or suffering,” and
- whether the bill’s prohibition against “serious and non-transitory mental harm (which need not be prolonged)” bars prosecutions for brief use of water-boarding or mock executions.
Administration officials--instead of Congress--will be the ones specifying which acts fall within each of these new terms.
The problem is compounded by the White House’s refusal to state which practices are barred. In fact, White House National Security Advisory Steven Hadley refuses to state whether even water-boarding would be prohibited.
We have serious concerns about the lack of specificity because we have seen the results of the unlawful orders given, and the chaotic atmosphere created, over the past several years. In documents either provided to the ACLU in our Freedom of Information Act case or documented by the International Committee of the Red Cross, we have seen evidence of federal government employees engaging in acts such as soaking a prisoner’s hand in alcohol and setting it on fire, administering electric shocks, subjecting prisoners to repeated sexual abuse and assault, including sodomy with a bottle, raping a juvenile prisoner, kicking and beating prisoners in the head and groin, putting lit cigarettes inside a prisoner’s ear, force-feeding a baseball to a prisoner, chaining a prisoner hands-to-feet in a fetal position for 24 hours without food or water or access to a toilet, and breaking a prisoner’s shoulders.
As part of the McCain anti-torture amendment to the Defense Department authorization bill last year, Congress required the Defense Department to comply with the Army Field Manual on Interrogations. After a lengthy review, the Army Field Manual was revised and released earlier this month. As a result of this review and the requirements of this section of the McCain amendment, the Defense Department brought itself into compliance with Common Article 3 of the Geneva Conventions and explicitly prohibits all of these horrific practices.
Congress should insist that there should not be one set of rules for men and women wearing the nation’s uniform and a lesser set of rules for civilian contractors and the CIA. Everyone should be under one set of rules ensuring compliance with Common Article 3 of the Geneva Conventions. We urge Congress to require government-wide compliance with the Army Field Manual on Interrogations as a way to ensure that these horrific practices do not recur.
Congress Should Not Strip the Courts of Their Historical and Constitutional Role as a Check on the Executive Branch
Congress should amend S. 3930 to ensure that courts are not stripped of their historical and constitutional role as a check on the Executive Branch. In particular, the courts must retain their authority to ensure that the protections of the Constitution and Common Article 3 of the Geneva Conventions are enforced.
Section 6 of S. 3930 strips any alien deemed an “enemy combatant” of the right to be heard in court to establish his or her innocence, regardless of how long the person is held without charge. The Great Writ of habeas corpus is the foundation of our nation’s limits on arbitrary executive power over any person. Ironically, if S. 3930 had been law three months ago, the detainee who was the petitioner in the Supreme Court case that found the military commissions illegal, Hamdan v. Rumsfeld, could not have brought his challenge to the president’s illegal military commissions, and even a detainee who was being subjected to torture would never be allowed to seek relief from any U.S. courts. There is no reason to adopt this dangerously broad forfeiture of the traditional check of last resort on executive power. Denying access to the courts would also signal to the world that we so fear our own independent judiciary that we must cut off all access to it.
These problems are compounded by the grant of unilateral authority, in paragraph 8(a)(3), that “the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions” and by the provision in paragraph 8(a)(2) that “no foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions” in the revised War Crimes Act--which eliminates the most significant sources of law for interpreting Common Article 3 of the Geneva Conventions. Both of these provisions bolster the kinds of bizarre interpretations made by the Administration during the past several years of American laws prohibiting torture and abuse.
Congress should not pass S. 3930 unless it first restores the authority of the courts as a separate and independent branch of government. Congress should not pass a law that attempts to end the system of checks and balances for Executive Branch decisions on the use of torture and abuse.
Congress Should Not Give Retroactive Immunity to Government Officials Who Authorized or Ordered Illegal Acts of Torture and Abuse
Section 8 of S. 3930 provides a “Get Out of Jail Free” card to government officials who authorized or ordered illegal acts of torture and abuse--and then backdates the card to nine years ago. Subsection 8(b) of S. 3930 revamps the War Crimes Act to replace the prohibition on all breaches of Common Article 3 of the Geneva Conventions with a less inclusive list of prohibited acts. Paragraph 8(b)(2) of the bill makes the revisions to the War Crimes Act retroactive to 1997, and also makes the prohibition on “serious and non-transitory mental harm (which need not be prolonged)” inapplicable entirely until the date of enactment of S. 3930.
As a result, of these provisions in section 8, government officials who authorized or ordered illegal acts of torture and abuse will not be subject to prosecution for many of the acts that they authorized or ordered.
Unless these retroactivity provisions are changed, the government’s top torture officials may meet their objective of avoiding liability for authorizing and ordering illegal acts of torture and abuse. The last item on Gonzales’ list of “positive” reasons for the President finding the Geneva Conventions protections inapplicable was the most disturbing. Gonzales stated to the President that, “it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441
.
Congress Should Ensure That, at Minimum, Those Acts Which Violate the McCain Anti-Torture Amendment Remain Criminal Acts Under the War Crimes Act
Subsection 8(c) of S. 3930 restates the McCain anti-torture amendment, as enacted last year. However, unlike the Senate Armed Services Committee-reported bill on military commissions that made violations of the McCain amendment a war crime, S. 3930 restates the McCain amendment as a prohibition separate from the War Crimes Act.
As a result of this change from the committee-reported bill, there is a significant risk that courts may infer that Congress specifically excluded violations of the McCain amendment from the War Crimes Act. The result of such analysis could be a conclusion by courts that Congress did not intend for violations of the McCain amendment’s prohibitions to be the kinds of acts that violate the War Crimes Act, and therefore the new provisions of the War Crimes Act must require acts that are more severe than many of the acts that violate the McCain amendment.
Congress should avoid these possible interpretations of the revamped War Crimes Act by putting the McCain amendment in the War Crimes Act itself. By doing so, it would bolster compliance with the McCain amendment and avoid the possible result of a restatement of the McCain amendment in a non-criminal subsection being a cause for courts to raise the bar on acts that violate the criminal subsection of the legislation.”
The Bush administration, and not without the help of the 109th Congress, intentionally confused and conflated terms and laws , with all those torture memos, in order to get away with it all.
Now we have to see to it that they don’t.
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
