Newsgroup: it.politica.internazionale
Titolo: Consigli legali per torturatori

http://slate.msn.com/id/2102203
Cooking Up Excuses With the Pentagon
How to torture alleged terrorists and get away with it.
By Phillip Carter
Posted Thursday, June 10, 2004, at 1:42 PM PT
Whether giving advice to corporate executives or senior government
officials, lawyers often walk a fine line between counseling their clients
on how to follow the law to avoid prosecution and how to break the law in
such a way as to frustrate and impede prosecution. Good lawyers know they
can usually make any advice seem like the former, through the judicious
inclusion of a few caveats, hypotheticals, and assumptions.
However, no amount of caveating can save the latest Defense Department
memorandum on the legality of
torture[
http://online.wsj.com/public/resources/documents/military_0604.pdf
]
(first reported by the Wall Street Journal) from being construed as what it
is: a cookbook on how to conduct
illegal torture and get away with it. The memo discusses ways to deprive
federal courts of jurisdiction over Guantanamo Bay, lays out ways for
government employees to avoid culpability under federal law, and explains
why the president can unilaterally nullify the federal war-crimes statute,
among other things. In case that's not enough, it also recommends that
spooks and interrogators get written orders from the president, so they can
offer a Nuremberg-style "superior orders" defense if prosecuted.
In any criminal or civil case, courts must start with the question of
whether they have jurisdiction to hear the case in the first instance.
Appropriately enough, the memo explains how to avoid the exercise of
American jurisdiction over Guantanamo Bay. Notably, the memo concludes that
the federal anti-torture statute does not apply to American personnel at
Guantanamo Bay because that base is within the "special maritime and
territorial jurisdiction" of the United States-while the torture statute's
text limits its application to locations "outside of the United States." The
fact that the offenses happen on U.S. military property means they're
outside the reach of U.S. criminal law. This is hairsplitting with the
precision of an electron microscope, but it produces the desired result for
the Pentagon: America's anti-torture statute does not apply to the place
where we are holding detainees in the war on terrorism.
Anyone who's been paying attention to this year's Supreme Court docket will
find this conclusion extremely ironic. The Pentagon lawyers argue in the
memo that Guantanamo Bay is within the United States' "special maritime and
territorial jurisdiction" for offenses committed by our soldiers, but in the
Supreme Court cases they contend that it is not within the federal courts'
jurisdiction for purposes of a lawsuit by Gitmo detainees. There is a rule
(laid out in the 1950 case Johnson v. Eisentrager) regarding "enemy aliens"
and their access to U.S. courts when they are not on U.S. soil. However,
that distinction evaporates when these aliens are being held somewhere
within U.S. jurisdiction, as the Defense Department concedes in this memo.
It would be a gross understatement to say that this Pentagon memo
contradicts the U.S. government position as argued by the solicitor
general's office in the Guantanamo case now before the Supreme Court. The
two positions are in fact irreconcilable.
The memo goes on. Another recommended technique for keeping DoD personnel
out of jail concerns the intent that must be proved in a torture
prosecution. Here, the memo gets really Kafka-esque. "A defendant is guilty
of torture only if he acts with the express purpose of inflicting severe
pain or suffering on a person within his custody or physical control." It's
not enough, in other words, for severe pain or suffering to accidentally
result from torture. According to this tortured (sorry!) interpretation,
only a real professional (picture the Marquis de Sade of Gitmo) can in fact
be guilty of torture since only such an expert would have the requisite
knowledge of torture's effects, such as the causal relationship between
sleep deprivation and post-traumatic stress disorder. Amateur practitioners,
such as the reserve military police soldiers who currently staff Gitmo,
wouldn't likely be guilty under this statutory interpretation, because
they're not expert enough on how to punish the mind and body.
Much of the memo focuses on the federal anti-torture statute, because
presumably that statute is applicable to American activities at Gitmo. But
the Pentagon's lawyers also take their best shot at the federal war-crimes
statute, too, perhaps the next-biggest legal threat for U.S. officials who
might use torture to pump detainees for information. In a wonderful example
of circularity, the lawyers state: "The Department of Justice has opined
that [the federal war-crimes statute] does not apply to conduct toward
al-Qaida or Taliban operatives because the president has determined that
they are not entitled to the protections of Geneva and the Hague
Regulations." It's never a good sign when lawyers refer to other lawyers'
opinions (as opposed to laws or court decisions) as authority for a legal
argument. Here, the reason for this self-referential passage is obvious: No
court or legislature has said the president has the power to unilaterally
nullify a signed treaty and a federal statute. This argument can be
bolstered only with legal memoranda from other executive branch attorneys
who have drunk the Kool-Aid.
Where the laws have spoken, they have generally said the president indeed
lacks the legislative power to nullify a statute in this way. Article II,
Section 3 of the Constitution grants the president the power to "recommend .
such Measures as he shall judge necessary and expedient," but this only
confers the power to send legislation to Congress, like the annual budget.
It does not, as president Truman found out in the famous Korean War case
Youngstown Sheet & Tube Co. v. Sawyer, allow the president to unilaterally
change or simply ignore the law. Similarly, the president cannot
unilaterally set aside the Geneva Conventions. Once ratified by the Senate,
such treaties become the law of the land. The president can no more set
binding international agreements aside than he can set aside the federal
open-meetings act or murder statutes.
To pre-empt this criticism, the Pentagon's lawyers point to the executive
power of the president to act both as commander in chief of the military and
as chief prosecutor. The memo contends that the sole discretion to prosecute
wars and prosecute criminals lies with the president, and if the president
wants to set aside laws (like the torture and war-crimes statute), he can do
so by declining to prosecute them. On Page 24, the draft memo states:
Any effort by Congress to regulate the interrogation of unlawful combatants
would violate the Constitution's sole vesting of the Commander-in-Chief
authority in the President. . Congress can no more interfere with the
President's conduct of the interrogation of enemy combatants than it can
dictate strategy or tactical decisions on the battlefield.
It is true that the president enjoys primacy in the area of foreign affairs.
But where criminal conduct and foreign policy intersect, the Constitution
gives the other two branches a say too. Most obviously, Article I of the
Constitution gives Congress the power to "make Rules for the Government and
Regulation of the land and naval Forces" and to "define . Offences against
the Law of Nations." And according to the seminal case Marbury v. Madison,
"It is emphatically the province and duty of the judicial department to say
what the law is"-not the duty of Pentagon or Justice Department lawyers.
Of course, it's not the lawyers we should be worried about. The lawyers who
drafted this memo face little risk of prosecution, and they're not the ones
in harm's way. We ought to be concerned about the soldiers and spooks
charged with executing these missions, though, especially when they're asked
to act on the basis of such shoddy legal advice. The Bush administration has
created an atmosphere of legal ambiguity where the laws of armed conflict
are concerned. This laissez faire attitude toward the law of war has
filtered down to the lowest levels of command, where tactical decisions
about taking detainees and targeting artillery are conducted. Before the
events of 9/11 and America's global war on terrorism, soldiers and spooks
had at least a few bright-line rules: Never target civilians; never beat
prisoners; never violate the Geneva Conventions. Those rules have now been
blurred by bad legal advice from the top lawyers of the Bush administration,
with predictable results. Case in point: American soldiers training on how
to beat recalcitrant al-Qaida detainees learned their craft so well, they
put one of their own brethren, an American soldier, out of the service with
permanent brain damage. The great moral hazard of bad legal advice is not
that it will corrupt the lawyers offering it, but that it will engender
criminal behavior by those who follow it in the belief that their lawyers
are right.
"Law" and "war" may seem like the ultimate oxymoronic pairing, but until
now, the United States has led the world in trying to harmonize the two.
Until recently, American soldiers and diplomats could rightly claim that no
other nation integrated the law into its conduct of war more than we do.
Today, America's ambassadors abroad can no longer make that statement. That,
in turn, undermines our ability to force other nations to adhere to
international law, since we no longer lead by example. More practically, our
soldiers used to take comfort in the principle of reciprocity where the laws
of war are concerned; now they have to worry about reciprocity from our
enemies. We must return to the old bright-line rules which used to govern
our conduct in war, both because it's the right thing to do and because it's
in our interest to do so.

 wrote in message
news:ax7Tc.39350$1V3.1...@twister2.libero.it...


senza motivo apparente.
Se lo dici tu... :)
-Stefano


#_Piu`che risaputo di un tassista di Kabul, completamente ignaro di quello
che stava succedendo e di un quindicenne Afghano, preso e tenuto per piu`di
un anno, btw tutto felice, quest'ultimo, di aver potuto mangiare e di aver
imparato l'Inglese (un po' meglio di quello che sai tu, ari-btw) come: Yes
sir ... No sir ...I don't know sir..I'm innocent sir. :)
G.

#_Piu`che risaputo
... DA CHI?  Da te? :)
*LOL*
-Stefano

 *LOL*
#_Da tutti quelli che hanno seguito le due storie su BBC.
G.

Se tu sai in quale Paragrafo e articolo,
Art.4
Buona lettura :)
-Stefano

 wrote in message
news:411DC767...@people.it...

Questo?:
---
access to prisoners of war
Captured medical personnel or members of the Red Cross or other aid
organizations must be allowed to periodically visit prisoners of war in
labor units or hospitals outside the camp. ( Convention I, Art. 28a )
Representatives of the protecting powers shall have permission to visit all
places where prisoners of war may be, particularly to places of internment,
imprisonment and labor. They must be able to interview the prisoners without
witnesses, either personally or through an interpreter. ( Convention III,
Art. 126)
----
Questo?:
----
interrogation of prisoners of war
Prisoners of war are only obligated to provide names, ranks, date of birth,
army, personal or serial identification numbers or equivalent information.
Failure to do so may result in loss of special privileges. (Convention III,
Art. 17)
No physical or mental torture, nor any other form of coercion may be
inflicted. Prisoners who refuse to answer questions may not be threatened,
insulted or exposed to unpleasant or disadvantageous treatment of any kind.
(Convention III, Art. 17)
Prisoners of war must be questioned in a language they can understand.
(Convention III, Art. 17)
--------
G.

 Questo?:
Meglio che vai in qualche scuola elementare a farti insegnare i numeri e
a contare :)
-Stefano

 wrote :

Ops ! e la bbc ? E' diventata di colpo una fonte autorevole ?
Ma guarda :) basta dirgli "bu ! bbc !" e lui glissa :)

 wrote in message news:2o65njF...@uni-berlin.de...

Forse tu non hai capito che io vivo a 10 ore di distanza e la notte dormo...
Poi , detto per inciso,mi frega un ceppo di portare le prove a De Cesari ,
le portasse lui per appoggiare cio`che contesta...perche`mi devo andare a
leggere tutta la Convenzione di Ginevra per non trovare quello!?
Per me poi certamente la BBC e` una fonte autorevole, specialmente quando fa
interviste coi personaggi in questione.
Giano

 wrote in message
news:411DD631...@people.it...

#_Perche`non porti tu questo benedetto art.4, a contestare quello che ho
scritto?
G.   rrrr

Per me poi certamente la BBC e` una fonte autorevole,
Il che dice molto :)
-Stefano

#_Perche`non porti tu questo benedetto art.4,
Perche' dovrei? :)  Se non sai contare e non ti hanno insegnato i numeri
non e' colpa mia :)
Riprova, sarai piu' fortunato :)
-Stefano

 *LOL*
#_A pezzo de' mignotta! Tu hai nominato la Convenzione di quella troia di
Ginevra...portalo tu 'sto cazzo de art.4...!!!
...TU  HAI  AFFERMATO  CHE  'NON SONO'  MILITARI  NORMALI;  SU  COSA  BASI
QUESTE  AFFERMAZIONI ????
G.   rrrr


Il ragazzo tredicenne:
http://www.rfsafe.com/tributes/article-print-677.html
............
Naqibullah, 13, is back home in eastern Afghanistan. He spent much of his
time in captivity in Camp Iguana, the children's section of the US detention
centre on the tropical island of Cuba. The teenager said he felt fine and
was happy to tell his story. He had never even been to Kabul, let alone
outside Afghanistan, before he was taken prisoner by the Americans. "I
hadn't done anything, but they suspected me because I was standing next to
some men who had guns," he said. "I told them I was innocent. I don't even
know how to use a gun."
.........
There is no bitterness or anger, but the boy learned enough English to make
this one demand of the Americans: "I want the Americans to pay me because I
was not a criminal. I want them to help me become a doctor."
------------------
Il Tassista:
http://news.bbc.co.uk/1/hi/world/americas/3034697.stm
Said Abaseen is a taxi driver from the Afghan capital, Kabul.
He set out on an ordinary day's work last July - and ended up in Cuba,
15,000 kilometres (9,300 miles) from home.
He was held at Guantanamo Bay for nine months, before being classified as of
low intelligence value and sent back to Kabul in March - part of the first
substantial group to be set free.
-----------------
Giano
~God bless Gu'gl

 ...TU HAI AFFERMATO CHE 'NON SONO' MILITARI NORMALI;
No. Io ho affermato che per essere "militari normali" devono rispondere
a determinate condizioni :)
-Stefano

the first substantial group to be set free.
Qui non dice nulla sul fatto che avesse fatto qualcosa o meno.
-Stefano

 Qui non dice nulla sul fatto che avesse fatto qualcosa o meno.
<@,@>
#_Difatti dice che NON AVEVA FATTO NIENTE, guidava un taxi e da un giorno
all'altro s'e`trovato a 15'000 chilometri di distanza da casa sua! :)

 #_Difatti dice che NON AVEVA FATTO NIENTE,
Davvero? E dove lo direbbe? :)  *LOL*
-Stefano

 wrote in message
news:411DD631...@people.it...

#_L'Afghanistan e`firmatario della Convenzione di Ginevra.
http://www.amnesty.org.il/11sep/afgh10.html
Guantanamo and Afghanistan prisoners
Amnesty International: Geneva Conventions Apply to All Prisoners
February 7, 2002
----------------------------------------------------------------------------
----
(Washington, DC) - Amnesty International is dismayed at the Bush
Administration's continued willful misinterpretation of the Geneva
Conventions.
"The Geneva Conventions apply to every one of the prisoners held at
Guantanamo and those detained in Afghanistan. The Conventions require that
when there is a dispute over a prisoner's status, a 'competent tribunal'
must make the final determination on a case-by-case basis. The President
cannot fulfill that role," said Vienna Colucci of Amnesty International USA.
"This partial compliance with the Geneva Conventions is a half-measure and
continues an arrogant policy of pick and choose with regard to the laws of
war."
Article 5 of the Third Geneva Convention requires that, where there is a
question as to prisoners' status, they should be treated as POWs until a
competent tribunal determines otherwise. Amnesty International believes that
an independent US court can best fulfill that function. Neither the
Secretary of Defense, the President, nor any other administration official
has the authority to determine to whom the Geneva Conventions apply and
whether those in detention have POW status under the Conventions.
Even if an independent court were to determine that individuals currently in
custody are not POWs, those individuals would still be entitled to the
fundamental protections set forth in the Geneva Conventions, which apply to
all persons who are not, or are no longer, taking part in hostilities. These
include the rights to humane treatment and to a fair trial.
Failure to protect prisoners against inhuman treatment and denying them a
fair trial would constitute grave breaches of the Geneva Conventions.
----------------------------------------------------------------------------
---
G.

 wrote in message
news:411DD631...@people.it...

#_Ecco l'art. 4 della Convenzione di Ginevra; Convenzione che L'Afghanistan
ha firmato:
-----
Art. 4. Persons protected by the Convention are those who, at a given moment
and in any manner whatsoever, find themselves, in case of a conflict or
occupation, in the hands of a Party to the conflict or Occupying Power of
which they are not nationals.
Nationals of a State which is not bound by the Convention are not protected
by it. Nationals of a neutral State who find themselves in the territory of
a belligerent State, and nationals of a co-belligerent State, shall not be
regarded as protected persons while the State of which they are nationals
has normal diplomatic representation in the State in whose hands they are.
...........
#_ Cos'e` che non e` applicabile ai prigionieri fatti in Afghanistan?
G.

L'Afghanistan ha firmato:
Acqua! :)
Hai preso quella che riguarda i civili in tempo di guerra.  Si stava
parlando di "militari" :)
Ti ho detto: vai in una scuola elementare a farti insegnare i numeri e a
contare :)
-Stefano

 wrote in message
news:411F5482...@people.it...

#_Ecquello quarto e`!
Forse tu ,Messalina, con quell'altra collega Ginevra c'avete una Convenzione
fatta tutta da voi due!?
Ettira fuori 'sto cacchio de articolo 4 !!!!
G.   rrrr