Well, that's pretty clear - except where it's not

[solarbird]

From Andrew Sullivan, the "compromise" agreement on torture and related trials:

IN GENERAL.-No person may invoke the Geneva Conventions or any protocols thereto in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party as a source of rights, in any court of the United States or its States or territories.

In short: you have no legal recourse under the Geneva Conventions in the US.

It's the first thing in the agreement. The first. Please don't misunderstand the importance of this: it is the end of American compliance with the Geneva Conventions. No enforcement is possible without legal recourse, and now there is no legal recourse under this treaty. This law, assuming it stands, effectively replaces it.

Bottom of page one:

(3) INTERPRETATION BY THE PRESIDENT.-(A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

The AP quoted part of this before, and let me excerpt out the most important part: "the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions." That means "the Geneva conventions mean whatever the current president wants them to mean, and apply to those to whom he wants it to apply." And, as stated above, you can't do anything about it. Again; they're dead in all but name.

Amusingly, in the same section, you get "(C) Nothing in this section shall affect the constitutional functions and responsibilities of Congress and the judicial branch of the United States." Note the clause "in this section." The part kicking the courts out of the arena with respect to the Geneva Convention treaties are in another section, making this clause substantially non-functional - but it may have an application later below. Keep reading.

This clause is curious:

“(1) PROHIBITED CONDUCT.-In subsection (c)(3), the term ‘grave breach of Common Article 3’ means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions does at Geneva August 12, 1949), as follows:

But you're prohibited from seeking redress from the courts by citing Geneva Convention rights. One hopes this adequately separate from that, but hey, it's hard to say, as it directly references the GC for its definition and does not reprint it. Can you seek legal recourse on this basis, or does the link disqualify it from judicial recourse? Is that what the previously-mentioned Clause C is about? One would hope, but I've no idea - there's certainly a lot of room for wiggling here. There are several other clauses similar to this one; the same commentary applies to them all.

Here's an interesting addition:

(D) the term ‘serious physical pain or suffering’ means bodily injury that involves:

(1) a substantial risk of death;

(2) extreme physical pain;

(3) a burn or physical disfigurement of a serious nature, not to include cuts, abrasions, or bruises; or

(4) significant loss or impairment of the function of a bodily member, organ, or mental faculty.

"Clarification" my shiny metal ass. Does this mean US personnel can sandpaper and/or cut and/or beat up people in custody now as long as it doesn't hurt too much? Does it mean you can cause major pain, but not "extreme?" What do those terms even mean? Do you mean you can cause lesser loss of a bodily member, organ, or mental facility? Could you, say, pull fingernails off? Hey, they'll grow back, right? And as for the pain - ha HA - topical anesthetic!

Don't laugh (or sneer) at that anesthetic crack - there are a variety of reports of cases like it under this administration's preferred regimen of interrogation, such as subjecting people to deadly cold, with medical intervention every so often to keep them alive.

Oh look, it's even retroactive, Section 9, Clause 3 of the US Constitution ("No Bill of Attainder or ex post facto Law shall be passed") be damned. (Emphasis mine.) It's interesting that it goes all the way back to 1997. I wonder what that means in terms of the date - what happened then? Or is it just an attempt to include the Clinton administration by implication in this bill, or is it just noise:

(2) RETROACTIVE APPLICABILITY. The amendments made by this section, except as specified in paragraph 2441(d)(2)(E) of title 10, United States Code, shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law 105-118 (as amended by section 4002 of Public Law 107273).

Interestingly - in the whole area of "adopting the ways of your (previous, in this case) enemy" - one of the big features of Soviet law was the implementation of many retroactive laws. These were often used to punish people who had committed then-legal acts, but people that the new Communist governments - particularly in Eastern Europe - wanted to remove as undesirables. They were also used against the politically unpopular. All you had to do was pass a law that applied retroactively, and then you could prosecute anyone for whatever you wanted!

I wonder how many more retroactive laws will be passed by this Congress and administration?

On page 5, you see something that looks promising:

(c) ADDITIONAL PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT.

(1) IN GENERAL.-No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(2) CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT DEFINED.- The term ‘cruel, inhuman, or degrading treatment or punishment’ in this subsection shall mean the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

but then you get to the catch - it's the administration's responsibility to police itself:

(3) The President shall take action to ensure compliance with this subsection, including through the establishment of administrative rules and procedures.

...implying strongly to me (and, I'm sure, to any available legal weasel team) that if the president doesn't want compliance, well, all he has to do is not do anything.

So. What do you have? The President gets the power to interpret the Geneva conventions to mean whatever he wants them to mean and to apply - and not apply - to whomever he wants. US personnel get immunity from prosecution from Geneva Conventions - ignore that bit in the Constitution about treaties being the law of the land. (Article 6, Section 2, if you're interested.) There are bans on "extreme" forms of disfigurement and torture, but all sorts of lesser forms are allowed - but the administration conducting them is the one that gets to decide what they are and are not, and gets to police itself. Somehow, I imagine that both the Bush administrations and future administrations will never find themselves in the wrong. And this, somehow, is the better bill. Little wonder the Bush administration was so eager to sign up for it.

This is not a compromise. This is a capitulation, a stage show set up to convince Americans that there is more to this Congress than doing nothing beyond sucking up to the fundamentalists and rubber stamping for the Bush administration. It has been a ragged bit of political theatre. I imagine that all we have to do now is see whether it'll work in November.

Comments

[llachglin.livejournal.com]

*speechless*

I just...damn.

OK, so this legislation was passed in response to a Supreme Court ruling. It seems likely that someone will challenge this law, which will eventually end up back before the Supreme Court. Is it possible that the court wouldn't just throw this out on any number of grounds? Maybe the silver lining here is that there's no way even the current court could let this stand. If so, this is just another stalling tactic. This may allow the Bush administration to play out the clock for the rest of their term.

But then what? At some point, either this policy becomes unchallenged law within the US, or much of the Bush administration is going to be criminally liable for violating the Geneva Conventions.

I can only hope that the new (fingers crossed) Democratic Congress will have the courage to overturn this legislation, but I'm not confident they'll have the numbers and the will. Still, I think the best hope for the survival of our country in any familiar form is a massive defeat of Republicans in November.

[llachglin.livejournal.com]

Oh, and this is definitely a stage show, for McCain's 2008 campaign. He'll get to pose as the principled survivor of torture who kept Bush's worst instincts in check, when the reality is that he's Bush's best servant in legalizing and normalizing torture by Americans. What a scumbag.

I don't see the Democrats running on this issue, but everyone paying attention should be absolutely sure: The best way to stop the normalization of torture and protect the Geneva Conventions and the US Constitution is to vote for Democrats in November.

[solarbird]

The ruling was based in large part on the fact that what the administration was doing had not been approved by Congress. The challenge, if any happens, will be different this time, and the ruling will have to be accordingly different.

[juliansinger.livejournal.com]

It hasn't /actually/ passed yet. I mean, given the capitulation by the 3 Republicans, it probably /will/ pass, quite quickly, but nonetheless, I like to at least pretend the Democrats might do something.

[torquemada.livejournal.com]

Also bear in mind that just about the first act of a Republican president, if we get one in 2008 that isn't Bush, will be to issue a pardon for the entire prior Administration except for any scapegoats they've already selected. You can bet that whoever even make it to the Republican primary will be pro-Bush. The Bushites would never dare let a dissenter in.

[cow.livejournal.com]

So what's needed is for someone to try to claim Geneva Convention, get denied by the courts, and go to the Supremes under III.9?

[banner.livejournal.com]

I need to look this over more closely, but I think this only applies to -civil- court, not criminal. Remember that the rules in civil court are much different than criminal, you're pretty much guilty until proven in civil court, and have to answer any questions asked of you, have no right against self incrimination, etc.

I can understand the government wanting to remove the civil courts from this process, considering all of the cases being filed civilly and not criminally.

Last of all, while you may disagree with this, treaty violations of -any- treaty are not under the jurisdiction of the US courts.

[banner.livejournal.com]

Actually I think I'm wrong on that last paragraph. I know there is some weird legal process that surrounds The Presidency and The Congress in those circumstances, which is different that everyone else because they are parts of the government. I do know that local law trumps treaty law, and that treaty laws fall into different catagories. Been a while since I studied that though.
(sorry about the screwed up anon post)

[solarbird]

No problems on the anon, LJ's SURPRISE! logouts are annoying, but I'm used to them now.

As I recall - and I checked the relevant amendment and it does not, at least, contradict my memory - it's a by-treaty question. That's why I made no complaint about that first action being unconstitutional; I think it's okay from that standpoint, tho' I'd need to read more of the Geneva treaties themselves to be absolutely, positively, sure. As you note, I think it's a bad idea - but I don't think it violates constitutional law.

[llachglin.livejournal.com]

Yeah, I actually know that, but I'm assuming it will pass in something like its current form. I hope I'm wrong.

[llachglin.livejournal.com]

They can pardon themselves on the way out. That theoretically leaves impeachment as the only option, but I don't see it happening.

[solarbird]

God, my brain is so broken. I hate these meds so much. I can't wait for the 28th.

I have to look this stuff up again. I'm leaving my previous reply up, but I have to try to force my brain to think about this a little bit more so I can get back to where I was when I wrote this. The big point is that without some form of enforcement, this renders the Geneva Constitution dead. I think this certainly violates both the spirit and intent of the idea of remedy. I'm not sure it violates the letter of the Constitution. It may violate the letter of the treaties. I need to look stuff up.

[brombear.livejournal.com]

Hell...at the rate this country's going, we need to nuke DC

[banner.livejournal.com]

If it protects American soldiers from nusiance suits then I think it's a good idea, but if it puts people beyond the criminal justice system then I don't like it. I can understand with all the people bringing lawsuits trying to get convention rights for people who don't legally deserve them that the government wants to stop judges ruling on stuff they have no right to.

I'm also a bit annoyed at people who want to give Geneva Convention rights to everyone and anyone. In the last 100 years we've only fought three countries that have honored the convention (Germany in WWI, and WWII, and Italy). Everyone else either hadn't signed it, or ignored it. And while I -do not- want us to use the same standards as those countries did/do, I would prefer not to completely tie our own hands against those people.

I'm also not sure this leaves it without enforcement. What effect does it have on Military (UCMJ) law? That is where war crimes are usually punished, not in civil courts or in criminal courts.

[wildshadowstar.livejournal.com]

Try this on for irony, I was listening to the radio while reading this post, and the song It's the End of the World as We Know It was on.

[juliansinger.livejournal.com]

I sort of assumed you did, I just wanted to express frustration that it probably WILL pass.

Rar.

[kitchengrrl.livejournal.com]

What a glorious time to be a history teacher introducing my kids to the Constituion..... They already have a complete lack of faith in goverment and people in general. Let's just reinforce that a little more, shall we?

[solarbird]

I dunno. This is the agreement, not the actual bill. So who knows what it'll turn into in the bill. And that's just the Senate version - it still has to go through conference committee.