Torture, backwards logic and catch-22

(9 am. – promoted by ek hornbeck)

(I just posted a version of this over at DailyKos and I thought it might be appreciated here.)

This is interesting. I don’t know how much relevance it actually has at this point but I end up researching odd things throughout the day and I found this.

There have been a few instances of soldiers going AWOL and fleeing into Canada instead of fighting in Iraq. At the time this was happening, a lot of people were saying horrible things about these soldiers. That was stupid to say even without knowing what we know now but still, it’s worth talking about.

When these soldiers were tried, they used the defense that it’s an illegal war and violates international law. And still others used the defense that soldiers who would’ve gone to war would’ve been forced to participate in illegal acts.

One of the judges, in a ruling against one of these soldiers, in 2007 said there’s no evidence the US “as a matter of deliberate policy or official indifference, required or allowed its combatants to engage in widespread actions in violation of humanitarian law.”

So, maybe these cases are worth another look? We can argue that a lot of these people were using legal defenses and weren’t actually able to see the future, or whatever. But they were, you know, right.

This goes way beyond a single case, as I’ve only read about Iraq war resisters who fled to Canada, specifically. While we’re already fucking over the troops, since they’ve thus far been the only people arrested for war crimes and torture while administration officials get off with no punishment, I feel like this should get more attention. I do just want to note that this is a single case and more could be written about this issue.

I know this case doesn’t specifically involve torture but given recent developments, and actually including information about torture, this is increasingly screwed up.

There are a lot of problems I have with decisions like this. Aside from saying that there was no reason to think that the US was going to violate international law, the defense specifically cited two of Alberto Gonzales’ memos about torture and Geneva Conventions applicability to detainees, and this was rejected as proof of planned violations of law.

I don’t know where to start. So the memos can’t be cited by soldiers seeking asylum for evading war, even when they might end up being forced to break international laws. Can they be cited by soldiers who were ordered to break laws? Apparently not since soldiers were tried for torture at Abu Ghraib and weren’t able to use this defense.

So, there are these memos, but they can ONLY BE CITED by administration officials and only to get themselves out of trouble for torture.

I’m gonna quote extensively from the opinion since it’s a government document and probably doesn’t break fair use:

[70]In support of his contention that he could well have been called upon to commit human rights violations, had he gone to Iraq, Mr. Hinzman pointed to evidence regarding conditions at the Guantanamo prison facility in Cuba, to incidents of torture at the Abu Ghraib prison in Iraq, and to two legal opinions prepared by the American Department of Justice (the “Gonzales opinions”), suggesting that the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, UN Doc. A/39/51, 1984, entered into force June 26, 1987, might not apply to the interrogation of ‘enemy combatants’ held by the United States.

[72]Before the Board, Mr. Hinzman contended that if he were required to participate in offensive action in Iraq, potentially killing innocent civilians, he would be excluding himself as a Convention refugee or person in need of protection by virtue of s. 98 of the Immigration and Refugee Protection Act. In such circumstances, Mr. Hinzman submitted that any punishment that he might receive for deserting would be persecutory per se.

[73]After reviewing the evidence adduced by Mr. Hinzman, the Board concluded that Mr. Hinzman had not shown that the United States had, either as a matter of deliberate policy or official indifference, required or allowed its combatants to engage in widespread actions in violation of international humanitarian law. Citing the decision of this Court in Popov v. Canada(Minister of Employment and Immigration) (1994), 24 Imm. L.R. 242, the Board noted that isolated instances of serious violations of international humanitarian law will not amount to military activity that is condoned in a general way by the State.

See? It’s not state-sanctioned activity! Er… wait. It was. But don’t worry, we’re gonna argue that nobody was targeted for torture or anything. And we’re even going to say that “human rights violations” were investigated and the “guilty parties punished” because we want to be as bizarre as possible.

[176]In this case, the Board did canvas the evidence before it in some detail. While recognizing that violations of international humanitarian law by American soldiers had occurred in Iraq and elsewhere, the Board also noted that the evidence revealed that civilians were not being deliberately targeted by the American military, and that incidents of human rights violations by American military personnel were investigated, and the guilty parties punished.

See! The violence and stuff was all those stupid American soldiers. The legal memos used here, just the Gonzales ones, so I guess MAYBE they didn’t see the ones specifically justifying torture, are only legal opinions and aren’t a policy statement! The US didn’t create a POLICY that Geneva Conventions don’t apply through these legal memos. No, that was created through Bush’s executive orders. But who’s paying attention?

[178]While the content of the Gonzales opinions is unquestionably disturbing, one must not lose sight of the nature of the documents. The opinions are just that – legal opinions prepared for the President of the United States. They do not represent a statement of American policy. In these circumstances, I am not persuaded that the probative value of the Gonzales opinions is such that the failure of the Board to specifically discuss them in its decision amounts to a reviewable error.

They are disturbing but are just opinions! I am unpersuaded! I hope this person didn’t read Mein Kampf and think, ooh that silly little German and his opinions.

This gets even more amazing… apparently the judge thought that arguing you would be in violation of the Nuremberg principles if you went into an illegal war where illegal policies violating international law and Geneva Convention, well, that wasn’t a good argument… because you didn’t make policy-level decisions on those issues:

An individual must be involved at the policy-making level to be culpable for a crime against peace … the ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict. Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper.

So, if you are a soldier and you fight in an illegal war and you do illegal things that’s okay because you didn’t create the policy. It’s a reversal of the Nuremberg principles, completely, but it’s okay and what could go wrong?

Unless it’s not okay, which sometimes it won’t be, like when we prosecute soldiers for torturing here. Then if you torture, even if it’s policy, you’ll get prosecuted. Because “just following orders” violates the Nuremberg principles, you see?

And then if you create the illegal policy or illegally justify it, you can argue in op-eds and on teevee and stuff that you can’t be prosecuted because you were just following orders. And you can also argue that it’s okay you did these illegal things because you didn’t create the policy. And if you did create the policy you can argue that it’s legal! See? I have legal memos!

Really, it’s win-win. Unless you’re a soldier, then you’re fucked. But who cares, right?

This seems really obvious to me. The United Nations High Commissioner for Refugees handbook, paragraph 171 says:

171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.

But, of course, the decision says:

[69]The Board also rejected Mr. Hinzman’s assertion that the type of military action with which he did not wish to be associated in Iraq – that is, the specific acts that he would personally have been called upon to perform – were ones that were “condemned by the international community as contrary to basic rules of human conduct”, as that phrase is used in section 171 of the UNHCR Handbook, and that, as a result, any punishment that he might receive for deserting would be persecutory.

Now that they, um, were, perhaps we can revisit stuff like this? This is a horrible catch-22 situation. If you desert because you think you will be forced to commit illegal activities, that’s bad and you should stay in the military and commit the illegal activities, because you won’t get in trouble. Then when you get in trouble, you should have reported it. But if you reported it, hey, it’s all backed by legal memos and why do you hate America? The acts weren’t condemned by the international community, and so you should’ve stayed in the military if you wanted to avoid getting in trouble, but the second they are condemned, you’re in trouble. Which they were condemned. But you’re still in trouble. If you desert you’re punished for deserting and if you are punished for deserting because you didn’t want to break international laws, then you are punished AND it’s considered persecutory. Because if you desert and don’t end up committing these acts, but get in trouble anyway, that’s bad. Unless you’re still in trouble no matter what… which is the case now.

But getting the people who created all these things in trouble, that’s really bad! And we shouldn’t! Because it violates the Nuremberg principles! Or it doesn’t! Or we think they don’t apply in some cases! Only when we can screw the troops though, not the people in charge. That’s unAmerican.

The opinion says that the UCMJ allows possibility of death for desertion:

[83]Moreover, the Board concluded that the punitive articles in the UCMJ were not grossly disproportionate to the inherent seriousness of the offence of desertion. Although the UCMJ allows for the theoretical possibility of a sentence of death for desertion, the Board noted that, in practice, the last time a deserter was sentenced to death was during the Second World War.

Also, the CIA torture does not involve the same laws, because the UCMJ does not apply to the CIA. So, while soldiers can get punished for the policy of torture, the CIA can’t. NPR says:

But even Volzer acknowledges that convicted military personnel like Graner, considered the ringleader of the abuse at Abu Ghraib, face an onerous, if not impossible, road to making a case that their convictions and dishonorable discharges deserve a fresh look.

“It’s very difficult to do anything with the courts,” he says.

Defense lawyer Gary Myers was more direct.

“The simple, unvarnished truth is that the individual conduct of those at Abu Ghraib was clearly in violation of existing criminal statutes,” he says.

A lawyer specializing in military law, Myers represented then-Staff Sgt. Ivan Frederick, convicted of Abu Ghraib-related charges that included conspiracy, dereliction of duty and maltreatment of prisoners.

In those criminal statutes, under the heading of the Uniform Code of Military Justice, Congress has set out what is considered the bedrock of military law.

The code details how military members worldwide are to conduct themselves, including their interactions with prisoners.

And it requires the court-martial of any military person “guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders.”

“You can’t maltreat prisoners – it’s a law,” Myers says. “And the CIA is not subject to the Uniform Code of Military Justice.”

Double standards and catch-22s! Woot! So if soldiers go to an illegal war and are ordered to participate in illegal things, they can be charged through the UCMJ, even though they should go to war because those on an administrative level and in charge of creating policy are the ones who will end up getting in trouble, not the soldiers. Except… well you know.

They got something right but also managed to fail at the same time:

[195}While conceding that Mr. Hinzman would be accorded due process in the United States (note: HAHAHAHA!), the applicants nevertheless submit that the Board failed to recognize or address the fact that he was unable to assert his conscientious objection to the war in Iraq, as a result of the under-inclusiveness of the American law relating to conscientious objection.

Yes, this will all be settled lawfully and justice will be served and due process will occur. And then after we all wake up from our dreams…

The SCOTUS refused to hear the appeal, at least in this one case, awhile ago, by the way.

Maybe situations such as this merit another look. The Abu Ghraib cases definitely deserve another look, especially if we are not going to investigate lawyers who tried to justify torture or administration officials who created the policy. In light of our unwillingness to go after them, we should rethink our approach toward troops who are getting screwed over.

Actually we should do this even if we do the right thing and prosecute those in charge, they should be the ones punished for this.


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  1. I thought it was interesting. It made my brain hurt so much.

  2. catch 22… you got it.

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