changes the fact that the US IS a party to Geneva and is responsible for upholding it IN FULL. To use a letter from the DOJ is, dare I say, laughable. Their credibility is less than zero, of that I am SURE we can agree.
Oh, and the US Supreme Court ruled against the DOJ re this very issue:
It is only with the Supreme Court's recent Hamdan decision that the threat of prosecution under the War Crimes Act became somewhat more real. Although it is still unlikely that any prosecutor, now or in the future, would have the political will necessary to bring even the most-well-founded war crimes charges against U.S. officials, such cases are theoretically possible.
The Hamdan Court, in direct contradiction to the President's January 2002 declaration, found that Common Article 3 of the Geneva Conventions covered detained terrorist suspects. And as Justice Anthony Kennedy stressed in his concurrence, violations of Common Article 3 are punishable as war crimes under the War Crimes Act.
http://writ.lp.findlaw.com/mariner/20060816.htmlBecause Hamden totally blew away the DOJ's pathetic attempt to evade accountability, this "made in US" definition of torture came about (again, simply because the US chooses to "interpret" Common Article 3 of the Geneva Conventions more narrowly than they were written and signed onto doesn't negate the US responsibility to uphold the treaty as written).
This is the "definition" of torture as re-interpreted by the US:
(1) “torture” means an act committed by a person acting under the color of law 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;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.
http://www.law.cornell.edu/uscode/search/display.html?terms=2340&url=/uscode/html/uscode18/usc_sec_18_00002340----000-.html (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;
Seeing as we are having a "letter" debate as well, lol, let me add this wrt both the above which states more clearly why waterboarding comes under the above statute:
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The 2006 Defense Authorization Act, passed by Congress in January 2006, contains new provisions clarifying that all individuals acting under the color of U.S. law categorically are prohibited from engaging in or authorizing cruel, inhuman and degrading treatment of detainees in U.S. custody. These provisions were passed by Congress to rectify lack of clarity in regard to detention and interrogation techniques, and to prevent conduct that is prohibited by international law and illegal under domestic criminal law.
We are now writing to urge you to issue a clear public statement about specific legal standards applicable to detention and interrogation of detainees overseas, under this legislation and other existing laws. Such a statement is necessary because, notwithstanding the 2006 Defense Authorization Act, you and other administration officials have not yet made clear statements about the specific legal standards applicable to the detention and interrogation of detainees in U.S. custody overseas. We are concerned that this lack of clarity continues to lead to confusion about the legality of specific interrogation techniques.
We are particularly concerned about your continuing failure to issue clear statements about illegal interrogation techniques, and especially your failure to state that “waterboarding”—a technique that induces the effects of being killed by drowning—constitutes torture, and thus is illegal. We urge you to make such a statement now.
The Convention Against Torture prohibits practices that constitute the intentional infliction of “severe pain or suffering, whether physical or mental.” The federal torture statute, 18 U.S.C. § 2340A, similarly prohibits acts outside the United States that are specifically intended to cause “severe physical or mental pain or suffering.”
Waterboarding is torture. It causes severe physical suffering in the form of reflexive choking, gagging, and the feeling of suffocation. It may cause severe pain in some cases. If uninterrupted, waterboarding will cause death by suffocation. It is also foreseeable that waterboarding, by producing an experience of drowning, will cause severe mental pain and suffering. The technique is a form of mock execution by suffocation with water. The process incapacitates the victim from drawing breath, and causes panic, distress, and terror of imminent death. Many victims of waterboarding suffer prolonged mental harm for years and even decades afterward.
Waterboarding, when used against people captured in the context of war, may also amount to a war crime as defined under the federal war crimes statute 18 U.S.C. § 2441, which criminalizes grave breaches of the Geneva Conventions (in international armed conflicts), and violations of Article 3 common to the four Geneva Conventions (in non-international armed conflicts). Waterboarding is also an assault, and thus violates the federal assault statute, 18 U.S.C. § 113, when it occurs in the “special maritime and territorial jurisdiction of the United States,” a jurisdictional area which includes government installations overseas. In cases involving the U.S. armed forces, waterboarding also amounts to assault, and cruelty and maltreatment under the Uniform Code of Military Justice.
Under the laws of the land, U.S. personnel who order or take part in waterboading are committing criminal acts—torture, assault, and war crimes—which are punishable as felony offenses. The Department of Justice should clarify this to all U.S. personnel, and prosecute violations of the law.
We have no doubt that if a captured American were subjected to waterboarding, the U.S. government would condemn this as torture and demand or seek prosecution.
We also urge you to clarify the legality of other abusive interrogation techniques, such as subjection to extreme temperatures, forced standing, binding in stress positions, and severe sleep deprivation. These techniques, like waterboarding, cause physical and mental suffering and are illegal under domestic and international law. At minimum, these techniques amount to cruel, inhuman, or degrading treatment, categorically prohibited under the 2006 Defense Authorization Act; and they violate U.S. obligations under international human rights and humanitarian laws, including the Convention Against Torture and the Geneva Conventions. Depending on how they are used, these and other abusive techniques can amount to torture, potentially prosecutable under the U.S. torture and war crimes statutes. The U.S. State Department has condemned numerous other countries for utilizing these techniques, in many cases stating that the techniques amount to torture.
As the Attorney General, you have the responsibility to speak clearly on matters of the legal standards for detention and interrogation of prisoners, and as the executive branch's chief legal officer, you are obliged to enforce U.S. laws.
Moreover, you owe it to U.S. military and security personnel, including those who authorize and conduct interrogations, to specify accurately that the techniques described above are not legal. This is vitally important because personnel who rely on advice to the contrary place themselves in legal peril.
We sincerely hope that you will uphold the legal standards discussed above, and make efforts to articulate them clearly and publicly.
Signed,
Richard Abel, UCLA School of Law
Bruce Ackerman, Yale University
Catherine Adcock Admay, Duke University
Madelaine Adelman, Arizona State University
Jose E. Alvarez, Columbia Law School (former attorney-adviser, Department of State)
Paul Amar, University of California-Santa Barbara
Fran Ansley, University of Tennessee College of Law
Michael Avery, Suffolk Law School
Amy Bartholomew, Carleton University
Katherine Beckett, University of Washington
George Bisharat, Hastings College of the Law
Christopher L. Blakesley, William S. Boyd School of Law (UNLV)
Gary Blasi, Professor of Law, UCLA School of Law
John Charles Boger, University of North Carolina - Chapel Hill
David Bowker, adjunct, Cardozo Law School (former attorney-adviser, Department of State)
Alice C. Briggs, Franklin Pierce Law Center
John Brigham, University of Massachusetts, Amherst
Peter Brooks, University of Virginia
Rosa Brooks, University of Virginia
William T. Burke, University of Washington School of Law
William Burke-White, University of Pennsylvania School of Law
Kitty Calavita, University of California-Irvine
Henry (Chip) Carey, Georgia State University
Anupam Chander, University of California-Davis
Oscar G. Chase, New York University Law School
Kathleen Clark, Washington University
Cornell W. Clayton, Washington State University
Marjorie Cohn, Thomas Jefferson School of Law
David Cole, Georgetown University Law Center
John Comaroff, University of Chicago
Michael Comiskey, Pennsylvania State University
Marianne Constable, University of California- Berkeley
Don Crowley, University of Idaho
Scott Cummings, UCLA School of Law
Eve Darian-Smith, University of Massachusetts-Amherst
Benjamin Davis, University of Toledo College of Law
Stephen F. Diamond, Santa Clara University School of Law
Hilal Elver, University of California-Santa Barbara
Richard Falk, Princeton University and University of California-Santa Barbara
Thomas G. Field, Jr. Franklin Pierce Law Center
Gregory H. Fox, Wayne State University Law School
Lawrence M. Friedman, Stanford University
Michael Froomkin, University of Miami School of Law
David R. Ginsburg, UCLA School of Law
Angelina Snodgrass Godoy, University of Washington
Leslie F.Goldstein, University of Delaware
Kenneth W. Graham, Jr., UCLA Law School
David Greenberg, New York University
Lisa Hajjar, University of California-Santa Barbara
Joel F. Handler, UCLA School of Law
Hendrik Hartog, Princeton University
Lynne Henderson, University of Nevada-Las Vegas
William O. Hennessey, Franklin Pierce Law Center
Richard A. Hesse, Franklin Pierce Law Center
Elisabeth Hilbink, University of Minnesota
Jennifer L. Hochschild, Harvard University
Scott Horton, Adjunct, Columbia Law School
Derek Jinks, University of Texas School of Law
Jerry Kang, UCLA School of Law
Lisa A. Kelly, University of Washington School of Law
Heinz Klug, University of Wisconsin
Itzchak E. Kornfeld, Drexel University
Ariana R. Levinson, UCLA School of Law
Sanford Levinson, University of Texas Law School
Robert Justin Lipkin, Widener University School of Law
Lynn M. LoPucki, UCLA School of Law
David Luban, Georgetown University Law Center
Deborah Maranville, University of Washington School of Law
Ann Elizabeth Mayer, University of Pennsylvania
Jamie Mayerfeld, University of Washington
Joel Migdal, University of Washington
Martha Minow, Harvard Law School
William W. Monning, Monterrey College of Law
Kathleen M. Moore, University of California-Santa Barbara
Forrest S. Mosten, UCLA School of Law
Ken Mott, Gettysburg College
Stephen R. Munzer, UCLA School of Law
Jyoti Nanda, UCLA School of Law
Smita Narula, New York University School of Law
Julie Novkov, University of Oregon
Frances Olsen, UCLA School of Law
John Orcutt, Franklin Pierce Law Center
Arzoo Osanloo, University of Washington
Jordan J. Paust, University of Houston
William P. Quigley, Loyola University, New Orleans
Christopher J. Peters, Wayne State University Law School
Judith Resnik, Yale Law School
Sandra L. Rierson, Thomas Jefferson School of Law
Brad R. Roth, Wayne State University
Gary Rowe, UCLA School of Law
Austin Sarat, Amherst College
Margaret L. Satterthwaite, New York University School of Law
Stuart A. Scheingold, University of Washington
Kim Lane Scheppele, Woodrow Wilson School and Princeton University
Benjamin N. Schiff, Oberlin College
David Schultz, Hamline University
Robert A. Sedler, Wayne State University
Barry Shanks, Franklin Pierce Law Center
Anne-Marie Slaughter, Dean, Woodrow Wilson School, Princeton University
Charles Anthony Smith, University of Miami
Eunice Son, UCLA School of Law
Susan Sterett, University of Denver
Jacqueline Stevens, University of California-Santa Barbara
Katherine Stone, UCLA School of Law
Steven Tauber, University of South Florida
Samuel. C. Thompson, Jr, UCLA School of Law
Beth Van Schaack, Santa Clara University School of Law
Andrew Strauss, Widener University School of Law
Stephen I. Vladeck, University of Miami School of Law
Richard Weisberg, Cardozo Law School
Deborah M. Weissman, University of North Carolina School of Law
Burns H. Weston, University of Iowa and Vermont Law School
Adam Winkler, UCLA School of Law
Maryann Zavez, Vermont Law School
Richard O. Zerbe Jr., University of Washington
http://hrw.org/english/docs/2006/04/06/usdom13130.htmI would ask you to provide me documentation that excludes waterboarding as torture, it would be much appreciated as, there would be more likely a specific document excluding it if it is, indeed, excluded.
Edited to add: Article 3 of the Geneva Conventions ( I thought it would be helpful to see the Article itself given the US signed on to upholding it and is still responsible for doing so)
Article 3
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
http://www.unhchr.ch/html/menu3/b/91.htmThe US itself has charged waterboarding was a war crime, as shown here:
Among the numerous examples, Wallach cites one involving four Japanese defendants who were tried before a U.S. military commission at Yokohama, Japan, in 1947 for their treatment of American and Allied prisoners. Wallach writes, in the case of United States of America vs. Hideji Nakamura, Yukio Asano, Seitara Hata and Takeo Kita, "water torture was among the acts alleged in the specifications ... and it loomed large in the evidence presented against them."
Hata, the camp doctor, was charged with war crimes stemming from the brutal mistreatment and torture of Morris Killough "by beating and kicking him (and) by fastening him on a stretcher and pouring water up his nostrils." Other American prisoners, including Thomas Armitage, received similar treatment, according to the allegations.
Armitage described his ordeal: "They would lash me to a stretcher then prop me up against a table with my head down. They would then pour about 2 gallons of water from a pitcher into my nose and mouth until I lost consciousness."
Hata was sentenced to 25 years at hard labor, and the other defendants were convicted and given long stints at hard labor as well.
other examples in this article as well
http://www.sptimes.com/2006/10/22/Columns/We_sentenced_Japanese.shtml
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