The US War Crimes Act, the Geneva Convention against Torture and the Infamous “Torture Memos”




justiceThe War Crimes Act, 18 U.S.C. § 2441, makes it a crime for any person, “whether inside or outside the United States” to commit a “war crime.” War Crimes are defined as any grave breach of the Geneva Conventions, and in particular, any conduct that violates common Article 3. In Hamdan v. Rumsfeld, the Supreme Court explicitly ruled that common Article 3 applies to alleged Al Qaeda members and the so-called war on terror.

The crimes of torture, cruel or inhuman treatment and murder — all acts that are documented by the Senate Torture Report — are specifically prohibited by common Article 3 and the War Crimes Act.

In 2006, the government enacted the Military Commissions Act of 2006, which severely curtailed the reach of the War Crimes Act, limiting its application well short of the protections of common Article 3. It also passed a provision that provided for retroactive immunity for certain government personnel who were following orders in implementing what they thought were lawful directives from the President (this section can be found at 42 U.S.C. §  2000dd-1). The Washington Post noted at the time that the intent of these changes was to reduce the threat of future prosecutions when the day came when such abuses would be revealed to a shocked public. These provisions remain untested.

It is my belief that any person involved in the chain of command that authorized the crimes detailed in the Senate Torture Report should be indicted for war crimes and conspiracy to commit war crimes under the War Crimes Act. This includes George W. Bush, Richard Cheney, Donald Rumsfeld, CIA officials who condoned or engaged in such practices, and attorneys who authorized such practices, including Alberto Gonzales, Jay Bybee and John Yoo.

The Convention Against Torture

The United States is a signatory to the Convention Against Torture, and its implementing legislation is at 18 U.S.C. § 2340A. This statute was the famous subject of the “Torture Memos,” a series of legal opinions written by John Yoo and Jay Bybee regarding the limitations of this law.

Bybee famously concluded that “torture” under the law only referred to “the most egregious conduct,” “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” “Purely mental pain or suffering” had to result in “significant psychological harm of significant duration, lasting for months or even years.” Bybee even thought that the Convention Against Torture might be unconstitutional because it would infringe the “President’s authority to conduct war.” Today, Jay Bybee has a lifetime tenure-ship as a judge on the United States Court of Appeal for the Ninth Circuit. John Yoo is a law professor at UC Berkeley School of Law.

As with the War Crimes Act, the Convention against Torture provides a second basis for criminal prosecutions against people who authorized, engaged in, or ratified torture. President Obama repudiated the Torture Memos in 2009, but he also refused to issue indictments or discuss whether such conduct was actually criminal. He — or someone more brave — would do well to consider that decrying illegal conduct but then refusing to prosecute such conduct is a silent pardon at best, and complicity at worst.

Brutal Beating of Palestinian-American Boy by Israeli Forces Brings Unprecedented Coverage of Daily Palestinian Experience in U.S. Media

By Philip Weiss
Global Research, July 07, 2014

Region: Middle East & North Africa
Theme: Police State & Civil Rights
In-depth Report: PALESTINE

The brutal beating of a 15-year-old Palestinian-American boy by Israeli forces in Jerusalem is proving to be a landmark moment in coverage of the conflict, as American media are reporting Tarek Abu Khdeir’s story in a straightforward manner for once. Their sympathetic reports are bringing the Palestinian experience back here as never before.

You can see what the New York Times did today. As Jamil Dakwar notes:


Jamil Dakwar ‏@jdakwar

US passport gets you out of Israeli jail 2 house arrest, 1st page in NYT & @StateDept condemnation. That’s something!

Then there’s the Washington Post.

Watch video at The Washington Post website

The Washington Post has up a video interview of the youth, in which he says that he was just watching protests of his cousin’s murder when police attacked him. Tarek Abu Khdeir says he did not throw rocks.

I was standing there watching what was happening… I tried to jump the fence, and I fell after I jumped the fence… I don’t know why they came running at me, but right after they came running at me, I ran… I don’t know why they hit me that hard. I fell asleep from how hard they hit me. I went unconscious.

His mother Suha adds:

I’m angry, I’m disturbed. I’m ready to take legal action. Because this happens to Palestinians every single day… [Because he’s an American] He got the opportunity for all the media and for the whole world to hear him. For once. But other Palestinians that live here, this happens all the time, they never have the opportunity to voice, to talk about it, to show.

She says that one man from the US consulate has been with the family from day 1.

My message is that I’m sorry you don’t show that you have feelings. You do not have hearts. This is a child. He’s 15, and to beat him up this badly, you have no personal issues with him. No one should be beat up this badly. No one. For any reason… This is not human.

Ayman Mohyeldin of NBC posted this video of Abu Khdeir being released to house arrest and had an excellent report on the Nightly News last night. He asked Abu Khdeir what the marks were on his wrists and the boy said: “This is from the handcuffs when they took me to jail.” He also showed video of marks on the youth’s back, from “stomping,” Abu Khdeir said.

On National Public Radio this morning, a story was introduced by Steve Inskeep, who said that “Israel says” that those it killed in Gaza are “militants.”

Reporter Daniel Estrin also spoke with Suha Abu Khdeir and said she “rejected the police claim that he was found with a slingshot… She understood what her Palestinian relatives have been experiencing all these years.” He then quotes her:

After actually coming and going through it, I don’t blame these people for hating, for having so much hate for Israel.

Note that Ron Dermer, Israeli ambassador to the U.S., went on national television yesterday, ABC, and accused this boy of throwing Molotov cocktails and petrol bombs, while NPR reports that the police have accused him of using a slingshot. So Dermer was wildly exaggerating Israeli police claims, which the youth has denied. Here is ABC’s interview of Abu Khdeir. “I was blown. I was like Why? Why is this happening?”