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You are not required to obey an unlawful order.
You are required to disobey an unlawful order.
You swore an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic.
The Constitution states (Article VI):
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Here is article 3, the common article, to the Geneva Conventions, a duly ratified treaty made under the authority of the United States:
Article 3In 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.
2. The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
Article 3 of the Geneva Conventions is straightforward and clear. Under Article VI of the Constitution, it forms part of the supreme law of the land.
You personally will be held responsible for all of your actions, in all countries, at all times and places, for the rest of your life. “I was only following orders” is not a defense.
What all this is leading to:
If you are ordered to violate Article 3 of the Geneva Conventions, it is your duty to disobey that order. No “clarification,” whether passed by Congress or signed by the president, relieves you of that duty.
If you are ordered to violate Article 3 of the Geneva Conventions, this is what to do:
1. Request that your superior put the order in writing.
2. If your superior puts the order in writing, inform your superior that you intend to disobey that order.
3. Request trial by courtmartial.
You will almost certainly face disciplinary action, harassment of various kinds, loss of pay, loss of liberty, discomfort and indignity. America relies on you and your courage to face those challenges.
We, the people, need you to support and defend the Constitution. I am certain that your honor and patriotism are equal to the task.
This post may be quoted in full. A linkback would be appreciated.
Don't I know it.
I have already started to figure out how I intend to deal with all this shit.
I don't plan on going gentle into that good night.
It shows just how far things have fallen that it is necessary for a retired officer in the United States Navy to make such a post...
If you're reading this, pass it on.
I have a dear friend who is a lawyer and a Marine; currently in Iraq. I considered sending this to him, but I can't imagine that he has not already thought long and hard about this.
Teresa: I want to, I don't think I dare (which bothers me).
Delurking to say: I've posted this to my LJ, and I hope plenty more people will do the same. This is simple moral clarity at its best. It deserves a great big hearing.
Nothing more to be said, except - This ex-soldier hopes none of my brothers (and sisters) in arms are put in the position.
I fear my hopes are all too soon to be dashed. I therefore pray they will have the courage and strength of their convictions to stand up and be counted among those who put their oath to the Constitution and the people of the United States above their personal situation.
What we need right now:
A organization with the resources and fortitude to provide legal aid to service people who go this route.
My checkbook stands ready.
Posted to LJ. No trackbacks from there, unfortunately.
One more thing that needs to be done, if possible, is to widely disseminate the stories of any instances of any individuals who do take this course of action. For example, Lt. Ehren Watada (whose case was widely in the news when he refused to deploy to Iraq on June 22, 2006). The more of these stories in the news -- provided they're not put there to Swift Boat the personnel involved -- the better.
You will almost certainly face disciplinary action, harassment of various kinds, loss of pay, loss of liberty, discomfort and indignity.
Well, I'd say that if you disobeyed an order to violate the Geneva Convention, the one thing you would not lose is your dignity. It might be all you're left with, but you would own your dignity and honor.
Gawds. Have things gotten so outlandishly out of control that it comes to this? I suppose they have. If anyone needs me, I'll be over here with my head in my hands...
This post may be quoted in full. A linkback would be appreciated.
That would be the Creative Commons Attribution-NoDerivatives license, if anyone's interested. Certain search engines will grok content that has been tagged with the appropriate flags as being CC licensed.
Apparently this argument applies to more than torture - for example aggresive war, attacks aimed primarily at civilians (for example Fallujah).Please note the article I'm about to link is not by a lawyer, and its interpertation probably would not be upheld by a U.S. court:
==========
http://www.counterpunch.org/mosqueda02272003.html
A Duty to Disobey All Unlawful Orders: An Advisory to US Troops - by LAWRENCE MOSQUEDA
=========
Jim, we've only met a few times in passing, but I wanted to say that I'm proud to know you.
And to know the other bloggers here.
I hope this gets read not only by anyone asked to violate Article 3, but also by anyone on the carriers sailing for the Straits of Hormuz.
Teresa, of the two places I have to pass this on, one won't get anywhere worth getting and the other may or may not be appropriate. But I will talk it up wherever I can.
Thank you.
Hi Jim,
When I reposted this in my LiveJournal (with all attributions etc. intact), I got a response saying that it doesn't hold for anything currently going on because of Article 2 of the Geneva Conventions, which says that the Conventions "shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties". Since Iraq and Iran are not on that list, they don't get the benefits. Article 3, as you quoted, refers to "armed conflict not of an international character" (which would exclude making war on another country) and "in the territory of one of the High Contracting Parties" (which would exclude the current war and all likely near-future ones). Are you intending this to only refer to Americans detained in armed conflict on American soil? I would really love to see these rules applied to all prisoners ever, but when you're talking about the letter of the law, I confess I don't quite see your point in this instance.
I'm not a lawyer and I'm not well-versed in international or military law, so I would really appreciate discussion on this topic from people who know more about it than I do.
I'm corrected: Iraq is indeed a signatory. The issue is apparently more of those who fail to "carry arms openly" or observe the proprieties of the Conventions, and of al Qaeda and other "independent" fighters who are not party to them. As I said, I know very little about all of this! I'm hoping those here who know more can educate me.
Rose - this is a post about Not Torturing Prisoners. It doesn't matter whether the prisoner is a regular Iraqi soldier, a civilian, an insurgent, an Iranian SF operator, an Al-Qaeda member, a child murderer - if he's a prisoner, he's a "Person 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" and falls under Article 3. The whole "but it doesn't apply to people who haven't signed" thing is a red herring. Article 3 is about what to do with non-combatants - which includes prisoners, whatever their background and however acquired.
In the case of an Al-Qaeda member or a military or civilian criminal, you can try them for murder and execute them, but (as part d says) only in a proper court.
Rose,
it does not matter for article 3 whether a person is a prisoner of war or not. Article 3 applies to any person who is not actively taking part in the hostilities (even if that's only because they've been captured). Those are the minimal guarantees applicable to anybody; prisoners of war (and civilians, and the wounded and sick) simply enjoy more extensive protection, as laid out in the subsequent articles of the respective conventions.
So, regardless of how despicable and dangerous a person is and how lawless their conduct has been, as long as it is a conflict of the nature described in article 3, all violence to life and person, all cruel treatment, torture, even humiliating and degrading treatment are prohibited. There's really no ambiguity whatsoever and no "clarification" should be needed, as Jim put it.
Doesn't really matter whether or not they're combatants. That's just splitting hairs. The UN Declaration of Human Rights is still in effect, and takes precedence over anything. Torture is not now, nor will it ever be, legal. Any violation of the physical and mental integrity of others, unless in battlefield situations or self-defense, is strictly and completely unambigously forbidden.
Rose Fox,
It should scarcely be surprising that one can assemble an argument, plausible on its face, purporting to legitimize torture. Assembling such arguments is the principal industry of the depraved and they churn them forth in great thick chunks.
For myself, I am treating it as an affirmation: I am trying very hard to treat every paean to torture that I hear or read as motivation to do something good and positive that day.
Rebecca
Article 3 of the Geneva Conventions is called the "common article" because it is included in every Geneva Convention. The various Geneva Conventions cover various aspects of war; under none of them is there a status called "unlawful combatant." There is no person in an armed conflict to whom one or another of the Geneva Conventions does not apply.
I'm taking a quick break before returning to shul (it's Yom Kippur) but much of our discussion last night was about Article 3 and this country's descent into -damn, I don't even have the words for it.
I second the offer upstream that if there is a place to offer donations for legal aid to those who might have to do this, my checkbook is also ready.
-damn, I don't even have the words for it.
The word is "barbarism."
Jim, I will first say, yes yes yes. I seem to remember being schooled on this when I was in the service. Something about "remembering your oath, the first priority was the Constitution, chain of command was way down the list."
However, from what I remember, disobeying the direct order of your superior officer while under fire is an offense punishable by summary court-martial for (among other things) deriliction of duty of abandonment of post. So if you are a service person under fire or in a hot zone, choose how you present your dissent carefully.
Steve, it's unlikely that an order to torture a prisoner would be given while under fire... but fair point.
While re-reading Common Article 3 I suddenly had a flash: "Maybe this is what all of those DoD comments about prisoners at Guantanamo practising asymmetrical warfare by killing themselves is about."
If the battlefield is everywhere in the world, and committing suicide alone in a cell is an act of war on the all-important public-relations front, then it follows that no one is placed hors de combat by detention (or sickness, or laying down their arms, or even by being killed, since their corpses can still be displayed for propaganda purposes). Abracadabra, a brave new world where Common Article 3 never applies.
I wonder if this is how my great-uncle felt in germany.
Ajay at #23: you are probably right. But consider what happened at Abu Ghraib, and who was held responsible. The "bad apples" were convicted (I am not saying they were innocent) while Miller, Sanchez, et. al. were protected and praised. The civilian leadership (and some of the high-ranking officers, God help us) of our military appears to be corrupt. They cannot to be trusted to protect the people who fight -- only their own skins and their political ambitions, and to do that they will gladly sacrifice the troops.
I can easily see a situation in the current fight where a soldier refuses to an order to obey what appears to him or her to be an unlawful order to degrade or torture a prisoner, and finds him or herself fighting a charge of dereliction of duty.
Lizzy, "and finds him or herself fighting a charge of dereliction of duty."
That most certainly would happen in any case. The service personel who disobeys the order will then have to show how by disobeying the order they were adhering to their oath and that the order was either illegal or would have caused an illegal action. This would be after a field "busting of rank" and the accompanying "disiplinary actions." The point I was making is that disobeying an order while under fire would have a slightly different proceedure.
Does anyone have any notion or guess concerning whether one of the Joint Chiefs has stepped forward to advise his Commander concerning unlawful orders? Somehow, I must expect that one of them at least knows how this works, and doesn't see the need to wait for a JAG to make an "expert's" statement about it.
This is the part that gets me the most. No one expects a president to have any military experience, let alone be versed in military law and protocol. That's why a security council exists, and why each Chief of Staff sits on it. I'd prefer to not believe that every one of them is a wimp, unable to stand up to authority when the issue is clear, and the advise obvious.
So, in essance. Bush has forced the personnel of america's miitary to either choose between disobeying an illegal order, or obeying orders dictated by his policy and violating their oaths.
I would hope they choose the former over the latter.
I would also hope they decide enough is enough and return home and throw the bums out of the Whitehouse and into jail.
Does anyone have any notion or guess concerning whether one of the Joint Chiefs has stepped forward to advise his Commander concerning unlawful orders?
<Nixon>
If the President orders it, it isn't unlawful.
</Nixon>
Franklin, by all accounts, when the JAG people were dragged over to the White House to be bullyragged about supporting all of this, they were doing whatever the military lawyer equivalent of screaming bloody murder over it is.
However, our military (luckily for us, really) isn't accustomed to the idea of overthrowing their civilian authorities, and so arranging the coup to stop it (which is what it would have taken, given Bush's intransigence, and Congress' venal spinelessness) is not a part of their repertoire.
Does anyone (else) think that the United States government, by refusing to ratify the treaty that created the International Criminal Court, is sending the message through the rank and file of the military that it is safe to obey unlawful orders? I understand the more traditional objections to the Court, but I don't particularly like the aura of immunity it grants the American military for war crimes it might commit.
If you are ordered to violate Article 3 of the Geneva Conventions, it is your duty to disobey that order. No "clarification," whether passed by Congress or signed by the president, relieves you of that duty.
This is flatly untrue. The US Supreme Court has made it clear that where treaty obligations clash with domestic law properly enacted "last in time" controls. A so-called clarification passed by Congress and signed by the president is in fact law.
As a matter of domestic law, the obligations of US service personnel are whatever Congress and the President most recently said they are. Foreign nations, could, of course, choose to prosecute them, but that would be true in any case - they can always just make having been a member of the US armed services itself a crime. Had any of them sworn an oath to uphold the laws of any other countries this might actually be relevant to something.
But take it from an expert.
I am not aware of other examples where Congress has reversed a Court's interpretation of a treaty, but there is zero doubt in my mind that this move is constitutional. Congress has the authority to nullify the domestic effect of treaties via the "last in time rule" and this authority almost certainly includes the power to adopt a binding interpretation of a treaty for domestic purposes as well. In other words, Congress might be adopting an incorrect interpretation of Common Article 3, but its "incorrect" interpretation is still binding as a matter of domestic U.S. law.
Fidelio, I hope you are at least a little facetious about coup d'etat; I had no intention of even implying it.
"I am required to advise you" is something every commander hears at some point, if the situation is serious enough and he has a command staff he trusts. An admiral or general should find this introductory phrase coming very easily to his lips, no matter who is president or what the situation is. As a well-read layman, this just seems completely intuitive to me.
Dylan, you make an excellent point. I causes me to ask: if a treaty signatory passes a domestic law contradicting one or more treaty obligations, is that not a de facto violation of that treaty, thereby making that nation an ex-signatory?
It is a strange day when a veteran is calling for civil disobedience (literally the disobedience of a citizen) on the part of serving military officers confronted with unlawful orders. The Greeks, btw, had a word for government that ignored the law, they called it 'tyranny'.
W. seems determined to be George III in every possible sense of the term.
Well, no, it just means they won't domestically enforce that particular part of the treaty that others think they should. It's not like when someone ignores a WTO ruling on tariffs the offending country is thrown out of the WTO; other nations simply can under WTO rules retaliate with their own punitive tariffs.
Other nations annoyed with this can take their own actions, but then they always could.
Fragano, he hasn't demonstrated the potential for any unlawful orders. The law has been changed. The change is valid as a matter of law, whatever you think of the morality of it. There is certainly a case to be made that officers should not follow "evil" orders, and perhaps that case should be made here. But abrogating or modifying treaty obligations is not illegal, anymore than the repeal or modification of any domestic law would be.
I have a request from all the good people here at Making Light. Elsewhere I was lamenting this decision and was met with the usual right wingers saying that this was hogwash, we weren't doing anything worse than making prisoners slightly uncomfortable, that Abu Ghraib was simply a few bad apples who have been removed and punished, and that our prisoners are all enemy combatants and not just hapless schmoes picked up and thrown into Gitmo.
Now, I know this is all not true, but I know this because of a great many things I've read over a long period of time.
Is there a sort of one-stop-shop for, say, the Torture Truth? Some place or a few select places with clear documentation that can be forwarded to such people? I realize arguing with many of them is a lost cause, but one or two people has said, "If you have supportive evidence to the contrary, I would like to see it." I'm sure someone has been collecting all of this someplace, just not sure who or where.
I wonder if one could base a similar refusal on the Eighth Amendment's prohibitions against cruel and unusual punishments. That would get around Dylan's "last in time" problem, since the Constitution trumps other laws, although you'd never know it looking at this administration.
Dylan: I don't see why your appeal to authority ought to trump James. Futher I think the authority to whom you appeal is wrong.
It appears, oddly enough, that so to does much of the legal community which is why we see things like this
Abstract:
For nearly 150 years, courts have applied the last in time rule to resolve conflicts between treaties and federal statutes by giving effect to whichever was enacted later in time. Despite its acceptance by the courts, this rule has received unanimous criticism in the legal academy. That's the set up for Law Review Article trying to prove the point your refrence so blythely states as settled.
The doctrine of "last in time" is for statute. The Constitution raises treaties above statute, making the equivalent to itself. They only fail to have that level of solidity, because the means of repudiation are less difficult. Until, however, a treaty is truly repudiated, it can't be merely papered over with a statute.
For a couple of views less amenable to the idea that statute trumps treaty,
Charters and judicial reviewThere is a long-standing controversy about the idea of parliamentary supremacy -- the idea that legislative law trumps all other law. That is currently the dominant theory in England, but the United States holds a contrary view -- here judges review legislative laws against a prior and higher law: a written constitution (and perhaps also against natural law, but that is a subject we won't pursue here)
Letter to The American Journal of International Law(again just the first page), with citiations, as to why a president can't just paper over international law
Justice Ginsburg's first page of a Law Review article on the subject.
So we have no awareness of other examples where the Congress has reversed a court's interpretation of a treaty (per your source), but no doubt that it can, as compared to the clear text of the governing rule (i.e. the Constitution) and no small amount of controversy on the basic principle of "Last in Time", esp. as it relates to things like treaties (which are not statutes, governing internal matters, but agreements detailing international relations; which if they are to be seen as binding [and thus worth entering] by other nations, can't really be subject to the whim of congressional fiat [I shan't even go into the idea the Executive has final say over such things, that "Art II" argument of Yoo and Gonzales is laughable on it its face, as evidenced by the White House being completely unwilling, at every turn, to let it be heard by a court]).
So I'll take the plain language of the Constitution (which seems to clearly show the founders' "original intent") to the twisting of a principle for domestic statute to fit international agreement
Sigh, I was afraid of that. Too many URLs.
First time for that, I thought I was below seven.
Dylan:
As a matter of domestic law, the obligations of US service personnel are whatever Congress and the President most recently said they are.Nope. Not true. Don't know where you got that idea, but it's seriously mistaken. Want to try again?
Rose Fox, I've posted in the thread back on your site. I think the person you're referring to is being deliberately obfuscatory.
For future reference, anyone who refers to entire classes of people as "fair game for torture" has gone wrong. There is no such thing as "fair game for torture".
patgreene: I don't see a problem with last in time (and when my comment clears holding, my supports for this view will be more plain) because treaties are, as Jim said, in a class above mere statute, which changes the application of "last in time" since it applies to satute (and isn't as settled as it might seem, see this discussion on the issue, as it is going on in Illinois).
If the Constitution is controlling; a higher piece of law than statute, and that constitution holds (as it seems to) that treaties, duly ratified, become equivalent to itself in binding power, then where a statute conflicts with the provisions of a treaty, that statute is void.
Now, there have been, of late, a lot of arguements that the internal application of treaties is different for federally contructted nations; that the only places they are binding is on the federation, as a whole, and that in the individual states of the federation they may be differently interpreted, but I don't see how that idea (even if it is correct) can be applied here, as the question is what shall the "armed forces" (a federal object) be allowed to do?
Hang on, Terry. Let me see if it's in the "waiting to be okayed" bin.
"fair game for torture".....?!!!
Head explodes.
Must go make coffee, look at kittens, lock weaponry away.
rosefox, I am so sorry you got something like that.
Okay, Terry's long comment is displaying now.
Speaking as a war criminal, I would like a definition of Outrages on personal dignity. I have been near den Haag once, for the North Sea Jazz Festival. I would rather not go as a defendant (though if things ever got to that point, I'm sure I would be waaaaay down on the list).
Now that I have your attention:
Yes, I said "as a war criminal." Depending on how much one would want to push the issue, I would have to stand trial for violating Article 3 to truely settle whether or not I was a war criminal. However, based on some of the legal precedents the US Supreme Court cited when it told the White House to fall in line with international consensus on giving a narrower definition of "Outrages," I would definitely go to trial.
So, oh gentle reader, you must be asking yourself, "Self, what vile acts did this evil man commit?" I'll tell you in explicit, excruciating detail. I made a 35 year old, Iraqi male of Sunni descent cry when I confronted him with documentary evidence he had committed a crime and lied about it to gain employment on a Coalition Forces base camp. In front of witnesses. In an airconditioned room. In a comfortable chair (his was more comfortable than mine darn it). With nary a weapon in sight.
I recommended he be fired from his job for lieing during his screening interview. He drove home to his family, and there were no other consequences from the interview. However, I committed an outrage against his personal dignity. So I hope the cell I'm headed for is nice and clean.
Miles
Thanks for the clarifying comments here and in my journal. I look forward to seeing how it all hashes out.
I certainly agree that morally and pragmatically there is no justification for torture and never has been. I hope some agreement can be reached (among the people discussing the topic on my LJ, and in the national and international legal communities) that there is no legal justification for it either.
Miles, that's a red-herring. I've made people cry in interrogations. I've made people walk in circles (had nothing to do with interrogation).
The easiest way to interpret this (and it's been the law for 59 years, with no lack of clarity. It was so clear that we passed a law making it binding on all U.S. citizens back in '98, and no one quibbled or caviled then) is to say, "how would I feel if it happened to me."
If you think your reaction would be shame and disgrace, then it offends human dignity.
It's a bit more complex, and subtle than that (because things like feeding a Hindu beed are also offenses against dignity, sort of like casting a cross on the bottom of Falwell's chamber pot) but that's a decent rule of thumb.
pat greene, Dylan is asserting that the Supremes have ruled that Article VI of the Constitution does not hold. If he's right, we're screwed. I find it hard to believe that he is.
Dylan, who is the expert you quote?
Quoted and linked to from my LJ and my political blog. Many thanks for this.
Xopher: Well, I suppose I could have been as concise as you were. That does sum him up.
Terry: LOL! You were actually informative. That's better. And your informative post came in while I was writing mine.
Terry, you're citing in defense of your position what I myself was about to use to back up my own position!
Indeed: For nearly 150 years, courts have applied the last in time rule to resolve conflicts between treaties and federal statutes by giving effect to whichever was enacted later in time.
The courts have and still do say that's the law. Legal academics are pissed. So what?
Pat Green has offered the only intelligent response, which is that, of course, the Constitution itself still overrides whatever laws or treaties are passed. (Although perhaps that was the unsaid basis behind Teresa's "nananana I can't hear you" response at #43.)
Xopher, he's a law professor who specializes in international law. I've been trying to find the actual Supreme Court case that held that a later domestic statute overrides a prior treaty, but it's so old and settled (as a matter of law, not legal academic opinion), that it doesn't pop up easily in the google searches I've tried.
Also, I'm not saying Article VI doesn't "hold." I'm saying it doesn't mean what you think it means. It says only that the US Constitution, treaties, and US domestic law are supreme to state laws and constitutions and requires state judges to enforce federal law when it conflicts with state law. It says nothing about the ranking system of Constitution vs. treaty vs. domestic law. That particular question has been long settled by the Supreme Court in favor of the last in time rule.
For what it's worth, I am a law school graduate. I'm not offering you my opinion, but what I know. Hopefully I'll eventually find the case that actually settled this. Until then, I've offered you a link to a profesor international law who says it's open and shut. Terry has cited his article that notes that the courts have ruled this way for almost 150 years, notwithstanding the bitching of the international law community.
This is not to say the Constitution cannot possible forclose enforcement of the statute at issue. But the Geneva Conventions sure can't. They've been displaced to the extent they conflict with later US law.
The idea that we can't refuse to dishonor a treaty without permission from some or all other participants is simply bizarre, in any case. Google "Kellogg-Briand Pact." The US has signed and ratified a treaty that renounced war as an instrument of national policy...in 1928. We've not withdrawn or specially abrograted it since, as far as I know. Perhaps Germany, another bound member, should have sued us in December 1941 so that our declaration of war could have been quashed by the courts.
I suppose if the right must have its tax protestor cranks it's only fair that the left shoulder their "supremacy of international law" mirror images, but one hopes for better from the "reality based community."
#35 Franklin Evans
From time to time, someone posts here who really does not grasp the way the US military is taught to regard their relationship with civil authority. (I am not including you in this number, by the way--just noting that these innocents do hang around here.) Inevitably, they wonder when the ranks (led, they hope, by equally outraged officers) will rise against GWB & Co. I'm to the point where I always add the explanation of why they will advise, argue, disagree, and even resign, but not actually rebel violently.
I'm glad the US military does not think it is their job to decide for the rest of us who's running the country. Every example I've seen of a country where that happens has not been a happy picture.
Dave Lartigue: I would start with the Wikipedia article on the Guantanamo Bay detainment camp. While Wikipedia itself is not an authoritative source, there are lots of links at the bottom to external sites that may prove useful. See also the article on Abu Ghraib torture and prisoner abuse.
Thank, Fidelio. Being new here I had to ask/mention it. :)
I don't mean to be one-upping here, but it didn't occur to me that my own heritage would be relevant... and I'm not quite sure it is even so, but here it is.
My late father was a convicted war criminal, in absentia of course or I'd not be here writing this. He was a chetnik, a native son of Montenegro and an officer in the Serbian royal army when Tito and his partisans set off the first phase of the Yugoslav civil war. The charges were treason (an odd thing, considering the government he "betrayed" came into existence after his defeat as a member of the losing army) and the more serious charge of collaboration with the Nazis. That, I cannot get into, because he never discussed details with me, but I can speculate: the chetniks were outmanned and outgunned almost from the beginning, and were even worse off when their only source of supply, the British, was cut off in the early stages of the Nazi conquest of their neighbors. They certainly gave intelligence aid to the Nazis in exchange for basics like food and ammo; it can be demonstrated by some that the intelligence was in whole or in part fabricated. Desparate times bring desparate measures.
Anyway, something can often be said about the accusers of "war crimes", and the old saw about the winners writing the histories. My father's permanent exile brought him to a country he loved, as much for its opposition to his communist enemies as for its military traditions, with which he was as much at home as he was in his youth.
My big fear is that any soldier who does challenge an order to torture someone on the grounds that it is an unlawful order will simply be declared an enemy combatant and put into cold storage.
Interrogating/questioning/even making people upset by talking to them shouldn't be considered outrages.
But...
some of what happened at Abu Grahib
some of what's going on in Guantanimo
and in the secret detention facilities
not giving a full accounting of all
detainees to the families
not permitting the Red Cross/Red Crescent
to visit many detainees
not giving most detainees access to counsel
accepting heresay and evidence gotten
from torture
the fact that we have secret detention
facilities and foreign "interrogators"
these things ARE outrages.
Jim M., thanks you've made some great suggestions here.
To give you some hope, however, I offer you this .
It is true that, under the last-in-time rule, Congress and the President can legislate in contravention of a treaty obligation. But it is significant that, in a decision on Wednesday, Sanchez-Llamas v.Oregon, the Court relied on Article III of the Constitution and quoted Marbury v. Madison in holding that it is the province and duty of the Supreme Court to interpret treaties. The Court gave that as a reason why the interpretation of another treaty by the International Court of Justice could not be considered binding, but presumably this analysis also makes the Supreme Court the authoritative interpreter of treaties vis-�-vis the President and even Congress. If so, then the Court�s analysis in Sanchez-Llamas rules out a statute that purports to reject the Supreme Court's interpretation of the Geneva Convention and "restore" the President's interpretation, as Professor John Yoo has urged Congress to do. The law-makers could, of course, repeal the Geneva Convention's domestic effect, but, in light of Sanchez-Llamas, they would have to do so by openly rejecting the Geneva Convention. Openly rejecting the Geneva Conventions would of course be a terrible idea, given the protections they provide to our troops. I assume (and hope) that such repudiation is not within the range of plausible options. If Congress is powerless to reject the Supreme Court's interpretation of the treaty, and repudiation of the treaty is not conceivable, then any legislative solution would have to comply with the Supreme Court's interpretation of Common Article 3.
I'm not sure it's right, but to the extent it may be it is for other reasons than those proposed - if a statute is an abrogation or rejection of a treaty provision, rather than an "interpretation," it unquestionably controls. And I doubt it is right. I'm much more persuaded by the second comment to this post:
As much as I admire your work on treaty law, I must say that I was puzzled by this post. Do you really think that a statute declaring that common Article 3 does not apply to the conflict against al Qeada would not be controlling? The logic of Boerne doesn't apply to this situation. Per Marbury, the Supreme Court may have the final say on the interpetation of the Constitution, but that's only because the Supremacy Clause gives primacy to the Constitution over any statute. But that's not so with treaties. Indeed, at least as a matter of domestic law, it's been settled since the Head Money Cases that Congress can override treaties by statute. So, just as Congress can "correct" a misguided interpretation of a statute by enacting a contrary statute, I fail to see why it couldn't do the same with an interpretation of a treaty. Maybe you call it restoring what Congress sees as the proper interpretation of the treaty; maybe you call it abrogating the domestic law obligation that the treaty imposes by virture of the Court's decision. Either way, the result should be the same.
I'm suddenly understanding exactly why some unexpected parties pushed for review of the Boldt Decission after review was denied certiorari the first time: no matter what else it said about the particulars of the case (which was, most importantly in the long run, to assert that the tribal signatories to the Medicine Creek Treaty had deciding interest in the health of aquatic resources, importantly, but not limited to, the anadroumous fishery of lower Puget Sound) its most important general point was that treaties, even treaties with small, poor representatives of the Several Indian Tribes, had status equal to the constitution.
A dangerous precedent, but one which is plainly stated in the constitution itself.
Well, IANAL, but
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Landseems pretty transparent to me. Yeah, then it talks about how the Judges "in every state" have to act accordingly. But it's already said that the Constitution and the Treaties are the supreme law of the land.
If you're arguing that treaties don't supersede Federal law, it seems to me that you also have to be arguing that the Constitution doesn't either. And that's Just Plain Wrong.
How do you interpret article VI as saying that treaties trump congressional laws? It says that treaties are supreme, but it also says that congressional laws are supreme--if you don't believe that, what do you believe the first phrase means? If you think that treaties are more supreme because the word supreme appears near them, then they're more supreme than the constitution, which is pretty implausible. I admit that comma after Constitution is pretty weird in its asymmetry.
The first clause declares three things supreme, without saying what "supreme" means, but the second clause says that they trump the states, so overall it's pretty clear.
Xopher: that is what he's saying and why concision is, at times, to be preferred.
That there are others who agree with him, that whim should supercede Art. VI, is, sadly predictable.
Dylan -- In a similar note to your last post, see this comment by Marty Lederman to the post you referenced... He says that Congress can only override a treaty by doing so explicitly, not simply by specifying how to interpret it. What's more, he gives internal evidence that Congress understood this:
That's why section 6(b) of the bill -- this is the key -- would simply cut off any judicial power to adjudicate the meaning and enforcement of the Geneva Conventions. If the "congressional interpretation" of CA3 trumped the Court's, there would be no need to prohibit any party from invoking Geneva in court. But it doesn't trump the Court's interpretation, which is why the bill will try to silence the Court.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.
IANAL, constitutional or otherwise, but the this section of the Constitution is rather clearly an inclusive conjunction. What remains is litigation and legislation attempting to clarify it within specific circumstances, a process with which any First Amendment lawyer is quite (painfully) familiar. :)
JESR:
treaties...had status equal to the constitution.
Where do you see this in Boldt? It's about treaties v states: the case is US v Washington. I don't think it sheds light on treaties v federal laws.
Posted and linked back. Thanks.
This is totally off the subject, but... the Making Light LJ feed appears not to be working. I tried a Google search of this domain with all the words "LJ Feed" and maybe the word "problem" but couldn't find anything recent, so I suspect no one has reported this to you yet. Anyway, it isn't working anymore. The last post we got was "Sign Your Donor Card."
I am of course perfectly capable of trotting over here myself and checking to see if you've updated, but the LJ feed is convenient. I noticed the problem because a lot of my friends have been complaining about the Military Commissions Act of 2006 and I thought for sure you'd have said something (which you have, today and previously), but recent posts haven't show up.
'The Laws made in Pursuance thereof' means "laws made to enforce the provisions of the Constitution"—like, say, the Voting Rights Act. This new bill doesn't qualify. Therefore it is superseded by the GC, including CA3. That's what the language actually means.
Its force in law, unfortunately, is subject to the rule that the law "is not what is written, but what is read," and the SCOTUS have the ultimate right to read the law. And they're by and large a bunch of right-wing ideologues at this point.
Et tu, Scote? Then fall America!
Part of the argumentation of Boldt decision is a restatement of the relationship of state laws to the federal constitution. An old, and repeatedly overturned, argument in Indian treaty claims cases is that the states and their subordinate polities are not bound by federal treaties (there's more on that in the case against Pierce county's condemnation of the eastern half of the Nisqually res to "donate" it to the Army for the enlargement of Ft. Lewis in 1916). Boldt explicitly restates the place of federal treaties under the Constitution, and then contrasts that to state laws and regulations, in providing background for his decision against the state's attempt to put Indian fisheries under state catch limits.
That the explication of the primacy of treaties is presented to contrast it to the subordinacy of the states doesn't make it any less a strong statement of the role of treaties in constitutional questions.
OT:
Kelley Shimin, the Making Light feed is here:
http://syndicated.livejournal.com/making_light/profile
(There's an added underbar between making and light, from what I understand on another thread.)
Certainly the position of the current administration:
(b) The status of treaties and the effect of their conflict with statutes. Under principles of Constitutional law, 3/ a convention (an agreement in the nature of a treaty), or a treaty, when self-executing in the sense that no additional legislation is required to make it effective, is equivalent to and of like obligation with an act of Congress. When a treaty is in conflict with a congressional enactment, that which is later in date will control. Thus, a treaty may supersede or abrogate an act of Congress, and vice versa. However, repeal by implication is never favored, and a later treaty will not be regarded as repealing an earlier statute by implication unless the two are incompatible to the extent that the statute cannot be enforced without antagonizing the treaty. Conversely, the same principles are applied when considering the effect of new legislation upon an existing treaty. 4/
The effect of international treaties in courts is generally treated under the confusing categories selfexecuting and non-self-executing. These have their origin in the US case Foster v. Neilson, in which justice Marshall argued that when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.29 Since then the category has become extremely popular, to the extent that it seems to say too many things.30 In short, the doctrine of self-executing treaties argues that courts are obliged to apply treaties as if they were congressional statutes. Its basis is to be found in the supremacy clause of the US Constitution, which provides that This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.31 In the United States, the doctrine of self-execution has for decades been at the center of the controversy over the effects of international treaties. This controversy goes to the very essence of the supremacy clause. The fundamental question is whether that clause should be read as a federalist or as a separation of powers provision. Those who claim that it should be read as a separation of powers provision are sometimes referred to as the internationalists. They argue that the provision obliges courts to apply international treaties as if they were acts of congress.32 Their opponents claim that the purpose of the supremacy clause was to solve a specific problem that plagued the Articles of Confederation, under which some states refused to implement the treaties concluded by the Continental Congress. The supremacy clause's effect would thus be limited to making international treaties mandatory upon states, not upon courts.33 The terms of the controversy are extremely subtle and they turn to a fight on history.
INTERNATIONAL TREATIES UNDER THE SPELL OF BROWN
Rodrigo P. Correa G.*
As a veteran, let me tell you how it really works. No commander is going to get in a pissing match with a grunt about a lawyerly discussion of the rules of engagement. That would lead to anarchy in the ranks. Group discussions and hugs are nice away from the job, but let's keep them there. What's going to happen when a grunt challenges an order to waterboard a "suspect," is that the commander will say "Fine." The poor grunt will find himself on the quick boat to Baghdad instead of in tropical Cuba for the rest of his tour, and there is nothing he can do about it ("bad attitude," "not a team player," etc.). The army has a lousy union, and some jobs are definitely better than others.
Joe
Joe, the thing of it is when out of 12 soldiers assigned to the duty, six of them decline to obey what they see as an illegal order (hypothetically, of course), reassignment to Baghdad becomes less of an option, and once the word gets out (and it will), those commanders will have no choice but to play politics.
The poor grunt will find himself on the quick boat to Baghdad instead of in tropical Cuba for the rest of his tour
It's a choice: waterboard the guy tied down in front of you, keep a comfy tour, finish out your 20 year gig, retire at half pay,
Or, refuse to obey the order, end up in some shithole, don't re-up, and get a job somewhere else.
It's a question of what price your conscience can be bought...
Joe: Speaking as a recent vet: The way deployments (esp. of intel personell) are happening now... the send 'em to Bagdad option isn't that easy.
It takes a couple of months to get all the ducks lined up, and in the meantime the troop can do all sorts of things (not least of which an IG complaint that they are being punished for refusing to obey an unlawful order).
A few calls to the ACLU, various committees of the Religious Society of Friends, and any number of other interested parties (my senators, and representative, for three) could be used to hold that up.
The people who are going to be asked to do this, the ones who do it as a job, are not as easy to push around as a line-doggie. They are not only smart, they tend to be a trifle... independent of mind, with a healthy scorn for idiocy, and of regulations which don't really apply (I know of more than one commander who asked, plaintively, why we didn't have any respect for the army pass system).
One guy can be quashed, a dozen may be hidden under the rug, but if enough (and that's the rub, i'nt?) stand up for what's right, the cracks in the façade will show.
I think you guys are confusing two issues. Waterboarding was a CIA measure.
Military interrogators work under the Army field manual. It was recently revised but I don't think it's affected by the current controversy. They've taken the Geneva Conventions into account.
#73 Nancy C. - Thanks! I got it.
It is long settled that "the provisions of an act of Congress, passed in the exercise of its constitutional authority, . . . if clear and explicit, must be upheld by the courts, even in contravention of express stipulations in an earlier treaty" with a foreign power. Fong Yue Ting v. United States, 149 U.S. 698, 720 (1893); cf. Goldwater v. Carter, 444 U.S. 996 (1979). This Court applied that rule to congressional abrogation of Indian treaties in Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903). Congress, the Court concluded, has the power "to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so." Ibid.
UNITED STATES v. DION, 476 U.S. 734 (1986)
Then again I'd hate to think John Yoo is correct in The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11
I guess I'm the only person who thinks they could just take the soldier and stick him in one of the cells and tell anyone else who has a problem that they can share it with him? Deny him access to a lawyer and tell the family he is missing. It's not like they aren't already doing that to detainees.
Isn't the whole point of the new bill to give them indiscriminate and complete power over anyone who gets in their way?
And the people who say "well, they can't do it to citizens" are just wrong. Remember, if you're declared an enemy combatant, you don't have the right to challenge your detention in court. That includes the right to challenge it on the grounds that you're a citizen. If it got before the court, you'd win, but it never gets there.
That's what I'm saying. The private refuses an unlawful order, the private goes into a dark cell. The private complains, the private gets waterboarded. It's not like these are new concepts, they are just new to us, thanks to this administration.
Dylan #38: There's this curious constitutional prohibition on 'cruel and unusual punishment'. Perhaps it doesn't matter?
What Jim McDonald has posted is _exactly_ what we were trained to do in the Vietnam era, including how to disobey an unlawful order.
"I was only following orders" is never a defense.
Sean: It's a good question, and hinges on the definition of "material aid/support". A suffiently broad interpretation could say anything which those authorised to determine who is accused of being an "unlawful" enemy combatant makes the efforts of "the enemy" easier counts, and so into the naval brig he goes.
But, and this is where it gets sticky, the servicemember belongs to one of those pesky groups which makes its members wear uniforms, and the group in question is, unquestionably serving in the furtherance of a war by a state.
So the prima-facie case says they aren't unlawful enemy combatants.
Which puts any prosecution back into the UCMJ, with Art. 32 hearings and formal charges, and protections against self-incrimination and mandatory representation and all the other safeguards of the U.S. legal system come into play.
More to the point, members of the service are less likely to use this against each other. It's not quite the "blue wall" but we can see that using it on one person would reach back to ourselves.
Further we are told, from the very beginning, that unlawful orders are not to be obeyed, so when someone says they are refusing something, as unlawful; given the serious repercussions, in event of error, that carries a lot of weight, both logical, and moral.
If I were in a position where I was told to treat someone who refused an order, on the basis it was thought to be unlawful, as though they were an enemy combatant (lawful, or unlawful), I would refuse it, as an unlawful order.
It's a choice: waterboard the guy tied down in front of you, keep a comfy tour, finish out your 20 year gig, retire at half pay,
Or, refuse to obey the order, end up in some shithole, don't re-up, and get a job somewhere else.
It's a question of what price your conscience can be bought...
Yep - I guess it comes down to whether a person wants to be an American patriot or to, you know, actually live up to the values America claims as its own.
However, from an outsider persepctive, two points spring to mind:
i, Given the claim that domestic legislation can rewrite treaties, what criticism can America level against other countries that do this. Like, say, Iran?
ii, Isn't just posting this incitement to disobey orders enough to place you in peril of being deemed to be "helping the enemy" and liabled to be Gitmoed?
"America the Free"? Don't make me laugh.
Sean --
Yup. They can; they will.
It won't be legal, but that doesn't keep things from happening.
There is no safe way out of this very unsafe place.
Dylan: Germany declared war on the USA - it is an important distinction.
And, as I understand it, the violation of the Kellogg pact was a key element in the Nuremberg prosecutions - when Germany lost, their violation of that treaty was a breach of law, and a cause for prosecution. And the Germans knew it, that is why they tried to fake a casus belli with Poland rather than just attack.
If Saddam Hussein had got the Iraqi congress to pass a law saying he could torture people, or decree by executive order what was actually legal through interpretation of Iraqi laws and treaty obligations, then would he be free now? After all if he had done so, then he could be guilty of no crime. Unless ex post facto legal principles are also broken and a new law of attainder passed against him by the Iraqis.
I second (or ninety-second, or whatever) Jim Macdonald's statement here. I plan to repost it to my blog, and will of course link back.
I would add, though, that it's likely to be the CIA carrying out the worst interrogation techniques because they're not covered by the UCMJ; over the past year or so, Marty Lederman ("Balkinization") has argued that this is what has driven much of the legal maneuvering -- although I freely confess I got lost in the thickets of the last-minute drafts to the MilComAct, and don't know how this particular issue (military vs. CIA) played out in the end.
I personally think the CIA should have been always understood to also be governed by the most conservative (read: restrictive, ethical) reading of the Geneva Conventions, but this is or was apparently up for lawyerly debate.
So I plan to either subtitle my version of this "...and all other government employees" or add some language to that effect, since courts-martial don't apply to CIA personnel as far as I know.
It should be obvious that I don't think the Geneva Convention rises to Constitutional Level though I might make a case the Convention embodies in part the natural law on which the Constitution draws. Just the same I'm left wondering why the issue comes up? Why don't the NCO's who form the backbone of the Army (and other branches) keep things in line?
Of course Abu Ghraib did happen but I'm still wondering where the First Sergeants were? And will be?
I'd have some hope - perhaps misguided - that a First Sergeant someplace would advise the private not to water board, advise an officer not to give such orders and share concerns with the officers who were butterbars when the first shirt was a private?
The version I heard of Abu Ghraib - a sun trumped a star :) - is Janis Karpinski acted like she still wore Harpers Ferry pistols and figured the silos/stovepipes (pick your metaphor buzzword) met someplace above her grade so folks who wore a sun (and dagger) ;) ranked somebody who wore just a star?! No sergeant to save Karpinski from herself and no sergeant to save Spec Graner and Pvt. Englund from themselves?
So, let me see if I understand all this legalise correctly.
So if given an order that may or may not be illegal, but is certainly unethical and was previously illegal, an officer could refuse to carry it out. If they do refuse, then their commanders have many ways of punishing them.
Perhaps I'm being cynical, but I rather get the impression that many would be perfectly ok with torturing prisioners. Wether or not they be arabs or americans.
So, what it comes down to is this:
Bush has rewritten the Consitution to make his war crimes legal, and ultimatly although the military will bitch and moan about it and some will refus to participate, and folks back home will protest... there will be enough people that won't do anything that he'll get away with his coup by stealth.
So, in effect, he's won already.
Joseph Heller writes [ganked from Wikiquote.Org]:
"'Catch-22...says you've always got to do what your commanding officer tells you to.
"'But Twenty-seventh Air Force says I can go home with forty missions.'
"'But they don't say you have to go home. And regulations do say you have to obey every order. That's the catch. Even if the colonel were disobeying a Twenty-seventh Air Force order by making you fly more missions, you'd still have to fly them, or you'd be guilty of disobeying an order of his. And then the Twenty-seventh Air Force Headquarters would really jump on you.'" --Chapter 6, pg. 68
"You have no respect for excessive authority or obsolete traditions. You're dangerous and depraved, and you ought to be taken outside and shot!" --Chapter 27, pg. 309
"The chaplain had mastered, in a moment of divine intuition, the handy technique of protective rationalization, and he was exhilarated by his discovery. It was miraculous. It was almost no trick at all, he saw, to turn vice into virtue and slander into truth, impotence into abstinence, arrogance into humility, plunder into philanthropy, thievery into honor, blasphemy into wisdom, brutality into patriotism, and sadism into justice. Anybody could do it; it required no brains at all. It merely required no character." --Chapter 34
"Morale was deteriorating and it was all Yossarian's fault. The country was in peril; he was jeopardizing his traditional rights of freedom and independence by daring to exercise them." --Chapter 39, pg. 415
"He felt goose pimples clacking all over him as he gazed down despondently at the grim secret Snowden had spilled all over the messy floor. It was easy to read the message in his entrails. Man was matter, that was Snowden's secret. Drop him out a window and he'll fall. Set fire to him and he'll burn. Bury him and he'll rot, like other kinds of garbage. The spirit gone, man is garbage. That was Snowden's secret. Ripeness was all." --Chapter 41
Finally, Henry David Thoreau writes: "Under a government which imprisons any unjustly, the true place for a just man is also a prison...the only house in a slave State in which a free man can abide with honor." --Civil Disobedience (1849)
Lucifer: That about sums it up...
Posted it as a bulletin on MySpace, in my LiveJournal, and in my blog. All with linkbacks, and a note on the linkback request that they should link to ML, not to my post. Just in case anybody is having an airhead day.
Linked. Going back and reading comments now.
This afternoon, I talked to someone at the Cambridge branch of the American Friends Service Committee about this. (It seems to be within their brief, and I wanted to offer what help I could.) The person I talked to said they would want to help any service member who called them and reported getting in trouble for refusing an order to mistreat a prisoner. He had not heard of any situation like that. He doesn't know why. He hears about lots of other kinds of harrassment and bullying, official and otherwise. I don't think we have enough information to determine if only those with a prior inclination to torture are being pushed to torture, or if others are being intimidated into cooperation or silence.
If you are passing the word to military personnel, tell them about the GI Rights Hotline. 800-394-9544 (the overseas number is 215-563-4620) www.girights.org or girights@objector.org
I just posted this here:
http://www.veteransforamerica.org/index.cfm/page/weblog/subpage/display_blog/bid/0C96D115-123F-747A-1B249BD92E6E5FEB
Posted and linked back. Thank you for posting it in the first place.
Adrian, I don't have the cite, but there was an NPR piece (from This American Life or possibly an author interview) from a servicewoman who was told to sexually harass a Moslem prisoner. She didn't have any idea what might work and didn't want to do it. IIRC, she thought it was a bad idea at the time, but didn't register until later that she was being misused, too.
Thank you for writing this and posting it. I agree completely and am committed to acting on those beliefs, and to the best of my ability, supporting anyone in the military who invokes that duty to disobey.
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