Geneva Convention | PROBABLE CAUSE

When the United States ratified the Convention Against Torture in 1994, it agreed to criminalize torture and to provide civil remedies for torture victims. Torture was defined as the infliction of “severe” pain and suffering with the intention of doing harm for a specific purpose, such as obtaining information during interrogations, carried out by “a public official or other person acting in an official capacity.”

In August 2002, Jay Bybee, head of the Justice’s Office Of Legal Counsel, and now a federal judge appointed for life to the U.S. 9^th Circuit Court of Appeals, wrote a 50-page memo that essentially said the president could authorize torture even though our laws and treaties prohibited it. The memo asserted that the president could act however he saw fit during war, even if U.S. law and international treaties prohibited such conduct. “The president enjoys complete discretion in the exercise of his commander in chief authority,” the memo stated, and “Congress may no more regulate the president’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”

Bybee’s tortured logic completely contradicts the fact that The Convention Against Torture provides that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.” And Common Article 3 of the Geneva Conventions provides that the rights and duties concerning fundamental humane treatment apply whether a person detained is a prisoner of war, unprivileged belligerent, terrorist or ordinary civilian.

Now we learn from the Senate Intelligence Committee’s report that as national security adviser to Bush, Condoleezza Rice verbally approved the CIA’s request to subject Abu Zubaydah to waterboarding in July 2002, before Bybee’s memo was even written. Last fall, Rice told the Senate Armed Services Committee only that she had attended meetings where the CIA interrogation request was discussed and asked for the attorney general to conduct a legal review. Rice used the infamous Alberto Gonzales “I don’t recall” defense in her testimony, and conveniently omitted her direct role in approving the program in her written statement to the committee. It’s clear that Rice essentially lied to the committee, which given her track record, should come as no great surprise.

Rice approved the use of torture despite the fact that Philip Zelikow, a former top lawyer in the State Department, wrote a memo strenuously objecting to the legal opinions laid out in the torture memo. The White House responded by attempting to destroy all copies of the memo Zelikow authored.

Conservatives like former Vice President Dick Cheney claim that by releasing the memos, we are no different than a Banana Republic. The memos clearly show that Bush administration officials authorized the use of torture and committed war crimes. If Rice, Cheney and others in the administration are not prosecuted for their crimes, then Cheney’s characterization of the U.S. will be accurate.

Recidivism is defined as repetition of criminal behavior, i.e., an offender previously convicted and punished for an offence continues to offend once released. Recidivism is also a measure of the effectiveness of rehabilitation programs or the deterrent effect of punishment. Definitions are important when one considers the recent claims that 61 terrorists released from Guantanamo Bay have returned to the battlefield. An analysis conducted by Seton Hall law professor Mark Denbeaux reveals that those claims are widely distorted. http://www.youtube.com/watch?v=JqXacCsGtKM

Professor Hall points out that the government has issued 43 statements regarding this issue (41 orally) and the number of “terrorists” alleged to have returned to the battlefield has changed nearly every time. The current list of 61 includes people who have written editorials in the New York Times criticizing Guantanamo Bay and those who have filmed documentaries critical of our government’s policies.

A previous analysis of 571 detainees conducted by Denbeaux found that 55% of them were determined not to have committed any hostile acts against the United States or its coalition allies. Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% had no definitive connection with al Qaeda at all and 18% had no definitive affiliation with either al Qaeda or the Taliban. United States forces captured only 5% of the detainees. 86% of the detainees were captured by Pakistan or the Northern Alliance and were handed over to the United States at a time in which we offered large bounties for capture of suspected enemies. Finally, the population of persons deemed not to be enemy combatants – mostly Uighers – are in fact accused of more serious allegations than a great many persons still deemed to be enemy combatants.

At the present time, there are 245 detainees in Guantanamo Bay and only 21 of those have been charged with crimes. Investigators recently reported that there are no comprehensive case files on many of them despite the fact that most have been imprisoned for years.

Former Air Force counterintelligence agent Matthew Alexander, who conducted over 1300 interrogations in Iraq, and author of “How to Break a Terrorist,” has stated that the practice of not keeping comprehensive records on prisoners is called “ghosting” and violates the Geneva Convention. He also has stated that al Qaeda has used Guantanamo Bay as a major recruiting tool to expand the ranks of terrorists.

President Obama’s vow to close Guantanamo Bay is the right decision. The facility stands as a reminder of a justice system run amok. If our government has cases against 21 terrorists, then bring them to trial in the federal court system. If convicted, send them to maximum-security prisons. The idea that these prisoners are more dangerous than the countless murderers, serial killers and sociopaths we currently house in our prison system is as ridiculous as the claims brought against the majority of the detainees.