Bush’s “Get-out-of-Jail-Free” Plan and it's Trump Card

[Solly Mack]

Bush’s “Get-out-of-Jail-Free” Plan

Congress can make legislation that modifies how Common Article 3 is applied to the United States Federal Code.

See: Treaty

And

Common Article 3 Of Geneva Conventions

Congress cannot change Common Article 3 as it is written (the wording) in the Conventions.

What this means:


Common Article 3 offers no punishment for violations, other than saying the International Red Cross can come in to check out the circumstances.

See

Common Article 3 Of Geneva Conventions


However, the War Crime Act of 1996 does offer up punishment.

“(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.”



The War Crime Act of 1996 is federal US code.

See

TITLE 18 > PART I > CHAPTER 118 > § 2441

So any violation of the War Crimes Act of 1996 can be prosecuted in the US federal courts as a war crime.

- Unless Congress changes how the US defines Common Article 3 as it applies to the US. -

Which is why Bush is making a bid for a pass on his war crimes by calling for "clarification." He is, indeed, asking Congress to review what he has already done, along with what the CIA and the military have done, and to enact a law that says those actions are legal under US federal law, and as the US "interprets" Common Article 3.

Any new "interpretation" ("clarification") of Common Article 3 under US Federal Code will change the War Crimes Act of 1996 - and remove the punishments under American law for violations of Common Article 3.

Such an act by Congress will not free Bush completely from being prosecuted.



Why Customary Law is important to this issue. Very important.

More on Customary Law



Links and Background[br />
War Crimes, Categories of

International Law and War Crimes

Custom-law

Even if Congress does decide to become accomplices to war crimes by legislating law that gives Bush a "get out of jail free" card - there is still Customary Law. There is still the international community.

There is still a way forward to hold the war criminals accountable.

But we must be the ones that drive this point home. We must be the ones that write Congress and let them know we know.

[texpatriot2004]

1. Good idea to write the Cover-Up Congress and tell them that

we know they will be complicit.

[Jensen]

4. And "WE THE PEOPLE" will hold them accountable, along with *!

:mad: :grr: :nuke:
Is way past time we stood up!

[Solly Mack]

8. Exactly. Let them know they too will be held accountable by the people

[Solly Mack]

6. Yes! Write Congress. Write the UN. Write the EU

Let them ALL know we are watching. Let them ALL know we expect them to stand up and make Bush stand down.

[WhiteTara]

2. kick

[Solly Mack]

9. Thanks, BNL!

:)

[Marrak]

3. Bush-War Admin: Save this Idiot?

<>

[Solly Mack]

7. That's what they're asking of Congress

Love your "ad"!!!

[niceypoo]

5. I agree completely

Their timing stinks. There is a heavy lilt of desperation in the Bushies attempts at legalizing torture right this minute. You can hear it in their voices when they make speeches on the subject. They are trying to whip up fear to scare the congress to go along with them in making war crimes legal. Its all about staving off the worst of the impeachment charges (war crimes) given that the democrats will most likely take over the congress this fall.

[Solly Mack]

10. He's trying to save his hiney-hole , yep

and his "legacy" (coughspewchoke)

and damaging the UN and the GC more and more

[formercia]

11. Now everybody knows

ok, let's see who blinks first.

[WhiteTara]

12. Specter is doing the nose up a**

act as we type.

[formercia]

14. How can he do that

and shove the shit back in the horse at the same time?

[Little Star]

13. One of the most important posts EVER!!! K&R

Jonathan Turley talked about this on Countdown w/Keith last night. You are so correct we all need to write and be heard before congress gives him a pass on war crimes! I' starting right now! Thanks for the post.

[Solly Mack]

19. Thank you, Little Star

I appreciate your words.

[Gregorian]

15. I think one can say that what Bush has done is worse than Pinochet.

And one reason Pinochet was allowed any room at all was his health. And we all know Bush is healthy as all hell.

I just hope it's sooner rather than later.

[Solly Mack]

18. Me, too...sooner rather than later

[The Backlash Cometh]

16. When are we going to accept that there is a segment of this population

who are use to pulling strings so they don't have to suffer the fate that the rest of us would, given the same circumstances?

[Solly Mack]

17. Some of us already have...but we still fight against it.

Some never will...they demand that the illusion must be maintained and they will do so at all costs. Their America must always be seen as the "good guy" - everything they have ever been taught about America is fully integrated into who they are as a person.

The rest? They're the guilty...the string-pullers

[gully]

20. Ahhh, thanks for the clarification. So the US has made violations

criminal, not the UN/international community?

[Solly Mack]

21. No...it's criminal in both international/federal (for now)

but a treaty can be "clarified" by an act of Congress, even if that means a breach of international law...so Congress can declare that America interprets Common Article 3 in such a way that makes the acts of Bush "legal" in America...even if they are not viewed as legal under international law.

It's up to the international community to call Bush and America on it. And we must encourage them to do so.

However, there exist recognized Customary Law that Congress can't really change. And the international community can call Bush on that as well

If Congress becomes accomplices to war crimes by granting Bush his way, then Bush gets a measure of protection from prosecution under our laws(only)...not the full extent of the international communities laws.

Look at what happened to Nazi Germany...everything Hitler did was legal under German law...but the international community prosecuted Nazi Germany under customary law as well as precedent setting laws of warfare prior to that point.


The War Crimes Act of 1996 spells out punishments that Common Article 3 does not...Bush gets rid of those punishments applying to him by getting Congress to declare his actions up to this point legal.

Bush neuters Congress's ability to act against him...and then banks on the international community not touching him.

[gully]

22. Gotcha. Very interesting.

Thanks Solly Mack!

[dkofos]

27. No they can't

See post #25

[Solly Mack]

28. Yes, they can...see the Constitution and the Vienna Conference for

reference and precedent.

Reposted from the OP

http://experts.about.com/e/t/tr/Treaty.htm

Vienna Convention
The 1969 Vienna Convention on the Law of Treaties is the authoritative treaty on the international law of treaties, establishing the procedures by which treaties are adopted, interpreted, and invalidated. It is considered mostly a codification of already existing and binding customary law on treaties, and so aside from some necessary gap-filling and clarification, it is not viewed as a change in existing international law. This means that unlike most treaties, the Vienna Convention could arguably be binding to even non-parties. There is a Vienna Convention on the Law of Treaties between States, and on the Law of Treaties between States and International Organizations or between International Organizations. Most states have ratified these treaties. The Vienna Convention on Succession of States with Respect to Treaties has comparatively few parties. Many states reject its provisions as not adequately reflecting the customary international law on the subject.

snip

The United States takes a different view concerning the relationship between international and domestic law than many other nations, particularly in Europe. Unlike nations which view international agreements as always superseding national law, the American view is that international agreements become part of the body of U.S. federal law. As a result, Congress can modify or repeal treaties by subsequent legislative action, even if this amounts to a violation of the treaty under international law. The most recent changes will be enforced by U.S. courts entirely independently of whether the international community still considers the old treaty obligations binding upon the U.S. Additionally, an international agreement that is inconsistent with the U.S. Constitution is void under domestic U.S. law, the same as any other federal law in conflict with the Constitution, and the Supreme Court could rule a treaty provision to be unconstitutional and void under domestic law, although it has never done so. The constitutional constraints are stronger in the case of CEA and executive agreements, which cannot override the laws of state governments.

The Supreme Court has also ruled in Goldwater v. Carter, 444 U.S. 996 (1979) that the President has the power to unilaterally abrogate a treaty without the consent of Congress or the Senate. The case in question involved President Jimmy Carter's termination of a defense treaty with the Republic of China on Taiwan.

The U.S. is not a party to the Vienna Convention. However, the State Department has nonetheless taken the position that it is still binding, in that the Convention represents established customary law. The U.S. habitually includes in treaty negotiations the reservation that it will assume no obligations that are in violation of the U.S. Constitution.



http://www.senate.gov/artandhistory/history/common/briefing/Treaties.htm

"The power to amend treaties after they had been signed rapidly replaced Washington's earlier expectation of Senate advice during the negotiations."

by the simple fact that a treaty becomes part of US federal law, Congress can legislate on them.

[dkofos]

29. That may work in this country

But not under international law

[Solly Mack]

30. That's my whole point. Just because Congress might become accomplices

doesn't mean it's over...we still have options.

[hootinholler]

23. Why would that not be an 'Ex Post Facto' law?

Which are unconstitutional. The law is what the law is when the crime is committed.

-Hoot

[Solly Mack]

24. That's a point I wonder about as well. I don't see why Congress

can't get Bush now for what he has already done.

But that does beggar the question - If Bush is already breaking the law, why hasn't Congress already acted?

I believe the illusion being protected/maintained is...America doesn't torture...no one in the executive has implemented torture or support tortures... so the illusion is...no law has been broken...yet

the reality is, of course, much different

America's "good image" is being protected...along with the asses of the guilty.


For example - Bush's military tribunals. Bush has NO legal authority to initiate military tribunals...only Congress has that power legally...but Bush did it anyway and did it for years BEFORE the SCOTUS ruled on them. Bush can create procedures for them butt only Congress can authorize them. Congress has NEVER authorized tribunals during all this as of now.

So why is Congress now behaving as if Bush hasn't already broken the law when he so clearly has?Instead, Congress is debating whether they should allow Bush his brand of tribunals.

To question any aspect of what is happening now is to question the entire war on terror...it's to question every action by America since September 11, 2001.

A lot of people would rather America didn't have to stand up to that scrutiny...because she couldn't.



short answer: there are those in power trying to pull a fast one on us

[dkofos]

25. It doesn't get any of the bUSH WAR CRIMINALS off the hook

to pass this stupid CYA law.

They should have read the whole document.

They are toast.

Who will be the toaster??

http://www.unhchr.ch/html/menu3/b/91.htm
Section 10

Article 130

Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.

Article 131

No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article.

Section 11

Article 142


Each of the High Contracting Parties shall be at liberty to denounce the present Convention.


The denunciation shall be notified in writing to the Swiss Federal Council, which shall transmit it to the Governments of all the High Contracting Parties.


The denunciation shall take effect one year after the notification thereof has been made to the Swiss Federal Council. However, a denunciation of which notification has been made at a time when the denouncing Power is involved in a conflict shall not take effect until peace has been concluded, and until after operations connected with the release and repatriation of the persons protected by the present Convention have been terminated.


The denunciation shall have effect only in respect of the denouncing Power. It shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.

[Solly Mack]

26. Yes, I know. I said as much...but Congress can change our federal laws

which can keep Bush from being prosecuted under US Federal Code...and yes, Congress CAN create legislation "clarifying" how America interprets Common Article 3.

The international community can still go after Bush...and we still have customary law and the rest of the conventions to work with

[bleever]

31. K&R. Do member of Congress really want to be complicit in war crimes?

They might want to think long and hard about the consequences.

Great post.

[Solly Mack]

32. I'm hoping they don't want to be

Because this such a defining moment for our country and their names will be forever linked to war crimes if they do.

[zonkers]

33. KICK.

[mom cat]

34. GOP is SOFT ON CRIME

War crimes that is.