Bush to the US Constitution: Drop Dead

Time for a civics lesson and I'll attempt a little Q & A in my half-assed way of having a Socratic dialogue:

Q: Are treaties law?

A: Yes. Article VI Clause 2 of the US Constitution reads as follows:

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. [my emphasis]

Q: How do treaties become law?

A: They are signed by the president and must be submitted to the Senate and a 2/3 vote of the Senators present is needed for approval or ratification.

Q: Is the Convention Against Torture (CAT) a treaty?

A: Yes.

Q: Did the president sign it?

A: Yes, President Reagan signed it on April 11, 1988 and the senate ratified it on October 21, 1994.

Q: Why did it take so long to be ratified?

A: Because on signing the treaty the US made a list of several reservations including this one: "That the United States declares that the provisions of articles 1 through 16 of the Convention are not self-executing."

Q: What did that mean?

A: That meant that specific laws had to be passed and signed into law which essentially made torture a crime under United States Law and provided for jurisdiction by the US regardless of where torture is committed provided either the "the alleged offender is a national of the United States; or the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender." This law is commonly referred to as either the CAT implementing legislation or the Torture Statute.

Q: So the terms of the Convention Against Torture is the law of the land in the United States, right?

A: Yes it is, with the exception of the few reservations the US made.

Q: Aren't there exceptions when torture can be justified?

A: No, Article 2 Paragraph 2 states "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 of torture."

Q: Did the United States have a reservation regarding this section?

A: No.

Q: What is the role of the Executive Branch of the Federal Government?

A: The role of the Executive Branch is to enforce the laws.

Q: Who is in charge of the Executive Branch?

A: The President of the United States.

Q: So would it be fair to say that the president is the chief law enforcement officer of the United States?

A: Article II, Section 3 of the US Constitution states that among the president's duties "he shall take Care that the Laws be faithfully executed." So although it is not specifically spelled out in the Constitution that the president is the chief law enforcement officer of the United States, given that he is in charge of the Executive Branch and the Executive Branch enforces the laws and among his duties is to take care that the laws are faithfully executed, your answer is essentially correct.

Q: So given his role as chief law enforcement officer and given the fact that the Convention Against Torture is the law of the land and given the fact that the Convention Against Torture provides for ""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 of torture," why would the president's legal advisers say "The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture?"

A: I cannot possibly explain why.

As Michael Froomkin said:

"And just imagine what those guys will do if they don’t have to worry about re-election."

Kevin has more here, Katherine has more here and Jeralyn has more here.

Comments

[quasi]

A civics lesson continued:

Question: Has the United States violated the treaty?
Answer: No.

Why?

Well you can read the treaty first:
http://www.unhchr.ch/html/menu3/b/h_cat39.htm

go ahead.

The United States has followed all of the required tenets of the treaty, and in case you were curious when reading, Iraq is not within the jurisdiction of United Staes law.

[miguel]

One more,

Q: Does the Torture Stature specify any penalties?

A: Yes, a person found guilty of committing torture faces up to 20 years in prison or even execution, if the torture in question resulted in a victim's death.

From 18 USC Sec. 2340A,

(a) Offense. - Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

[Viserys]

It isn't? Well, we're certainly not allowing it under the jurisdiction of other states, and if the Iraqis had sovereignty this whole "handover" thing wouldn't be an issue, so process of eliminations says...

[Randy Paul]

Quasi:

You're wrong and you should probably acquaint yourself with the Torture Statute which was the enabling legislation for the US to prosecute torture committed outside the USA. Here's the relevant section under jursidiction:

Sec. 2340A. - Torture

(a) Offense. - Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction. - There is jurisdiction over the activity prohibited in subsection (a) if -

(1) the alleged offender is a national of the United States; or

(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

c) Conspiracy. - A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

Whether it is committed in Iraq is irrelevant. The Torture Statute requires the US to prosecute those US citizens accused of torture or anyone in the US provided that the torture alleged was committed outside the United States.

[Happy Monkey]

A US-run prison is within the jurisdiction of US treaty laws, regardless of the country it is in.

[quasi]

Now we are cooking with gas miguel.

It is the United States code that applies here. The convention is only important in that it requires passage of legislation. After that it is somewhat silly to bring it up.

[Greg Hanigan]

But Quasi.

Article 2 states:

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

The United States controls Iraq through Paul Bremer. That makes Iraq a territory under it's jurisdiction.

[Basharov]

The Torture Statute requires the US to prosecute those US citizens accused of torture or anyone in the US provided that the torture alleged was committed outside the United States.

This is why, for purposes of avoiding enforcement of the torture statute against Bush and his cabal, Bush's legal advisers in their torture memo made a point to say that Guantanamo is a part of the United States -- a position that is, to say the least, incompatible with the argument the Administration made to the Supreme Court just a few weeks ago that Guantanamo is a part of Cuba.

[Joshua]

quasi: I disagree; the United States *has* violated the treaty. Per the following:

"Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."

I think it would be pretty difficult to claim that Iraq is not a "territory under [U.S.] jurisdiction" at the moment, even if as you say, Iraq is not within the jurisdiction of United States *law*. That fact would absolve the U.S. of responsibility if Iraqis were committing acts of torture. But United States military personnel, running a prison in Iraq? Combined with White House legal opinions attempting to find loopholes to justify torture (clearly contrary to the CAT)? Those are pretty blatant violations.

[Scorpio]

You know all those jokes about lawyers? Well the ones who gave Bush the opinions he wanted were the kinds of lawyers that jokes are made of.

The JAG lawyers who protested were not permitted to give their opinions, now were they? But then they were JAG, and their butts were on the line. Bush is the head of the military although his ass isn't out there. Maybe it is time to put his ass out there for real.

When is Congress going to exercise its oversight function? Its impeachment function?

Scorpio
Eccentricity

[fastback]

"I do solemnly swear that I will faithfully execute the Office of the President of the United States, and will to the best of my ability, preserve, protect, and defend the constitution of the United States."

George W. Bush - January 20, 2001

[Miriam]

OK, sure, treaties are law, but Native American history, at very least, teaches us that the US has also never hesitated to simply stop following a treaty whenever it felt that it was beneficial to do so, regardless of whether that was legal or not.

We're seeing the Andrew Jackson response to the law of the land here - that is, when the Supreme Court found it was not legal for Georgia to send the Cherokee on the Trail of Tears, Jackson's response boiled down to, "You made the laws - YOU enforce them," and he refused to do anything to stop Georgia's actions.

So all in all it's not surprising that Bush, or his advisors anyway, feel that the president can set himself above the law of the land. (There are plenty of other examples, of course - Iran-Contra comes to mind - but Jackson's is one of the clearest and most public statements.) Or that treaties aren't binding.

Augh.

[Zizka]

One strong tendency of the Bush dministration seems to be to put the some acts of the Chief Executive, military and police outside any law (American or international) or any oversight or checks and balances. Scalia seems to be friendly to that kind of approach.

I've never been a big constitutionalist, but the kinds of powers Bush is trying to appropriate seem to be exactly, without any reinterpretation or parsing at all, the kinds of excessive powers which motivated both the American Revolution and the Bill of Rights. E.G. keeping an American citizen incommunicado for over a year without charge or legal representation (and possibly, it seems, facing or undergoing torture). This is something which has actually happened (the "shoe bomber") and not merely a formal possibility of the system.

Sometimes when I talk to hyper-constitutionalist little-government Republicans, they will wax indignant about the Federal Reserve or the public school system. Yet the hawks among them seem completely undisturbed by Guantanamo, Abu Ghraib, the Patriot Act, etc. There really are too many demented people around.

[Randy Paul]

Quasi is engaging in a bit of sophistry here. The Torture Statute would not exist if it wasn't for the CAT, so Quasi's argument is Bushian in its disingenuousness.

[Joe]

Moreover, Article 5(1) states:

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

(b) When the alleged offender is a national of that State;

(c) When the victim is a national of that State if that State considers it appropriate.

[Smith & Jones]

Moreover, Article 5(1) states:

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

(b) When the alleged offender is a national of that State;

(c) When the victim is a national of that State if that State considers it appropriate.

[Mick]

I'm sorry but where's the surprise here? Bush has been trashing the Consitution practically from Day One, flouting laws he didn't care for, ignoring Congressional orders he found inconvenient, lying to Congress whenever he felt like it, bringing religious groups into govt through the back door, and sending Ted Olson to the SCOTUS to tell them they have no jurisdiction over anything he does.

This isn't new, it's just a difference of degree. Key portions of the PATRIOT Act are obviously un-Constitutional; the war itself could be un-Constitutional, first because the War Powers Act wasn't properly invoked and second because he lied to Congress in the letter that asked for authority about the reasons the war was necessary; he spent money on Iraq that was appropriated for Afghanistan--illegal and un-Constitutional; he told blatant lies in the 2003 SOTU--un-Constitutional; he's taken steps to establish a state religion--un-Constitutional; I could go on but what's the point?

Like corporate executives always do, these guys pay attention to the rules that favor them and ignore the ones that don't. To them the Constitution is just like a contract--you honor it as long as it does what you want it to do and violate it as soon as it doesn't. It's just words on paper, after all, and they can be 're-interpreted', just as Gonzales 're-interpreted' the Geneva Convention on the basis that it was out-dated and 'quaint'.

This has been going on for three years. It's just more of the same. DS,SS.

[Satan luvvs Repugs]

It's just amazing to watch this unfold; with the legal memos, the incontravertable paper trail leading right to the oval office, the treaties and federal laws blatently broken, the trajectory of Bush & Co. from supreme power to the dock at Nurenburg clearly visible.

Impeachment just isn't enough; it would only put another of the gang of war criminals in Bush's place, and with the GOP putting party well above country (or even humanity) it'll never happen.

No, to clear out this band of war criminals requires either an election or a bloody revolution. I just hope
we can have a decent election.

[mr q]

first, 'quasi' is short for 'quasi-intelligent'.

second, a revolution in the US? Hah! Only if you could start and complete the entire revolution *in between commercials*!

the majority of the people in this country are either too ignorant, indifferent or stupid to even care enough about a revolution. to them, their lives aren't being touched by any of this at all.

once there is a draft next year, and middleclass people's kids start dying, then perhaps they would give a damn. but for now, they will all sit around, anxiously waiting for the next american idol vote, so that they can pay attention to what truly matters to them. NOTHING.

[Jon R. Koppenhoefer]

I've wondered how the military can claim to be outside the jurisdiction of the laws and treaties of the US while acting under command and authority of the commander-in-chief (who just happens to be the President and is sworn to uphold and defend the laws of the US and the Constitution).

They might as well say "KING's X" and stick their tongues out. I'd say that the Pentagon's lawyers should demand their law school tuition be refunded. They got shortchanged somewhere.

[BrettK]

Am I the only one who finds it appalling that a Bush apologist would try to justify this? Remember that "moral clarity" stuff? Remember how Bush's favorite political philosopher is Jesus Christ? How can he reconcile his personal relationship with the Lord and underlings encouraging him to torture prisoners?

[Dr A]

"No, to clear out this band of war criminals requires either an election or a bloody revolution. I just hope we can have a decent election."

Kerry is just another Bush. Pro-Iraq war. Pro-Isreal. Might be a closet GOPer. For a real change, it looks like Nader or LaRouche.

[tv head]

How do you reach the masses? This blog is fine and this site is a forum for intelligent dialog, but it becomes very disheartening reading what is included here and on others when nothing seems to change.

What environment are you in? Are you surrounded by every-day America? Do you, who is reading this, talk to every-day America? Is every-day America reading this blog? Maybe we should all just accept that this is the society that we live in, that if we don't want to be a part of this "crowd" we should try another place.

Or maybe we should inspire for more? How will you motivate, change, dare I say, wake up every-day America? What ideas do you have? Are you truly being effective?

I'm discouraged with my ideas. I feel I don't have any ideas that will make a difference, no actions that will matter, like I have no voice. I feel oppressed.

I've got to worry about my own life, I can't worry about something I can't change. I have no power. I've got kids to feed, credit cards to pay off, that new car to buy, that show to watch.

[t]

Dr A

Nader? I am sad that you will be voting for Bush, and war crimes. Kerry might be good, and he might be bad, but at least he is not yet a felon that can't be convicted because he owns the jury and the judge.

[Taurus]

Not yet.

[John]

You don't need no stinkin' law: the US Constitution already prohibits nonsense..in country or out...by and for he US government. ((remember, most of the big C is about restraining government)) Amendment XIII:
Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.

[shall not exist .. any place .. ] note, too, that when taken together with XV, the Big C prohibits...flat out no-no....felon lists...((thus, Bush presidencies))

Constitution...it's not just for classrooms any more.

[susan zoppi]

What can we the people do about the murderous dictator that has bankrupted our country, is personally responsible for making the entire world hate us and is laughing all the way to the bank? People think that nothing really horrendous politically could ever happen here because we have the Constitution and the Bill of Rights. They think they are free and our government protects them. How can we educate them to the fact that it was bush who attacked the US on 9/11? He is not even the legally elected president of our country which makes his attack on Iraq completely illegal. He is sending our boys over there so that he can amass an even huger fortune, if that is possible. He is insane and he behaves that way. And what do we do about it? ABSOLUTELY NOTHING! How can peoples be educated to the facts of what is going on here and overseas? ow can we save out country from one of the most dangerous psychopathic, military dictators who has ever lived? What can we the people do? Is there any hope?