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Sunday, August 06, 2006

The New Gonzales Standard for Torture

Ten years ago, Representative Walter Jones (R-NC) introduced The War Crimes Act of 1996. This statute was one of many in the mid-1990s devoted to the principle of extraterritoriality: the extension of U.S. laws to other countries. When applied, such laws subject foreign nationals to prosecution if they treat a U.S. citizen or U.S. property in a way that violates U.S. laws.

Behind the spate of extraterritorial laws was congressional frustration that the "world's only remaining superpower" could not extend its writ around the globe. Mayhem ranging from genocides and acts of terror to massacres and sheer brutality against prisoners and non-combatants regularly occurred in the era's many civil wars-with the perpetrators often escaping accountability for their actions.

Back in 1996, few anticipated that The War Crimes Act, which entered law as 18 USC Sec. 2441, would have the potential to boomerang and hit the United States itself.


The law itself, one page long, seems quite definitive. The first paragraph lists potential punishments, which include the death penalty if the victim dies. The second describes the "circumstances" of the offense: the perpetrator or victim must be a U.S. national.


Then White House Counsel and now Attorney General of the United States Alberto Gonzales was one who recognized the potential for prosecution under 18 USC Sec. 2441-a view he expressed in a January 25, 2002 memo to President Bush, one of many on this subject that went between the White House, the Justice Department, the CIA, and the civilian leadership of the Pentagon. These memos attempted to establish a rationale permitting abusive and degrading treatment, including torture, by creating "exempt" categories for detainees and "exempt" areas in which prisons could be built and unregulated interrogations conducted.

By affirming in its June 30, 2006 decision (Hamdan v. Rumsfeld) that Common Article 3 of the Geneva Conventions applied to detainees in the "war on terror" and the jurisdiction of the federal courts to hear cases involving detainee rights, the Supreme Court invalidated most of the administration's "no-standards" interrogation policy. But rather than bring policy-and practice-into line with the international conventions that the United States had observed up to September 11, 2001, the administration is now trying to absolve itself ex post facto. It is pressuring Congress to pass legislation that retroactively shields from possible prosecution anyone who authorized or encouraged the use of coercion during interrogations.

The New Gonzales Standard for Torture
Col. Dan Smith, CounterPunch, August 4, 2006

All other issues aside, it is interesting to note how similar the ways and means of the government and corporate lawyers are. Both are not that much concerned that the law is followed; both mostly see their mission as that of finding ways for their bosses to break the law and get away with it.

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