International Echo
The British angle on the military commissions act is interesting. TimesOnline reporter/blogger Mick Smith wonders
The truth is that British military commanders would have been in an understandable quandary. Handing over captured terrorists to the Americans has been avoided by the British recently because of the dubious practices in place – Guantanamo; secret prisons; and as I’ve discussed before, torture. Would they have handed him over to the Iraqis, whose treatment of prisoners scarcely matches up to the standards demanded by international law.
Later he asks the question, regarding both targeted assassinations and handing over suspects to be tortured, “What then are British troops to do? Could they find themselves charged with war crimes for simply doing their job?”
Link via Blood & Treasure, where jamie k avers, “I’m not sure what the exact legal position on this is, but it strikes me at least as a possibility that we might be breaking the Geneva convention simply by operating joint military and intelligence actions with the United States, since these are bound to lead to the capture of whatever category of persons that the President decides are “unlawful combatants” subject to secret detention and torture.”
In many ways the military commissions bill is designed as a Get Out of Jail Free card as much as a plan for the future. It’s designed to indemnify government officials and employees against criminal prosecution in US courts for acts they’ve already committed, ordered or approved. And that’s all well and good for escaping prosecution in the US courts. But British officials have to answer to British and European Union law. The Hague is not going to care that the US Congress decided to arbitrarily define away much of settled international law on the treatment of prisoners. I’ve already suggested that this trap still waits of American officials once some foreign court wants to spring it, but for officials in other countries it’s a more pressing worry.
Comment by Bruce Baugh —
September 30, 2006 @ 2:38 pm
Huh. That’s an angle I hadn’t even thought of.
Comment by Barry —
September 30, 2006 @ 2:46 pm
More and more national leaders, military leaders and intelligence people will think of that, IMHO. This recent torture bill was passed for two, and only two reasons: to immunize past widespread torture/kidnapping/false imprisonment activities, and to immunize future such activities, which will presumably be on a large scale. Since things do tend to become known, the wise foreigner would not get involved.
Comment by Happy Jack —
September 30, 2006 @ 3:40 pm
The British, and I believe most Euros, are a party to Protocols I and II. We aren’t. This provides a gray area for classification and treatment of terrorists for us, not so much for our allies.
Comment by anodyne —
September 30, 2006 @ 6:13 pm
The Dems seemed to have taken pains to reinforce the Hamden decision in the legislative history they laid down during Torture/Detainee bill debate. I haven’t read the Pubs side yet, but it’s hard to imagine they offered up anything new for SCOTUS to chew on. So, here are some questions for the legal eagles here. Which part of the Torture/Detainee bill would have to be struck down in a court challenge that would reverse “the get out of jail free card” aspect of the bill? Did the Dems offer up a viable legal theory to challenge it? Given the US has nominally adhered to the Geneva conventions as written and interpreted for decades, if this aspect of the bill is overturned will it set a precedent that requires an explicit abrogation of an international treaty before the US is no longer subject to its terms? I probably asked these questions ineptly, so any help rehabilitating them would be appreciated.
Comment by y81 —
September 30, 2006 @ 7:46 pm
And, as we know, the vaunted institutions of international law, so beloved of libertarians (?!) are especially dangerous if you’re Jewish. Wolfowitz and Perle had better be especially careful.
Comment by jamie —
October 1, 2006 @ 10:31 am
Well, at the Labour Party conference last week Blair announced a commitment to what amounted to fanatical loyalty to the United States, so I think the more likely effect of this is to push tyhe UK away from the various international laws and protocols it’s signed up to and into the torturesphere. And that’s especially if he’s succeeded by John Reid, the current Home Secretary.
Oh, and cheers for the link Jim.
Comment by JRoth —
October 2, 2006 @ 8:35 am
We’ve already had international rows (including one involving Arlen Specter!) because our allies don’t want to turn over suspects for potential capital punishment. How much less likely are allies to hand over suspects for certain torture. Ira Einhorn could conceivably evade the chair, but Mohamed bin Mohamed is getting waterboarded no matter what.
They could not care less about actually preventing terrorism. They didn’t care on 1-20-01, not on 7-10-01 or 8-06-01. They thought about it on 9-11, but by 9-12 they were over it, and thinking about Baghdad. They will never care about it.
Comment by Jim Henley —
October 2, 2006 @ 8:39 am
y81, I’ll happily confess to libertarian ambivalence and suspicion of international institutions. That doesn’t mean that, as factual matters, they don’t exist. So any analysis I do of what changes in American law do and don’t mean has to take the fact of their existence into account.