Geneva Article 3, McCain, Warner, and Statutes

I am not an expert at Article 3 of the Geneva Convention, nor what is or is not "torture." When I listen to the news, it sounds like the President simply wants to clarify what is prohibited by Article 3, which sounds like a good idea: bright lines are better than not. I've pieced together below links to the various documents and history, so that you can decide what's going on. It's an important issue that, to a large extent, involves statutory meaning, so that's why it's here. If you know of other pertinent documents I should list, let me know:

Alleged descriptions of some of the "enhanced methods" of getting information. There's a photo and more details here. I now know what "water boarding" is, and this fact -- "CIA officers told ABC News that 9/11 mastermind Khalid Sheikh Mohammed lasted the longest under water boarding, two and a half minutes, before beginning to talk" -- tells you that it certainly makes people talk to avoid it (put to the side whether that means it is effective, which of course is quite a distinct issue). Id.

Geneva Article 3 which provides in full:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Hamden Decision (inspired the need for the statute -- won't get into what it means for the conduct that occurred without it!). For an explanation of why the Court's holding that this article of the Geneva Convention applied was so important, try here.

AG Gonzales' testimony about the need to act after Hamden.

Executive branch's proposed statute. (Note: to save the Judiciary's time, the bill states: "The prosecution of such individuals by military com missions established and conducted consistent with this Act fully complies with the Constitution, the laws of the United States, treaties to which the United States is a party, and the law of war."). A central part is this:

(1) TORTURE.—Any person who commits,

(1) TORTURE.—Any person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be guilty of a violation of this subsection. ‘Severe mental pain or suffering’ has the meaning provided in 18 U.S.C. § 2340(2).

“(2) CRUEL OR INHUMAN TREATMENT.—Any person who commits, or conspires or attempts to commit, an act intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including severe physical abuse, upon another person within his custody or physical control shall be guilty of a violation of this subsection. ‘Severe mental painor suffering’ has the meaning provided in 18 U.S.C. § 2340(2).

“(3) PERFORMING BIOLOGICAL EXPERIMENTS.—Any person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical purpose and in so doing endangers the body or health of such person or persons shall be guilty of a violation of this subsection.

“(4) MURDER.—Any person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this section, one or more persons taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack.

“(5) MUTILATION OR MAIMING.—Any person who intentionally injures, or conspires or at-24
tempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this section, one or more persons taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack.

“(6) INTENTIONALLY CAUSING GREAT SUFFERING OR SERIOUS INJURY.—Any person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons 17
taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack. ‘Serious bodilyinjury’ has the meaning provided in 18 U.S.C. § 113(b)(2).

“(7) RAPE.—Any person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused or with any foreign object shall be guilty of a violation of this subsection.

“(8) SEXUAL ASSAULT OR ABUSE.—Any person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact, shall be guilty of a violation of this subsection. For purposes of this offense, ‘sexual contact’ has the meaning provided in 18 U.S.C. § 2246(3).

“(9) TAKING HOSTAGES.—Any person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons, shall be guilty of a violation of this subsection. Any person who attempts to engage or conspires to engage in this offense shall also be guilty under this subsection.”

Competing Senate Version by Senators Warner, McCain, and Graham, which in large part tracks the Geneva Convention language and also clearly prohibits a broader range of conduct than the President's version. (it's too long to try to pull a part of, unfortunately.)

There's a long entry here that seeks to tie some of this together.

When I read the literal language of the bills - and, again, I'm no expert on this -- the President's version would authorize conduct that the Geneva Convention seems to prohibit, and would authorize conduct that the Warner/McCain/Graham bill would continue to prohibit.

So, I guess the question is: do we follow the Geneva Convention, or not?

Again, I am posting this mostly as a resource and gathered this to educate myself, as well as you readers. If you know more about this than I do (not a hard thing), please educate me.... about the statutory construction issues. There are other places for politics.