Wednesday, April 22, 2009

To Prosecute or Not to Prosecute

To prosecute or not to prosecute, that is the question.  Recently, I addressed the issue of whether the previous President was within the law when he imprisoned Al Qaida combatants at Guantanamo.  I discussed the legality of Guantanamo and the prisoners held there in the article: Guantanamo Bay - The Al Qaida Issue.  In that article we attempted to make the case that the President was within his rights to have imprisoned these individuals with the intentions of prosecuting them for crimes against the United States.

Since that article was published other developments have evolved from the imprisonment of those individuals and how there were treated by American Armed Forces.  We should also include in this discussion Abu Ghraib, the now infamous prison of torture and the resultant prosecution of the soldiers that performed that torture.  I sometimes wonder if the conduct of those soldiers was at the direction of superiors who, having read the directives from Washington, actually ordered the forms of torture that are now documented. 

The Justice Department provided its assessment of the legitimacy of the prescribed forms of torture on August 1, 2002 with release on June 13th of 2002.  The Pentagon Memo legalizing torture was authored on March 6, 2003 and released June 9th of 2003.  It is reliable assumed the incidents at Al Ghraib began sometime in 2003 and were brought to the light of the public in early 2004 – you make the call as to whether there is a relationship being when the torture started and when the Pentagon released its directives that originated as result of the Justice Departments interpretation of the Geneva Conventions.

It appears that many of the prisoners were tortured routinely by prison guards Davis and Grainer.  In one disposition, the prisoner relates that six Generals witnessed the repossession of the prisoner’s clothes leaving them naked in their cells.  The prisons said that the Generals were escorted by Davis and Grainer.  In sworn statements obtained by the Washington Post from soldiers and detainees present during these incidents there is support of the accuracy of these claims that torture and humiliation were committed.  Eventually, certain Armed Services personnel were convicted for their actions at Abu Ghraib.

In a memorandum from the Department of Justice’s Office of General Counsel dated August 1, 2002 that is directed to Attorney General Alberto Gonzales as Counsel to the President, the Department of Justice makes the case for the particulars that would and would not constitute torture.  The memorandum implies that it is not torture if you apply certain tactics to a prisoner in a certain way; further, it warrants that “Those acts must be of an extreme nature to rise to the nature of torture within the meaning of section 2340A and the Convention”.  One can conclude that the authors of this memo attempted to stretch the interpretation of the of the Geneva Conventions in such a manner as to imply that interrogations that don’t cross a prescribed pain level cannot be construed as ‘torture’.

The President’s General Counsel within the Department of Justice is ultimately responsible to the President and the people of the United States for the direction and interpretation of all Laws that would affect the conduct of the United States.  The case can also be made that all persons in the chain of command that ultimately authorize and implement the Law as interpreted by the Justice Department should scrutinized the directive for its truthfulness and soundness.

We must remember that the position taken by some individuals during the Nuremberg trials that they were ‘simply following orders’ was not sufficient to lessen the amount of severity encompassed in their commitment of crimes related to torture.  Most assuredly the United States will be judged by the methods that are used to address this matter ‘in house’. Bear in mind that we are continuously filing comlaints against the governments of other countries for similar transgressions in the humane treatment of polictical prisoners, therefore it would behoove the United States to deflect the outcries of other nations by addressing this issue in a timely fashion because it will not fade away with time.

In a democracy, silence is not golden; it is condonance in the face of injustices; it is fear, where the thought of reprisal fosters control – Rodney A. Davis

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