CBG LETTER TO A MILITARY LAW PRACTITIONER, 2003.09.27 Hi * * *, I've been doing some thinking about what I wrote to you: "In regard to the charges, they include "disobeying a lawful order". It occurs to me that demonstrating the illegality of the order would be a defense to that charge. It further occurs to me that if I'm right about GPW and 18 USC 2441, it might also be argued that NO order issued by a command engaged in systematic war crimes could be lawful unless it was completely unrelated to the crimes. Any thoughts on that?" And your reply: "On your second question, I know of no support for your theory." Looking through the punitive articles (UCMJ, 10 USC Ch. 47), my theory seems pretty obvious... * ART. 77. PRINCIPALS Any person punishable under this chapter who -- (1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission or (2) causes an act to be done which if directly performed by him would be punishable by this chapter, is a principal. * ART. 93. CRUELTY AND MALTREATMENT Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct. * ART. 97. UNLAWFUL DETENTION Any person subject to this chapter who, except as provided by law, arrests, or confines any person shall be punished as a court- martial may direct. Further, Geneva Common Article 1 (CA1) states: Article 1. The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances. CA1. Which establishes a positive duty in US law for all public officials and military personel. Dereliction of duty is an offense under Art. 92(3). The JTF-GTMO website [ http://www.nsgtmo.navy.mil/JTFgtmo/index.html ] states: "The Joint Task Force Guantanamo exists to detain enemy combatants and develop operational and strategic intelligence to help the United States and its allies win the on-going Global War on Terrorism." I think it's very clear the detentions are in grave breach of Geneva, and almost as clear that the interrogations are also. It follows that the only actual purpose of JTF-GTMO is to commit violations of 18 USC 2441. Now I've studied all the arguments on both sides, and I'm just not in any doubt here: the administration's position on the Geneva Conventions is plainly fradulent. The White House "Fact Sheet" (2/7/2002) is a clear example in regard to GPW arts. 4-5. So are the "decisions" of the 4th Circuit in Hamdi -- they ignored the first three canons of judicial conduct, and they also ignored the law, to wit: [[*31]] (...) Hamdi and amici also contend that Article 5 of the Geneva Convention applies to Hamdi's case and requires an initial formal determination of his status as an enemy belligerent "by a competent tribunal." Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 5, 6 U.S.T. 3316, 75 U.N.T.S. 135. This argument falters also because the Geneva Convention is not self- executing. "Courts will only find a treaty to be self-executing if the document, as a whole, evidences an intent to provide a private right of action." Goldstar (Panama) v. United States, 967 F.2d 965, 968 (4th Cir. 1992). The Geneva Convention evinces no such intent. Certainly there is no explicit provision for enforcement by any form of private petition. And what discussion there is of enforcement focuses entirely on the vindication by diplomatic means of treaty rights inhering in sovereign [[*32]] nations. Hamdi v. Rumsfeld, 2003 U.S. App. LEXIS 198,*; 316 F.3d 450 (4th Cir. 2003), "Hamdi III". The true intent of Geneva is fully stated by CA1, supra, and GPW art. 129: Article 129 [identical to GC art. 146] The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case. Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article. In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention. The court further claims in Hamdi IV: [*2] * * * Hamdi is being held according to the time-honored laws and customs of war. There is nothing illegal about that. The option to detain those captured in a zone of armed combat for the duration of hostilities belongs indisputably to the Commander in Chief. Art. II, Sec. II. And the question is essentially whether the United States can capture and detain prisoners of war without subjecting the factual circumstances surrounding foreign battlefield seizures to extensive in- court review. n1 The answer to this is now -- and always has been -- yes. In giving prisoners of war the right to litigate their detentions in American courts, the dissent would install a more restrictive [*3] regime on the executive branch after September 11 than existed before. Hamdi v. Rumsfeld, 2003 U.S. App. LEXIS 13719,*; 337 F.3d 335 (4th Cir. 2003), Wilkinson concurring. Those claims simply do not withstand scrutiny: they present every appearance of wilful prejudice and fraud. The precedents on self-executing treaties go back to Chief Justice Marshall, and I think it's useful to look at what he actually said: A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far [[*114]] as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court. The article under consideration does not declare that all the grants made by his catholic majesty before the 24th of January 1818, shall be valid to the same extent as if the ceded territories had remained under his dominion. It does not say that those grants are hereby confirmed. Had such been its language, it would have acted directly on the subject, and would have repealed those acts of congress which were repugnant to it; but its language is that those [[*115]] grants shall be ratified and confirmed to the persons in possession, &c. By whom shall they be ratified and confirmed? This seems to be the language of contract; and if it is, the ratification and confirmation which are promised must be the act of the legislature. Until such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject. Foster v. Neilson, 1829 U.S. LEXIS 405, *; 27 U.S. 253; 7 L. Ed. 415. Then there is Tel-Oren: [ 808 ] * * * Treaties of the United States, though the law of the land, do not generally create rights that are privately enforceable in courts. (...) Absent authorizing legislation, an individual has access to courts for enforcement of a treaty's provisions only when the treaty is self-executing, that is, when it expressly or impliedly provides a private right of action. (...) When no right is explicitly stated, courts look to the treaty as a whole to determine whether it evidences an intent to provide a private right of action. * * * Of the five treaties in force, none provides a private right of action. Three of them -- the Geneva Convention for the Protection of Civilian Persons in Time of War, the Geneva Convention Relative to the Treatment of Prisoners of War, and the OAS Convention to Prevent and Punish Acts of Terrorism -- expressly call for implementing legislation. A treaty that provides that party states will take measures through their own laws to enforce its proscriptions evidences its intent not to be self-executing. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (DC Cir. 1984), Bork concurring. I think it's interesting that we are looking at cases that deal with civil claims here: since when is a private right of civil action necessary to call on the authorities not to commit crimes or call them to account if they do? As for the question of Genvea being self-executing, looking at GPW there is exactly one article that calls for implementing legislation, Article 129: The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. And note that it says "any legislation necessary", which carries the clear implication that such legislation might NOT be necessary -- which up until 1996 was in fact our claim except on those occaisions where the government decided to violate the conventio. But in the context of Hamdi, even that isn't an issue becasue 18 USC 2441 cleary and unamibiguosly EXECUTES the treaty in US law. The Hamdi panel stated: "Courts will only find a treaty to be self-executing if the document, as a whole, evidences an intent to provide a private right of action." Goldstar (Panama) v. United States, 967 F.2d 965, 968 (4th Cir. 1992). The Geneva Convention evinces no such intent. Certainly there is no explicit provision for enforcement by any form of private petition. To assert that, they had to read the convention in full. Having read the convention in full, they could not honestly reach their conclusion. In order for Traxler to state that there is "nothing illegal about it, he would have had to make an honest effort to ascertain what the laws says, and having read 18 USC 2441 he could not possible be in doubt that in fact the detention at Guantanamo Bay are illegal. I know I don't need to go over the details of Geneva with you. I've spent almost two years dilegently trying to prove that I'm wrong and I just can't do it. Going into this thing I swore an oath to look at the law and the facts objectively and impartially. That oath has no legal force, but I take just seriously as an officer is supposed to take their military oath. I've tried to approach all of this just as seriously as I possibly could. You have my sincere respect. So seriously and with all respect: Where am I mistaken? Where is there any doubt about this? Regards, Charly ================================================================================ United States v. Moore, Case No. 03-0083, Crim. App. No. 9900594, (USCAAF, d. 2003.07.10). http://www.armfor.uscourts.gov/opinions/2003Term/03-0083.htm The legality of an order is a question of law that we review de novo. United States v. New, 55 M.J. 95, 100 (C.A.A.F. 2001). A superior’s order is presumed to be lawful and is disobeyed at the subordinate’s peril. Manual for Courts- Martial, United States (2002 ed.)[hereinafter MCM] Part IV, para. 14.c.(2)(a) (i); United States v. Nieves, 44 M.J. 96, 98 (C.A.A.F. 1996). Nevertheless, to sustain this presumption, "[t]he order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service." MCM Part IV, para. 14.c.(2)(a)(iii)(emphasis added). Moreover, the order may not "conflict with the statutory or constitutional rights of the person receiving the order" and must be a "specific mandate to do or not to do a specific act." Id. at para. 14.c.(2)(a)(iv) and (d). In sum, an order is presumed lawful, provided it has a valid military purpose and is a clear, specific, narrowly drawn mandate. See United States v. Womack, 29 M.J. 88, 90 (C.M.A. 1989). # # #