Forget Gitmo?

Nox

bonkey wrote:

Is it not also true, however, that the newly proposed "ban on torture" tahts been in the media a lot only mde it through once they coupled a rider to it which basically indemnifies US personnel from prosecution if they believed they were carrying out a legitimate order.

This is the very first time I've heard this. Do you have a source?

Nox

Sand

This is the very first time I've heard this. Do you have a source?

http://www.sltrib.com/nationworld/ci_3314741

Its apparently not an innovation as such, theyre just extending the same protection military interrogators have to the CIA. Whether military interrogators should have that right in the first place is another matter.

So, while its not quite the same, there would appear to be a way out with "we were only following what we believed to be legitimate orderers".

They would have to argue to a courts satisfaction that they had good reason to consider the orders legitimate, so its not clear cut immunity. Basic common sense alone should have informed the people at Abu Gharib, for example, that their treatment of prisoners was way out of line. And the courts in that case didnt accept ignorance or "we were following (what we believed to be legitimate) orders" as a defence either.

Nox

bonkey wrote:

Is it not also true, however, that the newly proposed "ban on torture" tahts been in the media a lot only mde it through once they coupled a rider to it which basically indemnifies US personnel from prosecution if they believed they were carrying out a legitimate order.

Nox wrote:

This is the very first time I've heard this. Do you have a source?

Apparently, I failed to communicate properly.

What I was questioning was the part about the legitimate order. The only reference the article made was this:

"The White House in September threatened to veto the measure, saying it would hurt the war on terror, and Cheney personally lobbied against it, arguing that CIA operatives should be exempt from its provisions."

Sand wrote:

http://www.sltrib.com/nationworld/ci_3314741

Its apparently not an innovation as such, theyre just extending the same protection military interrogators have to the CIA. Whether military interrogators should have that right in the first place is another matter.

The US Military interrogators DO NOT have that right. The "following orders" bit was debunked at Nuremberg in the mid-1940's ... debunked for the US Military during the Lt Wm Calley trial during Viet Nam and remains that way today.

So I again repeat the query:

Nox wrote:

This is the very first time I've heard this. Do you have a source?

I am interested to see where this came from.

Nox

Manic Moran

Look two paragraphs further down from the same Salt Lake Tribune article.

McCain said the new wording would take language from the Uniform Code of Military Justice that allows accused soldiers to argue that they thought they were obeying legal orders and apply it to CIA interrogators as well

I think it's a reasonable compromise. Sometimes the illegality of an order is plain and obvious. "Shoot that unarmed child!" Sometimes it's less so: "Don't let that prisoner go to the toilet" can be legal, or illegal, depending on the context.

Curiously, the American army has more restrictions than some. One Scandanavian I was talking to, Swedish I think, was saying that in their army, they have a 'Command override' call, which absolves the soldiers of responsibility even in apparently illegal orders:

Say, for example, Officer A and Soldier B both see an unarmed woman approaching. A and B are at separated locations. Officer A, armed with something inappropriate for the situation, thinks he sees from his angle a suicide vest through a gap in the clothing. Hollers at Soldier B to 'Shoot that woman in front of you.' The soldier, seeing nothing but an unarmed woman in front of him, is obviously going to have an argument saying "I can't do that, it's illegal".

However, if Officer A hollers "Command Order! Shoot that woman," then -all- responsibility for that action falls on the order issuer.]

It makes sense. Obviously, there would be limitations on its applicability, such as non-time-critical scenarios like in a prison.

NTM

samb

It is a very interesting and difficult subject you are discussing here. Who should take responsibility for military 'errors'' is very difficult. Bloody Sunday is a typically difficult scenario close to home. From what I know of it the soldiers were led to believe that they were dealing with IRA men. They were also inadequately trained, young hotheads. Somebody certainly should have been punished, but who? Somewhere between the PM and the soldiers?

Nox

Manic Moran wrote:

Look two paragraphs further down from the same Salt Lake Tribune article.

McCain said the new wording would take language from the Uniform Code of Military Justice that allows accused soldiers to argue that they thought they were obeying legal orders and apply it to CIA interrogators as well

That 'language' is not now, nor ever has been in the UCMJ. Either McCain is spouting tripe, or the reporter did not do a good job of reporting what he said.

Nox

sovtek

the_syco wrote:

Iraq DID have WMD. The US know this, as they gave Iraq them. The US, however, had no proof that said WMDs were destroyed.

Actually they did...Saddam's brother-in-law told them when he provided the CIA with evidence of what they DID have.

sovtek

psi wrote:

In other words, its not proof of anything.
Present the photos, medical reports, documents etc that the report claims exist and THAT is evidence.

Psi...do a google on "Alberto Gonzales" and "torture memo"

Sand

That 'language' is not now, nor ever has been in the UCMJ. Either McCain is spouting tripe, or the reporter did not do a good job of reporting what he said.

I dont have access to the UCMJ so I cant say what is or is not in it tbh. I do know what McCain is reported as having said and Ive no reason to consider the source as being wrong, as Ive read the same quote from other sources. It is also noted

McCain said the wording wouldn't contradict precedents from World War II military trials that ''obeying orders is not a sufficient defense.''

Which is the very concern your raising, so Id imagine McCain - or more likely his legal advisers - are aware of what is or is not in the UCMJ and its legality when it comes to the Nuremberg principles.

Id speculate the wording is to protect say, the guy dropping a bomb from a mile up on some co-ordinates he was given and accepted in good faith which turns out to be a school - or the Chinese Embassy for that matter. But like I said I havent got access to the wording so I cant say other than what is reported.

The US Military interrogators DO NOT have that right. The "following orders" bit was debunked at Nuremberg in the mid-1940's ... debunked for the US Military during the Lt Wm Calley trial during Viet Nam and remains that way today.

Again, Ive got to go with what is reported by a source Ive no reason to doubt and which Ive seen repeated elsewhere. Ive no access to the source document, so it a toss up between an anonymous poster on the internet or respected news sources...
As for Calley, if the wording did exist it wouldnt protect him or his men, because once they had entered the village and faced no opposition they had no grounds for believing Calleys orders to shoot the villagers were legitimate orders.

Actually they did...Saddam's brother-in-law told them when he provided the CIA with evidence of what they DID have.

Is he the same brother in law currently in a courtroom denying he or Saddam ever heard about what happened to people in Iraqi prisons? Do you believe him implicitly there also?

The evidence on WMD was wrong and spun, but to argue "Well Saddams brother-in-law told him had no WMD, so they had to know there wasnt WMD" isnt really open and shut tbh.

I am interested to see where this came from.

Well, you did see, then you immediately denied and ignored. A definition of madness is attempting the same thing again and again and expecting a different result.

Manic Moran

That 'language' is not now, nor ever has been in the UCMJ

Male bovine fecal matter.

Manual for Courts Martial, Rule 916 (d), issued pursuant to Art 36 of the UCMJ:

"It is a defense to any offense that the accused was acting in pursuance to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful"

NTM

Nox

Manic Moran wrote:

Male bovine fecal matter.

The most polite public rebuke I've ever gotten for a flagrant error that I made.

I stand corrected ... and say with difficulty ... Thank you.

Nox

Manic Moran

Well, you know with censorship and all that.... Post was made before the 9pm watershed



NTM

Nox

Even though I have acknowledged the error of fact which you corrected ... I will say this:

Your source material is a legal beagle site.

When US Service members are indoctrinated in the UCMJ ... that source is NOT ... nor should it be ... part of the training.

In the future I shall endeavor to be cautious of using absolutes like I did before ... but the 'Johnny Cochran' nitpick that you used muddies the water in attempting to explain the training that the military members receive.

Yes sir ... you are technically correct ... and on the practical level ... the training is far different than your implication.

Nox

Manic Moran

Your source material is a legal beagle site.

Umm.. No, my source is the Manual for Courts Martial. I downloaded the PDF file, did a keyword search. I have access to all Army FMs, TMs, STPs, ARTEPs,PAMs etc. I grant you, the MCM is not one that I tend to refer to often, it's a little outside my normal frame of reference, but I can if I need to.

the training is far different than your implication.

I'm confused. Isn't about all I said for the US that soldiers are taught not to follow illegal orders? "Do not follow orders which are against the rules of warfare" Doesn't take that much time in the curriculum, I don't see why you might think it's not taught as such.

What was my Cochranesque nitpick?

NTM

Nox

Manic Moran wrote:

Umm.. No, my source is the Manual for Courts Martial. I downloaded the PDF file, did a keyword search. I have access to all Army FMs, TMs, STPs, ARTEPs,PAMs etc. I grant you, the MCM is not one that I tend to refer to often, it's a little outside my normal frame of reference, but I can if I need to.

And this is the apples and oranges of the discussion. The MCM is applicable to, but not a part of the UCMJ.

Manic Moran wrote:

the training is far different than your implication.

I'm confused. Isn't about all I said for the US that soldiers are taught not to follow illegal orders? "Do not follow orders which are against the rules of warfare" Doesn't take that much time in the curriculum, I don't see why you might think it's not taught as such.

My point was that the rule from MCM is not taught nor should it be. Teaching that only opens the door for extreme confusion and potential abuse. Indeed, the rule should be there as an ex post facto vice a priori rational.

Manic Moran wrote:

What was my Cochranesque nitpick?

Making the MCM and the UCMJ as interchangeable/identical documents. I understand how Cheney's statement can lead to the confusion but my point was and still is ... the UCMJ training goes to illegal orders and doesn't provide for and individual military member to rationalize that requirement away.

Nox

Manic Moran

Nox wrote:

And this is the apples and oranges of the discussion. The MCM is applicable to, but not a part of the UCMJ.

Well, yes and no.

It is correct that MCM is not one of the articles of UCMJ. However, Art 36 indicates that the procedures for the administration and application of the UCMJ shall be laid out; and the MCM is the mechanism that this is done by. UCMJ cannot function without MCM, and MCM cannot exist without UCMJ.

Either way, the de-facto issue remains that 'I didn't think the order was illegal' remains a valid defense to a charge, regardless of how you wish to categorise MCM.

My point was that the rule from MCM is not taught nor should it be.

It does not need to be taught with all its various subtleties. It can be taught in two sentences.

1) Obey all orders from superiors
2) Exception: if the order is against the laws of conduct, do not follow it.

The first is stressed because it is a requirement of a military organisation. The second is stressed because the soldiers need to understand that war crimes are still against the law. I agree that they don't need to know about whether it can be relied on as a means of defense in a court-martial. Indeed, that fact doesn't need to even come up until an investigation is made.

I don't see the issue. The soldiers are taught what they need to know.

NTM

Capt'n Midnight

Lets not forget that the US does not recognise international law all of the time. So I'd say most Americans would be more worried about the death penalty imposed by their government than the possibilty of foreign rule of law.

Actually I'd doubt that anyone in a country that isn't in the final stages of loosing to an invading force would seriously consider disobeying orders in a country under martial law in order to avoid a possible jail term by the UN at some stage in the future.

Unless there are international sanctions for international crimes they will continue to happen.