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Gorgo
SFN Die Hard
USA
5310 Posts |
 Posted - 05/03/2009 : 02:07:56 [Permalink]
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Originally posted by Machi4velli
So Article 103 of the UN Charter only addresses international agreements, but, even if the UN charter does say it is supreme to national laws, treaties are only part of the "supreme law of the land" if they do not contradict the Constitution, in which case the Constitution is supreme by Reid v. Covert under U.S. law.
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Yes, it does say international agreements. I'm not sure what you're saying about how that applies in this case. |
I know the rent is in arrears
The dog has not been fed in years
It's even worse than it appears
But it's alright-
Jerry Garcia
Robert Hunter
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Dr. Mabuse
Septic Fiend
Sweden
9688 Posts |
Posted - 05/03/2009 : 02:21:02 [Permalink]
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Originally posted by Valiant Dancer
Clearly illegal orders that usually do not merit even an administrative hearing for an Article 92 violation:
Orders to rob a bank
Orders to murder unarmed, non-resisting civilians
Orders to rape
Orders to give sensitive information to an enemy
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How about torture?
In Guantanamo base and elsewhere?
There must be many American soldiers that has committed war crimes. Even desk clerks at Guantanamo should be held morally accountable, since they knew what was going on and did jack shit about it. I hope they don't sleep well for it.
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Dr. Mabuse - "When the going gets tough, the tough get Duct-tape..."
Dr. Mabuse whisper.mp3
"Equivocation is not just a job, for a creationist it's a way of life..." Dr. Mabuse
Support American Troops in Iraq:
Send them unarmed civilians for target practice..
Collateralmurder. |
| Edited by - Dr. Mabuse on 05/03/2009 02:25:46 |
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HalfMooner
Dingaling
Philippines
15831 Posts |
Posted - 05/03/2009 : 07:27:43 [Permalink]
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Originally posted by Dr. Mabuse
Originally posted by Valiant Dancer
Clearly illegal orders that usually do not merit even an administrative hearing for an Article 92 violation:
Orders to rob a bank
Orders to murder unarmed, non-resisting civilians
Orders to rape
Orders to give sensitive information to an enemy
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How about torture?
In Guantanamo base and elsewhere?
There must be many American soldiers that has committed war crimes. Even desk clerks at Guantanamo should be held morally accountable, since they knew what was going on and did jack shit about it. I hope they don't sleep well for it.
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I suspect that your use of "many" exaggerates the numbers of personnel involved. I suspect it was more like a few dozen interrogators who committed these acts of torture, though there were probably hundreds in the chain of command above them who were knowingly involved in the logistics, support, and planning.
I'm for starting at the top of the chain of command, as those at the top who commanded the torture (even those who never got their own hands dirty) are most guilty, in my opinion. At least a few of the rank-and-file soldiers (and CIA agents) who carried out the torture may have been honestly convinced by their superiors that the tortures were legal.
Other rank-and-filers are certainly guilty, however. Absolutely none of these people should ever be left in a position to repeat their acts. Those not prosecuted should never be allowed to conduct interrogations again. All torturers must be permanently purged from intelligence and counter-intelligence positions.
My general opinion is that it is the elites who must be brought to account first, and that this approach is the most effective way to change criminal behavior -- an approach that if far too rarely used.
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“Biology is just physics that has begun to smell bad.” —HalfMooner
Here's a link to Moonscape News, and one to its Archive. |
| Edited by - HalfMooner on 05/03/2009 08:55:14 |
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Dave W.
Info Junkie
USA
26022 Posts |
Posted - 05/03/2009 : 08:16:51 [Permalink]
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Originally posted by Machi4velli
So Article 103 of the UN Charter only addresses international agreements, but, even if the UN charter does say it is supreme to national laws, treaties are only part of the "supreme law of the land" if they do not contradict the Constitution, in which case the Constitution is supreme by Reid v. Covert under U.S. law. |
Which part of the Constitution would be violated by a finding that the war in Iraq is illegal under UN treaty? |
- Dave W. (Private Msg, EMail)
Evidently, I rock!
Why not question something for a change?
Visit Dave's Psoriasis Info, too. |
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Valiant Dancer
Forum Goalie
USA
4826 Posts |
Posted - 05/03/2009 : 08:54:42 [Permalink]
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Originally posted by Dr. Mabuse
Originally posted by Valiant Dancer
Clearly illegal orders that usually do not merit even an administrative hearing for an Article 92 violation:
Orders to rob a bank
Orders to murder unarmed, non-resisting civilians
Orders to rape
Orders to give sensitive information to an enemy
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How about torture?
In Guantanamo base and elsewhere?
There must be many American soldiers that has committed war crimes. Even desk clerks at Guantanamo should be held morally accountable, since they knew what was going on and did jack shit about it. I hope they don't sleep well for it.
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Yes, torture applies there as well.
I am not disputing that war crimes have occurred. Or that soldiers would be able to refuse an order to torture.
In any conflict, war crimes are committed by both sides.
Gitmo was a war crime and tactically counter-productive. |
Cthulhu/Asmodeus when you're tired of voting for the lesser of two evils
Brother Cutlass of Reasoned Discussion |
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Mycroft
Skeptic Friend
USA
427 Posts |
Posted - 05/03/2009 : 17:02:42 [Permalink]
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Originally posted by Dr. Mabuse
I never got the impression that Gorgo meant all wars are a crime. In a sense all wars are crimes against humanity, but that's not a legal argument. I always thought that the argument (against USA's war of aggression against Iraq) was that it was/is against International Law.
The war in Iraq 1991, Desert Storm, was a legal war, because it was UN sanctioned response to Iraq's invasion of Kuwait. The current invasion was not, and during current occupation, USA has miserably failed to uphold the responsibilities an occupying force have, to uphold law and order in the occupied territories.
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I recall back when the Iraq war was new and the issue of its legality was raised, the argument was that since the first Iraq war was never officially ended that it was really just a continuation of the same war from 1991. |
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Machi4velli
SFN Regular
USA
854 Posts |
Posted - 05/05/2009 : 01:17:13 [Permalink]
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Originally posted by Gorgo
Originally posted by Machi4velli
So Article 103 of the UN Charter only addresses international agreements, but, even if the UN charter does say it is supreme to national laws, treaties are only part of the "supreme law of the land" if they do not contradict the Constitution, in which case the Constitution is supreme by Reid v. Covert under U.S. law.
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Yes, it does say international agreements. I'm not sure what you're saying about how that applies in this case.
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I was trying to ascertain the status of the congressional authorization to use force in Iraq. I thought it may have been a power reserved in the Constitution, but apparently the authorization was just a joint resolution, which is equivalent to a law, so the law may have been invalid for contradicting the higher law (UN Charter). Granted, invalid laws are sometimes passed and followed until the courts overturn them.
The Constitution gives the power to declare war only to Congress, but the authorization seemingly gave the power to the president. It seems it would certainly be unconstitutional to assign powers reserved for Congress to the president. |
"Truth does not change because it is, or is not, believed by a majority of the people."
-Giordano Bruno
"The greatest enemy of knowledge is not ignorance, but the illusion of knowledge."
-Stephen Hawking
"Seeking what is true is not seeking what is desirable"
-Albert Camus |
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Gorgo
SFN Die Hard
USA
5310 Posts |
Posted - 05/05/2009 : 01:51:09 [Permalink]
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Originally posted by Machi4velli
Originally posted by Gorgo
Originally posted by Machi4velli
So Article 103 of the UN Charter only addresses international agreements, but, even if the UN charter does say it is supreme to national laws, treaties are only part of the "supreme law of the land" if they do not contradict the Constitution, in which case the Constitution is supreme by Reid v. Covert under U.S. law.
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Yes, it does say international agreements. I'm not sure what you're saying about how that applies in this case.
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I was trying to ascertain the status of the congressional authorization to use force in Iraq. I thought it may have been a power reserved in the Constitution, but apparently the authorization was just a joint resolution, which is equivalent to a law, so the law may have been invalid for contradicting the higher law (UN Charter). Granted, invalid laws are sometimes passed and followed until the courts overturn them.
The Constitution gives the power to declare war only to Congress, but the authorization seemingly gave the power to the president. It seems it would certainly be unconstitutional to assign powers reserved for Congress to the president.
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Once a violation of international law occurs, it doesn't matter if it was authorized by mechanisms which are legal domestically. |
I know the rent is in arrears
The dog has not been fed in years
It's even worse than it appears
But it's alright-
Jerry Garcia
Robert Hunter
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Gorgo
SFN Die Hard
USA
5310 Posts |
Posted - 05/05/2009 : 01:56:34 [Permalink]
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Originally posted by Mycroft
Originally posted by Dr. Mabuse
I never got the impression that Gorgo meant all wars are a crime. In a sense all wars are crimes against humanity, but that's not a legal argument. I always thought that the argument (against USA's war of aggression against Iraq) was that it was/is against International Law.
The war in Iraq 1991, Desert Storm, was a legal war, because it was UN sanctioned response to Iraq's invasion of Kuwait. The current invasion was not, and during current occupation, USA has miserably failed to uphold the responsibilities an occupying force have, to uphold law and order in the occupied territories.
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I recall back when the Iraq war was new and the issue of its legality was raised, the argument was that since the first Iraq war was never officially ended that it was really just a continuation of the same war from 1991.
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The UNSC asked member countries to gather to remove Iraq from Kuwait. This was always a UN/Kuwait problem, not a U.S. problem. The UNSC has remained "seized" of the matter since the cease fire. It has not authorized the use of force for anything since then. The U.S. cannot unilaterally decide to attack a country that has not attacked or threatened to attack someone else. |
I know the rent is in arrears
The dog has not been fed in years
It's even worse than it appears
But it's alright-
Jerry Garcia
Robert Hunter
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Machi4velli
SFN Regular
USA
854 Posts |
Posted - 05/05/2009 : 02:01:17 [Permalink]
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Originally posted by Gorgo
Originally posted by Machi4velli
Originally posted by Gorgo
Originally posted by Machi4velli
So Article 103 of the UN Charter only addresses international agreements, but, even if the UN charter does say it is supreme to national laws, treaties are only part of the "supreme law of the land" if they do not contradict the Constitution, in which case the Constitution is supreme by Reid v. Covert under U.S. law.
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Yes, it does say international agreements. I'm not sure what you're saying about how that applies in this case.
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I was trying to ascertain the status of the congressional authorization to use force in Iraq. I thought it may have been a power reserved in the Constitution, but apparently the authorization was just a joint resolution, which is equivalent to a law, so the law may have been invalid for contradicting the higher law (UN Charter). Granted, invalid laws are sometimes passed and followed until the courts overturn them.
The Constitution gives the power to declare war only to Congress, but the authorization seemingly gave the power to the president. It seems it would certainly be unconstitutional to assign powers reserved for Congress to the president.
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Once a violation of international law occurs, it doesn't matter if it was authorized by mechanisms which are legal domestically.
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Yes, but it may not matter to the U.S. government that something is illegal under international law. The Constitution is superior to treaties when the conflict as far as the U.S. is concerned. If a part of the U.S. government exercises explicitly enumerated powers in the Constitution, I do not see a reason why the U.S. government would care that it is illegal under international law.
I do not think the authorization was a Constitutional power now that I know it was a joint resolution, so the supremacy of the Constitution is moot in this case. In cases where some constitutional power is not allowed by a treaty, I doubt the U.S. would willingly submit to any international legal proceedings. |
"Truth does not change because it is, or is not, believed by a majority of the people."
-Giordano Bruno
"The greatest enemy of knowledge is not ignorance, but the illusion of knowledge."
-Stephen Hawking
"Seeking what is true is not seeking what is desirable"
-Albert Camus |
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Gorgo
SFN Die Hard
USA
5310 Posts |
Posted - 05/05/2009 : 03:26:44 [Permalink]
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Yes, but it may not matter to the U.S. government that something is illegal under international law. The Constitution is superior to treaties when the conflict as far as the U.S. is concerned. If a part of the U.S. government exercises explicitly enumerated powers in the Constitution, I do not see a reason why the U.S. government would care that it is illegal under international law.
I do not think the authorization was a Constitutional power now that I know it was a joint resolution, so the supremacy of the Constitution is moot in this case. In cases where some constitutional power is not allowed by a treaty, I doubt the U.S. would willingly submit to any international legal proceedings.
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It doesn't matter that it doesn't matter. If it is a violation of international law, it is still a violation of international law.
If you're saying that domestic law makes it okay to try soldiers who defy "legal" orders to follow a state into violating international law, then that's an entirely different matter. It may be domestically legal to torture, but that doesn't make it legal internationally. In order for international law to have any meaning, it has to trump all other laws, and there has to be some avenue for soldiers, for instance, to be able to object to what they're being ordered to do on an international level.
They have to be able to say, "This is a crime, and I want to be able to refuse to participate, what are you going to do about it? Nuremberg has shown us that following orders is no excuse, so I want to be able to defy orders without fear of retribution, otherwise, your international laws mean nothing, and 'might makes right' is the only law."
Having said all that, I think you 're agreeing that there is no conflict with the Constitution in Chiroux or Watada's cases. I don't know why there would be. The war is illegal internationally, there is, as you say, not even anything domestically which makes it legal. I don't want to misrepresent what you're saying here, just clarifying.
The U.S. is in the U.N.. It is a treaty. The treaty is now domestic law according to the Constitution. The UN Charter does not require limiting of free speech, nor does it require illegal searches and seizures. Congress is still the body which declares war, it just has to do so according to its international treaties. |
I know the rent is in arrears
The dog has not been fed in years
It's even worse than it appears
But it's alright-
Jerry Garcia
Robert Hunter
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| Edited by - Gorgo on 05/05/2009 03:41:02 |
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Machi4velli
SFN Regular
USA
854 Posts |
Posted - 05/11/2009 : 20:55:42 [Permalink]
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[i]Originally posted by GorgoIt doesn't matter that it doesn't matter. If it is a violation of international law, it is still a violation of international law.
If you're saying that domestic law makes it okay to try soldiers who defy "legal" orders to follow a state into violating international law, then that's an entirely different matter. It may be domestically legal to torture, but that doesn't make it legal internationally. In order for international law to have any meaning, it has to trump all other laws, and there has to be some avenue for soldiers, for instance, to be able to object to what they're being ordered to do on an international level. |
I do agree that it needs to trump other laws to have much meaning, but in reality, I don't think it does have much meaning, particularly to powerful nations. For example, it does not trump explicit Constitutional powers in American law, so unless someone forces the US to participate (in some theoretical case in the future), I doubt it will unless a change of president/congressional makeup makes it possible voluntarily.
International law is notoriously hard to enforce -- for example, the ICC currently has a warrant out to arrest Sudan's Omar al-Bashir, but the nation refuses to participate in the legal proceedings, they have expelled aid workers, and other UN member nations have provided aid and comfort since then. I think international law is more of a winner-writes-history scenario than a stride toward justice now, not to say it could not improve.
I may agree with you that international law should trump all domestic laws in a limited number of areas. I would heavily oppose any international body being able to alter and expand the law it as it sees fit because any such body would likely include non-democratic delegations, to whose power I would not want to submit American citizens.
| Having said all that, I think you 're agreeing that there is no conflict with the Constitution in Chiroux or Watada's cases. I don't know why there would be. The war is illegal internationally, there is, as you say, not even anything domestically which makes it legal. I don't want to misrepresent what you're saying here, just clarifying. |
Yes, I agree in this case.
| The U.S. is in the U.N.. It is a treaty. The treaty is now domestic law according to the Constitution. The UN Charter does not require limiting of free speech, nor does it require illegal searches and seizures. Congress is still the body which declares war, it just has to do so according to its international treaties. |
This is a point about which I am unsure. The Constitution gives Congress the right to add amendments to it, which means anything in a treaty can theoretically be overturned by an amendment (even if it is [was] illegal by the treaty). |
"Truth does not change because it is, or is not, believed by a majority of the people."
-Giordano Bruno
"The greatest enemy of knowledge is not ignorance, but the illusion of knowledge."
-Stephen Hawking
"Seeking what is true is not seeking what is desirable"
-Albert Camus |
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Gorgo
SFN Die Hard
USA
5310 Posts |
Posted - 05/12/2009 : 00:41:33 [Permalink]
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Originally posted by Machi4velli
[i]Originally posted by GorgoIt doesn't matter that it doesn't matter. If it is a violation of international law, it is still a violation of international law.
If you're saying that domestic law makes it okay to try soldiers who defy "legal" orders to follow a state into violating international law, then that's an entirely different matter. It may be domestically legal to torture, but that doesn't make it legal internationally. In order for international law to have any meaning, it has to trump all other laws, and there has to be some avenue for soldiers, for instance, to be able to object to what they're being ordered to do on an international level. |
I do agree that it needs to trump other laws to have much meaning, but in reality, I don't think it does have much meaning, particularly to powerful nations. For example, it does not trump explicit Constitutional powers in American law, so unless someone forces the US to participate (in some theoretical case in the future), I doubt it will unless a change of president/congressional makeup makes it possible voluntarily.
International law is notoriously hard to enforce -- for example, the ICC currently has a warrant out to arrest Sudan's Omar al-Bashir, but the nation refuses to participate in the legal proceedings, they have expelled aid workers, and other UN member nations have provided aid and comfort since then. I think international law is more of a winner-writes-history scenario than a stride toward justice now, not to say it could not improve.
I may agree with you that international law should trump all domestic laws in a limited number of areas. I would heavily oppose any international body being able to alter and expand the law it as it sees fit because any such body would likely include non-democratic delegations, to whose power I would not want to submit American citizens.
| Having said all that, I think you 're agreeing that there is no conflict with the Constitution in Chiroux or Watada's cases. I don't know why there would be. The war is illegal internationally, there is, as you say, not even anything domestically which makes it legal. I don't want to misrepresent what you're saying here, just clarifying. |
Yes, I agree in this case.
| The U.S. is in the U.N.. It is a treaty. The treaty is now domestic law according to the Constitution. The UN Charter does not require limiting of free speech, nor does it require illegal searches and seizures. Congress is still the body which declares war, it just has to do so according to its international treaties. |
This is a point about which I am unsure. The Constitution gives Congress the right to add amendments to it, which means anything in a treaty can theoretically be overturned by an amendment (even if it is [was] illegal by the treaty).
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Again, you seem to be agreeing with me on every point. The UN is a Cold War relic, meant to keep the victors of WWII in power. Yes, the U.S. can get into treaties, and it can get out of them. However, while it is in the UN, it is subject to the UN Charter. If the UN Charter holds a violation of the Constitution, which it doesn't, then they can get out of the UN or decide to change the Constitution, or work to change the UN Charter, or illegally ignore the UN Charter.
The present situation is a might-makes-right world. We need institutions which serve the people of the world. We don't have that now. That is not something the U.S. is helping. That is the point. The U.S. holds others to a different standard than it holds itself. |
I know the rent is in arrears
The dog has not been fed in years
It's even worse than it appears
But it's alright-
Jerry Garcia
Robert Hunter
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Robb
SFN Regular
USA
1223 Posts |
Posted - 05/16/2009 : 01:57:39 [Permalink]
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Originally posted by Dr. Mabuse
Originally posted by Valiant Dancer
Clearly illegal orders that usually do not merit even an administrative hearing for an Article 92 violation:
Orders to rob a bank
Orders to murder unarmed, non-resisting civilians
Orders to rape
Orders to give sensitive information to an enemy
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How about torture?
In Guantanamo base and elsewhere?
There must be many American soldiers that has committed war crimes. Even desk clerks at Guantanamo should be held morally accountable, since they knew what was going on and did jack shit about it. I hope they don't sleep well for it.
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At the time Bush Admin lawyers deemed waterboarding legal. Why then should desk clerks, soldiers and people that had no say in the descision be held accountable just because 6 years later it has been deemed illegal by another administration with a Bush complex? You sound like the Dems, you want to punish Bush and anybody that agreed with him and not move on with this country. Should Pelosi be in jail also? |
Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master. - George Washington |
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Gorgo
SFN Die Hard
USA
5310 Posts |
Posted - 05/16/2009 : 02:54:45 [Permalink]
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At the time Bush Admin lawyers deemed waterboarding legal. Why then should desk clerks, soldiers and people that had no say in the descision be held accountable just because 6 years later it has been deemed illegal by another administration with a Bush complex? You sound like the Dems, you want to punish Bush and anybody that agreed with him and not move on with this country. Should Pelosi be in jail also?
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Ohh. A Move On member. |
I know the rent is in arrears
The dog has not been fed in years
It's even worse than it appears
But it's alright-
Jerry Garcia
Robert Hunter
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Refuses illegal war
