Text of the Law Professors’ Letter Against the Bush-McCain Torture Bill

I couldn’t find an online source for the text of the law professors’ letter against the Bush-McCain Torture Bill, except one behind a clickwall, so I decided to publish it below. I gather that it garnered 609 signatures — which is a lot given the short time it was open for signature.


September 26, 2006

Dear Members of Congress,

We write as legal scholars to urge you to prevent adoption of the so-called “compromise” bill, S.3929, which would rob individuals detained by the United States of the hallmark of American freedom, the right of anyone detained by the government to demand to know why and to challenge the conditions of confinement before a federal court, independent of the executive and the military. Responding to the real challenges posed by the dangers of terrorism does not require the sacrifice of our vital legal traditions—on the contrary, upholding the rule of law can keep us all safer. We identify three central reasons why this bill presents us with an urgent test of our nation’s constitutional and democratic values, and we ask you in the strongest possible terms to reject it.

  • The bill’s most shocking feature is its elimination of habeas corpus review for non-U.S. citizen detainees. Triggered the moment that the executive labels an individual as an enemy combatant,1 the bill confines judicial review to verifying the military commission decision if there is one. Habeas would not be available to test prolonged detention with no status review. By eliminating habeas corpus review for non-U.S. citizens detained in U.S. jurisdiction and sharply confining courts’ jurisdiction over actions concerning any aspect of their detention, the bill prevents consideration of the conditions of detention and interrogation. The Supreme Court has described, “[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action,” Harris v. Nelson, 394 U.S. 286, 290-91 (1969), yet Congress is poised to eviscerate the courts’ power to consider habeas corpus petitions on behalf of non-U.S. citizens, and to strip the courts’ jurisdiction “to consider any other action against the United States or its agents relating to any aspect of the detention.”2If this provision takes effect as law and withstands legal challenges, the President evidently will be able to detain individuals indefinitely, unrestrained by any judicial check on conditions of their detention. Both prior to and following determination of combatant status, detainees apparently would have no way to force the government to bring criminal charges. Blocked from access to nonpolitical judges, the detainees will have no forum in which to challenge detention without criminal trial or unlawful treatment. Their only remaining alternative would be to challenge their continued detention before the U.S. Military’s Administrative Review Board, a mechanism so inadequate that it has proven on numerous occasions to be unable to effectuate the release of the very Guantanamo detainees it has recommended for release or repatriation.3 Moreover, to eliminate any doubt that the bill seeks to tie the hands of the judiciary with regard to issues of detainee abuse, it provides that “[n]o person may invoke the Geneva Conventions… as a source of rights in any court of the United States or its States or territories.”4 The proponents justify this dramatic abandonment of the historic instrument of freedom and safeguard against government abuse as a means of saving time, not a crucial tool to ensure national safety. The bill drastically narrows the grounds for criminal liability under the Federal War Crimes Act, 18 U.S.C. 2441.5 In doing so, it seems to license the executive to reinterpret the Geneva Conventions in ways that would uproot understandings that have been in place since 1949, that the Supreme Court has recently affirmed in Hamdan v. Rumsfeld, – U.S. – (June 29, 2006) and that have recently been affirmed by Senator John McCain.6These sections degrade the ability of the judiciary to fulfill its central function of interpreting the law. The proposed legislation would hand to the President apparently exclusive authority to decide which techniques violate the Geneva Conventions for purposes of criminal sanction under the War Crimes Act, so long as they do not fall within the category of “grave breaches” created by this bill.7 Only those enumerated “grave breaches,” like “Rape” and “Murder,” would be definitely criminalized, leaving abuses which are not on the list, such as manslaughter, up to presidential discretion. This bill could potentially permit Central Intelligence Agency personnel to escape liability for beating people to the point of leaving multiple bruises, or for inducing hypothermia by placing detainees in a cold cell and pouring freezing water on them. No one can say what the result will be, or how far the bar on acceptable practice will have been irreversibly lowered.
  • Finally, the bill abandons our longstanding constitutional protections against punishing people on the basis of coerced testimony8and against denying individuals the opportunity to defend themselves through access to exculpatory evidence known to the government.9 These provisions reward and encourage torture, and undermine the fairness of the resulting trials.

Taken together, the bill’s provisions rewrite American law to evade the fundamental principles of separation of powers, due process, habeas corpus, fair trials, and the rule of law, principles that, together, prohibit state-sanctioned violence. If there is any fixed point in the historical understandings of constitutional freedom that help to define us as a people, it is that no one may be picked up and locked up by the American state in secret or at an unknown location, or without opportunity to petition an independent court for inspection of the lawfulness of the lockup and of the treatment handed out by the state to the person locked up, under legal standards from time to time defined by Congress. This core principle should apply with full force to all detentions by the American state, regardless of the citizenship of detainees.

The legislation now pending before Congress would constitute a gross and direct repudiation of this principle. It aims to prevent any degree of judicial inspection of conditions of detention of any person whom the executive for any reason, disclosed or undisclosed, may choose to label and treat as an enemy combatant, and it aims to prevent any degree of judicial inspection of grounds or reasons for detention of any person thus labeled whom the executive may choose to keep locked up forever without any official determination of combatant status. Such lawmaking by Congress would deal a body blow to American constitutional identity and American constitutional pride. It would in that way weaken us as a people, not only abroad but at home. It would produce major legal challenges and once more invite both our international critics and our friends to point to the U.S. government’s apparent effort to evade widely accepted legal and moral constraints, tarnishing our reputation and our standing.

Legislation so grave ought not even to be seriously considered, much less enacted, in the absence of overwhelmingly urgent reasons. We are told that pending and foreseeable habeas corpus petitions make demands on judicial time and energies, and that having to fashion responses to them is distracting to military personnel and thus impedes our war effort. With all respect, those reasons are paltry when set beside the core principles of American justice and decency at stake.

No doubt there is a possibility that courts in some habeas corpus cases could get more seriously in the way of the executive. A habeas court might find that our country’s laws as they stand, unless and until changed by Congress, require adjustments of military and executive branch practice that the executive would find undesirable or contrary to the national interest. We have not heard any of our legislators objecting to habeas corpus on that ground, and we believe we know why we have not: For to object to habeas corpus on that ground is to set at naught the rule of law.

We cannot in good conscience stand by while a bill that erodes protections against state-sanctioned abuse is enacted. We therefore urge you to do everything in your power to prevent the enactment of this bill, and to ensure that any legislation passed on this subject complies fully with our constitutional standards.

Respectfully,

[signatures]


Notes

1. Thus, Sect. 106a2 reads: “(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who–
`(A) is currently in United States custody; and
`(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”
The term is defined in Sect. 948a(4): “UNLAWFUL ENEMY COMBATANT- The term `unlawful enemy combatant’ means an individual engaged in hostilities against the United States who is not a lawful enemy combatant.” A lawful enemy combatant is defined as follows in Sect. 948a(3) “LAWFUL ENEMY COMBATANT- The term `lawful enemy combatant’ means an individual who is–
`(A) a member of the regular forces of a State party engaged in hostilities against the United States;
`(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or
`(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.”

2. Bill S.3929, Sec. 106.

3. See, e.g., “Stuck in Guantánamo,” International Herald Tribune, April 22, 2006, available at
http://www.iht.com/bin/print_ipub.php?file=/articles/2006/04/21/news/gitmo.php. The provision curtailing habeas corpus for detainees will inevitably give rise to a constitutional challenge under Art. I, section 9, clause 2 (limiting Congressional power to suspend the writ to circumstances of rebellion or invasion) and the due process clause of the 5th Amendment. The inevitability of judicial review underscores how the rush to enact the current compromise bill reflects partisan political maneuvering.

4. Bill S.3929, Sec. 107(a).

5. The War Crimes Act defines war crime to include any conduct “(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict;” while the compromise bill substitutes
“(3) which constitutes a grave breach of common Article 3 as defined in subsection (d) when committed in the context of and in association with an armed conflict not of an international character; or.'” Bill S. 3929, Sec. 108(b)(1).

6. McCain Comments on Military Commission Act of 2006, Sept. 15, 2006, http://mccain.senate.gov/index.cfm?fuseaction=NewsCenter.ViewPressRelease&Content_id=2284.

7. Bill S.3929, Sec. 108(a)(2)-(3), 108(b)(`d)(`1)(`A)-(`I); see also Convention (III) Relative to the Treatment of Prisoners of War. Geneva, 12 Aug. 1949, Art. 129-130.

8. Bill S.3929, Sec. 104(a)(1)( `Ch. 47A)( `Subch. III)( `Sec. 948r)( `c)-( `d).

9. Bill S.3929, Section 949j.


Appendix

Bill S. 3929 provisions

  • Bill S. 3929, Sec. 104(a)(1)( ‘Ch. 47A)( ‘Subch. III)( ‘Sec. 948r)( ‘c). Statements Obtained Before Enactment of Detainee Treatment Act of 2005. A statement obtained before December 30, 2005 (the date of the enactment of the Detainee Treatment Act of 2005), in which the degree of coercion is disputed may be admitted only if the military judge finds that–

‘(1) the totality of the circumstances renders it reliable and possessing sufficient probative value; and

‘(2) the interests of justice would best be served by admission of the statement into evidence.

  • Bill S. 3929, Sec. 104(a)(1)( ‘Ch. 47A)( ‘Subch. III)( ‘Sec. 948r)( ‘d). Statements Obtained After Enactment of Detainee Treatment Act of 2005. A statement obtained on or after December 30, 2005 (the date of the enactment of the Detainee Treatment Act of 2005), in which the degree of coercion is disputed may be admitted only if the military judge finds that–

‘(1) the totality of the circumstances renders it reliable and possessing sufficient probative value;

‘(2) the interests of justice would best be served by admission of the statement into evidence; and

‘(3) the interrogation methods used to obtain the statement do not violate the cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the United States Constitution.‛

  • Bill S. 3929, Sec. 104(a)(1)( ‘Ch. 47A)( ‘Subch. III)( ‘Sec. 949j)( ‘b). Protection of Classified Information-(1) With respect to the discovery obligations of trial counsel under this section, the military judge, upon motion of trial counsel, shall authorize, to the extent practicable–

‘(A) the deletion of specified items of classified information from documents to be made available to the accused;

‘(B) the substitution of a portion or summary of the information for such classified documents; or

‘(C) the substitution of a statement admitting relevant facts that the classified information would tend prove.

‘(2) The military judge, upon motion of trial counsel, shall authorize trial counsel, in the course of complying with discovery obligations under this section, to protect from disclosure the sources, methods, or activities by which the United States acquired evidence if the military judge finds that the sources, methods, or activities by which the United States acquired such evidence are classified. The military judge may require trial counsel to provide, to the extent practicable, an unclassified summary of the sources, methods, or activities by which the United States acquired such evidence.

  • Bill S. 3929, Sec. 104(a)(1)( ‘Ch. 47A)( ‘Subch. III)( ‘Sec. 949j)( ‘c). Exculpatory Evidence-(1) As soon as practicable, trial counsel shall disclose to the defense the existence of any evidence known to trial counsel that reasonably tends to exculpate the accused. Where exculpatory evidence is classified, the accused shall be provided with an adequate substitute in accordance with the procedures under subsection (b).
  • Bill S. 3929, Sec. 106. Habeas Corpus Matters.

(a) In General- Section 2241 of title 28, United States Code, is amended–

(1) by striking subsection (e) (as added by section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742)) and by striking subsection (e) (as added by added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477)); and

(2) by adding at the end the following new subsection:

‘(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who–

‘(A) is currently in United States custody; and

‘(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

‘(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien detained by the United States who–

‘(A) is currently in United States custody; and

‘(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.’.

(b) Effective Date- The amendments made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.

  • Bill S. 3929, Sec. 107. Treaty Obligations not Establishing Grounds for Certain Claims.

(a) In General- No person may invoke the Geneva Conventions, or any protocols thereto, in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party, as a source of rights in any court of the United States or its States or territories.

(b) Geneva Conventions Defined- In this section, the term ‘Geneva Conventions’ means–

(1) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, done at Geneva August 12, 1949 (6 UST 3217);

(2) the Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);

(3) the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316); and

(4) the Convention Relative to the Protection of Civilian Persons in Time of War, done at Geneva August 12, 1949 (6 UST 3516).

  • Bill S. 3929, Sec. 108. Implementation of Treaty Obligations.

(a) Implementation of Treaty Obligations-

(1) IN GENERAL- The acts enumerated in subsection (d) of section 2441 of title 18, United States Code, as added by subsection (b) of this section, and in subsection (c) of this section, constitute violations of common Article 3 of the Geneva Conventions prohibited by United States law.

(2) PROHIBITION ON GRAVE BREACHES- The provisions of section 2441 of title 18, United States Code, as amended by this section, fully satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in common Article 3 in the context of an armed conflict not of an international character. No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such section 2441.

(3) INTERPRETATION BY THE PRESIDENT- (A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

(B) The President shall issue interpretations described by subparagraph (A) by Executive Order published in the Federal Register.

(C) Any Executive Order published under this paragraph shall be authoritative (as to non-grave breach provisions of common Article 3) as a matter of United States law, in the same manner as other administrative regulations.

(D) Nothing in this section shall be construed to affect the constitutional functions and responsibilities of Congress and the judicial branch of the United States.

(4) DEFINITIONS- In this subsection:

(A) The term ‘Geneva Conventions’ means–

(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, done at Geneva August 12, 1949 (6 UST 3217);

(ii) the Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);

(iii) the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316); and

(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, done at Geneva August 12, 1949 (6 UST 3516).

(B) The term ‘Third Geneva Convention’ means the international convention referred to in subparagraph (A)(iii).

(b) Revision to War Crimes Offense Under Federal Criminal Code-

(1) IN GENERAL- Section 2441 of title 18, United States Code, is amended–

(A) in subsection (c), by striking paragraph (3) and inserting the following new paragraph (3):

‘(3) which constitutes a grave breach of common Article 3 as defined in subsection (d) when committed in the context of and in association with an armed conflict not of an international character; or’; and

(B) by adding at the end the following new subsection:

‘(d) Common Article 3 Violations-

‘(1) PROHIBITED CONDUCT- In subsection (c)(3), the term ‘grave breach of common Article 3′ means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:

‘(A) TORTURE- The act of a 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.

‘(B) CRUEL OR INHUMAN TREATMENT- The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.

‘(C) PERFORMING BIOLOGICAL EXPERIMENTS- The act of a 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 or dental purpose and in so doing endangers the body or health of such person or persons.

‘(D) MURDER- The act of a 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 subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.

‘(E) MUTILATION OR MAIMING- The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of 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.

‘(F) INTENTIONALLY CAUSING SERIOUS BODILY INJURY- The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.

‘(G) RAPE- The act of a 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.

‘(H) SEXUAL ASSAULT OR ABUSE- The act of a 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.

‘(I) TAKING HOSTAGES- The act of a 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.

‘(2) DEFINITIONS- In the case of an offense under subsection (a) by reason of subsection (c)(3)–

‘(A) the term ‘severe mental pain or suffering’ shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340(2) of this title;

‘(B) the term ‘serious bodily injury’ shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113(b)(2) of this title;

‘(C) the term ‘sexual contact’ shall be applied for purposes of paragraph (1)(G) in accordance with the meaning given that term in section 2246(3) of this title;

‘(D) the term ‘serious physical pain or suffering’ shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves–

‘(i) a substantial risk of death;

‘(ii) extreme physical pain;

‘(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or

‘(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty; and

‘(E) the term ‘serious mental pain or suffering’ shall be applied for purposes of paragraph (1)(B) in accordance with the meaning given the term ‘severe mental pain or suffering’ (as defined in section 2340(2) of this title), except that–

‘(i) the term ‘serious’ shall replace the term ‘severe’ where it appears; and

‘(ii) as to conduct occurring after the date of the enactment of the Military Commission Act of 2006, the term ‘serious and non-transitory mental harm (which need not be prolonged)’ shall replace the term ‘prolonged mental harm’ where it appears.

‘(3) INAPPLICABILITY OF CERTAIN PROVISIONS WITH RESPECT TO COLLATERAL DAMAGE OR INCIDENT OF LAWFUL ATTACK- The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a) by reasons of subsection (c)(3) with respect to–

‘(A) collateral damage; or

‘(B) death, damage, or injury incident to a lawful attack.

‘(4) INAPPLICABILITY OF TAKING HOSTAGES TO PRISONER EXCHANGE- Paragraph (1)(I) does not apply to an offense under subsection (a) by reason of subsection (c)(3) in the case of a prisoner exchange during wartime.’.

(2) RETROACTIVE APPLICABILITY- The amendments made by this subsection, except as specified in subsection (d)(2)(E) of section 2441 of title 18, United States Code, shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law 105-118 (as amended by section 4002(e)(7) of Public Law 107-273).

(c) Additional Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment-

(1) IN GENERAL- No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

(2) CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT DEFINED- In this subsection, the term ‘cruel, inhuman, or degrading treatment or punishment’ means cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

(3) COMPLIANCE- The President shall take appropriate action to ensure compliance with this subsection, including through the establishment of administrative rules and procedures.

Title 18, U.S.C. provisions

  • 18 &167; 2246(3). the term “sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;
  • 18 &167; 2340(2). “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality;‛

  • 18 &167; 2441. War Crimes Act.

a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances.— The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

(c) Definition.— As used in this section the term “war crime” means any conduct—

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or

(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

Convention (III) relative to the Treatment of Prisoners of War provisions

Art 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.

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.

  • Art 130. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.
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2 Responses to Text of the Law Professors’ Letter Against the Bush-McCain Torture Bill

  1. Jeff Cooper says:

    I sent in my signature on Tuesday evening; I hope it was in time to be included. If I were still maintaining my old blog, I would have been trumpeting this from the rooftops. I appreciate the work you’ve done.

  2. Link, with signatures, at [this site]. (So that’s why Michael signs as “A. Michael Froomkin.” Six hundred signatures, and he’s the first on the list!)

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