Laura Bush brushes aside Jerusalem shrine protests

[Bush_Eats_Beef]

http://story.news.yahoo.com/news?tmpl=story&cid=578&e=3&u=/nm/20050523/ts_nm/bush_laura_dc

Bush said protesters' jostling and haranguing in the walled Old City on Sunday had not undermined her solo tour, aimed at countering regional anti-American sentiment.

Bush began her Middle East trip on Friday acknowledging that the United States' image in the Muslim world had been badly damaged by a prisoner abuse scandal and a magazine report, since retracted, that U.S. interrogators had desecrated the Koran.

The first lady said she deplored any abuses. She told ABC's "Good Morning America": "That's not really what happens all the time. That's not what our troops really do. This is a handful of people." Asked if her trip had helped placate Muslims, Bush said: "Well I hope so. You know, who knows. I mean I don't know."

Speaking earlier in the mostly Arab Israeli village of Abu Ghosh near Jerusalem, Bush said the Old City protests had not been unexpected. "Everyone knows how high the tensions are and believe me, I was very, very welcomed by most people," she said.



"U.S. first lady Laura Bush smiles at a puppet while touring the set of 'Alam Simsim', the Egyptian version of the popular U.S. children's show 'Sesame Street' in Cairo, Egypt May 23, 2005. U.S. first lady Bush is on a Middle East tour to counter anti-U.S. sentiment in the region. REUTERS/Hasan Jamali/Pool"

[Crankie Avalon]

1. She and her husband's ilk routinely brush aside the protests of Americans

...so is it any wonder when she brushes aside the protests of "furriners?"

In her own way, she's as much of an embarrassment as her husband.

[ray of light]

2. Somebody needs to send her this:

http://lawofwar.org/Torture_Memos_analysis.htm

On January 18, 2002, President George Bush (the decision is referenced1 in the Gonzales Memo of 25 January, 2002) made a presidential decision that captured members of Al Quaeda and the Taliban were unprotected by the Geneva POW Convention. That decision was preceded by a Memorandum dated January 9, 2002, submitted to William J Haynes II, General Counsel to the Department of Defense, by the Department of Justice's Office of Legal Counsel (which provides legal counsel to the White House and other executive branch agencies) and written by Deputy Assistant Attorney General John Yoo and Special Counsel Robert J. Delahunty.

The Rumsfeld Order January 19, 2002

In a Memorandum dated 19 January, 2002, Secretary of Defense Donald Rumsfeld ordered the Chairman of the Joint Chiefs of Staff to inform combat commanders that "Al Quaeda and Taliban individuals...are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949." He ordered that "commanders should "...treat them humanely, and to the extent appropriate and consistent with military necessity, consistent with the Geneva Conventions of 1949." That order thus gives commanders permission to depart, where they deem it appropriate and a military necessity, from the provisions of the Geneva Conventions.

The Bybee Memorandum of 22 January, 2002

The Alberto Gonzales Memo January 25, 2002

On January 25, 2002, White House Counsel Alberto Gonzales sent a Memorandum to President Bush regarding a presidential decision on January 18, 2002, (the White House has issued an Order to that effect, dated February 7, 2002, see below) that captured members of the Taliban were not protected under the Geneva POW Convention ("GPW"), to which the legal advisor to the Secretary of State had objected. He advised that "there are reasonable grounds for you to conclude that GPW does not apply ...to the conflict with the Taliban." Mr. Gonzales argued that grounds for the determination might include:

1) a determination that Afghanistan was a failed state "...because the Taliban did not exercise full control over the territory and people, was not recognized by the international community, and was not capable of fulfilling its international obligations" (see definition of statehood in Cpt. 1.3 and discussion in Kadic v. Karadzic, 70 F.3d 232, 244 to 245 (2nd Cir, 1995) ) and/or

2) a "determination that the Taliban and its forces were, in fact, not a government but a militant, terrorist-like group."

Mr. Gonzales then identified what he believed were the ramifications of Mr. Bush's determination. On a positive note he felt they preserved flexibility stating that:

"The nature of places a high premium on ...factors such as the ability to quickly obtain information from captured terrorists and their sponsors ... and the need to try terrorists for war crimes... his new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners..." He also believed the determination "...eliminates any argument regarding the need for case-by-case determinations of POW status." The determination, Mr. Gonzales said, also reduced the threat of domestic prosecution under the War Crimes Act (18 U.S.C. 2441). His expressed concern was that certain GPW language such as "outrages upon personal dignity" and "inhuman treatment" are "undefined' and that it is difficult to predict with confidence what action might constitute violations, and that it would be "...difficult to predict the needs and circumstances that could arise in the course of the war on terrorism." He believed that a determination of inapplicability of the GPW would insulate against prosecution by future "prosecutors and independent counsels."

Mr. Gonzales then identified the counter arguments from the Secretary of State (See, Colin Powell Memo of January 26, 2002 pages 1,2,3,4,5) which included:

Past adherence by the United States to the GPW;

Possible limitations on invocation by the U.S. of the GPW in Afghanistan;

Likely widespread condemnation by allied nations;

Encouragement of potential enemies to find "loopholes" to not apply the GPW;

Discouraging turn-over of terrorists by other nations;

Undermining of U.S. military culture "which emphasizes maintaining the highest standards of conduct in combat..."

In response, Mr. Gonzales says, inter alia, "...even if the GPW is not applicable, we can still bring war crimes charges against anyone who mistreats U.S. personnel." He adds that, "...the argument based on military culture fails to recognize that our military remains bound to apply the principles of GPW because that is what you have directed them to do." (Emphasis added). In light of subsequent events, that last sentence is of particular interest.

The Bush Order February 7, 2002

On February 7, 2002, President Bush signed an Order, (pdf copy) accepting the reasoning of the Yoo and Gonzales memos, and validating the order issued by Secretary Rumsfeld on January, 19, 2002.

From the sequence of events, and discussion by White House Counsel, it appears fairly clear that the decision by Mr. Bush, and the subsequent orders from Mssr.s Bush and Rumsfeld, were based on the Yoo/Delahunty Memorandum of 9 January, 2002. A close analysis of that document is accordingly appropriate.

The Yoo/Delahunty Memo January 9, 2002

This Memorandum is written in four parts. The first examines the 18 U.S.C. Section 2441, the War Crimes Act, and some of the treaties it implicates. The second part examines whether members al Qaeda can claim protection of the Geneva Conventions and concludes they can not. The third portion examines application of those treaties to members of the Taliban. It concludes nonapplicability because 1) it says "the Taliban was not a government and Afghanistan was not...a functioning State", 2) "the President has the constitutional authority to suspend our treaties with Afghanistan pending restoration of a legitimate government", and 3) "it appears...that the Taliban militia may have been ...intertwined with Al Qaeda" and thus on the same legal footing. Finally, the fourth part concludes that customary international law does not bind the President or restrict the actions of the United States military .

Although the Memorandum is questionable on many grounds, both factual and legal, a close analysis is for this casebook, both too extensive and unnecessary. An article more closely analyzing the international law/law of war aspects of the Memorandum is forthcoming. For the present the reader should note the following:

1) As long as there is a genuine issue of fact or law regarding the status of captured individual combatants who are members of the Taliban or Al Qaeda, the Third Geneva Convention of 1949 must apply, until properly otherwise determined. Article 5 of that Convention provides, in part, that "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." (Emphasis added).

2) The key to whether there exists any genuine issue of fact or law resides in the Yoo/Delahunty Memo which is the authoritative basis for all the actions which follows. Leaving aside the American constitutional arguments which present no bar to a delict in international law (see,e.g. the Dostler Case) 2, the argument for nonapplicability of Geneva III rests on the argument that as a matter of fact and law the Taliban did not constitute a de facto government. The short answer is that while the position is certainly arguable, it is also very reasonably arguable that the Taliban were the de facto government. They controlled a substantial geographic territory and population, enacted and enforced laws and mandates, carried on relatively complex military operations, appointed persons to governmental posts and received diplomatic recognition from several nations. The core validity of that point is admitted, albeit inadvertently, in the following quote from the 22 January, 2002, Memorandum from Jay Bybee to Alberto Gonzales and William Haynes:

Whether the Geneva Conventions apply to the detention and trial of members of the Taliban presents a more difficult legal question. Afghanistan has been a party to all four Geneva Conventions since September, 1956. Some might argue that this requires application of the Geneva Conventions to the present conflict with respect to the Taliban militia...Nevertheless, we conclude that the President has more than ample grounds to find that our treaty obligations under Geneva III toward Afghanistan were suspended during the period of the conflict... the weight of informed opinion indicates that, for the period in question, Afghanistan was a "failed state" whose territory had been held by a violent militia or faction rather than by a government....Second, there appears to be developing evidence that the Taliban leadership had become closely intertwined with, if not utterly dependent upon, al Qaeda. This would have rendered the Taliban more akin to a terrorist organization.

Memorandum of 22 January, 2002 from Jay Bybee, Office of legal Counsel for Alberto R. Gonzales, Counsel to the President and William J. Haynes II, General Counsel of the Department of Defense, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees at pp 10-11. (Emphasis added).

We want to make clear that this Office does not have access to all of the facts related to the activities of the Taliban militia and al Qaeda in Afghanistan. Nevertheless, the available facts in the public record would support the conclusion that Afghanistan was a failed state...Indeed, there are good reasons to doubt whether any of the conditions were met.

Ib at 16.

What is of particular interest in this analysis is the emphasized language. It is that of argument, not fact, and what it seems to effectively admit is that there is indeed some doubt as to the status of the Taliban detainees. That, of course, triggers the requirements of Geneva Convention Article 5 for a competent tribunal to determine status, and mandates treatment as a POW until the tribunal is held. Indeed, Judge Bybee later discusses Article 5. See also, the references by Justice O'Connor in the plurality opinion in Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004), to "the Taliban regime" and "the Taliban government," 124 S.Ct at 2635-2636, and her statement that "active combat operations against Taliban fighters apparently are ongoing in Afghanistan," id. at 2642, as well as Justice Souter's concurrence in which he points to the Government's Brief saying "the Geneva Convention applies to the Taliban detainees." Id at 2658.

"Should any doubt arise as to whether persons, having committed a belligerent act, and having fallen into the hands of the enemy," article 5 of Geneva III requires that these individuals "enjoy the protections" of the Convention until a tribunal has determined their status. As we understand it, as a matter of practice prisoners are presumed to have article 4 POW status until a tribunal determines otherwise. Although these provisions seem to contemplate a case-by-case determination of an individual detainee's status the President could determine categorically that all Taliban prisoners fall outside article 4. Under Article II of the Constitution, the President posesses the power to interpret treaties on behalf of the Nation.He could interpret Geneva III, in light of the known facts concerning the operation of the Taliban...to find that all of the Taliban forces do not fall within the legal definition of prisoners of war as defined by article 4. A presidential determination of this nature would eliminate any legal "doubt" as to the prisoners' status, as a matter of domestic law, and would therefore obviate the need for article 5 tribunals.



http://www.cambridge.org/catalogue/catalogue.asp?isbn=0521853249
The Bush Administration, concerned about the legality of harsh interrogation techniques, understood the need to establish a legally viable argument to justify such procedures. The memos and reports document the systematic attempt of the US Government to prepare the way for torture techniques and coercive interrogation practices, forbidden under international law, with the express intent of evading legal punishment in the aftermath of any discovery of these practices and policies.

http://www.democracycellproject.net/blog/archives/2005/05/bad_news_good_n.html

[riverwalker]

3. clueless twit

"That's not really what happens all the time. That's not what our troops really do. This is a handful of people."

So Laura, you're saying 5 guys alone killed 100,000 civilians, of which 60,000 were children. Do the math, honey. Those were some very busy five fellas, don't you think?