October 5, 2008

18 USC 2441

Back in July, former US Attorney General John Ashcroft testified to the House Judiciary Committee. One of the most remarkable statements he made came during questioning by Rep. Hank Johnson (D-GA 4th) at the end of the first session (starting at 2:49:23 of the C-Span video HERE):
REP. JOHNSON: As the Attorney General, you were the President's senior law enforcement officer, were you not?

AG ASHCROFT: I think it would be fair to say that.

REP. JOHNSON: And you, in that capacity then as senior law enforcement officer, you supervised the FBI?

AG ASHCROFT: The FBI is under the Justice Department. Now the Director of the FBI is independently appointed for a ten year term --

REP. JOHNSON: But you supervised --

AG ASHCROFT: Yes, I did -- and I was in the FBI every single day after nine- eleven, and most of them before then.

REP. JOHNSON: And you also oversaw terrorism prosecutions nation-wide, correct?

AG ASHCROFT: The US attorneys answer to the Attorney General --


AG ASHCROFT: -- since about 1807.

REP. JOHNSON: But you would agree you oversaw terrorism prosecutions nation-wide?

AG ASHCROFT: Yes, sir.

REP. JOHNSON: and so therefore your position has always been that the Department of Justice would have to have a voice in the military tribunal process to try terrorism suspects, is that correct?


REP. JOHNSON: That would have been your opinion -- yes or no?

AG ASHCROFT: Uh, that I had an interest in that, not that I had a right to insist that I have a voice.

REP. JOHNSON: But you felt strongly that, the office of the Attorney General being the senior law enforcement officer, and you overseeing the activities of the FBI and the terrorism prosecutions, that your office should have a voice in the military tribunal process. That's a fair --

AG ASHCROFT: I think there are some other things that are important. One, the military tribunals do not try criminal violations.

REP. JOHNSON: You're going a little afar of the question I'm asking --

AG ASHCROFT: No, I'm not. The military tribunals try war crimes, and the Attorney General has no authority to try war crimes. He deals with the laws enacted by Congress.

That last statement was quite startling to me, because the Justice Department clearly has jurisdiction to enforce Title 18 of the US Code (Crimes), and 18 USC § 2441 (enacted in 1996 and expanded in 1997), applies specifically to war crimes.

18 USC § 2441(a) makes it an offense to commit a war crime "inside or outside the United States", whenever "the person committing such war crime or the victim of such war crime" is a US national or service-member as defined by 18 USC § 2441(b). Specific offenses are defined in 18 USC § 2441(c):
"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."

18 USC § 2441(c)(3) was revised by the Military Commissions Act ("MCA") to 'clarify' CA3 by limiting (c)(3) to 'grave breaches of CA3' as defined by a new sub-section, 18 USC 2441(d). What I want to look at here is 18 USC § 2441(c)(2) as it refers to art. 23[h] of the Hague IV (1907) Annex of Regulations ("HR"). The revision of 18 USC 2441(c)(3) is irrelevant in that context, but it should be carefully noted that sub-sections (c)(1), (c)(3) as originally adopted, and (c)(4) each contain language specific to a particular treaty being in force for the US, but (c)(2) makes direct reference to HR (the Hague IV 1907 annex of regulations) without further qualification. The importance of this point is obvious from the administration's claims regarding (c)(2)...
"With respect to the Hague Convention IV, section 2441(c)(2) criminalizes conduct barred by articles 23, 25, 27, 28, of the Annex to the Hague Convention IV. Under the Hague Convention, the conduct in these articles, like all of the regulations the Annex contains, is prohibited solely as between parties to the Convention. Hague Convention IV, art. 2 ("The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention."). Since Afghanistan is not a party to the Hague Convention IV, no argument could be made that the Convention covers the Taliban. As a non-state, al Qaeda is likewise not a party to the Hague Convention IV. Moreover, Hague Convention IV requires that belligerents meet the same requirements that they must meet in order to receive the protections of GPW, which al Qaeda, and the Taliban do not meet. Thus, conduct toward enemy combatants in the current war would not fall within the conduct proscribed by these articles."

John C. Yoo, memorandum for William J. Haynes II, MILITARY INTERROGATION OF ALIEN UNLAWFUL COMBATANTS HELD OUTSIDE THE UNITED STATES, OLC (2003.03.14) ("Torture Memo"), at 33, footnote 39.

That argument derives from Yoo's memos in 2001-2; the memo quoted above has since been rescinded on other grounds, but gives one the most detailed expressions of their arguments regarding §2441(c)(2). A major defect is that §2441(a) and (b) provide jurisdiction whenever an offense is committed 'inside or outside the US by or against a US national', not 'whenever such an offense would violate a treaty in force for the US'; and while the other three sub-sections (including (c)(3) as originally enacted) all make specific reference to treaty status, §2441(c)(2) does not.

A second point is that any determination of whether or not H.IV itself applies to a particular case requires, as Yoo says above, "that belligerents meet the same requirements that they must meet in order to receive the protections of GPW," and under H.IV those requirements are stated in arts. 1, 2, and 3 of HR, not the convention proper. Hence, had the intent of Congress been what Yoo claims, they would have had to list HR arts. 1, 2, and 3 in addition to the four listed by the statute. The statute is plainly being misconstrued, because (c)(2) clearly adopts the four listed articles of HR by direct reference without regard to the status of H.IV.

Just as telling is the fact that the Nazi defendants at Nuremberg raised exactly the same argument Yoo does, but the judgment of the tribunal held that HR had the force of customary law (the tribunal's ruling on that point is quoted in full in the notes below).

So contrary to the administration's arguments, 18 USC 2441(c)(2) has full force without regard to the treaty status of H.IV, and HR art. 23[h] states:
"In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party."

While HR art. 23[i] states:
"A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war."

The significance of 23[h] to the habeas cases is obvious: the express purpose of the government from the outset has been to deny the detainees any rights at all. The significance of 23[i] to the government arguments regarding their need for information extracted by systematic abuse and torture is equally apparent. These are crimes pursuant to 18 USC § 2441(c)(2), and the role of Mr. Yoo's memos as pretexts for those crimes is absolutely clear.

And there are now four decisions which confirm that the administration's detainee policies are in violation of 18 USC § 2441(c)(2): Boumediene (detainees have the right to habeas); Hamdan (Gitmo military commissions are illegal; and the DDC opinions by Judge Green in In re Gitmo (5th amendment protects all detainees), and Judge Robertson in Hamdan (detainees have POW status under GPW arts. 4-5).



"18 U.S.C. § 2441(c)(2) defines as a war crime any conduct prohibited by arts. 23, 25, 27, or 28 of HR. Regarding due process, HR art. 23 states in significant part: "In addition to the prohibitions provided by special Conventions, it is especially forbidden . . . [t]o declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party." The court below went to extreme lengths to deny Hamdi any meaningful protection of his rights, and unless he has absolutely no rights at all, their decisions were not merely incorrect, they were violations of 18 U.S.C. § 2441."
Id., at 10-11

"There is nothing appropriate about evading or violating the law, nor anything necessary in abusing a prisoner who is hors de combat. There is nothing new here: the value of intelligence and the infliction of atrocities on ones enemies are as old as war itself. The President might plausibly suppose there was some advantage to be had by roasting a few of these "detainees" alive over an open fire, thinking it might lead others to cooperate -- such "time-honored" practices are as common in history as wars are. Would the Fourth Circuit defer to that as well? And if not, why not? Are we to understand that some of our laws are better than others, and our judges and elected officials are at liberty to choose which to obey according to their personal sensibilities?

"The government has gone to great lengths to avoid any accountability to the law here, and all their arguments reduce to a single theme: that in a war the President may do whatever he pleases as long as the Congress is willing to go along with him. But the Congress is not the Roman Senate, the President is not a Roman Imperator, and it is precisely this sort of arbitrary and absolute exercise of power unrestrained by the rule of law that our Constitution, our laws, and the Geneva Conventions are intended to prohibit and prevent."
Id., at 11-12

* BRIEF OF AMICUS CURIAE CHARLES B. GITTINGS JR. AND CROSS-MOTION FOR SUMMARY JUDGMENT IN SUPPORT OF PETITIONERS, In re Guantanamo Detainee Cases, lead No. 02-cv-299 (CKK), dkt. no. 95 (D.D.C. 2004.10.14):

"[O]n information and belief, and subject to the penalties for perjury in the U.S Code, amicus hereby solemnly affirms:

(a) That there is probable cause to believe that Respondents are engaged in a conspiracy to commit war crimes pursuant to 18 USC § 2441 (War crimes), 18 U.S.C. § 371 (Conspiracy to commit offense or to defraud United States), GPW, GC, CA3, and HR.

(b) That the petitions in these cases exhibit prima facie evidence of those crimes, including, but not limited to, unlawful detention, inhumane and degrading treatment, extra-judicial punishments, denial of lawful due process, unlawful coercive interrogations, unlawful deportations, and trials before unlawfully constituted tribunals.

(c) That the only purpose of the Respondents and counsel for Respondents in these cases is to deny the Petitioners / Plaintiffs their lawful rights and due process, which constitutes an offense pursuant to 18 USC 2441(c)(2) per HR art. 23(h).

(d) That in addition to the Respondents named herein, Richard Cheney, the Vice President of the United States, and John Ashcroft, the Attorney General of the United States are principals or co-conspirators in these crimes.

(e) That all of the criminal acts alleged were committed under a false color of authority in the PMO by the direct authorization of the President.

"With the release of the now infamous Yoo and Bybee memos, originating from the DOJ Office of the Legal Counsel (OLC), and the White House memo on which the 2/7/2002 "Fact Sheet" was based (signed by Alberto Gonzales, counsel to the President, but in fact authored by David Addington, counsel to the Vice President), my analysis of the events was fully confirmed, namely, that the Respondents herein have been engaged in a conspiracy to violate Geneva 1949, Hague 1907, and 18 USC § 2441 from the beginning, and that from the beginning, they have been operating under a false color of authority in the AUMF and PMO."
Id., at 8-9.

* TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL (The Blue Set), Volume 22, "The Law Relating to War Crimes and Crimes against Humanity," at 495-497 (30 Sept. 1946):

Article 6 of the [IMT] Charter provides:

"(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment, or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

"(c) Crimes against Humanity; namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated."

As heretofore stated, the Charter does not define as a separate crime any conspiracy except the one set out in Article 6(a), dealing with Crimes against Peace.

The Tribunal is of course bound by the Charter, in the definition which it gives both of War Crimes and Crimes against Humanity. With respect to War Crimes, however, as has already been pointed out, the crimes defined by Article 6, section (b) of the Charter were already recognized as War Crimes under international law. They were covered by Articles 46, 50, 52, and 56 of the Hague Convention of 1907, and Articles 2, 3, 4, 46, and 51 of the Geneva Convention of 1929. That violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument.

But it is argued that the Hague Convention does not apply in this case, because of the "general participation" clause in Article 2 of the Hague Convention of 1907. That clause provided:

"The provisions contained in the regulations (Rules of Land Warfare) referred to in Article I, as well as in the present convention, do not apply except between contracting powers, and then only if all the belligerents are parties to the convention."

Several of the belligerents in the recent war were not parties to this convention.

In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the convention undoubtedly represented an advance over existing international law at the time of their adoption. But the convention expressly stated that it was an attempt "to revise the general laws and customs of war," which it thus recognized to be then existing, but by 1939 these rules laid down in the convention were recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6(b) of the Charter.

A further submission was made that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war, because Germany had completely subjugated those countries and incorporated them into the German Reich, a fact which gave Germany authority to deal with the occupied countries as though they were part of Germany. In the view of the Tribunal it is unnecessary in this case to decide whether this doctrine of subjugation, dependent as it is upon military conquest, has any application where the subjugation is the result of the crime of aggressive war. The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after 1 September 1939. As to the war crimes committed in Bohemia and Moravia, it is a sufficient answer that these territories were never added to the Reich, but a mere protectorate was established over them.

With regard to crimes against humanity, there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organized and systematic. The policy of persecution, repression and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they-were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were Crimes against Humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.


CA1-3 -- Geneva Common Articles 1-3.

Geneva -- Geneva Conventions I-IV of 12 August 1949.

GWS -- Geneva I Wounded and Sick (1949).

GWS Sea -- Geneva II Wounded and Sick at Sea (1949).

GPW -- Geneva III POWs (1949).

GC -- Geneva IV Civilians (1949).

GPW 1929 -- Geneva POWs (1929).

H.IV -- Hague IV (1907) Convention.

HR -- Hague IV (1907) Annex of Regulations.

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