The U.S. Patriate Act 2001/6 enacted abilities defended by new legal codes permitting the detention of persons deemed (not by burden of proof) as terrorists. In this designation a person can be detained without evidence of a crime, held without access to an attorney, and without rights- and be acquired across borders and located anywhere on earth so long as war is declared- effectively making it international in scope and practice. The U.S. Patriot code contradicts Geneva Conventions in several areas, but most notably the manner in which prisoner of war (not suspects) are apprehended and how they may be treated once in custody. The definition for the term terrorist and parameters for which a declared state of war can be declared are vague. To address the civil liberty concern that the Patriot Act could result in the targeting of dissenters or activist, it is recommended the definition of terrorist included in the Patriot Act be revised to exclude subjective phases such as “dangerous to human life…if the act involves intimidation or coercion.” The language “violations of criminal law” should be sufficient and is a more universal and precise standard (Jackson, 2015).
The thin guise of the use of violence as defense shifted post 911 to permit the use of violence including torture and murder as preemptive tactics against perceived threats with different rules set up depending on the country of origin and designation of criminal, or enemy combatant (Wilke, 2007).
Wilke (2007) wrote,
“criminal law becomes a moot point where detention is solely based on a person’s alleged dangerousness. In this process, the “enemy combatants” are stripped not only of rights, but also of their legal personality that is the basis for having rights…they are governed by the law without being constituted by the law as persons with rights”.
Wilke’s (2007) writes, “the U.S. Constitution does not specifically contemplate any role for courts in the conduct of war, or in foreign policy generally.” This is perhaps because the founders did not perceive the possibility that a rational to by-pass the criminal or military justice system would ever be proposed for any reason. In any event the ambiguous area of international law reveals many problems following 911. However, Wilke’s view merely reinforces the need for a constitutional and or international law amendments.
Casey and Rivkin (2006) point out that in the founding period of the U.S. there was no global body politic and no global legislature. They conclude,
“as was necessarily implied by the inherent equality of every independent state, no state or league of states had the right to establish the legal obligations of any other state. All were equally competent to determine and interpret international law for themselves…so long as they are prepared to accept the very real political, economic, and even military consequences that may result.”
Even now there is no global power or authority with the ultimate right to establish the meaning of international law for all.
As alluded to by Casey and Rivkin (2006) law was earlier viewed as an extension of natural laws. That being the case, it is a natural progression in the age of globalization that international law transition beyond a set of loose standards forged by voluntary cooperations, to a court with increasing authority and enforcement powers to manage abnormal behaviors wherever and whenever they occur. The exemptions and power plays of the G8 or rouge states where natural laws can be found to be violated, should not be defended by sovereignty or arrogance when the actions allege violations of the rights and freedoms of other persons inside or beyond the national boundaries impacted through direct or indirect consequences from crimes related to actions taken individually or even institutionally. In fact it would be a progressive step to require a case be tried before independent nations can advance to war actions, because war actions have global impacts on the environment and economies and therefore threaten more than the conflicted parties. Such a requirement would move a step beyond the U.N. well intended charters.
Casey and Rivkin (2006) observe,
“These efforts to form [an international justice environment], which can fairly be said to include the League of Nations (and its Permanent Court of International Justice), the United Nations' International Court of Justice (ICJ), and the International Criminal Court (ICC), have always found favor with the United States at their inception but have always been rejected in the end (Rivkin and Casey, 2006). (The United States, of course, never joined the League, withdrew from the ICJ's compulsory jurisdiction in 1986, and "de-signed" the ICC treaty in 2003.”
The reasoning for stronger rules, better enforcement and a less biased international justice system is not easily dismissed. However, it would be naive to expect a universal force would not meet resistance inherently since people are territorial and do not like being told what to do, even by our mothers.
Rivkin and Casey conclude,
A genuine system of international law, comparable to domestic legal systems in its reach and authority, would require a universally accepted institution entitled both to adjudicate the conduct of states and, by extension, their individual officials and citizens and to implement its judgments through compulsory process with or without consent of the states concerned. Such a universal authority, however, would be fundamentally at odds with the founding principles of the American Republic. It would require the American people to accept that there is, in fact, a legal power that has legitimate authority over them but is not accountable to them for its actions.
It is my position that any power that rufuses to be held to the international community is not a behaving member of the international community and should be reformed. “There is no supreme international judicial body with the inherent right to interpret international law for states (Casey and Rivkin, 2006).” This should be addressed. Treaties alone are not reliable guarantees for behavior as they are easily vetoed or impacted by an elite group of decision makers. Opinio juris should define practices/ scope at issue as legally required. Compelling standards should be left to a bare set of universally accepted facts to maintain optimal and uninterrupted development. A short and specific global policing list such as genocide prevention, resource exploitations limits, food water and natural resource distributions parameters to encourage fairness and interrupt deprivation which causes gross or absolute poverty, environmental degradations limits, limits to ownership which excludes slavery in all its forms, and basic human rights (modified from the current wish list at the U.N. ) along with a short and specific consequence and enforcement protocol is all that is needed for now. The practice of exemptions based on class or entity status is hypocritical. The U.N. Security Council is held as a biased political body and not a suitable entity for enforcement. In fact the military role of that institution needs serious re-evaluation. Funding and political influence from the wealthier nations is a dangerous measure of policy and procedural actions. Especially with non-states and non-members lacking an equal place at the table of international military actions and decision making. Unless were all held to the same fair standards, law is simply a corrupt instrument subject to gross manipulations and the results will be degrading- not protective or empowering. Ironically, terrorists such as Osama Bin Laden and others cite hypocrisy of which there is evidence as casus belli a cause of war often used in attempts to justify their brands of violence. Thus, it behooves society to do a better job and leave less room for those ready to cast stones.
Treaties may be helpful in some situations, but many have been broken and or ended with notice, thus they are not reliable instruments for more permanent needs. As implied by Casey and Rivkin (2006), signing international agreements that have little or no chance of approval by the Senate and therefore will never be ratified by the United States is little more than a cosmetic device intended to influence audiences rather than any lasting meaningful or enforceable actions.
Detainees found to be unlawful combatants,
“do not as a matter of law receive the protections of the Third Geneva Convention. However, the United States armed forces are treating, and will continue to treat, all enemy combatants humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 1949. Among many other things, this means that they receive: three meals a day that meet Muslim dietary laws; medical care; clothing and shoes; shelter; showers; soap and toilet articles; the opportunity to worship; the means to send mail and receive mail, subject to security screening; and the ability to receive packages of food and clothing, also subject to security screening. In addition, the International Committee of the Red Cross has visited and will continue to visit the detainees privately. The detainees will be permitted to raise concerns about their conditions, and we will attempt to address those concerns consistent with security (Haynes, 2002).
However, later reports of human rights abuses did surface. Haynes (2002) correctly asserts the “manner in which we designate and detain enemy combatants reflects our values and character as a Nation”. The ridiculous experiments recommended by APA members are appalling and did not go without resistance internally in the military and FBI (Kirk, 2005). Those torture agents including Rumsfeld and psychologist are an embarrassment to the profession and greatly degraded the respect of the Military as have an unfortunate string of attacks committed by personnel unbefitting of an officer. Unfortunately that behavior was not as isolated as portrayed by congressional members to the public (Kirk, 2005). The institutionalizing of black sites and Geneva convention violations must be addressed and promptly ended wherever they are occuring.
Eggen, (2008) wrote,
“Yoo also said, because federal laws prohibiting assault, maiming and other crimes by military interrogators are trumped by the president's ultimate authority as commander in chief… Yoo, who is now a law professor at the University of California at Berkeley, also uses footnotes to effectively dismiss the Fourth and Fifth amendments to the Constitution, arguing that protections against unreasonable search and seizure and guarantees of due process either do not apply or are irrelevant in a time of war.” However, when there is a declared never ending war against terrorism, he is effectively suggesting the fourth and fifth amendments are dead.
In contrast, (Eggen 2008) “Goldsmith, who now teaches law at Harvard University, said that some of the memos written by Yoo and his colleagues from 2001 to 2003 were "deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President."
There is some evidence (Kirk, 2005) to support that the war actions and decisions made by Yoo (U.S. Department of Justice Attorney) and those he influenced or may have influenced him, including Rumsfeld, directly have cause violence which violates the Geneva conventions by attempting to make those conventions obsolete by the interpreations of the broad War Powers Authorization Act. If the international community wishes to allow one nation to dictate its power to over-ride treaties and create loopholes so that they can act without answering to anyone for abnormal behavior then the counter actions of offended opposition and victims of such rule, should be expected. Unfortunately the counter actions of war and further terrorism is to what many anti-terrorism laws aim to prevent, but in fact enflame. The Bybee memo which attempts to allude that during a time of war existing laws may be disregarded is an assertion that should prompt serious reforms. Senator Lindsey Graham (SC) said it best, you don’t want to become the enemy you seek to destroy, thus constraint in methods fighting terrorism are needed along with specific re-writes to existing laws which were hastily written (i.e. Patriot act 345 pages long was passed within 45 days) without adequate reviews. Furthermore, to minimize future war based retaliations, damages must be assessed and reconciliations attempted with victims to minimize future attacks- including every person killed by drones which were killed before sufficient evidences to classify them as enemy combatants was verified and or for which no body was collected and verified as being an confirmed target- otherwise how can the kills (legal or not) be verified as correct?
Specifically, if Yoo and others were able to craft legislation which includes an ability of the Commander in Chief to determine if the detained person is in fact an enemy combatant or simply a crazy terrorist type devoid of personhood status that would warrant Geneva protections or other protections under criminal law, then the intention of Geneva conventions or criminal laws which were meant to promote justice and prevent torture or unfair treatment should in my opinion be granted immediately and automatically to individuals until those unjust laws can be amended to protect individuals whom under laws require a burden of proof before guilt or punishment can be determined. While detention for prevention is understandable, the parameters around those detentions need to be better defined. Thorn and Kouzmin argued there were some sweeping changes and problems that were unanticipated as a result of the U.S. Patriot Act legislation, the largest being the outsourcing of detention and torture (Thorn & Kouzmin 2010).
Frontline commentators stated, “fear and anger led to broad war powers authorizations, limited Geneva Conventions protections for prisoners of war, skirted Military Code of Justice authorized interrogation tactics and redefined torture. John Cloonan, former FBI agent stated that inexperience interrogators and the infliction of pain crossed the line, “collapsed/broken people do not lead to reliable intelligence”. Camp Delta at GITMO (a detention center) was mismanaged and no one has been held accountable. While denouncing the practices issued by these soldiers and White house officials, the scenario points to the insider threat problem. Mistakes made fighting war are inevitable, but at this point assuming responsibility and showing what corrections are being made is the right course of action. For example Section 501 of the Patriot Act if applied in error could ruin a life- thus suspicion should not be the threshold.
Perhaps one of the most compelling observation on this bottom up driven influence on the direction of the political will of the U.S. is the observation 406 cities (Riverstone-Newell, 2013) which represent 80 million out of a total of 306 million U.S. residents adopting resolutions in direct opposition with DHS mandates. This figure reflects a 25% of the represented U.S. national citizenship objecting to or modifying in some way, the existing Patriot Act legislation which was contested, refused, or outright rejected by local officials during implementation phases.
Revisiting the premise of the War Authorization Act such as Martial Law may help protect us more than the intent of the earlier legislation. A significant oversite of all the legislation is the concept of cooperation. Words on paper only have value if people cooperate. At present, my money is on people refusing to cooperate the more they realize what the Government has done and clearly intends to do in emergency situations. The resulting chaos unfortunately is a factor that enemies of the U.S. can definitely capitalize on and anticipate in their calculus for future attacks which are ramping up with increased cyber warfare, military airspace violations (flybys) and other points of attacks long underway.
Punishment models have not shown evidence of working to rehabilitate people. Dehumanization, no matter how it is rationalized does not remove the fact that we are all equal. Behavioral health experts have a better chance at containing violence than militaries do. That is why violent expressions of power should return to its last resort status it has held for centuries, but excessive force has been a problem promoted by overpopulation and technological innovations and lax controls.
Casey, L. A., & Rivkin, D. B. (2006). International Law and the Nation-State at the U.N.: A Guide for U.S. Policymakers. Retrieved from http://www.heritage.org/Research/Reports/2006/08/International-Law-and-the-Nation-State-at-the-UN-A-Guide-for-US-Policymakers
Eggen D. (2008). Washington Post. Sunday, April 6, 2008 retrieved from http://www.washingtonpost.com/wp-dyn/content/article/2008/04/05/AR2008040502099.html
Haynes, W. (2002). Enemy combatants. Retrieved from http://www.cfr.org/international-law/enemy-combatants/p5312
Kirk, M. (Writer & Director). (2005, October 18). The torture question [Television series episode]. In M. Kirk & J. Gilmore (Producers), Frontline. Boston: WGBH Educational Foundation. Retrieved from http://www.pbs.org/wgbh/pages/frontline/torture/
Riverstone-Newell, L. (2013). The diffusion of local bill of rights resolutions to the states. State and local government review 45 (1) 14-24. Sage. DOI :10.1177/0160323x12473123 downloaded at Walder University Feb 6, 2015.
Thorne K. & Kouzmin, A. (2010.) The USA Patriot Acts:Convergent Legislation and Oligarchic Isomorphism in the Politics of Fear and State Crimes Against Democracy. American Behavioral Scientist 53 (6) 885-920 Sage. DOI 10:1177/00002764209353280 Downloaded Walden University Feb. 6, 2015.
Wilke, C. (2007). The War v. Justice: Terrorism Cases, Enemy Combatants, and Political Justice in U.S. Courts. In Mahan, S. & Griset, P.L., Terrorism in Perspective. (pp. 342-363)
War v. Justice: Terrorism Cases, Enemy Combatants, and Political Justice in U.S. Courts by Wilke, C., in Politics & Society, Vol. 33/Issue 4. Copyright 2005 by Sage Publications, Inc. - Journals. Reprinted by permission of Sage Publications, Inc. - Journals via the Copyright Clearance Center.