H.R. 6166 has passed the House of Representatives, and our Representatives Steve Pearce and Heather Wilson voted YES. Tom Udall voted NO. Where are we now?
18 U.S.C 2441. War Crimes. . . . (c) Definition. – As used in ths section the term “war crime” means 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; or . . . .
A violation of common Article 3 of the Geneva conventions (which applies when detainees are not prisoners of war), is a “war crime.” 18 U.S.C 1441. Article 3 forbids cruel, inhuman or degrading treatment of a detainee who is in our custody, in the USA or abroad.
A defense to the charge is, that an nterrogation technique was authorized at the time it was used; that the actor in good faith believed the technique to be authorized and lawful; and that a reasonable person would so believe. It is a defense if technique was authorized, and we acted reasonably and in good faith in the belief that the technique was authorized. Section of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1). See next paragraph.
42 U.S.C. 2000dd-1(b), Section 1004. (a) Protection of United States Government Personnel - In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of . . . [use of] specific operational practices, that involve detention and interrogation of [designated] aliens . . . and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such . . . [accused] did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful . . . .
That was the law before H.R. 6166, supported by Congressman Pearce and Congresswoman Wilson. By this Bill, the House seeks to extend a defense to the War Crimes Act, to war crimes which are a violation of commn Article 3 of the Geneva Conventions. See next paragraph.
H. R. 6166, Sec. 8 (b). Protection of Personnel – Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to any criminal prosecution that – . . . (2) is grounded in section 2441(c)(3) of title 18, United States Code; and . . .
So with this background, we respectfully ask Representatives Steve Pearce and Heather Wilson, these questions:
1. (A) At the time you voted for this law, did you believe that water-boarding was authorized as a technique of interrogation? (B) Did you believe that it had ever been authorized? (C) Do you believe that water-boarding is now authorized?
2. (A)-(C). Same questions regarding the technique of sleep deprivation.
3. (A)-(C). Same question regarding hooding and beating about the face and head.
4. (A)-(C). Same question regarding chaining detainee in fetal position on concrete floor in his own waste for 40 hour
5. At the time that you voted for this law, did you intend to make lawful any one or more of those four techniques of interrogation?
6. When you state in H.R. 6166 that the defense of good faith set forth in Section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply to war crimes based on a violation of common article 3 of the Geneva conventions that occurred in the past after 9/11/2001, was it your intention to provide a retroactive defense for a war crime based on any of the four interrogation techniques under discussion?
7. Are you in favor of the United States authorizing any one or more of the four interrogation techniques under discussion? If so, which one or ones?
8. Do you believe that the voters in New Mexico are entitled to know whether any of these four techniques of interrogation is lawful? If not, why not?
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