Did Bush commit war crimes?
Supreme Court's decision in Hamdan vs. Rumsfeld could expose
officials to prosecution.
By Rosa Brooks
Angeles Times" -- -- THE SUPREME Court on Thursday
dealt the Bush administration a stinging rebuke, declaring in Hamdan
vs. Rumsfeld that military commissions for trying terrorist suspects
violate both U.S. military law and the Geneva Convention.
But the real blockbuster in the Hamdan decision is the court's
holding that Common Article 3 of the Geneva Convention applies to
the conflict with Al Qaeda — a holding that makes high-ranking Bush
administration officials potentially subject to prosecution under
the federal War Crimes Act.
The provisions of the Geneva Convention were intended to protect
noncombatants — including prisoners — in times of armed conflict.
But as the administration has repeatedly noted, most of these
protections apply only to conflicts between states. Because Al Qaeda
is not a state, the administration argued that the Geneva Convention
didn't apply to the war on terror. These assertions gave the
administration's arguments about the legal framework for fighting
terrorism a through-the-looking-glass quality. On the one hand, the
administration argued that the struggle against terrorism was a war,
subject only to the law of war, not U.S. criminal or constitutional
law. On the other hand, the administration said the Geneva
Convention didn't apply to the war with Al Qaeda, which put the war
on terror in an anything-goes legal limbo.
This novel theory served as the administration's legal cover for a
wide range of questionable tactics, ranging from the Guantanamo
military tribunals to administration efforts to hold even U.S.
citizens indefinitely without counsel, charge or trial.
Perhaps most troubling, it allowed the administration to claim that
detained terrorism suspects could be subjected to interrogation
techniques that constitute torture or cruel, inhuman and degrading
treatment under international law, such as "waterboarding," placing
prisoners in painful physical positions, sexual humiliation and
extreme sleep deprivation.
Under Bush administration logic, these tactics were not illegal
under U.S. law because U.S. law was trumped by the law of war, and
they weren't illegal under the law of war either, because Geneva
Convention prohibitions on torture and cruel treatment were not
applicable to the conflict with Al Qaeda.
In 2005, Congress angered the administration by passing Sen. John
McCain's amendment explicitly prohibiting the use of cruel, inhuman
or degrading treatment of detainees. But Congress did not attach
criminal penalties to violations of the amendment, and the
administration has repeatedly indicated its intent to ignore it.
The Hamdan decision may change a few minds within the
administration. Although the decision's practical effect on the
military tribunals is unclear — the administration may be able to
gain explicit congressional authorization for the tribunals, or it
may be able to modify them to comply with the laws of war — the
court's declaration that Common Article 3 applies to the war on
terror is of enormous significance. Ultimately, it could pave the
way for war crimes prosecutions of those responsible for abusing
Common Article 3 forbids "cruel treatment and torture [and] outrages
upon personal dignity, in particular humiliating and degrading
treatment." The provision's language is sweeping enough to prohibit
many of the interrogation techniques approved by the Bush
administration. That's why the administration had argued that Common
Article 3 did not apply to the war on terror, even though legal
experts have long concluded that it was intended to provide minimum
rights guarantees for all conflicts not otherwise covered by the
But here's where the rubber really hits the road. Under federal
criminal law, anyone who "commits a war crime … shall be fined … 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." And a war crime is defined as "any conduct … which
constitutes a violation of Common Article 3 of the international
conventions signed at Geneva." In other words, with the Hamdan
decision, U.S. officials found to be responsible for subjecting war
on terror detainees to torture, cruel treatment or other "outrages
upon personal dignity" could face prison or even the death penalty.
Don't expect that to happen anytime soon, of course. For
prosecutions to occur, some federal prosecutor would have to issue
an indictment. And in the Justice Department of Atty. Gen. Alberto
Gonzales — who famously called the Geneva Convention "quaint" — a
genuine investigation into administration violations of the War
Crimes Act just ain't gonna happen.
But as Yale law professor Jack Balkin concludes, it's starting to
look as if the Geneva Convention "is not so quaint after all."
Copyright 2006 Los Angeles Times
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