By Rosa BrooksDid Bush commit war crimes?Sat Jul 1, 2006 20:03
Did Bush commit war crimes?
Supreme Court's decision in Hamdan vs. Rumsfeld could expose officials to prosecution.
By Rosa Brooks
06/30/06 "Los 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 detainees.
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 Geneva Convention.
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
When art is incapable of matching life
By Robert Fisk
Violence has now become so close to all our lives that art sometimes seems incapable of matching the reality. Indeed, actors might be losing their credibility. After all, wasn't the 43rd President of the United States all dolled up in a jumpsuit when he mouthed the greatest lie of all? Mission accomplished?
The Big Buy - Tom Delay's Stolen Congress
The film is a warning about how easy it is for American democracy to be hijacked by a combination of relentless ambition and corporate millions. It makes the case that DeLay built a "custom-made Congress" that is still providing votes for his agenda.
Click here to watch
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At least 21 killed as occupation grinds on:
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Group Claims Second Israeli Soldier Held:
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Channel 4 Report From Gaza:
Overnight, Israeli bombers pounded targets across Gaza, including the only power station and Palestinian government offices
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Thousands of Turks protest Israeli actions:
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Demonstrators rally in Lebanon, Jordan, Syria:
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Arab states keep Israel in U.N. human rights dock:
Arab and Muslim states on Friday put the occupied Palestinian territories on the permanent agenda of the U.N. Human Rights Council, overcoming Israeli and Western objections to singling out alleged abuses by the Jewish state.
War pimp alert:
MI6 warns of Iran threat to UK:
MI6 has warned that Iran could direct terrorist attacks on British interests, if talks over its nuclear programme fail.
War pimp alert:
Frist: Europe Missile-Defense Site Needed :
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MP: US intends to corner Iran in future nuclear talks:
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At Guantanamo, Dying Is Not Permitted:
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Bin Laden says will take fight to America:
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Ex-president arrested in '68 massacre :
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US gears up for post-Castro era in Cuba
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Chavez urges Africa to unite against U.S.:
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Oil-rich Russia makes rouble convertible :
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State's security office tracked protests : -
Gov. Arnold Schwarzenegger's office in charge of protecting California against terrorism has tracked demonstrations staged by political and anti-war groups, a practice that senior law enforcement officials say is an abuse of civil liberties.
Report: Abramoff Had FBI Data:
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