[eDebate] bush could face war crimes post hamdan

[Jake Stromboli]

activist judges on the supreme court are still obstacle to total executive 
control which was the purpose of the constitution until cheney decided to 
embody the constitution himself.  oh georgie's #s are down after the ruling. 
   i think rummy, cheney and georgie paid lyndie england to sexually 
humiliate those  sand niggers b/c geneva supposedly was "passe" in their 
minds.  thank god for this war so much good has come of it including the 
ugliest darkest nooks of american souls wandering through hell:

http://www.latimes.com/news/opinion/commentary/la-oe-brooks30jun30%2C0%2C339573.column?coll=la-news-comment-opinions

Rosa Brooks: Did Bush commit war crimes?

Supreme Court's decision in Hamdan vs. Rumsfeld could expose officials to 
prosecution.

June 30, 2006


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.


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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."

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