Rosa Brooks: Did Bush commit war crimes?

[Guest guest]

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.

 

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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