Friday, July 28, 2006

And While You're at it, We'd Like Impunity from War Crimes Too, Please


The Washington Post reports that the Bush Administration, having correctly recognized the legal ramifications of the Hamdan decision, is now requesting that Congress amend the War Crimes Statute, 18 U.S.C. 2441, to insulate American operatives and military personnel from interrogations that fall just short of outright torture. The Post rather gratuitously refers to the 1996 War Crimes Statute as an "obscure law," but it is quite well known to people working in the area of human rights and international law.

As Marty has explained, the Bush Administration would like a "shocks the conscience test" that would offer less protection than Common Article 3 and would allow various forms of prisoner abuse and mistreatment, which would be justified on the grounds that it was necessary to obtain important information. As the Post explains:

The Justice Department's top legal adviser, Steven G. Bradbury, separately testified two weeks ago that Congress must give new "definition and certainty" to captors' risk of prosecution for coercive interrogations that fall short of outright torture.

Language in the administration's draft, which Bradbury helped prepare in concert with civilian officials at the Defense Department, seeks to protect U.S. personnel by ruling out detainee lawsuits to enforce Geneva protections and by incorporating language making U.S. enforcement of the War Crimes Act subject to U.S. -- not foreign -- understandings of what the Conventions require. [Ed.-- This last statement in the Washington Post article is not quite accurate. Rather, the idea is to adopt language that offers less protection than the language of Common Article 3 provides-- or the Army Field Manual, for that matter. It is not simply imposing a particular domestic interpretation of the Treaty; this point is made clear in the next paragraph]

The aim, Justice Department lawyers say, is also to take advantage of U.S. legal precedents that limit sanctions to conduct that "shocks the conscience." This phrase allows some consideration by courts of the context in which abusive treatment occurs, such as an urgent need for information, the lawyers say -- even though the Geneva prohibitions are absolute.

The Supreme Court, in contrast, has repeatedly said that foreign interpretations of international treaties such as the Geneva Conventions should at least be considered by U.S. courts.

Some human rights groups and independent experts say they oppose undermining the reach of the War Crimes Act, arguing that it deters government misconduct. They say that any step back from the Geneva Conventions could provoke mistreatment of captured U.S. military personnel. They also contend that Bush administration anxieties about prosecutions are overblown and should not be used to gain congressional approval for rough interrogations.

"The military has lived with" the Geneva Conventions provisions "for 50 years and applied them to every conflict, even against irregular forces. Why are we suddenly afraid now about the vagueness of its terms?" asked Tom Malinowski, director of the Washington office of Human Rights Watch.

Since the U.S. invasions of Afghanistan in 2001 and Iraq in 2003, hundreds of service members deployed to Iraq have been accused by the Army of mistreating detainees, and at least 35 detainees have died in military or CIA custody, according to a tally kept by Human Rights First. The military has asserted these were all aberrant acts by troops ignoring their orders.

Defense attorneys for many of those accused of involvement have alleged that their clients were pursuing policies of rough treatment set by officials in Washington. That claim is amplified in a 53-page Human Rights Watch report this week that quoted interrogators at three bases in Iraq as saying that abuse was part of regular, authorized procedures. But this argument has yet to gain traction in a military court, where U.S. policy requires that active-duty service members be tried for any maltreatment. The War Crimes Act, in contrast, affords access to civilian courts for abuse perpetrated by former service members and by civilians. The government has not filed any charges under the law.

This problem did not sneak up on the Bush Administration unawares. Rather, from the beginning the Administration sought to impose coercive interrogation methods that might violate Common Article 3, and was concerned that the Geneva Conventions might someday be invoked against it.
Since September 2001, however, Bush administration officials have considered the law a potential threat to U.S. personnel involved in interrogations. While serving as White House legal counsel in 2002, Gonzales helped prepare a Jan. 25 draft memo to Bush -- written in large part by David Addington, then Vice President Cheney's legal counsel and now Cheney's chief of staff -- in which he cited the threat of prosecution under the act as a reason to declare that detainees captured in Afghanistan were not eligible for Geneva Conventions protections.

"It is difficult," Gonzales said in the memo, "to predict the motives of prosecutors and independent counsels who may in the future decide to bring unwarranted charges." He also argued for the flexibility to pursue various interrogation methods and said that only a presidential order exempting detainees from Geneva protections "would provide a solid defense to any future prosecution." That month, Bush approved an order exempting those captured in Afghanistan from these protections.

Thus, the Administration is now moving in two related directions. On the one hand, it wants a "clarified" standard for what constitutes war crimes, which really means that it wants a standard far weaker than Common Article 3 of the Geneva Conventions. After all, it's hard to argue that "shocks the conscience" is a particularly bright-line test. At the same time, the Administration has made noises that it still regards the War Crimes Act as potentially unconstitutional when applied to persons acting under orders from the Commander-in-Chief. And all the while, the Administration has continued to insist that the most egregious forms of prisoner mistreatment or abuse were not authorized or ordered by anyone higher up in the Administration, but rather was solely the result of a few bad apples or rogue elements acting completely without authorization-- that the Administration has always treated detainees humanely, and therefore has always acted within the boundaries of Common Article 3.

So the Administration position, post-Hamdan, is that Congress should excuse Americans (and Administration officials) from liability for possible war crimes, either because the act is unnecessary-- since we have always acted humanely except for a few bad apples who didn't take orders from the Administration-- or because it is necessary-- since the Administration has in fact ordered people to violate Common Article 3. Finally, if Congress does nothing, the President will continue to take the position that the War Crimes Act may be unconstitutional as applied to him and to persons acting on his orders. (That unitary executive stuff comes in real handy!)

And what about those bad apples who were acting completely on their own? Well, there's the rub, you see. If any of them is ever prosecuted under the War Crimes Act, their most likely defense will be that they weren't really bad apples after all, but were actually following orders of the Administration-- the same Administration that insists that it has always treated its detainees humanely. And if a jury were to find that they believed this defense, it would be a bit-- shall we say-- embarrassing for the Administration. So to minimize the risk of any such embarrassments, the Administration would prefer that even the bad apples don't get prosecuted under the War Crimes statute.

So there you have it. A law making it a illegal to commit war crimes is simply a luxury that we Americans can't afford. Freedom isn't free, you know. If you want to protect human rights and democracy around the world, you have to break a few testicles-- I mean, eggs.


Is the presidential power of pardon fully applicable in this area or are there limitations because of the "international" crimes that may be involved? Would it be beyond George W to grant blanket immunity for such crimes via pardons?

for those of you out there who believe in strict construction and original intent, whatever happened to the duty of the president to faithfully execute the laws and defend the constitution, and why is there no outcry from originalists over this?

I'd expect that, if the administration is unable to get the exemption that it wants, President Bush will issue a blanket pardon (sometime after the 2008 presidential elections, particularly if a Democrat is elected.) The pardon power is pretty robust, and I don't see how its use in this circumstance could be challenged.

As for the administration's anguish over this "obscure" law, perhaps that's the inevitable consequence of laws rushed through Congress as an emotional response without sufficient consideration. Like the AUMF.

Well that dog isn't going to hunt.

I've been documenting the administration's conspiracy to commit war crimes since 2001.11.13, the day they issued the PMO. Everything is posted on the PROJECT TO ENFORCE THE GENEVA CONVENTIONS website. In particular, see THIS PAGE, which lists the basic statutes, treaties, my own writings, some key law review articles, and the administration documents showing evidence of the conspiracy.

Especially note the three amicus briefs I have filed in the detainee cases - one in the S.Ct. in HAMDI, the other two in IN RE GUANTANMO DETAINEE CASES in the D.C. District court.

The crimes have already been committed - their current efforts are merely further offenses. The Congress can commit a crime by trying to shield them, and the President can add to his crimes by trying to pardon the people commiting these crimes onb his behalf, but all that will do is add to the already certain proof of their guilt.

If push comes to shove, we can simply convene an international tribunal or extradite them to another country, but I think it's important that we take care of them ourselves.

I won't recognize a pardon for these crimes, per Geneva, IMT(Nuremberg) arts. 7-8, and Hague IV (1907). Bush can't pardon himself in any case.

Their greatest crime is their fundamental CORRUPTION: they have attacked the rule of law itself. There is no immunity or statute of limitations here: these are the crimes of NAZIS.

All they are doing is signing another confession that exhibits guilt to a logical certainty.

No politician who supports them is fit to hold a position of public trust.

No lawyer who supports them is fit to practice law.

And a government that will not obey its own laws is no government at all. These people are criminals and that is all that they are.

Chales Gittings

Professor, could you or your cohorts sometime post or link to some good history of the genesis and 'legislative history' of Common Article 3? Given the immediate post-World War II balance of power, I would expect heavy American involvement, no?

If that history and participation is as I expect, wouldn't that help the effort to preserve it--and help show the radically un-American nature of the administration's efforts to put our tax dollars to work paying torturers, and supporting torturers by exculpating them after the fact?


The ICRC published full Commentaries (Pictet, Ed.) on each of the four Geneva Conventions back in the 50's and 60's. All four are available on the ICRC website here:

Geneva Conventions of 12 August 1949

The four Commentaries each have a chapter on every article of the particular Convnetion. Articles 1-3 are identical in all four conventions, but the text of the Commentary varies a bit. Here is the chapter on CA3 from the Commentary on Geneva IV Civilians:

Geneva IV Commentary on CA3

And here is an especially relevant quote:

"The above criteria are useful as a means of distinguishing a genuine armed conflict from a mere act of banditry or an unorganized and short-lived insurrection. Does this mean that Article 3 is not applicable in cases where armed strife breaks out in a country, but does not fulfil any of the above conditions (which are not obligatory and are only mentioned as an indication)?

"We do not subscribe to this view. We think, on the contrary, that the scope of application of the article must be as wide as possible. There can be no drawbacks in this, since the Article in its reduced form, contrary to what might be thought, does not in any way limit the right of a State to put down rebellion, nor does it increase in the slightest the authority of the rebel party. It merely demands respect for certain rules, which were already recognized as essential in all civilized countries, and embodied in the municipal law of the States in question, long before the Convention was signed. What Government would dare to claim before the world, in a case of civil disturbances which could justly be described as mere acts of banditry, that, Article 3 not being applicable, it was entitled to leave the wounded uncared for, to torture and mutilate prisoners and take hostages?

"However useful, therefore, the various conditions stated above may be, they are not indispensable, since no Government can object to observing, in its dealings with internal enemies, whatever the nature of the conflict between it and them, a few essential rules which it in fact observes daily, under its own laws, even when dealing with common criminals."

I have no fundamental problem with a "shock the conscience" test, although I'm afraid GOP dominated federal judiciary will be apt to use Cheney's conscience as a yardstick which would do us no good, needless to say.

It would seem to me that the best thing that could happen in the wake of Hamdan is for pressure to increase to request immediate war crimes prosecution of the high-level civilians (if not the military generals) of the 2002-Hamdan period some of whom are the one's seeking the modifications to the War Crimes Act. This would have the salutary effect of showing their self-interested efforts as it would show the cravenness of congress. This would also have a chilling effect on efforts to fast-track legislation and leave the lone prospect of the Bush pardon at the end of his second term.

Building on the Jennifer Flowers case, if the President of the United States raped a Guantanamo detainee while visiting U.S. troops there asserting the inherent Commander in Chief Constitutional Powers and the long tradition of the droit du seigneur, it must be apparent that the President could be tried for that crime of rape. Was it not foreseen in our system that if Congress was unable to impeach a President, the sitting President could still be tried in court for a criminal offense committed (in addition to being so tried after s/he left office)? Yes you need the prosecutor and the Court to allow the matter to go forward, but is there no set of facts in which the criminal system can apply to the President in the absence of an impeachment/

This life’s hard, but it’s harder if you’re stupid.
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