Jordan Paust, Professor of Law at the University of Houston warns Congress that to write legislation that tampers with due process rights of prisoners would subject members of Congress itself to a violation of the Hague Convention, which is itself a war crime.
A quote from his article in The Jurist is below the fold.
http://jurist.law.pitt.edu/...
http://www.law.uh.edu/...
Another provision of treaty-based laws of war that also reflects customary international law is quite relevant in this regard. It is set forth in Article 23(h) of the Annex to the 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land, which reads: "it is especially forbidden ... [t]o declare abolished, suspended, or inadmissible in a court of law the rights ... of the nationals of the hostile party." Similarly, as part of the law of war, a violation of the Hague Convention is a war crime.
Members of Congress are thus on notice that minimum due process guarantees under customary international law must not be denied when Congress attempts to articulate what forms of procedure a military commission should adopt. If members participate in a plan to do so or are complicit in the deprivation of minimum due process guarantees under customary international law incorporated by reference in common Article 3 of the Geneva Conventions or any other rights or protections under common Article 3 (e.g., concerning the right to humane treatment even at the hands of CIA interrogators), they would be participating in the denial of rights, protections, and duties under Geneva law. Such denials are war crimes.
We must make members of Congress fully aware of this as soon as possible!