After first learning of the Supreme Court's decision in
Hamden v. Rumsfeld, I began to wonder if Bush could be sued for violating the Geneva Convention.
I haven't made my way through the opinion yet, but I recalled something that may even be better than suing under the Geneva Convention - The War Crimes Act (
18 USC § 2441).
Interestingly, the issue of the applicability of the Geneva Convention seems to be being ignored by the Press today. I think it is pretty clear that the Republican talking points are dominating again (e.g., "what should we do, let them all go?", "since Al Qaeda is not a party to the convention, it does not apply and the court is just wrong").
Gonzales Warned Bush About War Crimes in 2002
This is what Alberto Gonzales told Bush about the War Crimes Act in a
2002 Memo regarding the Administration's determination that the Geneva Conventions did not apply to "enemy combatants":
*That statute, enacted in 1996, prohibits the commission of a "war crime" by or against a U.S. person, including U.S. officials. "War crime" for these purposes is defined to include any grave breach of GPW or any violation of common Article 3 thereof (such as "outrages against personal dignity"). Some of these provisions apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that the GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actions taken with respect to the Taliban.
*Adhering to your determination that GPW does not apply would guard effectively against misconstruction or misapplication of Section 2441 for several reasons.
*First, some of the language of the GPW is undefined (it prohibits, for example, "outrages upon personal dignity" and "inhuman treatment"), and it is difficult to predict with confidence what actions might be deemed to constitute violations of the relevant provisions of GPW.
*Second, it is difficult to predict the needs and circumstances that could arise in the course the war on terrorism
*Third, it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.
Wow.
Personally my favorite phrase is
"it is difficult to predict with confidence what actions might be deemed to constitute violations" that would constitute "outrages upon personal dignity" and "inhuman treatment".
Gosh. I think those pictures at Abu Gharib (sp?) pretty clearly show "outrages upon personal dignity" and "inhuman treatment".
I wonder what law school little Alberto went to that he isn't certain that the medieval torture -now referred to as "waterboarding" - would not constitute "inhuman treatment".
So, in short, the War Crimes Act carries a punishment of the death penalty. Isn't that ironic given the number of executions Bush authorized as Governor of Texas.
Hmmm. The thought of Bush, Rumsfeld, Cheney, Rice and Gonzales being prosecuted makes me think maybe we should keep Gitmo open. Perhaps after they stayed there for 4 years one of them may reconsider what constitutes "outrages upon personal dignity" and "inhuman treatment".
Alberto's 2002 memo went on to tell Bush:
*Since the Geneva Conventions were concluded in 1949, the United States has never denied their applicability to either U.S. or opposing forces engaged in armed conflict, despite several opportunities to do so. During the last Bush Administration, the United States stated that it "has a policy of applying the Geneva Conventions of 1949 whenever armed hostilities occur with regular foreign armed forces, even if arguments could be made that the threshold standards for the applicability of the Conventions ... are not met."
*The United States could not invoke the GPW if enemy forces threatened to mistreat or mistreated U.S. or coalition forces captured during operations in Afghanistan, or if they denied Red Cross access or other POW privileges.
*The War Crimes Act could not be used against the enemy, although other criminal statutes and the customary law of war would still be available.
*Our position would likely provoke widespread condemnation among our allies and in some domestic quarters, even if we make clear that we will comply with the core humanitarian principles of the treaty as a matter of policy.
*
*
*
Oops. W didn't listen to his own father ("the last Bush Administration, the United States stated that it `has a policy of applying the Geneva Conventions of 1949 whenever armed hostilities occur'.")
Looking at the War Crimes Act itself, it provides:
18 USC § 2441(a) Offense.--Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title 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
18 USC § 2441 (c) Definition.--As used in this section the term ``war crime'' means any conduct--
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.
Gonzales has to be a very nervous man today. He gave the President bad legal advice. Seems the President should be able to find a better lawyer.