George W. Bush: War Criminal

In their 5-3 decision yesterday in the Hamdan v Rumsfeld (pdf) case, the Supreme Court may have just established a determination that Amnesty International has been long looking for and Albert Gonzales has worked hard to avoid.

They made it official : George W. Bush is a War Criminal.

Oh, he may at this time be unindicted, untried and unconvicted - but make no mistake - the court has made it clear that he is a criminal.

In the Majority Opinion Justice Stevens stated:

Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan ’s commission trial are illegal.

The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949.

In his concurring opinion Justice Kennedy brought it home:

Article 3 of the Geneva Convention (III)Relative to the Treatment of Prisoners of War,Aug. 12,1949, [1955 ] 6 U..S.T.3316,3318,T.I.A.S.No.3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law.See id.,at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered “war crimes,” punishable as federal offenses,when committed by or against United States nationals and military personnel. See 18 U.S.C.§2441. There should be no doubt,then,that Common Article 3 is part of the law of war as that term is used in §821.

The core of the decision, as written by Stevens is here:

Hamdan is entitled to the full protections of the Third Geneva Convention until ad-
judged,in compliance with that treaty, not to be a prisoner of war; and that,whether or not Hamdan is properly classified as a prisoner of war,the military commission convened to try him was established in violation of both the UCMJ and Common Article 3 of the Third Geneva Convention because it had the power to convict based onevidence the accused would never see or hear.

The Court did not find that Hamdan or other detainees would have to be tried in civilian court, only that the Special Secret Tribunals that have been setup by President Bush are not authorized under current U.S. Law (the UCMJ) and also violate our treaty as a member of the Geneva Conventions.

It is quite possible that Hamdan would have to be tried in a normal "Courts Marshal" styled Tribunal, or that Congress could amend the UCMJ to allow for the presentation of secret evidence with a new class of tribunals and carve out part of the UCMJ so as to be severed from Geneva, and thus make the current Tribunal structure established for Al Qaeda and Taliban members "legal" -- but that isn't the only hurdle to be crossed.

Much has been made of the arguement that Geneva is an international law, and supposedly unenforceable with the U.S. But that isn't strictly true as Article VI of the U.S. Constitution makes clear.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Under this article it could be argued that International Treaties made by the United States are in fact - U.S. Law. With or without this interpretation however, it is now clear that the President has indeed violated U.S. Law, specifically the 1996 War Crimes Act under 18 USC § 2441, which exists in supplement to the Geneva Conventions and states:

The law applies to "U.S. officials" and that punishments for violators "include the death penalty,"

The article defines "War Crimes" :

(1) 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.

Early on the War on Terror(tm) Alberto Gonzales had noted this law and as White House Council had advised President Bush to refuse to recognize that "Enemy Combatants" had standing under the Geneva Conventions, not simply because they weren't members or agents of a signatory state - but simply because doing so would put the President at risk for violations of this law. As Reported by Michael Isikoff for Newsweek.

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 [the War Crimes Act]," Gonzales wrote. The best way to guard against such "unwarranted charges," the White House lawyer concluded, would be for President Bush to stick to his decision--then being strongly challenged by Secretary of State Powell-- to exempt the treatment of captured Al Qaeda and Taliban fighters from Geneva convention provisions. "Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution," Gonzales wrote.

It is now clear that this artful dodge has failed, and the Supreme Court has fully established that persons such as Hamdan, who may not officially be "Prisoners of War" until such a determination is made via judicial proceeding, are indeed covered by the Conventions, and that their treatment is protected under the War Crimes Act.

Furthermore, these memos by Gonzales indicate premeditation of the intent to violate 18 USC § 2441, several months before his request for the Bybee Torture Memos, which the ACLU in their own suit against Donald Rumsfeld contends was the first link in a chain which has led systematic abuse of detainees at Gitmo, Abu Ghraib, Bagram AFB in Afghanistan, Extra-odinary Rendition, Secret Prisons and the notorious Task Force 6-26.

In all these areas - BUSH. HAS. VIOLATED. THE. LAW.

If Congress intends to immunize Bush by changing the UCMJ, they will also have to change the War Crimes Act and possibly even de-ratify Geneva in order to make the Presidents current illegal conduct - legal.

But in addition to the War Crimes issue, there is also the NSA Domestic Spying issue - which the President and Justice Dept have claimed were given life by the Authorization to use Military Force against Al Qaeda and the Taliban in Afghanistan. But SCOTUS would appear to have thrown some severely cold water on that idea.

Neither the AUMF nor the DTA can be read to provide specific,overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President ’s war powers, see Hamdi v.Rumsfeld ,542 U.S.507,and that those powers include authority to convene military commissions in appropriate circum stances,see,e.g.,id.,at 518, there is nothing in the AUMF ’ s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ.

Without having specific and detailed authorization by Congress to try Hamdan outside of the standard proceedures of UCMJ and/or without an appropriate update to the UCMJ, the court has found the trial to be illegal. It only follows that they would also find the Presidents claim of authority to wiretap International calls without judicial review to be similarly illegal, particular since the 2002 Hamdi decision specifically required a role for the courts. In Hamdi...

JUSTICE O ’CONNOR,joined by THE CHIEF JUSTICE,JUSTICE KENNEDY,and JUSTICE BREYER,concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

The "neutral decisionmaker" would be a Judge (or judicial panel). The kind of judges that can also issue warrants, like the FISA Court.

The real issue and question is - will Bush even care? At this point in time, he has deliberately broken the FISA Statutes as well as the War Crimes Statute, so what does he have to lose by essentially ignoring the court? Is this Congress going to hold him accountable? Even though the NSA program has been openly revealed it continues on without any changes yet made by Congress to the existing law. Senator Russ Feingold suggests the rather mild remedy of a censure and it dies on the vine, and Bush hasn't even shifted his stride as he continues to trample on Civil Rights and ignore both the law and the courts. Senator (and part-time remote viewer) Bill Frist has already begun work on legislation to make the Secret Tribunals legal, so why should Bush do anything to bother abiding by the law, the Constitution or the Geneva Conventions?

Perhaps because this decision has opened the President up to a veritable avalanche of court challenges for his policy. In my original presumption and post before reviewing the detail of the case, I had worried that future cases of this type would not be able to be filed by Gitmo Detainees because of the Levin-Graham Amendment to the Anti-Torture Bill, but it appears that at the very top of their decision the Court Considered this question, and rejected it. This means that the door is wide open for future detainee suits. And unless Justice Stevens dies or retires, Bush is unlikely to win any of these challenges in the future.

At a certain point the realization that this President is a criminal will eventually begin to dawn on the American people - and they will have to force Congress's hand to take action (either through appointment of a Independant Council/Special Prosecutor or Impeachment Proceedings).

It may not happen in time for the end of his Presidency, but it's only a matter of time - hopefully, it won't be too late.

Update: Glenn Greenwald also has some excellent analysis of this decision from yesterday and today has an analysis I concur with; The President is quite likely to completely ignore the Court on this issue:

When asked about the Court's ruling yesterday, the President's answer seemed to suggest (albeit ambiguously) exactly that view:

At any rate, we will seriously look at the findings, obviously. And one thing I'm not going to do, though, is I'm not going to jeopardize the safety of the American people. People have got to understand that.

Isn't the President saying here that no matter what the Court says, he is "not going to . . . jeopardize the safety of the American people"? Thus, if compliance with the Supreme Court's ruling would -- in the President's view -- impair his ability to defend the nation, isn't it quite likely that the President would simply refuse to comply with the ruling on the ground that the Court has no authority to impair his functions as Commander-in-Chief? And if he asserted that power, is there any doubt that his followers would trip over themselves with praise, wallowing in bravado fantasies of Andrew Jackson's heroic challenge to the Court's authority?

Oh, I'm sure they will - in fact the witchhunt for the heads of those crazed out-of-control Supreme Court Justices is already gearing up for full steam. It should be an interesting ride.

Vyan