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.
This article stops at the point where individual soldiers, CIA Officers or consultants directly involved in the interrogation of detainees who "go too far" are potentially subject to War Crimes prosecution. That in itself is not a huge bombshell as the Bush Administration has already been prosecuting many soldiers for those very acts, including at least 26 in-custody deaths of detainees at Abu Ghraib which are being investigated as being caused by "abuse".
What they don't look at is the trail of causality between the White House, Pentagon and actions in the field which have violated Geneva. Three months ago I outlined that causality link step by step.
- In January 2002 Gonzales argues that Geneva shouldn't apply to "Enemy Combatants" because it would make "U.S. Officials" vulnerable to Federal War Crimes violations.
- In February, the Administration announces that al Qaeda and Taliban are "not included" in Geneva (although they conduct no tribunal as required by Geneva to determine this).
- In August of that same year the Bybee memo is written which redefines what "Torture" is.
- In October 2002 Gitmo commanders request “that additional techniques beyond those in the field manual be approved for use.”"
- In December of 2002 SecDef Rumsfeld allows for "“stress positions,” hooding, 20-hour interrogations, removal of clothing, exploiting phobias to induce stress (e.g., fear of dogs), prolonged isolation, sensory deprivation, and forced grooming. These techniques soon spread to Afghanistan and later to Iraq." according to documents obtain by the ACLU.
- Also in December the FBI begins complaining to the Defense Department about the conditions at Gitmo, and in Afghanistan some detainees are "killed during interrogation" at Bagram AFB.
So far analysis of actions high up in the chain of command have been largely ignored, or like in Colonel Karpinski's case - people who had no direct involvement in tragedy's such as Abu Ghraib have been scapegoated. What's needed here is a Special Prosecutor, there's no way that Alberto Gonzales is going to - or should - investigate himself for his involvement in War Crimes.
Right now, the strongest evidence against the President is coming from his own Administration as the ACLU files repeated FOIA requests that have led to their suit against Donald Rumsfeld.
Meanwhile, proving that no enormously courageous feat goes unpunished, the JAG Officer who succesfully argued the Hamdan case may have to start looking for a new gig.
Despite his spectacular success, with the assistance of attorneys from the Seattle firm Perkins Coie, [Lt Cmd. Charles] Swift thinks his military career is coming to an end. The 44-year-old Judge Advocate General officer, who was recently named one of the 100 most influential lawyers in the country by The National Law Journal, was passed over for promotion last year as the high-profile case was making headlines around the worldMaybe the ACLU is hiring?
It also appears that Rolling Stone has a follow up on the RFK Jr. Election Fraud report, indicating that did indeed have an impact.
Even Democrats who have been slow to question the election results were convinced by Kennedy's exhaustive report. Rep. Jan Schakowsky, who serves as the party's chief deputy whip, took the extraordinary step of admitting her mistake. "I apologize for not taking seriously enough the allegations that the 2004 election was stolen," she confessed in a speech on June 14th. "After reading Bobby Kennedy's article in Rolling Stone -- 'Was the 2004 Election Stolen?' -- I am convinced that the only answer is yes." Schakowsky promised that the Democrats would move aggressively "to ward off a repeat performance."And Kennedy isn't nearly done yet.
Kennedy, meanwhile, is preparing to up the ante on those he believes abetted the GOP's electoral theft. In July, the outspoken attorney plans to file "whistle-blower" lawsuits against two leading manufacturers of electronic voting machines. According to Kennedy, company insiders are prepared to testify that the firms knowingly made false claims when they sold their voting systems to the government -- misrepresenting the accuracy, reliability and security of machines that will be used by 72 million voters this November. "This is a unique way to try and stop these vendors," Kennedy tells Rolling Stone. "In both cases, our whistle-blowers are familiar with security problems that were well known by the vendors but concealed from election officials during the bidding process. Because we're relying on 'inside' knowledge, it is a far more frightening prospect to the company than a traditional lawsuit might be. And if we prove our case, we will hit the corporations the only place they feel it: in their pocketbooks."The only realistic way for a Special Prosecutor to be assigned, or a serious Congressional Investigation into the War Crimes of President Bush will be a change in the Leadership of Congress in November. There is no way on earth that people like Pat Roberts, Arlen Specter or James Sensenbrener are going to address the subject, but Rep. John Conyers just might. (He's already sued Bush for signing a law that wasn't passed by both Houses of Congress). but even for him the prospect of attacking a sitting President for the way that he prosecutes a War - while that War is ongoing - remains a highly daunting political prospect.
Republicans know this, and we know that they know this. The signs are strong for a Democratic Victory in November.
Voters increasingly see Democrats as the party best able to handle the top problems confronting the U.S., as Republicans struggle to hold their congressional majorities in midterm elections little more than four months away. Registered voters favor Democrats over Republicans in contests in their congressional districts by 49 percent to 35 percent, a Bloomberg/Los Angeles Times poll finds. Fifty-four percent want to see Democrats control Congress, while 34 percent prefer that Republicans stay in power.
But if the Conservatives who own the various voting machine companies can rig the game, all bets are off.