2006: A Year of Living Dangerously
While US influence has made it impossible for the UN to act effectively against US war crimes, the international body has been an important forum for documenting and publicizing them. For example, after an eighteen-month study, five independent experts appointed by the UN Commission on Human Rights concluded early in 2006 that practices currently conducted at the US prison in Guantánamo amount to torture. The Commission's demand to close Guantánamo was quickly seconded by UN Secretary General Kofi Annan. And the EU Parliament voted 80 to 1 to ask the United States to close Guantánamo and give every prisoner "a fair and public hearing by a competent, independent, impartial tribunal" without delay.
Perhaps the most unexpected charges of war crimes have come from within the military and other parts of the national security bureaucracy. Former Secretary of State Colin Powell's top aide, Colonel Larry Wilkerson, told CNN late last year that the United States has practiced torture and that "there's no question in my mind where the philosophical guidance and the flexibility in order to do so originated--in the Vice President of the United States' office." Asked by the BBC whether Cheney was guilty of a war crime, Wilkerson said the Vice President's actions were certainly a domestic crime and, he would suspect, "an international crime as well."
Some lower-level military personnel have begun refusing to serve in Iraq on grounds that the war there violates national and international law. Lieut. Ehren Watada, for example, defends his refusal to go to Iraq on the grounds that the Administration's invasion and occupation was "manifestly illegal." At the press conference announcing his decision, he said it "violates our democratic system of checks and balances. It usurps international treaties and conventions that by virtue of the Constitution become American law." Watada plans to use his impending court-martial, scheduled to begin February 5, to put the war on trial. He argues the Administration's invasion and occupation of Iraq was "manifestly illegal" because it "violates our democratic system of checks and balances. It usurps international treaties and conventions that by virtue of the Constitution become American law."
In a telephone news conference in November, Watada made explicit the tie between his refusal to go to Iraq and the need for official accountability: "The reason I spoke out, I saw that what was being done in terms of this war was so illegal and so immoral, and not being checked. It was a danger to our troops and a danger to our country. So, I think what needs to be done is some kind of accountability in Washington and also investigations into how this war was started in the first place."
US Legal Establishment
In this summer's Hamdan v. Rumsfeld decision--which Duke University law professor Walter Dellinger calls "the most important decision on presidential power ever"--the Supreme Court rebuked not only the Bush Administration's Guantánamo tribunals but the entire view of executive power the Administration used to justify them. The Court found the President's conduct illegal because it violated international treaties, specifically Common Article 3 of the Geneva Conventions. This has ramifications far beyond Guantánamo. It means that the government must obey the provisions of the Geneva Conventions--such as the ban on cruel and degrading treatment and the obligation of an occupying power to protect civilians.
The Bush Administration has vigorously fought the Hamdan decision and its consequences. It tried to virtually nullify it with provisions slipped into the Military Commissions Act of 2006. It is now using those provisions to resist in court even the most minimal protections for its captives, such as the right to talk with their lawyers. Interpretation of the Hamdan decision and the Military Commissions Act is now being fought out in the courts; for example, a federal judge just ruled in support of the MCA's ban on habeas corpus appeals for Guantánamo captives but declared its effort to apply that ban to legal immigrants is unconstitutional.
The Bush Administration is facing a powerful counterattack on behalf of the rule of law. For example, seven retired federal judges from both parties joined Guantánamo detainees in urging an appeals court to declare key parts of the Military Commissions Act unconstitutional. Similarly, a bipartisan group of former Justice Department officials, including former Attorney General Janet Reno, recently filed court papers rejecting the government's claim that it can hold putative enemy combatants arrested in the United States indefinitely. On December 8, Chief US District Judge Thomas Hogan opened a hearing on whether nine former prisoners at US military prisons in Iraq and Afghanistan, represented by lawyers from the ACLU and Human Rights First, can hold Donald Rumsfeld and top military commanders personally responsible for torture they endured.