: The 109th Congress, led by Republican Senators McCain, Warner, and Graham and with the acquiescence of many Democrats, is poised to legalize torture, trials with secret evidence, and annulment of the right of habeas corpus. The measure also protects administration officials from prosecution for war crimes. If this measure becomes law, its name will live in infamy.
Earlier this month The Nation.com exposed this stealth attack that the Bush administration was secretly planning against the rule of law. The reasons we gave to save the War Crimes Act are even more pertinent today.
The US War Crimes Act of 1996 makes it a felony to commit grave violations of the Geneva Conventions. The Washington Post recently reported that the Bush administration is quietly circulating draft legislation to eliminate crucial parts of the War Crimes Act. Observers on The Hill say the Administration plans to slip it through Congress this fall while there still is a guaranteed Republican majority–perhaps as part of the military appropriations bill, the proposals for Guantánamo tribunals or a new catch-all “anti-terrorism” package. Why are they doing it, and how can they be stopped?
American prohibitions on abuse of prisoners go back to the Lieber Code promulgated by Abraham Lincoln in 1863. The first international Geneva Convention dates from the following year.
After World War II, international law protecting prisoners of war and all noncombatants was codified in the Geneva Conventions. They were ratified by the US Senate and, under Article II of the Constitution, they thereby became the law of the land.
Wishing to rebuke the unpunished war crimes of dictators like Saddam Hussein, in 1996 a Republican-dominated Congress passed the War Crimes Act without a dissenting vote. It defined a “war crime” as any “grave breach” of the Geneva Conventions. It thereby advanced a global trend of mutual reinforcement between national and international law.
The War Crimes Act was little noticed until the disclosure of Alberto Gonzales’s infamous 2002 “torture memo.” Gonzales, then serving as presidential counsel, advised President Bush to declare that the Geneva Conventions did not apply to people the United States captured in Afghanistan. That, Gonzales wrote, “substantially reduced the threat of domestic criminal prosecution under the War Crimes Act.”
Noting that the statute “prohibits the commission of a ‘war crime’ by or against a US person, including US officials,” he warned that “it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges.” The President’s determination that the Geneva Conventions did not apply “would provide a solid defense to any future prosecution.”
Unfortunately for top Bush officials, that “solid defense” was demolished this summer when the Supreme Court in Hamdan v. Rumsfeld ruled that the Geneva Conventions were indeed the law of the land.