Senate Vote Advances President's Effort to Kill War Crimes Act

AUTHORS' NOTE: 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.

The Court singled out Geneva's Common Article 3, which provides a minimum standard for the treatment of all noncombatants under all circumstances. They must be "treated humanely" and must not be subjected to "cruel treatment," "outrages upon personal dignity, in particular humiliating and degrading treatment," or "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

As David Cole of the Georgetown University Law Center pointed out in the August 10 issue of The New York Review of Books, the Supreme Court's decision in Hamdan v. Rusmfeld "suggests that President Bush has already committed a war crime, simply by establishing the [Guantánamo] military tribunals and subjecting detainees to them" because "the Court found that the tribunals violate Common Article 3--and under the War Crimes Act, any violation of Common Article 3 is a war crime." A similar argument would indicate that top US officials have also committed war crimes by justifying interrogation methods that, according to the testimony of US military lawyers, also violate Common Article 3.

Lo and behold, the legislation the Administration has circulated on Capitol Hill would decriminalize such acts retroactively. Eugene Fidell, president of the National Institute of Military Justice, told the Associated Press on August 10, "I think what this bill can do is in effect immunize past crimes. That's why it's so dangerous." Human rights attorney Scott Horton told Democracy Now! on August 16 that one of the purposes of the proposed legislation is "to grant immunity or impunity to certain individuals. And these are mostly decision-makers within the government."

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