By Don Monkerud
On June 29, the Supreme Court ruled that Bush's handling of prisoners in "military tribunals" is a violation of the Geneva Conventions and the law. In Hamdan v. Rumsfeld, the court declared that prisoners are covered by Common Article 3 of the Geneva Conventions that prohibits cruel and inhumane punishment.
Although the highest court in the US declared that the Bush Administration has been breaking the law for four years, media sources haven't addressed the problem of whether officials who violated the law are subject to prosecution. The Supreme Court didn't address the issue, but inserted an escape clause, "Nothing prevents the president from retuning to Congress to seek the authority he believes necessary."
Rather than bringing law breakers to justice, Congress and the media focus on the less threatening issue of "reining in executive power" and "restoring a constitutional balance." Diverting attention from four years of law breaking lets Bush off the hook and creates a new legal loophole for lawbreakers. Now crooks could agree to stop their illegal practices, begin anew, and pay no consequences.
Violations of the Geneva Conventions are serious. While Rumsfeld joked about torture, and told ABC that the military "overwhelmingly treated people humanely," US soldiers were following his orders to abuse prisoners. In addition to being denied the right to see a lawyer, to be charged with a crime, to have a fair trial and to see the evidence against them, some were tortured and almost drowned in a technique called "water boarding." Over 100 died and some committed suicide.
Others were routinely deprived of sleep, bombarded with loud music, forced into painful stress positions, physically exhausted, attacked by guard dogs, and subjected to physical and sexual humiliation. The Bush Administration acted in secrecy and deliberately created confusion while justifying their actions by changing definitions; for example, torture became "enhanced interrogation techniques." Each time news leaks uncovered a torture scandal, the administration pretended to revamp the procedures.
According to legal scholars, passing a statute approving the illegal activities, thus making them legal, would "put us on the wrong side of history," "be a momentous and potentially catastrophic step," and provoke a powerful anti-American backlash. Yet, Bush officials argue that Congress should pass new laws that approve US officials' illegal practices.
Administration lawyers warn Congress that unless they approve the illegal treatment of prisoners, they will become war crimes that could lead to American troops being charged with felonies. This convoluted thinking is difficult to follow. The Supreme Court ruled that prisoners must be given rights under the Geneva Conventions, while administration lawyers claim that if the White House grants prisoners these rights and prisoners are abused, their abuse will become war crimes.
Although Bush now claims he was following the Geneva Convention all along, he and his officials clearly broke the law. A Newsweek investigation found that Bush, Rumsfeld and Attorney General Ashcroft created a "secret system of detention and interrogation that opened the door" to torture methods and "sidestepped" the Geneva Conventions. Their advisor, White House counsel Alberto Gonzales, issued an opinion that called the Geneva Conventions "obsolete" and "quaint," although as attorney general he is responsible for prosecuting war crimes under the US War Crimes Act of 1996.
Bush could be charged for authorizing the CIA to set up secret detention facilities outside the US, and ordering harsh interrogation methods. Department of Defense (DOD) Under Secretary for Policy Douglas Feith and DOD general counsel William Haynes could be charged with creating "an atmosphere of legal ambiguity" about the Geneva Conventions. Bush could be charged for declaring that he has the right to ignore the law because he is "commander in chief" when he signed the 2006 McCain Anti-Torture Amendment.
In April last year, Human Rights Watch (HRW) urged the US to name a special prosecutor to investigate Rumsfeld and others for torture. HRW accused Maj. Gen. Geoffrey Miller of being in charge of interrogations at Guantanamo and instigating the use of dogs in torture, Jay Bybee, a former assistant attorney general, for redefining torture, and Army Lt. Gen. Ricardo Sanchez for overseeing the illegal treatment of prisoners in Iraq.
Who will pay for the US war crimes? Bush rewarded William Haynes, the DOD general council who played a major role in developing torture policies, with a judgeship in the 4th Circuit Court of Appeals. Still unconfirmed by the Senate Judiciary Committee and opposed by 20 retired military officers, Haynes justified his actions by claiming coercive interrogation of prisoners is legal.
On the legal front, several international legal experts raise the issue of US war crimes. Although he admits that the world is a long ways "from establishing norms... under the rule of law," Benjamin Ferencz, a former chief prosecutor of the Nuremberg Trials and a founding father of the commission that established the International Criminal Court, told AlterNet in July that "there is a case for trying Bush for the 'supreme crime against humanity, an illegal war of aggression against a sovereign nation.'" The deputy legal adviser to the British Foreign Ministry, who resigned in the lead-up to the invasion of Iraq, said, " [A]n unlawful use of force on such a scale amounts to the crime of aggression."