[News] A Fear of War Crimes Tribunals and Impeachment

[Anti-Imperialist News]

http://www.counterpunch.org/cohn09072006.html

September 7, 2006


A Fear of War Crimes Tribunals and Impeachment


Why Bush Really Came Clean About the CIA's Secret Torture Prisons

By MARJORIE COHN

With great fanfare, George W. Bush announced to a 
group of carefully selected 9/11 families 
yesterday that he had finally decided to send 
Khalid Sheikh Mohammed and 13 other alleged 
terrorists to Guantánamo Bay, where they will be 
tried in military commissions. After nearly 5 
years of interrogating these men, why did Bush 
choose this moment to bring them to "justice"?

Bush said his administration had "largely 
completed our questioning of the men" and 
complained that "the Supreme Court's recent 
decision has impaired our ability to prosecute 
terrorists through military commissions and has 
put in question the future of the CIA program."

He was referring to Hamdan v. Rumsfeld, in which 
the high court recently held that Bush's military 
commissions did not comply with the law. Bush 
sought to try prisoners in commissions they could 
not attend with evidence they never see, 
including hearsay and evidence obtained by coercion.

The Court also determined that Common Article 3 
of the Geneva Conventions applies to al Qaeda 
detainees. That provision of Geneva prohibits 
"outrages upon personal dignity" and "humiliating and degrading treatment."

Bush called on Congress to define these "vague 
and undefined" terms in Common Article 3 because 
"our military and intelligence personnel" 
involved in capture and interrogation "could now 
be at risk of prosecution under the War Crimes Act."

Congress enacted the War Crimes Act in 1996. That 
act defines violations of Geneva's Common Article 
3 as war crimes. Those convicted face life 
imprisonment or even the death penalty if the victim dies.

The President is undoubtedly familiar with the 
doctrine of command responsibility, where 
commanders, all the way up the chain of command 
to the commander in chief, can be held liable for 
war crimes their inferiors commit if the 
commander knew or should have known they might be 
committed and did nothing to stop or prevent them.

Bush defensively denied that the United States 
engages in torture and foreswore authorizing it. 
But it has been well-documented that policies set 
at the highest levels of our government have 
resulted in the torture and cruel, inhuman and 
degrading treatment of U.S. prisoners in Iraq, Afghanistan and Guantánamo.

Indeed, Congress passed the Detainee Treatment 
Act in December, which codifies the prohibition 
in United States law against cruel, inhuman or 
degrading treatment or punishment of prisoners in 
U.S. custody. In his speech yesterday, Bush took 
credit for working with Senator John McCain to pass the DTA.

In fact, Bush fought the McCain "anti-torture" 
amendment tooth-and-nail, at times threatening to 
veto the entire appropriations bill to which it 
was appended. At one point, Bush sent Dick Cheney 
to convince McCain to exempt the CIA from the 
prohibition on cruel treatment, but McCain refused.

Bush signed the bill, but attached a "signing 
statement" where he reserved the right to violate 
the DTA if, as commander-in-chief, he thought it necessary.

Throughout his speech, Bush carefully denied his 
administration had violated any laws during its 
"tough" interrogations of prisoners. Yet, the 
very same day, the Pentagon released a new 
interrogation manual that prohibits techniques 
including "waterboarding," which amounts to torture.

Before the Supreme Court decided the Hamdan case, 
the Pentagon intended to remove any mention of 
Common Article 3 from its manual. The manual had 
been the subject of revision since the Abu Ghraib 
torture photographs came to light.

But in light of Hamdan, the Pentagon was forced 
to back down and acknowledge the dictates of Common Article 3.

Bush also seeks Congressional approval for his 
revised military commissions, which reportedly 
contain nearly all of the objectionable features of his original ones.

The President's speech was timed to coincide with 
the beginning of the traditional post-Labor Day 
period when Congress focuses on the November 
elections. The Democrats reportedly stand a good 
chance of taking back one or both houses of 
Congress. Bush fears impeachment if the Democrats 
achieve a majority in the House of Representatives.

By challenging Congress to focus on legislation 
about treatment of terrorists - which he called 
"urgent" - Bush seeks to divert the election 
discourse away from his disastrous war on Iraq.

Marjorie Cohn, a professor at Thomas Jefferson 
School of Law, is president-elect of the National 
Lawyers Guild, and the U.S. representative to the 
executive committee of the American Association of Jurists.


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