[Ppnews] A Fear of War Crimes Tribunals and Impeachment
Political Prisoner News
ppnews at freedomarchives.org
Thu Sep 7 11:21:58 EDT 2006
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.
The Freedom Archives
522 Valencia Street
San Francisco, CA 94110
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