I've read enough Kagro X posts to know to be skeptical that SCOTUS' Hamdan ruling against BushCo's will cause them to change their behavior. Instead, I hope the Hamdan ruling will convince the individuals who carry out BushCo's torture to stop carrying it out, to save their own ass from legal jeopardy if not for ethical reasons. That may become more and more likely if the soldiers and interrogators read news articles like this one, which explain that they can be prosecuted in civilian court for violating the Geneva Convention.
You see, back in 1996 Congressman Walter Jones (Mr. Freedom Fries turned Conservative with a Conscience) wanted to make sure there was a way to prosecute those who violated the Geneva Convention in US Courts, even if they escaped prosecution internationally. So (with the full support of the Defense Department) he passed the War Crimes Act of 1996. which:
criminalizes violations of the Geneva Conventions governing conduct in war and threatens the death penalty if U.S.-held detainees die in custody from abusive treatment.
The War Crimes Act ... affords access to civilian courts for abuse perpetrated by former service members and by civilians.
Importantly, after the law was drafted, it was amended to include any violation of Common Article 3.
The law initially criminalized grave breaches of the Geneva Conventions but was amended without a hearing the following year to include violations of Common Article 3, the minimum standard requiring that all detainees be treated "humanely." The article bars murder, mutilation, cruel treatment, torture and "outrages upon personal dignity, in particular humiliating and degrading treatment." It applies to any abuse involving U.S. military personnel or "nationals."
So, before Cheney and Addington came along, a person who did so much as humiliate someone (say, by making them roll around in feces or wear women's underwear on their head) could be charged in civilian court.
Now, Addington may be a sadist, but he's no dummy. He realized his plans for torture might be hindered by this law. Which is one of the reasons BushCo was so insistent that Al Qaeda members were enemy combatants and therefore didn't qualify for Geneva Convention protection.
While serving as White House legal counsel in 2002, Gonzales helped prepare a Jan. 25 draft memo to Bush -- written in large part by David Addington, then Vice President Cheney's legal counsel and now Cheney's chief of staff -- in which he cited the threat of prosecution under the act as a reason to declare that detainees captured in Afghanistan were not eligible for Geneva Conventions protections.
In other words, one of the reasons Addington wanted Gitmo detainees called enemy combatants is because he recognized that those torturing Gitmo detainees would otherwise be at risk of prosecution within the US.
Which presents a problem, now that SCOTUS has said Gitmo detainees do qualify for Geneva Convention protection. The War Crimes Act is back on the table, and the men and women implementing Addington's sadist ideas are at risk for prosecution. According to the article, that is why (to the apparent chagrin of Addington and Harriet Miers) DOD issued a warning that everyone should abide by Article 3 provisions.
On July 7, Deputy Secretary of Defense Gordon England signed a memorandum ordering all military departments to certify that their actions in the fight with al-Qaeda comply with Article 3. Several officials said the memo, which was reviewed by military lawyers, was provoked by the renewed threat of prosecution under the War Crimes Act.
England's memo was not sent to other agencies for review. Two White House officials heavily involved in past policymaking on detainee treatment matters, counsel Harriet Miers and Addington, told friends later that they had not been briefed before its release and were unhappy about its language, according to an informed source.
I guess Miers and Addington just wanted army interrogators to continue to violate Article 3, any individual prosecution of them in the future be damned. "Shhhh! Don't tell them they can be prosecuted. It'll be hard to get them to continue to torture if you tell them they'll go to jail for it!!"
Well, Addington is nothing if not persistent. So he's back on his criminal justification racket, trying to meld the laws of the US to pretend what we're doing in Gitmo isn't illegal. This time, Addington's and Abu Gonzales' specious justification is that, if it's done for the war on terror, you get a Get Out of Jail Free card.
In light of a recent Supreme Court ruling that the international Conventions apply to the treatment of detainees in the terrorism fight, Attorney General Alberto R. Gonzales has spoken privately with Republican lawmakers about the need for such "protections," according to someone who heard his remarks last week.
Gonzales told the lawmakers that a shield is needed for actions taken by U.S. personnel under a 2002 presidential order, which the Supreme Court declared illegal, and under Justice Department legal opinions that have been withdrawn under fire, the source said.
"Oops! We may be responsible for having exposed military (and contract) interrogators to prosecution, so can you please fix our fuckup?"
I honestly don't know where this will go. As the article points out, this DOJ is unlikely to press charges, since the Justice Department itself wrote some of the legal justifications for these actions. (See also Bush preventing the DOJ from figuring out whether DOJ was right to have written such justifications.) I would hope future DOJs would figure out a way to prosecute the guys who rationalized torture (I'm looking at you, Addington, Abu Gonzales) before they go after the guys ordered to carry it out.
And perhaps BushCo will be successful in getting a Republican Congress to retroactively legalize their illegal actions. (See also Specter's ridiculous "compromise.") It appears they tried to get these protections passed quietly, which suggests we'd do well to make a stink about it.
I hope, though, that after legislators are asked to pass one and another law saving the Administration's ass, they'll grow weary of doing so, especially in a case (like this one) where their actions may expose America's own servicemen and women to torture. Though Kagro X is likely to tell me I'm just being overly optimistic.