by emptywheel
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.
And,
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.

Congress won't pass any law that reinforces the Geneva Concventions because the American voter is either so ignorant of the history of the violations by this Administration, or
so convinced that the "terrorists" deserve torture that they will not press Congress to do so. Congress just can't afford to look less than "tough" on terrorism, and the public will enable this macho charade to continue.
Posted by: margaret | July 28, 2006 at 12:10
OfT Rummy and DeadEye will be so pissed if this is accurate
"Report: First contacts made between Israel, Hizbullah"
"Al-Hayat reports that Germany, Red Cross mediated initial contacts between Israel and Hizbullah aiming towards agreement to end fighting in north and exchange prisoners. Hizbullah still refuses to reveal details on welfare of hostages"
Posted by: John Casper | July 28, 2006 at 12:15
There will never be any trouble finding jailors to carry out torture. Remember the Stanford expriments. Even with jail time a potential risk, people will still torture, using the "orders from above" excuse.
What I find most intersting about the torture debate is how little time is spent on the merits of the technique. As near as I can tell, torture seldom elicits truthful utterances; befriending and sympathizing with the subject seems to be the preferred method for that outcome.
Torture seems to be effective for two purposes: (1) deliberately eliciting false confessions (the tortured are pretty attuned to saying what the torturer wants to hear)--best illustrated by al Libi's confession of the link between al Qaeda & Saddam Hussein, which was intensely useful to W et al, until al Libi recanted; (2) satisfying basic human sadism.
So I'm almost completely opposed to torture. Only one exception: Alan Dershowitz.
Posted by: eCAHNomics | July 28, 2006 at 12:27
Well, the joke of it all is that it was a Republican Congress that passed the War Crimes Act. So they're being asked to cover the "administration's" ass from a law of their own making. It passed on voice vote in the House -- the post-Contract with America, Republican Revolution House, by the way -- and by unanimous consent in the Senate.
Which the emptywheels of the world see as something that should, under normal circumstances (i.e., in a logical universe) translate into widespread opposition to the "administration's" position. The Kagro Xes of the world, however, know that the fact that it passed by voice vote and unanimous consent means that there's no record of who voted which way, so you can't make a "flip flop" charge stick, which is, of course, the bottom line for Republican policy-making. Not that they're afraid of flip flops, per se. It's just that they like to look for clean getaways when they can find them.
Walter Jones knows who the players were who are still there. And he appears to be fiding his conscience. We need to find ways to help him redeem himself, and find others who he can take with him.
And fast, too. Before the "special rights for terrorists" meme catches on, and sweeps even Jones away with the tide.
Posted by: Kagro X | July 28, 2006 at 12:57
Not having a good understanding of the law, I may be asking a dumb question. Since Gonzoles expressed concern about independant concels, how would such a circumstance come about? Is there a path for the detainees to bring charges of War Crimes?
Posted by: John | July 28, 2006 at 13:40
Isreal won't pay this:
War reparations refer to the monetary compensation provided to a triumphant nation or coalition from a defeated nation or coalition. The compensation is meant to cover damage or injury during a war. Generally, the term war reparations refers to money or goods changing hands, rather than such property transfers as the annexation of land.
Posted by: Collassal | July 28, 2006 at 17:41
Is there a path to future prosecution ???
Murder has no Statute of Limitation
and if you can meet the seven requirements to establish a criminal conspiricy, RICO has a 10 year statute of limitations
so all we need to do is restaff the upper levels of the Justice Department befor 2013 or so
Posted by: freepatriot | July 28, 2006 at 19:05
Is there a path for the detainees to bring charges of War Crimes?
Not really as best I can tell. Prosecution would be criminal prosectuion, depending upon a Justice Department that uphold the law - that's just not a part of the equation right now.
Congress could revive the Independent Counsel statutes and go that route - but do you see that happening? A new adminsitration could do the same - but again, would it ever happen?
IMO, it is pretty clearly the case that it would be disingenous for anyone to rely on the OLC opinion, when there was such clear opposition (State and Powell originally) and where even the Gonzales 2002 memo says that War Crimes prosecution is a distinct possiblity (IOW - no one can claim that they truly did not think it was on the table) and that the whole concept of "enemy combatants" was to make it "less likely" that subsequent administration would pursue war crimes violations.
It was very clear from that memo that it was a matter of politics and administrative positions (a later administration that follows the law being listed as the "threat") and not purity of legal analysis supporting the position, that was behind the policy.
The inherent "Sophie's Choice" of the unethical decisions made (on this and wiretaps, etc.) has been that even though they were knowingly based on insupportable legal grounds - the country would have to choose to punish people who were trying hard, on the frontlines, in order to react to the illegal and immoral behavior. And the country doesn't have the stomache for that choice.
The lawyers who crafted it KNEW that it was other people - CIA agents, military interrogators, NSA employees, etc. - that they were shoving onto the frontline and that the lawyers were never going to be placed on that line themselves. SO it was a safe enough gamble from their perspective to leave the country with the choice of refusing to prosecute massive lawbreaking and becoming "that" country --- or punishing people who very likely include people we pretty much could never afford to lose.
It was the most awful part of what they did. We will never prosecute, criminally, the criminals they created with their memos.
That makes us, as a country, so much less than we were.
Posted by: Mary | July 28, 2006 at 20:07
Wow. Well said, Mary. You're absolutely right.
Posted by: emptywheel | July 28, 2006 at 20:42
You read this stuff and you want to throw up your hands. Or throw up. At every turn, admin officials have dealt in bad faith and with duplicity, saying one thing and doing another, announcing compliance out of one side of the mouth, and whispering no need to comply out of the other. And that is on the good days. The reality that so much of this continues in secret means we may never know what we don't know. So long as someone is willing to follow orders however dubious under color of executive authority, such bad acts will continue on in the darkness, no matter if they are declared "illegal." The sad irony that these moral lepers raise arms and such arguments to defend our "way of life" is sad commentary indeed. Go along to get along as we head on toward hell.
Posted by: The Heretik | July 28, 2006 at 21:08
With this crowd, there's always some extra twist, or coloration, or measure of bland calculation that takes what they do from the merely awful to the truly horrifying. Thanks for explaining this part of the horror so clearly, Mary.
Posted by: prostratedragon | July 28, 2006 at 23:43
"President" Bush is a war criminal, from what I'm reading. The idea that he can Ex Post Facto himself out of it by decree shows that he obviously thinks of himself as a king. He must believe in The Divine Right of Kings in giving himself this power. By his own belief in this "Divine Right of the American President" then Bill Clinton could not have committed any crime or anything at all scurilous because Bill Clinton, too was above the law.
To Bill Clinton's credit, AT LEAST HE LIED, feeling that what he did was wrong. This shows that Bill Clinton believes in God, and had some fear of the law, which is based on the constitution (which was obviously from God.)
I have never heard of David Addington before today. I read comments alleging he does not respect the Constitution of the United States. If true, someone should remove him from office. Does he swear an oath,like the president?
Should we change the Motto, In God we Trust, to In Bush We Trust?
Nixon was breaking into the file cabinets of his political enemies. Bush MAY want to break into the computer files of everyone who seeks to check his power. Is this the reason for the warrantless wiretaps?
When Bush said "for us or against us, was he talking about us as a nation, or the republicans only? It seems that the United States now has a god for President. Are we not LUCKY?
I never thought that a god could be so paranoid.
P.S. Even the Pope apologized for the Sins of the Church and the Spanish Inquisition. Was it Peter the apostle who cut off the ear of a soldier arresting jesus? If you can't forgive the Pope and his Church, you can't forgive Peter. Peter A while back, didn't the pope say that if President Bush attacked Iraq with the evidence available at that time he would be considered a war criminal?
None of us are perfect. Would someone please elct me President for just 5 minutes so I can make everything I ever did that was sinful legal? I know it won't make it right, but, hey, I will sure feel a bit more comfortable knowing that I am righteous after the fact. Soory for the long post. It's my first post on anything in years. Probably the last.
Posted by: Tom Rogers | October 01, 2006 at 15:23