(July 28, 2006) — Could George Bush, Dick Cheney, Donald Rumsfeld, and maybe Alberto Gonzales all end up sucking poison gas?

That, apparently, is a concern now being taken seriously by by Attorney General Gonzales, who is quietly working with senior White House officials and friendly members of Congress to do what murderous dictators in Chile, Argentina and other bloodthirsty regimes have done as their future in office began to look uncertain: pass laws exempting them from prosecution for murder.

At issue is a growing legal threat of the president and other top administration officials facing prosecution for violations of the US War Crimes statutes, which since 1996 have made violation of Geneva Conventions adopted by the US violations of American law, too.

Gonzales knows the seriousness of this threat. As he warned the president, in a January, 25, 2002 “Memorandum to the President” (published in full in the appendix of Barbara Olshansky’s and my new book, The Case for Impeachment), “It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section [the US War Crimes law].”

In another part of that same memo, Gonzales notes that the statute “prohibits the commission of a `war crime’'” by any US official, with a war crime being defined as “any grave breach of” the Geneva Convention on the Treatment of Prisoners of War or of the Geneva Convention’s Article 3. That article extends protection to combatants in other than official wars or formal armies. Gonzales, in that memo, also pointedly notes that the punishments for such violations, under US law, in the event that mistreated captives die in custody, “include the death penalty.”

What has the White House, and Bush’s mob attorney, Gonzales, worried is the decision last month by the US Supreme Court in Hamden v. Rumsfeld — which expressly established that the president has “violated” the Geneva Convention’s Article 3 by arbitrarily deciding that captives in the so-called War on Terror and in Afghanistan, and held in Guantanamo, would not be considered POWs, and would not be accorded protection from torture or access to the courts as required under the Geneva Convention. This determination by a 5-3 majority of the US Supreme Court could easily provide the basis for the very “unwarranted” prosecution Gonzales warned about.

Of course, the president could not be indicted for this offense while in office. The Constitution provides a protection against that. But he could be indicted once his term ends. Meanwhile, other administration personnel, including the vice president, have no such protection against indictment even while in office.

The very fact that Gonzales, according to a report in today’s Washington Post, has been “quietly approaching” Republican members of Congress about passing legislation exempting Americans involved in the “terrorism fight” from war crimes prosecution suggests how worried Bush and his subordinates really are.

It’s interesting how this has become the tactic of choice for the criminals in the White House. When Bush was caught violating the clear provisions of the Foreign Intelligence Surveillance Act by authorizing spying by the National Security Agency on Americans’ communications without a warrant, the administration went to Congress to seek legislation retroactively authorizing the crime.

Since the president was exposed as having summarily and unconstitutionally invalidated some 800 laws passed by Congress through the use of what he calls “signing statements,” an astonishing breach of the separation of powers, the administration has been seeking a new law in Congress that would in effect grant that power to presidents, again retroactively.

Now Bush is apparently hoping to get the same compliant Republican-led House and Senate to backdate a law exempting him and his cohorts from punishment under the War Crimes statute — a law, ironically, passed almost without objection by both houses of a Republican-led Congress in 1996.

Of course, this attempt at a legal dodge might not work. Not only could a future prosecutor seek to have such a law ruled illegal itself (after all, the US is a signatory of the Geneva Conventions, making them legally binding anyhow), but because the US is a signatory of the Geneva Conventions prohibiting torture in any form, the president and his subordinates could also be charged as war criminals by other nations — particularly if it were determined that the US was unwilling or legally unable to prosecute.

That could make things a little claustrophobic for administration personnel once they leave office.

No doubt Bush, Cheney, Rumsfeld et all would like to continue their world travels once they leave government “service.” For one thing, there’s lots of money to be made on the international speaking circuit. Lots more can be made by doing international business consulting.

But if there were a threat of arrest and prosecution by prosecutors in countries like Spain, Germany or Canada, such travels would pose a huge risk. Similar fears have kept former National Security Director and Secretary of State Henry Kissinger pretty much housebound since a near detention in Paris on war crimes charges a few years back.

Gonzales’ anxious behind-the-scenes scuttling about in the halls of Congress in an effort to save his boss’s neck also suggests that the White House is getting anxious about the November election.

After all, if they thought they had a secure grip on Congress through November 2008, why the sudden rush to get a bill through undermining the War Crimes statute now? Maybe Bush is afraid that if he waits until November, he’ll be dealing with a Democratic House and/or Senate, which would be unlikely to grant him such legal protection.

There is a delicious irony in watching this law-and-order, let-’em-fry president and his tough-guy VP, attorney general and defense secretary, resorting to the same kind of dodgy legal tactics that they accuse convicted killers (and terrorists) of using in an attempt to avoid the gallows.

Chances are their strategy will work, at least in the US. But at least it’s entertaining to watch.

War Crimes Act Changes would Reduce Threat of Prosecution
R. Jeffrey Smith / Washington Post

The Bush administration has drafted amendments to a war crimes law that would eliminate the risk of prosecution for political appointees, CIA officers and former military personnel for humiliating or degrading war prisoners, according to US officials and a copy of the amendments.

Officials say the amendments would alter a US law passed in the mid-1990s that criminalized violations of the Geneva Conventions, a set of international treaties governing military conduct in wartime. The conventions generally bar the cruel, humiliating and degrading treatment of wartime prisoners without spelling out what all those terms mean.

The draft US amendments to the War Crimes Act would narrow the scope of potential criminal prosecutions to 10 specific categories of illegal acts against detainees during a war, including torture, murder, rape and hostage-taking.

Left off the list would be what the Geneva Conventions refer to as “outrages upon [the] personal dignity” of a prisoner and deliberately humiliating acts — such as the forced nakedness, use of dog leashes and wearing of women’s underwear seen at the US-run Abu Ghraib prison in Iraq — that fall short of torture.

“People have gotten worried, thinking that it’s quite likely they might be under a microscope,” said a US official. Foreigners are using accusations of unlawful US behavior as a way to rein in American power, the official said, and the amendments are partly meant to fend this off.

The plan has provoked concern at the International Committee of the Red Cross, the entity responsible for safeguarding the Geneva Conventions. A U.S official confirmed that the group’s lawyers visited the Pentagon and the State Department last week to discuss the issue but left without any expectation that their objections would be heeded.

The administration has not officially released the draft amendments. Although they are part of broader legislation on military courts still being discussed within the government, their substance has already been embraced by key officials and will not change, two government sources said.

No criminal prosecutions have been brought under the War Crimes Act, which Congress passed in 1996 and expanded in 1997. But 10 experts on the laws of war, who reviewed a draft of the amendments at the request of The Washington Post, said the changes could affect how those involved in detainee matters act and how other nations view Washington’s respect for its treaty obligations.

“This removal of [any] reference to humiliating and degrading treatment will be perceived by experts and probably allies as ‘rewriting’ ” the Geneva Conventions, said retired Army Lt. Col. Geoffrey S. Corn, who was recently chief of the war law branch of the Army’s Office of the Judge Advocate General. Others said the changes could affect how foreigners treat US soldiers.

The amendments would narrow the reach of the War Crimes Act, which now states in general terms that Americans can be prosecuted in federal criminal courts for violations of “Common Article 3” of the Geneva Conventions, which the United States ratified in 1949.

US officials have long interpreted the War Crimes Act as applying to civilians, including CIA officers, and former US military personnel. Misconduct by serving military personnel is handled by military courts, which enforce a prohibition on cruelty and mistreatment.

The Army Field Manual, which is being revised, separately bars cruel and degrading treatment, corporal punishment, assault, and sensory deprivation. Common Article 3 is considered the universal minimum standard of treatment for civilian detainees in wartime. It requires that they be treated humanely and bars “violence to life and person,” including murder, mutilation, cruel treatment and torture. It further prohibits “outrages upon personal dignity” such as “humiliating and degrading treatment.” And it prohibits sentencing or execution by courts that fail to provide “all the judicial guarantees . . . recognized as indispensable by civilized peoples.”

The risk of possible prosecution of officials, CIA officers and former service personnel over alleged rough treatment of prisoners arises because the Bush administration, from January 2002 until June, maintained that the Geneva Conventions’ protections did not apply to prisoners captured in Afghanistan.

As a result, the government authorized interrogations using methods that US military lawyers have testified were in violation of Common Article 3; it also created a system of military courts not specifically authorized by Congress, which denied defendants many routine due process rights. The Supreme Court decided in Hamdan v. Rumsfeld on June 29, however, that the administration’s policy of not honoring the Geneva Conventions was illegal, and that prisoners in the fight against al-Qaeda are entitled to such protections.

US officials have since responded in three ways: They have asked Congress to pass legislation blocking the prisoners’ right to sue for the enforcement of those protections. They have drafted legislation allowing the consideration of intelligence-gathering needs during interrogations, in place of an absolute human rights standard.

They also formulated the War Crimes Act amendments spelling out some serious crimes and omitting altogether some that US officials describe as less serious. For example, two acts considered under international law as constituting “outrages” — rape and sexual abuse — are listed as prosecutable.

But humiliations, degrading treatment and other acts specifically deemed as “outrages” by the international tribunal prosecuting war crimes in the former Yugoslavia — such as placing prisoners in “inappropriate conditions of confinement,” forcing them to urinate or defecate in their clothes, and merely threatening prisoners with “physical, mental, or sexual violence” — would not be among the listed US crimes, officials said.

“It’s plain that this proposal would abrogate portions of Common Article 3,” said Derek P. Jinks, a University of Texas assistant professor of law and author of a forthcoming book on the Geneva Conventions. The “entire family of techniques” that military interrogators used to deliberately degrade and humiliate, and thus coerce, detainees at Guantanamo Bay, Cuba, and at Abu Ghraib “is not addressed in any way, shape or form” in the new language authorizing prosecutions, he said.

At a Senate Armed Services Committee hearing last Wednesday, however, Attorney General Alberto R. Gonzales complained repeatedly about the ambiguity and broad reach of the phrase “outrages upon personal dignity.” He said that, “if left undefined, this provision will create an unacceptable degree of uncertainty for those who fight to defend us from terrorist attack.”

Lawmakers from both parties expressed skepticism at the hearing. Sen. John McCain (R-Ariz.) said the military’s top uniformed lawyers had told him they are training to comply with Common Article 3 and that complying would not impede operations.

If the underlying treaty provision is too vague, asked Sen. Susan Collins (R-Maine), then how could the Defense Department instruct its personnel in a July 7 memorandum to certify their compliance with it? Deputy Defense Secretary Gordon England, who had signed the memo, responded at the hearing that he was concerned that “degrading” and “humiliating” are relative terms. “I mean, what is degrading in one society may not be degrading in another, or may be degrading in one religion, not in another religion,” England said. “And since it does have an international interpretation, which is generally, frankly, different than our own, it becomes very, very relevant” to define the meaning in new legislation.

This viewpoint appears to have won over the top uniformed military lawyers, who have criticized other aspects of the administration’s detainee policy but said that they support the thrust of these amendments. Maj. Gen. Scott C. Black, the Army’s judge advocate general, said in testimony that the changes can “elevate” the War Crimes Act “from an aspiration to an instrument” by defining offenses that can be prosecuted instead of endorsing “the ideals of the laws of war.”

Lawyer David Rivkin, formerly on the staff of the Justice Department and the White House counsel’s office, said “it’s not a question of being stingy but coming up with a well-defined statutory scheme that would withstand constitutional challenges and would lead to successful prosecutions.” Former Justice Department lawyer John C. Yoo similarly said that US soldiers and agents should “not be beholden to the definition of vague words by international or foreign courts, who often pursue nakedly political agendas at odds with the United States.”

But Corn, the Army’s former legal expert, said that Common Article 3 was, according to its written history, “left deliberately vague because efforts to define it would invariably lead to wrongdoers identifying ‘exceptions,’ and because the meaning was plain — treat people like humans and not animals or objects.” Eugene R. Fidell, president of the nonprofit National Institute of Military Justice, said that laws governing military conduct are filled with broadly described prohibitions that are nonetheless enforceable, including “dereliction of duty,” “maltreatment” and “conduct unbecoming an officer.”

Retired Rear Adm. John D. Hutson, the Navy’s top uniformed lawyer from 1997 to 2000 and now dean of the Franklin Pierce Law Center, said his view is “don’t trust the motives of any lawyer who changes a statutory provision that is short, clear, and to the point and replaces it with something that is much longer, more complicated, and includes exceptions within exceptions.”

Posted in accordance with Title 17, US Code, for noncommercail, educatinal purposes.