The Supreme Court has finally shown that there's sense and morality still in the old grand carcass. On Hamdan v. Rumsfeld, SCOTUS blog reports:
...[T]he Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment.As recent studies have shown, most of the detainees are there because they were turned over for cash rewards and many, if not most, were never involved in terrorist activities. Reports on "terrorists" at Guantanamo include the following:
- Falsehoods About Guantanamo
- Empty Evidence
- More than Half of Gitmo Detainees Not Accused of Hostile Acts
- Lawyers: Many Gitmo Detainees Not Accused
- Original Report
Several commentaries on today's ruling by SCOTUS in Ramdan v. Rumsfeld assert that the ruling opens up the possibility that US officials can be charged with war crimes, since the torture at Guantanamo and secret "redition" facilities go contravene rules in the Geneva Conventions for treatment of prisoners of war.
Therefore: 1) The Supreme Court seems to assert that the notion of "illegal combtatant" does not apply to the prisoners at Guantanamo; 2) if the articles I cite are correct, over 50 percent of those at Guantanmo were not combatants of any kind; 3) Even the illegal combatants are covered by the Geneva Conventions.
If any one of the above is true, the Bush admin. could be accused of war crimes under the Geneva Conventions, I believe. That they won't, one assumes, does not mean they could not be.
Strangely enough, the Bush admin's own Justice Dept. suggested the same thing in 2002:
The White House's top lawyer warned more than two years ago that U.S. officials could be prosecuted for "war crimes" as a result of new and unorthodox measures used by the Bush administration in the war on terrorism, according to an internal White House memo and interviews with participants in the debate over the issue.One can now imagine (if somewhat utopianly) that Bush et al. will have a warrant issued by the Hague for prosecution for war crimes.
The concern about possible future prosecution for war crimes--and that it might even apply to Bush adminstration officials themselves-- is contained in a crucial portion of an internal January 25, 2002, memo by White House counsel Alberto Gonzales obtained by NEWSWEEK. It urges President George Bush declare the war in Afghanistan, including the detention of Taliban and Al Qaeda fighters, exempt from the provisions of the Geneva Convention.
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1 comment:
President Roosevelt, resolved in the face of the greatest economic crisis (and later military, in the face of millions of enemy troops in tanks and ships) the world had or has ever seen had the remarkable observation that fear itself was the true enemy. Is that less true today? Mr. Krauthmammer wrote: "1861. 1941. 2001. Our big wars -- and the war on terrorism ranks with the big ones." Really? The war from 1861 - 1865 cost nearly one million lives (3% of the US population), including more than half a million soldiers. The war that started in 1941 cost 37 million civilians and 25 million soldiers their lives, or about 3% of the population of _the whole world_. Both were resolved in five years. Al-Queda action has cost fewer than 5000 American lives, or less than 0.002% of the US population. Terrible, tragic, and something that cannot and will not be tolerated. I fully support as I think virtually all do, intelligent, comprehensive, and effective action against the _terrorists_, military, covert, political, diplomatic and otherwise.
However, comparing international terrorism to those wars just trivializes magnitude of the struggles that the US nation so conceived and so dedicated has endured; and it pays far to great homage to the terrorists to grant them status on par with the greatest threats our nation and our world respectively have ever had. In the American Civil war and then World War II, millions of soldiers fought for control of a nation and then of the world. The Al-Queda war against us, which started before 2001, is about terror, which is, DUH, the goal of the terrorists. And they can only win this war if we oblige them and act terrorized. Unlike the wars in 1861 and 1941 there is no chance, 0, that the enemy will occupy and control Richmond, Washington, London, Berlin, Paris, Moscow, or any other city.
In the Cold War, a struggle Mr. Krauthammer apparently feels is less "big" than the one against terrorism, we struggled for a society and world that was open and free with limited executive power and strong civil liberties against communism and the idea that societies should not have these characteristics. That struggle was backed by large armies and threat of utter and total annihilation. And in that struggle, we with our courts were able to maintain civil liberties. But that was the point; our society was better, stronger than a totalitarian one even though it was easier to spy on, even though (because) the political communist party was legal in America and was free to speak. The struggle against terrorism is much more like the cold war than WWII or the American Civil War; there is a need for military action, and it will go on for a long time and not clearly be just "over" with the surrender of an army or the capture of a capital, and the value of open western society will, with courage and a bit of wisdom, prevail because it is just better than a totalitarian one (theological or otherwise).
The terrorists can have success only to the extent they cause us to do foolish things, to change our society, allocate resources badly, to make western liberal democracy look bad in the eyes of a world that is steadily embracing it. For the love of freedom and open plural society we ought not encourage each other, as Mr. Krauthammers column does, to oblige the terrorists and be terrorized, and thus do foolish things in reaction to their provocations. Al-Queda cannot by force of arms take our rights away from us, or change the course or character of us, or of the march of history forward; will we let them terrorize us into doing it for them? Saith the Court, "no".
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