Bush Cabal Running Scared from War Crimes Charges

One of the legal consequences for the Bush administration in the wake of the recent Supreme Court decision on Hamdan is that the decision posed the possibility that the Bush cabal could face charges of war crimes.

At the time, I raised this possibility. But the legal community was divided on the issue. Now we know that the Bush White House thinks that it might face war crimes charges for its treatment of detainees ....

The Washington Post reports:

An obscure law approved by a Republican-controlled Congress a decade ago has made the Bush administration nervous that officials and troops involved in handling detainee matters might be accused of committing war crimes, and prosecuted at some point in U.S. courts.

Senior officials have responded by drafting legislation that would grant U.S. personnel involved in the terrorism fight new protections against prosecution for past violations of the War Crimes Act of 1996. That law 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.

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.

On this issue JB at the Balkinization blog has some keen insights. S/he remarks:

Thus, the Administration is now moving in two related directions. On the one hand, it wants a "clarified" standard for what constitutes war crimes, which really means that it wants a standard far weaker than Common Article 3 of the Geneva Conventions. After all, it's hard to argue that "shocks the conscience" is a particularly bright-line test. At the same time, the Administration has made noises that it still regards the War Crimes Act as potentially unconstitutional when applied to persons acting under orders from the Commander-in-Chief. And all the while, the Administration has continued to insist that the most egregious forms of prisoner mistreatment or abuse were not authorized or ordered by anyone higher up in the Administration, but rather was solely the result of a few bad apples or rogue elements acting completely without authorization-- that the Administration has always treated detainees humanely, and therefore has always acted within the boundaries of Common Article 3.

So the Administration position, post-Hamdan, is that Congress should excuse Americans (and Administration officials) from liability for possible war crimes, either because the act is unnecessary-- since we have always acted humanely except for a few bad apples who didn't take orders from the Administration-- or because it is necessary-- since the Administration has in fact ordered people to violate Common Article 3. Finally, if Congress does nothing, the President will continue to take the position that the War Crimes Act may be unconstitutional as applied to him and to persons acting on his orders. (That unitary executive stuff comes in real handy!)

And what about those bad apples who were acting completely on their own? Well, there's the rub, you see. If any of them is ever prosecuted under the War Crimes Act, their most likely defense will be that they weren't really bad apples after all, but were actually following orders of the Administration-- the same Administration that insists that it has always treated its detainees humanely. And if a jury were to find that they believed this defense, it would be a bit-- shall we say-- embarrassing for the Administration. So to minimize the risk of any such embarrassments, the Administration would prefer that even the bad apples don't get prosecuted under the War Crimes statute.

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