US Diary: on the Supreme Court's decision against Bush and his idea of military commissions trying terrorists

1. Did Bush commit war crimes?
Supreme Court's decision in Hamdan vs. Rumsfeld could expose officials to prosecution.
By Rosa Brooks

THE SUPREME Court on Thursday dealt the Bush administration a stinging rebuke, declaring in Hamdan vs. Rumsfeld that military commissions for trying terrorist suspects violate both U.S. military law and the Geneva Convention.

But the real blockbuster in the Hamdan decision is the court's holding that Common Article 3 of the Geneva Convention applies to the conflict with Al Qaeda — a holding that makes high-ranking Bush administration officials potentially subject to prosecution under the federal War Crimes Act.

The provisions of the Geneva Convention were intended to protect noncombatants — including prisoners — in times of armed conflict. But as the administration has repeatedly noted, most of these protections apply only to conflicts between states. Because Al Qaeda is not a state, the administration argued that the Geneva Convention didn't apply to the war on terror. These assertions gave the administration's arguments about the legal framework for fighting terrorism a through-the-looking-glass quality. On the one hand, the administration argued that the struggle against terrorism was a war, subject only to the law of war, not U.S. criminal or constitutional law. On the other hand, the administration said the Geneva Convention didn't apply to the war with Al Qaeda, which put the war on terror in an anything-goes legal limbo.

This novel theory served as the administration's legal cover for a wide range of questionable tactics, ranging from the Guantanamo military tribunals to administration efforts to hold even U.S. citizens indefinitely without counsel, charge or trial.

Perhaps most troubling, it allowed the administration to claim that detained terrorism suspects could be subjected to interrogation techniques that constitute torture or cruel, inhuman and degrading treatment under international law, such as "waterboarding," placing prisoners in painful physical positions, sexual humiliation and extreme sleep deprivation.

Under Bush administration logic, these tactics were not illegal under U.S. law because U.S. law was trumped by the law of war, and they weren't illegal under the law of war either, because Geneva Convention prohibitions on torture and cruel treatment were not applicable to the conflict with Al Qaeda.

In 2005, Congress angered the administration by passing Sen. John McCain's amendment explicitly prohibiting the use of cruel, inhuman or degrading treatment of detainees. But Congress did not attach criminal penalties to violations of the amendment, and the administration has repeatedly indicated its intent to ignore it.

The Hamdan decision may change a few minds within the administration. Although the decision's practical effect on the military tribunals is unclear — the administration may be able to gain explicit congressional authorization for the tribunals, or it may be able to modify them to comply with the laws of war — the court's declaration that Common Article 3 applies to the war on terror is of enormous significance. Ultimately, it could pave the way for war crimes prosecutions of those responsible for abusing detainees.

Common Article 3 forbids "cruel treatment and torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment." The provision's language is sweeping enough to prohibit many of the interrogation techniques approved by the Bush administration. That's why the administration had argued that Common Article 3 did not apply to the war on terror, even though legal experts have long concluded that it was intended to provide minimum rights guarantees for all conflicts not otherwise covered by the Geneva Convention.

But here's where the rubber really hits the road. Under federal criminal law, anyone who "commits a war crime … shall be fined … or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death." And a war crime is defined as "any conduct … which constitutes a violation of Common Article 3 of the international conventions signed at Geneva." In other words, with the Hamdan decision, U.S. officials found to be responsible for subjecting war on terror detainees to torture, cruel treatment or other "outrages upon personal dignity" could face prison or even the death penalty.

Don't expect that to happen anytime soon, of course. For prosecutions to occur, some federal prosecutor would have to issue an indictment. And in the Justice Department of Atty. Gen. Alberto Gonzales — who famously called the Geneva Convention "quaint" — a genuine investigation into administration violations of the War Crimes Act just ain't gonna happen.

But as Yale law professor Jack Balkin concludes, it's starting to look as if the Geneva Convention "is not so quaint after all."


2. What Geneva Means to Hamdan
By Aziz Huq (From TomPaine.com)

The Supreme Court's ruling last week in Hamdan that military commissions erected at Guant√°namo are inconsistent with our military law and the Geneva Conventions has already prompted fierce-and flawed-debate. One key question, especially relevant in next week's Judiciary Committee hearings on Hamdan, is whether and how the Geneva Conventions apply to military commissions. The many factually and legally incorrect assertions clogging the air make it worth stepping back to understand what Geneva does, and why it matters for our success against the terrorist threat.

Overheated rhetoric on Geneva began within hours the court's decision. Summing up the criticism, the Wall Street Journal argued that it was deeply improper to give terrorist suspects the same rights as American servicemen. The Journal contended that prosecutions of suspected terrorists would compromise the president's ability to act with "speed and decisiveness." These criticisms rest, however, on misconceptions about Geneva and ignorance about the workings of our military justice system.

The United States and other nations negotiated the Geneva Conventions in August 1949, as World War II's aftermath smoldered around them. America's negotiators, Raymond Yingling and Robert Ginnane, had a clear mission: To secure clear rules placing out of bounds the kind of abuse and torture American soldiers captured by Japan had suffered. The negotiators must have known of the Ofuma interrogation center, where American soldiers where were subjected to solitary confinement, blindfolding and stress positions such as the "Ofuma crunch": an excruciatingly painful position that involves "standing on the ball of your foot, knees half bent and arms extended over the head." The four Conventions thus contain literally hundreds of detailed provisions, not only preventing this kind of abuse, but also reaching food rationing, barracks arrangements, and even sports.

Geneva's intricate rules, however, govern only the treatment of persons who are no longer fighting, and only in times of armed conflict. They say nothing about combat decisions: weapons used, tactics employed and strategic goals selected. Geneva focuses solely on those "hors de combat": The wounded, captured and civilians; the shepherd who inadvertently strayed onto the battlefield. Geneva imposes no constraint on the military's use of force, or its "speed and decisiveness," as the Journal misleadingly suggested. It kicks in only once the fetters are securely fastened on prisoners.

Further, President Harry S. Truman signed, and the Senate ratified, the Geneva treaties knowing full well that they applied only in "armed conflicts" (including both conflicts between two states and conflicts involving only one state). The White House and the Congress entered into the treaties-and even made "grave breaches" of Geneva violations of American criminal law-knowing full well that Geneva's restrictions applied only when American servicemen's lives were at stake. Every time Geneva kicks in, it is because American soldiers are in the line of fire. Equally, every time American soldiers walk into battle, they know that an intricate and detailed web of legal protections shield them from abuse and ill-treatment.

But didn't the Supreme Court hold that these detailed rules about sports and food rationing apply to alleged al-Qaida and Taliban members as well as to U.S. forces? Isn't the Journal correct to say that American soldiers and alleged al-Qaida member captured on the Afghan battlefield are being equally ranked? Absolutely not. A captured American soldier and an alleged al-Qaida member picked up during combat are almost certainly subject to different rules and protections, and the Court's ruling did not change that. It is the Journal's failure to understand Geneva that fosters confusion.

Geneva protects the American soldier in two ways. First, he is entitled to "combatant immunity." That is, he cannot be tried for his acts as a soldier, carrying and using a gun, killing others. Second, because he is a "lawful combatant" under Geneva, he benefits from more than one hundred detailed rules for the treatment of "Prisoners of War," or POWs, that are listed in the Third Geneva Convention. These are the rules on food rations, barracks arrangements, and sports Yingling and Ginnane negotiated in 1949.

But the al-Qaida fighter likely gets neither benefit if he has not followed Geneva's demanding rules for POW entitlement. If the al-Qaida member fails to meet these rules-and there's a reasonable argument many of them did fail-they do not rank as POWs, and do not obtain the benefits of that status, including combatant immunity. The al-Qaida fighter, in other words, can be tried and convicted criminally as a result of his failure to follow the laws of war. Unlike the American service member, the al-Qaida fighter is not a "lawful" combatant under Geneva.

But Geneva is a comprehensive framework for everyone captured in warfare. Hence, it has a minimal baseline standard for any person captured during wartime, a baseline that precludes "[o]utrages upon personal dignity, in particular, humiliating and degrading treatment," and also criminal trials outside of a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." This is "Common Article 3."

"Common Article 3"-so-called because it appears in each of the four Conventions-is the point beyond which no nation can go without losing its claim to dignity and honor. Geneva's drafters (including the United States), President Truman, and the U.S. Senate concluded that the limit on torture and unfair trials formed such bare essentials.

It is solely Common Article 3 that was at issue in Hamdan. It was solely this irreducible floor that the Supreme Court found applied to military commission procedures as a matter of Congress's command. The court simply did not hold that members of the Taliban rank automatically with U.S. soldiers, or that they benefit from "combatant immunity."

Further, there is good cause-in strictly counter-terrorism terms-to apply Common Article 3 to alleged members of the Taliban and al-Qaida. It is generally believed around the world that many of those detained at Guant√°namo are in fact innocent of all connection with either the Taliban or al-Qaida. It is hard to imagine how a trial that does not respect "the judicial guarantees which are recognized as indispensable by civilized peoples" could convince others that Guant√°namo detainees are properly detained. Unfair trials will make it more difficult to win the ideological battle at the heart of counter-terrorism.

Common Article 3 is especially important now because there is real doubt about whether substantial numbers of Guant√°namo detainees have any connection to al-Qaida or the Taliban. Geneva tells states to take the common-sense measures of holding swift hearings on the battlefield to distinguish combatants from those swept in accidentally. But the administration decided to forego these essential procedures "to make a point-that the president can designate them all enemy combatants if he wants to." Congress and the American public are still slowly learning that Guant√°namo detainees are in fact innocent of all conduct, that we have been frittering away our money, manpower and reputation not on the "worst of the worst," but on shepherds and farmers because the administration declined to sort the innocent from the guilty.

In any case, we know that "military necessity" has nothing to do with resistance to Common Article 3. As Jane Mayer recently explained in the New Yorker, military lawyers were wholly excluded from the rule-making process for military commissions. One military lawyer called the commissions "a political stunt. The administration clearly didn't know anything about military law or the laws of war." Those who knew most about "military necessity," in short, played no role in the decision to deviate from Common Article 3.

Adherence to Common Article 3, in line with the Supreme Court's decision in Hamdan, is thus not the blow to counter-terrorism measures that the Journal claims. It is a necessary, eminently practical tool in a difficult, long-term battle. It is the line we cannot cross without losing our claim to moral and political leadership. And it is a standard we fall short of at our own risk.

(Aziz Huq directs the Liberty and National Project at the Brennan Center for Justice. He is co-author of Unchecked and Unbalanced: Presidential Power in Times of Terror (New Press, 2007), and recipient of a 2006 Carnegie Scholars Fellowship.)


3. The Next Gitmo? -- by William Fisher

In the aftermath of the Supreme Court decision canceling the blank check President Bush gave himself, the Bush administration may finally be forced into trying to get Congress to pass legislation establishing a Constitutional way to bring Guant√°namo Bay detainees to trial - or free them.

But it may also find itself having to deal with another huge headache: the prisoners we don't know about.

These are the people held at Bagram airbase in Afghanistan, and in the CIA's so-called "black sites" in Eastern Europe and elsewhere.

The Pentagon chose Guant√°namo because they thought it was a law-free zone beyond the reach of the US justice system, and they now know that is unacceptable. And that, according to the Court's decision, means they were also wrong about prisoners they now hold in other overseas locations.

As long as prisoners are under US control, they are subject to the same protections as the Supreme Court has now said must be afforded to those at Gitmo.

The Supreme Court ruled that the military tribunals set up by President Bush were unlawful because Congress hadn't expressly authorized the administration to establish them. The justices also said the tribunals violate the 1949 Geneva Conventions governing the treatment of war prisoners and the Uniform Code of Military Justice, which guarantees such protections as the right to be present at trial. Lawyers for detainees said this may allow all of the 450 inmates held at Guant√°namo access to federal courts, which until now have refused to hear their cases.

But the Supreme Court has now made the issue a lot broader than Guant√°namo. US military and intelligence services continue to carry out interrogations in other locations, including at the US base at Bagram, Afghanistan, where, according to news sources, "interrogators are sometimes able to use more aggressive and creative tactics in questioning detainees than their counterparts at Guant√°namo Bay can employ."

If human rights groups can be believed, there are some 500 people held at Bagram alone. As far as we know, these prisoners have been designated as "enemy combatants" and some have been held for as long as three or four years without access to lawyers or information about the charges against them, and with only hit-or-miss reviews of their status.

Even since New York Times reporters Tim Golden and Eric Schmitt first exposed Bagram, the subject has received virtually no public attention.

Golden and Schmitt wrote, "Some administration officials acknowledge that the situation at Bagram has increasingly come to resemble the legal void that led to a landmark Supreme Court ruling in June 2004 affirming the right of prisoners at Guant√°namo to challenge their detention in United States courts."

They added, "Bagram has operated in rigorous secrecy since it opened in 2002. It bars outside visitors except for the international Red Cross and refuses to make public the names of those held there. From the accounts of former detainees, military officials and soldiers who served there, a picture emerges of a place that is in many ways rougher and more bleak than its Cuban counterpart. Men are held by the dozen in large wire cages, the detainees and military sources said, sleeping on the floor on foam mats and, until about a year ago, often using plastic buckets for latrines. Before recent renovations, they rarely saw daylight except for brief visits to a small exercise yard."

The Times reported that the detainee population at Bagram rose from about 100 prisoners at the start of 2004 to as many as 600 at times last year, according to military figures. The increase was in part the result of a Bush administration decision to shut off the flow of detainees into Guant√°namo after the Supreme Court ruled that those prisoners had some basic due-process rights under United States law.

A number of detainees are known to have died in US custody in Afghanistan. American military investigations have determined that homicide was the cause of death in four of them. The cause of death of the others remains undetermined. Nor is it known how many others may have died in US-controlled military camps, known as Forward Operating Bases, in other Afghan areas where conflict was taking place.

Bagram has often been described by the US military as a temporary "screening center" from which some detainees would be released and others transferred to Guant√°namo. But as Guant√°namo became a lightning rod for worldwide criticism of Bush administration detention policies, transfers to Cuba were cancelled.

In recent months, there have been increasing press reports describing physical and psychological mistreatment of those who are being interrogated.

In contrast to the detention center at Guant√°namo Bay, where military lawyers, news reporters and the Red Cross received occasional access to monitor prisoner conditions and treatment, the CIA's overseas interrogation facilities are off-limits to outsiders, and often even to other government agencies.

In addition to Bagram, prisoners from Afghanistan and other countries were believed to be detained at two other facilities in Afghanistan - "the Salt Pit" in Kabul and "the Discotheque," north of Kabul. With these two facilities now closed, Bagram has become the main detention site.

In addition, the US is believed to house detainees in what Dana Priest of the Washington Post described as the CIA's "black sites," and on Diego Garcia, an Indian Ocean island leased by the US from Britain.

The hundreds of detainees currently held in these US-controlled facilities have no recourse to human rights safeguards such as the right to challenge their arrest or detention. Some have been detained without charge or trial for extended periods, without access to lawyers or relatives.

The International Committee of the Red Cross has been able to visit detainees in Bagram, but not in other unacknowledged places of detention.

US military commanders in Afghanistan have also refused to let a United Nations' human rights investigator visit "secret" American prisons there or interview detainees, despite widespread reports of abusive practices, including torture.

The Egyptian-born UN official Cherif Bassiouni issued a report critical of US and other coalition human-rights abuses. Shortly after that, the UN eliminated his position, reportedly under pressure from Washington to change his mandate to investigate the US military.

The indefinite, incommunicado or virtually incommunicado, and arbitrary detention of these people may in itself amount to cruel, inhuman or degrading treatment and leaves them at risk of further ill-treatment and torture during interrogations.

In all these locations, the CIA and its intelligence service allies are free from the scrutiny of military lawyers steeped in the international laws of war, and thus have the leeway to exert physically and psychologically aggressive techniques, according to national security officials and US and European intelligence officers.

"Stress and duress" techniques reportedly described by US national security officers include keeping prisoners standing or kneeling for hours in black hoods; binding them in awkward, painful positions; depriving them of sleep with 24-hour lights; subjecting them to loud noises; "softening up" by beating; throwing them blindfolded into walls; and depriving wounded prisoners of adequate pain control medicines.

Brad Adams, Asia Director for Human Rights Watch, says that the US "appears to want to sweep human rights problems in Afghanistan under the carpet." The Supreme Court has now ruled that unacceptable.

In the Supreme Court decision, one of the justices in the majority, Stephen Breyer, said, "Nothing prevents the president from returning to Congress to seek the authority he believes necessary."

So the administration and Congress will have to act, though precisely how they will act is unclear. There is always a possibility that the White House may persuade Congress to craft a law that makes just enough changes in US detention policies to satisfy the Supreme Court's decision, but that largely endorses what the president has been doing all along.

That is also how Congress may deal with the "warrantless wiretaps" carried out by the National Security Agency. It may simply change FISA, the Foreign Intelligence Surveillance Act, to legalize what the administration is already doing.

This approach may allow an election-year Congress to crow about reclaiming its rightful power as one of the three coequal branches of our government, and restoring the checks and balances the framers of the Constitution considered so important.

But it will do nothing to force Congress to exercise the rigorous oversight the framers had in mind. Bashing "activist judges" is a lot easier.

We can live in hope, but meaningful oversight is unlikely to happen as long as one political party controls the White House and both houses of Congress.

(William Fisher has managed economic development programs in the Middle East and in many other parts of the world for the US State Department and USAID for the past thirty years. He began his work life as a journalist for newspapers and for the Associated Press in Florida. Go to The World According to Bill Fisher for more.)