Is Bush A War Criminal?
Andrew Sullivan answers his own rhetorical question:
That question has troubled me for quite a while. The Hamdan decision certainly suggests that, by ignoring the Geneva Conventions even in Guantanamo (let alone in Iraq), a war crime has been committed. And in the military, the command structure insists that superiors are held accountable. I’ve been saying this for a long time now, and have watched aghast as the Bush administration has essentially dumped responsibility for war-crimes on the grunts at Abu Ghraib. The evidence already available proves that the president himself ordered torture and abuse and the violation of the Geneva Conventions. Now he has been shown to be required to act within the law, and according to the Constitution, his liability for war crimes therefore comes into focus.
Sullivan then goes on to cite a Cato Institute summary of Hamdan which notes that:
Both the majority and concurrence cite 18 U.S.C. § 2241, which Justice Kennedy stresses makes violation of Common Article 3 of the Geneva Convention a war crime punishable as a federal offense, enforceable in federal civil court. The majority holds, of course, that trying persons under the president’s military commission order violates Common Article 3 of the Geneva Convention, suggesting that trial is a war crime within the meaning of 18 U.S.C. § 2241. Furthermore, the majority stresses that the Geneva Conventions ‘do extend liability for substantive war crimes to those who “orde[r]’ their commission” and “this Court has read the Fourth Hague Convention of 1907 to impose ‘command responsibility’ on military commanders for acts of their subordinates.” The Court’s emphasis on the liability that attaches to “orders” is significant, because trials in the military commissions are, of course, pursuant to a direct presidential order. Even so, it’s difficult to imagine a circumstances in which charges under Section 2241 might actually be prosecuted.
To which Sullivan quips, “Difficult but not impossible.”
Well kids, it seems like Andrew Sullivan has now joined the ranks of the Rosie O’Donnell’s of the world that believe President Bush is a war criminal. And for some strange reason, I highly doubt that Sullivan is really all that “troubled” by his conclusion either.
For one, the passage from the Cato Institute summary of Hamdan that Sullivan quotes is taken completely out of context. It is from a section of the summary that outlines “what the Court didn’t decide” and specifically states that the question of whether “civil courts [can] hear claims raising violations of the Geneva Convention” remains “unanswered.” But not for Sullivan, apparently. Furthermore, how Hamdan brings President Bush’s “liability” for war crimes “into focus” is anyone’s guess. Sullivan is taking an already shaky argument (that Common Article 3 applies to terrorists) and conflating it with what was at issue in Hamdan with Sullivan’s own “torture” jihad against the Bush administration. And the result is one big pile of steaming self-reinforcing, factless B.S.
There are many serious issues to discuss in regard to Hamdan but the notion that it opened some magical door that will fulfill dreams of W being “tried at The Hague” is just not one of them.
UPDATE: I just read Rich Lowry’s take on Hamdan that I missed from yesterday. If you haven’t read it already, check it out. I think it’s a good summary of some of the major problems with the decision.
UPDATE (James Joyner): The Article 3 cite Sully and Cato give is a pretty thin reed, really. If “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples” is a criminal violation of the laws of war, Harry Truman is a criminal. If military tribunals authorized by Congress aren’t a “regularly constituted court,” neither were the Nuremburg Tribunals.
Further, if in fact the Geneva protocols are being applied to soldiers of the Iraqi army captured during the “major combat operations” phase, it’s not entirely clear that Article 3 even applies. It probably does not apply to captured terrorists or non-uniformed guerrillas in either Iraq or Afghanistan. M. Gandi has an excellent discussion of its scope. He notes, “The common article 3 is applicable to civil wars[13] and at the same time it is not applicable either to civil commotion or to the low intensity armed rebellion. It does not also apply to the guerrilla warfare tactics of terrorist groups[14].”
The prisoners at Gitmo are not entitled to the protections accorded soldiers under the Geneva Convention. Under Article IV, Section B, nontraditional armed forces are given EPW protection provided they meet several tests:
[a] That of being commanded by a person responsible for his subordinates;
[b] That of having a fixed distinctive sign recognizable at a distance;
[c] That of carrying arms openly;
[d] That of conducting their operations in accordance with the laws and customs of war.
None of the Gitmo detainees meet that test, which has remained unchanged since at least the Hague Conventions of 1899. Persons who become combatants by taking up arms by who aren’t members of an organized armed force, don’t wear easily identifiable clothing and insignia to distinguish them from noncombatants, or who otherwise flout the law of war (e.g., by using a protected facility such as a mosque for combat operations) are unprivileged belligerents or unlawful combatants (the terms are interchangable; the former term was the only one I’d seen in the literature until very recently). For example, American special forces or intelligence soldiers who don civilian garb in a combat zone for the purposes of blending in with the civilian population lose their protection as POWs.
The detainees in Iraq captured during the first phase of the war, who were fighting under the auspices of the regime and wearing the uniform of the Iraqi army, are lawful combatants and therefore entitled to protection as EPWs. So would insurgents if they met the tests above, which few of them do. (This is, by the way, in sharp contrast to the 1991 Gulf War, when all Iraqis captured were clearly EPWs under the Convention.)
While the distinction between lawful and unlawful combatants is important for a variety of reasons, we are still under an obligation to provide basic human rights protections to all detainees. Even the least protected class of unprivileged belligerents, those caught as spies, are entitled to basic due process and freedom from torture, although the exact level of protection to which they’re entitled is hotly disputed. Much of the literature cited by the ICRC and other activist groups are unratified “draft” conventions–proposals that were floated at various times but upon which no concensus was reached.
Greg, you are right in that as long as the war criminals have loyalists in the justice department they will never be brought to justice.
But that war crimes occured is certain. It is also certain that Bush authorized the crimes.
So what do we do from here? I say appoint an internationally recognized special prosecutor and give Bush and others a war crimes trial right here in the USA.
Here’s the Professor of International Law at Helsinki University on the subject:
Did we all get that? POW or civilian – there is no third category. And in either case those accused must be tried with the full panoply of justice applicable to their category – like the ability to challenge their accusers and evidence, cross-examine, not be physically abused to extract information, have a lawyer present, etc. etc. A third option transgresses the Geneva Conventions.
Now here’s where it gets really controversial.
International (and therefore U.S.) law is equally unequivocal about what we call a transgression of the laws of war, including the Geneva Conventions, by a signatory nation during a conflict – war crime. By international and U.S. law, the Nuremberg Principles then also apply – a commander is just as guilty as the person who actually comitted the crime, those who had the power of command to stop a crime they knew about but didn’t are equally culpable and “I was just following orders” is not a defense.
Issuing legislation from Congress to artificially create a pseudo-legality for the category of “enemy combatant” and for military tribunals which lack the full panoply of American justice would itself, then, be a conspiracy to contravene the Geneva Conventions and would, by the Nuremberg Principles (Principle VII), make every congresscritter who backed such a move likewise a war criminal.
And it doesn’t matter what the best political move is or what the public opinion polls say, this is about the law – of the world and the land – not domestic politics. That’s why John Yoo is out of gas when he says the Supreme Court has no authority to make the ruling they did and why Democrat spinners like Reed Hundt are just plain wrong when they advocate moving to the right of the Right and clamoring for legislation to allow military tribunals.
Bush, at this moment, has only two options which would keep his administration within international law – and no amount of domestic legislation can change that.
1) Stick with the Geneva Conventions and organise proper fair and open trials, either courts martial or civilian.
2) Withdraw the U.S. from the Geneva Conventions.
Regards, Cernig @ Newshog
The Geneva convention was not designed nor was it intended to deal with terrorist groups such as al-Qaeda. To extend the legal protect of the convention to those who do not recognize any internation law would, of itself violate that treaty, as it is supposed to protect both sides. To try to prosecute George W. Bush on war crimes charges would probably result in having about 50 million angry armed American citizens seeking our own form of justice on those who dare to try the President of the United States.
Leave it to the intense “Hate” that Ken has for Bush for him to agree that Bush is a war criminal.
Never mind other facts in the capture of those who want to destroy America and even Ken himself.
One has to think that Ken has a “Death Wish” for him to believe that Bush poses a greater danger to kens living or dying than does the terrorist.
In that those 5 members of the supreme court are the “Bastards of America” Ken must one of the “Bastards Compatriots”
If the terrorist win this war, Ken would most be likely to be one of the first to be beheaded because he would let his “Hate” guide his big mouth.
nope!
The question is not “whther Common Article 3 applies to terrorists”. The question is “whether Common Article 3 applies to people ACCUSED of being terrorists”. At this point the evidence is literally overwhelming that a large number of our detainees are literally complete innocents, that the Pentagon has known all along that they are innocents, and that it has been deliberately concealing that fact in order to make Rumsfeld look better:
http://www.washingtonmonthly.com/archives/individual/2006_02/008230.php
http://www.washingtonmonthly.com/archives/individual/2006_02/008244.php
http://www.washingtonmonthly.com/archives/individual/2006_06/009109.php
Calling the tribunals as constituted by Bush “kangaroo courts” would seem to be an insult to marsupials. Which, of course, shows once again — for the benefit of the alarming number of people who seem to be seriously intellectually impaired on this subject, including our host — why it is very unwise to give the President dictatorial powers in wartime (particularly when the “war” is virtually certain to run for decades), and why the Founders in reality did absolutely nothing of the sort.
Should one be at all surprized that people like Herb and others threaten violence against those who believe in American values and the rule of law? I say no. It is typical of those who put the narrow interests of the Republican Party above the interests of America to threaten violence. They do it all the time.
Conservatives declared war on America a long time aga and now that they are in power they continue, with the support of people like Herb, to destroy whatever was great and noble and worthy about my country.
Bush has no moral or legal aurthority to utilize torture. Yet that is exactly what he did. Both our laws and international laws make this a criminal act.
If Bush is not stopped Herb, where will the torture stop? Will it it stop at my door? Will it stop at your door? I know where you stand Herb. You would allow it to continue no matter how many people are tortured to death. I know where I stand. I stand for American values Herb, I stand in oppostion to you and your ilk who would turn my country into a totalitarian right wing fascist state.
Ken,
A bigger line of BS I have never seen posted before there is a word for what you suffer from it is called projection and it is part of a mental illness called BDS/Liberalism. I am a member of the armed forces of the United States I wear a uniform and carry arms openly and am easily identifiable, I also carry a Geneva conventions Identification card and my country is a signatory to the aforementioned convention if captured I am obligated to give name rank and serial number, I do everything I can including putting my own life in danger to avoid civilian casualties, during my tour in Iraq I did this willingly and without a bit of regret the enemy we are fighting does exactly the opposite they hide among civilians and their primary targets are civilians they live to do one thing and that is kill as many non Muslims and non Sunni Muslims as they can. Yet you and those like you would put me in the same category as the terrorists we are fighting I find that insulting to the extreme, you are a fool and as for torture name one person who has been tortured to death by Bush and the forces he Commands name one American citizen who has been harmed by the same, you can’t but I can name thousands that our enemy has done that to and all your BS moral posturing will not change that fact, you are on the side of the Isamofascists in this.
Why do you even respond to him. Over the period of time I have been on this blog you have not changed his mind. I say let him spew and enjoy the show
Very simply, yes. Will he ever be held to account? No, and yes. History will show the truth and serve up justice as it so fond of doing.
oldcrow,
I want to be sure to inform you in case you hear something contrary from someone else, regardless of how you may report to them:
From the President of the United States of American on down the chain of command no one has the authority to approve the torture or mistreatment of another human being. Once they are in your controll you will treat them according to the law or you will face the consequences no matter that George Bush might think otherwise. You might want to pass that on to your fellows in arms.
If you follow the laws, based upon American values, then you will do both your country and your service proud.
Bur remmember, no matter what Bush says, he does not have the authority to authorize the use of torture. He tried to claim he does and I feel sorry for those who believed him and on his word went ahead and committed war crimes. No matter their excuse they must be brought to justice as America can can ask of others no less than we demand of ourselves.
As someone sworn to defend the US constitition and the therefore the rule of law I would expect you to join me in condemning those in the chain of command who have betrayed our nations laws and either employed torture or approved of it. These are war crimes. There is no place in my Army, Navy, Air Force or Marines for people who are war criminals.
Carry on soldier.
Oh yea, Bush is a war criminal, up is down and the Kansas City Royals are teh rightful kings of MLB
When the US bombed the Chinese embassy in Yugoslavia did anyone blame Clinton? Goodness, I am so sick and tired of these whining, crybaby, children who refuse to play by the rules (Gore sued to try to overturn Florida’s vote) and then cry when they don’t get their way
Was Lincoln a war criminal for Fort Douglass?
Retarded argument, really, the kind you expect among dope-addled sophomores. Seriously, these are brain-damaged morons. Sullivan suffers early dementia
Dope-added sophomores.
Excuse me, former dope-addled sophomores then. They have graduated to positions of power where they now equate al-Qaeda with the United States.
Where are these al-Qaeda soldier’s uniforms? It is a violation of the Geneva Conventions to be caught without them. The penalty is death. That’s right. If Al-Qaeda is just an army covered by the Geneva Conventions, then they are in violation to be caught in civvies
But of course this is more manure from people who cannot accept the 2000 election results. This is a dangerous game to play at a time of war for two reasons. The first being the jeopardy one places on our own soldiers
The other jeopardy is the next president really will be a fascist. LBJ begat Nixon. Does the left ever learn?
Its support of Castro following its support of Stalin is proof that the left is not educable
Is there an example yet of Mr. Tinti adding anything to OTB that cut-and-paste from FOXNews.com wouldn’t accomplish?
While Sullivan did quote from the “what the Court didn’t decide” section, anyone who can read English can understand that the author found the opinion “quite suggestive” on the point that war-crime liability might attach.
Bush-hatred aside, here is a fact: if Bush ordered the torture of our prisoners, then he is a criminal, under U.S. law and under Geneva. Whether or not he did so is presently unknown, but the idea is not patently absurd, given the reports that Khalid Sheikh Mohammed and others were indeed tortured.
Sullivan is taking an already shaky argument (that Common Article 3 applies to terrorists)
It’s not a “shaky argument,” Mr. Tinti; it’s the law of the United States of America, as of last Thursday.
JJ, Steve Verdon, and others have provided examples of smart, balanced conservatism. Mr. Tinti is plainly not up to their level.
Lowry is one of the biggest scumbags ever. If he says X, it typically means ~X.
Ok, I skimmed his piece, and it’s crap. As usual. Here’s my quick summary of the jurisdictional question.
Re: a treaty with al-Qaeda: that’s, no joke, close to the dumbest thing I’ve ever heard. I’ll let Obsidian Wings take it away:
“In signing and ratifying those Conventions, we did not enter into a treaty with them. What we did was: to enter into a treaty that governs our conduct with respect not only to soldiers of countries that have signed and ratified the Geneva Conventions, but also with regard to other people. That does not mean that we have “a treaty with those people”, any more than the fact that the fact that members of the Kiwanis Club have Geneva protections means that each of the 71 state parties (pdf) to the Geneva Conventions has a treaty with the Kiwanis Club. To say that it does mean this is just dumb.”
Because it can’t be said enough: Lowry is that guy in 9th grade that couldn’t “get” algebra.
I think it�s a good summary of some of the major problems with the decision.
It’d be far more accurate to say: “it’s a summary of the vapid talking points we’ll hear on talking head shows and editorials.”
Hey LIBERALS!
Question for you:
Would you rather die from
a)Burning alive in a jet-fueled fire
b)Jumping to your death from 70 stories up or
c)Being beheaded while conscious by a terrorist using only his hands and a dull saw
The choice is yours, liberals!
Are our opponents in the war on terror entitled to Geneva convention protections? Well, Bush does keep reminding us that we are at war, so you can make a logical argument that the people we capture during the course of this war are indeed POW’s, in spite of the fact that they do not look like the enemy in say, WW2.
I don’t think that a terrorist is any more vile than the Nazi leaders we captured in that war or those who ordered the rape of Nanking or the Bataan death march. But we treated those bastards in a civilized manner after their capture. That is what moral high ground is about.
BTW, if we capture an Al-Qaeda agent who we know has knowledge of an imminent attack on the US, I have no problem at all with using any necessary means to break him. But we do need OVERSIGHT and checks and balances. If Bush is above the law, then this is not the America of the founding fathers.
Don Surber’s a terrorist.
Don,
I’m sure you’d like to defend that scurrilous charge, but we don’t let those accused of being terrorists defend themselves.
This is the USA after all.
mrgone; you’re wrong on this one.
Look, Greg…
It was a foregone conclusion that he was gonna come up with that. Sullivan speaking up against the bush administration is like the sun coming up in the morning. You know darn well it’s gonna happen. The guy has been butt kissing the far left since Gore. If the Bush the administration is for it it’s a Vice-Grip cinch that Sullivan will be against it. (So much for his vaunted open-minded fairness!
Make no mistake about it; those who claim they are “raising the bar for the rights of individuals” as regards giving these unaffiliated terrorists “rights” under the Geneva convention are twisting the convention into something that it was decidedly not intended to do. As Joyner points out:
So, why are these people so interested in making the conventions into something they’re not? Why, it’s the same reason that John Murtha refuses to wait until such time as all the facts are in before declaring our soldiers murderers. It’s the same reason that John Kerry and Martha and several others are saying we should cut and run. (And let’s cut the garbage, that really is what they’re calling for the denials of their leftist base notwithstanding.) They’re looking for a political foothold, against a strong United States. In the end, it’s really that simple and that direct.
In my view, the real crime being committed here, is against the United States by Kerry, Murtha, the Democrats as a whole… and their supporters… including Sullivan. They hate Bush so much they’re willng to risk their very country for a chance of damaging him.
There a word for that particular crime…
Starts with a “T”, I think. I don’t know.
Or, maybe it’s not a crime anymore?
Hey Ken:
The torture will stop after you, your kids, your wife and your entire family are beheaded by those who you uphold and want to protect. (Terrorists).
Why don’t you pull your head out and stop your “Hate Bush” words and attitude of giving “Aid and Comfort” to our enemy whose main objective is to kill every American, including you.
You must have some kind of a “Death Wish”
Are you people that stupid.
(Is bush a war criminal),
get a life .
Go read children’s books,You all talk dribble
Just like a bunch of babies.
And you people think your intellects
hahahahah
JJ writes: The Article 3 cite Sully and Cato give is a pretty thin reed, really.
Not when I click through the link you graciously provided & read this language, prohibiting
outrages upon personal dignity, in particular, humiliating and degrading treatment.
JJ falls back upon: It probably does not apply to captured terrorists or non-uniformed guerrillas in either Iraq or Afghanistan.
But CA3 applies to “persons … placed hors de combat by sickness, wounds, detention, or any other cause.” How to read that without including terrorists, etc., seems to me to be a challenged. Once they’re detained, CA3 kicks in. Mr. Gandhi’s opinion, based on a citation to a treatise, is interesting but does not appear to be more authoritative than the plain wording of the text.
See this post at Opinio Juris, reminding us that Congress incorporated CA3 in the War Crimes Act.
While we’re citing experts, here’s Geoffrey Corn, a law prof with some impressive military-justice experience:
It is amazing, really amazing, that the notion of treating even evildoers with basic human (and Christian) charity is so offensive to so many readers of this blog.
Not when I click through the link you graciously provided & read this language, prohibiting
outrages upon personal dignity, in particular, humiliating and degrading treatment.
And at what point did AQ sign onto the Geneva convention? Seems to me the conventions as originally drawn up have specific paragraphs in them regarding people who do not sign on to the conventions; they are not protected by the conventions.
So, why is it, that you’re attempting to make the conventions into something they’re not, Anderson?
have specific paragraphs in them regarding people who do not sign on to the conventions
Care to link to those?
The official commentary to CA3 is of course enlightening, and rather sad in places:
What Government would dare to claim before the world, in a case of civil disturbances which could justly be described as mere acts of banditry, that, Article 3 not being applicable, it was entitled to leave the wounded uncared for, to torture and mutilate prisoners and take hostages? No Government can object to observing, in its dealings with enemies, whatever the nature of the conflict between it and them, a few essential rules which it in fact observes daily, under its own laws, when dealing with common criminals.
The answer to the rhetorical question being, of course, “the United States of America.”
Much of the literature cited by the ICRC and other activist groups
It says a lot about the U.S.’s moral standing today that it seems unexceptional to smart people to refer to the *Red Cross* as an “activist group.” I knew that’s how, say, China would view them ….