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 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.”
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.