Supreme Court Strikes Fear
Reprimanded by the Supreme Court, the Bush administration rushes to
evade punishment
by Nat Hentoff
August 20th, 2006 11:26 AM
International-human-rights lawyer Scott Horton, upsetting Bush's
three-card-monte game
photo: Tina Zimmer
The interrogations of prisoners now condemned by the Supreme Court were
ordered by policy makers at the highest levels of the administration—who
could be prosecuted under the U.S. War Crimes Act of 1996. Scott Horton,
chairman of the New York City Bar Association's Committee on
International Law and adjunct professor, Columbia Law School
In June, the Supreme Court ( Hamdan v. Rumsfeld) placed commander in
chief Bush and the top of his policy-making chain of command in jeopardy
for the treatment of their suspected-terrorist prisoners in Guantánamo,
Iraq, and Afghanistan and elsewhere.
So much has happened since June—the Middle East war, the civil war in
Iraq, and the plot to blow up multiple U.S.-bound passenger planes—that
most Americans have only a hazy idea of this Supreme Court decision that
blew up the administration's grand strategy for extracting information
from its prisoners around the world by any means necessary.
But quietly, in fear of that ruling, the administration has drafted two
changes—in the War Crimes Act and in our treaty obligations under the
Geneva Conventions—to foreclose any prosecutions of the Bush high
command. The goal is to get these amendments passed by the
Republican-controlled Congress before the midterm elections that could
put the Democrats in control of the Senate or otherwise significantly
increase their power in Congress as a whole.
Says Eugene Fidell, president of the National Institute of Military
Justice: "This bill can . . . in effect immunize past crimes. That's why
it's so dangerous." As Fidell also told the Associated Press, the intent
is "not just protection of [high-level] political appointees but also
CIA personnel who led interrogations"—including in their secret prisons.
Here, specifically, is how the Bush high command is trying to escape the
consequences of the Supreme Court's stinging reprimand. One proposed
amendment would forbid any prisoner to use the Geneva Conventions as a
source of rights in any American court. But—as National Public Radio's
Ari Shapiro points out—the administration's lawyers claim that this
restriction "does not affect the obligations of the United States under
the Geneva Conventions." Huh? I'd like to see White House press
secretary Tony Snow handle that yo-yo if anyone in the White House press
corps knows enough to ask the question.
The second amendment the Bush team wants Congress to push through would
change our War Crimes Act, which calls for the prosecution in our
civilian courts of those who commit war crimes. The amendment would
exclude from prosecution those who've violated a section in the War
Crimes Act that references this language from Article 3 of the Geneva
Conventions prohibiting "at any time and in any place whatsoever . . .
outrages upon personal dignity, in particular, humiliating and degrading
treatment." (This would also expunge the much publicized language of the
McCain Amendment to the Detention Treatment Act of 2005.)
International-human-rights lawyer Scott Horton—to whom military lawyers
at Guantánamo went early on to protest the administration's rigged
interrogation rules there—told me: "This amendment would continue to
allow waterboarding, hypothermia [subjecting prisoners to freezing
temperatures], and other severe sufferings that have also led to deaths
of prisoners. These amendments are part of a fog machine to keep the
policy makers safe from prosecution."
Furthermore, indicating the boundless duplicity of this administration,
the amendment to the War Crimes Act—bypassing the abuses forbidden by
that law, the Geneva Conventions, and now the Supreme Court of the
United States—excuses any of these crimes that have been committed since
September 11, 2001! Anyone who has ordered or perpetrated "humiliating
and degrading" treatment since then gets off scot-free.
All the official lawlessness since 9-11—now even overruling a Supreme
Court decision—makes chilling a recent, little-publicized speech by
Justice Anthony Kennedy on August 5 before the American Bar Association:
"The rule of law must be binding on all government officials; it must
respect the dignity, equality, and human rights of every person, and it
must guarantee people the right to enforce the law without fear of
retaliation."
If these administration amendments—mocking the American rule of law—are
passed by Congress and, of course, signed by this president, who
believes he is the law, they will be fought in court by a host of
constitutional lawyers, including Scott Horton. When the case gets to
the Supreme Court, I hope Justice Anthony Kennedy remembers the speech
he made this summer while Bush's lawyers were setting up their
three-card-monte game.
Among the lawyers joining Scott Horton in opposition will be David Cole
of the Georgetown University Law Center, already a premier litigator
against the administration's unilateral revision of the Constitution. In
the August 10 New York Review of Books, during a penetrating guide to
the Supreme Court's landmark Hamdan v. Rumsfeld decision, Cole points out:
"The Court's decision further suggests that President Bush has already
committed a war crime, simply by establishing the military tribunals [at
Guantánamo] and subjecting detainees to them [because] the Court found
that the tribunals violate Common Article 3 [of the Geneva
Conventions]—and under the War Crimes Act, any violation of Common
Article 3 is a war crime."
What the Supreme Court said about those sham tribunals, which ignored
American military law as well as the Geneva Conventions, was that
according to the Geneva Conventions, prisoners' sentences must be handed
down "by a regularly constituted court" that "provides all the judicial
guarantees recognized as indispensable by civilized peoples."
The homicidal terrorists— not only Al Qaeda—who constitute our enemy
are, as Colin Powell said soon after 9-11, engaged in what could be an
endless war against civilization. What keeps this nation civilized, so
far, is our ability to expose and combat this administration's
uncivilized evisceration of U.S. and international law.
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