George W Bush: War Criminal

[Vyan]

In their 5-3 decision yesterday in the Hamdan v Rumsfeld case, the Supreme Court may have just established a determination that Amnesty International has been long looking for and Albert Gonzales has worked hard to avoid.

They made it official : George W. Bush is a War Criminal.

Oh, he may at this time be unindicted, untried and unconvicted - but make no mistake - the court has made it clear that he is a criminal.

In the Majority Opinion Justice Stevens stated:

Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan ’s commission trial are illegal.

The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949.

In his concurring opinion Justice Kennedy brought it home:

Article 3 of the Geneva Convention (III)Relative to the Treatment of Prisoners of War,Aug. 12,1949,<1955 > 6 U..S.T.3316,3318,T.I.A.S.No.3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law.See id.,at 3316. By Act of Congress,moreover, violations of Common Article 3 are considered “war crimes,” punishable as federal offenses,when committed by or against United States nationals and military personnel. See 18 U.S.C.§2441. There should be no doubt,then,that Common Article 3 is part of the law of war as that term is used in §821.

The core of the decision, as written by Stephens is here:

Hamdan is entitled to the full protections of the Third Geneva Convention until ad-
judged,in compliance with that treaty,not to be a prisoner of war;and that,whether or not Hamdan is properly classified as a prisoner of war,the military commission convened to try him was established in violation of both the UCMJ and Common Article 3 of the Third Geneva Convention because it had the power to convict based onevidence the accused would never see or hear.

The Court did not find that Hamdan or other detainees would have to be tried in civilian court, only that the Special Secret Tribunals that have been setup by President Bush are not authorized under current U.S. Law (the UCMJ) and also violate our treaty as a member of the Geneva Conventions.

It is quite possible that Hamdan would have to be tried in a normal "Courts Marshall" styled Tribunal, or that Congress could amend the UCMJ to allow for the presentation of secret evidence with a new class of tribunals and carve out part of the UCMJ so as to be severed from Geneva, and thus make the current Tribunal structure established for Al Qaeda and Taliban members "legal" -- but that isn't the only hurdle to be crossed.

Much has been made of the arguement that Geneva is an international law, and supposedly unenforceable with the U.S. But that isn't strictly true as Article VI of the U.S. Constitution makes clear.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Under this article it could be argued that International Treaties made by the United States are in fact - U.S. Law. With or without this interpretation however, it is now clear that the President has indeed violated U.S. Law, specifically the 1996 War Crimes Act under 18 USC § 2441, which exists in supplement to the Geneva Conventions and states:

The law applies to "U.S. officials" and that punishments for violators "include the death penalty,"

The article defines "War Crimes" :

(1) as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or

(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

Early on the War on Terror Alberto Gonzales had noted this law and as White House Council had advised President Bush to refuse to recognize that "Enemy Combatants" had standing under the Geneva Conventions, not simply because they weren't members or agents of a signatory state - but simply because doing so would put the President at Risk for violations of this law. As Reported by Michael Isikoff for Newsweek.

It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 ," Gonzales wrote. The best way to guard against such "unwarranted charges," the White House lawyer concluded, would be for President Bush to stick to his decision--then being strongly challenged by Secretary of State Powell-- to exempt the treatment of captured Al Qaeda and Taliban fighters from Geneva convention provisions. "Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution," Gonzales wrote.

It is now clear that this artful dodge has failed, and the Supreme Court has fully established that persons such as Hamdan, who may not officially be "Prisoners of War" until such a determination is made via judicial proceeding, are indeed covered by the Conventions, and that their treatment is protected under the War Crimes Act.

Furthermore, these memos by Gonzales indicate premeditation of the intent to violate 18 USC § 2441, several months before his request for the Bybee Torture Memos, which the ACLU in their own suit against Donald Rumsfeld contends was the first link in a chain which has led systematic abuse of detainees at Gitmo, Abu Ghraib, Bagram AFB in Afghanistan, Extra-odinary Rendition, Secret Prisons and the notorious Task Force 6-26.

In all these areas - BUSH. HAS. VIOLATED. THE. LAW.

In addition to the War Crimes issue, there is also the NSA Domestic Spying issue - which the President and Justice Dept have claimed were given life by the Authorization to use Military Force against Al Qaeda and the Taliban in Afghanistan. But SCOTUS would appear to have thrown some severely cold water on that idea.

Neither the AUMF nor the DTA can be read to provide specific,overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President ’s war powers, see Hamdi v.Rumsfeld ,542 U.S.507,and that those powers include authority to convene military commissions in appropriate circum stances,see,e.g.,id.,at 518, there is nothing in the AUMF ’ s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ.

Without having specific and detailed authorization by Congress to try Hamdan outside of the standard proceedures of UCMJ and/or without an appropriate update to the UCMJ, the court has found the trial to be illegal. It only follows that they would also find the Presidents claim of authority to wiretap International calls without judicial review to be similarly illegal, particular since the 2002 Hamdi decision specifically required a role for the courts. In Hamdi...

JUSTICE O ’CONNOR,joined by THE CHIEF JUSTICE,JUSTICE KENNEDY,and JUSTICE BREYER,concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

The "neutral decisionmaker" would be a Judge. The kind of judge that can also issue warrants.

The real issue and question is - will Bush even care? At this point in time, he has deliberately broken the FISA Statutes as well as the War Crimes Statute, so what does he have to lose by essentially ignoring the court? Is this Congress going to hold him accountable? Even though the NSA program has been openly revealed - it continues on without any changes yet made by Congress to the existing law. Senator Russ Feingold suggests the rather mild remedy of a censure and it dies on the vine. Bush hasn't even shifted his stride and he continues to trample on Civil Rights.

Sen Bill Frist (and part-time remote viewer) has already begun work on legislation to make the Secret Tribunals legal, so why should Bush do anything to bother abiding by the law, the Constitution or the Geneva Conventions?

Perhaps because this decision has opened the President up to a veritable avalanche of court challenges for his policy. In my original presumption and post before reviewing the detail of the case, I had worried that future cases of this type would not be able to be filed by Gitmo Detainees because of the Levin-Graham Amendment to the Anti-Torture Bill, but it appears that at the very top of their decision the Court Considered this question, and rejected it. This means that the door is wide open for future detainee suits.

Unless Justice Stephens dies or retires, Bush is unlikely to win any of these challenges in the future. At a certain point the realization that this President is a criminal will eventually begin to dawn on the American people - and they will have to force Congress's hand to take action.

It may not happen in time for the end of his Presidency, but it's only a matter of time - hopefully, it won't be too late.

Vyan

[watrwefitinfor]

1. This is an exceptional post & should be read carefully by all. K & R

Thank you.

Wat

[eShirl]

2. K&R

"...all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

If a treaty supercedes any thing in the Constitution, it supercedes any of Bush's claims of supposed Constitutional authority to disregard that treaty.

Rut roh!

[Disturbed]

3. The entire Bush Junta are War Criminals.

Congress will never charge them. In fact, I predict thatCongress will pass a Bill that will allow the Bush Regime to do what they want to do. That Bill will have many Dems signing on to it.

[Vyan]

34. It's all Law, the Constitution AND Treaties

which constitute the "Law of the Land", Article VI doesn't suggest that the treaties supercede the law or constitution - it simply says they ARE the Law.

Vyan

[Cronus Protagonist]

4. Yup. The members of his entire cabinet are war criminals

Do conspiracy laws apply? In any case, Free Republic supports traitors and a war criminals, as do the "free press".





Educate A Freeper - Flaunt Your Opinions!
http://brainbuttons.com/home.asp?stashid=13

[leveymg]

5. Further, torture is an unpardonable crime. If U.S. Courts don't prosecute

other countries are obligated to arrest and try those responsible for violations of the UN Convention Against Torture. See, http://www.dailykos.com/story/2006/2/24/13644/9576

WHY PARDONS WON'T MATTER: The Convention Against Torture
by leveymg
Fri Feb 24, 2006 at 10:06:43 AM PDT
Even here at DKos, few of us really understand how high the stakes truly are for members of the Administration to keep control over Congress, the White House, the federal courts, and ultimately, the military. In the starkest possible terms, many ranking officials are facing the near-certainty of long periods of imprisonment even if Bush grants a presidential pardon to everyone.

They are playing for keeps, and may never allow a peaceful transfer of power. Let me tell you why.

leveymg's diary :: ::
THE UN CONVENTION AGAINST TORTURE AND THE U.S. TORTURE ACT OF 2000

In 1987, the United Nations Convention Against Torture (CAT) came into force. The United States Senate ratified the CAT in 1994 and President Clinton signed the Torture Act of 2000. 18 U.S.C. §§ 2340, 2340A, and 2340B. That law provides domestic teeth with enabling legislation that penalizes anyone convicted of ordering, inciting, assisting or committing torture forbidden by the treaty. That felony statute provides for 20 years imprisonment for a U.S. person committing a torture crime, with the potential death penalty if the act results in death of the victim. American military personnel are subject to similiar measure under the Uniform Code of Military Justice. See, http://en.wikipedia.org/.... ; also, see, http://www.humanrightsfirst.org/....

The CAT treaty binds all 140 signatory states to arrest and try at the Hague anyone who violates the torture convention if the state in which the offense took place is either unable or unwilling to do so. There are no exceptions for perpetrators who have received pardons or amnesties from their own governments. It matters not at all whether this Administration refuses to acknowledge the jurisdiction of the International Court of Justice at the Hague. It is now clear that U.S. officials have committed offenses under the convention, as well as other crimes against humanity, and a trial cannot be prevented except by force.

"THE MEMO"

Just before the media sand storm about U.S. ports blanketed the news earlier this week, The New Yorker magazine published another of its extraorinary articles about the crimes of state that have marked the Bush-Cheney era. On February 20, the on-line version of that magazine's February 27 issue appeared. It contained an article by Jane Mayer with the ominously simple title, "THE MEMO". The subtitle reads, "How an internal effort to ban the abuse and torture of detainees was thwarted." It is long, but absolutely required reading. It finally gives the details about the papertrail that was created by Pentagon lawyers that leads from Abu Ghraib directly to Defense Secretary Donald Rumsfeld as well as dozens of ranking officials at the Defense and Justice Departments. See, http://www.newyorker.com/... .

Mayer's article lays out the roadmap of evidence by which either the domestic or international torture prosecution of Rumsfeld, Wolfowitz, Gonzales, Yoo, and the others will inevitably have to follow.

A useful accompanying piece by Pat_K appeared at DU earlier this morning. In addition to providing a good synopsis of the major points in Mayer's piece, it gives a comprehensive Guide to Key Players, that will be particularly helpful for those who have not been closely following the Abu Ghraib and Extraordinary Rendition stories. See, http://www.democraticunderground.com/....

PROSECUTION UNDER US LAW

The organization Human Rights First provides a good primer on the subject. HRF outlines the three relevant statutes under which domestic prosecutions of Iraq war crimes could take place (link above):

The Torture Act of 2000
18 U.S.C. §§ 2340, 2340A, and 2340B

SNIP

The Torture Act makes it a federal crime for any U.S. national (or anyone later found present in the United States) to commit torture or conspire or attempt to commit torture outside the United States. Crimes under the Torture Act are punishable by fine and/or imprisonment up to 20 years; or, if the victim dies, by life imprisonment or death.

Although the Torture Act is intended to implement the United States' treaty obligations under the Convention Against Torture (which the United States ratified with certain reservations in 1994), there are some important differences between the definition of "torture" under U.S. law and the concept of torture in the Convention, particularly with regard to "mental pain or suffering," which is more narrowly defined in the Torture Act.

The Torture Act defines "'torture' an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." The law then limits the scope of "severe mental pain or suffering" to mean "prolonged mental harm" resulting from (i) the intentional infliction or threatened infliction upon the victim or a third person of "severe physical pain or suffering"; (ii) the administration or threatened administration upon the victim or a third person of "mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality"; or (iii) the "threat of imminent death" of the victim or a third person. Unlike the U.S. law, the Torture Convention does not require that mental harm be "prolonged," nor does the Convention limit the types of causes for mental harm.

Most non-U.S. nationals fall outside the jurisdiction of the Torture Act, since it only applies to suspected torturers who are U.S. nationals, or who are later found physically present in the United States. Conduct prosecuted under the Torture Act need not, however, be linked to armed conflict, nor must the accused have any connection to the military. As with MEJA and the War Crimes Act, there have been no completed trials under the Torture Act"

In addition to The Torture Act, there is a second US felony statute under which Bush-Cheney officials could be prosecuted for human rights offenses in Iraq.

The War Crimes Act of 1996
18 U.S.C. § 2441

"The War Crimes Act provides federal jurisdiction over prosecutions for "war crimes," which the law defines as "grave breaches" of the 1949 Geneva Conventions, violations of Common Article 3 to the Geneva Conventions, and certain other offenses. These so-called "grave breaches" can include offenses against noncombatants, or surrendered or injured combatants, involving "willful killing, torture or inhuman treatment . . . willfully causing great suffering or serious injury to body or health."

The Act applies whether the crimes are committed "inside or outside the United States," and whether the "person committing such war crime...is a member of the Armed Forces of the United States or a national of the United States." (It does not apply to non-citizens or nationals of the United States.) The statute also applies if the victim is in one of these categories. War crimes committed in the course of declared or undeclared armed conflicts, or during military occupation, are covered by the Act."

Finally, HRN states that civilian contractors working for the US military could be tried for abuses under the The Military Extraterritorial Jurisdiction Act of 2000 (MEJA), 18 U.S.C. §§ 3261 - 3267. The full range of offenses and a detailed explanation of the crimes alledged have been committed by and with the complicity of the the Defense Secretary are laid out in a civil suit filed by Human Rights Now and the American Civil Liberties Union. See, the Amended Complaint of January 5, 2006, http://www.humanrightsfirst.info/....

SNIP

[The Wizard]

26. They say

The Hague is very nice in the fall.

[saigon68]

6. He is also a Chimpanzee

[mom cat]

7. Kudos for your detailed, systematic and enlightening synopsis of a very

complex situation. I think that you have nailed it. I would love to go to the Hague to hear the "guilty" verdict in person.

[Name removed]

12. Deleted message

Message removed by moderator. Click here to review the message board rules.

[leesa]

13. I see. WE have a right to invade and murder THEM, but they can't fight

back. I remember. We be Americans! It's Sooooo much more humane to fry them with white phosphorous and napalm then to quickly behead them.

[greenbriar]

15. oh goody, a toy

can we play with this freep?

[LoKnLoD]

19. Um...

YOU ARE NOT SERIES!?!?! THIS RULING IS HUGH!!!!

Decider doesn't get to decide everything. That is what the Constitution states. Why don't you read it once.

Why don't you go enlist for Lord George and go get the ones who beheaded Nick Berg?

[gratuitous]

21. Ignorant and wrong is no way to go through life

Amnesty International's mission isn't to comment on, protest, or prosecute individual crimes. That's why they didn't weigh in on, for example, Pat Tillman's murder.

Just so you know, this is what their mission is, as copy-and-pasted from their website:

"AI’s mission is to undertake research and action focused on preventing and ending grave abuses of the rights to physical and mental integrity, freedom of conscience and expression, and freedom from discrimination, within the context of its work to promote all human rights."

You see anything there about individual crimes? Me neither. Perhaps you'd best do some research next time before jumping on an organization for not doing what you think they should be doing, and jumping like a puppet because the Supreme Court has now ruled that George W. Bush is guilty of war crimes.

We'll see you in your next incarnation, middleRoad. Good-bye.

[Pacifist Patriot]

25. Except that even though that isn't their mission, they did issue ...

a statement condemning Berg's beheading. middleRoad didn't even bother to look and see what AI may or may not have said. A google search for "Amnesty International, Berg" took me right to the press release.I suspect middleRoad won't be around long with these kinds of standards.

[gratuitous]

30. Ah thanks

I did a search in AI's website, and apparently it links only to their current articles and press releases. I guess I should add "as unable to use a computer as me" to my list of middleRoad's shortcomings.

[IndependentVoice]

22. Ah i get it, our lives are worth more because were Americans

Or is it because we are white? Its hard to tell with people like you. Don't forget we are over there UNDER FALSE PRETENSES ALREADY so think before you talk freeper boy

[Pacifist Patriot]

24. This is what they said!

http://web.amnesty.org/library/index/engMDE140212004

You might want to engage in a little fact checking before spewing your idiocy. Amnesty International has issued statements every single time a case of torture was exposed.

Personally, I find your modifier offensive. The men responsible are sick bastards and terrorists. Period.

[IndependentVoice]

27. good bye disrupter

You did a terrible job BTW

[The Wizard]

28. "The only thing

you'll find in the middle of the road are yellow stripes and dead armadillos."
Special thanks to Jim Hightower

[The Brethren]

31. apparently you did miss a lot

What did your beloved chimp do during all of the sadistic be-headings including Nick Bergs, when bushie could have intervened on their behalf??? That's right, not a DAMN THING.

If there are puppets among us, it's bush supporters like yourself.

[leveymg]

33. Dubya can share a cell at The Hague with the head of Al-Qaeda in Iraq --

whomever that might be today. Bush can also share the same cell with his remaining arm, torso and the piece of foot that wasn't pulverized by 500 pound bombs.

See, at DU we're very fair and even-handed about these things. :evilgrin:

[Vyan]

35. What do you mean by "Nothing"?

This is what they said.

Amnesty International condemns in the strongest terms the abduction and beheading of an American civilian by an armed group, Muntada al-Ansar, in Iraq - a video of which was released yesterday. The organization is appalled by the public display of the victim's execution by the group.

The killing of prisoners is one of the most serious crimes under international law. It is a war crime, and if part of a deliberate and systematic attack against a civilian population, it would also constitute a crime against humanity.

"Such acts are unjustifiable under any circumstances and constitute a serious crime under international law. Those responsible should be brought to justice in line with international standards," said Amnesty International.

A video posted on a website yesterday supposedly showed 26-year-old Nick Berg, an American businessman, being beheaded by the group. The group said his death was revenge for the ill-treatment of Iraqi prisoners by American soldiers in Iraq.

Vyan

[XForce]

8. The World Courts.....

and many us should support any and all actions taken against this Bush regime for it's war crimes. If the rest of America would only wake up they'd 'hang em high' for all they have done to our own country and Constitution.

Outstanding post Vyan!!

[DoYouEverWonder]

9. The implications of this Supreme Court decision

are mind boggling.

Hopefully this decision will be seen has a major turning point in US history.

[paparush]

10. K&R This is POWERFUL STUFF!!

[emald]

11. now the real wars begin

if anyone thinks that bush etal will walk away from power to prison they are mistaken. These people have lied and warred time and again. It is time for this missadministration to be in prison. All of them. Sicko jerks. firing squad would be better.

[OzarkDem]

14. Thank you! Bookmarked

Very good analysis.

[madrchsod]

16. nothing is going to happen to him

or his gang. sounds good but that is about it.

[kentuck]

17. You mean he can't be executed ??

Too bad.

[dpbrown]

18. I wish I could agree with your assessment...

...but the enabler Congress will do anything they can to ex post facto legalize Bush's crimes, just as they have done with the wiretapping.

"We the People" have been betrayed by our elected officials.

[IndependentVoice]

23. Its we the people when we come together who have the real power

even though Bush is slowly taking them from us, we have to stop waiting for congress to do something, they are not and they won't anytime soon. All they can do anymore is point the finger at him and call him out but its not doing us any good. We have to do something ourselves if they won't.

[The Brethren]

32. yes we have.

We've been betrayed, lied to and violated by our own President and by our Congress.

[Vyan]

36. You're right...

unless we Change the Congress!!!

Vyan

[AndyTiedye]

48. Congresss is Being Blackmailed

[Roland99]

20. Great review of the decision.

[tbyg52]

29. I am so tired of the "do over" people....

Like Frist. It's getting real monotonous. Bush broke the law. Change the law. Bush broke the law. Change the law. Bush broke the law. Change the law. Bush broke the law. Change the law. Bush broke the law. Change the law. Bush broke the law. Change the law.

[leveymg]

37. Send Bush to Jail. Change the Lawmakers. Send Bush to Jail . . .

Okay, send the lawmakers to jail, too. Cunningham, Nye, Frist, Hastert, and a couple dozen more . . .

[tbyg52]

38. Say....

"Congress shall pass no ... ex post facto laws." Period. Not ex post facto laws that make innocent people guilty. *Nor* ex post facto laws that make guilty people innocent. NO EX POST FACTO LAWS, PERIOD!

[Vyan]

39. Thanks Everyone!

I appreciate the support after staying up until almost 3am working on this. I also have a version of it up on Dailykos with some updates that could use a little attention.

Vyan

[SteppingRazor]

40. K&R ... mind if I stick this on my blog?

I'll credit you, of course :hi:

[Vyan]

41. Go for it

but most of the typos were corrected and updates made on This Version. DU doesn't let you update after an hour, and I was dead-tired by 4am.

Vyan

[SteppingRazor]

42. Was planning on linking directly to your blog anyway...

no offense to DU or nuthin', but when someone comes up with something like this, I like to send some traffic their way.

[Major Hogwash]

43. Great post. Very well written and right to the heart of the matter.

The Supreme Court could not find any law as a precedent for Bush in order for Bush to break the law.

[El Fuego]

44. Excellent! K&R!

[Kurovski]

45. Recommended & bookmarked.(nt)

[Time for change]

46. Great post - the best case I've heard yet for putting Bush where he belong

I pray that can be done prior to the inauguration of a new President. I am so hopeful that with a Democratic avalanche in 06 some very high powered investigations (including impeachment) will begin to take place.

[mb7588a]

47. Aren't the enemy combatants held

under the PATRIOT Act?

Isn't that what all of the people at Gitmo are?

Congress passed the PATRIOT Act.

Of course I could be entirely wrong, and some are not being kept/tried as enemy combatants.

[Vyan]

49. No,

the Patriot Act affects methods which can be used by Regularly Law Enforcement (FBI, DOJ and such) to detect and capture potential terrorists, it says nothing about how those person will be detained or how they will be tried by the Military.

Vyan

[twaddler01]

50. So where is the impeachment now? K&R

:eyes:

[zippy890]

51. excellent, thanks

quite well written

:dem: