'Little Doubt That Court Is Concerned Admin's Policies = Potential Crimes'

[kpete]

Sunday, October 08, 2006
When Lawyers Are War Criminals

Scott Horton

Can I learn about this and just sit at the table in my heated apartment and drink tea? Don't I establish my complicity simply by doing nothing? What will I say in the future, when someone asks me: and what did you do during this time?"

- Helmuth von Moltke, in a letter to his wife, Oct. 19, 1941

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The Bush Administration apparently assumed that the court system would toe the political line they had drawn. It was clearly taken by surprise when the Supreme Court, in Hamdan, knocked the legal props out from under the Administration's detainee policy, validating the positions taken by the senior legal officers of the nation's uniformed military services and the State Department, which had opposed the Administration on this grounds. The Hamdan decision presents a straight-forward interpretation of the Geneva Conventions, finding that Common Article 3 was applicable to detainees in the War on Terror who did not qualify for prisoner of war protections. This position is also identical to the view embraced by the organized bar in the United States in 2003, in a series of reports that warned the Administration that its legal reasoning was both radical and isolated. But the most striking aspect of the Court's opinion was its forceful and repeated references to the War Crimes Act of 1996. There is little doubt that the Court was concerned that the Administration's policies were not just inconsistent with Geneva, but in fact potentially criminal under American law.

The Administration's response was to propose the Military Commissions Act of 2006, the thrust of which was to attempt to amend the War Crimes Act into oblivion and to make the amendment retroactive. When it became clear that the Administration could not muster a majority for this legislation in the Senate, the Administration entered into a compromise with Senators McCain, Warner and Graham, who had specifically flagged and objected to this effort.

I want to ask today: What has this legislation done to the legacy of Nuremberg? Has it granted impunity to persons who committed war crimes? Is that impunity effective, and might it have unintended consequences?

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Impunity

The Military Commissions Act seeks to accomplish its objective of granting impunity through three tools. First, it redefines "war crimes" into a series of specifically chargeable offenses, of which two, "torture" and "cruel treatment" are most important for these purposes. Second, it makes the restatement of these crimes retroactive to September 11, 2001. Consequently, a series of criminal offenses under the War Crimes Act will disappear retroactively when the Act goes into force. Third, it strips courts of jurisdiction over habeas corpus petitions and forbids litigants to cite the Geneva Conventions and related international and foreign law in those courts, in an effort to blind the courts to the law which the Constitution obligates them to enforce.

excellant read and lots more info and answers on this:
http://balkin.blogspot.com/2006/10/when-lawyers-are-war-criminals.html
http://balkin.blogspot.com/2006/10/when-lawyers-are-war-criminals.html