Bush Administration War Criminals

David Cole:

The Hamdan decision, while not explicitly addressed to the question of interrogation, should resolve this debate. Common Article 3 of the Geneva Conventions, which the Court has now authoritatively declared applies to the conflict with al-Qaeda, requires that all detainees be "treated humanely," and protects them against "outrages upon personal dignity, in particular humiliating and degrading treatment." Moreover, the federal War Crimes Act makes it a felony, punishable in some instances by death, to violate Common Article 3 in any way. Thus, CIA and military interrogators are now on notice that any inhumane treatment of a detainee subjects them to prosecution as a war criminal. While they might be confident that the Bush administration would not prosecute them, they cannot be sure that a future administration would overlook such war crimes. And it is quite possible that government officials might actually decide not to commit war crimes — now that they know they are war crimes — even if prosecution is unlikely. (snip) In fact, the Court's decision further suggests that President Bush has already committed a war crime, simply by establishing the military tribunals and subjecting detainees to them. As noted above, the Court found that the tribunals violate Common Article 3, and under the War Crimes Act, any violation of Common Article 3 is a war crime. Military defense lawyers responded to the Hamdan decision by requesting a stay of all tribunal proceedings, on the ground that their own continuing participation in those proceedings might constitute a war crime. But according to the logic of the Supreme Court, the President has already committed a war crime. He won't be prosecuted, of course, and probably should not be, since his interpretation of the Conventions was at least arguable. But now that his interpretation has been conclusively rejected, if he or Congress seeks to go forward with tribunals or interrogation rules that fail Article 3's test, they, too, would be war criminals.