June 30, 2006


Did Bush commit war crimes?: Supreme Court's decision in Hamdan vs. Rumsfeld could expose officials to prosecution. (Rosa Brooks, June 30, 2006, LA Times)

Although the decision's practical effect on the military tribunals is unclear — the administration may be able to gain explicit congressional authorization for the tribunals, or it may be able to modify them to comply with the laws of war — the court's declaration that Common Article 3 applies to the war on terror is of enormous significance. Ultimately, it could pave the way for war crimes prosecutions of those responsible for abusing detainees.

Common Article 3 forbids "cruel treatment and torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment." The provision's language is sweeping enough to prohibit many of the interrogation techniques approved by the Bush administration. That's why the administration had argued that Common Article 3 did not apply to the war on terror, even though legal experts have long concluded that it was intended to provide minimum rights guarantees for all conflicts not otherwise covered by the Geneva Convention.

But here's where the rubber really hits the road. Under federal criminal law, anyone who "commits a war crime … shall be fined … or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death." And a war crime is defined as "any conduct … which constitutes a violation of Common Article 3 of the international conventions signed at Geneva." In other words, with the Hamdan decision, U.S. officials found to be responsible for subjecting war on terror detainees to torture, cruel treatment or other "outrages upon personal dignity" could face prison or even the death penalty.

Don't expect that to happen anytime soon, of course. For prosecutions to occur, some federal prosecutor would have to issue an indictment. And in the Justice Department of Atty. Gen. Alberto Gonzales — who famously called the Geneva Convention "quaint" — a genuine investigation into administration violations of the War Crimes Act just ain't gonna happen.

But as Yale law professor Jack Balkin concludes, it's starting to look as if the Geneva Convention "is not so quaint after all."

If you could find a Federal prosecutor who's willing to torch his own career, a prosecution of the President for being mean to terrorists would get him back over an 80% approval rating.

Posted by Orrin Judd at June 30, 2006 11:54 AM

Yes probably,

But the center left "SCOTUS "blogspot" points out that this is effectively the position of the Sup Ct, and prosecution is possible.

One probable outcome of this decision is that troops on the ground will be told to simply kill terrorists, as the court has no outlawed effective interogaion techniques.

Posted by: Bruno at June 30, 2006 12:16 PM

Scotus has simply made clear their position re: The Geneva Conventions. It binds the US and no one else. Obviously, this is intolerable and will cause the Conventions to be shelved by the adults in Congress. So goes it whenever one of the Legal/Elite Lefts positions is put to the test and examined closely.

Posted by: Pepys at June 30, 2006 12:29 PM

Over 80% OJ? Hardly, 65% tops. The moonbat brigades make up about 10% of the left now, and another 25% are so overcome with BDS that they'd rather naw off their own limbs than admit to approving of anything Bush does. The rest of America would love him for it though, not that he'd care. Bush is a man singularly unmoved by the opinion polls and "conventional wisdom".

Posted by: Robert Modean at June 30, 2006 12:45 PM

The entire Left is only 40% and only half are truly nuts.

Posted by: oj at June 30, 2006 12:49 PM

Now they just need to plant the question at a press conference and have the President say something to the effect of, "It the ICC wants to come get me, they know where to find me."

Posted by: David Cohen at June 30, 2006 1:44 PM

oj. We had one of those totally nuts ones here for an overnight stay. The hatred emanating from him was palpable. He just ranted to our stunned silence even going so far as demanding that someone please kill Bush. We were afraid to make eye connect, never mind engage him in a conversation, because we didnt want him to have a coronary at the dinner table.

His poor wife was mortified and finally was able to josh him down. We retired to the television set and watched a couple of episodes of Dog Whisperer which was neutral enough to not set him off again.

My husband and I were totally drained and couldnt get them out of the house fast enough after breakfast the next morning.

Posted by: erp at June 30, 2006 1:44 PM

erp: Visiting faculty, I suppose...

Posted by: b at June 30, 2006 1:54 PM


You were one of the last people I'd have pegged for "politically correct."

You should have induced the heart attack (stroke is more likely). Usually however, you can just get these people to shut up by standing up to them.

They are welcome to pass through Chicago anytime.

Dinner is on me.

Posted by: Bruno at June 30, 2006 2:08 PM

erp: No joke here--sounds like time for a phone call to the Secret Service. That'll teach him!

Posted by: Lou Gots at June 30, 2006 2:12 PM

All the more reason to renounce the Geneva Conventions. I even have a chant: Hay, Hay, Ho, Ho, terorrist rights have got to go.

Posted by: Bob at June 30, 2006 2:40 PM

Lou, you know, I did think of that. He's not faculty, it's even worse, before he retired, he was with the teamsters union in some capacity.

Actually his wife is a friend of mine from the time before history began and they were just passing through.

Bruno, you're right that I don't normally back off from a "reasoned debate," my motto being "Everybody's Entitled to My Opinion, but I draw a line at a demented person who may have a gun on him falling on my dining room table before the coffee cups are cleared . . . and my kids continue to wonder why we are loath to leave the bunker or invite others inside with us.

Posted by: erp at June 30, 2006 2:42 PM

Sorry OJ, but you obviously haven't been talking to those on the left as much as I have. They may only be 40%, but no more than a quarter of them would be willing to admit that being mean to terrorists is OK. Half would jump up and down demanding a special prosecutor and the last quarter would be busy preaching about the revolution.

Posted by: Robert Modean at June 30, 2006 3:15 PM


They're the most fun. Of course, they're also why The Wife doesn't take me to social functions.

Posted by: oj at June 30, 2006 3:17 PM



Posted by: oj at June 30, 2006 3:23 PM

We can only hope that Pelosi's statement of yesterday ("this decision is a triumph...") is on videotape. I'd like to see her explain to anyone outside of San Francisco how a Yemeni terrorist captured in Afghanistan or Pakistan is entitled to constitutional rights and a jury trial here in the US of A.

Her postition is probably a 20% view, if that. I doubt if more than 10 Democratic Senators would endorse it, and probably only 50 or so members of the House.

Posted by: jim hamlen at June 30, 2006 3:30 PM

oj. I don't blame her. She has to work in that environment.

Posted by: erp at June 30, 2006 3:36 PM

Family reunions at the Coffee Shop Cafe in McGregor, the nearest town to Crawford, are always interesting, especially since the owner keeps two life-sized cutouts of President Bush for tourists to pose next to. The more strident Democrats in the family tend to at best see one of the cutouts and try to move to a seat where they don't have to look at it; at worst, they spark a 5-10 minute tirade about how he's leading the country down the road to ruin.

As for the federal prosecutors, I suppose there may be one out there in the proper Blue State environment whose politics are based solely on what benefits them and with the idea they could boost their career who might think about trying it -- not that he/she would get very far before being fired by Gonzales, but it could earn them Cindy Sheehan-like martyr status among those who want Bush tried, convicted, drawn and quartered.

Posted by: John at June 30, 2006 3:46 PM

John, Yes, they would like nothing more than another "Saturday Night Massacre". Good God. These folks won't let go of their "Glory Days".

Posted by: jdkelly at June 30, 2006 8:15 PM