White House Behind Bars
A few weeks ago, the Supreme Court ruled in Hamdan v. Rumsfeld that the Guantánamo military tribunals violate the U.S. Constitution, the Geneva Conventions and the laws of war. It was a landmark decision, but the court did not address whether anyone may be held criminally liable for these violations. Not only should those responsible for violating these laws be criminally charged, charges should be filed against those in the highest levels of government.
Even before the Supreme Court decision, legal grounds existed for bringing war crimes charges against members of the Bush administration and the military. The court’s ruling merely strengthened the case. It is clear from recent news detailing efforts by the Bush administration to enact a “shield” against war crimes prosecutions for “officials and troops involved in handling detainee matters,” that administration officials know this.
The basis for any criminal case against the architects of the Guantánamo tribunals and other illegal acts related to the “war on terror” rests on the Geneva Conventions and laws of war—which were incorporated into domestic federal law by the 1996 and 1997 War Crimes Act (18 U.S.C. 2441). These laws provide that any member of the U.S. armed forces or any U.S. national who commits a war crime may be fined or imprisoned for a term as long as life and may even be subject to the death penalty if death resulted from the violation. War crimes are broadly defined as “grave breaches” of Geneva or violations of Geneva Common Article 3, as well as violations of various parts of the Hague Convention IV, Respecting the Laws and Customs of War on Land.
There is no excuse for lawyers, commanders, or high government officials to claim ignorance of either the existence or meaning of these long-standing laws and long-ratified treaties. All possible targets of a criminal prosecution are public servants bound by oath to protect and uphold the Constitution and the laws of the U.S., including treaties. Knowledge of their duties and the laws to which their duties apply must be seen as required by their offices, and the War Crimes Act provides the means for prosecution.
Members of the Bush administration, in particular, may have violated the Geneva Conventions in several ways—not just by the military tribunals themselves. The transfer of detainees to Guantánamo and other detention centers (including the CIA “black sites”), the manners and methods of interrogation (torture), and the detentions without “the rights of a fair and regular trial,” all may constitute violations of Geneva.
Some or all of these acts may be considered “grave breaches” of the Geneva Conventions. These include: “willfully causing great suffering or serious injury to body or health . . . willfully depriving a prisoner of war” or other person under the power of the detaining authority “of the rights of fair and regular trial,” and “unlawful deportation or transfer or unlawful confinement.”
Some acts may also violate Common Article 3 of the Conventions—which the Supreme Court relied on in its recent decision—prohibits “cruel treatment,” “humiliating and degrading treatment,” and “passing of sentences . . . without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”Targets Of Prosecution
Of course the big question here is who should be held liable for these violations of Geneva? There are several possible classes of criminal targets in a war crimes investigation:
(1) the lawyers in the Justice Department’s Office of Legal Counsel and the White House, who advised the administration that the Geneva Conventions could be ignored and counseled it on how to do it;
(2) the military commanders and officers who sanctioned and carried out (or ordered subordinates to carry out) these violations; and
(3) the top officials who authorized the violations.
Ultimately, the buck stops with the president, who—although he cannot be indicted while in office—could be impeached for high crimes and misdemeanors, including war crimes.
In Hamdan, the Supreme Court did not address violations other than for the establishment of the military tribunals—nor, of course, did it address whether there was any intent on the part of officials to purposefully violate the law. But it did rule that Geneva and the laws of war apply in the “war with al-Qaida” and the U.S. is thus bound by them.
Several legal scholars have documented how members of the Bush administration approached the dismantling of the law in a deliberate and intentional manner. Scott Horton, an adjunct law professor at Columbia University who teaches international law, submitted an expert report to the German Parliament in January 2005, for a case that had been brought in German courts against Rumsfeld and other American officials. According to Horton, government officials “viewed all legal limitations on their dealings with detainees . . . with contempt and ridicule” and “worked consistently to undermine and render inoperative the implementation” of Geneva and the laws of war.
Horton argues that former Attorney General John Ashcroft was “complicit in a scheme for the commission of war crimes.” Also, that current Attorney General Alberto Gonzales was “the principal author of the scheme to undertake war crimes, having expressly noted in his January 25, 2002, memorandum that he was motivated by a well-founded fear of war crimes prosecution, which he sought to evade for the benefit of himself and others in the administration.”
Echoing Horton’s findings, Jordan Paust, a former Army captain, U.S. Army Judge Advocate General’s Corps and law professor at the University of Houston, writes that there was a “'Common Plan' to violate the 1949 Geneva Conventions” that “involved at least those responsible for ‘the Department of Justice . . . formal legal opinion’” by the Justice Department Office of Legal Counsel. The legal opinion concluded Geneva did not apply, adding that the OLC’s “interpretation of this legal issue is definitive”—meaning that nobody else’s opinion would be considered. It also means that they are ultimately responsible.Defenses
The Justice Department's OLC lawyers would undoubtedly argue they were merely providing advice and that such advice is protected by the Sixth Amendment, attorney/client confidentiality, and/or professional obligations. The Sixth Amendment protects the right to legal representation in a criminal trial, not in advising government. And these privileges—attorney/client confidentiality—generally belong to the client, not to the advising attorney.
While legal ethics require attorneys to represent their clients “zealously,” there is no ethical or legal duty that permits lawyers to provide advice on how to violate or avoid laws. Indeed, such action is specifically prohibited by rules of professional responsibility. A lawyer can have his license suspended or even be disbarred for breaking these rules—particularly when breaking these rules means breaking the law—and every lawyer knows it, including the ones who work for this administration.
OLC lawyers not only failed to caution against violating the laws; these attorneys actively advised the administration to break the law. Apparently, too, this advice was “endorsed by top lawyers in the White House, the Pentagon and the vice president’s office,” according to The New York Times.
Administration officials, in turn, would be likely to argue they acted upon legal advice given in good faith, but it is clear that those who authorized the detentions, interrogations, and tribunals all were aware of the legal issues surrounding their establishment—most particularly because the OLC memos “addressed possible war crime responsibility and designs for attempted avoidance of international criminal responsibility.”
Nor may military commanders or officers absolve themselves. Because all military personnel are required to know the laws of war, including Geneva, they cannot claim to be ignorant either of authorizations from above or the actions of officers below (for whose acts the commanders retain “command responsibility”), or of the illegality of violating Geneva, since the Uniform Code of Military Justice and military “field manuals” embody Geneva and require adherence.
Moreover, Geneva—which was signed by Truman in 1949 and ratified with the advice and consent of the Senate by Eisenhower in 1955—explicitly contains clauses that require all parties to “respect and to ensure respect for [Geneva] in all circumstances,” further requiring each party to “enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed” any grave breach of Geneva.
Under Geneva, there is no form of immunity for such violations either. Geneva states that no party “shall be allowed to absolve itself . . . of any liability incurred.” And if that were not enough, the Nuremberg Charter, which grew out of the Holocaust and remains in full force as a treaty, exhorts: “The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility.” This means that neither the White House nor Congress may simply grant themselves—or others—immunity to get out of this problem. Withdrawing from such long-standing and widely accepted treaty law would be a major and unwise undertaking, but, in any case, officials may not write themselves an exemption into an already signed and ratified treaty. Again, treaties are the law.How Can Charges Be Brought?
Military prosecutors may bring charges against commanders or officers in military courts martial. However, given the history of the Abu Ghraib military investigations—evidence of shielding of higher officials, and the rule of looking down, not up, the chain of command—military prosecutions of high level command authorities are unlikely at the moment.
It is also unlikely that a Republican-dominated Congress would vote to establish a commission to investigate a Republican administration for war crimes and just as unlikely that the Justice Department will take up the case or that it will appoint a special independent prosecutor to do so. The expiration of the Independent Counsel Act in 1999, which provided a mechanism for appointment of independent counsel by a special judicial panel, forecloses the possibility of an independent counsel being appointed without Justice Department sanction. A re-enacted Independent Counsel Act could resolve some of the constitutional questions of the expired Act and would at least provide a mechanism for checking a criminal administration.
Obviously another way to provide a “check” on government actions is by having an opposition party in power. The November elections may change this situation, but there are other alternatives that shouldn’t hinge on the Democrats gaining power.
Judges are bound by oath to uphold the law, just as officials are. Should a federal judge issue an order called a “writ of mandamus ” to compel the Justice Department to appoint a special prosecutor, Justice would have to respond. Alternatively, any federal prosecutor could determine there was probable cause to bring charges. Of course, as attorney Mike Papantonio—who, with Robert F. Kennedy, Jr., recently filed a law suit against Diebold for voting machine fraud—notes: “The problem with injunctive relief, or [a writ of] mandamus , or prohibition-type writs, is it all comes down to politics.”
Horton is similarly pessimistic about accountability being achieved through the normal channels. Horton says that he “formed the opinion that no such criminal investigation or prosecution would occur in the near future in the United States for the reason that the criminal investigative and prosecutorial functions are currently controlled by individuals who are involved in the conspiracy to commit war crimes.”
How do you get public officials to bring charges when they are involved in, may be tainted by, or owe their office to corrupt officials at the highest levels of government? “They won’t. You have to move outside of that political realm,” says Papantonio.
So, the Kennedy law firm resorted to another option: a “qui tam ” lawsuit brought under the Civil False Claims Act—also called “the Whistleblower’s Law.” The provision allows private citizens to file a suit in the name of the U.S. government charging fraud by government contractors and other entities that receive or use government funds.
The qui tam option may have more traction, but there is yet one further option that concerned citizens may want to consider: public outcry to bring these criminals to justice and return our nation to the rule of law.Jennifer Van Bergen
August 03, 2006
Jennifer Van Bergen is a journalist with a law degree. Her book The Twilight of Democracy: The Bush Plan for America has been called a “primer for citizenship.” She can be reached at email@example.com.