Supreme Court Strikes Fear

Reprimanded by the Supreme Court, the Bush administration rushes to evade punishment

The interrogations of prisoners now condemned by the Supreme Court were ordered by policy makers at the highest levels of the administration—who could be prosecuted under the U.S. War Crimes Act of 1996. Scott Horton, chairman of the New York City Bar Association's Committee on International Law and adjunct professor, Columbia Law School


In June, the Supreme Court ( Hamdan v. Rumsfeld) placed commander in chief Bush and the top of his policy-making chain of command in jeopardy for the treatment of their suspected-terrorist prisoners in Guantánamo, Iraq, and Afghanistan and elsewhere.

So much has happened since June—the Middle East war, the civil war in Iraq, and the plot to blow up multiple U.S.-bound passenger planes—that most Americans have only a hazy idea of this Supreme Court decision that blew up the administration's grand strategy for extracting information from its prisoners around the world by any means necessary.

But quietly, in fear of that ruling, the administration has drafted two changes—in the War Crimes Act and in our treaty obligations under the Geneva Conventions—to foreclose any prosecutions of the Bush high command. The goal is to get these amendments passed by the Republican-controlled Congress before the midterm elections that could put the Democrats in control of the Senate or otherwise significantly increase their power in Congress as a whole.

Says Eugene Fidell, president of the National Institute of Military Justice: "This bill can . . . in effect immunize past crimes. That's why it's so dangerous." As Fidell also told the Associated Press, the intent is "not just protection of [high-level] political appointees but also CIA personnel who led interrogations"—including in their secret prisons.

Here, specifically, is how the Bush high command is trying to escape the consequences of the Supreme Court's stinging reprimand. One proposed amendment would forbid any prisoner to use the Geneva Conventions as a source of rights in any American court. But—as National Public Radio's Ari Shapiro points out—the administration's lawyers claim that this restriction "does not affect the obligations of the United States under the Geneva Conventions." Huh? I'd like to see White House press secretary Tony Snow handle that yo-yo if anyone in the White House press corps knows enough to ask the question.

The second amendment the Bush team wants Congress to push through would change our War Crimes Act, which calls for the prosecution in our civilian courts of those who commit war crimes. The amendment would exclude from prosecution those who've violated a section in the War Crimes Act that references this language from Article 3 of the Geneva Conventions prohibiting "at any time and in any place whatsoever . . . outrages upon personal dignity, in particular, humiliating and degrading treatment." (This would also expunge the much publicized language of the McCain Amendment to the Detention Treatment Act of 2005.)

International-human-rights lawyer Scott Horton—to whom military lawyers at Guantánamo went early on to protest the administration's rigged interrogation rules there—told me: "This amendment would continue to allow waterboarding, hypothermia [subjecting prisoners to freezing temperatures], and other severe sufferings that have also led to deaths of prisoners. These amendments are part of a fog machine to keep the policy makers safe from prosecution."

Furthermore, indicating the boundless duplicity of this administration, the amendment to the War Crimes Act—bypassing the abuses forbidden by that law, the Geneva Conventions, and now the Supreme Court of the United States—excuses any of these crimes that have been committed since September 11, 2001! Anyone who has ordered or perpetrated "humiliating and degrading" treatment since then gets off scot-free.

All the official lawlessness since 9-11—now even overruling a Supreme Court decision—makes chilling a recent, little-publicized speech by Justice Anthony Kennedy on August 5 before the American Bar Association:

"The rule of law must be binding on all government officials; it must respect the dignity, equality, and human rights of every person, and it must guarantee people the right to enforce the law without fear of retaliation."

If these administration amendments—mocking the American rule of law—are passed by Congress and, of course, signed by this president, who believes he is the law, they will be fought in court by a host of constitutional lawyers, including Scott Horton. When the case gets to the Supreme Court, I hope Justice Anthony Kennedy remembers the speech he made this summer while Bush's lawyers were setting up their three-card-monte game.

Among the lawyers joining Scott Horton in opposition will be David Cole of the Georgetown University Law Center, already a premier litigator against the administration's unilateral revision of the Constitution. In the August 10 New York Review of Books, during a penetrating guide to the Supreme Court's landmark Hamdan v. Rumsfeld decision, Cole points out:

"The Court's decision further suggests that President Bush has already committed a war crime, simply by establishing the military tribunals [at Guantánamo] and subjecting detainees to them [because] the Court found that the tribunals violate Common Article 3 [of the Geneva Conventions]—and under the War Crimes Act, any violation of Common Article 3 is a war crime."

What the Supreme Court said about those sham tribunals, which ignored American military law as well as the Geneva Conventions, was that according to the Geneva Conventions, prisoners' sentences must be handed down "by a regularly constituted court" that "provides all the judicial guarantees recognized as indispensable by civilized peoples."

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