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High Crimes and Misdemeanors


“We vigorously disagree with the court’s decision, and will seek an emergency stay of the ruling and immediately appeal,” a spokesman for the Department of Justice complained.

He was reacting to Monday’s U.S. District Court ruling that one Salim Ahmed Hamdan, a prisoner at the notorious American-run Camp Delta in Guantanamo Bay, must be granted his right to have his legal status reviewed by a “competent tribunal”—a decision which excludes the so-called Combatant Status Review Tribunal invented by the White House to finesse last June’s Supreme Court ruling in Rasul v. Bush that American courts do, after all, exercise jurisdiction over the foreign nationals held at Guantanamo.

Since early 2002 (if not earlier), the White House has referred to prisoners such as Hamdan as “unlawful enemy combatants.” (Though this extra- or supra-legal category, meant to defeat the Third Geneva Convention Relative to the Treatment of Prisoners of War and to deepen and expand the Imperial Presidency, took some time to develop. And to this day, remains contested. Even within certain corners of the current regime.)

The Justice Department spokesman continued (“Statement of Mark Carallo, Department of Public Affairs, on the Hamdan Ruling,” Nov. 8):

We believe the President properly determined that the Geneva Conventions have no legal applicability to members or affiliates of al Qaeda, a terrorist organization that is not a state and has not signed the Geneva Conventions. We also believe that the President’s power to convene military commissions to prosecute crimes against the laws of war is inherent in his authority as Commander in Chief of the Armed Forces, and has been memorialized by Congress in statutes governing the military.

By conferring protected legal status under the Geneva Conventions on members of al Qaeda, the Judge has put terrorism on the same legal footing as legitimate methods of waging war. The Constitution entrusts to the President the responsibility to safeguard the nation’s security. The Department of Justice will continue to defend the President’s ability and authority under the Constitution to fulfill that duty.

The process struck down by the district court today was carefully crafted to protect America from terrorists while affording those charged with violations of the laws of war with fair process, and the Department will make every effort to have this process restored through appeal.

That first sentence of the second paragraph especially was crafted to be chilling (as they like to put it in learned circles). What it really means is that by upholding American law with respect to Salim Ahmed Hamdan (and the rest of the prisoners in the vast and indeed global American gulag, even the most invisible among them), District Court Judge James Robertson has been put on notice that he violated an even higher law, namely his President’s, and at bottom is guilty of providing comfort to the enemy. Some pretty nasty rhetoric here, I’m sure you’ll agree. But a fitting way for the current regime to celebrate its victory in the November 2 election. And to launch its second term in office—right here, right now.

What is important about Judge Robertson’s ruling—beyond its immediate consequences for the 500 or more prisoners held by the Americans at Camp Delta—as one academic at the West Point Military Academy told USA Today, the ruling sounds a “death knell” for the Guantanamo charade, with its “thin legal authority…exposed as fatally flawed”—is that with it, Judge Robertson has provided a powerful defense of the Third Geneva Convention within American law. (Roughly pp. 8-27 of the 45-page decision.) Also, and perhaps more important, it was a slap at the Imperial Presidency. “The major premise of the government’s argument that the President has untrammeled power to establish military tribunals is that his authority emanates from Article II of the Constitution and is inherent in his role as commander-in-chief,” the decision reads, stating one version of the God-Almighty argument, only to reject it. “None of the principal cases on which the government relies…has so held” (pp. 8-9).

Insofar as we can speak of a legal contest over the fate of the Guantanamo prisoners at all—because to date, law has had next-to-nothing to do with the so-called War on Terror—it is this: The Third Geneva Convention—like the First, Second, and Fourth—are what Article VI of the U.S. Constitution defines as the “supreme Law of the Land,” making any violation of them by the Imperial Presidency a violation of the Constitution. An automatically impeachable offense. An absolute no-brainer.

As Tuesday’s Boston Globe set the scene:

The Geneva Conventions were ratified by the US Senate in the 1950s, making them “the highest law of the land” under the Constitution.

In addition, the Republican-led Congress in 1996 passed the War Crimes Act, which President Clinton signed. That law makes any “grave breach” of the conventions committed by a US official a domestic felony for which punishment could mean the death penalty. Not giving a prisoner of war the fair trial prescribed by the conventions is one of a short list of violations considered to be a “grave breach.”

In a once-secret memo written on Jan. 25, 2002, by White House counsel Alberto R. Gonzales, Bush’s top lawyer warned that prosecutors in a later administration could bring “unwarranted charges” against high-level Bush administration officials for war crimes as a result of their treatment of Al Qaeda members captured after the terrorist attacks of Sept. 11, 2001.

This really is quite lovely stuff here. Isn’t it? In being the first to conduit this material last May—”among hundreds of pages of internal administration documents on the Geneva Convention and related issues that have been obtained by Newseek“—Michael Isikoff reported that “One key advantage of declaring that Taliban and Al Qaeda fighters [and anyone else the Bush regime cared to add to the list] did not have Geneva Convention protections is that it ‘substantially reduces the threat of domestic criminal prosecution under the War Crimes Act’, Gonzales wrote. ‘It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]‘,” Gonzales added. “[W]hile top White House officials publicly talked about trying Al Qaeda leaders for war crimes, the internal memos show that administration lawyers were privately concerned that they could be tried for war crimes themselves based on actions the administration were taking, and might have to take in the future, to combat the terrorist threat.” (“Memos Reveal War Crimes Warnings,” Newsweek web exclusive, May 19, 2004.—Newsweek also has archived online a copy of Alberto R. Gonzales’ Jan. 25, 2002 Memorandum for the President titled, “Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban,” a.k.a. the Gonzales Memo.)

Of course, the bit about combatting the terrorist threat is roughly on a par with what an American presidential administration four or five decades earlier would have couched in a rhetoric about combatting the Soviet or communist threat—and Newsweek ought to be ashamed of itself for buying into it. (Though I’ll bet that neither Isikoff nor his colleagues and editors even notice the similarities between the two.)

But this aside, I think you get the picture. Under the relative trivialities of the “supreme Law of the Land,” including the U.S. Constitution, the privileged place that ratified treaty law occupies within its architecture, and this otherwise virtually unknown War Crimes Act of 1996, the Bush regime has just been found by a Judge for the U.S. District Court for the District of Columbia to be in deep doo-doo. (Remember all of those great political cartoons by Z Magazine‘s old friend Matt Wuerker, dating all the way back to the Reagan and first Bush regimes?)

A fitting spot for it, to be sure. But on the seventh day after winning re-election?

United States Constitution (1787-) (For the FindLaw edition, with text and commentary (very nice))

The United States Code Collection, Legal Information Institute, Cornell University
Title 18, Part I, Chapter 118, Section § 2441. War Crimes, July 24, 1996

The Laws of War, The Avalon Project at Yale law School
Geneva Convention (III) Relative to the Treatment of Prisoners of War (1950-)

Ending Secret Detentions, Deborah Pearlstein et al., Human Rights First, June, 2004
Getting to Ground Truth: Investigating U.S. Abuses in the “War on Terror,” Deborah Pearlstein et al., Human Rights First, September, 2004
The United States’ “Disappeared”: The CIA’s Long-Term “Ghost Detainees,” Reed Brody et al., Human Rights Watch, October, 2004

Salim Ahmed Hamdan v. Donald H. Rumsfeld, United States District Court for the District of Columbia, November 8, 2004, Judge James Robertson (a.k.a. Hamdan v. Rumsfeld)
Amended Protective Order and Procedures for Counsel Access to Detainees at the United States Naval Base in Guantanamo Bay, Cuba, United States District Court for the District of Columbia, November 8, 2004

Rasul et al. v. Bush, President of the United States, et al. (No. 03-334), Supreme Court of the United States, June 28, 2004
Hamdi et al. v. Rumsfeld, Secretary of Defense, et al.. (No. 03-6696), Supreme Court of the United States, June 28, 2004
Rumsfeld, Secretary of Defense, v. Padilla et al. (No. 03-1027), Supreme Court of the United States, June 28, 2004

Memos Reveal War Crimes Warnings,” Michael Isikoff, Newsweek (web exclusive), May 19, 2004
Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban,” Alberto R. Gonzales, January 25, 2002 (a.k.a. the Gonzales Memo)

Judge Halts Legal Proceedings at Guantanamo, Says U.S. Policy Violates Geneva Conventions,” Charlie Savage, Boston Globe, November 9, 2004
Guantanamo Trial Is Ruled Unlawful,” John Hendren, Los Angeles Times, November 9, 2004
Judge rules detainee’s trial unlawful; sets Bush policy on terror capties aside,” Carol Rosenberg, Miami Herald, November 9, 2004
U.S. Judge HaltsWar-Crime Trial at Guantanamo,” Neil A. Lewis, New York Times, November 9, 2004
Guantanamo hitch as trial of bin Laden driver halted,” Tim Reid, The Times (London), November 9, 2004
Tribunal halted after judge rules system unlawful; Decision could jeopardize 325 hearings held,” Toni Locy, USA Today, November 9, 2004
Judge Says Detainees’ Trials Are Unlawful,” Carol D. Leonnig and John Mintz, Washington Post, November 9, 2004

Contemporary Barbarism, ZNet Blogs (the old ones), June 17, 2004
An American Gulag, ZNet (the old ones), July 13, 2004
Another American Gulag, ZNet (the old ones), July 14, 2004

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