Last week, Patriot Daily posted a diary, “Bush Seeks Retroactive Immunity From US War Crimes Prosecution,” which concluded that Bush was seeking to change the US War Crimes Act, which criminalized violations of the Geneva Conventions, to provide retroactive immunity to Bush team from criminal prosecution. At that time, very little was publicly disclosed about the substantive content of Bush’s proposal to change the law. Two media reports now provide more facts that support our conclusion of retroactive immunity, and show it is much more dangerous than initial reports, not just for all Americans and the world, but for our troops.
Last week, it was publicly reported that Bush wanted to mandate that domestic standards to be drafted by his Justice Dept., not international law, govern interpretation of what constitutes war crimes under the Geneva Conventions. This change would essentially provide Bush team with retroactive immunity, as noted:
The Bush team proposal wants to mandate that US enforcement of Geneva Conventions be subject to domestic interpretation, not international standards. This change is needed by Bush because the US Supreme Court believes that foreign interpretations of international treaties, like the Geneva Conventions, should at least be considered by US courts.
This minor change could have a “huge practical impact” because the Justice Dept. could “define certain interrogation techniques as legal in U.S. courts, even if the rest of the world considers them violations of the conventions.” This “minor” change could provide retroactive immunity to Bush team because the War Crimes law today applies to the Bush team. Today, prosecution under this law would likely include international law interpretation as case law precedent because the War Crimes law is based on violating Geneva Conventions, an international treaty. Today, foreign countries and courts have stated in media reports that they do not agree with Bush’s view of what constitutes torture or compliance with the Geneva Conventions, particularly disagreeing with the rules governing the Guantánamo prison and treatment accorded prisoners. That is the general state of the law when Bush and administration officials drafted their memos and issued their orders. That is why the Bush team memos issued before implementing their policies expressed concern of their own liability under the War Crimes Act. To change the substantive law after the actions were taken is tantamount to retroactive immunity.”
The Washington Post reported yesterday that the Bush team drafted amendments to the war crimes law that would “eliminate the risk of prosecution for political appointees, CIA officers and former military personnel for humiliating or degrading war prisoners, according to U.S. officials and a copy of the amendments.” The US War Crimes Act basically defines a war crime by reference to the Geneva Conventions, that is, a war crime is “any conduct” that is a “grave breach” or “violation” of specified sections of the Geneva Conventions. War crimes were intentionally defined in a broad manner by the world leaders who signed the treaty. The Post reports that Bush’s proposed amendment would limit the reach of the law by specifically defining war crimes as limited to “10 specific categories of illegal acts against detainees during a war, including torture, murder, rape and hostage-taking.” In other words, while the Bush team now risk war crimes prosecution for the memos, orders and other acts authorizing soldiers and the CIA to use interrogation techniques that violated Geneva Conventions, this amendment would remove the possibility of such prosecution by restricting the law to specific acts listed. The Post notes that the 10 specific crimes proposed by Bush do not include the Geneva Conventions offense of “outrages upon [the] personal dignity” of a prisoner and “deliberately humiliating acts – such as the forced nakedness, use of dog leashes and wearing of women’s underwear seen at the U.S.-run Abu Ghraib prison in Iraq – that fall short of torture.” According to the Post, while the draft amendments have not been publicly released, “their substance has already been embraced by key officials and will not change, two government sources said.”
The impact of this change alone is to further anger the world and subject our own troops to more dangers. In essence, Bush will be unilaterally rewriting the Geneva Conventions under the sham pretext that the treaty provisions are too vague and could be wrongly applied against our troops fighting the “war on terror.” However, as Sen. Susan Collins pointed out, the Defense Department did not find the terms so vague as it instructed its personnel in an July memorandum to “certify their compliance” with these provisions.
The Associated Press also reported yesterday in an article entitled “Proposed War Crimes Act protection for Bush administration would apply retroactively.” Lawyers who have seen Bush’s proposal concluded that the purpose of the amendments is to “retroactively protect policymakers from possible criminal charges for authorizing any humiliating and degrading treatment of detainees.” It was not hard for the AP or the lawyers to reach this conclusion of retroactive effect because another section of the amendment “would apply the legislation retroactively.” Thus, Bush’s proposed amendment apparently includes an express retroactivity clause. As one attorney stated: “I think what this bill can do is in effect immunize past crimes. That’s why it’s so dangerous.”
It is hard to reach definitive conclusions without reviewing the proposed amendments that have not been publicly disclosed. However, several leaks from people who have read the draft proposals indicate that Bush wants to guarantee that he and members of his administration can not be criminally prosecuted after leaving office by unilaterally changing the law that was in effect when they authorized torture and abuse of prisoners. The exact method of retroactive immunity may change between now and the time that a final amendment proposal is submitted to Congress, but the goal is not likely to change.
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