With great fanfare, George W. Bush announced to a group of carefully selected 9/11 families yesterday that he had finally decided to send Khalid Sheikh Mohammed and 13 other alleged terrorists to Guantánamo Bay, where they will be tried in military commissions. After nearly 5 years of interrogating these men, why did Bush choose this moment to bring them to “justice”?
Bush said his administration had “largely completed our questioning of the men” and complained that “the Supreme Court’s recent decision has impaired our ability to prosecute terrorists through military commissions and has put in question the future of the CIA program.”
He was referring to Hamdan v. Rumsfeld, in which the high court recently held that Bush’s military commissions did not comply with the law. Bush sought to try prisoners in commissions they could not attend with evidence they never see, including hearsay and evidence obtained by coercion.
The Court also determined that Common Article 3 of the Geneva Conventions applies to al Qaeda detainees. That provision of Geneva prohibits “outrages upon personal dignity” and “humiliating and degrading treatment.”
Bush called on Congress to define these “vague and undefined” terms in Common Article 3 because “our military and intelligence personnel” involved in capture and interrogation “could now be at risk of prosecution under the War Crimes Act.”
Congress enacted the War Crimes Act in 1996. That act defines violations of Geneva’s Common Article 3 as war crimes. Those convicted face life imprisonment or even the death penalty if the victim dies.
The President is undoubtedly familiar with the doctrine of command responsibility, where commanders, all the way up the chain of command to the commander in chief, can be held liable for war crimes their inferiors commit if the commander knew or should have known they might be committed and did nothing to stop or prevent them.
Bush defensively denied that the United States engages in torture and foreswore authorizing it. But it has been well-documented that policies set at the highest levels of our government have resulted in the torture and cruel, inhuman and degrading treatment of U.S. prisoners in Iraq, Afghanistan and Guantánamo.
Indeed, Congress passed the Detainee Treatment Act in December, which codifies the prohibition in United States law against cruel, inhuman or degrading treatment or punishment of prisoners in U.S. custody. In his speech yesterday, Bush took credit for working with Senator John McCain to pass the DTA.
In fact, Bush fought the McCain “anti-torture” amendment tooth-and-nail, at times threatening to veto the entire appropriations bill to which it was appended. At one point, Bush sent Dick Cheney to convince McCain to exempt the CIA from the prohibition on cruel treatment, but McCain refused.
Bush signed the bill, but attached a “signing statement” where he reserved the right to violate the DTA if, as commander-in-chief, he thought it necessary.
Throughout his speech, Bush carefully denied his administration had violated any laws during its “tough” interrogations of prisoners. Yet, the very same day, the Pentagon released a new interrogation manual that prohibits techniques including “waterboarding,” which amounts to torture.
Before the Supreme Court decided the Hamdan case, the Pentagon intended to remove any mention of Common Article 3 from its manual. The manual had been the subject of revision since the Abu Ghraib torture photographs came to light.
But in light of Hamdan, the Pentagon was forced to back down and acknowledge the dictates of Common Article 3.
Bush also seeks Congressional approval for his revised military commissions, which reportedly contain nearly all of the objectionable features of his original ones.
The President’s speech was timed to coincide with the beginning of the traditional post-Labor Day period when Congress focuses on the November elections. The Democrats reportedly stand a good chance of taking back one or both houses of Congress. Bush fears impeachment if the Democrats achieve a majority in the House of Representatives.
By challenging Congress to focus on legislation about treatment of terrorists – which he called “urgent” – Bush seeks to divert the election discourse away from his disastrous war on Iraq.
MARJORIE COHN, a professor at Thomas Jefferson School of Law, is president-elect of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.