It was brilliantly deceptive, trumping even his orchestrated dishonesty
in leading us to war.
Buried in the 94 pages of the Military Commissions Act of 2006-the
"detainee act" or the "torture bill"-the Bush Administration tacitly admits
it has committed war crimes.
There is no question war crimes have been committed. Corporal Charles
Graner, Private First Class Lyndie England, and several of their teammates
are serving time, for mistreating prisoners at the Abu Ghraib prison in
At the time these soldiers were tried and sentenced many people felt the
culpability must extend above the ranks of enlisted personnel, up some
distance into the chain-of-command, perhaps to the top. Many still do.
There are two pairs of dots to be connected. One is a pair of small
dots, the other two are huge.
On December 28, 2001, a memo to President Bush from his Office of Legal
Counsel made two claims: the US court system had no jurisdiction regarding
the detainees at Guantanamo, and the Geneva Conventions did not apply to
Acting on this advice, on February 7, 2002 President Bush suspended
Common Article 3 of those conventions-which, among other things, prohibits
torture. Two years later, thanks to CBS' 60 Minutes and the New Yorker
magazine, the prisoner abuses at Abu Ghraib came to light. Connect those
dots. These are the small ones.
Subsequent lawsuits addressing the detainee issue were considered and
resolved by the Supreme Court. Rasul v. Bush found the US courts did have
jurisdiction over the detainees. Hamdi v. Rumsfeld said detainees have a
right to contest their detention: they are entitled to habeas corpus
protections. Hamdan v. Rumsfeld tested the military tribunals President
Bush created to bring the detainees to justice. The Supreme Court found the
tribunals in violation of Common Article 3 of the Geneva Conventions, and
their existence to be illegal, absent a basis in federal statute. The
decision was handed down June 29, 2006.
Hamdan v. Rumsfeld put on display the Bush Administration's guilt in
committing war crimes. This is one of the huge dots. It will be connected
to another one shortly.
The Bush Administration wasted no time drafting a law to legalize the
military "commissions," as they came to be called. Senators McCain, Warner,
and Graham initially and vigorously opposed it-and then caved in.
A "compromise" was worked out in Vice President Cheney's office.
The law signed by the President precludes federal courts from any
jurisdiction whatsoever, in direct contradiction to the Supreme Court's
finding. It denies habeas corpus protections, also in direct contradiction.
And it prohibits explicitly the detainees from claiming rights under the
Geneva Conventions. Here is the language that does so:
No person may invoke the Geneva Conventions, or any protocols thereto, in
any habeas or civil action or proceeding to which the United States, or a
current or former officer, employee, member of the Armed Services, or other
agent of the United States, is a party, as a source of rights in any court
of the United States or its States or territories.
This means that no detainee can bring suit for any violation of the
Geneva Conventions, and this is the other huge dot. The Bush Administration
already stands accused by the Supreme Court of violating Common Article 3,
but the Administration wrote a law, and bulldozed it through a compliant
Congress, to render prosecution impossible.
This also means the US simply is not bound by the Geneva Conventions.
If detainees cannot claim rights under them the Conventions are moot.
The Military Commissions Act of 2006 is retroactive. It shall ".take
effect as of November 26, 1997, as if enacted.[on that date]." Nothing the
Bush Administration has done can be called into question.
Why would the Bush people write these several requirements into a law?
Only if they are guilty of committing war crimes and know they will face
prosecution. Though ingeniously obscured, this is a de facto admission of
The Military Commissions Act of 2006 is mostly smokescreen. The law's
primary purpose is to immunize the Bush Administration, which explains the
Administration's frantic anxiety to have it passed. The thrust of the
bill, relating to detainee trials, is hardly a matter of top priority: the
detainees have been languishing for years. Elizabeth Holtzman saw through
the smokescreen in a recent essay in the Chicago Sun-Times, "Bush Seeks
Immunity for Violating War Crimes Act." Not many other commentators have
This new law shields the Bush Administration from their mistreatment of
prisoners, but that issue is truly a marginal one. Still to be confronted
is the illegality of the Iraq war writ large: sold to the American people
on conscious lies and prosecuted at horrific expense in human lives and
treasure. Crimes against humanity are involved here.
The Military Commissions Act was created by desperate people terrified
of prosecution. Imagine George W. Bush taking the stand in The Hague,
following in the footsteps of Slobodan Milosevic. Imagine Richard Cheney,
Donald Rumsfeld, and Condoleezza Rice imprisoned.
Richard W. Behan's last book was Plundered Promise: Capitalism, Politics,
and the Fate of the Federal Lands (Island Press, 2001). He is currently
working on a more broadly rendered critique, To Provide Against Invasions:
Corporate Dominion and America's Derelict Democracy. He can be reached by
email at email@example.com.