The Obfuscation Report

by Vyan

That's the new mantra coming from Alberto Gonzales and some Republicans on the hill as a result of the Hamdan (pdf) Decision which clearly laid reestablished the groundwork for soldiers, Pentagon Officials and even the President to be held accountable for violations of the War Crimes Act of 1996.

In 2002, fearing that the President policies might run afoul of this law, then White House Counsel Alberto Gonzales recommended that "Enemy Combatants" be exempted from Geneva Protections.

Now that this view has been obliterated by the SCOTUS - Abu has taken a different tact. Create an immunity from War Crimes prosecution for those fighting the "War on Terror".

Which of course would cover - um - everyone in the Government since we don't have any other types of impending Wars right now.

Over a year ago Amnesty International called for the investigation, arrest and prosecution of George W. Bush and many of his senior staff including Gonzales and Rumsfeld for War Crimes Violations.

It's clear from Gonzales actions that the threat posed by Amnesty's allegations aren't something he considered to be simply "idle". And it's also clear from the 26 Detainee deaths-in-custody that have already been determined to be homocide due to cruel treatment - that this issue is not going away anytime soon.

From the Washington Post.

An obscure law approved by a Republican-controlled Congress a decade ago has made the Bush administration nervous that officials and troops involved in handling detainee matters might be accused of committing war crimes, and prosecuted at some point in U.S. courts.

Senior officials have responded by drafting legislation that would grant U.S. personnel involved in the terrorism fight new protections against prosecution for past violations of the War Crimes Act of 1996. That law criminalizes violations of the Geneva Conventions governing conduct in war and threatens the death penalty if U.S.-held detainees die in custody from abusive treatment.

In light of a recent Supreme Court ruling that the international Conventions apply to the treatment of detainees in the terrorism fight, Attorney General Alberto R. Gonzales has spoken privately with Republican lawmakers about the need for such "protections," according to someone who heard his remarks last week.

So Gonzales previos attempts to end-run around Geneva have been thwarted by the Scotus and the War Crimes Act 18 USC § 2441 which documents War Crimes:

(1) as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or

(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

It seems that this Law really worries Gonzales, and just why would that be? More from Wapo:

Gonzales told the lawmakers that a shield is needed for actions taken by U.S. personnel under a 2002 presidential order, which the Supreme Court declared illegal, and under Justice Department legal opinions that have been withdrawn under fire [such as the Bybee memos], the source said. A spokeswoman for Gonzales, Tasia Scolinos, declined to comment on Gonzales's remarks.

The Justice Department's top legal adviser, Steven G. Bradbury, separately testified two weeks ago that Congress must give new "definition and certainty" to captors' risk of prosecution for coercive interrogations that fall short of outright torture.

But why are we back to this yet again? Didn't the Detainee Treatment Act of 2005 essentially ban all cruel and unusual treatment of Detainees? Then again, maybe it didn't since the Graham-Levin Amendment to that law essential created a barrier between detainees and their ability to fight against poor treatment via the courts - a barrier that Hamdan ripped down with a back-hoe.

No matter what - these guys want the ability to torture people. That's the bottom line. Even when using such techniques have only brought us bad information, such as the claims of links between Saddam and Al Qaeda that we received from Ibn Sheik al-Libi at Gitmo which turned out to be completely false.

They just keep trying snake around the law. Geneva in the way? -- deny it applies. Supreme Court says it does? Rewrite the law -- even if you still have those pesky ex-post facto issues to iron out. But they still have one hurdle they can't easily jump and that is the 8th Amendment to the Constitution:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The Constitutionality of a Law that is specifically designed to allow for violations of the 8th Amendment is a non-starter. It's crazy. Looney-tunes. Insane in the membrane.

But here we are, with serious discussion of this very thing happening on Capitol Hill. How do we get back to sanity again?

Looking past Gitmo, Abu Ghraib and Bagram AFB to the actions of Task Force 6-26 which ran a torture operation right out of one of Saddam's old torture chambers - or the Rape and Murder of a 15-year old Iraq girl and her entire family by U.S. Troops - we need to find a way back, and soon.

Crosposted on Truth 2 Power