Torture and Accountability: *The War Crimes Act of 1996*

G_j

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Thu Apr-16-09 10:30 PM
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Edited on Thu Apr-16-09 10:55 PM by G_j

http://www.thenation.com/doc/20050718/holtzman

Torture and Accountability
By Elizabeth Holtzman

This article appeared in the July 18, 2005 edition of The Nation.
June 28, 2005

<snip>

The War Crimes Act of 1996

No less a figure than Alberto Gonzales, then-White House counsel to George W. Bush and now US Attorney General, expressed deep concern about possible prosecutions under the War Crimes Act of 1996 for American mistreatment of Afghanistan war detainees.

This relatively obscure statute makes it a federal crime to violate certain provisions of the Geneva Conventions. The Act punishes any US national, military or civilian, who commits a "grave breach" of the Geneva Conventions. A grave breach, as defined by the Geneva Conventions, includes the deliberate "killing, torture or inhuman treatment" of detainees. Violations of the War Crimes Act that result in death carry the death penalty.

In a memo to President Bush, dated January 25, 2002, Gonzales urged that the United States opt out of the Geneva Conventions for the Afghanistan war--despite Secretary of State Colin Powell's objections. One of the two reasons he gave the President was that opting out "substantially reduces the likelihood of prosecution under the War Crimes Act."

Then-Attorney General Ashcroft sent a memo to President Bush making a similar argument. Opting out of the Geneva Conventions, Ashcroft argued, would give the "highest assurance" that there would be no prosecutions under the War Crimes Act of "military officers, intelligence officials, or law enforcement officials" for their misconduct during interrogations or detention.

Plainly, both Gonzales and Ashcroft were so concerned about preventing War Crimes Act prosecutions that they were willing to assume the risks--including the likelihood of severe international criticism as well as the exposure of our own captured troops to mistreatment--of opting out of Geneva.

The specter of prosecution was particularly worrisome because the Conventions use broad terminology. Noting that violations may consist of "outrages upon personal dignity" and "inhuman treatment," Gonzales advised the President in his memo that it would be "difficult to predict with confidence" which actions would violate the War Crimes Act and which would not

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Elizabeth Holtzman wrote that article in 2005. In 2006 Congress passed the Military Commissions Act. why???

http://en.wikipedia.org/wiki/Military_Commissions_Act_of_2006
.

The United States Military Commissions Act of 2006<1>, also known as HR-6166, was an Act of Congress<2> signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v. Rumsfeld,<3> the Act's stated purpose was "To authorize trial by military commission for violations of the law of war, and for other purposes."<4>
Following the filing of Al Odah v. United States, section 7 of the MCA was found to be unconstitutional by the Supreme Court on June 12, 2008.<5>

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http://www.aclu.org/safefree/detention/29145res20070322.html

ACLU Fact Sheet: Military Commissions Act

The Military Commissions Act of 2006 gives the president absolute power to decide who is an enemy of our country and to imprison people indefinitely without charging them with a crime.

Eliminates due process.

This law removes the Constitutional due process right of habeas corpus for persons the president designates as unlawful enemy combatants. It allows our government to continue to hold hundreds of prisoners more than four years without charges, with no end in sight.

Rejects core American values.

Habeas corpus, the basic right to have a court decide if a person is being lawfully imprisoned, is what separates America from other countries. To do away with this American value makes us more like those we are fighting against. It is time to restore due process, defend the Constitution, and protect what makes us Americans.

The last Congress was asleep at the wheel.

The only thing scarier than a government that would take away our basic freedoms is a Congress that would let it happen. Congress must correct that mistake and restore habeas corpus and due process, and define enemy combatants as only those who engage in hostilities against the United States.

Permits coerced evidence.

The act permits convictions based on evidence that was literally beaten out of a witness, or obtained through other abuse by either the federal government or by other countries.

Turns a blind eye to past abuses.

Government officials who authorized or ordered illegal acts of torture and abuse would receive retroactive immunity for their crimes, providing them with a �get out of jail free' card.

Makes the president his own judge and jury.

Under the Military Commissions Act, the president has the power to define what is � and what is not � torture and abuse, even though the Geneva Conventions already provide us with a guide.

Congress must fix the Military Commissions Act.

By giving any president the unchallenged power to decide which non-citizen is an enemy of our country � and eliminating habeas corpus due process for them, we allow the government to imprison people indefinitely without charging them with a crime. It is time for Congress to restore due process, defend the Constitution and protect what makes us Americans.