Column: President Bush: War criminal?

By Brian Pierce

This past week the Supreme Court delivered a surprising ruling in Hamdan v. Rumsfeld, in which the military tribunals in Guantanamo Bay were ruled illegal under the laws of war and the Geneva Conventions.

There is some debate about how sweeping the implications of this ruling are: One legal scholar calls it the “most important decision on presidential power … ever,” while another writes, “This case may not have that much immediate impact, outside of Guantanamo.”

While this debate goes on, however, one of the overlooked implications of this case could very well be that the president of the United States is guilty of committing war crimes.

Hold off on bunching me in with the Michael Moore lunatics for just a second.

While it is almost certainly politically unfeasible to actually prosecute President Bush, the legal justification to prosecute is not as off-the-wall as many might think.

At the heart of the Supreme Court decision is Common Article 3 of the Geneva Conventions, which deals with the treatment of prisoners of war. Basically, the Supreme Court ruled that Congress, in passing the War Crimes Act, obligated the executive branch to follow the laws of war, which include Common Article 3, and that the military tribunals set up by the President violated Common Article 3. The military tribunals themselves, then, were not ruled unconstitutional, but rather the manner in which the president operates these tribunals was determined to be subject to congressional limitation.

What this ruling means is that the executive acted illegally in two ways.

First, it ignored the restrictions Congress imposed on the President’s power to establish military tribunals through the War Crimes Act, which is punishable as a federal offense.

Second, it violated Common Article 3, which is punishable as a war crime.

Making matters worse for the President, military commissions like the ones set up in Guantanamo are directed by presidential orders. The Supreme Court made clear in its opinion that the Geneva Conventions “do extend liability for substantive war crimes to those who order their commission,” i.e. the President.

Perhaps even more surprising is that the Court emphasizes that the Fourth Hague Convention of 1907 (which the president is also subject to under the War Crimes Act) imposes “‘command responsibility’ on military commanders for acts of their subordinates.” This sentence has significance not just in the context of the military tribunals, but could also signal that the president – or at the very least, Secretary of Defense Donald Rumsfeld – may be held legally responsible for acts of torture or inhumane treatment conducted in Abu Ghraib, Guantanamo, or elsewhere.

There will probably be little talk of these implications in either chamber of Congress, and the media is unlikely to report the story any differently than it has been, as a blow to Presidential power, as a final nail in the coffin for the military prisons in Guantanamo, but never as a sign that President Bush is both a felon and a war criminal. The political realities of the day will not allow such an interpretation, but that doesn’t make it any less of a sad, historic reality.