War Crimes

Lyle Denniston has this summary of pending Supreme Court litigation dealing with the Combatant Status Review Tribunal process.

In brief, the high Court will issue a decision in the next month - in the
Boumediene and Al-Odah cases - which will address the CSRT’s. In both, the court will be asked to determine whether Guantanamo detainees are entitled to habeas relief regardless of the Military Commissions Act, which established the CSRT’s as an alternative to habeas review and divested federal courts of jurisdiction to hear detainees’ appeals. Shortly thereafter, the court will determine whether to hear Bismullah, a DC Circuit decision entitling detainees’ lawyers access to classified information.

Marjorie Cohn, a legal critic of the Bush administration, testified before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties House Judiciary Committee Tuesday on the justification of the use of harsh interrogation tactics by intelligence officers.  Cohn points to the U.S. War Crimes Act of 1991 that makes the use of torture or humiliating and degrading treatment a violation of U.S. national interests and policies. In 2002 and 2003, however, former White House counsel John Yoo briefed the Bush administration on the definition of torture, defining it in such narrow terms that it amounted only to incidents of organ failure or near death.  The Bush administration sanctioned the use of “harsh interrogation” techniques in response, including the controversial practice of water-boarding.

Cohn argues that the Bush administration is in violation of the Constitution and international law because it exempts the so-called unlawful enemy combatants from protection under the Geneva Conventions and skirts the language of the U.S. War Crimes Act.  Cohn, who teaches law at the Thomas Jefferson School of Law in San Diego, notes the War Crimes Act makes any attempt to commit, or conspire to commit, torture is a violation of the law. She points to a closed-door meeting with former U.S. Attorney General John Ashcroft, Vice President Dick Cheney, former Secretary of State Colin Powell, former Defense Secretary Donald Rumsfeld, then-National Security Adviser Condoleezza Rice and former director of the Central Intelligence Agency George “Slam Dunk” Tenet that sanctioned the use of “specific torture techniques such as waterboarding.”

“They are all liable under the War Crimes Act and the Torture Statute.  The president can no more order the commission of torture than he can order the commission of genocide, or establish a system of slavery, or wage a war of aggression,” said Cohn.  As one point of contention, barring considerations of diplomatic immunity, it is the policy of the CIA to avoid extending legal protection to its officers because a common practice of the clandestine intelligence community is to not only break the laws of other nations, but to break those of the United States, if it serves the overall national interest.

Here we go again.  The top prosecutor with the United Nations said Sunday four war crimes suspects, including Ratko Mladic, are within reach of Serbian officials.  Serbia in its bidding to ascend to the European Union faces pressure to hand over war crimes fugitives suspected of atrocities during the 1990s, including the massacre of 5,000 Mulsim men and boys in the U.N. safe-haven of Srebrenica.  Serge Brammertz, the chief prosecutor who replaced Carla del Ponte who said nearly the exact same thing nearly a year year, said “there is no reason to believe Mladic is not in Serbia.”

A Canadian-born citizen captured in Afghanistan during the U.S.-led counterterrorism effort there at the age of 15 can be tried for murder, a judge said.  U.S. Army Col. Peter Brownback denied an argument presented by lawyers for Omar Khadr, now 21, the he was illegally conscripted to fight for al-Qaida militants in Afghanistan and should be considered a child soldier rather than a war criminal. 

Khadr is charged with murder for throwing a grenade at a U.S. soldier during a firefight in Afghanistan in 2002. Brownback noted in his opinion that the war crime tribunal carries no stipulation regarding the age of the detainees.

His counsel, Lt. Cmdr. William Kuebler, urged the military tribunal to drop the charges against Khadr in February.  The ruling is “an embarrassment to the United States,” Kuebler said and noted Khadr would be the first child soldier ever tried for war crimes.