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Bush Proposes Retroactive "Get Out Of Jail Free" Card

By August 11, 2006

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The Bush Administration has drafted legislation which would exempt current Administration officials from being charged with war crimes "for authorising humiliating and degrading treatment of detainees, according to lawyers who have seen the proposal," and the legislation would be applied retrospectively.

"I think what this bill can do is in effect immunize past crimes. That's why it's so dangerous," according to Eugene Fidell, president of the National Institute of Military Justice.

The amendments to the War Crimes Act would "protect CIA officers, former military personnel and political appointees... The 1996 War Crimes Act makes it a felony to violate the Geneva Conventions, including the Common Article 3 prohibition on cruel and inhumane treatment, and as currently written potentially allows those not subject to the Uniform Code of Military Justice [civilians, in other words] to be held responsible for war crimes."

Common Article 3, detailing the standard treatment of civilians during war, requires humane treatment and prohibits "violence to life and person" as well as "outrages upon personal dignity, in particular, humiliating and degrading treatment."

Gonzales Testifies
Last week, Attorney General Alberto Gonzales told the Senate Committee on Armed Services that some terms in Common Article 3 of the Geneva Conventions are "inherently vague." In a prepared statement, he said:

Common Article 3 prohibits [o]utrages upon personal dignity, in particular, humiliating and degrading treatment, a phrase that is susceptible of uncertain and unpredictable application. If left undefined by statute, the application of Common Article 3 will create an unacceptable degree of uncertainty for those who fight to defend us from terrorist attack, particularly because any violation of Common Article 3 constitutes a federal crime under the War Crimes Act.

Gonzales also referenced the McCain Act, noting that it prohibits "cruel, inhuman, or degrading treatment or punishment." What he did not note was President Bush's signing statement, where he asserted that he is not bound by the law.

Bush Signs Away Requirement
At the time, the National Review noted that "the signing statement . . . conveys the good news that the president is not taking the McCain amendment lying down." And the Boston Globe reported that White House and legal specialists said "Bush believes he can waive the restrictions."

Current Proposal Criticized by Military, Legal Experts
According to the Washington Post, the Bush proposal would not prohibit "'outrages upon [the] personal dignity' of a prisoner and deliberately humiliating acts -- such as the forced nakedness, use of dog leashes and wearing of women's underwear seen at the U.S.-run Abu Ghraib prison in Iraq."

"This removal of [any] reference to humiliating and degrading treatment will be perceived by experts and probably allies as 'rewriting' " the Geneva Conventions, said retired Army Lt. Col. Geoffrey S. Corn, who was recently chief of the war law branch of the Army's Office of the Judge Advocate General. Others said the changes could affect how foreigners treat U.S. soldiers...

Corn, the Army's former legal expert, said that Common Article 3 was, according to its written history, "left deliberately vague because efforts to define it would invariably lead to wrongdoers identifying 'exceptions,' and because the meaning was plain -- treat people like humans and not animals or objects." Eugene R. Fidell, president of the nonprofit National Institute of Military Justice, said that laws governing military conduct are filled with broadly described prohibitions that are nonetheless enforceable, including "dereliction of duty," "maltreatment" and "conduct unbecoming an officer."

Retired Rear Adm. John D. Hutson, the Navy's top uniformed lawyer from 1997 to 2000 and now dean of the Franklin Pierce Law Center, said his view is "don't trust the motives of any lawyer who changes a statutory provision that is short, clear, and to the point and replaces it with something that is much longer, more complicated, and includes exceptions within exceptions."

Why Now?
The Administration is now paying attention because the Supreme Court, in Hamdan v. Rumsfeld, ruled that the Administration was violating Geneva Conventions. And Bush officials have "authorized interrogations using methods that U.S. military lawyers have testified were in violation of Common Article 3."

A Constitutional Note
The US Constitution prohibits retroactive legislation: Article I, Section 9 of the Constitution states that "no ... ex post facto law shall be passed." An ex post facto law is one "formulated, enacted, or operating retroactively."

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