It’s About Time

The White House's disregard for the rule of law has caused years of delay and put the administration on tenuous legal ground.

It’s about time. As the fifth anniversary of the September 11 attacks approaches, it appears that the Bush administration is finally ready to begin the process of holding some of the individuals implicated in the planning of the attacks accountable.

Khalid Sheik Muhammed, Abu Zubaydah, and Ramzi bin al Shibh may be a step closer to trial, and the American people may be a step closer to justice, but let’s not forget why this day is so long coming. We have waited nearly five years for justice because of President Bush’s willful disregard for the Constitution and the rule of law.

We have arrived at this day only because the Supreme Court ruled in June that the military commissions President Bush established for trying suspected terrorists are illegal. The commissions were not authorized by Congress and violated the Uniform Code of Military Justice and Common Article III of the Geneva Conventions.

As a result of that decision, President Bush announced Wednesday that he was submitting a new proposal for military commissions to Congress. The House Armed Services Committee will hold a hearing today to examine this and other proposals for establishing a system to try terrorist suspects.

The President also announced that he had transferred Khalid Sheik Muhammed, Abu Zubaydah, Ramzi bin al Shibh, and eleven other high-ranking terrorist suspects from secret CIA prisons to Guantanamo to await trial “as soon as Congress acts.”

The President’s speech yesterday and new proposal demonstrate that he has little regard for the American system of government or the rule of law.

He first charged that “the Supreme Court’s recent decision has impaired our ability to prosecute terrorists through military commissions.”

His shocking admission that he authorized a system of secret prisons operated by the CIA beyond the reach of any law is reminiscent more of the Soviet Union than of the great traditions of American freedom and democracy.

Even after being slapped down by the Supreme Court, the new proposal still contains many provisions that are inconsistent with American law, such as denying the accused access to evidence against them, allowing evidence obtained through coercive interrogations, and using hearsay evidence.

There is also the cynical ploy to alter the War Crimes Act on the grounds that the provisions that prohibit humiliating and degrading treatment and outrages on personal dignity are, according to the President, “vague and undefined, and each could be interpreted in different ways.” President Bush may try to portray himself as looking out for those soldiers and interrogators on the front lines, but nothing could be further from the truth.

The Republican-controlled Congress passed the War Crimes Act of 1996 as an instrument to punish Saddam Hussein and other Iraqi officials for “grave breaches of the Geneva Conventions” against American prisoners during the first Gulf War. The Act applies specifically to actions committed by or against U.S. citizens in times of war. This includes the actions of all civilians, such as policy makers, civilian intelligence personnel, and former military personnel. This does not cover current military personnel, because the Uniform Code of Military Justice already has provisions designed to punish cruelty and maltreatment by serving soldiers.

The laws governing military conduct are filled with broad prohibitions, such as “conduct unbecoming an officer” and “dereliction of duty,” but there has been no outcry from the Bush administration to define specifically what constitutes those crimes. As we are all painfully aware, a number of low-ranking uniformed personnel have been tried and convicted of “maltreatment” committed against detainees. President Bush was more than willing to allow those “bad apples” to take all of the blame for the Abu Ghraib scandal.

The War Crimes Act and Uniform Code of Military Justice were crafted without an explicit set of prohibited behaviors in order to avoid creating instant exceptions for actions not on a list.

This attempt to alter the War Crimes Act reveals president Bush’s real motives: to create a back door for abusive interrogations and retroactively provide immunity to administration officials for their grave breaches of the Geneva Convention. It would be perversely ironic if a law designed to punish Saddam Hussein for abusing prisoners was used by the Bush Administration to authorize abusive interrogations.

Congress now has a solemn responsibility to craft a system to try terrorist suspects that will deliver justice and uphold the fundamental values of the United States.

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Ken Gude

Senior Fellow