Cheating Justice (18 page)

The president signed the Detainee Treatment Act on December 30, 2005. But that was not the end. The White House had another trick up its sleeve. The president added a “signing statement” to the law. Previous presidents had used signing statements—infrequently—but when they were used, they were a rather innocuous way of explaining the purpose of the law. In this case, President Bush used the signing statement to try to nullify the very law he was signing and to create more defenses for himself. In odd and authoritarian language (that talks about the “unitary executive branch,” a complete fiction), the signing statement asserts that the president has the power to override the law. It says, in part: “The executive branch shall construe [the law] in a manner consistent with the constitutional authority of the President . . . as Commander in Chief.”
84

The intention, an unnamed senior Bush official told reporter Charlie Savage on January 4, 2006, was to reserve the right to waive the law, if need be. New York University law professor David Golove gave this interpretation to Savage: “The signing statement is saying ‘I will only comply with this law when I want to, and if something arises in the war on terrorism where I think it's important to torture or engage in cruel, inhuman, and degrading conduct, I have the authority to do so and nothing in this law is going to stop me.'”
85
For President Bush, the Detainee Treatment Act of 2005 became a way to secure a new defense in the event of prosecution, while keeping on with the same practices.

Six months after passage of the Detainee Treatment Act, the Bush administration confronted the most serious blow to its plans to shield its own culpability. On June 29, 2006, the U.S. Supreme Court issued a ruling
in
Hamdan v. Rumsfeld
, a case on military trials for detainees. The court not only tossed out the poorly designed plan for trying detainees that the Bush administration had created, but—even more significantly—ruled that Common Article 3 of the Geneva Conventions applied to detainees in the so-called “war on terror.”
86
In other words, the Geneva Conventions could not be discarded on the president's say-so, as President Bush had attempted to do with his February 7, 2002 memorandum.

A panic button must have sounded inside the White House. If the Geneva Conventions did apply to the detainees, then the War Crimes Act also applied under the Bush team's own reasoning. The scheme to avoid War Crimes Act liability had come crashing down. The new defenses in the Detainee Treatment Act (“we believed it wasn't a crime”) might not be broad enough to protect people in the White House from liability for cruel and inhuman treatment of detainees. President Bush and his team once again faced the possibility of prosecution under the War Crimes Act of 1996; their first line of defense to provide immunity for themselves had just vanished.

Their efforts to craft a new plan aimed at protecting themselves suddenly moved into high gear. The president himself met with a variety of officials to explore options, reflecting his personal awareness of the danger of criminal liability that he now faced and the need to secure protection. After the
Hamdan
decision came down, “officials from the Departments of State, Defense, and Justice met with the President and officials from the CIA and NSC to consider the impact of the Court's decision. It was clear from the outset that legislation would have to be enacted to address the application of Common Article 3 and the War Crimes Act to the CIA interrogation program,” according to investigators in the Justice Department's Office of Professional Responsibility.
87
No time was wasted. A team quickly assembled over the summer to come up with ideas for new legislation. In September the Bush administration put forward the Military Commissions Act of 2006, designed to create a new framework for trying Guantánamo detainees.
88
While much of the public was distracted by astounding provisions that would eliminate the right to habeas corpus, steel arrows tucked inside the legislation were aimed at the heart of the War Crimes Act of 1996. They narrowed the War Crimes Act dramatically, in fact, making it virtually unenforceable. The International Committee of the Red Cross, getting wind of the proposed changes, raised objections, according to a
story in the
Washington Post
, one of the only articles to mention the topic at all.
89
But since the bill was introduced just before the 2006 midterm elections, few members of Congress would dare to vote against it for fear of being vilified as soft on terror.

Congress passed the law in a record three weeks and President Bush signed it on October 17, 2006. If people merely read the table of contents of the new law, they wouldn't even see the changes to the War Crimes Act listed specifically; they were merely designated as “implementation of treaty obligations.” But critical alterations were hiding . . . in full view. In this action—almost astonishing to review—the Bush administration used three unprecedented legal tactics to shred the War Crimes Act and protect itself from criminal liability. This time President Bush and Vice President Cheney wouldn't take any chances.

The Military Commissions Act of 2006
90
essentially gutted the War Crimes Act, making it virtually useless to a prosecutor:

On the first point, the Military Commissions Act eliminated several provisions of Common Article 3 as crimes under U.S. law. Specifically eliminated were acts that constituted “violence to life and person” and “outrages upon personal dignity, in particular humiliating and degrading treatment.” Other acts were redefined, too, removing them from the reach of the law. In particular, prosecution for “cruel and inhuman treatment” was wiped away.

The trick to doing this involved changing the definition of “cruel and inhuman treatment” to make it the equivalent to “torture.” The Geneva Conventions list “torture” and “cruel and inhuman treatment” as distinct and separate, making it clear that they are two different forms of behavior and are not equivalent. That's what the original War Crimes Act of 1996 did, too. No longer.

The ramifications of this change of definition might seem minimal
on the surface. They aren't. Without a doubt, the enhanced interrogation techniques constituted cruel treatment. No one could seriously dispute this. The stories and pictures from Abu Ghraib—vicious dogs snarling at a naked and shackled prisoner; chaining someone to a cell floor for hours at a time—are cruel and inhuman. But if certain actions can be defined as “merely” cruel treatment, the new War Crimes Act says that they are no longer prosecutable since “cruel and inhuman treatment” was replaced with “torture.” This meant that if mistreatment did not rise to the level of torture, it could not be prosecuted under the new War Crimes Act.

Former navy general counsel Alberto J. Mora described the critical legal distinction to the Senate Committee on Armed Services in June 2008. “Many of the ‘counter-resistance techniques' authorized for use at Guantánamo in December 2002 constitute ‘cruel, inhuman, or degrading' treatment that could, depending on their application, easily cross the threshold of torture,” said Mora. “Many Americans are unaware that there is a legal distinction between cruelty and torture, cruelty being the less severe level of abuse. . . . The government could evasively if truthfully claim (and did claim) that it was not ‘torturing' even as it was simultaneously interrogating detainees cruelly. Yet there is little or no moral distinction between cruelty and torture, for cruelty can be as effective as torture in savaging human flesh and spirit and in violating human dignity.”
91

Other definitions in the War Crimes Act were “adjusted” by the Military Commissions Act as well, following along in the capricious path of the Bybee/Yoo torture memos of August 1, 2002. Rather than the broad umbrella approach of the Geneva Conventions, the law was narrowed to nine specific behaviors that constitute violation of the law. In a particularly perverse twist, the definition of “mental pain and suffering” is “prolonged mental pain and suffering” for acts occurring before 2006, and “transitory mental pain and suffering” for acts occurring after 2006. The reason for this shift was to create another buffer against prosecution for waterboarding. By 2006, the use of waterboarding seemingly had been stopped; some claim that the mental “pain and suffering” of waterboarding is “transitory” and, under this new writing of the War Crimes Act, is not a prosecutable crime
before
2006, when the waterboarding occurred.

What does all this mean for a prosecutor? In short, it means that the new law is a mess. The law was chopped and churned, and the U.S. Congress was sadly compliant and complicit.

But there was more. The most extraordinary aspect of the Military Commissions Act of 2006 is a retroactivity provision to the War Crimes Act. (Although one may exist, I cannot think of a single precedent for this.) After the War Crimes Act was changed in ways that make it difficult to interpret and apply, the changes were made retroactive to November 26, 1997, the date of a major amendment that strengthened the War Crimes Act and which is also undone by the new law. In other words, the new War Crimes Act—weakened and hobbled in 2006—was backdated. The old law is simply replaced with the new one for the nine previous years. The effect of this black magic was to give the entire Bush administration a “free pass.”

And the Military Commissions Act added yet another retroactivity clause, this one extending the defenses slipped into the Detainee Treatment Act of 2005. These defenses—that individuals in the chain of torture could claim that they did not know the act was wrong or that they relied on the advice of a lawyer—were made retroactive as well, here to September 11, 2001.

In this maze of legal hocus-pocus, the Military Commissions Act of 2006 applied to a provision in the Detainee Treatment Act of 2005, which in itself applied to a potential prosecution under the War Crimes Act of 1996. Defenses that were not in the War Crimes Act when President Bush and his team entered the Oval Office and that were not in place when they committed crimes authorizing cruel and inhuman treatment as well as torture, were now ready and available.

As a consequence, the War Crimes Act, which should have served as a sentry of strength against the lawless Bush administration, was warped and disassembled. Instead of a law expressing the need for humane treatment of detainees, as originally designed, the Bush administration left behind a mangled and shrunken version, essentially issuing pardons to themselves. Rather than accountability, they opted—literally—to fix the books.

Top Bush officials, including the president, vice president, secretary of defense, and others, undoubtedly violated the War Crimes Act of 1996 in its original form, that is, as it was written in the legal code when they entered office. Under that War Crimes Act, authorization of torture or cruel, inhuman,
or degrading treatment of detainees is a criminal act. The president and vice president were personally involved in these actions.

They went to extraordinary lengths to decimate the law and construct layers of protection against prosecution. It's no wonder that President Bush and Vice President Cheney felt free to talk openly—even brag—about their authorization of torture and cruel treatment. They believed that they placed themselves beyond the reach of the law. As it relates to the War Crimes Act, they are likely right.

It's true. The primary defense of Bush officials charged with crimes of cruel, inhuman, or degrading treatment under the War Crimes Act would be that the law does not apply to their actions. Since the key definitions under the law were changed and made retroactive, a prosecutor will have to ask: “which definition of torture, or of cruel treatment, applies?”

If a person were charged under the
old
definition in the law, a defendant would argue that the old law had been changed by the new law so that the old definition—legally speaking—did not exist. Charging a person under the
new
watered-down law would be extremely difficult because so many actions are exempted. In short, the law has been made incomprehensible.

Congress should have stopped the tampering with the War Crimes Act. That didn't happen. President Bush succeeded in an insider assault on the War Crimes Act, making it legally nonsensical and virtually useless as a tool for prosecution of cruel or inhuman treatment.

The current tattered state of the War Crimes Act puts the United States out of compliance with the Geneva Conventions, a treaty ratified by the United States. Congress should begin at once to remove the retroactivity clauses, revert the language, remove the prerogative to claim reliance on a lawyer's advice as a defense, and reinstate the law to reflect its original purpose and provisions.

The anti-torture law in the United States is the second important law that should cause worry for Bush officials. Under U.S. Code Title 18, Sections 2340–2340A, it is a federal crime for anyone acting in a U.S. government
capacity to commit torture or to conspire to do so.
92
The law applies to torture committed outside the United States. Those convicted under the law can be sentenced to prison for up to twenty years, and the death penalty may be imposed if death results from the torture. The law applies to all U.S. nationals, which, in this case, includes the president of the United States and his entire team.