Although not as widely remarked as the elimination of habeas rights and the consecration of torture, the recently passed Senate torture legislation includes provisions that would immunize the Bush administration and other US personnel from prosecution under the War Crimes Act of 1973, not just looking forward but retroactively as well, going back to 1996.
Why 1996? Because the War Crimes Act of 1996, signed into law by Bill Clinton on August 21 of that year, makes violations of several Geneva Convention protocols by any US national or member of the US military, here or abroad, a crime.
Bush is a US national, and he has acknowledged violating Article 3 of the Geneva Conventions, including but not limited to:
Why is this so important now? Because the administration is facing a possible Democratic Congressional majority, and because theyâ€™ll all be out of office in two years and more available for criminal prosecution, and because any conviction under the War Crimes Act leaves them open to civil suits as well. By effectively repealing the Act â€” although it remains on the books, for now â€” Congress has taken both jail time and serious hits to the royal pocketbooks off the table.
Further, the administration narrowly escaped one close call and is facing another. Earlier this year, an Italian magistrate allied with former prime minister Silvio Berlusconi closed down an investigation into the CIA kidnapping of a Muslim cleric from the streets of Milan (the cleric was then flown to Egypt and tortured). And now, German authorities are looking into the kidnapping and torture of a German national, Khaled al Masri, who was snatched, held and interrogated in Macedonia and then flown to Afghanistan, where he was held and regularly beaten for more than four months before being released and returned to Germany.
Convictions of CIA personnel by US allies would lend weight to prosecutions here in the US. Add to that the presidentâ€™s publicly acknowledged Geneva violations, and the prospect of administration officials facing justice for their crimes becomes very real.
Bush could and still may preemptively pardon anyone and everyone who violated the War Crimes Act, but that wonâ€™t do much for his precious legacy â€” the very notion that heâ€™s done anything requiring a pardon is and will remain completely alien to him. The torture bill, if it survives constitutional challenges, obviates the need for pardons, at least on that score; it isnâ€™t his fault heâ€™s violated the law, but the lawâ€™s.
So the eventual bill not only provides legal shelter for the administration, but, perhaps equally as important, retroactive moral justification for their crimes. For a president and an administration who are allergic to taking responsibility for their behavior, changing the official nature of that behavior is a perfect fix.