Jennifer Van Bergen 8/3/06

A few weeks ago, the Supreme Court ruled in Hamdan v. Rumsfeld that the Guantánamo military tribunals violate the U.S. Constitution, the Geneva Conventions and the laws of war. It was a landmark decision, but the court did not address whether anyone may be held criminally liable for these violations. Not only should those responsible for violating these laws be criminally charged, charges should be filed against those in the highest levels of government.

Even before the Supreme Court decision, legal grounds existed  for bringing war crimes charges against members of the Bush administration and the military. The court’s ruling merely strengthened the case. It is clear from recent news detailing efforts by the Bush administration to enact a “shield” against war crimes prosecutions for “officials and troops involved in handling detainee matters,” that administration officials know this.

The basis for any criminal case against the architects of the Guantánamo tribunals and other illegal acts related to the “war on terror” rests on the Geneva Conventions and laws of war–which were incorporated into domestic federal law by the 1996 and 1997 War Crimes Act (18 U.S.C. 2441). These laws provide that any member of the U.S. armed forces or any U.S. national who commits a war crime may be fined or imprisoned for a term as long as life and may even be subject to the death penalty if death resulted from the violation. War crimes are broadly defined as “grave breaches” of Geneva or violations of Geneva Common Article 3, as well as violations of various parts of the Hague Convention IV, Respecting the Laws and Customs of War on Land.

There is no excuse for lawyers, commanders, or high government officials to claim ignorance of either the existence or meaning of these long-standing laws and long-ratified treaties. All possible targets of a criminal prosecution are public servants bound by oath to protect and uphold the Constitution and the laws of the U.S., including treaties. Knowledge of their duties and the laws to which their duties apply must be seen as required by their offices, and the War Crimes Act provides the means for prosecution.

Full article: White House Behind Bars

Jennifer Van Bergen is a journalist with a law degree. Her book The Twilight of Democracy: The Bush Plan for America has been called a “primer for citizenship.”  She can be reached at