The White House's "dealbreaker" on detainee treatment

Amidst all the flutter of coverage yesterday around detainee policies, one little but significant bit seems to have fallen by the wayside: Immunity for US personnel for past acts.

Third, I'm asking that Congress make it clear that captured terrorists cannot use the Geneva Conventions as a basis to sue our personnel in courts -- in U.S. courts. The men and women who protect us should not have to fear lawsuits filed by terrorists because they're doing their jobs.

Inside the White House's previous proposed legislation, (and also inside the Specter version) is a provision which would retroactively immunize US personnel not just from civil claims, but also from criminal claims.

This is significant not only for the frontline US personnel who may have crossed the legal line, but also for those who issued the policy under which it was done. I do not have a copy of the current proposed legislation, but I would wager that, like the previous version, it is written in such a way as to immunize administration officials who signed off on the secret prisons and some of the more extreme, Geneva violating "harsh interrogation tactics."

The Supreme Court's Hamdan decision, in effect, said that the Bush administration had broken the law by violating the Geneva Conventions. In that case, it was specific only to the military tribunal process, but the precedent and implication is that the administration's Article II claims were invalid and that Geneva applied.

This means that in the secret prisons program, interrogation policies, and probably renditions, individuals in the Bush administration broke the law, the criminal law under the War Crimes Act of 1996.

This immunity issue will be the one immovable item in the entire debate.

(Here's a WaPo piece discussing this conflict in relation to the administration's previous attempt at detainee legislation. And the relevant provison of the War Crimes Act itself Provisions 1 & 3 in the US criminal code.)

As used in this section the term “war crime” means any conduct—

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or

After the Hamdan decision held that detainees are covered under article III, that would seem to fairly clearly indicate criminal violations.