High crimes

The more Glenn Greewald looks at the Supreme Court's decision in Hamdan v. Rumsfeld, the more he likes it.

I've been talking in all seriousness for a while about the legal jeopardy for the planners of the Iraq War, the torture gulag and several other atrocities against the law and the Constitution. If Greenwald's reading is right, at least five Supreme Court Justices have been thinking about those lines, as well:

The tough guys in the administration who scoffed at legal limits were warned that, by ignoring the long-standing mandates of the Geneva Conventions, they could be subjecting U.S. personnel to prosecution for war crimes, a threat which they apparently failed to take seriously. They're taking it seriously now ...

The Supreme Court unquestionably rejected the very theories which the Bush administration has been using to defend themselves from accusations of criminal conduct. The ruling in Hamdan stripped those defenses away and the lawbreakers in the administration are left standing exposed. There is simply no question that the five-Justice majority in Hamdan would reject with equal vigor, at least, the administration's claim that the AUMF [the 2001 authoritzation of force after the 9/11 attacks] authorized them to eavesdrop in violation of FISA and/or that the President has the inherent authority to violate Congressional law in the area of national security.

That means that the administration has no defenses to fend off charges that they deliberately violated the criminal law --and continue to do so - by eavesdropping on Americans without warrants, or torturing people in violation of the Geneva Conventions and/or the McCain Amendment, or violating the National Security Act of 1947 by concealing major intelligence activities from Congress. Those are criminal offenses. And the Supreme Court just expressed unbridled hostility towards their only defenses they have to those crimes. ...

Beyond that, the Supreme Court in Hamdan deliberately laid at least the theoretical foundation for high officials in the Bush administration to be charged with war crimes. They expressly ruled that the military commissions violate those Conventions, and if any prisoners were to be executed by virtue of commissions which violated Common Article 3, or if detainees are deliberately and systematically mistreated in violation of that provision, that would be a war crime, by definition. I simply don't believe that there are government officials who are subjected to those sorts of suggestions from the U.S. Supreme Court who are not taking them seriously.

Is that Pete Seeger's "Last Train to Nuremberg" that I hear playing in the background?

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