Impeachment for Supposed War Crimes

[Eugene Volokh]

        I guess that's why I asked for "some specific, articulated, well-supported
explanation for why we might think that the establishment of military
tribunals to try alleged saboteurs, soldiers of an enemy force sent in
civilian dress to kill Americans on American soil -- something that I
understand is amply precedented, and generally thought to be permissible at
least in some such situations -- is indeed a violation of the War Crimes Act
of 1996."

        The bare assertions that "At the very least, the right to a fair trial
means that one cannot be both prosecutor and judge. Section 2(a)(1) of
Bush's military order in conjunction with Section 4(c)(8) makes Bush both
prosecutor and judge" do not strike me as terribly persuasive on their own.
Unless I'm mistaken, in many civil law countries, the judge does have some
degree of a prosecutorial role -- does the Geneva Convention outlaw that?
Also, while I know some have suggested that Bush's order *might* be read as
allowing him to single-handedly convict the acquitted, it's far from clear
that it would be read this way; and if it's read as just allowing him to
pardon the convicted, then it's not much different from the President's
normal pardon power -- or does the Geneva Convention outlaw that, too?

        So let's just say that at this point I'm very far from persuaded that
President Bush's order would be remotely violative of the Geneva Convention
or of federal law.  If there are some more specific, articulated,
well-supported explanations for why this might be so, and why it would be
proper to call President Bush a war criminal, I'd like to hear them.  But so
far the evidence on this score strikes me as about as persuasive as, say,
the evidence that the Supreme Court would strike down an Act of Congress on
the grounds that it violates customary international law.

        Eugene

> -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Francisco Forrest
> Martin
> Sent: Wednesday, November 21, 2001 3:54 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Impeachment for Supposed War Crimes
>
>
> Prof. Volokh wrote: "Well, I certainly agree that the President
> can be impeached for war crimes,if he commits them, just as, say,
> Prof. Martin could be tried for stealing chickens, if he steals
> them.  But before much by way of hypos about Prof. Martin being
> tried for chicken-stealing, I'd like to know a bit more about
> just why we might think that he has in fact been stealing
> chickens. (Needless to say, I have absolutely no reason to think
> that he is in fact guilty of this -- but likewise I have
> absolutely no reason to think that President Bush is guilty of
> war crimes.)"
>
> I guess that you must have missed my previous posting explaining
> how Bush could be subject to prosecution under the War Crimes Act
> of 1996. The War Crimes Act prohibits U.S. nationals and members
> of the U.S. armed forces from committing grave breaches of the
> Geneva Conventions. Bush is both a U.S. national and a member of
> the U.S. Armed Forces.  Grave breaches include "wilfully
> depriving a protected person of the rights of fair and regular
> trial prescribed in the present Convention" (Fourth Geneva
> Convention, art. 147).  At the very least, the right to a fair
> trial means that one cannot be both prosecutor and judge. Section
> 2(a)(1) of Bush's military order in conjunction with Section 4
> (c)(8) makes Bush both prosecutor and judge.  Therefore, e.g., if
> Bush submitted someone for trial to the military commission, the
> person was not convicted, and Bush exercised his authority
> Section 4(c)(8) to convict the person, this would not be a fair
> trial.  Bush would have committed a grave !
> !
> breach of Fourth Geneva Convention and, thereby, a violation of
> the War Crimes Act.  Moreover, if the individual was executed,
> Bush would be subject to the death penalty.
>
> Francisco Forrest Martin
> Ariel F. Sallows Professor of Human Rights
> University of Saskatchewan College of Law
>