Impeachment for Supposed War Crimes
VOLOKH at mail.law.ucla.edu
Wed Nov 21 19:16:09 PST 2001
I agree with Mark that, as I mentioned, Bush's order *might*
be read as allowing him to single-handedly convict the acquitted, but it's
far from clear to me that it would be read this way. If it is read this
way, I would be considerably more troubled. I'm not sure whether it would
be deprivation of a "fair and regular trial" for Geneva Convention purposes,
but I think the argument would be considerably stronger. What's more, I'd
like to know more about the history of military trials in England and the
early U.S. to decide whether such a procedure would even be constitutional
under the U.S. Constitution. But the very fact that this is such an unusual
procedure makes it likely, I think, that the President in fact would never
do such a thing (though of course I might be mistaken, and would love to
hear any historical evidence to the contrary).
Extending a sentence is a tougher question, about which I
haven't thought much; I'd certainly oppose it in the civilian context, but I
think we'd need to know more about the history of military trials to know
whether it's (a) likely, and (b) traditionally permissible.
Might I ask again, though, which of the people covered by
the Executive Order are indeed prisoners of war for Geneva Convention
purposes? All? Some?
Mark Tushnet wrote:
> I think Eugene is misreading the possibilities under the Executive Order
> in reading it simply to authorize a pardon. The provision at issue
> authorizes an appeal and decision by the president but, standing alone,
> doesn't rule out the possibility that the appeals process could include
> an appeal by the prosecution of an acquittal or a sentence regarded as
> insufficient, and not simply reversal for a new trial and sentence but
> decision by the president himself on guilt and sentence. As I said in
> my posting on this, much will turn on the regulations adopted by the
> Secretary of Defense, but, on the assumption that the regulations *do*
> authorize a presidential finding a guilt and imposition of a death
> sentence in a case where the tribunal acquitted, and that actually
> happened, would there have been a "fair and regular trial" within the
> meaning of the relevant agreements?
I originally wrote:
> > > 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?
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