August 19, 2006

Can Bush's Ex Post Facto Amendment to the War Crimes Act Shield Him From An Ex Post Facto Amendment of the War Crimes Act?

In law, this is what we call a "nice" problem, in the 6th sense of my American Heritage Dictionary, "showing or marked by great precision or sensitive discernment; subtle; a nice distinction." I will leave it to the legal academics, such as Jack Balkin whose excellent website is linked above, to do the heavy lifting on the question when it is joined, in another nice legalism, but to sketch out the general outlines:

President George W. Bush has been a little worried, in the wake of the Hamdan vs. Rumsfeld decision which held, lo and behold, that Common Article 3 of the Geneva Conventions applies to the United States of America even when it is torturing or beating the living shit out of an Arab or a sort of Arab-looking person (such as an Afghan) in some American hellhole like Guantanamo or Abu Ghraib. That is (get this) the U.S. military, the CIA and any mercernary hired to do the rough stuff is subject to the War Crimes Act, even though the scum or lower life form on the receiving end of the mayhem is not actually part of a regular army of a country which is signatory to the Geneva Conventions. The Supreme Court, "in other words" (in Georgie's favorite phrase), has ruled that the Arab or Arabo-human is entitled to protection just because he is a human being. Prior to this decision, on the basis of legal opinions bought and paid for by the Bush Administration (including, to my lasting shame, the opinion of John Yoo of UC Berkeley), Bush & Co. had proceeded on the assumption they could do any damn thing they wanted with complete impunity. Not so, said the Supremes. After the Hamdan decision was explained to Bush, he must have had a Jimmy Durante moment: What a revoltin' development dis is!

Indeed, it does pose a parlous situation for W. That's because the War Crimes Act is a little austere in its disapprobations:

§ 2441. War crimes.

(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(b) Circumstances.— The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).
(c) Definition.— 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;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(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
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

Remember what a big fan George was of the death penalty when he was governor of Texas? He was practically running a human slaughterhouse. I suspect his enthusiasm for the Ultimate Punishment has been tempered in recent weeks, so much so that his staff has been working on draft legislation (which I used to think was the province of Congress) to amend the War Crimes Act. Apparently, when this amendment is unveiled, or "rolled out," it will provide immunity for U.S. military personnel and "policy makers" (who could they be?) who acted in "good faith" on the basis of a preexisting understanding that the Untermenschen were entitled to no rights whatsoever, having been born in or near a country within the Axis of Evil, being a little on the dusky side, and saying "Allah" too often.

The Constitution of the United States of America, what is left of it, proscribes ex post facto laws which impugn or criminalize conduct which occurred before passage of the statute. As Tweedledum and -dee might have said it, if it had been a crime, it would be; but as it wasn't, it isn't - that's legal logic. Also, another shibboleth lawyers like to throw around is that this sort of immunity from prosecution is a "shield, not a sword," meaning it's okay to pass a law after the conduct in question which decriminalizes the act. So, for example, if one of the "policy makers" in the Oval office issued a Presidential Bull which said let's beat these ragheads to within an inch, or even just beyond an inch, of their lives, and said Arabistic person died; and if the Supreme Court then inconveniently ruled that this particular species of murder is in fact a War Crime; well then, a Republican controlled Congress could immunize such "policy maker" from prosecution, conviction and maybe lethal injection after it all happened without violating the Ex Post Facto provision.

Now, with this as background, you can see that the scriveners in the offices down the hall from the Oval Office might have kicked into overdrive, seeing that November date out there when the pet Congress currently in session might be replaced by a bunch of snarling, hostile Democrats. Another Jimmy Durante moment. Currently, the White House has the sanctimonious, unctuous assistance of such Senators as Lindsay Graham, who has decried, long and hard, the awful specter of U.S. military personnel now confronted by actual consequences for what they did. We can't have that, not in this America, not now. It would be like Caesar getting exercised about Roman legions out in the provinces hanging a few dissidents on crosses. It keeps the vassals of the Empire in line.

But the "nice" question: can Congress, in a later, Democratically-controlled Congress, revive the War Crimes Act as originally, sanely and humanely passed, without this preposterous and evil "amendment" allowing exactly what the Act intended to make illegal? And can everyone who violated the Act, grunts and "policy makers" alike, be called to the dock to answer for their inhumanity? My guess is that a subsequent amendment deleting the amendment, or loophole, would not violate the Ex Post Facto clause. It was a crime when the barbarity was ordered and executed; it ought to be a crime again when the nation comes to its senses.

August 14, 2006

A Word on H.D. Thoreau

Probably someone who styles his blog "Waldenswimmer" ought to say something about Henry David Thoreau once in a while, just for the sake of authenticity. I recently found my copy of "Walden," a little the worse for wear, perhaps understandably when the cover indicates I paid $1.00 for it, even though it's an edition we would now call a trade paperback. I have to read for a long time before I come to a line I don't remember word-for-word; I've read it that many times.

I suppose the thing I like most about Thoreau is his unquestionable sincerity and enthusiasm. The prose of "Walden" is a little archaic, even after considering that most of it was written in the early 1840's; nevertheless, he got his ideas across, sometimes with stunning insight. "The mass of men lead lives of quiet desperation." He wondered, mainly, whether this condition was necessary. I don't know what his answer really was. I think he may have found answers for himself but not for the mass of men, although he never had intentions of being an elitist. He was trying to find, in his noble experiment, answers of general application. The peroration of Walden dwarfs the loftiest self-help bromides of Dr. Phil or Dr. Wayne Dyer (all these "doctors.") "I learned this, at least, by my experiment; that if one advances confidently in the direction of his dreams and endeavors to live the life which he has imagined, he will meet with a success unexpected in common hours." For years I kept those words taped to my bathroom mirror.

Thoreau, perhaps, was not what we would now call a "complete" man. He wasn't fully "realized" because he didn't have a wife, or family, or even a solid body of work. His writing is full of the untempered defiance of youth because he didn't outlive his youth. He was born in 1817 and died of tuberculosis in 1862, just short of his 45th birthday. The two years and two months at the Pond were spent in his late twenties. Nevertheless, his penetrating intelligence was such that he saw through to eternal verities from the start. This seems to me the defining characteristic of great genius. It seems impossible for someone to overcome the limiting prejudices and conceptions of his era and write something true not just for the moment, but for the ages. Thoreau did exactly that. Living and writing in an environment, the New England of the first half of the 19th Century, that we might now consider idyllic, he nevertheless foresaw and described the horrors of the Industrial Revolution and what it would mean for modern life as men were increasingly forced into roles as cogs in an immense social machine.

160 years after Thoreau spent his 26 months at Walden Pond, we now see what life is in a "globalized" economy and observe, in its fully realized form, the sense of pervasive helplessness that now afflicts a human species completely alienated from its natural environment. I think about problems like global warming and reflect that Thoreau, musing in 1845, noted that even then there were "professors of philosophy but no philosophers." So today, while everyone continues to drive the same cars, heat the same huge houses, fly anywhere they want in the jumbo jets that deposit CO2 right at the atmospheric level where it does the most damage, we judge the relative "virtue" of our polluting friends and neighbors by their "attitudes" about what they're doing. If they feel bad about it, and talk about the books they've read on the subject, they can do whatever they want. Someday we'll begin dealing with the problem, someday when it's not as inconvenient. A celebrity might have houses in West L.A. and in Martha's Vineyard and sear the atmosphere with a CO2 contrail of Heat Death, but if she drives a Prius and makes the right noises, she's a heroine for the modern age.

Thoreau would have laughed ruefully at all of this, then gone for his morning swim. His virtue was its own reward. He would have been more out of place in this day and age than ever, his drummer striking a cadence, measured and far away, which we simply can't hear anymore.