Jack Balkan has been analysing the Bush administration's proposals in response to the Supreme Court's Hamdan decision, gauranteeing Guantanamo detainees the protections of the Geneva convention. In particular he is concerned with the moves to amend or abolish the 1996 War Crimes Act, which basically says US citizens found guilty of committing war crimes will be fined, jailed or executed.
"So the Administration position, post-Hamdan, is that Congress should excuse Americans (and Administration officials) from liability for possible war crimes, either because the act is unnecessary-- since we have always acted humanely except for a few bad apples who didn't take orders from the Administration-- or because it is necessary-- since the Administration has in fact ordered people to violate Common Article 3...
And what about those bad apples who were acting completely on their own? Well, there's the rub, you see. If any of them is ever prosecuted under the War Crimes Act, their most likely defense will be that they weren't really bad apples after all, but were actually following orders of the Administration-- the same Administration that insists that it has always treated its detainees humanely. And if a jury were to find that they believed this defense, it would be a bit-- shall we say-- embarrassing for the Administration. So to minimize the risk of any such embarrassments, the Administration would prefer that even the bad apples don't get prosecuted under the War Crimes statute.
So there you have it. A law making it a illegal to commit war crimes is simply a luxury that we Americans can't afford."