Bush Considers Weakening War Crimes Act
The Bush administration has drafted amendments to a war crimes law that would eliminate the risk of prosecution for political appointees, CIA officers and former military personnel for humiliating or degrading war prisoners, according to U.S. officials and a copy of the amendments. Officials say the amendments would alter a U.S. law passed in the mid-1990s that criminalized violations of the Geneva Conventions, a set of international treaties governing military conduct in wartime. The conventions generally bar the cruel, humiliating and degrading treatment of wartime prisoners without spelling out what all those terms mean. The draft U.S. amendments to the War Crimes Act would narrow the scope of potential criminal prosecutions to 10 specific categories of illegal acts against detainees during a war, including torture, murder, rape and hostage-taking.
While it makes sense to change the law to ensure that government employees carrying out their assigned duties are not subject to criminal prosecution for so doing, this would be a tragic mistake.
The problem is not that existing law is too strict but that the policy in question is wrongheaded. Following the Geneva Conventions is not only something the United States is obligated to do–indeed, the Constitution explicitly states that simple legislation can not override treaty commitments–but unquestionably in our own best interests.
Gary Farber gets it right:
Because if American power to engage in forced nakedness of prisoners, to put them on dog leashes and in women’s underwear isn’t preserved, god help the survival of our nation. And its ideals.
If America isn’t about putting people on dog leashes and in women’s underwear, what is it about?
Ironically, this comes from an administration that quite rightly ensured that the perpetrators of Abu Ghraib–although not their direct chain of command–were punished for dishonoring their uniform and setting back our cause in Iraq considerably. Hint: This is not helping.
Susie Madrak, meanwhile, sees a darker motive here: “The fact that they’re doing this now does seem to indicate they’re, oh, a little concerned about November’s midterms, doesn’t it?” Even in the crazy political climate we’re in, I don’t think they’re seriously worried about high level officials being prosecuted for exercising their judgment in national security matters.
UPDATE: In the comments below, Susie points to a May 2004 Newsweek story about a 2002 internal memo from then-WH Cousel Alberto Gonzales suggesting he was in fact worried about this possibility.
In the memo, the White House lawyer focused on a little known 1996 law passed by Congress, known as the War Crimes Act, that banned any Americans from committing war crimes—defined in part as “grave breaches” of the Geneva Conventions. Noting that the law applies to “U.S. officials” and that punishments for violators “include the death penalty,” Gonzales told Bush that “it was difficult to predict with confidence” how Justice Department prosecutors might apply the law in the future. This was especially the case given that some of the language in the Geneva Conventions—such as that outlawing “outrages upon personal dignity” and “inhuman treatment” of prisoners—was “undefined.”
Interesting. I’m sure I read that at the time, although there’s nothing in the blog archives about it, but I’d long forgotten it. Lawyers are paid to cover all the bases but, from a pure practical politics sense, I still believe my original assessment correct.