Bush Considers Weakening War Crimes Act

The Bush administration is considering li

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.

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James Joyner
About James Joyner
James Joyner is Professor of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Stormy70 says:

    This is a set up for the Dems in the fall. You will see Dems calling for more rights for terrorists, and slamming the military. All the while, the Republicans will be saying, “The Cut and Run party wants to slander the fine men and women in the military and convey rights to terrorists who run around beheading and killing innocent people.”
    This is good politics for the run up to the midterms. I really don’t care about terrorists being humilated, and most Americans agree with me.

    Plus, the Dems will have to go left or face the wrath of the nutroots in their party. Michael Moore has already threatened other Dems this morning. Karl Rove could not have scripted this better for the fall elections, with the huge assist the Lamont primary win gives Republicans.

  2. Susie Madrak says:

    Just so you know, James: You’re wrong.


    I’m surprised this is news to you.

  3. DC Loser says:

    I don’t think they’re seriously worried about high level officials being prosecuted for exercising their judgment in national security matters.

    Tell that to Slobo.

  4. James Joyner says:

    DCL: While I opposed going into Bosnia and Kosovo and applying victor’s justice afterwards, it’s a wholly different issue. We’re talking here about American politicians holding duly elected American politicians criminally responsible for policy decisions on how to treat America’s enemies. That’s just not a road anyone in power is going to want to go down.

  5. DC Loser says:

    James, please correct me if I’m wrong. I don’t think the fear was so much of domestic prosecution as I think that’s a very remote possibility unless it’s really egrgious. I think the fear was more the right wing variety of unaccountable international courts trying US military members. Wasn’t 2002 about the time that Slobo was handed over to the ICC in the Hague?

  6. James Joyner says:

    DCL: Not sure how changing US domestic law would effect that, indeed remote, possibility.

  7. Anderson says:

    Billmon pegs this:

    This is like letting John Gotti rewrite the RICO statute.

    And the only objection I have to seeing America’s torturers tried for war crimes, is seeing Rumsfeld, Haynes, and Gonzales walk.

  8. Legislation certainly can override treaty commitements. Since T. Jefferson’s day as VP, hence president of the Senate, treaties have been viewed as nothing more than legislative enactments, subject to future legislative modifications or repeals just as any ordinary law. Treaties have mo greater standing in US jurisprudence than any other Congressional enactment.

  9. James Joyner says:


    I have long had it in my head that simple legislation couldn’t trump treaties on the notion that the latter required supermajority approval.

    Additionally, Article VI could be read that way: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; […]”

    But you’re right: The case law is clear on this matter. From FindLaw:

    It is in respect to his contention that, when it is asked to carry a treaty into effect, Congress has the constitutional right, and indeed the duty, to determine the matter according to its own ideas of what is expedient, that Madison has been most completely vindicated by developments. This is seen in the answer which the Court has returned to the question: What happens when a treaty provision and an act of Congress conflict? The answer is, that neither has any intrinsic superiority over the other and that therefore the one of later date will prevail leges posteriores priores contrarias abrogant. In short, the treaty commitments of the United States do not diminish Congress’ constitutional powers. To be sure, legislative repeal of a treaty as law of the land may amount to a violation of it as an international contract in the judgment of the other party to it. In such case, as the Court has said: ”Its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress.


    [Footnote 303] Head Money Cases, 112 U.S. 580, 598 -599 (1884). The repealability of treaties by act of Congress was first asserted in an opinion of the Attorney General in 1854. 6 Ops. Atty. Gen. 291. The year following the doctrine was adopted judicially in a lengthy and cogently argued opinion of Justice Curtis, speaking for a United States circuit court in Taylor v. Morton, 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass 1855). See also The Cherokee Tobacco, 78 U.S. (11 Wall.) 616 (1871); United States v. Forty-Three Gallons of Whiskey, 108 U.S. 491, 496 (1883); Botiller v. Dominguez, 130 U.S. 238 (1889); The Chinese Exclusion Case, 130 U.S. 581, 600 (1889); Whitney v. Robertson, 124 U.S. 190, 194 (1888); Fong Yue Ting v. United States, 149 U.S. 698, 721 (1893). ”Congress by legislation, and so far as the people and authorities of the United States are concerned, could abrogate a treaty made between this country and another country which had been negotiated by the President and approved by the Senate.” La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899). Cf. Reichart v. Felps, 73 U.S. (6 Wall.) 160, 165 -166 (1868), wherein it is stated obiter that ”Congress is bound to regard the public treaties, and it had no power . . . to nullify [Indian] titles confirmed many years before. . . .”


  10. DC Loser says:

    So I’m right????

  11. James Joyner says:

    DCL: Maybe. Congress can abrograte treaty requirements from a domestic standpoint but other signatories often do not recognize these changes (same link).

    As a practical matter, given that we’re the United States and not, say, rump Yugoslavia, that probably doesn’t much matter. No international court is going to haul an American official into a war crimes trial without American blessing; which is to say, they’re not going to haul an American official into a war crimes trial.