And While You're at it, We'd Like Impunity from War Crimes Too, Please

JB

As Marty has explained, the Bush Administration would like a "shocks the conscience test" that would offer less protection than Common Article 3 and would allow various forms of prisoner abuse and mistreatment, which would be justified on the grounds that it was necessary to obtain important information. As the Post explains:

The Justice Department's top legal adviser, Steven G. Bradbury, separately testified two weeks ago that Congress must give new "definition and certainty" to captors' risk of prosecution for coercive interrogations that fall short of outright torture.

Language in the administration's draft, which Bradbury helped prepare in concert with civilian officials at the Defense Department, seeks to protect U.S. personnel by ruling out detainee lawsuits to enforce Geneva protections and by incorporating language making U.S. enforcement of the War Crimes Act subject to U.S. -- not foreign -- understandings of what the Conventions require. [Ed.-- This last statement in the Washington Post article is not quite accurate. Rather, the idea is to adopt language that offers less protection than the language of Common Article 3 provides-- or the Army Field Manual, for that matter. It is not simply imposing a particular domestic interpretation of the Treaty; this point is made clear in the next paragraph]

The aim, Justice Department lawyers say, is also to take advantage of U.S. legal precedents that limit sanctions to conduct that "shocks the conscience." This phrase allows some consideration by courts of the context in which abusive treatment occurs, such as an urgent need for information, the lawyers say -- even though the Geneva prohibitions are absolute.

The Supreme Court, in contrast, has repeatedly said that foreign interpretations of international treaties such as the Geneva Conventions should at least be considered by U.S. courts.

Some human rights groups and independent experts say they oppose undermining the reach of the War Crimes Act, arguing that it deters government misconduct. They say that any step back from the Geneva Conventions could provoke mistreatment of captured U.S. military personnel. They also contend that Bush administration anxieties about prosecutions are overblown and should not be used to gain congressional approval for rough interrogations.

"The military has lived with" the Geneva Conventions provisions "for 50 years and applied them to every conflict, even against irregular forces. Why are we suddenly afraid now about the vagueness of its terms?" asked Tom Malinowski, director of the Washington office of Human Rights Watch.

Since the U.S. invasions of Afghanistan in 2001 and Iraq in 2003, hundreds of service members deployed to Iraq have been accused by the Army of mistreating detainees, and at least 35 detainees have died in military or CIA custody, according to a tally kept by Human Rights First. The military has asserted these were all aberrant acts by troops ignoring their orders.

Defense attorneys for many of those accused of involvement have alleged that their clients were pursuing policies of rough treatment set by officials in Washington. That claim is amplified in a 53-page Human Rights Watch report this week that quoted interrogators at three bases in Iraq as saying that abuse was part of regular, authorized procedures. But this argument has yet to gain traction in a military court, where U.S. policy requires that active-duty service members be tried for any maltreatment. The War Crimes Act, in contrast, affords access to civilian courts for abuse perpetrated by former service members and by civilians. The government has not filed any charges under the law.

Since September 2001, however, Bush administration officials have considered the law a potential threat to U.S. personnel involved in interrogations. While serving as White House legal counsel in 2002, Gonzales helped prepare a Jan. 25 draft memo to Bush -- written in large part by David Addington, then Vice President Cheney's legal counsel and now Cheney's chief of staff -- in which he cited the threat of prosecution under the act as a reason to declare that detainees captured in Afghanistan were not eligible for Geneva Conventions protections.

"It is difficult," Gonzales said in the memo, "to predict the motives of prosecutors and independent counsels who may in the future decide to bring unwarranted charges." He also argued for the flexibility to pursue various interrogation methods and said that only a presidential order exempting detainees from Geneva protections "would provide a solid defense to any future prosecution." That month, Bush approved an order exempting those captured in Afghanistan from these protections.

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. Finally, if Congress does nothing, the President will continue to take the position that the War Crimes Act may be unconstitutional as applied to him and to persons acting on his orders. (That unitary executive stuff comes in real handy!)

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. Freedom isn't free, you know. If you want to protect human rights and democracy around the world, you have to break a few testicles-- I mean, eggs.