Another Measure of How Far We Have Fallen

Brian Tamanaha

Jack's below post details the contortions involved in the Bush Administration's effort to protect U.S. officials and troops engaged in possible war crimes. A different aspect of the same article--focusing on the origin of the War Crimes Act of 1996--also bears comment:

The...legislative sponsor [of the War Crimes Act of 1996] is one of the House's most conservative members, Rep. Walter B. Jones Jr. (R-N.C.). He proposed it after a chance meeting with a retired Navy pilot who had spent six years in the notorious "Hanoi Hilton," a Vietnamese prisoner camp. The conversation left Jones angry about Washington's inability to prosecute the pilot's abusers.

Jones's legislation for the first time imposed criminal penalties in the United States for breaches of the Geneva Conventions, which protect detainees anywere. The Defense Department's deputy general counsel at the time declared at the sole hearing on it in 1996--attended by just two lawmakers--that "we fully support the purposes of the bill," and urged its expansion to cover a wider range of war crimes. The Republican-controlled House passed the bill by voice vote, and the Senate approved it by unanimous consent.

The law initially criminalized grave breaches of the Geneva Conventions but was amended without a hearing the following year to include violations of Common Article 3, the minimum standard requiring that all detainees be treated "humanely." The article bars murder, mutilation, cruel treatment, torture and "outrages upon personal dignity, in particular humiliating and degrading treatment." It applies to any abuse involving U.S. military personnel or "nationals."

Jones and other advocates intended the law for use against future abusers of captured U.S. troops in countries such as Bosnia, El Salvador and Somalia, but the Pentagon supported making its provisions applicable to U.S. personnel because doing so set a high standard for others to follow....

"On second thought...never mind that last part," now says the Bush Administration.

Given the overwhelming support for the Act, it is likely that not one of the many members of the Senate and House who voted for it imagined at the time that its terms would ever apply to us in any systematic way. That was unthinkable. The U.S. simply does not do that kind of stuff to detainees.

That was before 9/11, repeats the Bush Administration again and again. The once unthinkable is now sometimes necessary. Terrorism is different, nastier business, requiring nastier treatment of detainees. Watch out bad guys (or suspected bad guys), cause we are ready and willing to make you suffer. In this new reality, setting a high standard for others to follow is no longer a priority--defending the nation from attack matters above all else. The War Crimes Act of 1996 was well meaning, but naive and incautiously worded.

When the Bush Administration submits its proposed amendments to the law, Congress can agree that it (and the Defense Department) was naive a decade ago, and that things have changed. Or it can confirm that it was right the first time, that it was and remains unthinkable that the U.S. would treat prisoners inhumanely, that under no circumstances will we systematically engage in conduct remotely resembling that of Vietnamese prisoner-of-war camps, that this country represents and aspires to high standards, that to sacrifice these ideals would mean the terrorists have scored a significant victory in their effort to bring down the United States.

We must not forget that the terrorists are not out to defeat or conquer the U.S. in any traditional sense. That is impossible. Above all else, they want to expose us as evil.
Posted 11:16 AM by Brian Tamanaha [link]