an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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
by Brian Tamanaha [link]
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
The reporter's reference to El Salvador in this context is odd, not to say a sick joke. The war there concluded in 1992.
Although there was a Congressional prohibition on the U.S. having more than 500 troops ("advisors") in El Salvador at any one time, that number was routinely exceeded. There was a prohibition on them taking part in combat. That, too, was routinely violated, and, although the Reagan and Bush I administrations lied about it at the time and for long afterward, the military admitted to it in the mid-1990s after family members demanded recognition for their service.
I have heard testimony from literally dozens of people who were tortured by elements of the Salvadoran security services with U.S. personnel present.
No U.S. soldiers were ever captured by the Salvadoran opposition, much less captured and tortured. Five Marines were shot in a restaurant, and the wounded U.S. pilot of a downed helicopter was shot dead. These were crimes. But the fears of torture of U.S. soldiers in El Salvador (where the U.S. still maintains an airbase, the sign that we "won" that proxy war) is a remarkable piece of projection given the massive, routine use of torture by the government and security services that we supplied, trained, and funded completely for a decade.
We must remember also that the concerns about what US personnel have done in the period from 2002to Hamdan expressed by Gonzales is a red herring. Gonzales and others are worried about their own skins - the court martials of low level military show clearly their willingness to sacrifice the underlings. best, Ben
The article bars murder, mutilation, cruel treatment, torture and "outrages upon personal dignity, in particular humiliating and degrading treatment."
Well, I don't recall the Administration saying murder, mutilation, some undefined "cruel treatment", actual torture (rather than anything unpleasant redefined as torture for political point scoring or expediency), or even "outrages" were now allowed.
In fact, er, aren't the Abu Ghraib abusers on trial or in prison now, variously? Aren't servicemen who are accused of murder or other such acts investigated, tried, and when said investigations and trials reveal guilt, as they sometiems do, sent to prison?
Is keeping someone awake for a few days humiliating? No, though it's really unpleasant. Is it torture? I doubt it is by the lights of the Articles.
How about waterboarding? It's very unpleasant, but even it is not obviously torture under the traditional use of the term (and since it is not rigorously defined in the Articles, last I read them, that's what we're left with).
This still all reads as a-contextual point-scoring behaviour.
When the US by policy starts mutilating people, hooking them up to batteries, or putting them in tiget cages, you can talk convincingly of "how far we have fallen".
While it doesn't do such things by policy, and sends people who do them to Leavenworth, it all sounds a bit hollow.