As a matter of national honor we owe a special debt to our prisoners of war. Surely this country also should adhere to treaty obligations that are designed to deter torture of our POWs, including the obligation in the POW convention never to "absolve" a torturing state of "any liability." Indeed, in the aftermath of the detainee abuse scandal at Abu Ghraib prison, President Bush has reaffirmed our national commitment to this convention. Shockingly, however, while the administration pours billions into Iraq, it continues to stiff the American POWs tortured by Iraq.
During the Persian Gulf War, Iraq brutally tortured U.S. prisoners of war. Saddam Hussein's secret police broke bones; shattered skulls and eardrums; and whipped, burned, shocked, beat, starved and urinated on our POWs. Yet these brave Americans, as did generations of POWs before them, refused to give in to their captors. One extraordinary Marine was knocked unconscious so many times he lost count; he returned home with a fractured skull for refusing his captors' orders to criticize President George H.W. Bush. Because Iraq would not notify families of POWs, spouses did not know whether they were wives or widows. The result was serious and lasting injury to the POWs and their families.
Before the current Iraq war, 17 of these Gulf War POWs and 37 of their family members brought a historic suit to hold Iraq accountable and to deter such torture in the future. They did so courageously, despite being required to give Saddam Hussein their home addresses, something the POWs had refused to do under torture. And they won a judgment in federal district court that is the most important deterrent to date against torture of American POWs.
But rather than offering the former prisoners the support of a grateful nation, a decision was quietly made in the Bush administration to prevent the POWs from holding Iraq accountable. When (before the Iraq war) 20 distinguished American national security officials, including a former chairman of the Joint Chiefs of Staff, requested that the president set aside funds from frozen Iraqi assets to enforce the POWs' judgment, they did not even receive an answer.
This decision to stiff the POWs, made by administration lawyers in the climate of misguided legal advice now exposed in the detainee abuse scandal, resulted in the administration's seizing the blocked Iraqi assets the POWs had been counting on to enforce their judgment. In seizing the entire $1.7 billion, leaving nothing for the POWs, the administration argued that the money was urgently needed for the "reconstruction of Iraq."
Even more shocking: The administration then intervened in court on the side of Saddam Hussein and Iraq to erase the POWs' judgment from the books. Sadly this effort recently succeeded in persuading a court of appeals to set aside the POWs' judgment (along with the rule of law), presumably again in the interest of the "reconstruction of Iraq."
Even after winning this victory, the administration has refused to open talks with the POWs. And while the administration was attacking the POWs in court, Scott McClellan, the president's press secretary, responded to questions about the case by repeating five times in one news conference the mantra: "There is simply no amount of money that can truly compensate these brave men and women for the suffering that they went through."
Eighteen months after the decision to set aside our treaty obligations and stiff the POWs, most of the funds for reconstruction remain unspent. And many other claims against Iraq are being honored. Some $30 billion is being paid to Kuwait from Iraqi oil revenue. Saudi Arabia has insisted on payment of its $25 billion in war debts. France is insisting on at least 50 percent payment of its governmental loans to Iraq. Russia is insisting on payment of 65 percent of its loans plus payment on commercial contracts. The United Nations still has $98 billion in unresolved Gulf War claims against Iraq. Even the Bush administration supports some retention of governmental loans to Iraq.
For the long run, Iraq has oil reserves that may rival those of Saudi Arabia. Surely it is a country that can pay its debt of honor. And just as surely, whatever the price of Iraqi reconstruction, it is shameful to ask American POWs brutally tortured by Iraq to pay for that reconstruction. Billions in legal claims against Iraq will be honored, but there seem to be no funds for American national honor.
Just as President Bush set aside the misguided legal advice in the detainee abuse scandal, he can, with but a word, direct negotiations with the POWs to hold Iraq accountable for their torture. Such negotiations were twice urged by the Senate, unanimously. Absent presidential intervention, this shameful companion to the detainee abuse scandal will remain a scar on our national honor.
The writer is a former ambassador and counselor on international law to the State Department. He is serving as co-counsel on behalf of the POWs and their family members in the case of Acree v. Republic of Iraq.