By R. Jeffrey Smith
Washington Post Staff Writer
Friday, July 28, 2006; A01
An obscure law approved by a Republican-controlled Congress a decade ago has made the Bush administration nervous that officials and troops involved in handling detainee matters might be accused of committing war crimes, and prosecuted at some point in U.S. courts.
Senior officials have responded by drafting legislation that would grant U.S. personnel involved in the terrorism fight new protections against prosecution for past violations of the War Crimes Act of 1996. That law criminalizes violations of the Geneva Conventions governing conduct in war and threatens the death penalty if U.S.-held detainees die in custody from abusive treatment.
In light of a recent Supreme Court ruling that the international Conventions apply to the treatment of detainees in the terrorism fight, Attorney General Alberto R. Gonzales has spoken privately with Republican lawmakers about the need for such "protections," according to someone who heard his remarks last week.
Gonzales told the lawmakers that a shield is needed for actions taken by U.S. personnel under a 2002 presidential order, which the Supreme Court declared illegal, and under Justice Department legal opinions that have been withdrawn under fire, the source said. A spokeswoman for Gonzales, Tasia Scolinos, declined to comment on Gonzales's remarks.
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.
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 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.
The law's legislative sponsor 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 prison 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 anywhere. 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. Mary DeRosa, a legal adviser at the National Security Council from 1997 to 2001, said the threat of sanctions in U.S. courts in fact helped deter senior officials from approving some questionable actions. She said the law is not an impediment in the terrorism fight.
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.
But the Supreme Court's ruling in Hamdan v. Rumsfeld effectively made Bush's order illegal when it affirmed that all detainees held by the United States are protected by Common Article 3. The court's decision caught the administration unprepared, at first, for questions about how its policy would change.
On July 7, Deputy Secretary of Defense Gordon England signed a memorandum ordering all military departments to certify that their actions in the fight with al-Qaeda comply with Article 3. Several officials said the memo, which was reviewed by military lawyers, was provoked by the renewed threat of prosecution under the War Crimes Act.
England's memo was not sent to other agencies for review. Two White House officials heavily involved in past policymaking on detainee treatment matters, counsel Harriet Miers and Addington, told friends later that they had not been briefed before its release and were unhappy about its language, according to an informed source. Bradbury and Gonzales have since drafted legislation to repair what they consider the defects of the War Crimes Act and the ambiguities of Common Article 3.
Several officials said the administration's main concerns are Article 3's prohibitions against "outrages upon personal dignity" and humiliating or degrading treatment. Defense Secretary Donald H. Rumsfeld told reporters on July 12 that he supported clearing up ambiguities so that military personnel are not "charged with wrongdoing when in fact they were not engaged in wrongdoing."
Several advocates and experts nonetheless said the legal liability of administration officials for past interrogations is probably small. "I think these guys did unauthorized stuff, they violated the War Crimes Act, and they should be prosecuted," said Michael Ratner, president of the Center for Constitutional Rights, a New York-based group that has provided lawyers for detainees at the U.S. military prison at Guantanamo Bay, Cuba.
Ratner said authorized interrogation techniques such as stress positions, temperature extremes and sleep deprivation are "clearly outlawed" under Common Article 3. But he added that prosecutions are improbable because the Justice Department -- which has consistently asserted that such rough interrogations are legal -- is unlikely to bring them. U.S. officials could argue in any event, Ratner said, that they were following policies they believed to be legal, and "a judge would most likely say that is a decent defense."
Some officials at the Pentagon share the view that illegal actions have been taken. Alberto J. Mora, the Navy's general counsel from 2001 until the end of last year, warned the Pentagon's general counsel twice that some approved interrogation methods violated "domestic and international legal norms" and that a federal court might eventually find responsibility "along the entire length of the chain of command," according to a 2004 memo by Mora that recounted the warnings. The memo was first obtained by the New Yorker magazine.
At a July 13 hearing of the Senate Armed Services Committee, the Air Force's top military lawyer, Maj. Gen. Jack L. Rives, affirmed that "some of the techniques that have been authorized and used in the past have violated Common Article 3" of the Geneva Conventions. The top military lawyers for the Army, Navy and Marine Corps, who were seated next to Rives, said they agreed.
Researchers Julie Tate and Madonna Lebling contributed to this report.