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War Crimes Act Changes Would Reduce Threat Of Prosecution
The risk of possible prosecution of officials, CIA officers and former service personnel over alleged rough treatment of prisoners arises because the Bush administration, from January 2002 until June, maintained that the Geneva Conventions' protections did not apply to prisoners captured in Afghanistan.
As a result, the government authorized interrogations using methods that U.S. military lawyers have testified were in violation of Common Article 3; it also created a system of military courts not specifically authorized by Congress, which denied defendants many routine due process rights.
The Supreme Court decided in Hamdan v. Rumsfeld on June 29, however, that the administration's policy of not honoring the Geneva Conventions was illegal, and that prisoners in the fight against al-Qaeda are entitled to such protections.
U.S. officials have since responded in three ways: They have asked Congress to pass legislation blocking the prisoners' right to sue for the enforcement of those protections. They have drafted legislation allowing the consideration of intelligence-gathering needs during interrogations, in place of an absolute human rights standard.
They also formulated the War Crimes Act amendments spelling out some serious crimes and omitting altogether some that U.S. officials describe as less serious. For example, two acts considered under international law as constituting "outrages" -- rape and sexual abuse -- are listed as prosecutable.
But humiliations, degrading treatment and other acts specifically deemed as "outrages" by the international tribunal prosecuting war crimes in the former Yugoslavia -- such as placing prisoners in "inappropriate conditions of confinement," forcing them to urinate or defecate in their clothes, and merely threatening prisoners with "physical, mental, or sexual violence" -- would not be among the listed U.S. crimes, officials said.
"It's plain that this proposal would abrogate portions of Common Article 3," said Derek P. Jinks, a University of Texas assistant professor of law and author of a forthcoming book on the Geneva Conventions. The "entire family of techniques" that military interrogators used to deliberately degrade and humiliate, and thus coerce, detainees at Guantanamo Bay, Cuba, and at Abu Ghraib "is not addressed in any way, shape or form" in the new language authorizing prosecutions, he said.
At a Senate Armed Services Committee hearing last Wednesday, however, Attorney General Alberto R. Gonzales complained repeatedly about the ambiguity and broad reach of the phrase "outrages upon personal dignity." He said that, "if left undefined, this provision will create an unacceptable degree of uncertainty for those who fight to defend us from terrorist attack."
Lawmakers from both parties expressed skepticism at the hearing. Sen. John McCain (R-Ariz.) said the military's top uniformed lawyers had told him they are training to comply with Common Article 3 and that complying would not impede operations.
If the underlying treaty provision is too vague, asked Sen. Susan Collins (R-Maine), then how could the Defense Department instruct its personnel in a July 7 memorandum to certify their compliance with it? Deputy Defense Secretary Gordon England, who had signed the memo, responded at the hearing that he was concerned that "degrading" and "humiliating" are relative terms.
"I mean, what is degrading in one society may not be degrading in another, or may be degrading in one religion, not in another religion," England said. "And since it does have an international interpretation, which is generally, frankly, different than our own, it becomes very, very relevant" to define the meaning in new legislation.
This viewpoint appears to have won over the top uniformed military lawyers, who have criticized other aspects of the administration's detainee policy but said that they support the thrust of these amendments. Maj. Gen. Scott C. Black, the Army's judge advocate general, said in testimony that the changes can "elevate" the War Crimes Act "from an aspiration to an instrument" by defining offenses that can be prosecuted instead of endorsing "the ideals of the laws of war."
Lawyer David Rivkin, formerly on the staff of the Justice Department and the White House counsel's office, said "it's not a question of being stingy but coming up with a well-defined statutory scheme that would withstand constitutional challenges and would lead to successful prosecutions." Former Justice Department lawyer John C. Yoo similarly said that U.S. soldiers and agents should "not be beholden to the definition of vague words by international or foreign courts, who often pursue nakedly political agendas at odds with the United States."
But Corn, the Army's former legal expert, said that Common Article 3 was, according to its written history, "left deliberately vague because efforts to define it would invariably lead to wrongdoers identifying 'exceptions,' and because the meaning was plain -- treat people like humans and not animals or objects." Eugene R. Fidell, president of the nonprofit National Institute of Military Justice, said that laws governing military conduct are filled with broadly described prohibitions that are nonetheless enforceable, including "dereliction of duty," "maltreatment" and "conduct unbecoming an officer."
Retired Rear Adm. John D. Hutson, the Navy's top uniformed lawyer from 1997 to 2000 and now dean of the Franklin Pierce Law Center, said his view is "don't trust the motives of any lawyer who changes a statutory provision that is short, clear, and to the point and replaces it with something that is much longer, more complicated, and includes exceptions within exceptions."