Monday, July 31, 2006

Administration moves to avoid war crimes issue

This one's kind of interesting:

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.

Now why would U.S. personnel have freely violated a 10-year-old law? Hmmm....

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order, which the Supreme Court declared illegal, and under Justice Department legal opinions that have been withdrawn under fire, the source said.

I'm generally okay with the notion that people should not be prosecuted for actions they legitimately believed to be legal. So an amnesty for lower-level operatives who were following such orders seems reasonable -- along with a clarification of what the rules will be going forward.

But it's interesting to note that the law was clear, and was only muddied by the administration's assertions, unilateral actions and broadly criticized legal briefs. So in the name of protecting U.S. personnel, the administration is also moving to protect itself. Knowingly ordering actions that violate the Geneva Conventions -- while engaged in a failed effort to dispute that violation -- could be construed as a war crime.

I'm not a big fan of the "Bush committed war crimes!" line of argument. To me, "war crimes" means mistreatment of people on a massive scale, and Gitmo and even Abu Ghraib just don't cut it. I'm content to hammer him for violations of civil liberties and constitutional limits, as well as general incompetence. But the administration appears to be taking the threat of war-crimes prosecutions seriously and moving to cover themselves.

Consistent with past administration behavior, its proposed remedy contains extremely broad language.

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.

That goes far beyond protecting U.S. personnel from retroactive war-crime prosecutions. It would prevent detainees from challenging their treatment and ignore international understandings of what the Conventions require.

I'll let the Pentagon get the final word:

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 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.

If you want to be known for high standards, you have to set high standards and then live by them. The administration likes high standards until they threaten to apply to administration actions. All that does is discredit us. Either we conduct our national business ethically or we don't. And if we do, we must have the courage to punish those who undermine that standard -- be they low-level interrogators or senior administration officials.

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