War Crimes Act Changes Would Reduce Threat of Prosecution

By R. Jeffrey Smith
The Washington Post

Wednesday 09 August 2006

The Bush administration has drafted amendments to a war crimes law that would eliminate the risk of prosecution for political appointees, CIA officers and former military personnel for humiliating or degrading war prisoners, according to U.S. officials and a copy of the amendments.

Officials say the amendments would alter a U.S. law passed in the mid-1990s that criminalized violations of the Geneva Conventions, a set of international treaties governing military conduct in wartime. The conventions generally bar the cruel, humiliating and degrading treatment of wartime prisoners without spelling out what all those terms mean.

The draft U.S. amendments to the War Crimes Act would narrow the scope of potential criminal prosecutions to 10 specific categories of illegal acts against detainees during a war, including torture, murder, rape and hostage-taking.

Left off the list would be what the Geneva Conventions refer to as "outrages upon [the] personal dignity" of a prisoner and deliberately humiliating acts - such as the forced nakedness, use of dog leashes and wearing of women's underwear seen at the U.S.-run Abu Ghraib prison in Iraq - that fall short of torture.

"People have gotten worried, thinking that it's quite likely they might be under a microscope," said a U.S. official. Foreigners are using accusations of unlawful U.S. behavior as a way to rein in American power, the official said, and the amendments are partly meant to fend this off.

The plan has provoked concern at the International Committee of the Red Cross, the entity responsible for safeguarding the Geneva Conventions. A U.S official confirmed that the group's lawyers visited the Pentagon and the State Department last week to discuss the issue but left without any expectation that their objections would be heeded.

The administration has not officially released the draft amendments. Although they are part of broader legislation on military courts still being discussed within the government, their substance has already been embraced by key officials and will not change, two government sources said.

No criminal prosecutions have been brought under the War Crimes Act, which Congress passed in 1996 and expanded in 1997. But 10 experts on the laws of war, who reviewed a draft of the amendments at the request of The Washington Post, said the changes could affect how those involved in detainee matters act and how other nations view Washington's respect for its treaty obligations.

"This removal of [any] reference to humiliating and degrading treatment will be perceived by experts and probably allies as 'rewriting' " the Geneva Conventions, said retired Army Lt. Col. Geoffrey S. Corn, who was recently chief of the war law branch of the Army's Office of the Judge Advocate General. Others said the changes could affect how foreigners treat U.S. soldiers.

The amendments would narrow the reach of the War Crimes Act, which now states in general terms that Americans can be prosecuted in federal criminal courts for violations of "Common Article 3" of the Geneva Conventions, which the United States ratified in 1949.

U.S. officials have long interpreted the War Crimes Act as applying to civilians, including CIA officers, and former U.S. military personnel. Misconduct by serving military personnel is handled by military courts, which enforce a prohibition on cruelty and mistreatment. The Army Field Manual, which is being revised, separately bars cruel and degrading treatment, corporal punishment, assault, and sensory deprivation.

Common Article 3 is considered the universal minimum standard of treatment for civilian detainees in wartime. It requires that they be treated humanely and bars "violence to life and person," including murder, mutilation, cruel treatment and torture. It further prohibits "outrages upon personal dignity" such as "humiliating and degrading treatment." And it prohibits sentencing or execution by courts that fail to provide "all the judicial guarantees ... recognized as indispensable by civilized peoples."

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."