In Search of a "Solid Defense" to War Crimes Charges

From the earliest days of its "war on terrorism," the Bush Administration has been intent on giving generous legal cover to government officials, CIA operatives, and others responsible for brutalizing detainees in U.S. custody. Its latest attempt to grant impunity for abuses comes in the form of proposed amendments to the War Crimes Act, a federal statute that criminalizes violations of the laws of war.

Last week, the Administration circulated the text of its proposed legislation to selected members of Congress. The draft bill, which would amend subsection c3 of the War Crimes Act, is a direct response to the Supreme Court's recent decision in Hamdan v. Rumsfeld.

In Hamdan, the Court found that Common Article 3 of the 1949 Geneva Conventions was applicable to alleged members of al Qaeda captured in Afghanistan. Common Article 3 (so named because it appears in all four of the Geneva Conventions) aims to protect detainees from murder, torture, cruel, inhuman and humiliating treatment, unfair trials, and "outrages upon personal dignity."

Common Article 3, in short, bars many of the measures that have been used against detainees in U.S. custody abroad. Hence the Bush Administration's concern.

The Threat of "Unwarranted Charges"

From the beginning, the Administration's treatment of terrorist suspects taken into custody in Afghanistan and elsewhere has had two defining characteristics: First, the Administration has asserted that the "new paradigm" - the fight against terrorism -- means that basic rules of humane treatment do not apply.

The Bush Administration's decision to cast aside detainee protections codified in laws of war led directly to a series of abuses, some quite well known. While detainees held in every one of the theaters of the "war on terrorism" have been subject to abuse, those in CIA custody appear to have been treated the worst. Among the techniques known to have been used against "high value" detainees held by the CIA are waterboarding, where the detainee is made to believe he is drowning, prolonged sleep deprivation, exposure to extremes of hot and cold (leading to hypothermia), and threats of violence to the detainee and members of his family.

Second -- a necessary corollary to the first element - the Administration has been determined to shield the perpetrators of abuse from legal liability. It has taken aggressive steps to block both civil damages suits and the possibility of criminal prosecution for abuses.

It was a draft memorandum circulated by then-White House Counsel Alberto Gonzales in January 2002 that originally raised the threat of criminal sanctions. The memo warned of potential prosecutions under the War Crimes Act, but suggested that the President's decision to declare Geneva Convention protections inapplicable to detained terrorist suspects would help to avert such prosecutions.

"It is difficult," the memo explained, "to predict the motives of prosecutors and independent counsels who may in the future decide to bring unwarranted charges." But, the memo said, the presidential order exempting detainees from Geneva protections "would provide a solid defense to any future prosecution."

The memo is a masterpiece of the genre. While its very purpose is to set out a rationale allowing the abuse of detainees, it nonetheless takes care to qualify its reference to criminal charges with the word "unwarranted."

Circumventing Hamdan

A few years and thousands of detainees later, there is abundant evidence that prosecutions are warranted. But the War Crimes Act lies unused. Only a single civilian has been charged for detainee abuses (soldiers are generally prosecuted for such abuses under the Uniform Code of Military Justice), and in that case, prosecutors opted to rely on a different set of charges.

It is only with the Supreme Court's recent Hamdan decision that the threat of prosecution under the War Crimes Act became somewhat more real. Although it is still unlikely that any prosecutor, now or in the future, would have the political will necessary to bring even the most-well-founded war crimes charges against U.S. officials, such cases are theoretically possible.

The Hamdan Court, in direct contradiction to the President's January 2002 declaration, found that Common Article 3 of the Geneva Conventions covered detained terrorist suspects. And as Justice Anthony Kennedy stressed in his concurrence, violations of Common Article 3 are punishable as war crimes under the War Crimes Act.

So the legal foundation for criminal prosecutions is now in place. And what is the Bush Administration's response? Rather than take steps not to violate the law, the Administration is trying to change it.

The draft bill that the Administration circulated last week would cut out the War Crimes Act's blanket reference to violations of Common Article 3. It would replace that general provision with a list of specifically prohibited acts (including rape, torture, mutilation, etc.).

Importantly, rather than Common Article 3's broad prohibition on torture, and cruel and inhuman treatment, the new provision would cover only torture. (It includes a subsection on "torture, inhuman treatment, or cruel treatment" but the only conduct that the subsection actually criminalizes is torture.)

This change would let civilian officials, including the CIA, off the hook for an array of abusive techniques that fall short of torture. And while some of the worst techniques used against detainees undoubtedly constitute torture, the Administration has pushed such a narrow definition of torture that, were courts or prosecutors to follow the Administration's lead, even blatant abuses like waterboarding might escape criminal sanction.

A Major Step Backwards

If the Bush Administration's proposed legislation were to pass, it would be a major step backwards. Overriding Hamdan's clear statement that the abusive treatment of detainees is a crime, the law would protect perpetrators of serious abuses.