Bush seeks war crimes exceptions - Legal loophole devised for degrading POWs
Bush seeks war crimes exceptions - Legal loophole devised for degrading POWs
By R. Jeffrey Smith
Copyright by The Washington Post
Published August 9, 2006
WASHINGTON -- 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 prisoners of war, 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 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," a U.S. official said. 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 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.
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."
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's plain that this proposal would abrogate portions of Common Article 3," said Derek Jinks, a University of Texas assistant professor of law and author of a forthcoming book on the Geneva Conventions.
By R. Jeffrey Smith
Copyright by The Washington Post
Published August 9, 2006
WASHINGTON -- 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 prisoners of war, 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 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," a U.S. official said. 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 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.
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."
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's plain that this proposal would abrogate portions of Common Article 3," said Derek Jinks, a University of Texas assistant professor of law and author of a forthcoming book on the Geneva Conventions.
posted by Carlos T Mock at 9:45 AM
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