Sep 11, 2006, 00:31

George W. Bush's speech on September 6 amounted to a public confession to criminal violations of the 1996 War Crimes Act. He implicitly admitted authorizing disappearances, extrajudicial imprisonment, torture, transporting prisoners between countries and denying the International Committee of the Red Cross access to prisoners.

These are all serious violations of the Geneva Conventions. The War Crimes Act makes grave breaches of the Geneva Conventions and all violations of Common Article 3 punishable by fines, imprisonment or, if death results to the victim, the death penalty.

At the same time, Bush asked Congress to amend the War Crimes Act in order to retroactively protect him and other U.S. officials from prosecution for these crimes, and from civil lawsuits arising from them. He justified this on the basis that "our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act . . . ," and insisted that "passing this legislation ought to be the top priority" for Congress between now and the election in November.

His profession of concern for military and intelligence personnel was utterly misleading. Military personnel charged with war crimes have always been, and continue to be, prosecuted under the Universal Code of Military Justice rather than the War Crimes Act; and the likelihood of CIA interrogators being identified and prosecuted under the act is remote -- they are protected by the secrecy that surrounds all CIA operations.

The only real beneficiaries of such amendments to the War Crimes Act would be Bush himself and other civilian officials who have assisted him in these crimes -- Rumsfeld, Cheney, Gonzales, Rice, Cambone, Tenet, Goss, Negroponte and an unfortunately long list of their deputies and advisors.

Bush asked Congress to do three things in these amendments. "First, I am asking Congress to list the specific recognizable offenses that would be considered crimes under the War Crimes Act so our personnel can know clearly what is prohibited in the handling of terrorist enemies."

One prong of the U.S. government’s attack on the Geneva Conventions has been the assertion that they do not provide a laundry list of what techniques of treatment and interrogation are permitted or prohibited. This is, of course, because the Geneva Conventions instead contain blanket prohibitions on torture, cruelty and humiliation. It has only been the efforts of U.S. officials to encroach on these prohibitions that may have raised doubt among U.S. personnel as to what is and is not permitted.

Captain Ian Fishback, the military interrogator who blew the whistle on Camp Nama (Nasty Assed Military Area) in Iraq, has contrasted his orders in Iraq with the rules he had been taught, "My feelings were that it clearly violated what I had learned as the appropriate way to treat detainees at West Point. . . . You don't force them to give you any information other than name, rank, and serial number. That's the gist of the Geneva Conventions." Captain Fishback’s account of the war crimes he was involved in at Camp Nama is in the latest edition of Esquire magazine.

Bush continued, "Second, I’m asking that Congress make explicit that by following the standards of the Detainee Treatment Act, our personnel are fulfilling America’s obligations under Common Article 3 of the Geneva Conventions."

This is the crucial change that Bush wants in the law. The War Crimes Act currently criminalizes murder, mutilation, cruel treatment, torture, humiliating and degrading treatment, and arbitrary punishment of prisoners, based on the prohibitions in Common Article 3 of the Geneva conventions. Bush is asking Congress to replace the straightforward prohibitions in Common Article 3 with the provisions of the 2005 Detainee Treatment Act, which includes extraordinary protections for U.S. officials.

These protections are clearly designed to undermine the Geneva Conventions, the War Crimes Act and even the Nuremberg Principles. Section 1004(a) of the Detainee Treatment Act states that, in the case of "operational practices . . . that were officially authorized and determined to be lawful at the time they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces or other agent did not know that the practices were unlawful and a person of ordinary good sense and understanding would not know the practices were unlawful."

This would shift the legal standard from the clear one defined by the Geneva Conventions and the War Crimes Act as it is presently written to one of who knew what when, requiring courts to conclude beyond reasonable doubt that the perpetrator knew his actions were unlawful. Even if opinions written by Alberto Gonzales, John Yoo, Jack Goldsmith and David Addington were found to have no legal basis at all, they could suffice to cast doubt on Bush and his colleagues’ knowledge of their crimes, which would be crucial under the amended law.

"Third," Bush said, "I’m asking that Congress make it clear that captured terrorists cannot use the Geneva Conventions as a basis to sue our personnel in courts, in U.S. courts. The men and the women who protect us should not have to fear lawsuits filed by terrorists because they’re doing their jobs."

This would protect U.S. officials from civil liability for human rights violations. Prisoners released from Guantanamo have already filed such lawsuits against the U.S. government, Bush, Rumsfeld and other officials, which might help to explain why these amendments are Bush’s "top priority."

The central myth of the War on Terror is that the world faces an unprecedented threat from terrorism that renders obsolete the existing laws of war and international behavior.

Bush framed his justification of torture in a classic use of this mistaken logic: "And in this new war, the most important source of information on where the terrorists are hiding and what they are planning is the terrorists themselves. Captured terrorists have unique knowledge about how terrorist networks operate. They have knowledge of where their operatives are deployed and knowledge about what plots are under way. This is intelligence that cannot be found any other place. And our security depends on getting this kind of information. To win the war on terror, we must be able to detain, question and, when appropriate, prosecute terrorists captured here in America and on the battlefields around the world."

The context Bush did not provide is that this applies equally to all prisoners of war. Captured soldiers usually do possess information that would be valuable to their captors, and the Geneva Conventions do constrain the ability to extract this information from them, but this is by design. Based on bitter experience, the people and governments of the world have decided that torture is so abhorrent that it must be completely outlawed, even though this results in the loss of information that might save lives or even alert captors to an existential threat to their country.

The purpose of the Hague and Geneva Conventions is to provide all people with certain protections in times of war, to place some limits on the otherwise limitless human suffering that war inflicts. Arguably, governments have agreed to rules of war precisely so that they can continue to wage limited war without plunging their societies into the total chaos that would result from unrestricted use of increasingly destructive modern weapons against entire populations. The Geneva Conventions afford different status to different classes of people, giving rise to different protections for combatants, prisoners of war and civilians. However the notion that certain classes of people fall entirely beyond the protection of these Conventions is not a serious interpretation, unless one is talking of something other than human beings.
For five years, U.S. government officials have justified unlawful actions with political arguments that have no legal merit. Now that the political tide is turning, Bush and his associates are behaving like other war criminals throughout history, marshalling what power they have left to shield themselves from the legitimate consequences of their actions.

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