We Don't Torture...But We Need A Bill To CYA? genre: Just Jihad & Polispeak & Six Degrees of Speculation

Liberty as victim

The recent Supreme Court ruling on detainees held by the United States stated that they were to be treated in accord with the Geneva Conventions guidelines and that they were entitled to be processed under current military legal proceedings or some other legitimate legal process that Congress may choose to enact. The Washington Post reports that Attorney General Gonzales, in light of the ruling, is discussing new legislation to shield those who were responsible for the handling of the detainees during the period of time that was the focus of the Supreme Court ruling.

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.

Prior to the passage of the McCain bill establishing guidelines on torture and the proper handling of detainees, the Bush administration repeatedly asserted that the U.S. did not engage in torture. Nonetheless, once the bill was passed, the administration attached a signing statement to the bill that basically exempted the President from the legislation should he determine a situation was a matter of national security. The signing statement along with the Supreme Court ruling has apparently raised concerns that there may be ample evidence to make accusations of war crimes. The larger problem, in my opinion, is the added damage the legislation sought by Gonzales would do to an already dismal view of the United States around the world.

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order, which the Supreme Court declared illegal, and under Justice Department legal opinions that have been withdrawn under fire, the source said. A spokeswoman for Gonzales, Tasia Scolinos, declined to comment on Gonzales's remarks.

The Justice Department's top legal adviser, Steven G. Bradbury, separately testified two weeks ago that Congress must give new "definition and certainty" to captors' risk of prosecution for coercive interrogations that fall short of outright torture.

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.

The Supreme Court, in contrast, has repeatedly said that foreign interpretations of international treaties such as the Geneva Conventions should at least be considered by U.S. courts.

The law that concerns Gonzales was sponsored by a conservative Republican legislator, Walter B. Jones, from North Carolina, and was motivated by his conversation with a pilot who had been a prisoner of war during the Vietnam era. Clearly, the Jones bill, as with the McCain bill, were enacted because it is prudent to oppose torture in order to minimize the likelihood that our own soldiers would be subjected to such treatment and to allow the U.S. to bring charges should American soldiers be mistreated.

The law initially criminalized grave breaches of the Geneva Conventions but was amended without a hearing the following year to include violations of Common Article 3, the minimum standard requiring that all detainees be treated "humanely." The article bars murder, mutilation, cruel treatment, torture and "outrages upon personal dignity, in particular humiliating and degrading treatment." It applies to any abuse involving U.S. military personnel or "nationals."

Since September 2001, however, Bush administration officials have considered the law a potential threat to U.S. personnel involved in interrogations. While serving as White House legal counsel in 2002, Gonzales helped prepare a Jan. 25 draft memo to Bush -- written in large part by David Addington, then Vice President Cheney's legal counsel and now Cheney's chief of staff -- in which he cited the threat of prosecution under the act as a reason to declare that detainees captured in Afghanistan were not eligible for Geneva Conventions protections.

But the Supreme Court's ruling in Hamdan v. Rumsfeld effectively made Bush's order illegal when it affirmed that all detainees held by the United States are protected by Common Article 3. The court's decision caught the administration unprepared, at first, for questions about how its policy would change.

Several officials said the administration's main concerns are Article 3's prohibitions against "outrages upon personal dignity" and humiliating or degrading treatment.

While I fully appreciate the outrage that followed 9/11 and support the objective of bringing those responsible for the attack to justice, I simply can't endorse the abandonment of our long held principles to achieve that outcome. The costs of such actions are more and more apparent as each new violation is exposed. At some point, the damage to U.S. credibility and moral authority will be such that we can no longer be an influence for integrity and democracy within the world. It is simply too high a price to pay.

Daniel DiRito | July 28, 2006 | 12:01 PM
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