Prosecuting US Misconduct in Iraq

Whatever its applicability to Afghanistan, the War Crimes Act is unquestionably applicable to detainee abuse in Iraq. Under Gonzales's logic, the War Crimes Act applies whenever Geneva applies. And as President Bush repeatedly stated, the Geneva Conventions apply to Iraq (although he has since claimed that foreign fighters captured in Iraq are not covered by Geneva). Thus, US personnel found guilty of serious mistreatment of detainees in Iraq face severe criminal penalties under the Act.

Prosecutions under the War Crimes Act for violations in Iraq do not need to challenge the legality of "opting out of the Geneva Conventions," as would be the case for Afghanistan war detainees. Nor do they need to contend with the Administration's convoluted definition of torture. War Crimes Act violations in Iraq can consist of inhuman treatment alone--whether torture took place or not.

Although the term "inhuman treatment" is not defined in the War Crimes Act or in the Geneva Conventions, there is little doubt that US personnel subjected Iraqi detainees to inhuman treatment by, for example, forcing hooded prisoners into stressful positions for lengthy periods of time, using dogs to bite and intimidate naked prisoners, compelling prisoners to engage in or simulate sexual acts, dragging naked prisoners on the ground with a leash around the neck, beating prisoners, and on and on.

Even beyond the notorious Abu Ghraib photos, there is a huge body of evidence documenting inhuman treatment. Maj. Gen. Antonio Taguba's inquiry found "sadistic, blatant and wanton criminal abuses." The report issued by a panel headed by former Defense Secretary James Schlesinger found "widespread" abuses. And the International Red Cross repeatedly protested the treatment of Iraqi prisoners.

The key question is not whether detainees in Iraq were subjected to inhuman treatment in violation of the War Crimes Act, but how high up the responsibility goes for those abhorrent acts. Under well-established principles of international law, officials in the chain of command who order inhuman treatment or who, knowing about it, fail to stop it are responsible. The "chain of command" doctrine is undoubtedly applicable to War Crimes Act prosecutions. But even if it weren't, higher-ups could be held responsible under the principles of conspiracy or aiding and abetting the crime under normal federal criminal law. This was surely the reason that Gonzales wanted to block future prosecutions of higher-ups by "prosecutors and independent counsels."

President Bush likes to blame a few "bad apples" for the serious mistreatment of Iraqi prisoners. But the problem is not limited to a few bad apples at the bottom of the barrel. We know that General Sanchez, then the top military officer in Iraq, ordered harsh interrogation techniques, at least for a brief period, before he revised the protocols. Defense Secretary Rumsfeld similarly issued orders permitting coercive interrogation, which were modified after protest by military lawyers. Did Rumsfeld and General Sanchez violate the War Crimes Act?

And what about President Bush himself? At a Congressional hearing shortly after the Abu Ghraib story broke, then-Attorney General Ashcroft testified that Bush never ordered the torture of Afghanistan and Iraq war detainees. But he refused to describe what the President did order, and all presidential directives on interrogations have not been made public.

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