The Coming Debate

Fidell noted in an August 9 Washington Post article that military law includes many terms like "dereliction of duty," "maltreatment" and "conduct unbecoming an officer" that may appear vague but that are nonetheless enforceable. The Army Field Manual bars cruel and degrading treatment. When Attorney General Gonzales recently testified at a Senate Armed Services Committee hearing that "outrages upon personal dignity" was too ambiguous, Senator John McCain stated that top military lawyers see no problem in complying with Common Article 3.

The arguments for preserving the War Crimes Act and rejecting the Bush amendments, in contrast, are multiple and overwhelming:

1. Commitment to the Geneva Conventions protects US service people from future retaliation.

As former Secretary of State Colin Powell has argued, abandoning the Geneva Conventions would put US soldiers at greater risk, would "reverse over a century of US policy and practice in supporting the Geneva Conventions" and would "undermine the protections of the law of war for our troops, both in this specific conflict [Afghanistan] and in general."

2. The War Crimes Act will prohibit "torture-lite" in the future.

According to Scott Horton, the proposed legislation is "designed to provide an OK to certain techniques which fall just short of torture that are being used by the CIA," including "waterboarding, longtime standing and hypothermia," techniques that have been "linked to severe injuries and fatalities."

3. The War Crimes Act will prohibit future Abu Ghraib-type outrages.

The Bush Administration's legislation would remove the prohibition on "outrages upon personal dignity, in particular humiliating and degrading treatment." Repealing the War Crimes Act, the Washington Post's R. Jeffrey Smith reported, is decriminalizing the forced nakedness, use of dog leashes and wearing of women's underwear that shocked the world at Abu Ghraib prison.

Derek P. Jinks an assistant law professor at the University of Texas, author of a forthcoming book on the Geneva Conventions, said in an August 9 Washington Post article that the "entire family of techniques" used to degrade, humiliate and coerce prisoners at Abu Ghraib and Guantánamo "is not addressed in any way, shape or form" in the Bush Administration's proposal. Retired Army Lieut. Col. Geoffrey Corn, until recently chief of the war law branch of the Army's Office of the Judge Advocate General, said in the same article, "This removal of [any] reference to humiliating and degrading treatment will be perceived by experts and probably allies as 'rewriting'" the Geneva Conventions.

This "rewriting" could have very concrete ramifications in practice. The international tribunal prosecuting war crimes in the former Yugoslavia deemed acts like placing prisoners in "inappropriate conditions of confinement," forcing them to urinate or defecate in their clothes, and threatening them with "physical, mental, or sexual violence" to be humiliations, degrading treatment and outrages. The proposed changes to the War Crimes Act would indicate that it is not a crime for Americans to conduct such acts.

4. Gutting the War Crimes Act will promote the perception of the United States as an outlaw country.

As a letter signed by sixteen members of Congress recently said, such legislation "would harm the reputation of the United States as a leader promoting and protecting human rights." What would be more deserving of scorn than a country that lets potential war-crime defendants repeal the very law under which they might be prosecuted?

5. The Bush legislation unfairly exempts high government officials from the very war crimes charges they are leveling against lowly "grunts."

Since the start of the Iraq War there have been more than thirty prosecutions under the military law that prohibits war crimes, with many more pending. But they have all prosecuted low-level military personnel. Gutting the War Crimes Act would leave the military "bad apples" at the bottom subject to prosecution but would let the civilian "bad apples" at the top evade all responsibility.

As Horton points out, the Uniform Code of Military Justice already incorporates the Geneva Convention rules, but it does not apply "to Donald Rumsfeld or Stephen Cambone or to people in the White House." The point of the War Crimes Act is that it "spreads the application of the Geneva Conventions the next level up to civilians, and particularly to civilian policymakers." From the beginning, the "prosecutorial focus" of the War Crimes Act "was intended to provide deterrence at that level." Repealing it undermines the fundamental principle of equal justice under law.

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