Detainee Abuse Charges Feared
Shield Sought From '96 War Crimes Act
By R. Jeffrey Smith
Washington Post Staff Writer
Friday, July 28, 2006; A01
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 .
In light of a recent Supreme Court ruling that the international Conventions apply to the treatment of detainees in the terrorism fight, Attorney General Alberto R. Gonzales has spoken privately with Republican lawmakers about the need for such "protections," according to someone who heard his remarks last week.
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order, which the Supreme Court declared illegal, and under Justice Department legal opinions that have been withdrawn under fire, the source said.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
The aim, Justice Department lawyers say, is also to
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.
Some human rights groups and independent experts say they oppose undermining the reach of the War Crimes Act, arguing that it deters government misconduct. They say . They also contend that Bush administration anxieties about prosecutions are overblown and should not be used to gain congressional approval for rough interrogations.
"The military has lived with" the Geneva Conventions provisions "for 50 years and applied them to every conflict, even against irregular forces. Why are we suddenly afraid now about the vagueness of its terms?" asked Tom Malinowski, director of the Washington office of Human Rights Watch.
That claim is amplified in a 53-page Human Rights Watch report this week that quoted interrogators at three bases in Iraq as saying that But this argument has yet to gain traction in a military court, where U.S. policy requires that active-duty service members be tried for any maltreatment.
The War Crimes Act, in contrast, affords access to civilian courts for abuse perpetrated by former service members and by civilians. The government has not filed any charges under the law.
The Defense Department's deputy general counsel at the time declared at the sole hearing on it in 1996 -- attended by just two lawmakers -- that "we fully support the purposes of the bill," and urged its expansion to cover a wider range of war crimes.
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."
Jones and other advocates intended the law for use against future abusers of captured U.S. troops in countries such as Bosnia, El Salvador and Somalia, but the Pentagon supported making its provisions applicable to U.S. personnel because doing so set a high standard for others to follow. Mary DeRosa, a legal adviser at the National Security Council from 1997 to 2001, said the threat of sanctions in U.S. courts in fact helped deter senior officials from approving some questionable actions. She said the law is not an impediment in the terrorism fight.
While serving as White House legal counsel in 2002,
"It is difficult," Gonzales said in the memo, "to predict the motives of prosecutors and independent counsels who may in the future decide to bring unwarranted charges." He
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 memo, which was reviewed by military lawyers, was provoked by the renewed threat of prosecution under the War Crimes Act.
Two White House officials heavily involved in past policymaking on detainee treatment matters, counsel Harriet Miers and Addington, told friends later that they had not been briefed before its release and were unhappy about its language, according to an informed source. Bradbury and Gonzales have since drafted legislation to repair what they consider the defects of the War Crimes Act and the ambiguities of Common Article 3.
Several officials said the administration's main concerns are Article 3's prohibitions against "outrages upon personal dignity" and humiliating or degrading treatment. Defense Secretary Donald H. Rumsfeld told reporters on July 12 that he supported clearing up ambiguities so that military personnel are not "charged with wrongdoing when in fact they were not engaged in wrongdoing."
Several advocates and experts nonetheless said the legal liability of administration officials for past interrogations is probably small. "I think these guys did unauthorized stuff, they violated the War Crimes Act, and they should be prosecuted," said Michael Ratner, president of the Center for Constitutional Rights, a New York-based group that has provided lawyers for detainees at the U.S. military prison at Guantanamo Bay, Cuba.
Ratner said authorized interrogation techniques such as stress positions, temperature extremes and sleep deprivation are "clearly outlawed" under Common Article 3. But he added that prosecutions are improbable because the Justice Department -- which has consistently asserted that such rough interrogations are legal -- is unlikely to bring them. U.S. officials could argue in any event, Ratner said, that they were following policies they believed to be legal, and "a judge would most likely say that is a decent defense."
At a July 13 hearing of the Senate Armed Services Committee, the Air Force's top military lawyer, Maj. Gen. Jack L. Rives, affirmed that "some of the techniques that have been authorized and used in the past have violated Common Article 3" of the Geneva Conventions. The top military lawyers for the Army, Navy and Marine Corps, who were seated next to Rives, said they agreed.
Researchers Julie Tate and Madonna Lebling contributed to this report.
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