A decade ago, the GOP pushed through 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.
It seems that the current, torture-lovin’, waterboardin’, enemy-combatant-designatin’ GOP has just recently remembered this law, and as a consequence Attorney General Gonzales has been stumping with Republicans in Congress about creating some sort of loophole for those in power now, since it seems likely that we’ve been gleefully violating the Geneva Conventions for years now. It was Gonzales himself who called them “quaint,” you’ll recall.
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order, which the Supreme Court declared illegal, and under Justice Department legal opinions that have been withdrawn under fire, the source said.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 aim, Justice Department lawyers say, is also to take advantage of U.S. legal precedents that limit sanctions to conduct that “shocks the conscience.” This phrase allows some consideration by courts of the context in which abusive treatment occurs, such as an urgent need for information, the lawyers say — even though the Geneva prohibitions are absolute.
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 any step back from the Geneva Conventions could provoke mistreatment of captured U.S. military personnel. 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.
It sounds an awful lot like Alberto wants to make “just following orders” a defense. We’re pretty sure that’s a bad idea. That dog didn’t hunt 60 years ago, and it shouldn’t now.