http://www.washingtonpost.com/wp-dyn/content/article/2006/08/08/AR2006080801276_2.html
War Crimes Act Changes Would Reduce Threat Of Prosecution
By R. Jeffrey Smith
Washington Post Staff Writer
Wednesday, August 9, 2006; A01
The Bush administration has drafted amendments to a war crimes law that would eliminate the risk of prosecution for political appointees, CIA officers and former military personnel for humiliating or degrading war prisoners, according to U.S. officials and a copy of the amendments.
Officials say the amendments would alter a U.S. law passed in the mid-1990s that criminalized violations of the Geneva Conventions, a set of international treaties governing military conduct in wartime. The conventions generally bar the cruel, humiliating and degrading treatment of wartime prisoners without spelling out what all those terms mean.
The draft U.S. amendments to the War Crimes Act would narrow the scope of potential criminal prosecutions to 10 specific categories of illegal acts against detainees during a war, including torture, murder, rape and hostage-taking.
Left off the list would be what the Geneva Conventions refer to as "outrages upon [the] personal dignity" of a prisoner and deliberately humiliating acts -- such as the forced nakedness, use of dog leashes and wearing of women's underwear seen at the U.S.-run Abu Ghraib prison in Iraq -- that fall short of torture.
"People have gotten worried, thinking that it's quite likely they might be under a microscope," said a U.S. official. Foreigners are using accusations of unlawful U.S. behavior as a way to rein in American power, the official said, and the amendments are partly meant to fend this off.
The plan has provoked concern at the International Committee of the Red Cross, the entity responsible for safeguarding the Geneva Conventions. A U.S official confirmed that the group's lawyers visited the Pentagon and the State Department last week to discuss the issue but left without any expectation that their objections would be heeded.
The administration has not officially released the draft amendments. Although they are part of broader legislation on military courts still being discussed within the government, their substance has already been embraced by key officials and will not change, two government sources said.
No criminal prosecutions have been brought under the War Crimes Act, which Congress passed in 1996 and expanded in 1997. But 10 experts on the laws of war, who reviewed a draft of the amendments at the request of The Washington Post, said the changes could affect how those involved in detainee matters act and how other nations view Washington's respect for its treaty obligations.
"This removal of [any] reference to humiliating and degrading treatment will be perceived by experts and probably allies as 'rewriting' " the Geneva Conventions, said retired Army Lt. Col. Geoffrey S. Corn, who was recently chief of the war law branch of the Army's Office of the Judge Advocate General. Others said the changes could affect how foreigners treat U.S. soldiers.
The amendments would narrow the reach of the War Crimes Act, which now states in general terms that Americans can be prosecuted in federal criminal courts for violations of "Common Article 3" of the Geneva Conventions, which the United States ratified in 1949.
U.S. officials have long interpreted the War Crimes Act as applying to civilians, including CIA officers, and former U.S. military personnel. Misconduct by serving military personnel is handled by military courts, which enforce a prohibition on cruelty and mistreatment. The Army Field Manual, which is being revised, separately bars cruel and degrading treatment, corporal punisHydromaxent, assault, and sensory deprivation.
Common Article 3 is considered the universal minimum standard of treatment for civilian detainees in wartime. It requires that they be treated humanely and bars "violence to life and person," including murder, mutilation, cruel treatment and torture. It further prohibits "outrages upon personal dignity" such as "humiliating and degrading treatment." And it prohibits sentencing or execution by courts that fail to provide "all the judicial guarantees . . . recognized as indispensable by civilized peoples."
The risk of possible prosecution of officials, CIA officers and former service personnel over alleged rough treatment of prisoners arises because the Bush administration, from January 2002 until June, maintained that the Geneva Conventions' protections did not apply to prisoners captured in Afghanistan.
As a result, the government authorized interrogations using methods that U.S. military lawyers have testified were in violation of Common Article 3; it also created a system of military courts not specifically authorized by Congress, which denied defendants many routine due process rights.
The Supreme Court decided in Hamdan v. Rumsfeld on June 29, however, that the administration's policy of not honoring the Geneva Conventions was illegal, and that prisoners in the fight against al-Qaeda are entitled to such protections. [emphasis added because this should still be getting coverage and being discussed on the cable news networks at least]
U.S. officials have since responded in three ways: They have asked Congress to pass legislation blocking the prisoners' right to sue for the enforcement of those protections. They have drafted legislation allowing the consideration of intelligence-gathering needs during interrogations, in place of an absolute human rights standard.
They also formulated the War Crimes Act amendments spelling out some serious crimes and omitting altogether some that U.S. officials describe as less serious. For example, two acts considered under international law as constituting "outrages" -- rape and sexual abuse -- are listed as prosecutable.
But humiliations, degrading treatment and other acts specifically deemed as "outrages" by the international tribunal prosecuting war crimes in the former Yugoslavia -- such as placing prisoners in "inappropriate conditions of confinement," forcing them to urinate or defecate in their clothes, and merely threatening prisoners with "physical, mental, or sexual violence" -- would not be among the listed U.S. crimes, officials said.
"It's plain that this proposal would abrogate portions of Common Article 3," said Derek P. Jinks, a University of Texas assistant professor of law and author of a forthcoming book on the Geneva Conventions. The "entire family of techniques" that military interrogators used to deliberately degrade and humiliate, and thus coerce, detainees at Guantanamo Bay, Cuba, and at Abu Ghraib "is not addressed in any way, shape or form" in the new language authorizing prosecutions, he said.
At a Senate Armed Services Committee hearing last Wednesday, however, Attorney General Alberto R. Gonzales complained repeatedly about the ambiguity and broad reach of the phrase "outrages upon personal dignity." He said that, "if left undefined, this provision will create an unacceptable degree of uncertainty for those who fight to defend us from terrorist attack."
Lawmakers from both parties expressed skepticism at the hearing. Sen. John McCain (R-Ariz.) said the military's top uniformed lawyers had told him they are training to comply with Common Article 3 and that complying would not impede operations.
If the underlying treaty provision is too vague, asked Sen. Susan Collins (R-Maine), then how could the Defense Department instruct its personnel in a July 7 memorandum to certify their compliance with it? Deputy Defense Secretary Gordon England, who had signed the memo, responded at the hearing that he was concerned that "degrading" and "humiliating" are relative terms.
"I mean, what is degrading in one society may not be degrading in another, or may be degrading in one religion, not in another religion," England said. "And since it does have an international interpretation, which is generally, frankly, different than our own, it becomes very, very relevant" to define the meaning in new legislation.
This viewpoint appears to have won over the top uniformed military lawyers, who have criticized other aspects of the administration's detainee policy but said that they support the thrust of these amendments. Maj. Gen. Scott C. Black, the Army's judge advocate general, said in testimony that the changes can "elevate" the War Crimes Act "from an aspiration to an instrument" by defining offenses that can be prosecuted instead of endorsing "the ideals of the laws of war."
Lawyer David Rivkin, formerly on the staff of the Justice Department and the White House counsel's office, said "it's not a question of being stingy but coming up with a well-defined statutory scheme that would withstand constitutional challenges and would lead to successful prosecutions." Former Justice Department lawyer John C. Yoo similarly said that U.S. soldiers and agents should "not be beholden to the definition of vague words by international or foreign courts, who often pursue nakedly political agendas at odds with the United States."
But Corn, the Army's former legal expert, said that Common Article 3 was, according to its written history, "left deliberately vague because efforts to define it would invariably lead to wrongdoers identifying 'exceptions,' and because the meaning was plain -- treat people like humans and not animals or objects." Eugene R. Fidell, president of the nonprofit National Institute of Military Justice, said that laws governing military conduct are filled with broadly described prohibitions that are nonetheless enforceable, including "dereliction of duty," "maltreatment" and "conduct unbecoming an officer." [emphasis added]
Retired Rear Adm. John D. Hutson, the Navy's top uniformed lawyer from 1997 to 2000 and now dean of the Franklin Pierce Law Center, said his view is "don't trust the motives of any lawyer who changes a statutory provision that is short, clear, and to the point and replaces it with something that is much longer, more complicated, and includes exceptions within exceptions."
© 2006 The Washington Post Company
So the Administration wants to do away with current language of the War Crimes Act and "replace it with clearer and more defined language." Initially, the company line was we do not torture period. Then it was we do not need to worry about international law because those detainees do not qualify for human rights under the Geneva Covention. Then it was up to Gonzales and Yoo to make sure everything that could be done to get around the definition of torture was done. After it was confirmed that there was obvious abuse occurring it was that the abuse was no biggie and had to do with only a few bad apples. None of "it" had anything to do with the chain of command flowing UP, but it was those serving at the lower levels.
With this War Crimes Act change it is clear that what is happening is a case of not just covering ass, but also
making sure nothing more is reported that will make any noise whatsoever over here in the U.S. Hey, why would something like the Abu Ghraib story be even mentioned in the U.S. press if this law was changed? I swear the journalism over here for the most part amounts to asking a single source whether or not he or she violated the law. "Ummm...did I break the law? No, of course not. Why would I ever break the law?" (especially when I can change the law...) Fact checking at it's finest people...and for the double check that will validate and verify the whole scoop..."Are you sure you didn't break the law sir?" "I'm positive." "All right, thank you so much for proving the veracity of your answer and thus your innocence by reaffirming your own sentiments good sir."
I posted my
feelings and opinions on the U.S. being involved in torture and other vile methods utilized during detainment. I still stand by those comments and I still feel that the best way to deal with terrorism is by using police work, intelligence, and special task forces. For one it'd be more humane and two it'd actually yield results. For the sake of argument though let's suppose these methods are working despite study after study report after report indicating by all means that the War on Terror is actually breeding terrorism and yielding the opposite of desired results. Should we also change the fact that almost all cases where confessions of intel was gathered through means of torture or these "lesser out-dated and greyish methods of "abuse" will not consider the intel reliable enough in the first place? Do we need to do something about that as well?
http://www.nytimes.com/2006/09/04/washington/04terror.html?_r=1&oref=slogin
Meanwhile according to a study conducted by a private research group at Sryacuse University 91% of the cases against suspected terrorists brought by the Justice Department have been turned down for prosecution this year mainly due to weak evidence and methods of obtaining testimony. Since 2001 the study showed that..."federal prosecutors have declined to prosecute two out of every three international terrorism cases brought to them by the [FBI] and other agencies since 2001."
MORE ON THE ARTICLE ITSELF- Of course the Justice Department disagreed with the way the study was conducted , but of course did not want to get into what it disagreed about specifically. The Administrations pre-emptive philosophy obviously would make it difficult to prosecute cases of alleged terrorism to the point where many cases are not even brought to court because of a lack of evidence. According to the study the number of such cases that are dropped each year have increased considerably since 2002 when these type cases were at their peak. One in five defendants of the 6,500 cases have been convicted with the vast majority of them serving little to no jail time (20-28 days purportedly) mainly over "immigration violations or fraud." However depsite the required massive hands needed to catch all of these alleged terrorists the Justice Department claims it has convicted or gotten guitly pleas at much higher success rate than the study suggests.
I don't believe that the success rate of nabbing actual terrorists/terrorist plotters rests in a "pre-emptive" style or any other philosophy for that matter. The money trail is always where to start. The FBI was never allowed to get close to terrorist groups thanks to Clinton and his appeasement to the Saudis and then with Bush all Saudi related investigations were
completely halted. The next thing to do is to make sure you have enough manpower to complete investigations even those cases of the smaller variety. With something as important as thwarting terrorism I don't think we're going to have very much success if we aren't allocating enough funds for such investigations for one and two we failing with our immigration policy so long as it stands the way it is, which is basically nothing more than rhetoric/B.S. and politicians wetting a finger on their tongues and holding it out in the wind.
AS FOR ACTUAL TERRORISM NAMELY OSAMA AND AL-QAEDA- Osama got what he wanted (he didn't exactly like the infidels on the arab peninsula near all those oil fields and the Saudis keeping the price of crude down for the West now did he? Well, the U.S. bases there have been closed since '03 and a barrel of crude is now about 70 bucks) but Osama still has a bunch of wriled up desperate people looking for a place to direct their anger and fears that the people of the world have to deal with. With Osama it was all about oil and money as it is with all billionaires and it's all about oil and money with our billionaire leaders in this Fatwa er I mean War on Terror too. The Iraq War was about opening up that economy and selling off its assets to international corporations. The neo-cons have been chompin' at the bit to test out the Free Market philosophy in the Middle East. It's all about economics and privatization with this Administration. A tax-cut and corporate give-a-ways should do the trick for the donor class right? And if a few of our bravest finest men and women have to go to war to ensure that billions can be obtained then why not as they are serving any way. Plus, there are reasons to rally around almost any war depending on what side you stand/where your morality is vs your better judgement. What was it that PNAC outlined essentially other than for the U.S. to be unchallenged in its title as the world's LONE Super Economic and Military Power in the world? It was no surprise to me when Wolfowitz wound up with the World Bank. His basic premise for going to war with Iraq was to obtain control of those Iraqi oil fields. But I digress about this with a big "Find OSAMA DEAD OR ALIVE, HE'S PROBABLY IN PAKISTAN." And also why does our situation with Musharraf seem disgustingly similar to that with Saddam 1979-90?