No Standards, No Accountability
Originally published in CounterPunch on August 4, 2006
Ten years ago, Representative Walter Jones (NC) introduced what became Public Law 104-192, The War Crimes Act of 1996 (18 U.S.C. Sec. 2441). This statute was one of many in the mid-1990s purporting to extend U.S. laws to other countries – a status known as extraterritoriality – in the event a U.S. national or U.S. property were treated in a way that, if done in the U.S., would violate U.S. law.
Behind the spate of extraterritorial laws was congressional frustration that the “world’s only remaining superpower” could not extend its writ around the globe. Mayhem ranging from genocides and acts of terror to massacres and sheer brutality against prisoners and non-combatants were regular occurrences in the era’s many civil wars – with the perpetrator’s as regularly escaping accountability for their actions.
While international law such as the Geneva Conventions forbade torture and other crimes against humanity, there was no permanent judicial system empowered to bring war criminals to justice. (The International Criminal Court did not come into being until 2002.) Jones intended to make clear that those who mistreated a U.S. national could, if subsequently found and transferred to U.S. custody – presumably by extradition, but not excluding “rendition” or covert operations by the CIA or U.S. Special Forces – could face trial within the U.S.
At the Pentagon, the senior uniformed lawyers proposed a change to the law that would make its provisions apply to U.S. nationals who committed war crimes as well as those who were victims of such crimes. They argued that by setting a high standard for humane treatment of detainees held by the U.S., the Pentagon could demand reciprocal humane treatment for captured U.S. soldiers and other U.S. nationals held by an enemy. This change was enacted in 1997.
Four years later, Jones was among the overwhelming majority in both houses of Congress who voted for the post-September 11, 2001 “Authorization to Use Military Force” legislation that the Bush White House has used to justify a widespread grab for and abuse of executive power. As the result of the recent Supreme Court decision in Hamdan vs. Rumsfeld, that abuse, specifically the attempts to craft policies circumventing international treaties on treatment of combatants and other detainees, arguably may have violated P.L. 104-192 – especially if a link can be made between policy formulation and actual abuses of international norms.
The law itself, one page long, seems quite definitive. The first paragraph lists potential punishments, which includes the possibly death if the victim dies. The second describes the “circumstances” of the offense: the perpetrator or victim must be a U.S. national.
The third paragraph states that “war crimes” are any conduct that:
- is a “grave breach” of the Geneva Conventions or its protocols as ratified by the U.S.;
- is prohibited by Articles 23, 25, 27, or 28 of the Fourth Hague Convention Annex dealing with the law of land warfare;
- violates Common Article 3 of the Geneva Conventions regarding non-international armed conflict; or
- causes death or serious injury to civilians through violating restrictions on use of mines and other devices.
The potential for prosecution under P.L. 104-192 was recognized by then White House Counsel and now Attorney General of the United States, Alberto Gonzales, in a January 25, 2002 memo to President Bush, one of many that went between the White House, the Justice Department, the CIA, and the civilian leadership of the Pentagon. These attempted to establish a rationale permitting abusive and degrading treatment that included acts defined as torture in international laws accepted by the U.S. by creating “exempt” categories for detainees and “exempt” areas in which prisons could be built and unregulated interrogations conducted.
By affirming in its June 30, 2006 decision (Hamdan v. Rumsfeld) that Common Article 3 of the Geneva Conventions applied to detainees in the “war on terror” and the jurisdiction of the federal courts to hear cases involving detainee rights, the Supreme Court invalidated most of the administration’s “no-standards” interrogation policy. But rather than bring policy – and practice – into line with the international conventions that the U.S. had observed up to September 11, 2001, the administration is now trying to absolve itself by inducing Congress to pass legislation that retroactively shields from possible prosecution any and all who authorized or encouraged the use of coercion during interrogations.
The new “standard,” according to media reports, would allow methods that do not “shock the conscience” – a standard that is not conducive to the rule of law as opposed to the rule of men. One wonders if this is the equivalent of the military’s “shock and awe” bombing campaign against Iraq in March 2003. That too, was an attempt to short circuit proven procedures and operational standards – and its aftermath has been equally as devastating to the principle of accountability so vital to democracies.
This
analysis was prepared by Col. Dan Smith, U.S. Army (Ret.). Dan,
a West Point graduate and Vietnam veteran, is FCNL's Senior
Fellow on Military Affairs.
Reviewed:
08/16/2006
More on Alternatives to War |
