Criminal, immunize thyself.

The law, lawyers, and the court.
Aug. 11 2006 4:46 PM

Criminal, Immunize Thyself

The Bush administration's get out of jail card for torturers.

Alberto Gonzales. Click image to expand.
Michael Chertoff and Alberto Gonzales

If the Bush administration is still good at anything, it's this: distracting its opponents and seizing little victories from what might have been big defeats.

Take the administration's recent efforts to respond to the Supreme Court's decision in Hamdan v. Rumsfeld. Hamdan arose from a challenge to the president's authority to create novel military commissions to try Guantanamo detainees. In June, the court found these commissions were unlawful: Among other problems, their procedures were inconsistent with existing statutes and fell short of "fair trial" guarantees in the 1949 Geneva Conventions. (Defendants could, for instance, be convicted based on evidence they would never see.)

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The decision was, of course, a major defeat for the Bush administration. Not surprisingly, administration officials went back to Congress this month with legislation that would authorize military commissions to pass Supreme Court muster.

But now, as recently reported by the Washington Post, the administration is also trying to use Hamdan to pass legislation that would immunize government personnel for abuses against detainees at Guantanamo, in Afghanistan, and in Iraq, including those abuses it authorized. In other words, in the middle of what should be a post-Hamdan debate about how to provide fair trials for those accused of terrorist activities, the administration is simultaneously trying to decriminalize its own past crimes.

What's going on? Well, it all goes back to Hamdan's take on the Geneva Conventions. The Supreme Court concluded that armed conflict between the United States and al-Qaida fighters was governed by the Geneva Conventions' "Common Article 3" (so called because the provision appears as Article 3 in all four Geneva Conventions). Common Article 3 sets out standards for civil wars and other armed conflicts in which states are fighting nonstate entities. It guarantees fair trial standards for detainees charged with crimes and sets out base-line standards prohibiting murder, torture, cruel, inhuman and humiliating treatment against detainees, and "outrages upon personal dignity."

Suddenly, administration officials are acting like the sky is falling. Officials say they are deeply worried about the legal implications of the court's conclusion, pointing out that the War Crimes Act—a 1996 statute—criminalizes violations of Common Article 3. Specifically, they claim that the War Crimes Act's references to Common Article 3 prohibitions of "inhuman" and "humiliating" treatment and "outrages against personal dignity"—abusive tactics that arguably fall short of outright torture—create ambiguous federal crimes that could be used unfairly against interrogators and other U.S. officials. ("Murder" and "torture" are apparently clear enough.)

Administration officials say that under Hamdan, CIA and military personnel could be prosecuted for violations of the act, presumably by U.S. attorneys in a future administration, and not merely by "rogue" prosecutors in the existing Justice Department. Attorney General Alberto Gonzales recently told Congress that terms like "inhuman" and "outrages upon personal dignity" are "inherently vague," and that there were "unacceptable" risks of spurious prosecutions under the War Crimes Act.

It's somewhat disingenuous for the administration to carry on like the Supreme Court's decision was unexpected and outlandish. The court's conclusion regarding Common Article 3 was the same conclusion reached by many military and State Department lawyers in 2001 (later overruled by the White House). The administration may have thought it was right when it insisted in 2001 that the Conventions did not protect al-Qaida fighters. But the White House was certainly right on warning that the Supreme Court might well determine otherwise.

Now the administration says it's shocked and concerned about the vagueness of the War Crimes Act. But rather than offering help in defining the supposedly vague crimes more precisely, the administration's suggestion is simply to get rid of them. A new proposal the administration sent to Congress this week (see sidebar for the proposed language) thus shortens the list of war crimes to only cover clear cases of murder, torture, rape, and hostage-taking. (The draft contains provisions prohibiting the crimes of "maiming" and "intentionally causing great suffering or serious injury," but these crimes are mostly redundant to "torture.") The draft would eliminate criminal liability entirely for all other cruel, inhuman, and humiliating techniques.

The effect of this proposal is to immunize personnel for all practices the administration considers to be less-than-torture: for instance, stacking naked prisoners in pyramids, putting them in painful "stress positions," and threatening them with snarling dogs. The administration, in sum, is asking Congress to retroactively decriminalize the abuses we saw at Abu Ghraib.

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