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.)
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.
The administration's audacity—even measured against standards set by past audacity—is breathtaking, especially given the scope of detainee abuse reported in recent years.
Human rights groups and journalists have documented hundreds of cases of detainee abuse from Guantanamo, Afghanistan, and Iraq since early 2002. There is ample evidence that military and CIA personnel, with the blessing of administration officials and lawyers, regularly committed physical assaults, sexual humiliation, and other forms of physical and psychological torture. Prisoners were subjected to forced standing for days, major sleep deprivation, exposure to extreme cold or hot temperatures, disorientation tactics, and threats of torture or death. We now know that dozens of detainees have died in custody in Afghanistan and Iraq. In several cases, interrogators literally beat detainees to death.
I have interviewed several military police and interrogators who engaged in or witnessed such abuse—from beatings to complicated forms of psychological torture. In many cases, soldiers say that abusive practices were authorized up the chain of command, making military and even civilian officials potentially complicit.
To be clear: In the administration's view, many of the abuses mentioned above were "not quite torture," and under their proposed changes, such acts could not be prosecuted under the War Crimes Act. Seen in this light, the administration's efforts to amend the statute look less like a desire to clarify ambiguous legal terminology than an opportunistic attempt to define away past criminal conduct.
In reality, the administration is probably less worried about CIA interrogators and more worried simply about their own skins. Administration officials and attorneys were deeply involved in the legal decision-making process leading up to the authorization of abusive tactics against detainees, tactics they often justified using falsities and legal niceties. They know that if there are ever proper investigations into detainee abuse, applying true standards of what was illegal, the investigations will lead past the interrogators and guards and straight up to the military and legal officials who signed off on these novel forms of abuse.
There is something disturbingly cynical about the administration's 11th-hour fear-mongering about the War Crimes Act and the idea that statutory crimes need to be scrapped because of vague concerns about irresponsible prosecutions in the future.
The notion of "rogue" federal prosecutors is, of course, insulting to the career prosecutors in the Justice Department. And does the administration really think that a future attorney general—even in a Democratic administration—will allow half-baked prosecutions based on forced readings of statutory language?
In any case, if future prosecutors want to go after abusive interrogators, there are plenty of clear crimes to focus on without going into arguably "borderline" cases. Between 2004 and 2006, the military and CIA referred to the Department of Justice at least 20 cases from Iraq and Afghanistan involving homicide and outright physical abuses, including torture and assault. Yet to date, only one person has been indicted in federal court (a hapless CIA contractor named David Passaro, currently on trial in North Carolina for beating an Afghan detainee to death in June 2003). It doesn't seem likely that prosecutors—now, or in the future—would need to go after borderline cases of "humiliation" when there are still so many cases of outright torture and murder that haven't been investigated or prosecuted.
More to the point, if the administration is really worried about spurious prosecutions, why stop at the War Crimes Act? Almost any statute can be used spuriously in the hands of a "rogue" prosecutor. If the administration really wants to insulate personnel from spurious prosecutions, perhaps it should take a page from retiring dictators like Chile's Augusto Pinochet and work to obtain an amnesty for the administration for all criminal acts committed while in office. (Or why look all the way to Chile? Perhaps the administration should study how President Bush's father gave pardons to various Iran-Contra scandalites like Casper Weinberger.)
Congress should not agree to any legal "clarification" of the War Crimes Act—particularly a post hoc clarification that ends up shielding U.S. personnel and officials from prosecution for abuse. Government officials cannot be allowed to commit or authorize crimes and then propose legislation to decriminalize their actions. To allow that would not just make a mockery of the Supreme Court's ruling in Hamdan. It would make a mockery of the rule of law.