War crimes law worries some Bush officials
Published 9:00 pm Thursday, July 27, 2006
WASHINGTON – An obscure law approved by a Republican-controlled Congress a decade ago has made the Bush administration nervous that officials and troops involved in handling detainee matters might be accused of committing war crimes and prosecuted at some point in U.S. courts.
Senior officials have responded by drafting legislation that would grant U.S. personnel involved in the terrorism fight new protections against prosecution for past violations of 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.
In light of a recent Supreme Court ruling that the international Conventions apply to the treatment of such detainees, Attorney General Alberto Gonzales has spoken privately with Republican lawmakers about the need for such “protections,” according to someone who heard his remarks last week.
Gonzales told the lawmakers that a shield was 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order, which the Supreme Court declared illegal, and under Justice Department legal opinions that have been withdrawn under fire, the source said.
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 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.
