Whenever someone publicly suggests that President Bush and other members of his administration might have committed war crimes, he or she is accused of being a wild, over-the-top extremist. But there is one group of people that has always taken the war crimes charges seriously—the members of the Bush administration themselves. They have good reason for doing so, because they have exposed hundreds of Americans to possible prosecution for violating U.S. law.

 

From the very beginning of the war against terrorism, George W. Bush and his administration knew that the tactics and techniques they planned to use were illegal according to U.S. law. Rather than reject these tactics and techniques, they prepared a series of convoluted legal rationales that they hoped would protect them from prosecution. 

 

The War Crimes Act of 1996, promoted by Republicans and passed by both houses of Congress without a dissenting vote, made it a federal crime to commit a “grave breach” of the Geneva Conventions, meaning the deliberate “killing, torture or inhuman treatment” of detainees. It includes “outrages upon personal dignity, in particular humiliating and degrading treatment.” Violations of the War Crimes Act that result in the death of a detainee carry the death penalty and they do not have a statute of limitations. Although it was initiated to prosecute foreigners who mistreat American prisoners, Congress, in an admirable display of bipartisan support for human rights, applied the law as well to American treatment of foreign prisoners of war, reasoning that we should hold ourselves to the same standards we hold others.

 

In a memo to President Bush (PDF) dated January 25, 2002, then White House counsel Alberto Gonzales suggested that Bush find a way to avoid the rules of the Geneva Conventions as they relate to prisoners of war because that “substantially reduces the likelihood of prosecution under the War Crimes Act.” A week later, Attorney General John Ashcroft sent a memo to the president also stressing that opting out of the Geneva treaty “would provide the highest assurance that no court would subsequently entertain charges that American military officers, intelligence officials, or law enforcement officials violated Geneva Convention rules relating to field conduct, detention conduct or interrogation of detainees.” Ashcroft reminded Bush, “The War Crimes Act of 1996 makes violation of parts of the Geneva Convention a crime in the United States.”

 

So the Bush administration announced the creation of a new category of captured prisoners. Instead of being “prisoners of war,” suspected al-Qaeda members or sympathizers would be “illegal enemy combatants.” Since this designation was not mentioned in the Geneva Conventions, the Bush administration argued that such detainees were not protected by its provisions. As for the soldiers fighting for the Taliban government of Afghanistan, they were also “enemy combatants” rather than “prisoners of war” because Afghanistan was a “failed state” and the Taliban soldiers did not belong to an army, but a “militia.”

 

Unfortunately, these prisoners fell into a mishmash of different categories. Some of them really were al-Qaeda members and terrorists-in-training.  Others were Taliban soldiers, many of whom considered themselves to be fighting for a national army.   In addition, the Taliban operated a forced labor system in which villagers were periodically expected to work for the Taliban for about twenty days at a time. Those Afghanis who had the misfortune to be doing their forced labor at the time of the U.S.-led invasion were considered enemy combatants. Because the United States offered a substantial reward for the capture of members of al-Qaeda or the Taliban, entrepreneurial bounty hunters snatched random locals, collected their rewards, and disappeared. Finally, there were innocent civilians who were just picked up by mistake. Unlike his father, George W. Bush did not give any of these people a chance to present evidence of their innocence.

 

The fact that these prisoners were sent to Guantánamo rather than to a military prison in the United States was another example of the Bush administration’s attempt to avoid prosecution under the War Crimes Act. Administration officials declared that because Guantánamo was in Cuba and was not part of the United States, anything that was done there was not subject to U.S. laws.

 

President Bush and his administration also faced the problem that Sections 2340-2340A of the US Code, Title 18 outlawed torture. So, to be on the safe side, the Bush administration redefined the word “torture.” In an August 1, 2002, memo signed by Jay Bybee, the head of the Justice Department’s Office of Legal Counsel, the department lawyers proposed sidestepping the law by narrowing the designation of an act of torture as one that caused suffering “equivalent to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Even then it did not qualify as torture if the torturer was seeking information from the victim. An action only counted as torture if the torture was gratuitous.

 

On February 7, 2002, President Bush signed an order (PDF) denying Geneva Conventions protection to detainees in the war on terrorism. From that point on, the word went out to members of the U.S. military, to agents of the CIA and other government agencies, and to private contractors involved in interrogations and detentions that they could use techniques and punishments that were illegal according to U.S. law. For example, it was now acceptable to cover a prisoner’s face with cellophane or cloth and pour water on him so that he thought he was suffocating to death. According to the Bush administration, this form of mock execution, known as waterboarding, which was considered illegal during the Vietnam War, was no longer classified as torture.

 

At every level, from the highest officers and civilian officials to low-ranking enlisted personnel, Americans passed on the order to engage in practices that broke U.S. law. 

 

In 2005, Senator John McCain proposed an amendment to a defense appropriations bill that banned the use of torture, as well as cruel, inhumane or degrading treatment of prisoners in U.S. custody. President Bush threatened to veto the bill, but then made a deal with Congressional Republicans: he would sign the bill if they would pass the Detainee Treatment Act of 2005, which would remove habeas corpus rights for prisoners held at Guantánamo Bay. Bush got his Detainee Treatment Act and, on December 30, 2005, he signed the anti-torture amendment. But then, having gotten what he wanted, he tricked his fellow Republicans by adding a “signing statement” claiming that, as president, he was free to ignore the anti-torture amendment.

 

For six months, the Bush administration was free from worries about being prosecuted for war crimes. Then, on June 29, 2006, the Supreme Court, in Hamdan v. Rumsfeld, ruled that detainees in the war on terrorism really are covered by the Geneva Conventions and, by extension, by the U.S. War Crimes Act. Dozens, if not hundreds, of U.S. soldiers, CIA agents and private contractors were forced to confront the fact that they had violated the War Crimes Act at Guantánamo, in Afghanistan, in Iraq and at “black sites” around the world. Considering that the Pentagon admits that dozens of detainees in Iraq and Afghanistan have been murdered by their guards, many of these Americans could face the death penalty.

 

Members of the Bush administration themselves were also back in danger of prosecution. So they created what came to be known as the Military Commissions Act of 2006 (PDF). Tucked away in this 96-page bill, in section 6b, is a clause that retroactively protects members of the administration and any American who committed torture, whether military, CIA or contractor, from prosecution for any act against a prisoner since September 11, 2001. Among the more prominent senators who voted in favor of this retroactive immunity were John McCain, Joe Lieberman, Arlen Specter, Chuck Hagel and Frank Lautenberg. Both Barack Obama and Joe Biden voted no.

 

It is time for Congress to repeal section 6b if the Military Commissions Act and for the American people to decide whether those people who violated the U.S. War Crimes Act of 1996 should be indicted.

 

David Wallechinsky