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White House's top lawyer Memos Reveal War Crimes Warnings
Could Bush administration officials be prosecuted for 'war crimes' as a result of new measures used in the war on terror? The White House's top lawyer thought so Suspected Taliban and al Qaeda detainees at Guantanamo Bay Naval Base kneel down before military police as prisoners are processed into the detention facility in January 2002

WEB EXCLUSIVE
By Michael Isikoff
Investigative Correspondent
Newsweek Updated: 9:14 a.m. ET May 19, 2004

May 17 - The White House's top lawyer warned more than two years ago that U.S. officials could be prosecuted for "war crimes" as a result of new and unorthodox measures used by the Bush administration in the war on terrorism, according to an internal White House memo and interviews with participants in the debate over the issue.

The concern about possible future prosecution for war crimes—and that it might even apply to  Bush adminstration officials themselves— is contained in a crucial portion of an internal January  25, 2002, memo  by White House counsel Alberto Gonzales obtained by NEWSWEEK. It urges President George Bush declare the  war in Afghanistan, including the detention of Taliban and Al Qaeda fighters, exempt from the provisions of the Geneva Convention.

In the memo,  the White House lawyer focused on a little known 1996 law passed by Congress, known as the War Crimes Act, that banned any Americans from committing war crimes—defined in part as "grave breaches" of the Geneva Conventions. Noting that the law applies to "U.S.  officials" and that punishments for violators "include the death penalty," Gonzales told Bush that  "it was difficult to predict with confidence" how Justice Department prosecutors might apply the law in the future. This was especially the case given that some of the language in the Geneva Conventions—such as that outlawing "outrages upon personal dignity" and "inhuman treatment" of prisoners—was "undefined."

advertisementOne key advantage of declaring that Taliban and Al Qaeda fighters did not have Geneva Convention protections is that it "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act," Gonzales wrote.

"It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]," Gonzales wrote.

The New York City Bar Association released a report today comprehensively analyzing the multitude of domestic and international laws prohibiting torture and regulating interrogation processes, and making recommendations for how the U.S. should interrogate detainees. The recent news accounts of disturbing allegations of abuse of Iraqi prisoners at the hands of U.S. soldiers highlight the pressing need for U.S. officials to take major steps to ensure the humane treatment of detainees, declared Scott Horton, Former Chair of the Association’s Committee on International Human Rights, which drafted the report in conjunction with the Committee on Military Affairs.

Drafting of the report began after the Association communicated with the Department of Defense and concluded that the Department was falling short in its duty to provide practical guidance to soldiers in the field on just these issues. While stating its intention to abide by its obligations under the Convention Against Torture, the Department of Defense declined any meaningful dialogue on the practical implementation of those obligations. The report has been released today, with copies of correspondence with Administration officials attached. A full copy of the report can be found on the Association’s website at www.abcny.org.

In the report, Association committee members thoroughly reviewed US laws, international treaties including the Convention Against Torture, and the laws of other countries experienced with terrorism. Yet despite this breadth of laws and treaties, the Association was surprised to learn that the Dept of Defense has not issued adequate guidance to military personnel in the interrogation or treatment of those in their custody. Statements earlier this week on “Sixty Minutes II” underscored our concerns, when one of the accused U.S. soldiers, Army Reserve Staff Sgt. Chip Frederick, responded to allegations by saying “We had no support, no training whatsoever, and I kept asking my chain of command certain things, rules and regulations, and it just wasn’t happening.”

• According to Horton “While the recent allegations at Abu Ghraib Prison would be almost universally condemned as a violation of both international and US law, some might be surprised that other alleged acts, including coercive interrogation techniques, while perhaps appearing less depraved, would also be in violation of US laws and international obligations.”

While the Department of Defense has declared that the US intends to abide by the Convention Against Torture and has promised to investigate allegations of abuse, the current allegations raise serious questions as to the level of attention given to compliance with international humanitarian law. The Association’s report finds that for the Dept. of Defense’s statement of intent to abide by the Convention Against Torture to be meaningful policy and not an empty promise, the following recommendations, among others, must be implemented immediately:

* Education and Training
All persons who may be involved in the custody or treatment of anyone under detention should be educated regarding the legal prohibitions against torture. According to Miles Fischer, Chair of the Association’s Committee on Military Affairs “commanders should not condone non-compliance nor permit an environment in which troops are encouraged to provide lip service to compliance but yet think that non-compliance is acceptable.”

• Prompt Investigations of Violations

Any individual who alleges that he or she has been subject to torture must be provided with a meaningful opportunity to complain to, and to have his/her case promptly and impartially examined by competent authorities.

• Independent Investigation of Human Rights Compliance in Other Countries

The US must not render detainees to other countries if there are substantial grounds for belief that the detainees would be tortured.

• Grant POW Status to Detainees Whose Status is in Doubt

Any detainee whose POW status is in doubt is entitled to POW status and therefore cannot be subject to coercive treatment until a competent tribunal, which must be convened promptly, determines otherwise.

• Prompt Screening and Hearings for all Detainees

The Association is mindful throughout its report of the inherent tension between the need to obtain potentially live-saving information through interrogation of terrorist suspects and the legal requirement of upholding the standards set forth in the Convention Against Torture. However according to Martin Flaherty, Current Chair of the Committee on International Human Rights “condoning torture under any circumstances erodes one of the most basic principles of international law and human rights and contradicts our values as a democratic state. If US personnel are allowed to engage in brutal interrogation methods, we sanction conduct which our nation has clearly determined is immoral and wrong, thereby compromising both our moral framework and rule of law.”

http://www.ilhr.org/

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