Cheating Justice (17 page)

The federal War Crimes Act of 1996 was a healthy, admirable, and muscular law when President Bush took office in January 2001. It prohibited not only torture, but also degrading treatment of detainees, cruelty, acts of humiliation, and outrages against personal dignity. But by the time that President Bush left office, and at his behest, the War Crimes Act of 1996 had been stripped of meaning and rendered worthless. Revisions that the Bush administration rushed through Congress in 2006 altered the War Crimes Act—retroactively. It was a barely noticed—and widely successful—enterprise designed to protect President Bush and his top officials from the application of the law and the consequences of their acts in sanctioning and unleashing torture and cruel treatment.

The War Crimes Act came about in order to carry out a central obligation of the United States under the Geneva Conventions. The Geneva Conventions, which were adopted by the United Nations in 1949, were a direct response to the horrific experiences of prisoners of war and civilians during World War II. Nations across the globe, including the United States, were determined to prevent a repetition by creating international law to ensure the decent treatment of detainees in conflict situations.
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The United States ratified the Geneva Conventions in 1955 during the presidency of Dwight D. Eisenhower. As the commander of U.S. and Allied troops during World War II, President Eisenhower fully understood their military and moral significance and he eagerly embraced them. “The Geneva Conventions are fashioned primarily to meet universal humanitarian aspirations and needs,” he wrote. They are intended “for the relief of physical suffering and moral degradation so often in the past experienced by victims of war, both military and civilian.”
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Eisenhower knew that the Geneva Conventions would play a vital role in protecting U.S. troops if they were captured. The Geneva Conventions set standards for treatment of both prisoners of war and persons not taking part in hostilities.

The United States had a powerful tradition of following the Geneva Conventions. As I noted earlier, the Conventions were specifically incorporated into the U.S. Army
Field Manual
.
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Since they were adopted, the Geneva Conventions have been followed in every armed conflict, including the Vietnam War and the first Gulf War—every war, that is, up to the time of President George W. Bush.

The Geneva Conventions also require each nation that ratifies to take steps to punish those who commit “grave breaches.” It was for this reason that Representative Walter B. Jones Jr., a Republican from North Carolina, introduced the War Crimes Act in 1996, which made violations of the Geneva Conventions a part of federal criminal law. Jones represented a large military base, Camp Lejeune, and had been persuaded of the need for the law by a former Vietnam War pilot who had been captured and tortured. Liberal and conservative, Democratic and Republican members of the Congress joined together to support the legislation.

The War Crimes Act stated that war criminals could be prosecuted directly in the United States. It held: “Whoever, whether inside or outside the United States, commits a war crime . . . shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the
victim, shall also be subject to the penalty of death.” There is no statute of limitations in death cases.
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As passed in 1996, the act defined a “war crime” as any conduct that is a “grave breach” of the Geneva Conventions, which automatically included willful killing; torture or inhuman treatment; and willfully causing great suffering or serious injury to the body or health of a civilian or prisoner of war in the circumstances of an international armed conflict. In 1997, the War Crimes Act was further bolstered at the suggestion of the Defense and State Departments to cover prosecutions for violations of “Common Article 3” of the Geneva Conventions. So, in addition, it criminalizes; “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture . . . outrages upon personal dignity, in particular humiliating and degrading treatment.”

Bush administration officials, including the president, undoubtedly violated both the War Crimes Act of 1996 and the Geneva Conventions. As a result, the president sought to immunize himself and his inner circle from the consequences under the law—by changing the law.

As early as January 2002, just months after the invasion of Afghanistan, extreme concern arose in the White House about criminal liability under the War Crimes Act. A January 25 memo from then White House counsel Alberto Gonzales, leaked two years later to
Newsweek
, described this concern in the most urgent terms to President Bush. Gonzales had a solution. He called for the United States to reject the applicability of the Geneva Conventions to the Taliban and al Qaeda. He made several claims, among them that the Geneva Conventions were “obsolete” and “quaint.” The much less noticed reason that Gonzales wanted to reject the Geneva Conventions did not make the headlines. Doing away with Geneva, he wrote, “substantially reduces the threat of domestic criminal prosecution” under the War Crimes Act of 1996.
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In other words, Gonzales argued for rejecting the Geneva Conventions because the War Crimes Act of 1996, which carried out the conventions in the United States, called for significant criminal penalties for violations that might not feel so quaint if applied to the residents of the White House. Gonzales reasoned that if the Geneva Conventions did not apply, then the War Crimes Act would not apply either. And that would mean no prosecutions under it.

Gonzales noted in particular the possibility that “prosecutors and independent
counsels” “may in the future” bring “unwarranted charges” under the War Crimes Act of 1996. The term “independent counsels” had a very particular meaning. “Independent counsels” were special prosecutors appointed by courts to investigate and prosecute presidents and cabinet members and to ensure that elite officials are held accountable for crimes they commit.

The memo to the president makes it clear that President Bush had been briefed previously—and personally—on this subject. Gonzales makes direct note of this. “As I discussed with you,” he writes in his memo to the president.
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Left unsaid in the Gonzales memo, but surely understood, was that the War Crimes Act also called for the death penalty in cases where death resulted from violations of the act—which, in turn, meant that the statute of limitations did not apply. The War Crimes Act of 1996 could expose President Bush and his top officials to criminal liability for the rest of their lives.

The State Department opposed Gonzales's position. After reading a Gonzales draft, Secretary of State Colin L. Powell sent a crisp objection to the White House on January 26, 2002. In bullet points, he listed pros and cons for doing away with the Geneva Conventions. He found ten “cons” to eliminating Geneva Conventions protection (“will reverse over a century of U.S. policy”; “may provoke some individual foreign prosecutors”). On the other side, he found a single muted “pro” for eliminating Geneva Conventions protection (“an across-the-board approach”). Powell made factual corrections, too: Geneva Conventions protection “was intended to cover all types of armed conflict and did not by its terms limit its application,” he wrote.
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The legal advisor to the secretary of state, William H. Taft IV, followed up on February 2, 2002, with a memo to the White House with the strong recommendation that the Geneva Conventions apply and emphasizing that other State Department lawyers concurred. On the tender point of criminal liability, he wrote, “The risk of prosecution under [the War Crimes Act] is negligible. Any small benefit from reducing it further will be purchased at the expense of the men and women in our armed forces.”
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No matter: President Bush knew that the risk was not negligible; he, unlike Taft, knew exactly what the interrogations involved and he was not going to risk the chance of being prosecuted. He accepted Gonzales's recommendation and declared that al Qaeda members would not be covered
by the Geneva Conventions, and the Taliban would not be treated as prisoners of war. It was at this point that President Bush, on February 7, 2002, for the first time since U.S. ratification of the Geneva Conventions in 1955, declared them inapplicable.
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The torture memos issued by the Office of Legal Counsel on August 1, 2002, were more specifically directed to the anti-torture law than the War Crimes Act, which the White House believed had already been wiped away by the president's memorandum of February 7, 2002.

Despite these core actions by the White House to authorize cruel treatment and torture, concern about the aggressive interrogations continued to emerge from unusual sources, creating stumbling blocks for the Bush administration. In May 2004, the inspector general of the CIA, John L. Helgerson, wrote an extensive top-secret report that was highly critical of the interrogation techniques being used by the agency on detainees between September 2001 and October 2003.
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A team of twelve people had conducted the inspector general's investigation with site visits, reviews of interrogation videotapes (later destroyed), and interviews of more than one hundred individuals, including the CIA director, general counsel, and senior agency personnel. “In thousands of pages, [the report] challenged the legality of some interrogation methods,” Mark Mazzetti and Scott Shane later wrote in the
New York Times.
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This internal assessment showed that the inspector general was distressed about the U.S. failure to follow human rights principles and was troubled by the use of the enhanced interrogation techniques—certainly the repeated waterboarding, but also choking, mock executions, threats to family members, cuts and abrasions caused by stepping on shackles, kicking, knocking down, possible dragging, and deaths at “rendition” facilities. The report concludes that “the Agency faces potentially serious long-term political and legal challenges as a result of the CTC [Counter-Terrorism Center] Detention and Interrogation Program, particularly in the use of EITs [enhanced interrogation techniques].”

This troubling—and important—report was directed to those at the highest levels. The report, said Mazzetti and Shane in the
New York Times
, was “a body blow to the CIA program.” It put CIA director George Tenet on high alert and “landed on the desks” of White House officials, said the
Times
reporters. In addition to challenging the legality of the interrogations,
the report questioned the effectiveness of the entire program as a tool for information gathering.

Another obstacle—and perhaps more serious because it was in the public eye—arose in 2005. Republican senator John McCain, who, as most people knew, had been a victim of torture as a POW during the Vietnam War, attached language to two major defense bills to ban the cruel, inhuman, and degrading treatment of any detainee. The provisions established the
Army Field Manual
as the standard for interrogation. “Our image in the world is suffering very badly, and one of the reasons for it is the perception that we abuse people we capture,” McCain told the Associated Press.
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The Bush administration strongly opposed the language and threatened a veto. Vice President Cheney personally lobbied Senator McCain and other key senators against the legislation—“Cheney pulled [senators] into a room off the Senate floor and sternly argued that the provision would usurp the president's authority,” according to the
Washington Post
.
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Cheney's efforts failed, and only a handful of senators opposed McCain's measure. Then the House registered its strong support for McCain as well—in fact, his legislative proposal looked veto proof. Given the frosty congressional landscape, President Bush seemed to back down in mid-December and made a ballyhooed joint appearance with McCain in the White House to declare a reversal of his position and new support for the legislation. He “praised McCain's effort,” said the
Washington Post
on December 16.
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But, behind the scenes, the Bush administration continued to lobby for changes that it wanted. As a result, the final measure, which was passed as the “Detainee Treatment Act of 2005,” contained a loophole that had not appeared in McCain's original proposal. “The administration did gain a provision acknowledging that the advice of counsel defense was available to interrogators,” noted the investigative team of the Justice Department's Office of Professional Responsibility in its 2009 report.
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This clause offered new defenses to protect those who engaged in torture, the president included. Government employees who committed torture were given a handy way to get off the hook should a courageous prosecutor appear and charge them with criminal activities. Persons charged with violations of the War Crimes Act now would be permitted to claim that they believed their actions were acceptable—for example, if they relied on the advice of a lawyer. The new provision states: “It shall be a defense that such [government officer] did not know that the practices
were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.”

In other words, the Detainee Treatment Act incorporates the “mistake of law” defense (which I described earlier regarding illegal surveillance) into the law. Putting this directly into the law gives “mistake of law” extra muscle as a protection for anyone accused of violating the War Crimes Act. And to further sweeten the pot, the Detainee Treatment Act promised that the government would provide free legal help to government employees charged with a violation of the law.
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