- For more than five decades following World War II the
United States worked to build a global environment of law and justice.
With help from the UN and other countries the US made serious efforts
to emplace rules of warfare that would respect the dignity of individuals
in armed forces and protect them from inhuman treatment, while outlawing
wanton destruction of society's infrastructure and the slaughter of civilians.
This was vital to future peace and stability because earlier rules such
as the Geneva Convention of 1864 had not withstood the brutal processes
of World War II. That indiscriminate war fighting led to the virtual destruction
of Europe, not alone by the Nazis, but mainly by the Western Allies. Estimates
are that the carnage of World War II killed as many as 60 million people
and wounded or displaced countless more. New rules were vital to assuring
that those crimes against humanity never occurred again.
- The United States led the task of creating and enforcing
new rules as essentially contained in four Geneva Conventions and two Protocols
that were adopted in 1949. The Convention of 1864 was quite possibly responsive
to atrocities of the US Civil War such as abuse of prisoners at Andersonville.
But the four Geneva Conventions and two Protocols that entered into force
in 1949 formed the basis for modern rules of war. The United States adhered
to all of these, although it has yet to accept the idea of an international
court of justice to enforce them.
- The terms of these conventions have been incorporated
into the US Army Field Manual, often referred to as The Law of Land Warfare.
Since its issue in the early 1950s the Manual has provided mandatory guidance
to military personnel on the treatment of combatants as well as non-combatants.
Those rules endured the stresses of unconventional warfare in Vietnam even
though they were put to harsh test by the My Lai Massacre, and the handling
of trial and punishment of the perpetrators is still a blot on the Army's
and the US Government's reputations.
- Such rules, however, always have required a certain transparency
and a good deal of integrity on the part of the users. One of the key
rules--military personnel wear uniforms and operate in the open--has been
severely stressed by late 20th and early 21st century descent into such
unconventional activities as covert operations and targeted assassinations.
Moreover, the rules respecting civil populations have simply been ignored
in shock and awe bombardment, mass imprisonment of "militants"
or "combatants" without charges, wanton destruction of civil
infrastructure and reckless killing of civilians, as--with US help-the
Israelis are now doing in Lebanon.
- Respect for and application of the Geneva Conventions
has now reached such a low point in US practice that the Bush administration
solution is to unilaterally legislate a new set of rules. The new law would
amend the War Crimes Act of 1996 by, among other things, unilaterally redefining
the rules of the Geneva Conventions to exclude common US interrogation
practices and to exempt US civilian officials from prosecution for violating
provisions of the present Geneva Conventions or of the War Crimes Act itself.
- Basically, the argument seems to be that to extract the
information needed to succeed in the War on Terrorism, US authorities
may use any interrogation device on a captured "combatant" that
is short of life-threatening. The aim of proposed US legislation appears
to be to redefine torture so that it excludes all such practices.
- In line with that concept, the Law of Land Warfare recently
has been revised specifically to change the rules respecting permissible
treatment of combatants. However, unqualified US support to the Israeli
campaign to destroy Lebanese infrastructure and ignore the rights of civilians
suggests that in effect none of these rules are being observed or enforced
by the United States anyway. In fact, US initiation of the war in Iraq
by first trying to assassinate the head of state, and then with so-called
"shock and awe" bombardment, including heavy use of depleted
uranium weapons, and wide dispersal of cluster bombs in civilian areas
of Baghdad, had already shown that the Geneva Conventions were being ignored
by US political and military leadership. No doubt the observation by the
present Attorney General that the Conventions are "quaint" suggests
that for present top level US leadership such rules are impractical.
- The proposed changes would make many, if not all, of
the gross practices reported at Abu Ghraib and Guantanamo acceptable under
US law. Those practices would remain contrary to the Geneva Conventions,
so the effect of amending the War Crimes Act would be to unilaterally redefine
and limit US treaty obligations under the Conventions.
- Changing the War Crimes Act as proposed not only means
that the United States is weakening and redefining the Geneva Conventions,
it is also abandoning its role as world leader in the definition and enforcement
of sane rules of war--assuming there are sane rules with the proliferation
of new weaponry and with the savagery of warfare now being practiced.
- American military leaders have long believed and taught
in the military colleges that humane treatment of prisoners and regard
for the protection of civil society are rules that also help reduce chances
that US prisoners will be abused in captivity. The US changes of law and
practice are no less than an open invitation to anyone who captures an
American combatant to apply the same torture tools the US reserves unto
itself. Moreover, the same lack of clarity US officials assert impedes
interpretation of the Geneva Conventions can by used by others to assert
that the torture they inflict is permitted by the rules. The technical
name for this situation is anarchy.
- The second key element of the Bush administration amendments
to the War Crimes Act enters a legal zone that is in principle prohibited
by the Constitution. Ex Post Facto generally has been interpreted by the
courts to apply only to penal and criminal laws, even though Article 1
did not so specify. In any event, what the Bush administration proposes
to do is amend the War Crimes Act to remove from coverage of the law acts
that were criminal at the time committed. Under that law US officials who
knew about, had authorized and/or condoned torture of prisoners at Abu
Ghraib, Guantanamo or any other holding location could be charged with
war crimes. The intent of the amendment is retroactively to exempt such
people--officials of the White House, Pentagon, CIA or others--from being
charged with such crimes.
- This becomes another of many areas in which the White
House insists it is above the law. The aim, in this case is not only to
avoid prosecution for past crimes, but also to make it legal in the future
for US officials to torture prisoners who are held without charge in nameless
- The world always has needed one or more leading user
countries of high moral standing to set the boundaries for these rules
by concrete example. The clearest example the United States had of the
way those rules should be applied has been the Law of Land Warfare. By
changing the rules, the US is abandoning that role, and the degradation
of the Law of Land Warfare will surely be followed by universal weakening
of the Geneva Conventions.
- For that the United States will gain only the dubious
information it extracts from tortured individuals who have no choice but
to babble or go on being tortured. After years of confinement the utility
of what these combatants know is little to naught in any case. But to preserve
the torture chambers, no doubt the offshore prisons from Guantanamo to
Diego Garcia to half a dozen unnamed locations in Central Europe and the
Middle East will continue to be off limits to all observers. So, even
if US laws were not changed to protect US government officials who will
be guilty of war crimes, the American public--and the rest of the world--will
be kept in the dark.
- If the Congress passes this law, America's retirement
from moral leadership will be abject and complete. Because torture of
prisoners will go on in secret, there will be no official record of it.
But the world will know, and the worst copycats will buy into it. America's
retirement simply will mean moral leadership in the wrong direction.
- The writer is the author of the recently published work,
A World Less Safe, now available on Amazon, and he is a regular columnist
on rense.com. He is a retired Senior Foreign Service Officer of the US
Department of State whose immediate pre-retirement positions were as Deputy
Director of the State Office of Counter-Terrorism and Emergency Planning,
and as Chairman of the Department of International Studies of the National
War College. He will welcome comment at firstname.lastname@example.org.