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. In recent weeks, in the wake of the Supreme Court ruling in Hamdan v. Rumsfeld, Attorney General Alberto Gonzalez and others have been formulating defenses against possible prosecutions for war crimes and are pressuring Republican members of Congress to pass new laws to protect them.
As long as George Bush is president and controls the Department of Justice, there will no prosecutions for war crimes, but after Bush is gone, anything could happen and hundreds of Americans could be charged with war crimes.
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 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."
U.S. Army Regulation 190-8 provides persons captured on a battlefield the right to a military hearing at which they can demonstrate that they are entitled to be held as prisoners of war or to prove that they are innocent civilians picked up by mistake. After the 1991 Gulf War, for example, almost 1,200 captured Iraqis were given such military hearings and hundreds of them were released as innocent civilians. The first President Bush saw this as normal procedure; his son, George W. Bush, did not. After the 2001 invasion of Afghanistan, he declared that no one picked up on a battlefield was entitled to Prisoner of War status, and he refused to allow the U.S. military to hold a single status hearing. Instead, after holding the captured soldiers and others in camps in Afghanistan, he shipped most of them to Guantánamo.
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 2, 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 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 which 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 Hamdan v. Rumsfeld, the Supreme Court 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. Now dozens, if not hundreds, of U.S. soldiers, CIA agents and private contractors are confronting the fact that they violated the War Crimes Act at Guantánamo, in Afghanistan, in Iraq and at "black sites" around the world. Considering that the Pentagon admits that at least 35 detainees in Iraq and Afghanistan have been murdered by their guards, many of these Americans could face the death penalty.
Undoubtedly, all of those Americans who committed torture and other war crimes will offer the defense that they didn't know that what they were doing was illegal because they received their orders from officers, who received them from generals, who received them from Secretary of Defense Donald Rumsfeld, who received them from the commander-in-chief, George W. Bush.
As more and more cases of war crimes come to light, there will be a tendency to forgive the soldiers and others who violated the War Crimes Act because they were just following orders, and to give them light punishments or no punishments at all. The higher-ups, like President Bush, Secretary of Defense Rumsfeld, Major General Geoffrey Miller and Lt. General Ricardo Sanchez, will probably not even be charged because they are too powerful. If this occurs it will send a message to future generations that all laws relating to human rights in the United States are irrelevant if the president says it is alright to ignore them.
For Americans to allow one president to get away with ordering war crimes is shameful enough; to allow a second president to do so would be tragic.