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Fearing Prosecution, Bush Admin Tries to Change War Crimes Act

StoryAugust 16, 2006
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The White House recently proposed changes to the War Crimes Act that would narrow the scope of punishable offenses under the Geneva Conventions. The new list would exclude humiliating or degrading treatment of prisoners. We host a debate with attorneys Scott Horton and David Rivkin. [includes rush transcript]

Ten years ago the Republican-led Congress approved legislation to make it a felony to violate the Geneva Conventions.

The Bush administration now fears the War Crimes Act of 1996 could be used to prosecute civilians involved in the mistreatment and torture of prisoners in Iraq, Afghanistan and Guantanamo.

The White House recently proposed changes to the War Crimes Act that would narrow the scope of punishable offenses. The new list would exclude humiliating or degrading treatment of prisoners. Military law experts believe the Bush administration is effectively re-writing parts of the Geneva conventions.

According to the New York Times, President Bush wants Congress to make the United States the first country to repudiate the language of the Geneva Conventions.

  • Scott Horton, adjunct law professor at Columbia University and the former chair of the Committee on International Human Rights at the City Bar Association in New York.
  • David Rivkin, a partner in the Washington office of Baker & Hostetler. He served in the Department of Justice and the White House in the Reagan and George HW Bush Administrations.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: To discuss this international issue, we’re joined by human rights attorney, Scott Horton, here in New York, an adjunct law professor at Columbia University and the former chair of the Committee on International Human Rights at the City Bar Association, New York. David Rivkin joins us in Washington, D.C. He’s a partner with the Washington law office of Baker & Hostetler, served in the Department of Justice and the White House in the Reagan and George H.W. Bush administrations. We welcome you both to Democracy Now!

DAVID RIVKIN: Good to be with you.

SCOTT HORTON: Good to be with you.

AMY GOODMAN: It’s good to have you both with us. David Rivkin, let’s begin with you. What do you understand the Bush administration is doing now with this 1996 law?

DAVID RIVKIN: Actually, exactly the reverse than what’s being claimed by the New York Times and, sorry to say, what you mentioned in your lead. The real effort by the Bush administration here is driven by the desire to make this law workable. The '96 law unfortunately tracks vague and overly capacious term of Common Article III. Nothing wrong with that if you're interested in symbolism.

If you’re interested in criminal prosecutions, which this administration is interested — we’re in the middle of a war; there are people who, because they’re not uniformed military, cannot be prosecuted under the UCMJ, somebody like a CIA agent or contractor — and you cannot, because of our constitutional system, because of a “void for vagueness” concept, you cannot successfully prosecute anybody criminally with words like “outrages against personal dignity.”

That’s why the '96 statute has not been used once — once — to prosecute anybody, because any prosecutor would look at it and say it's unenforceable. So, all the administration is doing, instead of being supposedly animated by a desire to give immunity to people, is come up with a scheme where you can go after people, civilians who tortured, killed, raped somebody and bring those people to justice. It’s a good thing.

AMY GOODMAN: Scott Horton, your response.

SCOTT HORTON: Well, I think whenever lawyers put forward a draft that takes a statute that’s a model of clarity and brevity and propose to substitute for it something that is three times as long and filled with really quite grotesque ambiguities, we can question legitimately whether it’s designed to clarify.

I think the purposes that exist here are twofold. They’re first to grant immunity or impunity to certain individuals. And these are mostly decision-makers within the government. And secondly, it’s designed to provide an okay to certain techniques which fall just short of torture that are being used by the CIA and also by USSOCOM units today, and that includes techniques like waterboarding, longtime standing and hypothermia, techniques which have been linked to severe injuries and fatalities already in the course of the war on terror.

And to go back to the first, I think David’s correct when he says there’s been no prosecution under this statute. That’s because, of course, we focus, with respect to war crimes, principally on service personnel. And as a matter of well-established, longstanding U.S. policy, service personnel are prosecuted under the Uniform Code of Military Justice which provides a comprehensive basis for the prosecution of war crimes. In fact, we’ve already had more than 30 prosecutions brought since the commencement of the Iraq war, and there are a number of them, very important prosecutions, pending. So, service personnel are not really covered by it.

Then, with respect to CIA personnel and Department of Defense civilians and contractors, there is a memorandum of understanding that was entered into by Michael Chertoff, when he was the head of the criminal division, that covered a series of hyper-coercive interrogation techniques and undertook the Department of Justice would not prosecute personnel if they used these techniques, which in fact explains why there have been no prosecutions.

AMY GOODMAN: These techniques include?

DAVID RIVKIN: Let me just say one thing very briefly. Let me ask my good friend Scott, and I don’t know, Scott, if you practice criminal law as a prosecutor or as a defender. Do you really think in this country you can bring criminal charges and get an indictment, but also a conviction, for somebody for, quote, “committing outrages against personal dignity”? Can you think of any other criminal statute that includes such ambiguous and capacious words?

SCOTT HORTON: I think it would depend on the acts that are charged. But in this case, “outrages against personal dignity” is hardly the heart of the matter. The heart of the matter are very specific techniques that are being used, which is to say waterboarding, hypothermia, longtime standing. And under the heading of “offenses against human dignity,” I think what would really be called into question are formerly approved sexual humiliation techniques, which have been applied, were used in Guantanamo, were also used in Iraq and in other places, that clearly violate Common Article III.

AMY GOODMAN: Scott Horton, we’re going to end — David Rivkin, we’re going to come back to this after break. Stay with us.


AMY GOODMAN: Our guests, Scott Horton, adjunct law professor at Columbia University, former chair of the Committee of International Human Rights at the City Bar Association in New York; and in Washington, D.C., we’re joined by David Rivkin, who served in the Department of Justice and the White House under Ronald Reagan and George H.W. Bush. Washington Post piece just a few days ago: “The Bush administration’s drafted amendments to a war crimes law that would eliminate the risk of prosecution for political appointees, CIA officers and former military personnel for humiliating or degrading war prisoners.” This, according to U.S. officials and a copy of the amendment. Scott Horton, you were talking about sexual abuse.

SCOTT HORTON: Right. I think that, you know, we’re really coming to a focus here on Common Article III, and of course, the Supreme Court in its Hamdan decision, handed down a little bit more than six weeks ago now, made clear that Common Article III did apply pretty much across the board here, and I think that’s one of the things that has spurred the administration to put forward this legislation.

AMY GOODMAN: And for us mere commoners, again, Common Article III?

SCOTT HORTON: Common Article III is a sort of mini-convention within the Geneva Conventions that applies to people other than prisoners of war and creates a sort of humanitarian baseline, as it were, providing a minimum standard of conduct. And I think, as David Rivkin has pointed out, there are a number of terms in here that this legislation, this draft or proposed legislation, is attempting to define down.

AMY GOODMAN: David Rivkin?

DAVID RIVKIN: A couple of things. First of all, I would suggest we all keep our cool until early September, once the administration formally introduces the legislative proposal, and we’ll be able to read. There have been a lot of drafts floating around Washington. But I think, Scott, in good faith, we should all wait and see what it introduces. I think you’ll find the range of offenses, the definition of offenses, to be quite robust — point number one.

Point number two, and this is a fundamental divide between human rights lawyers and international law aficionados, whom I greatly admire, and criminal prosecutors. The bottom line is this: the terms used in provisions like Common Article III, and permeate almost every international instrument, are not the terms that can give rise to successful prosecution in the United States district courts because, again, in a context of our constitutional system, particularly when you’re dealing with criminal prosecution, you have to define terms with a great deal of precision, a great deal of specificity.

If you do not, you run the risk that your charges will be thrown out or the jury would not convict the defendant, and that is the reason — again, the notion — to me, it’s topsy-turvy — the notion that the administration is doing it to protect somebody. They actually want to prosecute people. And they, as Scott himself pointed out, the administration has an excellent track record, with nothing to be ashamed of. This administration and this country has prosecuted more people, more aggressively, for violations of laws of war — which unfortunately happens in the best trained military — than any other military, including the British in Northern Ireland. And they have not been as successful prosecuting contractors, because we all know that the UCMJ is very well defined, well structured. The definition doesn’t apply. So this is the effort to actually go prosecute some people, not to give immunity to people, but let’s reserve judgment on that. Let’s wait and see what — how things read.

And the last thing I would say, this is only one aspect, one tool available to the government. And I’ve had a lot of debates, particularly with the Europeans, about — they’re anticipating that things like Scott mentions, sexual humiliation, like putting underwear on somebody’s head, may not be chargeable under this new statute. I don’t know if it is the case or not. But let’s say that it isn’t. It doesn’t mean that people cannot be prosecuted administratively, and with all due respect, while I certainly don’t condone putting women’s underwear on people, isn’t there is a fundamental difference between that or forcing somebody to eat pork when it’s against that person’s religion — offensive, to be sure, but not the same as rape or murder or torture?

And again, in criminal prosecution, every prosecutor knows that if you overcharge the person, if you simultaneously charge the person with murder and spitting on the sidewalk, chances are very high that your jury would be disagreeable and may acquit the person on all charges. So people really do not understand what is driving this definitional exercise and don’t understand that there are other ways to punish people who engage in degrading and humiliating behavior.

AMY GOODMAN: Scott Horton?

SCOTT HORTON: Well, I think one thing — you know, I agree with several of the things that David just pointed out here. One thing that we should all focus on is that this is an American criminal statute, and discretion in bringing charges and in prosecuting is going to be exercised by American prosecutors. And as is usually the case, prosecutors bring a charge when they believe they’ve got a strong basis to do it and they’re going to get to a conviction, which means that there are all sorts of things that they very well might not prosecute.

And in a case like this, dealing with Common Article III, we’ve got to deal with the fact, of course, that the President made the determination that Common Article III did not apply and, of course, officers of the government may very well have relied upon that. That makes it less likely that prosecutions will be brought. I really think, you know, the focal question comes down to much less one of the actors on the ground, the interrogators, military, CIA, and others, and it comes to much more a question of the policymakers, and that’s the area where the real exposure exists here.

AMY GOODMAN: You mentioned, Scott Horton, that you are bringing more prosecutions. What? And would this change and the War Crimes Act in this country change what you do?

SCOTT HORTON: Well, I don’t bring other prosecutions. I mean, in fact, my involvement in criminal law has been mostly on the defense side. You know, I have studied them all around the world, and, of course, war crimes are different from most of the balance of criminal law, because they’re subject to a potential exercise of universal jurisdiction. We have seven significant countries around the world that embrace and apply the Universal Jurisdiction Statute. There have already been prosecutions brought in at least two countries I can think of, Belgium and Germany, relating to the war on terror, focusing on American officials, and I think it’s safe to say that there will be future prosecutions of this sort. Of course, this is something that is beyond the scope of the debate now about the modification of the American War Crimes Act.

AMY GOODMAN: David Rivkin, I have a question. In the changes that the administration would like to make to this ten-year-old law, the War Crimes Act, it includes excluding such practices as forced nakedness, use of dog leashes, wearing of women’s underwear, as seen at Abu Ghraib. I remember at the beginning of the invasion when — I think it was Donald Rumsfeld, was saying that it was a violation of the Geneva Conventions for showing photographs of prisoners if they were American. Now we’re talking about these other practices. So if an American was taken hostage and was made to go naked, was put on a leash, you don’t think that this law should apply?

DAVID RIVKIN: Let me say a couple of things. First, again, we have to see how the language reads, point number one. Point number two, I can assure you, despite what I said, there will be nothing in the legislation that condones or legitimizes infliction of degrading measures on somebody. Point number three, look, to me, frankly speaking, we should do a variety of things that produce humane treatment, primarily because of who we are as a society. So I personally do not condone torture, certainly no degrading and humiliating treatment.

But with all due respect, the notion that we should be doing it, as you seem to suggest, because of concerns about reciprocity, facts don’t bear it out. American soldiers have not gotten Geneva-level protections in any war in which we’ve been involved since Geneva Conventions were adopted. Kind of Korea’s straddling the fence, because, of course, Korea happened after the conventions were drafted, but before they were ratified by many countries; not in Vietnam; not in Kosovo, when we had a few soldiers captured; not in first Gulf war.

And look, if I’m an American soldier and I know what happens to soldiers who are being captured by jihadis in Iraq and Afghanistan, who are being tortured, and I mean tortured in an medieval way and have their throats cut, and the choice was between that and being paraded naked, sign me up. I’ll be paraded naked. I would vote for Abu Ghraib and Guantanamo before enduring those type of treatments. So, let’s not pretend that we’re talking about protecting our soldiers.

That does not mean that anything goes. We have to provide the level of protection that’s required by international law and, frankly, by human decency, but I’m really, frankly, very impatient about the argument, “Gee whiz, let’s protect GIs.” The GIs haven’t been protected at all. And do you really think that the likes of jihadis would be swayed by the intricacies of compliance with Common Article III, when they reject any — any, repeat — precept of international law of war as something that doesn’t apply to them because it’s too Judeo-Christian? Come on.

AMY GOODMAN: Scott Horton.

SCOTT HORTON: Well, I think the Geneva Conventions were initially adopted in 1864, and certainly the United States has gotten the benefit of those conventions —

DAVID RIVKIN: Not since 1949.

SCOTT HORTON: — and the tradition that they started — that’s the latest iteration, of course — has gotten the benefit of those conventions in wars for decades. I mean, certainly, the First World War, certainly the Second World War, it mattered a lot to American soldiers. In fact, my mentor described to me his interment in the Second World War and said he was sure he would have been killed had it not been for the Geneva Conventions.

What we’re doing is we’re trying to establish principles that govern the conduct of nations, particularly, and I think, of course, it’s true that we’re now dealing with criminal bands that don’t give much attention to niceties of international law, but we establish these traditions to set out who we are and the values we live by and also to establish the rules of play for interaction with other nations in the future, and we have to be thinking about conflicts that are coming down the road in two years, five years, ten years.

AMY GOODMAN: The Uniform Code of Military Justice applies to the military. This would apply to Bush administration officials. It would apply to the CIA. Why now?

SCOTT HORTON: It would not apply to anyone other than uniformed members of the Armed Services. So the Uniform Code of Military Justice is just uniformed service personnel. It does not apply, for instance, even to Donald Rumsfeld or Stephen Cambone or to people in the White House. So it’s, you know, the War Crimes Act that spreads the application of the Geneva Conventions the next level up to civilians, and particularly to civilian policymakers, and I think here, you know, there’s a specific focus really on policymakers. And the prosecutorial focus in applying the War Crimes Act, I think, from the beginning was intended to provide deterrence at that level. So we’re not really talking about soldiers in the field.

DAVID RIVKIN: Let me just —

AMY GOODMAN: Right, right. That’s Uniform Code of Military Justice, but this would apply —


AMY GOODMAN: — to Bush administration officials, to CIA?

SCOTT HORTON: Absolutely.

DAVID RIVKIN: Can I just inject one factual observation? I honestly don’t think that Scott would disagree with me. Things worked until after World War II. Scott, you know as well as I do. Not just the jihadis. The Serbs, who took two American soldiers prisoners, didn’t torture them, but certainly humiliated. The Saddam’s military in First Gulf War tortured and actually raped at least one female aviator. We’re dealing with rogue states. We’re dealing with people who would not be bound by any respect for the rule of law.

Again, my point is not that we should not emulate them. God forbid. But let’s not pretend that what we’re talking about is something that would protect our soldiers. We should structure our behavior entirely unilaterally, driven by a respect for international law and our own morality. But let’s not pretend, again, that we’re going to impact the guys we’re fighting.

AMY GOODMAN: But that issue of, is the Bush administration running scared right now before leaving office to change this ten-year-old law?

DAVID RIVKIN: There is absolutely no basis for it.

AMY GOODMAN: Let me just ask Scott Horton that question

SCOTT HORTON: Well, I think, first of all, you know, it’s very, very clear that there are not going to be any prosecutions brought by this administration, by this Justice Department. And I think the quick movement on this comes from two things. One, very, very clear ruling in Hamdan by the Supreme Court recognizing the application of Common Article III and discussing it — two points, in fact, in Kennedy’s opinion, the criminal law implications of this for those on the American side, and secondly, a realization that the Bush administration will not be at the helm of power forever. In fact, of course, Bush cannot run for reelection.

DAVID RIVKIN: Scott, with all due respect, you’re vastly over-reading Hamdan. If you read it carefully, all Hamdan opinion does is incorporates Common Article III through the medium of UCMJ for one narrow purpose: the composition and functioning of military commissions. The court did not — repeat, did not — find that Common Article III applies across the board, nor could the court ever find such a thing, because in this country, courts do not issue broad advisory opinion. They’re dealing with specific cases and controversies in the context of a case that was given to them, and none of those issues were before the court.

AMY GOODMAN: Scott Horton, last words.

SCOTT HORTON: Well, I think that’s absolutely technically correct, and it’s nevertheless also true that the Supreme Court told us very clearly how they will view this question and that they will apply Common Article III.

DAVID RIVKIN: They didn’t even reach the question of what the Convention is [inaudible].

AMY GOODMAN: We’re going to have to leave it there. Scott Horton, thanks for joining us, former chair of the Committee on International Human Rights at the City Bar Association, New York; and David Rivkin, joining us from Washington, was in the Department of Justice and the White House under Presidents Reagan and George H.W. Bush.

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