Military commissions bill would allow interrogation tactics nixed by Pentagon

Military commissions bill would allow interrogation tactics nixed by Pentagon

[JURIST] The Military Commissions Act of 2006 [PDF text; White House fact sheet] would allow CIA agents and others to use interrogation techniques not condoned by the US Department of Defense [official website] and would restrict federal courts' ability to enforce prisoner rights guaranteed by the Geneva Conventions [ICRC materials], according to legal experts quoted in Friday's New York Times. On Wednesday, the Pentagon released revisions [JURIST report] to the US Army Field Manual [Human Intelligence Collector Operations text, PDF] that forbid the use of techniques such as sleep deprivation and exposure to extreme temperatures during the interrogations of military detainees [JURIST news archive]. The proposed Military Commissions Act sent to Congress [JURIST report] by the White House on Wednesday, would nonetheless prohibit only conduct that "shocks the conscience" – the standard adopted by the Detainee Treatment Act of 2005 [JURIST document] – rather than "outrages upon personal dignity" barred by the Geneva Conventions' Common Article 3 expressly invoked in the new Pentagon rules. Furthermore, the proposed legislation declares that "the Geneva Conventions are not a source of judicially enforceable individual rights."

Administration officials who spoke to the Times on the condition of anonymity said these provisions were intended to shield interrogators from prosecution under the US War Crimes Act [text], which stipulates that violations of Common Article 3 are felonies. The draft Military Commissions Act, which contains amendments to the War Crimes Act, lists nine specific violations of Article 3, including torture, murder and rape, that it deems federal crimes, suggesting that interrogation methods not listed would be authorized. US Attorney General Alberto Gonzales called for amendments [JURIST report] to the War Crimes Act last month during a Senate Armed Services Committee hearing [committee materials; JURIST report], saying that revisions are necessary to "clarify" the acts prohibited under the War Crimes Act so that US interrogators do not unknowingly subject themselves to criminal charges, a point also made by President Bush in a speech [transcript] Wednesday:

the Supreme Court's recent decision has impaired our ability to prosecute terrorists through military commissions, and has put in question the future of the CIA program. In its ruling on military commissions, the Court determined that a provision of the Geneva Conventions known as "Common Article Three" applies to our war with al Qaeda. This article includes provisions that prohibit "outrages upon personal dignity" and "humiliating and degrading treatment." The problem is that these and other provisions of Common Article Three are vague and undefined, and each could be interpreted in different ways by American or foreign judges. And some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act — simply for doing their jobs in a thorough and professional way.

This is unacceptable. Our military and intelligence personnel go face to face with the world's most dangerous men every day. They have risked their lives to capture some of the most brutal terrorists on Earth. And they have worked day and night to find out what the terrorists know so we can stop new attacks. America owes our brave men and women some things in return. We owe them their thanks for saving lives and keeping America safe. And we owe them clear rules, so they can continue to do their jobs and protect our people.

So today, I'm asking Congress to pass legislation that will clarify the rules for our personnel fighting the war on terror. First, I'm asking Congress to list the specific, recognizable offenses that would be considered crimes under the War Crimes Act — so our personnel can know clearly what is prohibited in the handling of terrorist enemies. Second, I'm asking that Congress make explicit that by following the standards of the Detainee Treatment Act our personnel are fulfilling America's obligations under Common Article Three of the Geneva Conventions. Third, I'm asking that Congress make it clear that captured terrorists cannot use the Geneva Conventions as a basis to sue our personnel in courts — in U.S. courts. The men and women who protect us should not have to fear lawsuits filed by terrorists because they're doing their jobs.

The New York Times has more.


 Op-ed: Narrowing US War Crimes Law: Having Our Cake and Eating It Too?