Date: Saturday, March 7, 2009 10:35 PM
On Thursday, CIA Director Leon Panetta sent an e-mail to CIA employees reassuring them that no one who engaged in torture would be held accountable as long as they were following orders. In 1996, the U.S. Congress passed, and President Clinton signed into law, the U.S. War Crimes Act. The Act, created and promoted by Republicans, 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.”
This led to all sorts of twisted arguments that anyone picked up anywhere during the “War on Terror” wasn’t a prisoner of war and that anyone held at Guantánamo or Bagram was not subject to U.S. law. These arguments were rejected by the Supreme Court in its 2006
Hamdan v. Rumsfeld decision. Considering that the Pentagon has admitted that at least 35 detainees have been murdered by their guards, the question of bringing torture charges against CIA agents and others is not a theoretical issue.
Not to worry, though, because President Obama and CIA Director Panetta have made it clear that even murderers will not be called to justice as long as they can prove that they were just following orders.
This decision is so damaging to U.S. credibility abroad, that it is worth considering why Obama and Panetta would do such a thing. In a best case scenario, they are granting immunity to the torture perpetrators in order to build a case against those who gave the orders, specifically President Bush, Secretary of Defense Donald Rumsfeld, Major General Geoffrey Miller and Lt. General Ricardo Sanchez In a middle-ground scenario, Obama and Panetta are too wishy-washy to stand up to the CIA and to former Bush administration members. In a worst case scenario, they want to reserve for themselves the right to ignore U.S. law, just like the Bush team did. If this last scenario turns out to be the true one, it would be a tragedy, because it would 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.
