Bush administration [fears] that officials and troops involved in handling detainee matters might be accused of committing war crimes, and prosecuted . . . in U.S. courts.
Senior officials have responded by drafting legislation that would grant U.S. personnel involved in the terrorism fight new protections against prosecution for past violations of the War Crimes Act of 1996. That law criminalizes violations of the Geneva Conventions governing conduct in war and threatens the death penalty if U.S.-held detainees die in custody from abusive treatment.
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Since the U.S. invasions of Afghanistan in 2001 and Iraq in 2003, hundreds of service members deployed to Iraq have been accused by the Army of mistreating detainees, and at least 35 detainees have died in military or CIA custody, according to a tally kept by Human Rights First. The military has asserted these were all aberrant acts by troops ignoring their orders.

Defense attorneys for many of those accused of involvement have alleged that their clients were pursuing policies of rough treatment set by officials in Washington. That claim is amplified in a 53-page Human Rights Watch report this week that quoted interrogators at three bases in Iraq as saying that abuse was part of regular, authorized procedures. But this argument has yet to gain traction in a military court, where U.S. policy requires that active-duty service members be tried for any maltreatment. The War Crimes Act, in contrast, affords access to civilian courts for abuse perpetrated by former service members and by civilians. The government has not filed any charges under the law.

The law's legislative sponsor is one of the House's most conservative members, Rep. Walter B. Jones Jr. (R-N.C.). He proposed it after a chance meeting with a retired Navy pilot who had spent six years in the notorious "Hanoi Hilton," a Vietnamese prison camp. The conversation left Jones angry about Washington's inability to prosecute the pilot's abusers.

Jones's legislation for the first time imposed criminal penalties in the United States for breaches of the Geneva Conventions, which protect detainees anywhere. The Defense Department's deputy general counsel at the time declared at the sole hearing on it in 1996 -- attended by just two lawmakers -- that "we fully support the purposes of the bill," and urged its expansion to cover a wider range of war crimes. The Republican-controlled House passed the bill by voice vote, and the Senate approved it by unanimous consent.

The law initially criminalized grave breaches of the Geneva Conventions but was amended without a hearing the following year to include violations of Common Article 3, the minimum standard requiring that all detainees be treated "humanely." The article bars murder, mutilation, cruel treatment, torture and "outrages upon personal dignity, in particular humiliating and degrading treatment." It applies to any abuse involving U.S. military personnel or "nationals."

Jones and other advocates intended the law for use against future abusers of captured U.S. troops in countries such as Bosnia, El Salvador and Somalia, but the Pentagon supported making its provisions applicable to U.S. personnel because doing so set a high standard for others to follow.
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Since September 2001, however, Bush administration officials have considered the law a potential threat to U.S. personnel involved in interrogations. While serving as White House legal counsel in 2002, Gonzales helped prepare a Jan. 25 draft memo to Bush -- written in large part by David Addington, then Vice President Cheney's legal counsel and now Cheney's chief of staff -- in which he cited the threat of prosecution under the act as a reason to declare that detainees captured in Afghanistan were not eligible for Geneva Conventions protections.

"It is difficult," Gonzales said in the memo, "to predict the motives of prosecutors and independent counsels who may in the future decide to bring unwarranted charges." He also argued for the flexibility to pursue various interrogation methods and said that only a presidential order exempting detainees from Geneva protections "would provide a solid defense to any future prosecution." That month, Bush approved an order exempting those captured in Afghanistan from these protections.
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prosecutions are improbable because the Justice Department -- which has consistently asserted such rough interrogations are legal -- is unlikely to bring them.
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Alberto J. Mora, the Navy's general counsel from 2001 until the end of last year, warned the Pentagon's general counsel twice that some approved interrogation methods violated "domestic and international legal norms" and that a federal court might eventually find responsibility "along the entire length of the chain of command," according to a 2004 memo by Mora that recounted the warnings. The memo was first obtained by the New Yorker magazine.

At a July 13 hearing of the Senate Armed Services Committee, the Air Force's top military lawyer, Maj. Gen. Jack L. Rives, affirmed that "some of the techniques that have been authorized and used in the past have violated Common Article 3" of the Geneva Conventions. The top military lawyers for the Army, Navy and Marine Corps, who were seated next to Rives, said they agreed.
The "Justice" Department is putting together legislation that guts the War Crimes Act. If by some miracle it doesn't pass--and the administration is as weak as it has ever been on this stuff--these military lawyers, not the U.S. Justice Department, are the ones who will bring these lawsuits. And given how much the military cares about the Geneva protections, they might just do it.

If the administration doesn't get Congress to gut the law to cover its own ass.

Keep an eye on this story.