Attorney General Alberto Gonzales and other members of the Bush Administration are seeking to shield civilians employees involved in interrogating prisoners from prosecution for violating the War Crimes Act. This Act made it a federal crime to violate the Geneva Convention standards regarding the treatment of prisoners.
Since 9/11, the Bush Administration has argued that the Geneva Convention did not apply to prisoners captured in this war on terror. Indeed, since the start of the war, the Bush Administration has argued for an entirely new status of prisoner -- called the "enemy combatant". These are neither 'prisoners of war' (as defined by the Geneva Convention), nor are they civil prisoners -- the type who have a right to a trial by jury in a civilian court. With no guidelines established governing the treatment of these individuals, the Bush Administration is free to adopt its own guidelines.
However, the Supreme Court in Hamden vs Rumsfeld held that no new 'special category' exists unless the Congress creates one. Congress had not created one. Therefore, no special category exists.
This meant that these prisoners were 'prisoners of war' and the Geneva Convention rules applied to the treatment of prisoners. This, in turn, meant that if any civilian employee treated these prisoners in ways that were in violation of the Geneva Convention, then those civilians broke the law. (Note: The military has its own procedures for dealing with soldiers who violate the law.)
Let us assume, for the sake of argument, that certain civilian officials have broken this law. For over four years the Bush Administration has been telling its civilian employees that, if they performed these types of actions they would not be breaking the law. Now, the Supreme Court has informed them that if they listened to the Bush Administration, they broke the law. As a result, they would face arrest, prosecution, imprisonment, and a criminal record for doing what the Bush Administration (wrongly) told them that they may permissibly do.
It would be no different than if an employer told his employee that if he were to set fire to a competing business it would be legal. If the employee set fire to the competing business he would be guilty of arson; liable for trial and conviction. The plea, “I thought my acts were legal,” is not a recognized defense. Ignorance of the law is no excuse – not even when those ignorant of the law are the President and his Attorney General.
Now, the Bush Administration is trying to convince Congress to legalize this new category of prisoner. In the mean time, it is also seeking to add amendments to the 1996 War Crimes Act that will ban prosecution of those who violate some of its provisions.
In specific, the Bush Administration wants to shield civilians from prosecution for violating the prohibition on "outrages upon personal dignity."
In defending the Bush Administration's position, Attorney General Alberto Gonzales says that this phrase, "outrages upon personal dignity" is too vague. Interrogators would not actually be able to know when their actions crossed the line – the line itself was too subjective. To make these prohibitions meaningful, Gonzales argued, we must provide a more precise set of definitions.
This is an absurd argument. The Uniform Code of Military Justice, which governs the military, is filled with vague phrases.
888. ART. 88. CONTEMPT TOWARD OFFICIALS: Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.
893. ART. 93. CRUELTY AND MALTREATMENT Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.
933. ART. 133. CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.
These are crimes for which a person in military service can be prosecuted. Yet, these laws have not generated a level of uncertainty detrimental to the military’s efforts to carry out its duties.
We find the same feature in the Constitution of the United States.
8th Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (emphasis added)
5th Amendment: No person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (emphasis added)
These types of phrases are used in writing laws for a reason. Specifically listing the acts prohibited is an impossible task. For example, let us prohibit "outrages upon personal dignity” in the form of forcing prisoners to defecate and urinate on their own clothes. If this becomes an explicit prohibition, perpetrators are invited to view the option of two prisoners urinating and defecating on each other's clothes as permissible because the law does not explicitly prohibit it. If this also gets explicitly prohibited, guards are invited to interpret the act of having prisoners urinate into a cup and pouring the urine onto the clothes as not being a violation. If the use of a vessel or container is prohibited, guards can still think that urinating on the clothes of a prisoner is still not prohibited. No matter how long and how complex the list gets, somebody can think of something that is not explicitly covered.
To block these types of loopholes, legislators (and Constitution writers) resort to phrases such as, "cruel and unusual punishment" and "degrading and dehumanizing treatment." In these cases, it does not matter how imaginative a person is in finding interpretations that do not conform to the letter of the law, they can still be condemned for violating its spirit.
The Attorney General of the United States is supposed to be the top lawyer in the land. None of these arguments about the problems with specific legislation or the use of general legislation should surprise him.
If he is unaware of the reasons why impossibly long and complex lists are not a reasonable form of legislation, we need to seriously question his competence to do the job assigned to him, as well as the competence of those who assigned such a person to that position. If he is aware of the issues, then we are invited to ask why he is trying to get Congress to create laws that he knows are flawed -- specifically, flawed in such a way that it is easy to create loopholes.
It is also curious to note that Gonzales does not seem to be arguing that, "this provision is vague; therefore, it needs to be clarified." His position is that, "this provision is vague; therefore, we should be permitted to ignore it."
If this is a legitimate implication, we may ask whether Gonzales would have us apply it as well to the U.S. Constitution. The prohibition against "cruel and unusual punishment" is vague. It would follow from the line of reasoning Gonzales recommends using that we should pass legislation that "clarifies" the 8th Amendment by saying that it should be ignored. Or if he would be willing to argue that the military prohibition against ‘conduct unbecoming an officer’ is vague that no punishment should be given to anybody found guilty of violating this statute.
These are absurd conclusion. They point to the absurdity of Gonzales’ arguments.
The ultimate consequence of these actions is that Gonzales and the rest of the Bush Administration are seeking through their actions to change the public attitude and affection towards “outrages upon personal dignity” to more closely match their own. This is to move these acts from the bin marked “morally repugnant” to the bin marked “morally neutral” or even, in some cases, “morally obligatory.” Of course, that which you move out of the category “morally repugnant” you make more common. If rape and slavery were moved out of this bin into the category of “morally permissible”, then they would become more common.
Bush, Gonzales, and the rest of their team are working to create a world with more “outrages upon personal dignity” than it would have if we struggled instead to keep it in the bin marked “morally repugnant.” This falls a bit short, I would argue, from the goal of making this a better, safer, world in which to live.