On Interrogation, War Crimes, the President, and Congress

The above-the-fold article in Saturday’s Washington Post covered President Bush’s press conference yesterday. From the two opening paragraphs:

President Bush warned defiant Republican senators yesterday that he will close down a CIA interrogation program that he credited with thwarting terrorist attacks if they pass a proposal regulating detention of enemy combatants, escalating a politically charged battle that has exposed divisions within his party.

An irritated Bush, raising his voice and gesturing sharply at a Rose Garden news conference, excoriated legislation passed by a Senate panel Thursday that is intended to conform U.S. detainee practices with the Geneve Conventions. Bush insisted on legislation more specifically defining what is banned so intelligence officers would not worry about being charged with war crimes.

What does President Bush want in his legislation? How does the Senate legislation differ? From some analysis on page A3 of the same issue of the Post:

President Bush’s push this week for legislation that narrowly defines U.S. obligations under the Geneve Conventions is motivated by his aides’ conviction that the CIA must continue using a small number of highly controversial interrogation techniques on suspected terrorists, according to current and former U.S. officials. These include some that cause extreme discomfort and have bee repudiated by other federal agencies.
[SNIP]
Congressional critics of this position have some support from within the government: Neither the FBI nor the Defense Department allows use of the CIA’s harshest techniques….
[SNIP]
The rival Senate bill on interrogations–approved by the Armed Services Committee on Thursday and sharply criticized by Bush yesterday–is silent on how the CIA should comply with the Geneve Conventions. Its intent, according to several government officials, is not only to avoid sending a signal to other nations that Washington is reinterpreting its treaty obligations, but to leave in place a historic understanding of international law, which would render unlawful many of the extreme interrogation techniques the CIA has been using.
[SNIP]
[T]he administration’s language would in effect ban only those interrogation techniques that “shock the conscience.” That phrase, drawn from a judicial interpretation of the U.S. Constitution, is a “flexible” standard, the official said.

In a sidebar, the article states that the Armed Services Committee bill’s silent on what constitutes compliance with the Geneve Conventions will “[force] CIA officers to treat detainees humanely and to avoid degrading acts, under common understandings of international law.”

To summarize, then, Bush wants to use “harsh” and “extreme” interrogation methods to extract information from enemy combatants, while the Senate wants United States policy to conform to historical and international standards, avoiding the use of “degrading acts.” In addition, the President wants to encode into law due process restrictions, to keep detainees from being able to challenge their detention, to deny them the right to confront accusers, and to deny them habeus corpus protections, all guaranteed by the United States Constitution.

Frankly, if the President feels that the Senate bill would impede his Administration’s ability to extract information and would force CIA officers to cease their activities, as he stated yesterday at his press conference, then what is wrong with that? Inhumane, degrading treatment of detainees would be upheld, the United States would come into compliance with international standards on prisoner treatment.

There is, however, a good reason for the President not to force the issue. According to law professor Jordan Paust, if Congress were to pass legislation that restricted the interpretation of the Geneva Conventions and deprived detainees of due process rights members of Congress themselves could be held personally liable for war crimes. Yes, war crimes.

Indeed, every violation of the law of war is a war crime, punishable here or abroad in any country under the principle of universal jurisdiction. War crimes are also prosecutable in international criminal tribunals that have jurisdiction over particular perpetrators. A denial of the rights and protections under the Geneva Conventions (such as those expressly set forth or incorporated by reference in common Article 3) is a violation of the Conventions and a violation of the Conventions is a war crime.

Another provision of treaty-based laws of war that also reflects customary international law is quite relevant in this regard. It is set forth in Article 23(h) of the Annex to the 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land, which reads: “it is especially forbidden … [t]o declare abolished, suspended, or inadmissible in a court of law the rights … of the nationals of the hostile party.” Similarly, as part of the law of war, a violation of the Hague Convention is a war crime.

Members of Congress are thus on notice that minimum due process guarantees under customary international law must not be denied when Congress attempts to articulate what forms of procedure a military commission should adopt. If members participate in a plan to do so or are complicit in the deprivation of minimum due process guarantees under customary international law incorporated by reference in common Article 3 of the Geneva Conventions or any other rights or protections under common Article 3 (e.g., concerning the right to humane treatment even at the hands of CIA interrogators), they would be participating in the denial of rights, protections, and duties under Geneva law. Such denials are war crimes.

While I’m uncertain of the logic, I would hope that even the possibility that a Congressman could be held liable for war crimes if he voted to constrain the United States’ interpretation of international guarantees for prisoner treatment would give the Congressman pause. Take the hypothetical situation. Suppose Congressman Joey Joe Joe Junior Shabadoo voted for the President’s bill, that explicitly defined interrogation techniques disavowed by other federal agencies as being permissible and restricted prisoner rights of due process. Suppose this bill were to become law. Could Congressman Shabadoo travel overseas without fear of being arrested in another country for committing war crimes? Could President Bush travel overseas, for signing the legislation into law, without fearing arrest? It’s a sobering thought.

The President’s bill is a bad idea. It’s bad law. It’s bad international relations. It’s inhumane. And now, it could put our own legislators at risk. If the Senate refuses action on the President’s bill in favor of the competing legislation and the President halts CIA interrogations as he theatened to do, that’s the best case scenario.