Feds Should Stop Weaseling on Rules of War

Here is an idea. Instead of spending tons of time and energy and money (and political and legal capital) consistently trying to weasel out from under laws that are desgined to ensure that prisoners of war or detainees are treated decently by our military personnel, why doesn't the Administration instead adopt a zero-tolerance policy with its soldiers that demands they play it straight when acting as captors? Instead of constantly trying to limit the liability and exposure of military officials, why not aggressively prosecute any member of our armed services who crosses the line into abusive contact with any prisoner or detainee? At some point, if our soldiers act atrociously, shouldn't they be punished?

I ask because the Post this morning is reporting that the Administration is moving once again to protect its soldiers from prosecution for conduct that many of us would find reprehensible. R. Jeffrey Smith writes: "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."

Apparently, the latest problem with the rules of war was created in 2002 when President Bush issued an order that has since been declared unconstitutional by the Supreme Court and when the Justice Department issued a series of ill-advised and ill-fated memoranda which contained legal standards and guidelines for military personnel which have since been abandoned. So there is apparently some exposure for military personnel based upon a Clinton-era passed by a Republican Congress long before the Twin Towers fell. It makes criminal violations of the Geneva Conventions, a big deal now in light of the Supreme Court's ruling last month that recognized the applicability of the Conventions in the context of detainee rights.

Now, I understand the need for clarity. Our military folks ought to be able to have access to clear, unambiguous rules that tell them what they can and cannot do. And if that is the impact of the White House's push here than that makes perfect sense to me. What doesn't make sense to me any longer are these efforts to bend and shape the law to permit our soldiers and captors to engage in conduct that we would not want our own soldiers to suffer if they were held captive. Clarity? Sure. Clarity that provides no incentive for our troops to behave? Sorry. We've seen, at Abu Ghraib and other places, just how well that works.

By Andrew Cohen |  July 28, 2006; 8:16 AM ET
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They really think they should be above the law. It started as a philosophical orientation, moved to a policy position, and now has become a sickness.

Posted by: MC | July 28, 2006 10:37 AM

Its a full-blown breakdown on the front line, with only the defensive judiciary to beat. Scary. Will there ever be pushback?

Would these legal changes not potentially protect the President himself? Why no mention of that aspect?

Posted by: None | July 28, 2006 12:21 PM

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