WASHINGTON -- An obscure law approved by a Republican-controlled Congress a decade ago has made the Bush administration nervous that officials and troops involved in handling detainee matters might be accused of committing war crimes and prosecuted in US courts.
Senior officials have responded by drafting legislation that would grant US 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 US-held detainees die in custody from abusive treatment.
In light of a recent Supreme Court ruling that said international conventions apply to the treatment of such detainees, Attorney General Alberto Gonzales has spoken privately with Republican lawmakers about the need for such protections, according to someone who heard his remarks last week.
Gonzales told the lawmakers that a shield was needed for actions taken by US personnel under a 2002 presidential order, which the Supreme Court declared illegal, and under Justice Department legal opinions that have been withdrawn under fire, the source said. A spokeswoman for Gonzales, Tasia Scolinos, declined to comment on Gonzales's remarks.
Language in the administration's draft, which was prepared by officials in the Justice and Defense departments, seeks to protect US personnel by ruling out detainee lawsuits to enforce Geneva protections and by making US enforcement of the War Crimes Act subject to US -- not foreign -- understandings of what the Conventions require.
The aim, Justice Department lawyers say, is also to take advantage of US legal precedents that limit sanctions to conduct that ``shocks the conscience." This phrase allows the courts to consider the context in which abusive treatment occurs, such as an urgent need for information, the lawyers say -- even though the Geneva prohibitions are absolute.