Will Bush and Gonzales get away with it?

The pilot and Vietnam POW -- a staunch Republican -- who pushed through the War Crimes Act of 1996 is appalled that the Bush administration, facing possible prosecution for war crimes, is devising a legal escape hatch.

By Michael Scherer

Read more: Politics, News, Michael Scherer, Alberto Gonzales

Mike Cronin

Aug. 2, 2006 | WASHINGTON -- Retired Navy pilot Mike Cronin knows enough about torture to know it doesn't work. After being shot down over North Vietnam in 1967, he spent six years enduring interrogations in the Hanoi Hilton, the notorious holding block for American prisoners of war. His neck and ankles were bound together with rope, causing him to lose consciousness. The nerves and bones in his wrists were crushed. His shoulder was ripped out of its socket. He was forced to talk, but he never gave the North Vietnamese the information they wanted.

"I told lies," explained Cronin, 65, in a telephone interview from Cape Cod, Mass., where he is spending the summer. "When you put people in that position, the information you get is not reliable."

After the war ended, Cronin returned home to become a commercial pilot for American Airlines -- and a deep believer in the laws of war. He came to see the Geneva Conventions, which bar torture and "humiliating and degrading treatment," as a bedrock of the international military code. He was amazed to discover that as late as the 1990s, there was no law enabling U.S. courts to try violators of the Geneva Conventions. "I was shocked," he said. "I just thought that was wrong."

So Cronin changed the legal landscape. Thanks to his persistent lobbying, Congress passed the War Crimes Act of 1996 with overwhelming bipartisan support. For the first time, U.S. courts were granted authority to convict any foreigner who commits a war crime against an American, or any American who commits a war crime at all. At the time, nobody could have predicted that a decade later a U.S. administration, with the explicit consent of the president and the attorney general, would be accused of systematic war crimes.

But that is precisely the accusation that President George Bush and Attorney General Alberto Gonzales now face. The Supreme Court recently ruled that the Bush administration wrongly denied Geneva Convention protections to prisoners suspected of ties to al-Qaida and the Taliban, a policy that allowed for harsh and possibly illegal interrogation methods to be used against them. As a result, U.S. personnel, given their treatment of these prisoners, could become subject to prosecution under the law that Cronin, a former prisoner of war, lobbied to pass.

In fact, from the early days of the war on terror, the Bush administration was concerned about the War Crimes Act. Publicly released memos show that as far back as Jan. 25, 2002, Gonzales, then the White House counsel, worried that the president's policies could trigger prosecution under the act. That led the White House to declare, over the objection of the State Department, that al-Qaida was not protected by the conventions. In the memo, Gonzales argued that the president could create "a solid defense against any future prosecution" by declaring that the Geneva Conventions did not apply.

But with the Supreme Court ruling, that defense no longer stands, leaving the administration in a legally vulnerable position. At a recent congressional hearing, Maj. Gen. Jack L. Rives, the Air Force judge advocate, testified that "some techniques that have been authorized" violated the Geneva Conventions. To preempt any prosecution, administration officials are now quietly circulating legislation to change the statutory interpretation of the War Crimes Act of 1996. In short, the legislation would make it difficult to prosecute U.S. personnel for the harsh interrogation methods authorized by President Bush and the Justice Department.

Cronin, an active Republican, sees the proposed changes, which have not yet been spelled out publicly, as an attempt by the civilian leadership to cover its tracks. "These guys are talking about trying to protect soldiers in the field. I think they are lying through their teeth," Cronin said. "They are talking about trying to protect themselves."

Cronin is not alone. Some Democrats have promised to push back against the proposed changes and have focused their initial ire on Gonzales. "The highest law enforcement officer in the country is leading an effort to undercut the rule of law," said Sen. Patrick Leahy, D-Vt., the ranking member of the Judiciary Committee, on the Senate floor last week. "We cannot credibly ask others to meet standards we are unwilling to meet ourselves." On Wednesday, the committee is scheduled to discuss the issue of war crimes prosecution.

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