The GOP's tortured logic

The Republicans who now agree with the president that the War Crimes Act is too vague said something very different 10 years ago.

By Mark Benjamin

Read more: George W. Bush, Politics, News, Colin Powell, Duncan Hunter, James Inhofe, Mark Benjamin

Photo by Charles Dharapak/AP

House Armed Services Committee chairman Rep. Duncan Hunter, R-Calif., questions military lawyers on Capitol Hill on Sept. 7, 2006.

Sept. 19, 2006 | As he announced at a press conference earlier this month, President Bush wants to change U.S. law in two different ways that he says will allow CIA officials to keep conducting interrogations that he claims have produced valuable intelligence in the "war on terror." He has asked Congress to pass legislation that would sidestep the part of the Geneva Conventions that prohibits "outrages upon personal dignity," and he also wants Congress to rewrite the 1996 War Crimes Act in such a way that the Geneva Conventions would no longer be enforceable.

Though Bush's proposal would indelibly alter America's reliance on an internationally recognized standard for conduct during war, the Republican majority in Congress rushed to support his position. House Armed Services Committee chairman Duncan Hunter, R-Calif., embraced Bush's plan and successfully pushed it through his committee last week. Hunter said that the Geneva Conventions, and in particular that prohibition on "outrages upon personal dignity," are too "vague" to be enforceable, and that the War Crimes Act therefore needs to be changed.

But back on March 29, 2003, in a radio address during the opening days of the war in Iraq, the president claimed that American forces, as opposed to the Iraqis, were committed to following the laws of war. "The contrast could not be greater between the honorable conduct of our liberating force and the criminal acts of the enemy," he intoned. And Republicans in Congress followed Bush's lead. Less than a week after the address, Duncan Hunter chaired a hearing in which he promised proudly that enemy prisoners would receive "humane treatment" even when the enemy violated the laws of war. "The United States, more than any other nation in history, conducts its military operations in strict compliance with the law of armed conflict," Hunter said. The enemy's vile actions, he vowed, "will in no way alter the way we treat Iraqi prisoners."

John Kerry was branded a flip-flopper for far less. But last week's GOP turnabout becomes all the more startling when you realize that some of the very Republicans who now say the War Crimes Act needs to be amended were among those who helped write it 10 years ago. Duncan Hunter, in fact, was one of the 15 Republicans in the House (there were also three Democrats) who co-sponsored the original legislation, and he also co-sponsored an expansion of the act, covering even more potential transgressions, that passed the very next year. Similarly, in the Senate, the man who shepherded the original bill through that body in 1996, Oklahoma Republican James Inhofe, is now a co-sponsor of the bill that would gut it.

Back in 1996, a vote for the War Crimes Act, which passed both houses with overwhelming support, could have been considered a vote for the U.S. to follow the Geneva Conventions to the letter. When a House Judiciary Committee panel first considered the War Crimes Act in June 1996, John McNeil, then a senior deputy counsel at the Department of Defense, testified that the bill was "an opportunity for members of Congress to endorse the idea that the United States, as a political matter, should be seen as fully in conformity with its international obligations in this very sensitive area."

But at the time Republicans were really focused on making sure U.S. courts would be able to prosecute war crimes committed against American citizens, not by them. Inhofe took to the Senate floor that August to say the War Crimes Act would protect "our young troops" in the event "a crime is perpetrated against them."

It was unthinkable back then that it might be the United States that was systematically violating the Geneva Conventions. "There was never any hint or clue that this might be applied to us," stated Gary Solis, an expert on the law of war at Georgetown University. Elisa Massimino, Washington director of Human Rights First, explained, "No one ever questioned that the U.S. would comply with the full range of the Geneva Conventions obligations."

That is, no one doubted the U.S. would comply until early this month. Stung by the Supreme Court's recent Hamdan decision, President Bush announced he had been forced to halt a CIA program in which the Department of Justice secretly approved what the president called "tough" interrogation techniques against high-value terrorism suspects. CIA interrogators had reportedly subjected suspects to simulated drowning, prolonged isolation, slapping, sleep deprivation, reduced food intake and exposure to bright lights and loud sounds.

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