Bush claimed that what the CIA has been doing falls short of torture and that he wants it to continue. He has asked for legislation that would do two things in tandem. First, in a move that has raised the hackles of former top military officials and former Secretary of State Colin Powell, Bush has called on Congress to pass legislation detractors say would clearly subvert a protection in what is called "Common Article 3" of the Geneva Conventions. That provision prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment."
In addition, the president has also proposed changes to the War Crimes Act that he says would allow CIA officials to continue to work on the interrogation program without fearing liability, but would also set clear limits. "I am asking Congress to list the specific recognizable offenses that would be considered crimes under the War Crimes Act," he argued, "so our personnel can know clearly what is prohibited in the handling of terrorist enemies."
But legal experts said the changes sought by the president -- which would be retroactive -- would also insulate high-level Bush administration officials who approved interrogation tactics that contravene the Geneva Conventions. "They are saying, 'Lets protect those that may have violated the law with a change of the War Crimes Act,'" explained Solis.
Not surprisingly, when it comes to their prior stated commitment to enforcing the laws of war, Hunter and Inhofe and other Republicans in Congress have responded with a kind of collective amnesia. Last week Hunter told his committee, "Since violation of Common Article 3 is a felony under this act, it is necessary to amend U.S. law to provide clarity and certainty to the interpretation of this statute." The congressman's office would not make him available to explain why he appears to have flip-flopped on the War Crimes Act. His spokesman instead provided a copy of Hunters public statement on the issue, which makes the argument that changes are needed because the so-called war on terror is "a new type of battlefield and a new type of enemy." Hunter went on to declare that his goal is to "protect our troops on the battlefield from becoming involved in a legal quagmire which would prevent us from effectively pursuing terrorists and to ensure that America can effectively protect its citizens."
In the Senate, meanwhile, Inhofe was also unwilling to explain his change of heart on the issue. Other co-sponsors include Senate Majority Leader Bill Frist, R-Tenn., and Senate Majority Whip Mitch McConnell, R-Ky.
Some military officials and legal experts -- including former Bush administration officials like Powell -- are less concerned about changes to the War Crimes Act that might let some Bush administration officials off the hook. The main goal now, they say, is to ensure that the United States continues to abide by all of the provisions of the Geneva Conventions, including the prohibition on "outrages upon personal dignity, in particular humiliating and degrading treatment."
"I think we need to stick to that," William Taft, former legal advisor to the Department of State in the Bush administration, said in an interview. "We have held everybody else to it and we should not be fiddling with it."
Researcher Chloe Kamarck contributed to this story.
About the writer
Mark Benjamin is a national correspondent for Salon based in Washington, D.C.
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