Sanctioning War Crimes, Entrenching Impunity


Two weeks ago, our Congress granted an amnesty to war criminals.

You may know of the amnesty laws enacted in Argentina following that country’s ‘dirty war,’ or those enacted by Pinochet’s regime in Chile to immunize itself against the thousands of acts of murder and torture – rights violations that in times of conflict constitute war crimes – for which it was responsible. Both countries passed their amnesties after most of the relevant crimes had occurred; our Congress, by contrast, has taken this model one step further by passing its own amnesty just five years after the start of its full-scale “war” on terror – in time not only to cover war crimes committed thus far, but also, through the law’s prospective application, to entrench a climate of impunity that the Administration hopes will continue for years to come.

To be sure, the September 11th attacks merit the strongest possible moral condemnation, and I do not suggest that our government should take no action against terrorism. And of course our government is not violating rights on a scale comparable to that of the two Latin American regimes cited above. However, as the war on terror escalates, the difference between our government and these past regimes is increasingly one of degree rather than kind.

Nowhere is this disturbing trend more apparent than in the recently-passed Military Commissions Act. Among other things, this law eliminates the right of habeas corpus for individuals held in the war on terror, denying them access to judicial recourse. It grants the President unprecedented authority to determine which acts constitute criminal violations of the Geneva Conventions, hence inviting whatever (mis)interpretations serve the interests of the Executive.

And as mentioned above, the Act not only narrows the universe of actionable war crimes, but also pardons any U.S. officials whose treatment of detainees constituted war crimes (outside of a limited list of “grave breaches” such as murder and rape) in the past decade. Of course, such amnesty provisions only make sense: apparently the Administration has noticed at last that officials at the highest end of the chain of command are responsible for war crimes committed in the name of defeating terrorism – and has decided to immunize itself retroactively for these crimes in preparation for whatever new and repressive anti-terror tactics it has in mind for the future.

From the standpoint of human rights, this future looks disturbing indeed. The Military Commissions Act prohibits legal challenges of any aspect of the “detention, transfer, treatment, trial, or conditions of confinement” of detainees – language that seems more than coincidentally designed to prevent consideration of torture claims. While the Act maintains some clear prohibitions (of rape, for example), the majority of objectionable interrogation practices fall into the grey area that is left to the President’s discretion. The true genius of the bill doesn’t end there, however, for even if the Act is interpreted as outlawing abusive techniques, there is no way for detainees subjected to such abuses to report them since they lack access to courts.

These points bring home how frustratingly irrelevant the current academic debates about detainee treatment can be. While commentators discuss the finer points of the “ticking bomb” scenario, interrogators on the ground are left free to perceive this new Act as a license to coerce detainees physically or psychologically – although these same detainees may be innocent or at least ignorant of terror plots – with no requirements of ticking bombs attached. Likewise, while my classmates and I recently debated the merits of allowing torturers to claim the defense of necessity versus that of self-defense, Congress was busy finalizing a bill that makes both defenses unnecessary: detainees have no opportunity to challenge their abusers in court anyway.

It would be a mistake, moreover, to portray this bill as a law concerning only detainees or only torture. Certainly if this law had no other effect except to risk licensing the torture of detainees, it would stand as an alarming testament to our nation’s apparent willingness to overlook grave abuses if it makes the rest of us feel (however falsely) a bit more secure. In reality, however, this law reaches far beyond Guantanamo, as it signals to the entire world our disregard for human rights. In so doing, it eviscerates the moral authority we might otherwise bring to bear on situations ranging from genocide to denial of fair trials. By failing those detained in Guantanamo, we fail those who face rights violations all around the world.

And in case these ramifications are not sufficiently alarming to you, here is an interesting fact that hits somewhat closer to home: under Sec. 948a of the law, U.S. citizens anywhere may be declared ‘unlawful enemy combatants,’ a category that includes individuals who ‘materially support’ the enemies of the United States. These expansive provisions, inserted at the last minute before the bill’s passage, allow for a wide range of people, including those laboring under the false impression that they are protected by the Constitution, to be whisked away to indefinite detention for as long as the war on terror lasts.

This all may sound a bit paranoid. Surely – of course – our government has not crafted a bill consciously designed to immunize torture, while disingenuously claiming that the same law outlaws torture. Of course the Administration is not setting itself up to detain its own citizens on specious grounds… right?

Then again, a lot of things that used to follow the words “of course” – of course an individual has the right to know the reason for his detention; of course coerced evidence is inadmissible; of course we don’t use secret prisons – are now increasingly associated with other words such as “maybe” or “if in the interests of national security” or simply “when convenient.” In short, if the current, misguided repression tactics being deployed in the war on terror are not enough to alarm us about the direction in which we are heading, then what lines must be crossed, what rights violated, and what principles disregarded before we will finally feel that sense of alarm?

Two weeks ago, Congress voted to take us farther from the principles of fairness and respect for human dignity on which our country was founded. If I seem harshly critical of our elected representatives, however, I must end by saying that it was not only they who did this. To the extent that we kept quiet in the months preceding the passage of this bill, it was we – you and I – who chose to look the other way, who told ourselves we were busy with other things, who allowed it to happen.

Now is the time to stop being quiet and start being loud – to advocate, lobby, protest, write, and act to protect basic legal principles such as habeas corpus, due process, and separation of powers from disintegrating further before our eyes. If we fail to do so, then it will be we who are responsible for the next set of repressive laws when they come. When the “of course” with which I began – of course we’re nothing like those other regimes that enacted amnesty laws to pardon torture – becomes the next “when convenient.”

Stephanie Brewer is a 3L from Connecticut and a member of HLS Advocates.

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