Travel Advisory

At the same time, Philippe Sands’s new book The Torture Team reveals the falsity of White House claims that the push to introduce torture techniques came from interrogators in the field. Sands demonstrates that the decision to use techniques like waterboarding came from the top, and tracks the elaborate scheme to make it appear that the practices began with a request from Guantánamo.

These disclosures and others have put the issue of war crimes on the front burner. Major General Antonio Taguba just released this statement in the forward to a report just out by Physicians for Human Rights: "There is no longer any doubt as to whether the current administration has committed war crimes," Taguba says. "The only question is whether those who ordered torture will be held to account." In a House Judiciary hearing on June 5 looking into the rendition of Canadian software engineer Maher Arar, for instance, members pressed to know if sufficient evidence had been presented to warrant a criminal investigation into the conduct of administration officials; all three witnesses (including the author) answered affirmatively. In other hearings, witnesses have treaded lightly and experienced frequent failures of recollection, perhaps driven by a concern over self-incrimination. And, indeed, in what may be a sign of things to come, 26 American civil servants are being tried in absentia by an Italian court in Milan for their involvement in the rendition of a radical Muslim cleric to Egypt. So, is it really feasible for Bush administration officials to be tried for war crimes?

For most Americans, the words “war crimes” invoke Nuremberg and shrill Vietnam War–era demonstrators. But, really, there’s hardly a war without war crimes. Criminal transgressions occur in every conflict and are committed by all parties to the conflict. From the American perspective, a series of provisions in the Uniform Code of Military Justice cover war crimes. But there is also a propagandistic element to the phrase.  Countries may charge their own soldiers with assault, murder, and the rest, but “war crimes” are almost always committed by the enemy.

Ever since the first comprehensive codification of the laws of war was issued by Abraham Lincoln during the Civil War, the accountability of senior commanders and policymakers has been a prickly issue. What to do when the actors committing war crimes are implementing orders or policies set by the political leadership? Since a soldier was expected to follow orders almost unthinkingly, it seemed unfair to try him for the crime. On the other hand, punishing the political leaders raises the specter of “victor’s justice” or political retribution, potentially complicating the major objective of the law of war, namely the return to peace.

After a couple of false starts at the end of the Civil War and World War I, the idea of prosecuting prominent policymakers as war criminals was launched after World War II, when the historic tribunals convened in Nuremberg and Tokyo. Significantly, one of those cases involved lawyers whose crimes included the preparation of legal memoranda explaining how the leadership could dispense with the troublesome requirements of the Geneva and Hague Conventions in dealing with detainees. The Nuremberg proceedings inspired the special purpose tribunals created for Cambodia, Yugoslavia, and Rwanda, among others, and laid the groundwork for the International Criminal Court.

But the questions hanging over efforts to enforce the law of war with respect to political leaders remain. Only extremely unusual circumstances will lead a country to try one of its own leaders for war crimes. Curiously, the Bush administration is responsible for the most prominent recent case: the prosecution, before a U.S.-financed and -advised special court in Baghdad, of Saddam Hussein and a number of his senior lieutenants.

A number of members of Congress and organizations such as the American Bar Association have called for the creation of a 9/11-style commission with special investigatory powers to get to the bottom of the Bush administration’s treatment of persons in detention. The law of war gives a combatant a great deal of latitude in conducting warfare, but it works hard to protect those who have been removed from combat. These persons are entitled to differing levels of protection depending upon their status, but as the Supreme Court reminded us in its decision in Hamdan, even those entitled to no POW protections have the benefit of basic protections against torture and physical abuse.

The Supreme Court decision in Hamdan reflects the consensus view in the legal community that the Bush administration’s policies on detainee treatment crossed the line. That view is widely shared even by career lawyers inside the administration, driving such actions as the open revolt against these policies among uniformed military lawyers. The “war crimes” issue revolves around detainee treatment questions, and especially interrogation techniques. And for the experts, the dilemma is a severe one: if the United States does not honor the prohibition against torture and official cruelty, can anyone be expected to?

The U.S. stance has consequences for U.S. personnel in future conflicts. For instance, because of the U.S. position holding open the prospect of waterboarding detainees, both Attorney General Michael Mukasey and State Department Legal Advisor John Bellinger had difficulty saying it would be unlawful for a foreign power to waterboard an American combatant seized out of uniform in a future conflict. Is the administration jeopardizing the safety of future American service personnel in order to protect political figures from accountability? Many see it that way, especially retired military leaders.

So, yes, there are ample theoretical grounds for a war-crimes prosecution. But the action requires political will, which makes it quite unlikely to happen in the United States. First, the Bush administration has, under the legal stewardship of Addington, Alberto Gonzales, and John Ashcroft, taken a number of clever steps designed to make it difficult for any future prosecutor to charge them for war crimes. In fact, the administration’s legal architects recognized from the outset that their dismissive attitude toward the law of war was not widely shared. Some of the earliest legal policy documents crafted by the administration were focused on avoiding or obstructing just such action by future prosecutors. The entire controversy surrounding the Office of Legal Counsel and the Jay Bybee–John Yoo opinions turns on just this point.

Second, leading figures in the Bush administration will loudly decry any effort to enforce the law of war against policymakers as an act of partisan political retribution. Still, it is quite possible that the key administration figures will have their records scoured very closely. Did they engage in acts that constitute a criminal violation of the public trust? Did they lie to Congress as it attempted to probe the detainee abuse issue?

But the focus of prosecutorial efforts will most likely be beyond America’s frontiers. War crimes are subject to a principle of universal jurisdiction--that is, they may be enforced by any nation. Moreover, when one nation takes legal steps to create immunity for its political leaders, one widely recognized principle of international law holds that other nations should then take action. So the Bush administration’s efforts to immunize its own may work in the U.S., but they will have a boomerang effect, creating criminal jurisdiction in other countries.

Is it likely that prosecutions will be brought overseas? Yes. It is reasonably likely. Sands’s book contains an interview with an investigating magistrate in a European nation, which he describes as a NATO nation with a solidly pro-American orientation which supported U.S. engagement in Iraq with its own soldiers. The magistrate makes clear that he is already assembling a case, and is focused on American policymakers. I read these remarks and they seemed very familiar to me. In the past two years, I have spoken with two investigating magistrates in two different European nations, both pro–Iraq war NATO allies. Both were assembling war crimes charges against a small group of Bush administration officials. “You can rest assured that no charges will be brought before January 20, 2009,” one told me. And after that? “It depends. We don’t expect extradition. But if one of the targets lands on our territory or on the territory of one of our cooperating jurisdictions, then we’ll be prepared to act.”

Viewed in this light, the Bush Administration figures involved in the formation of torture policy face no immediate threat of prosecution for war crimes. But Colin Powell’s chief of staff, Colonel Larry Wilkerson, nails it: “Haynes, Feith, Yoo, Bybee, Gonzales and--at the apex--Addington, should never travel outside the U.S., except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In the future, some government may build the case necessary to prosecute them in a foreign court, or in an international court." Augusto Pinochet made a trip to London, and his life was never the same afterwards.

The Bush administration officials who pushed torture will need to be careful about their travel plans.

New York attorney Scott Horton teaches at Columbia Law School.

By Scott Horton