White House Asks Congress to Define War Crimes

The New York Times
White House Asks Congress to Define War Crimes
By KATE ZERNIKE

WASHINGTON, Aug. 2 — Attorney General Alberto R. Gonzales pressed Congress on Wednesday to refine the definition of war crimes prohibited under the Geneva Conventions, as the Bush administration and lawmakers continued to debate the rules for treatment and trials of terror suspects.

Administration proposals on how to bring suspects to trial had moved closer to what key senators have said they will demand, but two hearings on Capitol Hill on Wednesday foreshadowed a fight over the definition of coercive interrogation tactics.

And administration lawyers and senators continued to clash over evidence obtained through coercion or hearsay and how to deal with classified evidence.

The Supreme Court ruled in late June that terror suspects must be extended the protections outlined in a provision of the Geneva Conventions that prohibits “outrages upon personal dignity, and in particular humiliating and degrading treatment.”

Mr. Gonzales argued that the language of the provision was too vague. And because the federal War Crimes Act passed a decade ago makes it a felony to violate that provision, he said that troops could be prosecuted for interrogation tactics considered too harsh. Congress, he said, could “help by defining our obligations” under the provision, known as Common Article Three.

Mr. Gonzales, publicly discussing the administration’s new proposal for detainee trials for the first time since the court’s ruling, said it would offer legislation that included a proposal to change the War Crimes Act, to bring “clarity” in defining which violations of Common Article Three rise to the level of war crimes.

“The surest way to achieve that clarity and certainty, in our view, is for Congress to set forth a definite and clear list of offenses serious enough to be considered war crimes,” he said.

But senators said Congress should not endorse any treatment it would not want used on American soldiers..

“We must remain a nation that is different from, and above, our enemies,” said Senator John McCain, Republican of Arizona.

The differences between the administration and the Senate were most pronounced when Mr. McCain asked Mr. Gonzales whether statements obtained through “illegal and inhumane treatment” should be admissible. Mr. Gonzales paused for almost a minute before responding.

“The concern that I would have about such a prohibition is, what does it mean?” he said. “How do you define it? I think if we could all reach agreement about the definition of cruel and inhumane and degrading treatment, then perhaps I could give you an answer.”

Mr. McCain, a former prisoner of war, said that using illegal and inhumane interrogation tactics and allowing the evidence to be introduced would be “a radical departure” from longstanding United States policy.

The court ruled in June that the military tribunals that President Bush had established for suspects held at Guantánamo Bay, Cuba, violated international law and were not authorized by federal statute.

Lawyers from the Defense and Justice Departments initially tried to persuade Congress simply to approve the tribunals. By Wednesday’s hearings, the administration had changed its position. “What we are considering now is a better product,” Mr. Gonzales said.

He said the administration proposed enacting a new code of military justice modeled on court-martial procedures.

The new proposal departs from the initial tribunals in several ways. The presiding officer would be a military judge, for example, and would rule on evidence but not participate in the final verdict. The jury would have 5 members, instead of 3, with 12 in death penalty cases. Conviction would require two-thirds of the jury to agree, and unanimity in death cases.

But the proposal also departs from court-martial procedures, in that suspects would not be entitled to Miranda warnings, or to Article 32 proceedings, which are similar to a grand jury. It would allow the introduction of hearsay evidence that the judge ruled “reliable” and would share classified evidence with the defense counsel, but not necessarily the defendant.

Senator Lindsey Graham, Republican of South Carolina, said it would “not serve us well” to ignore the military rules against hearsay.

But Mr. Graham supported a move to refine what kind of treatment violated the War Crimes Act, under which, he said, a slap could be a crime.