WASHINGTON—Congress has eased the worries of CIA interrogators and senior administration officials by granting them immunity from U.S. criminal prosecutions for all but "grave" abuses of terrorism detainees.
But legislation passed Friday may not leave them entirely in the clear.
International legal experts said the measure is meaningless overseas, where international courts theoretically could still prosecute alleged violations of anti-torture treaties.
The same experts concede such prosecutions are highly unlikely—but not because there's no evidence of wrongdoing. Instead, they predict American economic, military and political power will deter any country from allowing the cases to proceed.
"The obstacles to these prosecutions are not legal, they're political," said William Schabas, director of the Irish Center for Human Rights at the National University of Ireland in Galway. "There's certainly an arguable case that international crimes have been committed by American officials, and probably with the blessing of civilian political leaders going right to the top."
President Bush asserts that al-Qaida terrorists are a different kind of enemy and that the Geneva Conventions ensuring the humane treatment of prisoners were too vague to define what interrogation methods could be used to extract information that might prevent another Sept. 11. He said in announcing the transfer of 14 top terror suspects from secret CIA prisons to Guantanamo Bay that the United States does not torture, but that "alternative" techniques gleaned information that disrupted attacks and saved lives.
Human rights groups here and abroad, however, are in an uproar, assailing tactics such as giving a detainee a drowning sensation or shackling him to the floor naked for hours in a 50-degree room.
On the Senate floor Wednesday, Sen. Richard Durbin, D-Ill., said some of the techniques appear to have broken the law, and that through amnesty, "those who sent out the memos, those who gave the new directions will be off the hook," setting a precedent that "will make it harder to prosecute war criminals who abuse Americans."
The firestorm seems sure to rage on, because the new legislation appears to allow Bush to authorize continued use of some coercive interrogation tactics, possibly including sleep deprivation or making a detainee stand for hours.
The law itself also is expected to face strong legal challenges in the United States, mainly because it bars captives from appealing their detentions in court.
Michael Ratner, president of the Center for Constitutional Rights, which represents hundreds of detainees, said his group is preparing to file new war crimes charges in November in Germany against more than a dozen senior U.S. officials, probably including attorneys who shaped the policy. Two years ago, the group filed similar charges against Defense Secretary Donald H. Rumsfeld and 10 others—charges that were dismissed after Rumsfeld hedged on whether he would attend a conference in Germany.
Legal experts say charges also could be filed in a recently created International Criminal Court in The Hague, Netherlands, which has jurisdiction over war crimes. European authorities are under pressure to respond to allegations that they breached human rights laws by cooperating with illegal CIA kidnappings and detentions of their own citizens. Italy has issued arrest warrants for 22 CIA agents.
Avril McDonald, an international law expert based in The Hague, said it's possible that U.S. officials could be charged with conspiracy in the ICC or in countries such as Belgium, whose legal systems allow private parties to bring war crimes charges.
At least 11 officials were involved in shaping the U.S. policy for interrogating captives overseas, including three Cabinet members—Attorney General Alberto Gonzales, who was White House counsel at the time, Rumsfeld and Homeland Security Secretary Michael Chertoff, who officials say was consulted while he was chief of the Justice Department's Criminal Division. Another of those involved is 9th Circuit federal appeals court judge Jay Bybee, who as an assistant attorney general signed off on it.
Even if there were no prosecutions, experts said, the fallout from revelations over the U.S. government's secret policy could tarnish America's moral standing in the world.
Adam Roberts, a professor of international relations at Oxford University and co-editor of the book "Documents on the Laws of War," noted that the United States has been at the forefront in urging prosecutions of war criminals in genocides in Bosnia and Rwanda "no matter how high the positions" they held.
Roberts called the provision of immunity for all but grave abuses "extremely controversial both within the USA and internationally," adding that it sets a bad example for dictatorships to follow. He also said U.S. personnel could be arrested and prosecuted if they travel abroad and are recognized as alleged violators.
Congress was pressed into action after the Supreme Court ruled June 29 that Bush overstepped his authority in setting up a special military court system for terror detainees. The high court also suggested that the Geneva Conventions could apply.
The legislation now headed to Bush's desk not only creates a new military court system but also grants immunity to everyone involved in creating or carrying out the interrogation policies, so long as they did not commit "grave" Geneva violations. Sponsors of the bill said it would prohibit the most controversial technique—simulated drowning, known as "water boarding"—a method that sources say was used on self-proclaimed Sept. 11 mastermind Khalid Shaikh Mohammed and No. 3 man Abu Zubaydah.
The policy permitting such tactics emerged as administration lawyers grappled with the reach of the president's war powers in responding to the Sept. 11 attacks. In January 2002, the Justice Department's Office of Legal Counsel issued an opinion that the Geneva Conventions do not apply to violent, stateless actors such as al-Qaida and the Taliban in Afghanistan.
When Secretary State Colin Powell objected, then-White House Counsel Gonzales urged Bush to stand firm. If the Geneva prohibition on "outrages upon personal dignity" applied, Gonzales wrote in a memo, U.S. officials could face prosecution under the 1996 U.S. War Crimes Act that enforced the treaty.
If Geneva were ruled inapplicable, he said, that "would provide a solid defense to any future prosecution."
With the CIA pressing for precise guidance on how far it could go in interrogating senior al-Qaida captives, Office of Legal Counsel chief Bybee issued a controversial Aug. 1, 2002, memo defining torture as actions triggering severe pain akin to organ failure "or even death."
John Yoo, the lawyer who drafted the memo, said in an interview on Wednesday that he and other administration lawyers faced "the toughest kinds of questions" in the months after Sept. 11 and "tried to do their best to protect the government from future attacks from a very dangerous enemy."
Powell wasn't the only dissenter. FBI Director Robert Mueller directed bureau counter-terrorism agents to stay out of the room during coercive interrogations of detainees in Guantanamo Bay, said a U.S. government official who insisted upon anonymity because of the sensitivity of the matter.
While criminal prosecutions have been brought over abuse of Prisoners of War in Iraq and the death of a detainee in Afghanistan, a person familiar with the program said the interrogations of senior al-Qaida figures at secret sites were "very tightly controlled," with a physician and psychologist present.
Experts in international law said that the tactics would violate the Geneva Conventions, which override any nation's assertion of amnesty for war crimes.
"Legally, this isn't worth the paper it's written on," said McDonald, of the T.M.C. Asser Institute in The Hague.
Even so, Martin Lederman, a Georgetown University law professor, called it "virtually inconceivable" that interrogators who abided by Justice Department guidelines would face U.S. prosecution even without the amnesty provision.
The department's advice "was completely wrong in many respects, but nevertheless, it was probably reasonable for them to rely on it," Lederman said. Senior administration officials could argue they made reasonable legal interpretations, he said.
Yoo, now a University of California law professor who has written a book defending the expansion of the president's war powers, argued that Bush could abrogate any international treaty. He said he is not worried about legal liability.
(McClatchy correspondent Tish Wells contributed to this report.)
(c) 2006, McClatchy-Tribune Information Services.
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