America Retires From
Moral Leadership
By Terrell E. Arnold

For more than five decades following World War II the United States worked to build a global environment of law and justice. With help from the UN and other countries the US made serious efforts to emplace rules of warfare that would respect the dignity of individuals in armed forces and protect them from inhuman treatment, while outlawing wanton destruction of society's infrastructure and the slaughter of civilians. This was vital to future peace and stability because earlier rules such as the Geneva Convention of 1864 had not withstood the brutal processes of World War II. That indiscriminate war fighting led to the virtual destruction of Europe, not alone by the Nazis, but mainly by the Western Allies. Estimates are that the carnage of World War II killed as many as 60 million people and wounded or displaced countless more. New rules were vital to assuring that those crimes against humanity never occurred again.
The United States led the task of creating and enforcing new rules as essentially contained in four Geneva Conventions and two Protocols that were adopted in 1949. The Convention of 1864 was quite possibly responsive to atrocities of the US Civil War such as abuse of prisoners at Andersonville. But the four Geneva Conventions and two Protocols that entered into force in 1949 formed the basis for modern rules of war. The United States adhered to all of these, although it has yet to accept the idea of an international court of justice to enforce them.
The terms of these conventions have been incorporated into the US Army Field Manual, often referred to as The Law of Land Warfare. Since its issue in the early 1950s the Manual has provided mandatory guidance to military personnel on the treatment of combatants as well as non-combatants. Those rules endured the stresses of unconventional warfare in Vietnam even though they were put to harsh test by the My Lai Massacre, and the handling of trial and punishment of the perpetrators is still a blot on the Army's and the US Government's reputations.
Such rules, however, always have required a certain transparency and a good deal of integrity on the part of the users. One of the key rules--military personnel wear uniforms and operate in the open--has been severely stressed by late 20th and early 21st century descent into such unconventional activities as covert operations and targeted assassinations. Moreover, the rules respecting civil populations have simply been ignored in shock and awe bombardment, mass imprisonment of "militants" or "combatants" without charges, wanton destruction of civil infrastructure and reckless killing of civilians, as--with US help-the Israelis are now doing in Lebanon.
Respect for and application of the Geneva Conventions has now reached such a low point in US practice that the Bush administration solution is to unilaterally legislate a new set of rules. The new law would amend the War Crimes Act of 1996 by, among other things, unilaterally redefining the rules of the Geneva Conventions to exclude common US interrogation practices and to exempt US civilian officials from prosecution for violating provisions of the present Geneva Conventions or of the War Crimes Act itself.
Basically, the argument seems to be that to extract the information needed to succeed in the War on Terrorism, US authorities may use any interrogation device on a captured "combatant" that is short of life-threatening. The aim of proposed US legislation appears to be to redefine torture so that it excludes all such practices.
In line with that concept, the Law of Land Warfare recently has been revised specifically to change the rules respecting permissible treatment of combatants. However, unqualified US support to the Israeli campaign to destroy Lebanese infrastructure and ignore the rights of civilians suggests that in effect none of these rules are being observed or enforced by the United States anyway. In fact, US initiation of the war in Iraq by first trying to assassinate the head of state, and then with so-called "shock and awe" bombardment, including heavy use of depleted uranium weapons, and wide dispersal of cluster bombs in civilian areas of Baghdad, had already shown that the Geneva Conventions were being ignored by US political and military leadership. No doubt the observation by the present Attorney General that the Conventions are "quaint" suggests that for present top level US leadership such rules are impractical.
The proposed changes would make many, if not all, of the gross practices reported at Abu Ghraib and Guantanamo acceptable under US law. Those practices would remain contrary to the Geneva Conventions, so the effect of amending the War Crimes Act would be to unilaterally redefine and limit US treaty obligations under the Conventions.
Changing the War Crimes Act as proposed not only means that the United States is weakening and redefining the Geneva Conventions, it is also abandoning its role as world leader in the definition and enforcement of sane rules of war--assuming there are sane rules with the proliferation of new weaponry and with the savagery of warfare now being practiced.
American military leaders have long believed and taught in the military colleges that humane treatment of prisoners and regard for the protection of civil society are rules that also help reduce chances that US prisoners will be abused in captivity. The US changes of law and practice are no less than an open invitation to anyone who captures an American combatant to apply the same torture tools the US reserves unto itself. Moreover, the same lack of clarity US officials assert impedes interpretation of the Geneva Conventions can by used by others to assert that the torture they inflict is permitted by the rules. The technical name for this situation is anarchy.
The second key element of the Bush administration amendments to the War Crimes Act enters a legal zone that is in principle prohibited by the Constitution. Ex Post Facto generally has been interpreted by the courts to apply only to penal and criminal laws, even though Article 1 did not so specify. In any event, what the Bush administration proposes to do is amend the War Crimes Act to remove from coverage of the law acts that were criminal at the time committed. Under that law US officials who knew about, had authorized and/or condoned torture of prisoners at Abu Ghraib, Guantanamo or any other holding location could be charged with war crimes. The intent of the amendment is retroactively to exempt such people--officials of the White House, Pentagon, CIA or others--from being charged with such crimes.
This becomes another of many areas in which the White House insists it is above the law. The aim, in this case is not only to avoid prosecution for past crimes, but also to make it legal in the future for US officials to torture prisoners who are held without charge in nameless holding cells.
The world always has needed one or more leading user countries of high moral standing to set the boundaries for these rules by concrete example. The clearest example the United States had of the way those rules should be applied has been the Law of Land Warfare. By changing the rules, the US is abandoning that role, and the degradation of the Law of Land Warfare will surely be followed by universal weakening of the Geneva Conventions.
For that the United States will gain only the dubious information it extracts from tortured individuals who have no choice but to babble or go on being tortured. After years of confinement the utility of what these combatants know is little to naught in any case. But to preserve the torture chambers, no doubt the offshore prisons from Guantanamo to Diego Garcia to half a dozen unnamed locations in Central Europe and the Middle East will continue to be off limits to all observers. So, even if US laws were not changed to protect US government officials who will be guilty of war crimes, the American public--and the rest of the world--will be kept in the dark.
If the Congress passes this law, America's retirement from moral leadership will be abject and complete. Because torture of prisoners will go on in secret, there will be no official record of it. But the world will know, and the worst copycats will buy into it. America's retirement simply will mean moral leadership in the wrong direction.
The writer is the author of the recently published work, A World Less Safe, now available on Amazon, and he is a regular columnist on He is a retired Senior Foreign Service Officer of the US Department of State whose immediate pre-retirement positions were as Deputy Director of the State Office of Counter-Terrorism and Emergency Planning, and as Chairman of the Department of International Studies of the National War College. He will welcome comment at



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