While the focus of the current congressional debate has been on Bush's demands to redefine torture and to reinterpret the Geneva Conventions, the compromise legislation also would block prosecutions for violations already committed during the five-year-old "war on terror."
The compromise legislation bars criminal or civil legal action over past violations of Common Article 3 of the Geneva Conventions, according to press reports. Common Article 3 outlaws "violence to life and person," such as death and mutilation as well as cruel treatment and "outrages upon personal dignity."
The legislation now before Congress also would prohibit detainees from citing the Geneva Conventions as a legal basis for challenging their imprisonment or for seeking civil damages for their mistreatment. [Washington Post, Sept. 22, 2006]
Given the scope of Common Article 3, covering abuses ranging from personal humiliations to death, the legislation could prevent or at least severely complicate any legal accountability in U.S. courts for officials who have committed these offenses.
Though administration officials have said these provisions are meant to protect CIA and other government operatives in the field, the provisions also could shield senior officials up the line of command who granted the authority for acts of torture and other abuses.
'Dirty War' Precedents
In effect, this legislation could be interpreted as a broad amnesty law, like those enacted by legislatures in Argentina and Chile to give cover to government officials who waged "dirty wars" against leftists and other political opponents in the 1970s.
Because of those amnesty laws, many perpetrators of torture, "disappearances" and extrajudicial killings were spared punishment even after the grisly details of their crimes against humanity emerged from the secret records.
In some cases, the amnesty laws were later repealed or courts struck down some provisions. But the legal delays frustrated demands for justice from victims and often the aging perpetrators then cited infirmities to prevent ever being brought to trial.
For instance, Chile is still trying to untangle the amnesty protections that were used to shield dictator Augusto Pinochet from prosecution. Pinochet, who is now 90, has also employed the infirmity defense.
Some countries, such as South Africa, have combined amnesty for human rights violators with requirements that the guilty cooperate with truth commissions. That way, at least the historical record can be assembled and the crimes of state can be exposed as lessons for future generations.
The emerging U.S. amnesty law would be unusual in that it wouldn't explicitly acknowledge that offenses had been committed, nor is the word "amnesty" used. Nor have there been public hearings in Congress to determine what the Bush administration might have done that requires amnesty.