Washington Post

Jul. 28, 2006 12:00 AM

WASHINGTON - An obscure law approved by a Republican-controlled Congress a decade ago has made the Bush administration nervous that officials and troops involved in handling detainee matters may be accused of committing war crimes and prosecuted at some point in U.S. courts.

Senior officials have responded by drafting legislation that would grant U.S. personnel involved in the terrorism fight new protections against prosecution for past violations of the War Crimes Act of 1996. That law criminalizes violations of the Geneva Conventions governing conduct in war and threatens the death penalty if U.S.-held detainees die of abusive treatment in custody.

In light of a recent Supreme Court ruling that the international Conventions apply to the treatment of such detainees, Attorney General Alberto Gonzales has spoken privately with GOP lawmakers about the need for such "protections," according to someone who heard his remarks last week.

Gonzales told the lawmakers that a shield was needed for actions taken by U.S. personnel under a 2002 presidential order, which the Supreme Court declared illegal, and under Justice Department legal opinions that have been withdrawn under fire, the source said. A spokeswoman for Gonzales, Tasia Scolinos, declined to comment on Gonzales' remarks.

The Justice Department's top legal adviser, Steven Bradbury, separately testified two weeks ago that Congress must give new "definition and certainty" to captors' risk of prosecution for coercive interrogations that fall short of outright torture.

Language in the administration's draft, which Bradbury helped prepare in concert with civilian officials at the Defense Department, seeks to protect U.S. personnel by ruling out detainee lawsuits to enforce Geneva protections and by incorporating language making U.S. enforcement of the War Crimes Act subject to U.S., not foreign, understandings of what the Conventions require.

The aim, Justice Department lawyers say, is also take advantage of U.S. legal precedents that limit sanctions to conduct that "shocks the conscience." This phrase allows some consideration by courts of the context in which abusive treatment occurs, such as an urgent need for information, the lawyers say, even though the Geneva prohibitions are absolute.

The Supreme Court, in contrast, has repeatedly said that foreign interpretations of international treaties such as the Geneva Conventions should at least be considered by U.S. courts.

Some human rights groups and independent experts say they oppose undermining the reach of the War Crimes Act, arguing that it deters government misconduct. They say that any step back from the Geneva Conventions could provoke mistreatment of captured U.S. military personnel. They also contend that Bush administration anxieties about prosecutions are overblown and should not be used to gain congressional approval for rough interrogations.

"The military has lived with" the Geneva Conventions provisions "for 50 years and applied them to every conflict, even against irregular forces. Why are we suddenly afraid now about the vagueness of its terms?" asked Tom Malinowski, director of the Washington office of Human Rights Watch.