Walter Jones and the Unintended Consequences of the War Crimes Act of 1996
Left unmentioned in the postmortem commentary on the life of Congressman Walter B. Jones Jr., who died on February 10, 2019, was his sponsorship of the War Crimes Act of 1996. He is better known for coining the label “freedom fries” in 2003, and for turning against the Iraq War that he had once supported. The saga of his sponsorship of the War Crimes Act and its subsequent role in shaping the Bush administration’s “enhanced interrogation” policies during the War on Terror is a story of unintended consequences. When it was passed in 1996, Jones and others hoped it would thwart and punish foreign regimes. Presuming that torture is done by others elsewhere, they never contemplated the possibility that the law would impede the institutionalization of torture as an instrument of state policy by the United States.
With the death of Jones, the January 2019 departure/firing of Secretary of Defense James Mattis (who was an outspoken opponent of torture), and the penchant of President Donald Trump for strongman rhetoric (he has boasted that he will “bring back waterboarding” and “a hell of a lot worse than waterboarding”) it is an appropriate moment to reflect on the act and its capacity to inhibit human rights abuses.
Elected as part of the conservative Republican wave of 1994, Jones represented North Carolina’s third congressional district, which is home to Camp Lejeune, Air Station Cherry Point, and many retired military personnel. He attracted little national attention until the Iraq War when his contempt for French opposition to the conflict prompted him to rename French fries and French toast as “freedom fries” and “freedom toast.”
Two years later Jones again made headlines when he publicly renounced his earlier support for the war and questioned the fraudulent justifications offered for the conflict. He regretted that war fever in 2003 had overwhelmed his commitment to the principle, codified in the War Powers Act, that the president is constitutionally required to consult with Congress before sending troops into war. The 2001 congressional authorization for the use of military force, Jones worried, had given President George W. Bush and his successors a blank check for endless war. Now the balance of power had shifted in favor of the executive branch and congressional oversight of the military had been drastically curtailed. Jones’s opposition to American military intervention persisted beyond the Bush presidency—he was a relentless critic of the policies of the Obama and Trump administrations in Afghanistan, Libya, Syria, and Yemen.
Jones’s compassion for soldiers and veterans was the link between his opposition to an endless War on Terror and his sponsorship of the War Crimes Act of 1996. He proposed the act after meeting a retired Navy pilot who had been imprisoned and tortured during the Vietnam War. Intended to provide him and other veterans with the means to prosecute their abusers, the law criminalized breaches of the Geneva Conventions such as mutilation, torture, and “humiliating and degrading treatment.” The Department of Defense enthusiastically supported the proposed law on the assumption that American military personnel were unlikely to be prosecuted under the law because the United States followed the conventions. Meanwhile, the law would provide a remedy for future American troops who were captured and abused while serving overseas. Jones and the large bipartisan congressional majority that voted for the law never anticipated that it might be applied to American torturers.
Within months of launching the War on Terror, the Bush administration began to chafe at the restrictions imposed on the treatment of detainees by the Geneva Conventions and the War Crimes Act. White House counsel Alberto Gonzales proposed that the United States only selectively abide by the Geneva Conventions, portions of which he dismissed as “quaint.” Presidential executive orders could free US interrogators from the constraint of long-recognized understandings of the conventions that Gonzales also dismissed as “obsolete.”
The War Crimes Act of 1996, however, posed a more serious obstacle. After all, it was federal law and it criminalized “humiliating and degrading treatment” of prisoners along with other war crimes. In a series of notorious memos, Deputy Assistant Attorney General John Yoo parsed the act and the Geneva Conventions to provide legal cover for prolonged sleep deprivation, binding and stress positions, waterboarding, and other interrogation methods then in use by the CIA and the Army.
Yet not even the most gung-ho champions of “enhanced interrogation” were confident that the twisted rationales of Gonzales, Yoo, and others in the Bush White House provided insurance against prosecution under the War Crimes Act. Not until 2006 did Bush administrators secure the passage of the Military Commissions Act (MCA), which provided a measure of protection for “enhanced interrogation” techniques and for some of the practices previously employed during the War on Terror.
Breaking with Republican ranks, Jones opposed the MCA, which he believed weakened the War Crimes Act while expanding executive powers. The new law restricted the scope of the War Crimes Act to only “grave breaches” of the Geneva Conventions and made the new, narrower definition of war crimes retroactive to 1997, thereby placing virtually everyone active in the War on Terror under the new law. The MCA prohibits cruel, inhuman, or unusual treatment or punishment, for example, but it nevertheless permits evidence to be obtained through varying degrees of coercion prohibited by the Geneva Conventions. In addition, the MCA gives the president the discretion to approve questionable interrogation methods based on his own interpretation of Geneva Convention obligations. Rather than providing greater clarity regarding prohibited methods of interrogation, the MCA limited the scope of the Geneva Conventions and the War Crimes Act of 1996.
We can never know how much worse the violations of human rights during the War on Terror might have been in the absence of the War Crimes Act. But by the time that it was weakened by the MCA, it had already been sand in the gears of the War on Terror for five years. During that period, it served as an inspiration for lawyers in the Pentagon and elsewhere who waged an important rear-guard campaign against the excesses of Bush administration policies. It also ensured that CIA interrogators and their bosses, at least occasionally, had to look over their shoulders and ponder the possibility that they might be held accountable for their actions.
During the two decades after the passage of the act, Jones found himself more and more out of step with his Republican colleagues on military and national security issues. He experienced the sting of Republican majorities in the House and the Senate weakening his signal legislative accomplishment by passing the MCA. Republican congressional leaders repeatedly denied him leadership positions that were his due on the basis of seniority. From our present vantage point two decades into the War on Terror, we can better appreciate how exceptional was the brief moment when Jones could muster almost unanimous bipartisan support for his 1996 act.
Fitzhugh Brundage is the William B. Umstead Professor of History at the University of North Carolina at Chapel Hill. He recently authored Civilizing Torture: An American Tradition (Belknap Press, 2018).
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