Did we do war crimes?(alleged abuse of war prisoners in Abu Ghraib prison)

NEW YORK, JUNE 11

THE high non-Reagan moment of last week came when Attorney General John Ashcroft contended with Sen. Edward Kennedy on the whole business of torture. Ashcroft was explaining something not terribly complicated, but it led to combat. Ashcroft had said that in denying to the congressional committee copies of the memos that had been sent in to advise the president on the matter of permissible conduct in war, he was not invoking executive privilege.

"What are you invoking?" Kennedy asked, causing much mirth and derision.

Ashcroft is not to be confused with Oliver Wendell Holmes when explaining legal quandaries. But his primary points were reasonable. They were that in the opinion of some legal analysts, the al-Qaeda captives were not entitled to the protections defined by the Geneva Convention. They are not members of an "army," therefore not "combatants" within the meaning of the Geneva protocols.

Now, all that does not instruct us on the moral question: Were we entitled to deal with the prisoners at Abu Ghraib in the way we did? The answer is clearly, No. But that answer carries a lot of freight, because there are people who are very anxious to prosecute the U.S. for war crimes. These people, it is fair to generalize, are less interested in war crimes than in prosecuting the U.S. for committing war crimes. The question of U.S. responsibility is political in its implications.

Arguing in favor of facing the question in the Hague, Jonathan Tepperman of Foreign Affairs reminds us that "legal principles can affect politics. If voters begin to believe that George W. Bush or Donald Rumsfeld is legally responsible for the torture, it could affect the president's chances in November." But if we do not agree to come on stage as defendants, we undermine the international case against war crimes.

Mr. Ashcroft didn't suggest he had authority to dispose of such ...