The Washington Post reports that the Bush Administration is proposing to amend the War Crimes Act to "eliminate the risk of prosecution for political appointees, CIA officers and former military personnel for humiliating or degrading war prisoners." Such acts are prohibited by Common Article 3 of the Geneva Convention on the Treatment of Prisoners of War. In June, the U.S. Supreme Court ruled in Hamdan v. Rumsfeld that Common Article 3 does apply to U.S. personnel.
Common Article 3 also protects prisoners of war by prohibiting violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; hostage-taking; and summary execution. At a minimum torture means inflicting severe physical pain and is clearly prosecutable. But what constitutes an "outrage"? The Post points out that the international tribunal prosecuting Yugoslav war crimes has defined "outrages" to include placing prisoners in "inappropriate conditions of confinement," forcing them to urinate or defecate in their clothes, and threatening them with "physical, mental, or sexual violence." What about some other interrogation techniques that some U.S. personnel have reportedly or allegedly used?
For example is it outrageous to put panties on a prisoner's head? Or to flush a Koran down a toilet? Or for that matter to flush a consecrated host down a toilet? Allow women interrogators to rub their bodies against male prisoners, wear skimpy clothes in front of them, and make sexually explicit remarks to them? Interrogate prisoners while they are naked? Force them to wear Depends diapers?
Certainly most of these actions would be "outrages" in the context of civil law enforcement, but should different standards apply during a war? Try this thought experiment: Would using similiar sorts of interrogation techniques on American prisoners of war be "outrageous" and constitute a war crime? If so, then they violate Common Article 3 and people using them should be prosecuted.