Replies to post #25020 on Tornado Alley (PROG)

[easymoney101]

U.S. Marines Engaged in Mock Executions of Iraqi Juveniles and Other Forms of Abuse, Documents Obtained by ACLU Reveal

December 14, 2004

FOR IMMEDIATE RELEASE
Contact: [e-mail]

Navy Corpsman Described Pressure to "Keep His Mouth Shut"

NEW YORK - U.S. Navy documents released today by the American Civil Liberties Union reveal that abuse and even torture of detainees by U.S. Marines in Iraq was widespread. One Navy criminal investigator sent an e-mail in June 2004 describing his Iraq caseload "exploding" with "high visibility cases."

"Day after day, new stories of torture are coming to light, and we need to know how these abuses were allowed to happen," said ACLU Executive Director Anthony D. Romero. "This kind of widespread abuse could not have taken place without a leadership failure of the highest order."

The release of these documents follows a federal court order that directed the Defense Department and other government agencies to comply with a year-old request under the Freedom of Information Act filed by the ACLU, the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace. The New York Civil Liberties Union is co-counsel in the case.

The documents the ACLU released today, posted online at www.aclu.org/torturefoia, describe substantiated incidents of torture and abuse by U.S. Marines, including:

holding a pistol to the back of a detainee’s head while another Marine took a picture (Karbala, May 2003)
ordering four Iraqi juveniles to kneel while a pistol was "discharged to conduct a mock execution" (Adiwaniyah, June 2003)
severely burning a detainee’s hands by covering them in alcohol and igniting them (Al Mumudiyah, August 2003), and
shocking a detainee with an electric transformer, causing the detainee to "dance" as he was shocked (Al Mumudiyah, April 2004).
The new evidence comes on the heels of documents released by the ACLU and its allies last Tuesday, which revealed that a special operations task force in Iraq sought to silence Defense Intelligence Agency personnel who observed abuse and that the Department of Defense adopted questionable interrogation techniques at Guantanamo over FBI objections.

"Abuse of detainees was not aberrational," said ACLU staff attorney Jameel Jaffer. "The Defense Department adopted extreme interrogation techniques as a matter of policy."

In addition to highlighting the torture and abuse of Iraqis by U.S. Marines, the documents released today suggest the existence of an internal culture of secrecy, said Jaffer. For example, when describing the Marines’ "rough handling" of Iraqi prisoners, one Navy corpsman noted, "there was a lot of peer pressure to keep one’s mouth shut."

Other records released by the ACLU today include investigative interviews with Navy personnel that provide a glimpse into the routine abusive treatment of detainees by U.S. forces in Iraq. For example, in one interview, a Navy corpsman described the regular process whereby Iraqis classified as Enemy Prisoners of War (EPWs) would be taken to an empty swimming pool and handcuffed and legcuffed with burlap bags placed over their heads. They would then remain in the kneeling position for up to 24 hours awaiting interrogation. Despite providing this description, the officer stated that he "never saw any instances of physical abuse" toward the detainees.

In response to the release of documents last week, Senator Jeff Bingaman (D-NM) sent a letter to Defense Secretary Donald Rumsfeld calling on him to "expeditiously investigate the allegations of suppression" and to "take immediate action to make public all documents related to cases of detainee abuse not critical to national security and hold accountable those that have attempted to cover up reports of detainee abuse."

Jaffer said the ACLU is continuing to press the government to disclose more documents and will return to court if necessary to ensure that relevant documents are released. The government is required to release all documents by Jan. 31, 2005.

The lawsuit is being handled by Lawrence Lustberg and Megan Lewis of the New Jersey-based law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C. Other attorneys in the case are Jaffer, Amrit Singh and Judy Rabinovitz of the ACLU; Art Eisenberg and Beth Haroules of the NYCLU; and Barbara Olshansky and Jeff Fogel of CCR.

The documents obtained by the ACLU are online at www.aclu.org/torturefoia.

Senator Bingaman’s letter is online at http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=17184&c=207.
http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=17206&c=206

[easymoney101]

U.S. Loses Bid to Stop Turnover of CIA Records
Mon Dec 20, 2004 05:38 PM ET

By Gail Appleson
NEW YORK (Reuters) - The U.S. government lost a bid on Monday to block civil rights groups from obtaining CIA records of its internal investigation into abuse of detainees held by U.S. forces in Iraq and Afghanistan.

In a ruling from the bench, U.S. District Judge Alvin Hellerstein denied a government motion aimed at stopping an earlier order to turn over documents.

The decision was made in a lawsuit brought against the government by the American Civil Liberties Union and other groups for what they said was the illegal withholding of records about U.S. military abuse of prisoners held in Iraq, the Guantanamo Bay Naval Base in Cuba and other locations.

The suit, filed in Manhattan federal court, charged that the CIA and other federal agencies failed to comply with a Freedom of Information Act, or FOIA, request filed by the groups in October 2003 and May 2004. The FOIA allows citizens access to public federal records.

"This (ruling) is extremely important," said attorney Lawrence Lustberg, who is assisting the civil rights groups. "What we're going to get are the fruits of the CIA's own internal investigation."

Government lawyers argued that the documents should not be turned over until the CIA completes its internal probe.

"What if it is never closed?" asked Hellerstein.

The ACLU said it has obtained about 9,000 records from other agencies.

"To date, however, the CIA has not provided a meaningful response to the ACLU's document request and has refused to confirm or deny the existence of specific documents concerning abuses," the ACLU said.

The ACLU, New York Civil Liberties Union, Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace filed suit in June. They sought records documenting torture and abuse that they said occurred after the Sept. 11, 2001, attacks on the United States.

In the suit, they said that after they filed their first FOIA request last year, numerous news stories and photographs have documented mistreatment of prisoners held in Iraq and Afghanistan.

When the groups received no documents, they filed a motion with the court in August seeking an order to force the government to comply with their requests. Hellerstein then ordered the government to start turning over papers.
http://olympics.reuters.com/newsArticle.jhtml?type=domesticNews&storyID=7144084

[easymoney101]

Global Eye

Poison Pen

By Chris Floyd
Published: December 24, 2004

According to agents of the U.S. Federal Bureau of Investigation, President George W. Bush has signed a secret executive order approving the use of torture against prisoners captured in his "war on terror" -- including thousands of innocent people rounded up in Iraq and crammed into Saddam Hussein's infamous Abu Ghraib prison.

FBI documents, obtained in a lawsuit by the American Civil Liberties Union and reported this week in the Los Angeles Times, detailed the agents' "disgust" at the "aggressive and improper" methods used by military interrogators and civilian contractors against prisoners, and the widespread, ongoing pattern of "serious physical abuses" they found at the American concentration camp in Guantanamo Bay, Cuba, and in Iraq.

Most of the offences occurred long after the initial public scandal over "a few bad apples" at Abu Ghraib. For example, in June 2004, an FBI agent informed top officials in Washington that he had witnessed such torture techniques as "strangulation, beatings, [and] placement of lit cigarettes into the detainees' ear openings." The agent added that military officials "were engaged in a coverup of these abuses."


Also in June, the FBI reported that a prisoner in Abu Ghraib was cuffed, trussed up in a "stress position," then "doused with cold water, dropped onto barbed wire, dragged by his feet and punched in the stomach."

In August 2004, the date of the latest reports, an FBI agent reported that detainees in the Guantanamo concentration camp were often kept chained in "stress positions" on the floor, "with no chair, food or water. Most of the times they had urinated or defecated on themselves and had been left for 18-24 hours or more." One detainee was found "almost unconscious on the floor, with a pile of hair next to him," said the agent. "He had apparently been literally pulling his own hair out throughout the night."

The Guantanamo abuses occurred in front of FBI witnesses at what is considered the showcase of the new worldwide prison system Bush has established to process his captives in the "terror war." But there are a number of "secret prisons" -- including a special enclosed facility at Guantanamo itself -- where "special" interrogations are carried out by the CIA without any outside witnesses, The Washington Post reports. By presidential order, the CIA does not have to say who these prisoners are, how or why or where they were taken prisoner, or what happens to them behind the impenetrable walls.

According to the official documents, FBI agents said that military interrogators and their corporate mercenaries in Guantanamo and Iraq routinely went "far beyond the restrictions of the Geneva Conventions prohibiting torture," but were acting under an executive order signed by Bush authorizing the use of dogs and other aggressive physical and psychological techniques on prisoners.

Bush officials denied such an executive order exists; they say the agents confused it with an earlier order for "aggressive techniques" issued by Pentagon chief Donald Rumsfeld, which was then supposedly rescinded and softened in March 2003 after complaints from military lawyers. But the abuses described in the new FBI memos occurred long after the first Rumsfeld order was invalidated. Thus the Administration's denial is based on a clear falsehood.

What's more, the FBI papers state repeatedly and unequivocally that Bush himself had authorized the aggressive techniques. They also note that in May 2004, after the scandal at Abu Ghraib, Bush had specified that "certain techniques can only be used if very high-level authority is granted." Thus some of the most disturbing abuses -- actions which the interrogators nonetheless felt comfortable enough to commit in front of FBI agents -- have been carried out with direct White House or Pentagon approval.

Earlier this year, a cache of White House memos was uncovered revealing a systematic effort to provide "legal" underpinning for the abrogation of the Geneva Conventions on treatment of prisoners and support for a deliberate policy of disregarding U.S. laws forbidding torture, kidnapping, assassination and indefinite detention, The Washington Post (and many others) report. These memos also claimed an unprecedented extension of presidential powers, arguing that the "Commander-in-Chief" cannot be constrained by any law whatsoever in the prosecution of a war. One main goal of this legal analysis, the memos admitted, was to help Bush and his top officials avoid prosecution for war crimes, since the actions being recommended by Bush and the Pentagon were clearly criminal under international and U.S. law.


When the memos surfaced, the White House declared that the Bush Administration would never do anything illegal. However, they never directly repudiated the memos -- which, after all, argue that nothing a president orders in wartime, including torture, is actually illegal. As the documentation of prisoner abuse grows larger and larger with each passing month, it is obvious that such a system of widespread -- and ongoing -- atrocities could not be sustained without approval at the very highest levels.

Now FBI agents, in official reports, have traced the responsibility for these crimes directly to the pen of George W. Bush. Despite the patently false White House denials, the torture directive cited by the FBI not only echoes the legal briefs cited above, it also perfectly complements Bush's earlier executive orders allowing the secret execution of anyone on earth, including American citizens, whom Bush or his designated agents arbitrarily declares a "terrorist" -- without charges, evidence or trial. These orders were first reported in November 2001 by The Washington Post and have been repeatedly confirmed by Administration officials.

The evidence is credible, compelling and abundant. The lines of authority are clear. The blood of the tortured is on Bush's hands.

http://context.themoscowtimes.com/stories/2004/12/24/120.html

[easymoney101]

War Crimes

Thursday, December 23, 2004; Page A22


THANKS TO a lawsuit by the American Civil Liberties Union and other human rights groups, thousands of pages of government documents released this month have confirmed some of the painful truths about the abuse of foreign detainees by the U.S. military and the CIA -- truths the Bush administration implacably has refused to acknowledge. Since the publication of photographs of abuse at Iraq's Abu Ghraib prison in the spring the administration's whitewashers -- led by Defense Secretary Donald H. Rumsfeld -- have contended that the crimes were carried out by a few low-ranking reservists, that they were limited to the night shift during a few chaotic months at Abu Ghraib in 2003, that they were unrelated to the interrogation of prisoners and that no torture occurred at the Guantanamo Bay prison where hundreds of terrorism suspects are held. The new documents establish beyond any doubt that every part of this cover story is false.

Though they represent only part of the record that lies in government files, the documents show that the abuse of prisoners was already occurring at Guantanamo in 2002 and continued in Iraq even after the outcry over the Abu Ghraib photographs. FBI agents reported in internal e-mails and memos about systematic abuses by military interrogators at the base in Cuba, including beatings, chokings, prolonged sleep deprivation and humiliations such as being wrapped in an Israeli flag. "On a couple of occasions I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water," an unidentified FBI agent wrote on Aug. 2, 2004. "Most times they had urinated or defecated on themselves, and had been left there for 18 to 24 hours or more." Two defense intelligence officials reported seeing prisoners severely beaten in Baghdad by members of a special operations unit, Task Force 6-26, in June. When they protested they were threatened and pictures they took were confiscated.

Other documents detail abuses by Marines in Iraq, including mock executions and the torture of detainees by burning and electric shock. Several dozen detainees have died in U.S. custody. In many cases, Army investigations of these crimes were shockingly shoddy: Officials lost records, failed to conduct autopsies after suspicious deaths and allowed evidence to be contaminated. Soldiers found to have committed war crimes were excused with noncriminal punishments. The summary of one suspicious death of a detainee at the Abu Ghraib prison reads: "No crime scene exam was conducted, no autopsy conducted, no copy of medical file obtained for investigation because copy machine broken in medical office."

Some of the abuses can be attributed to lack of discipline in some military units -- though the broad extent of the problem suggests, at best, that senior commanders made little effort to prevent or control wrongdoing. But the documents also confirm that interrogators at Guantanamo believed they were following orders from Mr. Rumsfeld. One FBI agent reported on May 10 about a conversation he had with Guantanamo's commander, Maj. Gen. Geoffrey D. Miller, who defended the use of interrogation techniques the FBI regarded as illegal on the grounds that the military "has their marching orders from the Sec Def." Gen. Miller has testified under oath that dogs were never used to intimidate prisoners at Guantanamo, as authorized by Mr. Rumsfeld in December 2002; the FBI papers show otherwise.

The Bush administration refused to release these records to the human rights groups under the Freedom of Information Act until it was ordered to do so by a judge. Now it has responded to their publication with bland promises by spokesmen that any wrongdoing will be investigated. The record of the past few months suggests that the administration will neither hold any senior official accountable nor change the policies that have produced this shameful record. Congress, too, has abdicated its responsibility under its Republican leadership: It has been nearly four months since the last hearing on prisoner abuse. Perhaps intervention by the courts will eventually stem the violations of human rights that appear to be ongoing in Guantanamo, Iraq and Afghanistan. For now the appalling truth is that there has been no remedy for the documented torture and killing of foreign prisoners by this American government.



© 2004 The Washington Post Company
http://www.washingtonpost.com/ac2/wp-dyn/A20986-2004Dec22?language=printer


Also
http://www.bluelemur.com/index.php?p=512

[easymoney101]

Republican judge takes aim at Bush terror policies

By Gail Appleson

FAR from the typical corporate Christmas card, a former US federal judge’s law firm is embracing controversy with holiday cards showing the historic Supreme Court session where he successfully challenged the Bush administration’s treatment of Guantanamo Bay detainees.

Even more unusually, the attorney who argued the case before the nation’s highest court is a Republican and former federal appeals judge appointed by President Richard Nixon.

“Human rights issues are not Republican or Democratic issues,” said John Gibbons, whose arguments led to the Supreme Court’s landmark June ruling that foreign terror suspects held at the US naval base in Cuba can have access to US courts.

Gibbons, a former chief judge of the US Third Circuit Court of Appeals in Philadelphia, told Reuters that he has never heard criticism of his fight for detainee rights from other lawyers, regardless of their party affiliation.

“I don’t know any organised bar group that has taken the position that the government is right. I think most lawyers probably think the government has gone crazy,” he said. Certainly this soft-spoken former jurist, who takes long thoughtful pauses before answering questions, is no rabble-rouser. Gibbons is a devoutly religious man of conviction, his colleagues say, who time and again has put himself on the line when he thinks a wrong needs righting.

The strong human interest views held by Gibbons and his Newark, New Jersey-based corporate law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione have led the former judge and his colleagues, who usually handle business matters, to become involved in a range of controversial cases. These have led the lawyers to take on such causes as fighting for the rights of sex offenders and challenging death penalty sentences.

Role off Broadway: In December, Gibbons - at age 80 - even went beyond the actual courtroom to take on a brief stint in the well-received off-Broadway play “Guantanamo: Honor Bound to Defend Freedom”. The drama, which caused a sensation when it premiered in London this spring, is a stinging indictment of the Bush administration’s handling of detainees.

While the play has helped to publicise the plight of prisoners, it is Gibbons’ recent Supreme Court appearance and support of other lawyers that has struck the greatest blow to date at the Bush administration’s policies in Guantanamo Bay.

Arguing on behalf of foreign nationals from more than 40 countries held there as part of anti-terror sweeps, Gibbons urged the justices to reject the government’s view that federal courts have no jurisdiction to rule on whether the prisoners are being held illegally. He said the situation in Guantanamo amounts to “a lawless enclave”.

Although this may seem a strange stance for a Republican appointee to the bench, Gibbons said neither he nor his firm hesitated to take on Guantanamo Bay cases at the very early stages of litigation.

“The decision for us was easy,” he said, explaining that the firm established a fellowship programme 15 years ago which pays lawyers to do public interest work.

While the Gibbons firm was one of the first to get involved, there are now some 15 corporate law firms providing free representation to about 70 Guantanamo detainees, according to the Center for Constitutional Rights which is coordinating the effort. Asked why not all of the some 550 detainees have lawyers, Gibbons responded, “It isn’t an absence of lawyers at this point”.

Instead, the lack of representation is due to problems lawyers and civil rights groups are having in getting the US government to provide names and other identifying information about the detainees. In addition, detainees are hindered in attempts to contact the outside world because their letters are often significantly delayed and heavily censored by the government, Gibbons said.

“The families of detainees don’t know where they are, haven’t heard from them and don’t realise they can hire a lawyer,” he said. Gibbons predicted one of the next areas of litigation will be aimed at forcing the government to facilitate detainees’ access to lawyers. “But I anticipate the government will strenuously resist that,” he added.

Indeed, litigation aimed at preserving civil rights in the face of Bush administration anti-terrorism policies appears to be expanding Gibbons’ resume at an age when many lawyers would be retiring. He has already left two jobs he could have held for life - his position on the federal bench and that as a tenured law professor at Seton Hall University.

Asked if he plans to make any more job changes, he responded, “I’m right where I want to be.” What about his fledgling stage career? “I don’t think I’ll quit my day job,” he said. reuters
http://www.dailytimes.com.pk/default.asp?page=story_31-12-2004_pg4_9

http://story.news.yahoo.com/news?tmpl=story2&u=/nm/security_gibbons_dc

[easymoney101]

Redefining Torture
By Marjorie Cohn
t r u t h o u t / Perspective

Monday 03 January 2005
http://www.truthout.org/docs_05/010305A.shtml
The election's over, but the Bush spin machine goes on. In anticipation of hard questions Alberto Gonzales will face at his attorney general confirmation hearing in the Senate Judiciary Committee this week, Bush's lawyers are seeking to minimize the damage from the release of the torture memos in which Gonzales concurred.

Gonzales wrote a memo in January 2002 that proposed for the first time, "The war against terrorism is a new kind of war" and "this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." Gonzales also designed the military commissions to deny due process to those who will face trials in them. (See my editorial, The Quaint Mr. Gonzales).

An August 2002 memo leaked during 2004 set the stage for the torture of prisoners in Iraq and Guantánamo Bay. It "helped provide an after-the-fact legal basis for harsh procedures used by the CIA on high-level leaders of Al Qaeda," according to the New York Times. In it, Bush's legal eagles defined torture so narrowly, the torturer would have to nearly kill the torturee in order to run afoul of the legal prohibition against torture. It said that to constitute torture, the pain caused by an interrogation must include injury such as death, organ failure, or serious impairment of body functions.

That memo also set forth the opinion that the laws prohibiting torture do "not apply to the President's detention and interrogation of enemy combatants," because he is Commander-in-Chief of the United States. And it posited various defenses to shield the President and his men from prosecution under the federal torture statute. The release of this memo, coupled with the repulsive torture photographs, launched a firestorm of criticism at the Bush administration.

The White House quickly disavowed the memo as the work of a small group of Justice Department lawyers. But the Washington Post reported that "administration officials now confirm it was vetted by a larger number of officials, including lawyers at the National Security Council, the White House counsel's office and Vice President Cheney's office." According to Newsweek, the memo "was drafted after White House meetings convened by George W. Bush's chief counsel, Alberto Gonzales, along with Defense Department general counsel William Haynes and [Cheney counsel] David Addington." Haynes is one of Bush's judicial nominees who was not approved by the Senate; Bush, however, has resubmitted Hayne's name to the Senate, hoping Republican senators will engage in the unprecedented destruction of the filibuster.

Now, on the threshold of Senate hearings to confirm Alberto Gonzales as Attorney General, Justice Department lawyers have redefined torture in a new memo meant to supersede the embarrassing August 2002 memo.

The new memo, dated December 30, 2004, begins with the admirable statement: "Torture is abhorrent both to American law and values and to international norms." Although undoubtedly aware of the abhorrent nature of torture back in 2002, the old memo's authors launched right into narrowing the definition of torture in its first paragraph. They didn't bother to mention that it is repulsive to the people.

In the fourth paragraph of the 17-page December memo, its authors say: "This memorandum supersedes the August 2002 Memorandum in its entirety."

When the August 2002 memo came to light, it provoked such an outcry, Gonzales stepped up to the political damage control plate, and dubbed the Commander-in-Chief section "unnecessary." Gonzales's damage control statement has now been codified in the December memo. It says: "Because the discussion in that [August 2002] memorandum concerning the President's Commander-in-Chief power and the potential defenses to liability was - and remains - unnecessary, it has been eliminated from the analysis that follows. Consideration of the bounds of any such authority would be inconsistent with the President's unequivocal directive that United States personnel not engage in torture."

What a relief! But wait. The new memo doesn't actually say the President doesn't have unlimited power to defy our torture laws. It begs the question by saying it's "unnecessary" to deal with the broader legal issue because Bush has commendably declared that U.S. personnel should not commit torture.

The myriad reports, photographs, and testimonials that document widespread torture by U.S. personnel, however, show that Bush's directive has been ignored. So the scope of possible defenses to torture prosecutions would indeed be relevant.

What the new memo does do is modify the definition of torture. "We disagree with statements in the August 2002 Memorandum," writes Daniel Levin, Acting Assistant Attorney General and lead author of the December memo, "limiting 'severe' pain under the [federal torture] statute to 'excruciating and agonizing' pain, or to pain 'equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.'"

The new definition of torture is much broader, making it easier to maintain a criminal prosecution under the torture statute. In fact, it says "great care must be taken to avoid approving as lawful any conduct that might constitute torture."

Acknowledging that "despite extensive efforts to develop objective criteria for measuring pain, there is no clear, objective, consistent measurement," the new memo, contrary to the August 2002 memo, concludes that "severe physical suffering" may sometimes constitute torture even if it does not involve "severe physical pain." But to constitute torture, writes Levin, "'severe physical suffering' would have to be a condition of some extended duration or persistence as well as intensity."

The August 2002 memo, consistent with the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment, required that the act actually result in the infliction of severe physical or mental pain or suffering, in order to amount to torture. The new memo, citing the federal torture statute, denies it is necessary to show actual infliction; an act committed with the specific intent to inflict severe pain or suffering is sufficient to sustain a criminal prosecution for torture.

Finally, the new memo admits that a defendant's motive to protect national security will not shield him from a torture prosecution. This directly contradicts the August 2002 memo's analysis of the necessity defense, which, it said, could defeat a torture charge if the defendant's acts constituted a lesser evil than the evil of terrorism.

Michael Ratner, president of the Center for Constitutional Rights, which represents some of the detainees, said the repudiation of the earlier memo confirms that the Gonzales nomination should be withdrawn.

"The first [August 2002] memo took us back to the Middle Ages and so it first makes you say, what are we doing putting this guy in as attorney general of the United States," Ratner said.

John Ashcroft was widely criticized for his attacks on civil liberties. Democratic senators will challenge Alberto Gonzales on his apologies for torture and other repressive policies. One would hope they do not see Gonzales as a lesser evil than the harsh Mr. Ashcroft.

Marjorie Cohn, a contributing editor to t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

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[easymoney101]

War Crimes Roundtable

by Mark Levine et al

published by Voices in the Wilderness

War Crimes Roundtable

As the Abu-Ghraib prison scandal began to pierce through the public consciousness, Contributing Editor Mark LeVine brought together four leading experts on international and American constitutional law to explore the implications of the scandal and the larger issue of the violations of international and American law that have become part of the fabric of the US-led occupation of Iraq.

The extent of the daily violations of international law, including systematic war crimes by the US (and of course, other coalition forces and the insurgents as well), become impossible to ignore when you are on the ground in Iraq, which Levine visited in the early spring. What he saw first hand, and learned from speaking to people around the country - especially health professionals, NGO workers, lawyers, engineers, and academics - was how much the systematic commission of war crimes and other violations of international humanitarian law were part of the routine of the occupation. As important, it was clearly the result of official US policies that would seem to extend directly to the White House and senior US political and military officials, including the President, Vice President and Secretary of Defense.

This was the context for contacting the four participants in this roundtable, all of whom have a wealth of expertise on the issue of the culpability of members of the US military and senior politicians for violations of civil and human rights, and the commission of war crimes and crimes against humanity. Elizabeth Holtzman was a Congresswoman who drafted the impeachment papers for President Nixon during the Watergate hearings and has been researching the legal culpability of President Bush and his subordinates for the torture at Abu Ghraib and other crimes committed in Iraq and Afghanistan. Francis Boyle is a leading expert on the laws of war and the relationship between civilian and military personnel in investigating war crimes and other violations of humanitarian war, with particular experience in Israel/Palestine.

Viewing the situation from Canada, Michael Mandel has been among the leading voices bringing together lawyers across North America and Europe to deepen our understanding of the implications of the events and policies discussed in this roundtable, while Victor Conde has been among the foremost experts in defining the terminology and scope of international humanitarian war. While this roundtable was originally conducted in the summer of 2004, the ongoing revelations related to this story–that President Bush and other top officials were directly informed of abuses at Abu Ghraib and did nothing to stop them, or the declaration by Kofi Anan that the invasion of Iraq was “illegal” and violated the UN Charter (and thus was also a crime under the US Constitution)–only serve to confirm the arguments made by the roundtable participants.

- Mark Levine

Mark LeVine: Let’s start with an overview of the relevant international law: what a war crime is, why the issue of war crimes is so important, what the US is likely guilty of, and what the implications of its guilt are, legally and politically.

Condé: The specific legal definition of a war crime is most simply a criminal act in violation of the international Law of War. Conceptually, a war crime is derived from the limitation on the use of force by states and other parties to preserve a certain amount of humanity in armed conflict. For example, the Law of Armed Conflict is an attempt to preserve balance between the needs of military leaders to effectively carry out their military operations, what is called “military necessity” on the one hand, and the horrors of war and protection of humanity. War crimes are thus violations of the principle of humanity, including inflicting unnecessary suffering and harm, and interfering with normal functioning of a society during a military occupation, all of which are not accepted as legitimate actions by a combatant or a belligerent occupier. What we’re talking about here also involves the principle of reciprocity: We want our civilians and soldiers who are captured to be treated in a humane manner. Thus, it’s in our interest to do the same to captured enemy combatants and civilians, as we have increasingly seen more civilians than soldiers taken. Moreover, history has proven that when a state’s military acts within the confines of international law, it makes for a more efficient military force-you waste fewer bullets and resources than when it gets chaotic, excessively harmful savage and brutal. Subsequently, you leave less of a destructive aftermath, making it easier for the countries or groups involved to return more quickly to normal lives. Commission of war crimes is important because such acts cause more death, more destruction, more suffering, and more waste of resources, seldom with any significant military benefit.

LeVine: In my own research on war crimes committed by US forces in Iraq. I counted at least two-dozen classes of offenses systematically committed by the Occupation administration and US or US-allied military forces in the invasion and subsequent period of CPA (Coalition Provisional Authority) rule. This includes violations of articles and 17, 18, 33, and 147 of the Geneva Convention covering the killing, hostage-taking and torturing of civilians

Boyle: As I just argued at Fort Stewart Georgia in the court martial proceedings for Sgt. Camilo Mejia for desertion, the accountability here goes directly up the chain of command under the terms of the US Army Field Manual 27-10. Specifically, paragraph 501 makes clear that commanders who have ordered or knew or should have known about war crimes and failed to stop it are themselves guilty of war crimes. If you look then at the public record, it is clear that Gens. Sanchez and Miller ordered war crimes and both should be relieved of command immediately: abuse of prisoners in violation of the Geneva Conventions. As for General Abizaid, the overall commander of US forces in Southwest Asia, he admitted in his Senate hearings that he should have known about the war crimes at Abu Ghraib, so basically he’s already incriminated himself under the rules of the US Army Field Manual 27-10 In addition, above Abizaid you have Rumsfeld and Wolfowitz. Again my reading of the public record including the Taguba and Red Cross reports is that they either knew or should have known about all these war crimes. Indeed, if you read the ICRC report, - and as I testified under oath and under cross-examination (and was not contradicted) at the Mejia court-martial proceedings, - the widespread and systematic nature of these abuses rise to the level of crimes against humanity, going all the way up through the chain of command. Culpability also extends to Undersecretary of Defense for Intelligence General William G. Boykin and Defense Undersecretary Stephen Cambone, who reports directly to Undersecretary of Defense Douglas Feith. And through this line it appears to me that Rumsfeld is culpable, because he was at Abu Ghraib last fall. Indeed, Sy Hersch’s New Yorker article on Abu Ghraib claims with good substantiation that he was totally aware and even signed off on the use of techniques which are clearly torture. Rumsfeld was given a tour by Brig. General Janet Karpinski, who was supposed to be in charge of the prison-although she said nothing when she was prohibited from accessing certain areas of it-and so she’s also accountable. It’s important to understand that the Geneva Conventions, the Hague Regulations of 1907, the U.S. Army Field Manual, all mandate that a criminal investigation be opened. And how President Bush, as Commander in Chief would be accountable under Field Manual 27-10 precisely because he is Commander in Chief of the US armed forces under the US Constitution. We know the White House knows this because if you read White House Counsel Alberto Gonzales’s memo, he specifically tries to exempt the US from the Geneva Conventions for Guantanamo and Afghanistan. You can see that Gonzalez was afraid of Bush and others being held directly accountable. Moreover, because Powell dissented, we know there was a debate about this, so Bush had to have been aware of the implications of what was being done, which is also backed up by the memos from Ashcroft. These memos have been unearthed by Newsweek. So ultimately what we have here are people at the highest levels of the chain of command guilty of ordering or not preventing torture, which is both an international crime against the Geneva Conventions and the Torture Convention and a domestic crime as well. What we have then is a conspiracy among the aforementioned individuals to commit war crimes and crimes against humanity. Let me add one more thing that’s very important to remember: The principles set forth in 27-10 of personal criminal accountability for war crimes goes back to the Nuremburg Charter, Judgments and Principles derived from the post-World War II trials of Nazi war criminals. Similar principles of criminal accountability were applied by the United States to the Japanese Imperial War criminals.

LeVine: In fact, President Bush has compared the war on terror to the war against the Nazis.

Boyle: Then we have even more reason to bring this to people’s attention: The Nuremburg Principles were in fact originally the idea of the US Government which then orchestrated the prosecutions in Nuremburg. People need to understand the pedigree and heritage here. These are very grave offenses which the US government a generation ago prosecuted and executed Nazis for committing. And Japanese war criminals too.

LeVine: How can any of the people you mentioned be prosecuted?

Boyle: The military could do it, or the Dept. of Justice, which would have default power to do so if the military didn’t. But for this of course we’d need a special prosecutor and that law has been allowed to lapse. Attorney General Ashcroft, who is clearly part of the criminal conspiracy, would never push a war crimes investigations against his colleagues or President Bush.

LeVine: What about the attempts to use UN resolutions to exempt the US from criminal prosecution for war crimes committed in Iraq?

Conde: To my knowledge it hasn’t gone through yet. If it did, I believe it wouldn’t have legal validity in the sense that no UN Security Council Resolution can be in violation of the grave breach provisions of the Geneva Convention or international customary law, which is what Geneva Law has become.

Holtzman: I think that right now this is a hypothetical issue because the US hasn’t objected to the applicability of the Geneva Conventions to its activities in Iraq. White House Counsel Alberto R. Gonzales recommended that the US exempt itself from the Geneva Conventions in Afghanistan to reduce the threat of war crimes prosecution for abusive interrogations of Al Qaeda and Taliban members. But, the US did not exempt itself from the Geneva Conventions respecting Iraq and there is therefore no question that US activities in Iraq are governed by the Geneva Conventions. Once the Geneva Conventions apply, so does the War Crimes Act of 1996, which is not an international statute but rather a US criminal statute. Like bank robbery, murder on federal property and a whole host of other federal crimes listed in Title 18 of the federal statutes, committing a war crime is a federal crime prosecutable in US federal courts. This point is clear not just from the language of the War Crimes Act itself, but from White House Counsel Gonzales’ January 2002 memo to President Bush. That memo was premised on the idea that so long as the Geneva Conventions applied to conduct in a country, then the War Crimes Act applied. Opting out of the Geneva Conventions, Gonzales thought, might allow top US officials to argue that the War Crimes Act didn’t apply, and allow them to escape prosecution. (The validity of the “opt out” gimmick has yet to be tested.) Under the terms of the War Crimes Act of 1966, any US national who engages in war crimes is subject to imprisonment, and if death results, the death penalty. A war crime is defined in the statute as a “grave breach” of the Geneva Conventions, which in turn means “murder, torture or inhuman treatment” of prisoners or detainees. Thus, theoretically at least, everyone up the chain of command, including the President, could be liable under the War Crimes Act for ordering or engaging in murder, torture or the inhuman treatment of prisoners in Iraq. Because there is no statute of limitations in death penalty cases, prosecutions of those who authorized or engaged in murder or authorized or engaged in torture or inhuman treatment of Iraqi prisoners that resulted in death could be commenced at any time in the future. (That was one reason White House Counsel Gonzales was so eager to avoid possible war crimes liability for Afghan war interrogations: control by President Bush of Justice Department prosecutions could not last forever.)

LeVine: Are you saying that the President and senior administration and/or government officials could be subject to the death penalty for war crimes committed by US personnel in Iraq?

Holtzman: Yes, assuming that they directed or authorized murder, torture or inhuman treatment of prisoners or, possibly, if they permitted such conduct to continue after they knew about it. The statute applies to “any national” of the US. That is the only limitation on who can be prosecuted. Of course, we are talking theoretically. Even if high officials’ conduct fell within the ambit of the statute, getting them prosecuted would be no easy matter.

LeVine: How would this happen?

Holtzman: I was one of the authors of the Watergate Special Prosecutor (later the Independent Counsel) law. We wrote the law because we knew that the Attorney General, when investigating the President or other top government officials, was not likely to do an aggressive, thorough or fully professional job–and would certainly not be perceived as doing so. Consequently, the law created a mechanism for a court-appointed special prosecutor when there were allegations of criminal wrong doing against certain high-level government officials. But this law, after the abuses of Kenneth Starr, was allowed to lapse. Now, investigations are up to the Justice Department alone. The decision to appoint any special prosecutor is solely in the hands of Attorney General Ashcroft. Under the War Crimes Act of 1996, there are two sets of questions to determine potential criminal liability of high government officials, including the President: 1. What did they specifically order or authorize regarding interrogations of Iraqi prisoners and 2. Assuming they did not order or authorize murder, torture or inhuman treatment, what did they do once they knew of murder, torture or inhuman treatment? Under international law, once you are aware of violations, you have a duty to act to stop them. Not surprisingly, the Administration has thus far failed to release information about what orders the President (and other high officials) gave with respect to the interrogation of Iraqi prisoners, as well as what the President and others actually knew about the abuse of prisoners, when they knew it and what they did to stop it. We know for example that Colin Powell claimed he advised the President about the complaints of the International Red Cross. When did that briefing occur, what was the President told about those complaints and what did he do in response to that and other information he may have received about prisoner abuse in Iraq. This information–as well as information on what he authorized or ordered– must be disclosed. Mandel: Forgive me, but so far in this discussion I think we’ve left out the most important issue, legally and morally, which is who started this war in the first place. The invasion of Iraq was a “crime against peace,” the number 1 count in the Nuremberg Charter’s indictment of the Nazi war criminals: ‘planning, preparation, initiation [and] waging of a war of aggression, or a war in violation of international treaties’ - international treaties just like the Charter of the United Nations. It’s what the Nuremberg Tribunal called “the supreme international crime.” The President was made aware of this by a great number of international lawyers around the world before the invasion, and even if he claimed ignorance, I’m sure he’s heard that ignorance of the law is no excuse. Bush and his administration and the US commanders involved are all guilty of this supreme crime. Since the war was unlawful, the many thousands of deaths predictably resulting from it are also crimes, murder in fact, for which Bush and his officials and commanders are guilty in flagrante.

Conde: This is absolutely correct. I wrote a letter to Bush laying out these facts in the months before the war, specifically, so he couldn’t say he wasn’t aware that the invasion of Iraq was illegal, or that the war would not likely lead to grave breaches of international law. And he even wrote me back, which explicitly acknowledges his awareness of this fact, and thus his openness to prosecution for these crimes after the fact.

LeVine: What can be done to enforce these laws?

Mandel: This is the problem. As far as I understand it, because the war was authorized by the US Congress, it was legal under US law, but it’s still illegal under international law. But what does this really mean? There’s no institution capable of punishing this supreme crime. Even the International Criminal Court, which the US opted out of, left out the supreme crime against peace of waging an aggressive war. So how do enforce the law against perpetrators of war crimes? When Belgium tried to do this with Ariel Sharon, and then Tommy Franks and Rumsfeld and Bush himself, the US forced Belgium to repeal its ‘universal jurisdiction’ law (and in fact it was repealed and replaced by a watered-down version). When Spain tried to apply its law of universal jurisdiction against Pinochet, the UK ignored its extradition treaties and sent him home to a safe retirement. If you look at the recent prosecution of former Liberian President Charles Taylor by the Special Court for Sierra Leone, you see that the prosecutor is an American Defense Department lawyer! Basically, when the US and UK decided they wanted Taylor out, they deployed the war crimes issue. And this is a big problem for the peace movement: to rely on these international judicial institutions to obtain justice is a bad bet because they’re corrupt and inefficient and largely controlled by the US. This is why I believe that the global peace and justice movement should be fighting, as it has largely been doing, against war itself rather than against specific war crimes, which, however serious, are still minor in comparison to the major crime of war itself. There is no humanity in war. We can’t rely on international treaties, however well or poorly written, to make war human.

Holtzman: I’m not sure I can sit silently and appear therefore to assent to the idea that all war is bad or that war crimes jurisprudence is useless. The fact is that in the US we have a statute that makes it a crime to violate the Geneva Conventions. The question is how to make the statute work, particularly in light of what appears to be the inhuman treatment of so many Iraqi prisoners in US custody, in some cases resulting in death. Of course, many of us are pessimistic given the present Administration that the law will be vigorously enforced, but it is clearly better to have the law in place than no law at all.

LeVine: What could we do to force this issue?

Conde: It would be nice to be able to prosecute the aggressor. This is desirable but not likely. In another area of international law, the Fourth Geneva Convention points to the answer of public education. Geneva IV has a provision on dissemination, meaning that all the parties to the convention are legally bound in time of peace as well as in time of war, to teach the civilian population, as well as the military about the basic principles of the Conventions and to help them learn to know what the obligations to the treaty are. I had four military people in my class on international law. They were so changed by the end of the course because of what they now knew. We must make sure Americans know that the law is protecting civilians-including Americans-from being mistreated. It does something to the mind when you give people this information. Teaching them about the laws of armed conflict, the Geneva Conventions, Hague Law, even the UN Charter and International Declaration of Human Rights, has an enlightening and empowering effect that helps individuals learn and be equipped to speak truth to power. I hear the proof of that proposition loud and clear in you, Mark.

LeVine: Are you saying that we should be sending out mass emails or regular mail to every American family giving them this information?

Conde: Yes. We must do it because the US government will not do it, even though it is legally obligated to do so. This is because the government does not want an aware, knowledgeable American population. Bush himself in fact justified the war by saying that the US was invading to “restore the rule of law in Iraq,” so he must be held accountable for this. Americans need to become educated about why and how he and others are responsible and accountable for their actions.

Mandel: I agree, but the highest law in international law is the UN Charter, and it bans aggressive war. If this is not obeyed, the rest of the laws are pretty useless. How does one engage in a clean war? It’s impossible. So war crimes prosecution for lesser crimes (compared to the crime against the peace itself) in a way distract us from the issue that war itself is the major crime and must be stopped.

Holtzman: Too much of the discussion has focused on violations of international law as opposed to US law. So, what has to happen? First, the American people must be informed that there is a War Crimes Act that could apply to the President and his top officials with respect to prisoner abuse in Iraq. Second, the American people must determine that everyone who violated the War Crimes Act and other laws with respect to Iraqi abuses must be held accountable. We established the principle in Watergate that no one is above the law, including the president of the United States. That principle needs to be reaffirmed today. Of course, if there is a serious investigation of wrongdoing with respect to Iraqi abuses, perhaps it will have a limiting effect on the willingness of future administrations to engage in the kinds of abuses that the Bush administration has engaged in here.

Conde: You’re absolutely right. Educating people that this war was illegal, that the Congress didn’t have the right under international law to authorize a preemptive, aggressive war is crucial. We need to get people to read, inter alia, the preamble and Articles 2.4, and 51 of the UN Charter. The preamble states that “We the Peoples of the United Nations, Determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person,…, and to establish conditions under which justice and respect for obligations arising from treaties and other sources of international law can be maintained, …, and for these ends to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and to ensure by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest…Have resolved to combine our efforts to accomplish these aims,….” Article 2.4 of the Charter states that “All [UN] members shall refrain in their international relations from the treat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations.” Article 51 of the Charter says that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” But at the same time you can’t just hit them over the head; it’s better to provide them with the laws, statutes or treaties and let them make up their own mind. Most will understand that Congress can’t just violate international treaties and laws by approving a war like Iraq.

Mandel: That’s all well and good, but we outside the US watched the UN and especially the Security Council demonized so successfully by the American mass media I’m not sure how easy it will be to educate people just by showing them the relevant legal doctrines or laws…

Conde: Yes, that’s true. But the brainwashing against the UN Security Council can be overcome by showing what the standards are that the US has publicly set for itself and/or said it would comply with, and then show them what is clear that this country has done, and let them decide for themselves.

LeVine: So what do we do, then?

Holtzman: We need to create a document, a brief, that sets forth the potential for criminal or other legal liability on the part of the top Bush Administration officials and the need for an independent, non Justice Department led investigation and educate the press, the public and Congress to the point where enough pressure is created for a serious investigation to begin. Members of Congress, for example, could call for the disclosure of information about what the president ordered regarding Iraqi interrogations and when he was informed of abuses and what he did about them. They could also call for the appointment of a special prosecutor. The press and editorial boards need to be educated, so that the administration will be questioned as to why it is not disclosing information on what President Bush authorized regarding Iraqi interrogations and so that Ashcroft will be questioned about why he is not appointing a special prosecutor.

Conde: I think that such a document, signed by a large group of leading American and international lawyers, professors and jurists would have great impact.

Mandel: In Canada we can prosecute war crimes committed by anyone anywhere, so perhaps American lawyers should come up to Canada and ask the Canadian Attorney General to open an investigation, once Bush and his senior Cabinet level officials are out of office (now they have diplomatic immunity). But, theoretically, the military commanders could be tried now if they ever show their face in Canada.

Holtzman: At the very least, other countries could call on the US to enforce its own War Crimes Act.

Francis A. Boyle, Professor of Law, University of Illinois College of Law and recent author of Destroying World Order: U.S. Imperialism in the Middle East Before and After September 11th (Clarity Press: 2004).

H. Victor Condé LLM, former adj. Professor of International Law and Human Rights, Trinity Law School, California; lecturer at the International Institute of Human Rights, Strasbourg, , France, lecturer: UC Irvine recent author of A Handbook of International Human Rights Termin- ology (U of Nebraska Press: 2004) and Human Rights in the United States: a Dictionary and Documents, (ABC-Clio: 2000).

Michael Mandel, Professor, Osgoode Hall Law School, York University, Toronto, co-Chair of the Canadian-based Lawyers Against the War (www.lawyersagainstthewar.org) and author of How America Gets Away With Murder: Illegal Wars, Collateral Damage and Crimes Against Humanity (Pluto Press, 2004)

Francis Boyle is a Professor of Law at the University of Illinois Chicago. He is the author of eight books, including Destroying World Order and Defending Civil Resistance Under International Law, and has served as an advisor to the Palestinian delegation to the Madrid peace negotiations.

Liz Holtzman is a former NY Comptroller and Congresswoman who served as a member of the House Judiciary Committee that drafter the letters of Impeachment for President Nixon during Watergate. She is currently a partner at Herrick, Feinstein in NYC and is researching the potential criminal culpability for President Bush and other Administration officials for war crimes for various actions in Iraq.


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