Bush Memos Reveal Policy of Cruelty; Obama Refuses to Enforce the Law

In response to a Freedom of Information Act request by the ACLU, President Obama released four Bush-era memos that describe unimaginably brutal techniques and provide “legal” justification for clearly illegal acts of torture and cruel, inhuman or degrading treatment. In the face of monumental pressure from the CIA to keep them secret, Obama demonstrated great courage in deciding to make the grotesque memos public. At the same time, however, in an attempt to pacify the intelligence establishment, Obama said, “it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” He guaranteed free legal representation for CIA employees investigated by Congress or international tribunals, and indemnification for any financial judgments rendered against them.

Obama’s intent to immunize those who violated our laws banning torture and cruel treatment violates the President’s constitutional duty to “take Care that the Laws be faithfully executed.”

The memos

The memo dated August 1, 2002 was signed by Jay Bybee, and the other three memos, dated May 10, 2005, were signed by Stephen Bradbury.

In startlingly clinical and dispassionate terms, the authors of the newly-released torture memos describe and then rationalize why the devastating techniques the CIA sought to employ on human beings do not violate the Torture Statute (18 U.S.C. sec. 2340).

The memos justify 10 techniques, including banging heads into walls 30 times in a row, prolonged nudity, repeated facial and abdominal slapping, dietary manipulation, and dousing with cold water as low as 41 degrees. They allow shackling in a standing position for 180 hours, sleep deprivation for 11 days, confinement of people in small dark boxes with insects for hours, and waterboarding to create the perception they are drowning. Moreover, the memos permit many of these techniques to be used in combination for a 30-day period. They find that none of these techniques constitute torture or cruel, inhuman or degrading treatment.

Waterboarding, admittedly the most serious of the methods, is designed, according to Bybee, to induce the perception of “suffocation and incipient panic, i.e. the perception of drowning.” But although Bybee finds that “the use of the waterboard constitutes a threat of imminent death,” he accepts the CIA’s claim that it does “not anticipate that any prolonged mental harm would result from the use of the waterboard.” As psychologist Jeffrey Kaye points out, the CIA and the Justice Department “ignored a wealth of other published information” that indicates dissociative symptoms, changes greater than those in patients undergoing heart surgery, and drops in testosterone to castration levels after acute stress associated with techniques that the memos sanction.

The Torture Statute punishes conduct, or conspiracy to engage in conduct, specifically intended to inflict severe physical or mental pain or suffering. “Severe mental pain or suffering” means the prolonged mental harm caused by or resulting from either the intentional infliction or threatened infliction of severe physical pain or suffering, or from the threat of imminent death.

Bybee asserts that “if a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent.” He makes the novel claim that the presence of personnel with medical training who can stop the interrogation if medically necessary “indicates that it is not your intent to cause severe physical pain.”

Now a federal judge with lifetime appointment, Bybee concludes that waterboarding does not constitute torture under the Torture Statute. However, he writes, “we cannot predict with confidence whether a court would agree with this conclusion.”

The Bush administration claimed it only used waterboarding three times. But a footnote in one of Bradbury’s memos says waterboarding was utilized “with far greater frequency than initially indicated” with “large volumes of water” rather than small quantities as required by the CIA’s rules.

Bybee’s memo explains why the 10 techniques could be used on Abu Zubaydah, who was considered to be a top Al Qaeda operative. “Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from [the CIA’s] proposed interrogation methods,” the CIA told Bybee. But Zubaydah was a low-ranking Al Qaeda operative, according to leading FBI counter-terrorism expert Dan Coleman, who advised a top FBI official, “This guy is insane, certifiable, split personality.” This was reported by Ron Suskind in his book, The One Percent Doctrine.

The CIA’s request to confine Zubaydah in a cramped box with an insect was granted by Bybee, who told the CIA it could place a harmless insect in the box and tell Zubaydah that it will sting him but it won’t kill him. Even though the CIA knew that Zubaydah had an irrational fear of insects, Bybee found there would be no threat of severe physical pain or suffering if it followed this procedure.

Another noxious aspect of these memos is the use of medical professionals to enable the torture and cruel treatment. They are on hand to monitor the victims to make sure they come close to death, but don’t actually die. But the medical personnel may well allow the abuse to cause severe physical pain and do nothing to stop it until the victim reaches the point of impending death. One of Bradbury’s memos requires that a physician be on duty during waterboarding to perform a tracheotomy in case the victim doesn’t recover after being returned to an upright position.

Employing a standard used to measure due process violations, Bradbury concluded that “the CIA interrogation techniques, with their careful screening procedures and medical monitoring, do not ‘shock the conscience,’” and thus were not cruel, inhuman or degrading. It is difficult to imagine how the techniques described above would fail to shock the conscience of any human being.

Obama’s refusal to faithfully execute the law

The Constitution requires the President to enforce the law against both the petty thief who stole salmon from the market, and the CIA agent who tortured or abused a prisoner.

Our law prohibits torture and cruel, inhuman or degrading treatment, and requires that those who subject people to such treatment be prosecuted. The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment compels us to refer all torture cases for prosecution or extradite the suspect to a country that will undertake a criminal investigation. The Geneva Conventions proclaim an “obligation” to bring those who have committed torture and cruel treatment before our “own courts.” The Torture Convention and the Geneva Conventions are both part of U.S. law under the Supremacy Clause of the Constitution, which says, “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” Two federal statutes – the Torture Statute and the War Crimes Act (torture is a war crime) - provide for life imprisonment and even the death penalty if the victim dies from torture.

Obama has made a political calculation to seek amnesty for the CIA torturers. He expressed his “intention” to protect people who relied in good faith on Justice Department advice. However, good faith reliance on superior orders was rejected as a defense at Nuremberg and in Lt. Calley’s Vietnam-era trial for the My Lai Massacre. The Torture Convention provides unequivocally, “An order from a superior officer or a public authority may not be invoked as a justification for torture.”

There is evidence that the CIA was using the illegal techniques as early as April 2002, three to four months before the August memo was written. That would eliminate “good faith” reliance on Justice Department advice as a “defense” to prosecution. And Obama did not say he favored amnesty for those who set the policy – which would include Cheney, Rumsfeld, Rice, Powell, Ashcroft and Gonzales who comprised the Principals Committee that authorized the torture and Bush who approved of it. Nor did Obama include in his intended amnesty the lawyers – like Yoo, Bybee, Bradbury, Addington and Haynes - whose opinions under girded the policy.

When ABC’s George Stephanopoulos asked Rahm Emanuel on Sunday, “What about the people who designed the policies?", Emmanuel said the President doesn’t support their prosecution either.

But the decision about whether and who to prosecute is up to the Attorney General, Eric Holder. If Holder continues to carry out Obama’s political agenda by resisting investigations and prosecution, Congress can, and should, authorize the appointment of a special independent prosecutor to do what the law requires.

The Watergate scandal led to the enactment of the Ethics in Government Act. Three years after Richard Nixon resigned rather than face impeachment, President Carter asked Congress to pass a law authorizing the appointment of a special prosecutor to investigate and prosecute unlawful acts by high government officials. The bill empowered the attorney general to conduct a preliminary 90-day investigation when serious allegations arose involving a high government official.

Under the act, the attorney general could drop the investigation if he determined it was unsupported by the evidence. But if he found some merit to the charges, he was required to apply to a three-judge panel of federal court judges who would appoint a special prosecutor to investigate, prosecute, and issue a report. This procedure was used to appoint Kenneth Starr, whose witch hunt led to Bill Clinton's impeachment. In reaction, Congress allowed the independent counsel statute to expire by its own terms in 1999. It’s time for the people to demand that Congress enact an independent counsel statute.

Universal jurisdiction

What happens if the United States government refuses to prosecute those who ordered, justified and carried out the torture and abuse? Other countries will launch criminal investigations of U.S. nationals under universal jurisdiction. See Spain Investigates What America Should [http://marjoriecohn.com/2009/04/spain-investigates-what-america-should.html].

Indeed prosecutors in Spain decided to file criminal charges against Yoo, Bybee, Gonzales, Haynes, Addington and Feith for torture. But in a rare move, Candido Conde-Pumpido, Spain’s attorney general, overruled the prosecutors’ decision, saying the case had “no merit” because the six men were not present when the abuse took place and it was up to the United States to prosecute.

Universal jurisdiction is used to prosecute foreign nationals when their own country refuses to prosecute. Adoph Eichmann, often called “the architect of the Holocaust,” was tried, convicted and executed by Israel for crimes unconnected to Israel. He orchestrated the deportations but was not necessarily present at the gas chambers when millions were murdered.

Curiously, Conde-Pumpido’s decision followed discussions between the U.S. and Spanish governments in which the Obama administration strongly suggested that charges against the six would be “inconvenient,” according to Scott Horton of Harpers. Apparently and unfortunately, Obama is following the same tack Bush took by pressuring countries to back down on universal jurisdiction prosecutions.

The Spanish case is not dead, however. Judge Baltasar Garzon, who issued the arrest warrant for Augusto Pinochet in 1998, still has the power to determine whether the case will proceed.

Ultimately, it is up to Obama to fulfill his constitutional duty to ensure that the laws are faithfully executed. As he seems inclined to shirk that duty, it is up to us to pressure him, and Congress to hold accountable, those who violate our laws. Obama said that “nothing will be gained by spending our time and energy laying blame for the past.” He is wrong. There is more to gain from upholding the rule of law. It will make future leaders think twice before they authorize the cruel, illegal treatment of other human beings.

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Spain Investigates What America Should

A Spanish court has initiated criminal proceedings against six former officials of the Bush administration. John Yoo, Jay Bybee, David Addington, Alberto Gonzales, William Haynes and Douglas Feith may face charges in Spain for authorizing torture at Guantánamo Bay.

If arrest warrants are issued, Spain and any of the other 24 countries that are parties to European extradition conventions could arrest these six men when they travel abroad.

Does Spain have the authority to prosecute Americans for crimes that didn't take place on Spanish soil?

The answer is yes. It's called "universal jurisdiction." Universal jurisdiction is a well-established theory that countries, including the United States, have used for many years to investigate and prosecute foreign nationals for crimes that shock the conscience of the global community. It provides a critical legal tool to hold accountable those who commit crimes against the law of nations, including war crimes and crimes against humanity. Without universal jurisdiction, many of the most notorious criminals would go free. Countries that have used this as a basis to prosecute the most serious of crimes should be commended for their courage. They help to create a just world in which we all seek to live.

Israel used universal jurisdiction to prosecute, convict and execute Adolph Eichmann for his crimes during the Holocaust, even they had no direct relationship with Israel.

A federal court in Miami recently convicted Chuckie Taylor, son of the former Liberian president, of torture that occurred in Liberia. A U.S. court sentenced Taylor to 97 years in prison in January.

Universal jurisdiction complements, but doesn't supersede, national prosecutions. So if the United States were investigating the Bush officials, other countries would refrain from doing so.

When the United States ratified the Convention Against Torture, it promised to extradite or prosecute those who commit, or are complicit in, the commission of torture.

President Obama, when asked whether he favored criminal investigations of Bush officials, replied, "My view is also that nobody's above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen."

"But," he added, "generally speaking, I'm more interested in looking forward than I am in looking backward." Preoccupied with the economy and two wars, Obama reportedly wants to wait before considering prosecutions that would invariably anger the GOP.

Evidence that Bush officials set a policy that led to the torture of prisoners at Guantánamo continues to emerge.

According to ABC News, Gonzales met with other officials in the White House and authorized torture, including waterboarding.

The Office of Professional Responsibility, which reports to the U.S. attorney general, drafted a report that excoriates Yoo and Bybee for writing the infamous torture memos. Haynes, Addington and Feith participated in decisions that led to torture. The release of additional graphic torture memos by the U.S. Department of Justice is imminent.

It is the responsibility of the United States to investigate allegations of torture. Almost two-thirds of respondents to a USA Today/Gallup Poll favor investigations of the Bush team for torture and warrantless wiretapping. Nearly four in 10 support criminal investigations.

Former Navy General Counsel Alberto Mora told Congress, "There are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq - as judged by their effectiveness in recruiting insurgent fighters into combat - are, respectively the symbols of Abu Ghraib and Guantánamo." Providing impunity to those who ordered the torture will be the third recruiting tool.

If the United States refuses to investigate now, it will be more likely that some future administration will repeat this scenario. The use of torture should be purged from our system, much like we eradicated slavery.

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Donald Rumsfeld: The War Crimes Case

As the Democrats took control of the House of Representatives and were on the verge of taking over the Senate, George W. Bush announced that Donald Rumsfeld was out and Robert Gates was in as Secretary of Defense. When Bush is being run out of town, he knows how to get out in the front of the crowd and make it look like he's leading the parade. The Rumsfeld-Gates swap is a classic example.

The election was a referendum on the war. The dramatic results prove that the overwhelming majority of people in this country don't like the disaster Bush has created in Iraq. So rather than let the airwaves fill up with beaming Democrats and talk of the horrors of Iraq, Bush changed the subject and fired Rumsfeld. Now, when the Democrats begin to investigate what went wrong, Rumsfeld will no longer be the controversial public face of the war.

Rumsfeld had come under fire from many quarters, not the least of which was a gaggle of military officers who had been clamoring for his resignation. Bush said he decided to oust Rumsfeld before Tuesday's voting but lied to reporters so it wouldn't affect the election. Putting aside the incredulity of that claim, Bush likely waited to see if there would be a changing of the legislative guard before giving Rumsfeld his walking papers. If the GOP had retained control of Congress, Bush would probably have retained Rumsfeld. But in hindsight, Bush has to wish he had ejected Rumsfeld before the election to demonstrate a new direction in the Iraq war to angry voters.

Rumsfeld's sin was not in failing to develop a winning strategy for Iraq. There is no winning in Iraq, because we never belonged there in the first place. The war in Iraq is a war of aggression. It violates the United Nations Charter which only permits one country to invade another in self-defense or with the blessing of the Security Council.

Donald Rumsfeld was one of the primary architects of the Iraq war. On September 15, 2001, in a meeting at Camp David, Rumsfeld suggested an attack on Iraq because he was deeply worried about the availability of "good targets in Afghanistan." Former Treasury Secretary Paul O'Neill reported that Rumsfeld articulated his hope to "dissuade" other nations from "asymmetrical challenges" to U.S. power. Rumsfeld's support for a preemptive attack on Iraq "matched with plans for how the world's second largest oil reserve might be divided among the world's contractors made for an irresistible combination," Ron Suskind wrote after interviewing O'Neill.

Rumsfeld defensively sought to decouple oil access from regime change in Iraq when he appeared on CBS News on November 15, 2002. In a Hamlet moment, Rumsfeld proclaimed the United States' beef with Iraq has "nothing to do with oil, literally nothing to do with oil." The Secretary doth protest too much.

Prosecuting a war of aggression isn't Rumsfeld's only crime. He also participated in the highest levels of decision-making that allowed the extrajudicial execution of several people. Willful killing is a grave breach of the Geneva Conventions, which constitutes a war crime. In his book, Chain of Command: The Road from 9/11 to Abu Ghraib, Seymour Hersh described the "unacknowledged" special-access program (SAP) established by a top-secret order Bush signed in late 2001 or early 2002. It authorized the Defense Department to set up a clandestine team of Special Forces operatives to defy international law and snatch, or assassinate, anyone considered a "high-value" Al Qaeda operative, anywhere in the world. Rumsfeld expanded SAP into Iraq in August 2003.

But Rumsfeld's crimes don't end there. He sanctioned the use of torture and cruel, inhuman and degrading treatment, which are grave breaches of the Geneva Conventions, and thus constitute war crimes. Rumsfeld approved interrogation techniques that included the use of dogs, removal of clothing, hooding, stress positions, isolation for up to 30 days, 20-hour interrogations, and deprivation of light and auditory stimuli. According to Seymour Hersh, Rumsfeld sanctioned the use of physical coercion and sexual humiliation to extract information from prisoners. Rumsfeld also authorized waterboarding, where the interrogator induces the sensation of imminent death by drowning. Waterboarding is widely considered a form of torture.

Rumsfeld was intimately involved with the interrogation of a Saudi detainee, Mohamed al-Qahtani, at Guantánamo in late 2002. General Geoffrey Miller, who later transferred many of his harsh interrogation techniques to Abu Ghaib, supervised the interrogation and gave Rumsfeld weekly updates on his progress. During a six-week period, al-Qahtani was stripped naked, forced to wear women's underwear on his head, denied bathroom access, threatened with dogs, forced to perform tricks while tethered to a dog leash, and subjected to sleep deprivation. Al-Qahtani was kept in solitary confinement for 160 days. For 48 days out of 54, he was interrogated for 18 to 20 hours a day.

Even though Rumsfeld didn't personally carry out the torture and mistreatment of prisoners, he authorized it. Under the doctrine of command responsibility, a commander can be liable for war crimes committed by his inferiors if he knew or should have known they would be committed and did nothing to stop of prevent them. The U.S. War Crimes Act provides for prosecution of a person who commits war crimes and prescribes life imprisonment, or even the death penalty if the victim dies.

Although intending to signal a new direction in Iraq with his nomination of Gates to replace Rumsfeld, Bush has no intention of leaving Iraq. He is building huge permanent U.S. military bases there. Gates at the helm of the Defense Department, Bush said, "can help make the necessary adjustments in our approach." Bush hopes he can bring congressional Democrats on board by convincing them he will simply fight a smarter war.

But this war can never get smarter. Nearly 3,000 American soldiers and more than 650,000 Iraqi civilians have died and tens of thousands have been wounded. Our national debt has skyrocketed with the billions Bush has pumped into the war. Now that there is a new day in Congress, there must be a new push to end the war. That means a demand that Congress cut off its funds.

And the war criminals must be brought to justice - beginning with Donald Rumsfeld. On November 14, the Center for Constitutional Rights, the National Lawyers Guild, and other organizations will ask the German federal prosecutor to initiate a criminal investigation into the war crimes of Rumsfeld and other Bush administration officials. Although Bush has immunized his team from prosecution in the International Criminal Court, they could be tried in any country under the well-established principle of universal jurisdiction.

Donald Rumsfeld may be out of sight, but he will not be out of mind. The chickens have come home to roost.

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Bush Defies Military, Congress on Torture

After the grotesque torture photographs emerged from Abu Ghraib prison in April 2004, Bush said, “I shared a deep disgust that those prisoners were treated they way they were treated.” He vowed the incidents would be investigated and the perpetrators “will be taken care of.”

Bush seemed shocked to learn of torture committed by US forces. But then someone leaked an explosive Department of Justice memorandum that had been written in August 2002. The memo presented a blueprint explaining how interrogators could torture prisoners and everyone in the chain of command could escape criminal liability for war crimes. It said the President was above the law. That memo set the stage for the torture of prisoners in US custody.

Now we learn that, in early 2003, several senior uniformed military lawyers from each of the services voiced vigorous dissents to the policies outlined in the Justice Department’s 2002 memo.

Maj. Gen. Jack L. Rives, the Air Force deputy judge advocate general, wrote that several of the “more extreme interrogation techniques, on their face, amount to violations of domestic criminal law” as well as military law. In fact, Rives added, use of many of these techniques “puts the interrogators and the chain of command at risk of criminal accusations abroad.” Rives was talking about the well-established concept of universal jurisdiction, where any nation has the authority to prosecute any person for the commission of war crimes.

The tactics proposed in the 2002 memorandum also troubled Rives because he felt the new interrogation policies threatened to undo progress the military had achieved since the Vietnam War. Accusations of war crimes committed by US forces during Vietnam damaged the military “culture and self-image,” Rives wrote. Post-Vietnam military programs that emphasize compliance with the laws of war have “greatly restored the culture and self-image of US armed forces,” according to Rives.

Moreover, Brig. Gen. Kevin M. Sandkuhler, a senior Marine lawyer, wrote that military lawyers believed the harsh interrogation system could have adverse consequences for American service members. These might include diminished “public support and respect of US armed forces, [as well as loss of] pride, discipline, and self-respect within the US armed forces.” The interrogation regime could also jeopardize military intelligence-gathering and efforts to obtain support from allied countries.

The Justice Department “does not represent the services; thus,” said Sandkuhler, “understandably, concern for service members is not reflected in their opinion.”

But allegations of torture have persisted, even after these concerns were expressed. The continuing allegations have led influential members of Congress to propose amendments to a $491 billion defense bill that would prevent the mistreatment of prisoners.

Republican Senator Lindsey Graham has proposed an amendment to define who is an “enemy combatant” for purposes of detention and military trials of detainees at Guantánamo Bay, Cuba. At present, Bush claims total discretion to make that determination.

Republican Senator John McCain, a prisoner of war for six years during the Vietnam War, proposes an amendment to set uniform standards for anyone detained by the Defense Department. It would limit interrogation techniques to those contained in the Army field manual, which is currently being revised.

McCain also proposes that all foreign nationals held by the US military be registered with the International Committee of the Red Cross, as required by the Geneva Conventions. This would prevent the holding of “ghost detainees.”

The most si

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Bush & Co. Fear Prosecution in the International Criminal Court

Overcoming Impunity with the International Criminal Court

Non-governmental organizations and individuals from sixty-six different countries have filed 499 "communications" – or complaints – with the International Criminal Court (ICC), between July 2002 and July 2003. Many of them urge the ICC to investigate the United States conduct in the war on Iraq. The primary charge is that the U.S. committed an act of aggression against Iraq. The ICC has jurisdiction to punish the crime of aggression. However, this crime remains undefined in the ICC’s statute due to disputes among the states parties about how to define it.

The United States is not a party to the ICC treaty. The Bush administration has vigorously opposed it, for fear that U.S. military officials and personnel could be subject to "politically-motivated" prosecutions for war crimes.

In an unprecedented move last year, George W. Bush removed Bill Clinton’s signature from the treaty. A few months later, Bush signed into law the American Serviceman’s Protection Act, which restricts U.S. cooperation with the ICC and prohibits military assistance to states parties to the treaty unless they sign bilateral immunity agreements with the U.S. States which sign these "Article 98" agreements – referring to the section of the ICC statute that addresses treaties between countries – pledge not to hand over U.S. nationals to the ICC. The United States has reportedly extracted these agreements from 60 countries – primarily small nations, or fragile democracies with weak economies. And the U.S. has withdrawn military aid from 35 nations that refused to be coerced into signing Article 98 agreements.

The U.S. has also demanded express immunity from ICC prosecution for American nationals. This demand delayed the passage of several peacekeeping resolutions in the Security Council. But in 2002, the Security Council capitulated when it unanimously passed Resolution 1422, which called for one year of immunity for peacekeepers from countries not party to the ICC statute, and provided that immunity could be renewed in subsequent years. The resolution was renewed in June. But this time, the U.S. was unable to achieve unanimity. France, Germany and Syria abstained from the vote.

Ninety-one countries have signed on as parties to the ICC treaty. So why has the Bush administration resisted it so vehemently? Bush’s handlers were likely prescient about how the world would react to the United States’ illegal invasion of Iraq, which was not executed with Security Council approval or in lawful self-defense. They evidently knew they and their boss might be vulnerable to prosecutions for the unlawful killing of thousands of Iraqi civilians, the destruction of the civilian infrastructure, and the use of weapons of mass destruction – cluster bombs and depleted uranium – by "coalition forces."

A Preemptive War is a War of Aggression

The United States has sought to ensure the ICC’s legal processes do not jeopardize its role as global superpower by subjecting U.S. leaders to prosecution. It has consistently resisted definitions and jurisdictional provisions that may challenge U.S. impunity for wars of aggression.

Many ICC parties favor a definition of aggression set out in 1974 in General Assembly Resolution 3314, passed in the wake of Vietnam: "Aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition."

Bush’s new doctrine of "preemptive war" is a license to prosecute wars of aggression. It runs directly counter to the United Nations Charter’s prohibition on the use of armed force except in self-defense or when authorized by the Security Council. A preemptive war is a war of aggression. "Operation Iraqi Freedom" falls squarely into this category.

More than 50 years ago, Associate United States Supreme Court Justice Robert Jackson, one of the prosecutors at the Nuremberg Tribunal, wrote: "No political or economic situation can justify" the crime of aggression. He added: "If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us." An impartial international criminal tribunal is necessary to prevent "victor’s justice," where only the vanquished are subject to prosecution.

Universal Jurisdiction for International Crimes

Under the treaty, the ICC can take jurisdiction over a national of even a non-party state if he or she commits a crime in a state party’s territory. The U.S. vehemently objects to this. But it’s nothing new. Under well-established principles of international law, the core crimes prosecuted in the ICC – genocide, war crimes, crimes against humanity, and the crime of aggression – are crimes of universal jurisdiction.

That means that an alleged perpetrator can – and always could – be arrested anywhere. Indeed, the United States itself has asserted jurisdiction over foreign nationals in anti-terrorism, anti-narcotic trafficking, torture and war crimes cases. Even Resolution 1422 notes that states not party to the ICC statute "will continue to fulfill their responsibilities in their national jurisdiction in relation to international crimes."

However, the U.S. has not fulfilled its responsibilities to seek justice for international crimes. It has refused to extradite four terrorists – right-wing Cuban exiles trained by the CIA – who were convicted more than 20 years ago in Venezuela for blowing up a Cuban airliner in 1976. The U.S. similarly refuses to extradite John Hull, an American CIA operative indicted in Costa Rica for the 1984 bombing of a press conference which killed five journalists in a Nicaraguan border town. It has also refused to extradite former military officer Emmanuel Constant for trial in Haiti. Constant, who worked closely with the CIA, is believed to be responsible for the murder of more than 5000 people under the Haitian dictatorship in the early 1990s.

The ICC statute adds a special safeguard to the venerable principle of universal jurisdiction. It promises the ICC will only prosecute when the alleged perpetrator’s native country cannot, or will not, prosecute one of its nationals. The U.S. should not then fear ICC prosecution, especially in light of the Article 98 agreements it coerced – and continues to coerce – from a multitude of countries. Unfortunately, however, these agreements contain no guarantee that an American national accused of an international crime would be tried if handed over to the U.S.

In June, Belgium indicted Bush, Tony Blair, Paul Wolfowitz, John Ashcroft, and Condoleezza Rice for war crimes during the U.S.-led military campaign in Afghanistan, which predated the effective date of the ICC. The indictment was issued under Belgium’s universal jurisdiction law, which gave Belgian courts the right to judge anyone accused of war crimes, crimes against humanity or genocide, regardless of where the crimes were committed. Four Rwandans have been convicted in 2001 under Belgium’s law for their participation in the 1994 genocide which left more than one million dead.

The government of Belgium, fearing a backlash, decided to refer the cases against Blair, Bush and the others to London and Washington, making trials unlikely. Even so, Donald Rumsfeld threatened to move NATO out of Brussels unless Belgium changed its universal jurisdiction law. Belgium capitulated, and its Court of Cassation has asked for the dismissal of the war crimes indictments.

Belgium isn’t alone in indicting Bush and Blair for war crimes. In July, Greece’s Athens Bar Association filed a complaint in the ICC against the two for crimes against humanity and war crimes, this time in connection with their war on Iraq. "Operation Iraqi Freedom" began after July 2002, the effective date of the ICC.

The Sept. 11, 2001 terrorist attacks occurred before the ICC went into effect. Two years later, a Spanish judge charged Osama bin Laden and nine alleged Al Qaeda members with terrorism and murder under the principle of universal jurisdiction.

U.S. Undermines War Against Terrorism

Luis Moreno-Ocampo, the Argentine Chief Prosecutor of the ICC, has decided to begin the work of the Court by investigating possible genocide, war crimes, and crimes against humanity for the recruitment and use of children as soldiers and sex slaves in the Democratic Republic of Congo. Moreno-Ocampo’s selection of the Congo for his maiden investigation was made partly with an eye to the credibility of the ICC because, he says, "the Congo was a clear case."

But, John Shattuck, the former U.S. Assistant Secretary of State for Democracy, Human Rights and Labor, wrote in the Washington Post in September that the United States has "so far played a passive and sometimes negative role in the region." Just two days after the Security Council adopted a resolution on July 28 which imposed an embargo on "the direct or indirect supply" of arms or assistance to "armed groups and militias operating in the territory," the U.S. lifted its own embargo on weapons sales to Rwanda, which has armed its clients in eastern Congo.

Moreno-Ocampo, who has described the genocide in Congo as the "most important case since the Second World War," plans to investigate businesses in 29 countries, including the United States, suspected of financing ethnic violence in Congo.

Ironically the Chief Prosecutor, an attorney with extensive experience investigating atrocities and prosecuting officials in Argentina, says that the United States’ refusal to work with the ICC will undermine the International Criminal Court’s role in the U.S. efforts to fight terrorism.

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Pulling Out of the International Criminal Court is a Bush Administration Blunder

The International Criminal Court will be up and running next year. Although virtually every Western democracy has ratified the treaty under which the Court will operate, the United States will not participate. The Bush Administration’s recent withdrawal from the Court is a significant mistake. On the macro level, it sends a message to the rest of the world that the United States will continue to renounce international obligations, as it has done in with the land mine ban treaty, Kyoto Protocol, biological weapons treaty, comprehensive test ban treaty and ABM treaty. This continuing pattern of unilateralist behavior will interfere with U.S. efforts to maintain its anti-terrorism coalition. On a micro level, the U.S. will not have input into selection of the Court’s judges and prosecutors.

Why did the Bush Administration pull out of the Court? The United States seeks to immunize its officials and soldiers from becoming defendants in war crimes prosecutions. Although many people in this country cannot imagine the Court would prosecute U.S. defendants, the Bush Administration knows there are reasons for concern. During the past 10 years, the United States has conducted intense bombing raids in Iraq, Yugoslavia and Afghanistan without United Nations approval. Many of the bombs dropped from U.S. warplanes contained depleted uranium warheads and cluster bombs, which killed large numbers of civilians, in direct violation of international law. Bush’s likely attack on Iraq does not have support of the international community.

The United States should not fear involvement in the International Criminal Court. The Court’s Statute contains checks and balances designed to ensure fairness. The eighteen judges will be elected by the member states. The powers of the prosecutor are well regulated. Cases can be referred to the Court by: (1) the United Nations Security Council, or (2) individual member countries or the Court’s prosecutor. Referrals under the second track are subject to the principle of “complementarity,” wherein the Court would be a last resort only when a state cannot or will not prosecute one of its nationals. The Court’s prosecutor must notify a state with a prospective interest in a case of the prosecutor’s intent to commence an investigation. If that state notifies the Court within one month that it is investigating the matter, the prosecutor must defer, unless the Pre-Trial Chamber decides the investigation is a sham. The decision of the Pre-Trial Chamber can be reviewed by interlocutory appeal to the Appeals Chamber. And, the Statute provides the Security Council with a collective veto over the Court, by allowing the Council to postpone an investigation or a case for up to twelve months, with provision for renewing that time period.

The United States government claims the Court doesn’t contain the due process protections guaranteed in our Constitution. Yet, the Statute contains Miranda-type warnings, the rights to a speedy and public trial, defense counsel, reciprocal discovery, confrontation of witnesses, and protection against double jeopardy. Although the Statute does not provide for a jury trial, neither do the Bush’s new military tribunals or the ad hoc tribunals spearheaded by the United States in Yugoslavia and Rwanda. And, unlike the military tribunals, there is provision for judicial appeal of convictions.

Washington further objects that the Court can take jurisdiction over nationals of a state that isn’t party to the Statute if that person commits a crime in the territory of a state party. This is nothing new. The United States has taken jurisdiction of foreign nationals in anti-terrorism, anti-narcotic-trafficking, torture, and war crimes cases. And, the core crimes prosecuted by the Court - genocide, war crimes and crimes against humanity - are crimes of universal jurisdiction under well-established principles of international law. Nazi Adolph Eichmann was tried in Israel for crimes he committed during the Holocaust.

At Nuremberg, for the first time, individuals were held criminally accountable for the most heinous crimes. The United States vigorously supported the Nuremberg Tribunal. Ironically, however, the same day Secretary of State Colin Powell paid tribute to the memory of the victims of the Nazi Holocaust, the United States government renounced the International Criminal Court.

Washington’s justification is based on a faulty premise, and opting out of the Court will ultimately harm the interests of the United States. Param Cumaraswamy, the United Nations special rapporteur on judicial independence, said “the U.S. government has effectively forfeited its leadership role in the search for justice and the promotion and the protection of the rule of law and human rights in the international sphere.” By renouncing the International Criminal Court, the United States has cut off its nose to spite its face.

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Bombing of Afghanistan is Illegal and Must be Stopped

In a patently illegal use of armed force, United States and British bombs are falling on the people of Afghanistan. There are already reports of thousands of dead and wounded civilians from the same kind of American “smart bombs” used in Vietnam and Yugoslavia, with the promise of myriad casualties from unexploded cluster bombs. Yet while the media bombards us with details about the tragic but few deaths from Anthrax, we are shielded from photographs of the dead and injured in Afghanistan.

Jan Ziegler, Special Rapporteur on the Right to Food to the United Nations High Commissioner for Human Rights, warned on October 15, “The bombing has to stop right now. There is a humanitarian emergency.” Relief agencies left Afghanistan in the wake of the bombing. The arrival of winter is imminent, when up to 7.5 million Afghans internally displaced by the bombing will be beyond the reach of humanitarian aid. Routing chief suspect Osama bin Laden from his cave with bombs is like finding a needle in a haystack, while mass starvation is inevitable.

The media has created a tidal wave of support in the United States for attacking the country that harbors bin Laden. In a recent Gallup/CNN/USA Today poll, 45 percent of Americans said they were willing to “torture known terrorists if they knew details about future terrorist attacks in the United States,” notwithstanding the United States’ ratification and implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the fact that the prohibition against torture is considered to be jus cogens, a preemptory or inviolable norm of international law.

Yet in spite of nearly universal global condemnation of the September 11 attacks, the bombardment of Afghanistan does not sit well in the Arab world, which is faced with pictures of wounded Afghan children and Israeli tanks rolling into Palestinian villages. Akhbar el Yom, one of the biggest newspapers in Egypt, featured a photograph of an Afghan child orphaned by the bombs. It sported the caption, “Is this baby a Taliban fighter?” And the recent killings of rebel Northern Alliance supporters by misguided American bombs, has backfired and helped build support for the Taliban. European countries are also beginning to question the wisdom of the sustained bombing campaign, which is killing civilians and failing to accomplish its goal.

Although the horror of the mass tragedy inflicted on September 11 is indisputable, the bombings of Afghanistan by the United States and the United Kingdom are illegal. This bombardment violates both international law and United States law, set forth in the United Nations Charter, a treaty ratified by the U.S. and therefore part of the supreme law of the land under the U.S. Constitution.

The U.N. Charter provides that all member states must settle their international disputes by peaceful means, and no nation can use military force except in self-defense.

The Security Council, made up of representatives from 15 countries from each region of the world, is the only body that can authorize the use of force. Only the Security Council can decide what action can be taken to maintain or restore international peace and security.

The Security Council has a series of options under the U.N. Charter: (1) it can suggest that the United States sue Afghanistan in the International Court of Justice (World Court), for harboring Osama bin Laden and others, if the evidence supports their involvement in these attacks, and seek their immediate arrests; (2) it can order interruption of economic relations, rail, sea, air, postal, telegraphic, radio communications and the severance of diplomatic relations; (3) it can establish an international tribunal to try those suspected of perpetrating the September 11th attack; (4) it can establish a U.N. force to make arrests, prevent attacks or counter aggression; and (5) as a last resort, it can authorize the application of armed force with the Military Staff Committee.

The United States has gone to the Security Council twice since the September 11 attack. The Security Council passed two resolutions, neither of which authorize the use of force. Resolutions 1368 and 1373 condemn the September 11 attacks, and order the freezing of assets; the criminalizing of terrorist activity; the prevention of the commission of and support for terrorist attacks; the taking of necessary steps to prevent the commission of terrorist activity, including the sharing of information; and urging the ratification and enforcement of the international conventions against terrorism (which the U.S. has not ratified).

Although the United States has reported its bombing to the Security Council as required by article 51 of the U.N. Charter, the Security Council has not authorized and could not authorize the use of unilateral military force by the United States and the United Kingdom, or NATO, which is not a U.N. body.

The bombing of Afghanistan is not legitimate self-defense under article 51 of the Charter because: 1) the attacks in New York and Washington D.C. were criminal attacks, not “armed attacks” by another state, and 2) there was not an imminent threat of an armed attack on the U.S. after September 11, or the U.S. would not have waited three weeks before initiating its bombing campaign. The necessity for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” (Caroline Case, 29 BFSP 1137-8; 30 BFSP 19-6 (1837)). This classic principle of self-defense in international law has been affirmed by the Nuremberg Tribunal and the U.N. General Assembly.

Even if the U.S. was authorized on September 11 to use military force under article 51, that license ended once the Security Council became “seized” of the matter, which indeed it did on September 12, by passing Resolution 1368, and reaffirming in Resolution 1373 on September 28 that it “remains seized” of the matter. By bombing Afghanistan, the United States and the United Kingdom are committing acts of aggression, which is prohibited by the U.N. Charter.

The universal desire is to feel safe and secure. The only path to safety and security is through international law, not vengeance and retaliation. George W. Bush and the U.S. Congress must take the following steps:

1. immediately stop the bombing of Afghanistan and Iraq, remove all ground forces, and refrain from illegally bombing or invading any other country;


2. contribute money and people power to the U.N. peacekeeping forces;


3. refuse to further eviscerate the U.S. Bill of Rights, in the name of national security. (The Uniting and Strengthening America By Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (USA Patriot Act), rushed through Congress in the wake of September 11, vastly expands the government’s ability to place wiretaps, invade e-mails, and hold immigrants in indefinite detention);


4. not repeat the actions of the U.S. government when it interned Japanese-Americans during World War II, and targeted suspected communists during the McCarthy era;


5. refuse to allow the racial profiling, and INS and FBI intimidation, of Arabs, Muslims and South Asians; and


6. submit this matter to appropriate international bodies, including the United Nations and the World Court.

Since no state has executed an armed attack against the United States, this is a criminal matter that can be prosecuted in a number of possible venues. First, the United States could bring criminal prosecutions in its domestic courts for crimes against humanity and for violations for international conventions under the principle of universal jurisdiction, as Israel did when it prosecuted Adolph Eichmann for his role in the Holocaust.

Second, the Security Council could establish a special criminal tribunal for the September 11 attacks, as it did in Yugoslavia and Rwanda. The Montreal Sabotage Convention, which criminalizes the destruction of civilian aircraft while in service, is directly on point and should be used here. It was invoked during the resolution of the dispute between the United States, the United Kingdom and Libya over the handling of the Libyan suspects in the Lockerbie bombing cases. Both the United States and Afghanistan are parties to that convention.

The International Criminal Court would not be an available forum, because 1) it has not yet come into force, as it needs the ratification of 60 states and 43 have ratified thus far; 2) its jurisdiction is limited to crimes occurring after it comes into force; and 3) the United States refuses to ratify the ICC statute, because it is afraid its leaders may become defendants in war crimes prosecutions.

Former Soviet President Mikhail S. Gorbachev wrote in a recent op-ed in The New York Times, “it is now the responsibility of the world community to transform the coalition against terrorism into a coalition for a peaceful world order.” He advocates leadership by the Security Council to take concrete steps such as accelerated nuclear and chemical disarmament, and urges United States ratification of the verification protocol of the convention banning biological weapons, as well as the treaty to prohibit all nuclear testing. Gorbachev also opposes the use of the battle against terrorism “to establish control over countries or regions,” which, he maintains, would not only discredit the coalition; it would prevent its potential for building a peaceful world.

On September 29, the day originally set for anti-globalization protests, thousands marched in the streets demanding peace. Students on campuses across the country are mobilizing to oppose the bombing. Our anti-terrorism coalition must be true to its name, and aim its energy not at the innocent people of Afghanistan, but at building global peace.

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No "Victor's Justice" in Yugoslavia: NATO Must be Held Accountable for Its War Crimes

After World War II, the Tokyo War Crimes Tribunal was established to try Japanese military and political leaders accused of committing atrocities. The United States, which was responsible for at least two of the greatest war crimes in the history of the world – the atomic bombing of Hiroshima and Nagasaki – was not brought before the tribunal. Only the vanquished Japanese were held accountable for their war crimes. In the words of dissenting Judge Radhabinod Pal of India, this was "victors' justice." The United States – and its "victorious" NATO allies – will once again escape responsibility for war crimes, this time for those committed against the people of Yugoslavia.One year ago, 120 countries adopted the Statute of the International Criminal Court as a multilateral treaty. Established under the aegis of the United Nations to operate independently starting in five years, the ICC will be the first permanent international body to try suspected war criminals. Its jurisdiction extends to genocide, crimes against humanity, war crimes and the crime of aggression. Art. 5(1), Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9 (17 July 1998). Seven countries – including Libya, Iraq, China, India, Sudan, Israel and the United States – voted against the establishment of the ICC. The U.S. sought to ensure the legal processes of the ICC would not jeopardize its role as global superpower, insulating its soldiers and policy-makers from becoming defendants in war crimes prosecutions.

The International Criminal Tribunal for the Former Yugoslavia

In 1993, the U.N. Security Council – with significant financial aid from the leading NATO governments – set up the International Criminal Tribunal for the Former Yugoslavia, or ICT-Y. S/RES/827 (1993), 32 ILM 1203 (1993). It has jurisdiction over grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity, committed in the former Yugoslavia since 1991. The tribunal rightfully indicted President Slobodan Milosevic and other Yugoslav officials for war crimes. But thus far there have been no indictments against NATO for war crimes it committed during its 11-week aerial bombardment of Yugoslavia.

Mary Robinson, UN High Commissioner for Human Rights, had warned NATO it might be held accountable for war crimes after two buses in Kosovo were bombed, killing more than 50 civilians. She said "People are not collateral damage. They are people who are killed, injured, whose lives are destroyed."

Article 3 of the ICT-Y Statute prohibits "devastation not justified by military necessity." NATO bombs killed an estimated 1500 civilians and injured thousands more. "Smart" laser-guided weapons hit 50 bridges, 12 railroad lines, five civilian airports, 50 hospitals and clinics, 190 educational institutions, 16 medieval monasteries and shrines, and several factories, power plants, water mains, major roadways, media stations, libraries and homes. NATO Commander Wesley Clark said the goal was to disrupt, degrade, devastate and destroy the infrastructure of the country.

The United States used that same strategy in Iraq in 1991. When asked five years later on "60 Minutes," about the half million Iraqui children who had died as a result, Madeleine Albright said, "We think the price is worth it."

Spanish Captain Adolfo Luis Martin de la Hoz, who participated in NATO's bombing of Yugoslavia, reported that NATO consciously chose non-military targets and "every single" mission was planned by high U.S. military authorities.

Also prohibited by Article 3 of the ICT-Y Statute is the "employment of poisonous weapons or other weapons calculated to cause unnecessary suffering." NATO used cluster bombs banned by international conventions. Children (i.e., "soft targets," according to the manufacturer) are being mutilated and killed when unexploded bomblets blow up in their hands. Equally troubling is NATO's use of depleted uranium weapons, condemned in a 1991 U.S. Nuclear Defense Agency report as a "serious health threat."

One speck of DU dust lodged in a lung upon impact or ingestion can cause cancer. This deadly compound, first used on a large-scale by the United States during the Gulf War, has been linked to Gulf War Syndrome and high levels of stillbirths, birth defects and leukemia among Iraqui children.

On April 18, 1999, NATO bombed three major industrial plants in Pancevo, a city near Belgrade. Levels of the carcinogen vinyl-chloride monomer (VHM) released into the air reached 10,600 times more than accepted safety levels. This has poisoned the air, the land, the crops and the Danube River. Teams from the U.N. Environmental Programme and the U.N. Centre for Human Settlements in Yugoslavia warn of the dangers of "miscarriages, birth defects and incurable diseases of the nervous system and liver."

Physicians in Pancevo have recommended privately that all women who were present in the town the night of the bombing avoid pregnancy for the next two years. They also advised women less than nine months pregnant to obtain abortions. Most have reportedly complied.

Dr. Slobodan Tosovic, chief ecotoxicologist at Belgrade's Public Institute of Health, said, "It's enough to make me believe the Americans and NATO were making a biochemical experiment with us."

The United States was well aware of the consequences of bombing the petrochemical complex. "The Americans built that factory, so they knew precisely what was inside when they bombed it," said Pancevo Mayor Mikovic.

A recently released U.N. report said the 11 weeks of NATO air strikes have had "a devastating impact" on the environment, industry, employment, essential services and agriculture of Yugoslavia.

Walter Rockler, former prosecutor at the Nuremberg War Crimes Tribunal said, "The Nuremberg Court found that to initiate a war of aggression, as the U.S. has done against Yugoslavia, is not only an international crime, it is the supreme international crime." Rockler also claims the NATO bombing of Yugoslavia violated the U.N. Charter and the charter of NATO itself, prohibiting aggression and forceful military intervention.

Bombing the infrastructure of Yugoslavia went beyond legitimate military targets. "The notion that humanitarian violations can be redressed with random destruction and killing by advanced technological means is inherently suspect," Rockler wrote in an op-ed in the Chicago Tribune. "This is mere pretext for our arrogant assertion of dominance and power in defiance of international law."

Article 18 of the ICT-Y Statute requires the Prosecutor to "initiate investigations" ex-officio or "on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations." Upon determining that a prima facie case exists, the Prosecutor shall prepare an indictment.

Complaint Lodged with ICT-Y Prosecutor

In May of 1999, a group of Canadian lawyers and professors as well as the American Association of Jurists, a non-governmental organization with consultative status before the U.N. Social and Economic Council, lodged a complaint with the tribunal. It asked Prosecutor Louise Arbour to "immediately investigate and indict for serious crimes against international humanitarian law" the 67 named heads of state, ministers and NATO officials.

The alleged crimes include "willful killing, willfully causing great suffering or serious injury to body or health, extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly, employment of poisonous weapons or other weapons to cause unnecessary suffering, wanton destruction of cities, towns or villages, or devastation not justified by military necessity, attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings, destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science."

The complaint also charges "open violation" of the U.N. Charter, NATO's own treaty, the Geneva Conventions and the principles of international law recognized by the Nuremberg Tribunal. It points to the bombing of civilian targets and alleges that NATO leaders "have admitted publicly to having agreed upon and ordered these actions, being fully aware of their nature and effects."

The Independent Commission of Inquiry Indictment

It is unclear whether the Prosecutor will initiate an investigation of these allegations. However, on July 31, 1999, the International Action Center in New York convened the Independent Commission of Inquiry Hearing to Investigate U.S./NATO War Crimes Against the People of Yugoslavia. Former U.S. Attorney General Ramsey Clark prepared a multi-charge indictment, naming President William J. Clinton, Secretary of State Madeleine Albright, Secretary of Defense William Cohen, various U.S./NATO generals and others, as defendants for their part in the war against Yugoslavia.
The charges are based on crimes against peace, crimes against humanity and war crimes. The Commission of Inquiry will examine the laws of armed conflict, the Hague and Geneva Conventions, the Nuremberg Tribunal, the U.N. Charter, the NATO Charter, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and other international treaties and international law as well as the Constitution and domestic laws of the United States. Several months of mass hearings will be held followed by a War Crimes Tribunal. Hearings have been scheduled in several countries. The Commission will ask internationally acclaimed jurists, human rights activists, trade unionists, leaders of civil rights and women's organizations, members of parliaments and others to review the body of evidence and issue a public verdict.

It is incumbent upon the ICT-Y prosecutor to take the complaints seriously and initiate an official investigation into NATO's war crimes. We must not allow "victors' justice" to repeat itself in Yugoslavia.

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