August 09, 2005
Is George Bush a War Criminal?
It’s easy to understand why the American public is confused about the torture and abuse of Iraqi prisoners in Abu Ghraib prison. This is because Abu Ghraib was the end result of a long line of policy decisions and treaty violations. In short, we got the end of the story first, and we’re just now beginning to see the beginning.
Abu Ghraib didn’t start in 2004 when those horrific photographs came to light; it started with the fall of Kabul in Afghanistan at the end of 2001. So perhaps, a brief chronology might add some perspective.
At the end or 2001, America was still reeling from the barbarous attacks of September 11th. The Bush Administration was seething and, perhaps legitimately, it feared of another terrorist attack upon the United States. Simultaneously, it was trying to figure out what to do with all of the Taliban fighters it had just captured. In short, the question quickly became whether or not the Taliban or al-Qeada or both were covered under the Geneva Conventions on the Treatment of Prisoners of War.
On the face of it, it seemed quite clear. Al-Qeada was a non-governmental terrorist organization, and its members should be treated as captured criminals. The Taliban militia was a military organization, and its members should be treated as POWs. If there was some confusion between the two, Article Five of the Geneva Convention was quite explicit:
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."
This raised some problems for the Bush Administration, however. We were fighting "a new kind of war" apparently. Under our treaties and protocols, criminals and POWs have rights, such as humane treatment and repatriation after the end of hostilities, and the Bush Administration didn't want to honor those commitments. They wanted the "flexibility" to hold captured belligerents in perpetuity and treat them in any manner the Armed Forces believed to be appropriate.
So the Department of Defense (DoD) asked the Department of Justice (DoJ) if the Geneva Conventions applied to captured Taliban militia. On January 9, 2002, they got their answer from John Yoo and Robert Delahunty: No. Al-Qeada was obviously not covered under the Conventions. The Taliban, however, was a little trickier.
"Whether the Geneva Conventions apply to the detention and trial of members of the Taliban militia presents a more difficult legal question. Afghanistan has been party to all four Geneva Conventions since 1956. Some might argue that this require application of the Geneva Conventions to the present conflict with respect to the Taliban militia, which would then trigger the WCA [War Crimes Act]. This argument depends, however, on the assumptions that during the period in which the Taliban militia was ascendant in Afghanistan, the Taliban was the de facto government of that nation, that Afghanistan continued to have the essential attributes of statehood, and that Afghanistan continued in good standing as a party to the treaties that its previous governments had signed.So "informed opinion" said that Afghanistan was a "failed State". This made its government illegitimate, even though the United States was instrumental in helping it to acquire power during its war with the Soviet Union in the late 1980s, and supporters of governments that we deem to be illegitimate unilaterally and arbitrarily aren't protected by our international treaties. In other words, our treaties aren't binding; they're only applicable when the Executive branch of the government says they are.We think that all of these assumptions are disputable, and indeed false. The weight of informed opinion strongly supports the conclusion that, for the period in question, Afghanistan was a 'failed State' whose territory had been largely overrun and held by violence by a militia of faction rather than a government. Accordingly, Afghanistan was without the attributes of statehood necessary to continue as a party to the Geneva Conventions . . . ."
As a result, President Bush proclaimed that the Taliban was not protected Geneva, and Secretary Rumsfeld issued an order to the Joint Chiefs of Staff the next day.
But not so fast, said Secretary of State Colin Powell. He wrote a memo to the DoJ refuting many of the contentions made in its memo of January 9th. Specifically, Powell stated,
"The Memorandum [from the DoJ] should note that any determination that Afghanistan is a failed state would be contrary to the official U.S. government position. The United States and the international community have consistently held Afghanistan to its treaty obligations and identified it as a party to the Geneva Conventions."Well, apparently the DoJ considered the Secretary Powell and the State Department to be excluded from "informed opinion" about the diplomatic status of Afghanistan. Notwithstanding the question of whether the Departments of State or Justice were better informed about the international status of Afghanistan, President Bush called upon is top lawyer, Alberto Gonzales, to sort things out. So, in the best tradition of bureaucratic Washington, he sent the President a memo on January 25th.
Gonzales's memo gave the President of the option of applying the Geneva Conventions to the Taliban in clear violation of Article 5. How could he do so? Why because, despite the statements of his Secretary of State to the contrary,
"Afghanistan was a failed state because the Taliban did not exercise full control over the territory and people . . . .Apparently President Bush decided to rely on Justice instead of State to determine foreign policy.The Taliban and its forces were, in fact, not a government, but a militant, terrorist-like group."
But Gonzales didn't want to appear as if he was making foreign policy. After all, that's the President's job; he could only recommend. So his memo included the pluses and minuses of excluding al-Qeada and the Taliban from the Geneva Conventions. He indicated that only two positives could be associated with the suspension of the treaty. First, he listed "flexibility", which would provide the Armed Forces with "the ability to quickly obtain information from captured terrorists" without having to worry about incidentals such as repatriation and humane treatment.
Secondly, and more ominously, he discussed the reduced "threat of domestic prosecution under the War Crimes Act"! Yes, you heard me right. The Office of the Legal Counsel of the Department of Justice told the President of the United States that, if he wants to institute a policy of prisoner abuse, he should, contrary to the opinion of his State Department, simply declare the nation a "failed state" and stipulate that the Geneva Conventions are inapplicable. Why? So that the President of our nation could avoid future domestic prosecution as a WAR CIMINAL:
"Third, it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based upon Section 2441 [the War Crimes Act]. Your determination [that the Geneva Conventions do not apply to the Taliban] would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution."Did I read that right? For the President to escape prosecution as a war criminal, all he needs to do is say that the Geneva Conventions, and hence the War Crimes Act, do not apply. Shades of Louis XVII, "L'etat, c'est moi!" (I am the state!) Federal law doesn't apply to me. Why? BECAUSE I'M THE PRESIDENT AND I SAID SO!
Well, needless to say, George II liked this opinion, overrode the opinion of his Secretary of State, and on February 7th signed an order validating Rumsfeld's January 19th order to the Joint Chiefs.
"Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida [sic], al-Qaida detainees also do not qualify as prisoners of war."Let the games begin. And begin they did. Not at Abu Ghraib in Iraq, but at Bagram in Afghanistan. At some point during 2002 our troops began to torture their prisoners, and in December of that year they eventually beat two of them to death. One was the brother a reputed Taliban commander and the other was a taxicab driver. Their crimes? They had resisted having hoods placed over their heads. Was placing a hood over a prisoner humane treatment? It didn't matter because the President said so. Was beating them in order to force compliance humane? Ditto.
So who' s going to jail? Why the grunts, of course. Is it fair? Is it right? Is it just? Well, maybe it is, but the guys who are up on charges don't think so.
"In the first interview granted by any of the accused soldiers, a former guard charged with maiming and assault said that he and other reservist military policemen were specifically instructed at Bagram how to deliver the type of blows that killed the two detainees, and that the strikes were commonly used when prisoners resisted being hooded or shackled.Six months later, the Bagram policies found their way to Abu Ghraib. By the end of 2003, our soldiers were, in the words ofMajor General Antonio M. Taguba, engaged in,'I just don't understand how, if we were given training to do this, you can say that we were wrong and should have known better,' said the soldier, Pvt. Willie V. Brand, 26"
"egregious acts and grave breaches of international law"at Abu Ghraib.
So who's really to blame? I don't know and neither does anybody else. Why? Because I don't have subpoena power and both Bagram and Abu Ghraib have been Army investigations.
That's why the Congress has to appoint a special prosecutor to investigate the commission of war crimes in Afghanistan and Iraq. We need to know if our President is a war criminal, notwithstanding the opinion of his legal counsel. We need to know if any of his staff are war criminals. We need to know if the DoD employed any war criminals. After all, as the War Crimes Act clearly states:
(c) Definition.--As used in this section the term 'war crime' means any conduct--All I do know is that no one, not even our President, is above the law simply because he says so. Posted by Chuck Hanrahan at August 9, 2005 09:21 PM(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
Minor correction: Louis XIV, not XVII
Posted by: Chuck Hanrahan at August 9, 2005 10:35 PMChuck,
You know I love ya man, but have you ever heard the expression “pissing in the wind”?
Posted by: Rocky at August 10, 2005 12:02 AMAnother very precise piece of work Chuck, thank you. I’ve spent some time researching what happened at Bagram more than on Abu Ghraib. From what I have been able to determine from what has been released I believe there are some soldiers that did go above and beyond what was legal that were not following orders. However, I also believe there is evidence that some of the behavior was encouraged thru orders or looking the other way. This then creates the question that if the environment was such that abuse was encouraged either by direct action or lack of control, should all of the soliders be charged and if so to what extent? I believe some of them are responsible since they knew their behavior was unacceptable.
I give the example of what happened to Mr. Dilawar, who died from over 100 kicks by various personal at Bagram. The Army’s Criminal Investigation Command concluded that there was probable cause to charge 27 officers and enlisted personnel with criminal offenses in the Dilawar case ranging from dereliction of duty to maiming and involuntary manslaughter. Having read the details of what he was forced to go thru it was very disturbing. What makes his story even more important is he was not a terrorist, he just happened to be in the wrong place at the wrong time and paid for that with his life.
So while I do not believe anyone should be given a “free pass” on this, including the President, there is alot of information out there that we do not know.
Posted by: lisa renee at August 10, 2005 12:24 AMI believe the Right has accepted that Torture was and is condoned by this Adminitration. This is the reason that the Conservatives keep insisting that ALL the Prisoners are guilty. The concept of torturing innocent civilians would damage their “good vs evil” ideal and boggle their little minds. Look at the previous Threads in the Red Column. Plenty of “But those guys were guilty or they wouldn’t be picked up” and not a single “Oh, that Canadian Guy Rendered to Syria to have his Balls barbecued was probably innocent”.
Posted by: Aldous at August 10, 2005 08:55 AMChuck,
The simple answer to the question is ‘no’. I know that probably isn’t the answer you wanted to hear though…
The reality is that the designation of both Al Qaeda and The Taliban as enemy combatants is backed by precident.
However, saying that someone is not covered under the Geneva convention is not an open order to support illegal uses of torture, as is what has happened at both Bagram and Abu Ghraib. There are still codes of conduct that military people are under obligation to uphold. So trying to make the case that labelling someone as an enemy combatant not covered under the Geneva convention is the same as ordering the violation of those codes of conduct and the death of a prisoner is not good enough. You would have to show that the president condoned the action, which I don’t think anyone can make at this time.
Posted by: Rhinehold at August 10, 2005 11:06 AMThe issue of torture is dredged up once again.
Evidently some believe that everyone on the Right has accepted the fact that torture was and is condoned by this administration. Further is the belief from the Left that Conservatives insist that all prisoners are guilty.
Sandwiched in to these posted beliefs is that we Conservatives have “little minds”.
Speaking for myself, a Right Wing Conservative, I
tend to condone “torture” which, as yet nobody has defined. Beyond of course the panty hats, dog leashes, Koran urinations, naked photo shoots, etc.
If a prisoner has been deemed unreliable as a source of information he or she should a) be sent back where they came from or b) detained until the conflict is over since his life could be in danger if released.
Syria sounds like a good place to send prisoners for interrogation. I am wondering if having your balls barbecued is more painful than having your head chopped off.
Chuck, excellent article!
Rhinehold, in my book, when the President publicly spoke and said the Geneva Conventions do not apply, he condoned the torture. Period. I see no extenuating circumstances in his case, as he saw no extenuating circumstances for detainees. By definition of being a detainee, they were guilty, and subject to any treatment inside or outside treaty, that his minions chose to inflict.
Guilt by virtue of apprehension was one of many practices of King George which American colonialists rose up in revolution over. King George is back, only his last name is now BUSH!
Posted by: David R. Remer at August 10, 2005 11:24 AMWow. Excellent article, Chuck. You’re absolutely right, Congress should appoint a special prosecutor. What can I do to help make that happen?
Posted by: American Pundit at August 10, 2005 11:33 AMSorry, David, but I didn’t think that Roosevelt was calling for ‘enemy combatants’ to be tortured when he used that same designation in WWII, nor do I think Bush was calling for the same thing. As you know from your time in the military, there are various codes of conduct that we have to follow and no one would think it was ‘ok’ to do what was done in these two instances without a signed order from the president himself, and even then you could still be court-martialed for following that order.
The simple fact is that these people went beyond their agreed upon codes and against the direction of the military, their designation as enemy combatants doesn’t change that.
Posted by: Rhinehold at August 10, 2005 11:35 AMLong live King George! :-)
Seriously though,
So who’s really to blame? I don’t know and neither does anybody else.
Couldn’t have said it any better myself… Libs have been wanting to nail this president to the wall for just about anything they can find since he was re-elected (if not before), so if they had any evidence at all you know they would have already appointed a special prosecutor to “PROVE” it. But there is no proof that they can find to link any of this to the president and therefore it will never happen. Either this president really did not have any direct link or his “little mind” has found a way to make sure it is not found (Rock and a hard place isn’t it Aldous - Either the Pres is innocent or smart! lol). No one knows for sure but either way I have to agree with Rocky that spending much more time on this subject is “pissing in the wind”…
btw… I am somewhere between Conservative and Libertarian and I don’t support torture. Those that do the torturing should be prosecuted and if orders were given then the orderers should be prosecuted as well… I just don’t happen to believe that Bush have been “in that loop” himself. “Uh, excuse me Mr President but can you ok us stripping prisoners and making them pose for a camera?” Just can’t see that conversation happening myself…
Nor do I think that “ALL the prisoners are guilty”. However, there is a war going on here and just like collateral damage can not be avoided in traditional warfare, I’m sure that an occasional innocent person will be caught in the frey. I don’t like that, and I don’t think that conservatives in general like it any more than Liberals do. I do think that conservatives are a little more tolerant of the fact that it is an inevitable, yet regretable, part of war. Liberals that want this utopia where no one is ever inadvertantly wronged are living in a fantasy that is just not acheivable as long as there are humans in the mix.
Posted by: BradM at August 10, 2005 12:19 PMso if they had any evidence at all you know they would have already appointed a special prosecutor to “PROVE” it.
The minority party can’t appoint squat. Your argument is meaningless.
Posted by: American Pundit at August 10, 2005 01:03 PMThe miniority party cannot appoint a special prosecutor, however they can demand a congressional investigation. There have been examples of how these congressional inquiries end up resulting in a special prosecutor being appointed.
Posted by: lisa renee at August 10, 2005 01:56 PMAP… I stand corrected in my statement to appoint one… However, per Lisa’s post there is a way to at least get the ball rolling using a congressional investigation. Bearing that in mind I am left pondering why the Libs are not pushing for that… Perhaps, again, because they have no actual evidence and would look like fools if they were proved to be wrong? Guess my argument is back on the table.
Posted by: BradM at August 10, 2005 02:32 PMBradM, they have been pushing for it, and they have conducted some hearings aired on C-Span, however, Republicans refuse to take part and therefore the machinery that would lead to a floor vote on an official independent investigation is completely absent.
Conyers among others have been hunting this dog for quite some time now. In the absence of massive public pressure on the Rep.’s to join in, it goes nowhere.
Posted by: David R. Remer at August 10, 2005 02:42 PMDavid, Fair enough… I stand corrected again. I guess we will just see how it turns out.
Posted by: BradM at August 10, 2005 03:27 PMAllegations of torture are investigated. If proven, the guilty are punished. Abu Ghraib was completely against policy. The perpetrators were tried and guilty were punished. There is no torture policy and not applying the Geneva Convention to the prisoners has no bearing on that. Under the terms of the Geneva Convention, in fact, it could go much worse for many of them, since they could have been executed as spies or saboteurs when they were caught behind enemy lines out of uniform.
The definition of torture is important. We all agree that severe beatings or mutilations are torture. Being made uncomfortable, uneasy or unsure probably is not. My general rule would be that any type of discomfort or indignity that I have suffered crossing the ocean in tourist class really couldn’t be called torture. Rendition is also a dilemma. When we decide to send the Guantanamo prisoners to their home countries, what happens? It would be truly ironic if terrorists earned the right of asylum in the U.S. by shooting at our troops.
Discussions about who is to blame are fruitless, since we will never come to any conclusions. There is absolutely nothing President Bush could do that would satisfy his most vociferous critics, which includes some people on this blog. They have decided he is guilty and are seeking an investigation to prove it. Any other outcome would be rejected and any thing that did come up would be amplified beyond reason. My advice to the President would be to proceed with lawful and appropriate investigations and ignore the screeching. It looks like that is what he is doing.
Jack, the reason there is no investigation is because the outcome is foreknown by all of those lawyers in Congress. The laws in this land regarding such things are pretty clear and unequivocal. The laws as written are not sufficient to indict Bush/Cheney/Rumsfeld. However, the conclusion that Bush/Cheney’s/ and Rumsfeld’s public statements and directives to the DoD regarding the Geneva C. inapplicability led directly to the abuses committed via interpretation and confusion between DoD policy and statements of the administration would be pretty unavoidable once the testimony of the investigation was made public record.
And that is why there will be no investigation. Many in the military, a few in the Justice Dep.t, and a few in the CIA have already said or testified to this. But to have the obvious put on C-Span and made public record altogether in one place for the media to capture and report on would be devastating to this administration despite the inevitable lack of indictments for lawbreaking.
We don’t indict poor leadership nor ignorant leadership, nor foolish leadership, nor leadership which violates law by proxy through agents below them who can preserve plausible deniability for the upper chain of command.
Posted by: David R. Remer at August 10, 2005 07:31 PMThe Army’s Criminal Investigation Command concluded that there was probable cause to charge 27 officers and enlisted personnel with criminal offenses in the Dilawar case ranging from dereliction of duty to maiming and involuntary manslaughter. Last I heard only 7 had been charged and Dilawar was killed in 2002.
One of them was just tried for her part in his death and how much jail time did she get? None.
Her sentence? A reduction in rank to corporal or specialist, a letter of reprimand and forfeiture of $250 a month for four months.
Posted by: lisa renee at August 10, 2005 07:46 PMSorry I was out of town today & couldn’t post until now.
In order to be explicit, I think that some of the commenters are missing my point. Whatever anyone on the Right or the Left or the Middle believes to be the facts at this point in time is wholly immaterial. The germane question is who, if anyone, violated the federal criminal law against the commission of war crimes. The Army isn’t empowered to conduct an investigation of this nature, only a special prosectuor can do so. And I, for one, would hope that this investigation would not indict senior government officals. But I think we deserve to know the truth, whatever it is.
We’re so used to playing “gotcha” politics and “gotcha” journalism that every political exercise begins inductively rather than deductively.
I know that there isn’t any proof yet, but that’s why you investigate, for crying out loud, to find the proof! If a handful of sadistic grunts went over the line and that’s it, fine. If there’s a memo from Bush somewhere that says, “Torture the bastards!”, fine. If there’s somebody in the bowels of the CIA or the Pentagon that said, “Well, I think that we’re covered if we have to use inhumane treatment”, fine. Whatever. I just believe that, on the basis of the memos, probable cause exists to conduct a thorough, fair and imparital investigation. We deserve to know.
I’d simply like to ask Mr. Gonzales, under oath, what he meant when he wrote in his memo,
“As you [President Bush] have said, the war against terrorism is a new kind of war… .The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their supporters… . this new paradigm renders obsolete Geneva’s strict limitations on [the] questioning of enemy prisoners and renders quaint some of its provisions… .”Exactly what methods did he have in mind in order to “quickly obtain information from captured terrorists”? Cutting off their X-box privileges? Sending them to bed without their suppers? Calling them nasty names? Beating them to within an inch of their lives? Specifically, which “obsolete” provisions of our legally binding treaty did he have in mind? Which “strict limitations” did he advocate ignoring? Did this “new paradigm” render humane treatment of prisoners “quaint”? Who’s idea was it to come up with the diplomatic maneuver of overriding the State Department and suspending the Geneva Conventions for the Taliban in order to provide legal cover against future prosecutions for the commission of war crimes?
I think that these are important questions that deserve to be answered in an open democracy. Hell, we’re throwing reporters in jail to answer the question of “What did Bob Novack know, and when did he know it.” After all, somebody taught that kid in Bagram how to beat the primordial nerve. And somebody told him to teach it. And somebody probably told him. And, to quote Yul Brynner, “Etcetera, etcetera, etcetera.” Who made that first decision: “We’ve got to do whatever it takes, including inhumane treatment, to break these guys down. So let’s do it.” That’s the guy who I want to see behind bars. Was it a civilian interrogator? Was it a military officer? Was it an overzealous grunt? Was it a CIA operative? Was it the Secretary of Defense? Was it the President of the United States? We deserve to know.
Remember Watergate. When the investigation began, very few people thought that Nixon actually approved the break-in. That’s the point of an investigation: not to begin with an agenda but to discover the truth, wherever it leads. Not to dig up dirt on a public offical in order to substantiate a pre-formed conclusion, but to punish people who’ve violated our laws.
I’m not talking here about Bush’s or Rumsfled’s moral culpability. They have to live with the consequences of their actions, I don’t. I’m talking about their legal culpability. If they’re innocent, I’ll breathe a sigh of relief. I don’t want to think that we could entrust people who would sanction war crimes to the most powerful postions in our government. But I think that I deserve to know what happened and why. Why did our government override the Secretary of State and suspend the Geneva Conventions? Did they think that doing so could engender gross breaches of international law? What did they do to ensure that those kind of actions did not occur?
And I think that all of us, regardless of our political affiliation, deserve to know the answers to these questions, as well.
PS - AP, as much as I have to hold my nose when I say this, the only practical thing I can think of is to vote Democratic in 2006. Unless the opposition party is in the majority in the Senate, we’ll never see an investigation.
PPS - Rocky, I was wondering why my shoes were wet.
Posted by: Chuck Hanrahan at August 10, 2005 09:21 PMBrad M:
“Long live King George! :-)”
You sound like or at least it appears that you are a Highly Intelligent Adult but you are way behind the times “W” as the insiders call him. You know the guys Hewey, Dewey, & Loowey…Aka Trickie Dick, Rove, and Uncle Rummy. They’ve been calling him Emporer George II, for months now. Get with the program, will ya. I mean ggeeezz.**
**Story and names provided only for reading enjoyment
Posted by: Wayne at August 11, 2005 07:06 PMIf you happen to be on the sidewalk when someone ups and shoots and kills another person where self-defense is not an issue, the outcome of the trial is relevant as to whether there is a legal verdict against the accused but you would know that he committed the crime. We have all seen George W. order the killing of people in what is clearly an illegal war and therefore he is guilty of war crimes. I have recently published a book titled “LYING FOR EMPIRE: HOW TOP COMMIT WAR CRIMES WITH A STRAIGHT FACE” (http://lyingforempire.blogspot.com) in which I examine in detail the evidence that George W. (as well as 7 other presidents)is guilty of war crimes.
Posted by: David Model at August 16, 2005 08:09 PM
