Published on Friday, December 19, 2008 by CommonDreams.org
Under the doctrine of command responsibility, enshrined in U.S. law, commanders all the way up the chain of command to the commander-in-chief can be held liable for war crimes if they knew or should have known their subordinates would commit them and they did nothing to stop or prevent it.
Why is Cheney so sanguine about admitting he is a war criminal? Because he’s confident that either President Bush will preemptively pardon him or President-elect Obama won’t prosecute him.
Both of those courses of action would be illegal.
First, a president cannot immunize himself or his subordinates for committing crimes that he himself authorized. On February 7, 2002, Bush signed a memo erroneously stating that the Geneva Conventions, which require humane treatment, did not apply to Al Qaeda and the Taliban. But the Supreme Court made clear that Geneva protects all prisoners. Bush also admitted that he approved of high level meetings where waterboarding was authorized by Cheney, Condoleezza Rice, John Ashcroft, Colin Powell, Donald Rumsfeld and George Tenet.
Attorney General Michael Mukasey says there’s no need for Bush to issue blanket pardons since there is no evidence that anyone developed the policies “for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful.” But noble motives are not defenses to the commission of crimes.
Lt. Gen. Antonio Taguba, who investigated the Abu Ghraib scandal, said, “There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”
Second, the Constitution requires President Obama to faithfully execute the laws. That means prosecuting lawbreakers. When the United States ratified the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, thereby making them part of U.S. law, we agreed to prosecute those who violate their prohibitions.
The bipartisan December 11 report of the Senate Armed Services Committee concluded that “senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.”
Lawyers who wrote the memos that purported to immunize government officials from war crimes liability include John Yoo, Jay Bybee, William Haynes, David Addington and Alberto Gonzales. There is precedent in our law for holding lawyers criminally liable for participating in a common plan to violate the law.
Committee chairman Senator Carl Levin told Rachel Maddow that you cannot legalize what’s illegal by having a lawyer write an opinion.
The committee’s report also found that “Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantánamo Bay was a direct cause of detainee abuse there.” Those techniques migrated to Iraq and Afghanistan, where prisoners in U.S. custody were also tortured.
Pardons or failures to prosecute the officials who planned and authorized torture would also be immoral. Former Navy General Counsel Alberto Mora testified to the Senate Armed Services Committee in June 2008 that “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.”
During the campaign, Obama promised to promptly review actions by Bush officials to determine whether “genuine crimes” were committed. He said, “If crimes have been committed, they should be investigated,” but “I would not want my first term consumed by what was perceived on the part of the Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”
Two Obama advisors told the Associated Press that “there’s little-if any – chance that the incoming president’s Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.”
When he takes office, Obama should order his new attorney general to appoint an independent prosecutor to investigate and prosecute those who ordered and authorized the commission of war crimes.
Obama has promised to bring real change. This must be legal and moral change, where those at the highest levels of government are held accountable for their heinous crimes. The new president should move swiftly to set an important precedent that you can’t authorize war crimes and get away with it.




BOOKS-US: “A Policy of Deliberate Cruelty”
September 11, 2008By Mark Weisenmiller | Inter-Press Service News
TAMPA, Florida, Sep 10 (IPS) – Perhaps the most thorough and informative book about the George W. Bush administration’s approval of the use of torture and “extraordinary renditions” of alleged terrorists to third countries has continued to stay on bestseller lists.
First published in July, “The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals” (Doubleday) by Jane Mayer is still listed among the top 10 nonfiction best-selling books of 2008 by The New York Times.
In the book, Mayer, a reporter for The New Yorker magazine, shows in detail how high-level officials of the Bush administration, particularly in the office of Vice President Dick Cheney, took advantage of the fear and paranoia that gripped the country after the terrorist attacks of Sep. 11, 2001 to launch “an ideological trench war” and “a policy of deliberate cruelty that would’ve been unthinkable on Sept. 10”.
While Bush supported the overall strategy, he was almost a minor player, Mayer reports. “President Bush is not typically interested in fine details. He left those to others in the formation of the military commissions, and other areas,” she told IPS.
Arguably, the two administration officials whose post-9/11 policy decisions are most responsible for leaving the United States’ “reputation as a lead defender of democracy and human rights…in tatters”, in Mayer’s words, were Cheney and his Chief of Staff David Addington, whom Mayer notes the vice president came to rely on heavily for legal advice in prosecuting the “war on terror”.
In June this year, Addington was subpoenaed to testify before the House Judiciary Committee — along with former Justice Department attorney John Yoo — about detainee treatment, interrogation methods and the limits of executive authority.
Mayer, who was in the room when Addington testified, said “I…was struck by his utter contempt for both the Congressional panel that was quizzing him, and the gathering press.”
“He evidently thought that hauteur was the way to win the day, which was another example of his astoundingly poor political sense…I think at the moment, it’s a stretch to think that there is the necessary political will to prosecute top administration figures like Addington, who could argue that they were simply doing what they thought was necessary to protect the country.”
Regarding Cheney, she writes in “The Dark Side” that the vice president lived in such a state of anxiety after the 9/11 attacks that “…he was chauffeured in an armoured motorcade that varied its route to foil possible attackers. On the back seat behind Cheney rested a duffle bag stocked with a gas mask and a biochemical survival suit.”
Mayer asked repeatedly to interview Addington and Cheney and was refused. A one-paragraph statement by the CIA, regarding the conduct of its agents in the interrogation of alleged terrorists, is on the last page of “The Dark Side”.
However, she did manage to interview hundreds of sources in and around the Bush White House, as well as sources from the Red Cross, compiling a grim picture of interrogation and abuse of prisoners in Iraq, Guantanamo Bay and elsewhere.
The book describes the use of alleged forms of torture by members of a little-known U.S. military programme called SERE (Survival, Evasion, Resistance, and Escape). It also explores the CIA’s hiring of psychologists of questionable abilities and morals, who proceeded to encourage the use of interrogation methods that were created decades ago, ironically enough by the former Soviet Union’s KGB secret police agency, and points out how essentially no piece of relevant information has ever resulted from such interrogations.
Mayer also looks at renditions, the transfer of suspected terrorists by U.S. authorities, mainly the CIA, to countries known to employ harsh interrogation techniques and torture. Asked if she believed that renditions were still being done by U.S. government agents, even though the practice has now been exposed by the world’s media, Mayer told IPS, “After the bad publicity surrounding them, there is likely a greater effort to ensure that they (U.S. government agencies) are not ‘rendering’ mistaken suspects, or sending them to be tortured, in contravention of the law, but the programme exists in a classified realm where this is hard to determine.”
Among the many disturbing incidents recounted in the book is the last night of Manadel al-Jamadi.
He was an Iraqi suspect who was detained outside of Baghdad at approximately four a.m. local time on Nov. 4, 2003. “An hour later, he was dead. An autopsy performed by military pathologists classified his death as a homicide,” writes Mayer.
She goes on to report that “Jamadi was driven first to an Army base for debriefing, where the (U.S. Navy special forces unit) SEALs punched, kicked, and struck him with their rifle muzzles for some 20 minutes.” Jamadi was later interrogated by CIA operatives at Abu Ghraib prison, where he was hung up by his wrists, and subsequently killed.
Eight members of the SEALs platoon received administrative punishment for abuse of al-Jamadi and other prisoners, but Mark Swanner, the CIA interrogator, has faced no charges.
“I hope readers (of “The Dark Side”) come away with a vivid sense of how far from American traditions the Bush administration strayed in choosing to set aside the rule of law, in it’s approach to the war on terror,” noted Mayer. “There have been other lapses in the past, but as Arthur Schlesinger Jr., the late presidential historian told me ‘Nothing has hurt America more (in the world) ever.’.”
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Tags:Bush administration, Dick Cheney, Jane Mayer, John Yoo, Manadel al-Jamadi, renditions, SERE and torture, The Dark Side, United States, war on terror
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