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November 30, 2004

Setting the Conditions for War Crimes

I was drafted in 1967 and I served in Vietnam for 1 year … So this area was mostly all free-fire zones. So it was with this understanding that it was a free-fire zone that everything was fair game. If at any time you saw people in any way trying to avoid you or run away or make suspicious movements, that was free game. You could go ahead and shoot them and kill them. – Testimony of Guadalupe G. Villarreal, Dellums (House of Representatives) War Crimes Hearings, Apr. 28, 1971, Washington D.C.

Thirty-six years later, NBC war correspondent Kevin Sites, embedded with the U.S. Marines in Fallujah, wrote in his November 10 blog: “The Marines are operating with liberal rules of engagement.” Sites heard Staff Sgt. Sam Mortimer radio that “everything to the west is weapons free.” Weapons Free, explained Sites, “means the Marines can shoot whatever they see – it’s all considered hostile.” On November 13, Sites videotaped a U.S. Marine killing an unarmed, wounded Iraqi in a Fallujah mosque.

During the U.S. attack on Fallujah, dubbed “Operation Phantom Fury,” Associated Press photographer Bilal Hussein saw U.S. soldiers “open fire on the houses.” Hussein also reported seeing U.S. helicopters fire on and kill people, including a family of five, who tried to cross the river.

“A large number of people including children were killed by American snipers,” according to the Independent (U.K.). Civilians who remained in Fallujah “appeared to have been seen as complicit in the insurgency,” the Independent reported. “Men of military age were particularly vulnerable. But there are accounts of children as young as four, and women and old men being killed.”

Free fire zones, and indiscriminate killing of civilians, which constitute willful killing, are grave breaches of the Geneva Conventions. The U.S. War Crimes Act considers grave breaches of Geneva to be war crimes, which can result in the death penalty for those convicted.

Criminal liability for war crimes extends beyond the perpetrator. Under the doctrine of command responsibility, higher-ups can be just as liable if they knew or should have known their underlings were committing war crimes, but they failed to stop or prevent it. Commanders have a responsibility to make sure civilians are not indiscriminately hurt and that prisoners are not summarily executed.

The rules of engagement are set at the top. The Marines are being told they can fire at anything that moves. Before entering Fallujah, the Marines had been pumped up by tough talking superiors.

Fighting in Fallujah was grueling urban warfare. Sites wrote that the Marine who killed the wounded Iraqi in the mosque had reportedly been shot in the face himself the day before.

When Sites saw the Marine shoot the unarmed, wounded man, Sites reported, “I feel the deep pit of my stomach.” He told the lieutenant “that this man – all of these wounded men – were the same ones from yesterday. That they had been disarmed, treated and left here. At that point the Marine who fired the shot became aware that I was in the room. He came up to me and said, ‘I didn’t know sir – I didn’t know.’ The anger that seemed present just moments before turned to fear and dread.” By speaking up, Sites prevented other injured Iraqis from meeting a similar fate in that mosque.

After Sites’s report became public, there was a great outcry. Interim Iraqi prime minister Ayad Allawi said he was “very concerned” about the fatal shooting. United Nations High Commissioner for Human Rights Louise Arbour called for an investigation of allegations of the disproportionate use of force and the targeting of civilians in Fallujah. Clips from Sites’s videotape were seen around the world, and aired repeatedly on Al-Jazeera televison. Many who saw the shooting are convinced the soldier committed a willful killing, a war crime.

The Headquarters of the United States Central Command announced that the First Marine Division had initiated an investigation “to determine whether the Marine acted in self-defense, violated military law or failed to comply with the Law of Armed Conflict [Geneva Convention].”

In order to mount a successful self-defense, the Marine would have to demonstrate he had an honest and reasonable belief in the need to defend himself or his fellow Marines against imminent death or great bodily injury, just before he fired the fatal shot.

His lawyer might argue that when he shot the Iraqi in the mosque, the Marine was suffering from post-traumatic stress disorder (PTSD), which afflicted 30 percent of Vietnam veterans. PTSD can occur following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury during military combat. The person can experience a dissociative state lasting from a few seconds to several hours or days. “Psychic numbing” or “emotional anesthesia” usually begins soon after the traumatic event. An “exaggerated startle response” may occur.

One in six soldiers returning from Iraq are suffering from PTSD, according to mental health experts. A study by the Walter Reed Army Institute found that 15.6 percent of Marines and 17.1 percent of soldiers surveyed may suffer from PTSD.

Seymour Hersh uncovered the cover-up of the My Lai Massacre during the Vietnam War, where U.S. soldiers killed up to 500 unarmed old men, women and children. Hersh, in interviews on MSNBC, PBS and Fox News, is now talking about what happens when we send young kids off to war. He does not deny that these kids can do bad things. But, “the Army is in loco parentis,” he says. “They’re your mother and father. And they have an obligation to protect you from yourself, almost, from some of your instincts.”

A senior Pentagon consultant told Hersh that George W. Bush, Donald Rumsfeld and Steven Cambone, undersecretary of defense for intelligence, “created the conditions that allowed transgressions to take place.” The consultant was referring to torture at Abu Ghraib prison in Iraq. He could just as well have been talking about Operation Phantom Fury.

November 22, 2004

Litigating the Election

Without much fanfare, a number of lawyers are busy mounting court challenges to the election. Lawsuits have been filed and other actions are being taken in Ohio and Florida, the two key electoral states. Members of Congress have demanded a General Accountability Office investigation of the election. The largest Freedom of Information Act request in the nation’s history has been launched, and other efforts are in the works.

Is there substance to these challenges? On Thursday, the University of California’s Berkeley Quantitative Methods Research Team released a statistical study – the sole method available to monitor the accuracy of e-voting – reporting irregularities associated with electronic voting machines may have awarded 130,000-260,000 or more excess votes to Bush in Florida. The three counties where the voting anomalies were most prevalent were also the most heavily Democratic: Broward, Palm Beach and Miami-Dade, respectively. The official tally in Florida shows Bush with 380,978 more votes than Kerry.

Recount, Lawsuits, Hearings in Ohio

Green Party candidate David Cobb and Libertarian Party candidate Michael Badnarik have sought a recount of the votes in Ohio. A demand for a recount can only be filed by a presidential candidate who was on the ballot or a certified write-in candidate. Alleged improprieties in Ohio include mis-marked and discarded ballots, problems with electronic voting machines, and the targeted disenfranchisement of African-American voters. Although a recount doesn’t typically begin until after the vote has been certified (December 6), Cobb and Badnarik have asked for the recount to proceed forthwith for fear there won’t be sufficient time to complete the recount in time for the December 13 date on which the Ohio presidential electors will meet.

Bush now leads Kerry by about 136,000 votes in Ohio. A battle is looming over nearly 155,000 provisional ballots, which might decide who really won the election. The Ohio Democratic Party has joined a lawsuit by elector Audrey J. Schering, which asks U.S. District Judge Michael H. Watson to order Ohio Secretary of State Kenneth Blackwell to impose uniform standards for counting provisional ballots on all 88 counties. The lawsuit cites the U.S. Supreme Court’s opinion in Bush v. Gore, which “held that the failure to provide specific standards for counting of ballots that are sufficient to assure a uniform count statewide violates the Equal Protection Clause of the United States Constitution.” Attorney Donald J. McTigue, who filed the suit, told me that although many of the provisional ballots are being counted, his client is concerned about those that are not being counted. Blackwell has provided only limited instruction about which provisional ballots to count. But many doubts remain about how different election boards determine whether someone is a registered voter. Some may type the name in on a computer; others may look for typographical errors; still others may look at the hard copy. McTigue worries that there is no way of knowing what each board is doing. Do they go back to the purged files? Were they properly purged?

Of the 11 counties that had completed checking provisional ballots by Wednesday, 81 percent have been ruled valid. McTigue expects the counting of provisional ballots to last at least two more weeks.

On Election Day, Sarah White filed a class action against Blackwell and the Board of Elections of Lucas County, claiming they violated the Help America Vote Act, passed in the wake of the 2000 election debacle, that gives voters in federal elections a right to cast provisional ballots. White claimed that although she requested an absentee ballot one month before the election, she never received one. Blackwell ruled that persons who had requested, but not received their absentee ballots, would not be permitted to cast a provisional ballot. U.S. District Judge David A. Katz, however, ordered that “the Board of Elections of Lucas County shall immediately advise all precincts to issue provisional ballots to those voters who appear at the voting place and assert their eligibility to vote, including that the voter is a registered voter in the precinct in which he or she desires to vote, and that the voter is eligible to vote in an election for Federal office.”

Last week, the Ohio Election Protection Coalition held public hearings in Columbus. Extensive sworn and written testimony of Ohio voters, precinct judges, poll workers, legal observers, and party challengers revealed a widespread and concerted effort by Blackwell to deny primarily African-American and young voters the right to cast their ballots within a reasonable time. Precincts were deprived of adequate numbers of voting machines, so voters waited in lines from 2-7 hours, even though 68 electronic voting machines remained in storage and were never used on Election Day. Blackwell, who oversaw the election in Ohio, also served as co-chair of the Ohio Bush-Cheney reelection campaign. Lawyers for the Ohio Election Protection Coalition plan to use the testimony from the Columbus hearings to challenge the results of Ohio’s presidential vote in the state Supreme Court next week.

Lawsuits in Florida

On Election Day, the American Civil Liberties Union of Florida and Florida Legal Services sued Miami-Dade County and Broward County election officials in U.S. District Court for denying voters sufficient time to mail in absentee ballots. The Broward County Supervisor of Elections sent 13,300 absentee ballots to voters late. Plaintiffs Fay Friedman, Adam Meyer, and Daniel Benhaim claimed the two counties violated the Civil Rights Act of 1964 and the First and Fourteenth Amendments because they did not receive their absentee ballots until Election Day, and it was therefore impossible to comply with state law requiring persons who are out-of-state but present in the U.S. to submit absentee ballots by 7 P.M. on Election Day. Under Florida state law, a separate rule gives more time to absentee voters outside the U.S., who may postmark their ballots by November 2 as long as the ballot arrives within 10 days after the election. JoNel Newman, a Florida Legal Services attorney, says, “The rules governing absentee ballots should apply equally to every voter, whether they are temporarily in other parts of the country or overseas.” On Tuesday, U.S. District Court Judge Alan Gold denied plaintiffs’ motion for a preliminary injunction to include the late ballots in the final vote tally; however, the lawsuit remains alive for trial on a request to apply the late counting rule used for foreign absentees to domestic ballots.

Opponents of slot machines at South Florida pari-mutuels filed a lawsuit seeking an official recount of about 78,000 absentee ballots cast in Broward County on Amendment 4. About 94 percent of the new votes on the amendment were “yes” and only 6 percent were “no,” a “statistical anomaly.” No hearing has yet been scheduled on the case.

Recount in New Hampshire

Pursuant to a request by Ralph Nader, votes in some New Hampshire towns are being recounted. An analysis showed wide differences in voting trends between the 2000 and 2004 elections; about three quarters of precincts with severe changes used Diebold optical scanning machines. Last week, Diebold agreed to pay $2.6 million to settle a lawsuit with the state of California. Diebold officials misled state leaders about the security and certification of its products to get payments from the state, according to California Attorney General Bill Lockyer. Diebold is headed by Republican CEO Wally O’Dell. Last year, O’Dell wrote to Ohio Republican donors, saying he was “committed to helping Ohio deliver its electoral votes to the President next year.”

Lawsuits Challenge Mayoral Results in San Diego

Election results in San Diego’s mayoral race remain in doubt. The unofficial tally shows Mayor Dick Murphy the victor. But write-in votes for Donna Frye have been excluded because voters did not darken the oval on the left of the line where they wrote in Frye’s name. A lawsuit seeks to force the county registrar of voters to count the excluded write-in votes, which many believe will tip the results in her favor. Two other lawsuits are attempting to have Frye’s candidacy ruled illegal and force a runoff between Murphy and Supervisor Ron Roberts. Frye ran on a platform critical of Murphy’s financial leadership and the culture of secrecy at City Hall.

Congressmen Request GAO Investigation

Three members of Congress – John Conyers, Jr., Jerrold Nadler, and Robert Wexler – wrote to the Government Accountability Office on November 5, requesting an immediate investigation of the efficacy of voting machines and new technologies used in the 2004 election, how election officials responded to difficulties they encountered, and what we can do in the future to improve our election systems and administration. The Congressmen cited an electronic voting system in Columbus, Ohio, that gave Bush 4,000 extra votes; an electronic tally of a South Florida gambling ballot initiative that failed to record thousands of votes; a North Carolina county that lost more than 4,500 votes due to a mistaken belief by officials that a computer that stored ballots could hold more data than it did; a substantial drop off in Democratic votes in proportion to voter registration in counties utilizing optical scan machines that was apparently not present in counties using other mechanisms; and numerous reports from Youngstown, Ohio, as well as Palm Beach, Broward and Dade counties in Florida, that voters who attempted to cast a vote for John Kerry on electronic voting machines saw their votes instead recorded as votes for Bush.

Freedom of Information Act Requests

Blackboxvoting.org, a nonpartisan, nonprofit consumer protection group for elections, has filed the largest Freedom of Information Act request in history. It seeks the internal computer logs (which are public records ) from voting machines from every county that used electronic voting machines. The organization has initiated fraud investigations in selected counties. It needs lawyers to enforce public records laws, as well as computer security professionals and citizen volunteers.

Open Records Act Motions

Cindy Cohn, Legal Director of the Electronic Frontier Foundation in San Francisco, told me that independent testing of voting machines could shed light on why so many people who tried to vote for Kerry saw their votes registered for Bush. Her organization is moving under the Open Records Act, which allows people to see government records, to gather information, including the impoundment of voting machines, in some counties in Florida, Ohio, New Mexico and Pennsylvania that had serious problems with the machines. Local counsel are needed to help with this effort. Cohn can be contacted at cindy@eff.org.

Results Not Final Until January

Although John Kerry conceded that George W. Bush won the election, a candidate’s concession is not legally binding. Electors will be certified on December 7, which gives a presumption of legitimacy to the vote; but electors actually vote on December 13. These votes are not opened by Congress until January 6, so there is still time to challenge the results in key states such as Ohio and Florida. A challenge requires a written objection from one House member and one senator. If that objection is recorded, both Houses separate again and they vote by majority vote as to whether to accept the slate of electoral votes from that state.

Bush is claiming he has a mandate, planning to spend his “political capital.” Curiously, virtually all of the so-called “anomalies” in the voting results favor Bush. The electors have not yet voted; the election results are not yet final. In the words of Yogi Berra, “It’s not over until it’s over.”

November 16, 2004

Crimes of Fallujah and the Continuation of Aggressive War

US Supreme Court Justice Robert Jackson was chief prosecutor at the Nuremberg Tribunal. In his report to the State Department, Justice Jackson wrote: “No political or economic situation can justify” the crime of aggression. He also said: “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.”

Between 10,000 and 15,000 U.S. troops with warplanes and artillery have invaded Fallujah. To “soften up” the rebels, American forces dropped five 500-pound bombs on “insurgent targets.” The Americans destroyed the Nazzal Emergency Hospital in the center of town. They stormed and occupied the Fallujah General Hospital, handcuffing doctors and patients, in violation of the Geneva Conventions.

Before Bush attacked Fallujah, Haji Mahmood Allawi, a former colonel in the Iraqi army said, “We are just a helpless and feeble town; a town like an old man! Still, the U.S. is accumulating its armies and troops against Fallouja … as if Fallouja is a superpower that stands in the face of America … If you look at what is arrayed against Fallouja, you would think World War III was going to take place.”

The battle of Fallujah is more shocking and aweful than the bombardment of Baghdad that kicked off Operation “Iraqi Freedom” in April 2003. A senior Marine Corps surgeon warned that casualties will surpass any level seen since the Vietnam War.

A reporter working for the London Times reported that on his first night in Fallujah, the U.S. Air Force attacked in waves from just after midnight to just after 5 a.m. “I began to count out loud,” he wrote, “as the bombs tumbled to the ground with increasingly monotonous regularity. There were 38 in the first half-hour alone.” The perimeter of the town is “already largely in ruins. The crumbling remains of houses and shell-pocked walls reminded me of my home town Beirut in the 1980s at the height of Lebanon’s civil war.”

There have already been 100,000 “excess” Iraqi deaths since Bush launched his first strike on Iraq 18 months ago – that is, above and beyond those killed by Saddam Hussein, sanctions, U.S. bombings, and disease, all put together, in the 15 months prior to the invasion.

A study published by the British medical journal The Lancet found that the risk of death by violence for Iraqi civilians is now 58 times higher than before Bush began to liberate them in April 2003.

“We had to stop some operations until the [U.S.] elections were over,” said a senior Iraqi Defense Ministry official, speaking on condition of anonymity. “The Iraqi government requested support from the American side in the past, but the Americans were reluctant to launch military operations because they were worried about American public opinion. Now, their hands are free.”

The Iraqi people, known in the media as “the insurgents,” are engaged in lawful resistance to the illegal invasion, regime change, and occupation of their country by U.S. and U.K. forces. Bush’s war in Iraq is a war of aggression. “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,” according to General Assembly Resolution 3314, passed in the wake of Vietnam.

The only two situations where the UN Charter permits the use of armed force against another state is in self-defense, or when authorized by the Security Council. Iraq had not invaded the U.S., or any other country, Iraq did not constitute an imminent threat to any country, and the Security Council never sanctioned Bush’s war. Bush and the officials in his administration are committing the crime of aggression.

Virtually every Western democracy has ratified the treaty of the International Criminal Court, except the United States. Bush knows that the Court will eventually prosecute leaders for the crime of aggression. Mindful that he and his officials could become defendants, Bush renounced the Court, and extracted bilateral immunity agreements from more than 80 countries.

This year, however, Bush unsuccessfully sought to ram through the Security Council an immunity resolution that would exempt U.S. personnel from the Court’s jurisdiction. But shortly after the photographs of U.S. torture of Iraqi prisoners emerged, the Council refused to put its imprimatur on preferential treatment for the United States.

Bush knows that the Court will also punish war crimes. Pursuant to policies promulgated by Bush and Rumsfeld, U.S. forces have engaged in widespread torture and inhuman treatment of prisoners in Iraq, Afghanistan, and Guantánamo Bay, Cuba. Bush admitted in his 2003 State of the Union address that he had sanctioned summary executions of suspected terrorists.

Torture, inhuman treatment, and willful killing are grave breaches of the Geneva Conventions, treaties ratified by the United States. Grave breaches of Geneva are considered war crimes under our federal War Crimes Act of 1996. American nationals who commit war crimes abroad can receive life in prison, or even the death penalty if the victim dies. Under the doctrine of command responsibility, a commander can be held liable if he knew or should have known his inferiors were committing war crimes and he failed to prevent or stop them.

The first U.S. attack on Fallujah, last April, killed 900-1000 people, mostly noncombatants. It was conducted in retaliation for the killing and mutilation of the bodies of four Blackwater Security Consulting mercenaries. Collective punishment against an occupied population for offenses committed by others also violates the Geneva Conventions.

Bush’s forces occupied the hospital because it was from there that the civilian death tallies emerged last April. That led to outrage throughout Iraq, outrage Bush wanted to avoid this time around.

Bush has sought to cover his crimes by putting an Iraqi face on his brutal war. Before the November invasion of Falluja, the New York Times reported: “Thousands of Iraqi troops have moved into position with their American counterparts and are expected to take part … American soldiers are to do most of the fighting on the way in, clearing the way for the Iraqi security forces to take control once the insurgents are defeated. With this method, Iraqi and American leaders hope for the best of both worlds: American muscle and an Iraqi face.”

If Bush were a student of history, he would realize that Iraqization, like Vietnamization, will fail to win the hearts and minds of the Iraqi people.

Working hand-in-glove with the U.S. government, interim puppet prime minister Iyad Allawi helped to soften up the rebels by declaring martial law throughout most of Iraq. His authority came from legislation the human rights minister characterized as “very similar to the Patriot Act of the United States.” It enables Allawi to conduct extensive surveillance, impose cordons and curfews, limit freedom of movement and association, and freeze bank accounts and seize assets.

“Iraqi confidence in the interim government has plummeted in recent months as the insurgency in Falluja and elsewhere has gained in strength and lethality,” according to The New York Times.

And although foreign Islamic extremists have joined the fight, most resisting the American occupation are Iraqi. “Didn’t the Americans bring with them the British and the Italians?”, asked Suhail al Abdali. “Well, we have multinational forces, too,” he said wryly. Then al Abdali added, “They will pay the price with the blood of American sons who came to occupy Iraq. They won’t take Fallujah unless they fight street to street, house to house.”

Twenty-six prominent Saudi scholars and preachers wrote in an open letter to the Iraqi people: “The U.S. forces are still destroying towns on the heads of their people and killing women and children. What’s going on in Iraq is a result of the big crime of America’s occupation of Iraq.” They stressed that armed attacks by militant Iraqi groups on U.S. troops and their allies in Iraq represent “legitimate resistance.”

“The attack on Fallujah is an illegal and illegitimate action against civilians and innocent people,” said the Association of Muslim Scholars, an influential Sunni clerics group. “We denounce this operation which will have a grave consequence on the situation in Iraq,” declared spokesman Mohammed Bashar al-Faidhi.

Baghdad University political science professor Salman al-Jumaili warns, “What happens in Fallujah will spread out across other Sunni cities, including Baghdad.” Al-Jumaili expects the Fallujah offensive will spin out of control, with fighting hop-scotching from one town to the next.

A senior U.S. diplomat agrees. “I would never tell you that violence in Sunni areas won’t get worse when you open up a battle,” he told the Los Angeles Times, on condition of anonymity.

Following the Holocaust, the International Military Tribunal at Nuremberg called the waging of aggressive war “essentially an evil thing . . . to initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

Bush’s aggressive war against the people of Iraq promises to kill many more American soldiers and untold numbers of Iraqis. Nuremberg prosecutor Justice Jackson labeled the crime of aggression “the greatest menace of our times.” More than 50 years later, his words still ring true.

November 13, 2004

The Quaint Mr. Gonzales

Most Republicans and many Democrats have hailed Bush’s nomination of White House counsel Alberto Gonzales for attorney general as a brilliant choice. Whereas John Ashcroft ruffled feathers with his coarse warnings that opponents of Bush’s post-9/11 agenda “only aid terrorists,” the soft-spoken Gonzales is much more palatable. And he’s Hispanic to boot, so the Bush cabinet diversity quotient won’t change when Colin Powell steps aside in the second term. Some Democrats will ask tough questions during Gonzales’s confirmation hearing. But it would be unseemly for Democrats to seriously challenge the nomination of the first Latino Attorney General of the United States.

The right-wing Republicans who propelled Bush to a second term are relieved Gonzales was tapped to head the Department of Justice, and not to be a justice of the Supreme Court. Gonzales’s views on abortion are too liberal for them, but they don’t see him doing damage to their “pro-life” position as the nation’s top cop. Tom Minnery, vice president for public policy at the Colorado-based Focus on the Family, confirmed that Gonzales would be objectionable as a judicial nominee because he does not have “strong pro-life beliefs.” However, Minnery’s group would support Gonzales’s appointment as attorney general.

But the New York Times reports that Republicans close to the White House claim the nomination of Gonzales for attorney general is “part of a political strategy to bolster Mr. Gonzales’s credentials with conservatives and position him for a possible Supreme Court appointment.” One Republican said the nomination hearings on Gonzales would also “get out of the way” the debate over the legal memos Gonzales prepared and supervised as White House counsel.

Notwithstanding his mild-mannered appearance, Gonzales is the iron fist in the velvet glove. Gonzales, whom Bush affectionately calls “mi abogado” (“my lawyer”), wrote one of the most outrageous torture memos. On January 25, 2002, Gonzales advised Bush that “the war on terrorism is a new kind of war, a new paradigm [that] renders obsolete Geneva’s strict limitation on questioning of enemy prisoners and renders some of its provisions quaint.”

Oh really? The “quaint” Geneva Conventions are treaties ratified by the United States, and therefore part of the supreme law of the land under our Constitution.

Gonzales also provided Bush with novel defenses against potential war crimes prosecutions that might result from torturing prisoners captured in Afghanistan. The 1996 War Crimes Act says that grave breaches of the Geneva Conventions are war crimes. Thus, the definition of war crimes includes torture, inhuman treatment, and willful killing, as well as outrages against personal dignity. Gonzales advised Bush that he could avoid allegations of war crimes by simply declaring that Geneva doesn’t apply to the war against the Taliban and Al Qaeda in Afghanistan.

When Colin Powell saw Gonzales’s memo, he reportedly “hit the roof.” Powell wrote a counter-memo to Gonzales and Condoleezza Rice, warning of the immense damage this could do to the United States – legally, politically, militarily, diplomatically, and morally. To declare that the Geneva Conventions did not apply, Powell wrote, “will reverse over a century of U.S. policy and practice in supporting the Geneva conventions, and undermine the protection of the law of war for our troops, both in this specific conflict and in general.”

Powell was right. The Geneva Conventions contain no loopholes that would allow the torture and inhuman treatment of prisoners. Even if a captive did not qualify for prisoner-of-war status under the Third Geneva Convention, he would be protected by the Fourth Geneva Convention on the treatment of civilians during wartime. And article 3 of both conventions prohibits torture, and humiliating and degrading treatment against anyone who is no longer fighting. It is well-established that article 3 applies to international, as well as internal, conflicts.

Bush didn’t listen to Powell. On February 7, 2002, Bush declared that Geneva would not apply to Al Qaeda. He added that he had “the authority to suspend Geneva as between the United States and Afghanistan,” but declined to exercise it at that time. Geneva “will apply to our present conflict with the Taliban,” Bush said. But then, in a striking example of double-speak, he determined they were “unlawful combatants,” ineligible for hearings to decide whether they were prisoners-of-war under the Third Geneva Convention. (Under the terms of Geneva, only a “competent tribunal” can make that determination). Bush also proclaimed that article 3 of Geneva didn’t apply to either Al Qaeda or the Taliban prisoners.

After the pornographic torture photos, and memos justifying torture, leaked out last April, it was Gonzales who was charged with damage control. While being run out of town, Gonzales made it look like a parade by releasing more memos – though not all of them, then admitting to reporters that Team Bush “felt that it was harmful to this country, in terms of the notion that perhaps we may be engaging in torture.”

Another controversial memo, dated August 1, 2002, from the Justice Department’s Office of Legal Counsel to Gonzales, was one of the leaked documents. It opined that under the president’s powers as commander in chief, interrogators who torture Al Qaeda or Taliban prisoners could be exempt from torture prosecutions.

Gonzales, still trying to stem the rising tide of outrage, said the August memo and another one from the Pentagon had only been meant to “explore the limits of the legal landscape.” To his knowledge, said Gonzales, they “never made it to the hands of soldiers in the field, nor to the president.”

In his January 25, 2002 memo, Gonzales also outlined plans to use military commissions to try prisoners, in order to deny them due process protections afforded by military and civilian courts. In a significant defeat for the Bush administration, a federal district court judge in Washington D.C. ruled earlier this week that the military commissions violate the Geneva Conventions, and were unlawfully constituted because Congress had not authorized them. The military commissions have been suspended indefinitely.

Gonzales’s sordid record goes beyond his apologies for torture of prisoners. When he was counsel to Texas Governor George W. Bush from 1995 to 1997, Gonzales provided his boss with “scant summaries” on capital punishment cases that “repeatedly failed to apprise the governor of crucial issues: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence,” according to the Atlantic Monthly.

Gonzales prepared 57 such summaries, including one regarding the case of Terry Washington, a mentally retarded man executed for murdering a restaurant manager. The jury was never told about his mental condition. Gonzales’s three-page summary of the case for Bush mentioned only that Washington’s defense counsel’s 30-page plea for clemency (which covered the mental competency issue) was rejected by the Texas parole board. Bush refused to stay executions in 56 of the 57 cases in which Gonzales wrote abbreviated memos.

Moreover, Gonzales helped write the USA Patriot Act, and managed Bush’s selection of judicial nominees, most of whom had to pass a right-wing ideological litmus test. (See my editorial, Bush’s Judges: Right-Wing Ideologues.)

When Gonzales was Chief Justice of the Texas Supreme Court, Dick Cheney’s Halliburton was the second-largest corporate contributor to Texas Supreme Court races. Over a seven-year period, five Halliburton cases went before that court, and it consistently ruled in favor of Halliburton. And although Gonzales lawfully accepted $14,000 from Enron, he did not recuse himself from the administration’s investigation of the Enron scandal when he was White House counsel.

From 2000 to the present, Gonzales led the Bush administration’s obstruction of Government Accountability Office access to documents from Cheney’s secret energy policy meetings.

Alberto Gonzales has been a loyal foot soldier, walking in lockstep with George W. Bush, for years. As head of the Justice Department, we cannot expect Gonzales to lead independent investigations of the widening probe of Halliburton, or the illegal leak of the identity of a CIA agent by an official of the Bush administration.

In spite of opposition to Gonzales’s nomination by public interest groups such as the Center for Constitutional Rights and Human Rights Watch, Democratic Senator Joseph Biden said “I think he’s a pretty solid guy.”

Unless the Democrats in the Senate show some backbone, and block the nomination of Alberto Gonzales with the only arrow left in their quiver – the filibuster, we will be saddled with another attorney general who mounts vicious assaults on our civil rights.

November 9, 2004

Aggressive War: Supreme International Crime

Associate United States Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. In his report to the State Department, Justice Jackson wrote: “No political or economic situation can justify” the crime of aggression. He also said: “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.”

Between 10,000 and 15,000 U.S. troops with warplanes and artillery have begun to invade the Iraqi city of Fallujah. To “soften up” the rebels, American forces dropped five 500-pound bombs on “insurgent targets.” The Americans destroyed the Nazzal Emergency Hospital in the center of town. They stormed and occupied the Fallujah General Hospital, and have not agreed to allow doctors and ambulances go inside the main part of the city to help the wounded, in direct violation of the Geneva Conventions.

The battle of Fallujah promises to be far more shocking and aweful than the bombardment of Baghdad that kicked off Operation “Iraqi Freedom” in April 2003. A senior Marine Corps surgeon warned that casualties will surpass any level seen since the Vietnam War.

There have already been 100,000 “excess” Iraqi deaths since Bush launched his first strike on Iraq 18 months ago – that is, above and beyond those killed by Saddam Hussein, sanctions, U.S. bombings, and disease, all put together, in the 15 months prior to the invasion.

A study published by the Lancet found that the risk of death by violence for Iraqi civilians is now 58 times higher than before Bush began to liberate them in April 2003.

Bush’s war on Iraq is a war of aggression. “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,” according to General Assembly Resolution 3314, passed in the wake of Vietnam.

The only two situations where the UN Charter permits the use of armed force against another state is in self-defense, or when authorized by the Security Council. Iraq had not invaded the U.S., or any other country, Iraq did not constitute an imminent threat to any country, and the Security Council never sanctioned Bush’s war. Bush and the officials in his administration are committing the crime of aggression.

Virtually every Western democracy has ratified the treaty of the International Criminal Court, except the United States. Bush knows that the Court will eventually prosecute leaders for the crime of aggression. Mindful that he and his officials could become defendants, Bush renounced the Court, and extracted bilateral immunity agreements from more than 80 countries.

This year, however, Bush unsuccessfully sought to ram through the Security Council an immunity resolution that would exempt U.S. personnel from the Court’s jurisdiction. But shortly after the photographs of U.S. torture of Iraqi prisoners emerged, the Council refused to put its imprimatur on preferential treatment for the United States.

Bush knows that the Court will also punish war crimes. Pursuant to policies promulgated by Bush and Rumsfeld, U.S. forces have engaged in widespread torture and inhuman treatment of prisoners in Iraq, Afghanistan, and Guantánamo Bay, Cuba. Bush admitted in his 2003 State of the Union address that he had sanctioned summary executions of suspected terrorists.

Torture, inhuman treatment, and willful killing are grave breaches of the Geneva Conventions, treaties ratified by the United States. Grave breaches of Geneva are considered war crimes under our federal War Crimes Act of 1996. American nationals who commit war crimes abroad can receive life in prison, or even the death penalty if the victim dies. Under the doctrine of command responsibility, a commander can be held liable if he knew or should have known his inferiors were committing war crimes and he failed to prevent or stop them.

The first U.S. attack on Fallujah, last April, killed 900-1000 people, mostly noncombatants. It was conducted in retaliation for the killing and mutilation of the bodies of four Blackwater Security Consulting mercenaries. Collective punishment against an occupied population for offenses committed by others also violates the Geneva Conventions.

Bush has sought to cover his crimes by putting an Iraqi face on his brutal war. The New York Times reported: “Thousands of Iraqi troops have moved into position with their American counterparts and are expected to take part … American soldiers are to do most of the fighting on the way in, clearing the way for the Iraqi security forces to take control once the insurgents are defeated. With this method, Iraqi and American leaders hope for the best of both worlds: American muscle and an Iraqi face.”

If Bush were a student of history, he would realize that Iraqization, like Vietnamization, will fail to win the hearts and minds of the Iraqi people.

Working hand-in-glove with the U.S. government, interim puppet prime minister Iyad Allawi helped to soften up the rebels by declaring martial law throughout most of Iraq. His authority came from legislation the human rights minister characterized as “very similar to the Patriot Act of the United States.” It enables Allawi to conduct extensive surveillance, impose cordons and curfews, limit freedom of movement and association, and freeze bank accounts and seize assets.

“Iraqi confidence in the interim government has plummeted in recent months as the insurgency in Falluja and elsewhere has gained in strength and lethality,” according to The New York Times.

And although foreign Islamic extremists have joined the fight, most resisting the American occupation are Iraqi. “Didn’t the Americans bring with them the British and the Italians?” asked Suhail al Abdali. “Well, we have multinational forces, too,” he said wryly. Then al Abdali added, “They will pay the price with the blood of American sons who came to occupy Iraq. They won’t take Fallujah unless they fight street to street, house to house.”

Twenty-six prominent Saudi scholars and preachers wrote in an open letter to the Iraqi people: “The U.S. forces are still destroying towns on the heads of their people and killing women and children. What’s going on in Iraq is a result of the big crime of America’s occupation of Iraq.” They stressed that armed attacks by militant Iraqi groups on U.S. troops and their allies in Iraq represent “legitimate resistance.”

“The attack on Fallujah is an illegal and illegitimate action against civilians and innocent people,” said the Association of Muslim Scholars, an influential Sunni clerics group. “We denounce this operation which will have a grave consequence on the situation in Iraq,” declared spokesman Mohammed Bashar al-Faidhi.

Baghdad University political science professor Salman al-Jumaili warns, “What happens in Fallujah will spread out across other Sunni cities, including Baghdad.” Al-Jumaili expects the Fallujah offensive will spin out of control, with fighting hop-scotching from one town to the next.

A senior U.S. diplomat agrees. “I would never tell you that violence in Sunni areas won’t get worse when you open up a battle,” he told the Los Angeles Times, on condition of anonymity.

Following the Holocaust, the International Military Tribunal at Nuremberg called the waging of aggressive war “essentially an evil thing . . . to initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

Bush’s aggressive war against the people of Iraq promises to kill many more American soldiers and untold numbers of Iraqis. Nuremberg prosecutor Justice Jackson labeled the crime of aggression “the greatest menace of our times.” More than 50 years later, his words still ring true.

November 6, 2004

Torture of Prisoners in U.S. Custody

Major General Geoffrey Miller, the American commander in charge of detentions and interrogations at Abu Ghraib prison in Iraq, recently conducted an overnight tour of the facility for journalists.

He proudly displayed “Camp Liberty” and “Camp Redemption,” newly renovated in response to the torture scandal unleashed by the release of the disgusting photographs last spring.

Under the new system in place at Abu Ghraib, an interrogation plan is submitted to a lawyer for approval before any interrogation begins. The time required to process prisoners has been reduced from 120 to 50 days. Since July, 60% of the reviews have lead to releases.

Three hundred Iraqi prisoners were released on one day in September. Each walked away with $25 and a 12-page glossy pamphlet on Iraq’s interim government.

General Miller, the tour guide, oversaw interrogations at the United States prison at Guantánamo Bay, Cuba. He had been sent to Abu Ghraib last fall to transfer his interrogation system from Cuba to Iraq. It was on his watch that the worst mistreatment, depicted in the publicized photos, occurred.

Several official reports were written with more disturbing revelations. The International Committee of the Red Cross documented 70 – 90 % of those held at Abu Ghraib were there by mistake.

The reaction of the Bush administration to the revelations of torture was to prosecute seven low ranking soldiers.

In spite of calls for investigation of Secretary of Defense Donald Rumsfeld and President George W. Bush for complicity in the mistreatment, the prison torture scandal has been on the back burner in the national discourse.

The September release of Seymour Hersh’s book Chain of Command: The Road from 9/11 to Abu Ghraib, however, has put the issue back on the radar screen.

Rumsfeld testified before the Senate Armed Services Committee that his department was alerted to the abuse of prisoners at Abu Ghraib in January 2004. Rumsfeld told Bush in February about an “issue” involving mistreatment of prisoners in Iraq, according to a Senior White House aide.

These claims are disingenuous. The roots of Abu Ghraib, writes Hersh, lie in the creation of the “unacknowledged” special-access program (SAP) established by a top-secret order signed by Bush in late 2001 or early 2002. The presidential order 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. It was Rumsfeld who approved the use of physical coercion and sexual humiliation to extract information from prisoners. Rumsfeld and Bush set this system in motion long before January 2004. The mistreatment of prisoners at Abu Ghraib was part of the ongoing operation.

Hersch quotes a CIA analyst who was sent to the U.S. military prison at Guantánamo in late summer of 2002, to find out why so little useful intelligence had been gathered. After interviewing 30 prisoners, “he came back convinced that we were committing war crimes in Guantánamo.”

By fall 2002, the analyst’s report finally reached General John A. Gordon, the deputy national security adviser for combating terrorism, who reported directly to national security adviser Condoleezza Rice. Gordon was deeply distressed by the report and its implications for the treatment of captured American soldiers. He also thought “that if the actions at Guantánamo ever became public, it’d be damaging to the president.”

Gordon passed the report to Rice, who called a high-level meeting in the White House situation room. Rumsfeld, who had been encouraging his soldiers to get tough with prisoners, was present at the meeting. Yet Rice asked Rumsfeld “what the issues were, and he said he hadn’t looked into it.” Rice urged him to look into it: “Let’s get the story right,” she declared.

A military consultant with close ties to Special Operations told Hersh that war crimes were committed in Iraq and no action was taken. “People were beaten to death,” he said. “What do you call it when people are tortured and going to die and the soldiers know it, but do not treat their injuries?” the consultant asked rhetorically. “Execution,” he replied to his own question.

We should have seen it coming. In Bush’s January 2003 State of the Union Address, he said: “All told, more than 3,000 suspected terrorists have been arrested in many countries, and many others have met a different fate.” He added, “Let’s put it this way. They are no longer a problem for the United States and our friends and allies.”

Bush was admitting he had sanctioned summary execution, in direct violation of international, and United States, law.

The Bush administration has also admittedly engaged in the illegal practice of rendition, where people are sent to other countries to be tortured. The C.I.A. acknowledged in testimony before Congress that prior to 2001, it had engaged in about seventy “extraordinary renditions.”

In December 2001, for example, American operatives kidnapped two Egyptians and flew them to Cairo, where they were subjected to repeated torture by electrical shocks from electrodes attached to their private parts.

Rape, sodomy with foreign objects, the use of unmuzzled dogs to bite and severely injure prisoners, and beating prisoners to death have been documented at Abu Ghraib. Women beg their families to smuggle poison into the prisons so they could kill themselves because of the humiliation they suffered.

Allegations of routine torture have emerged from Mosul and Basra as well. “Some were burnt with fire, others [had] bandaged broken arms,” claimed Yasir Rubaii Saeed al-Qutaji. Haitham Saeed al-Mallah reported seeing “a young man of 14 years of age bleeding from his anus and lying on the floor.” Al-Mallah heard the soldiers say that “the reason for this bleeding was inserting a metal object in his anus.”

The army has charged one Sergeant with assault and other crimes, and is recommending that two dozen other American soldiers face criminal charges, including negligent homicide for mistreatment of prisoners in Afghanistan.

In September, three Americans running a private prison, but reportedly working with the CIA, were convicted of kidnapping and torture and sentenced to 8–10 years in prison by an Afghan court. Afghan police had reportedly found three men hanging from the ceiling, and five others were found beaten and tied in a dark small room.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty ratified by the U.S. and thus part of its binding domestic law, defines torture as follows: the infliction of severe pain or suffering for the purpose of obtaining a confession, discrimination, coercion or intimidation.

Torture, inhuman treatment, and willful killing are grave breaches of the Geneva Conventions, treaties ratified by the United States. Grave breaches of Geneva are considered war crimes under the U.S. War Crimes Act of 1996. American nationals who commit war crimes abroad can receive life in prison, or even the death penalty if the victim dies.

Under the doctrine of command responsibility, a commander can be held liable if he knew or should have known his inferiors were committing war crimes and he failed to prevent or stop them.

When John Walker Lindh was captured in Afghanistan in December 2001, his American interrogators stripped and gagged him, strapped him to a board, and displayed him to the press. He was writhing in pain from a bullet left in his body. A Navy admiral told the intelligence officer interrogating Lindh that “the secretary of defense’s counsel has authorized him to ‘take the gloves off’ and ask whatever he wanted.”

Although initially charged with crimes of terrorism carrying life in prison, Attorney General John Ashcroft permitted Lindh to plead guilty to lesser crimes that garnered him 20 years. The condition: Lindh make a statement that he suffered “no deliberate mistreatment” while in custody. The cover-up was underway.

Lawyers from the Defense Department and Justice Department penned lengthy memos and created a definition of torture much narrower than the one in the Torture Convention. They advised Bush how his people could engage in torture and avoid prosecution under the U.S. Torture Statute.

More than 300 lawyers, retired judges, and law professors (including this writer), a former FBI director, an ex-Attorney General, and seven past presidents of the American Bar Association, signed a statement denouncing the memos, which, we wrote, “ignore and misinterpret the U.S. Constitution and laws, international treaties and rules of international law.” The statement condemns the most senior lawyers in the Department of Justice, Department of Defense, White House, and Vice President Dick Cheney’s office, who “have sought to justify actions that violate the most basic rights of all human beings.”

Even the conservative American Bar Association (ABA) criticized what it called “a widespread pattern of abusive detention methods.” Those abuses, according to the ABA, “feed terrorism by painting the United States as an arrogant nation above the law.”

Relying on advice in these memos, Bush issued an unprecedented order that, as commander-in-chief, he has the authority to suspend the Geneva Conventions. In spite of Geneva’s requirement that a competent tribunal decide whether someone qualifies for prisoner of war (POW) status, Bush took it upon himself to decide that Al Qaeda and Taliban prisoners in Afghanistan were not protected by the Geneva Convention on the POWs.

This decision was premised on the reasoning of White House Counsel Alberto Gonzalez [Bush’s current nominee for Attorney General, ed.], that “the war against terrorism is a new kind of war, a new paradigm [that] renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”

A still-secret section of the recently-released U.S. Army’s Fay Report says that “policies and practices developed and approved for use on Al Qaeda and Taliban detainees who were not afforded the protection of the Geneva Conventions, now applied to detainees who did fall under the Geneva Conventions’ protections.”

And Bush didn’t take into account that even prisoners who don’t are not POWs must still be treated humanely under the Geneva Convention on the Treatment of Civilians In Time of War.

The Schlesinger Report that came out within a day of the Fay Report accused the Pentagon’s top civilian and military leadership of failing to exercise sufficient oversight and permitting conditions that led to the abuses. Rumsfeld’s reversals of interrogation policy, according to the report, created confusion about which techniques could be used on prisoners in Iraq.

Rumsfeld has admitted ordering an Iraqi prisoner be hidden from the International Committee of the Red Cross. Pentagon investigators believe the CIA has held as many as 100 “ghost” detainees in Iraq. Hiding prisoners from the Red Cross violates Geneva.

The Schlesinger Report confirmed 5 detainee deaths as a result of interrogation, and 23 more deaths are currently under investigation.

The torture of prisoners in U.S. custody did not begin in Iraq, Afghanistan and Guantánamo. “I do not view the sexual abuse, torture and humiliation of Iraqi prisoners by American soldiers as an isolated event,” says Terry Kupers, a psychiatrist who testifies about human rights abuses in U.S. prisons. “The plight of prisoners in the USA is strikingly similar to the plight of the Iraqis who were abused by American GIs. Prisoners are maced, raped, beaten, starved, left naked in freezing cold cells and otherwise abused in too many American prisons, as substantiated by findings in many courts that prisoners’ constitutional rights to remain free of cruel and unusual punishment are being violated.”

Torture techniques used in Iraq, Afghanistan, and Guantánamo are all too familiar in prisons in the U.S. as well. Hooded, robed figures with electrical wiring attached to them have been seen at the city jail in Sacramento, California. Prisoners in Maricopa County jails in Phoenix, Arizona have been forced to wear women’s underwear. And guards in the Utah prison system have piled naked bodies in grotesque and uncomfortable positions.

The connection between mistreatment of prisoners here and abroad is even more direct than that. For example, John Armstrong ran Connecticut’s Dept. of Corrections from 1995-2003, before being sent to Iraq as a prison adviser in September 2003. On his Connecticut watch, two mentally ill prisoners died while being restrained by guards. Two more inmates died in custody after guards mistreated them. And Armstrong made a remark once that equated the death penalty with euthanasia.

Speaking of the death penalty, the use of the gas chamber was challenged in California as cruel and unusual punishment, before the execution of Robert Alton Harris about 10 years ago. As a result California adopted the use of the lethal injection because it was more “humane” method of killing a person. Lawyers in Kentucky are now challenging the three-chemical cocktail used for lethal injections in many states as cruel and unusual. It took one man in Kentucky 12 minutes to die from the humane lethal injection.

In May 2000, the U.N. Committee Against Torture considered the United States’ initial report on implementation of the Convention Against Torture. It expressed concern at torture and ill-treatment by prison guards – much of it racially motivated—and the sexual abuse of female prisoners by male guards. Human Rights Watch reports that sexual misconduct is rarely investigated, much less punished, and that punishments tend to be light.

Eight prison guards were acquitted of charges they subjected prisoners to cruel and unusual punishment by arranging gladiator-style fights among inmates, and setting up the rape of an inmate by a notoriously violent inmate known as the “Booty Bandit” at Corcoran State Prison in California.

Although Bush signed the Prison Rape Elimination Act of 2003, the law provides for no enforcement mechanism or cause of action for rape victims.

But prison guards have been convicted of organizing assaults on inmates in a federal prison in Florence, Colorado, and at Pelican Bay State Prison in California. The Department of Justice concluded that conditions at prisons in Newport, Arkansas are unconstitutional. And New Jersey prison guards reportedly brutalized over 600 prisoners.

A U.S. District Court Judge in California threatened to place the prisons into receivership if the Department of Corrections (DOC) didn’t overhaul its internal disciplinary system. In response, the DOC has undertaken an independent Bureau of Review to ensure violations do not occur in the future.

In the wake of the September 11 attacks, more than 1200 Arab, Muslim, and South Asian men were rounded up in one of the most extensive incidents of racial profiling in the U.S. since the Japanese were interned during World War II. A December 2003 report by the Department of Justice’s Office of the Inspector General investigated allegations of physical and verbal abuse of non-citizen prisoners by the Federal Bureau of Prisons’ (BOP) Metropolitan Detention Center (MDC) in Brooklyn, NY.

BOP policy prohibits staff members from using brutality, physical violence, intimidation toward inmates, or any force beyond that which is reasonably necessary to subdue an inmate.

The report concluded that several MDC staff members slammed and bounced detainees into the walls, twisted or bent their arms, hands, wrists, or fingers, pulled their thumbs back, tripped them, and dragged them on the floor. It also found violations of BOP policy by verbal abuse as well.

In Estelle v. Gamble, the U.S. Supreme Court applied the Eighth Amendment’s ban on cruel and unusual punishment to conditions of confinement that are incompatible with the evolving standards of decency that mark the progress of a maturing society.

The United Nations’ Economic and Social Council promulgated the Standard Minimum Rules for the Treatment of Prisoners. The Supreme Court in Estelle specified that these rules should be included in the measurement of “evolving standards of decency.”

The rules provide that corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman, or degrading punishments shall be completely prohibited as punishments for disciplinary actions.

Fyodor Dostoevsky once said, “The degree of civilization in a society can be judged by entering its prisons.”

In May, when the Abu Ghraib scandal was on the front pages, there were demands for Rumsfeld to resign. But Cheney told Rumsfeld there would be no resignations. It was blatantly political. We’re going to hunker down and tough it out, Cheney said, so as not to hurt Bush’s chances for election in November.

In spite of George W. Bush’s renunciation of the International Criminal Court, many people around the world are clamoring for Bush and his deputies to be held accountable for the widespread torture of prisoners in Iraq, Afghanistan, Guantánamo, and the CIA’s secret prisons elsewhere. In the words of Yale law professor Bruce Ackerman: “It is one thing to protect the armed forces from politicized justice; quite another, to make it a haven for suspected war criminals.”

November 3, 2004

Bush and Bin Laden

To announce that there must be no criticism of the President, or that we are to stand by the President, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public.
– Theodore Roosevelt, May 7, 1918

George W. Bush was shocked, shocked, that John Kerry raised political questions in response to Osama bin Laden’s cameo election appearance on Al Jazeera television. Yet Bush surrounded himself at a campaign stop in Manchester, N.H. with victims of the September 11 terrorist attacks, and repeated his mantra that the nation was forever changed by September 11th. Is Bush correct when he makes those statements? Will historians some day look back on September 11, 2001, as a pivot point in U.S., or even world history? Or is Bush the politician using that dark day to maneuver himself into a second term in the White House?

Whether we like to admit it or not, the havoc that Bin Laden wrought on 9/11 has been squarely at the center of the national discourse for the past three years, and indeed, of this election campaign. Americans remain frightened of another attack, even though Bin Laden lives in a cave half way around the world. The level of fear in this country seems disproportional to the threat. Bin Laden has no air force and no navy. He controls a relatively small, ragtag army. Yet, he and his handful of suicide bombers have so terrified the country with the most powerful military in the history of the world, that fear of him seems to dominate our political landscape.

So, is George W. Bush truly focused on protecting the U.S. from Bin Laden? A few days after the 9/11 attacks, Bush assured us he would hunt down Bin Laden and get him “dead or alive.” But a short five months later, Bush had become preoccupied with invading Iraq, a country that had never attacked the United States, and posed no threat to us.

Bush no longer had Bin Laden in his sights. In March 2002, Bush said: “So I don’t know where he is … Nor – you know, I just don’t spend that much time on him really, to be honest with you. I… I truly am not that concerned about him.” Lacking any hard evidence that Saddam Hussein played a role in the 9/11 attacks, Bush nevertheless insisted the war on terrorism was centered in Iraq. Out of sight, out of mind.

Much to Bush’s chagrin, Bin Laden re-took the world stage four days before the U.S. election. The Bush administration spent half a day trying to convince Al Jazeera and the Qatar government to keep the videotape of Bin Laden off the air.

Sitting there demurely, the white-robed terrorist calmly discussed our election on television sets from Maine to California. His very presence emphasized Bush’s failure to keep his pledge to take Bin Laden dead or alive. Bin Laden seemed intent on humiliating Bush. He said that, by continuing to sit in a classroom as a girl read about a goat when the twin towers were hit, Bush left 50,000 of his people in the towers “to face those events by themselves when they were in the most urgent need of their leader.”

Bin Laden also seemed intent on discrediting Bush. He said Bush is distorting and misleading the American people, obscuring the reasons underlying the 9/11 attacks. Bin Laden cited “Bush’s claims that we hate freedom.” If that’s true, Bin Laden asked, why didn’t we hit Sweden?

Bin Laden stated the motives for his evil deeds: U.S. support for Israel’s oppression of the Palestinians, and Israel’s 1982 attack on Lebanon. He bemoaned the killing of Iraqi children, and accused Bush of removing Saddam Hussein from power for the purpose of stealing Iraq’s oil. Bin Laden drew an analogy between Bush’s regime and the corrupt Arab regimes, recalling the first President Bush’s cozy relationship with the Saudi royal family. Bin Laden argued that the Patriot Act has brought tyranny and suppression of freedom to the United States.

Finally, Bin Laden said our security is not in the hands of Kerry or Bush or Al Qaeda. “Your security is in your own hands,” he said. “Any nation that does not attack us will not be attacked.” Bin Laden told us how to avoid another attack: Lay off my people. Not mindful of the wise old adage, “know thy enemy,” however, Bush responded by saying we “will not be intimidated or influenced by an enemy of our country.”

Appealing to the American people instead of the U.S. government, Bin Laden challenged Americans to challenge the policies that oppress people in the Muslim world. The Spaniards accepted a similar challenge, when, days after suspected Al Qaeda followers blew up commuter trains in Madrid, the people in Spain went to the polls and unseated the leaders who had both taken their troops into Iraq, and lied about who was responsible for the railroad attacks. The newly elected government pulled the Spanish soldiers out of Iraq shortly thereafter.

Why does Bin Laden seem intent on humiliating Bush? At the heart of Bin Laden’s grievances is revulsion at the humiliation of Arabs and Muslims. Bin Laden has undoubtedly seen the photograph of the elderly Iraqi woman, leashed and made to crawl on the floor like a dog. He has likely seen, as well, the picture of a mound of naked Iraqis being mocked by U.S. soldiers. And he probably is aware of Staff Sgt. Ivan “Chip” Frederick’s response when asked last week why he abused an Iraqi man: “just to humiliate him.”

Bush and Bin Laden have mutually empowered each other since 9/11. By attacking the United States on Bush’s watch, Bin Laden handed Bush the perpetual weapon of fear-mongering to hold over the heads of the American people. And by invading Iraq, Bush all but invited Al Qaeda to enter Iraq and wage jihad against the U.S. invaders. For this, George W. Bush and Osama bin Laden will be inextricably linked in the history books.

Whoever wins the election on November 2, we have our work cut out for us.

October 28, 2004

Beware Scalia-Thomas Clones

After months of intense campaigning about Iraq, terror, taxes and jobs, the future of the Supreme Court has finally entered the public discourse. Chief Justice William Rehnquist is in the intensive care unit, after undergoing a tracheotomy for thyroid cancer. The Court issued a terse statement, saying the Chief would take the bench when the justices reconvene on Nov. 1. Unlike the detailed updates released during Ruth Bader Ginsburg’s struggle with colon cancer in 1999-2000, however, we have been given no details about Rehnquist’s prognosis.

Just as Bush has downplayed the disappearance of 380 tons of high explosives in Iraq that U.S. forces should have secured, he has mentioned little, if anything, about Rehnquist’s illness. Karl Rove, Bush’s evil genius, is undoubtedly aware of the explosive nature of a dialogue about how the next commander-in-chief could shape the face of the Supreme Court for decades.

Rove likely knows a recent Time magazine poll showed 86 percent felt appointments to the Court during the next four years were very important (59 percent) or somewhat important (27 percent) to their choice for president. In that poll, 43 percent said it would make them more likely to vote for Kerry, whereas 38 percent thought it would lead them to choose Bush.

When the issue arose in the second and third presidential debates, Bush said he would have “no litmus test” for his judges. But during the 2000 campaign, Bush let slip that the justices he admired most were Antonin Scalia and Clarence Thomas. During the second debate recently, Bush echoed that sentiment, saying he would pick “strict constructionists,” a buzz-phrase for Scalia-Thomas clones.

Fortunately, no vacancies have arisen on the high Court during Bush’s term. But his choices for lifetime appointments to the lower federal court bench reveal a definite litmus test – anti-choice, anti-civil rights, anti- worker, anti-gay, anti-environment and pro-corporate. (See my editorial, Bush’s Judges: Right-Wing Ideologues.) Bush’s 201 nominees – 24 percent of all active judges – were ideologically screened by the conservative Federalist Society. Many Bush appointees are “embarrassingly unqualified for judicial office,” wrote Professor Ronald Dworkin in The New York Review of Books recently.

Bush could have as many as four appointments to the high Court during a second term. All justices but Clarence Thomas are over 65 years old. Rehnquist is 80. John Paul Stevens, the most liberal on the Court, is 84. Sandra Day O’Connor, 74, and Ginsburg, 71, are both cancer survivors. Ginsburg, another liberal, is in frail health.

The Supreme Court is currently divided by a razor-thin 5-4 margin. Regardless of the outcome of Rehnquist’s illness, he has said he would not remain on the Court for another four years. Bush, if given a second term, would replace Rehnquist with a much younger, right-winger, who would remain on the Court for years to come. Bush would also have the opportunity to choose the next chief justice, who could significantly shape the Court. If Bush had his druthers, he would elevate Scalia or Thomas to Chief. But either choice would invite a nasty partisan battle in the Senate, which must approve the president’s nomination by a two-thirds vote. Bush would probably find another right-wing zealot to assume the role of chief justice.

What would the Court look like if Bush were to appoint justices in the mold of Scalia and Thomas? Roe v. Wade could be overturned. Abortion could become a crime in most states – back to back-alley abortions for poor, young women. Workers could lose family and medical leave. Gays could be imprisoned for having consensual sex in the privacy of their own homes. Equal voting rights for African Americans and other racial minorities could be at risk (not just de facto, the way they are today, but de jure, as well.) Affirmative action could be eviscerated. Preservation of the environment could give way to corporate profits. Inmates in this country (not just in Iraq and Guantánamo) could be beaten with impunity.

In the second debate, Bush’s seemingly righteous criticism of the racist Dred Scott decision was really a veiled message to his right-wing followers that he would appoint anti-abortion judges to the Supreme Court, according to former Supreme Court law clerks Charles Rothfeld and Thomas Colby, writing for americaprogress.org.

The May 2004 report, Courting Disaster 2004: How a Scalia-Thomas Court Would Endanger Our Rights and Freedoms, published by People For the American Way, concluded: “Supporters of Justices Scalia and Thomas praise them as ‘strict constructionists,’ ‘originalists,’ ‘traditionalists,’ and advocates of the ‘rule of law.’ These labels are misleading because they obscure the two Justices’ ultra-conservative activism. The terms suggest that Thomas and Scalia are committed only to an interpretation of the law that is true to its actual wording, or in the case of the Constitution, true to the intent of the Framers. This legal approach, its adherents say, ensures that they are not activists who use their position to shape the law in their own political image. Actually, the opposite is true. A Supreme Court modeled after Scalia’s and Thomas’ judicial philosophy would be an activist Court that would produce dramatic changes in the law as we know it. And virtually every change would move our laws in the direction advocated by right-wing conservatives.”

The future of the law of the land is at stake in this election. The differences between Bush and Kerry are stark on judicial appointments. During the third debate, Kerry said: “I’m not going to appoint a judge to the court who’s going to undo a constitutional right, whether it’s the First Amendment or the Fifth Amendment or some other right that’s given under our courts today, or under the Constitution.” Kerry added: “And I believe that the right of choice is a constitutional right.”

Voters will have a choice between an administration that fights to protect the rights of everyone, not just those of straight white rich religious men, and one that promises to remake the Court in the image of those who would deny basic liberties to many.

October 20, 2004

Bush Gets ‘F’ in Civil Rights

While many of our citizens prosper, others doubt the promise, even the justice, of our own country. The ambitions of some Americans are limited by failing schools and hidden prejudice and the circumstances of their birth … We do not accept this, and we will not allow it … And this is my solemn pledge: I will work to build a single nation of justice and opportunity…
– President George W. Bush, Inaugural Address, Jan. 20, 2001.

George W. Bush has betrayed this promise, according to a 180-page draft report of the U.S. Commission on Civil Rights, Redefining Rights in America – The Civil Rights Record of the George W. Bush Administration, 2001-2004.

Bush rarely uses the terms “civil rights,” “diversity,” or “discrimination.” When he does, it’s usually in reference to a historical celebration or holiday. “The dearth of substantive presidential statements reveals that civil rights is not a priority for this administration,” according to the draft report.

Even when Bush does state a commitment to the protection of civil rights, his actions belie his rhetoric. The draft report “finds that President Bush has neither exhibited leadership on pressing civil rights issues, nor taken actions that matched his words.” Bush “has not defined a clear agenda nor made civil rights a priority.” The net increase in Bush’s requests for civil rights enforcement agencies was “less than those of the previous two administrations.”

It is not surprising that the Republicans on the Civil Rights Commission have resisted the release of the report until after the November election. They were rebuffed, however, in their attempt to remove the draft report from the website.

The draft report finds: “President Bush does not speak about civil rights initiatives often, but when he does he promotes the faith-based program more than any other. He has presented the initiative as an end to discrimination against religious organizations, using terms such as ‘remove barriers,’ ‘equal access,’ and ‘equal treatment,’ which convey that such programs have civil rights relevance. In reality, the program does not remove barriers to discrimination. On the contrary, it allows religious organizations that receive public funds to discriminate against individuals based on religion in employment.”

Whereas the leaders of the Civil Rights Movement in the 1950s and 1960s, and César Chávez with the United Farmworkers Union, used faith to sustain them, Bush uses it as a bludgeon. Bush’s faith actually undermines the protection of civil rights. This agenda comes through loud and clear in the draft report: “The faith-based initiative, a so-called civil rights action, actually constitutes a retreat, not an advancement from employment discrimination,” especially against gays and lesbians.

Instead of leading him to protect civil rights, Bush’s faith has victimized the most vulnerable among us. In nearly every category of civil rights analyzed in the draft report, Bush receives a failing grade. His record is abysmal in education, fair housing, voting, gay and lesbian rights, affirmative action, environmental justice, racial profiling, protection of disadvantaged groups, and judicial nominations.

Equal Educational Opportunity

Bush frequently touts the No Child Left Behind Act (NCLB), which he widely promoted, and which garnered bipartisan support. “Despite its worthy goals, however,” the draft report says, “NCLB has flaws that will inhibit equal educational opportunity and limit its ability to close the achievement gap.” For example, “NCLB does not sufficiently address unequal education, a major barrier to closing the achievement gap between minority and white students.” Furthermore, Bush did not exhibit leadership to make sure NCLB was sufficiently funded, “leaving state and local school boards, teachers, and administrators without the resources to comply with the law.”

Fair Housing

“Policies instituted under the Bush administration have diminished housing opportunities for poor, disproportionately minority families,” the draft report concludes.

Election Reform

In spite of the national angst over the 2000 presidential election process, and Bush’s promise “to unite the nation and improve its election system, the President has failed to act swiftly toward election reform,” finds the draft report. “As a result of the President’s inaction, little will change before the 2004 elections, and the problems that linger, unless resolved, will most likely disenfranchise some eligible voters.” Indeed, evidence has emerged that raises the specter of widespread violation of voter rights. (See truthout’s Voter Rights page.)

Christopher Edley, Jr., dean of Boalt Hall School of Law at UC Berkeley, and member of the Civil Rights Commission, documented voter suppression and disenfranchisement “approaching a torrent” in a recent article in Newsday. “The U.S. Commission on Civil Rights, on which I sit,” wrote Edley, “has heard many hours of testimony on these abuses, and civic groups are sounding alarms. Dismayingly, Attorney General John Ashcroft has not met the rising flood of examples with high-profile investigations and criminal indictments. Instead,” noted Edley, “state and local officials face little more than embarrassment in the media.”

Gay and Lesbian Rights

Although Bush appointed some gay rights supporters to Cabinet and administrative positions, he “has stated unequivocal support for a constitutional amendment banning same-sex marriages. If passed,” states the draft report, “the amendment would be the first in U.S. history to limit rather than preserve and expand the rights of a group.”

Affirmative Action

The draft report concludes that Bush’s “stance on affirmative action is equivocal at best … He has not exhibited strong leadership on this issue where leadership is vital.” While celebrating diversity, Bush’s administration filed a brief with the Supreme Court opposing university policies that allow race to be considered as one factor to promote diversity in college admissions. “To speak about the importance of diversity without acknowledging the role of affirmative action or the need for comprehensive data is to disregard the remaining vestiges of discrimination,” wrote the authors of the draft report.

Environmental Justice

Minority and low-income populations are disproportionately affected by environmental pollutants. Toxic waste dumps are frequently located in neighborhoods populated mostly by people of color. Yet, under the Bush administration, the Environmental Protection Agency “has taken few actions to ensure that minority and low-income persons are not disparately affected by environmental contamination and has failed to develop a standard for assessing how exposure to hazards affects public health,” the draft report reads.

Racial Profiling

Early in his term, Bush promised to end racial profiling. He issued guidelines to prohibit racial profiling in federal law enforcement. However, after the September 11 attacks, Bush’s attorney general rounded up immigrants of Arab, Muslim and South Asian descent. These men were not suspected of criminal activity, but were targeted solely on the basis of their national origin. “Many detainees alleged mistreatment by prison guards, including being hosed down with cold water, strip searched, forced to sleep upright in freezing conditions, denied food or legal representation, and kept in their cells for long periods.”

Immigrants

The draft report examines three Bush administration proposals on immigration. “All lack strong civil rights protections for immigrants,” it finds. “President Bush has endorsed policies that allow discrimination against certain groups in the processing of asylum applications,” for example, Haitians.

Native Americans

“President Bush has acknowledged the great debt America owes to Native Americans. However, his words have not been matched with action.” He has not requested sufficient funding for tribal colleges and universities, Native American health care, or housing programs. “In 2003,” according to the draft report, “President Bush terminated funding for critical law enforcement programs, including the Tribal Drug Court Program. Experts agree that problems with the criminal justice system in Indian Country are serious and understated.” Bush’s “lack of commitment to the nation’s trust responsibility to Native Americans ensures that their education, housing, and law enforcement conditions remain substandard.”

Women

“President Bush’s record on women’s issues is mixed. Economic gains for which he has paved the way are overshadowed by other actions that have set back women’s rights.” His administration launched a program to improve women’s access to capital by creating a Web site and conferences, but abolished the Department of Labor’s Equal Pay Initiative. Bush “attempted to redirect Title IX enforcement, but ceased his effort after overwhelming public expressions of support for the law.” The draft report didn’t mention that the Bush administration has resisted the ratification of the Convention on the Elimination of All Forms of Discrimination Against Women, which has been ratified by 177 countries, including more than 90 percent of the member states of the U.N.

Judicial Nominations

“Many of his nominees and appointees do not support civil rights protections. The effect may be eventual weakening of civil rights law,” according to the draft report. It cites objections from myriad civil rights organizations to several of Bush’s nominees, “claiming that the administration is trying to pack the judiciary with anti-civil rights ideologues.”

The Disabled

The Bush administration has implemented some programs to benefit the disabled, including an initiative to integrate disabled persons into the labor force, and proposed funding for it. The draft report finds that although it is “too soon to measure the ultimate impact of the administration’s efforts, the disability rights community has embraced them.”

Bush Betrayed His Promise of Justice and Opportunity

Bush has excluded civil rights leaders from policy discussions and refrained from soliciting input from anyone other than his own close circles, according to the draft report. When challenged on his civil rights record, Bush simply points to African-Americans Colin Powell and Condoleezza Rice and that ends the discussion.

“Under Attorney General Ashcroft, the Department of Justice’s enforcement of civil rights has become less vigorous, indeed almost passive, and the pursuit of civil rights cases has waned significantly,” the draft report finds.

It concludes: “The administration’s statements frequently do not match its actions. Its civil rights promises often suffer for lack of funding and ineffective implementation.” Bush has significantly reduced funding for programs that benefit low-income individuals and minority communities. “Failing to build on common ground, the Bush administration missed opportunities to build consensus on key civil rights issues and has instead adopted policies that divide Americans.”

October 17, 2004

The Least of These

You see that a person is justified by what he does and not by faith alone… Faith without deeds is dead.
– James 2:14-26

And when did we see thee sick or in prison and visit thee? And the King will answer them, ‘Truly, I say to you, as you did it to one of the least of these my brethren, you did it to me.’
– Matthew 25:31-40

Much of the support George W. Bush enjoys stems from people of faith who identify with his religious principles. Toward the end of the third presidential debate, Bush said, “I believe that God wants everybody to be free. That’s what I believe. And that’s one part of my foreign policy … And so my principles that I make decisions on are a part of me. And religion is a part of me.”

Sounds good. Freedom. Principles. Religion. Religious principles also guide John Kerry, who went to Catholic school and served as an altar boy. Like Bush, Kerry says “my faith affects everything that I do and choose.”

But that is where the similarity ends. Kerry, quoting James, said, “Faith without works is dead.” Whereas Bush stands on principle and religion, Kerry lives the word. “That’s why I fight against poverty,” Kerry added. “That’s why I fight for equality and justice.”

Equality and justice are two words that don’t often appear in Bush’s vocabulary – nor are they evident in his deeds. And his claim to value freedom is specious. Nowhere is this more evident than the way his administration treats the prisoners it has taken since September 11, 2001.

On Monday, Saudi American Yasser Esam Hamdi was “freed” and returned to his family after being held in solitary confinement as an “enemy combatant” for nearly three years by the U.S. government. Charges were never filed against him, and he was denied contact with an attorney for the first two years he was in custody. In June, the Supreme Court ruled that Hamdi is entitled to a hearing to contest the basis for his confinement. It was only then the U.S. government began to negotiate conditions for his release. The Bush administration decided to free Hamdi rather than explain to a neutral decision maker why it was holding him. Hamdi’s release amounted to a “blithe ‘never mind’,” according to the Washington Post.

In an interview with CNN from his parents’ home in Saudi Arabia, Hamdi maintained his innocence and denied he was an “enemy combatant.” He pleaded for the U.S government to release others being held without charges. “This thing drives human beings crazy,” Hamdi said. When asked how it felt to be free, he replied, “It’s something that I really can’t describe at all. Just to be let down and to be given freedom – you really know what the meaning of freedom [is].” Hopefully, George W. Bush, champion of freedom, was watching CNN when Hamdi made that statement.

The same day the Supreme Court ruled on Yasser Hamdi’s case, it also decided that hundreds of prisoners held at Guantánamo Bay, Cuba have the right to challenge their imprisonment in U.S. courts. Yet three and a half months later, none of them has appeared in court. Sixty-eight have petitioned for access to federal court; yet very few have even seen an attorney. The government has given myriad excuses, while these men linger in legal limbo.

Many of them, and others in Afghanistan and Iraq, have been tortured by military and mercenary personnel working for the Bush administration. Months after the graphic photographs emerged, and numerous reports have documented abuse and torture of prisoners at Abu Ghraib prison in Iraq, there still has been no meaningful investigation of those up the chain of command who might be responsible. Indeed, Donald Rumsfeld has privately told colleagues he is determined to promote Army Lt. Gen. Ricardo Sanchez, who approved some of the harshest interrogation techniques, to four-star general.

Bush’s lawyers advise him on how to avoid the requirements of the Geneva Convention, and devise creative strategies to circumvent prosecutions under the federal torture statute. Bush’s Secretary of Defense calls rape, sodomy, and murder “abuse,” not torture. And Bush’s administration rewarded Maj. Gen. Geoffrey Miller, overseer at Guantánamo, with a transfer to Abu Ghraib, where he transplanted his system of torture across the ocean.

Fyodor Dostoevsky once said, “The degree of civilization in a society can be judged by entering its prisons.” Our compassionate-conservative commander-in-chief’s favorite book is the Bible. He mouths the words but his deeds ring hollow. Sadly, Bush’s Bible has no room for “the least of these.”