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January 10, 2005

Dear Mr. Gonzales

Dear Mr. Gonzales,

You have been rewarded for your unflinching loyalty to George W. Bush with a nomination for Attorney General of the United States. As White House Counsel, you have walked in lockstep with the President. As Attorney General, you will be charged with representing all the people of the United States. Your performance before the Senate Judiciary Committee on Thursday verified that you will continue to be a yes-man for Bush once you are confirmed.

In the face of interrogation by members of the Committee, you waffled, equivocated, lied, feigned lack of memory, and even remained silent, in the face of the most probing questions. Your refusals to answer prompted Senator Patrick Leahy to say, “Mr. Gonzales, I’d almost think that you’d served in the Senate, you’ve learned how to filibuster so well.”

Even though the Department of Justice retracted the August 2002 torture memo, and replaced it with a new one on the eve of your confirmation hearing, you still refuse to denounce the old memo’s narrow and illegal definition of torture. You permitted that definition to remain as government policy for 2 1/2 years, which enabled the torture of countless prisoners in U.S. custody.

You continually evaded inquiries about your responsibility for drafting the now-repudiated memo by portraying yourself as a mere conduit for legal opinions from the Justice Department’s Office of Legal Counsel. This puzzled Senator Russ Feingold, who said, “If you were my lawyer, I’d sure want to know your opinion about something like that.”

Republican Senator Lindsey Graham told you, “I think we’ve dramatically undermined the war effort by getting on the slippery slope in terms of playing cute with the law, because it’s come back to bite us.” Indeed, 12 retired professional military leaders of the U.S. Armed Forces wrote to the Judiciary Committee, expressing “deep concern” about your nomination because detention and interrogation operations which you appeared to have “played a significant role in shaping” have “undermined our intelligence gathering efforts, and added to the risks facing our troops serving around the world.”

When Senator Graham, an Air Force judge advocate, asked you if you agreed with a professional military lawyer’s opinion that the August memo may have put our troops in jeopardy, you were tongue tied. You said nothing for several embarrassing seconds, until Senator Graham suggested you think it over and respond later.

When Senator Richard Durbin asked “Do you believe there are circumstances where other legal restrictions, like the War Crimes Act, would not apply to U.S. personnel?” you again sat mute for several seconds, and then asked to respond later.

It is alarming, Mr. Gonzales, that a lawyer with your pedigree would be stumped into silence by these questions.

You have taken the unprecedented step of advising the President that the Geneva Conventions have become “obsolete.” You testified that since “we are fighting a new type of enemy and a new type of war,” you “think it is appropriate to revisit whether or not Geneva should be revisited.” You admitted preliminary discussions are already underway.

The 12 former military leaders wrote, “Repeatedly in our past, the United States has confronted foes that, at the time they emerged, posed threats of a scope or nature unlike any we had previously faced. But we have been far more steadfast in the past in keeping faith with our national commitment to the rule of law.”

Mr. Gonzales, you have concurred in, even commissioned, advice that led to the following:

Sodomy with a broomstick, chemical light, metal object
Severe beatings

Water boarding (simulated drowning)

Electric shock

Attaching electrodes to private parts

Forced masturbation

Pulling out fingernails

Pushing lit cigarettes into ears

Chaining hand and foot in fetal position without food or water

Forced standing on one leg in the sun

Feigned suffocation

Gagging with duct tape

Tormenting with loud music and strobe lights

Sleep deprivation

Hooding

Subjecting to freezing/sweltering temperatures

“Dietary manipulation”

Repeated, prolonged rectal exams

Hanging by arms from hooks

Permitting serious dog bites

Bending back fingers

Intense isolation for more than 3 months

Grabbing genitals

Severe burning

Stacking of naked prisoners in pyramids

Injecting with drugs

Leaving bullet in body of wounded prisoner

Taping naked prisoner to board

Shooting into containers with men inside

Keeping prisoners in small, outdoor cages

Pepper spraying in face

Forcing heads into toilets and flushing

Threatening live burial, drowning, electrocution, rape and death

Beating prisoners to death

Killing wounded prisoners

Throwing off bridge into river and drowning

Rape

Murder

Saddam Hussein would be proud of you, Mr. Gonzales.

Perhaps most alarming was your response to Senator Durbin’s question, “Can U.S. personnel legally engage in torture under any circumstances?” You answered, “I don’t believe so, but I’d want to get back to you on that.” You failed to give a categorical “no” answer. You surely know, Mr. Gonzales, that the Convention Against Torture prohibits torture at any time. That treaty, ratified by the United States and therefore part of the Supreme law of the land under the Supremacy Clause of the Constitution, says, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture.”

Mr. Gonzales, based on your record and your performance before the Senate Judiciary Committee, I have critical concerns about your appointment as Attorney General. I believe you would stand mute if George W. Bush told you he planned to collapse the three branches of government into one, destroying the Constitutional separation of powers. Even though Article I, Section 8 of the Constitution gives only Congress the authority “to make Rules concerning Captures on Land and Water,” you refused to tell the Senate Judiciary Committee that the President is not above the law. You think the President has the power to declare an act of Congress unconstitutional. You would rationalize the torture of prisoners.

Where even the strident John Ashcroft thought prisoners in United States custody are entitled to due process, you designed the military tribunals to deny it to them.

As counsel to Texas Governor George W. Bush, you wrote abbreviated clemency memos in capital cases omitting crucial defenses such as ineffective assistance of counsel, even evidence of factual innocence. Your counsel led Bush to deny pardons in 56 of 57 death penalty cases.

You sat before the Senate Judiciary Committee and the American people for seven hours with a smug grin on your face, lying to us, knowing you will be confirmed.

Your testimony led the New York Times to opine, “Mr. Bush had made the wrong choice when he rewarded Mr. Gonzales for his loyalty,” and the conservative Washington Post to say, “The message Mr. Gonzales left with senators was unmistakable: As attorney general, he will seek no change in practices that have led to the torture and killing of scores of detainees and to the blackening of U.S. moral authority around the world.” The Post concluded, “Those senators who are able to reach clear conclusions about torture and whether the United States should engage in it have reason for grave reservations about Mr. Gonzales.”

You will have the distinction of being the first Latino Attorney General of the United States. You come from humble roots in Humble, Texas. You should understand the struggles of people of color, yet you have turned your back on them. As overseer of the policies that led to the torture of myriad people of color in Iraq, Afghanistan and Guantánamo Bay, you have betrayed your roots.

Your actions have shamed us in the eyes of the world and endangered our fighting men and women.

You do not deserve to be our country’s top prosecutor, head of the Department of Justice, charged with protecting our civil rights.

Mr. Gonzales, you should be ashamed.

January 3, 2005

Redefining Torture

The election’s over, but the Bush spin machine goes on. In anticipation of hard questions Alberto Gonzales will face at his attorney general confirmation hearing in the Senate Judiciary Committee this week, Bush’s lawyers are seeking to minimize the damage from the release of the torture memos in which Gonzales concurred.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

December 27, 2004

The Emperor-in-Chief

Rumor has it that George W. Bush’s tailor is busily stitching a royal blue cloak to go with the gold crown that will adorn the president as he takes the oath of office on January 20. Now that Bush has secured a second term, it is no longer necessary to hide behind the subtle flight suit that bedecked him on the deck of the aircraft carrier declaring “Mission Accomplished” in May 2003. He can now come out of the closet as full-fledged Emperor of the World.

Notwithstanding the United States Constitution and the United Nations Charter, Bush nicely qualifies as “the male sovereign or supreme ruler of an empire,” as required by Webster’s New Universal Unabridged Dictionary.

Bush wasn’t always riding high. Shortly before 9/11, his ratings were falling. It was a mere two weeks after the September 11 attacks that a secret memo prepared for Alberto Gonzales’s office concluded Bush had the power to use military force “preemptively” against any terrorist organizations or countries that supported them. Any link to the attacks on the World Trade Center or the Pentagon was unnecessary, said the memo, even though Congress had so limited its license for the president to use force.

Treaties ratified by the United States, such as the Charter of the United Nations, are the Supreme law of the land under our Constitution. The U.N. Charter forbids the use of armed force against another State unless undertaken in self-defense or authorized by the Security Council. The necessity for self-defense must be “instant, overwhelming, leaving no choice of means, and no moment for deliberation,” according to the leading Caroline Case of 1841.

The Charter’s prohibition on the use of force has not prevented prior presidents from acting unilaterally. Ronald Reagan invaded Grenada, George H.W. Bush invaded Panama, and Bill Clinton bombed Yugoslavia in 1999, the year after he bombed Afghanistan and the Sudan. Before invading Iraq, George W. Bush made war on Afghanistan to retaliate against the Taliban for harboring Osama bin Laden. None of these interventions was an exercise of self-defense; none was approved by the Council. All were illegal.

George W. Bush, however, has taken chutzpah to a higher level with his new doctrine of “preemptive war.” It was first elaborated in the secret September 25, 2001 memo from Justice Department lawyer John Yoo to Tim Flanigan, Gonzales’s chief deputy. Near the top of the 15-page memo is the following language:

The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

Nowhere does the U.N. Charter permit the use of force to “retaliate” against anyone or any State. Nowhere does the Charter allow military force to be used “preemptively” against any organization. Yet nowhere did John Yoo mention the United Nations Charter.

Nevertheless, George W. Bush adopted the Yoo theory as his own, publicly proclaiming in a June 2002 speech at the West Point Military Academy graduation, “If we wait for threats to fully materialize we will have waited too long.” He added, “Our security will require all Americans to be forward looking and resolute, to be ready for preemptive action when necessary to defend our liberty and to defend our lives.”

The new Bush Doctrine was again set forth three months later in the “National Security Strategy of the United States.” It said: “America will act against such emerging threats before they are fully formed.” This does not meet the Caroline test.

And in his March 17, 2003 speech that launched Operation “Iraqi Freedom” Bush maintained, “We choose to meet that threat now where it arises, before it can appear suddenly in our skies and cities,” in spite of the fact that Iraq had not attacked any country for 12 years, and posed no threat to any other country.

When Bush’s lawyers tried to defend the indefinite detentions of 600 men held incommunicado at the U.S. prison at Guantánamo Bay, Cuba, and of U.S. citizen Yasser Hamdi in the United States, the Supreme Court scolded them, saying war in not a “blank check” for the president. The due process the Court required the Bush administration to provide these men has been slow in coming, however; six months after the Court’s ruling in the Guantánamo case, very few have been afforded hearings.

Flush from their election “victory,” Bush’s men are hunkering down to remake the country in their own image. In the last Congress, the Senate Democrats worked with Bush to approve 204 judicial nominees, “rejecting only 10 of the most extreme,” according to incoming Senate Minority Leader Harry Reid (D-Nev.).

Nonetheless, Bush has re-nominated several candidates who failed to win Senate approval during his first term. He is hoping the Republicans will destroy the filibuster, a time-honored procedure that keeps the majority from tyrannizing the minority.

Many of the names Bush is resubmitting to the Senate are right-wing ideologues, who oppose abortion. (See my editorial, Bush’s Judges: Right-Wing Ideologues). Bush, empowered by the “mandate” he has secured, is gunning for Roe v. Wade. With the illness of Chief Justice William Rehnquist, it is likely Bush will have one to four Supreme Court appointments in his second term. We can expect to see abortion opponents nominated to the Court.

One of Bush’s re-nominees is William J. Haynes II, who, as general counsel to the Defense Department, oversaw the preparation of a memo that argued Bush may not be bound by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Torture Convention, a treaty ratified by the United States, specifies that torture is never permitted, even in time of war. This memo is regarded as having set the tone for the widespread torture in Afghanistan, Iraq and Guantánamo Bay.

Although the torture was revealed with the pornographic photographs in April, no high level officials have been brought to justice. Even the conservative Washington Post said in an editorial Thursday, “The record of the past few months suggests that the administration will neither hold any senior official accountable nor change the policies that have produced this shameful record.”

Emperor George W. Bush will continue to consolidate his empire. For the people of Iraq, our soldiers who are there, and our sons and daughters who will likely be drafted into that quagmire, the price is dear.

December 17, 2004

Guarding the Guardians of Peace

In 1945, the United Nations Conference in San Francisco gave birth to the United Nations Organization. In the wake of two world wars that claimed 55 million lives, the U.N. Charter pledged to “save succeeding generations from the scourge of war.”

The Charter allows a member state to use armed force in only two instances: 1) in self-defense, or 2) when the Security Council determines force is necessary to meet “any threat to the peace, breach of the peace, or act of aggression.”

President Harry Truman said, “No one nation, no regional group, can, or should expect, any special privilege which harms any other nation.” Referring to World War II, Truman observed, “Out of this conflict have come powerful military nations, now fully trained and equipped for war. But,” he proclaimed, “they have no right to dominate the world.”

Although heralded as a product of consensus of the nations of the world, the Charter was conceived and drafted by the United States, and ultimately, reflected the agenda of the victorious military powers after World War II.

Most significantly, they insisted on the veto power for themselves, the five permanent members of the Security Council – Great Britain, the Soviet Union, China, France and the United States, notwithstanding opposition from the smaller nations. Without that veto power, they would not likely have signed on to the U.N. Charter.

The veto power reserved for Security Council members has hobbled the U.N. for decades. At the behest of the veto-bearing United States, the U.N. sat on the sidelines during the genocide in Rwanda, when 800,000 people were slaughtered.

Also at the urging of the U.S., the Security Council put its imprimatur on the imposition of economic sanctions on Iraq, which were responsible for the deaths of one million Iraqis, mostly children, during the 1990s. The Council didn’t condemn the “no-fly-zones” over Iraq, which it never sanctioned, and which were used by the U.S. and U.K. to bombard Iraq on nearly a daily basis in the years leading up to “Operation Iraqi Freedom.”

The Security Council never condoned the recent U.S.-U.K. wars on Yugoslavia, Afghanistan and Iraq. But, because of pressure and the threatened veto by the United States, the Council never condemned them either. The attack on Yugoslavia was justified as “humanitarian intervention,” in spite of “ethnic cleansing” by both sides in that conflict. And, the Bush administration rationalized the invasions of Afghanistan and Iraq as self-defense, even though neither country ever posed an imminent threat to the United States.

In 1995, in a moment of candor, then Ambassador to the U.N. Madeleine Albright declared, “the U.N. is a tool of American foreign policy.” Indeed, before its invasion of Iraq in 2003, the Bush administration frequently threatened the United Nations with becoming “irrelevant” if it did not give its blessing to the war.

But even in the face of threats, the Security Council refused to approve Bush’s war on Iraq. Bush then cobbled together prior Council resolutions, none of which, individually or collectively, authorized the use of force in Iraq. Although he claimed to be enforcing Security Council resolutions, the Charter empowers only the Council to enforce its resolutions.

After the invasion, however, the Security Council capitulated to pressure from the United States, and authorized the U.S.-U.K. as the occupying authority in Iraq, giving the occupiers an international mandate to maintain troops in Iraq while a new government is established.

Recently, the United Nations has found its backbone and challenged U.S. policy. In September, U.N. Secretary General Kofi Annan, somewhat belatedly, called the war on Iraq “illegal.” And he sent Bush a letter counseling against the recent attack on Fallujah.

This prompted some Republican members of the House of Representatives to call for Annan’s resignation. The ostensible reason: corruption in the administration of Iraq’s Oil for Food Programme from 1996 to 2003. “It’s payback time for the U.N.,” a Bush administration official told the Los Angeles Times, on condition of anonymity. “The bills are coming due for the U.N.’s noncooperation on Iraq, and the oil-for-food scandal is red meat for the U.N.’s critics.”

But the oil-for-food excuse was a red herring. The Oil for Food Programme was created by a vote of the Security Council. Through it, Iraq sold about $65 billion worth of oil to buy food and medicine for the Iraqi people, to soften the harsh impact of the sanctions imposed to keep Saddam Hussein from rearming after the 1991 Gulf War.

The programme was micromanaged by the Council, particularly the United States. The U.S. scrutinized every purchase, holding up contracts for months, or even years. However, when overland oil was illegally smuggled to Jordan and Turkey, two favored U.S. allies, the United States quietly closed its eyes, according to the report of Charles Duelfer, the top U.S. investigator in Iraq.

ChevronTexaco and ExxonMobil have been subpoenaed by the Securities and Exchange Commission to determine whether they paid kickbacks or bribes to unlawfully profit from Iraq’s oil under the programme.

Moreover, earlier this week, an audit board set up by the Security Council to monitor oil sales in Iraq during the U.S.-led occupation found widespread mismanagement, faulty metering of how much oil was being pumped, and noncompetitive bidding procedures that awarded more than $10 billion in contracts to Halliburton’s subsidiary, Kellogg Brown & Root.

When Republicans began gunning for Annan’s neck, former South African president Nelson Mandela and Archbishop Desmond Tutu called the campaign against Annan “reprehensible and unjust,” saying it reflected American arrogance. They wrote, in an open letter: “Those who call for his resignation betray the objectivity his position as secretary general demands and regard the United Nations as a mouthpiece to extol and exonerate the policies of the United States of America, right or wrong.”

The same day, the Bush administration, mindful that it needs Kofi Annan’s cooperation to pull off the Iraqi elections slated for the end of January, called off its dogs. “We are expressing confidence in the secretary general and in his continuing in office,” said U.S. Ambassador to the U.N. John Danforth.

One week earlier, a blue ribbon panel of international experts Annan appointed a year ago to study the structure of the U.N. in the wake of the war on Iraq, issued a 99-page report. The panel determined there is no reason to amend the U.N. Charter’s self-defense provision. Any arguments for the use of force must be addressed to the Security Council, as required by the Charter, the report says. In a rebuff to Bush’s doctrine of preemptive war, the panel wrote: “For those impatient with such a response, the answer must be that, in a world full of perceived potential threats, the risk to the global order and the norm of nonintervention on which it continues to be based is simply too great for the legality of unilateral preventive action, as distinct from collectively endorsed action, to be accepted. Allowing one to so act is to allow all.”

The report also notably identified poverty, despair, humiliation, political oppression, foreign occupation, extremism, and human rights abuse as the breeding ground for terrorism. It advocated nuclear disarmament by all countries, not simply the developing nations. And the report argued that all U.N. member states should ratify the Rome Statute of the International Criminal Court.

Nevertheless, last week, Bush signed into law the Nethercutt Amendment, which mandates withholding aid from countries that refuse to grant immunity for U.S. citizens before the International Criminal Court. “As revelations of abuses continue,” said Richard Dicker, director of the International Justice program of Human Rights Watch, “U.S. insistence on immunity strikes a particularly raw nerve.” Dicker maintained, “The United States is bullying smaller, weaker countries because of an ideological obsession with an illusory threat. It’s putting its ill-conceived campaign ahead of other interests the U.S. government claims are its highest priorities.”

George W. Bush has consistently challenged the legitimacy of the United Nations, manipulating the Security Council when it suits his purpose, attacking it when it doesn’t. It remains to be seen how well the only organization charged with the maintenance of international peace and security, and the protection of human rights, will fare during Bush’s second term.

December 7, 2004

Chickens Come Home to Roost

Twenty-four days after the September 11 attacks, I wrote in an article called Hoist on Our Own Petard: “The hatred that fueled 19 people to blow themselves up and take thousands with them has its genesis in a history of the United States government’s exploitation of people in oil-rich nations around the world. President George W. Bush accuses the terrorists of targeting our freedom and democracy. But it was not the Statue of Liberty that was destroyed. It was the World Trade Center – symbol of the U.S.-led global economic system, and the Pentagon – heart of the United States military, that took the hits.”

Throughout the last three years, Bush has continued to disingenuously claim that the terrorists hate us for our freedom, instead of providing an honest analysis of why were attacked on September 11.

The day before Thanksgiving, the Defense Department released a report by the Defense Science Board that, for the first time, critically examines Bush’s “war on terror.” The report candidly admits: “Muslims do not hate our freedom, but rather they hate our policies.”

Almost three months ago, the report was delivered to the White House, but its conclusions have been ignored. It was made public only after it was leaked to the New York Times.

What does the report identify as the objectionable American policies? “The overwhelming majority voice their objections to what they see as one-sided support in favor of Israel and against Palestinian rights, and the long-standing, even increasing, support for what Muslims collectively see as tyrannies, most notably Egypt, Saudi Arabia, Jordan, Pakistan and the Gulf states. Thus, when American public diplomacy talks about bringing democracy to Islamic societies, this is seen as no more than self-serving hypocrisy.” This is not an excerpt from an Osama bin Laden tape. It appears in a U.S. Defense Science Board policy report.

The United States supports those Arab dictatorships because they enable us to maintain myriad U.S. military bases in their countries. Many Muslims see those bases as an insult to Islam, especially in Saudi Arabia, home to two of Islam’s holiest sites. Yesterday, the U.S. consulate in Saudi Arabia was attacked; four Saudi guards were killed and 18 local staff were taken hostage.

Mindful of the instability in Saudi Arabia, Bush changed Iraq’s regime so he could transfer his Saudi bases to Iraq. Indeed, the construction of 14 permanent U.S. bases in Iraq is well underway. When Bush’s specious weapons-of-mass destruction rationale evaporated, he quickly began talking about “bringing democracy to the Iraqi people.” But, according to the report, people throughout the Muslim and Arab world don’t buy it.

Has Bush’s “war on terror” made us safer since September 11?

His wars on the people of Afghanistan and Iraq, rather than furthering the “war on terror,” have united Muslim extremists and raised the stature of terrorist organizations like Al Qaeda, according to the report.

How do Muslims and Arabs see those wars?

They see photographs of naked Iraqis piled on top of each other, terrified Iraqis cringing in the face of snarling dogs, leashed Iraqis on all fours being led like dogs.

They see, most recently, a bloodied Iraqi with a gun held to his head by a U.S. Navy SEAL, and another Iraqi with a SEAL’s boot planted firmly on his chest.

They hear about a report written by Alberto Gonzales that makes excuses for the use of torture in America’s “war on terror.”

They hear about 550 men locked up in the U.S. prison at Guantánamo Bay, Cuba, many of whom have been tortured, some of whom will face kangaroo courts designed by Gonzales.

Then they hear Bush has nominated Gonzales to be America’s chief law enforcement officer.

They see a videotape of a U.S. Marine shooting an unarmed, wounded Iraqi in a mosque.

They see images of scores of dead Iraqis splayed on the ground in Fallujah.

They see Iraqi children whose limbs have been blown off by American bombs.

“I feel hatred. I hurt,” said Ismail Ibrahim, one of 200 displaced Fallujans living in a Baghdad school since the latest fighting drove them out. “This is my city and it has been destroyed.” Ibrahim warned, “The people of Fallujah are people of revenge. If they don’t get their revenge now, they will next year or even after 50 years.”

“The Americans just don’t get it,” according to Ibrahim. “They think that they can use their muscles to subdue the resistance. On the contrary, it will increase.”

Matloob Abbas, another Fallujan living in the school, said, “We will teach our children to be fedayeen [warriors] so they can sacrifice their lives for Islam if elections bring us another Allawi [interim prime minister chosen by the U.S.].”

Although Bush has succeeded in duping many Americans about the reasons scores of our young men and women are dying and being wounded in Iraq, few in the Muslim and Arab world are fooled.

“The two scandals [Abu Ghraib and the new Navy SEAL photos] confirm the image about the Americans known in the Middle East: that the Americans are not a charity or a humanitarian organization that is leading an experiment of democracy,” said Sateh Noureddine, managing editor of the Lebanese leftist newspaper As-Safir. “Rather, [the U.S. government] is leading a retaliatory operation following the Sept. 11 attacks.”

Anti-American sentiment is not limited to the Middle East. Luis Felipe Lampreia, a former Brazilian foreign minister, maintains, “Anti-Americanism is generalized and growing. The whole Iraq situation has brought back memories of the big stick – American power as used in Nicaragua or Chile during the Cold War. The problem is the perception that Bush uses immense power in an egotistical way.” Indeed, Bush was met with angry crowds during his recent visit to Chile.

Most of the countries in what used to be called the Third World are now home to United States military bases. This “arc of instability,” as defined by U.S. defense officials, extends from Colombia to North Africa and across the Middle East to the Philippines and Indonesia. Not by accident, it covers the world’s key oil reserves.

Hatred against Bush’s policies is growing as rapidly as news of the war crimes perpetrated by his administration travels around the world.

Bush was elected because many see him as a strong man who will protect us against the terrorists. Ironically, it is Bush’s imperialist policies that invite increased terror upon us. In the words of Malcolm X, “The chickens have come home to roost.”

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.