June 9, 2004

Bush the Would-Be Torturer

It’s all falling into place. The Wall Street Journal has revealed that Bush’s lawyers told him he can order that torture be committed with impunity. It is now official that George W. Bush is above the law.

As horror after horror emerged from Abu Ghraib prison, Americans exclaimed that this is not behavior befitting our great country. Many wondered how such atrocities could be perpetrated by United States citizens. We hoped that this was simply the behavior of a few bad apples run amok. But the dots have now been connected for us. Torture is sanctioned policy that comes from the top.

In a classified report prepared for Donald Rumsfeld in early 2003, a working group of lawyers appointed by the Defense Department’s general counsel, William J. Haynes II, advised that Bush is not bound to follow United States laws that prohibit torture. Government agents who torture under orders from Bush won’t be successfully prosecuted, according to the report, which is scheduled to be declassified in 2013.

Never mind that the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which makes it part of the supreme law of the land under our Constitution. Never mind that this treaty specifies that torture is never permitted, even in times of war. Never mind that Congress implemented this treaty by enacting a Torture Statute providing for 20 years, life in prison or, even the death penalty when the victim dies, for U.S. soldiers or civilians who engage in torture. And never mind that torture constitutes a war crime, for which our officials can be punished.

The Bush administration lawyers have created their own jurisprudence, which effectively holds the president is not bound to follow the law.

Extrapolating from the “necessity” defense in criminal law, Bush’s lawyers counsel, in effect, that the end justifies the means. It’s the proverbial ticking time bomb scenario. Torture the bastard to avert a terrorist attack. But not only is this illegal; it doesn’t work. Senator John McCain says the tortured will rarely provide reliable information. This position has been affirmed by many of the prisoners released from Abu Ghraib who said they made up information to get the torture to stop.

Bush’s legal experts also rehabilitated the “superior orders” defense. It didn’t work for the Nazis at Nuremberg or Lt. William Calley who was prosecuted for the My Lai Massacre in Vietnam. That defense can only be asserted when the defendant was following a lawful order. An order to commit torture would be unlawful, as it would violate the Convention Against Torture and the Torture Statute.

But Haynes’ team assures Bush his orders would be legal because he’s the president and he’s the highest law in the land (notwithstanding the Constitution, Congress and the Supreme Court). Indeed, one of the lawyers who prepared the report said the intention of the political appointees heading the working group was to realize “presidential power at its absolute apex.”

The report was written in response to concerns by senior officers at the U.S. prison at Guantanamo Bay, Cuba. They advocated “a rethinking of the whole approach to defending your country when you have an enemy that does not follow the rules.” Of course, we needn’t follow the rules because we’re the good guys.

Remember that in the course of trying to convince the American people that war with Iraq was necessary, Bush marshaled accusations that Saddam Hussein had tortured his people. But we have God – and Bush – on our side, so we’re allowed to torture.

In late 2002, after the Washington Post revealed allegations of behavior of U.S. commanders that might amount to torture in Afghanistan, Human Rights Watch Executive Director Kenneth Roth wrote to Bush, saying that immediate steps must be taken “to clarify that the use of torture is not U.S. policy.” Roth reminded Bush that, “U.S. officials who take part in torture, authorize it, or even close their eyes to it, can be prosecuted by courts anywhere in the world.” The prohibition against torture is so basic, it is considered jus cogens, and is thus binding on all countries, even if they haven’t ratified the Torture Convention.

The Bush administration has been emboldened to itself engage in serious human rights violations since the horrific attacks of September 11. Cofer Black, head of the CIA Counterterrorist Center in September, 2002, testified at a joint hearing of the House and Senate intelligence committee: “This is a very highly classified area, but I have to say that all you need to know: There was a before 9/11, and there was an after 9/11. After 9/11 the gloves came off.” If Bush has his way – and the most electoral votes in November – those gloves will stay off.

There are some striking contradictions between Bush administration policy in the “war on terror” and the working group’s rationalizations for Bush to authorize torture. The lawyers who prepared the report admitted that the Torture Statute applies to Afghanistan.

But they declared it does not cover our actions in Guantanamo because it is within the “territorial jurisdiction of the United States, and accordingly is within the United States.” Yet, the Bush administration has denied these prisoners access to U.S. courts to challenge their detention precisely by claiming that the U.S. is not sovereign over Guantanamo Bay. Either the United States has jurisdiction over Guantanamo or it doesn’t. You can’t have it both ways.

The Ninth Circuit Court of Appeals decided that U.S. courts do have jurisdiction to hear the Guantanamo prisoners’ complaints. That court was extremely alarmed at the government’s assertion during oral argument that these prisoners would have no judicial recourse even if they were claiming the government subjected them to acts of torture. The Ninth Circuit said: “To our knowledge, prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition.” The court said this was “a position so extreme that it raises the gravest concerns under both American and international law.”

By the end of June, the Supreme Court will decide whether U.S. courts have jurisdiction over the Guantanamo prisoners.

In December 2002, the United Nations General Assembly adopted a new anti-torture treaty after 10 years of negotiation. The Optional Protocol to the U.N. Convention against Torture will allow independent international and national experts to conduct regular visits to places of detentions within the States Parties, to assess the treatment of detainees and make recommendations for improvement. The treaty was adopted by a vote of 127 in favor, 4 against and 42 abstentions. The United States was joined by Nigeria, the Marshall Islands and Palau in opposing this treaty.

The legal advice which would permit Bush to order torture without sanction is consistent with his policy to ignore or denounce treaties and federal laws that don’t comport with his program. Bush’s unprecedented act of “unsigning” the International Criminal Court statute, and coercing Security Council resolutions and bilateral immunity agreements, are meant to ensure that neither he nor his top advisors ever become defendants in war crimes prosecutions. But under the well-established laws of the United States, Bush would be a war criminal if he authorizes torture as recommended in the classified report.

June 5, 2004

Giving Iraqis What Is Rightly Theirs—Sovereignty

George W. Bush pledged last week that on June 30, “our government and our coalition will transfer full sovereignty – complete and full sovereignty” to the new Iraqi government. With such bold assurances, why then the heartburn among Iraqis and Europeans?

Sovereignty has traditionally described a state that has a territory, a government, a population, and formal judicial autonomy. In the international legal arena, a sovereign state is entitled to territorial integrity, political independence, and exclusive jurisdiction and control within its territory.

Yet the Bush administration has danced around the notion of how much power the Iraqis will actually have over the 138,000 U.S. troops that inhabit their soil. And the U.S. is insisting that its troops enjoy immunity (it can’t say “sovereign immunity,” since it will not technically be sovereign over Iraq come June 30) from criminal or civil prosecution in Iraqi courts. This means impunity for the torture perpetrated on Iraqi prisoners.

It defies logic to assume Bush will make good on his promise to grant Iraqis full sovereignty. He went out on a limb by invading a sovereign country which posed no threat to the United States, suffering the loss of more than 800 American troops, at a cost so far of $149 billion to U.S. taxpayers. After taking such a formidable risk, Bush is unlikely to throw in the towel now and give the Iraqis complete authority to kick out his troops and control their own valuable oil resources.

Indeed, the United States plans to build the largest CIA station in the world in Baghdad and locate permanent U.S. military bases in Iraq. This presence in a country with a more U.S.-friendly government will ensure greater receptivity to foreign investment and maintain U.S. hegemony over the strategically important Persian Gulf region.

As the U.S. election approaches, Bush has held fast to the June 30 date for the “transfer of sovereignty” to Iraqis. He knows that come November, Americans, who are becoming increasingly weary of troop casualties and a failing wartime economy, will demand a way out of the quagmire.

So Bush wants to have it both ways: transfer sovereignty, but keep 138,000 pairs of feet in the door, to protect U.S. “interests.” The U.S. would, in the words of Marc Grossman, under secretary of state for political affairs, “do our very best to consult with that interim government and take their views into account” about whether our troops would remain in Iraq. But bottom line, according to Grossman, is that “American commanders will have the right, and the obligation” to decide whether our GIs stay or go.

Back in April, Grossman accurately described what the Iraqis will gain on June 30 as “limited sovereignty.” In the face of eyebrows raised all around, however, the Bush administration has backed away from that phrase, instead speaking of “complete and full sovereignty.”

Semantics, to be sure. After marginalizing U.N. special envoy Lakhdar Brahimi, Ambassador L. Paul Bremer, head of the Coalition Provisional Authority, engineered the selection of the new Iraqi Prime Minister Iyad Allawi, a man with close ties to the CIA. Allawi was responsible for the sensational claim that Iraq’s weapons of mass destruction could be deployed in 45 minutes.

In a moment of uncommon candor, Brahimi affectionately referred to Bremer as “the dictator of Iraq.” After all, said Brahimi, Bremer “has the money. He has the signature. Nothing happens without his agreement in this country.”

But Bush maintains, “I had no role” in selection of the new Iraqi leaders. Likewise, U.S. National Security Advisor Condoleezza Rice said, “These are not America’s puppets.” Coalition spokesman Dan Senor agreed. “We have not been leaning on anybody to support one president over another.” Like Donald Rumsfeld, who said on CBS News in November 2002, that the U.S. conflict in Iraq has “nothing to do with oil, literally nothing to do with oil,” the lady Condi – and Senor/Bush – doth protest too much.

Allawi is off to a good start. He said Iraqis “don’t want to continue to be under occupation.” But he pledged support for the continued presence of U.S. forces “to help in defeating the enemies of Iraq.” One wonders who these “enemies” might be. Al Qaeda was not operating in Iraq before Operation “Iraqi Freedom.” Many Iraqis see the occupiers as the enemy.

The purported transfer of sovereignty from the occupiers to the Iraqi people on June 30 will be justified by the Bush administration as consensual. The consent defense, which contends the conquered are not subjugated because they have accepted the conquest, is used by the U.S. to rationalize its possession of Puerto Rico and its other post-colonial endeavors. This defense has been challenged by Antonio Gramsci, who wrote that the consent of the conquered cannot justify the colonial relationship because the consent is a byproduct of psychological domination.

The United States and the United Kingdom are angling for agreement on a Security Council resolution that would legitimize the new Iraqi government while protecting strategic U.S.-U.K. political, economic and military interests.

The Council’s resolution is bound to include rhetoric about “full sovereignty” for Iraq, just as its resolution – also strong-armed by the U.S. – which ended the NATO bombing of Yugoslavia. It recognized the sovereignty of Yugoslavia, a country that disappeared from the map shortly thereafter.

And the United States will maintain the right to locate its military bases in the territory of Iraq, just as we retained exclusive control over the 38 U.S. bases on Okinawa after returning its sovereignty to Japan in 1972.

It is tempting to speculate about what should happen in Iraq – what do we think would be best for the Iraqis? What form should the new Iraqi government take? Can the diverse peoples that make up Iraq create a government where power is effectively shared? Will the Sunnis and Shi’a remain unified or attack each other in the event they succeed in repelling the invaders? Should the Kurds be given their own sovereign state? What will be the fate of the oil-rich Kirkuk? Will Turkey intervene with military force in the event Kirkuk’s large Turcomen population is threatened?

The people of Iraq have the right to self-determination. They have suffered an unlawful regime change that has killed thousands of them and destabilized their country. It is up to the people of Iraq – without the interference of foreigners – to determine their own form of government.

May 20, 2004

Coup d’Etat – This Time in Haiti

In 1953, the CIA overthrew Iran’s democratically elected government. It took 47 years to report that coup d’etat to the American public. Twenty-seven years after the CIA engineered the coup that ousted Chile’s democratically elected president, the agency’s report finally saw the light of day. How long will it take for the United States government to admit its role in forcibly removing the Haitian President Jean-Bertrand Aristide, whose people had elected him with 80% of the vote?

Colin Powell, now denying Bob Woodward’s explosive report about the Iraqi debacle, also denies the U.S. did anything untoward when the Marines put the Aristides on a plane to the Central African Republic on February 29. Yet the Bush Administration adamantly opposes an independent investigation of the Aristides’ departure and the quick installment of a de facto government in Haiti.

If it has nothing to hide, why did the U.S. State Department threaten the Caribbean Countries (CARICOM), who called for the United Nations to investigate the situation in Haiti? Indeed, the Bush Administration has made a habit of resisting independent investigations – of the Cheney energy task force, the 911 Commission, and the lead-up to the Iraq war.

The irony of George W. Bush’s claim that he invaded Iraq to bring democracy to the Iraqi people was not lost on President Aristide and his wife, whom I visited in Jamaica last month. President Aristide is grieving not just for himself, but also for the millions of Haitians, many of whom are in hiding from the notorious criminals who are the power behind Haiti’s de facto government.

President Aristide told us the coup was not just about 8 million people and democracy in Haiti. It is also, he said, about the right of the African people to reparations for the bitter legacy of slavery in Haiti. When threatened with a French invasion and the restoration of slavery in 1825, the Haitian government agreed to pay France 150 million francs in return for recognition as a sovereign state. France insisted upon restitution for its loss of slave “property.”

That debt has crippled Haiti ever since. It took 100 years to repay, and in the process, Haiti’s education, healthcare system, and infrastructure were eviscerated. President Aristide incurred France’s wrath by demanding the French pay restitution to Haiti, $21 billion in today’s currency, for the unjust debt. France joined the United States in engineering the removal of President Aristide from Haiti.

What did President Aristide do to offend the United States enough to remove him from power? During his first term, President Aristide had resisted privatization. The U.S. feared this threat to globalization would spread to other parts of the Caribbean and Latin America – the old domino theory. Since President Aristide’s election in 2000, the U.S. tried to sabotage Haiti’s fledgling democracy by imposing a crippling economic aid embargo, which prevented $550 million in promised international aid from reaching Haiti.

The coup in Haiti was executed through surrogates in the Dominican Republic, as well as members of the dissolved Haitian army and former paramilitary organizations. U.S. diplomats told the Aristides they would be killed if President Aristide did not sign a resignation letter. Under extreme duress, he signed a letter, which the State Department-hired interpreter would not characterize as a resignation. The Aristides were held incommunicado for 20 hours as they were flown to the Central African Republic. The U.S. had refused to send troops to protect the Aristide government. Yet one hour after he left Haiti, the U.S. ordered troops to Haiti.

The National Lawyers Guild delegations to Haiti verified brutal and indiscriminate repression against the civilian population since the coup. It is incumbent upon the United Nations to immediately address this emergency. The forcible removal of the Aristides from Haiti violates the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, a treaty ratified by the U.S.

Since March 15, the Aristides have been in Jamaica, where they were granted temporary asylum. The United States has exerted intense pressure on Jamaica and the other CARICOM countries to recognize the de facto government in Haiti. As a result, the Aristides must leave Jamaica and travel to South Africa, which has granted them asylum until the situation in Haiti stabilizes and they can return. Spokesman Joel Netshitenzhe said the South African government supports the call for an investigation into President Aristide’s removal from Haiti and seeks to build an international consensus against unilateral regime changes.

As we took leave of the Aristides in Jamaica, President Aristide quoted the slave general Toussaint l’Ouverture, who led the successful rebellion that ousted the French from Haiti in 1804: “In overthrowing me, you have cut down in San Domingo [Haiti] only the trunk of the tree of black liberty. It will spring up again by the roots for they are numerous and deep.” The Haitian people, who have endured insufferable hardships at the hands of colonial powers, hold the roots of liberty within themselves.

May 14, 2004

War Crimes

Trying to quell the growing firestorm last week, Defense Secretary Donald Rumsfeld told reporters, “My impression is that what has been charged thus far is abuse, which I believe, technically, is different from torture.” Rumsfeld said he hadn’t had a chance to finish reading Army Major General Antonio Taguba’s report, which was completed two and a half months ago.

Torture at Abu Ghraib

Rumsfeld apparently hadn’t gotten to the part of the report that described the “sodomizing of a detainee with a chemical light and perhaps a broomstick,” as well as “positioning a naked detainee on a box with a sandbag on his head, and attaching wires to his fingers, toes and penis to simulate electric torture,” and “using military working dogs (without muzzles) … biting and severely injuring a detainee.”

This conduct does amount to torture under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which occurs when a public official or one acting in an official capacity intentionally inflicts, instigates or consents to the infliction of severe pain or suffering on a person for the purpose of obtaining information or a confession. Torture is never permitted, even in times of war.

Evidently Rumsfeld also hasn’t had time to read this treaty, which the United States has ratified and thus is part of the law of the land under our Constitution.

When Rumsfeld parsed his technical distinction between abuse and torture, he probably hadn’t yet seen the videotapes, which purportedly show U.S. soldiers having [presumably nonconsensual] sex with an Iraqi woman prisoner, troops nearly beating a prisoner to death, and rapes of young boys by Iraqi guards at Abu Ghraib prison. These would also qualify as torture.

Torture is a crime under federal law. When a U.S. national conspires, attempts, or commits torture outside of the United States, he can be sentenced to 20 years in prison. If his victim dies, the perpetrator can receive life in prison or the death penalty.

Other acts chronicled in the Taguba report, such as forcing groups of male detainees to masturbate themselves while being filmed, and holding a naked detainee by a dog chain or strap around his neck, would, at a minimum, amount to inhuman treatment. While testifying before the Senate Armed Services Committee on Friday, Rumsfeld admitted that some of the photographs that hadn’t been made public depicted “sadistic, cruel and inhuman” behavior.

Many of the findings in the Taguba report are confirmed in the newly released report of the International Committee of the Red Cross, which also found systemic abuse of security detainees at Abu Ghraib. Shockingly, the Red Cross reports that 70 to 90 percent of detainees in Iraq were arrested by mistake. The Red Cross characterized some of the interrogation tactics as “tantamount to torture.”

Torture and Inhuman Treatment are War Crimes

Both torture and inhuman treatment are considered war crimes under the Geneva Convention, another treaty the United States has ratified. The War Crimes Act of 1996 provides that military or civilian U.S. nationals could receive life in prison, or the death penalty if a victim dies. There is evidence that at least one Iraqi died while being interrogated at Abu Ghraib.

These atrocities are not, as the Bush administration would like us to believe, confined to the Abu Ghraib prison or even to Iraq. According to the Taguba report, Major General Geoffrey D. Miller, the Commander at the Guantanamo prison, was sent to Iraq late last year “to review current Iraqi Theater ability to rapidly exploit internees for actionable intelligence.” Miller used Guantanamo interrogation procedures as baselines.

A prisoner released from Guantanamo told Amnesty International that the interrogations there “were like torture.” Australian lawyer Richard Bourke reported on ABC Radio that one of the Guantanamo detainees “had described being taken out and tied to a post and having rubber bullets fired at them. They were being made to kneel cruciform in the sun until they collapsed.”

Torture has also been used in Afghanistan. In December 2002, the documentary “Massacre in Afghanistan” was broadcast on German television. An Afghan soldier recounted being ordered by an American commander to fire shots into the closed containers which transported prisoners. Some died from suffocation; others were dumped in the desert, shot and left to be eaten by dogs, as 30 to 40 American soldiers watched.

A week after the documentary aired, the Washington Post reported that “stress and duress” tactics were used on prisoners interrogated at the U.S.-occupied Bagram air base in Afghanistan. The U.S. military admitted that two prisoners were victims of homicide.

Rumsfeld Pans Geneva

When Rumsfeld decided the Third Geneva Convention didn’t apply to the prisoners at Guantanamo or Afghanistan, after unilaterally declaring they weren’t prisoners of war, he sent an implicit message to future American interrogators in Iraq that detainees need not be treated humanely.

Rumsfeld presumably overlooked the Fourth Geneva Convention, which protects civilians in time of war. It prohibits the use of physical or moral coercion to obtain information from them.

War Crimes Up the Chain of Command

Only seven U.S. soldiers have been charged with crimes at Abu Ghraib under the Uniform Code of Military Justice. None of the military or civilian (i.e., mercenary) personnel has yet been charged with war crimes under U.S. civilian law.

The influential Army Times implicates both Gen. Richard Myers, chairman of the joint Chiefs, and Rumsfeld in the Iraqi prison scandal. It states that the responsibility “extends all the way up the chain of command to the highest reaches of the military hierarchy and its civilian leadership.”

In its report, the Red Cross described physical and psychological coercion by interrogators which “appeared to be part of the standard operating procedures used by military intelligence personnel.” The myriad photographs confirm that the perpetrators felt they had nothing to hide from their superiors.

Even though Taguba and Stephen A. Cambone, undersecretary of defense for intelligence, disagree about whether military intelligence or military police were in charge of interrogations at the Abu Ghraib prison, the well-established doctrine of command responsibility supports criminal liability for those who knew or should have known of the misconduct, yet failed to stop or prevent it.

Rumsfeld’s involvement in setting policy for Guantanamo Bay is instructive here. Twenty of the most egregious interrogation techniques used at Guantanamo, which Human Rights Watch describes as “cruel and inhumane,” were “approved at the highest levels of the Pentagon and the Justice Department,” including Rumsfeld, according to the Washington Post.

In the words of the Army Times, “This was not just a failure of leadership at the local command level. This was a failure that ran straight to the top. Accountability here is essential – even if it means relieving top leaders from duty in a time of war.”

Policymakers must be held accountable. All those in the chain of command should be investigated, and war crimes prosecutions initiated of the responsible military and civilian personnel.

Donald Rumsfeld should not only be relieved of his duties as Secretary of Defense. He must also be investigated for war crimes.

May 5, 2004

Torturing Hearts and Minds

U.S. soldiers who fought in Vietnam were trained to think of the North Vietnamese as “gooks.” The objectification of the non-white enemy made it more palatable to kill and abuse them. American troops and mercenaries in Iraq likewise objectified their Iraqi prisoners when they sexually abused and sadistically humiliated them in the Abu Ghraib prison near Baghdad. One U.S. official, who told the Los Angeles Times that 50-100 Iraqis died in U.S. custody last year, said, “There was a mentality that the people we’re in charge of are not humans.”

Graphic photographs, which the Defense Department finally allowed CBS to release after two weeks of keeping them under wraps, depict Americans posing, laughing, pointing or giving the thumbs-up to the mistreatment of nude Iraqis. But although the Bush administration claims these are isolated incidents, they were just the tip of the iceberg.

An Army report found “systemic and illegal abuse,” including “numerous incidents of sadistic, blatant and wanton criminal abuses.” It lists numerous examples of physical and sexual abuse, including “sodomizing a detainee with a chemical light and perhaps a broomstick,” and “positioning a naked detainee on a box with a sandbag on his head, and attaching wires to his fingers, toes and penis to stimulate electric torture.”

These actions are not only offensive to human dignity; they violate the Geneva Convention, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The United States has ratified both of these treaties, which makes them part of the Supreme Law of the U.S. under the Constitution.

Six American soldiers have been charged with crimes under the Uniform Code of Military Justice. The charges include indecent acts, ordering detainees to publicly masturbate, maltreatment, non-physical abuse, piling inmates into nude pyramids and taking pictures of them nude, battery, shoving and stepping on detainees, dereliction of duty, and ordering detainees to strike each other.

The Third Geneva Convention requires that prisoners of war be treated humanely. They must be protected from violence, intimidation, insults and public curiosity. Their honor must be respected. Even if the Iraqis were not considered prisoners of war, they could not be subjected to physical or moral coercion to obtain information from them, under the Fourth Geneva Convention, which protects civilians in time of war. Torture and inhuman treatment constitute grave breaches of the Geneva Conventions, which are considered war crimes.

These six soldiers will not face prosecution for war crimes in the International Criminal Court, however. The court’s statute is premised on the principle of complementarity. This means that if the alleged perpetrator’s country of origin prosecutes him or her, the international court would not have jurisdiction. The U.S. military is preferring charges against the soldiers, which might satisfy that requirement. Additionally George W. Bush has denounced the International Criminal Court, presumably to insulate American soldiers and leaders from just this type of war crimes prosecution.

The Convention Against Torture prohibits the intentional infliction of severe pain or suffering for the purpose of obtaining information or a confession, when inflicted, instigated or consented to by a public official or one acting in an official capacity. No exceptional circumstances, including a state of war, will justify the use of torture.

The tortured Iraqi prisoners would have a cause of action in U.S. courts under the War Crimes Act of 1996, which provides for life imprisonment for members of U.S. armed forces or U.S. nationals who commit war crimes. The Act carries the death penalty when the victim dies. There is evidence that at least one Iraqi died while being interrogated at Abu Ghraib prison.

Army Reserve Staff Sgt. Chip Frederick, one of those charged, intimated that force was used during interrogations of Iraqi prisoners. He wrote, “We help getting them to talk with the way we handle them … We’ve had a very high rate with our style of getting them to break. They usually end up breaking within hours.”

Frederick claims he never had the opportunity to read the Geneva Convention, which prohibits the infliction of physical or mental torture, or any other form of coercion, on prisoners of war to secure information from them. Military intelligence officers, wrote Frederick, “encouraged us, and told us, ‘great job,’ that they were now getting positive results and information.” Frederick claims he questioned the harsh treatment of Iraqis, but “the answer I got was this is how military intelligence wants it done.” Yet Frederick referred to Iraqi men as “animals,” according to a witness in an April military court hearing in Iraq.

Frederick will not likely prevail by arguing that he was just following orders, which Lt. William Calley claimed unsuccessfully in his murder trial. Calley was prosecuted for his part in the My Lai Massacre during the Vietnam War, where hundreds of unarmed old men, women and children were killed by American soldiers. He was convicted of premeditated murder. Calley’s superior officers, however, were never charged. Many think Calley was scapegoated to save senior officers from prosecution. But he was paroled after serving only three years of his life sentence.

None of the U.S. commanding officers at the Iraqi prison has yet been prosecuted. Brig. Gen. Janis Karpinski of the Army Reserve, who was in charge of the soldiers photographed abusing the Iraqi prisoners, denies any knowledge of the mistreatment.

The well-established doctrine of command responsibility, enshrined in both the Nuremberg Tribunal and the International Criminal Court’s statute, as well as in U.S. military law, provides criminal liability for commanders whose underlings commit war crimes. Even if the superior officer did not personally carry out the criminal acts, she would be liable if she knew or should have known of the conduct, yet failed to take reasonable measures to prevent or repress the criminal behavior.

Karpinski acknowledges that she “probably should have been more aggressive” about visiting the cellblock in question. Military intelligence officers had encouraged Karpinski not to visit, and excluded the International Committee of the Red Cross from the cellblock where the atrocities occurred. Karpinski’s lawyer claims that Karpinski is being made a scapegoat for military intelligence officers. But if Karpinski were criminally charged, a military jury might find she should have known something untoward was happening when military intelligence went to great lengths to deny her access to a cellblock under her command.

Indeed, the Army report “found particularly disturbing” Karpinski’s “complete unwillingness to either understand or accept that many of the problems inherent in the 800th M.P. Brigade were caused or exacerbated by poor leadership and the refusal of her command to both establish and enforce basic standards and principles among its soldiers.”

The report also noted that one civilian interrogator who was a contractor [i.e., mercenary], “clearly knew his instructions” to the military police constituted physical abuse. Unfortunately, our military law has no jurisdiction over the 15,000-20,000 mercenaries serving in Iraq, one of whom allegedly raped a young male prisoner. Another Iraqi prisoner reported, “they covered all the doors with sheets. I heard the screaming … and the female soldier was taking pictures” during the alleged rape.

The treatment of Iraqi prisoners resembles the treatment of prisoners being held by the American military at Guantanamo Bay, Cuba. Thousands of Iraqis have been incarcerated for months on suspicion of being an “imperative threat to security.” More than 600 men and boys have been held for two years at Guantanamo with no criminal charges against them.

Some prisoners released from Guantanamo reported interrogations “like torture,” the use of drugs “that made us senseless,” being tied to a post and having rubber bullets fired at them, and being made to kneel cruciform in the sun until they collapsed. Retired federal Judge John G. Gibbons, representing those still held at Guantanamo, told the Supreme Court two weeks ago that Guantanamo is a “lawless enclave” – much like the Abu Ghraib prison in Iraq.

Parallels between Guantanamo and Abu Ghraib are not coincidental. Karpinski reported that a team of military intelligence officers from the Guantanamo prison arrived at Abu Ghraib a month before the photographed abuses. “Their main and specific mission,” she said, “was to get the interrogators – give them new techniques to get more information from detainees.”

The Ninth U.S. Circuit Court of Appeals, which said last year that the Guantanamo prisoners are entitled to challenge their detention in U.S. courts, was concerned at the government’s assertion that the prisoners should have no judicial recourse even if they were claiming the government subjected them to acts of torture or summary execution. “To our knowledge,” the Ninth Circuit wrote, “prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition.”

As increasing numbers of people continue to die in the occupied territory of Iraq, outrage in the Arab world is growing. State Department spokesman Richard Boucher, however, “was not too concerned” about whether the allegations of torture at Abu Ghraib prison undermined U.S. credibility and standing with the Arab countries.

The utter disdain the Bush administration has shown for the human rights of its prisoners and the rule of law belies Bush’s claims that he stands for human dignity and freedom. The U.S. government aimed to win the “hearts and minds” of the Vietnamese people as it rained bombs down on them. It will be no more successful at winning the hearts of minds of the Iraqis, as it bombards Fallujah to avenge the deaths of four mercenaries, and its troops and mercenaries torture Iraqi prisoners.

March 17, 2004

Spain, the EU and the US—War on Terror or War on Liberties?

Once again, the eyes of the world are focused on a brutal and devastating terrorist attack on innocent civilians, this time in Spain. But instead of demanding tougher anti-terrorism laws, the Spaniards on Sunday voted out the center-right government that supported the Iraq war. The Spanish people, who had overwhelmingly opposed the war, were evidently moved by Al Qaeda’s statement that the attack was “a response to your collaboration with the criminals Bush and his allies.”

As the Spanish national elections approached last week, the center-right government had tried to lay blame for the vicious rail attack on the Basque separatist movement ETA, hoping that the people would respond by voting for the existing government. But when the evidence pointed to Al Qaeda, the Spanish people unseated the old government, and replaced it with the Socialists.

On Sunday, the New York Times analyzed Spain’s readiness to sign onto George W. Bush’s war on terror: “Spain, like Britain, embraced the American approach, principally in order to place its fight against ETA in the context of a global war on terrorism.” The soon-to-be Prime Minister Jose Luis Rodriguez Zapatero recognizes this well. “This [former] government,” he told journalists, “doesn’t serve Spaniards any more, it only serves the interests of Bush.”

Spain was one of the few European countries that stood by Bush in his war on Iraq. After September 11, 2001, under the guise of the “war on terror,” the Bush administration had launched a war on civil liberties. Although unable to convince most European countries to participate in its Iraq war, Washington successfully pressured the European Union to enact a framework law on terrorism reminiscent of the repressive anti-terrorist legislation in the United States.

At the end of February, I participated in a colloquium in Brussels on the struggle against terrorism and the protection of fundamental rights. Invited by the Belgian Progress Lawyers Network, I was tasked with explaining the post-September 11 anti-terrorism laws in the United States to a large gathering of European lawyers.

Three days before the colloquium, United States Education Secretary Roderick R. Paige called the largest teachers union in the U.S. a “terrorist organization.” This characterization alarmed the lawyers at the colloquium, who fear that their own anti-terrorism laws will be used to suppress labor struggles.

As lawyers and law professors from country after country rose to speak about their anti-terrorism laws, I felt an ominous deja-vu. The geography was different but the themes were familiar: vague laws that criminalize dissent, authorize preventive detention, and blur the separation of powers.

Many of the new anti-terrorism laws in Europe, as in the United States, were in the works before September 11. The 342-page Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, or USA Patriot Act, rushed through Congress a month after September 11, contains detailed provisions that had to have been a long time in the drafting. Similarly, my European colleagues explained that their governments, looking for ways to criminalize trade union activity throughout the 1990s, took advantage of the September 11 attacks to pass laws that will facilitate attacks on labor.

In June 2002, the European Union enacted a framework decision on combating terrorism. It establishes a joint definition of “terrorism” that member states are expected to insert in their national legislation. This definition is so broad, it proscribes many social, political and labor movements. It says that committing or threatening to (a) cause extensive damage to a government or public facility, transport system, infrastructure facility, or private property likely to result in major economic loss, which may damage a government or international organization, constitutes a terrorist offense, when committed with the intent either (a) to compel the organization to perform or abstain from any act, or (b) to seriously destabilize or destroy the fundamental political, constitutional, economic or social structure of a country or international organization. A general strike or a large demonstration against the World Trade Organization, where property is damaged and considerable expense is incurred to mobilize a police force, could be punished as terrorism under this definition.

The framework decision contains a clause that aims to protect civil liberties: “Nothing in this Framework Decision may be interpreted as being intended to reduce or restrict fundamental rights or freedoms such as the right to strike, freedom of assembly, of association or of expression, including the right of everyone to form and to join trade unions with others for the protection of his or her interests and the related right to demonstrate.” But the European lawyers at the colloquium were of the mind that this disclaimer merely provides lip service to the protection of basic civil rights. They pointed out that the Nazi occupiers attached the word “terrorist” to the political prisoners interned at the Breendonk concentration camp near Brussels, and Nelson Mandela was called a terrorist before he was released from prison and elected president of the newly liberated South Africa.

Six European Union member states have enacted specific legislation to comply with the framework decision. All consider the destabilization of political or economic power an element of terrorist crime. Other member states are using their existing laws on criminal conspiracy to punish not just participation in terrorist acts, but also simply being a member of prohibited organizations.

In December 2003, the Belgian Parliament enacted an anti-terrorism law to comply with the framework decision. Under its terms, someone painting graffiti in an urban environment can be considered a terrorist, if the public prosecutor and judge decide that the destruction of property was undertaken with the purpose of “destabilizing or destroying the fundamental political, constitutional, economic or social structures of a country” and it caused “considerable economic damage.”

The United Kingdom passed the Anti-Terrorism, Crime and Security Act 2001 in the wake of the September 11 attacks. A person can be indefinitely detained if the Home Secretary issues a certificate stating he has (a) a reasonable belief that a person’s presence in the United Kingdom is a risk to national security, and (b) a reasonable suspicion that the person is a terrorist. “Terrorism” in the United Kingdom encompasses the use or threat, “for the purpose of advancing a political, religious or ideological cause,” of action “designed to influence a government or to intimidate the public or a section of the public,” which involves serious violence against any person or serious damage to property, endangers the life of any person, or “creates a serious risk to the health or safety of the public or a section of the public, or is designed seriously to interfere with or seriously disrupt an electronic system.”

The law professors from the United Kingdom felt that this definition is so broad, it is unworkable, and blurs the line between protest and terrorist groups.

In Italy, the anti-terrorism law provides for five to ten years imprisonment for simply participating in organizations that “aim to commit violent actions with subversive purposes against the democratic order.” An Italian lawyer complained that the provision does not define “subversive purpose” or delineate what level of participation is required to run afoul of this statute. He said the Italian law harkens back to the Fascist code on terrorism. Likewise, some pointed out that the Spanish definition of terrorism is the same as the one in effect during Franco’s regime.

Two hundred European lawyers, magistrates and jurists signed a statement complaining that the European framework decision threatens democratic rights. Last year, members of the United Nations Human Rights Commission expressed concern at the “broad use of the word terrorism” and the “increasing attack on human rights” in the struggle against terrorism.

Lawyers at the colloquium observed that in Germany, Belgium and the United Kingdom, the executive branch had enacted anti-terrorist laws, which place all power in the executive, blurring the separation of powers.

Many also expressed concern at the absence of guarantees that the privacy of databases shared by European countries with the United States would be protected. A British lawyer observed that providing sophisticated security devices will be quite profitable; he called it the “security-industrial complex.”

Some pointed out that whereas the European Union defines terrorism as a crime, the United States sees terrorism as an act of war. International state terrorism, or regime change (such as the United States’ war on Iraq), however, is conveniently excluded from the definitions of terrorism.

Most people in Europe opposed the war on Iraq, and they do not see a war on civil liberties as an effective antidote to terrorism. David, a young Spaniard, told the New York Times why he changed his vote to Socialist: “Maybe the Socialists will get our troops out of Iraq, and Al Qaeda will forget about Spain, so we will be less frightened.”

During the election campaign, Zapatero vowed to change the government’s policy toward ETA, saying, “We have to sell the idea that Spain can be more democratic and that it can understand the needs of the Basque country.” He understands that long as poverty, repression and imperialism are the norm, terrorism will be the frightening response.

February 17, 2004

Drake Gate: A Victory for Free Speech

Apparently for the first time since the dark days of J. Edgar Hoover, the government has tried to use the grand jury to harass and intimidate anti-war protestors. Drake University and four peace activists were recently subpoenaed to produce records about the National Lawyers Guild before a federal grand jury in Iowa. But in response to the Guild’s opposition and widespread outrage throughout the country, the subpoenas were withdrawn on February 10. This is a major victory for the National Lawyers Guild and the peace movement.

The subpoenas constitute a flagrant attack on constitutionally protected speech and association. They signal George W. Bush’s strategy to make national security a centerpiece of his election campaign, and send a blunt message that dissent will not be tolerated. Bush also likely seeks to intimidate Democrats and shore up his Republican base in Iowa, which he lost in the 2000 election by a slim margin.

Served on February 3 by a Polk County deputy sheriff who works with the FBI Joint Terrorism Task Force, the subpoenas ordered Drake University to turn over documents relating to a November National Lawyers Guild conference. The conference presented nonviolence training for people planning to demonstrate the next day at an anti-war rally at the Iowa National Guard headquarters. Twelve protestors were arrested at the peaceful rally titled, “Stop the Occupation! Bring the Iowa Guard Home!”

These subpoenas requested the agenda and purpose of the meeting, the identities of attendees and Guild officers, and observations of campus security. The individuals served with subpoenas include the leader of the Catholic Peace Ministry, the former coordinator of the Iowa Peace Network, a member of the Catholic Worker House, and an anti-war activist who visited Iraq in 2002.

The U.S. Attorney’s office said that the sole intent of the subpoenas was to gather information about a solitary demonstrator who scaled a fence on federal property on a different day than the anti-war conference/training. Why then did the government issue five subpoenas calling for information about peaceful activists and the National Lawyers Guild? Iowa Sen. Tom Harkin was right when he said, “I don’t like the smell of it…It reminds me too much of Vietnam when war protestors were rounded up, when grand juries were convened to investigate people who were protesting the war.”

The gag order slapped on Drake employees before the subpoenas were withdrawn confirms the government’s intention to conduct its witch hunt in secrecy. John Ashcroft, traveling the country to drum up support for the USA PATRIOT Act, claimed it was not intended to authorize political surveillance of lawful dissent. Yet the Act lowered standards for government surveillance and created a crime of “domestic terrorism,” which Ashcroft will likely use to target other organizations that criticize government policies.

This is not the first time the National Lawyers Guild’s support of activism has made it a government target. In the 1950s, Guild members were subpoenaed before the House Un-American Activities Committee for defending people accused of associating with communists during the McCarthy era.

Years later, the Guild filed a lawsuit against the FBI for unlawful surveillance. The FBI had put agents in Guild meetings, wiretapped lawyers’ offices and homes, and built dossiers on those perceived as critical of governmental policies. In 1989, the FBI finally admitted it had tried to disrupt the Guild even though it had no proof the Guild was a subversive organization.

After the Iowa subpoenas were withdrawn, Guild President Michael Avery said, “The government was forced to back down in this case and it shows that people can and should stand up to the government when it is abusing its powers … the American people cherish their right of free expression and the right of political groups to dissent from government policies.”

The National Lawyers Guild is calling for congressional hearings to determine the extent to which the government is gathering information on student political groups. In the face of Bush’s request that Congress make the PATRIOT Act permanent, we call on Congress to sunset the PATRIOT Act now.

Government Withdrawal of Drake Protest Subpoenas as Targeting National Lawyers Guild is Victory for Free Speech