Rothschild | Stripping Rumsfeld and Bush of Impunity

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Rothschild | Stripping Rumsfeld and Bush of Impunity

Sat, 28 May 2005 11:26:12 -0700

 

 

Rothschild | Stripping Rumsfeld and Bush of Impunity

http://www.truthout.org/docs_2005/052805X.shtml

 

By Matthew Rothschild

The Progressive

 

July 2005 Issue

 

When Lieutenant General Ricardo Sanchez testified before the

Senate Armed Services Committee last year, he was asked whether he

" ordered or approved the use of sleep deprivation, intimidation by

guard dogs, excessive noise, and inducing fear as an interrogation

method for a prisoner in Abu Ghraib prison. " Sanchez, who was head of

the Pentagon's Combined Joint Task Force-7 in Iraq, swore the answer

was no. Under oath, he told the Senators he " never approved any of

those measures to be used. "

 

But a document the American Civil Liberties Union (ACLU) obtained

from the Pentagon flat out contradicts Sanchez's testimony. It's a

memorandum entitled " CJTF-7 Interrogation and Counter-Resistance

Policy, " dated September 14, 2003. In it, Sanchez approved several

methods designed for " significantly increasing the fear level in a

detainee. " These included " sleep management " ; " yelling, loud music,

and light control: used to create fear, disorient detainee, and

prolong capture shock " ; and " presence of military working dogs:

exploits Arab fear of dogs. "

 

On March 30, the ACLU wrote a letter to Attorney General Alberto

Gonzales, urging him " to open an investigation into whether General

Ricardo A. Sanchez committed perjury in his sworn testimony. "

 

The problem is, Gonzales may himself have committed perjury in his

Congressional testimony this January. According to a March 6 article

in The New York Times, Gonzales submitted written testimony that said:

" The policy of the United States is not to transfer individuals to

countries where we believe they likely will be tortured, whether those

individuals are being transferred from inside or outside the United

States. " He added that he was " not aware of anyone in the executive

branch authorizing any transfer of a detainee in violation of that

policy. "

 

" That's a clear, absolute lie, " says Michael Ratner, executive

director of the Center for Constitutional Rights, who is suing

Administration officials for their involvement in the torture scandal.

" The Administration has a policy of sending people to countries where

there is a likelihood that they will be tortured. "

 

The New York Times article backs up Ratner's claim. It says " a

still-classified directive signed by President Bush within days of the

September 11 attacks " gave the CIA broad authority to transfer

suspected terrorists to foreign countries for interrogations. Human

Rights Watch and Amnesty International estimate that the United States

has transferred between 100 and 150 detainees to countries notorious

for torture.

 

So Gonzales may not be the best person to evaluate the allegation

of perjury against Sanchez.

 

But going after Sanchez or Gonzales for perjury is the least of

it. Sanchez may be personally culpable for war crimes and torture,

according to Human Rights Watch. And Gonzales himself was one of the

legal architects of the torture policies. As such, he may have been

involved in " a conspiracy to immunize U.S. agents from criminal

liability for torture and war crimes under U.S. law, " according to

Amnesty International's recent report: " Guantánamo and Beyond: The

Continuing Pursuit of Unchecked Executive Power. "

 

As White House Counsel, Gonzales advised President Bush to not

apply Geneva Convention protections to detainees captured in

Afghanistan, in part because this " substantially reduces the threat of

domestic criminal prosecution under the War Crimes Act, " Gonzales

wrote in his January 25, 2002, memo to the President.

 

Gonzales's press office refused to provide comment after several

requests from The Progressive. In his Senate confirmation testimony,

Gonzales said, " I want to make very clear that I am deeply committed

to the rule of law. I have a deep and abiding commitment to the

fundamental American principle that we are a nation of laws, and not

of men. "

 

Pentagon spokesperson Lieutenant Colonel John Skinner says the

ACLU's suggestion that Sanchez committed perjury is " absolutely

ridiculous. " In addition, Skinner pointed to a recent Army inspector

general report that looked into Sanchez's role. " Every senior-officer

allegation was formally investigated, " the Army said in a May 5

summary. Sanchez was investigated, it said, for " dereliction in the

performance of duties pertaining to detention and interrogation

operations " and for " improperly communicating interrogation policies. "

The inspector general " found each of the allegations unsubstantiated. "

 

The Bush Administration's legal troubles don't end with Sanchez or

Gonzales. They go right to the top: to Secretary of Defense Donald

Rumsfeld and President Bush himself. Both Human Rights Watch and

Amnesty International USA say there is " prima facie " evidence against

Rumsfeld for war crimes and torture. And Amnesty International USA

says there is also " prima facie " evidence against Bush for war crimes

and torture. (According to Random House Webster's Unabridged

Dictionary, " prima facie evidence " is " evidence sufficient to

establish a fact or to raise a presumption of fact unless rebutted. " )

 

Amnesty International USA has even taken the extraordinary step of

calling on officials in other countries to apprehend Bush and Rumsfeld

and other high-ranking members of the Administration who have played a

part in the torture scandal.

 

Foreign governments should " uphold their obligations under

international law by investigating U.S. officials implicated in the

development or implementation of interrogation techniques that

constitute torture or cruel, inhuman, or degrading treatment, " the

group said in a May 25 statement. William Schulz, executive director

of Amnesty International USA, added, " If the United States permits the

architects of torture policy to get off scot-free, then other nations

will be compelled " to take action.

 

The Geneva Conventions and the torture treaty " place a legally

binding obligation on states that have ratified them to exercise

universal jurisdiction over persons accused of grave breaches of the

Geneva Conventions, " Amnesty International USA said. " If anyone

suspected of involvement in the U.S. torture scandal visits or

transits through foreign territories, governments could take legal

steps to ensure that such individuals are investigated and charged

with applicable crimes. "

 

When these two leading human rights organizations make such bold

claims about the President and the Secretary of Defense, we need to

take the question of executive criminality seriously.

 

And we have to ask ourselves, where is the accountability? Who has

the authority to ascertain whether these high officials committed war

crimes and torture, and if they did, to bring them to justice?

 

The independent counsel law is no longer on the books, so that

can't be relied on. Attorney General Gonzales is not about to

investigate himself, Rumsfeld, or his boss. And Republicans who

control Congress have shown no interest in pursuing the torture

scandal, much less drawing up bills of impeachment.

 

Amnesty International USA, Human Rights Watch, the Center for

Constitutional Rights, the ACLU, the American Bar Association, and

Human Rights First (formerly known as the Lawyers Committee for Human

Rights) have joined in a call for a special prosecutor. But that

decision is up to Gonzales and ultimately Bush.

 

" It's a complete joke " to expect Gonzales to appoint a special

prosecutor, concedes Ratner of the Center for Constitutional Rights.

 

John Sifton, Afghanistan specialist and military affairs

researcher for Human Rights Watch, is not so sure. " Do I think this

would happen right now? No, " he says. " But in the middle of the

Watergate scandal, very few people thought the President would

resign. " If more information comes out, and if the American public

demands an investigation, and if there is a change in the control of

the Senate, Sifton believes Gonzales may end up with little choice.

 

Human Rights Watch and other groups are also calling for Congress

to appoint an independent commission, similar to the 9/11 one, to

investigate the torture scandal.

 

" Unless a special counsel or an independent commission are named,

and those who designed or authorized the illegal policies are held to

account, all the protestations of `disgust' at the Abu Ghraib photos

by President George W. Bush and others will be meaningless, " concludes

Human Rights Watch's April report " Getting Away with Torture? Command

Responsibility for the U.S. Abuse of Detainees. "

 

But even as it denounces the " substantial impunity that has

prevailed until now, " Human Rights Watch is not sanguine about the

likelihood of such inquiries. " There are obviously steep political

obstacles in the way of investigating a sitting Defense Secretary, " it

notes in its report.

 

By not pursuing senior officials who may have been involved in

ordering war crimes or torture, the United States may be further

violating international law, according to Human Rights Watch. " Each

State Party shall ensure that its competent authorities proceed to a

prompt and impartial investigation, whenever there is reasonable

ground to believe that an act of torture has been committed in any

territory under its jurisdiction, " says the Convention Against Torture

and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The

Geneva Conventions have a similar requirement.

 

Stymied by the obstacles along the customary routes of

accountability, the ACLU and Human Rights First are suing Rumsfeld in

civil court on behalf of plaintiffs who have been victims of torture.

The Center for Constitutional Rights is suing on behalf of a separate

group of clients. The center also filed a criminal complaint in

Germany against Rumsfeld and Gonzales, along with nine others. The

center argued that Germany was " a court of last resort, " since " the

U.S. government is not willing to open an investigation into these

allegations against these officials. " The case was dismissed.

 

Amnesty International's call for foreign countries to nab Rumsfeld

and Bush also seems unlikely to be heeded any time soon. How,

physically, could another country arrest Bush, for instance? And which

country would want to face the wrath of Washington for doing so?

 

But that we have come this far—where the only option for justice

available seems to be to rely on officials of other governments to

apprehend our own—is a damning indictment in and of itself.

 

The case against Rumsfeld may be the most substantial of all.

While " expressing no opinion about the ultimate guilt or innocence " of

Rumsfeld, Human Rights Watch is urging his prosecution under the War

Crimes Act of 1996 and the Anti-Torture Act of 1996. Under these

statutes, a " war crime " is any " grave breach " of common Article 3 of

the Geneva Conventions, which prohibits " outrages upon personal

dignity, in particular, humiliating and degrading treatment, " as well

as torture and murder. A " grave breach, " according to U.S. law,

includes " willful killing, torture, or inhuman treatment of prisoners

of war and of other `protected persons,' " Human Rights Watch explains

in " Getting Away with Torture? "

 

Rumsfeld faces jeopardy for being head of the Defense Department

when those directly under him committed grave offenses. And he may be

liable for actions he himself undertook.

 

" Secretary Rumsfeld may bear legal liability for war crimes and

torture by U.S. troops in Afghanistan, Iraq, and Guantánamo under the

doctrine of `command responsibility'—the legal principle that holds a

superior responsible for crimes committed by his subordinates when he

knew or should have known that they were being committed but fails to

take reasonable measures to stop them, " Human Rights Watch says in its

report.

 

But Rumsfeld's potential liability may be more direct than simply

being the guy in charge who didn't stop the torture and mistreatment

once he learned about it.

 

First of all, when the initial reports of prisoner mistreatment

came in, he mocked the concerns of human rights groups as " isolated

pockets of international hyperventilation. " He also asserted that

" unlawful combatants do not have any rights under the Geneva

Convention, " even though, as Human Rights Watch argues, " the Geneva

Conventions provide explicit protections to all persons captured in an

international armed conflict, even if they are not entitled to POW

status. "

 

Secondly, he himself issued a list of permissible interrogation

techniques in a December 2, 2002, directive that likely violated the

Geneva Conventions, according to Human Rights Watch. Among those

techniques: " The use of stress positions (like standing) for a maximum

of four hours. " On the directive, Rumsfeld, incidentally, added in his

own handwriting next to this technique: " However, I stand for 8-10

hours a day. Why is standing limited to 4 hours? " He also included the

following techniques: " removal of all comfort items (including

religious items), " " deprivation of light and auditory stimuli, "

" isolation up to 30 days, " and " using detainees' individual phobias

(such as fear of dogs) to induce stress. "

 

On January 15, 2003, Rumsfeld rescinded this directive after the

Navy registered its adamant objections. If, during the six weeks that

Rumsfeld's techniques were official Pentagon policy at Guantánamo,

soldiers mistreated or tortured prisoners using his approved

techniques, then " Rumsfeld could potentially bear direct criminal

responsibility, as opposed to command responsibility, " says Human

Rights Watch.

 

Rumsfeld may also bear direct responsibility for the torture or

abuse of two other prisoners, says Human Rights Watch, citing the

Church Report. (This report, one of Rumsfeld's many internal

investigations, was conducted by the Navy Inspector General Vice

Admiral Albert Church.) " The Secretary of Defense approved specific

interrogation plans for two `high-value detainees' " at Guantánamo,

the Church Report noted. Those plans, it added, " employed several of

the counter resistance techniques found in the December 2, 2002,

[policy]. . . . These interrogations were sufficiently aggressive that

they highlighted the difficult question of precisely defining the

boundaries of humane treatment of detainees. "

 

And Rumsfeld may be in legal trouble for hiding detainees from the

Red Cross. " Secretary Rumsfeld has publicly admitted that . . . he

ordered an Iraqi national held in Camp Cropper, a high security

detention center in Iraq, to be kept off the prison's rolls and not

presented to the International Committee of the Red Cross, " Human

Rights Watch notes. This prisoner, according to The New York Times,

was kept off the books for at least seven months.

 

The Geneva Conventions require countries to grant access to the

Red Cross to all detainees, wherever they are being held. As Human

Rights Watch explains, " Visits may only be prohibited for`reasons of

imperative military necessity' and then only as`an exceptional and

temporary measure.' "

 

The last potential legal problem for Rumsfeld is his alleged

involvement in creating a " secret access program, " or SAP. According

to reporter Seymour Hersh, Rumsfeld " authorized the establishment of a

highly secret program that was given blanket advance approval to kill

or capture and, if possible, interrogate `high value' targets in the

war on terror. " Human Rights Watch says that " if Secretary Rumsfeld

did, in fact, approve such a program, he would bear direct liability,

as opposed to command responsibility, for war crimes and torture

committed by the SAP. "

 

The Pentagon vehemently denies the allegation that Rumsfeld may

have committed war crimes. " It's absurd, " says Pentagon spokesperson

Lieutenant Colonel Skinner. " The facts speak for themselves. We have

aggressively investigated all allegations of detainee mistreatment. We

have had ten major investigations on everything from A to Z. We've

also had more than 350 criminal investigations looking into detainee

abuse. More than 103 individuals have been held accountable for

actions related to detainee mistreatment. Our policy has always been,

and will always remain, the humane treatment of detainees. "

 

What about Bush? If Donald Rumsfeld can be charged for war crimes

because of his command responsibility and his personal involvement in

giving orders, why can't the commander in chief? Hina Shansi, senior

counsel at Human Rights First, believes the case against Bush is much

more difficult to document. And Sifton of Human Rights Watch says that

since Bush is known as " a major delegator, " it may be hard to pin down

" what he's briefed on and what role he plays in the decision-making

process. "

 

Amnesty International USA, however, believes that Bush, by his own

involvement in formulating policy on torture, may have committed war

crimes. " It's the memos, the meetings, the public statements, " says

Alistair Hodgett, media director of Amnesty International USA.

 

There is " prima facie evidence that senior members of the U.S.

Administration, including President Bush and Secretary of Defense

Rumsfeld, have authorized human rights violations, including

`disappearances and torture or other cruel, inhuman, or degrading

treatment,' " Amnesty states in " Guantánamo and Beyond. "

 

The first solid piece of evidence against Bush is his September

17, 2001, " Memorandum of Notification " that unleashed the CIA.

According to Bob Woodward's book Bush at War, that memo " authorized

the CIA to operate freely and fully in Afghanistan with its own

paramilitary teams " and to go after Al Qaeda " on a worldwide scale,

using lethal covert action to keep the role of the United States hidden. "

 

Two days before at Camp David, then-CIA Director George Tenet had

outlined some of the additional powers he wanted, Woodward writes.

These included the power to " `buy' key intelligence services. . . .

Several intelligence services were listed: Egypt, Jordan, Algeria.

Acting as surrogates for the United States, these services could

triple or quadruple the CIA's resources. " According to Woodward, Tenet

was upfront with Bush about the risks entailed: " It would put the

United States in league with questionable intelligence services, some

of them with dreadful human rights records. Some had reputations for

ruthlessness and using torture to obtain confessions. Tenet

acknowledged that these were not people you were likely to be sitting

next to in church on Sunday. Look, I don't control these guys all the

time, he said. Bush said he understood the risks. "

 

That this was Administration policy is clear from comments Vice

President Dick Cheney made on Meet the Press the very next day.

 

" We also have to work, though, sort of the dark side, if you

will, " Cheney told Tim Russert. " We've got to spend time in the

shadows in the intelligence world. A lot of what needs to be done here

will have to be done quietly, without any discussion, using sources

and methods that are available to our intelligence agencies, if we're

going to be successful. That's the world these folks operate in, and

so it's going to be vital for us to use any means at our disposal,

basically, to achieve our objective. "

 

If, as The New York Times reported, Bush authorized the transfer

of detainees to countries where torture is routine, he appears to be

in grave breach of international law.

 

Article 3 of the Convention Against Torture explicitly prohibits

this: " No State Party shall expel, return, or extradite a person to

another State where there are substantial grounds for believing that

he would be in danger of being subjected to torture. " Article 49 of

the Geneva Conventions is also clear: " Individual or mass forcible

transfers, as well as deportations of protected persons from occupied

territory to the territory of the Occupying Power or to that of any

other country, occupied or not, are prohibited, regardless of their

motive. "

 

On February 7, 2002, Bush issued another self-incriminating

memorandum. This one was to the Vice President, the Secretary of

State, the Secretary of Defense, the Attorney General, the Director of

the CIA, the National Security Adviser, and the Chairman of the Joint

Chiefs of Staff. It was entitled " Humane Treatment of Al Qaeda and

Taliban Detainees. " In it, Bush asserted that " none of the provisions

of Geneva apply to our conflict with Al Qaeda in Afghanistan or

elsewhere throughout the world. " He also declared, " I have the

authority under the Constitution to suspend Geneva as between the

United States and Afghanistan, " though he declined to do so. And he

said that " common Article 3 of Geneva does not apply to either Al

Qaeda or Taliban. "

 

This memo " set the stage for the tragic abuse of detainees, " says

William Schulz, executive director of Amnesty International USA.

 

Bush failed to recognize that the Geneva Conventions provide

universal protections. " The Conventions and customary law still

provide explicit protections to all persons held in an armed

conflict, " Human Rights Watch says in its report, citing the

" fundamental guarantees " in Article 75 of Protocol I of 1977 to the

Geneva Conventions. That article prohibits " torture of all kinds,

whether physical or mental, " " corporal punishment, " and " outrages upon

personal dignity, in particular, humiliating and degrading treatment. "

 

In the February 7, 2002, memo, Bush tried to give himself cover by

stating that " our values as a Nation, values that we share with many

nations in the world, call for us to treat detainees humanely,

including those who are not entitled to such treatment. " He added that

the United States, " to the extent appropriate and consistent with

military necessity, " would abide by the principles of the Geneva

Conventions.

 

But this only made matters worse. His assertion that there are

some detainees who are not entitled to be treated humanely is an

affront to international law, as is his claim that the Geneva

Conventions can be made subordinate to military necessity.

 

The Geneva Conventions, the Universal Declaration of Human Rights,

the International Covenant on Civil and Political Rights, and the

Convention Against Torture all prohibit the torture and abuse that the

United States has been inflicting on detainees. Article 2 of the

Convention Against Torture states that " 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 of torture. "

 

Article VI of the Constitution makes treaties " the supreme law of

the land, " and the President swears an oath to see that the laws are

faithfully executed.

 

As more information comes out, the case against Bush could get

even stronger, says Sifton of Human Rights Watch. If, for instance,

Bush said at Camp David on September 15, 2001, or at another meeting,

" Take the gloves off, " or something to that effect, he would be even

more implicated. " Obviously, if he did make such an explicit order,

his complicity would be shown, " says Sifton. Somehow, that message was

conveyed down the line. " There was a before-9/11 and an after-9/11, "

Cofer Black, who was director of the CIA's counterterrorist unit, told

Congress in 2002. " After 9/11, the gloves came off. "

 

The White House press office refused to return five phone calls

from The Progressive seeking comment about the allegations against

Bush. At his daily press briefing on May 25, the President's Press

Secretary Scott McClellan was not asked specifically about Bush's

culpability but about Amnesty International's general charge that the

United States is a chief offender of human rights.

 

" The allegations are ridiculous and unsupported by the facts, "

McClellan said. " The United States is leading the way when it comes to

protecting human rights and promoting human dignity. We have liberated

fifty million people in Iraq and Afghanistan. . . . We're also leading

the way when it comes to spreading compassion. "

 

Amnesty International USA does not intend to back off. " Our call

is for the United States to step up to its responsibilities and

investigate these matters first, " Executive Director Schulz says. " And

if that doesn't happen, then indeed, we are calling upon foreign

governments to take on their responsibility and to investigate the

apparent architects of torture. "

 

Inquiries to the embassies of Belgium, Chile, France, Germany,

South Africa, and Venezuela, as well as to the government of Canada,

while met with some amusement, did not reveal any inclination to heed

Amnesty's call.

 

Schulz is not deterred. Acknowledging that the possibility of a

foreign government seizing Rumsfeld or Bush might not be " an immediate

reality, " Schulz takes the long view: " Let's keep in mind, there are

no statutes of limitations here. "

 

Matthew Rothschild is Editor of The Progressive.

 

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