White House was warned that they violate War Crimes Act, and kept going...

Via Democratic Underground - Michael Isikoff from Newsweek reported this story originally on May 19, 2004.

May 17 - The White House's top lawyer warned more than two years ago that U.S. officials could be prosecuted for "war crimes" as a result of new and unorthodox measures used by the Bush administration in the war on terrorism, according to an internal White House memo and interviews with participants in the debate over the issue.

The concern about possible future prosecution for war crimes--and that it might even apply to Bush adminstration officials themselves-- is contained in a crucial portion of an internal January 25, 2002, memo by White House counsel Alberto Gonzales obtained by NEWSWEEK. It urges President George Bush declare the war in Afghanistan, including the detention of Taliban and Al Qaeda fighters, exempt from the provisions of the Geneva Convention.

So just a few months into the War on Terra, and over a year before the start of the Iraq invasion the White House was aware that their actions and tactics could be the subject of criminal prosecution?

Think that gave them any pause? Apparently not, since the infamous Bybee Torture memos which redefined "severe pain" as being "equivelent too organ failure" (or death) wasn't requested by Gonzales until August of that same year. In January, Gonzales had this to say...

In the memo, the White House lawyer focused on a little known 1996 law passed by Congress, known as the War Crimes Act, that banned any Americans from committing war crimes--defined in part as "grave breaches" of the Geneva Conventions. Noting that the law applies to "U.S. officials" and that punishments for violators "include the death penalty," Gonzales told Bush that "it was difficult to predict with confidence" how Justice Department prosecutors might apply the law in the future. This was especially the case given that some of the language in the Geneva Conventions--such as that outlawing "outrages upon personal dignity" and "inhuman treatment" of prisoners--was "undefined."

So technical definitions within the law and Geneva remain a bit hazy, at this point one would say this isn't an unreasonable position to point this out. But it's the next section that should raise the hackles on the back of our collective necks. Gonzales then wrote...

"It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]," Gonzales wrote. The best way to guard against such "unwarranted charges," the White House lawyer concluded, would be for President Bush to stick to his decision--then being strongly challenged by Secretary of State Powell-- to exempt the treatment of captured Al Qaeda and Taliban fighters from Geneva convention provisions.

"Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution," Gonzales wrote.

So basically, the President's best defense was to deny the jurisdiction of Geneva over al Qaeda and Taliban fighters. All this time they've argued that letting terrorist who are without the sponsorship of a specific state have Geneva convention protections would "undermine" the power and validity of the conventions when in reality they were just engaging in a big game of Cover Your Collective Ass.

That argument has been made frequently and has completely ignored Article II of the Geneva Conventions...

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.


Under the provisions outlined in 1949, the Convention applies to all armed combat even if not all of the parties involved have declared a state of war.

Further...

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

The question of whether al Qaeda or the Taliban is covered by the convention is answered in Article 4.


Section A. 1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.


Now to be fair it could be argued that so-called "Enemy Combatants" does not qualify under Section A.2.


2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.


Al Qaeda does not carry "fixed distinctive signs" nor do they "conduct operations in accordance with the law of war" , at least as far as I'm aware.

However Section 6 states the following are covered.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.


Ok, so wearing a "sign" isn't really neccesary if you are a citizen who responds to an invasion by taking up arms. But what about respecting the "law and customs of war?"

Article 5 lays it out...

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

So basically, the default position is "Included", even when it applies to terrorist "enemy combatants" such as members of al Qaeda, the Taliban or the Fedeyeen.

[Update: Media Matters has also addressed this subject and indicates that the Fourth Geneva Convention provides protection for "Civilians" which would include "Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.: If that isn't pretty inclusive, I don't know what is.]

The Isikoff article continues...

The memo--and strong dissents by Secretary of State Colin Powell and his chief legal advisor, William Howard Taft IV--are among hundreds of pages of internal administration documents on the Geneva Convention and related issues that have been obtained by NEWSWEEK...

The memos provide fresh insights into a fierce internal administration debate over whether the United States should conform to international treaty obligations in pursuing the war on terror. Administration critics have charged that key legal decisions made in the months after September 11, 2001 including the White House's February 2002 declaration not to grant any Al Qaeda and Taliban fighters prisoners of war status under the Geneva Convention, laid the groundwork for the interrogation abuses that have recently been revealed in the Abu Ghraib prison in Iraq.

Ya think? Follow the dots here people...

• In January 2002 Gonzales argues that Geneva shouldn't apply to "Enemy Combatants" because it would make "U.S. Officials" vulnerable to Federal War Crimes violations.
• In February, the Administration announces that al Qaeda and Taliban are "not included" in Geneva (although they conduct no tribunal as required by Geneva to determine this).
• In August of that same year the Bybee memo is written which redefines what "Torture" is.
• In October 2002 Gitmo commanders request “that additional techniques beyond those in the field manual be approved for use.”"
• In December of 2002 SecDef Rumsfeld allows for "“stress positions,” hooding, 20-hour interrogations, removal of clothing, exploiting phobias to induce stress (e.g., fear of dogs), prolonged isolation, sensory deprivation, and forced grooming. These techniques soon spread to Afghanistan and later to Iraq." according to documents obtain by the ACLU.
• Also in December the FBI begins complaining to the Defense Department about the conditions at Gitmo, and in Afghanistan some detainees are "killed during interrogation" at Bagram AFB.

Coincidence? I think not!

It wasn't until April of 2004 that the Abu Ghraib photos were first displayed on 60 Minutes II. Isikoff's article was published that following May.

Amnesty International has certainly been vocal and very definately convinced that Geneva and International Laws apply since they called for Bush and many of senior Adminstration Officials including Rumsfeld, General Sanchez, General Miller, George Tenet and Alberto Gonzales to be investigated, arrested, tried and prosecuted for War Crimes back in May of 2005.

During a statement on the release of it's annual report, Amnesty International President William Schultz called for the investigation, arrest, detention and prosecution of senior U.S. Officials - either by an Special Prosecutor or by foreign government prosecutors - who authored and authorized policies which lead to inhumane treatment and torture of persons held at Guantanemo, Abu Ghraib, Bagram Air Force Base. "The Government investigation must climb all the way to the top...", stated Schultz. Quoting former Secretary of State Colin Powell he went on to point out that permitting Torture by U.S. personnel "undermines the moral authority" and can allow such techniques to "spread like a virus" thruout the world.

Even before this announcement by AI, John Conyers (D-IL) had called for an investigation of possible War Crimes by President Bush in a letter cosigned by 50 of his fellow congressmen.

With this Jan 2002 Gonzales memo in mind, it just might be possible that the inhumane conditions and abuse at Gitmo, Abu Ghraib, Bagram Air Force base and the recently revealed actions of the secretive and vicious Task Force 6-26 were the direct result of the Bush Administrations attempt to evade Geneva and the law. They just may have broken U.S. Law just to prove that International Law didn't apply to them.

Considering all the outrage that has been generated over illegal wiretaping, and Senator Feingold's Censure Motion, people should be going through the roof that the Bush Administration has consistently claimed the ability to detain, hold without trial indefinately, and torture even U.S. Citizens.

If reading through people's email is bad, and breaking into their homes is badder -- claiming the authority to physical assault detainees, including clearly innocent people, nearly to the point of organ failure is the absolute worst.

What has become of our Democracy?

Vyan