The countdown to the start of the 110th Congress is growing shorter. Although Majority Leader Reid and Speaker Pelosi have put Impeachment "Off the table" - simply because at this point in time most of the American public would not support such a move, and would consider it merely partisan maneuvering as was the Impeachment of William Jefferson Clinton.
On this point I believe they are correct, thus the terms have to modified. Impeachment has to be seen as merely the first step toward the ultimate goal of Removal, Indictment and Prosecution of those who have committed crimes against our Constitution. Thus I present Count 3 in my multipart series on why George W. Bush must be Impeached.
The Impeachment Case Against George W. Bush - Count 3 : War Crimes, Conspiracy, Torture and Murder. George W. Bush, Dick Cheney, Alberto Gonzales and Donald Rumsfeld did commit a series of Capital Crimes with malice aforethought, including grave breaches in the Geneva Conventions and the Laws of War - actions which have led to numerous counts of maltreatment of prisoners and torture up to and including over
Exhibit A: The Gonzales Memo Following the attacks on the World Trade Center and Pentagon on 9/11 - America moved into a War Footing against Al-Qeada and Afghanistan. Congress passed the Authoritzation to Use Military Force, and our government began to grapple with the issue of how to handle captured prisoners and terrorist suspects.
On January 24, 2002 Alberto wrote a Memo (PDF) addressing this subject.
"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.
Although many at the time claimed the the exception of Taliban and Al-Qeada fighters from Geneva was done because neither were signatories of Geneva, the truth is very different. First of all the fact that they aren't signatories is irrelevant - We Are Signatories and as such we are required to abide by Geneva.
Geneva Article 2
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.
But as was shown from his memo Gonzales had a different concern altogether. He was worried that some "wacky" prosecutor might determine that the Administration had violated 18 USC 2441 - the War Crimes Act - which states.
(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(c) Definition.— As used in this section the term "war crime" means any conduct—
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
The Conventions lay out specifcally how Prisoners of War are to be identified and defined - and it's fair to say that the fact that Al-Qaeda and Taliban fighters do not wear a uniform or have specific insignia exempts them from that category.
They can not be considered Prisoners of War under Geneva, although the definition of an armed militia under Article 4 comes very close.
- 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.
And even if the lack of a "distinctive sign" causes the Militia defintion to not apply to Al-Qeada or the Taliban as alleged by Gonzales - Article 5 settles the matter.
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.
And just what are those protections? The following.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording which are recognized as indispensable by civilized peoples.
So in summary, Gonzales letter shows that he was aware of the President's deliberate intention to subject captured al-Qeada and Taliban members to cruel treatment, torture, humiliation and degradation and restrict their access to the courts. All of which are clearly grave breaches of Geneva and punishable by fines, life imprisonment and the death penalty under United States Federal Law.
This memo effectively laid the groundwork for all that was to follow - which was a series of deliberate criminal acts. This memo is proof a Conspiracy to Commit Torture. His attempts to deflect and distract from these crimes by calling some of the minor provisions of Geneva "quaint" are as transparent as they are pathetic.
Exhibit B: The Bybee Memo. Clearly still concerned that the Presidents determination to exclude the entire newly created classification of "Enemy Combatant" from Geneva might not actually stand up to any reasonable judicial scrutiny - ha, imagine that - in August of 2002 Gonzales requested a memo from the DOJ's Office of Legal Counsel to re-define torture so as to ensure it's availability to U.S. interrogators while still remaining under the radar of Geneva, 2441 and also 2340.
We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent to intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. We conclude that the mental harm also must result from one of the predicate acts listed in the statute, namely: threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture; use of drugs or other procedures designed to deeply disrupt the senses, or fundamentally alter an individual’s personality; or threatening to do any of these things to a third party.
Section 2340 of U.S. Law States:
(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.
What we have here is a situation where those who would normally be the Prosecutors in a case of War Crimes or Torture have been requested by the White House to Act as Defense Counsel in order to help them avoid possible prosecution for their intended crimes. It's the equivelent of allowing a Jaywalker to redraw the crosswalk lines in the middle of the street - as he's crossing it. By claiming that torture isn't "torture" until the subject either losses a limb, suffers organ failure and dies - then practically anything that leaves the person alive and breathing with all of their fingers and toes -- would not be torture under the legal definition.
Common sense tells us a different story.
And another problem here is that the White House and the Prosecutors do not determine what is an isn't the law - Congress and Judges do. (Although Jay Bybee has now been appointed as a Federal Appeals Judge (In the 9th Circuit - the one which reviews the DC Court), he wasn't at the time that he headed the OLC and therefore his opinions then are not "opinions of the court" in the legal sense.)
Exhibit C: The Rumsfeld Papers Following the Gonzales and Bybee Memos, Rumsfeld issued his own memo in December of 2002 in response to a request from "additional techniques beyond those in the field manual" from soldiers in Guantanemo Bay. From the the ACLU's Torture Timeline
Rumsfeld prescribes new interrogation policy for Guantanamo, authorizing "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.
Later the Pentagon convened a woking group which began to apply the re-definition of torture to detainee treatment in March of 2003. From the Wapo.
Another memorandum, dated March 6, 2003, from a Defense Department working group convened by Defense Secretary Donald H. Rumsfeld to come up with new interrogation guidelines for detainees at Guantanamo Bay, Cuba, incorporated much, but not all, of the legal thinking from the OLC memo. The Wall Street Journal first published the March memo.
34 new techniques were recommended by the Working group, Rumsfeld ultimately approved the use of 24 of them including isolation, "inducing fear", false flag and stress positions.
The paper trail from the White House to the Pentagon and eventually to Guantanamo Bay, Bagram AFB in Afghanistan and Abu Ghraib is direct, obvious and miles upon miles wide.
And the severity of the abuse is far deeper than what has be hinted at by the Abu Ghraib Scandal.
WASHINGTON — Pentagon documents released Monday disclosed that Iraqi prisoners had lodged dozens of abuse complaints against U.S. and Iraqi personnel who guarded them at a little-known palace in Baghdad converted to a U.S. prison. Among the allegations was that guards had sodomized a disabled man and killed his brother, whose dying body was tossed into a cell, atop his sister.
The documents, obtained in a lawsuit against the federal government by the American Civil Liberties Union, suggest for the first time that numerous detainees were abused at Adhamiya Palace, one of Saddam Hussein's villas in eastern Baghdad that was used by his son Uday. Previous cases of abuse of Iraqi prisoners have focused mainly on Abu Ghraib prison.
A government contractor who was interviewed by U.S. investigators said that as many as 90 incidents of possible abuse took place at the palace, but only a few were detailed in the hundreds of pages of documents released Monday.
The documents also touch on alleged abuses in other U.S.-run lockups in Iraq. The papers include investigative reports linking some abuses to ultrasecret Pentagon counter-terrorism units.
Since the start of the Iraq War over 100 detainees have died in custody. The circumstances for these deaths have varied wide, some died of natural causes, other during riots or other acts of violence - but a few - were killed as a result of abuse, some died while being interrogated (which would indicate a clear violation of 2441 and 2340 even with the Gonzales and Bybee "re-interpretations")
The Pentagon has never provided comprehensive information on how many prisoners taken during the wars in Iraq and Afghanistan have died. The 108 figure, based on information supplied by Army, Navy and other government officials, includes deaths attributed to natural causes.
To human rights groups, the deaths form a clear pattern.
"Despite the military's own reports of deaths and abuses of detainees in U.S. custody, it is astonishing that our government can still pretend that what is happening is the work of a few rogue soldiers," said ACLU Executive Director Anthony D. Romero. "No one at the highest levels of our government has yet been held accountable for the torture and abuse, and that is unacceptable."
In Iraq, the military is currently holding around 8,900 people at its two largest prisons, Abu Ghraib and Camp Bucca.
At least two prisoners died during interrogation, in incidents that raise the question of torture. Human rights groups say there are others:
_ Manadel al-Jamadi, a suspect in the bombing of a Red Cross facility in Baghdad, died Nov. 4, 2003, while hanging by his wrists in a shower room at Abu Ghraib prison. Nine SEALs and one sailor have been accused of abusing al-Jamadi and others in Iraq. The CIA and Justice Department are also investigating the death.
_ Four Fort Carson, Colo., soldiers, including three in military intelligence, are charged with murder for the death of an Iraqi major general who died in November 2003. The CIA has also acknowledged that one of its officers may have been involved and referred the case to the Justice Department for investigation.
According to documents gahered by the ACLU, coercive interrogations have led to the deaths of detainees at Bagram AFB in Afghanistan and the Red Cross indicates that 70%-90% of those held at Abu Ghraib are being held by mistake. The U.S. has paid bounties for terrorist suspects which to thier being sold into captivity and lining holds of Bagram and Gitmo with even more innocent persons.
But that's not the worst of it, the real problem is the question of exactly what has happened to those detainees who have literally disappeared.
Exhibit D: The Ghost Detainees As the number of detainees began to mount, certain "high value targets" began to vanish. Hidden from the Red Cross, these detainees were taken to Secret Prison Installations under the direct orders and approval of President George W. Bush - a clear violating of multiple international laws.
According to Human Rights Watch some of those Ghost Detainees included:
1. Ibn al-Shaikh al-Libi (Libya)
2. Abu Zubayda, a.k.a. Zubeida, Zain al-`Abidin Muhammad Husain, `Abd al-Hadi al-Wahab (Palestinian)
3. Omar al-Faruq (Kuwait)
4. Abu Zubair al-Haili, a.k.a. Fawzi Saad al-`Obaydi (Saudi Arabia)
5. Ramzi bin al-Shibh (Yemen)
6. Abd al-Rahim al-Nashiri, a.k.a. Abu Bilal al-Makki, Abdul Rahman Husain al-Nashari, formerly Muhammad Omar al-Harazi (Saudi Arabia or Yemen—Born in Mecca, Saudi Arabia)
7. Mustafa al-Hawsawi (Saudi Arabia)
8. Khalid Shaikh Muhammad, a.k.a. Shaikh Muhammad, Ashraf Ref`at Nabith Henin, Khalid `Abd al-Wadud, Salem `Ali, Fahd bin Abdullah bin Khalid (Kuwait)
9. Waleed Muhammad bin Attash, a.k.a. Tawfiq ibn Attash, Tawfiq Attash Khallad (Yemen)
10. Adil al-Jazeeri (Algeria)
11. Hambali, a.k.a. Riduan Isamuddin (Indonesia)
Bush has argued that the techniques used to interrogate Zubaydah we're not "torture" - but then again the only proof of that is merely that Zubaydah apparently survived the process under "Bybee Rules" - and that they were effective in helping capture Khalid Shaikh Muhammad.
Too bad that simply isn't true as Ron Suskind has revealed.
Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be. CIA and FBI analysts, poring over a diary he kept for more than a decade, found entries "in the voice of three people: Hani 1, Hani 2, and Hani 3" -- a boy, a young man and a middle-aged alter ego. All three recorded in numbing detail "what people ate, or wore, or trifling things they said." Dan Coleman, then the FBI's top al-Qaeda analyst, told a senior bureau official, "This guy is insane, certifiable, split personality."
Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda's go-to guy for minor logistics -- travel for wives and children and the like. That judgment was "echoed at the top of CIA and was, of course, briefed to the President and Vice President," Suskind writes. And yet somehow, in a speech delivered two weeks later, President Bush portrayed Abu Zubaydah as "one of the top operatives plotting and planning death and destruction on the United States." And over the months to come, under White House and Justice Department direction, the CIA would make him its first test subject for harsh interrogation techniques.
How Zudaybah was interrogated was elaborated on by Gerald Posner.
Posner elaborates in startling detail how U.S. interrogators used drugs—an unnamed "quick-on, quick-off" painkiller and Sodium Pentothal, the old movie truth serum—in a chemical version of reward and punishment to make Zubaydah talk. When questioning stalled, according to Posner, cia men flew Zubaydah to an Afghan complex fitted out as a fake Saudi jail chamber, where "two Arab-Americans, now with Special Forces," pretending to be Saudi inquisitors, used drugs and threats to scare him into more confessions.
Zudaybah eventually provided the names of several members of the Saudi Royal family who had alleged ties to Bin Laden. Within weeks all of people had died under mysterious circumstances, preventing them from being questioned by U.S. authorities permenently.
Whether the information provided by Zubaydah was accurate or simply disinformation design to allow him to escape torture remains unclear. But it's clear that other Ghost Detainees wuch as Ibn al-Shaikh al-Libi (who provided many of the incorrect claims of Iraqi WMD) have been proven to be liars.
By voiding the Geneva requirement for judicial review of detainees and their status the likelyhood that mistaken identity and/or innocent persons may be caught in the net of anti-terrorism increases dramatically.
13 CIA Agents have been ordered to be arrested in Italy for the kidnapping and rendition of Abu Omar (aka Osama Moustafa Hassan Nasr) an Egyptian who was taken to Cairo and tortured for two years - except that he was the wrong person.
As was Khalid Masri, who was kidnapped in the Balkans and flown to Afghanistan and held for four months. German officials have been investigating.
And so was Maher Arar, Canadian National whose name was mistakenly included on a terrrorist watch list as he attempted to change planes at Kennedy International Airport, where he was detained - deported to Syria and tortured.
Although it could be argued that the actual torture was not conducted by U.S. personnel in these cases, it's clear that these persons would not have been subjected to these conditions if not for U.S. actions and premeditation. These are acts of Conspiracy and subject to the same pentalty as those who actually may have performed the torture under U.S. Law.
Exhibit E: The Hamdan Decision. Although Gonzales and Bybee have attempted to provide legal cover for these actions, the entire house of cards they had erected came crashing down in a very large thud with the delivery of the Hamdan Decision which ruled that the Geneva Conventions do indeed apply to "Enemy Combatants". This decision made everything they had done prior to that point, a potential War Crime.
Article 3 of the Geneva Convention (III)Relative to the Treatment of Prisoners of War,Aug. 12,1949, [1955 ] 6 U..S.T.3316,3318,T.I.A.S.No.3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law. See id.,at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered "war crimes," punishable as federal offenses,when committed by or against United States nationals and military personnel. See 18 U.S.C.§2441. There should be no doubt,then,that Common Article 3 is part of the law of war as that term is used in §821.
Hamdan is entitled to the full protections of the Third Geneva Convention until adjudged, in compliance with that treaty, not to be a prisoner of war; and that, whether or not Hamdan is properly classified as a prisoner of war, the military commission convened to try him was established in violation of both the UCMJ and Common Article 3 of the Third Geneva Convention because it had the power to convict based onevidence the accused would never see or hear.
Realizing this the CIA Interrogators actually Went on Strike.
The Bush administration had to empty its secret prisons and transfer terror suspects to the military-run detention centre at Guantánamo this month in part because CIA interrogators had refused to carry out further interrogations and run the secret facilities, according to former CIA officials and people close to the programme.
The Administration reacted strongly to this decision and urged the passage of the Military Commissions Act. Much of the discussion of this act has surrounded it's neutering of Habeas Corpus and it's "re-interpretation of Geneva", but of even greater danger is the fact that this law amended The War Crimes and Torture Acts to apply the Bybee Standard. 2441 and 2340 have been updated as follows:
‘‘(1) PROHIBITED CONDUCT.—In subsection (c)(3), the term
‘grave breach of common Article 3’ means any conduct (such
conduct constituting a grave breach of common Article 3 of
the international conventions done at Geneva August 12, 1949), as follows:
‘‘(A) TORTURE.—The act of a person who commits, or
conspires or attempts to commit, an act specifically
intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful
sanctions) upon another person within his custody or phys-ical control for the purpose of obtaining information or
a confession, punishment, intimidation, coercion, or any
reason based on discrimination of any kind.
‘‘(B) CRUEL OR INHUMAN TREATMENT.—The act of a
person who commits, or conspires or attempts to commit,
an act intended to inflict severe or serious physical or
mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical
abuse, upon another within his custody or control.
‘‘(C) PERFORMING BIOLOGICAL EXPERIMENTS.—The act
of a person who subjects, or conspires or attempts to sub-ject, one or more persons within his custody or physical
control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body
or health of such person or persons.
‘‘(D) MURDER.—The act of a person who intentionally
kills, or conspires or attempts to kill, or kills whether
intentionally or unintentionally in the course of committing
any other offense under this subsection, one or more per-sons
taking no active part in the hostilities, including those
placed out of combat by sickness, wounds, detention, or
any other cause.
‘‘(2) DEFINITIONS.—In the case of an offense under sub-section
(a) by reason of subsection (c)(3)—
‘‘(A) the term ‘severe mental pain or suffering’ shall
be applied for purposes of paragraphs (1)(A) and (1)(B)
in accordance with the meaning given that term in section
2340(2) of this title;
‘‘(B) the term ‘serious bodily injury’ shall be applied
for purposes of paragraph (1)(F) in accordance with the
meaning given that term in section 113(b)(2) of this title;
‘‘(C) the term ‘sexual contact’ shall be applied for pur-poses
of paragraph (1)(G) in accordance with the meaning
given that term in section 2246(3) of this title;
‘‘(D) the term ‘serious physical pain or suffering’ shall
be applied for purposes of paragraph (1)(B) as meaning
bodily injury that involves—
‘‘(i) a substantial risk of death;
‘‘(ii) extreme physical pain;
‘‘(iii) a burn or physical disfigurement of a serious
nature (other than cuts, abrasions, or bruises); or
‘‘(iv) significant loss or impairment of the function
of a bodily member, organ, or mental faculty;
A fair reading of this would conclude that coercive interrogation that takes the victim literally to the edge of death - but allows for his being brought back in a manner that doesn't disfigure or maim them - would be perfectly ok. You could even induce death itself using chemicals and then repeatedly revive the subject using a CPR and a defribulator -- and it wouldn't be "torture" in Bushworld. Fortunately most of the rest of us, we don't live in that deluded fantasy land.
On the whole the Administration has done an incredible job of wrangling the law to produce the result they wish. Torture isn't torture. Significant bodily harm is no harm at all. A little dunk in the water is a "No Brainer".
In the wake of the Abu Ghraib scandal Congress lobbied for the passage of the Detainee Treatment Act of 2005, yet that act contains a fatal flaw - the Graham-Levin Amendment which blocks the detainees from access to the court where they can lodge abuse complaints. What is the point of "prohibiting torture" if you've also prohibited the tortured from complaining about it? Talk about "Don't ask - don't tell".
As the Hamdan decision made clear - The Bush Adminstration has repeatedly and deliberately violated the Geneva Conventions, they have committed War Crimes, Torture and Conspiracy under U.S. Law and grossly violated the 8th Amendment, but rather than correcting those actions they have - with the aid and complicity of the Repubilcan led 109th Congress - instead created even more clearly unconstitutional law such as the Detainee Treatment Act and Military Commission Act which are clearly unlikely to withstand any serious court challenge.
These actions have directly contributed to the abuse of hundreds of detainees, both innocent and not-so-innocent, including kidnapping and even murder. The Administration's Torture double-speak and permissive "anything-goes" attitude may even be traced to the tragedies of Haditha where dozens innocent Iraqi civilians were murder and Mahmoudiya where a teen age girl who was raped and burned along with her entire family - by U.S. Soldiers.
And even with all this information they've gathered using these techniques is highly suspect and may very well have led us directly into a false and unneccesary war with Iraq (see Count 1). The insurgency continues to rage undeterred. Terrorism has increased rather than ben reduced. This policy is a not only crime, it is a failure.
But these legal maneuvers have done nothing but delay the inevitable.
Although there have been multiple court mashalls and prosecutions of low level soldiers - and there should be - these crimes must be brought into account and ended at the source, and the only way to accomplish this is to Impeach, Remove, Indict and Prosecute George W. Bush, Dick Cheney, Alberto Gonzales and Donald Rumsfled exactly as Amnesty International in May 2005.
This policy must be stopped permenently - the American public must be shown that there is no other reasonable choice.