The Abu Ghraib Cover-Up

Seymour Hersh appeared on CNN's Late Edition to discuss his article in The New Yorker which reveals that Former SecDef Rumsfeld lied to Congress when he claimed that the first time he heard about the abuse at Abu Ghraib was when the photos hit the press.



The article reveals how Maj General Taguba, who had been put in charge of the Abu Ghraib investigation was threatened by top Pentagon brass.

A few weeks after his report became public, Taguba, who was still in Kuwait, was in the back seat of a Mercedes sedan with Abizaid. … Abizaid turned to Taguba and issued a quiet warning: “You and your report will be investigated.”

“I wasn’t angry about what he said but disappointed that he would say that to me,” Taguba said. “I’d been in the Army thirty-two years by then, and it was the first time that I thought I was in the Mafia.“

Pressure also applied to Senator Warner, then head of armed services to "back off".

A former high-level Defense Department official said that, when the Abu Ghraib scandal broke, Senator John Warner, then the chairman of the Armed Services Committee, was warned “to back off” on the investigation, because “it would spill over to more important things.” A spokesman for Warner acknowledged that there had been pressure on the Senator, but said that Warner had stood up to it — insisting on putting Rumsfeld under oath for his May 7th testimony, for example, to the Secretary’s great displeasure.

That Lt. General Sanchez clearly knew what was already going on.

Taguba came to believe that Lieutenant General Sanchez, the Army commander in Iraq, and some of the generals assigned to the military headquarters in Baghdad had extensive knowledge of the abuse of prisoners in Abu Ghraib even before Joseph Darby came forward with the CD. Taguba was aware that in the fall of 2003 — when much of the abuse took place — Sanchez routinely visited the prison, and witnessed at least one interrogation. According to Taguba, “Sanchez knew exactly what was going on.”

Yes, of course he did. Sanchez is the one who oversaw and installed Gen Geoffrey Miller as commander of Tier 1A/1B immediately after he arrived from instituting "Alternative Interrogation Techniques" authorized by SecDef Rumsfeld at Gitmo.

Contrary to claims that these were merely "frat-boy pranks", Taguba reported to Rumsfeld and Wolfowitz that this was far more than just simple "abuse".

In the meeting, the officials professed ignorance about Abu Ghraib. “Could you tell us what happened?” Wolfowitz asked. Someone else asked, “Is it abuse or torture?” At that point, Taguba recalled, “I described a naked detainee lying on the wet floor, handcuffed, with an interrogator shoving things up his rectum, and said, ‘That’s not abuse. That’s torture.’ There was quiet.”

And there was more which Taguba revealed to Hersh.

I learned from Taguba that the first wave of materials included descriptions of the sexual humiliation of a father with his son, who were both detainees. Several of these images, including one of an Iraqi woman detainee baring her breasts, have since surfaced; others have not. (Taguba’s report noted that photographs and videos were being held by the C.I.D. because of ongoing criminal investigations and their “extremely sensitive nature.”) Taguba said that he saw “a video of a male American soldier in uniform sodomizing a female detainee.” The video was not made public in any of the subsequent court proceedings, nor has there been any public government mention of it. Such images would have added an even more inflammatory element to the outcry over Abu Ghraib. “It’s bad enough that there were photographs of Arab men wearing women’s panties,” Taguba said.

Rather than wanting to discover the truth, the brass at the Pentagon did everything they could to stay at arms length from the facts and the pictures.

When Taguba urged one lieutenant general to look at the photographs, he rebuffed him, saying, “I don’t want to get involved by looking, because what do you do with that information, once you know what they show?”

After watching Rumsfled's performance before the Senate, Taguba was appalled.

“The whole idea that Rumsfeld projects—‘We’re here to protect the nation from terrorism’—is an oxymoron,” Taguba said. “He and his aides have abused their offices and have no idea of the values and high standards that are expected of them. And they’ve dragged a lot of officers with them.”

It was also clear to Taguba that there were others in the chain of command above Lindy England and Sgt Graner, as well as Military Intelligence were involved in all this.

“From what I knew, troops just don’t take it upon themselves to initiate what they did without any form of knowledge of the higher-ups,” Taguba told me. His orders were clear, however: he was to investigate only the military police at Abu Ghraib, and not those above them in the chain of command. “These M.P. troops were not that creative,” he said. “Somebody was giving them guidance, but I was legally prevented from further investigation into higher authority. I was limited to a box.”

...

Taguba’s assignment was limited to investigating the 800th M.P.s, but he quickly found signs of the involvement of military intelligence—both the 205th Military Intelligence Brigade, commanded by Colonel Thomas Pappas, which worked closely with the M.P.s, and what were called “other government agencies,” or O.G.A.s, a euphemism for the C.I.A. and special-operations units operating undercover in Iraq. Some of the earliest evidence involved Lieutenant Colonel Steven L. Jordan, whose name was mentioned in interviews with several M.P.s. For the first three weeks of the investigation, Jordan was nowhere to be found, despite repeated requests. When the investigators finally located him, he asked whether he needed to shave his beard before being interviewed—Taguba suspected that he had been dressing as a civilian. “When I asked him about his assignment, he says, ‘I’m a liaison officer for intelligence from Army headquarters in Iraq.’ ” But in the course of three or four interviews with Jordan, Taguba said, he began to suspect that the lieutenant colonel had been more intimately involved in the interrogation process—some of it brutal—for “high value” detainees.

Jordan was eventually charged but his attorneys have vigorously defended him claiming that he wasn't properly advised of his rights prior to his interrogation by Taguba. Now isn't that ironic?

During his investigation Taguba discovered that there were likely only one or two possible al-Qeada members in all of abu Ghriab. Most prisons were either guilty of petty crimes or completely innocent. But that didn't seem to sway the Pentgon brass to be as cautious with their rights as they were with Jordan's.

The former senior intelligence official said that when the images of Abu Ghraib were published, there were some in the Pentagon and the White House who “didn’t think the photographs were that bad”—in that they put the focus on enlisted soldiers, rather than on secret task-force operations. Referring to the task-force members, he said, “Guys on the inside ask me, ‘What’s the difference between shooting a guy on the street, or in his bed, or in a prison?’ ” A Pentagon consultant on the war on terror also said that the “basic strategy was ‘prosecute the kids in the photographs but protect the big picture.’ ”

After the investigation Taguba was demoted and eventually fired.

Taguba had been scheduled to rotate to the Third Army’s headquarters, at Fort McPherson, Georgia, in June of 2004. He was instead ordered back to the Pentagon, to work in the office of the Assistant Secretary of Defense for Reserve Affairs. “It was a lateral assignment,” Taguba said, with a smile and a shrug. … A retired four-star Army general later told Taguba that he had been sent to the job in the Pentagon so that he could “be watched.” Taguba realized that his career was at a dead end. …

In January of 2006, Taguba received a telephone call from General Richard Cody, the Army’s Vice-Chief of Staff. “This is your Vice,” he told Taguba. “I need you to retire by January of 2007.” No pleasantries were exchanged, although the two generals had known each other for years, and, Taguba said, “He offered no reason.”

So with a wimper rather than a bang, ended the 35 year career of a fine officer who withstood open bigotry to rise to the rank of General and still managed kept his integrity and values intact.

Vyan

The Impeachment Case Against George W. Bush - Count 3. War Crimes, Torture, Murder and Conspiracy

Musical Accompaniment for this post by Guns N Roses - "Live and Let Die"

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 multiple murders under color of authority

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.

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.

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 all the judicial guarantees 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.

Vyan

Crossroads for America:To Torture or Not

We live in interesting times. The center of a watershed moment where America will either stand true to it's own core values, or slide down the slippery slope toward torture and totalitarianism that the President desperately desires.

With little time left before a very likely Democratic Congress and Senate come into power - the President's desperation to avoid culpability for his own War Crimes grows more palpable.

As I outlined on July 1st, the Hamdan decision has effectively sealed this President's fate and legacy as a War Criminal, his last gasp is to end-run Common Article 3, if he can.

To this end the President has pursued the enactment of New Detainee Torture Act, which would effectively make the treatment they've already been using, essentially legal.

Q Thank you very much, sir. What do you say to the argument that your proposal is basically seeking support for torture, coerced evidence and secret hearings? And Senator McCain says your plan will put U.S. troops at risk. What do you think about that?

THE PRESIDENT: This debate is occurring because of the Supreme Court's ruling that said that we must conduct ourselves under the Common Article III of the Geneva Convention. And that Common Article III says that there will be no outrages upon human dignity. It's very vague. What does that mean, "outrages upon human dignity"? That's a statement that is wide open to interpretation. And what I'm proposing is that there be clarity in the law so that our professionals will have no doubt that that which they are doing is legal. You know, it's -- and so the piece of legislation I sent up there provides our professionals that which is needed to go forward.

Vague? Vague?!! Common Article III has been in existence for 50 years and this is the first time that I know of that someone has claimed it is - Vague! "No" means "NO" Asshole! Zero. None. Zilch. That statment is not open to interpretation, it's pretty clear and obvious. Those who oppose the Administration on this point, such as Colin Powell are not "confused", they are not "appeasers" -- or let's be honest because we know what they're really thinking - they are not "girly men".

Even Tony Snow has sheepishly begun to admit that he'd gone over the line (via Glenn Greenwald) when he reflexively bashed Powell.

Tony Snow yesterday had to retract his statement calling Colin Powell "confused" all because Gen. Powell thinks the U.S. should continue to abide by the Geneva Conventions, and as part of that retraction, Snow oh-so-generously added: "I know that Colin Powell wants to beat the terrorists, too." They exploit terrorism for political gain so reflexively that accusations of being sympathetic to terrorists just comes pouring out of their character-smearing mouths even when the targets are individuals who have devoted their adult lives to service in the American military.

More from Yesterday's Rose Garden Press Conference:

Q Thank you, Mr. President. Mr. President, former Secretary of State Colin Powell says the world is beginning to doubt the moral basis of our fight against terrorism. If a former Chairman of the Joint Chiefs of Staff and former Secretary of State feels this way, don't you think that Americans and the rest of the world are beginning to wonder whether you're following a flawed strategy?

THE PRESIDENT: If there's any comparison between the compassion and decency of the American people and the terrorist tactics of extremists, it's flawed logic. I simply can't accept that. It's unacceptable to think that there's any kind of comparison between the behavior of the United States of America and the action of Islamic extremists who kill innocent women and children to achieve an objective, Terry.

Bush may find it "Unacceptable" - but thinking that the United States has an obligation and a duty to abide by it's own law and it's own treaties - is exactly what much of the world thinks. This line of arguement by Bush effectively ducked the question - and follows the path the Administration has been following for quite some time -- attack the critic, not the argument.

Four years ago, then White House Counsel Alberto Gonzales urged the President to deny Geneva protections to terrorist detainees, not because they didn't deserve them - but because he expected that doing so would leave The President Vulnerable to War Crimes Prosecution Under U.S. Law

When the President talks now about "providing clarity" such as in this passage:

...the Court said that you've got to live under Article III of the Geneva Convention, and the standards are so vague that our professionals won't be able to carry forward the program, because they don't want to be tried as war criminals. They don't want to break the law. These are decent, honorable citizens who are on the front line of protecting the American people, and they expect our government to give them clarity about what is right and what is wrong in the law. And that's what we have asked to do.

The truth is - that HE doesn't want to be tried for War Crimes because the President, after denying Geneva, has long ago authorized measures which clearly violate the "human dignity" of detainees, and he knows this.

As I stated in July the ACLU has found a paper trail leading directly from Bush to Gitmo and Abu Ghraib.

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.

To date we have had 26 Deaths-in-Custody, which have been ruled as "Homocide" due to mistreatment. Those deaths, as well as those of tens of thousands of innocent Iraqis, lay directly at the feet of George W. Bush.

Everything he is doing right now - trying to push the Geneva redefinition through Congress - is meant to do nothing more than cover his ass, Period.

If he fails, and I'm certain he doesn't intend to fail - he can't afford too - he will face a Democratic Congress with subpeona power and one John Conyers as head of the Impeachment Committee - Judiciary. A man who has already called for Special Prosecutor to investigate War Crimes by the Bush Administration. If that call is ever answered in the wake of Hamdan, Bush is Doomed.

This is his last chance, and I for one expect to see him pull out all stops.

But he MUST. NOT. SUCCEED.

America can not openly go down the road he is headed. We can not turn our backs on Geneva, and begin to play around with the margins human decency, pretending that the use of extreme cold and/or loud music is an acceptable method of treatment - whether you like Red Hot Chili Peppers or not - these can never acceptable methods for how we treat people who haven't been put on trial yet.

Never mind Geneva, the 4th and 8th Amendments makes this clear.

It's not just a matter of protecting American soldiers who may be captured, there is also a military case for this. During WWII many Italian and Germany soldiers surrendered to U.S. - rather than the Russians - because they knew they would be well treated.

The Germans committed Genocide, but not only that they commited War Crimes against American soldiers at Malmedy. U.S. soldiers held by the Japanese were regularly tortured, starved and murdered. Geneva was intended to put an end to this, and the U.S. was at the forefront of creating Geneva.

Even during the first Gulf War, Iraqi military units were very willing to surrender when outmatched rather than fight to the death -- and thus the bloodshed was minimized and victory achieved in a fairly short time. Colin Powell, who command our troops during Gulf War I understands this - George Bush who protected the Texas Skies from the Vietcong - doesn't.

And so came Abu Ghraib.

After which we suddenly we faced an enemy - actually several enemies - that would absolutely do anything - but surrender.

Since then we've had Task Force 6-26 a U.S. Special Forces Unit who used Saddam's old torture chambers to continue the exact same work, Haditha (where 24 civilians were gunned down in cold blood), Fallajah where the U.S. used chemical warfare on the population and the rape and murder of a teenage Iraqi girl and her entire family by U.S. soldiers.

Clearly, we're sliding down the slope - not climbing upwards. Meanwhile, the insurgency and impending Civil War in Iraq continues to get stronger. Going the way we have been - even if we do achieve "Victory", capture and/or kill Osama bin Laden and break up the Al Qaeda Network, we will still have lost and disgarded far more than we will have gained.

This is what Human Rights Watch has to say about it.

Following the terrorist attacks [of September 11], many Americans understandably wanted their government to do anything possible that might protect them from terrorism. The Bush administration exploited that fear to push through various measures with scant regard to international human rights standards. Systematic prisoner abuse, widespread detention without trial, and proposed kangaroo courts were the result. Abu Ghraib, Guantánamo, and secret CIA prisons became the unfortunate symbols of U.S. counterterrorism efforts. Even within the United States, the rights of many Muslim men were compromised through the misuse of laws such as those on detaining immigrants and "material witnesses." Governments around the world, in turn, exploited the U.S. government's example to launch or defend repression of their own.

These abuses are wrong as a matter of fundamental rights. Though done in the name of protection from terrorism, they are also counterproductive. Fighting terrorism effectively requires not just stopping existing terrorists but also preventing the generation of new ones. By all accounts, U.S. abuses in the name of fighting terrorism have been a boon to terrorist recruiters. The loss of the moral high ground has made it harder to dissuade angry young men from resorting to the deliberate killing of civilians.

This Country has to make a choice: Will we honor the sacrifices made to fight fascism and totalitarianism made by our forefathers by remaining true to the ideals of the 8th Amendment and Bill of Rights -- or will we fail them?

Bush has made it clear which way he intends to go, and it's also clear that this path has made us less safe, not moreso.

Contact your Senators and Congressmen at let them know which fork in the road to take. Congressional Operator Toll Free: 888-355-3588

Vyan

George W. Bush: War Criminal

In their 5-3 decision yesterday in the Hamdan v Rumsfeld (pdf) case, the Supreme Court may have just established a determination that Amnesty International has been long looking for and Albert Gonzales has worked hard to avoid.

They made it official : George W. Bush is a War Criminal.

Oh, he may at this time be unindicted, untried and unconvicted - but make no mistake - the court has made it clear that he is a criminal.

In the Majority Opinion Justice Stevens stated:

Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan ’s commission trial are illegal.

The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949.

In his concurring opinion Justice Kennedy brought it home:

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.

The core of the decision, as written by Stevens is here:

Hamdan is entitled to the full protections of the Third Geneva Convention until ad-
judged,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.

The Court did not find that Hamdan or other detainees would have to be tried in civilian court, only that the Special Secret Tribunals that have been setup by President Bush are not authorized under current U.S. Law (the UCMJ) and also violate our treaty as a member of the Geneva Conventions.

It is quite possible that Hamdan would have to be tried in a normal "Courts Marshal" styled Tribunal, or that Congress could amend the UCMJ to allow for the presentation of secret evidence with a new class of tribunals and carve out part of the UCMJ so as to be severed from Geneva, and thus make the current Tribunal structure established for Al Qaeda and Taliban members "legal" -- but that isn't the only hurdle to be crossed.

Much has been made of the arguement that Geneva is an international law, and supposedly unenforceable with the U.S. But that isn't strictly true as Article VI of the U.S. Constitution makes clear.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Under this article it could be argued that International Treaties made by the United States are in fact - U.S. Law. With or without this interpretation however, it is now clear that the President has indeed violated U.S. Law, specifically the 1996 War Crimes Act under 18 USC § 2441, which exists in supplement to the Geneva Conventions and states:

The law applies to "U.S. officials" and that punishments for violators "include the death penalty,"

The article defines "War Crimes" :

(1) 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;

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or

(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

Early on the War on Terror(tm) Alberto Gonzales had noted this law and as White House Council had advised President Bush to refuse to recognize that "Enemy Combatants" had standing under the Geneva Conventions, not simply because they weren't members or agents of a signatory state - but simply because doing so would put the President at risk for violations of this law. As Reported by Michael Isikoff for Newsweek.

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.

It is now clear that this artful dodge has failed, and the Supreme Court has fully established that persons such as Hamdan, who may not officially be "Prisoners of War" until such a determination is made via judicial proceeding, are indeed covered by the Conventions, and that their treatment is protected under the War Crimes Act.

Furthermore, these memos by Gonzales indicate premeditation of the intent to violate 18 USC § 2441, several months before his request for the Bybee Torture Memos, which the ACLU in their own suit against Donald Rumsfeld contends was the first link in a chain which has led systematic abuse of detainees at Gitmo, Abu Ghraib, Bagram AFB in Afghanistan, Extra-odinary Rendition, Secret Prisons and the notorious Task Force 6-26.

In all these areas - BUSH. HAS. VIOLATED. THE. LAW.

If Congress intends to immunize Bush by changing the UCMJ, they will also have to change the War Crimes Act and possibly even de-ratify Geneva in order to make the Presidents current illegal conduct - legal.

But in addition to the War Crimes issue, there is also the NSA Domestic Spying issue - which the President and Justice Dept have claimed were given life by the Authorization to use Military Force against Al Qaeda and the Taliban in Afghanistan. But SCOTUS would appear to have thrown some severely cold water on that idea.

Neither the AUMF nor the DTA can be read to provide specific,overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President ’s war powers, see Hamdi v.Rumsfeld ,542 U.S.507,and that those powers include authority to convene military commissions in appropriate circum stances,see,e.g.,id.,at 518, there is nothing in the AUMF ’ s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ.

Without having specific and detailed authorization by Congress to try Hamdan outside of the standard proceedures of UCMJ and/or without an appropriate update to the UCMJ, the court has found the trial to be illegal. It only follows that they would also find the Presidents claim of authority to wiretap International calls without judicial review to be similarly illegal, particular since the 2002 Hamdi decision specifically required a role for the courts. In Hamdi...

JUSTICE O ’CONNOR,joined by THE CHIEF JUSTICE,JUSTICE KENNEDY,and JUSTICE BREYER,concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.

The "neutral decisionmaker" would be a Judge (or judicial panel). The kind of judges that can also issue warrants, like the FISA Court.

The real issue and question is - will Bush even care? At this point in time, he has deliberately broken the FISA Statutes as well as the War Crimes Statute, so what does he have to lose by essentially ignoring the court? Is this Congress going to hold him accountable? Even though the NSA program has been openly revealed it continues on without any changes yet made by Congress to the existing law. Senator Russ Feingold suggests the rather mild remedy of a censure and it dies on the vine, and Bush hasn't even shifted his stride as he continues to trample on Civil Rights and ignore both the law and the courts. Senator (and part-time remote viewer) Bill Frist has already begun work on legislation to make the Secret Tribunals legal, so why should Bush do anything to bother abiding by the law, the Constitution or the Geneva Conventions?

Perhaps because this decision has opened the President up to a veritable avalanche of court challenges for his policy. In my original presumption and post before reviewing the detail of the case, I had worried that future cases of this type would not be able to be filed by Gitmo Detainees because of the Levin-Graham Amendment to the Anti-Torture Bill, but it appears that at the very top of their decision the Court Considered this question, and rejected it. This means that the door is wide open for future detainee suits. And unless Justice Stevens dies or retires, Bush is unlikely to win any of these challenges in the future.

At a certain point the realization that this President is a criminal will eventually begin to dawn on the American people - and they will have to force Congress's hand to take action (either through appointment of a Independant Council/Special Prosecutor or Impeachment Proceedings).

It may not happen in time for the end of his Presidency, but it's only a matter of time - hopefully, it won't be too late.

Update: Glenn Greenwald also has some excellent analysis of this decision from yesterday and today has an analysis I concur with; The President is quite likely to completely ignore the Court on this issue:

When asked about the Court's ruling yesterday, the President's answer seemed to suggest (albeit ambiguously) exactly that view:

At any rate, we will seriously look at the findings, obviously. And one thing I'm not going to do, though, is I'm not going to jeopardize the safety of the American people. People have got to understand that.

Isn't the President saying here that no matter what the Court says, he is "not going to . . . jeopardize the safety of the American people"? Thus, if compliance with the Supreme Court's ruling would -- in the President's view -- impair his ability to defend the nation, isn't it quite likely that the President would simply refuse to comply with the ruling on the ground that the Court has no authority to impair his functions as Commander-in-Chief? And if he asserted that power, is there any doubt that his followers would trip over themselves with praise, wallowing in bravado fantasies of Andrew Jackson's heroic challenge to the Court's authority?

Oh, I'm sure they will - in fact the witchhunt for the heads of those crazed out-of-control Supreme Court Justices is already gearing up for full steam. It should be an interesting ride.

Vyan

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

NYT: Task Force Torture

New Expose from the New York Times. (I am quoting liberally as NYT articles do not remain easily accessible indefinately...)

As the Iraqi insurgency intensified in early 2004, an elite Special Operations forces unit converted one of Saddam Hussein's former military bases near Baghdad into a top-secret detention center. There, American soldiers made one of the former Iraqi government's torture chambers into their own interrogation cell. They named it the Black Room.

In the windowless, jet-black garage-size room, some soldiers beat prisoners with rifle butts, yelled and spit in their faces and, in a nearby area, used detainees for target practice in a game of jailer paintball. Their intention was to extract information to help hunt down Iraq's most-wanted terrorist, Abu Musab al-Zarqawi, according to Defense Department personnel who served with the unit or were briefed on its operations.

And as we can all tell, these tactics were extremely succesful since we've had Zarqawi in cus.... um, never mind.

The Black Room was part of a temporary detention site at Camp Nama, the secret headquarters of a shadowy military unit known as Task Force 6-26. Located at Baghdad International Airport, the camp was the first stop for many insurgents on their way to the Abu Ghraib prison a few miles away.

Placards posted by soldiers at the detention area advised, "NO BLOOD, NO FOUL." The slogan, as one Defense Department official explained, reflected an adage adopted by Task Force 6-26: "If you don't make them bleed, they can't prosecute for it." According to Pentagon specialists who worked with the unit, prisoners at Camp Nama often disappeared into a detention black hole, barred from access to lawyers or relatives, and confined for weeks without charges. "The reality is, there were no rules there," another Pentagon official said.

No rules other than "No BLOOD, NO FOUL". What a crock of shit.

It adds to the picture of harsh interrogation practices at American military prisons in Afghanistan and Guantánamo Bay, Cuba, as well as at secret Central Intelligence Agency detention centers around the world.

The new account reveals the extent to which the unit members mistreated prisoners months before and after the photographs of abuse from Abu Ghraib were made public in April 2004, and it helps belie the original Pentagon assertions that abuse was confined to a small number of rogue reservists at Abu Ghraib.

Yep, so much for the - it was only a few misfits on the nightshit playing frat-boy games argument.

For an elite unit with roughly 1,000 people at any given time, Task Force 6-26 seems to have had a large number of troops punished for detainee abuse. Since 2003, 34 task force members have been disciplined in some form for mistreating prisoners, and at least 11 members have been removed from the unit, according to new figures the Special Operations Command provided in response to questions from The New York Times. Five Army Rangers in the unit were convicted three months ago for kicking and punching three detainees in September 2005.

But of course, these were just isolated incidents. Riiight.

According the report many of these individual acts of abuse have been reveald by documents obtained by the ACLU and previously reported over the past 16 months, but in this NYT report - they finally connect the dots to a specific classified unit within the military that has been specifically using these tactics. But then there are reasons for that as well.

The veil of secrecy surrounding the highly classified unit has helped to shield its conduct from public scrutiny. The Pentagon will not disclose the unit's precise size, the names of its commanders, its operating bases or specific missions. Even the task force's name changes regularly to confuse adversaries, and the courts-martial and other disciplinary proceedings have not identified the soldiers in public announcements as task force members.

But you say, those dirty terrorist deserve it? Anything goes when it comes to preserving American lives? Really?

In January 2004, the task force captured the son of one of Mr. Hussein's bodyguards in Tikrit. The man told Army investigators that he was forced to strip and that he was punched in the spine until he fainted, put in front of an air-conditioner while cold water was poured on him and kicked in the stomach until he vomited. Army investigators were forced to close their inquiry in June 2005 after they said task force members used battlefield pseudonyms that made it impossible to identify and locate the soldiers involved. The unit also asserted that 70 percent of its computer files had been lost.

This is a criminal conspiracy. What these soldiers have done clearly violates the Uniform Code of Military Justice prohibitions against Maltreatment of Prisoners(Section 893, Article 94). Clearly some of them were caught, but the point here is that these events we not isolated, they were not random - they were part of an deliberate plot to obstruct the law. And there were many warnings.

Accusations of abuse by Task Force 6-26 came as no surprise to many other officials in Iraq. By early 2004, both the C.I.A. and the F.B.I. had expressed alarm about the military's harsh interrogation techniques.

The C.I.A.'s Baghdad station sent a cable to headquarters on Aug. 3, 2003, raising concern that Special Operations troops who served with agency officers had used techniques that had become too aggressive. Five days later, the C.I.A. issued a classified directive that prohibited its officers from participating in harsh interrogations. Separately, the C.I.A. barred its officers from working at Camp Nama but allowed them to keep providing target information and other intelligence to the task force.

The warnings still echoed nearly a year later. On June 25, 2004, nearly two months after the disclosure of the abuses at Abu Ghraib, an F.B.I. agent in Iraq sent an e-mail message to his superiors in Washington, warning that a detainee captured by Task Force 6-26 had suspicious burn marks on his body. The detainee said he had been tortured. A month earlier, another F.B.I. agent asked top bureau officials for guidance on how to deal with military interrogators across Iraq who used techniques like loud music and yelling that exceeded "the bounds of standard F.B.I. practice."

It does appear that eventually, reluctantly the Pentagon has taken action resulting in the prosecution of 34 former members of the unit -- but whether this action has ended the units practices or simply acted as cover to allow them to continue remains unclear.

Vyan

More Allegations of Abuse from the Pentagon

Pentagon Files Reveal More Allegations of Abuse in Iraq

Documents contain descriptions of severe detainee mistreatment beyond Abu Ghraib.

By John Hendren, Times Staff Writer

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.

The latest allegations add to a pattern that human rights activists said suggested systematic abuse of prisoners at U.S. military detention facilities across the globe. ACLU officials, who have obtained and released thousands of documents in recent months, on Monday accused the Pentagon of a "woefully inadequate" response to hundreds of incidents of alleged abuse.

"Some of the investigations have basically whitewashed the torture and abuse," said the group's director, Anthony D. Romero. "The documents that the ACLU has obtained tell a damning story of widespread torture reaching well beyond the walls of Abu Ghraib."

Responding to the latest allegations, U.S. military officials maintained that a few low-level troops had committed the abuses, independent of senior commanders. They noted that more than 300 criminal investigations had examined allegations of prisoner mistreatment and subjected 100 soldiers to court-martial proceedings and administrative punishments.

"The Army and Department of Defense have aggressively investigated all credible allegations of detainee abuse and held individuals accountable," said Lt. Col. Gerard Healy, an Army spokesman.

Few of the alleged abuses at the Adhamiya palace have previously received attention from Pentagon investigators or human rights groups. The palace is a prison overseen by the U.S. Army's 1st Cavalry Division, with interrogations conducted at least in part by members of the 5th Special Forces Group of Ft. Campbell, Ky.

The alleged abuse at the palace included forced sodomy, electric shocks, cigarette burns and severe beatings. Some allegations by prisoners were corroborated by U.S. civilian military contractors hired to help interrogate detainees, according to the Pentagon documents.

One prisoner held at the palace during 2004 said an Iraqi security officer had burned him with cigarettes and struck him repeatedly, the documents state. Another said Iraqi interrogators had pinched his nose and poured water in his mouth, raped him with a wooden stick and shocked his testicles.

In one of the more detailed cases, Iraqi security troops arrested several members of a family accused of supplying arms and money to members of the fedayeen, paramilitaries who had been allied with Hussein's regime.

A woman whose name was blacked out from the documents claimed in interviews with U.S. Army investigators that the bloody, bruised body of her brother had been tossed into her cell on top of her sister. Her brother died shortly afterward, according to her account.

Another brother, who is disabled, said guards pulled him around by his penis. The guards forced a water bottle up his rectum, he told investigators.

Military investigators noted in reports released Monday that the man's legs and arms are uneven in length from a bone deficiency.

A woman who recounted a similar incident to the French newspaper Le Monde was identified recently as Houda Azzawi. Her brother who died was identified in the newspaper's article as Ayad.

The family's complaints were supported by a sworn statement of a military contractor from CACI International Inc., who was interviewed at the Abu Ghraib prison, where the disabled brother was later sent.

The contractor, whose name was redacted from the documents given to the ACLU, recalled "a detainee who was handicapped and was beaten up very bad."

A second CACI contractor corroborated the story, saying that he did not witness abuse by Americans or Iraqis working with them, but noted in an interview with Army investigators "one incident of rape with a bottle and a death of a brother" in January at the palace.

"I heard that the Iraqis recently killed him and hung him. I heard this through interpreters but not official channels yet," the contractor said. "One of the individuals who had been abused said he remembers one of the Americans had a flag on his arm."

An Army Criminal Investigation Command document dated Oct. 14, 2004, concluded that there was insufficient evidence to prove the allegation that one of the detainees was abused by U.S. troops.

"However, it appears he may have been abused by the Iraqi Civil Defense Corps," the document stated. After an ICDC captain turned over the detainee to U.S. troops, he "was received from the ICDC with visible injuries."

The Army report, whose author's name also was blacked out, concluded that the investigation was "terminated" because continuing would be "of little or no value."

Many detainees from Adhamiya who were transferred to Abu Ghraib complained of abuse to civilian interrogators, according to the documents. The interrogators said another detainee complained he was unable to sit after bottles were inserted into his rectum.

"There were many detainees who came in abused. While we were screening the detainees, they would ask us, 'Are they going to beat us here too?' " the first interrogator said in a statement to investigators. "Some would have broken shoulders, others came in on crutches."

The documents detailed dozens of other alleged abuses in other locations. ACLU officials said the documents suggested that Army criminal investigators failed to pursue leads in abuse cases.

The documents released Monday raised questions about some activities of elite Special Forces teams. One investigation was based on Red Cross reports revealing that an Iraqi detainee turned over to a special U.S. commando unit known as Task Force 6-26 in April 2004 at a base in Fallouja had been abused.

The Red Cross said the detainee had been suspended by his thighs and was beaten while hooded and restrained. The same reports indicated that the Iraqi had been shot in the arm and beaten in the shins with a rubber hose.

However, the case was dropped after investigators concluded he was abused while in the custody of Kurds, before he was turned over to the commando unit, a conclusion ACLU officials continue to question.

In another case involving a group known as Task Force 20, a collection of Special Forces soldiers and CIA officers, a 73-year-old woman complained she was arrested, flown to an undisclosed location and questioned for several days. She said one male captor "rode" her and called her names. She added that two of her fingers were broken and that she was sexually abused with a stick. That case was dropped because "the investigation did not develop sufficient evidence" to prove wrongdoing, investigators wrote.

One investigation was begun in response to a May 11, 2004, Los Angeles Times article detailing the abuses suffered by Iraqi women in U.S. custody as described by their Iraqi attorneys. The matter was quickly dropped when investigators were unable to learn the names and locations of any victims.

In another incident last July, according to the Army documents, a photo emerged showing an Army private pointing a gun at the head of a hooded and bound detainee.

During questioning, the soldier in the photo, whose name was redacted, told investigators that his duties as a guard at an unnamed safe house operated by Special Forces and CIA personnel included requiring detainees to "maintain stressful positions" and preventing them from sleeping by playing loud music, dousing them with water or poking, prodding or slapping them, according to the documents.

Although Army criminal investigators concluded there was probable cause to believe the soldier had committed aggravated assault by pointing his pistol at the detainee, there was no record of punishment or further investigation of the treatment of detainees at the safe house.

An investigation into an alleged beating of an Iraqi detainee in February 2004 found "probable cause" that an unnamed lieutenant colonel had made a death threat and fired a pistol next to the detainee's head at a base in Taji.

Four enlisted soldiers from the 2-20th Field Artillery Battalion of the Army's 4th Infantry Division and a civilian interpreter allegedly punched and kicked the detainee "numerous times while they were interrogating him."

According to the Army documents, the soldiers received light administrative punishment and the interpreter does not appear to have been sanctioned at all.

In a Nov. 14, 2003, statement, a U.S. soldier said he "saw what I think were war crimes" while assigned to a Baghdad facility known as Camp Red. In the statement, the soldier reported seeing U.S. troops assault detainees at the camp and the use of prolonged hooding, exposure to heat and cold and excessive restraints.

"In my mind," the soldier said, "my chain of command did nothing to stop these war crimes, and allowed them to happen."

Despite the soldier's testimony, the investigation was closed due to "insufficient evidence."

Times staff writer Esther Schrader contributed to this report.