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By: Bruce G. Richardson - Political and Legislative Legerdemain Grant War Criminals Immunity against Prosecution|
Thursday, 03.01.2012, 11:18pm (GMT1)
Political and Legislative Legerdemain Grant War Criminals Immunity against Prosecution
No president has ever done more for human rights than I have
George W. Bush
By: Bruce G. Richardson
Crass political decisions and legal legerdemain: In April 2004, the American public was stunned when CBS Television broadcast photographs from Abu Ghraib prison, photographs depicting hooded, naked Iraqis contorted in sexually contorted positions while U.S. soldiers stood over them smiling. As the scandal captured headlines around the globe, U.S. Secretary of Defense Donald Rumsfeld assured Congress that the abuse was perpetrated by a small number of U.S. Military personnel, whom noted columnists branded as ‘sadistic creeps.’ However, these photographs are not, in fact, snapshots of random sadism or a breakdown in military discipline. Rather they represent CIA torture techniques and methods drawn from Soviet KGB practices that have metastasized like an undiagnosed, malignant cancer inside the U.S. Intelligence Community since the onset of the Cold War. (New York Times, ‘Torture at Abu Ghraib’, Seymour M. Hersh, 5/1/04, and Amnesty International, USA: Guantanamo, an Icon of Lawlessness, 1/6/2005).
The photographs from Iraq illustrate standard interrogation techniques inside the global gulag of CIA secret prisons that have operated on executive authority, since the start of the ‘War on Terror.’ The photographs and resultant investigations they inspired, offer tangible evidence that the CIA was both the lead agency at Abu Ghraib in gross violation of the War Crimes Act of 1996,a law that makes it a federal crime to inflict cruel, inhumane and degrading treatment on prisoners in violation of Common Article 3 of the Geneva Convention, and Public Law 109-366, 120 Stat. 2600, 10 U.S.C. sec. 950q, Chapter 47A, and the source of systematic torture practiced in Guantanamo, Afghanistan’s ‘Salt Pit’ and Iraq. What began as an isolated incidence of abuse by a ‘few bad apples’, ‘sadistic soldiers’ on the ‘night shift’ or some ‘recycled hillbillies from rural America’ as articulated by administrations publicists, would grow, in just six months, into a great political scandal that diminished the majesty of the American State, the world’s preeminent power. (Senate Judiciary Committee Confirmation Hearing, Transcript# 1/6/05, 18-19, 22, and U.S. Army Report of Torture of Afghan Detainees Notes Sadism, Tim Golden, Morning Herald, Sydney, Australia, 5/21/2005).
The Torture Memos: In August 2002, as a tactic to mitigate international criticism and legalize such questionable interrogative techniques, Assistant Attorney General Jay Bybee, aided by his deputy John Yoo and vice counsel David Addington, delivered what is now termed the ‘torture memo’, a fifty-page memo to Attorney General Alberto Gonzales providing ‘sweeping legal authority’ for harsh interrogation. By carefully interpreting key words in the UN Convention Against Torture, and its parallel congressional legislation, USC 2340-2340-A, Bybee concluded that federal law limited the crime of torture to ‘acts inflicting, and…specifically intended to inflict pain or suffering, whether mental or physical.’ To constitute torture under the U.S. statute, the physical pain must, he said, ‘be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.’ Bybee observed that psychological torture could become a crime only if there was three tightly linked conditions: (1) the ‘specific intent’ to cause (2) ‘prolonged mental harm…such as ‘post-traumatic stress disorder’ solely by (3) committing one of four forms of mental torture (with threats or drugs) specified in the 1994 U.S. law against torture. Thus, the statute, in Bybee’s analysis, ‘prohibits only extreme acts.’ In particular the ‘sensory depravity techniques,’ did not, in his view, ‘produce pain or suffering of the necessary intensity to meet the definition of torture.’ More broadly, he concluded that any limitation on commander-in-chief powers to order interrogations would ‘represent an unconstitutional infringement of the president’s authority to conduct war.’ (Jay S. Bybee, Memorandum for Alberto R. Gonzales, August 1, 2002, 1-2,816-22). (http://www.washingtonpost.com/wp-srv/nationdocuments/dointerrogations20020801.pdf).
On September ii, 2001, following his evening address to a shaken nation, President George W. Bush gave his White House counter-terrorism staff wide latitude for retribution, saying ‘any barriers in your way, they are gone.’ When Defense Secretary Donald Rumsfeld interjected that there were legal restraints on such action, the president shouted in response, ‘I don’t care what the international lawyers say, we are going to kick ass.’ (Against all Enemies, Inside America’s War on Terror: Richard A. Clark, 2002, pp.28-31). Thus, with Caligula-like dispatch, (Roman Emperor A.D. 37-41 noted for his cruelty), America signaled to the world to the effect that articles as codified in the UN Convention Against Torture and other humanitarian instruments and protocols enumerating the laws of war, and those that had been ratified by the United States Congress, were now rendered, in the words of the U.S. Attorney General, ‘quaint.’ The legal basis for these parochial decisions would be found in casting prisoners in the war on terror as ‘enemy combatants’ due to the fact that they did not wear uniforms and therefore ineligible for protection under existing conventions. However, jurists would argue that during the Soviet occupation the United States had armed and supplied these same fighters (sans uniforms) defining them as ‘Freedom Fighters.’ It is also important to note that the U.S. enlisted the Northern Alliance as allies during the invasion of Afghanistan on October of 2001. The Northern Alliance not only lacked identifying insignia and had been cited for war crimes, but had been similarly attired as were the Taliban. (‘The Interrogators War, Enduring Freedom, Abuses by U.S. Forces in Afghanistan’, Mackey, p.117, Human Rights Watch. March 2004).
In his February 7 2002, memorandum, Bush wrote: ‘I determine that Common Article 3 of Geneva does not apply to either al-Qaeda or Taliban detainees.’ Common Article 3 bans ‘torture [and] outrages upon personal dignity, in particular humiliating treatment.’ On June 29, 2006, in Hamdan v. Rumsfeld, the United States Supreme Court ruled that Geneva does apply to al-Qaeda and Taliban detainees. Under pressure from Bush, Congress gave administration officials retroactive immunity from prosecution. That came just 3 months later when Congress passed The Military Commissions Act. Ironically, the fact that those violating Geneva have been granted immunity within the U.S. makes it easier for foreign countries to pursue prosecution for torture.
Origins of U.S. Interrogation Technique: Many of the techniques employed by the U.S. to extract ‘actionable intelligence’ initially developed from KGB manuals during the early years of the Cold War, are codified in the manual curiously titled Kubark Counterintelligence Interrogation, published in 1963 and 1983 editions. Indeed, the pervasive influence of the agency’s torture paradigm can be seen in the recurrence of the identical techniques used by America and allied security agencies in Vietnam (Phoenix Program) during the 1980s, and Afghanistan theatre of operations, coercive interrogation measures resulted in the death of hundreds-of-thousands accused as Viet Cong, Communists and or terrorists. (The Phoenix Program, H. Valentine, 1990, pp. 63, 77, 85, Released Detainee Says he was Abused, Radio Free Europe/Radio Liberty, January 13, 2005).
Indeed, through its own inquiries, Human Rights Watch found that Afghan detainees as had their precedents during the Cold War, ‘had experienced beatings, prolonged sleep deprivation, forced nakedness and humiliation.’ Similarly, in April 2005, the UN Commission on Human Rights expert for Afghanistan, Professor M. Cherif Bassdiounni of DePaul University Law School, reported that U.S. prisons in Afghanistan violated the law: ‘By engaging in arbitrary arrest, and committing abusive practices including torture.’ (Human Rights Watch, Getting Away With Torture, Commission on Human Rights, ECN 4/2005/122, 11, March 2005).
The Efficacy of Torture: From Imperial Rome to America’s imperium, we should have ample experience to answer a fundamental question: Does any torture work? Does it produce accurate information? The past two millennia are rich with examples that confirm time and again, Ulpian’s dictum from the third century A.D.: ‘the strong can resist torture and the weak will say anything to end the pain.’ Indeed, history is replete with examples of the strong who resisted even the most savage, bone-crushing techniques. Summarizing these and other cases, the Yale legal historian John Langbein said succinctly: ‘History’s most important lesson is that it has not been possible to make coercion compatible with truth.’ (The Legal History of Torture or orture 101, M. Levinson, McGill-Queen’s University Press, 1996).
There are in fact, well-established alternatives to torture. During World War II, the legendary Marine interrogator Major Sherwood E. Moran used empathy to establish ‘intellectual and spiritual rapport with Japanese prisoners. Moran approached each prisoner ‘talking as a human being to a human being’ ‘Moran’s interrogators were among the most effective interrogators in the Pacific Island campaigns of 1944 and 1945, supplying complete Japanese order-of-battle intelligence on Saipan and Tinian within forty-eight hours of landing.’ (Intelligence: Truth Extraction, H. Budiansky, 1996, pp. 32-35). Throughout the war on terror, the FBI has used similar procedures in its time-tested, by-the-book techniques. In the years before 9/11, the FBI worked on the 1998 Kenya and Tanzania embassy bombing cases using careful investigation and non-coercive techniques to build rapport with suspects that yielded, by May 2001, accurate intelligence about al-Qaeda and the conviction of four terrorists, who, in fact, pleaded guilty. One of the bureau agents involved, Dan Coleman, was appalled by the coercive methods Bush Administration lawyers authorized for the CIA after 9/11. Coleman concluded from his years of in FBI counter terrorism that ‘brutalization doesn’t work.’ ‘Furthermore, we know that, besides, you lose your sole.’ (Intelligence: Truth Extraction, H. Budiansky, 1996, pp. 32-35).
Medieval Methodology: Many prisoners have been reluctant to relate their experiences while in American captivity due to deep psychological trauma and scarring, and the fear that their testimony could jeopardize the safety of those they left behind. However, due to Freedom of Information (FOI) requests filed by defense lawyers, Human Rights Watch, the ICRC and a small but significant group of journalists, torture and murder within the American global gulag system have now been amply documented. In Afghanistan, there are 47 detention facilities in 22 of Afghanistan’s provinces. Each, have been cited for a compelling pattern of systematic torture and ill-treatment.’ (Anti-War.Com, John Glaser, 2/20/12). From interviews gleaned from detainees released that have been willing and able to relate their stories, the following examples of the methodology employed by CIA, military police, and other for-hire paramilitary groups or intelligence units emerge: sensory deprivation, hooding, drug-induced mind control, isolation, exposure to extremes of heat and cold, sexual humiliation, which included instilling a fear of rape and the use of female interrogators to photograph and ridicule detainees’ culture and masculinity, threats of death, (shooting, burying alive, wrapping detainees in the Israeli flag as in the case of Muslim prisoners, electric shock to genitalia, nose and lips, water boarding, instilling a fear of drowning, beatings with gun butts, batons, cables and metal baseball bats, stress positions for extended periods while shackled, the use of dogs to induce fear, threats of rape or death against a detainees family, constant verbal abuse, the use of extremely loud music to prevent sleep, and desecration of the Koran, the threat of never-ending imprisonment, forcing detainees to drink enormous amounts of water while tying the penis with string to prevent the ability to urinate, medical treatment withheld from among those captured in wounded condition, forced insertion of foreign objects (bottles, pieces of wood, and strong chemical agents) into the anus, shackling prisoners is such a way as to not allow the use of toilet facilities, and serving rotten and unpalatable food. While Bush’s attorney general (Michael Mukasey) vacillates over whether or not the practice of water boarding constitutes torture under the statutes, so terrifying is this technique that during a CIA laboratory experiment volunteers could not withstand this abhorrent procedure for longer than four seconds. (The Interrogators War, Inside the Secret War against al-Qaeda, John Murray, 2004, pp. 7-13, 165-173).
At the start of President Clinton’s covert campaign against al-Qaeda in the mid-1990s, the CIA lacked the skills to translate raw intelligence into real results and so, in frustration and desperation, formed covert alliances with Third-World security services known for torture. Prisoners were remanded (via a covert CIA air service) countries notorious for human rights violations. Practitioners in Uzbekistan, Tajikistan, Jordan, Egypt, and Bosnia, Romania and Morocco as well as others harbored no qualms about extracting fingernails, water boarding, beating, electric shock, and even boiling their hapless victims in oil. This unconscionable and macabre policy would become known as ‘extraordinary rendition,’ placing prisoners of war beyond the adjudication and protection of the courts and thus deny them due process. (Grey Ghost Plane, Outsourcing Torture, Jane Mayer, 2005).
Betrayal: At the U.S. prison at Bagram, the processing of prisoners for Guantanamo reflected both the desperation and the ignorance of U.S. military operatives in the field. Hundreds of Afghan prisoners were held between December of 2002 and August of 2003, when the last of the Guantanamo prisoners were processed, but, although many were released and others continues to be held in Afghanistan, the ninety who were remanded to Cuba were, yet again, almost entirely innocent. Around sixty-percent, including at least 17 men who were working for the Karzai Government, were betrayed by opportunistic rivals, rivals who were all too aware that the Americans were both gullible and lazy, and would not make any attempt to investigate the men’s histories, another thirty percent were bystanders rounded up arbitrarily after attacks on U.S. forces. Along with hundreds of Afghans, and many foreign nationals of Arab extraction who were in Afghanistan on legitimate business were rounded up and turned over to the Americans by predatory soldiers of the Northern Alliance who had been cited by the former President of Ireland and Head of the United Nations Human Rights Commission, Mary Robinson, as an undisciplined and predatory gang of vigilantes, that while under the watchful eye of the CIA, engaged in committing atrocities against Pashtuns with an inquisitional fervor, and a policy where ethnic and or religious affiliation determined whether one lived or died.
Others who saw an opportunity to extract lucrative bounties offered by Americans were corrupt Pakistani border guards, Afghan-Army personnel, and a small number of Afghan villagers who also had been seduced by offers of bounties of from $5000-10,000, betrayed them under pretense of sanctuary. (Afghanistan, Political Frailty and External Interference, Nabi Misdaq, 2006, p.256).
Information obtained by journalists suggests as well that large numbers of Taliban foot soldiers were ignorant of 9/11 and were unaware they were fighting against American forces. Taliban conscripts and volunteers were, in many instances, of the impression they were waging Jihad against the Godless Northern Alliance and their Russian patrons. On the ground in Afghanistan, given Dostum’s and Massoud’s history of betrayal in particular, was the Russians, now back and serving as an undeclared, covert- proxy force of the Americans and therefore no surprise that many of those who made their way to Afghanistan thought they were fighting the Russians. The testimony of one Saudi national is illuminating: Mesh Arsad al-Rashid, a 21 year old Saudi, said that he went to ‘help Muslims fight Dostum and Massoud over a year before any problem happened in America,’ and pointed out that he didn’t ‘know of any alliance between America and Massoud, and all that was known in the world was that Massoud and Dostum were helping the Soviet Union.’ Similarly, other large numbers of low level soldiers among Taliban detachments advised their captors that they were unaware of fighting the Americans, convinced that they were participating in an anti-Soviet Jihad. (Al-Rashid (ISN 74, CSRT Set 4, pp. 22-29, May, 2006, and U.S. Decries Abuse but Defends Interrogation, Dana Priest and Barton Gellman, Washington Post, 12/26/2002, and Afghanistan, a Search for Truth, Bruce G. Richardson, 2009, pp.336-344).
Orders to engage in and authority for torture and murder emanated from the highest authority in the land, in bold contravention of national and international statutes. Thus far, with the exception of a small number of low-ranking members of the military, no charges have been brought against those on whose authority murder and torture was sanctioned and even encouraged, notwithstanding the fact that identical techniques employed by U.S. interrogators in the war on terror are identical to those employed by Nazi and Japanese officials prosecuted and subsequently executed as war criminals following the end of hostilities in World War II. (Judging War Criminals, Yves Beigbeder, 1999, pp. 27, 76, 146, 199).
Amnesty from Prosecution: On 17 October, 2006, Republican legislators applauded as President George W. Bush signed a bill granting him and his subordinates, amnesty for acts of torture. When the United States Supreme Court ruled that the Bush Administration officials were bound by the Geneva Conventions, a Republican Congress responded by granting immunity to all responsible, from low rank interrogators to the president, while conservative judges erected a wall of secrecy to protect them from civil liability.
Thus far, Bush Administration officials have escaped prosecution for authorizing, encouraging and concealing premeditated ‘war of aggression’, torture and abuse of prisoners. They concealed facts, undermined investigations, tried to eviscerate the legal definition of premeditated war and torture, and invented novel legal defense.
Around the world, Guantanamo, Bagram, Parwan, the ‘Salt Pit’, and the ‘Dark Prison’ are viewed as a stain on the honor of the United States. They stand as visual evidence of a decision by the U.S. to repudiate its human rights commitments and human rights standard that every American administration up to the arrival of George W. Bush had championed. Law enforcement officials from around the world have pointed to the opinions handed down in American courts that sustain and nurture Guantanamo, legal opinions exacerbated by America’s refusal to ratify the International Criminal Court (ICC) and the multitude of Afghan detention sites as evidence of the corruption and the collapse of the American courts and judicial philosophy, a philosophy once seen as a shining example of exemplary jurisprudence.
Justice Denied: During March of 2009, Baltasar Garzon, Spain’s most high-profile judge, invoked the principal of ‘Universal Jurisdiction’ when he sought to investigate six former Bush Administration officials for giving legal cover to torture at the U.S. prisons in Guantanamo and numerous sites in Afghanistan and for launching pre-emptive ‘wars of aggression’ in both Iraq and Afghanistan. Another High-Court Judge, Santiago Pedrez, declared he would hand down indictments against three U.S. soldiers and a group of Marines, citing crimes against humanity for deaths occurring in Afghanistan such as the revenge killing of twenty-five Afghan villagers. Journalist Glen Ford noted that the world’s biggest potential defendant for war crimes and crimes against humanity is the United States, whose record of direct and indirect involvement in torture and mass killings in Afghanistan has been unmatched by any other nation since World War II. Sadly, U.S. pressure was primarily responsible for forcing Spain to close off its courts and to ‘cease and desist’ from international jurisdiction cases under threat of U.S. trade embargo and barriers and other economic sanctions, using its economic muscle to provide tactical and political immunity from prosecution for officials from both the Bush and Obama Administrations. Such is the legal, moral, ethical and diplomatic albatross America has inherited from the administrations of George W. Bush and Barack Obama, a legal conundrum with which we will have to cope for generations to come. (Getting Away with Torture: Secret Government, War Crimes and the Rule of Law, Christopher H. Pyle, 2009, and ‘Sixth Anniversary of the Detainees arrival at Guantanamo’, Associated Press (AP), 10/2007).
Bruce G. Richardson
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