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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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POSTS ABOUT CHRISTIANISM's EARLY HISTORY ARE MAINLY ON THE "JESUS PUZZLE" PAGE
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Tuesday, March 20, 2012
Bruce G. Richardson - Political and Legislative Legerdemain Grant War Criminals Immunity against Prosecution
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