War Crimes

by Henry on October 4, 2007

“Marty Lederman”:http://balkin.blogspot.com/2007/10/place-of-inspiration.html on the revelations in “today’s NYT”:http://www.nytimes.com/2007/10/04/washington/04interrogate.html?hp.

“[James] Comey told colleagues at the department that they would all be ‘ashamed’ when the world eventually learned of it.” [Would] that it were so. Between this and Jane Mayer’s explosive article in August about the CIA black sites, I am increasingly confident that when the history of the Bush Administration is written, this systematic violation of statutory and treaty-based law concerning fundamental war crimes and other horrific offenses will be seen as the blackest mark in our nation’s recent history — not only because of what was done, but because the programs were routinely sanctioned, on an ongoing basis, by numerous esteemed professionals — lawyers, doctors, psychologists and government officers — without whose approval such a systematized torture regime could not be sustained.

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just an observation « ex-lion tamer
10.05.07 at 4:39 pm

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1

Ugh 10.04.07 at 7:39 pm

And watch them get away with it. Bombing Iran too.

2

EWI 10.04.07 at 10:55 pm

the programs were routinely sanctioned, on an ongoing basis, by numerous esteemed professionals—lawyers, doctors, psychologists and government officers—without whose approval such a systematized torture regime could not be sustained.

I don’t believe it. Such a thing could never happen in a civilised Western country. /snark

3

Barry 10.05.07 at 1:58 am

Henry, that’s the way that it’s always been. The lawyers, doctors and psychologists have been deeply involved with this for decades. What changed was that they could be public with it – and both get away with it, and with their reputations.

4

Barry 10.05.07 at 2:10 am

Which, of course, will have effects for the next couple of decades. Those who might have been fearful about getting caught will know that that’s not a major problem. And being exposed will be no threat to one’s career; there will be think tanks, contractors and university departments aplenty to nest in.

5

Patrick S. O'Donnell 10.05.07 at 2:58 am

Indeed, this brings to mind Richard J. Barnet’s book about the “best and brightest” responsible for the Vietnam War, The Roots of War: The Men and Institutions Behind U.S. Foreign Policy, 1972.

6

Ragout 10.05.07 at 3:12 am

Since this blog is so full of Europeans and international lawyers, I’m wondering what y’all are doing about this. While obviously Americans bear the most responsibility for our torturer-President, where are the Belgian war crimes indictments, the votes of condemnation from the British Professor’s union, the ICC investigation?

7

ckp 10.05.07 at 5:47 am

George W. Bush will go down in the history of United States of America as the worst president ever for the aspirations of a group of people for reasoned democratic principles.

8

ckp 10.05.07 at 5:49 am

But heh, either you were ‘with us or against us’. For the sake of your career, wouldn’t you be with them. Never mind principles. Leave them behind.

9

novakant 10.05.07 at 8:49 am

I’m wondering what y’all are doing about this

Look harder, Kissinger is afraid of traveling now and Rumsfeld should be.

10

MR. Bill 10.05.07 at 11:25 am

Here’s a oldie but goldie from the late lamented Billmon’s Whiskey Bar (now cached at http://www.docstrangelove.com/2006/12/19/five-years/
a blog I strongly recommend, by an American Muslim: the following text is illustrated by a photoshopped view of the Bush Junta in the dock at the Hague, and titled ‘Scenes we’d like to see’:
”Defendants in the dock at the Ango-American War Crimes Trial of 2010, held at The Hague under the jurisdiction of the International Criminal Court.

Of the 20 defendants shown here — the so-called “Republican Guard” — only one (Alan Greenspan, second row, second from right) was found not guilty, on the grounds that the destruction of the American economy and the global financial crash of 2008, while regrettable, did not constitute war crimes as defined by the Geneva Convention.

Another defendant (Ari Fleischer, front row, extreme right) received only a light sentence, as the court determined that lying to the American people was too common a crime to merit more severe punishment.

In a more controversial decision, former Secretary of State Colin Powell was spared any prison time at all, after the judges ruled that being seated between former Defense Secretary Donald Rumsfeld and Chairman of the Joint Chiefs of Staff Richard Myers for the entire eight-month trial constituted “punishment enough.”

Former Vice President Richard Cheney (second row, extreme left), who feigned narcolepsy throughout most of the trial, was committed to the newly established United Nations Hospital for the Criminally Insane, as was former National Security Advisor and Secretary of State Condoleezza Rice (next to Cheney), who insisted on being addressed as “Mrs. Bush” throughout the trial.

The remaining defendants were sentenced to life terms at the Guantanamo War Crimes Penitentiary — the same facility used to imprison the remaining leaders of the Al Qaeda terrorist organization, whose own war crimes trial began shortly after this picture was taken.” http://billmon.org/archives/001864.html

11

jonst 10.05.07 at 12:06 pm

I’m getting somewhat weary of Lederman. Where is his ‘therefore’? There is an old saying that all law exam answers have three parts. And each part inevitably begins with the same words, “under”, “here”, and “therefore”. “Under” so and law it is a violation/crime…… “Here” the defendant/plaintiff did so and so stuff. “Therefore”…..

Where is his “therefore”? He seems to leave that to historians. As far as I can tell. If I missing something, and have done the Prof a disservice, I apologize. My “therefore” is: impeachment proceedings should commence. Charges should be filed, if it is procedurally possible, in the UN/World Court. Once the impeachment proceeding have ended, and Bush is out of office, one way or another, criminal investigations should begin here the US justice system.

12

Barry 10.05.07 at 12:24 pm

jonst, Marty has a problem, because the Bush administration hasn’t merely exploited a legal loophole, they’ve discovered flaws in the system large enough to run all of the aircraft carriers in the US Navy through – side by side.

They did it, it’s known, the Democratic leadership doesn’t want to deal with it, the big money which dominates our system supports it, 41 GOP Senators can block almost everything, our media doesn’t want to face up to it, and ~50% of the American people don’t mind or actively support it.

The American system is broken. A rough thing to face if you’re a liberal law professor (or an honest conservative).

13

jonst 10.05.07 at 12:33 pm

Barry,

The system is not broken. It is bent and twisted. And misused. It can be fixed com Nov 08. To do that the leaders, or people who aspire to leadership, have to outline clear (granted, dangerous and difficult)plans to repair the system. And to punish the people, if any, who committed illegal acts. Its really that simple. (“simple” should not be mistaken for easy). If said “leaders” do that the people will follow.

14

Matt Weiner 10.05.07 at 12:52 pm

to punish the people, if any, who committed illegal acts.

But as we’ve seen in the case of Libby, that’s not that easy. Even if we could come up with a federal prosecution (and I bet it’d be hard to get a conviction from a jury based on treaty-based law), until January 2009 Bush can just issue pardons.

The best argument against the ICC starting trials now is here. If the ICC indicts Bush Admin officials before the US joins it, then the US never will join it. If they wait until the US joins, the just maybe there’s a chance that eventually Bush, Yoo, Addington and their like will end their miserable existences in a Hague prison.

But basically Barry is right, the system is broken. (And impeachment would only be a symbolic gesture unless there’s some reason that seventeen Republican senators would vote to convict.)

15

jonst 10.05.07 at 1:53 pm

PM,

Libby’s conviction puts me in mind of Samuel Johnson’s dog….’not that it walks poorly on its hind legs, its that it walks at all’

In the middle of a war, in the wake of the nation re-electing the Bush admin, with long knives drawn at his back, Fitzgerald got his conviction. OK….Bush bailed Libby out. But he had to spend political capitol. Its a drip, by drip, by drip, process that got the bastard to where he is now. Look, it’s highly subjective on my part, and perhaps overly optimistic, but I am tired of people telling me that the ‘system is broken’. The ‘system’ is the people. If anything is broken it is ‘the people’. But I don’t buy that. As trite as I risk sounding, I go with Abe Lincoln on this…”you can some of people all of the, and all of the people, some of the time, but you can’t fool all of the people all of the time”. These guys, and the pernicious form of govt they brought with them, are ready to be taken down in Nov 08. But still there are weak leaders telling us, ‘oh, we don’t have the votes, there is nothing we can do’. Bullshit. Keep fighting. Keep attacking him. On all fronts, at all times, in all ways. The people will be galvanized by said actions, whether symbolic or not. And what the hell is wrong with symbolism? So long as it is the means and not the end? The end is to crush these guys in Nov. Senate, House, Presidency. After that is the lamb going to lay down with the lion? Is manna gonna fall from heaven? No. But we get to start over. Clean the stables, if you will. Sure, they will probably fill up again. But in the meantime…we have a chance of putting Bush and Cheney in the dock. Have faith brother….and go for the juggular.

16

matt 10.05.07 at 2:45 pm

Matt W.- does the ICC even have juristiction over countries that are not members? I don’t think so but I can’t recall for sure. Also, it’s highly unlikely that _any_ US figures would ever go before the ICC even if the US were a member since the ICC doesn’t ahve jusridiction over any case that has been considered by a domestic court, even if the domestic action was not, in any real sense, plausible. Surely something like this would happen before any US figures would go before the ICC. This clause was necessary to get the ICC going at all but has seriously limited its power.

17

Barry 10.05.07 at 2:48 pm

jonst, electing a Democratic president in ’08 won’t fix things; at best, it’ll slow the unraveling. The people who did these things won’t be punished, even to the extent of career damage (with rare exceptions, of course; bad luck happens to even bad people). Given the layers of classification, the sheer legal difficulties of prosecution, the fanatical desire of the GOP to prevent such prosectuions, and the media’s indifference (they’ll be sniffing panties again), there will be no prosecutions to speak of.

This means that the people who did this will have correctly learned that they can get away with such things, that they can profit by such things, and that even general public knowledge of such things isn’t a problem.

The lessons of the GOP for the past six years also includes that a GOP president can tell a Democratic Congress to f*ck off to an extent that I wouldn’t have believed back in 2000, or even 2005. The Democratic leadership in Congress will probably attack the Democratic President (along with the GOP), but all that that will do is demonstrate that the Dem leadership only has the b*lls to attack their own, weakening the Democrats’ power.

In 2013 or 2015, a GOP administration will again take power. Many of the senior people will be middle-management guys from this administration, just as many in this administration were from the Nixon, Ford, Reagan and Bush I administrations. And the one clear lesson they’ll have learned is that they can get away with so very, very much.

18

Joshua Holmes 10.05.07 at 2:52 pm

Between this and Jane Mayer’s explosive article in August about the CIA black sites, I am increasingly confident that when the history of the Bush Administration is written, this systematic violation of statutory and treaty-based law concerning fundamental war crimes and other horrific offenses will be seen as the blackest mark in our nation’s recent history

I further boldly predict that almost no one will care, which is not a good sign for the future of American liberty.

19

jonst 10.05.07 at 3:28 pm

Maybe Barry, just maybe, the GOP thought the same thing in 1932. ‘We’ll be back in power by 1937!’. Look, I KNOW, and wrote, in my previous comment, the the present bunch of corporate knuckle-headed, gutless Dems will not “fix things”. Please don’t attach that straw man to me. In this thread…you want to be the pessimist. ‘it won’t work, and even if it does, you can’t convict them of anything, and even if you do, they’ll just be back in 2012’ and so on. Yes, that is possible. What do you propose? I repeat Barry, what do you propose? Me, I’m playing the optimist. Maybe the things I propose are unrealistic. Ok. Look, all I can do is try to work, to do my small part, to get rid of these SOBs, in Nov 08. I don’t know what comes after that. I guess it depends on the size of a Dem victory. And the kind of Dems that get elected. People will respond well, Hillary will get elected and YOU KNOW HER TYPE”. I do. I feel I most certainly do. Its why I’m optimistic. Which ever group is in the ascendancy in the Dem party, Hillary is for. If its progressives than by god we’ll have no bigger progressive than Hillary. Until the progressives are unfashionable. Then she will drop progressives in a minute. So, my hope, and expectation is, progressives will come to power in 08. Hillary will gladly ride the wave. Even as she tries to slow it down. I can live with that. I can’t live with Bush et al.

20

Barry 10.05.07 at 3:30 pm

“Maybe Barry, just maybe, the GOP thought the same thing in 1932. ‘We’ll be back in power by 1937!’. ”

I think that perhaps that whole Depression thing hurt them a bit. Jeez.

“Yes, that is possible. What do you propose? I repeat Barry, what do you propose? Me, I’m playing the optimist. “

21

Barry 10.05.07 at 3:31 pm

Sorry, I trimmed my line: “I don’t know”

22

Quo Vadis 10.05.07 at 4:25 pm

~50% of the American people don’t mind or actively support it.

This is the issue and it’s a matter of trust. Presumably, that ~50% believe that those who have the responsibility to protect the US from terrorist attacks are doing these things because they are necessary. Few people have the knowledge of intelligence requirements and interrogation methods to make the necessary value judgments themselves so they have to trust someone else to make these decisions for them. If you are going to convince that 50% that those responsible should be punished, you are going to have to have to weaken that trust or provide an authoritative voice that is more trustworthy. If this can’t be done, then any attempt to change the policies or punish those responsible will be impossible or at best, fraught with risk of consequences.

Imagine if the UN or the ICC or the German courts or some other entity outside the US managed to convict and punish some US officials or intelligence personnel and thereby affect some change in US policy. Imagine then that a terrorist attack against the US occurs and that someone is able to make a convincing case that the attack could have been prevented had the policy not been changed.

23

engels 10.05.07 at 5:22 pm

it’s highly unlikely that any US figures would ever go before the ICC even if the US were a member since the ICC doesn’t ahve jusridiction over any case that has been considered by a domestic court, even if the domestic action was not, in any real sense, plausible.

I actually don’t think that’s true. According to the ICC website

The ICC will not replace national courts, but will be complementary to national criminal jurisdictions. The Court will only investigate and prosecute if a State is unwilling or unable to genuinely prosecute. This will be determined by the judges. Unjustified delays in proceedings as well as proceedings which are merely intended to shield persons from criminal responsibility will not render a case inadmissible before the ICC.

does the ICC even have juristiction over countries that are not members?

In theory, even though the US is not a party to the ICC, the ICC has jurisdiction over genocide, crimes against humanity or war crimes committed by US troops on the territory of any state which is a party. From the ICC website

The Court may exercise its jurisdiction with respect to the crime of genocide, crimes against humanity and war crimes either when the situation is referred to the Prosecutor by a State Party or by the Security Council, or when the Prosecutor decides to initiate an investigation his or her own decision and on the basis of information received. However, in this last case, the Prosecutor must seek the authorization of the Pre-Trial Chamber before proceeding with the investigation.

[In the case where the situation was not referred to the Court by the Security Council] the Court may exercise its jurisdiction only if either the State on the territory of which the suspected crime occurred (State of territoriality), or the State of which the person suspected of having committed the crime is a national (State of nationality of the suspected person), is a State Party to the Statute.

If neither of these two States is a State Party to the Statute, the Court will not be in a position to investigate the suspected crimes, except if either the State of territoriality or the State of nationality of the suspected person accepts the exercise of jurisdiction of the Court by declaration lodged with the Registrar.

However, the US has taken aggressive action to prevent the ICC from exercising its jurisdiction over US personnel in accordance with the above. According to Human Rights Watch:

First, the Bush administration negotiated a Security Council resolution to provide an exemption for U.S. personnel operating in U.N. peacekeeping operations. …

Second, the Bush administration is requesting states around the world to approve bilateral agreements requiring them not to surrender American nationals to the ICC. The goal of these agreements (“impunity agreements” or so-called “Article 98 agreements”) is to exempt U.S. nationals from ICC jurisdiction. They also lead to a two-tiered rule of law for the most serious international crimes: one that applies to U.S. nationals; another that applies to the rest of the world’s citizens. ……

Thirdly, the U.S Congress has assisted the Bush administration’s effort to obtain bilateral impunity agreements. The Congress passed the American Servicemembers’ Protection Act (ASPA), which was signed into law by President Bush on 3 August. The major anti-ICC provisions in ASPA are: a prohibition on U.S. cooperation with the ICC; an “invasion of the Hague” provision: authorizing the President to “use all means necessary and appropriate” to free U.S. personnel (and certain allied personnel) detained or imprisoned by the ICC; punishment for States that join the ICC treaty: refusing military aid to States’ Parties to the treaty (except major U.S. allies); a prohibition on U.S. participation in peacekeeping activities unless immunity from the ICC is guaranteed for U.S. personnel….

24

Matt 10.05.07 at 5:28 pm

Engels- my too quick analysis was basically about the actual meaning of the sections you quote. In particular, since the US isn’t a party, and Iraq isn’t a party, the only way a case involving the US in Iraq could get before the ICC would be if it was refered by the security council, and since that would have to include US, it obviously isn’t going to happen. The rule about investigations by domestic courts has also been interprited _very_ loosely, essentially making it so that jurisdiction can be blocked in nearly any case. The chance of an ICC action against any US figure for anything involving Iraq are almost non-existant, I’d now argue, after having looked a bit more.

25

engels 10.05.07 at 6:31 pm

Yes, you were right to say that as things stand the ICC does not have jurisdiction over US forces in Iraq. It’s a different story for the UK, of course…

26

Barry 10.05.07 at 6:38 pm

“…..Imagine then that a terrorist attack against the US occurs and that someone is able to make a convincing case that the attack could have been prevented had the policy not been changed.”

Posted by Quo Vadis

Already happened (9/11/2001, ‘Bin Laden Determined to Attack Within US’, etc.).

27

JH 10.06.07 at 6:52 am

jonst:

“I am tired of people telling me that the ‘system is broken’”

Well, it is, unfortunately, and the trouble is that too much faith is placed in the Constitution, as if it were incapable of containing nonsense.

And what possible justification can there be in appointing USSC Justices ‘for life’? – there is none, so why don’t you forcibly retire them at age 65, like practically all other public sector employees. Why do you allow the executive to project its political ideology far beyond its term, where democracy cannot reach?

If the system needs big fixes, it’s broken alright!

28

Beyonce Welch 10.06.07 at 8:01 am

IMHO Right Wingers are never ashamed. Beyonce Welch – African American Mother & Grandmother For Peace.

29

nick s 10.07.07 at 4:49 am

On something of a tangent: he shame of the APA — the body that allows Bush to say that Guantanamo detainees are under ‘medical supervision’ — will continue to stink for years. I can’t think of a better way for a bloated professional monopoly to shit its own bed so blatantly. Will any of its senior executives suffer? Will they bollocks.

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