Federal Prosecutions Of War Criminals – National Affairs

Renditions For Torture Infamously, prisoners were “rendered” to other countries for torture. Men were kidnapped off the street, hooded, shackled, sedated by anal suppositories or syringe injections, dressed in jump suits, and flown by private Gulfstream jets (registered to dummy corporations) to countries such as Egypt, Syria and Uzbekistan to be tortured at the behest of the CIA. These persons were “disappeared,” as had occurred in Chile under Pinochet. Torture practiced by one of the countries they were given to, Egypt, was long known to include beatings with metal rods and whips, being suspended from ceilings or door frames, electric shocks, and dousing with cold water. The CIA was able to give questions to Egyptian torturers in the morning and get answers by the evening. In Syria, it was known, torture included electric shocks, “pulling out fingernails, freezing cells, forcing objects into the rectum” and “hyper-extending the spine” to fracture or near fracture. Uzbekistan has long engaged in boiling people – they are placed in water which is raised to boiling temperature.

It is not yet known how many people were kidnapped and rendered to other countries for torture, but confirmed cases range from a low of 117 to at least 150. Every rendition to torture was approved by the CIA’s General Counsel, and rendition for torture excited and was personally encouraged by George W. Bush, who wanted to brag about it publicly but was unable to because some of the participating governments were fearful that their own populations might learn what they were doing.

Though the Executive has made every effort to keep renditions secret, information has leaked out. Thus it is already known, for example, that at least seven of the persons who were rendered and tortured were innocent. (Sometimes mistaken identity was involved, as when an innocent “rendee” had the same Arab name as a possible culprit (much like two Americans might both be named George Thomas.) Federal judges such as David Trager and T.S. Ellis, III refused to allow cases brought by innocent but tortured persons to proceed against the federal government, lest the government be forced to disclose information it desires to keep secret. Such torture-promoting decisions may constitute war crimes in themselves under principles applied against Nazi judges and lawyers at Nuremberg in the Alstotter case.

The foregoing acts, singly and in combination, violate numerous international treaties and domestic statutes. In particular they violate Common Article 3 of the Geneva Conventions, the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, the federal War Crimes Act, and the federal Antitorture Statute. These laws outlaw torture, other war crimes, breaches of Common Article 3, cruelty, infliction of serious physical or mental pain, degrading or inhumane treatment, death threats against the prisoner or his relatives, violence against prisoners or abuse of prisoners, other similar conduct, or grave breaches of Geneva Conventions rules that bar such acts.

The punishments provided for violation of the federal laws range up to life imprisonment, and execution if the tortured prisoner was killed. These are serious penalties for serious acts, showing the seriousness with which this country has regarded torture and abuse of prisoners prior to the Bush administration. Nor can there be any legitimate dispute that laws against torture and abuse have been violated – wholesale.

III. THE OFFICIALS, POLITICIANS AND LAWYERS WHO ORDERED, AUTHORIZED, OR ATTEMPTED TO FALSELY JUSTIFY AMERICAN WAR CRIMES

The persons already known to be responsible for ordering, authorizing or carrying out the torture and abuse which constitute war crimes include government officials and politicians who ordered these actions, CIA officials who committed the actions, and lawyers (who sometimes were also officials and/or politicians) who carried out the bidding of the politicians and CIA by creating false, professionally incompetent memoranda claiming that acts of torture were legal. The lawyers acted in the “tradition” of the lawyers and judges who were convicted at Nuremberg because they aided the commission of war crimes, or, as has been said, in the “tradition” of mob lawyers who invent justifications for the unlawful actions of the mob.

The government officials and politicians who are guilty of war crimes, and violations of both international law and domestic statutes, include George Bush, Dick Cheney, Alberto Gonzales, David Addington, Tim Flanigan, Lewis Libby, Condoleeza Rice, Donald Rumsfeld, Douglas Feith, Stephen Cambone, John Ashcroft, Michael Chertoff, Michael Dunlavey, Geoffrey Miller, and to a lesser extent, because he sometimes tried to stop the torture in which he was complicit, Colin Powell. Gonzales, Addington, Flanigan, Feith, Dunlavey, Libby, Ashcroft and Chertoff are lawyers as well as officials and/or politicians. The CIA officials who are guilty of war crimes include George Tenet, Cofer Black, James Pavitt, Scott Muller and John Rizzo (who are lawyers), David Becker, and a woman whose name is classified and who is therefore publicly identified only as a spiky-haired, red-headed person who, as head of the CIA’s Al Qaeda unit, insisted on and for no apparent reason flew abroad to see the waterboarding of a prisoner. (She also was a CIA briefer of George Bush). The lawyers who are guilty of war crimes, as well as those named above, include Jay Bybee, John Yoo, Jim Haynes, Robert Delahunty, Patrick Philbin, Steven Bradbury, Diane Beaver, Mary Walker and to a somewhat lesser extent, because he at least withdrew the professionally incompetent memo of August 1, 2002 authorizing war crimes, Jack Goldsmith. (Goldsmith did not withdraw the torture memo because he was in disagreement with the kind of actions it approved, but because he was appalled by its professional incompetence. He did not disagree with the recommended actions, and did not withdraw the second memo of August 1, 2002, which listed specifically authorized techniques of torture. Rationalizing his action regarding the second memo, he claimed, among other things, that he did not know if the techniques – which included waterboarding – were torture. Also, he authored a memo unlawfully authorizing prisoners to be removed from Iraq for interrogation in other countries, where they were tortured, and he participated extensively in authorizing illegal wiretapping.)

IV. PROCESSES BY WHICH HIGH OFFICIALS ORDERED AND AUTHORIZED TORTURE, AND KEPT THEIR ACTIONS SECRET

The ordering of torture and abuse of prisoners was part of a larger view of Executive prerogative held by several leading actors, especially Dick Cheney and David Addington. Both of them propounded their view since at least the 1980s. And, when Executive officials showed compunctions about continuing to carry out those views during the administration of G.W. Bush, the very powerful Cheney would vigorously oppose such “backsliding,” while the large, physically imposing Addington, who was known to speak as the voice of the powerful Cheney (his boss), would aggressively browbeat those who had qualms about what was being done.

The view of Executive authority imposed by Cheney and Addington, carried out by a group of powerful acolytes who were officials and/or lawyers, and approved by George W. Bush, was that the Executive was all powerful. The Executive could break the laws of the United States, as with the FISA law and laws against torture. The Executive could secretly and bindingly opine, through the Office of Legal Counsel (OLC) of the Department of Justice, that Congress and the laws of the United States could not stop the Executive from doing whatever it wished, as was exemplified in secret OLC memos, including memos falsely authorizing torture and abuse of prisoners. The Executive could even announce that parts of U.S. laws would be ignored, as with scores or hundreds of signing statements. The Executive could refuse to tell Congress what it was doing and could, indeed, even hide its actions from the leaders of Congressional committees with jurisdiction over those actions. The Executive was, in short, all powerful and Congress was merely a cipher.

As now widely recognized, this Cheney/Addington view – signed onto by their acolytes, by George Bush, and at least partly endorsed publicly by some individuals whom George Bush has appointed to the Supreme Court – was an attempted constitutional revolution. It was, moreover, an attempted constitutional revolution which succeeded for several years (at least partly because the so-called mass media went along with it).

With regard to torture and abuse, the unlawful ordering and authorization of war crimes proceeded on two parallel but intimately related tracks. One was the civilian track involving the Department of Justice, the CIA and the White House. The other was the Department of Defense track. John Yoo of the OLC was a major point of commonality for both tracks, because his memoranda authorizing torture formed the basis of the false, incompetent and identical legal positions of both tracks.

At all times the false legal memoranda by civilian lawyers such as Yoo and Steven Bradbury, and by military lawyers such as Diane Beaver, and Mary Walker, were kept as secret as possible. So too the actions of torture and abuse carried out both before and after the false memos were issued. The memos and actions were hidden not just from the public, but also from Congress and, startlingly, from many, perhaps even most, lawyers in the Executive branch who ordinarily would be expected to vet and opine on the memos and actions. (Thus, DOD kept only a single copy of a memo from John Yoo providing it with the same unlawful advice he previously gave the CIA – advice DOD then parroted in its own memo – and that single copy was kept locked in the safe of the General Counsel of the Air Force, Mary Walker.)

The memos and actions were kept as secret as possible because the Executive Branch actors knew that if word of their authorizing memos and their actions ever became public, there would be a vast outcry among the public, in Congress and in the media, and at least part if not all of the attempted constitutional revolution would be jeopardized. Such an outcry is, indeed, precisely what happened, with increasing vigor, after the secrecy began to fail and unlawful memoranda and actions began to become public.

To this day, however, it remains true that an unknown (perhaps large) number of the memos remain secret. (For instance, on a related subject, memos authorizing the NSA to violate the FISA laws enacted by Congress remain secret.) They were kept such a “close hold” (in the culprits’ own terminology) that Addington would not even allow the NSA’s own lawyers to see them when they asked to do so – that is to say, the lawyers for the agency being told to violate the law were not allowed to see – and comment on – the memos authorizing the illegality. But public pressure has caused some of the unlawful memoranda to be declassified and thereby become public, or has resulted in a significant amount becoming known about memos which remain classified. So a fair amount is now known about false, professionally incompetent memos by which the Executive Branch actors sought to secretly work a constitutional revolution. (There are persons who consider their efforts to have been treason. The Jackson Committee presently takes no position one way or the other on this claim.)

The attempted constitutional revolution seems to have begun with a secret decision, shortly after 9/11, that was sought by the CIA. This decision, also sought by George Bush and signed by him on September 17, 2001, secretly gave the CIA power – contrary to Congressional prohibition – to murder or seize people all over the world.

Subsequently, in January 2002, Dick Cheney’s office wrote a memorandum saying that the Geneva Conventions are “quaint” and are inapplicable to the war. This memo implemented views propounded by Douglas Feith, views Feith had been vigorously arguing since the 1980s. The January 2002 memo was signed by Alberto Gonzales, then the White House Counsel, but was actually written by Cheney’s attorney, David Addington. On February 7, 2002 George Bush then stated that the United States was not bound by the Geneva Conventions.

At a point contemporaneous or near in time to these events, a so-called “War Council” of lawyers came into existence. This “War Council” consisted of David Addington, John Yoo, Jim Haynes, Alberto Gonzales, and Tim Flanigan. These five lawyers met in secret, with their views and resulting memos, written by Yoo, being kept from other lawyers and numerous officials in the Executive Branch.

An early problem arose because members of the CIA were very worried about actions they were taking against prisoners. From low levels to high, from on-the ground CIA perpetrators of torture to high CIA officials in Washington, there was knowledge that what the CIA was doing – the torture and abuse of prisoners – constituted war crimes for which CIA personnel could be prosecuted. CIA personnel wanted a “golden shield,” a “get out of jail free card,” that would protect them against prosecutions. It was hoped that an authorizing legal opinion from the Office of Legal Counsel of the Department of Justice would serve this purpose because the OLC opines on legal matters for the Executive Branch. Thus John Yoo of the War Council and the OLC wrote two opinions on August 1, 2002.

One of the opinions became known as “the torture memo.” It was a long document purporting to legally justify torture. The other was a memo listing approved techniques of torture, such as the techniques listed above. The second memo remains classified to this day, but much about what it approved has become publicly known, including that it authorized waterboarding.

Yoo’s work had input from and was signed by the head of OLC, Jay Bybee. For his actions as head of OLC, Bybee was rewarded with a federal appellate judgeship. He was nominated and confirmed before any information relating to torture became public.

The first memo – the “torture memo” – has become infamous, for three reasons in particular. One is its definition of torture as requiring the pain associated with organ failure or death, a definition that was preposterous and one that was taken, remarkably, from the entirely different context of a public health statute defining when a person must be treated.

The second particular reason for the torture memo’s infamy was that Yoo falsely said there was no torture if the torturer’s intent was to obtain information rather than inflict pain. Since torturers who seek to obtain intelligence always want to gather information, and the torture is only a means to that end rather than an end in itself, no torturer could ever be guilty of torture under Yoo’s “principle” because every torturer’s primary goal is to obtain information. Presto: John Yoo, as if by magic, converted the worst tortures, e.g., waterboarding, into nontorture.

The final particular reason, and the one which fully carried out the attempted constitutional putsch, was that Yoo’s torture memo said the President, as Commander-in-Chief, could do anything at all he wants with regard to so-called national security, and Congress can do absolutely nothing to stop him. All power is his (and, one day, hers). No power is Congress’. If the President wants to torture, murder, or start wars, as Commander-in-Chief he can do it, and Congress has no say about anything.

The barbaric view of torture, and the Executive hegemony, implemented in Yoo’s memo were stated dramatically a few years later when Yoo said publicly that if the president wanted to try to force a prisoner to talk by crushing the testicles of the prisoner’s child, no treaty could stop this and, depending on why the president wanted to do it, neither could any congressional law stop the president from crushing the child’s testicles.

Yoo’s memo was secret for years, and the administration, from the president on down to soldiers and CIA officers who tortured people at Guantanamo, Abu Ghraib, Bagram and in CIA “black holes” around the world, acted in accordance with Yoo’s secret revolutionary principles. When the memo became public years after Yoo issued it, it became reviled by some of the nation’s leading lawyers as professionally inept, even as the single most incompetent piece of legal analysis some had ever seen. It had, as a reporter said, the veneer of legal scholarship: long, densely written paragraphs, a plethora of citations. But the veneer was a fraud. It ignored the cases and points contrary to – devastating to – its revolutionary principles, including the leading case in the field, Youngstown Sheet & Tube v. Sawyer (the famous Steel Seizure Case), and could provide no true authority for its secretly adopted positions.

So professionally inept was Yoo’s torture memo that it was later withdrawn by Bybee’s replacement as head of OLC, Jack Goldsmith (even though Goldsmith hated to do this because, among other reasons, he was a good friend of Yoo’s). But the second memo of August 1, 2001, the memo which listed the approved techniques of torture, was never withdrawn. That OLC memo remains on the books, remains operative, remains secret even though much of what it approved (including waterboarding) has nonetheless become known, and continues to unlawfully seek to justify war crimes.

One of the reasons it remains on the books is that Cheney, Addington, Gonzales and CIA officials have been very worried that their exposure to war crime prosecutions would increase if it were withdrawn by OLC, and extensive pressure was exerted to compel it not to be withdrawn. This is the same reason, we note, that Cheney and Addington have conspired with others to exert overwhelming pressure to compel Congressional enactment of laws putatively granting immunity to war criminals in American courts. Such laws are the self-protective product of a conspiracy to manipulate the law so as to try to immunize from federal prosecution those who organized and ran a conspiracy to commit war crimes.

While the civilian torture track was taking place, a parallel torture track likewise was proceeding in the Department of Defense.

In February of 2002, Army Reserve Major General Michael Dunlavey, an intelligence specialist who was a judge in civilian life, was appointed to be the first head of interrogation at Guantanamo, where torture and abuse were in progress. Thereafter Dunlavey flew to Washington every week to brief Rumsfeld personally on intelligence being obtained at Guantanamo, and said in a sworn statement that “I got my marching orders directly from the President of the United States.”

Dunlavey’s comment about where he got his marching orders cannot be considered surprising. Although George Bush deliberately lied to the American people and media by claiming in public that the U.S. does not engage in torture, it has long been plain that he knew what was being done. The torture and abuse were discussed at meetings of the so-called Principals Committee, where George Tenet presented graphic details of interrogations to a Committee which included some of Bush’s highest associates, including Condoleezza Rice, Colin Powell, Don Rumsfeld, John Ashcroft, and Dick Cheney. (At times John Yoo was also at Principals Committee meetings to brief members.) Bush knew of and approved these meetings, at which Tenet would brief the members of the Principals Committee on the specific details of the torture and abuse that were taking place. And in September 2006, after years of (then still continuing) torture, Bush publicly admitted that for years the US had been holding secret (off the books) prisoners at so-called “black sites” (in countries like Poland, Romania and Thailand), and had subjected these secret prisoners to “an alternative set of procedures,” that is, to torture and abuse.

There can thus be no doubt that George Bush knew what was occurring all the while nor can there be surprise that Dunlavey swore his marching orders, at Guantanamo, where torture was regularly practiced, came directly from Bush.

Lieutenant Colonel Diane Beaver, a lawyer, was also at Guantanamo. She was commissioned to write a memorandum justifying the torture techniques being practiced there, she willingly complied, and she later was promoted to the Pentagon’s Office of General Counsel. (The techniques she approved at Guantanamo were part of a list drawn up there by Lt. Col. Jerald Phifer.) Beaver placed no limits on the use of techniques, and did not address the legality of using them in combination and over time, as was the actual practice. Her views were used as a legal basis for torturing and abusing prisoners, specifically including a prisoner who was tortured and abused for 54 straight days.

Beaver also discussed torture with several lawyers/executive officials who visited Guantanamo and personally observed tortured prisoners on September 26, 2002. Those lawyers/executive officials included several of the most culpable of the executive culprits; they included Addington, Haynes, Gonzales, Chertoff, Philbin, Rizzo, and Goldsmith, as well as a Chertoff aide named Alice Fisher. The lawyers knew about the prisoner who was undergoing 54 straight days of torture, and wanted to know what the military was doing with regard to “managing” him.

While Beaver was doing her work at Guantanamo, John Yoo wrote another torture memo, this one for DOD. The final version was dated March 14, 2003, but DOD had a draft at least as early as late January 2003. Yoo’s memo for DOD largely parroted his torture memo of August 1, 2002. It rendered Guantanamo a law-free torture zone for military interrogators, and suggested that even acts such as gouging out a prisoner’s eyes or “dousing him with scalding water [or] corrosive acid” could be lawful. Yoo’s memo served as the template for a memo on permissible torture being drafted by a Pentagon working group chaired by Air Force General Counsel Mary Walker. As noted earlier, the Pentagon kept only one copy of Yoo’s memo seeking to justify horrendous violations of law; the copy was kept locked in Walker’s safe.

Subsequent to Yoo’s memos for the CIA and the DOD, torture and abuse of prisoners continued, with tortures being used in combinations and for extended periods of time on individual prisoners. People in the CIA who were perpetrating or authorizing the tortures remained worried despite the “golden shield,” “get out of jail free cards” that had been issued by Yoo, however. They remained worried particularly because of the effects of the use of tortures in combination, which Yoo had not covered. They demanded new, broader attempted “golden shields,” golden shields that would cover combinations of tortures.

In 2005 Stephen Bradbury was appointed head of OLC on a probationary basis. That is, he was made interim head, with promotion to the prestigious position of permanent head, a position he coveted, being dependent on performance that satisfied his political masters, Gonzales, Cheney and Addington. Bradbury thereupon wrote legal memoranda justifying and seeking to legalize torture, including tortures undertaken in wholesale combinations. His desire for appointment as permanent head of OLC was then realized.

V. WARNINGS GIVEN THE EXECUTIVE ACTORS THAT THEIR ACTIONS WERE ILLEGAL AND MUST STOP – WARNINGS THAT THEY DELIBERATELY ESCHEWED

It is claimed by apologists that war criminal culprits should not be prosecuted because they thought what they were doing was lawful. That claim simply cannot be sustained. No person, at least no person of sufficient intelligence to have risen to a responsible level of American government, can reasonably fail to know that the imposition of torture is unlawful and that the imposition of horrible pain and fear by beatings, waterboarding, stringing people up by the arms for hours and days on end, etc., are torture.

Indeed, it was precisely the culprits’ knowledge that what they were doing was illegal torture which caused CIA officers to demand “golden shields” in order to try to escape future prosecutions by pointing to memos authorizing them to commit crimes and giving the President unfettered power to authorize crimes.

Beyond this, with the existence of unlawful torture being obvious to any sensate person, the false legal memos cannot enable the culprits to escape prosecution. The Nuremberg principles set their face against any argument that one can be excused on the ground that he or she was merely following transparently illegal orders, as here.

There is also the important fact that, when they ultimately found out what was going on, a host of persons in the Executive Branch, including both knowledgeable and experienced lawyers as well as laymen, told the culpable actors that what they were writing or doing was illegal, could lead to prosecutions, and must stop. But wishing to continue the torture and abuse, the culpable Executive actors deliberately ignored these warnings, and even threatened and verbally abused those who issued them, in order to try to prevent the warnings from continuing.

It is often publicly pretended by the Executive culprits and their apologists, that all the advice they received was in favor of torture. To the contrary. We have here a situation in which they received extensive advice – which they deliberately chose to ignore – that what they were doing was illegal and could lead to prosecutions. Such advice came from knowledgeable and experienced persons including FBI agents, agents and officials of other investigative bodies, general counsels of the military services, the Judge Advocates General of the armed services, and State Department officials and lawyers.

The following were among the verbal or written warnings, and facts constituting warnings, given to the Executive culprits: