Nine Reasons to Investigate War Crimes Now

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Nine Reasons to Investigate War Crimes Now

By Jeremy Brecher & Brendan Smith

July 18, 2008

The Nation http://www.thenation.com/doc/20080804/brecher_smith

Retired General Antonio Taguba, the officer who led the

Army's investigation into Abu Ghraib, recently wrote in

the preface to the new report, Broken laws, Broken Lives:

"There is no longer any doubt as to whether the current

administration has committed war crimes. The only

question that remains to be answered is whether those

who ordered the use of torture will be held to account."

Should those who ordered war crimes be held to account?

With the conclusion of the Bush regime approaching,

many people are dubious, even those horrified by

Administration actions. They fear a long, divisive

ordeal that could tear the country apart. They note

that such division could make it far harder for the

country to address the many other crises it is facing.

They see the upcoming elections as a better way to set the country on a new path.

Many Democrats in particular are proposing to let

bygones be bygones and move on to confront the problems

of the future, rather than dwelling on the past. The

Democratic leadership sees rising gas prices,

foreclosures, and health care costs, as well as

widespread dissatisfaction with the direction of the

country, as playing in their favor. Why risk it all by

playing the war crimes blame game? Perhaps some

Democratic leaders are also concerned that their own

role in enabling or even encouraging war crimes might be exposed.

Meanwhile, the evidence confirming not only a

deliberate policy of torture, but of conspiring in an

illegal war of aggression and conducting a criminal

occupation, continues to pile ever higher. Bush's own

press secretary Scott McClelland has revealed in his

book, What Happened, how deliberately the public was

misled to foment the attack on Iraq . Philippe Sands'

new book, Torture Team, has shown how the top legal and

political leadership fought for a policy of

torture--circumventing and misleading top military

officials to do so. Jane Mayer's The Dark Side, reveals

that a secret report by the Red Cross--given to the CIA

and shared with President Bush and Condoleezza

Rice--found that US interrogation methods are

"categorically" torture and that the "abuse constituted

war crimes, placing the highest officials in the US

government in jeopardy of being prosecuted."

Despite the reluctance to open what many see as a can

of worms, there are fresh moves on many fronts to hold

top US officials accountable for war crimes.

Courts: US courts have issued a barrage of decisions

against the Administration's claim that they can do

anything and still be within the law. The Supreme Court

ruled June 12 that the Administration cannot deny

habeas corpus rights to Guantanamo detainees. The DC

Circuit Court of Appeals on June 30 overturned the

Pentagon's enemy combatant designation of a Chinese

Muslim held in Guantanamo for the last six years. A

Maine jury in April acquitted the Bangor Six of

criminal trespass charges stemming from protesters'

claim that the "Constitution was being violated by the

Bush Administration's involvement in Iraq ."

Congressional investigation: Rep. John Conyers has

recently brought top policy-makers, including former

Deputy Assistant Attorney General John Yoo, Vice

President Cheney's Chief of Staff David Addington, and

this week former Undersecretary of Defense Douglas

Feith and former Attorney General John Ashcroft before

a House Judiciary subcommittee and grilled them on

their role crafting the Administration's torture policy.

Senate hearings in June revealed that treatment of

Guantanamo captives was modeled on techniques allegedly

used by Communist China to force false confessions from US soldiers.

Impeachment: Despite Majority Leader Nancy Pelosi's

instruction to keep impeachment "off the table," Rep.

Dennis Kucinich for the first time brought an

impeachment resolution to the House floor that

incorporated a devastating, thirty-five article

indictment spelling out Bush Administration war crimes

and crimes against the Constitution. Now Rep. Conyers

has announced that the Judiciary Committee will hold

hearings on the charges July 25. Even after the Bush

Administration leaves office, the judges it appointed

who appear complicit in war crimes--notably torture

policy architect Judge Jay S. Bybee--could still be impeached.

Truth commission: In response to General Taguba's

accusations, New York Times Op-Ed columnist Nicholas D.

Kristof has just called for the establishment of a

truth commission--like that of post-Apartheid South

Africa--with subpoena power to investigate the abuses

in the aftermath of 9/11 and "lead a process of soul

searching and national cleansing."

International: In May, Vanity Fair magazine published

an article by British human rights attorney Philippe

Sands, in which he described the reasons Administration

lawyers face a real risk of criminal investigations if

they stray beyond US borders. The British parliament is

about to launch an investigation of Washington 's lying

to the British government about its use of its

facilities for "extraordinary rendition."

Constitutional lawyer Jonathan Turley recently said, "I

think it might in fact be time for the United States to

be held internationally to a tribunal. I never thought

in my lifetime I would say that." Colin Powell's former

chief of staff Lawrence Wilkerson publicly advised

Feith, Addington, And Albert Gonzales "never to travel

outside the U.S. , except perhaps to Saudi Arabia and Israel ."

Prosecution: According to a recent Mellman Group survey

commissioned by the American Civil Liberties Union ,

Americans of all political stripes overwhelmingly

support the appointment of an independent prosecutor to

investigate both the destruction of the CIA's

interrogation tapes and the possible use of torture by

the agency. Every segment of the electorate--including

majorities of Democrats (82 percent), independents (62

percent), and Republicans (51 percent) -- want to hold

this administration accountable for its role in the destruction of the torture tapes.

Vincent Bugliosi, the former Los Angeles County

Prosecutor who has won twenty-one convictions in murder

trials, including Charles Manson's, has just published

The Prosecution of George W. Bush for Murder, which

argues that there is overwhelming evidence President

Bush took the nation to war in Iraq under false

pretenses and must be prosecuted for the consequent deaths of over 4,000 US soldiers.

Dean Lawrence Velvel of the Massachusetts School of Law

at Andover is planning a September conference to map

out war crimes prosecutions against President Bush and

other administration officials. Velvel says that "plans

will be laid and necessary organizational structures

set up, to pursue the guilty as long as necessary and,

if need be, to the ends of the Earth." Reps. John

Conyers, Jerrold Nadler, and Bill Delahunt have called

on Attorney General Michael Mukasey to appoint a

special counsel to investigate the rendition of

Canadian citizen Maher Arar to Syria .

Citizen action: Voters in Brattleboro and Marlboro,

Vermont this spring approved a measure that instructs

police to arrest President George W. Bush and Vice

President Dick Cheney for "crimes against our

Constitution," should they venture into those precincts.

All these developments suggest approaches that might be

used to hold Bush Administration war criminals

accountable. Establishing accountability for US war

crimes in the Iraq war era is the sine qua non for

initiating a new era on different principles. Here are

nine reasons why we must not let bygones be bygones:

1. World peace cannot be achieved without human rights and accountability.

According to Supreme Court Justice Robert Jackson,

chief American prosecutor at the Nuremberg Tribunals,

"The ultimate step in avoiding periodic wars, which are

inevitable in a system of international lawlessness, is

to make statesmen responsible to law." Moving in that

direction will be impossible unless such responsibility

applies to the statesmen of the world's most powerful

countries, and above all the world's sole superpower.

US support for the war crimes charges like those just

brought by the prosecutor of the International Criminal

Court against Sudanese President Omar al-Bashir will

represent little more than hypocrisy if US Presidents

are not held to the same standard.

2. The rule of law is central to our democracy.

Most Americans believe that even the highest officials

are bound by law. If we send mentally-disabled

juveniles to prison as adults, but let government

officials who authorize torture and launch illegal wars

go scot-free, we destroy the very basis of the rule of law.

3. We must not allow precedents to be set that promote war crimes.

Executive action unchallenged by Congress changes the

way our law is interpreted. According to Robert

Borosage, writing for Huffington Post, "If Bush's

extreme assertions of power are not challenged by the

Congress, they end up not simply creating new law, they

could end up rewriting the Constitution itself."

4. We must restore the principles of democracy to our government.

The claim that the President, as commander-in-chief,

can exercise the unlimited powers of a king or dictator

strikes at the very heart of our democracy. As Supreme

Court Justice Robert Jackson put it, we, as citizens,

would "submit ourselves to rules only if under rules."

Countries like Chile can attest that the restoration of

democracy and the rule of law requires more than voting

a new party into office--it requires a rejection of

impunity for the criminal acts of government officials.

5. We must forestall an imperialist resurgence.

When they are out of office, the advocates of imperial

expansion and global domination have proven brilliant

at lying in wait to undermine and destroy their opponents.

They did it to destroy the presidencies of Jimmy Carter

and Bill Clinton. They'll do it again to an Obama

Administration unless their machinations are exposed and discredited first.

6. We must have national consensus on the real reasons for the Bush Administration's failures.

Republicans are preparing to dominate future decades of

American politics by blaming the failure of the Iraq

war on those who "sent a signal" that the US would not

"stay the course" whatever the cost. Establishing the

real reasons for the failure of the US in Iraq --the

criminal and anti-democratic character of the war--is

the necessary condition for defeating that effort.

7. We must restore America 's damaged reputation abroad.

The world has watched as the United States --the

self-proclaimed steward of democracy--has

systematically broken the letter and spirit of its

Constitution, violated international treaties, and

ignored basic moral tenets of humanity. As former Navy

General Counsel Alberto Mora recently pointed out to

the Senate Armed Services Committee, our nation's

"policy of cruelty" has violated our "overarching

foreign policy interests and our national security." To

establish international legitimacy, we must demonstrate

that we are capable of holding our leaders to account.

8. We must lay the basis for major change in US foreign policy.

Real security in the era of global warming and nuclear

proliferation must be based on international

cooperation. But genuine cooperation requires that the

US entirely repudiate the course of the past eight

years. The American people must understand why

international cooperation rather than pursuit of global

domination is necessary to their own security. And

other countries must be convinced that we really mean it.

9. We must deter future US war crimes.

The specter of more war crimes haunts our future.

Rumors continue to circulate about an American or

American-backed Israeli attack on Iran . A recently

introduced House resolution promoted by AIPAC "demands"

that the President initiate what is effectively a

blockade against Iran --an act seen by some as

tantamount to a declaration of war. Nothing could

provide a greater deterrent to such future war crimes

than establishing accountability for those of the past.

Holding war criminals accountable will require placing

the long-term well-being of our country and the world

ahead of short-term political advantage. As Rep. Wexler

put it, "We owe it to the American people and history

to pursue the wrongdoing of this Administration whether

or not it helps us politically or in the next election.

Our actions will properly define the Bush Administration

in the eyes of history and that is the true test."

About Jeremy Brecher Jeremy Brecher is a historian whose books include Strike!, Globalization from Below, and, co-edited with Brendan Smith and Jill Cutler, In the Name of Democracy: American War Crimes in Iraq and Beyond (Metropolitan/Holt). He has received five regional Emmy Awards for his documentary film work. He is a co-founder of WarCrimesWatch.org. more... About Brendan Smith Brendan Smith is a legal analyst whose books include Globalization From Below and, with Brendan Smith and Jill Cutler, of In the Name of Democracy: American War Crimes in Iraq and Beyond (Metropolitan). He is current co-director of Global Labor Strategies and UCLA Law School 's Globalization and Labor Standards Project, and has worked previously for Congressman Bernie Sanders (I-VT) and a broad range of unions and grassroots groups. His commentary has appeared in the Los Angeles Times, The Nation, CBS News.com, YahooNews and the Baltimore Sun. Contact him at smithb28@gmail.com.