[Ninong]

"I can't believe I am about to say this, but I am thinking that War Crimes trials may be in order."

That is the proposition raised by another member of the forum who happens to be a registered Republican. Is it true that President Bush and Vice President Cheney and possibly former Secretary of Defense Donald Rumsfeld could be guilty of war crimes?

That will be the topic of this thread.

[Ninong]

Do the harsh interrogation techniques authorized by President Bush amount to "war crimes?" And, if they are war crimes, can the people who are simply "following orders" be prosecuted?

The answer, my friends, is a resounding YES!

The question of whether anyone will ever be prosecuted is an entirely different matter. In any war, the winners are the ones who prosecute the losers. It's never the other way around. Sometimes the winners will prosecute some of their own for offenses that have become a public embarrassment but even in these cases, the justice that is handed down is whatever the winners deem appropriate, which may or may not have any bearing on what is right or wrong.

[Ninong]

Waterboarding

Is waterboarding torture? Or is it simply "frat-house hazing" as claimed by comedian Rush Limbaugh?

Of course it's torture. It has been considered torture for the past nine centuries since it was first employed by the Church as an enhanced interrogation technique during inquisitions.

But what if we don't jump up and down on the victim's stomach to force the water back out of the lungs like the Dominicans did? Doesn't matter, it's still torture.

How can it be torture if it leaves no marks and lasts usually less than 30 seconds? Doesn't matter, it's still torture. Those who argue that it isn't, should allow themselves and their children to be waterboarded every morning before breakfast.

Enhanced Interrogation

Is something torture even if it leaves no marks? The thinking behind the "no marks" or "no blood" requirement has always been to protect the torturer from public embarrassment when the victim showed up later in court to press complaints. "No blood, no foul" was the slogan at one of our interrogation camps in Iraq. Virtually all of the enhanced interrogation techniques that were personally approved by President Bush were used by the Nazis in the 1930's and '40's. Even the phrase "enhanced interrogation" was coined by the Nazis: verschärfte Vernehmung, which translates as "enhanced interrogations" or "sharpened interrogations."

Did the Nazis put out a memo outlining exactly which enhanced interrogation techniques could be employed on which detainees? Yes, they did. Did certain techniques require prior permission from headquarters? Yes. Were the Nazis concerned about their public image? Yes, they certainly were in the late 1930's and early 1940's, which is why they decided to put out a formal list of authorized enhanced interrogation techniques. It was embarrassing for them when the subjects of interrogation showed up in public all beat up and showing obvious signs of torture.

See if you see any similarities here between what President Bush has personally authorized and what the Gestapo authorized in 1942:



Note that Gestapo chief, Heinrich Mueller, in 1942 required that exceptions be cleared with him personally in advance. It has been reported that all waterboarding was cleared in advance on a case-by-case basis with President Bush. It has also been reported that waterboarding was approved for only three high-value detainees.

I would like to direct your attention specifically to #4 in that Gestapo memo: The sharpening (enhanced interrogation) can consist of the following, among other things, according to circumstances:

simplest rations (bread and water) -- We refer to this as "diet manipulation."

hard bed -- We prefer no bed at all, just the concrete floor, often while shackled to said concrete floor.

dark cell -- We refer to this as "sensory deprivation" and it has proved remarkably effective in driving detainees out of their minds. In the extreme, we have also placed ear muffs on their heads to deprive them of both sound and light stimulation.

deprivation of sleep -- We have found this to be extremely effective but our regulations place strict rules on how many hours straight and how many days straight the detainee can be deprived of sleep. IIRC, it's 48 hours straight with no sleep at all or 30 days straight with only 4 hours rest per 24-hr period.

exhaustion exercises, but also the resort to blows with a stick (in case of more than 20 blows, a doctor must be present). -- We have employed this technique but we have found that stress positions are more effective. As far as blows with a stick are concerned, we have found that knee blows to the thigh are just as effective, although several detainees have unfortunately died as a result of receiving more than the recommended number of blows.

among other things -- I guess this would cover induced hypothermia. We like to put naked detainees in a bare concrete cell, lower the room temperature into the 50's (via air conditioning, if necessary) and then throw buckets of cold water on them every 30 minutes around the clock. For their added entertainment, we often include heavy metal music at very high volume... and strobe lighting to give it a disco effect.

Actually waterboarding and hypothermia were both specifically prohibited by the Nazi high command in the early years but hypothermia (or "cold baths" as they called it) began to be used in 1943.

(To be cont'd.)

[Ninong]

Yeah, but what if the detainee was not in unform when he was captured?

Here is the Bush administration's argument: If you're in uniform when captured, you're entitled to the protections of the Geneva Conventions. If you're not in uniform, then you're either a spy or an "enemy combatant" and in either case, you are entitled to whatever mercy the Decider-in-Chief decides to extend, if any.

Obviously none of the detainees taken from Afghanistan were in uniform because the Taliban was never recognized by us as a national entity. As a matter of fact, only about 10% of the detainees held at Guantanamo were captured by us. The other 90% were sold to us by bounty hunters. We offered huge cash rewards for "terrorists" and many, if not most, of the people we are still holding at GITMO are either completely innocent or we have no evidence against them that would hold up in any legitimate legal proceeding.

Bush has argued that he doesn't have to abide by Geneva Conventions' guidelines for the treatment of prisoners of war because the people we are holding at Guantanamo are not prisoners of war, they are "enemy combatants." He can't seem to make up his mind about people we captured in Iraq. He has said publicly that we treat them in accordance with the guidelines established by the Geneva Conventions but we obviously do not and the "enhanced interrogation" methods specifically approved by Bush and written up by Donald Rumsfeld for use on detainees in Iraq violate the Geneva Conventions. Many of the "enhanced interrogation" techniques we employed amount to torture and are a violation of U.S. law and international law.

[Ninong]

Can you really be prosecuted for "enhanced interrogation" techniques, and, if so, what is the penalty?

Yes, you can be prosecuted for enhanced interrogation techniques and the penalty can be death even if none of the victims died during the interrogation. In our case, at least 100 detainees have died during interrogation and we have ruled several of these deaths "homocide."

Source: Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume III, London, HMSO, 1948: here.

In that particular war crimes trial, the defendants used the argument that they were only following orders and that none of their victims died as a result of the enhanced interrogation. They also argued that the victims were insurgents and not wearing the uniform of any nation's armed forces. The victims were Norwegian insurgents and not a part of any regular armed forces and not wearing any nation's military uniform.

The three German defendants were convicted of war crimes for "enhanced interrogation."

Between 1942 and 1945, Bruns used the method of "verschärfte Vernehmung" on 11 Norwegian citizens. This method involved the use of various implements of torture, cold baths and blows and kicks in the face and all over the body. Most of the prisoners suffered for a considerable time from the injuries received during those interrogations.

Between 1942 and 1945, Schubert gave 14 Norwegian prisoners "verschärfte Vernehmung," using various instruments of torture and hitting them in the face and over the body. Many of the prisoners suffered for a considerable time from the effects of injuries they received.

On 1st February, 1945, Clemens shot a second Norwegian prisoner from a distance of 1.5 metres while he was trying to escape. Between 1943 and 1945, Clemens employed the method of " verschäfte Vernehmung " on 23 Norwegian prisoners. He used various instruments of torture and cold baths. Some of the prisoners continued for a considerable time to suffer from injuries received at his hands.

Freezing prisoners to near-death, repeated beatings, long forced-standing, waterboarding, cold showers in air-conditioned rooms, stress positions [Arrest mit Verschaerfung], withholding of medicine and leaving wounded or sick prisoners alone in cells for days on end - all these have occurred at US detention camps under the command of President George W. Bush. Over a hundred documented deaths have occurred in these interrogation sessions. The Pentagon itself has conceded homocide by torture in multiple cases.


Here is the simple criterion used by the court to define torture in 1948:

In deciding the degree of punishment, the Court found it decisive that the defendants had inflicted serious physical and mental suffering on their victims, and did not find sufficient reason for a mitigation of the punishment in accordance with the provisions laid down in Art. 5 of the Provisional Decree of 4th May, 1945. The Court came to the conclusion that such acts, even though they were committed with the connivance of superiors in rank or even on their orders, must be regarded and punished as serious war crimes.

The infliction of "serious physical and mental suffering" amounts to torture and "must be regarded and punished as serious war crimes." Period. End of debate. Bush, Cheney and Rumsfeld lose.

Unfortunately for many, the court also found that "connivance of superiors in rank or even on their orders" was not a defense. Perhaps this is why the Director of the FBI ordered all FBI agents to not only not participate in CIA interrogations but to physically leave the room during any such "enhanced interrogations." The FBI and the CIA disagree on the effectiveness of "enhanced interrogation" techniques. The FBI says they are illegal and counterproductive, the CIA uses them.

Using "enhanced interrogation techniques" against insurgent prisoners out of uniform was punishable by death according to the rules employed by the United Nations War Crimes Commission.



Here's the Nazi defense argument:

(c) That the acts of torture in no case resulted in death. Most of the injuries inflicted were slight and did not result in permanent disablement.

The Nazis tried to use the same argument the Bush administration has used that since the victims were not in uniform, torturing them was legit. The victims were paramilitary Norwegians, operating as an insurgency, against an occupying force. And the torturers had also interrogated some prisoners humanely. But the argument, deployed by George Bush, Dick Cheney, Donald Rumsfeld, and the Nazis before them, didn't wash with the court.

As extenuating circumstances, Bruns had pleaded various incidents in which he had helped Norwegians, Schubert had pleaded difficulties at home, and Clemens had pointed to several hundred interrogations during which he had treated prisoners humanely.

The Court did not regard any of the above-mentioned circumstances as a sufficient reason for mitigating the punishment and found it necessary to act with the utmost severity. Each of the defendants was responsible for a series of incidents of torture, every one of which could, according to Art. 3 (a), (c) and (d) of the Provisional Decree of 4th May, 1945, be punished by the death sentence.

Presumed GOP presidential nominee, John McCain, has now said that he does not think the CIA should be required to abide by the interrogation techniques outlined in the Army Field Manual. He was for it before in November 2007 but he's against it now that he wants to secure the love and affection of the Rush Limbaughs in his party. He was all in favor of requiring all U.S. agencies and all U.S. armed forces to comply with the 19 interrogation techniques approved in the Army Field Manual but now he says that the CIA shouldn't have their hands tied. He can see where it might be better if we allow them some leeway to use whatever techniques they deem appropriate as long as he doesn't have to hear the gory details.

McCain was against torture before but now he's all for it. He's the "Maverick" who pushed through the anti-torture bill (which was overwhelming approved by both the House and Senate) in spite of Bush's public opposition. The bill that Bush signed but with an attached signing statement saying that he would only follow it if he felt like it. He reserved the right to ignore it if he felt it necessary in the performance of his duties as commander in chief. Bush has repeatedly asserted an imaginary right to violate the laws of the United States if he thinks it's in our best interests. And only he gets to decide these things because he's the Decider. The Romans had an official title, Dictator, but even a Dictator didn't have the powers Bush has assumed for himself. The only Roman title that corresponds to the powers Bush believes are his due would be Imperator.

[Ninong]

What did we learn from Nuremberg and subsequent war crimes trials?

We learned that "following orders" was no defense.

We learned that it didn't matter how humanely you treated most of your detainees. Each violation that amounted to torture could be treated individually and each act could be punished by the death sentence. We also learned that you could be found guilty of war crimes for enhanced interrogation of insurgents who were not wearing the uniform of any armed forces.

The severity of the sentences handed down depended to a great extent on the severity of the torture and the number of victims but any single act of torture is considered to be a serious war crime.

Some of the enhanced interrogation techniques that we have employed amount to war crimes. That's very sad but that's just the way it is.

[Ninong]

The question raised in the title of this thread is examined by Prof. Phillippe Sands in an article in Vanity Fair: Green Light.

Sands interviews many of the principals involved, including the Chairman of the Joint Chiefs of Staff and high ranking administration officials with direct knowledge of what went on and who directed it. Doug Feith's comments in particular are interesting. I'm surprised he was so forthcoming. He's obviously proud of his role in this shameful period in our nation's history.

[Ninong]

"Why are we talking about this in the White House? History will not judge this kindly." -- John Ashcroft

Two days ago ABC News published an investigative report detailing how the United State of America got into the torture business. The AP followed with details of their own the following day. Esquire Magazine recently interviewed Prof. John Yoo, the author of the so-called " torture memo." If you take all three of those articles together you will get a very clear picture of what happened.

Here is my personal impression of what happened. Vice President Cheney and his two top staff members had been exerting intense pressure on the CIA to come up with "helpful" intelligence. In fact, they were so frustrated with the CIA's inability to give them what they wanted that they, along with Donald Rumsfeld, created the Office of Special Plans in the Department of Defense, headed by Doug Feith, to provide the Office of the Vice President with the sort of intelligence he was looking for. Enter Ahmad Chalabi and "Curveball."

Cheney and Rumsfeld had long wanted to invade Iraq and they wanted to use 9/11 as the excuse to execute something they had been planning for the past 12 years. They were frustrated that the CIA and our other intelligence agencies were not providing them the sort of links between Saddam Hussein and 9/11 that they wanted.

Abu Zubaydah was captured in March 2002. The OVP was putting intense pressure on the DCIA, George Tenet, to come up with "useful" intelligence. The CIA was hesitant to engage in the sort of enhanced interrogation techniques (including waterboarding) being suggested by the OVP. Enter the National Security Council's Principals Committee, chaired by then-National Security Advisor Condoleezza Rice. Among the members of that committee were Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, Secretary of State Colin Powell, CIA Director George Tenet and Attorney General John Ashcroft.

Tenet, concerned that his CIA agents could be prosecuted for criminal acts if they engaged in the Jack Bauer-inspired techniques suggested by the OVP, wanted White House authorization for methods he considered illegal. And yes, some of the principals in attendance actually suggested certain techniques because it was something they saw on "24."

At that point, March 2002, there was only one high-value detainee (Abu Zubaydah) in custody whose interrogation was the subject of discussion at the highest levels of our government. However, you can assume that the methods approved for his interrogation could be used on future high-value detainees. And they were.

Before we go any further, this might be a good spot to insert what the President said about Abu Zubaydah's interrogation and what the FBI said about it. The President said Zubaydah was a high-ranking al-Qaida operative who provided us with key information that likely preempted future attacks after his enhanced interrogation (including waterboarding). That's also the CIA's version.

The FBI asserts that Zubaydah was a low-ranking and mentally ill al-Qaida operative who provided them with valuable information under gentle questioning, but whose confessions made to the CIA under torture were useless. Much of the threat information he provided was "crap." Remember that the CIA and the FBI have long held opposing views on the value of enhanced interrogation techniques. This is why the FBI Director instructed his agents at Guantanamo to leave the room whenever a detainee was being questioned by the CIA.

Some of the members of the National Security Council's Principals Committee were more gung-ho than others when it came to just how far the CIA should go with their interrogation methods. The ABC report singles out Condi Rice as being particularly enthusiastic and strongly in favor of the CIA doing whatever it takes. Others, especially Colin Powell, John Ashcroft and possibly George Tenet, were more hesitant to approve techniques that clearly amounted to torture and were thus illegal under both international law and U.S. law. That's why the Justice Department was asked to come up with an opinion that could be used as the legal justification for engaging in waterboarding and certain other methods that had always been regarded as torture and illegal in the past.

John Yoo was a deputy in the DOJ's Office of Legal Counsel at the time. He was tasked with the responsibility for coming up with the so-called "torture memo," aka the Bybee memo after the name of the guy who signed it. That memo wasn't finished until August 2002. That means that Abu Zubaydah's "enhanced interrogation" took place before the memo was even finished. This memo, referred to by the CIA as the "Golden Shield," was withdrawn several months later when Bybee was replaced as head of the Office of Legal Counsel by Jack Goldsmith. Goldsmith called the memo "slapdash" and deeply flawed.
However, even after Goldsmith had withdrawn the Bybee memo, Condi Rice was insistent that the CIA continue with the enhanced interrogation techniques. Secretary of State Colin Powell was concerned that the program was harming the image of the United States abroad. He was invited to retire and replaced as Secretary of State by the gungo-ho Condoleezza Rice.

The list of names of Bush administration officials who may have to be careful in their future travel plans abroad may be longer than we thought. We can assume Vice President Cheney's views would carry more weight than those of anyone else in the Principals Meetings and we can assume that everything discussed in those meetings was relayed to the President.

[Ninong]

ABC Interviews Bush in Follow-up to Torture Article and He Admits He Was Fully Informed and Approved

President Bush says he knew his top national security advisers discussed and approved specific details about how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, according to an exclusive interview with ABC News Friday.

"Well, we started to connect the dots in order to protect the American people." Bush told ABC News White House correspondent Martha Raddatz. "And yes, I'm aware our national security team met on this issue. And I approved."

As first reported by ABC News Wednesday, the most senior Bush administration officials repeatedly discussed and approved specific details of exactly how high-value al Qaeda suspects would be interrogated by the CIA.

The high-level discussions about these "enhanced interrogation techniques" were so detailed, these sources said, some of the interrogation sessions were almost choreographed -- down to the number of times CIA agents could use a specific tactic.

These top advisers signed off on how the CIA would interrogate top al Qaeda suspects -- whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding, sources told ABC news.

You can read the rest here.

[Ninong]

Not Exactly a War Crime

It is a crime that someone as stupid as Stephen Hadley is our National Security Advisor. Hadley repeatedly refers to the Dalai Lama as representing Nepal.

[Ninong]

Revealing NY Times Interview With Jack Goldsmith

"I was disgusted with the whole process and fed up and exhausted." -- Jack Goldsmith explaining why he stayed only nine months as head of the Office of Legal Counsel. Goldsmith is the guy who withdrew the "torture memos," which he says were nothing more than contrived excuses to violate the Geneva Conventions and the Federal Torture Statute. He refers to them as get-out-of-jail-free cards. Even so, the Bush administration principals who relied on those memos to engage in criminal conduct would be well advised to carefully consider their future travel abroad because those memos will have no effect whatsoever outside the United States.

It's an interesting legal question. The current attorney general says that he will not investigage anyone for alleged criminal activity if they relied on previous advice from the Department of Justice even if that advice was clearly incorrect. So you install your personal consiglieri as AG and get him to instruct one of his underlings to write a memo authorizing the violation of the Geneva Conventions and U.S. federal statutes in the name of national security and then when the authorizing memo leaks out, you immediately renounce it and withdraw it but you're immune from prosecution because your appointee wrote a memo at your request authorizing you to do what you wanted to do even though it was a crime.

[Ninong]

Legal Experts Weigh In On Bush Torture Meetings

With nine months remaining in President George W. Bush's term, virtually no legal analyst expects that anyone in his administration will face indictment and prosecution in connection with the torture of terrorism detainees. However, a new admission from Bush last week has some legal analysts contending that the case for such prosecution has gotten significantly stronger.

ABC News reported on Apr. 9 that then-National Security Adviser Condoleezza Rice chaired an informal panel of top administration officials that approved specific brutal interrogation tactics for use on three suspected Al Qaeda detainees. The panel consisted of Vice President Dick Cheney, and former administration officials -- Donald H. Rumsfeld, then defense secretary, Colin L. Powell, the former secretary of state, George Tenet, the former director of the Central Intelligence Agency, and John Ashcroft, then attorney general. This group debated for use on detainees -- and eventually approved -- methods of abuse like being "slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding," ABC reported.

On Apr. 11, Bush told ABC that he was personally aware of the panel's discussions. "Well, we started to connect the dots in order to protect the American people." Bush said. "And yes, I'm aware our national security team met on this issue. And I approved."

This disclosure presents a nested series of legal implications. "I predict that there will be calls for top administration officials to be prosecuted in an international court for war crimes," said Erwin Chemerinsky, a civil liberties expert who teaches at Duke University Law School. "This meeting supports the involvement of top officials -- including the president -- in approving torture."

Here.