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Prosecuting War Crimes is Not "Partisan" Politics

A Nation of Laws

by PAUL W. LOVINGER And JEANNETTE HASSBERG

Mindful that the mission of the Department of Justice is largely to “enforce the law” and “seek just punishment for those guilty of unlawful behavior,” we have made this recommendation in a letter to Attorney General Eric H. Holder, Jr.: Appoint a special counsel to investigate and prosecute felonies committed by and under the direction of the previous administration. Among those felonies were homicide, war crimes including torture, and conspiracy against rights (USC Title 18, Sec. 241).

Prisoners who were beaten or tortured to death or simply executed by U.S. agents, servicemen, or contractors numbered conservatively in the hundreds. Estimates soar as high as a million if you count the Iraqis, Afghans, and Pakistanis killed as a result of aggressive wars — undeclared by Congress — that President George W. Bush commenced in what the Nuremberg Tribunal would classify among “crimes against peace.”

In an infamous example of criminal homicide, GIs in Afghanistan chained two young civilian men to a ceiling in 2002 and over several days beat and kicked them to death. One of them was a taxi driver aged 22, arrested merely because he happened to be driving past a base that had been a rocket target. The Army blamed natural causes for the deaths before The New York Times exposed the case in 2005 The top sentences for the killers were a few months’ lockup.

Arguably the higher-ups who set the standards and gave the orders bear the main responsibility for such barbarity. But can anyone honestly claim he didn’t know he did anything wrong when he beat or tortured helpless prisoners — at times to death?

Early in the Iraq war, the Times reported that invaders fired on civilian protesters, killing 15 and wounding about 75. British media reported admissions by GIs in Iraq that they slew Iraqi prisoners, left wounded Iraqi fighters to die, or even shot the wounded. The reports described slayings of men, women, and even children suspected of being anti-invader. U.S. and British press exposed repeated shooting of civilians in cars at roadblocks. The Marine Corps initially blamed its Haditha massacre on insurgents.

Among violated constitutional rights were freedom from unreasonable searches and seizures under the Fourth Amendment, breached by mass spying on communications; the right to due process of law under the Sixth Amendment; and protection against cruel and unusual punishment under the Eighth Amendment. Multiple rights were denied Jose Padilla, an American imprisoned by Bush for 3 1/2 years without charges and now serving a 17-year sentence for conspiring to aid terrorists abroad.

Conspiring to torture

An agreement (i.e. conspiracy) to inflict physical and mental pain on prisoners, as reported by ABC News in April 2008, came out of meetings held some six years ago with George W. Bush’s approval. Various methods of brutality were decided by Condoleezza Rice, national security adviser, who presided, Vice-President Dick Cheney, Secretary of Defense Donald Rumsfeld, Attorney General John Ashcroft, and Secretary of State Colin Powell.

Lawyers had drawn up pseudo-legal principles for circumventing the laws against torture by redefining it. For one thing, it would be called “enhanced interrogation.” An August 2002 memo from the Department of Justice’s Office of Legal Counsel authorized the use of 10 methods against Abu Zubaida, an Al-Qaeda man captured in Pakistan five months earlier. The memo was signed by Jay S. Bybee, then an assistant attorney general, now a judge of the U.S. Court of Appeals for the Ninth Circuit, in San Francisco. Waterboarding, or near drowning, a method from the Spanish inquisition (which Attorney General Holder has called torture), was imposed on Zubaida 83 times that month. Ex-intelligence officers told The Washington Post he provided little useful information.

As members of the executive branch, the cabinet and legal officers knew or should have known that torture or inhumane treatment of prisoners, regardless of its label, was prohibited by three U.S. Code sections (Title 18, Secs. 2340A, 2441, 2441) and three treaties, one of which dated back more than half a century.

The 1949 Geneva Conventions prohibit any inhumane treatment, physical or mental, of military or civilian war detainees. Torture or “cruel, inhuman, or degrading treatment or punishment” is banned also by the International Covenant on Civil and Political Rights, approved by the U.S. in 1992. And the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a U.S. treaty since 1994, requires penalties for violations, forbids sending a person abroad to be tortured, and says: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency may be invoked as a justification for torture.”

Yet Bush, Cheney et al. have invoked the wars that they started as justification for what amounts to torture, claiming that it was the only way to get valuable information in the “war against terrorism.”

Torturing “in good faith”

Now a report of the Senate Armed Services Committee reveals that intelligence and military officials were preparing the torture program — even before Bush’s Department of Justice okayed it — to justify the invasion of Iraq by fabricating a link between Saddam Hussein and the 9/11 attacks. The Bush team pressured interrogators at Guantanamo to produce ties between Iraq and Al-Qaeda.

The methods, including shackling, stressful positions, sleep deprivation, nudity, sexual humiliation, hitting, and throwing against walls, were adapted from the military program SERE (Survival, Evasion, Resistance, Escape) to train servicemen to withstand torturous questioning in case of capture. Soviet and Chinese Communists had used such methods to extract false confessions from prisoners.

The Senate report says the military’s Joint Personnel Recovery Agency, which ran SERE, referred to those methods as “torture” in a document sent to the Pentagon’s chief lawyer in July 2002. The agency warned against their use by the U.S. because it would produce “unreliable information” and “could be used by our adversaries as justification for the torture of U.S. personnel.”

Another agency looking askance at the torture program was the Federal Bureau of Investigation. Knowing that information so elicited would be unreliable and inadmissible as courtroom evidence, the FBI refused to participate in the torture program.

There are critics who call the torture furor just a matter of policy differences, contending that any prosecution of former officials would be partisan politics. The Wall Street Journal editorialized April 22 that talk of Obama’s criminalizing “policy advice” by “patriotic officials who acted in good faith” represented “partisan anger.” Our response:

(1) torture is not a policy but a felony;

(2) U.S. laws require the prosecution of felonies and are silent about the felons’ politics;

(3) under the Constitution, the president must take care that the laws be faithfully executed.

“The United States is a nation of laws,” Obama said on April 16, while letting off the hook those torturers who relied “in good faith” on official legal advice. As to whether higher ups will be prosecuted, conflicting messages have come from the White House. Obama wants to look ahead, not back. But to ignore grave crimes of the past is to encourage their repetition in the future. Anyway, a refusal to punish torturers is itself a violation of the Convention Against Torture. The Convention also bars the excuse of Nazi war criminals at Nuremberg that they were “just following orders” as justification for their crimes.

The administration can put to rest the claim of partisanship while fulfilling the president’s constitutional mandate — and the Justice Department’s mission — to execute the laws: Let the attorney general appoint a qualified, conscientious, independent counsel to follow and act on the evidence wherever it leads.

Mr. Lovinger and Ms. Hassberg, of San Francisco, are officers of the War and Law League, warandlaw.org. The former is also a journalist and author.