It is ironic that a president who owed his election to office to a U.S. Supreme Court decision – and a narrow one at that – spent so much of his eight years in office battling that same court, and the institutions which are the arbiters of international humanitarian law as well.
An early sign that George Bush was receiving (and possibly asking for) bad legal advice, particularly from the staffs of Vice President Richard Cheney and Defense Secretary Donald Rumsfeld, occurred in October 2001, when lawyers from these departments informed him that the Constitution (Fourth Amendment) would permit him to use the U.S. military to arrest several suspected terrorists in the suburbs of Buffalo.
In the end, virulent opposition from attorneys in the State and Justice Departments and the National Security Council prevailed, and the FBI was sent to make the arrests.
An even more embarrassing condemnation of the administration’s legal acuity was delivered by the International Committee of the Red Cross in February 2004, with the publication of its “Report of the International Committee of the Red Cross (ICRC) on Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation.”
The United States and its Coalition allies, all of which had, of course, signed the Geneva Conventions in 1949 and the protocols of 1970, were accused in the report of:
• brutality against protected persons upon capture and initial custody, sometimes causing death or serious injury;
• absence of notification to their families of arrest of persons deprived of their liberty;
• physical or psychological coercion during interrogation to secure information;
• prolonged solitary confinement in cells devoid of daylight;
• excessive and disproportionate use of force against persons deprived of their liberty, resulting in death or injury during their period of internment.
The ICRC delegates also noted – in Baghdad, Basrah, Ramadi and Tikrit – a “consistent pattern, with respect to times and places, of brutal behavior during arrest.”
In the case of the “high value detainees” held in Baghdad International Airport, their continued internment – several months after their arrest, in strict solitary confinement in cells devoid of sunlight for nearly 23 hours a day – constituted a serious violation of the Third and Fourth Geneva Conventions.
Notable in the report was the certification that many of the victims of Coalition Forces abuse were deemed not to be “detainees” or “enemy combatants” or “terrorists.” They were, pure and simple, prisoners of war. That is a classification which, as stated in the Conventions, only the ICRC, and not Dick Cheney or Donald Rumsfeld, or their legal advisors, can make. More importantly, Cheney and Rumsfeld almost certainly did not understand just how important to them (and their attorneys) this distinction was in terms of probable subsequent prosecutions for violations of international humanitarian law.
Detainees, the Department of Defense and the Supreme Court
In June of 2004, the administration received the first of several serious blows from the Supreme Court to its “enemy combatant” detention policies. In a decision that year (Rasul v. Bush), the Court held that “United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities, and incarcerated at Guantanamo Bay.”
The administration responded in 2006, when a Republican Congress passed the “Detention Treatment Act” (DTA), which required, according to the Congressional Research Service in a 2006 report to Congress, “… uniform standards for interrogation of persons in the custody of the Department of Defense” and banned “cruel, inhuman or degrading treatment of detainees in the custody of any U.S. agency anywhere overseas.”
But, and this was the point, for the administration and the Republican Congressional majority, the DTA also “divested the courts of jurisdiction to hear some detainees’ challenges by eliminating the federal courts’ statutory jurisdiction over habeas corpus for aliens detained at Guantanamo Bay as well as other causes of action based on their treatment or living conditions.”
In Hamdi v. Rumsfeld (2004), the Supreme Court had already reversed a Defense Department dismissal of a habeas corpus petition by a detainee, and was not pleased with what it considered in the DTA to be an end run by the administration.
The opportunity to resolve conflicting roles in determining detainee status landed in the Court’s lap in the case of Hamdan v. Rumsfeld (2006). The Court, in finding for Hamdan and against Rumsfeld in a 5-3 decision, cited both Article 3 of the Geneva Conventions and Article 21 of the Uniform Code of Military Justice, which incorporates Article 3 of the Conventions in its text. Neither the Uniform Code of Military Justice nor the DTA, the majority ruled in a 5-4 vote, gave the military commissions (i.e., the Defense Department) the legal authority to make definitive decisions on habeas corpus petitions.
Feith, Rumsfeld and “Alternative Intelligence”
On September 9, 2005, the earth shook a bit in Washington’s intelligence community. Republican Senator Pat Roberts, chairman of the Senate Select Committee on Intelligence, requested in writing that the Office of the Inspector General of the Defense Department “review whether the Office of Special Plans at DoD” at any time conducted unauthorized, unlawful or inappropriate intelligence activities.”
What the request was really focused upon, however, was the activities of one individual: the Undersecretary of Defense for Policy Douglas Feith; and specifically whether Feith’s Office of the Under Secretary of Defense for Plans OUSD(P) had, in the words of the inspector general’s final report, dated February 9, 2007, ”expanded its role and mission from that of formulating Defense Policy to one of analyzing and disseminating ‘alternative intelligence.’”
The conclusion in the final report was that it had and that, as a result, Feith’s office “did not provide the most accurate analysis of intelligence to senior decision makers.”
The issue here was an important one, in the run-up to the Iraq war: whether Saddam Hussein and Iraq had a relationship with al-Qaida. The United Nations and the vast majority of the U.S. intelligence community were saying that the evidence was not there, but Deputy Defense Secretary Paul Wolfowitz and Douglas Feith and his ersatz intelligence operation at OUSD(P) were saying that it was.
The DoD inspector general’s report was strong in its conclusion:
“The Office of the Under Secretary of Defense for Policy produced, and then disseminated alternative intelligence assessments on the Iraq and al-Qaida relationship, which included some conclusions that were inconsistent with the consensus of the intelligence community, to senior decision-makers. While such actions were not illegal or unauthorized, the actions were, in our opinion, inappropriate, given that the intelligence assessments were intelligence products and did not clearly show the variance with the intelligence community.”
Douglas Feith, in his response to the DoD inspector general’s conclusions, stated that his actions had been appropriate because they were ”responding to direction from the Deputy Secretary of Defense,” who was at the time Paul Wolfowitz. It was Wolfowitz and his boss, DoD Secretary Donald Rumsfeld, who had proposed an immediate attack on Iraq at an emergency National Security Council meeting on the day after the destruction of the World Trade Center.
OUSD(P) was, in this timeframe, in the news for one other matter: Larry Franklin, the chief Iran analyst in OUSD(P), was convicted in a U.S. court in 2006 and sentenced to 13 years in prison for providing classified documents to the State of Israel, through employees of the American-Israel Public Affairs Committee (AIPAC).
The Principles of Universal Jurisdiction
There is a certain irony in the fact that in exactly the same time frame (2001-2007) that George Bush’s White House (or, at least, Richard Cheney’s portion of it) and the Defense Department were consciously, systematically developing ways to circumvent both national and international law in their pursuit of the “war on terror,” distinguished lawyers and jurists from around the world began to coalesce to create an international legal framework to confront these and other threats to international law.
In January of 2001, a group of scholars and jurists gathered at Princeton University to discuss and draft a set of principles “for the purpose of advancing the continued evolution of international law, and the application of international law in national legal systems.” The rationale for the meeting was further described in the final report: “Universal jurisdiction holds out the promise of greater justice, but the jurisprudence of universal jurisdiction is disparate, disjointed and poorly understood. So long as that is so, this weapon against impunity is potentially beset by incoherence, confusion, and, at times, uneven justice.”
The definition of universal jurisdiction agreed by this group reads as follows: “criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.”
A further explanation of the concept was included in the materials distributed at the conference:
“A nation’s courts exercise jurisdiction over crimes committed in its territory and proceed against those crimes committed abroad by its nationals, or against its nationals, or against its national interests. When these and other connections are absent, national courts may nevertheless exercise jurisdiction under international law over crimes of such exceptional gravity that they affect the fundamental interests of the international community as a whole.”
The participants at Princeton were aware of and discussed the many pre-cedents for their work: the International Military Tribunal at Nuremberg in 1945, the International Military Tribunal for the Far East at Tokyo in 1946, the International Criminal Tribunal for the former Yugoslavia in 1993, and the International Criminal Tribunal for Rwanda in 1994. Beyond these, groups of nations have developed agreements using universal jurisdiction to combat counterfeiting, hijacking, piracy, endangering the safety of aviation, terrorism, the taking of hostages, and to protect diplomatic staff and nuclear material. Universal jurisdiction was not new or novel in 2001.
Universal jurisdiction, the participants decided, could be exercised by “a competent and ordinary judicial body of any state in order to try a person, duly accused of committing serious crimes under certain international instruments of law,” including those mentioned above, without prejudice to other crimes.
The Indictments, Trials, Sentences, and Beyond
In March of this year, the same Spanish court, which had indicted former Chilean head of state General Augusto Pinochet in 1998 for torture and people’s disappearances, announced that it was opening an inquiry into possible violations of the Geneva Conventions of 1949 and the Torture Convention of 1984 by six former officials of the Bush administration.
Named were Alberto Gonzales, former U.S. attorney general; Douglas Feith, former under secretary of defense for policy; David Addington, head legal counsel for Vice President Richard Cheney; William Haynes, general counsel at DoD; John Yoo, deputy chief in the Office of Legal Counsel of the Justice Department; and Jay Bybee, assistant attorney general in Gonzales’ office.
Last April, the Justice Department, in response to a Freedom of Information Act request from the American Civil Liberties Union, declassified and released four Bush administration memos justifying torture. In August, the CIA declassified a comprehensive, voluminous report of the Agency’s inspector general, which had been issued last spring in highly redacted form. Among its conclusions is the following:
“The permissive environment created by implicit and explicit authorizations by senior U.S. officials to ‘take the gloves off’ encouraged forms of torture even beyond the draconian methods approved at various time between 2002 and 2004. … The fact that these unauthorized torture practices happened over extended periods of time at multiple U.S. detention facilities suggests that a permissive command environment existed across theaters and at several levels in the chain of command. This climate allowed both authorized and unauthorized techniques to be practiced, apparently without consequence.”
Finally, on November 4, an Italian judge announced that he had tried, convicted and sentenced in absentia to 5-8 years in prison 23 Americans (all but one are CIA agents) for the 2003 kidnapping from Milan of an Egyptian cleric and his rendition to Egypt, where he was tortured.
The CIA inspector general’s report, even in a redacted form, will, no doubt, offer Judge Garzon in Spain and jurists in many other countries a road map for prosecution of senior Bush administration officials, well beyond those already indicted. The ACLU has already called for the appointment of a U.S. special prosecutor to investigate “torture under the Bush administration.” Whether the Obama administration finds its courage or not, however, those already indicted, and the senior officials under whom Gonzales, Feith, Addington, etc., worked, would be well advised not to leave the United States, for under Universal Jurisdiction the indictments may be sealed.
Messrs. Cheney, Rumsfeld, Feith, Addington and a host of lesser neocons have significant business interests abroad, particularly in Europe, and they will not necessarily know whether they are in criminal jeopardy if and when they travel. Moreover, many of the institutional/academic affiliations and sinecures in Washington and elsewhere, enjoyed by these gentlemen, may be at risk, as their legal battles are fought out in national and international media in the months and years to come.
STEPHEN GREEN is a freelance journalist in Vermont. He can be reached at firstname.lastname@example.org.