Those who do battle with monsters must take care that they do not thereby become a monster. Always remember that when you gave into the abyss, the abyss gazes back on you.
Freidrich Nietzsche *
A preliminary draft of a soon-to-be published scholarly legal article written by a former military officer who currently presides in a U.S. federal court concludes that the Abu Ghraib prison abuses were the reasonably foreseeable results of a decision by President Bush to ignore the mandates of the Geneva Conventions relating to prisoners of war.
On January 18, 2002, according to the author, Evan J. Wallach, Judge in the U.S. Court of International Trade, President Bush apparently “made a presidential decision that captured members of Al Qaeda and the Taliban were unprotected by the Geneva POW Convention.” This decision has never been released by the White House but was referenced in a January 25, 2002 memo by Alberto Gonzales which is currently the subject of much controversy. Gonzales, presently White House counsel, was nominated by Bush to the position of Attorney General after John Ashcroft submitted his resignation. The Gonzales Memo called the Geneva Conventions outdated and quaint and suggested the means by which the White House could avoid applying them.
The United States signed and ratified the Geneva Conventions in 1956. In 1996, Congress passed the War Crimes Act, criminalizing breaches of the Conventions. A “grave breach” of Geneva is a federal crime, punishable by imprisonment “for life or any term of years,” and Geneva explicitly states that no nation “bound by the Convention can offer any valid pretext, legal or other, for not respecting the Convention in all its parts.”
Bush apparently based his decision not to apply Geneva on an earlier memo written by Deputy Assistant Attorney General John Yoo and Special Counsel Robert J. Delahunty, which provided the analytical basis for all that followed regarding blanket rejection of the Conventions. The day after Bush’s presidential decision, Secretary of Defense Donald Rumsfeld issued an order stipulating that “Al Quaeda (sic) and Taliban individuals . . . are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949.” The order, according to Judge Wallach, “gives commanders permission to depart, where they deem it appropriate and a military necessity, from the provisions of the Geneva Convention.”
Following the Yoo/Delahunty memo and Rumsfeld order came the Gonzales memo detailing the legal arguments that could be used to support Bush’s decision and Rumsfeld’s order. Subsequently, Attorney General John Ashcroft wrote a letter to Bush that “strongly indicates the administration’s consideration of conduct which might violate” Geneva, according to Wallach.
Additionally, Wallach concludes that the military tribunals, ordered by Bush on November 13, 2001, “were promulgated and retained with the specific intention of admitting evidence obtained through means which would require their exclusion under the Federal Rules of Evidence and applicable constitutional authority which prohibits or limits the use of illegally obtained evidence.”
Charles B. Gittings, founder of the Project to Enforce the Geneva Conventions (PEGC), has repeatedly stated in remarks on PEGC’s website and in his several court filings, as pro se amicus, that the Bush Administration is engaged in a criminal conspiracy to subvert the Geneva Conventions and violate federal criminal laws. While Judge Wallach does not say so, his important and excruciatingly well-researched and detailed draft article although only his preliminary draft — clearly supports Gittings conclusions.
A special prosecutor should be called to investigate this question. If our President has engaged in willful evasion or subversion of the law, impeachment proceedings should be called for.
* Quoted by Judge Wallach at the outset of his draft paper, “The Logical Nexus Between the Decision to Deny Application of the Third Geneva Convention to the Taliban and al Qaeda, and the Mistreatment of Prisoners in Abu Ghraib.” I quote from the draft with permission of both the author and the publisher, Case Western Reserve Journal of International Law. The article will be available at 36 Case W. Res. J. Int’l. L. _____ (April 2005).
JENNIFER VAN BERGEN, J.D., is the author of The Twilight of Democracy: The Bush Plan for America (Common Courage Press, 2004). She has written and spoken extensively on civil liberties, human rights, and international law. She is currently organizing a major Forum on Dissent Since 9/11 in Miami from March 11-13. See www.partnersinprotest.org. She may be contacted at firstname.lastname@example.org.