Chomsky: Nobody will be allowed into Fallujah until they undergo retinal scans and fingerprinting and they're going to be marked and identified, do everything except put chips in them, maybe they'll get to that next time, organize them into work gangs, in which they'll be compelled under the order to rebuild what the US has destroyed. Try and find a counterpart to that. And that's just one war crime, one part of the general atrocities.

In fact, you could argue that it's insignificant. By the principles of the Nuremberg Tribunal, which the US initiated and carried out, it concluded that the supreme international crime is invasion, aggression, and that supreme crime includes within it all the evil that follows. So therefore the doubling of malnutrition rates, the maybe 100,000 casualties, the grave war crimes in Fallujah, they're all footnotes, they're footnotes to the supreme international crime.

And that crime is taken pretty seriously. In Nuremberg they did not try soldiers, and they didn't try company commanders, they tried the - the people who were on trial and hanged - were the top command. Like the German Foreign Minister was hanged. Because of participation in the supreme international crime which encompasses all the evil that follows. Do we hear anything about that?
http://globalresearch.ca/articles/COH309B.html

Universal Jurisdiction for International Crimes

Under the treaty, the ICC [International Criminal Court] can take jurisdiction over a national of even a non-party state if he or she commits a crime in a state party's territory. The U.S. vehemently objects to this. But it's nothing new. Under well-established principles of international law, the core crimes prosecuted in the ICC ' genocide, war crimes, crimes against humanity, and the crime of aggression ' are crimes of universal jurisdiction.

That means that an alleged perpetrator can ' and always could ' be arrested anywhere. Indeed, the United States itself has asserted jurisdiction over foreign nationals in anti-terrorism, anti-narcotic trafficking, torture and war crimes cases. Even Resolution 1422 notes that states not party to the ICC statute "will continue to fulfill their responsibilities in their national jurisdiction in relation to international crimes."

Our Dirty War
April 20, 2006 by
the New York Times
by Bob Herbert
Common Dreams.org

I said, "Some of these folks have never been heard from again, right?"

"Yup," said Curt Goering. "That's right."

Mr. Goering is the senior deputy executive director for policy and programs at Amnesty International USA. We were discussing a subject — government-sanctioned disappearances — that ordinarily would repel most Americans.

In past years, stories about torture and "the disappeared" have been associated with sinister regimes in South and Central America. The attitude in the United States was that we were above such dirty business, that it was immoral and uncivilized, and we were better than that.

But times change, and we've lowered our moral standards several notches since then. Now people are disappearing at the hands of the U.S. government.

"Below the Radar: Secret Flights to Torture and 'Disappearance' " is the title of a recent Amnesty International report on the reprehensible practice of extraordinary rendition, a highly classified American program in which individuals are seized — abducted — without any semblance of due process and sent off to be interrogated by regimes that are known to engage in torture.

Some of the individuals swept up by rendition simply vanish.

"This is a kind of netherworld that people disappear into and don't frequently emerge from," said Mr. Goering. "It's a world that's outside the reach of law. These individuals might as well be on another planet."

There is no way to know how many people have been seized, tortured or killed. Since there are no official proceedings, there is no way to know whether a particular individual who is taken into custody is a legitimate terror suspect or someone who is innocent of any wrongdoing. But we have learned, after the fact, that mistakes have been made.

You may not be familiar with the name Khaled el-Masri, but the Bush administration sure knows who he is. Mr. Masri, a German citizen of Lebanese descent, was arrested while visiting Macedonia in December 2003. A few weeks later, he was handed over to a group of masked men dressed all in black — in the so-called ninja outfits frequently worn by the rendition cowboys.

Mr. Masri's clothes were cut off and he was drugged, put aboard a plane and flown to Afghanistan, where he was held in a squalid basement cell for five months.

It turned out, as noted by Dana Priest of The Washington Post, who was awarded a Pulitzer Prize this week for her reporting on the government's covert counterterrorism programs, that "the C.I.A. had imprisoned the wrong man."

Ms. Priest wrote:

"Masri was held for five months largely because the head of the C.I.A.'s counterterrorist center's Al Qaeda unit 'believed he was someone else,' one former C.I.A. official said. 'She didn't really know. She just had a hunch.' "

Someone had a hunch that Maher Arar was a terrorist, too. A Canadian citizen who had been born in Syria, he was snatched by American authorities at Kennedy Airport in New York on Sept. 26, 2002, and shipped off to a nightmare in Syria that lasted nearly a year. He was held for most of that time in an underground, rat-infested cell about the size of a grave.

No one, not even among the Syrians who tortured him, was ever able to come up with any evidence linking Mr. Arar to terrorism. He was released and returned to his family in Ottawa. Shunned and emotionally shattered, he seems a ruined man at just 35 years of age.

The cases of Khaled el-Masri and Maher Arar are among the handful that we know about. Most cases remain concealed in the lawless netherworld that Mr. Goering spoke of.

The Amnesty International report describes various acts of torture and other forms of mistreatment that are alleged to have been inflicted on victims of rendition. According to the report, Vincent Cannistraro, a former director of the C.I.A's Counterterrorism Center, said the following about a detainee who had been rendered to Egypt:

"They promptly tore his fingernails out and he started telling things."

The Bush administration will never do the right thing when it comes to rendition. Congress needs to step in and thoroughly investigate this program, which is nothing less than a crime against humanity. Congress needs to investigate it, document it and shut it down.

Bob Herbert joined The New York Times as an Op-Ed columnist in 1993. His twice a week column comments on politics, urban affairs and social trends.

© 2006 the New York Times Company

How to Manufacture a War Criminal
Saddam and Me: a True Story
counterpunch.org
By JEFF KLEIN
April 22 / 23, 2006

The crimes of Saddam Hussein and his henchmen during the 1980's have been in the news lately as their on-again off-again trial has resumed in Baghdad. Even though a court established under US military occupation has questionable legal standing and legitimacy, there isn't much doubt that Saddam and others of the accused are guilty of serious atrocities against their own people as well as international war crimes in the attacks against Iraq's neighbors. The use of chemical weapons against Iraqi Kurds and Iranian soldiers was particularly heinous.

But what none of the stories in the main-stream media seem to mention is that the Iraqi dictator could count on firm US government support when he was committing these crimes. The Reagan Administration went all-out to assist Iraq in its war with Iran after our man, the Shah, was overthrown. US Government and business officials -- many of them recycled in the Bush II administration -- shuttled to Baghdad, offering aid, intelligence support, and trade in "dual-use" civilian-military products, including chemical-biological weapons know-how and pre-cursor ingredients. The US worked tirelessly in the UN to shield Iraq from any condemnation or economic sanctions for its atrocities. Nothing better symbolizes this obscene alliance better than the famous "Handshake" of Donald Rumsfeld with the Iraqi dictator. (The whole sordid history, with key documents, is available in a comprehensive report: SHAKING HANDS WITH SADDAM HUSSEIN: The U.S. Tilts toward Iraq, 1980-1984, National Security Archive, February 25, 2003.)

Of course, US crimes in Iraq are not just old news. By any consistent legal standards ­ including the Nuremburg trials after the Second World War and the UN Charter ­ US officials from Pres. Bush down are guilty of punishable war crimes offenses. Nazis were hanged after 1945 for waging of aggressive war, indiscriminate killing of civilians and authorizing torture and mistreatment of prisoners, but it is unthinkable that any of our perpetrators will ever be brought to justice. See: When War Crimes Are Unspeakable by Norman Solomon, and Returning to the Scene of the Crime: War Crimes in Iraq by Noam Chomsky)


* * *

I don't often write about my personal experience, but a dark secret must be confessed. I was an unwitting dupe of the US effort to prop up Saddam Hussein's dictatorship!

SADDAM and Me ­ a true story. . .

When I was working as a machinist in the Marine and Steam Turbine Division of General Electric in Lynn, one of the last civilian projects we had in the early 1980's was called simply "IRAQ." Our job was to manufacture equipment for an electric power plant to be installed somewhere in Saddam Hussein's Mesopotamia. The deal was financed, I learned later on, by a USAID program. I didn't know much about Iraq in those days and the media wasn't cultivating much hostility toward Iraq in the 1980's. It was those crazy Iranian Ayatollahs we were supposed to worry about ­ along with the Nicaraguan Sandinista Communists pouring over the Rio Grande to invade Texas. Anyway, I was happy to work on a civilian project when most of the plant was rapidly morphing into an exclusive supplier for Reagan's naval warship building program. (When I started at GE in the late 1970's we had a large contract to build high-speed gunboats for Iran ­ but after the overthrow of the Shah the ships were eventually sold to Saudi Arabia. . . but that's another story.)

Periodic lay-offs were a fact of life for workers at GE in Lynn. When the Turbine Division began to decline after 1985 I lost my job along with many other union members. But I was luckier than some. Because I had enough seniority, I was able to get another machinist job in the company's Lynn jet engine department. Most of the work there was military ­ for attack helicopters and assorted fighter planes. One of our mainstays was the production of jet engines for Navy F-18 fighter-bombers. Many of these carrier-based aircraft were very effective in bombing Iraqi industry and infrastructure targets from US aircraft carriers during the First Gulf War. So, a few years later, I gained the patriotic satisfaction of knowing I had done my bit to help destroy the electric plant we had recently built for the evil Saddam Hussein.

Of course, by the time of the Gulf War in 1991 I had been permanently laid off from the shrinking Lynn plant. The IRAQ project was one of our last civilian jobs because shortly afterward GE licensed its turbine designs and manufacturing technology to companies in Korea and Japan. Soon the Lynn Turbine Division was permanently closed. Now Hitachi and Hyundai continue to make GE-designed power plants for the robust Asian market, paying a handsome royalty to the friendly corporation that "Brings Good Things to Life." But the US turbine workers are history. (Light bulbs aren't made here any more either. The company's lighting production has moved to Mexico and plants in the former People's Republic of Hungary, which were purchased at bargain-basement prices.)

Today GE is universally admired as one of the best-managed corporations in the world. Saddam Hussein may be facing war crimes charges in Baghdad, but GE's fabled Chairman, Jack Welch, enjoys a kingly retirement in New York City -- on a $9 million annual pension, with company-provided mansions and limos, plus a lifetime skybox at Yankee stadium. In Iraq, Welch's company made handsome profits on both ends ­ Con-struction and De-struction. GE, and other corporations like Bechtel and Halliburton are once again cashing in on Iraqi cost-plus "Re-Con-struction" projects, including new power plants that never seem to actually deliver electricity to Iraqi homes.

A Triple Play! Don't you just love Free Enterprise?

Now, ON TO IRAN! ...

Jeff Klein can be reached at: jjk123@comcast.net

Could Bush Be Prosecuted for War Crimes?
By Jan Frel
AlterNet
July 10, 2006
A Nuremberg chief prosecutor says there is a case for trying Bush for the 'supreme crime against humanity, an illegal war of aggression against a sovereign nation.'

The extent to which American exceptionalism is embedded in the national psyche is awesome to behold.

While the United States is a country like any other, its citizens no more special than any others on the planet, Americans still react with surprise at the suggestion that their country could be held responsible for something as heinous as a war crime.

From the massacre of more than 100,000 people in the Philippines to the first nuclear attack ever at Hiroshima to the unprovoked invasion of Baghdad, U.S.-sponsored violence doesn't feel as wrong and worthy of prosecution in internationally sanctioned criminal courts as the gory, bload-soaked atrocities of Congo, Darfur, Rwanda, and most certainly not the Nazis -- most certainly not. Howard Zinn recently described this as our "inability to think outside the boundaries of nationalism. We are penned in by the arrogant idea that this country is the center of the universe, exceptionally virtuous, admirable, superior."

Most Americans firmly believe there is nothing the United States or its political leadership could possibly do that could equate to the crimes of Hitler's Third Reich. The Nazis are our "gold standard of evil," as author John Dolan once put it.

But the truth is that we can, and we have -- most recently and significantly in Iraq. Perhaps no person on the planet is better equipped to identify and describe our crimes in Iraq than Benjamin Ferenccz, a former chief prosecutor of the Nuremberg Trials who successfully convicted 22 Nazi officers for their work in orchestrating death squads that killed more than one million people in the famous Einsatzgruppen Case. Ferencz, now 87, has gone on to become a founding father of the basis behind international law regarding war crimes, and his essays and legal work drawing from the Nuremberg trials and later the commission that established the International Criminal Court remain a lasting influence in that realm.

Ferencz's biggest contribution to the war crimes field is his assertion that an unprovoked or "aggressive" war is the highest crime against mankind. It was the decision to invade Iraq in 2003 that made possible the horrors of Abu Ghraib, the destruction of Fallouja and Ramadi, the tens of thousands of Iraqi deaths, civilian massacres like Haditha, and on and on. Ferencz believes that a "prima facie case can be made that the United States is guilty of the supreme crime against humanity, that being an illegal war of aggression against a sovereign nation."

Interviewed from his home in New York, Ferencz laid out a simple summary of the case:

"The United Nations charter has a provision which was agreed to by the United States formulated by the United States in fact, after World War II. Its says that from now on, no nation can use armed force without the permission of the U.N. Security Council. They can use force in connection with self-defense, but a country can't use force in anticipation of self-defense. Regarding Iraq, the last Security Council resolution essentially said, 'Look, send the weapons inspectors out to Iraq, have them come back and tell us what they've found -- then we'll figure out what we're going to do. The U.S. was impatient, and decided to invade Iraq -- which was all pre-arranged of course. So, the United States went to war, in violation of the charter."

It's that simple. Ferencz called the invasion a "clear breach of law," and dismissed the Bush administration's legal defense that previous U.N. Security Council resolutions dating back to the first Gulf War justified an invasion in 2003. Ferencz notes that the first Bush president believed that the United States didn't have a U.N. mandate to go into Iraq and take out Saddam Hussein; that authorization was simply to eject Hussein from Kuwait. Ferencz asked, "So how do we get authorization more than a decade later to finish the job? The arguments made to defend this are not persuasive."

Writing for the United Kingdom's Guardian, shortly before the 2003 invasion, international law expert Mark Littman echoed Ferencz: "The threatened war against Iraq will be a breach of the United Nations Charter and hence of international law unless it is authorized by a new and unambiguous resolution of the Security Council. The Charter is clear. No such war is permitted unless it is in self-defense or authorized by the Security Council."

Challenges to the legality of this war can also be found at the ground level. First Lt. Ehren Watada, the first U.S. commissioned officer to refuse to serve in Iraq, cites the rules of the U.N. Charter as a principle reason for his dissent.

Ferencz isn't using the invasion of Iraq as a convenient prop to exercise his longstanding American hatred: he has a decades-old paper trail of calls for every suspect of war crimes to be brought to international justice. When the United States captured Saddam Hussein in December 2003, Ferencz wrote that Hussein's offenses included "the supreme international crime of aggression, to a wide variety of crimes against humanity, and a long list of atrocities condemned by both international and national laws."

Ferencz isn't the first to make the suggestion that the United States has committed state-sponsored war crimes against another nation -- not only have leading war critics made this argument, but so had legal experts in the British government before the 2003 invasion. In a short essay in 2005, Ferencz lays out the inner deliberations of British and American officials as the preparations for the war were made:

U.K. military leaders had been calling for clear assurances that the war was legal under international law. They were very mindful that the treaty creating a new International Criminal Court (ICC) in The Hague had entered into force on July 1, 2002, with full support of the British government. Gen. Sir Mike Jackson, chief of the defense staff, was quoted as saying "I spent a good deal of time recently in the Balkans making sure Milosevic was put behind bars. I have no intention of ending up in the next cell to him in The Hague."

Ferencz quotes the British deputy legal adviser to the Foreign Ministry who, in the lead-up to the invasion, quit abruptly and wrote in her resignation letter: "I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution … [A]n unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances that are so detrimental to the international order and the rule of law."

While the United Kingdom is a signatory of the ICC, and therefore under jurisdiction of that court, the United States is not, thanks to a Republican majority in Congress that has "attacks on America's sovereignty" and "manipulation by the United Nations" in its pantheon of knee-jerk neuroses. Ferencz concedes that even though Britain and its leadership could be prosecuted, the international legal climate isn't at a place where justice is blind enough to try it -- or as Ferencz put it, humanity isn't yet "civilized enough to prevent this type of illegal behavior." And Ferencz said that while he believes the United States is guilty of war crimes, "the international community is not sufficiently organized to prosecute such a case. … There is no court at the moment that is competent to try that crime."

As Ferencz said, the world is still a long way away from establishing norms that put all nations under the rule of law, but the battle to do so is a worthy one: "There's no such thing as a war without atrocities, but war-making is the biggest atrocity of all."

The suggestion that the Bush administration's conduct in the "war on terror" amounts to a string of war crimes and human rights abuses is gaining credence in even the most ossified establishment circles of Washington. Justice Anthony Kennedy's opinion in the recent Hamdan v. Rumsfeld ruling by the Supreme Court suggests that Bush's attempt to ignore the Geneva Conventions in his approved treatment of terror suspects may leave him open to prosecution for war crimes. As Sidney Blumenthal points out, the court rejected Bush's attempt to ignore Common Article 3, which bans "cruel treatment and torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment."

And since Congress enacted the Geneva Conventions, making them the law of the United States, any violations that Bush or any other American commits "are considered 'war crimes' punishable as federal offenses," as Justice Kennedy wrote.

George W. Bush in the dock facing a charge of war crimes? That's well beyond the scope of possibility … or is it?

Jan Frel is an AlterNet staff writer.

UN Human Rights Commissioner warns of war crimes in Lebanon
By Chris Marsden
22 July 2006
WSWS.ORG

The statement by United Nations High Commissioner for Human Rights Louise Arbour that war crimes may have been committed in the Lebanon conflict was deliberately couched in diplomatic terms.

Arbour took pains to identify both Israel and Hezbollah as potentially guilty parties. Nevertheless, there was little doubt that her target was Tel Aviv, and her warning that liability for war crimes is not restricted to the military, but extends to politicians who approve their operations was also meant to be heard by Israel’s political backers in Washington and London.

Her reference to the “scale of killings in the region,” and “the supreme obligations to protect civilians” under international law could only be directed at Israel, given the massive and disproportionate violence it has meted out.

No one would suggest that the UN has any intention of considering prosecution against any senior or military figure in Israel, let alone from the United States or Britain.

There has been speculation as to whether or not Israel can be brought to trial because it does not recognise bodies such as the International Criminal Court and is not a signatory to Treaty of Rome. It hardly needs adding that Washington demonstrates a similar disdain for such international institutions.

But the fact remains that millions throughout the world believe that Israeli Prime Minister Ehud Olmert, President George W. Bush and British Prime Minister Tony Blair should face war crimes charges. And Arbour is fully aware of the outrage and disgust that has been aroused internationally by the appalling destruction heaped upon the Lebanese people by the Israel Defence Forces (IDF) with the unconditional backing of the US and Britain.

Arbour is in fact acting as friendly counsel, advising the Israeli, US and British governments that they are setting in motion forces that are not under their control.

Without at least making such a warning, the stench of hypocrisy that pervades international politics—when only those who fall foul of Washington such as Slobodan Milosevic and Saddam Hussein face human rights charges—would be overwhelming.

Israel’s actions in the Lebanon are in clear contravention of the 1949 Geneva Convention. Article 51 of the First Protocol states, “The civilian population as such, as well as individual civilians, shall not be the object of attack.” Article 52 states, “Attacks shall be limited strictly to military objectives....”

As Arbour explained, “Indiscriminate shelling of cities constitutes a foreseeable and unacceptable targeting of civilians.

“Similarly, the bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable.”

Israel has no defence against such charges. Its claim to be targeting Hezbollah and a supposed infrastructure of terrorism is obscene, given the scale of its actions against the entire Lebanese people.

Lebanon has been subjected to a total sea and air blockade, leaving its population of 3.5 million unable to seek any refuge from a daily bombardment by aircraft, tanks and gunboats.

Well over 300 people have been killed and thousands injured—many of them children.

Israel’s offensive began with the systematic destruction of Lebanon’s infrastructure, including its only international airport, power plants, water treatment facilities, roads and bridges. But it was not long before it began shelling the predominantly Shia neighbourhoods in Beirut, claiming that every house was potentially sheltering Hezbollah fighters. This is Tel Aviv’s pathetic attempt to justify attacks on civilian targets with claims that they have a “dual use.”

Amidst the occasional strike on actual Hezbollah facilities, thousands of homes have been destroyed in one of the most densely populated areas of Lebanon. Reporters allowed to visit the area speak of it having been “laid waste” and “pummeled.”

One report described how “Eight-or nine-storey buildings had their facades blown out by blasts; others lean forward as if about to fall. Sofas, mattresses, toys, books and every personal possession imaginable litter the streets among chunks of concrete, twisted metal and blown-out window frames. Electrical cables dangle everywhere. Walking through it all is treacherous.”

On Thursday evening, the Israeli Air Force dropped 23 tons of explosives on the Bourj al-Barajneh suburb, with two dozen jets using special burrowing bombs. The explanation offered by Israel was that it was seeking to kill Hezbollah leader Sheikh Hassan Nasrallah. This is merely seeking to justify one war crime with another. Like the US, Israel has an official policy of assassinating its political opponents. But this is illegal under international law.

The claim that Israel is targeting Hezbollah has been used to sanction attacks on civilians throughout southern Lebanon—an offensive that amounts to ethnic cleansing. It is a staggering fact that official estimates are of 500,000 internally displaced people in the country, fully a seventh of the entire population.

Israel has now dropped leaflets throughout the area warning residents to leave their homes as it is going to attack. There are widespread predictions that a ground invasion is imminent. Once again, the leaflets are meant as proof that it is seeking to minimise civilian casualties. In reality, all they achieve is to spread fear and alarm. Just where is anyone supposed to go when all borders have been sealed and many roads have been destroyed? Where is a safe haven when the entire country is under attack?

There are, moreover, numerous reports of deliberate attacks on those fleeing areas targeted by the IDF. On July 15, a convoy of civilians was bombed as it tried to escape the southern Lebanese village of Marwahin, killing some 20 people. The IDF had warned local residents to evacuate and then bombed the only direct route out of the area. Photographs showed bodies incinerated and mutilated by the blasts.

In another incident, when Jamhour electricity station was targeted by Israeli jets, rescue workers rushing to the scene to help the injured were bombed.

Lebanon’s Prime Minister Fouad Siniora said Friday that the IDF were also targeting ambulances and medical convoys. Israel’s onslaught was “no longer against Hezbollah, it is an attack against the Lebanese and Lebanon,” he said. It could not be otherwise. Israeli and US propaganda routinely depicts Hezbollah as a tightly knit terrorist outfit that is nothing more than a front organisation for Syrian and Iranian influence in Lebanon.

Washington in particular makes cynical claim to be concerned with preserving the democratic government of Lebanon against those who seek its destruction. Hezbollah is, in fact, part of that government. It is Lebanon’s largest single political party with mass support amongst the Shia population that predominates in the south. It has two government ministers, and 23 MPs who are part of a 35-strong opposition grouping. As well as its parliamentary presence, Hezbollah runs a range of social services, including hospitals and schools, on which hundreds of thousands rely.

The forces that are actually seeking to topple a democratically elected government are not to be found in Damascus and Tehran, but in Washington, Tel Aviv and London. These are the real architects of an illegal war of aggression to bring about regime change.

The Bush administration has given Israel carte blanche to perpetrate war crimes, even when the lives of its own citizens are threatened. This is the clear implication of the remarks by US Ambassador to the UN, John Bolton, when asked to comment on the deaths of eight Canadian citizens in an Israeli air strike July 16.

Bolton insisted that there was no “moral equivalence” between those killed in Lebanon and in Israel. The deaths of Israelis were the result of “malicious terrorist acts.” The deaths of civilians in Lebanon “were sad and highly unfortunate consequences of [Israeli] self-defence,” he said.

Whistling By the Gallows
The Bush Regime's War Crimes Dodge
By DAVE LINDORFF
counterpunch.org
July 29/30 2006

Could George Bush, Dick Cheney, Donald Rumsfeld, and maybe Alberto Gonzales all end up sucking poison gas?

That, apparently, is a concern now being taken seriously by Attorney General Gonzales, who is quietly working with senior White House officials and friendly members of Congress to do what murderous dictators in Chile, Argentina and other bloodthirsty regimes have done as their future in office began to look uncertain: pass laws exempting them from prosecution for murder.

At issue is a growing legal threat of the president and other top administration officials facing prosecution for violations of the U.S. War Crimes statutes, which since 1996 have made violation of Geneva Conventions adopted by the U.S. violations of American law, too.

Gonzales knows the seriousness of this threat. As he warned the president, in a January, 25, 2002 "Memorandum to the President" (published in full in the appendix of Barbara Olshansky's and my new book, The Case for Impeachment), "It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section [the US War Crimes law]." In another part of that same memo, Gonzales notes that the statute "prohibits the commission of a `war crime'" by any U.S. official, with a war crime being defined as "any grave breach of" the Geneva Convention on the Treatment of Prisoners of War" or of the Geneva Convention's Article 3. That article extends protection to combatants in other than official wars or military roles. Gonzaqles, in that memo, also pointedly notes that the punishments for such violations, under U.S. law, in the event that mistreated captives die in custody, "include the death penalty."

What has the White House and Bush's mob attorney, Gonzales, worried is the decision last month by the U.S. Supreme Court in Hamden v. Rumsfeld, which expressly established that the president had "violated" the Geneva Convention's Article 3 by arbitrarily deciding that captives in the so-called War on Terror and in Afghanistan would not be considered POWs, and would not be accorded protection under the Geneva Convention. This determination by a 5-3 majority of the US Supreme Court could easily be the basis for the prosecution Gonzales warned about.

Of course, the president could not be indicted for this offense while in office. The Constitution provides a protection against that. But he could be indicted once his term ends. Meanwhile, other administration personnel, including the vice president, have no such protection against indictment even while in office.

The very fact that Gonzales, according to a report in today's Washington Post, has been 'quietly approaching" Republican members of Congress about passing legislation exempting Americans involved in the "terrorism fight" from war crimes prosecution suggests how worried Bush and his subordinates really are.

It's interesting how this has become the tactic of choice for the criminals in the White House. When Bush was caught violating the clear provisions of the Foreign Intelligence Surveillance Act by authorizing spying by the National Security Agency on Americans' communications without a warrant, the administration went to Congress to seek legislation retroactively authorizing the crime. Since the president was exposed as having summarily and unconstitutionally invalidated some 800 laws passed by Congress through the use of what he calls "signing statements," an astonishing breach of the separation of powers, the administration has been seeking a new law in Congress that would in effect grant that power to presidents, again retroactively. Now Bush is apparently hoping to get the same compliant Republican-led House and Senate to backdate a law exempting him and his cohorts from punishment under the War Crimes statute-a law, ironically, passed almost without objection by both houses of a Republican-led Congress in 1996.

Of course, this legal dodge might not work. Not only could a future prosecutor seek to have such a law ruled illegal itself (after all, the U.S. is a signatory of the Geneva Conventions, making them legally binding anyhow), but because the U.S. is a signatory of the Geneva Conventions prohibiting torture in any form, the president and his subordinates could also be charged as war criminals by other nations-particularly if it were determined that the U.S. was unwilling or legally unable to prosecute.

That could make things a little claustrophobic for administration personnel once they leave office.

No doubt Bush, Cheney, Rumsfeld et all would like to continue their world travels once they leave government "service." For one thing, there's lots of money to be made on the internation speaking circuit. Lots more can be made by doing international business consulting. But if there is a threat of arrest and prosecution by prosecutors in countries like Spain, Germany or Canada, such travels would pose a huge risk. Similar fears have kept former National Security Director and Secretary of State Henry Kissinger pretty much housebound since a near detention in Paris on war crimes charges a few years back.

Gonzales' anxious behing-the-scenes scuttling about in the halls of Congress in an effort to save his boss's neck also suggests that the White House is getting worried about the November election. After all, if they thought they had a secure grip on Congress through November 2008, why the sudden rush to get a bill through undermining the War Crimes statute now? Maybe Bush is afraid that if he waits until November, he'll be dealing with a Democratic House and/or Senate, which would be unlikely to grant him such legal protection.

There is a delicious irony in watching this law-and-order, let-'em-fry president and his tough-guy VP, attorney general and defense secretary, resorting to the same kind of dodgy legal tactics that they accuse convicted killers (and terrorists) of using in an attempt to avoid the gallows.

Chances are their strategy will work, at least in the U.S. But at least it's entertaining to watch.

Edwin Dimter Bianchi

Who Killed Victor Jara? SOA Graduate Exposed in Chile
by Joao Da Silva
August 8, 2006
CommonDreams.org

Among the thousands of political dissidents detained and executed in Chile during the days following the Military coup of 1973 which overthrew the democratically elected socialist government of Salvador Allende (also known as the Unidad Popular), Victor Jara’s brutal death is probably one of the most emblematic. The story of his detention, torture and assassination at the Estadio Chile (a sports arena which was converted into a detention and torture center to hold thousands of political dissidents) has been told and retold for decades, always with some variation, adding to the myth and further strengthening his mystique as a symbol of struggle against military oppression and injustice across Latin America.

Victor Jara was a popular Chilean folk singer/songwriter, educator, theatre director, poet, and political activist. He was involved in the development of the “Nueva Canción Chilena” (New Chilean Song Movement) which gained considerable popularity during the Unidad Popular government which he actively supported. On the morning of September 12 1973, Jara was detained, along with thousands of Chileans, and then held prisoner at the Estadio Chile (renamed “Estadio Víctor Jara” in September 2003) where he was repeatedly beaten and tortured, resulting in the breaking of bones in his hands and upper torso. Fellow political prisoners have testified that his captors, as he lay on the ground after the beating, mockingly suggested that he play guitar for them. Defiantly, he sang part of a hymn supporting the Unidad Popular.

He was murdered on September 15 after further beatings were followed by being machine-gunned (34 bullet wounds were found on his body) and left dead on a road on the outskirts of Santiago. His body was found the next day and was taken to a city morgue. Before his death, he wrote a poem about the conditions of the prisoners in the stadium, the poem was written on a paper that was hidden inside the shoe of a friend. The poem was never named, but is commonly known as “Estadio Chile”.

Jara's wife (a British citizen), Joan, was allowed to come and retrieve his body from the site (and was able to confirm the physical abuse he had endured). After holding a funeral for her husband, Joan Jara fled the country in secret.

Those responsible for the detention, torture and death of Victor Jara benefited from immunity during the remaining 17 years of dictatorship and from the Amnesty Law decreed by the Military Junta before Chile’s return to Democracy. In December 2004, Chilean judge Juan Carlos Urrutia prosecuted the then retired Lieutenant-Colonel, Mario Manriquez Bravo for the murder of Victor Jara. Lt. Bravo was the highest commanding officer in charge at the National Stadium during 1973, but the identity of the Jara's actual killer remained unknown.

In recent months, and after various testimonies from ex-prisoners, Victor Jara’s alleged killer was identified as Edwin Dimter Bianchi. A Chilean military officer with a bad reputation (he was also known as “El Loco Dimter”) who in 1970 attended the School of the Americas (SOA), then located in Panama, and completed a one month course in “Combat Arms Orientation”. Shortly after his stint at the SOA, Dimter participated in the failed coup attempt against Salvador Allende in June of 1973 known as the “Tanquetazo” led by a rouge military brigade. Dimter and his fellow conspirators were arrested and then set free shortly after the successful coup of September 11, 1973. Upon his release, he was assigned to serve in the Estadio Chile.

Survivors of the detention center have testified that on his arrival at the stadium he was full of spite and vengeful due to his recent imprisonment under the Unidad Popular and quickly gained a reputation as a sadist. Due to his good looks and arrogant swagger he received the nickname “The Prince”. An ex-prisoner, Chilean attorney Boris Navia, described “the Prince’s” modus operandi: “He would make rounds through the different levels of the Stadium screaming insults and intimidating prisoners. He would show up unexpectedly in a section of the Stadium and the prisoners had to remain silent in his presence. He behaved like a frustrated stage actor. He always carried a leather club and when he walked through the rows of prisoners who were waiting to be brought into the stadium and had been on their knees for hours and hours with their hands on their heads he would hit and insult them”. In another episode described by ex prisoners, “The Prince”, ordered another soldier to kill a prisoner by beating him with his rifle after he tripped and stumbled over his legs. According to testimonies such as these, Dimter was directly involved in the beating and death of Victor Jara.

Edwin Dimter Bianchi has not been formally charged by a Chilean court. He was discharged from the military in December 31st 1976 for unknown reasons. After his discharge, Dimter graduated as an Accountant and found his way into anonymity by working for the military government in the pensions and audit department. Surprisingly, in 1999 he applied for government benefits under the “Ley de Exonerados Politicos” which was created to benefit victims of human rights violations under the military dictatorship. The law was introduced as a means of compensating political prisoners under the Pinochet regime who had lost their jobs, could not find employment and had lost all pension entitlement. The law provided a compensation payment and pension rights for the period concerned. Dimter was granted those benefits as of January 20th of 2000. This wasn’t the first time that these benefits were granted to a criminal (probably due to the intervention of a sympathetic senator); a similar situation took place with former Chilean Air Force Intelligence agent Rafael González Verdugo, who was processed for the assassination of U.S. citizen Charles Horman (the film “Missing” is based on his story).

Today, Dimter still works for the government under Michelle Bachelet as a public servant. He, together with thousands of other public servants who served under Pinochet was benefited by Law 18.972 decreed in 1990 which allowed them to remain in their positions once democracy returned to Chile.

On May 25th of 2006 the FUNA Commission in Chile organized a massive demonstration outside the building of the Department of Labor in Santiago to denounce the presence of Edwin Dimter Bianchi. A group of 15 demonstrators, including Victor Jara’s daughter Amanda Jara, went up to the 14th floor where his office is located to confront the ex-military officer and hand out informational flyers to his co-workers. (For photos and notes of this event see: http://trincheradelaimagen.blogspot.com/20...r-bianchi.html)

Victor Jara’s legacy lives on today through his music and the Victor Jara Foundation started by his widow Joan Jara.

In Memoriam:
Víctor Lidio Jara Martínez (September 28, 1932 – September 15, 1973)

Joao Da Silva is the Communications Coordinator at School of the Americas Watch in Washington, D.C.. He is the son of a political exile from Chile and a former political prisoner from Brazil. He has a Bachelors Degree in Sociology from the Universidad de Artes y Ciencias (ARCIS) in Santiago, Chile.

To learn more about Victor Jara and the SOA, please visit the following links:

Victor Jara Foundation:
http://www.fundacionvictorjara.cl/

Information about Victor Jara (in English):
http://www.nuevacancion.net/victor/
http://www.msu.edu/~chapmanb/jara/eindex.html
http://en.wikipedia.org/wiki/V%C3%ADctor_Jara

About the School of the Americas:
http://www.soaw.org

An American Turning Point
By Peter Dyer
http://www.consortiumnews.com/2006/082006a...nsortiunews.com
August 20, 2006

Editor's Note: The new trend among Washington pundits is -- finally -- to admit that the Iraq War has been a disaster. But they are still blaming tactical errors: not enough U.S. troops, not enough realism in the hasty decision to disband the Iraqi army, not enough targeting of Shiite militias, not enough saber-rattling against Iran and Syria.

Under this new "conventional wisdom," the Bush administration's mistakes in Iraq have indeed hurt the "war on terror" by alienating and radicalizing tens of millions of Muslims. But Washington's new "group think" continues to ignore a central reason why the United States is losing the hearts and minds of the Islamic world as well as vast numbers of non-Muslims across the globe: George W. Bush.

The elephant sitting in Official Washington's living room is this intractable reality: President Bush has so thoroughly lost credibility with nearly everyone on the planet and is so widely despised that he himself has become a clear and present danger to U.S. national security. Bush has become Osama bin Laden's perfect foil, yet Bush is incapable of admitting mistakes and changing course.

Thus, no serious discussion can be held about solving Bush's disastrous foreign policy as long as Bush and his team remain in office. In this guest essay, Peter Dyer suggests the first difficult step that the United States must take is to change national leadership and to demonstrate to the world that the American people are determined to reclaim their proud history as the chief defender of international law:

If and when President Bush is impeached and removed from office, the next step should be to arrest him and the other architects of the unprovoked invasion and occupation of Iraq.

If Americans ever find the will to do this, as we once did to German aggressors, history will remember it as a turning point in international relations. It will go down as one of the most spectacular and complete affirmations of the very best of American ideals.

Such a turning point can’t come soon enough. On June 13, the Pew Research Group released a poll based on interviews with 17,500 people in 15 countries including the U.S. The poll showed that people in European and Muslim countries see U.S. policy in Iraq as a bigger threat to world peace than Iran's nuclear program.

Because of the disdain of American leaders for international law, manifested so vividly in U.S. aggression in Iraq, the international moral authority of the United States is at an all-time low. The post-World War II vision of a world without war, embodied in the United Nations Charter, has never seemed more out of reach.

Aggression (initiating an unprovoked war) was formally outlawed in 1945 by the Nuremberg Charter (Article VI(a)), a treaty signed and largely written by the United States. And although the Nuremberg Charter was formed for the specific purpose of trying Nazi war criminals, the words of the judgment make clear the intent of the court that the Nuremberg principles must apply to all nations and for all time.

“To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole. ... Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

In 1945, the U.S. also signed the United Nations Charter, a document which was nothing if not an attempt by the world community, as the first sentence states: “to save succeeding generations from the scourge of war.” To that end the Charter clearly and specifically forbids violations of the sovereignty of any state by any other state, except in immediate self-defense (Article 2, Sec. 4 and Articles 39 and 51).

And in December 1946, the United Nations General Assembly unanimously adopted Resolution 95 (1), affirming “the principles of International law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal.”

Article VI of the U.S. Constitution includes the Supremacy Clause which makes all treaties signed and ratified by the U.S. the “supreme law of the land.” Because the invasion of Iraq violated the Nuremberg Charter and the U.N. Charter it also violated the U.S. Constitution. Sadly, President Bush’s disdain for many international treaties which the U.S. has ratified has made a mockery of his oath of office to “preserve, protect and defend the Constitution.” But Article VI has not been repealed. It’s still the law.

The dedication to the rule of law as well as to government of the people, by the people and for the people are absolutely central to the splendid American experiment. Imagine how far it would go towards redeeming American international moral authority if we arrested and tried our own leaders for egregious violations of international law

Imagine, as well, the chilling effect this would have on any other head of state considering aggression. If the most powerful man in the world can be held personally criminally responsible for starting a war, then clearly anybody can. Such a precedent could move humanity significantly closer to realizing the original vision of the United Nations: a world without war.

Certainly many will scorn this idea today. But 30 years ago the idea that Augusto Pinochet would ever be held responsible for his reign of terror in Chile also seemed outlandish. Since then, the law has evolved and what was once inconceivable is now happening: Pinochet is under house arrest in Chile awaiting trial for human rights violations. There is no statute of limitations for these crimes, just as there is none for aggression.

Given recent developments in international law, the time may very well come when George W. Bush will be unable to leave the U.S. for fear of arrest abroad. For so many reasons, however, it would be better if we Americans faced up to our responsibility and arrested him ourselves. The sooner the better. In the end it’s a matter of simple justice.
--------------------------------------------------------------------------------
Peter Dyer is a machinist who moved with his wife from California to
New Zealand in 2004.

War Criminals, Beware
Jeremy Brecher & Brendan Smith
www.thenation.com

On November 14 a group of lawyers and other experts will come before the German federal prosecutor and ask him to open a criminal investigation targeting Donald Rumsfeld, Alberto Gonzales and other key Bush Administration figures for war crimes. The recent passage of the Military Commissions Act provides a central argument for the legal action, under the doctrine of universal jurisdiction: It demonstrates the intent of the Bush Administration to immunize itself legally from prosecution in the United States, even for the most serious crimes.

The Rumsfeld action was announced at a conference in New York City in late October titled "Is Universal Jurisdiction an Effective Tool?" The doctrine allows domestic courts to prosecute international crimes regardless of where the crime was committed, the nationality of the perpetrator or the nationality of the victim. It is reserved for only the most heinous offenses: genocide, war crimes and crimes against humanity, including torture. A number of countries around the world have enacted universal jurisdiction statutes; even the United States allows it for certain terrorist offenses and torture.

Many of the participants in the New York conference were human rights lawyers who have been expanding the use of universal jurisdiction since it was employed against former Chilean dictator Augusto Pinochet. In a recent case brought in Spain, for example, Argentine Adolfo Scilingo was tried and found guilty of crimes against humanity he committed in Argentina and sentenced to serve a 640-year prison term [see Geoff Pingree and Lisa Abend, "Spanish Justice," October 9]. The decision was made to try to prosecute Rumsfeld in Germany because its laws facilitate the use of universal jurisdiction.

CONTINUED BELOW
The conference was sponsored by the Center for Constitutional Rights (CCR), which is bringing the case against Rumsfeld, and by the International Federation for Human Rights (FIDH), a network of 141 national human rights organizations founded in 1922.

An earlier case against Rumsfeld was brought two years ago in Germany by CCR on behalf of four Iraqi victims of Abu Ghraib, drawing largely on documents and photos that revealed abuse at the prison. As the case was being considered, a security conference loomed in Munich. Rumsfeld, who could have been served papers or even arrested, refused to attend unless the case was dismissed. It was dismissed February 10; Rumsfeld flew to Germany the next day.

The reason the prosecutor gave for the dismissal was that there was "no reason to believe that the accused would not be prosecuted in the United States"--notwithstanding powerful evidence that the officials who controlled prosecution were themselves part of the conspiracy to commit war crimes. The new complaint will be based on the failure of US authorities to investigate and prosecute high-level officials.

The case will draw on a powerful new argument. The Military Commissions Act of 2006, which the President promoted and recently signed into law, provides retroactive immunity for civilians who violated the War Crimes Act, including officials of the Bush Administration. Such an attempt to provide immunity for their crimes, it will be argued, is in itself evidence of an effort to block prosecution of those crimes. Indeed, according to Scott Horton, chair of the International Law Committee of the New York City Bar Association, when Yugoslavia sought to immunize senior government officials, the United States declared the act itself to be evidence of such a conspiracy.

The new case will introduce other important elements as well. Lawyers who served as advocates, architects and enablers of prisoner abuse policies, like Alberto Gonzales and John Yoo, will be added as defendants. Abuse in Guantánamo will be added to that in Abu Ghraib. The complaint will present new evidence showing responsibility for torture and prisoner abuse at the highest levels of the chain of command.

Wolfgang Kaleck, a German human rights lawyer who is bringing the case in cooperation with CCR, FIDH and other groups, told the conference in New York that he is often asked, Do you really expect Rumsfeld to be arrested for war crimes? His answer is that he doesn't expect it immediately. "But we make it possible that someday Rumsfeld will be arrested," he says. According to Kaleck, the German government regularly receives calls from potential high-level visitors asking, "Are there any complaints against me?"

Antoine Bernard, FIDH executive director, says that although there have been few convictions so far based on universal jurisdiction, "now fear is not just on the side of the victims but also of the torturers." And that, supporters argue, will have a deterrent effect on government officials who contemplate using torture.

Peter Weiss, vice president of both CCR and FIDH and an elder statesman of international human rights law, notes that it took fifty years to get the Supreme Court's Brown decision outlawing school segregation, but during all that time people kept bringing cases that eventually changed the legal system's fundamental position. "New norms are being constituted to deal with the reality on the ground," he said. "Later those norms become real, practical, enforceable law."

Don't Leave Town, Don
The War Crimes Case Against Rumsfeld
Counterpunch.org
November 10, 2006
By MARJORIE COHN

As the Democrats took control of the House of Representatives and were on the verge of taking over the Senate, George W. Bush announced that Donald Rumsfeld was out and Robert Gates was in as Secretary of Defense. When Bush is being run out of town, he knows how to get out in the front of the crowd and make it look like he's leading the parade. The Rumsfeld-Gates swap is a classic example.

The election was a referendum on the war. The dramatic results prove that the overwhelming majority of people in this country don't like the disaster Bush has created in Iraq. So rather than let the airwaves fill up with beaming Democrats and talk of the horrors of Iraq, Bush changed the subject and fired Rumsfeld. Now, when the Democrats begin to investigate what went wrong, Rumsfeld will no longer be the controversial public face of the war.

Rumsfeld had come under fire from many quarters, not the least of which was a gaggle of military officers who had been clamoring for his resignation. Bush said he decided to oust Rumsfeld before Tuesday's voting but lied to reporters so it wouldn't affect the election. Putting aside the incredulity of that claim, Bush likely waited to see if there would be a changing of the legislative guard before giving Rumsfeld his walking papers. If the GOP had retained control of Congress, Bush would probably have retained Rumsfeld. But in hindsight, Bush has to wish he had ejected Rumsfeld before the election to demonstrate a new direction in the Iraq war to angry voters.

Rumsfeld's sin was not in failing to develop a winning strategy for Iraq. There is no winning in Iraq, because we never belonged there in the first place. The war in Iraq is a war of aggression. It violates the United Nations Charter which only permits one country to invade another in self-defense or with the blessing of the Security Council.

Donald Rumsfeld was one of the primary architects of the Iraq war. On September 15, 2001, in a meeting at Camp David, Rumsfeld suggested an attack on Iraq because he was deeply worried about the availability of "good targets in Afghanistan." Former Treasury Secretary Paul O'Neill reported that Rumsfeld articulated his hope to "dissuade" other nations from "asymmetrical challenges" to U.S. power. Rumsfeld's support for a preemptive attack on Iraq "matched with plans for how the world's second largest oil reserve might be divided among the world's contractors made for an irresistible combination," Ron Suskind wrote after interviewing O'Neill.

Rumsfeld defensively sought to decouple oil access from regime change in Iraq when he appeared on CBS News on November 15, 2002. In a Macbeth moment, Rumsfeld proclaimed the United States' beef with Iraq has "nothing to do with oil, literally nothing to do with oil." The Secretary doth protest too much.

Prosecuting a war of aggression isn't Rumsfeld's only crime. He also participated in the highest levels of decision-making that allowed the extrajudicial execution of several people. Willful killing is a grave breach of the Geneva Conventions, which constitutes a war crime. In his book, Chain of Command: The Road from 9/11 to Abu Ghraib, Seymour Hersh described the "unacknowledged" special-access program (SAP) established by a top-secret order Bush signed in late 2001 or early 2002. It authorized the Defense Department to set up a clandestine team of Special Forces operatives to defy international law and snatch, or assassinate, anyone considered a "high-value" Al Qaeda operative, anywhere in the world. Rumsfeld expanded SAP into Iraq in August 2003.

But Rumsfeld's crimes don't end there. He sanctioned the use of torture and cruel, inhuman and degrading treatment, which are grave breaches of the Geneva Conventions, and thus constitute war crimes. Rumsfeld approved interrogation techniques that included the use of dogs, removal of clothing, hooding, stress positions, isolation for up to 30 days, 20-hour interrogations, and deprivation of light and auditory stimuli. According to Seymour Hersh, Rumsfeld sanctioned the use of physical coercion and sexual humiliation to extract information from prisoners. Rumsfeld also authorized waterboarding, where the interrogator induces the sensation of imminent death by drowning. Waterboarding is widely considered a form of torture.

Rumsfeld was intimately involved with the interrogation of a Saudi detainee, Mohamed al-Qahtani, at Guantánamo in late 2002. General Geoffrey Miller, who later transferred many of his harsh interrogation techniques to Abu Ghaib, supervised the interrogation and gave Rumsfeld weekly updates on his progress. During a six-week period, al-Qahtani was stripped naked, forced to wear women's underwear on his head, denied bathroom access, threatened with dogs, forced to perform tricks while tethered to a dog leash, and subjected to sleep deprivation. Al-Qahtani was kept in solitary confinement for 160 days. For 48 days out of 54, he was interrogated for 18 to 20 hours a day.

Even though Rumsfeld didn't personally carry out the torture and mistreatment of prisoners, he authorized it. Under the doctrine of command responsibility, a commander can be liable for war crimes committed by his inferiors if he knew or should have known they would be committed and did nothing to stop of prevent them. The U.S. War Crimes Act provides for prosecution of a person who commits war crimes and prescribes life imprisonment, or even the death penalty if the victim dies.

Although intending to signal a new direction in Iraq with his nomination of Gates to replace Rumsfeld, Bush has no intention of leaving Iraq. He is building huge permanent U.S. military bases there. Gates at the helm of the Defense Department, Bush said, "can help make the necessary adjustments in our approach." Bush hopes he can bring congressional Democrats on board by convincing them he will simply fight a smarter war.

But this war can never get smarter. Nearly 3,000 American soldiers and more than 650,000 Iraqi civilians have died and tens of thousands have been wounded. Our national debt has skyrocketed with the billions Bush has pumped into the war. Now that there is a new day in Congress, there must be a new push to end the war. That means a demand that Congress cut off its funds.

And the war criminals must be brought to justice - beginning with Donald Rumsfeld. On November 14, the Center for Constitutional Rights, the National Lawyers Guild, and other organizations will ask the German federal prosecutor to initiate a criminal investigation into the war crimes of Rumsfeld and other Bush administration officials. Although Bush has immunized his team from prosecution in the International Criminal Court, they could be tried in any country under the well-established principle of universal jurisdiction.

Donald Rumsfeld may be out of sight, but he will not be out of mind. The chickens have come home to roost.

Marjorie Cohn, a professor at Thomas Jefferson School of Law, is president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists. Her new book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, will be published this spring by PoliPointPress.

This column originally appeared in the Jurist.

In Search of a Criminal: Donald Rumsfeld's Name Tops the List of Accused of War Crimes
2006 Year in Review
Law.com
By Alexia Garamfalvi
Legal Times
December 25, 2006


No one thinks that Donald Rumsfeld will end his days in a German prison. Or that there is any real chance he will have to face trial in Germany over allegations that he authorized policies leading to the torture of prisoners at U.S. detention facilities in Iraq and Guantanamo Bay, Cuba.

But that doesn’t mean that a complaint filed in Germany last month won’t have some ripple effects. The complaint asks a federal prosecutor there to begin an investigation, and ultimately a criminal prosecution, of the former secretary of defense and other U.S. officials for their roles in the abuses.

“Rumsfeld is no longer untouchable,” says Wolfgang Kaleck, the German lawyer who filed the complaint along with the New York-based Center for Constitutional Rights and the International Federation for Human Rights. “He is now deeply connected with claims of abuses and torture. We have taken the first step to begin the legal discussion on his accountability.”

The complaint against Rumsfeld, Attorney General Alberto Gonzales, former CIA director George Tenet, and other senior civilian and military officials, was filed in mid-November on behalf of 11 Iraqis who had been detained at Abu Ghraib prison and Mohammed al-Qahtani, a Saudi detained at Guantanamo. It alleges that the defendants ordered, aided, and abetted war crimes and failed to prevent the commission of war crimes by their subordinates. In international law, war crimes are defined as grave breaches of the Geneva Conventions, including torture and inhuman treatment.

Rumsfeld has said the abuse that occurred at Abu Ghraib was the work of a few low-level soldiers and the prisoners affected were mostly not the subject of interrogations, but just “common criminals” who were also detained. “It’s pretty clear that on the midnight shift, for a period of some weeks, there were people there who were behaving in a way that was fundamentally inconsistent with the president’s instructions to treat people humanely [and] my instructions that they were to treat people humanely,” Rumsfeld said in a Dec. 15 television interview.

But the plaintiffs claim that the torture that occurred at detention centers in Iraq and Guantanamo were not isolated incidents or the product of a few soldiers gone bad, but rather was widespread and systemic, having been ordered from the top levels of the military and the Defense Department. “The interrogational torture applied by the United States was not an accident, not a mistake, not a secret action,” the complaint states. (Pentagon and Department of Justice spokesmen declined to comment for this article.)

Stymied in their call for high-level accountability in the United States, the groups thought their best shot was to bring a case in a country, like Germany, that has a strong universal-jurisdiction law, says Michael Ratner, the CCR’s president.

The CCR has been involved in much of the litigation challenging the Bush administration’s post-Sept. 11 policies on the treatment of detainees in the context of the war on terror, including the landmark case Rasul v. Bush, which challenged the indefinite detention of foreign nationals at Guantanamo.

German law recognizes the principle of universal jurisdiction, whereby some crimes, such as torture, war crimes, genocide, and crimes against humanity, are considered so heinous they can be prosecuted anywhere, regardless of where they took place or the residence or nationality of the victims or perpetrators.

But legal experts predict that the Bush administration is sure to vigorously oppose the case and that Germany will be reluctant to take it. Under Germany’s universal-jurisdiction statute, the prosecutor has the discretion to decline to take a case.

“It’s quite risky for Germany to do this,” says Eric Posner, an international law professor at the University of Chicago. “The danger of backlash is quite real. Congress, even a Democratic Congress, could very well retaliate if a serious prosecution went forward.”

Moreover, the filing could also strengthen the position of those in the government who oppose the International Criminal Court, says Lee Feinstein, a senior fellow at the Council on Foreign Relations and a former Defense Department and State Department official during the Clinton administration.

But human rights lawyers contend that even if the case doesn’t result in the prosecution of a specific defendant, it could reopen a debate in the United States about Rumsfeld’s responsibility. They also say filing cases abroad under universal-jurisdiction laws may catalyze domestic efforts to open investigations and push for accountability.

RISK AND RETALIATION

The Iraqis filing the complaint in Germany say they were severely beaten, deprived of sleep and food, sexually abused, stripped naked, hooded, and exposed to extreme temperatures.

A team of Philadelphia-based attorneys, led by Susan Burke, collected their stories. Burke’s firm, Burke Pyle, opened a Baghdad office when the Abu Ghraib story surfaced in 2004. Burke and her team periodically travel to Jordan and Turkey to meet former detainees and have collected about 160 testimonies so far, Burke says.

But meeting with her is dangerous for former detainees, she says, because of both the travel involved and possible retaliation. “It’s not a risk-free endeavor, but it’s a real way for them to get their humanity back,” says Burke. “They want to know that the world doesn’t think that it’s OK.”

Burke and CCR lawyers are also co-counsel in civil lawsuits filed against military contractors Titan Corp. and CACI International Inc. Those lawsuits allege that the contractors conspired with military personnel to torture detainees at Abu Ghraib. The plaintiffs say the contractors’ employees beat them; deprived them of food, water and sleep; urinated on them; raped them; attacked them with dogs; gouged out a prisoner’s eye; electrocuted one of them; and tortured them in other ways. The cases, Ibrahim v. Titan and Saleh v. Titan, are currently before D.C.-based U.S. District Judge James Robertson, who dismissed several of the plaintiffs’ claims last year but let others proceed to discovery.

Similar lawsuits seeking to hold Rumsfeld and senior military officials responsible for the torture and widespread abuses of detainees in U.S. military custody are also wending their way through the courts. In 2004, the CCR brought suit on behalf of four British detainees released from Guantanamo Bay.

In the case, Rasul v. Rumsfeld, the plaintiffs charged that the Pentagon chain of command authorized and condoned torture in violation of the Alien Tort Statute, the U.S. Constitution, the Geneva Conventions, and the Religious Freedom Restoration Act. The CCR is currently appealing U.S. District Judge Ricardo Urbina’s dismissal of the majority of the plaintiffs’ claims. Also, the American Civil Liberties Union and Human Rights First filed a lawsuit on similar grounds against Rumsfeld and others on behalf of former detainees in Iraq and Afghanistan. Chief Judge Thomas Hogan of the U.S. District Court for the District of Columbia is currently considering the government’s motion to dismiss in that case.

‘JUDGE US BY OUR ACTIONS’

It’s been more than 2 1/2 years since the photos of U.S. soldiers abusing detainees at Abu Ghraib surfaced in April 2004, including the infamous pictures of a hooded detainee with fake electrical wires hanging from his extended arms and of U.S. Army reservist Lynndie England leading a naked prisoner on a leash.

“The photos give these incidents a vividness — indeed a horror — in the eyes of the world,” Rumsfeld said on May 7, 2004, before the Senate and House Armed Services committees. Rumsfeld recognized the damage done to the nation’s reputation, but said the United States should not be judged for the fact that the abuses took place but, rather, by how it dealt with them. “Judge us by our actions,” he said. “Watch how Americans, watch how a democracy deals with the wrongdoing and scandal and the pain of acknowledging and correcting our own mistakes and weaknesses.”

Since then only a few low-ranking soldiers, including England, have been convicted. Congress hasn’t launched any serious investigations up the chain of command, and numerous reports produced by the Pentagon have stuck with the theory that “a few rotten apples” were responsible, Ratner says.

The CCR filed a case in Germany because its efforts in the United States to demand accountability for torture have been thwarted, he says. The chances of a criminal investigation being launched in the country while the Bush administration is in power are slim, legal experts say, because Gonzales would have to authorize the prosecution himself.

Moreover, the passage of the Military Commissions Act this fall will make prosecution in U.S. courts impossible, Ratner says. A provision of that law narrows the definition of what constitutes torture under the War Crimes Act, the law that implements the Geneva Conventions, and applies that definition retroactively back to 1997, when the War Crimes Act was first enacted. The law also gives military and intelligence officers retroactive immunity for the use of abusive interrogation techniques. The CCR argues that the MCA essentially provides amnesty.

PRESSURE NOT TO PROSECUTE

This is not the first time that CCR has filed a complaint asking a German prosecutor to open an investigation into Rumsfeld’s role in the Abu Ghraib scandal. An initial complaint was filed in November 2004, but the case never went forward. German law gives the prosecutor the right to decline to exercise its jurisdiction if the defendants are not present in Germany and neither the victims nor the defendants are German nationals. One section of the law, in particular, states that the prosecutor can refuse to take the case if the crimes are being prosecuted by an international court or by a country with more of a connection to the crimes, the victims, or the perpetrators.

So when the United States reportedly put political pressure on Germany to drop the 2004 case, a German prosecutor dismissed the complaint on the eve of a visit by Rumsfeld to a conference in Munich in February 2005. The prosecutor stated that there was no indication that U.S. courts were refraining or would refrain from taking action based on the circumstances described in the complaint.

Ratner says the CCR’s case will be more difficult to dismiss this time around. The Military Commissions Act provides clear evidence that the United States has no intention to prosecute these crimes, he contends. In addition, new evidence has come to light since 2004, in particular with respect to Rumsfeld’s personal involvement in al-Qahtani’s interrogation, Ratner adds, and U.S. Brig. Gen. Janis Karpinski, the commanding officer at Abu Ghraib, has agreed to testify on behalf of the plaintiffs.

“I’m willing to testify in a German criminal investigation because of the prisoner abuses in Abu Ghraib,” Karpinski said in her written testimony, “and the release of intentionally misleading information attempting to blame ‘seven bad apples’ when it was clear that the knowledge and responsibility goes all the way to the top of the chain of command to the Secretary of Defense, Donald Rumsfeld and to the Vice President, Dick Cheney.”

But it is hard to understate the weight of the political pressure the Bush administration is sure to bring to bear to urge Germany to drop the case.

For a German prosecutor to take the case would be unprecedented. “It’s never happened that one government has prosecuted the officials of a friendly government without the consent of that government,” the University of Chicago’s Posner says. “It could end up causing a lot of friction between otherwise friendly states.”

The case puts German Chancellor Angela Merkel, who has been trying to repair U.S.-German relations in the wake of a lack of cooperation on the war in Iraq, in an awkward position, he adds.

“There’s a limit to what law can do,” says Naomi Roht-Arriaza, a professor at the University of California, Hastings College of the Law and the author of The Pinochet Effect: Transnational Justice in the Age of Human Rights. “Eventually law runs up against politics, and it will lose.”

For example, Belgium passed an extremely broad universal-jurisdiction statute in 1993. The statute was similar to the German law in scope but didn’t provide any way for prosecutors to decline to take a case. At first, many cases were filed without being considered overly controversial, Roht-Arriaza says, but then cases were filed in 2003 against higher-profile defendants, including former U.S. President George H.W. Bush, Cheney, and retired General Norman Schwarzkopf, for allegedly committing war crimes during the 1991 Gulf War, and against Gen. Tommy Franks and Rumsfeld for alleged crimes arising from the current war in Iraq. U.S. pressure, including threats to compel the removal of NATO headquarters from Brussels, forced Belgium to drastically scale back its universal jurisdiction statute.

But even if Germany declines to take the case, the complaint could spur domestic efforts to investigate the prisoners’ claims. “If you have officials saying it’s ridiculous to have this kind of case abroad,” Roht-Arriaza says, “it can create pressure to develop avenues domestically.”

The fate of Chile’s former dictator, Augusto Pinochet, who died earlier this month at age 91, is perhaps the best example of this effect. At the time of his death, Pinochet, who had ordered the execution and torture of thousands of people during his 1973-1990 regime, was under house arrest and facing prosecutions on a bevy of human rights charges.

Before his arrest in London on a Spanish warrant in 1998, such a scenario would have been unthinkable because the general appeared immune from prosecution due to the amnesty his own government had put into place. Pinochet fought his extradition, saying he was immune from prosecution for the charges brought against him in Spain, but the House of Lords, Britain’s highest court, ruled that there was no immunity for the worst sorts of crimes and that perpetrators could not be shielded by legal amnesties at home.

Pinochet was eventually returned to Chile on the grounds that he was not healthy enough to stand trial, but his arrest in London opened the flood gates in Chile. “His solid wall of immunity began to crumble and previously timid judges found chinks in his legal armor,” says Reed Brody, a lawyer with Human Rights Watch who was involved in the arguments on the Pinochet case before the House of Lords. Hundreds of criminal cases were filed against him, and Pinochet spent his last years fighting off a tightening web of prosecution.

The “Pinochet precedent” energized the use of national courts to end impunity for the worst abusers, and cases against former dictators and generals, mostly from African and Latin American countries, followed.

Germany’s response to the Rumsfeld case will be an important test of whether the Pinochet precedent applies to the leaders of superpowers as well as leaders from weaker countries, Brody says.

U.S. Nuremburg Prosecutor Slams Guantanamo Policy
By Jane Sutton
Reuters
Dylan Martinez / Reuters

U.K. Prime Minister Tony Blair speaks at a press conference in London on Tuesday.

The U.S. war crimes tribunals at Guantanamo have betrayed the principles of fairness that made the Nazi war crimes trials at Nuremberg a judicial landmark, one of the U.S. Nuremberg prosecutors said on Monday.

“I think Robert Jackson, who’s the architect of Nuremberg, would turn over in his grave if he knew what was going on at Guantanamo,” Nuremberg prosecutor Henry King Jr. said in a telephone interview.

“It violates the Nuremberg principles, what they’re doing, as well as the spirit of the Geneva Conventions of 1949.”

King, 88, served under Jackson, the U.S. Supreme Court justice who was the chief prosecutor at the trials created by the Allied powers to try Nazi military and political leaders after World War Two in Nuremberg, Germany.

“The concept of a fair trial is part of our tradition, our heritage,” King said from Ohio, where he lives. “That’s what made Nuremberg so immortal — fairness, a presumption of innocence, adequate defense counsel, opportunities to see the documents that they’re being tried with.”

King, who interrogated Nuremberg defendant Albert Speer, was incredulous that the Guantanamo rules left open the possibility of using evidence obtained through coercion.

“To torture people and then you can bring evidence you obtained into court? Hearsay evidence is allowed? Some evidence is available to the prosecution and not to the defendants? This is a type of ‘justice’ that Jackson didn’t dream of,” King said.

He said the Guantanamo prisoners should be tried in the court-martial system or the U.S. federal courts, under fair rules that leave open the possibility of acquittal. Three Nuremberg defendants were acquitted, King noted.

The Bush administration has said it needs to hold the special tribunals at Guantanamo in order to protect national security. Last year the U.S. Supreme Court struck down the first version of the Guantanamo trials as illegal.

The 2006 Military Commissions Act, which set revised rules for trying suspected terrorists at the U.S. naval base at Guantanamo Bay, Cuba, “sort of turns its back on Nuremberg,” King said. “I don’t think it’s a credit to us to have this thing.”

“The United States has always stood for fairness. That’s the important thing. We were the ones who started war crimes tribunals and we’re the architects. I don’t think we should turn our back on that architecture.”

King, who teaches law at Case Western Reserve University in Ohio, also questioned whether former Guantanamo prisoner David Hicks deserved to be tried as a war criminal. After being held at Guantanamo for more than five years, the Australian pleaded guilty in March to a charge of providing material support for terrorism and was sent home to serve the rest of his nine-month sentence.

“He’s not an arch-criminal type, just a guy who was disaffected from the system,” King said.

Hicks, who admitted training with al Qaeda and briefly fighting on its side in Afghanistan, is the only person convicted in the Guantanamo war crimes tribunals.

27/04/2007
CCR / FIDH Joint Press Release

GERMAN FEDERAL PROSECUTOR’S OFFICE DISMISSES RUMSFELD, GONZALES WAR CRIMES CASE

CRITICS CALL MOVE POLITICAL CAPITULATION TO U.S. PRESSURE


Today, Germany’s Federal Prosecutor announced she would not proceed with an investigation against Donald Rumsfeld, Alberto Gonzales and other high-ranking U.S. officials for torture and other war crimes committed in Iraq, Afghanistan and Guantánamo. The 400-page complaint was filed on November 14, 2006, by Berlin Attorney Wolfgang Kaleck on behalf of the Center for Constitutional Rights (CCR), the International Federation for Human Rights (FIDH), 42 other international and national human rights groups, 12 Iraqi citizens who were held in Abu Ghraib, and one Saudi citizen still held at Guantánamo.

Attorneys said they are contemplating an appeal of the decision as well as filing in other countries.

“At bottom, this is a political and not a legal decision,” said CCR President Michael Ratner. “We will continue to pursue Rumsfeld, Gonzales and the others in the future - they should not feel they can travel outside the U.S. without risk,” continued Ratner. “Our goal is no safe haven for torturers.”

Prominent jurists, scholars and human rights experts from around the world had examined the complaint and found it sound. Many signed on in support.

The complaint states that because of the failure of authorities in the United States and Iraq to launch any independent investigation into the responsibility of high-level U.S. officials for torture despite a documented paper trail and government memos implicating them in direct as well as command responsibility for torture, and because the U.S. has refused to join the International Criminal Court, it is the legal obligation of states such as Germany to take up cases under their universal jurisdiction laws.

In her decision not to go forward with an investigation, Federal Prosecutor Monika Harms argued that the crimes were committed outside of Germany and the defendants neither reside in Germany, nor are currently located in Germany, nor will soon enter Germany’s territory. However, the German law of universal jurisdiction expressly states that it is a universal duty to fight torture and other serious crimes, no matter where they occur or what the nationality of the perpetrators and victims is.

Well Anti, it goes way back to our grab for our continent, our grab for the Phillipines, our grab for Hawaii and our failed grab for Canada. It has become endemic to the American system.

President Taft said this: "the day is not far distant when the whole hemisphere will be ours in fact as, by virtue of our superiority or race, it already is ours morally."

Pres. Wilson added this: "they are naughty children who are exercising all the privileges and rights of grown-ups". Now Hillary wants to spank Hugo Chavez because he's causing our oil interests to lose profits. Naughty, naughty.

Most Americans aren't even aware we are a financial empire backed by missles. We govern by proxy rather than by appointing governors and annexing territories. The "leaders", our appointed dictators and far-right presidencies toe the line, or they are removed. It's getting expensive.

Retired Monk
"Ideology is a disease"

I LOVE this image!

Got that from one of my favorite sites, The Existentialist Cowboy.