Will War Crimes Be Outed? They had damn well better be

As the officials of the Bush administration pack up in Washington and move into their posh suburban homes around the country, will they be able to rest easy, or will they be haunted by the fear that they will be held accountable for war crimes?

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There are many reasons to anticipate that the incoming Obama administration and the new Congress will let sleeping dogs lie. Attention to criminal acts by the former administration would probably anger Republicans, whose support Obama is hoping to win for his first priority, his economic program. Democratic Congressional leaders have known a great deal about Bush administration lawlessness, and in some cases have even given it their approval--making an unfettered review seem unlikely.

Some of Obama's own top appointees would undoubtedly receive scrutiny in an unconstrained investigation--Obama's reappointed defense secretary Robert Gates, for example, has had responsibility not only for Guantánamo but also for the incarceration of tens of thousands of Iraqis in prisons in Iraq like Camp Bucca, which the Washington Post described in a headline as "a Prison Full of Innocent Men," without even a procedure for determining their guilt or innocence--unquestionably a violation of the Geneva Conventions in and of itself.

But the repose of the Cheneys, Bushes, Gonzaleses and Rumsfelds may not turn out to be so undisturbed. In his notorious torture memo, Alberto Gonzales warned about "prosecutors and independent counsels" who may in the future decide to pursue "unwarranted charges" based on the US War Crimes Act's prohibition on violations of the Geneva Conventions. While no such charges are likely to be brought anytime soon, neither are they likely to vanish. In the short run, Obama and his team face inescapable questions about the legal culpability of the Bush administration. And in the long run, such charges are likely to grow only more unavoidable once the former officials of that administration have lost the authority to quash them.

In April Obama said that if elected, he would have his attorney general initiate a prompt review of Bush-era action to distinguish between possible "genuine crimes" and "really bad policies."

"If crimes have been committed, they should be investigated," Obama told the Philadelphia Daily News. He added, however, that "I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we've got too many problems we've got to solve."

Obama's nominee for attorney general, Eric Holder, speaking to the American Constitution Society in June, described Bush administration actions in terms that sound a whole lot more like "genuine crimes" than like "really bad policies":

Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution.... We owe the American people a reckoning."

A Reckoning?

While attention has focused on whether, once president, Obama will move quickly to close Guantánamo, shut down secret prisons, halt rendition and ban torture, there's a less visible struggle over whether and how to provide a reckoning for war crimes past.

A growing body of legal opinion holds that Obama will have a duty to investigate war crimes allegations and, if they are found to have merit, to prosecute the perpetrators.

In a December 3 Chicago Sun-Times op-ed, law professors Anthony D'Amato (the Leighton Professor at Northwestern University School of Law) and Jordan J. Paust (the Mike & Thersa Baker Professor at the Law Center of the University of Houston) ask whether president-elect Barack Obama will have "the duty to prosecute or extradite persons who are reasonably accused of having committed and abetted war crimes or crimes against humanity during the Bush administration's admitted 'program' of 'coercive interrogation' and secret detention that was part of a 'common, unifying' plan to deny protections under the Geneva Conventions."

They answer, "Yes."

"Under the US Constitution, the president is expressly and unavoidably bound to faithfully execute the laws." The 1949 Geneva Conventions "expressly and unavoidably requires that all parties search for perpetrators of grave breaches of the treaty" and bring them before their own courts for "effective penal sanctions" or, if they prefer, "hand such persons over for trial to another High Contracting Party."

The statement is particularly authoritative--and particularly striking--because Paust is also a former captain in the United States Army JAG Corps and member of the faculty at the Judge Advocate General's School.

Michael Ratner of the Center for Constitutional Rights says that one of Barack Obama's first acts as president should be to "instruct his attorney general to appoint an independent prosecutor to initiate a criminal investigation of former Bush Administration officials who gave the green light to torture."

Parallel to the legal community, members of Congress and president-elect Obama are trying to chart a strategy that avoids the appearance of seeking to punish Bush administration officials without appearing blatantly oblivious to their apparent war crimes. According to the AP's Lara Jakes Jordan, "Two Obama advisors say there's little--if any--chance that the incoming president's Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage." Instead, "Obama is expected to create a panel modeled after the 9/11 Commission to study interrogations, including those using waterboarding and other tactics that critics call torture."

Asked if Bush administration officials would face prosecution for war crimes, Senate Judiciary Chairman Patrick Leahy flatly said, "In the United States, no," but he does intend to continue to investigate Bush administration officials and their interrogation policies. "Personally, I would like to know exactly what happened. Torture is going to be a major issue."

Continue the Cover-Up?

President-elect Obama may well seek to delay taking a stand for or against such accountability actions. But he is likely to be confronted early in his administration by choices about whether to continue or terminate legal cover-up operations the Bush administration currently has under way.

For example, the Bush administration has blocked the civil suit against US officials by Canadian Maher Arar for his "rendition" to Syria and his torture there by invoking the "state secrets" privilege. According to Christopher Anders, senior legislative counsel for the ACLU, they have appointed a prosecutor to investigate the destruction of videotapes of CIA interrogations, but the investigation is limited only to whether crimes were committed in relation to the destruction of the tapes--not whether what was being videotaped is a crime. The administration has refused to cooperate with the trial of twenty-six Americans, mostly CIA agents, who kidnapped a terrorism suspect in Milan and flew him to Egypt where, he says, he was tortured. And they have refused to provide secret documents to the British High Court in the case of Guantánamo detainee Binyam Mohamed that may demonstrate that US officials were complicit in his torture in Morocco.

If the Obama administration continues the Bush administration's efforts to prevent investigators from investigating and courts from hearing such cases, it will rapidly become part of the cover-up. If it begins to, at a minimum, stop obstructing such proceedings, the result could be a rapid crumbling of the wall of silence the Bush administration has tried so assiduously to build around its "war on terror."

A bipartisan report issued by the Senate Armed Services Committee on December 11 will make it far more difficult to evade the responsibility of holding Bush administration officials legally accountable for war crimes. Released by Senators Carl Levin and John McCain after two years of investigation, the report concluded:

The abuse of detainees in US custody cannot simply be attributed to the actions of 'a few bad apples' acting on their own.... The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.... Secretary of Defense Donald Rumsfeld's authorization of aggressive interrogation techniques for use at Guantánamo Bay was a direct cause of detainee abuse there.

In an interview published in the Detroit News, Senator Levin said he was not responsible for deciding whether officials should be prosecuted for authorizing torture, but he admitted that there is enough evidence that victims of abuse could file civil lawsuits against their assailants. Levin also suggested that the Obama administration "needs to look for ways in which people can be held accountable for their actions."

An Accountability Movement

Outside the Beltway, a movement to hold Bush administration officials accountable for torture and other war crimes after they leave office is gradually emerging. It received a boost when over a hundred lawyers and activists met in Andover, Massachusetts on September 20 at a conference entitled "Planning for the Prosecution of High Level American War Criminals." The conference created an ongoing committee to coordinate accountability efforts. At the close, conference convener Dean Lawrence Velvel of the Massachusetts School of Law noted more than twenty strategies and specific actions that had been proposed, ranging from the state felony prosecutions proposed by former district attroney Vincent Bugliosi to the international prosecutions pioneered by the Center for Constitutional Rights' Rumsfeld cases; and from impeaching Bush appointees like Federal Judge Jay Bybee to public shaming of torture-tainted former officials like ohn Yew, now a professor at the University of California Law School.

One of proposals discussed at the Andover conference was the creation of a citizens' War Crimes Documentation Center, modeled on the special office set up by the Allied governments before the end of World War II to investigate and document Nazi war crimes. Such a center could be the nexus for research, education and coordination of a wide range of civil society forces in the US and abroad that are demanding accountability. It could bring together the extensive but scattered evidence already available, to compile a narrative of what actually happened in the Bush administration. It could help or pressure Congress to conduct investigations to fill in the blanks. It could pull together high-profile coalitions to campaign around the issue of accountability for specific crimes like torture. If Obama does initiate some kind of investigating commission, such a center could provide it with information and help hold it accountable.

A Moral Education

There are a myriad of reasons for urgently holding the Bush regime to account, ranging from preventing unchallenged executive action from setting new legal precedent to providing a compelling rationale for the immediate cessation of bombing civilians in the escalating Afghan war.

But the issue raised by Bush administration war crimes is even larger than any person's individual crimes. As Thomas Paine wrote in Common Sense, "A long habit of not thinking a thing wrong gives it a superficial appearance of being right." The long history of aggressive war, illegal occupation, and torture, from the Philippines to Iraq, have given the American people a moral education that encourages us to countenance war crimes. If we allow those who initiated and justified the illegal conquest and occupation of Iraq and the use of torture at Abu Ghraib and Guantánamo to go unsanctioned, we teach the world--and ourselves--a lesson about what's OK and legal.

As countries like Chile, Turkey and Argentina can attest, restoration of democracy, civic morality and the rule of law is often a slow but necessary process, requiring far more than simply voting a new party into office. It requires a wholesale rejection of impunity for the criminal acts of government officials. As Rep. Robert Wexler (D-FL) put it, "We owe it to the American people and history to pursue the wrongdoing of this administration whether or not it helps us politically.... Our actions will properly define the Bush Administration in the eyes of history."

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About Jeremy Brecher

Jeremy Brecher is a historian whose books include Strike!, Globalization from Below, and, co-edited with Brendan Smith and Jill Cutler, In the Name of Democracy: American War Crimes in Iraq and Beyond (Metropolitan/Holt). He has received five regional Emmy Awards for his documentary film work. He is a co-founder of WarCrimesWatch.org. more...

About Brendan Smith

Brendan Smith is a legal analyst whose books include Globalization From Below and, with Brendan Smith and Jill Cutler, of In the Name of Democracy: American War Crimes in Iraq and Beyond (Metropolitan). He is current co-director of Global Labor Strategies and UCLA Law School's Globalization and Labor Standards Project, and has worked previously for Congressman Bernie Sanders (I-VT) and a broad range of unions and grassroots groups. His commentary has appeared in the Los Angeles Times, The Nation, CBS News.com, YahooNews and the Baltimore Sun. Contact him at smithb28@gmail.com. more...

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• Copyright © 2008 The Nation

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.

Lobbyist Getting The Boot From Obama?

Published on Thursday, November 13, 2008 by The Independent/UK

Obama Acts To Drive The Lobbyists Out of Washington

by Leonard Doyle

The leader of Barack Obama's transition team has delivered some bad news to the hordes of lobbyists plying their trade in the fancy restaurants and faceless offices along Pennsylvania Avenue: they are not welcome.

A dog passes in front of a mural painting of US President-elect Barack Obama in Venice Beach, California. Mr Podesta, Obama's transition manager, unveiled what he said was "the strictest, the most far-reaching ethics rules of any transition team in history," and declared "that the undue influence of Washington lobbyists and the revolving door of Washington ceases to exist." (AFP/Gabriel Bouys)

John Podesta, the transition chief, has revealed a set of draconian new regulations aimed at curbing the excessive influence of lobbyists, as Mr Obama promised throughout his election campaign. They are to be denied their normal role of greasing the wheels of the new administration's costly transition to power by paying for office space and staff between now and the inauguration on 20 January.

Mr Podesta unveiled what he said was "the strictest, the most far-reaching ethics rules of any transition team in history," and declared "that the undue influence of Washington lobbyists and the revolving door of Washington ceases to exist."

The White House and the Capitol are the two most impressive buildings in Washington but power is really along Pennsylvania Avenue and K Street, where the top-tier lobbyists arrange access to decision-makers and cut backroom deals for special interest groups.

Now, in the dying days of the Bush administration, an unprecedented frenzy is under way as Washington's legal and lobbying establishment tries to get its hands on some of the $700bn (£470bn) financial rescue package for clients before a deadline of tomorrow.

One of the top firms is Alston & Bird, which boasts it has the former Republican presidential contender and senator, Bob Dole, on its books. But Democrats are no slouches at lobbying either. The national co-chair of Mr Obama's election campaign, former Senator Tom Daschle also works for Alston & Bird though not, we are assured, as a registered lobbyist. Instead he provides "high level advisory and strategic advice" to the company.

To cope with the crush of lobbyists at its doors, the Treasury Department hired Jeb Mason, a 32-year old Texan who wears cowboy boots and hat to work. A former White House aide of the political adviser Karl Rove, he is now the point of call for the hired guns of the banking industry, insurance and credit card companies lining up to get some of the taxpayers' billions.

Talking about the dozens of phone calls and emails he gets from lobbyists, he told the New York Times, "this must have been how the Politburo felt".

Mr Obama's transition team is planning to hire about 450 people, who will be divided between Washington and Chicago, at a cost of about $12m. Less than half of that amount will be paid for from the public purse and Mr Obama is planning to fund the rest by asking the more than 3 million people who poured small amounts of money into his campaign to make up the rest. No incoming president before him has had access to such a potential well of money and his team has already sent out emails offering "Victory T-shirts" in return for fresh contributions.

Ever since Ronald Reagan's day, corporations and law firms have picked up the tab for presidential transitions. To avoid even the appearance of abuse, the Obama team is limiting private donations to a maximum of $5,000 and will disclose the names of all donors. "So you'll see our contributions... to the transition prior to the inauguration, yes," Mr Podesta said.

One problem the Obama transition team faces is that some of the brightest Washington brains it might want to hire for the transition and later in government are already registered lobbyists. "I've heard the other complaint, which is we're leaving all these experts on the side... We're leaving all the people who know everything out in the cold," Mr Podesta said. "And so be it."

Mr Podesta, who is himself the head of a think-tank, the Centre for American Progress, says that any lobbyists who are hired will be banned from working in areas for which they have previously lobbied.

And anyone who turns to lobbying after gaining insights and contacts working on the transition for the next 69 days, will be barred for 12 months from lobbying the new administration on a subject area they worked on.

The restrictions are viewed as pious hopes by many in Washington. Former president Bill Clinton tried to restrict lobbyists and failed. President Bush did little to stop their growth and they are now a multibillion-dollar business of influence. Even if Mr Obama succeeds in limiting their access to his administration, Congressmen and women are particularly soft targets. For many politicians, getting elected and serving a term or two is merely a rite of passage on the road to a lucrative Pennsylvania Avenue career.

© 2008 The Independent

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.

Get Out of Jail Free Card for Bush?

Here's hoping it doesn't work

Is Bush's kindness to Obama really a "get out of jail, free" card?

 

One of the many surprising developments over the last week has been both the speed and extent of the graciousness that President Bush and his team have shown to President-elect Obama, especially considering how long and how hard-fought the 2008 campaign turned out to be, and the Democratic standard bearer's frequent and unusually harsh criticism of the GOP president out on the trail.

On the morning after Obama's victory, Bush could have easily phoned it in and offered up a bland, pro forma congratulation, but instead he went before the cameras in the Rose Garden with highly laudatory praise, saying that American voters had "showed a watching world the vitality of America's democracy and the strides we have made toward a more perfect union."

He didn't stop there. Bush invited Barack and Michelle Obama to the White House ASAP -- the visit that in fact took place yesterday -- for both a humble tour of where the 44th president and his family will live and a substantive discussion of the issues that have boiled over during Bush's watch, especially the ravaged world economy. The images that these meetings produced of a peaceful and cooperative transition have been reassuring to Americans, and to the world.

 It's difficult, however, to get any frame of reference for Bush's handling of the transition: The last real time that the White House changed hands from a president of one party to a president of the other party that hadn't defeated him personally, under normal circumstances, was in 1968; it also happened in 2000 but the Florida recount led to a warped and shortened transition.

Sometimes, according to Occam's razor, the simplest explanation is the best one. With his approval rating at or even worse than any president since modern polling began, it's surely possible that Bush is smart enough to see that a gracious transition could be a baby step to restoring his reputation down the road. In that same vein, an early solution to the economic mess under President Obama would mitigate some of the damage to Bush's reputation there.

I believe those factors are present, but we should also not suspend all cynicism in the euphoria of the moment of Obama's election. We should never forget that same president who was so welcoming to Obama is the very same president whose war cabinet authorized torture practices and rendition of terrorism suspects, massively expanded government spying in a web that caught untold American citizens, launched (as just reported this week) secret military strikes around the globe, and through the abuse of signing statements and other unprecedented tactics treated the Constitution, its separation of powers and international law like pieces of crumpled up waste paper. No hailing of Obama's "awesome" victory erases that stain.

And so one of many, many difficult decisions that Obama and his team will faces during his first 100 days in the Oval Office will be this: Should the new president's Justice Department take a more aggressive pose toward investigating this unprecedented White House power grab and some of the toxic symptoms that flowed from that, from waterboarding to the firing of U.S. attorneys for raw political reasons.

I've been following this back-burner issue much more closely than most. That's because his only comments on the subject came back in April, when I had the opportunity to raise the issue with him when he appeared here in Philadelphia before the editorial board of the Daily News. A summary of his answer is that while he seeks to be a forward-looking president, he would likely want his Attorney General to make at least a preliminary inquiry.

Here's a snip of what Obama said then:

So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity.

A follow-up story published in Salon in August took the story a step farther:

Prosecution of any officials, if it were to occur, would probably not occur during Obama's first term. Instead, we may well see a congressionally empowered commission that would seek testimony from witnesses in search of the truth about what occurred. Though some witnesses might be offered immunity in exchange for testimony, the question of whether anybody would be prosecuted would be deferred to a later date -- meaning Obama's second term, if such is forthcoming.

That being the case, do you honestly think the Bush, Dick Cheney, and Co. are not seriously worried about this possibility? If you don't believe that, you haven't been paying close attention to the full-story of the Bush administration and its steady reach for executive power. In fact, many of the administration's most audacious moves have been accompanied with memos that seem to serve one primary purpose: To shield White House officials and those who carried out their orders in the field from future prosecution.

This is the best-known example, from 2002, pertaining to the use of torture in interrogating suspects:

Lawyers in the Justice Department had written a classified memo, which was extensively reviewed, that gave formal legal authority to government interrogators to use the "enhanced" questioning tactics on suspected terrorist prisoners. The August 2002 memo, signed by then head of the Office of Legal Counsel Jay Bybee, was referred to as the so-called "Golden Shield" for CIA agents, who worried they would be held liable if the harsh interrogations became public.

But other controversial and arguably unlawful policies have been justified with official memos or documents. This week, the New York Times reported on a hitherto secret 2004 order by then-Defense Secretary Donald Rumsfeld that okayed attacks on al-Qaeda sites around the globe:

Bush administration officials have shown a determination to operate under an expansive definition of self-defense that provides a legal rationale for strikes on militant targets in sovereign nations without those countries’ consent.

When you combine all these memos, secret orders and signing statements with the Bush administration's long record of seeking to foil investigators from Congress and elsewhere asking for documents, emails and testimony from former White House officials, and it all adds up to one thing: A president and vice president who have long dreaded what a Democratic president might learn, and what he might do with that information, come Jan. 20, 2009.

With this as a backdrop, comes now the sudden Bush charm offensive. Now, there's a debate to be had about whether justice requires that past criminal acts be pursued, even after an administration has yielded its power, or whether the greater good of a forward-looking nation means that violations of the law should be forgiven, as President Gerald Ford decided in 1974 when he pardoned Richard Nixon. Whatever the right solution is, Bush is smart enough to know that he's complicating Obama's decision by seeking to connect with him as an Oval Office teammate so quickly out of the gate. Is the 43rd president's graciousness really his "get-out-of-jail free card," if not for him then for some of his White House underlings?

The more that it looks like Obama and Bush had worked together to solve the economic crisis, the more jarring it might sound to many Americans to learn that a criminal inquiry is underway -- even though the sad facts of the last eight years would seem to justify exactly such a probe, at the minimum. Politics, like war, is ruled by the art of deception. Don't be deceived by everything you heard coming from the Oval Office yesterday, and in the name of justice, let's hope that Obama and whoever he named as attorney general are not fooled, either.

Posted by Will Bunch @ 12:57 PM  Permalink

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.