Stripping Rumsfeld and Bush of Impunity

http://www.progressive.org/july05/roth0705.php

(Gold9472: Editorial by www.911truth.org)

by Matthew Rothschild
The Progressive
July 2005 issue

Long important piece full of good news and bad news with direct bearing on 9/11 justice. Good news: there is now enough legal evidence readily available to try or impeach Bush, Rumsfeld, Sanchez and others for perjury, torture and war crimes. Bad news: the law be damned, there is not enough political power available in the US today to enforce it. Amnesty International and the ACLU are reduced to begging other governments to capture our leaders and prosecute them under international law for us. Conclusion: Americans are witnessing the demise of the rule of law, and it may take a Philippine/Czech/Ukraine-style peoples street revolution to restore it. - Ed.

When Lieutenant General Ricardo Sanchez testified before the Senate Armed Services Committee last year, he was asked whether he "ordered or approved the use of sleep deprivation, intimidation by guard dogs, excessive noise, and inducing fear as an interrogation method for a prisoner in Abu Ghraib prison." Sanchez, who was head of the Pentagon's Combined Joint Task Force-7 in Iraq, swore the answer was no. Under oath, he told the Senators he "never approved any of those measures to be used."

But a document the American Civil Liberties Union (ACLU) obtained from the Pentagon flat out contradicts Sanchez's testimony. It's a memorandum entitled "CJTF-7 Interrogation and Counter-Resistance Policy," dated September 14, 2003. In it, Sanchez approved several methods designed for "significantly increasing the fear level in a detainee." These included "sleep management"; "yelling, loud music, and light control: used to create fear, disorient detainee, and prolong capture shock"; and "presence of military working dogs: exploits Arab fear of dogs."

On March 30, the ACLU wrote a letter to Attorney General Alberto Gonzales, urging him "to open an investigation into whether General Ricardo A. Sanchez committed perjury in his sworn testimony."

The problem is, Gonzales may himself have committed perjury in his Congressional testimony this January. According to a March 6 article in The New York Times, Gonzales submitted written testimony that said: "The policy of the United States is not to transfer individuals to countries where we believe they likely will be tortured, whether those individuals are being transferred from inside or outside the United States." He added that he was "not aware of anyone in the executive branch authorizing any transfer of a detainee in violation of that policy."

"That's a clear, absolute lie," says Michael Ratner, executive director of the Center for Constitutional Rights, who is suing Administration officials for their involvement in the torture scandal. "The Administration has a policy of sending people to countries where there is a likelihood that they will be tortured."

The New York Times article backs up Ratner's claim. It says "a still-classified directive signed by President Bush within days of the September 11 attacks" gave the CIA broad authority to transfer suspected terrorists to foreign countries for interrogations. Human Rights Watch and Amnesty International estimate that the United States has transferred between 100 and 150 detainees to countries notorious for torture.

So Gonzales may not be the best person to evaluate the allegation of perjury against Sanchez.

But going after Sanchez or Gonzales for perjury is the least of it. Sanchez may be personally culpable for war crimes and torture, according to Human Rights Watch. And Gonzales himself was one of the legal architects of the torture policies. As such, he may have been involved in "a conspiracy to immunize U.S. agents from criminal liability for torture and war crimes under U.S. law," according to Amnesty International's recent report: "Guantánamo and Beyond: The Continuing Pursuit of Unchecked Executive Power."

As White House Counsel, Gonzales advised President Bush to not apply Geneva Convention protections to detainees captured in Afghanistan, in part because this "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act," Gonzales wrote in his January 25, 2002, memo to the President.

Gonzales's press office refused to provide comment after several requests from The Progressive. In his Senate confirmation testimony, Gonzales said, "I want to make very clear that I am deeply committed to the rule of law. I have a deep and abiding commitment to the fundamental American principle that we are a nation of laws, and not of men."

Pentagon spokesperson Lieutenant Colonel John Skinner says the ACLU's suggestion that Sanchez committed perjury is "absolutely ridiculous." In addition, Skinner pointed to a recent Army inspector general report that looked into Sanchez's role. "Every senior-officer allegation was formally investigated," the Army said in a May 5 summary. Sanchez was investigated, it said, for "dereliction in the performance of duties pertaining to detention and interrogation operations" and for "improperly communicating interrogation policies." The inspector general "found each of the allegations unsubstantiated."

The Bush Administration's legal troubles don't end with Sanchez or Gonzales. They go right to the top: to Secretary of Defense Donald Rumsfeld and President Bush himself. Both Human Rights Watch and Amnesty International USA say there is "prima facie" evidence against Rumsfeld for war crimes and torture. And Amnesty International USA says there is also "prima facie" evidence against Bush for war crimes and torture. (According to Random House Webster's Unabridged Dictionary, "prima facie evidence" is "evidence sufficient to establish a fact or to raise a presumption of fact unless rebutted.")

Amnesty International USA has even taken the extraordinary step of calling on officials in other countries to apprehend Bush and Rumsfeld and other high-ranking members of the Administration who have played a part in the torture scandal.

Foreign governments should "uphold their obligations under international law by investigating U.S. officials implicated in the development or implementation of interrogation techniques that constitute torture or cruel, inhuman, or degrading treatment," the group said in a May 25 statement. William Schulz, executive director of Amnesty International USA, added, "If the United States permits the architects of torture policy to get off scot-free, then other nations will be compelled" to take action.

The Geneva Conventions and the torture treaty "place a legally binding obligation on states that have ratified them to exercise universal jurisdiction over persons accused of grave breaches of the Geneva Conventions," Amnesty International USA said. "If anyone suspected of involvement in the U.S. torture scandal visits or transits through foreign territories, governments could take legal steps to ensure that such individuals are investigated and charged with applicable crimes."

When these two leading human rights organizations make such bold claims about the President and the Secretary of Defense, we need to take the question of executive criminality seriously.

And we have to ask ourselves, where is the accountability? Who has the authority to ascertain whether these high officials committed war crimes and torture, and if they did, to bring them to justice?

The independent counsel law is no longer on the books, so that can't be relied on. Attorney General Gonzales is not about to investigate himself, Rumsfeld, or his boss. And Republicans who control Congress have shown no interest in pursuing the torture scandal, much less drawing up bills of impeachment.

Amnesty International USA, Human Rights Watch, the Center for Constitutional Rights, the ACLU, the American Bar Association, and Human Rights First (formerly known as the Lawyers Committee for Human Rights) have joined in a call for a special prosecutor. But that decision is up to Gonzales and ultimately Bush.

"It's a complete joke" to expect Gonzales to appoint a special prosecutor, concedes Ratner of the Center for Constitutional Rights.

John Sifton, Afghanistan specialist and military affairs researcher for Human Rights Watch, is not so sure. "Do I think this would happen right now? No," he says. "But in the middle of the Watergate scandal, very few people thought the President would resign." If more information comes out, and if the American public demands an investigation, and if there is a change in the control of the Senate, Sifton believes Gonzales may end up with little choice.

Human Rights Watch and other groups are also calling for Congress to appoint an independent commission, similar to the 9/11 one, to investigate the torture scandal.

"Unless a special counsel or an independent commission are named, and those who designed or authorized the illegal policies are held to account, all the protestations of 'disgust' at the Abu Ghraib photos by President George W. Bush and others will be meaningless," concludes Human Rights Watch's April report "Getting Away with Torture? Command Responsibility for the U.S. Abuse of Detainees."

But even as it denounces the "substantial impunity that has prevailed until now," Human Rights Watch is not sanguine about the likelihood of such inquiries. "There are obviously steep political obstacles in the way of investigating a sitting Defense Secretary," it notes in its report.

By not pursuing senior officials who may have been involved in ordering war crimes or torture, the United States may be further violating international law, according to Human Rights Watch. "Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, whenever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction," says the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The Geneva Conventions have a similar requirement.

Stymied by the obstacles along the customary routes of accountability, the ACLU and Human Rights First are suing Rumsfeld in civil court on behalf of plaintiffs who have been victims of torture. The Center for Constitutional Rights is suing on behalf of a separate group of clients. The center also filed a criminal complaint in Germany against Rumsfeld and Gonzales, along with nine others. The center argued that Germany was "a court of last resort," since "the U.S. government is not willing to open an investigation into these allegations against these officials." The case was dismissed.

Amnesty International's call for foreign countries to nab Rumsfeld and Bush also seems unlikely to be heeded any time soon. How, physically, could another country arrest Bush, for instance? And which country would want to face the wrath of Washington for doing so?

But that we have come this far-where the only option for justice available seems to be to rely on officials of other governments to apprehend our own-is a damning indictment in and of itself.

The case against Rumsfeld may be the most substantial of all. While "expressing no opinion about the ultimate guilt or innocence" of Rumsfeld, Human Rights Watch is urging his prosecution under the War Crimes Act of 1996 and the Anti-Torture Act of 1996. Under these statutes, a "war crime" is any "grave breach" of common Article 3 of the Geneva Conventions, which prohibits "outrages upon personal dignity, in particular, humiliating and degrading treatment," as well as torture and murder. A "grave breach," according to U.S. law, includes "willful killing, torture, or inhuman treatment of prisoners of war and of other 'protected persons,' " Human Rights Watch explains in "Getting Away with Torture?"

Rumsfeld faces jeopardy for being head of the Defense Department when those directly under him committed grave offenses. And he may be liable for actions he himself undertook.

"Secretary Rumsfeld may bear legal liability for war crimes and torture by U.S. troops in Afghanistan, Iraq, and Guantánamo under the doctrine of 'command responsibility'-the legal principle that holds a superior responsible for crimes committed by his subordinates when he knew or should have known that they were being committed but fails to take reasonable measures to stop them," Human Rights Watch says in its report.

But Rumsfeld's potential liability may be more direct than simply being the guy in charge who didn't stop the torture and mistreatment once he learned about it.

End Part I