I am reposting the following personal viewpoint paper I wrote. My mother "Granny Smith" corrected the previous post, and made several suggestions of ways to improve the post. If you have not visited her blog I highly recommend it. It can by found at http://phyllisophy.blogspot.com/.

This viewpoint can be copied and distributed, but only without modification. I also have this viewpoint in a Word document. There are differences in formatting, and I have included an appendix in the Word document. I will provide a copy of the Word document upon request.

An Argument for Indictment

In this paper I am arguing that Donald Henry Rumsfeld, George Walker Bush, Richard Bruce “Dick” Cheney, and others should be prosecuted for war crimes as defined by United States law and international law. If for any reason one or more are exempt from prosecution under domestic law they should be turned over to the Hague or other international venue for prosecution under international law.

Pursuing these charges is historically important. Not doing so will make a mockery of the action of our predecessors and question the very motivation behind the Nuremberg Tribunal after World War II. Our prosecutor in the discussions leading up to the tribunal assured the world that international laws were as binding to the United States as they were to Germany.

I will point out the domestic or international laws under which I recommend that charges be brought. I will give evidence of the violation of these laws by citing public records. I will not, though, be providing proof of guilt. Only a prosecution in front of a court of law can do that. I argue that there is sufficient evidence to bind these people over for trial.

After the German surrender, the victorious nations charged some of the leaders of the defeated Germans with war crimes. They were tried at the International Military Tribunal at Nuremburg. Before the start of the trial there was an International Conference on Military Trials in London. On July 23, 1945 the Chief American Prosecutor Robert H. Jackson stated the following.

If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.[1]

Thus the very justification for trying others is the promise of equal justice should the violation be one done by the United States. If we do not keep this promise then our motivation in prosecuting the defeated is put into question.

In September 1946 judgment was passed down on the defendants. The following is a quote from the Judgment of the International Military Tribunal.

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.[2]

Twelve defendants were sentenced to death; three were given life sentences; and four received lesser sentences. These sentences were “crimes whether the United States (did) them or whether Germany (did) them.”

It is the promise of equal enforcement that makes the Nuremberg Tribunal more than retaliation by the victors against the defeated. A failure now to fulfill this promise is an admission that we were part of the retaliatory execution of twelve people, and the political imprisonment of seven others.

The United States has supported prosecutions of violations of war crimes since World War II including into the 21^st century. In June of 2001 former Yugoslav President Slobodan Milosevic was sent to The Hague to face war crimes charges. President George Bush praised the action saying that Belgrade was moving “toward a brighter future as a full member of the community of European democracies.”[3]

Months before the attack on the United States George W. Bush was praising the prosecution of Slobodan Milosevic for war crimes. As I will show, there is evidence that within months the United States was itself committing war crimes.

President Dwight D. Eisenhower saw that we would be judged not only on our strength, but also on how we used it in the world. The following is from his Farewell Address, January 17, 1961.

America is today the strongest, the most influential and most productive nation in the world. Understandably proud of this pre-eminence, we yet realize that America's leadership and prestige depend, not merely upon our unmatched material progress, riches and military strength, but on how we use our power in the interests of world peace and human betterment.

Eisenhower continued with these following warnings.

In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted only an alert and knowledgeable citizenry can compel the proper meshing of huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.

And

The weakest must come to the conference table with the same confidence as do we, protected as we are by our moral, economic, and military strength. That table, though scarred by many past frustrations, cannot be abandoned for the certain agony of the battlefield.

Disarmament, with mutual honor and confidence, is a continuing imperative. Together we must learn how to compose difference, not with arms, but with intellect and decent purpose.

It is my assertion that we now have “the strongest (and) the most influential … nation in the world” with “the disastrous rise of misplaced power” “endanger(ing) our liberties or democratic processes”. Rather than protecting the weakest the right to be at the conference, we have forgotten our moral strengths. “America's leadership and prestige” is at risk. Recovering it requires demonstrating to the world that it holds itself to the same high standard as we hold the rest of the world. It requires that when our leadership violates international law that we used to hang a dozen people and lock up seven others that we hold them equally responsible and liable.

The complete text of Eisenhower’s speech can be found at http://www.eisenhower.archives.gov/speeches/farewell_address.html.

The War Crimes Act of 1996 specifically defines as a crime “…a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party…” These are punishable by fine, imprisonment, or death. In addition to this law explicitly stating that we are bound by the Geneva Convention the constitution binds us to International Law accepted by Treaty by the United States. This was granted in Article VI, Clause 2 of the United States Constitution.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby, any Thing in the Constitution or laws of any State to the Contrary notwithstanding.

As such, any mention of international law in this paper can be considered United States law, and punishable by United States courts.

One of the charges brought at Nuremberg was “Planning, initiating and waging wars of aggression and other crimes against peace” which in the judgment was called “the supreme international crime”. It was with this historic knowledge that on December 14, 1974 the General Assembly of the United Nations adopted the Definition of Aggression.[4]

Article 1

Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.

Article 2

The first use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.

Article 3

Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provision of article 2, quality as an act of aggression:

Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provision of article 2, quality as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

…

Article 5

1. No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.

2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.

…

The United States invasion of the sovereign state of Iraq could only be considered not an act of aggression if Iraq had taken the first military action or if the Security Council of the United Nations declared the action nonaggression. At this time we know that Iraq took no part in the attack of September 11, 2001 on the United States. There is evidence that on March 20, 2003 when the United States attacked Iraq that George Bush and Dick Cheney knew that Iraq had no part in the attack of the United States.

The administration wanted to use the attack of September 11 as a pretext for invading Iraq. Within days there was a concerted effort on the part of the administration to find evidence that Iraq was connected to al Qaeda. From the start they used knowingly false intelligence to justify their planned invasion.

On September 17, 2001 George Bush signed the “war on terror” document which contained directions to the Pentagon instructing them to plan for the option of a military invasion of Iraq.[5]

On September 19, 2001 Director of Central Intelligence George Tenet was told by George Bush “I want to know about links between Saddam and al Qaeda.” Dick Cheney informed George Tenet of reports that hijacker Mohammed Atta met with senior Iraqi intelligence officials in Prague. After looking into it George Tenet reported back that Prague CIA office thinks the report “doesn’t add up.” Adding to that, during the time that Atta was supposedly in Praque his credit card and phone were used in Virginia.[6]

Even though the Mohammed Atta meeting was shown not to have happened, on December 9, 2001 on “Meet the Press” Dick Cheney responded with the following to a question about Mohammed Atta.

“Well, what we now have that’s developed since you and I last talked, Tim, of course, was that report that’s been pretty well confirmed, that he did go to Prague and he did meet with a senior official of the Iraqi intelligence service in Czechoslovakia last April, several months before the attack.

Now, what the purpose of that was, what transpired between them, we simply don’t know at this point. But that’s clearly an avenue that we want to pursue.”[7]

Even after the invasion Dick Cheney maintained the impression that this report had not been totally discredited. On September 14, 2003 on “Meet the Press” he revisited the subject with this.

“With respect to 9/11, we’ve had the story that’s been public out there. The Czechs alleged that Mohammed Atta, the lead attacker, met in Prague with senior Iraqi intelligence official five months before the attack, but we’ve never been able to develop anymore of that yet in terms of confirming it or discrediting it. We just don’t know.”

Keep in mind that there needs to be a link between the government of Iraq and the events of September 11, 2001. Short of some type of connection with these attacks “The first use of armed force by a State” in the definition of aggression was made by the United States under the direction of George W. Bush.

On April 29, 2007 on “60 Minutes” George Tenet said “We could never verify that there was any Iraqi authority, direction and control, complicity with al-Qaeda for 9/11 or any operational act against America, period.”[8]

The following are excerpts from a Codoleezza Rice interview on September 10, 2006.[9] It is important to notice what is said about links to September 11, and not just links between administrations.

WALLACE: And in March 2003, just before the invasion, you said, talking about Iraq, “a very strong link to training Al Qaeda in chemical and biological techniques.” Secretary Rice, a Senate committee has just revealed that in February of 2002, months before the President spoke … the Defense intelligence Agency concluded this … “Iraq is unlikely to have provided bin Laden any useful CB, that’s chemical or biological, knowledge or assistance.” Didn’t you and the President ignore intelligence that contradicted you case?

RICE: What the President and I and other administration officials relied on and – you simply rely on the Director of Central Intelligence. George Tenet gave that very testimony, that there were ties going on between Al Qaeda and Saddam Hussein’s regime going back for a decade. We know that Zarqawi was running a poisons network in Iraq. We know that Zarqawi ordered the killing of an American diplomat in from Iraq. There were ties between Iraq and Al Qaeda. Now, are we learning more now that we have access to people like Saddam Hussein’s intelligence services? Of course. We’re going to learn more.

WALLACE: Did you know about this report?

RICE: There are conflicting intelligence reports all the time. That’s why we have an intelligence system that brings those together into a unified assessment by the intelligence committee of what – community of what we’re looking at. That particular report I don’t remember seeing.

Note that there was no mention of Saddam Hussein’s involvement in the attack on the United States.

On March 21, 2004 Richard Clarke spoke with Leslie Stahl on 60 Minutes.[10] Richard Clarke has written that he was one of the few people staffing the White House after it was evacuated on September 11, 2001.

STAHL: After the President returned to the White House on 9/11, he and his top advisors including Clarke began holding meetings about how to respond and retaliate. As Clarke writes in his book, he expected the administration to focus its military response on Osama bin laden and al Qaeda but was surprised when the talk quickly turned to another target.

STAHL: You relayed a conversation you had with Secretary of Defense Rumsfeld.

CLARKE: Well Rumsfeld was saying that we needed to bomb Iraq and we all said ‘No no, al Qaeda is in Afghanistan. We need to bomb Afghanistan.’ Rumsfeld said, ‘There aren’t any good targets in Afghanistan and there are lots of good targets in Iraq.’ I said, ‘Well there are lots of good targets in lots of places but Iraq had nothing to do with it.’

...

STAHL: Now what was your reaction to all this Iraq talk? What did you tell everybody?

CLARKE: What I said was, you know, invading Iraq or bombing Iraq after we’re attacked by somebody else, it’s akin to, what if Franklin Roosevelt after Pearl harbor instead of going to war with Japan said, “Let’s invade Mexico.” It’s very analogous.

STAHL: But didn’t they think there was a connection?

CLARKE: I thing they wanted to believe that there was a connection but the CIA was sitting there, the FBI was sitting there, I was sitting there saying, We’ve looked at this issue for years, for years we’ve looked for a connection and there’s just no connection.

STAHL: And you told them that?

CLARKE: Absolutely.

...

STAHL: You talk about a conversation you personally had with the president.

CLARKE: Yes. The president – we were in the situation room complex – the president dragged me into a room with a couple of other people, shut the door, and said, “I want you to find whether Iraq did this.” Now he never said “Make it up.” But the entire conversation left me in absolutely no doubt that George Bush wanted me to come back with a report that said “Iraq did this.”

STAHL: Didn’t you tell him that you’d looked and there’s been no connection?

CLARKE: I said, “Mr. President. We’ve done this before. We have been looking at this. We looked at it with an open mind. There’s no connection.” He came back at me and said, ‘Iraq! Saddam! Find out if there’s a connection.’ And in a very intimidating way. I mean, that we should come back with that answer. We wrote a report.

…

CLARKE: It was a serious look. We got together all the FBI experts, all the CIA experts. We wrote the report. We sent the report out to CIA and down to FBI and said, “Will you sign this report?” They all cleared the report and we sent it up to the president and it got bounce by the National Security Advisor or Deputy. It got bounce and sent back saying, ‘Wrong answer.”

There is sufficient evidence that George Bush and Dick Cheney knew that Iraq had no part in the attack on the United States. The evidence shows that this administration decided in less than twenty four hours after a group in Afghanistan attacked, that they were going to uses this as a pretext to attack an innocent State; Iraq.

These accusations are public, and the White House has made statements in defense. This paper is to find if there is sufficient evidence to bind members of the Executive Branch over for prosecution. If they have a defense of legal standing, they can present it in court. What I have presented here is significant evidence, not all the evidence that the United States entered a war of aggression.

The military tribunal after WW II understood that a war of aggression “contains within itself the accumulated evil of the whole” including crimes against humanity. The London Charter of the International Military Tribunal included in there definition of what Axis Powers could be tried for “Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecution on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”[11] In 2002 the International Criminal Court further defined it as the following.

For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.

(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f)Torture;
(g)Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group of collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.[12]

Of the listed crimes there is evidence that the United States in their war against Iraq have committed (at least) these.

(a) Murder
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law
(f) Torture
(i) Enforced disappearance of persons

I will examine these independently.

In the United States, in general, murder is the killing of human being with malice prepense. Malice can be the intent to kill or the disregard for human life. Common Law defines it as malice aforethought, which has the same meaning.[13]

Just the fact that people have died in a war of aggression is on the surface, by definition, murder. Initiating a war of aggression against the State of Iraq is an act done without regard for the lives including civilian lives. That is the malice. The war was planned. That is the prepense or aforethought. But, the United States military have used weaponry that by their design has an extremely high rate of civilian deaths.

Cluster bombs have been used extensively in Iraq. These bomb detonate above the ground and spreading small submunitions call “bomblets” over a large area. Thus anyone within this area is a potential target. Add to that that there is a high rate of bomblets not detonating at the time. These will sometimes explode at a later time.

Human Rights Watch reports almost 2 million bomblets were released between March and April 2003. The Air force released a report showing that 12,726 bomblets were released between May 1, 2003 and August 1, 2006.[14]

On September 14, 2007 the Opinion Research Business (ORB) reported that as many as 1,220,580 people have died in Iraq since our invasion with a margin of error of 2.5%[15]. On Jan 28, 2008 this was revised to 1,033,000
with a range of 946,000 to 1,120,000[16].

The Iraq Body Count records documented violent deaths of civilians. Undocumented, non-violent deaths including those related to the war, and military and para-military deaths are not included. As of Feb 27, 2008 their count is 81,527 – 88,994.[17]

The Iraq Body Count is extremely conservative in their count. It also doesn’t count civilian deaths reported as “insurgent” deaths. In March of this year, for four days several hundred active duty soldier, Iraq war vets, and Afghanistan war vets met at the National Labor College in Silver Spring Maryland for Winter Soldier to give witness to what they saw on the ground. Jason Washburn was a corporal in the United States Marine Corps. He served four years and did three tours in Iraq. This is part of his testimony.

Something else we were actually encouraged to do, almost with a wink and a nudge, was to carry drop weapons or, by my third tour, drop shovels. What that basically is, is we would carry these weapons or shovels with us, because in case we accidentally did shoot a civilian, we could just toss the weapon on the body and make them look like they were an insurgent. Or, you know, like my friend here were saying, we were told by my third tour that if they were carrying a shovel or—you know, and a heavy bag, if they were digging anywhere, especially near roads, that we could shoot them. And so, we actually carried these tools and weapons in our vehicles in case we accidentally shot an innocent civilian, and we could just toss it on them and be like, “Well, he was digging. I was within the rules of engagement.” And this was commonly encouraged, but only behind closed doors. It wasn’t obviously a public announcement that they would make. But, yeah, it was pretty common.[18]

These deaths were not included in the body count.

There is strong international support for banning cluster bombs. As of November 27, 2007, 84 states have participated in the Oslo process to ban them.

Afghanistan, Albania, Angola, Argentina, Australia, Austria, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cambodia, Canada, Burundi, Chad, Chile, Costa Rica, Croatia, Czech Republic, Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, Estonia, Finland, France, Germany, Ghana, Guatemala, Guinea Bissau, Greece, Holy see, Honduras, Hungary, Iceland, Indonesia, Ireland, Italy, Japan, Jordan, Lao PDR, Latvia, Lebanon, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, Malawi, Malta, Mauritania, Mexico, Mozambique, Montenegro, Netherlands, New Zealand, Nicaragua, Nigeria, Norway, Panama, Paraguay, Peru, Poland, Portugal, Senegal, Serbia, Slovakia, Slovenia, South Africa, Spain, St Vincent and Grenadines, Sweden, Switzerland, Tajikistan, Tanzania, Thailand, Turkey, Uganda, UK, Uruguay, Venezuela, Yemen, and Zambia.[19]

The vast majority of humanity believes these munitions have no place in the modern world, yet the United States has used them extensively against the people of Iraq.

To this point, I have been discussing our actions in our war against the State of Iraq. When discussing false imprisonment, torture, and forced disappearance, the scope needs to be expanded to include the so called “War on Terror”. [20]

I have combined the item (e) and (i) of the crimes against humanity. Though related, forced disappearance does not necessarily require imprisonment, in that killing, along with hiding the bodies, is disappearance. Likewise false imprisoning someone in plain view is not forced disappearance. I combined them because of the significant evidence that people have vanished from public view while being imprisoned.

Some of the evidence given here involves turning prisoners over to other governments where they were tortured. Under General Comments 20 of the United Nations Human Rights Committee (October 3, 1992) the United States is responsible for the treatment of these detainees after the have been placed in the custody of these other states.

States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement[21]

Because of this I will treat the actions of other countries as actions of the United States when the United States transferred custody to these other countries.

Khalid El-Masri and Laid Saidi have alleged that they were held and tortured because of a phone call about tires.[22] Tires in Arabic is tirat and airplanes is tairat. Apparently this conversation was translated incorrectly.

Khalid El-Masri has German nationality. In 2003 he was detained in Macedonia by Macedonian agents while on vacation. After being held for three weeks he was turned over to the CIA. He was injected with drugs and woke up in Afghanistan in an American run prison. He alleges that the CIA beat him, stripped him naked, drugged him, and gave him an enema. After five months he was dumped on a road in Afghanistan and he made his own way back to Germany.

In 2003 Laid Saidi, an Algerian was abducted in Tanzania and taken to Afghanistan where he was imprisoned with Khalid El-Masri.

This is a specific case of the disappearance and imprisonment of two people. There are reports that over one hundred individuals have been taken to secret sites run by the CIA throughout Eastern Europe, or turned over to countries that torture people. In September 2006 the Bush administration announced that 14 people were being moved from secret CIA run locations to the Guantanamo Bay detention camp.[23]

There are also the following allegations.[24]

Ibn al-Shaykh alibi was rendered to Egypt and allegedly tortured

Ahmed Agiza and Muhammad al-Zery, are Egyptians who were seeking asylum in Sweden. They were arrested by Swedish police Dec 2001, placed upon American registered jet N379P with masked crew, flown to Egypt, and tortured.

Abou Elkassim Britel, Italian, was arrested in Pakistan March 2002, interrogated by Pakistani and U.S. officials, rendered to Moroccan authorities, detained and tortured. He was released May 2003 without charge.

Maher Arar, Canadian, was detained in U.S., sent by private jet to Syria, and tortured.

Saddiq Ahmad Turkistani was freed by US forces from a Taliban prison in Afghanistan 2001. Rather than being released he was taken to US military base, stripped, bound, and thrown behind bars. He was then sent to Guantanamo Bay. In 2005 it was ruled that he was “no longer an enemy combatant”.

In April 2006 Amnesty International stated that three Yemeni citizens were held somewhere in Eastern Europe.

The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the United Nations General Assembly on December 10, 1984 and went into affect on June 26, 1987. It includes these following excerpts.[25]

Article 1
1. Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Article 16
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.

The Israeli Supreme Court ruled the below techniques outlawed as torture. (1999)[26]

Cuffing
Hooding
Loud music
Deprivation of sleep
Position abuse

The European Court of Human Rights ruled that the combination of the above five techniques were prohibited (1978).[27]

United States Code Title 18, Part 1 Chapter 113C provides for the following definition of torture.[28]

1. “Torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;


2. “Severe mental pain or suffering” means the prolonged mental harm caused by or resulting from –
1. the intentional infliction or threatened infliction of severe physical pain or suffering;
2. administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
3. threat of imminent death; or
   
4. the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality

Modern torture does not leave physical scars. There is no disfigurement from waterboarding, and the clear violation of United States and international laws committed at Abu Ghraib left no marks. Because of this, unless there are pictures or other physical record torture can only be detected by a pool of evidence or admissions of activities. In this case we have both. It is also difficult to determine responsibility because the person authorizing torture rarely participated in it, and can deny their authorization.

There is a pool of evidence that the United States has participated in torture. Of the people I listed as being victim of forced disappearance these have stated that they were tortured.

Khalid El-Masri
Laid Saidi
Ibn al-Shaykh alibi
Ahmed Agiza
Muhammad al-Zery
Abou Elkassim Britel
Maher Arar

The outrageous acts at Abu Ghraib were blamed on the actions of a few people; a few “bad apples.” The techniques used are published in a CIA handbook on coercive interrogation methods written during the Vietnam War, and declassified about a decade ago[29]. We are supposed to believe that new recruits, just out of boot camp, came up with these techniques! And, with each new revelation of people saying that they were tortured by the United States or were sent to other countries and tortured it becomes more likely that these actions were planned and authorized by someone higher in the chain of command.

On February 7, 2002 George Bush signed a memorandum titled “Humane Treatment of al Qaeda and Taliban Detainees. In it he states “none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world …[30]” He claimed the right to suspend our obligations under the Geneva Convention, declining to do so at that time. He based this on legal stance on a Justice Department’s Jan. 22, 2002 memorandum, and a legal opinion letter Attorney General John Ashcroft’s Feb. 1, 2002. No documents have been released where our obligations were suspended by the President, though that does not say there is or isn’t such a document.

On February 6, 2008 General Michael Hayden admitted that waterboarding was used on three prisoners during 2002 and 2003.[31] The administration of George Bush and Dick Cheney has refused to call this torture, but the evidence contradicts this.

Waterboarding works because it is a threat of imminent death and is thus a violation of United States Code Title 18, Part 1 Chapter 113C.

Waterboarding was designated as illegal by U.S. generals in the Vietnam War.[32]

In Hamdan v Rumsfeld the courts have ruled that Guantanamo is under United Stated control. Previously I included parts of The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 2 has the phrase “any territory under its jurisdiction”. Therefore acts done Guantanamo or other location under U.S. control are covered by United States and international law.

There is no legal justification for torture, including national security. This is made perfectly clear in The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Article 2, paragraph 2.

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

More specifically claims that terrorist acts have been averted because of the use of waterboarding and other extreme measures do not excuse these actions. They are torture.

I have written this in great sadness for what we have lost, and in great fear for what the future holds. There is no win here. Trying the President, the Vice President and others for war crimes sets a precedence that could very easily be abused in the future at our great peril. But, not trying these people could damage “our liberties and democratic processes” beyond repair.

The evidence that the United States committed war crimes is significant. Regardless of the legality of the war itself, there is evidence that we forced the disappearance of people, and people were tortured by the United States, or we sent detainees to countries that committed the torture.

There is significant question about the legality of the war itself. If the Iraq war was, as Alan Greenspan stated, “largely about oil”[33] then it was a war of aggression. And, if the war was illegal, then the deaths of civilians and combatants become murder.

The use of illegal means is not an isolated incident or two, but rather is wide spread. Within a few months of September 11, 2001 we were taking people to Egypt to be tortured. This administration has admitted to and defended the use of waterboarding. We openly transported people from secret sites to Guantanamo. Yet we claim that Abu Ghraib was the actions of a few people.

The extent of the evidence of violations of law indicates that policy was set to permit these actions. As Commander in Chief of the armed forces George W. Bush sets the policy, and should be held accountable if that policy is to violate the law.

This administration has admitted that use of waterboarding was the policy in extreme cases, but that it is not torture. Historically the United States has considered this torture. The wording of the law would indicate that it is torture.

Donald Rumsfeld, George W. Bush and Dick Cheney have defended their actions by saying it was to protect the United States from terrorists, yet international law states that there are no exceptions.

I can not find members of this administration guilty of war crime. That is the job of courts of law.

It is important that the United States supports a trial to determine the guilt of innocence of Donald Rumsfeld, George Bush and Dick Cheney. The United States has built a reputation as a defender of human rights and dignity. For over a half a century the country has supported the use international trials to try crimes against humanity. Even George W. Bush supported this. To exempt our administration from them would make a mockery out of previous trials and further destroy our already diminished reputation.

We must listen to President Dwight D. Eisenhower’s warnings. We have “the strongest (and) the most influential … nation in the world” with “the disastrous rise of misplaced power” “endanger(ing) our liberties or democratic processes”. We have forgotten our moral strengths. We have failed to protect the weakest.

If we are to regain the reputation we have lost, we must hold our leaders to the same standard as we hold and have held others. A new administration does not excuse us of the moral responsibility. Morally and legally we must put Donald Henry Rumsfeld, George Walker Bush, Richard Bruce “Dick” Cheney, and others on trail, in a public court for war crimes as defined by United States law and international law.

Stanford Smith
http://55blueheron.blogspot.com/



Foot Notes

[1] http://www.yale.edu/lawweb/avalon/imt/jackson/jack44.htm
[2] http://www.yale.edu/lawweb/avalon/imt/proc/09-30-46.htm
[3] http://archives.cnn.com/2001/WORLD/europe/06/28/milosevic.court/
[4] United Nations General Assembly Resolution 3314
Text available at http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/IMG/NR073916.pdf?OpenElement
[5] http://www.motherjones.com/mb/mt-search.cgi?tag=CIA&blog_id=2
[6] http://www.motherjones.com/mb/mt-search.cgi?tag=CIA&blog_id=2
[7] http://www.whitehouse.gove/vicepresident/news-speeches/vp20011209.html
[8] http://en.wikipedia.org/wiki/Sadam_Hussein_and_al-Qaeda
[9] http://thinkprogress.org/2006/09/10/rice-qaeda-saddam/
[10] http://www.subliminalnews.com/archives/000161.php
[11] http://en.wikipedia.org/wiki/Crimes_against_humanity
[12] http://en.wikipedia.org/wiki/Crimes_against_humanity
[13] http://en.wikipedia.org/wiki/Murder
[14] http://www.thenation.com/doc/20070611/turse
[15] Many references. Corporate site http://www.opinion.co.uk
[16] http://www.opinion.co.uk/Newsroom_details.aspx?NewsId=88
[17] http://www.iraqbodycount.org
[18] http://www.democracynow.org/2008/3/18/winter_soldier_contd_us_vets_active
[19] http://www.stopclustermunitions.org/dokument.asp?id=125
[20] It needs to be stated at this point that the use of murder, false imprisonment, torture, forced disappearance, and other acts of the United States are acts that generate terror. For that reason I will not use the George Bush administration’s name for their activities.
[21] http://www.humanrightsfirst.org/us_law/detainees/prohibits_torture.htm
[22] http://en.wikipedia.org/wiki/Extraordinary_rendition
[23] http://en.wikipedia.org/wiki/Forced_disapperance
[24] http://en.wikipedia.org/wiki/Extraordinary_rendition
[25] http://en.wikipedia.org/wiki/United_Nations_Convention_Against_Torture
[26] http://www.humanrightsfirst.org/us_law/detainees/prohibits_torture.htm
[27] http://www.humanrightsfirst.org/us_law/detainees/prohibits_torture.htm
[28] http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=18&sec=2340
[29] http://www.washingtonpost.com/wp-dyn/articles/A37340-2004Jun12.html
[30] http://news.lp.findlaw.com/hdocs/docs/torture/powtorturememos.html
[31] http://en.wikipedia.org/wiki/Waterboarding
[32] http://en.wikipedia.org/wiki/Waterboarding
[33] Many including http://www.harpers.org/archive/2007/09/WeeklyReview2007-09-18#46efbc90ada85