Stripping Rumsfeld and Bush of Impunity
From the July 2005 Issue of The Progressive
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.
First of all, when the initial reports of prisoner mistreatment came in, he mocked the concerns of human rights groups as "isolated pockets of international hyperventilation." He also asserted that "unlawful combatants do not have any rights under the Geneva Convention," even though, as Human Rights Watch argues, "the Geneva Conventions provide explicit protections to all persons captured in an international armed conflict, even if they are not entitled to POW status."
Secondly, he himself issued a list of permissible interrogation techniques in a December 2, 2002, directive that likely violated the Geneva Conventions, according to Human Rights Watch. Among those techniques: "The use of stress positions (like standing) for a maximum of four hours." On the directive, Rumsfeld, incidentally, added in his own handwriting next to this technique: "However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?" He also included the following techniques: "removal of all comfort items (including religious items)," "deprivation of light and auditory stimuli," "isolation up to 30 days," and "using detainees’ individual phobias (such as fear of dogs) to induce stress."
On January 15, 2003, Rumsfeld rescinded this directive after the Navy registered its adamant objections. If, during the six weeks that Rumsfeld’s techniques were official Pentagon policy at Guantánamo, soldiers mistreated or tortured prisoners using his approved techniques, then "Rumsfeld could potentially bear direct criminal responsibility, as opposed to command responsibility," says Human Rights Watch.
Rumsfeld may also bear direct responsibility for the torture or abuse of two other prisoners, says Human Rights Watch, citing the Church Report. (This report, one of Rumsfeld’s many internal investigations, was conducted by the Navy Inspector General Vice Admiral Albert Church.) "The Secretary of Defense approved specific interrogation plans for two ‘high-value detainees’ " at Guantánamo, the Church Report noted. Those plans, it added, "employed several of the counter resistance techniques found in the December 2, 2002, [policy]. . . . These interrogations were sufficiently aggressive that they highlighted the difficult question of precisely defining the boundaries of humane treatment of detainees."
And Rumsfeld may be in legal trouble for hiding detainees from the Red Cross. "Secretary Rumsfeld has publicly admitted that . . . he ordered an Iraqi national held in Camp Cropper, a high security detention center in Iraq, to be kept off the prison’s rolls and not presented to the International Committee of the Red Cross," Human Rights Watch notes. This prisoner, according to The New York Times, was kept off the books for at least seven months.
The Geneva Conventions require countries to grant access to the Red Cross to all detainees, wherever they are being held. As Human Rights Watch explains, "Visits may only be prohibited for ‘reasons of imperative military necessity’ and then only as ‘an exceptional and temporary measure.’"
The last potential legal problem for Rumsfeld is his alleged involvement in creating a "secret access program," or SAP. According to reporter Seymour Hersh, Rumsfeld "authorized the establishment of a highly secret program that was given blanket advance approval to kill or capture and, if possible, interrogate ‘high value’ targets in the war on terror." Human Rights Watch says that "if Secretary Rumsfeld did, in fact, approve such a program, he would bear direct liability, as opposed to command responsibility, for war crimes and torture committed by the SAP."
The Pentagon vehemently denies the allegation that Rumsfeld may have committed war crimes. "It’s absurd," says Pentagon spokesperson Lieutenant Colonel Skinner. "The facts speak for themselves. We have aggressively investigated all allegations of detainee mistreatment. We have had ten major investigations on everything from A to Z. We’ve also had more than 350 criminal investigations looking into detainee abuse. More than 103 individuals have been held accountable for actions related to detainee mistreatment. Our policy has always been, and will always remain, the humane treatment of detainees."
What about Bush? If Donald Rumsfeld can be charged for war crimes because of his command responsibility and his personal involvement in giving orders, why can’t the commander in chief? Hina Shansi, senior counsel at Human Rights First, believes the case against Bush is much more difficult to document. And Sifton of Human Rights Watch says that since Bush is known as "a major delegator," it may be hard to pin down "what he’s briefed on and what role he plays in the decision-making process."
Amnesty International USA, however, believes that Bush, by his own involvement in formulating policy on torture, may have committed war crimes. "It’s the memos, the meetings, the public statements," says Alistair Hodgett, media director of Amnesty International USA.
There is "prima facie evidence that senior members of the U.S. Administration, including President Bush and Secretary of Defense Rumsfeld, have authorized human rights violations, including ‘disappearances and torture or other cruel, inhuman, or degrading treatment,’ " Amnesty states in "Guantánamo and Beyond."
The first solid piece of evidence against Bush is his September 17, 2001, "Memorandum of Notification" that unleashed the CIA. According to Bob Woodward’s book Bush at War, that memo "authorized the CIA to operate freely and fully in Afghanistan with its own paramilitary teams" and to go after Al Qaeda "on a worldwide scale, using lethal covert action to keep the role of the United States hidden."
Two days before at Camp David, then-CIA Director George Tenet had outlined some of the additional powers he wanted, Woodward writes. These included the power to " ‘buy’ key intelligence services. . . . Several intelligence services were listed: Egypt, Jordan, Algeria. Acting as surrogates for the United States, these services could triple or quadruple the CIA’s resources." According to Woodward, Tenet was upfront with Bush about the risks entailed: "It would put the United States in league with questionable intelligence services, some of them with dreadful human rights records. Some had reputations for ruthlessness and using torture to obtain confessions. Tenet acknowledged that these were not people you were likely to be sitting next to in church on Sunday. Look, I don’t control these guys all the time, he said. Bush said he understood the risks."
That this was Administration policy is clear from comments Vice President Dick Cheney made on Meet the Press the very next day.
"We also have to work, though, sort of the dark side, if you will," Cheney told Tim Russert. "We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective."
If, as The New York Times reported, Bush authorized the transfer of detainees to countries where torture is routine, he appears to be in grave breach of international law.
Article 3 of the Convention Against Torture explicitly prohibits this: "No State Party shall expel, return, 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." Article 49 of the Geneva Conventions is also clear: "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive."
On February 7, 2002, Bush issued another self-incriminating memorandum. This one was to the Vice President, the Secretary of State, the Secretary of Defense, the Attorney General, the Director of the CIA, the National Security Adviser, and the Chairman of the Joint Chiefs of Staff. It was entitled "Humane Treatment of Al Qaeda and Taliban Detainees." In it, Bush asserted that "none of the provisions of Geneva apply to our conflict with Al Qaeda in Afghanistan or elsewhere throughout the world." He also declared, "I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan," though he declined to do so. And he said that "common Article 3 of Geneva does not apply to either Al Qaeda or Taliban."
This memo "set the stage for the tragic abuse of detainees," says William Schulz, executive director of Amnesty International USA.
Bush failed to recognize that the Geneva Conventions provide universal protections. "The Conventions and customary law still provide explicit protections to all persons held in an armed conflict," Human Rights Watch says in its report, citing the "fundamental guarantees" in Article 75 of Protocol I of 1977 to the Geneva Conventions. That article prohibits "torture of all kinds, whether physical or mental," "corporal punishment," and "outrages upon personal dignity, in particular, humiliating and degrading treatment."
In the February 7, 2002, memo, Bush tried to give himself cover by stating that "our values as a Nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not entitled to such treatment." He added that the United States, "to the extent appropriate and consistent with military necessity," would abide by the principles of the Geneva Conventions.
But this only made matters worse. His assertion that there are some detainees who are not entitled to be treated humanely is an affront to international law, as is his claim that the Geneva Conventions can be made subordinate to military necessity.
The Geneva Conventions, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention Against Torture all prohibit the torture and abuse that the United States has been inflicting on detainees. Article 2 of the Convention Against Torture states that "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."
Article VI of the Constitution makes treaties "the supreme law of the land," and the President swears an oath to see that the laws are faithfully executed.
As more information comes out, the case against Bush could get even stronger, says Sifton of Human Rights Watch. If, for instance, Bush said at Camp David on September 15, 2001, or at another meeting, "Take the gloves off," or something to that effect, he would be even more implicated. "Obviously, if he did make such an explicit order, his complicity would be shown," says Sifton. Somehow, that message was conveyed down the line. "There was a before-9/11 and an after-9/11," Cofer Black, who was director of the CIA's counterterrorist unit, told Congress in 2002. "After 9/11, the gloves came off."
The White House press office refused to return five phone calls from The Progressive seeking comment about the allegations against Bush. At his daily press briefing on May 25, the President’s Press Secretary Scott McClellan was not asked specifically about Bush’s culpability but about Amnesty International’s general charge that the United States is a chief offender of human rights.
"The allegations are ridiculous and unsupported by the facts," McClellan said. "The United States is leading the way when it comes to protecting human rights and promoting human dignity. We have liberated fifty million people in Iraq and Afghanistan. . . . We’re also leading the way when it comes to spreading compassion."
Amnesty International USA does not intend to back off. "Our call is for the United States to step up to its responsibilities and investigate these matters first," Executive Director Schulz says. "And if that doesn’t happen, then indeed, we are calling upon foreign governments to take on their responsibility and to investigate the apparent architects of torture."
Inquiries to the embassies of Belgium, Chile, France, Germany, South Africa, and Venezuela, as well as to the government of Canada, while met with some amusement, did not reveal any inclination to heed Amnesty’s call.
Schulz is not deterred. Acknowledging that the possibility of a foreign government seizing Rumsfeld or Bush might not be "an immediate reality," Schulz takes the long view: "Let’s keep in mind, there are no statutes of limitations here."