War Crimes and Misdemeanors

The Bush presidency is coming to an end but legal trouble for some of its most prominent members may be just beginning.  The so-called War on Terror has gone spectacularly astray.  The US faces a quagmire stretching from the sewer-riddled alleyways of Sadr City to the restive reaches of al-Anbar Province, and, perhaps far worse, a moral abyss euphemistically called "enhanced interrogation."  The former is not easily rectified; the latter even less so.

Last week, the Washington Post reported the existence of two memos dating from 2003 and 2004 explicitly endorsing the CIA’s use of extreme forms of interrogation.  The revelation comes on top of disclosures that top administration officials knew of the harsh techniques from their inception.  According to the Post, then-CIA Director George Tenet briefed in early 2002 senior members of the administration on the matter.  Those initially in attendance included National Security Advisor Condoleezza Rice and Vice President Cheney, and in subsequent briefings Defense Secretary Donald Rumsfeld, Attorney General John Ashcroft, and White House Counsel Alberto Gonzales.  One such briefing in 2004 prompted Ashcroft to observe, "History will not judge us kindly."

In June 2004, following the Abu Ghraib scandal, Tenet requested explicit approval for the agency’s treatment of detainees to put it on firmer legal ground.  The memos cited by the Post reaffirmed the administration's support.  Although it remains unclear what officials signed off on the documents, they serve as additional evidence of possible violations at the highest levels of government of the War Crimes Act, the federal Anti-Torture Act, and federal assault laws.

That the administration has countenanced inhumane treatment of detainees is clear.  In an interview on September 16, 2001, Cheney hinted at what lay ahead: "We also have to work, though, sort of the dark side, if you will…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."  Moral considerations notwithstanding, the dark side cited by Cheney has proven to be a strategic disaster.  The Iraq debacle has flowed from it.  Fabrications about Saddam's chemical WMD and non-existent links between his regime and al-Qaeda were coughed up by Ibn al-Shaykh al-Libi, an alleged al-Qaeda commander rendered by the CIA to Egypt.  Under extreme duress, al-Libi offered up a startling, if apocryphal, narrative.  "They were killing me," he later told the FBI, "I had to tell them something.”  His fanciful testimony found its way into a speech by Bush ginning up support for the Iraq invasion and also Secretary of State Powell’s UN presentation.   

Other detainees, high-level and otherwise, from Guantanamo to the CIA black sites and Abu Ghraib and Bagram, got the same going over.  The Red Cross concluded that the treatment meted out to Abu Zabaydah, another al-Qaeda operative, constituted torture.  Zabaydah, through the organization, claims that he was waterboarded at least 10 times in one week, and as many as three times a day.  Similar allegations of mistreatment are common, and not just by high-level detainees like Zabaydah and 9/11 mastermind Khalid Sheikh Mohammed.

What constitutes torture, of course, is key (that the question must even be asked is damning enough).  A 2002 memo drafted by Assistant Attorney General Jay Bybee parsed the language of a 1994 statute that ratified the United Nations Convention against Torture.  To be torture, the memo concluded, physical pain must be "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."  According to the administration, waterboarding, which simulates drowning, does not reach this threshold.  Cheney himself publicly endorsed the technique, calling it a "no brainer." 

Congress finally took action by passing legislation early this year to prohibit the CIA from employing harsh interrogation methods such as waterboarding (the Army field manual banned it in 2006).  But Bush vetoed the bill, saying it “would take away one of the most valuable tools in the war on terror."  He disingenuously explained that "this is no time for Congress to abandon practices that have a proven track record of keeping America safe."  In other words, torture, which perpetuates the War on Terror by causing costly strategic errors based on faulty intelligence and by engendering more hate amongst the country’s enemies, cannot cease until the war is over.  It’s this sort of circular thinking that guarantees that the conflict will never end.   

The war crimes prosecution that looms for senior Bush Administration officials is not a figment in the imagination of bleeding heart liberals.  Retired Colonel Lawrence Wilkerson, Powell's former chief of staff, warned several officials, including former Attorney General Gonzalez and “torture memo” draftee Jay Bybee, to never leave the country because of the threat of criminal prosecution.  Retired Major General Antonio Taguba, who led the Army's investigation into the Abu Ghraib scandal, came to a similar conclusion.  "There is no longer any doubt as to whether the current administration has committed war crimes,” he said.  “The only question that remains to be answered is whether those who ordered the use of torture will be held to account."  He’s got it right.  It’s a no brainer. 

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