Leading Human Rights Groups Request Full Access To Guantánamo Prison
(1/30/2009)

Outside Review Needed To Ensure Transparency And Full Compliance With The Law

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – Four leading human rights and civil liberties organizations asked President Obama to grant them full access to the Guantánamo Bay detention center so that they can review the conditions of confinement and make recommendations for revising U.S. detention policies. The American Civil Liberties Union, Amnesty International USA, Human Rights First and Human Rights Watch have had permission to observe the military commissions at Guantánamo since August 2004, but have thus far only been offered a guided tour of the detention camp without access to detainees.

On January 22, President Obama issued an executive order requiring a review of detention conditions at Guantánamo to ensure compliance with the Geneva Conventions and all other applicable laws. According to today's letter, also allowing the groups full access to the prison "will be welcomed as another break from the prior administration's policies on detainees, and set an example that will help advance human rights worldwide."

The full text of the letter is as follows and available online at: www.aclu.org/safefree/detention/38600res20090130.html

January 30, 2009

Dear President Obama,

As heads of four prominent civil liberties and human rights organizations, we greatly appreciate your decisive action in restoring U.S. commitment to the rule of law and respect for human rights by issuing executive orders to close Guantánamo, suspend the military commissions, prohibit CIA prisons, and enforce the ban on torture. We eagerly await your continued actions to renew American justice.

Today, we write to request full access to the Guantánamo Bay detention camps so that we may independently review and report on the conditions of confinement there and make concrete recommendations for change. In August 2004, our four organizations were granted observer status to observe the military commissions, but for years the Bush administration has denied our organizations' repeated requests for full access to the detention camps. We have only been offered the VIP tour to observe a model Guantánamo detention camp, which was far from adequate access.

Section 6 of your January 22, 2009 executive order, "Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities," addresses the issue of conditions of confinement and orders Secretary of Defense Gates to "immediately undertake a review of the conditions of detention at Guantánamo to ensure full compliance with [Common Article 3 of the Geneva Conventions]."

Our presence can assist this effort. We will provide an outside assessment of current conditions and, as improvements are made, credibly, independently, and publicly report them to the world. Such access and reporting would further the objectives of the current Department of Defense (DoD) review and amplify the international benefits of improving conditions at the camps. Our presence itself will be welcomed as another break from the prior administration's policies on detainees, and set an example of transparency that will help advance human rights worldwide.

We ask you to reconsider our organizations' request for full access to the Guantánamo Bay detention camps and honor it in light of the current DoD review. According to your executive order, the DoD review "shall be completed within 30 days and any necessary corrections shall be implemented immediately thereafter." We ask that, if granted full access, our independent review should take place within the next few weeks, to allow time for us to finalize our report and recommendations before the completion of the DoD's review.

The Bush administration's past policy of secrecy regarding detention conditions at Guantánamo makes it critically important for your administration to open Guantánamo to independent review as part of a new government policy of transparency. Full and independent review of conditions of confinement by human rights organizations is urgently needed because of the secrecy regarding detention conditions at Guantánamo Bay as a whole. The ACLU and other organizations continue to struggle for production of materials requested pursuant to the Freedom of Information Act (FOIA) regarding Guantánamo Bay. The Bush administration denied full access to several UN independent human rights experts who insisted on confidential interviews with the detainees as dictated by UN protocol for such visits.

While the International Committee of the Red Cross (ICRC) has had access to Guantánamo detainees, its access has been restricted in the past and the extent of its current access is unclear to us. A leaked version of the Camp Delta Standard Operation Procedures (SOP) from March 2003 revealed that the ICRC was denied access to various groups of detainees at the camp, and a leaked version of the SOP manual from 2004 revealed continued restrictions on ICRC access.

Regardless of the ICRC's present level of access, its role is distinct from that of our organizations. While the ICRC plays an important role in visiting prisoners under the Geneva Conventions, the ICRC maintains full confidentiality in order to preserve the exclusively humanitarian nature of its work. The role of our human rights organizations in reviewing and reporting on conditions at Guantánamo would be distinct and equally important.

Granting human rights organizations full and unfettered access to a detention facility where torture and abuse have occurred will send a powerful message to the world regarding your administration's commitment to transparency and openness, consistent with your January 21, 2009 FOIA directive, which noted, "A democracy requires accountability, and accountability requires transparency." Opening Guantánamo to full review by human rights organizations would help to restore American legitimacy and standing in the world, and place pressure on other governments to open their detention centers for independent inspections.

Furthermore, independent review of conditions of confinement by human rights organizations will assist your administration in revising its policies and improving detention conditions in the camps. If granted full access, our independent human rights delegation would include experts on detention conditions and medical professionals, and would offer your administration concrete recommendations on how to improve conditions of confinement in order to comply with relevant national and international standards and guidelines on persons in detention.

We hope that you will act quickly on this matter in the interest of transparency and the protection of human rights.

Sincerely,

Anthony D. Romero, Executive Director, American Civil Liberties Union

Larry Cox, Executive Director, Amnesty International USA

Elisa Massimino, Executive Director, Human Rights First

Kenneth Roth, Executive Director, Human Rights Watch

cc:
Secretary of Defense Robert Gates
White House Counsel Gregory B. Craig

IVAW Members Arrested While Attempting to Present Questions to Obama and McCain

One hour before the final presidential debate of the 2008 campaign, fourteen members of IVAW marched in formation to Hofstra University to present questions for the candidates concerning the occupation of Iraq and the treatment of returning veterans. IVAW had requested permission from debate moderator Bob Schieffer to ask their questions during the debate but got no response.

The contingent of veterans in dress uniforms and combat uniforms attempted to enter the building where the debate was to be held in order to ask their questions but were turned back by police. The ten IVAW members at the front of the formation were immediately arrested, and others were pushed back into the crowd by police on horseback. Several members were injured, including former Army Sergeant Nick Morgan who suffered a broken cheekbone when he was trampled by police horses before being arrested.

"Neither of the candidates has shown real support for service members and veterans. We came here to try and have serious questions answered, questions that we as veterans of the Iraq war have a right to ask, but instead we were arrested. We will continue to ask these questions no matter who is elected. We believe that the time has come to end this war and bring our troops home" said Jason Lemieux, a former Sergeant in the US Marine Corps who served three tours in Iraq, and member of IVAW.

The questions that are important to Iraq Veterans Against the War

1. The invasion and occupation of Iraq is illegal based on criteria in our own Constitution, as well as international law and the Geneva Conventions. Sen. Obama, is it not the right of service members to refuse deployment and participation in the occupation of Iraq? As President, will you support the rights of service men and women who refuse participation in this criminal war?

1. Sen. McCain, we currently have thousands of veterans returning from combat in Iraq and Afghanistan, many of them with severe injuries. The rate of suicide attempts among veterans is at the shocking rate of up to 1,000 per month. Sen. McCain, you have consistently voted against an increase in VA funding and other legislation that would take care of veterans. As President, will you be prepared to fully fund and staff the VA system and how will you address your poor voting record on veteran’s issues?

IVAW needs your support today

The ten IVAW members who were arrested will be arraigned on November 10, and we will be building support for them in the coming weeks. Former Army sergeant Nick Morgan is currently seeking additional medical help and recovering from his head injury. Please consider making a donation today to IVAW’s legal defense fund, or specifically for Nick Morgan’s medical bills. Please make a donation to IVAW today.

Peace,
Kelly Dougherty
Former Sergeant, Army National Guard
Executive Director
Iraq Veterans Against the War

Cry, Lady Liberty !: Countercurrents, Maryam Sakeenah

By Maryam Sakeenah

18 August, 2008
Countercurrents.org

Shortly after the disappearance of young Dr. Afia Siddiqui and her three minor children from Karachi in 2003, the American news channel NBC reported that she had been arrested in Pakistan 'on suspicion of facilitating money transfers for Al Qaeda.' Both Pakistani and US intelligence agencies, however, have since sworn an oath of silence over the issue. Senior Pakistani ministers have denied knowledge of her whereabouts. The Pakistani authorities have, however, insisted that Dr. Siddiqui 'was connected to Al Qaeda,' and that 'you will be astonished to know about her activities.' No evidence of these suspicious activities, however, has ever been shown the light of day.

Lord Nazir Ahmed, British MP, raised the issue in the House of Lords, highlighting the rampant human rights abuse the prisoner was subjected to. He held that this woman prisoner from Pakistan was 'physically tortured and continuously raped by the officers at the prison, to the extent that she had lost her mind.' Soon after, on July 6, British journalist and revert to Islam Yvonne Ridley who authored the book 'In the Hands of the Taliban', appealed to the Pakistanis to secure her release. She said: Today I am crying out for help – not for me, but for a Pakistan woman who you and I have never met, but she is our sister in Islam and she is in desperate need. She has been held in isolation by the Americans in neighbouring Afghanistan. As you know I was also held in Afghanistan, in prison for 10 days at the hands of the Taliban in September 2001. My story made international headlines, front page pictures and major stories on television. I was released on humanitarian grounds without charge even though I was guilty of entering the country without a passport or visa.But there has been not one word, not one paragraph about Prisoner 650 – the Grey Lady of Bagram … a murderous detention facility under the control of the US Military and intelligence services. I call her the Grey Lady because she is almost a ghost, a spectre whose cries and screams continue to haunt those who heard her."

Yvonne Ridley quoted from former Guantanamo detainee Moazzam Beg who authored 'Enemy Combatant', in which he recounts: "I began to hear the chilling screams of a woman next door. My mind battled with questions I was too afraid to ask. What if it was… my wife? Eventually I did agree to say whatever they wanted me to say, to do whatever they wanted me to do. I had to finish it. I agreed to be their witness to whatever. At the end of it all, I asked them, "Why have you got a woman next door?" They told me there was no woman next door. But I was unconvinced. Those screams echoed through my worst nightmares for a long time. And I later learned in Guantánamo, from other prisoners, that they had heard the screams, too, and believed it was my wife. They had been praying for her deliverance." Other detainees from Bagram have attested to the same. In an interview on TV, a former Bagram detainee confirmed he had heard a woman's screams, and also that he had seen her. He told that the other prisoners in Bagram had gone on hunger strike for six days to pressurize those in charge to stop torturing the woman. Yvonne Ridley continued: "Today I am making a demand that the US military hands over the Grey Lady immediately. We do not know her identity, we do not know the state of her mind, we do not know the extent of the abuse or torture. What I do know is that this would never happen to a western woman – what is wrong with the US military? Don't they value a Muslim woman, is her life worthless, does she not deserve to be treated with respect? In truth I don't think any of us with a conscience can rest until she is released. Sadly, she is not the only one."

Weeks later, due to the overwhelming media attention on the issue, a frail, battered, badly wounded and immobilized Dr. Afia Siddiqui was produced in a US court. Her Lawyer Elizabeth Fink stated: "She is complaining of abdominal pain. She understands she lost part of her intestine, and suffers from continual intestinal bleeding. She has been here, judge, for one week and she has not seen a doctor, even though they (U.S. authorities) know she has been shot." In view of the fact that Dr. Siddiqui had a serious wound in her abdomen and stitches all the way up her torso, the judge ordered that she must immediately be seen by a doctor. The explanation offered for the enormous and untreated bullet wound in her abdomen was that she had been 'allegedly trying to fire on a group of U.S. troops who had come to question her in an Afghanistan prison.' How a woman who could not even move, let alone walk, talk or even lift a gun shoot straight at an armed security officer defies any explanation. Ridiculously, the U.S. prosecutor told the court in an effort to explain, that this was 'a complicated situation,' and because of her 'alleged attack on an American officer', the decrepit woman was considered a 'high-security risk.' The US authorities pull a straight blank regarding the whereabouts and condition of Dr. Siddiqui's three minor children. There have been conflicting statements about whether they are alive and if so, where. While the unforgivable brutality inflicted on 'Prisoner 650' has been shamelessly justified on the grounds of her 'suspected involvement with Al Qaeda', no amount of 'logical discourse' or 'legal argument' can ever attempt to justify how and why her baby and two toddler sons have been 'punished.' So much for America's commitment to fundamental Human Rights and basic justice.

And yet, there are those who would jump in defence of this naked viciousness and barbarism, those sitting on high seats in prestigious offices of the great and mighty empire of the United States of America. Ms. Anne Patterson, US ambassador to Pakistan writes: "Ms. Siddiqui is accused of seizing a weapon and firing_ unprovoked_ on US personnel during questioning… At no time was Ms. Siddiqui mistreated or abused in any manner whatsoever… The United States has no definitive knowledge as to the whereabouts of Ms. Siddiqui's children… She is charged in a criminal complaint filed in New York with one count of attempting to kill US officers and employees, and one count of assaulting US officers and employees. If convicted, she faces a sentence of 20 years in prison on each charge."

After 9/11, the United States granted exclusive powers to the Executive to detain suspected terrorists for indefinite periods, denying judicial review of evidence on the basis of which a suspect is detained. The appalling truth, however, is that despite years of detention, the investigating authorities have utterly failed to produce any tangible evidence about involvement in terrorism, except for a minuscule percentage. The evidence found, however, in most cases, only proved that a number of detainees were being held without having any past record of links to terrorism, on the basis of mere suspicion.

With the issuance of John Yoo's famous 'torture memos', certain methods of torture for interrogation of suspected terrorists were also licensed. These "torture memos," advocate enhanced interrogation techniques. They attempted to make these war tactics acquire legality by refuting the Geneva Conventions altogether, so that violating them was no longer required. The government has authorized coercive interrogation methods publicly for non US citizens detained outside the US. For this purpose, the State has sent foreign terror suspects to locations outside the US where coercive interrogation (even involving torture in most cases) can be carried out. The US government holds an undisclosed number of detainees (presumably over 2000) at undisclosed locations. The CIA and FBI as a matter of course hand suspects over to foreign intelligence services for intensive interrogation. One US official was reported to have said, "If you don't violate someone's human rights some of the time, you probably aren't doing your job."

In 2004, horrifying images from Abu Ghraib prisons in Iraq were released into the media showing humiliation and abuse of prisoners. Shortly after, similar information about widespread prison abuse at Bagram prisons in Afghanistan was revealed. It afforded a glimpse into the inhuman barbarity unleashed on suspects and detainees that had been going on unabated behind the scenes.

The fact remains, however, that the Geneva Conventions signed and ratified by the US prohibit torture of prisoners of war even if obtaining information can save lives. The evidence that torture has in fact been used in US prisons has steadily built up revulsion in the public mind regarding the USA's counter terror strategy and its unscrupulous conduct. President Bush, however, remained on denial amidst allegations of the use of torture: "The United States of America does not torture. And that's important for people around the world to understand."

Military lawyer Alberto J. Mora reported that policies allowing torture methods were officially handed down from the highest levels of the administration. ABC News reported on April 9, 2008 that "the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency."

According to the New York Times, "What happened at Abu Ghraib was no aberration, but part of a widespread pattern. It showed the tragic impact of the initial decision by Mr. Bush and his top advisers that they were not going to follow the Geneva Conventions, or indeed American law, for prisoners taken in antiterrorist operations. The investigative file on Bagram showed that the mistreatment of prisoners was routine: shackling them to the ceilings of their cells, depriving them of sleep, kicking and hitting them, sexually humiliating them and threatening them with guard dogs -- the very same behavior later repeated in Iraq."

Steven C Welsh writes: "Under the Geneva Convention it is the United States as a nation which must confront its responsibility for the actions of the men and women representing it in its prisons."

The horrendous exposition of unabated use of the vilest torture on detainees, the latest of which that has come to light is the nightmarish tale of Dr. Siddiqui has left ugly, deep scars reaffirming the image of the US as a state not befitting of its gigantic role in world politics. With leadership comes responsibility. Abu Ghraib, Bagram and the suffering of Afia Siddiqui has taught us that the 'saviours' are no better than the 'terrorists' they fight. The gaping black hole of moral depravity at the heart of the War on Terror stands exposed. Perhaps uglier still is the façade of a superior civilization that the US chooses to put up, and to which Ms. Anne Patterson chooses to play along: "The US justice system is based on the abiding principle that defendants are innocent until proven guilty… We would encourage you to remain open-minded but skeptical of sensational allegations that have no basis in fact." Ms. Patterson's 'blind spot' towards the utterly miserable physical, emotional and mental state of Dr. Siddiqui who is as of yet legally unconvicted is only too obvious.

Prominent writer Bob Herbert rejects attempts at 'making over' the ugly face of the U.S like Ann Paterson has chosen to do: "... There is also the grotesque and deeply shameful issue that will always be a part of America's legacy -- the manner in which American troops have treated prisoners under their control in Iraq, Afghanistan and Guantánamo Bay, Cuba. There is no longer any doubt that large numbers of troops responsible for guarding and interrogating detainees somehow loosed their moorings to humanity, and began behaving as sadists, perverts and criminals."

Abdul Malik Mujahid, understanding the degeneracy of a civilization represented through the horrors at US 'anti-terrorist' detention camps in an Islamic context, laments the loss of what Islam calls 'haya' in the West. 'Haya' implies an inner sensibility creating a sense of aversion from what is evil, obscene and indecent. It is a retraining influence that keeps the distinction between right and wrong, not letting it blur into a mishmash of confused morality. The Prophet of Islam (SAW) called it the 'distinctive feature of Islam.' Mujahid comments: "The photos of American soldiers abusing prisoners have stunned and disgusted the world. While such images shocked America, most Americans may not be able to comprehend what type of cultural threshold has been crossed in terms of dealing with Islam and Muslims. In a culture that sometimes values life less than honor, we have done the ultimate act of dishonoring people. May God forgive us. There certainly is a big cultural gap in the way people in the West deal with modesty and privacy of the body, and the way individuals in the Muslim world do, regardless of their level of Islamic practice. This Islamic sensibility of considering the human body part of a very personal realm is connected to the concept of honor, dignity and privacy. This should explain the deep pain, shock and horror over the nightmare of physical abuse and perverted sadism that went on in Abu Ghraib, (and that has victimized Dr.Afia Siddiqui and others like her). Unlike what some in America lead us to believe, no one hates America in the Muslim world because of democracy and freedom. It is the immorality of America (championed by Hollywood), along with American foreign policy which defines the conflict between the Westernized elite and religious elements in Muslim societies. Graphic images of this criminal behavior by some members of the most organized and educated army of the only superpower in the world are bound to become the most dominant images of this new "Crusade" in the collective psyche of Muslims."

Bush, Karadzic, de Veillepin and the ICC: Scoop

by Peter Dyer

Q: What do Radovan Karadzic, former French Prime Minister Dominique de Veillepin and George W Bush have in common?

A: Each lives under the slowly growing shadow of a body of international criminal law.

This law is evolving towards the ultimate goal of holding even the most powerful leaders personally accountable for crimes committed by the State.

It is manifested in international agreements and statutes such as the Geneva Conventions, case law, two ad hoc war crimes tribunals (Yugoslavia and Rwanda), and a permanent International Criminal Court.

Radovan Karadzic, former Bosnian Serb President, has been arrested and now awaits trial in The Hague before the International Criminal Tribunal for the former Yugoslavia (ICTY) on charges of genocide and crimes against humanity.

Dominique de Veillepin is one of 33 French military and political leaders who have recently been accused by the Rwandan government of arming, advising and in some cases, directly participating in genocide and crimes against humanity in Rwanda in 1994.

George W Bush ordered “Operation Shock and Awe”-the unprovoked invasion and occupation of Iraq- presenting the world with a clear prima facie case of aggression.

Aggression, in the words of the judgment delivered at the first Nuremberg Trial, is “the supreme international crime”.

Personal accountability by state leaders for the crime of aggression-initiating an unprovoked war-is the most profound as well as the most difficult goal of the continuing evolution of international criminal law.

For this reason, and because Mr Bush is head of the world’s most powerful state, clearly the shadow of the law is at present less ominous to him than to Mr Karadzic or perhaps to Mr de Veillepin.

But there is no statute of limitations for any of these crimes. Things change over time, often unpredictably. And the international community has been working steadily towards this difficult goal for decades.

No doubt the work will continue.

Although the effort to hold leaders personally responsible for crimes of state goes back to the late 19th century, the first significant watershed was the 1946 judgment of the first Nuremberg trial.

A panel of judges from the US, UK, France and the Soviet Union held German leaders personally responsible and punished them for crimes of state, including aggression.

The roots of the Yugoslavia and Rwanda Tribunals are largely in Nuremberg as are those of the International Criminal Court, although neither ad hoc tribunal charter included aggression.

One of the most significant achievements of the Yugoslavia Tribunal was the first ever indictment of an acting head of state, Yugoslav President Slobodan Milosevic, for crimes committed while still in office.

According to the ICTY web site,

“…the question is no longer whether leaders should be held accountable, but rather how can they be called to account.”

A major problem with the two courts was that they were each temporary responses to a specific set of separate circumstances which had considerable legal overlap. The ad hoc approach was clearly limited by issues of logistics, expenses and repetition, many of which could have been more effectively addressed by a permanent court.

The achievements of the two tribunals as well as their limitations gave new impetus to the decades-old effort to establish a permanent International Criminal Court.

On 18 July, 1998, the great majority of countries of the world voted in Rome, 120 to 7 with 21 abstentions, to establish the International Criminal Court. With the signature and ratification of 60 states, including New Zealand, the International Criminal Court came into being on 1 July, 2002,

Six years later, as of 1 June, 106 countries have ratified the Rome Statute. Written into the Statute is a provision for member states to meet seven years after the entry into force (2009) to consider amendments.

Because the Statute is the result of decades of evolution and five weeks of intense negotiations between 148 countries, it is full of compromises. Even so, it is remarkable.

Never before has the world community united to create an institution invested with legal authority to write, adjudicate and enforce international criminal law. And, despite compromises, it is remarkable for the degree to which so many were able to agree on some basics.

Most important among these is a set of “core crimes” over which the Court has jurisdiction. These are: 1) genocide, 2) crimes against humanity, 3) war crimes and 4) aggression (the waging of aggressive war).

Unfortunately, the Rome conference was unable to agree on a definition of aggression. Unwilling to leave out “the supreme international crime” containing within itself the “accumulated evil of the whole”, the conference compromised, including aggression but leaving it undefined in anticipation of a future amendment defining the crime and setting out conditions for jurisdiction.

One of the weaker aspects of the Statute is, of course, enforcement. As American Professor Leila Nadya Sadat, a delegate to the Rome conference wrote:

“Here classic paradigms of sovereignty in which each state is master of its territory prevail…The ICC’s ability to effectively enforce international criminal law remains an open question.”

Unfortunately, a major obstacle to the ICC, enforcement and otherwise, has been the United States. The US was one of seven countries which voted against the Statute—part of a list which included Iraq, Libya, Israel, Qatar and Yemen. Despite the vote, President Clinton signed the Statute on December 31, 2000.

Less than two years later President George W. Bush “unsigned it”.

Other countries such as Russia and Egypt have signed but not ratified the Rome Statute. Still others such as China and India remain opposed.

If major countries such as Russia, China, India and especially the US ever do decide to join and throw their considerable weight behind the ICC here are a few examples of what the organization may eventually be capable of:

1)”Treaty crimes” such as hijacking and narcotics trafficking, while not yet covered by the Statute, are slated to be discussed and hopefully defined and amended into the Rome Statue as early as 2009.

There would be an international institution with the legal power to apprehend, try and punish future Osama Bin Ladens without the catastrophic destruction and waste of war.

2) The genocide visited by Saddam Hussein upon the Iraqi Kurds (1984-1991) perhaps could have been stopped, or at least punished upon authorization by the Security Council.

3) Assuming that aggression is eventually defined and fully included in the Rome Statute, those who initiate wars of aggression, such as the U.S. invasion of Iraq, will do so knowing there is at least the legal possibility of arrest, trial and prison.

Ironically the United States led the way in establishing the precedent for this when the Allies at Nuremberg tried and punished Germans for aggression and other crimes. At the moment the prospect of an American president sitting in the dock of the International Criminal Court seems remote.

It should be remembered, however, that in 1973, nobody would have believed that 33 years later General Augusto Pinochet would die under house arrest in Chile, facing trial on charges of human rights abuses, including kidnapping and murder, committed during the dark days of Chile’s military government.

A lot can happen in three decades. Leaders come and go. Power ebbs and flows. National and international perspectives and relationships change.

Imagine the chilling effect the real prospect of arrest, trial and prison for starting a war would have on a head of state considering aggression. Such a simple and powerful deterrent could move humanity significantly closer to realizing the original vision of the United Nations: a world without war.

There simply can be no lasting peace without justice. To quote Professor Sadat, “

As humanity struggles to overcome its darkest impulses in this new millennium, impulses that led not only to the slaughter of hundreds of millions during the 20th century, but threaten our very survival, the creation of effective international institutions and regimes is essential…to transform the prohibitions on the commission of genocide, war crimes, crimes against humanity and aggression into real tools to deter the cruel and powerful.”

Next year in New York the ICC Special Working Group on the Crime of Aggression is scheduled to conclude their work on a definition of aggression for inclusion as an amendment to the Rome Statute.

A review conference of the full ICC Assembly will convene in 2010 to consider this and other amendments.

The work continues.

*************

Freedom Rider: Obama Pardons Bush

Freedom Rider: Obama Pardons Bush
Presidential Politics 2008 - Obama
Wednesday, 30 July 2008

by BAR editor and senior columnist Margaret Kimberley

There will be no need for George Bush to pardon himself and his fellow criminals. Barack Obama promises to let the "W Gang" off, scott-free, when he takes over the White House. Impeachment? Heavens, no!

"That is not something I think would be fruitful to pursue because I think
that impeachment is something that should be reserved for exceptional
circumstances,"

says Obama, apparently in the belief that Bush's behavior has been routine for an American president. Obama surrogates say bipartisanship should decide the question of investigating current and past presidents. In other words, Obama will let the Republicans decide if Bush gets away with murder. "So Bush crimes will be buried by a Democrat."

Freedom Rider: Obama Pardons Bush
by BAR editor and senior columnist Margaret Kimberley

"Obama will never investigate the Bush administration's well documented
criminal activity."

Barack Obama, like previous presidential candidates before him, is very good at sucking up. The candidate who sucks up best to the largest number of wealthy donors and check bundlers usually becomes the party nominee. Obama is no exception to that rule. The Senator would never have been able to launch a successful presidential race if he did not already have buy-in from very rich, very powerful people. Not only did he have to secure their support in order to run, he must continue securing it in order to win. That is why he will never investigate the Bush administration's well documented criminal activity. The rule of law doesn't apply to presidents, to their cabinet members, to members of Congress or to criminal corporations. Obama's backers would be most unhappy if they thought their guy was going to get into office and start calling powerful people to account on any issue.

"Obama is a genius at double talk."

All of which means that Barack Obama will never investigate any of the crimes committed in the Bush administration. When pressed because of the long campaign against Hillary Clinton, Obama was sometimes forced to give an appearance that he would actually preserve, protect and defend the constitution if he became president. The Senator spoke on the issue himself in April, and once again proved that he is a genius at double talk:

"What I would want to do is to have my Justice Department and my Attorney
General immediately review the information that's already there [emphasis mine]
and to find out are there inquiries that need to be pursued. I can't prejudge
that because we don't have access to all the material right now. I think that
you are right, if crimes have been committed, they should be investigated.
You're also right that I would not want my first term consumed by what was
perceived on the part of Republicans as a partisan witch hunt [emphasis mine]
because I think we've got too many problems we've got to solve." What kind of
investigation pursues only what is already known? It seems that Obama would
investigate only what he wouldn't have to look for, but not so much that
Republican sensibilities would be bruised. In other words, he won't try to find
wrong doing. If he did, he might have to take action and he is telling us in no
uncertain terms that he has no intention of doing that: "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 [emphasis mine] -- 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. You know, I often get questions about impeachment at town
hall meetings and I've said that is not something I think would be fruitful to
pursue because I think that impeachment is something that should be reserved for
exceptional circumstances. Now, if I found that there were high officials who
knowingly, consciously broke existing laws, engaged in coverups of those crimes
with knowledge forefront, then I think a basic principle of our Constitution is
nobody above the law -- and I think that's roughly how I would look at it."

Again Obama emphasizes that he would look at what we know "right now." It is also worth noting that while Obama says "nobody is above the law," he doesn't say what he would do if he actually discovered that deliberate law breaking took place. Keep in mind that this parsed statement took place when he was still in the midst of a democratic campaign when he was trying to make the case that he was the progressive candidate. After Hillary Clinton's campaign ended he no longer had any need to pretend he was progressive. The FISA double cross was the first signal that the end of his need to win Democratic votes meant the beginning of his take no prisoners march to the political sea."

Obama has no intention of exposing Bush administration crimes."

Obama took a well deserved beating from angry supporters after he openly supported Bush and telecom industry law breaking. The brief moment of challenge was enough to make Obama leery of speaking for himself when he knows he is wrong. He now sends surrogates to tell us that he has no intention of exposing Bush administration crimes. Cass Sunstein is a friend of Obama, a law professor at the University of Chicago and new husband of former Obama aide Samantha Power. Lately he has been the Obama campaign go-to-guy on the issue of Bush criminality. Sunstein's job is to tell us to shut up and let Obama let Bush off the hook. Sunstein is also nervous about pursuing the law breakers. The professor thinks that only the commission of "egregious" crimes ought to be considered for investigation. The argument can be made that any crime emanating from the White House is egregious in and of itself. But Sunstein considers that point of view to be overly "emotional." He thinks that outraged citizens ought to just chill out and accept government torture, spying on citizens and lies used to start wars.

"So I guess I'm saying that emotions play an important role in thinking about
what the legal system should be doing. But under our constitutional order, we go
back and forth between the emotions and the legal requirements, and that's a way
of guaranteeing fairness. And as I say, very important to have a degree of
bipartisanship with respect to subsequent investigations [all emphasis mine]."

"Bush's crimes will be buried by a Democrat." Even Republicans expect Democrats to maintain and perhaps increase majorities in both houses of Congress. A Democratic president with a Democratic congress should not have to be bipartisan about anything he wants to pursue. The call for bipartisanship is a ruse, it is a call for doing nothing. So Bush crimes will be buried by a Democrat. We will never know what the government knew on September 11, 2001. We will never know the extent of spying on American citizens. We will never know about the manipulation of intelligence used to justify the invasion of Iraq, which violated the Geneva Conventions and universally accepted international law. We will never know what the Bush administration told Nancy Pelosi and Harry Reid, their partners in crime. We will never know anything we should know because the system won't permit that to happen.

Margaret Kimberley's Freedom Rider column appears weekly in BAR.

The Crime Behind the Criminal Wars!:

Why is Habeas Corpus Such a Threat to those in Power?

By Maher Osseiran

03/08/08 "TPP" -- Why is the Supreme Court's decision to uphold habeas corpus rights for the Guantanamo detainees so scary that Senator Lindsey Graham, with the support of McCain, will "explore the possibility, if necessary, of a constitutional amendment to blunt the effect of this decision"?

What is so fundamentally wrong with the Supreme Court's decision, whose members are conservative or Bush appointees, to warrant amending our constitution? Have Senators Graham and McCain lost their minds?

I just finished reading a lengthy "friend-of-the-court" brief to the Supreme Court in support of petitioner Boumediene v. responder Bush, et al., a case resulting in a decision that reinstate habeas corpus rights, not just for the detainees, but for all Americans.

As a brief to the Supreme Court, the argument and the conclusion were primarily based in constitutional law and precedent.

A similar brief to a habeas corpus court that would review the legality of detaining the Guantanamo prisoners would undoubtedly take a different form or approach what the writ of habeas corpus has always ensured: that an independent court can inquire into the legal and factual bases for the Executive's assertion of its power to imprison. This guarantee has always included a meaningful judicial evaluation of the law and facts that underlie the Executive's asserted basis to detain.

Other than the meaningful judicial evaluation of the law and facts, a non-military tribunal would make it easier for a detainee to produce exculpatory evidence, evidence that would exonerate him or her; actually, anyone can produce such evidence and anyone can inject it into the court proceedings simply by providing it to any party.

Such exculpatory evidence is abundant and has been in the hands of U.S. Attorney Patrick Fitzgerald, governors, members of congress such as Conyers and Graham, the judiciary committees to the House and Senate, and a variety of law authorities that have jurisdiction as early as 2005; I know that for fact since I placed it there but no investigations resulted.

In February of 2007, Dr. James Zogby of the Arab American Institute, after familiarizing himself with my work, found it imperative to contact Conyers directly and received assurances, conveyed to me by email, that an investigation would proceed in due course; Conyers is still missing in inaction.

The evidence was uncovered when I decided to authenticate the videotape released by the Pentagon on Dec. 13, 2001, a videotape in which bin Laden was confessing to 9/11. My suspicions about the tape quickly materialized but it took close to a year to distill the information in to a format that would stand in a court of law.

The authentication work, the only work of its kind put forth in the public domain, unveiled the most heinous crime ever committed by a sitting president whose victims not only include the detainees in Guantanamo except for a handful, but the untold number of dead and maimed Afghanis, Iraqis, American citizens and soldiers who have died in this fake "war on terror".

The authentication work revealed that the taping of the bin Laden confession was the result of a sophisticated sting operation run by U.S. intelligence with the help of Saudi intelligence and was taped on September 26, 2001, barely two weeks after 9/11 and ten days before the invasion of Afghanistan.

According to the UN charter, "

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered."

Even though the Bush administration had the evidence that bin Laden was responsible for the 9/11 attacks as early as September 26, 2001, such evidence was only shared with those who were important for the execution of their war, such as NATO and Pakistan, and kept away from those sane entities who were looking for a just and peaceful outcome as the UN Charter dictates.

The Bush administration, with premeditation, ignored its international obligations in deference to war. If the Bush administration had supplied the evidence to the world and specifically the Taliban who were requesting such evidence in exchange for bin Laden, the war might not have taken place and bin Laden would very likely be in custody.

Not pursuing that route makes the Afghanistan war an illegal war under the UN Charter and The Geneva Convention; thereby, the majority of the Guantanamo detainees can no longer be classified as enemy combatants but victims of war crimes.

These findings, which were shared with various authorities, were summarized in the "The Crime Behind the Criminal Wars!".

The authentication work also shows that the Bush administration, with premeditation, aided and abetted bin Laden after 9/11 far beyond any aid your average Guantanamo detainee could have ever provided to Al-Qaeda or bin Laden. There are also very strong indications, worthy of serious investigation, that the Bush administration was very aware of the 9/11 operations beforehand and allowed them to happen or even helped in making them happen. This argument was summarized in "Is Bin Laden Responsible for the 9/11 attacks?"

As a consequence of these findings, those handful of detainees who are charged with the more serious crimes, after review and a proper fact finding by a habeas corpus court, would have those charges against them dismissed only to be re-arrested and appropriately charged with less serious offenses; the rest of the detainees would have to be released.

The same court, and the public at large, will reserve the more serious offenses to high-ranking officials in the Bush administration, including the president.

By not acting in 2005 on the information received, Conyers and congress dug themselves a hole that kept getting deeper as time went by. The implications of the findings are very serious and the remedies go beyond those implemented after Water Gate and might prove to be the remedies that would help us reclaim our democracy.

The fundamental and positive change in how our democracy functions is what Senator Lindsey Graham, John McCain, and others in power are afraid of; a fear worthy of a constitutional amendment.

Their fear is genuine because, unlike other evidence in the public discourse of the Bush administration's abuse of power, which the administration and its supporters have been able to duck, this evidence is solid, all in the public domain, the majority of which the administration mistakenly placed there, it cannot be taken back, it cannot be spun, it is intact and most importantly, will remain so.

I am told that proper investigations would start after Bush leaves office. I do think though that no one should be above the law and no criminal should be given special consideration, especially those who hold public office, otherwise we are simply a nation of outlaws.

Maher Osseiran is an Arab-American peace activist. As a close observer of the Middle East, Maher's geopolitical analysis is always ahead of many in big media. As an engineer who worked in research, he uses his technical abilities to write investigative articles exposing one of the most serious crimes of the Bush administration, his work is published in print in The Lone Star Iconoclast, Crawford, TX, and on the web at www.mydemocracy.net

Click on "comments" below to read or post comments

Comments (8) Comment (0)

Comment Guidelines
Be succinct, constructive and relevant to the story. We encourage engaging, diverse and meaningful commentary. Do not include personal information such as names, addresses, phone numbers and emails. Comments falling outside our guidelines – those including personal attacks and profanity – are not permitted.
See our complete Comment Policy and use this link to notify us if you have concerns about a comment. We’ll promptly review and remove any inappropriate postings.

Send Page To a Friend

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. Information Clearing House has no affiliation whatsoever with the originator of this article nor is Information ClearingHouse endorsed or sponsored by the originator

Some Legal Counsel Appear To Have Prematurely Decided To Take Geneva-Nuremberg-Alstoetter Off the Table

Someone left a very thought provoking comment which prompts a special discussion. Before we directly discuss the comment, let's outline some assumptions which others may or may not agree.

The American people deserve to see the American government held to the
legal standards imposed at Nuremberg. Then we will know whether people
are serious about "never forgetting" something.

The following is presented not as a statement of policy or law, but as a starting point for this discussion about the comment. Others are most likely approaching these issues from different assumptions and premises.

Simplistically, the laws of war are part of the Geneva Conventions, and enforceable through the oath of office as the Supreme Law through the US treaty obligation. Let's talk about the Constitution, oath of office, and Federalist Papers which support this assertion.

Let's review some important parts of the Constitution under the "plain meaning rule," and merely discuss what a casual observer might say about Geneva, the duty of elected officials to enforce the laws of war, and how the oath of office minds local officials to enforce the same.

Let's start with the oath of office requirement in the US Constitution, and put aside the specific language of the oath of office. Article VI, (arguably) shows the Supreme Law includes treaty obligations, the laws of the US:

Article VI: "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;"

Others may have the view the oath of office does not include, as the Supreme Law, the Geneva Conventions. We view this position as illegal and outside what Nuremberg established.

Let's quickly discuss our reasoning. Here's the rest of the Constitutional language showing the oath of office binds the elected officials:

"The Senators and Representatives before mentioned, and the members of
the several state legislatures, and all executive and judicial
officers, both of the United States and of the several states, shall be
bound by oath or affirmation, to support this Constitution"

Implicit within that promise -- to be "bound by oath" to support "this" Constitution -- is the the clause of the Supreme Law. The Constitution is the collective document which includes the language of the Constitution itself, the laws made under the Constitution, and the Supreme Law attached through the oath to that Constitution.

Others in DOJ may have the view that the oath does not expressly include all treaties; and that the President, by his determination, can decide that the oath of office does not relate to a treaty because the Preident can "determine" a treaty is not applicable. This is a legal position for the DOJ and US Attorneys to argue explicitly, not for us to speculate about as a reason to explain away an effort to fully enforce Geneva against the US Attorneys.

We do not support this view that treaty obligations are discretionary items; nor do we view Members of Congress as having discretion whether to take action because of the oath of office requirement.

Let's consider the oath office for Members of Congress, which is slightly different than that for the President, judicial officers, and US Attorneys. 5 USC 3331

5 USC 3331: "An individual, except the President, elected or appointed to an office
of honor or profit in the civil service or uniformed services, shall
take the following oath: 'I, AB, do solemnly swear (or affirm) that I
will support and defend the Constitution of the United States against
all enemies, foreign and domestic; that I will bear true faith and
allegiance to the same; that I take this obligation freely, without any
mental reservation or purpose of evasion; and that I will well and
faithfully discharge the duties of the office on which I am about to
enter. So help me God.' This section does not affect other oaths
required by law."

Above, we've established the Constitutional oath of office requirement in Article VI includes the oath to the Supreme Law, not just the Constitution itself. It is an error to pretend the Constitutional language only includes the Constitution, but does not include either the US laws or the treaty obligations.

Here's the interesting problem: If you review the case law for the terms. there's nothing that obviously jumps out:

(1) "Treaty" and

(2) "shall be bound by oath or affirmation, to support this Constitution"

This suggests that it's untested whether the oath of office does or does not include treaty obligations. We view that conclusion as absurd, but expect the DOJ to fully argue this point, regardless the Nuremberg precedents.

Federalist 44 sheds light on what "Supreme" means: It distinguishes the Constitution of the Federal Government from the State government. Federalist 44 shows us the Framers intended for the State officials to be bound to the Federal Constitution, and have the duty to enforce the US Constitution within the State:

Fed44: "The members and officers of the State governments, on the contrary,
will have an essential agency in giving effect to the federal
Constitution."

This cannot mean that the State officials, upon seeing the US government ignoring the US Constitution, are obliged to also ignore the Supreme Law. Judge Vaughn Walker stated as such in one of his FISA-related orders:

Walker wrote that while states are barred from “meddling” with federal government activities “this rule does not, however, oblige special treatment"

This suggests the Framers intended for the oath of office to include the treaty obligations under the Supreme Law, and not as a discretionary, optional, or urnelated to their legal duties.

Let's consider this language from the Nuremberg case, expreslly stating that there is a linkage between prosecution-impeachment decisions; and the civilized status of society. Inaction on both would suggest a failed state:

US v. Alstötter: "Under any civilized judicial system he could have been impeached and removed from office or convicted of malfeasance"

Notice the title of the case, and the prosecution is the United States, decided 1948:

The Nuremberg Trials: The Justice Trial
United States of America v. Alstötter et al. ("The Justice Case") 3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948)

This suggests the United States, as the prosecuting power, has established a link with Nuremberg; and that all oaths and comments about the Supreme Law must attach to the United States actions at Nuremberg. Conversely, this could not mean that the United States statutes which ignore Geneva requirements are inadequate, and fall short of the Geneva-Nuremberg-Alstötter requirements.

If these requirements are not met, arguably the American leadership could be subjected to subsequent charges for failing to fully enforce Geneva; not investigating violations of Geneva; and not fully codifying, as required, all war crimes requirements appliable to the United Staates.

Whether the enemy is or isn't a signatory to Geneva is irrelevant. The legal obligations attach to the United States, as a leash, as a signatory power; wehther the US recognizes a combatant-prisoner-enemy does or does not have a shield is secondary, and urelated to the legal requirements attached to the leadership.

There should have been an oversight mechanism, auditing, and timely reviews to Congress on whether US combat operations were or were not fully complying with Geneva. This was not prospectively done, but appears to have only occurred because of disclosures about video tapes and POW mistreatment. Without prospective or retroactive oversight of all Geneva-Nuremberg issues, Members of Congress have a problem, especially in removing impeachment from the table.

Part II: Considering the Comment

Here is the comment which warrants this special attention, and multiple links above:

Lux Umbra Dei (not well supported) "can I recommend for you the Balkinization site (where I hale from)? These issues are talked of there at length."

"I think you should reflect on the advisability of using Nuremberg, Alstoetter, or GC3 or for that matter any CIL for the bringing to trial of the main actors."

"There are formidable legal barriers that pretty much nullify any of those approaches."

After careful review, we're not convinced about anything in the comment. We discuss the reasons for not narrowing the legal analysis to only US statutes; and why, in our view, other factors have not been adequately nullified.

Regardless the US position on the ICC, DOJ OLC memos well state the risk of prosecutions against US persons in victim's courts.

If there are gaps in the legislation, those need to be fixed, but that is not a bar to enforcing Geneva.

Let's break the comment down and examine the issues raised. First, this comment is very vague, and doesn't adequately address anything specific, nor does it point to specific comment threads or content on the recommended site:

Lux Umbra Dei (vague): "can I recommend for you the Balkinization site (where I hale from)? These issues are talked of there at length."

The vague comment prompts the following response:

You may be correct that the site referenced discusses the issues, but that's not an argument. Specifically, the comment "should reflect on the advisability" implies that someone else -- unknown -- has raised these issues, and has a reasonable argument, discussion, or comment. That may exist, but the "advisability" of doing or not doing something isn't linked with a specific discussion, comment, or argument. It may be there, but it would have been preferable to construct the argument with specifics, than vaguely point to a site withut providing specifics.

The next part of the comment says [added]:

Lux Umbra Dei (no basis): "I think you should reflect on the advisability of using Nuremberg, Alstoetter, or GC3 or for that matter any CIL for the bringing to trial [any ] of the main actors."

The basis for this assertion is unclear. The above information about the oath of office, Supreme Law, and Federalist 44, suggests there are some compelling reasons to attach Geneva, as part of the Supreme law, to the legal requirements attached to members of Congress and their oath of office. This implicates the US Statute; and is the bridge between the US Statute and the larger war crimes enforcement requirements springing from the Justice Trial: Prosecuting Judges and lawyers who refuse to enforce the laws of war.

Arguably, because the US Republic separtes power, the duty to enforce the laws of war is jointly shared by the judges, executive officers, and Members of Congress. Just as Nuremberg retroactively explained standards -- new laws -- which people "should" have known they should have complied, so too should we in 2008 discuss the inherent standards of Geneva Members of Congress should have known would attach to them if they refused to investigate, impeach, or call for investigations.

Assuming these cases are prosecuted in US courts, let's consider who would have the responsibility to prosecute these cases againt American officials: DOJ-connected US Attorneys. This is the inherent problem connected with this comment:

Lux Umbra Dei (vague, inexplicable): "There are formidable legal barriers that pretty much nullify any of those approaches"

We're asked to believe that there are "formidable" barriers that "nullify" "any" of these approaches. That doesn't make sense.

1. We've got nothing specific to justify believing that there is anything specific that would or would "nullify" anything;

2. The people who are (apparently) arguing for inaction are there very people who would have the responsibility to prosecute the cases: GOP-connected US Attorneys;

3. We have nothing to show us why the factors -- Geneva, CAT, CIL, Geneva Conventions Article III (GC3), Nuremberg, Alstoetter -- have or haven't been addressed;

4. There's no basis to argue that these factors would or would not be nullified. Who says and why?

These sounds like sweeping assertions the DOJ Staff might have made about FISA violations. Let's consider why:

First, Alstoetter is merely the name of the defendant, but the United States as the prosecutor means the United States established through Nuremberg prosecutions the connection between Nuremberg defendants, judicial officer legal requirements to enforce the laws of war, and the oath of office.

Second, the Justice Trial attached to legal counsel and judges penalties for refusing to enforce the laws of war. The US Constitution expressly attached to judicial officers an oath of office linking them to the Supreme Law:

"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. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

Based on the above, the response to this:

Lux Umbra Dei "can I recommend for you the Balkinization site (where I hale from)? These issues are talked of there at length. I think you should reflect on the advisability of using Nuremberg, Alstoetter, or GC3 or for that matter any CIL for the bringing to trial of the main actors. There are formidable legal barriers that pretty much nullify any of those approaches. Start with american statutory law and end there also."

Is:

A. It's not obvious what you're talking about.

B. There's no reasonable basis to ignore Alstoetter, Nuremberg, or GC3 because the United States enforced the laws of war.

This comment is a problem:

Lux Umbra Dei (narrow): "Start with american statutory law and end there also."

This may be the problem: That the US Statute, despite Geneva and Nuremberg, is too narrow. That is irrelevant. The treaty obligation attached through the oath was known and should have been known as the guiding standard. The US prevailed in this argument against the Nazis. Who is asking for an exception?

That assertion needs to be argued, not asserted as an unchallengeable premise for these reasons, among others:

A. The problem is that American statutory law, in the DOJ view, only defines illegal treatment outside the Geneva Conventions. Yet, Geneva bars all abuse. The Convention Against Torture only punishes people for serious abuses, as opposed to "all abuses".

The DOJ OLC memos were explicit in "authorizing" some abuses, which Geneva otherwise expressly prohibits in all cases, regardless the level of abuse.

US laws do not adequately punish for some abuses. Arguing over

(1) whether CAT applies or does not apply is misidirection/a red herring from

(2) whether or not US military and CIA personnel knew or should have known Geneva and Nuremberg expressly prohibit all abuse.

B. There's no basis to say that US prosecutions at Nuremberg are not precedent. Whether Congress has or hasn't updated the statutes is a separate issue. Arguably, teh failure of the Congress to ensure the US Codes fully enforced Geneva could be construed as a subsequent war crime. Congress, in refusing to fully codify Geneva, isn't a defense, but subsequent evidence of wider US government malfeasance.

C. Even if we reject any assertion that Congress is complicit, all DoD officials are trained on the laws of war and Geneva. That DOJ OLC "legalized" some abuse isn't a credible defense. It appears teh DOJ OLC 'legalization" of some abuse is a retroactive, not prospective, opinion.

If DOJ Staff Attorneys and US Attorneys, responsible for prosecuting these cases against Members of Congress, are "not interested" in using Geneva, and "only" want to stick with US Statutes, that is something they need to fully explain, not assert with the presumption it will not be challenged. At the heart of our dispute with the US government approach to war crimes is the failure of the US government prospecitvely going forward from 2001 to adequately ensure Geneva was fully incorporated. The DOJ OLC memos appear more like retroactive afterthoughts to legalizae by using sophistry about CAT as a deliberate smokescreen from whether Geneva does or doesn't apply.

Indeed, their refusal to enforce the laws of war, and not go beyond US Statutes, and failure to fully enforce Geneva-Nuremberg-Alstoetter as required as an attorney requirement under Geneva, could be construed as a subsequent offense, enforceable through the Justice Trial precedent.

In our view, DoJ Staff and US Attorneys are not adequately embracing, as required, the broader legal requirements beyond US Statute in Geneva and the Nuremberg precedents.

Perhaps the above discussion points have been raised on the referenced site. They may be, but there not obvious; nor is it the reader's job to put together the argument of those who are arguing against enforcing Geneva and Nuremberg precedents.

Conversely, if this view is public, then an argument could be made that the DOJ Staff and US Attorneys -- who might prosecute these war crimes cases against Members of Congress in US Courts -- are making public statements about internal deliberations on litigation strategy. If that is the case, then we need to consider whether that internal deliberation has been compromised; and whether Members of Congress are going to get an adequate defense.

Whether the United States does or does not prosecute Members of Congress is, in our view, a separate question than whether Members of Congress are responsible, through the oath of office to the US treaty obligations of the Supreme Law, for enforcing the laws of war.

Please provide specific discussion points from the recommended site when discussing these issues. If they are talked at length, then others might review them in light of the above. If someone has the view that it is or is "not" advisable to use Nuremberg, Alstoetter, or GC3, please discuss:

1. Why are we ignoring the fact that the United States prosecuted the case at Nuremberg;

2. How can we pretend that we can only stay with US Statutes, and ignore Geneva

3. Why are we proposing to exclude from prosecution any charges that are outside the US Statute

4. What is the basis, despite Nuremberg and the US role in prosecuting those cases, for excluding Geneva, Nuremberg, or international law from the prosecution decision.

5. Is there not an inherent conflict in saying there are "formidable" barriers, when those making that argument might be connected with DOJ, and have an interest in inaction?

6. What is the basis to say that the the non-US Statute issues -- Nuremberg, Geneva, CIL, Alstoetter -- should be excluded; and/or that prosecutions against US government officials should only be confined to US Statute?

In our view, the DOJ Staff should not be given a green light to argue, "We don't want to prosecute outside US Statutes," when they have a legal duty to enforce Geneva, Nuremberg, and the precedents connected with the United States war crimes litigation after WWII. This says nothing of the Tokyo War Crimes trials against the Japanese Cabinet.

The possibilty that there might be barriers is the reason to celebrate: We'll have a case in hand to say, "This is what the United States is or is not willing to do despite Geneva." That case -- or inaction -- would be the basis to review the US Prosecutors actions in light of the Justice Trial. The decision to not prosecute is, within Geneva-Nuremberg-Alstoetter, is reviewable as a subsequent violation under the laws of war. DOJ OLC and the President view each standard as discretionary. That is not a credible defense or premise, but evidence of recklessness.

It appears to be circular and premature to narrowly argue that Geneva-Nuremberg-Alstoetter should be removed as legal benchmarks. Rather, as with impeachment, the decision to remove that legal standard could be construed as a subsequent offense. In the case of impeachment, it is arguably a violation of the oath of office to remove impeachment as an option when the Framers in Federalist 77 expreslly said impeachment would be "at all times" an option.

Similarly, we cannot -- now, before an investigation or prosecution -- credibly argue or believe that Geneva-Nuremberg-Alstoetter should be removed out of a speculative fear; or that there might be "formidable" barriers. That is an argument the DOJ Staff and US Attorneys need to make, not others blindly accept as a possibility. If that's their position, then we need to use that decision as a basis for a subsequent charge against them under the Justice Trial precedent.

Alex Constantine on * The Fascists Among Us -

* The Fascists Among Us -

http://alexconstantine.blogspot.com/2008/07/fascists-among-us.html

By Dennis Jensen

The Rutland Herald

June 11, 2008

"But are there not many fascists in your country?"

"There are many who do not know they are fascists but will find it out when the time comes."

” Ernest Hemingway, For Whom the Bell Tolls

I was going through some old newspaper clips the other day and found a long feature piece I wrote in 1990 about a man who I have come to regard as one of the great Americans of the 20th century.

His name was George Henry Seldes, a fiery, muckraking newsman and Vermonter who covered some of the greatest stories of his time.

Seldes, who wrote more than 20 books and worked well into his 90s, lived and wrote in Hartland. He died at the age of 105. Seldes was more than a newsman. Seldes was a free thinker and a true believer in the Constitution and a tireless fighter” in his many works for the civil liberties of all Americans.

In a wide-ranging interview in 1990 for a story celebrating his 100th birthday, Seldes made a bold prediction, one that caught my eye as I reread the piece.

Seldes said he feared that American soldiers would ultimately fight and die in the Middle East.

"For now, I think it's (war) been postponed. I'm afraid, though, the situation will keep boiling and we'll have a war there,"

he said.

Seldes had an incredible career as a newsman, mostly as a foreign correspondent with the Chicago Tribune.

He interviewed Lenin in Russia during an anniversary of the Bolshevik Revolution, covered the Spanish Civil War with Hemingway and was red-baited and brought before the McCarthy hearings.

Hemingway, Seldes said, was one of the first reporters to write about how, in Spain, "Germany was preparing for the coming (second) world war. And nobody paid attention to him."

Seldes was in Germany and Italy in the 1930s when fascism was nothing but an idea. In the 1990 feature, I wrote:

"And he (Seldes) saw how that idea, bolstered by lies, deception and thugs who made themselves rulers, altered the face of Europe."

Seldes, who interviewed Mussolini, the murderous fascist who came to power in Italy before World War II, was something of an authority on fascism.

But no other event of the 20th century had as great an impact on the old muckraker than did the Spanish Civil War. The world, including the American press, Seldes said, "ganged up on Spain." The fascists eventually won there.

If he were alive today, it would be fascinating to get George Seldes's take on the Bush administration. I can tell you this: Seldes could always smell a rat, and he would have despised what Bush and his thugs have done to the Constitution of the United States in the name of "national security."

He might have even gone so far as to describe Bush as a fascist.

By invading a weak nation without provocation, this government, in fact, duplicated the bullying tactics of the notorious fascists and Nazis of the 1930s and '40s.

This long war in Iraq has done far more than cost this nation in blood and treasure.

It has made our country weaker, militarily, and has helped to create a new generation of terrorists who see us as a ruthless nation that uses force as an instrument of foreign policy.

This war has allowed a corrupt administration to tilt this country in the direction of fascism not seen in my lifetime.

Here's what Bush and his henchmen have done to help disembowel our Constitution:

Warrentless wiretapping.

Discarding the Geneva Convention, which concerns the treatment of captured soldiers.

The illegal prison at Guantanamo Bay, where prisoners are held indefinitely without the right of habeas corpus.

The use of telecommunications companies to spy on Americans.

Cooking up evidence to justify the invasion of Iraq.

And what of the things we have yet to learn?

God bless this country if we are ever the victims of a truly horrific terrorist attack. In addition to the consequences of such an attack, we could very well find our civil liberties further threatened.

Government policies and officials of the kind that Bush brought us will do anything they can to "protect us," even if it means stripping us of our liberties. Fascism could be only a series of devastating attacks away, for Americans and their liberties.

I think that is what Robert Jordan, the central character in Hemingway's great novel about the Spanish Civil War, was referring to when he was asked by a fellow rebel fighter (in the above quote) about how many fascists there were in America.

If we can be so lost as to elect a man who repeatedly violates the highest laws of our land in order to run up his agenda and to allow him to launch an unjust war that continues to this day, can we really be that far away from the fascism that Robert Jordan so frighteningly foresaw?

Dennis Jensen is the outdoor writer for the Herald.
Contact him at dennis.jensen@rutlandherald.com

http://www.rutlandherald.com/apps/pbcs.dll/article?AID=/
20080611/OPINION03/806110312/1039/OPINION03

WAR CRIMES DOSSIER; Torture apologists avoid US House hearings

From Think Progress (with many wonderful links - well, not wonderful, but certainly USEFUL!)

So much for CONgressional subpoenas! When do they appoint a torture Special Prosecutor?

Can this be CONyers reason to ACT and support the US Constitution???

One sure hopes so !! One wants GENEVA "back on the table" !!

Virginia

CONGRESS -- FEITH CHICKENS OUT OF CONGRESSIONAL HEARING ON TORTURE, REFUSES TO APPEAR WITH WILKERSON: Former Undersecretary of Defense Douglas Feith withdrew from a scheduled appearance before a House Judiciary subcommittee hearing on torture yesterday because he did not want to to appear with Colin Powell's former chief of staff Col. Lawrence Wilkerson, who was also testifying. Feith was to speak about his role in helping the Bush administration evade the Geneva conventions, but informed the committee through his counsel that he "would not appear today because he is not willing to appear alongside one of our other witnesses," said Chairman Jerrold Nadler (D-NY).

"Mr. Feith's unwillingness to attend voluntarily and provide the truth about this government's actions shows a fundamental disrespect for Congress and the American people,"

Nadler said. Wilkerson, who left the Bush administration in protest over Bush policies, has criticized Feith's competence, saying "seldom in my life have I met a dumber man." Seated next to Feith's empty chair, Wilkerson testified that Vice President Cheney probably knew that the U.S. was using torture at Guantanamo Bay and in Iraq. "At what level did American leadership fail?" Wilkerson asked. "I believe it failed at the highest levels of the Pentagon, in the Vice President's Office and perhaps even in the Oval Office."

TORTURE -- MEDICAL EXAMS BACK UP CLAIMS OF DETAINEE ABUSE UNDER U.S. CUSTODY: In an interview with the New York Times, Lt. Cmdr. William C. Kuebler, military lawyer for a Guantanamo detainee and Canadian citizen Omar Khadr, said

"the Bush administration's war crimes system 'is designed to get criminal convictions' with 'no real evidence.'"

Military prosecutors "launder evidence derived from torture," Kuebler said, adding,

"You put the whole package together and it stinks."

At the same time, a report released yesterday by the Physicians for Human Rights gives credibility to Kuebler's claim of detainee abuse. "The first extensive medical examinations of former detainees in U.S. military jails offer corroboration for prisoners' claims of physical and psychological abuse at the hands of their American captors," the report found. "The assessments of 11 men formerly held in U.S. detention camps overseas revealed scars and other injuries consistent with their accounts of beatings, electric shocks, shackling and, in at least one case, sodomy." Physicians for Human Rights used "teams of medical specialists" to conduct the "physical and psychological tests, including exams intended to assess if the subjects were lying." In a statement, ret. Maj. Gen. Antonio M. Taguba, "who led the Army's first official investigation on Abu Ghraib, said the new evidence suggested a 'systematic regime of torture' inside U.S.-run detention camps."