Tomgram: Rebecca Gordon, American War Crimes, Yesterday, Today, and Tomorrow
By Rebecca Gordon
Posted on January 7, 2016, Printed on January 8, 2016
http://www.tomdispatch.com/blog/176087/ ;
What a scam! Noam Scheiber and Patricia Cohen described it this way in a
front-page New York Times report on how a small group of incredibly wealthy
Americans funded their way into another tax universe: Operating largely out
of public view -- in tax court, through arcane legislative provisions and in
private negotiations with the Internal Revenue Service -- the wealthy have
used their influence to steadily whittle away at the governments ability to
tax them. The effect has been to create a kind of private tax system,
catering to only several thousand Americans.
Yes, you read that correctly: tiny numbers of Americans live on a different
tax planet from the rest of us. Theyve paid for the privilege, of course,
and increasingly for the political class that oversees how our country runs.
They've insulated themselves in a largely tax-free zone that ensures their
equality before the law (such as it is) and your deepening inequality
before the same -- and before them. Their actions have garnered them the
ultimate in impunity. In this election season in a country of more than 300
million people, for instance, a mere 158 families (and the companies they
control) are putting their (largely tax-free) dollars where our mouths once
were. By October, they had provided almost half the money thus far raised by
presidential candidates in a move meant to ensure that American democracy
becomes their system, their creature. (Not since before Watergate have so
few people and businesses provided so much early money in a campaign, most
of it through channels legalized by the Supreme Courts Citizens United
decision five years ago.)
My dictionary defines impunity simply enough as exemption from
punishment, penalty, or harm. Thats a striking trait for those who lord
it over us. In the most incarcerated nation on Earth, with close to 25% of
the globes prison population, there are seemingly no bars strong enough to
hold our economic elites or, for that matter, their national security
brethren.
The U.S. national security state, like the billionaire class, has grown ever
richer and become ever more entrenched in these years, while similarly
extracting itself from what was once the American political and legal
system. Its officials now exist in a world of secrecy in which, in the name
of our safety, ever fewer of their acts are open to our scrutiny. They
inhabit what can only be thought of as a crime-free zone. No act they
commit, no matter how extralegal or illegal, will evidently ever land them
in a court of law. They have, in essence, total impunity. It doesnt matter
whether youre talking about the CIAs massive, extralegal operation to
kidnap terror suspects (often enough, as it turned out, innocent
civilians) and deliver them to the torture chambers of brutal allies or to a
system of black sites off the coast of normal justice. Lying to Congress,
hacking congressional computers, and assassinating American citizens have
all been green-lighted. No one was ever punished. When necessary, in the
secret corridors of power, officials of the national security state simply
mobilize lawyers to reinterpret the law of the land to their taste.
When it comes to impunity, their record has been the equal of anything the
billionaire class has done. And none of it was more impressive, in its own
way, than the use of obviously illegal methods of torture, euphemistically
termed enhanced interrogation techniques, against helpless prisoners in a
secret global prison system, as TomDispatch regular Rebecca Gordon reminds
us today. You want war crimes? Post-9/11, Washington could have sported the
logo: War Crimes "R" Us. If you want to understand what this sort of
impunity means in terms of the politics of 2016, then read on. Tom
America Revisits the Dark Side
Candidates Compete to Promise the Most Torture and Slaughter
By Rebecca Gordon
Theyre back!
From the look of the presidential campaign, war crimes are back on the
American agenda. We really shouldnt be surprised, because American
officials got away with it last time -- and in the case of the drone wars
continue to get away with it today. Still, theres nothing like the heady
combination of a populist Republican race for the presidency and a
national hysteria over terrorism to make Americans want to reach for those
enhanced interrogation techniques. That, as critics have long argued, is
what usually happens if war crimes arent prosecuted.
In August 2014, when President Obama finally admitted that we tortured some
folks, he added a warning. The recent history of U.S. torture, he said,
needs to be understood and accepted. We have to as a country take
responsibility for that so hopefully we dont do it again in the future. By
pinning the responsibility for torture on all of us as a country, Obama
avoided holding any of the actual perpetrators to account.
Unfortunately, hope alone will not stymie a serial war criminal -- and the
president did not even heed his own warning. For seven years his
administration has done everything except help the country take
responsibility for torture and other war crimes. It looked the other way
when it comes to holding accountable those who set up and ran the CIAs
large-scale torture operations at its black sites around the world. It
never brought charges against those who ordered torture at Guantánamo. It
prosecuted no one, above all not the top officials of the Bush
administration.
Now, in the endless run-up to the 2016 presidential elections, weve been
treated to some pretty strange gladiatorial extravaganzas, with more to come
in 2016. In these peculiarly American spectacles, Republican candidates hurl
themselves at one another in a frenzied effort to be seen as the candidate
most likely to ignore the presidents wan hope and instead do it again in
the future. As a result, they are promising to commit a whole range of
crimes, from torture to the slaughter of civilians, for which the leaders of
some nations would find themselves hauled into international court as war
criminals. But war criminal is a label reserved purely for people we
loathe, not for us. To paraphrase former President Richard Nixon, if the
United States does it, its not a crime.
In the wake of the brutal attacks in Paris and San Bernardino, the promises
being openly made to commit future crimes have only grown more forthright. A
few examples from the presidential campaign trail should suffice to make the
point:
* Ted Cruz guarantees that we will utterly destroy ISIS. How will we do
it? We will carpet bomb them into oblivion -- that is, we will saturate
an area with munitions in such a way that everything and everyone on the
ground is obliterated. Of such a bombing campaign against the Islamic State,
he told a cheering crowd at the Rising Tide Summit, I dont know if sand
can glow in the dark, but were going to find out. (Its hard not to take
this as a reference to the use of nuclear weapons, though in the bravado
atmosphere of the present Republican campaign a lot of detailed thought is
undoubtedly not going into any such proposals.)
* Kindly retired pediatric neurosurgeon Ben Carson evidently has similar
thoughts. When pressed by CNN co-moderator Hugh Hewitt in the most recent
Republican debate on whether he was tough enough to be okay with the
deaths of thousands of innocent children and civilian[s], Carson replied,
You got it. You got it. He even presented a future campaign against the
Islamic State in which thousands of children might die as an example of
the same kind of tough love a surgeon sometimes exhibits when facing a
difficult case. Its like telling a child, he assured Hewitt, that were
going to have to open your head up and take out this tumor. Theyre not
happy about it, believe me. And they dont like me very much at that point.
But later on, they love me. So, presumably, will those dead innocent
children in Syria -- once they get over the shock of being dead.
* Jeb Bushs approach brought what, in Republican circles, passes for nuance
to the discussion of future war crimes policy. What Washington needs, he
argued, is a strategy and what stands in the way of the Obama
administration developing one is an excessive concern with the niceties of
international law. As he put it, We need to get the lawyers off the back of
the warfighters. Right now under President Obama, weve created... this
standard that is so high that its impossible to be successful in fighting
ISIS. Meanwhile, Jeb has surrounded himself with a familiar clique of
neocon advisers -- people like George W. Bushs former Deputy Secretary of
Defense Paul Wolfowitz and his former Deputy National Security Advisor
Stephen Hadley, who planned for and advocated the illegal U.S. war against
Iraq, which touched off a regional war with devastating human consequences.
* And then there is Donald Trump. Where to start? As a simple baseline for
his future commander-in-chiefdom, he stated without a blink that he would
bring back torture. Would I approve waterboarding? he told a cheering
crowd at a November rally in Columbus, Ohio. You bet your ass I would -- in
a heartbeat. And for Trump, that would only be the beginning. He assured
his listeners vaguely but emphatically that he would approve more than
that, leaving to their imaginations whether he was thinking of excruciating
stress positions, relentless exposure to loud noise, sleep deprivation,
the straightforward killing of prisoners, or what the CIA used to delicately
refer to as rectal rehydration. Meanwhile, he just hammers on when it
comes to torture. Don't kid yourself, folks. It works, okay? It works. Only
a stupid person would say it doesn't work.
Only a stupid person -- like, perhaps, one of the members of the Senate
Intelligence Committee who carefully studied the CIAs grim torture
documents for years, despite the Agencys foot-dragging, opposition, and
outright interference (including computer hacking) -- would say that. But
why even bother to argue about whether torture works? The point, Trump
claimed, was that the very existence of the Islamic State means that someone
needs to be tortured. If it doesnt work, he told that Ohio crowd, they
deserve it anyway.
Only a few days later, he triumphantly sallied even further into war
criminal territory. He declared himself ready to truly hit the Islamic State
where it hurts. The other thing with the terrorists, he told Fox News, is
you have to take out their families, when you get these terrorists, you have
to take out their families. They care about their lives, don't kid yourself.
When they say they don't care about their lives, you have to take out their
families. Because its a well-known fact -- in Trumpland at least -- that
nothing makes people less likely to behave violently than murdering their
parents and children. And it certainly doesnt matter, when Trump advocates
it, that murder is a crime.
The Problem with Impunity
Not that youd know it in this country, but the common thread in all of
these proposed responses to the Islamic State isnt just the usual
Republican hawkishness. Each one represents a serious violation of U.S.
laws, international laws of war, and/or treaties and conventions that the
United States has signed and ratified under Republican as well as Democratic
presidents. Most campaign trail discussions of plans -- both Republican and
Democratic -- to defeat ISIS have focused only on instrumental questions:
Would carpet bombing, torture, or making sand glow in the dark work?
Candidates and reporters alike have ignored the obvious larger point -- if,
that is, we werent living in a country that had given itself a blanket pass
on the issue of war crimes. Carpet-bombing cities, torturing prisoners, and
rendering lands uninhabitable are all against the law. They are, in fact,
grave crimes. That even critics of these comments will not identify such
potential acts as war crimes can undoubtedly be attributed, at least in
part, to the fact that no one -- other than a few low-level military
personnel and a CIA whistleblower who spoke publicly about the Agencys
torture agenda -- has been prosecuted in the U.S. for the startling array of
crimes already committed in the so-called War on Terror.
President Obama set the stage for this failure as early as January 2009,
just before his first inauguration. He told ABCs George Stephanopoulos
that, when it came to the possible prosecution of CIA officials for U.S.
torture policies, We need to look forward as opposed to looking backwards.
He didnt, he assured Stephanopoulos, want the extraordinarily talented
people at the Agency who are working very hard to keep Americans safe
to
suddenly feel like they've got to spend all their time looking over their
shoulders and lawyering up. As it turned out, lawyering up was never a
problem. In the end, Attorney General Eric Holder declined to charge any
CIA personnel, closing the only two cases the Justice Department had even
opened. Nor did any of the top officials responsible for the enhanced
interrogation program, including President George W. Bush, Vice President
Dick Cheney, Secretary of Defense Donald Rumsfeld, or CIA Director George
Tenet, need to waste a cent on a lawyer. Instead, theyre now happily
publishing their memoirs. Or, in the cases of Jay Bybee and John Yoo, the
Justice Department authors of some of the more infamous torture memos,
serving as a federal judge or occupying an endowed chair at the University
of California, Berkeley, School of Law, respectively.
On December 1, 2015, perhaps driven to frustration by the Obama
administrations ultimate failure to act, Human Rights Watch (HRW) released
a 153-page report titled No More Excuses. In it, the organization detailed
the specific crimes relating to that CIA torture program for which a dozen
high-level officials of the Bush administration could have been brought to
trial and called for their prosecution. HRW pointed out that such
prosecutions are not, in fact, a matter of choice. They are required by
international law (even if the alleged criminals have run the planets last
superpower). For example, the United Nations Convention against Torture, a
key treaty that the United States signed in 1988 (under President Ronald
Reagan) and finally ratified in 1994 (under President Bill Clinton),
specifically requires our nation to take effective legislative,
administrative, judicial, or other measures to prevent acts of torture in
any territory under its jurisdiction.
It doesnt matter if theres a war on, or if theres internal unrest. The
Convention says, 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.
Whenever torture is used, its a violation of that treaty, and that makes it
a crime. When its used against prisoners of war, its also a violation of
the 1949 Geneva Conventions and therefore a war crime. No exceptions.
But when Obama acknowledged that we tortured some folks, he claimed an
exception for American torture. He cautioned us against overreacting. Its
important for us not to feel too sanctimonious in retrospect about the tough
job that those folks had, he said, referring to the CIAs corps of
torturers. He pointed to American fear -- of the very sort were seeing
again over San Bernardino -- as an exculpatory factor, reminding us of just
how frightened all of us, including CIA operatives, were in the days after
9/11.
As it happens, whatever the former constitutional law professor in the White
House or hotel-builder Donald Trump may believe, torture remains illegal. It
makes no difference how frightened people may be of potential terrorists.
After all, its partly because people do wicked things when they are afraid
that we make laws in the first place -- so that, when fear clouds our minds,
we can be reminded of what we decided was right in less frightening times.
Thats why the Convention against Torture says no exceptional circumstances
whatsoever excuse such acts.
But the U.N. Convention is just a treaty, right? Its not really a law. In
fact, when the United States ratifies a treaty, it becomes part of American
law under Article VI of our Constitution, which states that the Constitution
itself 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, anything in the Constitution or laws of any
State to the contrary notwithstanding.
So even if torture did work, it would still be illegal.
War Crimes for the New Year
What about the other proposals weve heard from Republican candidates? Some
of them are certainly war crimes. Carpet bombing, a metaphor that
describes an all-too-real air-power nightmare (as many Vietnamese, Laotians,
and Cambodians learned during our wars in Indochina), means the saturation
of an entire area with enough bombs to destroy everything standing without
regard for the lives of anyone who might be on the ground. It is illegal
under the laws of war, because it makes no distinction between civilians and
combatants.
Because aerial bombardment hadnt even been invented in 1907 when the Hague
Conventions were signed, they dont name carpet bombing specifically in a
list of prohibited means of injuring the enemy, sieges, and bombardments.
Nevertheless, at the center of the Hague Conventions, as with all the laws
and customs of war, lies the crucial distinction between combatants and
civilians. To destroy an entire populated area in order to eliminate a
handful of fighters violates the long-held and internationally recognized
principle of proportionality.
The Hague Conventions also put into the written international legal code
long-held beliefs about the importance of distinguishing between civilians
and combatants in war. Ben Carsons willingness to allow the deaths of
thousands of civilians and children in the pursuit of ISIS fundamentally
violates exactly that principle.
In another shameful exception, the United States has never ratified a 1977
addition to the Geneva Conventions that specifically outlaws carpet bombing.
Additional Protocol 1 specifically addresses the protection of civilians
during warfare. Apart from such U.S. allies as Israel and Turkey, 174
countries have signed Protocol 1, explicitly making carpet bombing a war
crime.
If the United States has not ratified Protocol 1, does that mean it is free
to violate its provisions? Not necessarily. When the vast majority of
nations agree to such an accord, it can take on the power of international
customary law -- a set of principles that have the force of law, whether or
not they are written down and ratified. The International Committee of the
Red Cross maintains a list of these rules of law. One section of these
explicitly states that indiscriminate attacks, including area
bombardment, are indeed illegal under customary law.
Senator Cruzs promise to discover whether or not sand glows in the dark,
presumably through the use of nuclear weapons, would violate the 1907 Hague
Conventions prohibitions on employing poison or poisoned weapons and on
the use of arms, projectiles, or material calculated to cause unnecessary
suffering. It no more matters that the United States ratified this
convention over a century ago than that the Constitution is more than 200
years old. Jeb Bushs suggestion that we get the lawyers off the back of
the warfighters notwithstanding, both remain the law of the land.
That they dont appear to have the force of law in the United States, that
the description of possible future war crimes can rouse crowds to a cheering
frenzy in this political season, represents a remarkable failure of
political will; in particular, the willingness of the Obama administration
to call a crime a crime and act accordingly. Globally, it is a failure of
power rather than of the law. Prosecuting a former African autocrat or
Serbian leader for war crimes is obviously a very different and far less
daunting matter than bringing to justice top officials of the planets only
superpower. That is made all the more difficult because, under George W.
Bush, the United States informed the world that it would never ratify the
accords that set up the International Criminal Court.
In the Glare of San Bernardino
Human Rights Watch released its report on December 1st. The next day, a
married couple, Syed Rizwan Farook and Tashfeen Malik, attacked a holiday
party at San Bernardinos Department of Public Health, where Farook worked.
They killed 14 people before dying in a police shootout. It was a horrific
crime and it appears that the two were, at least in part, inspired by the
social media presence of the Islamic State (even if they were not in any way
directed by that group). Not surprisingly, the HRW report sank like a stone
from public view. With it went their key recommendations: that a special
prosecutor be appointed to investigate and bring to trial those responsible
for CIA torture practices and that U.S. torture victims be guaranteed
redress in American courts, something both the Bush and Obama
administrations have fought fiercely, even though it is a key requirement of
the U.N. Convention against Torture.
As last year ended, the fear machine had cranked up once again, and
Americans were being reminded by those who aspire to lead us that no price
is too high to pay for our security -- as long as its paid by somebody
else. Expect more of the same in 2016.
And yet it is precisely now, when we are most afraid, that our leaders --
present and future -- should not be stoking our fears. They should instead
be reminding us that there is something more valuable -- and more achievable
-- than perfect security. They should be encouraging us not to seek a
cowardly exception from the laws of war, but to be brave and abide by them.
So heres the challenge: Will we find the courage to resist the fear machine
this time? Will we find the will to prosecute the war crimes of the past and
prevent the ones our candidates are screaming for? Or will we allow our
nation to remain what it has become: a terrible and terrifying exception to
the international rule of law?
Rebecca Gordon, a TomDispatch regular, teaches in the philosophy department
at the University of San Francisco. She is the author of Mainstreaming
Torture: Ethical Approaches in the Post-9/11 United States and the
forthcoming American Nuremberg: The U.S. Officials Who Should Stand Trial
for Post-9/11 War Crimes.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest
Dispatch Book, Nick Turses Tomorrows Battlefield: U.S. Proxy Wars and
Secret Ops in Africa, and Tom Engelhardt's latest book, Shadow Government:
Surveillance, Secret Wars, and a Global Security State in a
Single-Superpower World.
Copyright 2016 Rebecca Gordon
© 2016 TomDispatch. All rights reserved.
View this story online at: http://www.tomdispatch.com/blog/176087
Tomgram: Rebecca Gordon, American War Crimes, Yesterday, Today, and Tomorrow
By Rebecca Gordon
Posted on January 7, 2016, Printed on January 8, 2016
http://www.tomdispatch.com/blog/176087/ ;
What a scam! Noam Scheiber and Patricia Cohen described it this way in a
front-page New York Times report on how a small group of incredibly wealthy
Americans funded their way into another tax universe: Operating largely out
of public view -- in tax court, through arcane legislative provisions and in
private negotiations with the Internal Revenue Service -- the wealthy have
used their influence to steadily whittle away at the governments ability to
tax them. The effect has been to create a kind of private tax system,
catering to only several thousand Americans.
Yes, you read that correctly: tiny numbers of Americans live on a different
tax planet from the rest of us. Theyve paid for the privilege, of course,
and increasingly for the political class that oversees how our country runs.
They've insulated themselves in a largely tax-free zone that ensures their
equality before the law (such as it is) and your deepening inequality
before the same -- and before them. Their actions have garnered them the
ultimate in impunity. In this election season in a country of more than 300
million people, for instance, a mere 158 families (and the companies they
control) are putting their (largely tax-free) dollars where our mouths once
were. By October, they had provided almost half the money thus far raised by
presidential candidates in a move meant to ensure that American democracy
becomes their system, their creature. (Not since before Watergate have so
few people and businesses provided so much early money in a campaign, most
of it through channels legalized by the Supreme Courts Citizens United
decision five years ago.)
My dictionary defines impunity simply enough as exemption from
punishment, penalty, or harm. Thats a striking trait for those who lord it
over us. In the most incarcerated nation on Earth, with close to 25% of the
globes prison population, there are seemingly no bars strong enough to hold
our economic elites or, for that matter, their national security brethren.
The U.S. national security state, like the billionaire class, has grown ever
richer and become ever more entrenched in these years, while similarly
extracting itself from what was once the American political and legal
system. Its officials now exist in a world of secrecy in which, in the name
of our safety, ever fewer of their acts are open to our scrutiny. They
inhabit what can only be thought of as a crime-free zone. No act they
commit, no matter how extralegal or illegal, will evidently ever land them
in a court of law. They have, in essence, total impunity. It doesnt matter
whether youre talking about the CIAs massive, extralegal operation to
kidnap terror suspects (often enough, as it turned out, innocent
civilians) and deliver them to the torture chambers of brutal allies or to a
system of black sites off the coast of normal justice. Lying to Congress,
hacking congressional computers, and assassinating American citizens have
all been green-lighted. No one was ever punished. When necessary, in the
secret corridors of power, officials of the national security state simply
mobilize lawyers to reinterpret the law of the land to their taste.
When it comes to impunity, their record has been the equal of anything the
billionaire class has done. And none of it was more impressive, in its own
way, than the use of obviously illegal methods of torture, euphemistically
termed enhanced interrogation techniques, against helpless prisoners in a
secret global prison system, as TomDispatch regular Rebecca Gordon reminds
us today. You want war crimes? Post-9/11, Washington could have sported the
logo: War Crimes "R" Us. If you want to understand what this sort of
impunity means in terms of the politics of 2016, then read on. Tom
America Revisits the Dark Side
Candidates Compete to Promise the Most Torture and Slaughter
By Rebecca Gordon
Theyre back!
From the look of the presidential campaign, war crimes are back on the
American agenda. We really shouldnt be surprised, because American
officials got away with it last time -- and in the case of the drone wars
continue to get away with it today. Still, theres nothing like the heady
combination of a populist Republican race for the presidency and a
national hysteria over terrorism to make Americans want to reach for those
enhanced interrogation techniques. That, as critics have long argued, is
what usually happens if war crimes arent prosecuted.
In August 2014, when President Obama finally admitted that we tortured some
folks, he added a warning. The recent history of U.S. torture, he said,
needs to be understood and accepted. We have to as a country take
responsibility for that so hopefully we dont do it again in the future. By
pinning the responsibility for torture on all of us as a country, Obama
avoided holding any of the actual perpetrators to account.
Unfortunately, hope alone will not stymie a serial war criminal -- and the
president did not even heed his own warning. For seven years his
administration has done everything except help the country take
responsibility for torture and other war crimes. It looked the other way
when it comes to holding accountable those who set up and ran the CIAs
large-scale torture operations at its black sites around the world. It
never brought charges against those who ordered torture at Guantánamo. It
prosecuted no one, above all not the top officials of the Bush
administration.
Now, in the endless run-up to the 2016 presidential elections, weve been
treated to some pretty strange gladiatorial extravaganzas, with more to come
in 2016. In these peculiarly American spectacles, Republican candidates hurl
themselves at one another in a frenzied effort to be seen as the candidate
most likely to ignore the presidents wan hope and instead do it again in
the future. As a result, they are promising to commit a whole range of
crimes, from torture to the slaughter of civilians, for which the leaders of
some nations would find themselves hauled into international court as war
criminals. But war criminal is a label reserved purely for people we
loathe, not for us. To paraphrase former President Richard Nixon, if the
United States does it, its not a crime.
In the wake of the brutal attacks in Paris and San Bernardino, the promises
being openly made to commit future crimes have only grown more forthright. A
few examples from the presidential campaign trail should suffice to make the
point:
* Ted Cruz guarantees that we will utterly destroy ISIS. How will we do
it? We will carpet bomb them into oblivion -- that is, we will saturate
an area with munitions in such a way that everything and everyone on the
ground is obliterated. Of such a bombing campaign against the Islamic State,
he told a cheering crowd at the Rising Tide Summit, I dont know if sand
can glow in the dark, but were going to find out. (Its hard not to take
this as a reference to the use of nuclear weapons, though in the bravado
atmosphere of the present Republican campaign a lot of detailed thought is
undoubtedly not going into any such proposals.)
* Kindly retired pediatric neurosurgeon Ben Carson evidently has similar
thoughts. When pressed by CNN co-moderator Hugh Hewitt in the most recent
Republican debate on whether he was tough enough to be okay with the
deaths of thousands of innocent children and civilian[s], Carson replied,
You got it. You got it. He even presented a future campaign against the
Islamic State in which thousands of children might die as an example of
the same kind of tough love a surgeon sometimes exhibits when facing a
difficult case. Its like telling a child, he assured Hewitt, that were
going to have to open your head up and take out this tumor. Theyre not
happy about it, believe me. And they dont like me very much at that point.
But later on, they love me. So, presumably, will those dead innocent
children in Syria -- once they get over the shock of being dead.
http://www.amazon.com/dp/0199336431/ref=nosim/?tag=tomdispatch-20
http://www.amazon.com/dp/0199336431/ref=nosim/?tag=tomdispatch-20* Jeb
Bushs approach brought what, in Republican circles, passes for nuance to
the discussion of future war crimes policy. What Washington needs, he
argued, is a strategy and what stands in the way of the Obama
administration developing one is an excessive concern with the niceties of
international law. As he put it, We need to get the lawyers off the back of
the warfighters. Right now under President Obama, weve created... this
standard that is so high that its impossible to be successful in fighting
ISIS. Meanwhile, Jeb has surrounded himself with a familiar clique of
neocon advisers -- people like George W. Bushs former Deputy Secretary of
Defense Paul Wolfowitz and his former Deputy National Security Advisor
Stephen Hadley, who planned for and advocated the illegal U.S. war against
Iraq, which touched off a regional war with devastating human consequences.
* And then there is Donald Trump. Where to start? As a simple baseline for
his future commander-in-chiefdom, he stated without a blink that he would
bring back torture. Would I approve waterboarding? he told a cheering
crowd at a November rally in Columbus, Ohio. You bet your ass I would -- in
a heartbeat. And for Trump, that would only be the beginning. He assured
his listeners vaguely but emphatically that he would approve more than
that, leaving to their imaginations whether he was thinking of excruciating
stress positions, relentless exposure to loud noise, sleep deprivation,
the straightforward killing of prisoners, or what the CIA used to delicately
refer to as rectal rehydration. Meanwhile, he just hammers on when it
comes to torture. Don't kid yourself, folks. It works, okay? It works. Only
a stupid person would say it doesn't work.
Only a stupid person -- like, perhaps, one of the members of the Senate
Intelligence Committee who carefully studied the CIAs grim torture
documents for years, despite the Agencys foot-dragging, opposition, and
outright interference (including computer hacking) -- would say that. But
why even bother to argue about whether torture works? The point, Trump
claimed, was that the very existence of the Islamic State means that someone
needs to be tortured. If it doesnt work, he told that Ohio crowd, they
deserve it anyway.
Only a few days later, he triumphantly sallied even further into war
criminal territory. He declared himself ready to truly hit the Islamic State
where it hurts. The other thing with the terrorists, he told Fox News, is
you have to take out their families, when you get these terrorists, you have
to take out their families. They care about their lives, don't kid yourself.
When they say they don't care about their lives, you have to take out their
families. Because its a well-known fact -- in Trumpland at least -- that
nothing makes people less likely to behave violently than murdering their
parents and children. And it certainly doesnt matter, when Trump advocates
it, that murder is a crime.
The Problem with Impunity
Not that youd know it in this country, but the common thread in all of
these proposed responses to the Islamic State isnt just the usual
Republican hawkishness. Each one represents a serious violation of U.S.
laws, international laws of war, and/or treaties and conventions that the
United States has signed and ratified under Republican as well as Democratic
presidents. Most campaign trail discussions of plans -- both Republican and
Democratic -- to defeat ISIS have focused only on instrumental questions:
Would carpet bombing, torture, or making sand glow in the dark work?
Candidates and reporters alike have ignored the obvious larger point -- if,
that is, we werent living in a country that had given itself a blanket pass
on the issue of war crimes. Carpet-bombing cities, torturing prisoners, and
rendering lands uninhabitable are all against the law. They are, in fact,
grave crimes. That even critics of these comments will not identify such
potential acts as war crimes can undoubtedly be attributed, at least in
part, to the fact that no one -- other than a few low-level military
personnel and a CIA whistleblower who spoke publicly about the Agencys
torture agenda -- has been prosecuted in the U.S. for the startling array of
crimes already committed in the so-called War on Terror.
President Obama set the stage for this failure as early as January 2009,
just before his first inauguration. He told ABCs George Stephanopoulos
that, when it came to the possible prosecution of CIA officials for U.S.
torture policies, We need to look forward as opposed to looking backwards.
He didnt, he assured Stephanopoulos, want the extraordinarily talented
people at the Agency who are working very hard to keep Americans safe
to
suddenly feel like they've got to spend all their time looking over their
shoulders and lawyering up. As it turned out, lawyering up was never a
problem. In the end, Attorney General Eric Holder declined to charge any CIA
personnel, closing the only two cases the Justice Department had even
opened. Nor did any of the top officials responsible for the enhanced
interrogation program, including President George W. Bush, Vice President
Dick Cheney, Secretary of Defense Donald Rumsfeld, or CIA Director George
Tenet, need to waste a cent on a lawyer. Instead, theyre now happily
publishing their memoirs. Or, in the cases of Jay Bybee and John Yoo, the
Justice Department authors of some of the more infamous torture memos,
serving as a federal judge or occupying an endowed chair at the University
of California, Berkeley, School of Law, respectively.
On December 1, 2015, perhaps driven to frustration by the Obama
administrations ultimate failure to act, Human Rights Watch (HRW) released
a 153-page report titled No More Excuses. In it, the organization detailed
the specific crimes relating to that CIA torture program for which a dozen
high-level officials of the Bush administration could have been brought to
trial and called for their prosecution. HRW pointed out that such
prosecutions are not, in fact, a matter of choice. They are required by
international law (even if the alleged criminals have run the planets last
superpower). For example, the United Nations Convention against Torture, a
key treaty that the United States signed in 1988 (under President Ronald
Reagan) and finally ratified in 1994 (under President Bill Clinton),
specifically requires our nation to take effective legislative,
administrative, judicial, or other measures to prevent acts of torture in
any territory under its jurisdiction.
It doesnt matter if theres a war on, or if theres internal unrest. The
Convention says, 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.
Whenever torture is used, its a violation of that treaty, and that makes it
a crime. When its used against prisoners of war, its also a violation of
the 1949 Geneva Conventions and therefore a war crime. No exceptions.
But when Obama acknowledged that we tortured some folks, he claimed an
exception for American torture. He cautioned us against overreacting. Its
important for us not to feel too sanctimonious in retrospect about the tough
job that those folks had, he said, referring to the CIAs corps of
torturers. He pointed to American fear -- of the very sort were seeing
again over San Bernardino -- as an exculpatory factor, reminding us of just
how frightened all of us, including CIA operatives, were in the days after
9/11.
As it happens, whatever the former constitutional law professor in the White
House or hotel-builder Donald Trump may believe, torture remains illegal. It
makes no difference how frightened people may be of potential terrorists.
After all, its partly because people do wicked things when they are afraid
that we make laws in the first place -- so that, when fear clouds our minds,
we can be reminded of what we decided was right in less frightening times.
Thats why the Convention against Torture says no exceptional circumstances
whatsoever excuse such acts.
But the U.N. Convention is just a treaty, right? Its not really a law. In
fact, when the United States ratifies a treaty, it becomes part of American
law under Article VI of our Constitution, which states that the Constitution
itself 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, anything in the Constitution or laws of any
State to the contrary notwithstanding.
So even if torture did work, it would still be illegal.
War Crimes for the New Year
What about the other proposals weve heard from Republican candidates? Some
of them are certainly war crimes. Carpet bombing, a metaphor that
describes an all-too-real air-power nightmare (as many Vietnamese, Laotians,
and Cambodians learned during our wars in Indochina), means the saturation
of an entire area with enough bombs to destroy everything standing without
regard for the lives of anyone who might be on the ground. It is illegal
under the laws of war, because it makes no distinction between civilians and
combatants.
Because aerial bombardment hadnt even been invented in 1907 when the Hague
Conventions were signed, they dont name carpet bombing specifically in a
list of prohibited means of injuring the enemy, sieges, and bombardments.
Nevertheless, at the center of the Hague Conventions, as with all the laws
and customs of war, lies the crucial distinction between combatants and
civilians. To destroy an entire populated area in order to eliminate a
handful of fighters violates the long-held and internationally recognized
principle of proportionality.
The Hague Conventions also put into the written international legal code
long-held beliefs about the importance of distinguishing between civilians
and combatants in war. Ben Carsons willingness to allow the deaths of
thousands of civilians and children in the pursuit of ISIS fundamentally
violates exactly that principle.
In another shameful exception, the United States has never ratified a 1977
addition to the Geneva Conventions that specifically outlaws carpet bombing.
Additional Protocol 1 specifically addresses the protection of civilians
during warfare. Apart from such U.S. allies as Israel and Turkey, 174
countries have signed Protocol 1, explicitly making carpet bombing a war
crime.
If the United States has not ratified Protocol 1, does that mean it is free
to violate its provisions? Not necessarily. When the vast majority of
nations agree to such an accord, it can take on the power of international
customary law -- a set of principles that have the force of law, whether or
not they are written down and ratified. The International Committee of the
Red Cross maintains a list of these rules of law. One section of these
explicitly states that indiscriminate attacks, including area
bombardment, are indeed illegal under customary law.
Senator Cruzs promise to discover whether or not sand glows in the dark,
presumably through the use of nuclear weapons, would violate the 1907 Hague
Conventions prohibitions on employing poison or poisoned weapons and on
the use of arms, projectiles, or material calculated to cause unnecessary
suffering. It no more matters that the United States ratified this
convention over a century ago than that the Constitution is more than 200
years old. Jeb Bushs suggestion that we get the lawyers off the back of
the warfighters notwithstanding, both remain the law of the land.
That they dont appear to have the force of law in the United States, that
the description of possible future war crimes can rouse crowds to a cheering
frenzy in this political season, represents a remarkable failure of
political will; in particular, the willingness of the Obama administration
to call a crime a crime and act accordingly. Globally, it is a failure of
power rather than of the law. Prosecuting a former African autocrat or
Serbian leader for war crimes is obviously a very different and far less
daunting matter than bringing to justice top officials of the planets only
superpower. That is made all the more difficult because, under George W.
Bush, the United States informed the world that it would never ratify the
accords that set up the International Criminal Court.
In the Glare of San Bernardino
Human Rights Watch released its report on December 1st. The next day, a
married couple, Syed Rizwan Farook and Tashfeen Malik, attacked a holiday
party at San Bernardinos Department of Public Health, where Farook worked.
They killed 14 people before dying in a police shootout. It was a horrific
crime and it appears that the two were, at least in part, inspired by the
social media presence of the Islamic State (even if they were not in any way
directed by that group). Not surprisingly, the HRW report sank like a stone
from public view. With it went their key recommendations: that a special
prosecutor be appointed to investigate and bring to trial those responsible
for CIA torture practices and that U.S. torture victims be guaranteed
redress in American courts, something both the Bush and Obama
administrations have fought fiercely, even though it is a key requirement of
the U.N. Convention against Torture.
As last year ended, the fear machine had cranked up once again, and
Americans were being reminded by those who aspire to lead us that no price
is too high to pay for our security -- as long as its paid by somebody
else. Expect more of the same in 2016.
And yet it is precisely now, when we are most afraid, that our leaders --
present and future -- should not be stoking our fears. They should instead
be reminding us that there is something more valuable -- and more achievable
-- than perfect security. They should be encouraging us not to seek a
cowardly exception from the laws of war, but to be brave and abide by them.
So heres the challenge: Will we find the courage to resist the fear machine
this time? Will we find the will to prosecute the war crimes of the past and
prevent the ones our candidates are screaming for? Or will we allow our
nation to remain what it has become: a terrible and terrifying exception to
the international rule of law?
Rebecca Gordon, a TomDispatch regular, teaches in the philosophy department
at the University of San Francisco. She is the author of Mainstreaming
Torture: Ethical Approaches in the Post-9/11 United States and the
forthcoming American Nuremberg: The U.S. Officials Who Should Stand Trial
for Post-9/11 War Crimes.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest
Dispatch Book, Nick Turses Tomorrows Battlefield: U.S. Proxy Wars and
Secret Ops in Africa, and Tom Engelhardt's latest book, Shadow Government:
Surveillance, Secret Wars, and a Global Security State in a
Single-Superpower World.
Copyright 2016 Rebecca Gordon
© 2016 TomDispatch. All rights reserved.
View this story online at: http://www.tomdispatch.com/blog/176087
