Marjorie Cohn: Bush & Co.: War Crimes and Cover-Up

As the election approaches, we are bombarded with stories about swift boats, dereliction of duty, and who's the most macho leader. Missing from the discourse is a critical examination of why George W. Bush failed to heed warnings before September 11, why he sat paralyzed for 7 minutes after being informed of the attacks, how he subsequently turned Iraq into a deadly cauldron, and committed - then covered up - war crimes in Afghanistan, Guantánamo and Iraq.

The central theme of the Republican Convention was Bush's bona fides as a tough president who will save us from another terrorist attack. Instead of examining why we went to war with a country that posed no threat to us, the agenda was replete with rhetoric about fighting the terrorists in Iraq so we wouldn't have to fight them here.

Significantly absent from the patriotic speeches was the "t" word. Not even a brief acknowledgement that prisoners in American custody were mistreated. Torture is on the back burner. Every so often, another official report comes out, with more disturbing revelations, but never directly implicates Bush, Cheney or Rumsfeld.

Even the release of Seymour Hersh's new book, Chain of Command: The Road from 9/11 to Abu Ghraib, has garnered scant attention in the daily fare of television staples, where most Americans get their news. But Rumsfeld noticed. Four days before the book's release, without having read it, the Department of Defense issued a rare but characteristically preemptive attack on the book.

Rumsfeld testified before the Senate Armed Services Committee that his department was alerted to the abuse of prisoners at Abu Ghraib in January 2004. Rumsfeld told Bush in February about an "issue" involving mistreatment of prisoners in Iraq, according to a Senior White House aide.

These claims are disingenuous. The roots of Abu Ghraib, writes Hersh, lie in the creation of the "unacknowledged" special-access program (SAP) established by a top-secret order Bush signed in late 2001 or early 2002. The presidential order authorized the Defense Department to set up a clandestine team of Special Forces operatives to defy international law and snatch, or assassinate, anyone considered a "high-value" Al Qaeda operative, anywhere in the world.

Rumsfeld expanded SAP into Iraq in August 2003. It was Rumsfeld who approved the use of physical coercion and sexual humiliation to extract information from prisoners. Rumsfeld and Bush set this system in motion long before January 2004. The mistreatment of prisoners at Abu Ghraib was part of the ongoing operation.

Hersch quotes a CIA analyst who was sent to the U.S. military prison at Guantánamo in late summer of 2002, to find out why so little useful intelligence had been gathered. After interviewing 30 prisoners, "he came back convinced that we were committing war crimes in Guantánamo."

By fall 2002, the analyst's report finally reached Gen. John A. Gordon, the deputy national security adviser for combating terrorism, who reported directly to national security adviser Condoleezza Rice. Gordon was deeply distressed by the report and its implications for the treatment of captured American soldiers. He also thought "that if the actions at Guantánamo ever became public, it'd be damaging to the president."

Gordon passed the report to Rice, who called a high-level meeting in the White House situation room. Rumsfeld, who had been encouraging his soldiers to get tough with prisoners, was present at the meeting. Yet Rice asked Rumsfeld "what the issues were, and he said he hadn't looked into it." Rice urged him to look into it: "Let's get the story right," she declared.

A military consultant with close ties to Special Operations told Hersh that war crimes were committed in Iraq and no action was taken. "People were beaten to death," he said. "What do you call it when people are tortured and going to die and the soldiers know it, but do not treat their injuries?" the consultant asked rhetorically. "Execution," he replied to his own question.

We should have seen it coming. In Bush's January 2003 State of the Union Address, he said: "All told, more than 3,000 suspected terrorists have been arrested in many countries, and many others have met a different fate." He added, "Let's put it this way. They are no longer a problem for the United States and our friends and allies."

Bush was admitting he had sanctioned summary execution, in direct violation of international, and United States, law.

The Bush administration has also admittedly engaged in the illegal practice of rendition, where people are sent to other countries to be tortured. The C.I.A. acknowledged in testimony before Congress that prior to 2001, it had engaged in about seventy "extraordinary renditions."

In December 2001, American operatives kidnapped two Egyptians and flew them to Cairo, where they were subjected to repeated torture by electrical shocks from electrodes attached to their private parts.

Rapes, sodomy with foreign objects, the use of unmuzzled dogs to bite and severely injure prisoners, and beating prisoners to death have been documented at Abu Ghraib. Women beg their families to smuggle poison into the prisons so they can kill themselves because of the humiliation they suffered.

Allegations of routine torture have emerged from Mosul and Basra as well. "Some were burnt with fire, others [had] bandaged broken arms," claimed Yasir Rubaii Saeed al-Qutaji. Haitham Saeed al-Mallah reported seeing "a young man of 14 years of age bleeding from his anus and lying on the floor." Al-Mallah heard the soldiers say that "the reason for this bleeding was inserting a metal object in his anus."

The army has charged one Sergeant with assault and other crimes, and is recommending that two dozen American soldiers face criminal charges, including negligent homicide for mistreatment of prisoners in Afghanistan.

Last week, three Americans, running a private prison, but reportedly working with the CIA, were convicted of kidnapping and torture and sentenced to 8-10 years in prison by an Afghan court. Afghan police had discovered three men hanging from the ceiling, and five others were found beaten and tied in a dark small room.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty ratified by the U.S. and thus part of our binding domestic law, defines torture as follows: the infliction of severe pain or suffering for the purpose of obtaining a confession, discrimination, coercion or intimidation.

Torture, inhuman treatment, and willful killing are grave breaches of the Geneva Conventions, treaties ratified by the United States. Grave breaches of Geneva are considered war crimes under our federal War Crimes Act of 1996. American nationals who commit war crimes abroad can receive life in prison, or even the death penalty if the victim dies. Under the doctrine of command responsibility, a commander can be held liable if he knew or should have known his inferiors were committing war crimes and he failed to prevent or stop them.

When John Walker Lindh was captured in Afghanistan in December 2001, his American interrogators stripped and gagged him, strapped him to a board, and displayed him to the press. He was writhing in pain from a bullet left in his body.

Although initially charged with crimes of terrorism carrying life in prison, John Ashcroft permitted Lindh to plead guilty to lesser crimes that garnered him 20 years. The condition: Lindh make a statement that he suffered "no deliberate mistreatment" while in custody. The cover-up was underway.

Lawyers from the Defense and Justice Departments penned lengthy memos and created a definition of torture much narrower than the one in the Torture Convention. They advised Bush how his people could engage in torture and avoid prosecution under the federal Torture Statute.

Relying on advice in these memos, Bush issued an unprecedented order that, as commander-in-chief, he has the authority to suspend the Geneva Conventions. In spite of Geneva's requirement that a competent tribunal decide whether someone qualifies for POW status, Bush took it upon himself to decide that Al Qaeda and Taliban prisoners in Afghanistan were not protected by the Geneva Convention on the POWs.

This decision was premised on the reasoning of White House Counsel Alberto Gonzalez, that "the war against terrorism is a new kind of war, a new paradigm [that] renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." Quaint!

A still-secret section of the recently-released Fay Report says that "policies and practices developed and approved for use on Al Qaeda and Taliban detainees who were not afforded the protection of the Geneva Conventions, now applied to detainees who did fall under the Geneva Conventions' protections."

The Schlesinger Report that came out a few weeks ago accused the Pentagon's top civilian and military leadership of failing to exercise sufficient oversight and permitting conditions that led to the abuses. Rumsfeld's reversals of interrogation policy, according to the report, created confusion about which techniques could be used on prisoners in Iraq.

Rumsfeld has admitted ordering an Iraqi prisoner be hidden from the International Committee of the Red Cross. Pentagon investigators believe the CIA has held as many as 100 "ghost" detainees in Iraq. Hiding prisoners from the Red Cross violates Geneva.

The Schlesinger Report confirmed 5 detainee deaths as a result of interrogation, and 23 more deaths are currently under investigation.

In May, when the Abu Ghraib scandal was on the front pages, there were demands for Rumsfeld to resign. But Cheney told Rumsfeld there would be no resignations. It was blatantly political. We're going to hunker down and tough it out, Cheney said, so as not to hurt Bush's chances for election in November.

Maj. Gen. Geoffrey Miller, the American commander in charge of detentions and interrogations at Abu Ghraib prison, was sent from Guantánamo to Iraq last fall to transplant his harsh interrogation techniques. Miller recently conducted an overnight tour of Abu Ghraib for journalists.

He proudly displayed "Camp Liberty" and "Camp Redemption," newly renovated in response to the torture scandal.

Under the new system in place at Abu Ghraib, an interrogation plan is submitted to a lawyer for approval before any interrogation begins. The time required to process prisoners has been reduced from 120 to 50 days. Since July, 60% of the reviews have led to releases.

Three hundred Iraqi prisoners were released Wednesday. Each walked away with $25 and a 12-page glossy pamphlet on Iraq's interim government.

But evidence of war crimes by the Bush administration - notably Rumsfeld, Cheney and Bush - continues to emerge. And in spite of Bush's renunciation of the International Criminal Court, many people around the world are clamoring for Bush and his deputies to be held accountable. In the words of Yale law professor Bruce Ackerman: "It is one thing to protect the armed forces from politicized justice; quite another, to make it a haven for suspected war criminals."

Marjorie Cohn, is a contributing editor to t r u t h o u t, a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

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