Marjorie Cohn: The Gonzales Indictment

Alberto Gonzales should not be the Attorney General of the United States. He should be considered a war criminal and indicted by the Attorney General. This is a suggested indictment of Alberto Gonzales for war crimes under Title 18 U.S.C. section 1441, the War Crimes Act.

COUNT I: Application of Geneva Conventions; Definition of Torture

On or about January 25, 2002 through January 16, 2005, Defendant ALBERTO GONZALES, Counsel to George W. Bush, the President of the United States of America, did write, commission and concur in memoranda that advocated conduct by United States military forces, amounting to war crimes under Title 18 U.S.C. section 1441 (The War Crimes Act ).

The War Crimes Act defines as war crimes: grave breaches of the Geneva Conventions, and violations of Article 3 common to the Geneva Conventions.

Section 130 of the Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) defines as grave breaches of that Convention: "willful killing, torture or inhuman treatment," and "willfully causing great suffering or serious injury to body or health."

It is well-established that Article 3 common applies to international as well as internal armed conflicts. Article 3 common provides that "persons taking no active part in the hostilities, including members of armed forces who have laid down their arms...shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria."

The following acts constitute violations of Article 3 common: "Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture"; "outrages upon personal dignity, in particular, humiliating and degrading treatment"; and "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Article 5 of the Third Geneva Convention provides: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy [are prisoners of war under this Convention], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

Defendant ALBERTO GONZALES wrote, in a memorandum to President George W. Bush dated January 25, 2002, that the war against terrorism is a "new paradigm" that "renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."

Defendant GONZALES wrote that the Third Geneva Convention should not apply to members of the Taliban and Al Qaeda who were captured after the United States invaded Afghanistan in October 2001. Defendant GONZALES also advised President Bush in that memorandum that he could avoid allegations of war crimes under The War Crimes Statute by simply declaring that the Geneva Convention does not apply to members of the Taliban and Al Qaeda. Defendant GONZALES wrote that a determination of the inapplicability of the Third Geneva Convention would insulate against prosecution by future "prosecutors and independent counsels."

In apparent reliance on the advice in Defendant GONZALES' memorandum, and notwithstanding the requirement of Article 5 of the Third Geneva Convention that a "competent tribunal" determine the status of prisoners, President George W. Bush issued an order on February 7, 2002, specifying that the United States would not apply the Third Geneva Convention to members of Al Qaeda, and that as commander-in-chief of the United States, he had the power to suspend the Geneva Conventions regarding the conflict in Afghanistan, although he declined to suspend them at that time.

Defendant ALBERTO GONZALES commissioned the Office of Legal Counsel of the Department of Justice's memorandum dated August 1, 2002, which required that, in order to constitute "torture," the pain caused by an interrogation must include "injury such as death, organ failure, or serious impairment of body functions." This definition is contrary to The War Crimes Act and the Convention Against Torture and Other Cruel, Unusual or Degrading Treatment or Punishment, a treaty ratified by the United States.

Before the August 1, 2002 memorandum was issued, Colin Powell, Secretary of State, had counseled against its conclusions that the Geneva Conventions did not apply; he wrote that this "will reverse over a century of U.S. policy and practice in supporting the Geneva conventions, and undermine the protection of the law of war for our troops, both in this specific conflict and in general."

Although the August 1, 2002 memorandum was retracted on December 30, 2004, the provisions of the August 1, 2002 memorandum remained in effect for 2 ½ years, notwithstanding the warnings of Secretary Powell.

The January 25, 2002 and August 1, 2002 memoranda, and the February 7, 2002 order set forth policies that led to the willful killing, torture or inhuman treatment; and great suffering or serious injury to body or health, of DOES 1 through 1,000, prisoners in United States custody in Afghanistan, Iraq, Guantánamo Bay, Cuba, as listed in EXHIBIT A (Dear Mr. Gonzales, http://www.truthout.org/docs_05/011005A.shtml).

Defendant ALBERTO GONZALES knew or should have known that, pursuant to memoranda written by, commissioned or concurred in by him, prisoners in United States custody would be subjected to willful killing, torture or inhuman treatment; and great suffering or serious injury to body or health, in violation of The War Crimes Act.

COUNT II: Military Commissions

Between September 11, 2001 and November 13, 2001, Defendant ALBERTO GONZALES did participate in the drafting of the Military Order establishing the Military Commissions, which order was signed by President George W. Bush on November 13, 2001. Said order mandated conduct by members of United States military forces which constitute war crimes under The War Crimes Act.

The War Crimes Act defines war crimes as grave breaches of the Geneva Conventions. Section 130 of the Third Geneva Convention defines as a grave breach of that Convention: "willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention."

Article 84 of the Third Geneva Convention provides that prisoners of war shall be tried in the same types of courts (military or civilian) as members of the armed forces of the Detaining Power. It also provides: "In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized."

Article 3 common to the Geneva Conventions prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Unlike courts convened pursuant to the Uniform Code of Military Justice, and civilian courts of the United States, the Military Order provides for no judicial review by federal courts of the United States. The final level of review in the Military Commissions is to the President or the Secretary of Defense.

Military Commission Order No. 1(6)(B)(3) allows the use of evidence that the accused is not permitted to see, and provides for the exclusion of the accused from the proceedings. These provisions violate the rights of the accused to be confronted with the evidence against him, and to confront and cross-examine adverse witnesses. These rights are guaranteed to the accused in courts convened under the Uniform Code of Military Justice and civilian courts in the United States.

Section 4(c)(3) of the Military Order provides for the "admission of such evidence as would, in the opinion of the presiding officer of the military commission...have probative value to a reasonable person." Such evidence would be inadmissible under the rules of evidence in courts convened under the Uniform Code of Military Justice and civilian courts in the United States.

Defendant ALBERTO GONZALES knew or should have known that the Military Commissions, in whose creation he participated, will deprive prisoners in United States custody who will be tried before them, of the rights of fair and regular trial prescribed in the Third Geneva Convention and Article 3 common to the Geneva Conventions.

Penalties Under the War Crimes Act

Title 18 U.S.C. sec. 1441 provides that any national of the United States who commits a war crime "shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death."

Marjorie Cohn, a contributing editor to t r u t h o u t, is 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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