Retired General Antonio Taguba, the officer who led the Army's investigation into Abu Ghraib, recently wrote in the preface to the new report, Broken laws, Broken Lives:
"There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."
Should those who ordered war crimes be held to account? With the conclusion of the Bush regime approaching, many people are dubious, even those horrified by Administration actions. They fear a long, divisive ordeal that could tear the country apart. They note that such division could make it far harder for the country to address the many other crises it is facing. They see the upcoming elections as a better way to set the country on a new path.
Many Democrats in particular are proposing to let bygones be bygones and move on to confront the problems of the future, rather than dwelling on the past. The Democratic leadership sees rising gas prices, foreclosures, and health care costs, as well as widespread dissatisfaction with the direction of the country, as playing in their favor. Why risk it all by playing the war crimes blame game? Perhaps some Democratic leaders are also concerned that their own role in enabling or even encouraging war crimes might be exposed.
Meanwhile, the evidence confirming not only a deliberate policy of torture, but of conspiring in an illegal war of aggression and conducting a criminal occupation, continues to pile ever higher. Bush's own press secretary Scott McClelland has revealed in his book, What Happened, how deliberately the public was misled to foment the attack on Iraq. Philippe Sands' new book, Torture Team, has shown how the top legal and political leadership fought for a policy of torture--circumventing and misleading top military officials to do so. Jane Mayer's The Dark Side, reveals that a secret report by the Red Cross--given to the CIA and shared with President Bush and Condoleezza Rice--found that US interrogation methods are "categorically" torture and that the "abuse constituted war crimes, placing the highest officials in the US government in jeopardy of being prosecuted."
Despite the reluctance to open what many see as a can of worms, there are fresh moves on many fronts to hold top US officials accountable for war crimes.
Courts: US courts have issued a barrage of decisions against the Administration's claim that they can do anything and still be within the law. The Supreme Court ruled June 12 that the Administration cannot deny habeas corpus rights to Guantánamo detainees. The DC Circuit Court of Appeals on June 30 overturned the Pentagon's enemy combatant designation of a Chinese Muslim held in Guantánamo for the last six years. A Maine jury in April acquitted the Bangor Six of criminal trespass charges stemming from protesters' claim that the "Constitution was being violated by the Bush Administration's involvement in Iraq."
Congressional investigation: Rep. John Conyers has recently brought top policy-makers, including former Deputy Assistant Attorney General John Yoo, Vice President Cheney's Chief of Staff David Addington, and this week former Undersecretary of Defense Douglas Feith and former Attorney General John Ashcroft before a House Judiciary subcommittee and grilled them on their role crafting the Administration's torture policy.
Senate hearings in June revealed that treatment of Guantánamo captives was modeled on techniques allegedly used by Communist China to force false confessions from US soldiers.
Impeachment: Despite Majority Leader Nancy Pelosi's instruction to keep impeachment "off the table," Rep. Dennis Kucinich for the first time brought an impeachment resolution to the House floor that incorporated a devastating, thirty-five article indictment spelling out Bush Administration war crimes and crimes against the Constitution. Now Rep. Conyers has announced that the Judiciary Committee will hold hearings on the charges July 25. Even after the Bush Administration leaves office, the judges it appointed who appear complicit in war crimes--notably torture policy architect Judge Jay S. Bybee--could still be impeached.
Truth commission: In response to General Taguba's accusations, New York Times Op-Ed columnist Nicholas D. Kristof has just called for the establishment of a truth commission--like that of post-Apartheid South Africa--with subpoena power to investigate the abuses in the aftermath of 9/11 and "lead a process of soul searching and national cleansing."
International: In May, Vanity Fair magazine published an article by British human rights attorney Philippe Sands, in which he described the reasons Administration lawyers face a real risk of criminal investigations if they stray beyond US borders. The British parliament is about to launch an investigation of Washington's lying to the British government about its use of its facilities for "extraordinary rendition." Constitutional lawyer Jonathan Turley recently said, "I think it might in fact be time for the United States to be held internationally to a tribunal. I never thought in my lifetime I would say that." Colin Powell's former chief of staff Lawrence Wilkerson publicly advised Feith, Addington, And Albert Gonzales "never to travel outside the U.S., except perhaps to Saudi Arabia and Israel."
Prosecution: According to a recent Mellman Group survey commissioned by the American Civil Liberties Union, Americans of all political stripes overwhelmingly support the appointment of an independent prosecutor to investigate both the destruction of the CIA's interrogation tapes and the possible use of torture by the agency. Every segment of the electorate--including majorities of Democrats (82 percent), independents (62 percent), and Republicans (51 percent) -- want to hold this administration accountable for its role in the destruction of the torture tapes.
Vincent Bugliosi, the former Los Angeles County Prosecutor who has won twenty-one convictions in murder trials, including Charles Manson's, has just published The Prosecution of George W. Bush for Murder, which argues that there is overwhelming evidence President Bush took the nation to war in Iraq under false pretenses and must be prosecuted for the consequent deaths of over 4,000 US soldiers.
Dean Lawrence Velvel of the Massachusetts School of Law at Andover is planning a September conference to map out war crimes prosecutions against President Bush and other administration officials. Velvel says that "plans will be laid and necessary organizational structures set up, to pursue the guilty as long as necessary and, if need be, to the ends of the Earth." Reps. John Conyers, Jerrold Nadler, and Bill Delahunt have called on Attorney General Michael Mukasey to appoint a special counsel to investigate the rendition of Canadian citizen Maher Arar to Syria.
Citizen action: Voters in Brattleboro and Marlboro, Vermont this spring approved a measure that instructs police to arrest President George W. Bush and Vice President Dick Cheney for "crimes against our Constitution," should they venture into those precincts.
All these developments suggest approaches that might be used to hold Bush Administration war criminals accountable. Establishing accountability for US war crimes in the Iraq war era is the sine qua non for initiating a new era on different principles. Here are nine reasons why we must not let bygones be bygones:
1. World peace cannot be achieved without human rights and accountability.
According to Supreme Court Justice Robert Jackson, chief American prosecutor at the Nuremberg Tribunals, "The ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law." Moving in that direction will be impossible unless such responsibility applies to the statesmen of the world's most powerful countries, and above all the world's sole superpower. US support for the war crimes charges like those just brought by the prosecutor of the International Criminal Court against Sudanese President Omar al-Bashir will represent little more than hypocrisy if US Presidents are not held to the same standard.
2. The rule of law is central to our democracy.
Most Americans believe that even the highest officials are bound by law. If we send mentally-disabled juveniles to prison as adults, but let government officials who authorize torture and launch illegal wars go scot-free, we destroy the very basis of the rule of law.
3. We must not allow precedents to be set that promote war crimes.
Executive action unchallenged by Congress changes the way our law is interpreted. According to Robert Borosage, writing for Huffington Post, "If Bush's extreme assertions of power are not challenged by the Congress, they end up not simply creating new law, they could end up rewriting the Constitution itself."
4. We must restore the principles of democracy to our government.
The claim that the President, as commander-in-chief, can exercise the unlimited powers of a king or dictator strikes at the very heart of our democracy. As Supreme Court Justice Robert Jackson put it, we, as citizens, would "submit ourselves to rules only if under rules." Countries like Chile can attest that the restoration of democracy and the rule of law requires more than voting a new party into office--it requires a rejection of impunity for the criminal acts of government officials.
5. We must forestall an imperialist resurgence.
When they are out of office, the advocates of imperial expansion and global domination have proven brilliant at lying in wait to undermine and destroy their opponents.
They did it to destroy the presidencies of Jimmy Carter and Bill Clinton. They'll do it again to an Obama Administration unless their machinations are exposed and discredited first.
6. We must have national consensus on the real reasons for the Bush Administration's failures.
Republicans are preparing to dominate future decades of American politics by blaming the failure of the Iraq war on those who "sent a signal" that the US would not "stay the course" whatever the cost. Establishing the real reasons for the failure of the US in Iraq--the criminal and anti-democratic character of the war--is the necessary condition for defeating that effort.
7. We must restore America's damaged reputation abroad.
The world has watched as the United States--the self-proclaimed steward of democracy--has systematically broken the letter and spirit of its Constitution, violated international treaties, and ignored basic moral tenets of humanity. As former Navy General Counsel Alberto Mora recently pointed out to the Senate Armed Services Committee, our nation's "policy of cruelty" has violated our "overarching foreign policy interests and our national security." To establish international legitimacy, we must demonstrate that we are capable of holding our leaders to account.
8. We must lay the basis for major change in US foreign policy.
Real security in the era of global warming and nuclear proliferation must be based on international cooperation. But genuine cooperation requires that the US entirely repudiate the course of the past eight years. The American people must understand why international cooperation rather than pursuit of global domination is necessary to their own security. And other countries must be convinced that we really mean it.
9. We must deter future US war crimes.
The specter of more war crimes haunts our future. Rumors continue to circulate about an American or American-backed Israeli attack on Iran. A recently introduced House resolution promoted by AIPAC "demands" that the President initiate what is effectively a blockade against Iran--an act seen by some as tantamount to a declaration of war. Nothing could provide a greater deterrent to such future war crimes than establishing accountability for those of the past.
Holding war criminals accountable will require placing the long-term well-being of our country and the world ahead of short-term political advantage. As Rep. Wexler put it, "We owe it to the American people and history to pursue the wrongdoing of this Administration whether or not it helps us politically or in the next election. Our actions will properly define the Bush Administration in the eyes of history and that is the true test."
Jeremy Brecher is a historian whose books include Strike!, Globalization from Below, and, co-edited with Brendan Smith and Jill Cutler, In the Name of Democracy: American War Crimes in Iraq and Beyond (Metropolitan/Holt). He has received five regional Emmy Awards for his documentary film work. He is a co-founder of WarCrimesWatch.org.
Brendan Smith is a legal analyst whose books include Globalization From Below and, with Brendan Smith and Jill Cutler, of In the Name of Democracy: American War Crimes in Iraq and Beyond (Metropolitan). He is current co-director of Global Labor Strategies and UCLA Law School's Globalization and Labor Standards Project, and has worked previously for Congressman Bernie Sanders (I-VT) and a broad range of unions and grassroots groups. His commentary has appeared in the Los Angeles Times, The Nation, CBS News.com, YahooNews and the Baltimore Sun. Contact him at firstname.lastname@example.org.
Copyright © 2008 The Nation