Will War Crimes Be Outed?

As the officials of the Bush administration pack up in Washington and
move into their posh suburban homes around the country, will they be
able to rest easy, or will they be haunted by the fear that they will be
held accountable for war crimes committed during their reign?

There are many reasons to anticipate that the incoming Obama
administration and the new Congress will let sleeping dogs lie.
Attention to criminal acts by the former administration would probably
anger Republicans, whose support Obama is hoping to win for his first
priority, his economic program. Democratic Congressional leaders have
known a great deal about Bush administration lawlessness, and in some
cases have even given it their approval--making an unfettered review
seem unlikely.

Some of Obama's own top appointees would undoubtedly receive scrutiny in
an unconstrained investigation--Obama's reappointed defense secretary
Robert Gates, for example, has had responsibility not only for
Guantanamo but also for the incarceration of tens of thousands of
Iraqis in prisons in Iraq like Camp Bucca, which the Washington
Postdescribed in a headline as "a Prison Full of
Innocent Men," without even a procedure for determining their guilt or
innocence--unquestionably a violation of the Geneva Conventions in and
of itself.

But the repose of the Cheneys, Bushes, Gonzaleses and Rumsfelds may not
turn out to be so undisturbed. In his notorious torture memo, Alberto
Gonzales warned about "prosecutors and independent counsels" who may in
the future decide to pursue "unwarranted charges" based on the US War
Crimes Act's prohibition on violations of the Geneva Conventions. While
no such charges are likely to be brought anytime soon, neither are they
likely to vanish. In the short run, Obama and his team face inescapable
questions about the legal culpability of the Bush administration. And in
the long run, such charges are likely to grow only more unavoidable once
the former officials of that administration have lost the authority
to quash them.

In April Obama said that if elected, he would have his attorney general
initiate a prompt review of Bush-era action to distinguish between
possible "genuine crimes" and "really bad policies."

"If crimes have been committed, they should be investigated," Obama told the Philadelphia
Daily News. He added, however, that "I would not want my first term
consumed by what was perceived on the part of Republicans as a partisan
witch hunt, because I think we've got too many problems we've got to
solve."

Obama's nominee for attorney general, Eric Holder, speaking to the
American Constitution Society in June, described Bush administration
actions in terms that sound a whole lot more like "genuine crimes" than
like "really bad policies":

Our government authorized the use of torture, approved of secret
electronic surveillance against American citizens, secretly detained
American citizens without due process of law, denied the writ of habeas
corpus to hundreds of accused enemy combatants and authorized the use of
procedures that violate both international law and the United States
Constitution.... We owe the American people a reckoning."

A Reckoning?

While attention has focused on whether, once president, Obama will move
quickly to close Guantanamo, shut down secret prisons, halt
rendition and ban torture, there's a less visible struggle over whether
and how to provide a reckoning for war crimes past.

A growing body of legal opinion holds that Obama will have a duty to
investigate war crimes allegations and, if they are found to have merit,
to prosecute the perpetrators.

In a December 3 Chicago Sun-Times op-ed, law professors Anthony D'Amato (the Leighton
Professor at Northwestern University School of Law) and Jordan J. Paust
(the Mike & Thersa Baker Professor at the Law Center of the University
of Houston) ask whether president-elect Barack Obama will have "the
duty to prosecute or extradite persons who are reasonably accused of
having committed and abetted war crimes or crimes against humanity
during the Bush
administration's admitted 'program' of 'coercive interrogation' and
secret detention that was part of a 'common, unifying' plan to deny
protections under the Geneva Conventions."

They answer, "Yes."

"Under the US Constitution, the president is expressly and unavoidably
bound to faithfully execute the laws." The 1949 Geneva Conventions
"expressly and unavoidably requires that all parties search for
perpetrators of grave breaches of the treaty" and bring them before
their own courts for "effective penal sanctions" or, if they prefer,
"hand such persons over for trial to another High Contracting Party."

The statement is particularly authoritative--and particularly
striking--because Paust is also a former captain in the United States
Army JAG Corps and member of the faculty at the Judge Advocate General's
School.

Michael Ratner of the Center for Constitutional Rights says that
one of Barack Obama's first acts as president should be to "instruct his
attorney general to appoint an independent prosecutor to initiate a
criminal investigation of former Bush Administration officials who gave
the green light to torture."

Parallel to the legal community, members of Congress and president-elect
Obama are trying to chart a
strategy that avoids the appearance of seeking to punish Bush
administration officials without appearing blatantly oblivious to their
apparent war crimes. According to the AP's
Lara Jakes Jordan, "Two Obama advisors say there's little--if
any--chance that the incoming president's Justice Department will go
after anyone involved in authorizing or carrying out interrogations that
provoked worldwide outrage." Instead, "Obama is expected to create a
panel modeled after the 9/11 Commission to study interrogations,
including those using waterboarding and other tactics that critics call
torture."

Asked if Bush administration officials would face prosecution for war
crimes, Senate Judiciary Chairman Patrick Leahy flatly said, "In the United
States, no," but he does intend to continue to
investigate Bush administration officials and their interrogation
policies. "Personally, I would like to know exactly what happened.
Torture is going to be a major issue."

Continue the Cover-Up?

President-elect Obama may well seek to delay taking a stand for or
against such accountability actions. But he is likely to be confronted
early in his administration by choices about whether to continue or
terminate legal cover-up operations the Bush administration currently
has under way.

For example, the Bush administration has blocked the civil suit against
US officials by Canadian Maher
Arar for his "rendition" to Syria and his torture there by invoking
the "state secrets" privilege. According to Christopher Anders, senior legislative counsel for the
ACLU, they have appointed a prosecutor to investigate the destruction of
videotapes of CIA interrogations, but the investigation is limited only
to whether crimes were committed in relation to the destruction of the
tapes--not whether what was being videotaped is a crime. The
administration has refused
to cooperate with the trial of twenty-six Americans, mostly CIA
agents, who kidnapped a terrorism suspect in Milan and flew him to Egypt
where, he says, he was tortured. And they have refused to provide secret
documents to the British High Court in the case of Guantanamo
detainee Binyam Mohamed that may demonstrate that US officials were
complicit in his torture in Morocco.

If the Obama administration continues the Bush administration's efforts
to prevent investigators from investigating and courts from hearing such
cases, it will rapidly become part of the cover-up. If it begins to, at
a minimum, stop obstructing such proceedings, the result could be a
rapid crumbling of the wall of silence the Bush administration has tried
so assiduously to build around its "war on terror."

A bipartisan report
issued by the Senate Armed Services Committee on December 11 will make
it far more difficult to evade the responsibility of holding Bush
administration officials legally accountable for war crimes. Released by
Senators Carl Levin and John McCain after two years of investigation,
the report concluded:

The abuse of detainees in US custody cannot simply be attributed to the
actions of 'a few bad apples' acting on their own.... The fact is that
senior officials in the United States government solicited information
on how to use aggressive techniques, redefined the law to create the
appearance of their legality, and authorized their use against
detainees.... Secretary of Defense Donald Rumsfeld's authorization of
aggressive interrogation techniques for use at Guantanamo Bay was
a direct cause of detainee abuse there.

In an interview published in the Detroit News, Senator
Levin said he was not responsible for deciding whether officials should
be prosecuted for authorizing torture, but he admitted that there is
enough evidence that victims of abuse could file civil lawsuits against
their assailants. Levin also suggested that the Obama administration
"needs to look for ways in which people can be held accountable for
their actions."

An Accountability Movement

Outside the Beltway, a movement to hold Bush administration officials
accountable for torture and other war crimes after they leave office is
gradually emerging. It received a boost when over a hundred lawyers and
activists met in Andover, Massachusetts on September 20 at a conference entitled
"Planning for the Prosecution of High Level American War Criminals." The
conference created an ongoing committee to coordinate accountability
efforts. At the close, conference convener Dean Lawrence Velvel of the
Massachusetts School of Law noted more than twenty strategies and
specific actions that had been proposed, ranging from the state felony
prosecutions proposed by former district attroney Vincent Bugliosi to
the international prosecutions pioneered by the Center for
Constitutional Rights' Rumsfeld cases; and from impeaching Bush
appointees like Federal Judge Jay Bybee to public shaming of
torture-tainted former officials like ohn Yew, now a professor at the
University of California Law School.

One of proposals discussed at the Andover conference was the creation of
a citizens' War Crimes Documentation Center, modeled on the special
office set up by the Allied governments before the end of World War II
to investigate and document Nazi war crimes. Such a center could be the
nexus for research, education and coordination of a wide range of civil
society forces in the US and abroad that are demanding accountability.
It could bring together the extensive but scattered evidence already
available, to compile a narrative of what actually happened in the Bush
administration. It could help or pressure Congress to conduct
investigations to fill in the blanks. It could pull together
high-profile coalitions to campaign around the issue of accountability
for specific crimes like torture. If Obama does initiate some kind of
investigating commission, such a center could provide it with
information and help hold it accountable.

A Moral Education

There are a myriad of reasons for urgently holding the Bush regime to
account, ranging from preventing unchallenged executive action from
setting new legal precedent to providing a compelling rationale for the
immediate cessation of bombing civilians in the escalating Afghan war.

But the issue raised by Bush administration war crimes is even larger
than any person's individual crimes. As Thomas Paine wrote in Common
Sense, "A long habit of not thinking a thing wrong gives it a
superficial appearance of being right." The long history of aggressive
war, illegal occupation, and torture, from the Philippines to Iraq, have
given the American people a moral education that encourages us to
countenance war crimes. If we allow those who initiated and justified
the illegal conquest and occupation of Iraq and the use of torture at
Abu Ghraib and Guantanamo to go unsanctioned, we teach the
world--and ourselves--a lesson about what's OK and legal.

As countries like Chile, Turkey and Argentina can attest, restoration of
democracy, civic morality and the rule of law is often a slow but
necessary process, requiring far more than simply voting a new party
into office. It requires a wholesale rejection of impunity for the
criminal acts of government officials. As Rep. Robert Wexler (D-FL) 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.... Our actions will properly
define the Bush Administration in the eyes of history."