The Bush Administration Is Not Safe From War Crimes Prosecution: From The Hague To The UN And On To Tomorrow
There Are No Wars Without War Crimes And War Criminals. And There Is No Statute Of Limitation On War Crimes Prosecutions.
The body may be getting a little old for this type of thing but I have “recovered” from the trip to the Hague.
It was enlightening to say the least and hopefully productive in the days ahead.
Our American 9 member delegation accomplished more than we anticipated and our tasks for the future are well defined.
Our 6,223 page legal Instrument developed over 3 ½ years has been widely disseminated, well-received, and after the initial shock that there are actually Americas willing to press this far in pursuit of War Crimes charges against the Bush Administration; we have been fully briefed and given guidance as to how we should move forward to achieve a serious launch of those charges in conjunction with jurisdictions that have standing before the court.
But first; the group comprises 14 Americans, 10 of which are attorneys and 4 of us who wear different stripes, advocate, writer, political consultant and computer genius. The remaining 12 consultants/advisors/reviewers, etc. are all international figures with proven International War Crimes credentials.
At the outset we rejected inclusion of cyber-space faux advocates and wind makers in favor of those dedicated to the prosecution of this nation’s war criminals, be it our life time or beyond.
There is no statute of limitations of such prosecutions and we are determined, that if all else fails, a cogent and unassailable flawlessly researched “legal Instrument” should exist for all who may take up the cause.
We acknowledge that our effort is imperfect as there are still facts unknown and documents that surely exist that we have not been able to obtain.
We were faced with a daunting, unpopular task that required tiring preparation, not the least of the challenges being that of securing funding for our effort. We have been successful in that effort. We have a comfortable private office facility in MD from which we have worked the normal expenses of operation and communications are neither extravagant nor limiting.
A significant expenditure, however, has been made in cyber security.
We have our own encrypted server, and non-commercial browser that has been built for our purposes.
The sever servers as a large conference room where all documents, documentation, questions and communications are relayed for the team to utilize in encrypted folder. There are no email communications between members as regards any sensitive matter only abbreviated land line communications as necessary. Ninety 95+% of cyber communications have been transacted at the conference table, the content of all folders open to all participants and each content named, dated and archived after appropriate disposition.
Meetings have been held in VA, MD, Boston, NY City, Chicago and 2 full sessions of the 26 aboard a private secure yacht on The Potomac.
Having returned from The Hague and our dialogs there our suspicions have been confirmed that there is no legal/research instrument/document that comes even close to what we have been able to achieve.
The Problem (s)
While the matter of The Bush Administration’s War Crimes has been no secret; this nation’s media and our government have gone to great lengths to either muffle the noise, muzzle the complainants and to immunize the guilty through all manner of alleged “legal acts” of protection from prosecution.
While the Chief Prosecutor may receive information from the public or non-governmental organizations, he may only open a formal investigation under three circumstances:
1. He Is Directed By The UN Security Council;
2. A Matter Is Referred To Him By A State Party To The ICC Treaty, Or
3. The Prosecutor Presents A Matter To A Panel Of Judges And They Approve His Request.
Crimes within the Court’s Jurisdiction:
1. The crime of genocide
2. Crimes against humanity
3. The crime of aggression
4. Crimes against United Nations and associated personnel
5. War crimes
6. Other categories of crimes
This is a summary of what the ICC defines as War Crimes:
The draft statute enumerates four different categories of war crimes. The first two categories apply to international armed conflicts and are largely based on well-established principles of international law. There is broad support for their inclusion:
I’ll come back to the rest of the Crimes in a moment, but first, let’s take a look at the applicable Geneva Conventions. You can read the full text of the Geneva Conventions here. (http://www.unodc.org/documents/human-trafficking/Toolkit-files/08-58296_tool_1-7.pdf ) and (http://protection.unsudanig.org/data/legal/Third%20Geneva%20Convention%20(POW),%201949.pdf )
If you read the entire Geneva Conventions document, pay
special attention to the following Articles:
Article 3
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities…shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
Article 17
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.
Prisoners of war, who, owing to their physical or mental condition, are unable to state their identity, shall be handed over to the medical service. The identity of such prisoners shall be established by all possible means, subject to the provisions of the preceding paragraph.
Article 87
Collective punishment for individual acts, corporal punishments, imprisonment in premises without daylight and, in general, any form of torture or cruelty, are forbidden.
Collective punishment for individual acts, corporal punishments, imprisonment in premises without daylight and, in general, any form of torture or cruelty, are forbidden.
Article 130
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.
Back to the ICC Crimes:
B. Other serious violations of the laws and customs applicable in international armed conflicts (largely derived from the Hague law, limiting the methods of waging war).
The third and fourth categories of war crimes apply to armed conflicts not of an international character. These categories are drawn from Common Article 3 of the 1949 Geneva Conventions and the Second Additional Protocol to the four Geneva Conventions, respectively. The inclusion of these two provisions is still being debated.
C. In case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949 (which bars specified acts committed against persons taking no active part in the hostilities)
D. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law (based largely on the Second Additional Protocol to the four Geneva Conventions).
As the above is a summary of the ICC Crimes, if you want detailed information, here. (http://www.un.org/icc/crimes.htm#war )
So, what are these crimes defined by the ICC and how do they relate to the Geneva conventions?
Regarding the crime of Genocide, depending on where you look, there are a lot of dead Iraqis:
Iraq Body Count lists dead Iraqi civilians. http://www.iraqbodycount.org/
One has to wonder how many dead people a genocide makes. In Bosnia, the ethnic cleansing was estimated at around 200,000. Milosevic stood trial at The Hague for that.
Ok, crimes of genocide. Check.
What about the crime of Aggression? Marjorie Cohn had this to say as early as 2003: http://globalresearch.ca/articles/COH309B.html
Bush’s “new” doctrine of “preemptive war” was a license to prosecute wars of aggression. It runs directly counter to the United Nations Charter’s prohibition on the use of armed force except in self-defense or when authorized by the Security Council. A preemptive war is a war of aggression. “Operation Iraqi Freedom” falls squarely into this category.
In 2003Kofi Annan also challenged the US doctrine of preemptive war saying that it “posed a fundamental challenge to the United Nations and could lead to a global free-for-all.” http://www.commondreams.org/headlines03/0923-01.htm
So, crimes of aggression. Check.
And then there’s war crimes. Since there are many areas, let’s take them one at a time. First up, grave breaches of the four Geneva Conventions.
The Washington Post reported in 2004:
In August 2002, the Justice Department advised the White House that torturing al Qaeda terrorists in captivity abroad “may be justified,” and that international laws against torture “may be unconstitutional if applied to interrogations” conducted in President Bush’s war on terrorism, according to a newly obtained memo.
The legal reasoning in the 2002 memo, which covered treatment of al Qaeda detainees in CIA custody, was later used in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the Defense Department’s detention center at Guantanamo Bay, Cuba. At that time, Defense Secretary Donald H. Rumsfeld had asked the lawyers to examine the logistical, policy and legal issues associated with interrogation techniques.
In the Justice Department’s view — contained in a 50-page document signed by Assistant Attorney General Jay S. Bybee and obtained by The Washington Post — inflicting moderate or fleeting pain does not necessarily constitute torture. Torture, the memo says, “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
By contrast, the Army’s Field Manual 34-52, titled “Intelligence Interrogations,” sets more restrictive rules. For example, the Army prohibits pain induced by chemicals or bondage; forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time; and food deprivation. Under mental torture, the Army prohibits mock executions, sleep deprivation and chemically induced psychosis.
The Office of Legal Counsel is the federal government’s ultimate legal adviser. The most significant and sensitive topics that the federal government considers are often given to the OLC for review. In this case, the memorandum was signed by Jay S. Bybee, the head of the office at the time. Bybee’s signature gives the document additional authority, making it akin to a binding legal opinion on government policy on interrogations. Bybee has since become a judge on the 9th U.S. Circuit Court of Appeals.
Perhaps, I should let you decide. To refresh the following is prohibited at any time and at any place whatsoever:
· Murder, mutilation, cruel treatment and torture
· Outrages upon personal dignity, in particular, humiliating and degrading treatment
· No physical or mental torture, nor any other form of coercion to secure information of any kind
· Collective punishment
· Great suffering or serious injury to body or health
Let’s look at what has been done in your name; in the name of the United States of America? (2006) http://www.antiwar.com/news/?articleid=8560
Many lawyer groups, citizens, and countries around the world have chimed in, not just against the Bush Administration, but towards Tony Blair, former Prime Minister of England.
Mr. Blair is in a much more precarious position because, unlike George Bush, Blair did not pull out of the ICC, so he can be more readily held to its standards.
Alright, we now know what the whole ICC Crimes and Geneva Conventions are about. Does the Bush Administration fall into any of these categories? Apparently, many think they do.
Based on a (2007) book written by two American Civil Liberties Union attorneys: http://rawstory.com/news/2007/General_claims_Bush_gave_marching_orders_1022.html
“The documents show unambiguously that the administration has adopted some of the methods of the most tyrannical regimes,” write Jameel Jaffer and Amrit Singh. “Documents from Guantanamo describe prisoners shackled in excruciating ‘stress positions,’ held in freezing-cold cells, forcibly stripped, hooded, terrorized with military dogs, and deprived of human contact for months.”
And Jonathan Turley (2008), an attorney who has argued case law in front of the Supreme Court and Professor of Constitutional Law at George Washington University : http://rawstory.com/news/2008/Turley_Yoo_memo_evidence_of_Bush_0404.html
“It is really amazing because Congress — including the Democrats — have avoided any type of investigation into torture because they do not want to deal with the fact that the president ordered war crimes,” Turley told MSNBC’s Keith Olbermann. “But evidence keeps on coming out…. What you get from this is this was a premeditated and carefully orchestrated torture program. Not torture, but a torture program.”
The president and his aides were very, very careful to go to the lawyers first so they could make a claim they were acting under some assumption of actual authority,” he said. “There really is none.”
Again (2003) Marjorie Cohn, president of the National Lawyers Guild, recognized as one of San Diego’s top attorneys in academics, who lectures on international human rights and US foreign policy said:
Non-governmental organizations and individuals from sixty-six different countries filed 499 “communications” – or complaints – with the International Criminal Court (ICC), between July 2002 and July 2003.
Many of them urge the ICC to investigate the United States conduct in the war on Iraq. The primary charge is that the U.S. committed an act of aggression against Iraq. The ICC has jurisdiction to punish the crime of aggression.
Bush’s “NEW” doctrine of “preemptive war” is a license to prosecute wars of aggression. It runs directly counter to the United Nations Charter’s prohibition on the use of armed force except in self-defense or when authorized by the Security Council. A preemptive war is a war of aggression. “Operation Iraqi Freedom” falls squarely into this category.
More than 50 years ago, Associate United States Supreme Court Justice Robert Jackson, one of the prosecutors at the Nuremberg Tribunal, wrote: “No political or economic situation can justify” the crime of aggression. He added: “If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.” An impartial international criminal tribunal is necessary to prevent “victor’s justice,” where only the vanquished are subject to prosecution.
Under the treaty, the ICC can take jurisdiction over a national of even a non-party state if he or she commits a crime in a state party’s territory. The U.S. vehemently objects to this. But it’s nothing new. Under well-established principles of international law, the core crimes prosecuted in the ICC – genocide, war crimes, crimes against humanity, and the crime of aggression – are crimes of universal jurisdiction.
That means that an alleged perpetrator can – and always could – be arrested anywhere.
And then there was a group of Canadian lawyers who have charged Bush with torture. In Vancouver, Lawyers Against the War filed torture charges against George W. Bush under the Canadian Criminal Code.
The charges concern the well known abuses of prisoners held by US Armed Forces in the Abu Ghraib prison in Iraq and the Guantánamo Bay prison in Cuba. The charges were accepted by the Justice of the Peace and referred for a hearing to decide whether Bush should be required to appear for trial.
Of course, the Japanese attorneys also wanted in to this party. Japanese lawyers also filed a war crimes ‘indictment’ against Bush.
President Bush was being “indicted” for war crimes allegedly committed against the Afghan people since the U.S.-led coalition began its antiterrorism campaign in October 2001, a group of Japanese lawyers announced.
“We believe that attacks on Afghanistan led by the U.S. forces, such as aerial bombings and killings, were a violation of international law,” said Haruhisa Takase, secretary general of the Tokyo-based International Criminal Tribunal for Afghanistan.
The lawyers are a nongovernmental private group and have neither official status nor authority, according to Takase.
The “indictment” was a device meant to signify the lawyers’ condemnation of U.S. actions in Afghanistan, he said.
Takase contended that Bush also may be liable for bombing private facilities and slaying war prisoners. And the citizens in Japan felt the same way.
A citizens’ tribunal in Tokyo found U.S. President George W. Bush guilty of war crimes for attacking civilians with indiscriminate weapons and other arms during the U.S.-led antiterrorism operations in Afghanistan in 2001.
The tribunal also issued recommendations for banning depleted uranium shells and other weapons that could indiscriminately harm people, compensating the victims in Afghanistan and reforming the United Nations in light of its failure to stop the U.S.-led operation there.
The tribunal participants spent two years examining Bush’s role as the top commander in the war, making eight field trips to Afghanistan and holding nearly 20 public hearings.
“Bush said that military presence in Afghanistan is self-defense,” said Robert Akroyd, a British lawyer who served as one of the five judges.
“But under international law,” he said, “a defendant must pay great care to discriminate (between) legitimate objects and civilians” in claiming that one’s act is self-defense, said Akroyd, former head of legal studies at Aston University in Britain.
Bush failed to do so with the U.S. military’s use of “indiscriminate weapons such as the Daisy Cutter (a huge conventional bomb), cluster bombs and depleted uranium shells,” he said.
In addition, a Tokyo War Crimes indictment was handed down against George W. Bush for his actions in Afghanistan.
But let’s not leave our own attorneys out in the cold. Here is an open letter from the National Lawyers Guild to Congressman John Conyers to appoint a special prosecutor to investigate war crimes:
We write to ask that you take the lead in efforts to appoint special counsel to investigate the top officials of the current US Government executive branch and their leading co-conspirators. The targets of this proposed investigation include, but are not limited to George W. Bush, Dick Cheney, Karl Rove, Donald Rumsfeld, Paul Wolfowitz, Condoleeza Rice, Colin Powell, Stephen Cambone, Douglas Feith, Lewis Libbey, Richard Perle, Elliott Abrams, Michael Ledeen, James Woolsey, Newt Gingrich, and John Ashcroft.
And students and the Civil Rights Defense Committee also joined the party announcing indictments for torture, illegal detention and murder as have many Citizen’s Tribunals around the world.
But the most riveting indictment is this, which was drafted by a panel of jurists including law professors, physicians, and a US diplomat and retired US Army Colonel (which is not the full indictment. Go to the link to download the full indictment.): http://www.envirosagainstwar.org/know/read.php?itemid=4637
The Commission will inquire into the following charges:
Torture:
Count 1: The Bush administration authorized the use of torture and abuse in violation of international humanitarian and human rights law and domestic constitutional and statutory law.
Rendition: Count 2: The Bush administration authorized the transfer (“rendition”) of persons held in U.S. custody to foreign countries where torture is known to be practiced.
Illegal Detention: Count 3: The Bush administration authorized the indefinite detention of persons seized in foreign combat zones and in other countries far from any combat zone and denied them the protections of the Geneva Conventions on the treatment of prisoners of war and the protections of the U.S. Constitution.
Count 4: The Bush administration authorized the round-up and detention in the United States of tens of thousands of immigrants on pretextual grounds and held them without charge or trial in violation of international human rights law and domestic constitutional and civil rights law.
Count 5: The Bush administration used military forces to seize and detain indefinitely without charges U.S. citizens, denying them the right to challenge their detention in U.S. courts.
Murder: Count 6: The Bush administration committed murder by authorizing the CIA to kill those that the president designates either US citizens or non-citizens, anywhere in the world.
Which brings us to the meat of this post, the thing you are probably most curious about? How after everything that is now known about the actions of The Bush Administration, in our name, can we still be struggling to bring all the guilty to justice?
Have George W. Bush and people in his administration charged with war crimes?
Yes…and no. Several people in the Bush administration have received indictments for war crimes, including George Bush – but, there is a but. Keep reading. The process, its inherent limits and ambiguities provide the setting for that frustration.
The following type of event has been repeated time and again.
First, let’s start with the only major publication in the United States; The New York Times that we could find that reported this story on June 20, 2003. http://www.nytimes.com/2003/06/20/world/world-briefing-europe-belgium-suits-against-bush-and-blair.html
BELGIUM said it had received lawsuits against President Bush and Prime Minister Tony Blair of Britain under a controversial war crimes law. But it said it had transferred the cases to the United States and Britain, reducing their chances of reaching a court. The Justice Ministry declined to say by whom the lawsuits were filed, but the law allows anyone to bring war crimes charges in Belgian courts. It was recently amended to allow the government to dismiss politically motivated cases by transferring them to the defendants’ home country, as was also done with a recent lawsuit brought by a group of Iraqis against Gen. Tommy R. Franks, commander of allied forces in Iraq. The United States has said it wants Belgium to strike the law altogether.
ONE LOUSY PARAGRAPH?!?
The President of the United States of America and the Prime Minister of the United Kingdom have been charged with war crimes against humanity – and basically blown off by giving the countries involved jurisdiction – and one lousy paragraph? The Corporate Media doing its puppet job.
Common Dreams had more information (originally reported by Reuters, but no longer available online): http://www.commondreams.org/headlines03/0619-09.htm
BELGIUM’s 1993 law of universal jurisdiction allows its courts to prosecute people accused of genocide, crimes against humanity and war crimes regardless of where the crime occurred or whether the suspects or victims were Belgian.
U.S. Secretary of State Colin Powell recently warned that Belgium was putting its international reputation at stake because of the law. Powell in March was named in a lawsuit filed by the families of Iraqi victims of a U.S. attack on a shelter that killed 400 people during the 1991 Gulf War.
Former U.S. President George Bush senior, and other members of his administration, including then defense secretary and now Vice President Dick Cheney, were also held responsible in the suit.
BELGIUM’S justice ministry said legal authorities had received lawsuits against Bush, Blair and a host of senior U.S. officials for crimes against humanity in Iraq and Afghanistan.
The ministry was able to send the lawsuits to Britain and the United States under the recent change to the genocide law, ministry spokesman Joannes Thuy told Reuters.
“The renewed law makes it possible to send a lawsuit to a country if it has a legal system which can deal with this kind of complaint,” he said.
One lawsuit accused Bush, Blair, Secretary of State Colin Powell, Defense Secretary Donald Rumsfeld and U.S. General Tommy Franks of crimes against humanity in the recent Iraq war, a ministry statement said.
A second lawsuit was against Powell, also regarding the Iraq war.
A third was against Bush, Rumsfeld, U.S. Attorney General John Ashcroft, U.S. national security adviser Condoleezza Rice and Deputy Defense Secretary Paul Wolfowitz for crimes against humanity in Afghanistan and Iraq.
Well, that’s just dandy. Send the lawsuits back here. The Justice Department simply ignored the Belgian request and issued thinly veiled threats of reprisal. http://news.bbc.co.uk/2/hi/middle_east/2983911.stm
But not everyone gave in immediately: War crimes going ahead.
A Belgian lawyer ( Jan Fermon) planned to press ahead with a war crimes lawsuit against US General Tommy Franks, despite American anger.
The suit, brought by 19 Iraqis, accuses General Franks of war crimes during the Iraq conflict.
Lawyer Jan Fermon, acting on behalf of the Iraqis, described the plaintiffs as victims of cluster bombs and of US attacks on ambulances and civilians.
First, U.S.-led forces targeted and killed many civilians during massive bombing of facilities unrelated to military objectives, such as government ministries serving civilian needs, as well as hospitals, schools and homes.
Secondly, he told IPS, the military used disproportionate force with its so-called ”covering fire” technique, which means indiscriminate shooting at shops, homes and mosques, killing many civilian non-combatants, including women and children.
The Lawyers Committee for Human Rights and Amnesty International have both called for the establishment of a commission of experts to examine past and recent international war crimes and genocide committed in Iraq.
Listen to an interview with the attorney, Mr. Fermon, who filed the lawsuit here: http://www.democracynow.org/2003/5/7/iraqi_civilians_sue_general_tommy_franks
“We have a very specific case, with specific evidence,” Mr Fermon said. “I do not see how they can reject it.”
Mr. Fermon said there were 17 “specific incidents” in which US soldiers and commanders had violated the law.
The BBC’s Justin Webb in Washington said Bush administration officials are making it plain they would regard a prosecution of General Franks as a major diplomatic incident – an example of political harassment.
A senior administration official warned that even the issuing of indictments would result in what he called “diplomatic consequences” for Belgium.
But Mr. Fermon hit back at Washington.
“I think the US State Department has nothing to hide, in which case it’s very important for them to have an independent inquiry – and why can’t it be a Belgian magistrate – or they have something to hide and that’s why they are threatening Belgium,” the lawyer said.
Ten Iraqi civilians are planning to press war crimes charges against U.S. General Tommy Franks, the commander of the U.S.-led war in Iraq, the American newspaper the Washington Times reported. Iraqis say the U.S. military committed war crimes, including the bombing of a Baghdad market.
The Iraqis, allegedly eyewitnesses and victims of U.S. atrocities, hold coalition forces responsible for numerous crimes, including failing to prevent looting, firing on an ambulance, shooting and injuring Iraqi civilians, causing the deaths of scores of people by bombing a Baghdad marketplace and killing at least ten passengers driving in a civilian bus near the town of Hillah.
“U.S. military officials had the authority but did nothing to stop these war crimes from occurring,” Fermon told the newspaper. “A military commander is responsible for war crimes even if he did not commit or order them, but also if he fails to take all the necessary steps to prevent the atrocities from happening.”
But it was not just Belgium which risked the wrath of the Bush Administration:
And then there was this formal complaint sent to the ICC by Health Now also leveling war crime charges against the US and UK.
And what of Donald Rumsfeld, he of known knowns, known unknowns, unknown unknowns or simply not knowing what the hell he’s talking about, the Secretary of Defense at the time?
Criminal charges were sought in 2004 by Wolfgang Kaleck as well as Michael Ratner and Peter Weiss of the U.S.-based Center for Constitutional Rights in German courts against Donald Rumsfeld for war crimes. They were rejected by German Federal Public Prosecutor Kay Nehm with the explanation that criminal prosecution in the nations of the accused and the victims should be given priority.
On October 27, 2007, Donald Rumsfeld fled France for fear of being arrested: http://www.alternet.org/story/66425/?page=entire
Former US Defense Secretary Donald Rumsfeld fled France fearing arrest over charges of “ordering and authorizing” torture of detainees at both the American-run Abu Ghraib prison in Iraq and the US military’s detainment facility at Guantanamo Bay, Cuba, unconfirmed reports coming from Paris suggest.
US embassy officials whisked Rumsfeld away from a breakfast meeting in Paris organized by the Foreign Policy magazine after human rights groups filed a criminal complaint against the man who spearheaded President George W. Bush’s “war on terror” for six years.
According to activists in France, who greeted Rumsfeld shouting “murderer” and “war criminal” at the breakfast meeting venue, US embassy officials remained tight-lipped about the former defense secretary’s whereabouts citing “security reasons”.
“Rumsfeld must have felt how Saddam Hussein felt when US forces were hunting him down,” activist Tanguy Richard said. “He may never end up being hanged like his old friend, but he must learn that in the civilized world, war crime doesn’t pay.”
And then, there was this:
When General Tommy Franks, who coordinated the recent U.S.-led military attack on Iraq, was asked about civilian casualties, he shot back: ”We don’t do body counts.”
And let’s not forget the American attacks on varied news media personnel and offices; media outlets which were not friendly towards our “cause.” Remember when the Committee to Protect Journalists (CPJ) challenged a U.S. military accounting of the bombing last of a hotel in Baghdad in which two journalists were killed.
After an investigation the CPJ concluded there is no evidence that U.S. forces were fired on from the Palestine Hotel in Baghdad, where nearly 100 journalists were holed up before the building was shelled by U.S. forces.
The family of a Spanish journalist killed in that attack has already filed a lawsuit against three U.S. soldiers for war crimes and murder. The suit, based on a provision of the Rome Statute (of the International Criminal Court or ICC), could be expanded to include other people, ”independent of their rank or nationality”, said Pilar Hermoso, the attorney for Jose Couso’s family.
But the high court’s chief prosecutor, Eduardo Fungairiño, said he opposed the complaint, meaning a delay of 15 days before it is decided if the case will proceed.
”It is very clear that war crimes were committed in Iraq,” says James Jennings, president of Conscience International.
More on that here:
So, were they charged or indicted? This is where that Yeah…But comes in. See, it’s like this:
Really. And then what happened? The Same Old, Same Old! S.O.S.
The Pentagon made thinly veiled threats suggesting US-German relations could be at risk if a criminal complaint filed in German courts over Abu Ghraib proceeded.
The Pentagon expressed concern over a criminal complaint filed in Germany against US Defense Secretary Donald Rumsfeld and other officials over the Abu Ghraib prison scandal, warning that “frivolous lawsuits” could affect the broader US-German relationship.
The complaint was filed in Berlin on Nov. 30 by the New York-based Center for Constitutional Rights (CCR) and Berlin’s Republican Lawyers’ Association on behalf of four Iraqis who were alleged to have been mistreated by US soldiers.
Besides Rumsfeld, former CIA director George Tenet, Undersecretary of Defense for Intelligence Steven Cambone, Lieutenant General Ricardo Sanchez, Brigadier General Janis Karpinski and five other military officers who served in Iraq were named in the complaint, which seeks an investigation into their role in the prisoner abuses at Abu Ghraib.
Indicating the US planned to play a similar game of hardball with Germany, Rumsfeld has informed the German government via the US embassy that he will not take part in the annual Munich security conference that February should the investigation proceed.
Also reported here:
Yeah, yeah, yeah, but what happened?
Bush (et al) has a typical hissy fit, hold their collective breaths until they turn blue, stomp their feet, and threatens whomever they damned well choose:
US Defense Secretary Donald Rumsfeld threatened to block funding for a new NATO headquarters in Belgium over the law, and said the United States was considering whether it would continue to send officials to meetings in Brussels as long as the law was in place.
Yes, there was controversy surrounding the law, which I will cover in just a moment. The US pressured Belgium to repeal the War Crimes Law and at first, they resisted. Eventually, they caved. While they didn’t repeal the law, they changed it significantly.
Oh, and by the by…Bush Sr. and Ariel Sharon were also to have appeared for war crimes in Belgium under this same law.
So, what’s the deal with this law? The law dates back to 1993 and is controversial because it gives anyone, anywhere in the world, the ability to file war crime charges against foreign leaders, anywhere in the world.
It’s contentious in that politicians say the law can be abused and politicized (and coming from our government, that is definitely something they know quite a lot about). The law flooded Belgium with many lawsuits.
When the law was changed, cases were dismissed against Ariel Sharon, (former President) Bush and Israeli Gen. Amos Yaron on grounds that Belgium courts did not have the jurisdiction to bring them to trial because none of the accused were citizens of Belgium at the time the alleged atrocities were committed. (Take note that this was not dropped due to lack of evidence, but due to jurisdiction.)
The decision to drop these cases high-profile cases will likely make our administration happy as string of lawsuits being brought by independent parties against current President George W. Bush, Defense Secretary Donald Rumsfeld, Secretary of State Colin Powell and the U.S. commander of Operation Iraqi Freedom, Gen. Tommy Franks can now go away quietly. For now.
What’s the saddest part about this?
The Belgian government appeared relieved at the court’s decision. “As long as complaints based on the universal jurisdiction law were not thrown out, we cannot resume (high level) official contacts with the United States,” Belgian Foreign Minister Louis Michel said.
“We are satisfied with the decision,” Israeli embassy spokesman Laurent Reichman told AP. “Now, both Belgium and Israel are going to work hard again to have the same friendly relations we had before.”
Swell, we get great friendly relations and governments getting away with murder – literally. What’s wrong with this picture?
Someone remind me what the point of government is again, please. For it is certainly not to protect anyone – well, anyone not in power. Their role? Oh right, they take our tax dollars and give them to people they know. I forgot, sorry.
Let’s recap this, shall we
US threatens German relations over war crimes indictment threat (also reported here)
Belgium Drops War Crimes Cases; bows to Bush pressure (also reported here)
The following are a compilation of the best bits (excerpts) from the last three links:
Belgium’s government reacted angrily today to mounting American pressure to rescind controversial war crimes legislation, arguing that the country had already addressed Washington’s concerns.
Belgian government officials said Defense Secretary Donald H. Rumsfeld had only made the issue more difficult to deal with by threatening Thursday to find another venue for NATO meetings if Brussels failed to act on United States demands.
”I’d like to once again repeat to Mr. Rumsfeld that Belgium has amended the genocide law,” the country’s foreign minister, Louis Michel, told the country’s state radio on Friday. ”We have changed it precisely to meet the fears of our American friends.”
The law, which allows anyone to bring war crimes charges in Belgian courts, regardless of where the crimes are said to have taken place, was recently amended to allow the government to dismiss politically motivated cases by transferring them to the defendants’ home country. This was done with a recent lawsuit brought by a group of Iraqis against Gen. Tommy R. Franks, the commander of allied forces in Iraq.
But the United States has said it is not satisfied with case-by-case resolutions and wants Belgium to strike the law altogether.
During a meeting of NATO defense ministers here on Thursday, Mr. Rumsfeld said that the United States would have to ”seriously consider” whether it would continue to allow senior American officials to visit Brussels and added that the United States would withhold financing for a new $350 million NATO headquarters in Belgium as long as the law remained on the books. The United States is expected to finance about a quarter of that project.
”This isn’t the way to get them to rescind the law,” one NATO diplomat said late Thursday, referring to Mr. Rumsfeld’s approach. ”People will turn this into plucky little Belgium standing up to the bully, America, disguising the issue that this is a bad law that best be disposed of.”
About 30 such cases have been filed so far, including cases against former President George Bush, Vice President Dick Cheney, Secretary of State Colin L. Powell and Gen. H. Norman Schwarzkopf for their roles in an incident during the 1991 Persian lf war in which civilians were killed in an attack on a bunker.
So, just what does this new law, which the US so forcefully demanded be changed, say?
Prime Minister Guy Verhofstadt said the latest change would make it harder for foreigners to initiate proceedings under the legislation, which permits Belgian courts to try war and human rights crimes no matter where they were committed.
Reform to the 1993 law would oblige the defendant or victim to have Belgian residency if not citizenship, he said.
Under intense international pressure, Belgian legislators drastically amended it last month. The changes stipulated that human-rights complaints can be filed only if the victim or suspect was a Belgian citizen or long-term resident at the time of the alleged crime. In addition, the Belgian parliament also guaranteed diplomatic immunity for world leaders and other high-level officials visiting the country.
If you’d like to learn more, click below. http://gpolya.newsvine.com/_news/2008/03/11/1359735-uk-nobel-laureate-pinter-5-year-iraq-occupation-criminal
If the Bush administration can intimidate and threaten Brussels (and Germany) in to caving on war crimes, how did the Dems in congress ever stand a chance?
By the way, Tony Blair, and several others in his administration, Jack Straw and Geoff Hoon, are also in deep doo-doo for being Bush’s poodle. War crimes cases were launched against them. (Details below.)
Blair also faces a war crimes suit from Greece.
What happens to Mr. Blair and his cohorts will be interesting to follow because they are subject to the ICC – so, while we may not see Bush or Cheney’s ugly mugs at The Hague in the immediate future, it is likely we will see Mr. Blair and his buddies…and one must wonder, when push comes to shove, what he’ll have to say about the entire matter at that time.
On a positive note, we must remember that all of the people tried for war crimes thus far have been charged and tried after they left office. There remains hope that justice will be served. There is no statute of limitations on War Crimes Prosecution.
Spain And The Case Of Baltasar Garzón
Baltasar Garzón Receives Human Rights Award and Criticizes Obama Administration For Violations of International Law
Confirming long-held suspicions, the communications between U.S. diplomats and Spanish government officials included in the massive WikiLeaks cache of diplomatic cables show that the U.S. government urged its Spanish counterpart in the spring of 2009 to stymie the investigation into torture and war crimes at Guantánamo initiated by judge Baltasar Garzón under the principle of universal jurisdiction, El País reports (see also The Guardian). Among those approached by the U.S. embassy were members of the Spanish government and the Attorney General’s office (Fiscalía General). The leaked cables show that similar pressures were exerted in relation to other judicial cases, notably the investigation into the death in Iraq of the Spanish cameraman José Couso, and the case of the secret U.S. flights transporting prisoners for purposes of ”extraordinary rendition.”
The U.S. Embassy worked deep into the spring of 2009 to stop a lawsuit filed in the High Court for war crimes and torture in Guantanamo Bay (Cuba). The letter, drafted by a group of lawyers based in Spain, was directed against the six legal advisers of the George W. Bush had designed the legal architecture that supported Guantanamo, including former Attorney General Alberto Gonzales and David Addington, former chief of staff to Vice President Dick Cheney.
The prosecutor revealed to the U.S. steps would be before the public and offered legal advice
Embassy: "A prosecution would unenorme impact on bilateral relations"
On March 28, the press realizes that Judge Baltasar Garzon has revived the case by asking the prosecution whether or not to accept the complaint. To prevent this key issue prosper, the embassy pressured members of government and, above all, the prosecution, which, according to confidential cables , received support and advice.
The investigation, which finally opened through another complaint Garzon, a specialist in matters of jurisdiction, was the first in the world who questioned the limbo of Guantanamo and achieved immediate notoriety.
The first step of the embassy collected by confidential cables dates back to March 31, 2009 .That day the diplomats contacted the chief of staff of the then Foreign Minister, Miguel Angel Moratinos, Agustín Santos, to say that the U.S. government considered it "a serious problem," it opened a case in Spain for alleged torture Guantanamo. Subsequently, U.S. officials focused on the chief prosecutor of the Audiencia Nacional, Javier Zaragoza. William Duncan, political counselor of the embassy, and a legal adviser were to see him in his office at the Court, on the streets of Genoa, April 1, 2009. "He explained that he would decide whether to open a criminal case. The tests were on the table in his office in four red folders a foot high," Duncan describes in a cable dated the same day.
The story of the meeting made by U.S. officials that the visit shows the prosecutor gave them important clues about it. "Zaragoza said that the complaint is well documented and will have no choice but to open the case. However, visibly annoyed at having to deal with this issue, said he was in no hurry to proceed and in any case he would propose that the cause was assigned to Garzon. Garzon admitted that he could claim, but insisted that he would ask to deal Ismael Moreno, who was following the case of the CIA flights. Zaragoza obvious Garzon said that if their demands, he would appeal ". This happened 15 days later.
The chief prosecutor, according to the account he gave the embassy, reassured the representatives of the defendants and advised them also a defense strategy. If the U.S. government opened its own investigation, he suggested Zaragoza as confidential cable recounts, Spain could not claim universal jurisdiction. "This is the formula that he would prefer" and he called the "only way" for the U.S. government, collect the confidential message.
Zaragoza, the report said, citing the case of some Israeli officials charged with an attack on Gaza in 2002 and said he was "going to ask you to close the case as having formal knowledge that Israel has opened its own investigation."
Given this possibility, the embassy announced in a confidential cable "further explore this option with Zaragoza (format, timing, how much information we need) but making it clear that has not yet made a decision."
At that meeting, the chief prosecutor does not spare criticism of the judge before the representatives of the U.S.. The story of the embassy attributed the following words: "Zaragoza said that impartiality is suspect Garzon, given his public criticism of Guantanamo and the U.S. war on terror."
"We note that, among other things, Garzon made a documentary in 2008 extremely critical of the U.S. role in Iraq and Afghanistan in August 2008 said Bush should be tried for war crimes," the diplomats added as analysis after the words of Zaragoza. The aforementioned documentary was entitled "The darkness of power on the prisons of Guantanamo or Abu Ghraib," and was broadcast on TVE.
The embassy does not comply with this judicial management and keeps moving parts to it, especially in the policy. That same April 1 talks with Aurora Mejía, Director General of International Judicial Cooperation Ministry of Justice, who replied that the Spanish judiciary is independent, but says the reaction in the ministry before the lawsuit was "horror," according to reports the cable sent to Washington.
The U.S. effort to bury the complaint follow. On April 13, Sen. Judd Gregg, a trip to Spain, as an aside during a meeting with Moratinos, speaking with the CEO for North America and Europe, Luis Felipe Fernandez de la Peña, who regrets the case and ensures that foreign " disagrees with efforts to implement universal jurisdiction in such cases, "according to the embassy collected in a cable.
And the next day, it reappears on the scene the chief prosecutor of the Audiencia Nacional. On April 14, according to a confidential note is Javier Zaragoza who calls the legal adviser of the embassy to tell that "best case studied, it is difficult to establish what type of crime allegedly committed by U.S. officials, and the complaint goes against the policy of the U.S.
government than against anyone in particular. " Zaragoza informed the embassy that he will talk to your boss, Candido Conde-Pumpido, the state attorney general, "and hopes he makes it clear in public, what are the basic rules for Spain to treat complaints involving universal jurisdiction "as recorded by the cable sent to Washington. The detailed tax returns to the U.S. strategy to remove the case to Garzon: "Zaragoza insists that he will ask that the case be entrusted to the judge Ismael Moreno and Garzón, and if not accepted, will appeal," says the embassy.
Political pressures have multiplied. On April 15, Sen. Mel Martinez, of Cuban origin, and the charge d'affaires at the embassy, Arnold Chacon, Angel Losada meet with Secretary of State for Foreign Affairs, and tell him that the prosecution "would not be understood or accepted in the U.S. and have a huge impact on bilateral relations, "according to another cable from the embassy. Losada replied that although they have much room, will tell Conde-Pumpido the official position is that the Spanish Government "does not agree with the High Court."
The Americans, after the call of Zaragoza to the embassy, waiting for the answer in public Conde-Pumpido. Comes just a day after that conversation. On April 16, to the satisfaction of the embassy, which makes it clear in a cable, Conde-Pumpido offers a press conference in which he describes as "fraudulent" the lawsuit and announced that the Prosecutors oppose. "If there is evidence of criminal activity by officials of the U.S., should open a case in the U.S.. Admitting the complaint would be like turning on a universal jurisdiction plaything of people looking for leadership," concludes the attorney general. This press conference, according to analysis made by the U.S. Embassy in Madrid, "Garzón is more pressure," which is still awaiting the report of the prosecutor's office to see how you can do to keep this case.
Despite criticism of Conde-Pumpido, the embassy itself coincides with Zaragoza in the analysis of the complaint was well prepared. "The counsel of the embassy believes that the complaint was prepared with the help of lawyers outside of Spain, perhaps with the help of NGOs like Human Rights Watch , in any case someone who knows the U.S. legal system much better that is common among Spanish lawyers, "says another cable.
The embassy does even a study of the leader of the lawyers filing the complaint, Gonzalo Boye: "Of Chilean origin, was a member of the Revolutionary International Movement [refer to the Movimiento de Izquierda Revolucionaria, MIR]. He spent eight years in prison for participating in a kidnapping in 1988 of an entrepreneur, part-funded by ETA. " They refer to Emiliano Revilla. Boye was convicted of providing information for the kidnapping. He always pleaded not guilty.
That same April 16, in an interview on CNN in Spanish, Obama makes clear his opinion on the matter. He admits that his Government had spoken with Spanish on the case, although he has not contacted directly with Zapatero. Insists he wants to close Guantanamo have not been made, a year and a half later, but is clearly against the courts to establish responsibilities.
"I'm more interested in looking forward than backward," he says.
Finally, the next day, April 17, Zaragoza deliver. The prosecutor of the Audiencia Carlos Bautista presented a report that corresponds with what was announced in a cable to Washington 15 days after the first meeting of envoys from the U.S. with Zaragoza.
The brief asked, first, that the case is filed because the complainants, the Association for the Dignity of Prisoners of Spain did not attempt to open the "original jurisdiction", ie, USA. In the event that the first request is not met, and claimed that the case go to court because the Ismael Moreno Garzon, "can not assert the existence of any antecedent" about the cause, while the latter investigated the CIA flights.
On April 27, Garzón moves piece again. Moreno goes directly to ask if there is any relationship between the cause of flights and Guantánamo. Moreno denied May 7 and Garzon asked the U.S. to report on whether there are any open process in that country, a way to begin to investigate the matter.
Before moving Garzón April 27, the embassy goes back to the chief prosecutor of the Audiencia Nacional. On May 4, Zaragoza said the American advisers who are prepared to fight the latest move also Garzón. Zaragoza, according to the cable sent to Washington, says he has spoken with Garzon, has faced him and asked him if this movement "is trying to increase the cache in their conferences." The judge replied, according to this version, which was doing only "for the record" and then let him die."Once you've gotten your holder, Garzon leave the matter," concludes Zaragoza.
In case you do not, according to the embassy, "Zaragoza has a strategy to twist the arm" of the judge. The prosecutor explained to U.S. officials that "when investigating terrorism cases Garzon related to prisoners at Guantanamo, ordered the police to visit the prison to gather evidence." The attorney that you can use this case to "shame" Garzon, since it may suggest that the judge "somehow tolerated in 2004 as the U.S. to treat prisoners." "Garzon did nothing when the prisoners returned to Spain and told him the abuse they had suffered," insists the cable.
For the third time, according to the same cable that accounts for the meeting of May 4, Zaragoza explained his strategy to the U.S. representatives, and these are told by Washington: first try to convince recalling its performance, "if it does I formally request the file and if you ignore this request, will appeal."
The prosecutor explained, according to the embassy, which has another ace up its sleeve: it ensures that Garzón has many problems and the case against him by the historical memory, and certainly not risk a second complaint. Zaragoza insists on advising the U.S. to open an investigation for the case where decay in Spain.
Despite the information the chief prosecutor of the Audiencia, the embassy warned Washington that Garzón fight is not easy and are not optimistic. "We believe that Zaragoza is in good faith and is playing a constructive role, but why Garzon, a lover of publicity, was to give this case a real machine to make headlines, if not force you? Do not believe that threats Disciplinary make you turn back as it could thanks precisely the possibility of martyrdom, knowing that the event will attract global attention. We believe we have to deal with this issue for quite some time. "
The embassy warns that Zaragoza was scheduled to fly to Washington in June, and could be exploited to that senior U.S. government, there is even talk of the attorney general, similar to the Spanish justice minister, to discuss the matter with him.
The Americans were pessimistic, and matched. On October 29, 2009, Garzón declared admissible the complaint of Moroccan Lahcen Ikassrien and three months later, on January 27, 2010, finally launches its investigation to pursue the other complaints.
The answer, also advanced by U.S. diplomats Zaragoza is an appeal against the case. A U.S. victory comes a new one three months after Garzon took the case. As advanced Zaragoza, the problems of historical memory judge killed him.
Now is the Criminal Division of the High Court which has the final word on the case. The presentation of its president, Javier Gomez Bermudez, will be discussed in full in the coming weeks. But the case, according to the court, has all the ballots to be filed. United States will have achieved their goal.
Latest Wikileaks Disclosures Hint At US Diplomatic Tactics In Spain And Beyond
Release of more US diplomatic cables by Wikileaks covered pressure on governments, Spain's judiciary, and buying foreign assistance with detentions at Guantanamo Bay. El Pais, one of five mainstream papers partnering with Wikileaks' release of documents, examined key output from Madrid's US embassy.
The latest cables focus on US–Spain relations, particularly during the George W. Bush presidency, with Eduardo Aguirre serving as ambassador in Madrid. He is cited as having "personally exerted" pressure on Spain's government and judiciary; this leading to at least three investigations being dropped.
Of concern to the press is the death of José Couso in 2003. The Spanish cameraman was killed during the battle for Baghdad; the Spanish judiciary intended to prosecute three US servicemen over the fatality.
American use of Spanish air bases for 'extraordinary rendition' was a second concern the US embassy in Madrid pressured the government on. Spanish prosecutors had been keen to pursue 13 CIA officers over the illegal flights.
Repeatedly, concern over Spain's independent judiciary invoking 'universal jurisdiction' appears in leaked cables. Reports at the time showed magistrates considered actions at Guantanamo Bay torture, and seemed keen to pusue ex-US government officials on grounds of "criminal responsibility".
Cable 06MADRID1914 highlights the cases of Hamed Abderrahaman Ahmed and Moroccan Lahcen Ikassrien; respectively transferred from Guantanamo Bay, to Spanish custody, in February 2004 and July 2005.
Describing conditions at the Cuban detention centre as "impossible to explain, much less justify", Hamed — better known as the "Spanish Taliban" — saw a July 2006 ruling by the country's Supreme Court anull his six-year prison sentence, granting him an immediate release. The ruling cast doubt on the reliability of evidence against Lahcen, who was released on bail.
Hamed and his family, at the time, announced their intent to sue the US government over his suffering in Guantanamo Bay.
Later cables illustrate how concerned the Bush administration were over possible prosecution by Baltasar Garzón. Citing an op-ed he penned for a Spanish paper in March 2007, and this subsequently being picked up by Socialist Party secretary José Blanco Lopéz. Pronouncements by the two, and others, on "criminal responsibility" were met with a diplomatically stern response; cable 07MADRID546 states that the government of Spain was "cautioned that continued statements on this issue by senior Spanish figures would be viewed negatively."
Garzón, best-known for indicting former dictator Augusto Pinochet, seemed to still trouble US diplomats when planning high-level defence talks in March 2007. Mention is made to a possible investigation, and indictment of, Donald Rumsfeld. Spain had informed the US embassy in Madrid the judge in the case was working to dismiss it.
As recently as March last year, Garzón sought to prosecute officials from the Bush administration.
-[...]continued statements on this issue by senior Spanish figures would be viewed negatively.-
—US embassy 'caution' to Spanish government.
Named as potential defendants in a Reuters report, John Ashcroft, John Yoo, William Haynes II, Jay Bybee and, aide to Vice-President Dick Cheney, David Addington were all being investigated by Garzón.
Come April this year, Garzón himself faced prosecution. A probe into Franco-era war crimes saw him suspended, possibly to be tried for acting contrary to an amnesty extended to Franco supporters. It is alleged he "acted without jurisdiction".
At present, the former Spanish Supreme Court judge is working at the International Criminal Court. Reports based on El Pais'investigation around the leaked cables suggest the country's judiciary has been politicised to suit American interests.
With a price of US$85,000 cited for each former Guantanamo Bay detainee that Spain was to take, recent reports assert other countries have been offered financial incentives to help empty the camp.
Belgium, alongside Spain, was supposedly offered more influence within the European Union in exchange for cooperating with US plans.
Kuwait's interior minister is said to have refused to take any of their citizens from the camp. Describing inmates as "rotten", DPA alleges he told the US to "get rid of" detainees in an Afghan war zone.
Yemen, in exchange for agreeing to take Guantanamo detainees, is said to have asked for US$11 million for the construction of a centre to rehabilitate Muslim extremists.
Wikileaks: Suppressing the Investigation of Torture
by Andy Worthington, December 7, 2010
In the relatively small number of U.S. diplomatic cables released to date by WikiLeaks, from its cache of 251,287 documents, the most disturbing revelations concerning the “war on terror” deal with the pressure that the Bush administration exerted on Germany in 2007, regarding the planned prosecution of thirteen CIA agents involved in the rendition and torture of Khaled El-Masri, a German citizen seized as a result of mistaken identity, and the pressure that the Obama administration exerted on the Spanish government in 2009, to derail a criminal investigation into the role played by six senior Bush administration lawyers in establishing the policies that governed the interrogation — and torture — of prisoners seized in the “war on terror.”
Neither of these developments had been reported prior to the release of the cables by WikiLeaks, and they are therefore extremely significant in establishing how long Bush administration officials were involved in fending off torture investigations overseas, and how eagerly Obama administration officials took up this role.
Suppression of a torture inquiry in Germany
In the first cable, sent to Secretary of State Condoleezza Rice from Berlin on February 6, 2007, by John M. Koenig, the senior career diplomat at the U.S. Embassy in Berlin, following discussions with Rolf Nikel, the deputy national security advisor for Germany, Koenig explained how he emphasized to Nikel that “issuance of international arrest warrants would have a negative impact on our bilateral relationship.” In addition, he “reminded Nikel of the repercussions to U.S.-Italian bilateral relations in the wake of a similar move by Italian authorities last year” (in the case of Abu Omar, discussed below), and “pointed out that our intention was not to threaten Germany, but rather to urge that the German Government weigh carefully at every step of the way the implications for relations with the U.S.”
What makes this thinly veiled threat seem particularly harsh is the fact that El-Masri is the clearest case of mistaken identity in the whole of the “war on terror.” Confused with another man of the same name who had liaised with the 9/11 kidnappers, he was seized in Macedonia as he tried to enter the country on a vacation on New Year’s Eve, 2002, and was then sent to the CIA’s notorious “Salt Pit” prison in Afghanistan, where he was “repeatedly beaten, drugged, and subjected to a strange food regime that he supposed was part of an experiment that his captors were performing on him” (as described by Scott Horton of Harper’s), until the CIA realized it had made a mistake, and reluctantly set him free, dropping him off in Albania and obliging him to make his own way home, and to try to put together the pieces of his shattered life.
Suppression of a torture inquiry in Spain
The second cable, dated April 17, 2009, and sent from Madrid, explained how U.S. officials had manipulated Spanish officials to suppress an investigation into six former Bush administration lawyers — Attorney General Alberto Gonzales, David Addington, former chief of staff and legal adviser to Vice President Dick Cheney, William Haynes, the Pentagon’s former general counsel, Douglas Feith, former undersecretary of defense for policy, Jay Bybee, the former head of the Justice Department’s Office of Legal Counsel, and John Yoo, a former official in the Office of Legal Counsel — for “creating a legal framework that allegedly permitted torture.” A Spanish human rights group had filed the complaint the month before, contending that Spain had a duty to open an investigation under its “universal jurisdiction” law.
The cable reveals how U.S. officials immediately began sounding out Spanish officials, and how, on April 15, an apparently unlikely figure for the Obama administration to embrace — Sen. Mel Martinez (R-Fla.), who had recently been chairman of the Republican Party — attended a meeting between the U.S. embassy’s charge d’affaires and the acting Spanish foreign minister, Angel Lossada, at which the Americans, repeating the same threatening language used in Germany in 2007, “underscored that the prosecutions would not be understood or accepted in the U.S. and would have an enormous impact on the bilateral relationship” between Spain and the United States.
As the cable described it, “Lossada responded that the [Spanish government] recognized all of the complications presented by universal jurisdiction, but that the independence of the judiciary and the process must be respected.” However, he added that the government “would use all appropriate legal tools in the matter,” and that, although “it did not have much margin to operate,” would advise the Spanish Attorney General, Cándido Conde-Pumpido, that “the official administration position was that the [government] was ‘not in accord with the National Court.’“
The next day, Attorney General Conde-Pumpido “publicly stated that prosecutors will ‘undoubtedly’ not support [the] criminal complaint,” adding that he would “not support the criminal complaint because it is ‘fraudulent,’ and has been filed as a political statement to attack past [U.S. government] policies.” He added that, “if there is evidence of criminal activity by [U.S. government] officials, then a case should be filed in the United States.” In the cable, officials at the U.S. embassy in Madrid congratulated themselves for their successful involvement in the case, noting that “Conde Pumpido’s public announcement follows outreach to [Spanish government] officials to raise [the U.S. government’s] deep concerns on the implications of this case.”
This was not quite the end of the story, as Conde-Pumpido had specifically taken aim at Investigating Judge Baltasar Garzón, “a world-renowned jurist,” who, as David Corn explained in an article for Mother Jones, “had initiated previous prosecutions of war crimes and had publicly said that former President George W. Bush ought to be tried for war crimes.” Garzón pressed ahead with the prosecution in September 2009, but when he ran into domestic problems, triggered by his enthusiasm for investigating war crimes committed under General Franco, the case was assigned to another judge, and the trail has since gone quiet. As David Corn explained, “The Obama administration essentially got what it wanted. The case of the Bush Six went away.”
"Zaragoza Has A Strategy To Twist The Arm Garzon In 'Guantanamo Case"
The chief prosecutor of the High Court considered three times with the U.S. steps to follow to achieve close the case.
The U.S. Embassy worked deep into the spring of 2009 to stop a lawsuit filed in the High Court for war crimes and torture in Guantanamo Bay (Cuba). The letter, drafted by a group of lawyers based in Spain, was directed against the six legal advisers of the George W. Bush had designed the legal architecture that supported Guantanamo, including former Attorney General Alberto Gonzales and David Addington, former chief of staff to Vice President Dick Cheney.
On March 28, the press realizes that Judge Baltasar Garzon has revived the case by asking the prosecution whether or not to accept the complaint. To prevent this key issue prosper, the embassy pressured members of government and, above all, the prosecution, which, according to confidential cables , received support and advice. The investigation, which finally opened through another complaint Garzon, a specialist in matters of jurisdiction, was the first in the world who questioned the limbo of Guantanamo and achieved immediate notoriety.
The first step of the embassy collected by confidential cables dates back to March 31, 2009 .That day the diplomats contacted the chief of staff of the then Foreign Minister, Miguel Angel Moratinos, Agustín Santos, to say that the U.S. government considered it "a serious problem," it opened a case in Spain for alleged torture Guantanamo. Subsequently, U.S. officials focused on the chief prosecutor of the Audiencia Nacional, Javier Zaragoza. William Duncan, political counselor of the embassy, and a legal adviser were to see him in his office at the Court, on the streets of Genoa, April 1, 2009. "He explained that he would decide whether to open a criminal case. The tests were on the table in his office in four red folders a foot high," Duncan describes in a cable dated the same day.
The story of the meeting made by U.S. officials that the visit shows the prosecutor gave them important clues about it. "Zaragoza said that the complaint is well documented and will have no choice but to open the case. However, visibly annoyed at having to deal with this issue, said he was in no hurry to proceed and in any case he would propose that the cause was assigned to Garzon. Garzon admitted that he could claim, but insisted that he would ask to deal Ismael Moreno, who was following the case of the CIA flights. Zaragoza obvious Garzon said that if their demands, he would appeal ". This happened 15 days later.
The chief prosecutor, according to the account he gave the embassy, reassured the representatives of the defendants and advised them also a defense strategy. If the U.S. government opened its own investigation, he suggested Zaragoza as confidential cable recounts, Spain could not claim universal jurisdiction. "This is the formula that he would prefer" and he called the "only way" for the U.S. government, collect the confidential message.
Zaragoza, the report said, citing the case of some Israeli officials charged with an attack on Gaza in 2002 and said he was "going to ask you to close the case as having formal knowledge that Israel has opened its own investigation."
Given this possibility, the embassy announced in a confidential cable "further explore this option with Zaragoza (format, timing, how much information we need) but making it clear that has not yet made a decision."
At that meeting, the chief prosecutor does not spare criticism of the judge before the representatives of the U.S.. The story of the embassy attributed the following words: "Zaragoza said that impartiality is suspect Garzon, given his public criticism of Guantanamo and the U.S. war on terror."
"We note that, among other things, Garzon made a documentary in 2008 extremely critical of the U.S. role in Iraq and Afghanistan in August 2008 said Bush should be tried for war crimes," the diplomats added as analysis after the words of Zaragoza. The aforementioned documentary was entitled "The darkness of power on the prisons of Guantanamo or Abu Ghraib," and was broadcast on TVE.
The embassy does not comply with this judicial management and keeps moving parts to it, especially in the policy. That same April 1 talks with Aurora Mejía, Director General of International Judicial Cooperation Ministry of Justice, who replied that the Spanish judiciary is independent, but says the reaction in the ministry before the lawsuit was "horror," according to reports the cable sent to Washington.
The U.S. effort to bury the complaint follow. On April 13, Sen. Judd Gregg, a trip to Spain, as an aside during a meeting with Moratinos, speaking with the CEO for North America and Europe, Luis Felipe Fernandez de la Peña, who regrets the case and ensures that foreign " disagrees with efforts to implement universal jurisdiction in such cases, "according to the embassy collected in a cable.
And the next day, it reappears on the scene the chief prosecutor of the Audiencia Nacional. On April 14, according to a confidential note is Javier Zaragoza who calls the legal adviser of the embassy to tell that "best case studied, it is difficult to establish what type of crime allegedly committed by U.S. officials, and the complaint goes against the policy of the U.S. government than against anyone in particular. "
Zaragoza informed the embassy that he will talk to your boss, Candido Conde-Pumpido, the state attorney general, "and hopes he makes it clear in public, what are the basic rules for Spain to treat complaints involving universal jurisdiction "as recorded by the cable sent to Washington. The detailed tax returns to the U.S. strategy to remove the case to Garzon: "Zaragoza insists that he will ask that the case be entrusted to the judge Ismael Moreno and Garzón, and if not accepted, will appeal," says the embassy.
Political pressures have multiplied. On April 15, Sen. Mel Martinez, of Cuban origin, and the charge d'affaires at the embassy, Arnold Chacon, Angel Losada meet with Secretary of State for Foreign Affairs, and tell him that the prosecution "would not be understood or accepted in the U.S. and have a huge impact on bilateral relations, "according to another cable from the embassy. Losada replied that although they have much room, will tell Conde-Pumpido the official position is that the Spanish Government "does not agree with the High Court."
The Americans, after the call of Zaragoza to the embassy, waiting for the answer in public Conde-Pumpido. Comes just a day after that conversation. On April 16, to the satisfaction of the embassy, which makes it clear in a cable, Conde-Pumpido offers a press conference in which he describes as "fraudulent" the lawsuit and announced that the Prosecutors oppose. "If there is evidence of criminal activity by officials of the U.S., should open a case in the U.S.. Admitting the complaint would be like turning on a universal jurisdiction plaything of people looking for leadership," concludes the attorney general. This press conference, according to analysis made by the U.S. Embassy in Madrid, "Garzón is more pressure," which is still awaiting the report of the prosecutor's office to see how you can do to keep this case.
Despite criticism of Conde-Pumpido, the embassy itself coincides with Zaragoza in the analysis of the complaint was well prepared. "The counsel of the embassy believes that the complaint was prepared with the help of lawyers outside of Spain, perhaps with the help of NGOs like Human Rights Watch , in any case someone who knows the U.S. legal system much better that is common among Spanish lawyers, "says another cable.
The embassy does even a study of the leader of the lawyers filing the complaint, Gonzalo Boye: "Of Chilean origin, was a member of the Revolutionary International Movement [refer to the Movimiento de Izquierda Revolucionaria, MIR]. He spent eight years in prison for participating in a kidnapping in 1988 of an entrepreneur, part-funded by ETA. " They refer to Emiliano Revilla. Boye was convicted of providing information for the kidnapping. He always pleaded not guilty.
That same April 16, in an interview on CNN in Spanish, Obama makes clear his opinion on the matter. He admits that his Government had spoken with Spanish on the case, although he has not contacted directly with Zapatero. Insists he wants to close Guantanamo have not been made, a year and a half later, but is clearly against the courts to establish responsibilities. "I'm more interested in looking forward than backward," he says.
Finally, the next day, April 17, Zaragoza deliver. The prosecutor of the Audiencia Carlos Bautista presented a report that corresponds with what was announced in a cable to Washington 15 days after the first meeting of envoys from the U.S. with Zaragoza.
The brief asked, first, that the case is filed because the complainants, the Association for the Dignity of Prisoners of Spain did not attempt to open the "original jurisdiction", ie, USA. In the event that the first request is not met, and claimed that the case go to court because the Ismael Moreno Garzon, "can not assert the existence of any antecedent" about the cause, while the latter investigated the CIA flights.
On April 27, Garzón moves piece again. Moreno goes directly to ask if there is any relationship between the cause of flights and Guantánamo. Moreno denied May 7 and Garzon asked the U.S. to report on whether there are any open process in that country, a way to begin to investigate the matter.
Before moving Garzón April 27, the embassy goes back to the chief prosecutor of the Audiencia Nacional.
On May 4, Zaragoza said the American advisers who are prepared to fight the latest move also Garzón. Zaragoza, according to the cable sent to Washington, says he has spoken with Garzon, has faced him and asked him if this movement "is trying to increase the cache in their conferences." The judge replied, according to this version, which was doing only "for the record" and then let him die."Once you've gotten your holder, Garzon leave the matter," concludes Zaragoza.
In case you do not, according to the embassy, "Zaragoza has a strategy to twist the arm" of the judge. The prosecutor explained to U.S. officials that "when investigating terrorism cases Garzon related to prisoners at Guantanamo, ordered the police to visit the prison to gather evidence." The attorney that you can use this case to "shame" Garzon, since it may suggest that the judge "somehow tolerated in 2004 as the U.S. to treat prisoners." "Garzon did nothing when the prisoners returned to Spain and told him the abuse they had suffered," insists the cable.
For the third time, according to the same cable that accounts for the meeting of May 4, Zaragoza explained his strategy to the U.S. representatives, and these are told by Washington: first try to convince recalling its performance, "if it does I formally request the file and if you ignore this request, will appeal. "
The prosecutor explained, according to the embassy, which has another ace up its sleeve: it ensures that Garzón has many problems and the case against him by the historical memory, and certainly not risk a second complaint. Zaragoza insists on advising the U.S. to open an investigation for the case where decay in Spain.
Despite the information the chief prosecutor of the Audiencia, the embassy warned Washington that Garzón fight is not easy and are not optimistic. "We believe that Zaragoza is in good faith and is playing a constructive role, but why Garzon, a lover of publicity, was to give this case a real machine to make headlines, if not force you? Do not believe that threats Disciplinary make you turn back as it could thanks precisely the possibility of martyrdom, knowing that the event will attract global attention. We believe we have to deal with this issue for quite some time. "
The embassy warns that Zaragoza was scheduled to fly to Washington in June, and could be exploited to that senior U.S. government, there is even talk of the attorney general, similar to the Spanish justice minister, to discuss the matter with him.
The Americans were pessimistic, and matched. On October 29, 2009, Garzón declared admissible the complaint of Moroccan Lahcen Ikassrien and three months later, on January 27, 2010, finally launches its investigation to pursue the other complaints.
The answer, also advanced by U.S. diplomats Zaragoza is an appeal against the case. A U.S. victory comes a new one three months after Garzon took the case. As advanced Zaragoza, the problems of historical memory judge killed him.
Now is the Criminal Division of the High Court which has the final word on the case. The presentation of its president, Javier Gomez Bermudez, will be discussed in full in the coming weeks. But the case, according to the court, has all the ballots to be filed. United States will have achieved their goal.
Suppression Of Torture Inquiries In The U.S. — And An Unexpected Conviction In Italy
As a result of these revelations, it is clear that the U.S. government — under Bush and Obama — has been largely successful in preventing the prosecution of anyone involved in the horrendous human rights abuses initiated in the “war on terror,” not just abroad, but also in the United States. In the last year, fulfilling his “belief that we need to look forward as opposed to looking backwards,” which he expressed in January 2009, the week before he took office, President Obama has presided over the whitewash of a damning internal Justice Department report into John Yoo and Jay S. Bybee (who wrote and approved the notorious “torture memos” of August 2002, which attempted to redefine torture, so that it could be used by the CIA), and has cynically resorted to manipulating the little known and little used “state secrets” privilege to prevent the merest whisper of evidence regarding the torture of foreign prisoners to be discussed in a U.S. court.
One unexpected exception to this global clampdown is Italy, where 22 CIA operatives and a U.S. Air Force colonel were convicted in absentia, in November 2009, for their part in the kidnapping, in broad daylight on a street in Milan on February 17, 2003, of the cleric Abu Omar, who was then rendered to Egypt, where he was subjected to horrific torture. The U.S. government, of course, refused to allow these operatives to be extradited to Italy to face justice, but the ruling remains a permanent black mark against the Bush administration, which can never be washed away or concealed, and the entire sordid story has recently been covered, in extraordinary detail, by Steve Hendricks in his book, A Kidnapping in Milan: The CIA on Trial.
Trouble ahead in Spain, Germany, Macedonia, Lithuania, Poland, and the UK
Moreover, it may be that, despite the success of the U.S. efforts in Germany and Spain, further troubles lie ahead in both countries. In May 2010, Spain picked up where Germany left off regarding the prosecution of the thirteen CIA agents responsible for the torture of Khaled El-Masri, when prosecutors attached to the Audiencia Nacional in Madrid asked a judge to issue an order for the agents’ arrest, and, as Scott Horton also reported at the time, “A criminal proceeding relating to the kidnapping and torture of El-Masri is also underway in Germany.”
In addition, in 2009, as Amrit Singh of the Open Society Justice Initiative explained in a recent article on the Huffington Post, the OSJI filed an application on El-Masri’s behalf against the Macedonian government before the European Court of Human Rights. Singh continued:
In October 2010, the European Court communicated the case to the Macedonian government. This is a significant development, as only about ten percent of all cases brought before the European Court get communicated. Perhaps even more significant is the fact that the European Court has asked the Macedonian government a set of pointed questions, including whether agents of the Macedonian government detained El-Masri and subjected him to torture or cruel inhuman or degrading treatment; whether Macedonian government agents handed him over to a CIA rendition team; whether the Macedonian government was aware that El-Masri faced a real risk of being subjected to torture or cruel inhuman or degrading treatment if transferred to the Salt Pit; and whether Macedonia had conducted an effective official investigation of this case.
In addition, it is possible that further problems — which seem already to have gone beyond the reach of U.S. diplomatic bullying — relate to investigations in Lithuania, Poland, and the UK.
As Amnesty International noted in its recent report, “Open secret: Mounting evidence of Europe’s complicity in rendition and secret detention,” Lithuania, whose role as the host of a secret CIA prison in Europe — along with Poland and Romania — was most recently exposed in a United Nations report on secret detention, “has admitted that two secret prisons existed.” Significantly, “The prisons were visited in June 2010 by a delegation from the European Committee for the Prevention of Torture, the first visit by an independent monitoring body to a secret CIA prison in Europe,” and a criminal investigation is ongoing.
Although Romania continues to deny hosting a secret prison, it is implicated in documents issued by Poland’s Border Guard Office in July 2010, which, as I explained in an article at the time, provided, for the first time, “details of the number of prisoners transferred by the CIA to a secret prison in Poland between December 5, 2002, and September 22, 2003, and, in one case, the number of prisoners who were subsequently transferred to a secret CIA prison in Romania.” The revelations led immediately to claims that former Prime Minister Leszek Miller and former President Aleksander Kwasniewski “may face war crime charges for agreeing to host the facility,” and in September, as Amnesty described it, “the prosecutor’s office confirmed that it was investigating claims by Abd al-Rahim al-Nashiri [one of 14 “high-value detainees eventually transferred to Guantánamo, in September 2006], that he was held in secret in Poland.”
Moreover, al-Nashiri “was granted ‘victim’ status in October 2010, the first time a rendition victim’s claims have been acknowledged in this context.”
In the UK, British complicity in U.S. torture has been acknowledged, through the deliberations of judges, since August 2008, when two high court judges, Lord Justice Thomas and Mr. Justice Lloyd Jones, found that the British government had been involved in “wrongdoing” in the case of Binyam Mohamed, a British resident who spent over two years being tortured in Pakistan, Morocco, and the CIA’s “Dark Prison” in Kabul, before he was sent to Guantánamo. Mohamed was released in February 2009 — in the hope, shared by both the British and the American governments, that his release would shut down any further interest in his case — but in fact Lord Justice Thomas and Mr. Justice Lloyd Jones continued to fight against Foreign Secretary David Miliband’s refusal to allow them to release a summary of documents provided by the United States, relating to Mohamed’s treatment by U.S. agents in Pakistan.
Finally in February this year, 18 months after their initial ruling, the Court of Appeal ordered the documents to be released, and it was finally revealed that the summary described a range of techniques, which, in the judges’ opinion, “could readily be contended to be at the very least cruel, inhuman and degrading treatment by the United States authorities,” including “continuous sleep deprivation,” combined with “threats and inducements,” including the threat of “disappearing.” As the judges also explained, “the stress brought about by these deliberate tactics” was “causing him significant mental stress and suffering,” to the extent that he was being “kept under self-harm observation.”
Although a Metropolitan Police investigation was launched into Mohamed’s allegations, this investigation recently concluded with an announcement that there was insufficient evidence to prosecute the MI5 officer, known as Witness B, “for any criminal offence arising from the interview of Binyam Mohamed in Pakistan on 17 May 2002”.
However, the larger picture of British complicity in torture has refused to go away. Three weeks ago, the British government announced that it had reached a substantial financial settlement with 15 former Guantánamo prisoners — and with one man, Shaker Aamer, who is still held — to staunch the flow of dangerous documents being released as part of a civil claim for damages brought by a number of former prisoners. These had already revealed uncomfortable truths about the complicity in torture of former Prime Minister Tony Blair and former Foreign Secretary Jack Straw, and although David Cameron, the prime minister of the new coalition government, hopes to prevent any further damning revelations emerging, by announcing that a judicial inquiry into British complicity in torture will be held, directed by Sir Peter Gibson, who was previously responsible for overseeing the conduct of the security services, it is by no means certain that the inquiry will be able to halt further revelations, some of which may well involve the United States.
It may be that further documents in WikiLeaks’ cache of diplomatic cables deal with the torture problems encountered in the UK since 2008, and with some of the other cases mentioned above, and it is also worth reflecting that, for the foreseeable future, diplomats may find it harder than before to exert pressure to suppress evidence of U.S. torture, having suffered something of a hammer blow to their credibility through the documents released to date.
As a result, this is probably a good time for those in other countries who wish to hold the U.S. government accountable for torture to press ahead with their claims and their cases, and if this is so, then on this point alone WikiLeaks’ disclosures will have been invaluable.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at:www.andyworthington.co.uk.
REFERENCE ID: 09MADRID440
CREATED: 2009-05-05 15:03
ORIGIN: Embassy Madrid
CLASSIFICATION: UNCLASSIFIED//FOR OFFICIAL USE ONLY
HEADER INFORMATION
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RR RUEHAG RUEHAST RUEHDA RUEHDBU RUEHDF RUEHFL RUEHIK RUEHKW RUEHLA
RUEHLN RUEHLZ RUEHNP RUEHPOD RUEHROV RUEHSK RUEHSR RUEHVK RUEHYG
DE RUEHMD #0440/01 1251534
ZNR UUUUU ZZH
R 051534Z MAY 09
FM AMEMBASSY MADRID
TO RUEHC/SECSTATE WASHDC 0590
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEHLA/AMCONSUL BARCELONA 3971
RUCNFB/FBI WASHDC
RUEAWJA/DEPT OF JUSTICE WASHDC
RHEHNSC/NSC WASHDC
Tuesday, 05 May 2009, 15:34
UNCLAS SECTION 01 OF 02 MADRID 000440
SENSITIVE
SIPDIS
FOR EUR/WE, ALSO FOR L/LEI AND CA/OCS, DOJ FOR BRUCE SWARTZ AND PAT REEDY
EO 12958 N/A
SENSITIVE
SIPDIS
FOR EUR/WE, ALSO FOR L/LEI AND CA/OCS, DOJ FOR BRUCE SWARTZ AND PAT REEDY
EO 12958 N/A
TAGS: AORC, PREL, CASC, CJAN, PTER, PGOV, PHUM, PINS, SOCI, KCRM, KJUS, SP
SUBJECT: GARZON OPENS SECOND INVESTIGATION INTO ALLEGED U.S. TORTURE OF TERRORISM DETAINEES
REF: A. MADRID 392 B. MADRID 393 C. 08 MADRID 1280
(SBU) Summary: Spanish National Court (Audiencia Nacional) investigating judge Baltasar Garzon has announced he will pursue an investigation into allegations the U.S. tortured terrorism detainees at Guantanamo. He has yet to name any targets of his investigation. This comes days after he was forced to give up a related complaint filed by an NGO against six Bush Administration officials (ref a).
At the urging of Spanish prosecutors, the earlier case was reassigned to another National Court judge who now appears to be trying shelve the case. The Chief Prosecutor for the National Court tells us he will also fight Garzon’s latest move. Nevertheless, we suspect Garzon will wring all the publicity he can from the case unless and until he is forced to give it up. End summary.
(SBU) Garzon bowed to arguments by Spanish prosecutors and April 17 forwarded to National Court docketing authorities a case recently filed against six Bush Administration officials (ref a). That case was duly assigned to investigating judge Eloy Velasco. We learned May 5 that Velasco has declined to process that case saying that before moving forward the USG should be asked if proceedings are underway in the U.S. He also offered to transfer the proceedings to the U.S. under the MLAT. We are waiting for a copy of Velasco’s ruling and will advise further when we receive it. Meanwhile, Garzon announced April 29 that he was commencing a separate investigation into alleged U.S. torture of terrorism detainees.
(SBU) LEGATT and Embassy FSN Legal Advisor met May 4 with National Court Chief Prosecutor Javier Zaragoza (protect) to discuss Garzon’s latest move. Zaragoza said he had challenged Garzon directly and personally on this latest case, asking if he was trying to drum up more speaking fees. Garzon replied he was doing it for the record only and would let it die. Zaragoza opined that Garzon, having gotten his headline, would soon drop the matter. In case he does not, Zaragoza has a strategy to force his hand. Zaragoza’s strategy hinges on the older case in which Garzon investigated terrorism complaints against some Guantanamo detainees.
In connection with those earlier investigations, Garzon ordered the Spanish police to visit Guantanamo and collect evidence against the suspected terrorists. Zaragoza reasons that he can use this fact to embarrass Garzon into dropping this latest case by suggesting Garzon in some sense condoned the U.S. approach to detainee issues circa 2004. Garzon took no action in 2004 when the suspects returned to Spain and reported to him their alleged mistreatment. Zaragoza said that if Garzon could not be shamed into dropping the case, then he would formally recommend Garzon do so and appeal if Garzon ignored him.
(SBU) Key to Zaragoza’s plans is the fact that there is yet another Guantanamo-related case underway in the National Court. That case relates to so-called CIA flights carrying detainees to Guantanamo via Spain and is being heard by investigating Judge Ismael Moreno (ref c). The police officers whom Garzon sent to Guantanamo years ago are expected to testify before Moreno this month, and Zaragoza hopes their testimony will put on record Garzon’s role in the earlier cases. (Note: In opening his most recent Guantanamo investigation, Garzon asked that Moreno turn his detainee flights case over to him; Zaragoza thought there was no chance Moreno would agree to do so. End note.) Zaragoza is also banking on the fact that Garzon is already in hot water over his excessive zeal in another case.
A few months ago, Garzon opened an investigation into Spanish civil war atrocities. Garzon persisted in his investigation in the face of all advice to the contrary from prosecutors. The case was finally wrestled away from Garzon, but there is now a criminal complaint against him in the Supreme Court, alleging abuse of authority. That complaint has the support of Spanish prosecutors. Zaragoza doubts Garzon will risk a second such complaint.
(SBU) As we have reported, with respect to the earlier complaint against six Bush Administration officials, Zaragoza has repeatedly suggested that a USG affirmation that the U.S. is investigating the torture issue could help dispose of Spanish judicial inquires into the subject. In that regard, the Spanish press reported today that National Court investigating judge Fernando Andreu, who is handling a case against Israeli officials accused of war crimes in Gaza in 2002, has refused to drop the case despite a request from prosecutors. The prosecutors had argued that Israel was investigating the matter.
In refusing to close the case, Andreu argued that Gaza was not part of Israel and thus Israeli authorities were not the ones who should be investigating crimes allegedly committed there. The press reports that the President of the Supreme Court and Spain’s Judicial Council (Consejo General del Poder Judicial), Carlos Divar, is arguing for reforming the jurisdiction of the National Court to avoid having it turned into the “judicial police of the world.” Zaragoza has commented to us that while many talk about limiting Spain’s universal jurisdiction rules, it is unlikely politicians will act to do so.
Comment
-------(SBU) We believe Zaragoza is acting in good faith and playing a constructive role. Certainly he knows Garzon better than we do, having sparred with him before. Nevertheless, we do not share his optimism that this problem will go away anytime soon. Having started, it is hard for us to see why the publicity-loving Garzon would shut off his headline-generating machine unless forced to do so. And forcing him to do so could take months. We also fear Garzon -- far from being deterred by threats of disciplinary action -- may welcome the chance for martyrdom, knowing the case will attract worldwide attention. In any event, we will probably be dealing with this issue for some time to come. Zaragoza will be in Washington in early June for LEGATT-organized consultations on CT cooperation. L and DOJ may wish take that opportunity to discuss these cases with him directly at that time. CHACON
Executive Order: Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency
By the authority vested in me as President and Commander in Chief of the Armed Forces by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force (Public Law 107 40), the Military Commissions Act of 2006 (Public Law 109 366), and section 301 of title 3, United States Code, it is hereby ordered as follows:
Section 1. General Determinations. (a) The United States is engaged in an armed conflict with al Qaeda, the Taliban, and associated forces. Members of al Qaeda were responsible for the attacks on the United States of September 11, 2001, and for many other terrorist attacks, including against the United States, its personnel, and its allies throughout the world. These forces continue to fight the United States and its allies in Afghanistan, Iraq, and elsewhere, and they continue to plan additional acts of terror throughout the world. On February 7, 2002, I determined for the United States that members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war. I hereby reaffirm that determination.
(b) The Military Commissions Act defines certain prohibitions of Common Article 3 for United States law, and it reaffirms and reinforces the authority of the President to interpret the meaning and application of the Geneva Conventions.
Sec. 2. Definitions. As used in this order:
(a) "Common Article 3" means Article 3 of the Geneva Conventions.
(b) "Geneva Conventions" means:
(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, done at Geneva August 12, 1949 (6 UST 3114);
(ii) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
(iii) the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316); and
(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, done at Geneva August 12, 1949 (6 UST 3516).
(c) "Cruel, inhuman, or degrading treatment or punishment" means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.
Sec. 3. Compliance of a Central Intelligence Agency Detention and Interrogation Program with Common Article 3. (a) Pursuant to the authority of the President under the Constitution and the laws of the United States, including the Military Commissions Act of 2006, this order interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States. I hereby determine that Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section. The requirements set forth in this section shall be applied with respect to detainees in such program without adverse distinction as to their race, color, religion or faith, sex, birth, or wealth.
(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:
(i) the conditions of confinement and interrogation practices of the program do not include:
(A) torture, as defined in section 2340 of title 18, United States Code;
(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;
(C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code;
(D) any other acts of cruel, inhuman, or degrading treatment or punishment prohibited by the Military Commissions Act (subsection 6(c) of Public Law 109 366) and the Detainee Treatment Act of 2005 (section 1003 of Public Law 109 148 and section 1403 of Public Law 109 163);
(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or
(F) acts intended to denigrate the religion, religious practices, or religious objects of the individual;
(ii) the conditions of confinement and interrogation practices are to be used with an alien detainee who is determined by the Director of the Central Intelligence Agency:
(A) to be a member or part of or supporting al Qaeda, the Taliban, or associated organizations; and
(B) likely to be in possession of information that:
(1) could assist in detecting, mitigating, or preventing terrorist attacks, such as attacks within the United States or against its Armed Forces or other personnel, citizens, or facilities, or against allies or other countries cooperating in the war on terror with the United States, or their armed forces or other personnel, citizens, or facilities; or
(2) could assist in locating the senior leadership of al Qaeda, the Taliban, or associated forces;
(iii) the interrogation practices are determined by the Director of the Central Intelligence Agency, based upon professional advice, to be safe for use with each detainee with whom they are used; and
(iv) detainees in the program receive the basic necessities of life, including adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care.
(c) The Director of the Central Intelligence Agency shall issue written policies to govern the program, including guidelines for Central Intelligence Agency personnel that implement paragraphs (i)(C), (E), and (F) of subsection 3(b) of this order, and including requirements to ensure:
(i) safe and professional operation of the program;
(ii) the development of an approved plan of interrogation tailored for each detainee in the program to be interrogated, consistent with subsection 3(b)(iv) of this order;
(iii) appropriate training for interrogators and all personnel operating the program;
(iv) effective monitoring of the program, including with respect to medical matters, to ensure the safety of those in the program; and
(v) compliance with applicable law and this order.
Sec. 4. Assignment of Function. With respect to the program addressed in this order, the function of the President under section 6(c)(3) of the Military Commissions Act of 2006 is assigned to the Director of National Intelligence.
Sec. 5. General Provisions. (a) Subject to subsection (b) of this section, this order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.
(b) Nothing in this order shall be construed to prevent or limit reliance upon this order in a civil, criminal, or administrative proceeding, or otherwise, by the Central Intelligence Agency or by any individual acting on behalf of the Central Intelligence Agency in connection with the program addressed in this order.
GEORGE W. BUSH
THE WHITE HOUSE,
July 20, 2007.
International Criminal Court complaint filed against Bush, Cheney, Rumsfeld, Tenet, Rice and Gonzales
Request for international arrest warrants
The Honourable Luis Moreno-Ocampo
Office of the ProsecutorInternational Criminal CourtPost Office Box 195192500 CM, The HagueThe NetherlandsFax No.: 31-70-515-8555Email: OTP.InformationDesk@icc-cpi.intIn August, 2009, Attorney General Eric Holder -- under continuous,aggressive prodding by the Obama White House -- announced that three categories of individuals responsible for Bush-era torture crimes would be fully immunized from any form of criminal investigation and prosecution: (1) Bush officials who ordered the torture (Bush, Cheney, Rice, Powell, Ashcroft, Rumsfeld); (2) Bush lawyers who legally approved it (Yoo, Bybee, Levin), and (3) those in the CIA and the military who tortured within the confines of the permission slips they were given by those officials and lawyers (i.e., "good-faith" torturers). The one exception to this sweeping immunity was that low-level CIA agents and servicemembers who went so far beyond the torture permission slips as to basically commit brutal, unauthorized murder would be subject to a "preliminary review" to determine if a full investigation was warranted -- in other words, the Abu Ghraib model of justice was being applied, where only low-ranking scapegoats would be subject to possible punishment while high-level officials would be protected.
Yesterday, it was announced that this "preliminary review" by the prosecutor assigned to conduct it, U.S. Attorney John Durham, is now complete, and -- exactly as one would expect -- even this category of criminals has been almost entirely protected, meaning a total legal whitewash for the Bush torture regime:
The Justice Department has opened full criminal investigations of the deaths in CIA custody of two detainees, including one who perished at Iraq's notorious Abu Ghraib prison, U.S. officials said Thursday.
The decision, announced by Attorney General Eric H. Holder Jr., means continued legal jeopardy for several CIA operatives but at the same time closes the book on inquiries that potentially threatened many others. A federal prosecutor reviewed 101 cases in which agency officers and contractors interrogated suspected terrorists during years of military action after the Sept. 11, 2001, attacks but found cause to pursue criminal cases in only two. . . .
The two token cases to be investigated involve the most grotesque brutality imaginable: they apparently are (1) a detainee who froze to death in an American secret prison in Afghanistan in 2002 after being ordered stripped and chained to a concrete floor, and (2) the 2003 death of a detainee at Abu Ghraib whose body was infamously photographed by guards giving a thumbs-up sign. All other crimes in the Bush torture era will be fully protected. Lest there be any doubt about what a profound victory this is for those responsible for the torture regime, consider the reaction of the CIA:
"On this, my last day as director, I welcome the news that the broader inquiries are behind us," said a statement from CIA Director Leon Panetta, who will take over as defense secretary on Friday. "We are now finally about to close this chapter of our agency's history" . . . . At CIA headquarters on Thursday, Holder’s announcement was greeted with relief. . . .
Consider what's being permanently shielded from legal accountability. The Bush torture regime extended to numerous prisons around the world, in which tens of thousands of mostly Muslim men were indefinitely imprisoned without a whiff of due process, and included a network of secret prisons -- "black sites" -- purposely placed beyond the monitoring reach of even international human rights groups, such as the International Red Cross.
Over 100 detainees died during U.S. interrogations, dozens due directly to interrogation abuse. Gen. Barry McCaffrey said: "We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the C.I.A." Maj. Gen. Antonio Taguba, who oversaw the official investigation into detainee abuse, wrote: "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."
Thanks to the Obama DOJ, that is no longer in question. The answer is resoundingly clear: American war criminals, responsible for some of the most shameful and inexcusable crimes in the nation's history -- the systematic, deliberate legalization of a worldwide torture regime -- will be fully immunized for those crimes. And, of course, the Obama administration has spent years just as aggressively shielding those war criminals from all other forms of accountability beyond the criminal realm: invoking secrecy and immunity doctrines to prevent their victims from imposing civil liability, exploiting their party's control of Congress to suppress formal inquiries, and pressuring and coercing other nationsnot to investigate their own citizens' torture at American hands.
All of those efforts, culminating in yesterday's entirely unsurprising announcement, means that the U.S. Government has effectively shielded itself from even minimal accountability for its vast torture crimes of the last decade. Without a doubt, that will be one of the most significant, enduring and consequential legacies of the Obama presidency.
More: Glenn Greenwald
FILED AGAINST FOUR US PRESIDENTS AND FOUR UK PRIME MINISTERS FOR WAR CRIMES, CRIMES AGAINST HUMANITY AND GENOCIDE IN IRAQ
Brussels Tribunal
MADRID/CAIRO: Public enquiries on the decision to wage war on Iraq that are silent about the crimes committed, the victims involved, and provide for no sanction, whatever their outcome, are not enough. Illegal acts should entail consequences: the dead and the harmed deserve justice.
On 6 October 2009, working with and on behalf of Iraqi plaintiffs, we filed a case before Spanish law against four US presidents and four UK prime ministers for war crimes, crimes against humanity and genocide in Iraq. The case presented spanned 19 years, including not only the wholesale destruction of Iraq witnessed from 2003, but also the sanctions period during which 1.5 million excess Iraqi deaths were recorded.
We brought the case to Spain because its laws of universal jurisdiction are based on principles enshrined in its constitution. All humanity knows the crimes committed in Iraq by those we accused, but no jurisdiction is bringing them to justice. We presented with Iraqi victims a solid case drawing on evidence contained in over 900 documents and that refer to thousands of individual incidents from which a pattern of accumulated harm and intent can be discerned.
When we brought our case, we knew that the Spanish Senate would soon vote on an amendment earlier passed by the lower house of parliament to curtail the application of universal jurisdiction in Spain. We were conscious that this restriction could be retroactive, and we took account of the content of the proposed amendment in our case filing. As we imagined, 2009 turned out to be a sad year for upholding universal human rights and international law in Spain. One day after we filed, the law was curtailed, and soon thereafter our case closed. Serious cases of the kind universal jurisdiction exists to address became more difficult to investigate.
One more jurisdiction to fall
Despite submitting a 110-page long referenced accusation (the Introduction of which is appended to this statement), the Spanish public prosecutor and the judge assigned to our case determined there was no reason to investigate. Their arguments were erroneous and could easily have been refuted if we could have appealed. To do so we needed a professional Spanish lawyer — either in a paid capacity or as a volunteer who wished to help the Iraqi people in its struggle for justice. As we had limited means, and for other reasons mostly concerning internal Spanish affairs, which were not our concern, we could not secure a lawyer in either capacity to appeal. Our motion for more time to find a lawyer was rejected.
We continue to believe that the violent killing of over one million people in Iraq since 2003 alone, the ongoing US occupation — that carries direct legal responsibility — and the displacement of up to a fifth of the Iraqi population from the terror that occupation has entailed and incited suggests strongly that the claims we put forward ought to be further investigated.
In reality, our case is a paramount example of those that authorities in the West — Spain included — fear. To them, such cases represent the double edge of sustaining the principle of universal jurisdiction. Western states used universal jurisdiction in the past to judge Third World countries. When victims in the global South began using it to judge Israel and US aggression, Western countries rushed to restrict it. Abandoning universal jurisdiction by diluting it is now the general tendency.
Call for wider collective effort to prosecute
We regret that the Spanish courts refused to investigate our case, but this will not discourage us. We have a just cause. The crimes are evident. The responsible are well known, even if the international juridical system continues to ignore Iraqi victims. Justice for victims and the wish of all humanity that war criminals should be punished oblige us to search for alternative legal possibilities, so that the crimes committed in Iraq can be investigated and accountability established.
At present, failed international justice allows US and UK war criminals to stand above international law. Understanding that this constitutes an attack — or makes possible future attacks — on the human rights of everyone, everywhere, we will continue to advocate the use of all possible avenues, including UN institutions, the International Criminal Court, and popular tribunals, to highlight and bring before law and moral and public opinion US and UK crimes in Iraq.
We are ready to make our experience and expertise available to those who struggle in the same direction. We look forward to a time when the countries of the global South, which are generally victims of aggression, reinforce their juridical systems by implementing the principle of universal jurisdiction. This will be a great service to humanity and international law.
Millions of people in Iraq have been killed, displaced, terrorized, detained, tortured or impoverished under the hammer of US and UK military, economic, political, ideological and cultural attacks. The very fabric and being of the country has been subject to intentional destruction. This destruction constitutes one of the gravest international crimes ever committed. All humanity should unite in refusing that law — by failing to assure justice for Iraqi victims — enables this destruction to be the opening precedent of the 21st century.
Ad Hoc Committee For Justice For Iraq
“Judicially speaking, the United States has a clear obligation” to bring proceedings against Bush and Rumsfeld. [...] He noted Washington had ratified the UN convention on torture which required “all means, particularly penal law” to be used to bring proceedings against those violating it.
“We have all these documents that are now publicly available that prove that these methods of interrogation were intentionally ordered by Rumsfeld,” against detainees at the US prison facility in Guantanamo Bay, Cuba, Nowak said.
Indeed, a bipartisan Senate report released last month found that Rumsfeld “bore major responsibility” for abuses committed at Guantanamo Bay, Abu Ghraib and other military detention centers. Just last week, a Bush administration official overseeing Gitmo trials said Rumsfeld approved the torture of one particular detainee. Bush himself said last year that he was aware of his advisers’ discussions on torture and recently admitted that he personally authorized waterboarding Kalid Sheik Muhammad.
Every matter spoken to in this post and more was covered in our conversations at The Hague and much more is addressed in 6,223 page Legal Instrument. All the documentation to convict the War Criminals of this nation is contained in the work product. The world, with the exception of the citizens of this nation, fully understands the criminality of The Bush Administration and the legal minds of the international community are in full possession of sufficient documentation and prove of that criminality.
The problems that remain are simple; they are a matter of world political entanglements. We all know that that the legal system of this nation will never bring the essential charges against the political leaders of this nation. Initiation will have to come from abroad from a nation with the standing and will to resist and overcome the pressure, bribery and blackmail of this nation designed to maintain our position of bring above the law.
When that day comes the work done by so many will all fall upon them like a collapsing building and bury them. Our trip was not in vein and our efforts are from concluded. The next goal is to move on the UN to become even more forceful in its position and demands upon our government to act.
Remember:
While the Chief Prosecutor may receive information from the public or non-governmental organizations, he may only open a formal investigation under three circumstances:
1. He Is Directed By The UN Security Council;
2. A Matter Is Referred To Him By A State Party To The ICC Treaty, Or
3. The Prosecutor Presents A Matter To A Panel Of Judges And They Approve His Request.
And Most Recently:
Getting Away with Torture
The Bush Administration and Mistreatment of Detainees
Summary
Recommendations
I. Background: Official Sanction for Crimes against Detainees
II. Torture of Detainees in US Counterterrorism Operations
The CIA Detention Program
Secret Detention Sites
The Case of Abu Zubaydah
Growth of the CIA Program
The CIA Rendition Program
Coercive Interrogations by the Military
Abuses by Military Interrogators in Afghanistan, Guantanamo, and Iraq
Approving Illegal Techniques for Military Interrogation
Migration of the Approved Techniques
III. Individual Criminal Responsibility
The Illegality of the Underlying Abuses
Forms of Liability
Waterboarding
Interrogation Techniques
CIA Secret Detention Program
OLC Legal Guidance
Duty to Investigate and Provide Redress
The Four Key Leaders
President George W. Bush
Vice President Dick Cheney
Defense Secretary Donald Rumsfeld
CIA Director George Tenet
Other Officials
Appendix: Foreign State Proceedings Regarding US Detainee Mistreatment
Germany
France: Complaint against Rumsfeld
Spain: Investigations of US officials
The “Bush Six”
Investigation into Torture by US officials
Diplomatic Intervention by the United States
Acknowledgments and Methodology
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