Tuesday, September 4, 2012





There Is Another Legitimate Push On War Crimes In The Hague;Tutu: Bush Should Be Tried For War Crimes
There are no wars without war crimes and war criminal. The “victor” in any war is not immune to prosecution and when any nation fails/refuses to prosecute its own war criminals other nations may bring those charges resulting in indictment, prosecution and conviction. There are no statutes of limitations on the prosecution of war criminals and all legal, internal to this nation, mumbo jumbo by political hack legal mental midgets, intended to evade responsibility under  international law is irrelevant  whether Americans want to hear that or not!




It is collectively accepted that humans require laws to protect society because there will always be people who disregard the rights of others, and without standards that are generally accepted and followed, there would be perpetual chaos that would bring civilization crashing down.


http://www.politicususa.com/bush-cheney-war-crimes.html


Some laws prohibiting murder, sexual predation toward children, and certain actions during wartime are universal and when successfully prosecuted, condemn the offender to societal scorn as well as incarceration. The stigma attached to individuals who have been convicted of a crime is a damning and lifelong curse that affects social interactions, families, and in many cases, the opportunity for finding gainful employment.


For ex-president George W. Bush, finding gainful employment is not an issue, but as a convicted war criminal, he will forevermore share that designation with the likes of Adolf Hitler, Josef Mengele, and Osama bin Laden.
On Friday in Kuala Lumpur in the first ever conviction of its kind anywhere on Earth, Bush, former vice president Dick Cheney, former Secretary of Defense Donald Rumsfeld, and five of their legal advisors were found guilty of war crimes for torture, cruel, inhumane and degrading treatment of prisoners who suffered at the hands of U.S. Soldiers and contractors in Afghanistan, Guantanamo Bay, and Iraq.


The Kuala Lumpur War Crimes Commission convened a five-panel tribunal, and after a week-long trial delivered the unanimous guilty verdicts with full transcripts of witness statements, charges, and other materials being sent to the Chief Prosecutor of the International Criminal Court, the United Nations and the Security Council. The Commission is also requesting that the names of Bush, Cheney, Rumsfeld, Gonzales, Yoo, Bybee, Addington, and Haynes be entered and added to the Commission’s Register of War Criminals for the public record.
The Kuala Lumpur commission followed the format of the Nuremberg Charter, and Francis Boyle, a war crimes expert, professor of international law at the University of Illinois College of Law, and member of the prosecution team referenced the Nuremberg Charter’s rule that, “Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit war crimes are responsible for all acts performed by any person in execution of such a plan.”


Boyle said “This is the first conviction of these people anywhere in the world,” and that “we tried three times to get Bush in Canada but were thwarted by the Canadian Government, then we scared Bush out of going to Switzerland.” 
Although there will be some who consider the convictions symbolic, Boyle, a human rights activist, is hopeful that Bush and his co-conspirators face similar trials elsewhere in the world because “countries have a duty to try war criminals” and that the United States is subject to international law and the Principles of the Nuremberg Charter. The lead prosecutor said “The tribunal was very careful to adhere scrupulously to the regulations drawn up by the Nuremberg courts and the International Criminal Courts.”
The trial heard testimony from a British man held in Guantanamo Bay, an Iraqi woman tortured in Abu Ghraib prison, and three other witnesses who gave harrowing accounts of torture and inhumane treatment while being detained. However, the reality is the witnesses did not have to testify for the court to convict Bush et al for war crimes because they have confessed to authorizing “enhanced interrogation techniques” that is a sweet way of describing torture. In July 2010, Bush admitted to authorizing water boarding and said he would “do it again” while speaking at the Economic Club in Grand Rapids Michigan. 
Retired Brigadier General David R. Irvine said water boarding is “unequivocally torture,” and as a former military and intelligence officer who taught prisoner of war interrogation and military law for 16 years, he would know what torture entails.


General Irvine also said regarding waterboarding as torture that, “As a nation, we have historically prosecuted it as such, going back to the time of the Spanish-American War, moreover, it cannot be demonstrated that any use of water boarding by U.S. personnel in recent years has saved a single American life.” 
When told that Bush admitted to authorizing torture, Irvine said, “When he decided to do it the first time, he launched the nation down a disastrous road, and we will continue to pay dearly for the damage his decision has caused. We are seen by the rest of the world as having abandoned our commitment to international law,” and that “we have forfeited enormous amounts of moral leadership as the world’s sole remaining superpower.”
Former vice president Dick Cheney admitted authorizing torture in a nationwide televised broadcast in December, 2008, and said, “I was aware of the program, certainly, and involved in helping get the process cleared, as the agency in effect came in and wanted to know what they could and couldn’t do. And they talked to me, as well as others, to explain what they wanted to do. And I supported it.” 
The former General in charge of Abu Ghraib prison said she saw a memo signed by Donald Rumsfeld allowing civilian contractors to use “harsh interrogation techniques on detainees at Abu Ghraib prison” and instructed Army personnel to take in inmates without registering them. 
Both of Rumsfeld’s orders are in direct violation of the Geneva Convention and former General Karpinski said she would be willing to testify against Rumsfeld in a war crimes investigation.
George W. Bush, Dick Cheney, Donald Rumsfeld and their legal advisors are now convicted war criminals and it is shameful that America has added to their disgraceful actions by not prosecuting them.
George Washington opined that any American who mistreated prisoners of war was guilty of bringing “shame, disgrace, and ruin to themselves and their country,” and over 230 years later, evil men like Bush, Cheney and Rumsfeld brought America’s standing in the world to a new low by authorizing torture. It is a travesty they are not in an isolation cell in a federal penitentiary and that they are able to move about the country as free men. The witnesses who were tortured are also free because they were found to be innocent, but they still bear the physical and psychological scars from being rounded up like dogs, water-boarded, hung, had their fingernails pulled out with pliers, and kept in isolation by American military personnel and private contractors.
Republicans are wont to trumpet America’s exceptionalism, and men like Willard Romney condemn President Obama for “apologizing for so many American misdeeds, both real and imagined,” and although Romney is a liar, it goes to his belief that America is above the law that Bush, Cheney, and Rumsfeld subscribed to in authorizing torture.
America is exceptional, but only for allowing its highest ranking office-holders to order the military, intelligence community, and private contractors to break American, military, and international law  with impunity and jeopardize our troops by engaging in war crimes. 
What is most distressing is that the corporate-owned media has been silent on the convictions that should be front-page and breaking news in every media outlet in the country, and their reticence makes them complicit in the cover-up.


The stigma of being a convicted war criminal may elude Bush and company in America, but around the world they are recognized for what they really are; common criminals guilty of the most heinous of crimes and it does not even take into account the hundreds-of thousands of innocent Iraqi civilians killed because of a war based on fabricated evidence.


One might be inclined to wonder how war criminals like Bush and Cheney are able to look at themselves in the mirror or sleep at night, but like Osama bin Laden and Adolf Hitler, criminals steeped in abject evil are too black-hearted and contemptible to recognize the gravity or inhumanity of their actions because they are not human; they are monsters.
TUTU: BUSH SHOULD BE TRIED FOR WAR CRIMES - ASSOCIATED PRESS - POLITICO

 Nobel Peace Prize Laureate Desmond Tutu called Sunday for Tony Blair and George W. Bush to face prosecution at the International Criminal Court in the ...

 www.politico.com/news/stories/0912/80561.html

Archbishop Desmond Tutu Today Brands Tony Blair And George Bush War Criminals And Calls For Both Former Leaders To Be Hauled Before An International Court.


http://www.independent.co.uk/news/world/politics/blair-should-face-war-crimes-trial-over-iraq-says-desmond-tutu-8100798.html


The Nobel Peace Prize winner said the former British prime minister and American president should be punished for leading the 2003 invasion of Iraq. The Archbishop, a long-time critic of Mr Blair, believes they committed crimes of aggression.

In an article in today's Observer, he writes: "Those responsible should be treading the same path as some of their African and Asian peers who have been made to answer for their actions in The Hague."
He says the invasion of Iraq had left the world more divided that "any other conflict in history" and was the precursor for troubles in the Middle East and in Syria. Archbishop Tutu adds: "The then leaders of the US and Great Britain fabricated the grounds to behave like playground bullies and drive us further apart. They have driven us to the edge of a precipice where we now stand – with the spectre of Syria and Iran before us."
He accuses the former British and US leaders of lying about weapons of mass destruction and says the invasion left the world more destabilised and divided "than any other conflict in history", adding: "Even greater costs have been exacted beyond the killing fields in the hardened hearts and minds of members of the human family across the world."
A spokesman for Archbishop Tutu, Roger Friedman, said: "The Archbishop is of the view that Mr Blair's decision to support the US military invasion of Iraq, on the basis of unproven allegations of the existence in Iraq of weapons of mass destruction, was morally indefensible."
A spokesman for Mr Blair PASSED OFF THE CRITICISM as "part of a healthy democracy".
Calling for the pair to face justice in The Hague, he said different standards appeared to be set for prosecuting African leaders, and that the death toll during and after the Iraq conflict was sufficient evidence for them to face action.
‘On these grounds alone, in  a consistent world, those responsible should be treading the same path as some of their African and Asian peers who have been made to answer for their actions in The Hague,’  he said.
Archbishop Tutu, a long-time critic of the Iraq war, won the Nobel Peace Prize in 1984 for speaking out against apartheid in his native South Africa.
Archbishop Desmond Tutu's principled refusal to share a platform with war criminal Tony Blair is an emperor's new clothes moment.
Britain's political elite behaves as though the Iraq invasion launched illegally by Blair and George Bush ought not to be discussed in polite society.
The most important thing, according to the Establishment, is to assist Iraq to cope with its huge problems as though the invasion had nothing to do with the destruction of infrastructure, the poisoning of the environment and the relentless ethnic and religious sectarianism - to say nothing of the huge death toll caused by sanctions and war.
Ed Miliband declared during the Labour leadership contest that he had been opposed to military intervention in Iraq, but he has treated the matter as closed ever since.
Is it because examination of the motives for carrying through regime change in Iraq might lead people to see a pattern in subsequent involvement in Libya and threats against Syria?
The three main parliamentary parties have closed ranks in support of these actual or threatened military adventures, lining up with the Arab world's most reactionary feudal states while claiming the best of humanitarian and democratic motives.
The cross-party cabal is also engaged in a cover-up of decision making within the Blair government by refusing to supply documents to the Chilcot inquiry and vetoing freedom of information requests for papers relating to Cabinet meetings immediately prior to the invasion.
The stubborn single-mindedness of the pro-war conspirators suggests that such documents would provide stark evidence supporting the case for Blair and Bush to be tried for war crimes.
The Morning Star made the case before Iraq was attacked that the weapons of mass destruction argument was simply a pretext to camouflage the underlying intention of regime change, which, as a lawyer, Blair would know was illegal under international law without UN sanction.
Blair's attempts to rewrite history by citing Saddam Hussein's widespread use of chemical weapons against Iraqi Kurds, most notoriously at Halabja in 1988, as a moral reason for invasion in 2003 are sickening.
When Saddam carried out this crime, he was Washington's ally and was waging an unprovoked war against Iran, supported by US intelligence services' aerial reconnaissance.
Not only did the US State Department impugn Tehran for this outrage but US-Iraqi relations flourished until Baghdad's occupation of Kuwait in 1991.
In any event, the only case for invasion put forward by the Blair government was the accusation that Iraq retained WMD even though UN weapons inspectors had supervised their destruction in the 1990s and inspection teams searching for them prior to invasion could find no trace of them.
Bush and his advisers had settled on March 2003 as the invasion date over a year before and Blair had undertaken, by hook or by crook, to take Britain to war alongside the US.
Those cold hard facts cannot be gainsaid any more than the realities of the crimes unleashed against the Iraqi people.
Blair has become extremely rich as the reward for sucking up to the White House, hoovering up lucrative advisory posts with banks and governments and being paid up to £200,000 for speeches to the rich and influential.
Tutu's reminder that his wealth was facilitated by his war crimes is a welcome antidote to the obsequious toadying of Britain's Establishment political parties.



British Op-ed: Mitt Romney's Advisers are War Criminals
  


http://www.dailykos.com/story/2012/09/02/1126944/-Desmond-Tutu-Romney-s-Advisers-are-War-Criminals
 

The immorality of the United States and Great Britain's decision to invade Iraq in 2003, premised on the lie that Iraq possessed weapons of mass destruction, has destabilised and polarised the world to a greater extent than any other conflict in history.
 

http://www.guardian.co.uk/commentisfree/2012/sep/02/desmond-tutu-tony-blair-iraq



Instead of recognising that the world we lived in, with increasingly sophisticated communications, transportations and weapons systems necessitated sophisticated leadership that would bring the global family together, the then-leaders of the US and UK fabricated the grounds to behave like playground bullies and drive us further apart. They have driven us to the edge of a precipice where we now stand – with the spectre of Syria and Iran before us.

If leaders may lie, then who should tell the truth? Days before George W Bush and Tony Blair ordered the invasion of Iraq, I called the White House and spoke to Condoleezza Rice, who was then national security adviser, to urge that United Nations weapons inspectors be given more time to confirm or deny the existence of weapons of mass destruction in Iraq. 
Should they be able to confirm finding such weapons, I argued, dismantling the threat would have the support of virtually the entire world. Ms Rice demurred, saying there was too much risk and the president would not postpone any longer.
On what grounds do we decide that Robert Mugabe should go the International Criminal Court, Tony Blair should join the international speakers' circuit, bin Laden should be assassinated, but Iraq should be invaded, not because it possesses weapons of mass destruction, as Mr Bush's chief supporter, Mr Blair, confessed last week, but in order to get rid of Saddam Hussein?
The cost of the decision to rid Iraq of its by-all-accounts despotic and murderous leader has been staggering, beginning in Iraq itself. Last year, an average of 6.5 people died there each day in suicide attacks and vehicle bombs, according to the Iraqi Body Count project. More than 110,000 Iraqis have died in the conflict since 2003 and millions have been displaced. By the end of last year, nearly 4,500 American soldiers had been killed and more than 32,000 wounded.
On these grounds alone, in a consistent world, those responsible for this suffering and loss of life should be treading the same path as some of their African and Asian peers who have been made to answer for their actions in the Hague.
But even greater costs have been exacted beyond the killing fields, in the hardened hearts and minds of members of the human family across the world.
Has the potential for terrorist attacks decreased? To what extent have we succeeded in bringing the so-called Muslim and Judeo-Christian worlds closer together, in sowing the seeds of understanding and hope?
Leadership and morality are indivisible. Good leaders are the custodians of morality. The question is not whether Saddam Hussein was good or bad or how many of his people he massacred. The point is that Mr Bush and Mr Blair should not have allowed themselves to stoop to his immoral level.
If it is acceptable for leaders to take drastic action on the basis of a lie, without an acknowledgement or an apology when they are found out, what should we teach our children?
My appeal to Mr Blair is not to talk about leadership, but to demonstrate it. You are a member of our family, God's family. You are made for goodness, for honesty, for morality, for love; so are our brothers and sisters in Iraq, in the US, in Syria, in Israel and Iran.
I did not deem it appropriate to have this discussion at the Discovery Invest Leadership Summit in Johannesburg last week. As the date drew nearer, I felt an increasingly profound sense of discomfort about attending a summit on "leadership" with Mr Blair. I extend my humblest and sincerest apologies to Discovery, the summit organisers, the speakers and delegates for the lateness of my decision not to attend.
Archbishop Desmond Tutu Has Called For Tony Blair And George Bush To Be Hauled Before The International Criminal Court In The Hague And Delivered A Damning Critique Of The Physical And Moral Devastation Caused By The Iraq War.
Tutu, a Nobel peace prize winner and hero of the anti-apartheid movement, accuses the former British and US leaders of lying about weapons of mass destruction and says the invasion left the world more destabilised and divided "than any other conflict in history".
Writing in the Observer, Tutu also suggests the controversial US and UK-led action to oust Saddam Hussein in 2003 created the backdrop for the civil war in Syria and a possible wider Middle East conflict involving Iran.
"The then leaders of the United States and Great Britain," Tutu argues, "fabricated the grounds to behave like playground bullies and drive us further apart. They have driven us to the edge of a precipice where we now stand – with the spectre of Syria and Iran before us."
But it is Tutu's call for Blair and Bush to face justice in The Hague that is most startling. Claiming that different standards appear to be set for prosecuting African leaders and western ones, he says the death toll during and after the Iraq conflict is sufficient on its own for Blair and Bush to be tried at the ICC.
"On these grounds, alone, in a consistent world, those responsible for this suffering and loss of life should be treading the same path as some of their African and Asian peers who have been made to answer for their actions in The Hague," he says.
The court hears cases on genocide, crimes against humanity, and war crimes. To date, 16 cases have been brought before the court but only one, that of Thomas Lubanga, a rebel leader from the Democratic Republic of the Congo (DRC), has been completed. He was sentenced earlier this year to 14 years' imprisonment for his part in war crimes in his home country.
Tutu's broadside is evidence of the shadow still cast by Iraq over Blair's post-prime ministerial career, as he attempts to rehabilitate himself in British public life. A longtime critic of the Iraq war, the archbishop pulled out of a South African conference on leadership last week because Blair, who was paid 2m rand (£150,000) for his time, was attending. It is understood that Tutu had agreed to speak without a fee.
In his article, the archbishop argues that as well as the death toll, there has been a heavy moral cost to civilisation, with no gain. "Even greater costs have been exacted beyond the killing fields, in the hardened hearts and minds of members of the human family across the world.
"Has the potential for terrorist attacks decreased? To what extent have we succeeded in bringing the so-called Muslim and Judeo-Christian worlds closer together, in sowing the seeds of understanding and hope?" Blair and Bush, he says, set an appalling example. "If leaders may lie, then who should tell the truth?" he asks.
"If it is acceptable for leaders to take drastic action on the basis of a lie, without an acknowledgement or an apology when they are found out, what should we teach our children?"
In a statement, Blair strongly contested Tutu's views and said Iraq was now a more prosperous country than it had been under Saddam Hussein. "I have a great respect for Archbishop Tutu's fight against apartheid – where we were on the same side of the argument – but to repeat the old canard that we lied about the intelligence is completely wrong as every single independent analysis of the evidence has shown.
"And to say that the fact that Saddam massacred hundreds of thousands of his citizens is irrelevant to the morality of removing him is bizarre. We have just had the memorials both of the Halabja massacre, where thousands of people were murdered in one day by Saddam's use of chemical weapons, and that of the Iran-Iraq war where casualties numbered up to a million including many killed by chemical weapons.
"In addition, his slaughter of his political opponents, the treatment of the Marsh Arabs and the systematic torture of his people make the case for removing him morally strong. But the basis of action was as stated at the time.
"In short, this is the same argument we have had many times with nothing new to say. But surely in a healthy democracy people can agree to disagree.
"I would also point out that despite the problems, Iraq today has an economy three times or more in size, with the child mortality rate cut by a third of what it was. And with investment hugely increased in places like Basra."


 Obama's Justice Department Grants Final Immunity To Bush's CIA Torturers By Glenn Greenwald 31 Aug 2012
 
http://www.guardian.co.uk/commentisfree/2012/aug/31/obama-justice-department-immunity-bush-cia-torturer
 
The Obama administration's aggressive, full-scale whitewashing of the "war on terror" crimes committed by Bush officials is now complete. Thursday, Attorney General Eric Holder announced the closing without charges of the only two cases under investigation relating to the US torture program: one that resulted in the 2002 death of an Afghan detainee at a secret CIA prison near Kabul, and the other the 2003 death of an Iraqi citizen while in CIA custody at Abu Ghraib. This decision, says the New York Times Friday, "eliminat[es] the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the CIA".



WAR CRIMES: WHY SHOULD BUSH, BLAIR AND OBAMA BE EXEMPT?


http://www.firstpost.com/world/war-crimes-why-should-ush-blair-and-obama-be-exempt-441295.html

By any normal definition, they would fit the definition of terrorists. They can decide to attack whoever they choose and cause untold human suffering. They can bomb and bury hundreds of unnamed enemies that would be called genocide in any saner world. And they can even order assassinations of specific people, including their own countrymen.
But we are not talking al-Qaeda or LTTE or any such group that everyone considers beyond the pale. They are, in fact, the leaders of the free world – America and Britain.
Thus far, nobody beyond fringe Left groups has had the gumption to tell it like it is. Now, a widely-respected Nobel Peace Prize winner has done what no one else has: call George W Bush and Tony Blair to account for the sufferings of the people of Iraq and other countries they launched a war against.
Archbishop Desmond Tutu of South Africa recently pulled out of a leadership summit in Johannesburg when he heard that Tony Blair would be addressing the meeting. His reason: Both Bush and Blair went to war in Iraq on the basis of a lie – that they had detected weapons of mass destruction in that country, which turned out to be false – and must thus answer for their crimes (Read what he wrote in The Observer here).


http://www.firstpost.com/world/war-crimes-why-should-bush-blair-and-obama-be-exempt-441295.html

Tutu, a leading light of South Africa’s anti-apartheid struggle and a key member of the Truth and Reconciliation Commission, appointed to investigate human rights abuses during the White racist regime, believes that there is a good case for trying both George Bush and Tony Blair before the International Court of Justice at The Hague. (more….)
Archbishop Tutu’s comments may have jarred sensibilities in the US and Britain, where the powerful are used to sitting in judgment rather than being judged themselves, but it is clear that his call for trying Bush and Blair does not go far enough.
Archbishop Desmond Tutu refused to attend a conference last week for a very good reason -- he did not want to be publicly associated with a war criminal. 


That war criminal was Tony Blair, who had been paid his usual whopping fee ($238,000 in this case) to deliver his usual sanctimonious blather at a South African conference on "leadership." Tutu -- who was speaking for no fee -- withdrew from the meeting when he heard Blair was coming, the Guardian reports. 


This was a rare -- very rare -- example of behavior which should be ubiquitous: shunning mass murderers. Blair, like George W. Bush (and Bill Clinton, he whose minions openly accepted responsibility for the killing of 500,000 Iraqi children in the US-UK sanctions regime that devastated Iraq before the US and UK finally launched their outright war of aggression in 2003), swans around the world collecting accolades -- and mucho dinero -- from the great and good and the high and mighty (and their simpering media sycophants), untroubled by his instrumental role in the Hitlerian invasion and its aftermath, which has left -- according to measurement tools used by Blair's own government -- more than a million innocent people dead. 


But Tutu did more than a simple shunning. He went on to pen a column in The Observer openly calling for Blair and Bush to be put on trial for war crimes. His indictment (quoted here in the Guardian) is damning:
"Tutu, a Nobel peace prize winner and hero of the anti-apartheid movement, accuses the former British and US leaders of lying about weapons of mass destruction and says the invasion left the world more destabilised and divided 'than any other conflict in history.' 


"But it is Tutu's call for Blair and Bush to face justice in The Hague that is most startling. Claiming that different standards appear to be set for prosecuting African leaders and western ones, he says the death toll during and after the Iraq conflict is sufficient on its own for Blair and Bush to be tried at the ICC.
"'On these grounds, alone, in a consistent world, those responsible for this suffering and loss of life should be treading the same path as some of their African and Asian peers who have been made to answer for their actions in The Hague,' he says.
"In his article, the archbishop argues that as well as the death toll, there has been a heavy moral cost to civilisation, with no gain. ...Even greater costs have been exacted beyond the killing fields, in the hardened hearts and minds of members of the human family across the world….
On July 20, 2007, President Bush signed Executive Order 13440 - Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency. This Executive Order is a result of an inter-agency process undertaken pursuant to the Military Commission Act of 2006. For the reasons explained below, the President’s order is an invalid and illegal act that guts the Geneva Conventions. These are policy preferences that are criminal.
First, the Executive Order reaffirms the President's determination of February 7, 2002 that, for the United States, 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. This determination concluded that the Taliban had waived their right to Third Geneva Convention POW status because they did not comply with the four prong test that forms one of the definitions of who is a POW in an international conflict.

The analysis underlying that determination was flawed at the time as was pointed out by the then Legal Advisor of the Department of State. Moreover, the analysis simply did not take into account several other categories of persons that are entitled to Third Geneva Convention POW status. As to Al-Qaeda, the Supreme Court in Hamdan stated that at a minimum they were entitled to the protections of Common Article 3 – it did not reach their status as POW’s. 
Traditionally, we would give them POW status as we did with the Viet-Cong in Vietnam. The President was wrong in 2002 and is wrong again in 2007, with devastating consequences for the United States.



Second, the President maintains the designation of "unlawful enemy combatant" which does not track with the categories foreseen in the Third or Fourth Geneva Conventions. Under the Executive Order, persons who are entitled to POW status as a matter of the Geneva Conventions will be provided Common Article 3 protections only. And those Common Article 3 will be only “ersatz” Common Article 3 protections of the limited kind stated in the Executive Order. This approach is another effort to decouple these persons from the Geneva Conventions through a U.S. internal law approach that does not track with the Geneva Convention definitions.

Third, the “cruel, inhuman or degrading treatment” definition is a definition of US internal constitutional law and is inconsistent with the object and purpose of the Geneva Conventions and other treaties that use that language This definition does not prevent the argument to be made again that cruel inhuman and degrading treatment is permitted outside the United States (except to the extent stated by this act as opposed to the Constitutional standard) because the Constitution does not apply outside the United States. If the constitutional standard of “shocks the conscience” is said to apply, that standard is not that foreseen in the Geneva Conventions.



The constitutional standard is a questionable local rule in this context as what “shocks the conscience” of any US court in this armed conflict is up to anyone’s guess. US courts have shown a propensity to not be willing to entertain the claims about their treatment in the various cases brought by present or former detainees on the grounds of state secrets, political question, or federal officer immunity type doctrines.

Fourth, the President, with Congressional acquiescence, is asserting what he does is the authoritative interpretation of the Common Article 3 treaty requirements. The use of the terms “international obligations” raises a concern whether the Executive Order is attempting to make a definition that also would cover other human rights instruments such as the Convention Against Torture and other forms of Cruel, Inhuman and Degrading Treatment and the International Covenant on Civil and Political Rights as well as any customary international law rules (drawing from Paquete Habana type analysis).



No doubt the President’s hope in this approach is to make sure the greatest deference is shown by courts to his determinations, erroneous as they are. Again, this is subtracting persons from the protections of the Geneva Conventions and other international law.
Fifth, the language detailing what is prohibited under Common Article 3 is written in the negative stating that as long as the confinement and interrogation practices do not include the various points described below then the practices will be in compliance with Common Article 3.



Through a series of artful (but ultimately transparent) phrases with references back to U.S. domestic law (as amended by recent law), the President proceeds to place markers on what is prohibited that I am certain provide a space to allow in several practices that would be suspect under the Geneva Conventions.

Some have already asked about why “sleep” is not included in the laundry list. Others have asked about ICRC access to these prisoners not being included (thus permitting secret incommunicado detention which is illegal).

 It is as much what one does not see as what is listed that is important in reading this list. Readers should keep in mind that this kind of laundry list approach was rejected in the drafting of the Geneva Conventions precisely because the drafters (no doubt remembering the inventiveness of the German high command lawyers with the 1929 Geneva Conventions) were worried that artful persons would try to define and interpret the terms in a manner that would leave space for the kinds of acts the Geneva Conventions were intended to prevent from happening.



For example, the “outrages against personal dignity” language of Common Article 3 of the Geneva Conventions is now construed narrowly. Section E prohibits 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 (emphasis added); The “willful and outrageous acts”, “done for the purpose”, “reasonable person” and “considering the circumstances” language provide along with the focus on sexual simulation “wiggle room” that seriously waters down the meaning of Common Article 3.



Sixth, the act is written in a manner to prevent again any private right of action. I am also uncertain how a criminal prosecution for violation of the Executive Order might be permitted to go forward since rights under the act inure to the CIA’s benefit alone and not to the government as a whole.
Seventh, the treatment here diverges from the obligations under the Uniform Code of Military Justice and Army Field Manuals to which our soldiers are trained. This divergence maintains the kind of space between the legal regimes for uniformed soldiers and CIA persons that led to the problems at Abu Ghraib. Uniformed soldiers were court-martialed for doing things that they said intelligence persons were asking them to do. One can easily imagine down the road CIA types (and high level civilians in Defense for that matter) encouraging soldiers to do things that violate their obligations under the Uniform Code of Military Justice but do not violate this order. 
Lynndie Englund and Charles Graner? Move over and make space for your other uniformed colleagues.

In sum, the Executive Order reaffirms the elimination of Geneva Convention protections and narrows the definition of the protections that are said to be under Common Article 3 and other international obligations. Through this artful effort in internal U.S. foreign relations law the U.S. can try to have its cake and eat it to. It can say to the rest of the world that it has not changed the Geneva Conventions and as a matter of internal law it can maintain all kinds of latitude for how it treats these people.

The bet being made by of all those involved in approving the Military Commissions Act and this Executive Order is that the United States can enshrine illegality but will be able to achieve legitimacy for its actions. First, legitimacy is procured by having the Congressional action of passing the Military Commissions Act giving great deference to the Presidential determinations and creating this separate Military Commission space. 
Second, the Presidential Executive Order seeks to further provide legitimacy to this illegality.



The hope is that review by the courts, if any, will only be through the Military Commission process and only for narrow bases with great deference to the President further providing legitimacy. Third, in case no one has noticed, a very aggressive charm offensive is going on by the United States to encourage other states to allow the United States to have its way. Thus, the German complaint on detainee treatment was withdrawn early this summer.



The Legal Adviser at the Department of State was dispatched along with others around the world to explain the U.S. position. It appears that during the G-8, ideas like a National Security Court for each nation were “bruited”. All of these acts are part of getting other states to go along with how the United States intends to act and possibly to encourage them to act similarly to the United States. Go along to get along, so to speak.

Many wonder why the United States government persists in refusing to return to its traditional standards. The answer would appear obvious to anyone who has read the February 7, 2002 Presidential determination and saw the reaction to the Hamdan decision in 2006. During the intervening years 2002-2006 (if not before and afterward), the type of treatment of detainees that we saw at Abu Ghraib was not an isolated incident.



It was systematic.



The high level civilians and generals who put in place that system and allowed it to go forward know they committed war crimes and are doing all they can to protect themselves from criminal liability. They are relying on these types of interpretations in the hope that they will have some cover. Let us not acquiesce in giving them that cover.

This Executive Order does not protect our troops. As we saw in the first Gulf War, when the Iraqi troops had a choice between surrendering and fighting to the death, the fact that they would be well treated encourages surrender – reducing our risks of casualties at the same time.

 If a person knows that they will be tortured if captured, the calculus is completely different. In addition, we must always keep in mind the powerful idea of reciprocity.



In future conflicts, our adversaries will point to our efforts in this setting to gut the Geneva Convention protections to rationalize their barbarity towards our captured soldiers.



I fear that the damage done so far is already so significant that we are in a situation where the only way to show the world we truly reject this route is to criminally prosecute in our domestic courts our high level civilians (including the lawyers) and generals who put in place this effort to gut the Geneva Convention.

Those doing this work are no doubt hoping that their interpretations that are illegal, followed by acquiescence by other states, will lead to legitimacy on the international plane for the radical position they have taken. However, resistance by other states to this denuding of the Geneva Conventions can help maintain the illegitimacy of this five year long effort to create a black hole for certain human beings. 
Resistance can take the form externally of states who have detainees in the system insisting that detainees are given full protections as a matter of international law obligations of the United States.



This Executive Order is merely internal U.S. law and it is a basic rule of international law that no state can extract itself from its international obligations through its internal law (enshrined in the Vienna Convention on the Law of Treaties but also in customary international law). As the Geneva Conventions have been signed by all 192 states, all states may object to the U.S. Executive Order as an illegal and invalid act and insist on compliance by the United States with the higher standards of the Geneva Convention as a matter of treaty enforcement.



Resistance can also be internal through Americans – yes, Americans! – insisting that their government not play legalistic games and return to the standards applied for nearly 60 years in myriad conflicts (See the eloquent statement of P.X. Kelley and Robert F. Turner in their Washington Post Op-Ed – War Crimes and the United States). An American sitting even here in exotic Toledo, Ohio can see the use of internal law being made here and compare it with the international law obligations that the United States owes to itself and to the rest of the world.



An American can insist that the government meet those international obligations. The ability to do that I call second vision or “dedoublement analytique” in a forthcoming article. It moves away from discussions of monism and dualism to focus on a more citizen oriented vision of international law.
There is the risk that the efforts to blind Americans to international obligations and make us proud of that blindness will succeed. We should not allow leaders to continue to try to make a virtue of their or the electorate’s ignorance to our detriment.



In any event, I submit that it is not so hard to see what is going on. In fact, I have had two high school student interns working with me on the Military Commissions Act. 

I gave them the Executive Order and they saw right away what was going on. So I think that if 17-year olds can figure it out, than the rest of us ought to be able to figure it out too.


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