by Cliff Sloan
When I began as the State Department’s envoy for closing the detention facility at Guantánamo Bay, many people advised me that progress was impossible. They were wrong.
In the two years before I started, on July 1, 2013, only four people were transferred from Guantánamo. Over the past 18 months, we moved 39 people out of there, and more transfers are coming. The population at Guantánamo — 127 — is at its lowest level since the facility opened in January 2002. We also worked with Congress to remove unnecessary obstacles to foreign transfers. We began an administrative process to review the status of detainees not yet approved for transfer or formally charged with crimes.
While there have been zigs and zags, we have made great progress. The path to closing Guantánamo during the Obama administration is clear, but it will take intense and sustained action to finish the job. The government must continue and accelerate the transfers of those approved for release. Administrative review of those not approved for transfer must be expedited. The absolute and irrational ban on transfers to the United States for any purpose, including detention and prosecution, must be changed as the population is reduced to a small core of detainees who cannot safely be transferred overseas. (Ten detainees, for example, face criminal charges before the military commissions that Congress set up in lieu of regular courts.)
The reasons for closing Guantánamo are more compelling than ever. As a high-ranking security official from one of our staunchest allies on counterterrorism (not from Europe) once told me, “The greatest single action the United States can take to fight terrorism is to close Guantánamo.” I have seen firsthand the way in which Guantánamo frays and damages vitally important security relationships with countries around the world. The eye-popping cost — around $3 million per detainee last year, compared with roughly $75,000 at a “supermax” prison in the United States — drains vital resources.
Americans from across the spectrum agree on closing Guantánamo. President George W. Bush called it “a propaganda tool for our enemies and a distraction for our allies.” Kenneth L. Wainstein, who advised Mr. Bush on homeland security, said keeping the facility open was not “sustainable.”
In 18 months at the State Department, I was sometimes frustrated by opposition to closing the facility in Congress and some corners of Washington. It reflects three fundamental misconceptions that have impeded the process.
First, not every person at Guantánamo is a continuing danger. Of the 127 individuals there (from a peak of close to 800), 59 have been “approved for transfer.” This means that six agencies — the Departments of Defense, Homeland Security, Justice and State, as well as the Joint Chiefs of Staff and the director of national intelligence — have unanimously approved the person for release based on everything known about the individual and the risk he presents. For most of those approved, this rigorous decision was made half a decade ago. Almost 90 percent of those approved are from Yemen, where the security situation is perilous. They are not “the worst of the worst,” but rather people with the worst luck. (We recently resettled several Yemenis in other countries, the first time any Yemeni had been transferred from Guantánamo in more than four years.)
Second, opponents of closing Guantánamo — including former Vice President Dick Cheney — cite a 30 percent recidivism rate among former detainees. This assertion is deeply flawed. It combines those “confirmed” of having engaged in hostile activities with those “suspected.” Focusing on the “confirmed” slashes the percentage nearly in half. Moreover, many of the “confirmed” have been killed or recaptured.
Most important, there is a vast difference between those transferred before 2009, when President Obama ordered the intensive review process by the six agencies, and those transferred after that review. Of the detainees transferred during this administration, more than 90 percent have not been suspected, much less confirmed, of committing any hostile activities after their release. The percentage of detainees who were transferred after the Obama-era review and then found to have engaged in terrorist or insurgent activities is 6.8 percent. While we want that number to be zero, that small percentage does not justify holding in perpetuity the overwhelming majority of detainees, who do not subsequently engage in wrongdoing.
Third, a common impression is that we cannot find countries that will accept detainees from Guantánamo. One of the happiest surprises of my tenure was that this is not the case. Many countries, from Slovakia and Georgia to Uruguay, have been willing to provide homes for individuals who cannot return to their own countries. Support from the Organization of American States, the Vatican and other religious and human rights organizations has also been helpful.
I don’t question the motives of those who oppose the efforts to close Guantánamo. Some are constrained by an overabundance of caution, refusing to trust the extensive security reviews that are in place. Others are hampered by an outdated view of the risk posed by many of the remaining detainees. A third group fails to recognize that the deep stain on our standing in the world is more dangerous than any individual approved for transfer. These concerns, however well-intentioned, collapse in the glare of a careful examination of the facts.
The road to closing Guantánamo is clear and well lit. We are now approaching the 13th anniversary of the opening of the Guantánamo detention facility. Imprisoning men without charges for this long — many of whom have been approved for transfer for almost half the period of their incarceration — is not in line with the country we aspire to be.
New York Times, January 5, 2015
Among discussion about Senator Dianne Feinstein’s release of a 528– page summary of the Senate Select Committee on Intelligence Committee’s Study of the Central Intelligence Agency’s Detention and Interrogation Program (www.nytimes.com/interactive/2014/12/09/world/cia-torture-report-document.html?_r=0), the most egregious defense has been penned by John Yoo, Deputy Assistant U.S. Attorney General in the Office of Legal Counsel, Department of Justice, during the Bush administration.
The following should serve to refute each of the claims made by Yoo in a recent op-ed in the Los Angeles Times (www.latimes.com/opinion/op-ed/la-oe-yoo-torture-feinstein-20141214-story.html#page=1):
1. Feinstein released the report without Republicans, so the claims cannot be trusted.
The fact is that the full report had bipartisan cooperation. The Republicans objected to the report’s release for partisan reasons, not inaccuracies. Moreover, one prominent Republican—John McCain—approved.
2. The report was not based on interviews of witnesses, so the claims cannot be trusted.
Feinstein’s bipartisan committee agreed to review existing documents of witnesses. There was no need to re-interview or cross-examine.
3. CIA officials “have rejected many of the report’s factual findings and its central claim that the CIA systematically misled the White House and the present and covered up the abuse of terrorists.”
If anything motivated Feinstein and the rest of her committee, it was that CIA intelligence briefings were lies. Secretary of State Colin Powell was also kept out of the loop—and resigned.
4. American law banning torture during interrogation only criminalizes those who apply methods with “specific intent” to cause “severe physical or mental pain and suffering.”
According to the law, “severe physical or mental pain and suffering” is defined as including the following: “(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality”
The record shows that signs of pain and suffering as well as blood were ignored by those who continued to torture. Further, when the methods were applied, members of the FBI exited the rooms to avoid any association with the torture. There have been sufficient whistleblowers to attest that the torture continued after evidence of suffering was clearly present. The torturers knew what they were doing.
Besides, international law also applied, including measures short of torture that constitute “cruel, inhuman or degrading treatment.” The United States has ratified the appropriate international treaty, which has been interpreted in European courts to ban such practices as sleep deprivation.
5. Only waterboarding was “close to the line” as an illegal method of torture.
Waterboarding was conducted against American soldiers during World War II in Japan, and those who did so were convicted in the Tokyo War Crimes Trials under the supervision of the U.S. military. Accordingly, the Geneva Conventions banned torture, and American law was written in full cognizance of that experience. But the Feinstein report and other sources indicate other methods as well that have been banned. The most common were routine beatings for several minutes resulting in bleeding, broken bones, unconsciousness, and even death. Others include making incisions on the skin of a penis three times, hanging from handcuffs, chaining prisoners to the floor in a cold room naked in fetal positions, sleep deprivation, forcible removal from one cell to another as many as 112 times in a period of two weeks, subjection to freezing temperatures without adequate cover, requiring a prisoner to stand for 24 hours for 20 days, forcing prisoners to squat naked for hours while chains cut into their flesh, stuffing prisoners head first into sleeping bags to induce claustrophobia, the threat to kill a prisoner’s 9-year-old daughter, telling a prisoner that the voice he heard screaming outside his cell was that of his wife, threatening to rape the wives and children of prisoners, and deprivation of clothing and food. Torture can be inferred when several techniques are applied in tandem.
6. The Geneva Conventions did not apply to Al Qaeda terrorists because they fought for no nation.
In fact, many of those detained were captured during wartime—the war in Afghanistan against the government. Some were caught while fighting against forces of the United States and its allies.
Others were turned in by Afghans and Pakistanis for a variety of reasons—for the bounty paid by the United States, because they spoke Arabic, or because Afghans wanted to get rid of political rivals. The International Covenant on Civil and Political Rights, which bans torture during interrogation of prisoners, applied to those who were not captured on the battlefield. The United States has also ratified that treaty.
Moveover, to establish that someone is a terrorist means to find that person either planning or committing a specific act. When torture was used to force prisoners to confess to terrorism or plots of terrorism, there clearly there was no advance proof that they were terrorists.
How can Yoo explain the detention of 64 children at Guantánamo, some as young as 10, to be among the “worst of the worst”? Why were they hooded without the ability to see and chained to the bottom of aircraft en route from Afghanistan along with the others? What intelligence were they supposed to provide? There were still 21 children at Guantánamo in May 2008 while Bush was still in office.
7. US. Soldiers had been trained on the same methods without physical or mental injury.
Experiments were indeed conducted on American soldiers, but they stopped short of inflicting injury.
8. “We knew little about Al Qaeda, and intelligence indicated that more attacks were coming.”
Aside from the obvious contradiction in Yoo’s sentence, the fact is that the Clinton administration knew about Al Qaeda, and the Bush administration heard warnings from Richard Clarke, National Coordinator for Security, Infrastructure Protection, and Counter-Terrorism, but did not want to know more from him.
9. “If some CIA interrogators went beyond these methods [of harsh interrogation], they would not have received Justice Department approval.”
Yoo was the one who wrote in approval on behalf of the Justice Department, so his statement is one of self-incrimination.
10. Standard interrogation methods could take “weeks, months, years—or never” to yield intelligence.
In other words, the end justified the means. Yet the evidence presented in the Feinstein report indicates that valuable intelligence was obtained by standard methods, whereas torture produced phony information.
11. There has been no “second large-scale terrorist attack for the last 13 years.” Ergo, the CIA’s interrogation methods were effective.
Here, Yoo discredits the effectiveness of national security surveillance and local law enforcement for preventing terrorist attacks without proof that the CIA made any contribution.
Yoo’s qualifier “large” in “large-scale attacks” is a recognition of the fact that small-scale attacks have occurred. Yet in all those cases, the reason for the attacks was retaliation against the United States for breaking international law, as Faisal Shahzad said in court when he was convicted of putting a bomb in Times Square on May 1, 2010. An American citizen, he was reacting to indiscriminate drone strikes in Pakistan that had killed hundreds of innocent civilians.
12. The CIA could only have found out the name of the courier to track down Osama Bin Laden through torture. “The Feinstein report cannot explain how the CIA brought down Al Qaeda’s leadership.”
Feinstein has replied that the names of the courier and others were already in CIA files and were discovered through normal interrogation methods. The leaders were located through normal intelligence and brought down by drone strikes.
13. Yoo justifies American “practical” wartime measures by pointing out indiscriminate killing by Union Army troops under General William Sherman during the Civil War, massive bombings of Germans during World War II, and President Harry Truman’s unleashing of the atom bomb on Japan.
Yet none of these measures were at the time in violation of domestic or international law. The Geneva Conventions came later. Not until 1949 did international law place restrictions on aerial warfare. Besides, Yoo’s point is irrelevant: The examples are not about interrogation methods. Yoo accuses Obama (though not Bush) of impropriety involving drone strikes, and on this point he is correct: Interrogations would result in fewer deaths if those killed by drone strikes would be captured instead.
14. A “large majority of Americans support tough interrogation methods.”
In 2007, only 27 percent of Americans surveyed in a poll said the United States should torture prisoners captured in the war against terrorism, but in 2012 41 percent said they approved of torture. In 2005, a poll reported that 82 percent thought waterboarding was wrong, though the percentage slipped to 55 percent in 2012. Chaining of prisoners naked in cold rooms was disapproved by 79 percent in 2005 but was by 51 percent in 2012. Americans also have strongly opposed threatening prisoners with dogs and religious humiliation.
Conclusion. Feinstein’s report was in the mode of a “truth commission.” But the report does not articulate specific crimes that could be prosecuted from the evidence, as Yoo notes. That was the task of my book well-documented George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes, which I gave to NBC journalist Chuck Todd to be delivered to Barack Obama just before his inauguration in 2009, with a recommendation to close Guantánamo on which he acted soon after taking office. The importance of the information is underscored by the words of Benjamin Ferencz, Nuremberg Chief Prosecutor, who wrote the Foreword to the book.
Such “truth commissions” and war crimes trials are usually served upon those no longer in power, so the question has arisen why the report was released, even in a redacted form. She has been accused of endangering American lives by bringing the subject into the public arena. But the publication only brings the matter into the American public discourse. Two television journalists (Jack Cafferty and John Stewart) were forced to recant accusations that American public officials (Donald Rumsfeld and Harry Truman) have been war criminals, so the subject has been taboo for decades. The rest of the world has known about the facts for years, and those particularly incensed continue to act upon those facts. For Obama to pardon those responsible, as some urge him, would further fan the flames of international hostility.
There will come a time in the future when an American president and Congress will join in admitting that serious, illegal wrongdoing occurred during the misguided “war on terror” in order to recover whatever is left of the moral authority of the United States.
There are two ways of reviewing Camp X-Ray, a dramatic film directed by Peter Sattler on behalf of a production company in Karachi. One is to watch Private First Class Cole (played by Kristen Stewart) as she is assigned to the maximum security prison at Guantánamo, learns the routine, but finds more sincerity on the part of prisoner Ali Amir (Peyman Maadi) than her fellow soldiers. Ali has finally found in Cole, whom he calls “Blondie,” an interlocutor who is civil enough to engage him in conversation, not just about his confinement but about a Harry Potter volume that he would like to read and her state of mind as she guards him and even prevents him from committing suicide.
The other way is to count the number of war crimes being committed: (1) The denial that they are war criminals, as the euphemism “detainees” is used to pretend that the Geneva Conventions do not apply. (2) Violating medical ethics by forced feeding. (3) Cruel treatment in the form of forced movement from cell to cell. (4) Outrages upon personal dignity, which prompts Cole to file a complaint. (5) Reprisals for refusal to eat. (6) Systematic insults. (7) Cramped housing in a single cell. (8) Solitary confinement. (9) Prisoners disallowed from food preparation. (10) Prisoners not allowed to eat together. (11) Lack of a prison canteen. (12) Inadequate recreational opportunities. (13) Inhumane transfer of prisoners to Guantánamo. (14) Failure to allow prisoners to elect representatives for negotiation with prison management. (15) Repeated punishment. (16) Punishment beyond the 30-day maximum. (17) Corporal punishment evidenced by scars on Ali’s body. (18) Confinement without daylight. (19) Inhumane treatment, notably lights left on for 24 hours. (20) Failure to try accused prisoners. (21). Lack of speedy trials. (22) Failure to have a public list of Geneva Convention provisions. (23) Failure to disseminate Geneva Convention provisions to military personnel. (24) Failure to allow visits between prisoners and their attorneys. (25) Failure to allow United Nations personnel to visit prisoners. (26) Failure to allow the Red Cross or other nongovernmental organizations to visit prisoners. (27) Failure of commanding officers to report offenses against prisoners to their superiors. (28) Failure of commanding officers to discipline or prosecute soldiers committing offenses against prisoners. (29) Attempting to justify torture. (30) Failure to repatriate prisoners promptly. (31) Failure to allow prisoners to correspond with families.
But these are only a subset of 165 war crimes against prisoners committed by the United States since 9/11, as documented in George W. Bush, War Criminal?, a book for sale in a Karachi bookstore that is only available online in the USA (2009).
At the end of a war, according to Article 20 of the Hague Convention of 1907, as later revised by the Geneva Conventions of 1949, prisoners of war must be either released to go home or put on trial for war crimes. As the American role in the Afghan civil war winds down during 2014, the subject of prisoner release from Guantánamo will inevitably have to be addressed.
Accordingly, the exchange of five members of the Taliban for one American soldier held hostage by the Taliban for four and one-half years on May 31, 2014, has brought the Geneva Conventions back into the limelight, having been ignored ever since January 25, 2002, when Alberto Gonzalez, White House Counsel to President George W. Bush and later attorney general, authored a memorandum stating that the Geneva Conventions did not apply to the “war on terror.” For the first time, several members of the media are now using the term “prisoner,” rather than the politically correct term “detainee,” as they describe the swap, although the American military claims that they always referred to the soldier as a “prisoner of war.”
The American is 28-year-old Army Sergeant Bowe Bergdahl, the only known American held as a prisoner of war by the Taliban. Negotiations for his release had been ongoing since December 2013, but the Taliban insisted that he would be released only in exchange for a swap of all five members of the Taliban held at Guantánamo.
Bergdahl was transferred to an American military hospital in Landstuhl, Germany, where he is receiving psychological care and evaluation as well as a debriefing on the circumstances of his capture. According to present plans, he will be further treated at a military hospital in San Antonio, Texas, and later reunited with his parents in Hailey, Idaho, after his treatment at the hospital concludes.
Although his stay in San Antonio was described as “long term,” he was reported in good physical condition upon his release, so Bergdahl may suffer from a psychological toll after four and one-half years of captivity. The Taliban may believe that his release is consistent with Article 6 of the Geneva Convention of 1864, which requires repatriation of “unfit” prisoners of war; if so, then he should have been released earlier. But that raises the question why seriously ill prisoners have been held at Guantánamo, including Shaker Aamer and Ibrahim Othman Ibrahim Idris, whose lawyers have petitioned for their release this year.
The five former Taliban prisoners in Guantánamo include Khirullah Said Wali Khairkhwa, who was associated directly with Osama bin Laden and Mohammad Omar, the Taliban’s supreme commander. Another, Mullah Norullah Noori, led troops against American and Coalition forces, was directly subordinate to Taliban Supreme Leader Mullah Omar, is associated with members of al-Qaeda, and is wanted by the UN for possible war crimes. Mullah Mohammad Fazl is the Taliban’s deputy former defense minister. Abdul Haq Wasiq, as the Taliban’s deputy minister of intelligence, support al-Qaeda and Taliban personnel in eluding capture; he also trained al-Qaeda personnel in intelligence methods. Mullah Khirullah Said Wali Khairkhwa, former Taliban interior minister, was directly associated with Osama bin Laden and Taliban Supreme Commander Mullah Muhammad Omar. Mohammad Nabi Omari, a senior Taliban official, belonged to a joint al-Qaeda/Taliban ACM cell. All are alleged to have been “cooperative” prisoners, whatever that means.
They were flown to Qatar, where the government is to house them with their families for at least a year after which they presumably will be returned to Afghanistan. During that year, the Qatar government has agreed to place restrictions on the activities and movement of the former Guantánamo prisoners.
Objections have been raised to the prisoner exchange by several parties. A defense of the action has been made inside and outside the Obama administration. But the Geneva Conventions have been left out of the discourse thus far.
In addition, not cited in the press or by the Bush and Obama governments is the fact that the UN Security Council has since December 20, 2001, annually approved of a force supplied by the North Atlantic Treaty Organization to stabilize the country. When that annual resolution expires, any outside role in the Afghan civil war might amount to a violation of the Convention on Duties and Rights of States in the Event of Civil Strife of 1928, which prohibits interference in officially recognized civil wars: If the Taliban is officially recognized as a “belligerent,” further support to the Afghan government would violate that treaty. And negotiations for the prisoner swap unofficially appear to have recognized the Taliban as a belligerent in a civil war.
Hamid Karzai, lame duck president of Afghanistan, has objected that the deal violates unspecified international law. He also is incensed that his government was not consulted about the secret transfer of the five Afghan citizens, evidently referring to previous agreements between Washington and his government.
Karzai has also protested the pledge of Qatar to place restrictions on the former Taliban prisoners. In his view, perhaps referring to the Geneva Conventions, there should be no restrictions. Despite the restrictions, Afghan Taliban’s longtime leader Mullah Omar thanked the government of Qatar for its “tireless efforts.”
Republican members of Congress have blasted the swap as a violation of restrictions placed by law on transfers out of Guantánamo. In particular, members of Congress were not consulted before the exchange. Although Obama signed that law every year as a provision within the military appropriations bill, he always did so reluctantly. He has again threatened to veto that bill for fiscal 2014-15 on the ground that the provision is a violation of executive prerogatives. My view, expressed two years ago in the New York Review of Books, is that the restrictions amount to a bill of attainder, as Guantánamo prisoners are in effect prisoners of Congress, which metes out a sentence of indefinite incarceration without a prior trial. When members of Congress objected, Barack Obama apologized for the oversight.
Josh Korder, sergeant within Bergdahl’s former platoon in Afghanistan, and other members of his unit have objected that the missing soldier should instead be arrested and tried for desertion because he walked away from his comrades one night in 2009 without a weapon in hand. But their only evidence is that Bergdahl was dissatisfied with his combat assignment. Nevertheless, the Army promoted him to specialist while in captivity. According to letters sent home as reported in a Rolling Stone article of June 2012, he was disgusted by combat conditions. He possibly witnessed war crimes committed in the American military occupation of Afghanistan. However, a Wikileak document states that he was captured while sitting on a makeshift latrine.
General Martin Dempsey, chairman of the Joint Chiefs of Staff, has responded that the circumstances surrounding Bergdahl’s release were unique and “the last, best opportunity to free him,” a pragmatic justification. But Dempsey also opened an inquiry about the facts of Bergdahl’s disappearance and said that the Army “will not look away from misconduct if it occurred [though] . . . he is innocent until proven guilty.”
Yet another objection is the long-held view that “America does not negotiate with terrorists.” But is the Taliban a “terrorist” organization or instead a party in a civil war? In fact, Washington has never declared the Taliban to be a terrorist organization in Afghanistan. The justification for fighting in Afghanistan in 2001 was that the Taliban government supported a terrorist organization, al-Qaeda, but that pretext evaporated when the Taliban was driven out of the country. During the 2012 Republican primary season, candidate Herman Cain even proposed prisoner swaps as a way to close Guantánamo.
Some have argued that the 5-for-1 swap might raise the future cost of ransoms of various sorts. That prediction may be true but is irrelevant to war crimes issues.
One pragmatic consequence, if not a justification, is that the prisoner swap will revive negotiations to end the war. Clearly, the swap occurred because of secret negotiations. But an agreement to end the civil war would have to involve both the Afghan government and the Taliban, and outgoing President Karzai refused to engage in peace negotiations in 2013, when he objected to the opening of an office in Qatar by the Taliban as in effect a “government in exile.” He will no longer be president before the end of the year.
As the date for termination of the UN-approved role of the American military in Afghanistan approaches, will Guantánamo finally be closed? December 31, 2014, is that date and may be that watershed if all prisoners are either released or retained for trial. And those put on trial may be moved to the U.S. Mainland for those trials.
Before punishing Syria for using chemical weapons, President Barack Obama must apologize to the people of Afghanistan and Iraq for the use of chemical weapons while President George W. Bush was in office. Otherwise, a military strike on Syria for the use of chemical weapons can only be described as an act of hypocrisy.
Upon receipt of a recently published book (George W. Bush, War Criminal?) from Chuck Todd of MSNBC just before his inauguration in 2009, Obama was informed that three types of chemical weapons were used in Afghanistan and Iraq contrary to international treaties that amount to war crimes:
1. The Use of Napalm
A hill outside Basra was napalmed during the initial invasion of Iraq. So were two bridges south of Baghdad.
Reports are based on an article by Andrew Boncombe (“U.S. Admits It Used Napalm Bombs in Iraq”) in The Independent on August 10, 2003, and a second source, Martin Savidge (“Protecting Iraq’s Oil Supply) broadcast on CNN on March 22, 2003.
The use of napalm is banned by Article 55(1) of Protocol 1 to the Geneva Conventions. Adopted in 1977, the provision reads “Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.”
2. Use of White Phosphorous
During November 2004, white phosphorous, a chemical that can cause serious burns, was used as an anti-personnel airborne weapon in Fallujah, according to several American military officers. On the last day of the month, General Peter Pace, who headed the Joint Chiefs of Staff, defended the use of white phosphorous to illuminate targets at night.
Evidence was first reported by Peter Popham (“US Forces Used Chemical Weapons During Assault on City of Fallujah”) in The Independent on November 8, 2005, and affirmed as well by Ali A. Allawi in The Occupation of Iraq (Yale University Press, 2007, p. 339).
According to the Article 2 of the Protocol on Prohibition or Restrictions on the Use of Incendiary Weapons of 1980: “(1) It is prohibited in all circumstances to make the civilian population as such, individual civilians or civilian objects the object of attack by incendiary weapons. (2) It is prohibited in all circumstances to make any military objective located within a concentration of civilians the object of attack by air-delivered incendiary weapons.”
3. Use of Depleted Uranium Weapons
Some 2,000 tons of depleted uranium bullets, which can combust into a ball of fire measuring 10,000 Centigrade degrees, were utilized in the invasion of Iraq. At least 200 tons were used after the invasion. Children exposed to the munitions have come down with leukemia.
There are many sources: Dahr Jamail, “What Have We Done?” Iraq Dispatches, August 6, 2005; Neil Mackay, “US Forces’ Use of Depleted Uranium Is ‘Illegal’,” Sunday Morning Herald, March 20, 2003; Angus Stickler, “Depleted Uranium Weapons—A BBC Investigation,” BBC Radio, August 21, 2007; Geert Van Moorer, “One Year After the Fall of Baghdad: How Healthy Is Iraq?,” Health-Now.com, April 28, 2004; Nao Shimoyachi, “Depleted Uranium Shells Decried: Citizens Find Bush Guilty of Afghan War Crimes,” Japan Times, March 14, 2004; World Tribunal on Iraq Declaration of the Jury of Conscience, Istanbul, June 25, 2005.
According to Article 11 of the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management of 1997: “Each Contracting Party shall take the appropriate steps to ensure that at all stages of radioactive waste management individuals, society and the environment are adequately protected against radiological and other hazards.”
Unilateral military strikes against Syria would be illegal under international law. Eight legal avenues for countermeasures against Syria’s use of chemical weapons are being blocked. One, however, may be open.
1) China and Russia will veto the UN Security Council from taking action, although they have allowed a weapons inspection team.
2) Action could be taken at The Hague, headquarters of the Organization for the Prohibition of Chemical Weapons (OPCW), set up by the treaty banning chemical weapons (Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 1992), which has been ratified by most countries except for Syria. An OPCW expert team is part of the UN weapons inspection team in Syria. But on July 16, the American delegate complained that the Ukrainian chairing OPCW’s Executive Committee refused to place the issue on the agenda for discussion.
3) The treaty empowers the OPCW Conference of all ratifying countries to recommend sanctions against a violation. However, the latest meeting of the Conference was last year. Another meeting will take place in December.
4) The UN General Assembly, which could act under the powers of the Uniting for Peace Resolution of 1950, is not in session but is likely to block action when reconvened in September, as the membership is similar to the OPCW’s Conference.
5) Under customary international law, every country has the right of reprisal. That is, any country has the right to retaliate against unfriendly action by another, though the response must be proportional to the unfriendly action. If Britain, France, and the United States contemplate several military strikes against Syria, they must pretend that many of their own citizens were injured or are potentially threatened by the Syrian chemical weapons attack.
6) Regional organizations can take action when the UN cannot, according to some experts. The Arab League disapproves of any military strikes against Syria. The Gulf Cooperation Council has also not encouraged such action.
7) The Responsibility to Protect principle, adopted by the UN, allows action to prevent or stop genocidal action. A few military strikes, not having that aim, would not be consistent with that principle.
8) A new principle could be enunciated unilaterally by the United States. So argues John Bellinger III, who was legal adviser during the administration of George W. Bush. But his suggestion has not been followed by the White House.
9) Bellinger also suggests that the United States recognize a Syrian opposition group as the legal representative of Syria (as has the Gulf Cooperation Council). Then that group could call for military action, and Washington could come to the aid of a recognized government. But the Obama administration has resisted that option.
When President Barack Obama originally announced his “red line” on chemical weapons, the reference was to the possibility that the chemical weapons facility would get into the wrong hands during the civil war. Later, the objection was that the Syrian government would use or has used the weapons. Now the fear is that the United States will unleash further chaos without legal justification.
But we are talking about Mr. Drone Strike. The use of drones is extrajudicial execution, contrary to the International Covenant on Civil and Political Rights and a war crime. So, too, is an American military strike on Syria.
After the attacks on September 11, 2001, President George W. Bush declared a “War on Terror” and secured support in that “war” from Congress later that year in a resolution entitled “Authorization for Use of Military Force.” Based on that resolution, Bush commanded American troops to enter Afghanistan, and the Taliban was driven from power in the country. For a war to be in accord with the UN Charter, the UN Security Council must give approval. No such approval, however, was sought or granted. The Afghan War, in other words, was illegal under international law, although the UN Security Council later approved the occupying military force already inside Afghanistan by giving the force a mission to maintain stability in accordance with the Fourth Geneva Convention.
When Barack Obama became president, the “War on Terror” was replaced by the “War on Al-Qaeda.” Once again, no UN Security Council approval was sought or granted, so many observers felt that the pursuit of Al-Qaeda terrorists would change from a military to a police operation.
Under international law every country has the right of reprisal in response to an unfriendly violent act, provided that the response is proportionate. Thus, the killing of Osama Bin Laden in 2010 could be viewed as exercising the right of reprisal for the attack on 9/11 following his indictment in a New York court. Although the raid was conducted on the soil of another country without permission, the reprisal focused on one person and not on that other country.
But the Obama administration’s meaning of “War on Al-Qaeda” became clear during the first week of February 2013, when a White Paper was released to justify drone attacks against members of Al-Qaeda anywhere in the world, including persons who held American passports. The “War on Al-Qaeda” is in fact a military operation. As a military operation conducted on foreign soil, sometimes intruding into the sovereign territory of countries without their permission, failure to secure UN Security Council approval means that the War on Al-Qaeda is illegal under international law. Nothing in the White Paper justifies the War on Al-Qaeda on international legal grounds, though valiant efforts to cite American court cases might give the impression otherwise.
There are two basic types of war crimes. The most basic is aggression. In contrast with the aggression conducted by the United States in Afghanistan after 9/11, the drone war is so unrelenting as to constitute aggression as well. The second type of war crime is misconduct in battle, which has occurred during the Afghan War. Hundreds if not thousands of innocent civilians have been killed in drone attacks; such conduct would be a war crime if the killing were indiscriminate, but there is no evidence the innocent have been deliberately targeted.
Thus, the main issue is that drone attacks fall somewhere between legitimate reprisals and illegal aggression when conducted with the permission of another country. When conducted without permission, there is no doubt that repeated drone attacks constitute illegal aggression.
But the White Paper was not prompted by a desire to clarify whether the War on Al-Qaeda is in conformity with international law. The main concern is that American citizens might be shot dead by drones without the benefit of judicial process. The detailed analysis in the White Paper, however, ignores several important facts: An American citizen becomes a traitor in joining Al-Qaeda or a related group that is committed to attack American persons and property. Treason is a domestic crime. A person suspected of treason should first be indicted and given an opportunity to surrender to law enforcement authorities. But such persons will never surrender, so capture should be the next step, followed by trial. But capture of a person plotting treasonous acts is unlikely, too. The logic of the situation suggests that persons joining treasonous organizations, such as Al-Qaeda, have in effect renounced their citizenship and thereby have surrendered constitutional protections. Therein lies some of the unspecified logic of the White Paper, which advocates killing such persons by drone attacks, because their membership in a terrorist organization ipso facto means that an attack on American persons or property is “imminent.” The analogy is that Jefferson Davis could have been killed without trial while he was president of the Confederate States of America.
In other words, the White Paper makes a strong case for killing members of Al-Qaeda in countries where drones are permitted. However, one flaw in the White Paper is a failure to indict those targeted in an American court for specific offenses. The case is even weaker where drone attacks are not approved. Domestic law appears untidily to support drone attacks, but international law does not.
In 2012, Christof Heyns, UN Special Rapporteur on Extrajudicial Killings, Summary or Arbitrary Executions, referred to drone attacks as “war crimes,” and the UN Human Rights Council is now deliberating whether to concur. Nevertheless, extrajudicial executions are banned by Articles 6, 14, and 15 of the International Covenant on Civil and Political Rights as crimes against humanity.
Many American officials claim that drones encourage nonterrorists to become terrorists. Some discount that assertion. If Cuba employed drones over the United States, the American public would not sit idly by, so why should those living in neighborhoods frequented by drones within Pakistan and Yemen feel anything but hatred toward the United States?
Although there are no treaties dealing with drones, an estimated sixty countries now have drones, which could be deployed everywhere, creating a chaotic world. Accordingly, a treaty banning the use of drones crossing international borders is inevitable.
During the administration of George W. Bush, the subject of “war crimes” was taboo in the media, and that silence has continued under the administration of Barack Obama. Whereas the Bush administration openly flouted their war crimes, Obama’s approach toward the subject has been cosmetic and subtle.
But American war crimes remain. They are well recognized in other countries.
And some accountability for the crimes is inevitable.
After identifying the 269 war crimes violated while Bush was in office, I indicate how they rolled over to Obama, how the legal process for accountability has proceeded in American and European courts, and finally how Guantánamo could be closed soon.
Some 269 war crimes during the Bush administration, based primarily on autobiographical and journalistic reports in four categories—illegal decisions to go to war, the military conduct of war, mistreatment of prisoners of war, and the misoccupations of Afghanistan and Iraq. Without going into detail on all 269, what is of special interest is what happened when Obama took office.
Although 6 of the war crimes deal with decisions to fight illegal wars, Obama is protected by the fact that the UN Security Council has repeatedly approved of the wars in Afghanistan and Iraq after the fact. The UN Security Council mission has been to maintain stability in both countries.
Regarding the conduct of war, 11 crimes involve hitting prohibited targets. Obama’s military continue to commit 3–destroying undefended targets, bombing neutral Pakistan, and engaging in indiscriminate attacks against civilians through drones.
Four crimes under Bush involve the use of prohibited weapons, and they are apparently no longer used. Six Bush-era crimes dealt with soldier misconduct, and 2 have occurred under Obama—failing to provide proper burials to enemies killed and excessive targeting of civilians.
Thirteen Bush crimes identified misconduct by commanding officers. At least 4 still occur—failure to notify authorities of bombing targets, extrajudicial executions, excessive military force, and clearly a failure of commanders to ensure that soldiers understand their Geneva Convention obligations.
Two crimes deal with the use of mercenaries. Both continue today.
The third category of war crimes relates to the treatment of prisoners. Today prisoners at Bagram Air Force Base in Afghanistan and Guantánamo are mistreated. Of the 7 Bush-era violations of standards of decency, 3 continue under Obama–religious mistreatment, allowing journalists to put prisoners on display, denial of decent burials.
Bush, of course, boasted about improper interrogation methods. But of the 11 relevant war crimes, Obama appears to have stopped them. Fifteen Bush-era war crimes relate to unsatisfactory living conditions of prisoners, but apparently 6 continue under Obama. Of the 174 prisoners at Gitmo, 5 are scheduled to be transferred to Qatar by spring 2012, but 3 are being held after trial, thus converting the facility into a penitentiary, which is prohibited. Some are still held in solitary confinement, unable to prepare their own food and eat together. So far as I have heard, prisoners are not provided funds to purchase personal items.
The health of prisoners was a major scandal under Bush, accounting for 24 war crimes. Two remain. Bagram is improperly still in a combat zone, and I have heard of no attempt to rehabilitate those who were tortured.
Three crimes under Bush dealt with the lack of extramural activities, but today prisoners are allowed to play soccer. I am unsure whether they are allowed to smoke, but they have that right under the Geneva Conventions.
Four Bush crimes dealt with how and where prisoners were transferred in or out of Gitmo, but none under Obama.
The Geneva Conventions requires “Hogan’s Heroes” standards regarding the selection of prisoner representatives and the administration of discipline. Ten were committed under Bush, and half evidently continue under Obama. Prisoners are not allowed to lodge complaints about their treatment through appropriate channels. There has been no response to complaints about torture. Prisoners are separated into classes, and some are in indefinite solitary confinement.
The Geneva Conventions establishes juridical standards, of which 44 were violated under Bush. Obama had the Military Commissions Act revised, but many provisions are still being contested by defense attorneys, so there is no regularly constituted court to try or sentence them. Obviously there has been no speedy trial for anyone. Those who tortured have not been arrested, investigated, prosecuted, or compensated. Courts on the U.S. mainland have allowed Obama’s government attorneys to use the “state secrets” argument to avoid accountability.
Fifteen Bush-era war crimes of prisoners refer to outside groups and persons. Obama has still not established a neutral Central Prisoner of War Agency, as required by the Geneva Conventions. Evidently not all information has been shared with UN bodies, such as inquests. Those cleared for release have not been repatriated promptly, and families have not been allowed compensation for members of their family who died from torture, either at Abu Ghraib, Bagram, or Gitmo.
Five Bush-era crimes were various forms of discrimination, but they evidently no longer occur. When Obama took office, the 64 children confined at Gitmo by Bush had either been repatriated or were adults, so the 25 violations of their rights did not roll over to Obama.
Of the 12 victims of extraordinary renditions under Bush, one war crime remains under Obama—failure to prosecute those responsible for their disappearances.
The fourth type of war crime refers to standards that an occupying power must maintain while in control of a foreign country. Of the 50 war crimes committed in the Bush administration, 11 remain under Obama. First, American forces have not established public order. They intimidate civilians from living ordinary lives through night raids. They do not protect journalists. Many live in refugee camps outside Kabul where conditions of food, housing, and shelter are inferior. Religious sensitivities are violated. Women and family honors are not respected. It seems scandalously clear that occupation personnel have not learned their Geneva Convention obligations.
That war crimes continue under President Obama is well known in the Moslem world. There is supposed to be civilian control of the military, yet the military is primarily responsible for most of the infractions and remains unpopular in Afghanistan.
My book on the war crimes of the Bush administration is well known in the White House. I sent Obama a copy. He hired for a time his favorite Harvard professor, Laurence Tribe, who knows all about my book. During Obama’s first year in office, I managed to piece together an apparent Obama 11-point plan for ending war crimes. Here it is:
1. Abide by the Geneva Conventions at Guantánamo.
President Barack Obama’s executive order of January 22, 2009, may have done some good, but the military defied him by limiting its compliance to just a few war crimes, most notably the ban on torture.
2. Close Guantánamo.
With no prisoners at Guantánamo, there would be no crimes committed against them. But those now imprisoned must be relocated. Cowardly opposition to their relocation within the United States has been expressed by politicians and pundits, and townspeople who might host them at secure prisons but have been unwilling to allow the prisoners into their towns. Were the prisoners to become bait in American prisons, attracting external or domestic terrorists, that possibility would make the FBI’s counterterrorism task much easier, as those seeking to free the prisoners could be efficiently trapped in an FBI lion’s den, but that possibility holds no water with fearmongers.
3. Transfer innocent prisoners to other countries.
A few countries accepted 45 of the prisoners (15 within Europe, 6 in Palau, 4 in Bermuda, and most of the rest to their homelands) during 2009. Two of the 15 were extradited to Italy for trial on terrorism charges. Diplomatic efforts were undertaken to place some 78 prisoners who are eligible for transfer. By midsummer 2010, some 20 were to be transferred out, and various countries agreed to accept 25 current Guantánamo prisoners. In March 2012, Qatar agreed to accept 5 former Taliban officials. The remaining 28 prisoners were scheduled to be returned to Yemen in December 2009, but their release was postponed because Obama believed that country lacked a satisfactory level of stability.
4. Put some Guantánamo prisoners on trial in federal courts for criminal offenses.
At least 5 who are associated with attacks on or over American property, at home or abroad, were to be tried in New York, Washington, or perhaps elsewhere, including those charged with conspiracy in the 9/11 attack, just as the “shoe bomber” was prosecuted earlier under Bush. That left 35 others to be tried, either in federal courts or by military commissions.
5. Try Guantánamo prisoners in military commissions for combat-related offenses. At least 6 will be tried by military commissions. For this purpose, Congress in 2009 amended the Military Commissions Act of 2006 to provide greater civil rights guarantees, presumably consistent with Geneva Convention requirements. Defense attorneys will, of course, challenge those presumptions.
6. Hold some prisoners indefinitely.
Those not cleared for release include 47 potentially dangerous prisoners who will never be put on trial because of tainted evidence against them. Obama wanted to moved them to a location somewhere in the United States or its Territories. Obama believes that Congress’ Authorization for the Use of Military Force resolution of 2001 permits all 47 to be indefinitely detained. Congress has yet to authorize or appropriate funds for facilities where they might be held.
7. Close all American-run prisons in Iraq.
Camp Bucca closed in September 2009. Obama ordered Camp Cropper to be closed by the end of 2009 and Camp Ashraf in July 2010. They are now completely closed.
8. Reduce the American military presence in Iraq.
The Marines evacuated in January 2010. By August 2010, most American troops were departed the country, leaving a residual force. Then even the residual force is to leaft by the end of 2011.
9. Stop indiscriminate aerial bombing of targets in Afghanistan.
The increase of troops to Afghanistan ordered by Obama during 2009 was premised in part on the ending the program to bomb targets by air that have killed far too many innocent civilians. Yet extrajudicial executions of enemy forces and innocent civilians continue.
10. Close the American-run prison at Bagram Air Base, Afghanistan.
A decision to do so was signed on January 16, 2010. However, some prisoners at the facility remained under American custody until an agreement in March 2012 for final transfer occurred by the burning of the Koran one month earlier.
11. Reduce the American military presence in Afghanistan.
Obama has begun withdrawing American military forces from the country, and a total pullout has been set for 2014.
But the most vexing problem is that Guantánamo remains in operation, costing $800,000 per prisoner per year, an acceptable amount even for those who decry federal deficits and “big government” spending. Accordingly, I have some suggestions:
1. Resettlement in the United States. Seventeen dissidents from Western China, the Uighurs held at Gitmo, could easily be accommodated with their brethren in Virginia. They were wrongly imprisoned, as they have no animosity toward the United States and instead oppose repression of Uighurs inside China. Yet in 2009 President Obama refused to accept a court order for their release to the Mainland United States, deferring to Congressional opposition.
2. Transfer to foreign countries. Congress currently allows transfer of prisoners cleared for release to settle abroad, provided that the Secretaries of Defense and State stipulate that the host countries meet specific strategic requirements. In March 2012, Qatar agreed to accept 5 former Taliban prisoners from Gitmo.
3. Swapping prisoners. Whenever an American is imprisoned or held hostage, they might be released by trading a Gitmo prisoner. Presidential candidate Herman Cain offered that idea and then backtracked on the same day. The problem is that there is a longstanding American policy of not negotiating with terrorists. A rash of American hostages would be taken by various terrorist organizations if they thought that they could get comrades back. Nevertheless, negotiations in 2012 involved a potential swap for Bowe Bergdahl, a 25-year-old US Army sergeant from Hailey, Idaho, who was taken prisoner on June 30, 2009 in Afghanistan, in exchange for the release of five Taliban prisoners to Qatar.
4. Transfer to the UN refugee authority. Part of Guantánamo now could be considered a refugee camp, as was the case with Haitians in the early 1990s. Prisoners already approved for transfer are technically “refugees,” as they reside neither in their home country nor in a country accepting them as residents, and they hope to leave soon. The UN High Commissioner for Refugees could handle those already cleared for release, as the agency agreed to do so for at least 3,000 Iranian refugees held by Americans in Iraq until 2011. If reassigned to the Geneva agency, Congressional strategic requirements could be met at existing UN refugee camps.
5. Join the International Criminal Court. If the United States joins the International Criminal Court (ICC), those with prosecutable offenses might be sent to The Hague for trial. However, the Senate must first be persuaded to ratify the ICC treaty, which seems unlikely at present, as that would open the door to prosecution of George W. Bush and company. However, a country that has ratified the ICC treaty might bring such a case.
6. Return prisoners to Afghanistan. Those held at Guantánamo who were engaged in active combat when captured could have remained under military detention in that country. In conformity with Geneva Convention requirements, some have already been sent back. Seventeen are Afghan citizens. The UN Security Council, which annually approves of the Afghan War, aiming to stabilize the country, might address their resettlement. The United States is building a new prison facility in Afghanistan today, possibly to accommodate those now at Guantanamo.
7. Trials in civilian courts. Some prosecutable prisoners at Guantánamo are accused of various crimes related and unrelated to air piracy and murder on 9/11, offenses that are appropriate for civilian courts, as they are criminal offenses. The International Covenant on Civil and Political Rights requires a civilian trial for them. Federal courts have already successfully prosecuted some 400 similar cases, including one transferred from Guantánamo, Ahmed Ghailani. On May 21, 2009, President Barack Obama declared that civilian trials were appropriate in these cases, echoed by Attorney General Eric Holder on June 16, 2011. But political leaders in New York objected to the cost of providing security for a high-profile trial in Manhattan, so there must be a change of venue. Security can be handled more economically around federal courts in Fargo, Grand Forks, or Minot, North Dakota, and elsewhere. Jury trials could even have defendants present through videoconference if necessary. If prosecution witnesses are called upon to confront defendants directly, they can be flown to Gitmo for that purpose.
8. Trials by military courts. “Dangerous prisoners,” who might be exonerated if put on trial because of tainted evidence could, nevertheless be put on trial anyway. Juries are unpredictable. If they are found guilty, they would be locked up. If they are found not guilty, they can be released, subject to current Congressional restrictions. And if they subsequently become terrorists, they can be tracked down, arrested, and tried in a manner similar to criminals released from American prisons who re-offend by committing arson, murder, or rape. Given the vast American counterterrorism network that has been erected since 9/11, only cowards would fear a few more potential terrorists on the loose today.
9. Plea bargains. Some prisoners may have committed minor offenses. They would jump at the chance to plead guilty to minor offenses if they could be sent home sooner. One already convicted at Gitmo, Salim Hamdan, is now home in Yemen on that basis.
10. Confinement in federal prisons. Whether convicted in civilian or military trials, the prisoners could be sent to prisons in Terre Haute, Indiana, or the Supermax prison in southern Colorado, which respectively incarcerate suspected or convicted terrorists. For that matter, all prisoners could be sent to either place or scattered among many federal prisons.
11. Reassignment to other territories. Gitmo is not the only possible venue. Prisoners could be split up and sent to military bases elsewhere in the United States or its territories, such as Guam, Midway Island, St. Thomas, Virgin Islands, or Wake Island. Although such transfers might be perceived as a shellgame, at least Guantánamo would be closed, once and for all.
12. Assertion of executive authority. President Barack Obama declared in a signing statement on December 23, 2011, that he would ignore Congressional meddling in the executive branch operations regarding Guantánamo. The constitutional separation of powers gives the executive branch full responsibility over the disposition of prisoners under the control of the national government. Congress, which did not arrest them, has tried to set administrative rules for handling them, thereby pretending to exercise a legislative veto over acts of the executive branch, in effect making those at Gitmo prisoners of Congress. Congressional laws on the subject, including the defense appropriation act signed on that date, nearly amount to passage of a Bill of Attainder, that is, an attempt to impose a sentence on prisoners by legislative means. According to former Chief Justice William Rehnquist, those who wrote the Constitution had experience with the English practice of “a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial.” That’s why the Constitution prohibits bills of attainder.
Stopping war crimes is a top priority, but prosecuting for them remains on the agenda.
Torture, abuse, and possibly murder were committed at Gitmo, and their perpetrators have not been brought to justice. Until then, Guantánamo will remain an indelible stain on America, a recruiting symbol for Al-Qaeda. Meanwhile, justice is being denied, since major offenders remain unprosecuted.
Although compliance with the Geneva Conventions at Guantánamo has improved since Barack Obama took the oath of office, prisoners are still separated into classes. Some remain in solitary confinement without a speedy trial, fair or even unfair.
American and international law (the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1987) authorizes compensation for victims of torture and similar offenses. The U.S. Army routinely pays compensation to victims of collateral damage and prosecutes American military perpetrators of war crimes in court-martial trials. Civilian contractors have been convicted of war crimes offenses (for example, for murdering Afghan civilians) in domestic criminal courts. Of about one hundred cases referred by the Central Intelligence Agency (CIA) to the U.S. Department of Justice, two are now being readied for prosecution.
But many former prisoners at Guantánamo have been denied compensation. Although Australia, Britain, and Canada awarded compensation payments for their role in torture of their own citizens held by American authorities, federal courts have dismissed such cases (Al-Bihani v Obama, Al-Janko v Rumsfeld, Mohamed v Jeppesen), citing “national security” and “state secrets” justifications. In so doing, the judiciary is leaving “political” matters to the discretion of the executive branch.
One important court case, however, is now before a federal court in Chicago. The defendant is former Defense Secretary Donald Rumsfeld. He is being sued by two Americans who were wrongly held at Camp Cropper in Iraq, the same facility that held Saddam Hussein and other members of the “deck of cards.” The suit is based on Bill of Rights violations, including cruel and unusual punishment. The case, Vance v Rumsfeld, has met preliminary requirements for trial, though no trial date has yet been set. Similar cases (Doe v Rumsfeld and Ameur v Gates) are being pursued in other federal courts.
Several compensation cases against the United States have been filed abroad. According to the Geneva and Torture conventions, victims of torture can file claims in the courts of any country that has ratified the treaties and has provided a legal basis within its jurisprudence.
Since 1991, the UN High Commissioner for Human Rights has maintained a voluntary torture compensation fund. An Australian has recently filed a claim based on his detention at Gitmo.
One related case has been successful. In 2007, Italy charged twenty-two CIA officials and five Italian collaborators with capturing Osama Moustafa Hassan Nasr on the streets of Milan during 2003 for “extraordinary rendition” to Egypt, where he was tortured. In 2009, the court convicted the CIA officials in absentia. Now international fugitives, they have been ordered to pay compensation to the victim and his wife and will be sent to prison if extradited to Italy. Meanwhile, two of the Italians are serving three-year sentences.
Cases have been dismissed in Belgium, Britain, Denmark, Germany, and Lithuania due to American pressure or noncooperation in supplying evidence. As of mid-2011, nevertheless, active cases for compensation by torture victims have been pursued in Australia, France, Lithuania, Macedonia, Pakistan, Poland, Spain, and Switzerland. Two cases have been referred to the Inter-American Commission on Human Rights, one to the UN Human Rights Committee, and two to the European Court of Human Rights. The I-ACHR has just accepted one of the cases, involving a prisoner at Guantanamo.
The Polish case involves CIA torture inside a secret prison in Poland. The claimant, Abu Zubaydah, has been granted “victim status” by a Polish court. He is still held at Guantánamo.
Two former Gitmo prisoners filed the Swiss case in February 2011. A few days later, George W. Bush canceled a planned trip to Geneva. He could have been arrested upon arrival. Similarly, Ronald Rumsfeld had to sneak out of France in 2007 to avoid arrest after he landed in Paris to give a talk.
Generally war crimes are prosecuted after wars are over. Although the Kaiser was identified as a war criminal in the Treaty of Versailles, he escaped to neutral Netherlands and was never tried. But several Germans were. The Nuremberg trials were followed by trials in German courts during the Allied occupation of Germany after World War II.
Some want prosecutions of Bush now. And if Bush, why not Obama, too? In the end, domestic political considerations prevail over court decisions in the United States. Judges apparently view lawsuits against high-ranking officials as more political than juridical. American public opinion has been supportive of extreme measures to ensure national security. The media has refrained from any hint that war crimes might have occurred.
A trial of George W. Bush for torture might resemble what happened in France after Alfred Dreyfus was tried for treason during 1894: The entire nation was bitterly divided and immobilized for fifteen years thereafter.
Barack Obama’s preference for nonconfrontational politics and his desire to unite the country suggest that no prosecution of Bush-era officials for torture or other crimes at Guantánamo or elsewhere will occur. And now Obama is implicated in some of the same Geneva Convention violations. Although American government compensation may never be paid to victims of torture, Donald Rumsfeld might be held personally liable.
Al-Qaeda, pointing to war crimes under the Bush administration that are not being prosecuted under the Obama administration, will continue to have a basis for recruiting more terrorists to attack the United States. Although Attorney General Eric Holder is determined to close Gitmo before the end of 2012, he lost a turf battle with the Department of Defense, and has no such power. Congress will have to be persuaded to give President Obama more latitude to deal with the problem.
Attorney General Eric Holder told the European Parliament in September 2011 that he would try to close Guantanamo by Election Day 2012 or at least by the end of the year. How he would do so was not specified, but ten suggestions appear below.
First, however, it is useful to recall that when the Afghan War began, General Tommy Franks ordered compliance with the Geneva Conventions on October 17, 2001. On November 13 he was countermanded by an executive order in the form of a military order from President George W. Bush regarding prisoners who were then being collected, though no specific mention was made of the Geneva Conventions. When the first prisoners arrived at the Naval Base on January 11, 2002, the commanding general, Brigadier General Rick Baccus, ordered compliance with the Geneva Conventions. His order was then rescinded on February 7 by another executive order signed by George W. Bush making specific reference to the inapplicability of the Geneva Conventions of 1949 but not the 1929 Geneva Convention.
Despite Baccus’s initial attempt at compliance, the world viewed blindfolded, bound prisoners on their knees wearing orange jumpsuits together behind barbed wire. The photo, which has flashed across screens many times, already suggested six Geneva Convention violations:
- inhuman treatment (Article 3 of both the 1929 and 1949 treaties)
- humiliating and degrading treatment (Article 3 of both the 1929 and 1949 treaties)
- cruel treatment (Article 3 of the 1949 treaty; Article 46 of the 1929 treaty)
- close confinement (Article 21 of the 1949 treaty; Article 9 of the 1929 treaty)
- public display of prisoners (Article 13 of the 1949 treaty; Article 2 of the 1929 treaty)
- deprivation of personal property (Article 18 of the 1949 treaty; Article 6 of the 1929 treaty)
It was not the stalag of Hogan’s Heroes!
According to Human Rights First, some 779 prisoners have been housed at Guantánamo over the years. Today, there are 174. Of the 605 no longer at Gitmo, most were sent home or to countries that received them as refugees. Eight have died at Gitmo, 4 of whom were considered suicides, though some may in fact have been murdered. One, who pled guilty, is back home in Australia. Another, who was convicted, was sent back to Yemen.
Three others, who have been prosecuted, remain as prisoners at Gitmo, making the facility a penitentiary, contrary to Article 56 of the Geneva Convention of 1929 and Article 22 of the Third Geneva Convention of 1949.
Today, the following categories of prisoners remain:
- 3 confessed or convicted prisoners who may never be released
- 5 temporary detainees (Uighurs from China who await resettlement)
- 84 conditional detainees (30 Yemenis, who want to go home, are held due to instability there but are otherwise cleared for release)
- 46 dangerous prisoners who will not be prosecuted because of “tainted” evidence
- 36 prosecutable prisoners, some for civilian offenses.
I envision ten options:
Resettlement in the United States. Seventeen dissidents from Western China, the Uighurs held at Gitmo, could easily be accommodated with their brethren in Virginia. They were wrongly imprisoned, as they have no animosity toward the United States and instead oppose repression of Uighurs inside China. Yet in 2009 President Obama refused to accept a court order for their release to the Mainland United States, deferring to Congressional opposition.
Transfer to foreign countries. Congress currently allows transfer of prisoners cleared for release to settle abroad, provided that the Secretaries of Defense and State stipulate that the host countries meet specific strategic requirements.
Transfer to the UN refugee authority. Part of Guantánamo now serves as a refugee camp. The 89 prisoners already approved for transfer are technically “refugees,” since they reside neither in their home country nor in a country that will accept them as residents, and they hope to leave soon. The Geneva-based UN High Commissioner for Refugees could be asked to handle those already cleared for release. If sent to Geneva, Congressional strategic requirements could easily be met. Existing UN refugee camps, however, may offer inferior accommodations.
Join the International Criminal Court. If the United States joins the International Criminal Court (ICC), those with prosecutable offenses might be sent to The Hague for trial. However, the Senate must first be persuaded to ratify the ICC treaty, and that seems unlikely at present, as that would open the door to prosecution of George W. Bush and company. However, a country that has ratified the ICC treaty might bring such a case.
Return prisoners to Afghanistan. Those held at Guantánamo who were engaged in active combat when picked up should have remained under military detention in that country. To conform to Geneva Convention requirements, they should be sent back. The UN Security Council, which annually approves of the Afghan War, aiming to stabilize the country, might address their resettlement. The United States is building a new prison facility in Afghanistan today, possibly to accommodate those now at Guantanamo.
Trials in civilian courts. Some prosecutable prisoners at Guantánamo are accused of various crimes related and unrelated to air piracy and murder on 9/11, offenses that are appropriate for civilian courts, as they are criminal offenses. The International Covenant on Civil and Political Rights requires a civilian trial for at least some of them. Federal courts have already successfully prosecuted some 400 similar cases, only one of which (Ahmed Ghalani) was housed for a time at Guantánamo. On May 21, 2009, President Barack Obama declared that civilian trials were appropriate in many cases, and Attorney General Eric Holder as recently as June 16, 2011, expressed a preference to try all terrorists in civilian courts, but he has lost a turf battle with Congress. Political leaders in New York objected to the cost of providing security for a high-profile trial in Manhattan of those charged with 9/11 offenses, so there must be a change of venue. Security can be handled more economically around federal courts in Fargo, Grand Forks, or Minot, North Dakota, and elsewhere. Jury trials could then have defendants present through videoconference if not in person. If prosecution witnesses are called upon to confront defendants directly, they can be flown to Gitmo for that purpose.
Trials by military courts. “Dangerous prisoners,” who might be exonerated if put on trial because of tainted evidence could nevertheless be put on trial anyway. Juries are unpredictable. If they are found guilty, they would be locked up. If they are found not guilty, they can be released, subject to current Congressional restrictions. And if they subsequently become terrorists, they can be tracked down, arrested, and tried in a manner similar to criminals released from American prisons who re-offend by committing arson, murder, or rape. Given the vast counterterrorism network that has been erected since 9/11, only cowards would fear a few more terrorists on the loose today.
Confinement in federal prisons. If convicted in civilian or military trials, the prisoners could be sent to prisons in Terre Haute, Indiana, where suspected terrorists are already held in federal prisons. Or to the Supermax prison in southern Colorado, which houses convicted terrorists. For that matter, all prisoners could be sent either place.
Reassignment to other venues. Gitmo is not the only possible venue. Prisoners could be split up and sent to military bases elsewhere in the United States or its territories, such as Anderson Air Force Base on Guam, which was originally considered. Midway Island, St. Thomas, Virgin Islands, and Wake Island are also possible. Although such transfers might be perceived as shellgames, at least Guantánamo would be closed, once and for all.
Assertion of executive authority. Attorney General Eric Holder and President Barack Obama could ignore Congressional meddling in the implementation of operations by the executive branch of government regarding Guantánamo. The constitutional separation of powers gives the executive branch full responsibility over the disposition of prisoners under the control of the national government. But Congress, which did not arrest them, has set administrative rules for handling them, thereby pretending to exercise a legislative veto over acts of the executive branch. Obama threatened a veto in 2011 for having the legislative branch interfere with executive authority, in effect making those at Gitmo prisoners of Congress. Indeed, Congressional laws on the subject nearly amount to passage of a Bill of Attainder, that is, an attempt to impose a sentence on prisoners by legislative means. According to former Chief Justice William Rehnquist, those who wrote the Constitution had experience with the English practice of “a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial” and therefore prohibited bills of attainder in the Constitution.
Guantanamo could close very soon, but President Barack Obama and Attorney General Eric Holder would have to act with more determination.