The campaign for accountability regarding the use of torture has bogged down and become a diversion of attention from the fact that more than two hundred war fifty crimes were committed during the administration of George W. Bush, many of which continue in the present. Because Americans remain unaware of some of the most heinous crimes that imperil the survival of international legal restraints on uncivilized governmental behavior, something more than a focus on torture and waterboarding is needed to galvanize public opinion to demand accountability.

The fact that war crimes were committed is indisputable. Bush ordered commanders in Afghanistan and Guantánamo to stop applying the Geneva Conventions, so they were subsequently violated, as General David Petraeus has recently affirmed. Since a violation of the Geneva Conventions is a war crime, there must be war criminals, whose obvious misdeeds provoke the desire to put them on trial.

Torture, of course, is a violation of American domestic law and a war crime under the Geneva Conventions as well as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. But the very wording of the latter treaty indicates that the sole focus on torture ignores the illegality of cruel, inhuman, and degrading treatment. The myopic focus on three prisoners who have been waterboarded ignores hundreds of thousands who have been subjected to other illegal methods.

Furthermore, the treatment of prisoners is only one topic in the law of warfare. Three others are the legality of war itself, the military conduct of war, and the civil-military occupation of countries conquered by war. The campaign against torture and its detractors fail to recognize the fact that the Geneva Conventions and related international agreements consist of hundreds of articles, many of which were violated with impunity during the Bush administration and are now being ignored in the administration of Barack Obama.

THE FOCUS ON TORTURE

The campaign against torture demands nothing less than accountability for the actions of torturers, those who wrote legal opinions authorizing torture, and those who authorized torture with or without legal cover. One form of accountability is to collect facts through Congressional hearings. Yet one recent voluminous Senate report concluded that there is a need for another (!) set of hearings. Meanwhile, neither the testimony nor the ink satisfy the desire for justice.

A second form of accountability is to hold a truth commission. Yet collectively the various Congressional hearings could be called one grand truth commission. But only on one topic–torture. Hearings and reports have not brought about admissions of guilt or epiphanies from those responsible. National reconciliation is unlikely to follow more investigations and more posturing by those for and against accountability.

A third form of accountability is litigation. Trials, however, can sometimes take years. Each step of the way will be contested with legal motions that might end up in narrow Supreme Court decisions, which in turn will bounce back and forth to trial courts. The most likely prospect is that whoever is convicted will receive a light sentence because motivated by good intentions (defense of the country) and, during the Obama era, will be pardoned to promote national healing. The demand for lawsuits, however, fails to recognize that war crimes continue and should be stopped immediately.

Although Republicans broke ranks during Watergate to remove Richard Nixon from office, only a few Republicans oppose torture today; of those, accountability is not on their agenda. Republican Senator John McCain is strongly opposed to torture but does not support accountability and now even opposes closing Guantánamo.

In a forum at UCLA on May 6, John W. Dean, Bruce Fine, and Philippe Sands agreed that something is needed to mobilize public opinion to demand accountability. For Dean, the answer is continual revelations about misdeeds. For Fein, greater realization that former Vice President Dick Cheney openly advocates lawbreaking (torture). For Sands, release of more torture photographs. However, release of the photos was subsequently blocked by President Obama and Congress. Retired General Antonio Taguba, who also supports the nonrelease of the photos, claims that they feature rape of Iraqis by American soldiers. Such pictures would clearly inflame world opinion in the Islamic world. Besides, displaying prisoners has been banned by the Geneva Conventions since 1929.

In short, the subject of torture has been debated for five years, positions have hardened, and the likelihood of any new groundswell of opinion for accountability is correspondingly low. Public opinion is divided on the advisability of torture. The subject of torture has mobilized some of the public, the pundits, and members of Congress to demand accountability. Additional mobilization requires new revelations beyond torture as well as a realization that continuing war crimes serve to gain recruits for Al-Qaeda and other anti-American terrorist organizations.

WORSE THAN TORTURE

One crime is worse than torture—murder. The main war crime, of course, is Bush’s decision to go to war without authorization by the UN Security Council. In The Prosecution of George W. Bush for Murder (2008), attorney Vincent Bugliosi argues that all the Americans who have died in Iraq have been murdered in an illegal war. Although no court has yet accepted his argument that Bush is criminally liable, the conspiracy among members of the Bush administration to plan the Iraq War is equivalent to charges against high-ranking officials of Nazi Germany who were on trial in the International Military Tribunal at Nuremberg, as noted by Chief Prosecutor Benjamin B. Ferencz in his Foreword to my George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes (2009). Families of the innocent who have died in Afghanistan and Iraq have every reason to believe that the murders are also violations of the law of warfare, but they lack access to American courts.

In addition, at least 160 prisoners in American-run detention facilities abroad have died, either due to torture or to medical neglect. Some 45 cases are confirmed homicides. The academy awardwinning documentary Taxi to the Dark Side (2007) is primarily about the murder of an Afghan taxi driver, partly through medical neglect and partly due to cruel behavior tantamount to torture. In addition, at least 38 prisoners died at American detention facilities in Iraq, including Abu Ghraib, because they were located in combat zones and hit by the shelling, some by American cluster bombs.

In Oath Betrayed (2006), Dr. Steven Miles documents several other prisoners who have been murdered due to medical malpractice. Similar cases are revealed in a 2004 report of the Red Cross. In 2007, to take a more recent example, Abdul Razzaq Hekmati died of colorectal cancer after being denied a colonoscopy at Guantánamo.

MEDICAL ABUSE

Medical misconduct short of homicide has been attested in biographies by former Guantánamo Chaplain James Yee and Guantánamo interrogator Eric Saar, as well as in photographs at Abu Ghraib of one prisoner bleeding unattended on the floor at Abu Ghraib, another with his face lacerated. Even CIA Director George Tenet admitted dispatching a physician to revive a prisoner who appeared to be dying due to waterboarding so that he could be waterboarded again.

In 2003, the prison physician at Abu Ghraib refused to be concerned when Ameen Sa’eed al-Sheik’s wounded leg was repeatedly beaten with a baton. Yee observed a guard daring a prisoner to come out “if you’re a man,” followed by a beating so severe that his head was split open. At Kandahar journalist Sami al-Hajj was not allowed to wash for about 100 days, resulting in a body infested with lice, a common cause of typhus.

Cells at some American-run prisons abroad have lacked running water, and prisoners have been denied requests for water, resulting in severe dehydration. In 2005, Shaker Aamer told his attorney that he had kidney problems from filthy yellow water, lung and skin problems from chemicals used in the cells, arthritis from freezing air during interrogation, tinnitus from perpetual noise, eye problems from constant fluorescent lights, and ulcers and constipation from the disgusting food.

When Abdul Hamid al-Ghizzawi entered Guantánamo, the chief medical doctor pronounced him to be in excellent health. Today, he has tuberculosis. His attorney, believing that he also has HIV from a blood transfusion in 2004, petitioned on his behalf for medical records to verify the diagnosis. In 2008, a federal judge refused to allow him to see his own medical records, which would show whether his treatment is appropriate to his medical condition. Prison authorities informally tell him he has AIDS, but without access to his medical records such information can only be viewed as an attempt at psychological mortification.

More information about medical neglect should focus on psychological torture, as many inmates could be described as zombies. Suicide attempts have been common. A hunger strike is taking place now. And the psychological damage to Americans handling the prisoners under orders is yet another untold story

The use of techniques from the Survival, Evasion, Resistance and Escape (SERE) training as an interrogation program can best be described as a psychological experiment, as the previously untested hypothesis was that prisoners subjected to several simultaneous or sequential forms of accepted abuse might divulge information. In light of the practices of Dr. Josef Mengele, medical experiments are banned by the Geneva Convention. Besides, the Nazi use of interrogation camps was the premise for extensive provisions in the Third Geneva Convention that ban practices which are now routine at Guantánamo.

In all, there have been at least two dozen war crimes regarding medical misconduct in American-run prisons abroad. Instead of more Congressional investigations or a truth commission on torture, testimony on medical war crimes might galvanize new currents of public opinion for accountability. Although Physicians for Human Rights has published such reports, the issue has not yet gained traction. Meanwhile, medical issues continue in American-run prisons abroad.

CHILD ABUSE & RAPE

More horrific perhaps are the way thousands of children have been processed as prisoners at American-run facilities abroad. The capture, handcuffing, forcible removal from home and even country, “enhanced” interrogation, indefinite detention, and miserable conditions of incarceration for those under the age of 18 and as young as 7 can only be characterized as psychological torture. At least twenty-five types of war crimes involve children.

The first example of war crimes against children occurred during the invasion of Afghanistan in 2001, when the children’s hospital in Kabul was bombed, its patients thereby murdered. Other children were killed as “collateral damage” during the wars in Afghanistan and Iraq, contrary to the Geneva Convention ban on indiscriminate killing in wartime, though numbers of dead are unknown. During spring 2004, during the assault on Falluja, Iraq, some three hundred children, including peaceful demonstrators, were killed. Their dead bodies were filmed live on al-Jazeera Television throughout the Arabic-speaking world.

In detention, several children have been brutalized, raped, and tortured. At Abu Ghraib, American guards videotaped Iraqi male prisoners raping young boys but took no action to stop the offenses. Americans raping Iraqi children of both sexes are among the photographs that President Obama refuses to release. Retired General Taguba is aware of what the photos contain, as he conducted a thorough investigation of misconduct at Abu Ghraib.

Perhaps the worst incident at Abu Ghraib involved a girl aged 12 or 13 who screamed for help to her brother in an upper cell while stripped naked and beaten. Iraqi journalist Suhaib Badr-Addin al-Baz, who heard the girl’s screams, also witnessed an ill 15-year-old who was forced to run up and down with two heavy cans of water and beaten whenever he stopped. When he finally collapsed, guards stripped and poured cold water on him. Finally, a hooded man was brought in. When unhooded, the boy realized that the man was his father, who doubtless was being intimidated into confessing something upon sight of his brutalized son.

While General Hamid Zabar was being questioned in Iraq, his interrogators decided to arrest his frail 16-year-old son in order to produce a confession. After soldiers found the boy, he was stripped, drenched with mud and water, and exposed to the cold January night while bound and driven about in the open back of a truck. When presented naked to his father, he was shivering due to hypothermia, clearly needing medical attention.

In 2003, Secretary of Labor Elaine Chao gave a speech on behalf of the need to rehabilitate child soldiers from Burundi, Colombia, El Salvador, Sierra Leone, Sri Lanka, and Uganda. While she spoke, sixty-four children were being abused at Guantánamo. The most famous are Mohammed Jawad and Omar Khadr.

Canadian Omar Khadr’s videotaped plea for his mommy and claims of torture have been viewed on television worldwide. While still wounded from battle in Afghanistan, 15-year-old Omar was captured and interrogated many times, sometimes while hooded with dogs barking near him, so he confessed to stop pain from wounds inflicted earlier by American gunfire. During interrogation at Guantánamo, Omar was shackled to the floor in stress positions until he soiled himself. His bound body was twice used as a mop to wipe his own urine mixed with pine oil after which he was refused a shower and a change of clothing for several days. He has also been administered a brutal beating while on a hunger strike, threatened with rape, and denied pain medication.

There is some puzzlement over the reason for imprisoning 12-year-old Afghan boy Mohammad Jawad. Is it because, while at an American-run prison in Afghanistan in 2002, he claimed that he saw Americans murdering inmates? At Guantánamo, to deprive him of sleep in order to force some sort of confession, he was shifted from one cell to another more than 100 times during two weeks in May 2004, and he remains in solitary confinement today. When he showed up in court in 2008, he was the first to wear leg shackles. During his arraignment, the judge asked him whether he accepted the assigned military defense attorney as his lawyer. After replying in the negative, the judge asked whether he knew another lawyer. His reply to the Kafkaesque inquiry was “Since I don’t know any lawyer, how can I have them represent me? . . . I should be given freedom so that I can find a lawyer.” His request to hunt for a lawyer was then denied.

Both Omar Khadr and Mohammad Jawad remain at Guantánamo today. According to the UN-backed Committee on the Rights of the Child, they are victims of war and should be returned home immediately. Any truth commission of war crimes against children might evoke new demands for accountability from Republicans (especially women who have children), but the issue failed to resonate with Fine and Sands during the UCLA forum.

OTHER WAR CRIMES

On the battlefield, the lack of sufficient ground troops has resulted in the overuse of aerial warfare in Afghanistan, Iraq, and Pakistan. As a result, war crimes involve prohibited targets (civilians, hospitals, mosques, museums, schools), prohibited weapons (cluster bombs, depleted uranium weapons, napalm, white phosphorous), indiscriminate attacks, extrajudicial executions, and the use of mercenaries (professional soldiers from other countries paid more than American soldiers). Since taking office, President Obama has issued no executive order to enforce compliance with the First Geneva Convention, which deals with such matters. Meanwhile, the deaths of innocent civilians continue to undermine the legitimacy of the American presence in all three countries, where protests now come from civilians and government officials alike.

On January 22, 2009, President Obama ordered immediate observance of the Geneva Conventions at Guantánamo and a report within thirty days on compliance. When that report was submitted by Admiral Patrick Walsh, the focus was only on provisions in Article 3 common to the Geneva Conventions. His sole recommendation–to have those in solitary confinement socialize more often–reveals the depth of the Pentagon’s defiance of the executive order, as indefinite solitary confinement is contrary to the Articles 20, 90, and 90 of the Third Geneva Convention. Indeed, attorneys visiting Guantánamo since January 20 attest that many other violations continue, notably regular beatings after prisoners are strapped to chairs while force-fed, windowless cells with extremely cold temperatures, and interruption of prayers by guards. Meanwhile, there has been no similar executive order to require Geneva Conventions compliance at the prison at Bagram Air Force Base, Afghanistan, where violations continue.

The civil-military occupation of Iraq, mostly due to well-recognized mistakes by J. Paul Bremer III, was tarnished by thirty more war crimes. The unpopularity of the United States in that country can be attributed largely to the such Geneva Convention violations as failure to establish public order, disrespect for the legal framework and cultural traditions, and economic and financial decisions that left thousands out of work. A serious public health crisis remains today, in part because the United States has failed to respond to the World Health Organization’s request for a map of locations of depleted uranium ordnance, where children have been playing and thereby are coming down with leukemia.

Currently, the United States gave supported several unsavory warlords in Afghanistan, including Hazrat Ali. His troops have reportedly been accused of seizing teenage boys to serve as sex slaves. President Obama has not ordered observance of the Fourth Geneva Convention, which governs occupations, to be applied in Afghanistan, where some of the same problems fester as those in Iraq.

CONCLUSION: A REAL TRUTH COMMISSION

In the clamor for accountability for a single war crime, torture, the public conversation on the Afghan and Iraq Wars has overlooked the immensity of war crimes, past and present. Yet the United States pioneered and fostered the laws of warfare, particularly when President Abraham Lincoln issued Instructions for the Government of Armies of the United States in the Field (1863), President Theodore Roosevelt insisted on convening the Second Hague Conference in 1907, President Harry Truman authorized the Nuremberg and Tokyo war crimes trials after World War II, and President Dwight Eisenhower persuaded the Senate to ratify the Geneva Conventions in 1955.

The public remains unaware of the meaning of the term “war crimes,” a concept so taboo that two talk-show hosts (Jack Cafferty and Jon Stewart) have been forced to apologize for its use. The ignorance extends to the failure of the United States to live up to several Geneva Convention standards evident in the television series Hogan’s Heroes that have never been applied at Guantánamo. Accountability for war crimes is premature until there is more awareness of the law. The constant drumbeat about torture by waterboarding (only one war crime) is not enough.

If a truth commission is ever held, the exercise should be to educate the public about the full scope of the law of warfare, including when war is legal, what battlefield conduct is prohibited, how to treat prisoners properly, and the norms applicable to civil-military occupation of other countries. That is the kind of truth commission which is proposed in the recent George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes, not a rehashing or embellishing of evidence regarding torture that has by now bored a divided public which is being encouraged by the president to move on.

Those in the campaign against torture may take comfort whenever the principal panicstricken advocate of torture retreats to his latest marmotlike bunker, unrepentant, but at least he does not promote amnesia. Today, myriad war crimes continue unabated, even if we are led to believe that torture has ceased, because President Obama has failed to require full observance of the Geneva Conventions in Afghanistan, Guantánamo, Iraq, and Pakistan. To stop war crimes requires a reckoning with the past as well as the present, for in the words of Nuremberg prosecutor Robert Jackson “The real complaining party is Civilization.”

Currently, some argue that the Naval Base at Guantánamo Bay, Cuba, should be kept open indefinitely to house prisoners collected since 9/11 who are suspected terrorists. Using that premise, conservative talkshow commentators and United States Senators have strained credulity in recent weeks, and even FBI Director Robert Mueller has sounded a false alarm. Each point in the debate needs a counterpoint to demonstrate the naïvete of the let’s-keep-Guantánamo refrain, as there is no reason why President Barack Obama cannot close Guantánamo by January 22, 2010.

One foolish argument is that all 240 prisoners at Guantánamo are terrorists. The counterargument is that about 70 now at Guantánamo were cleared for release by the Bush administration, of whom the federal courts have ordered the release of 20, and 50 others are considered releasable by the Obama administration. Those most intimately familiar with the prisoners have long asserted that most are innocent and should never have been sent to Guantánamo in the first place. They have not been sent home because they might be roughed up or tortured upon arrival, as were the Russians formerly at Guantánamo who were beaten up at Moscow airport in 2004. Therefore, all 70 are technically refugees.

Among the refugees are 17 Uighurs, who have no quarrel with the United States. However, Senator Jim Webb argues that “they accepted training from al-Qaida, and, as a result they have taken part in terrorism.” Yet under the Bush administration, 6 Uighurs were transferred to Albania, where they have not taken part in terrorism, and at least one has left for Sweden. Originally dissidents in China, they were rounded up by bounty hunters in Afghanistan. Webb does not want them to join other Uighurs in Virginia, and he will doubtless get his way. (If released anywhere else in the United States mainland, they would get bus tickets to Virginia.) That leaves militarized Guam as a possible dropoff destination.

The Obama administration evidently has tentative commitments from European countries to host some of the 70 refugees now at Guantánamo, though they evidently want the United States to show good faith by hosting a few. Ireland’s prime minister has indicated an interest in hosting some of the refugees, and Britain will take one more. Belgium, Germany, and Portugal are also considering options, provided the United States follows suit. Malaysia and Yemen want their nationals sent home. Governments that facilitated extraordinary renditions may have a moral obligation to do so in order to expiate their crimes, but so does the United States. If no governments end up accepting the refugees, they might be assigned to the UN High Commissioner for Refugees in Geneva. Strangely, no negotiations between UNHCR and the Obama administration were initiated immediately after the decision to close Guantánamo.

Although fearmonger Senator Mitch McConnell, using a “Willy Horton” argument, predicts that “some of these murderers would return to the battlefield,” they are not all murderers. He cites an alleged recidivism rate among the 500 already released under the Bush administration far below that of Americans released from prisons for serious offenses, some of whom are tagged with GPS devices in a probationary period. Yet those now cleared for resettlement committed no offenses whatsoever. Even if some engage in terrorism after release, he denigrates the ability of American intelligence to track them down and rearrest them as well as the capability of the military to prevail in combat against them as if the United States were still in an unprepared pre-9/11 mode.

Among the 170 who have not been cleared for release, about 20 are now scheduled to be tried as terrorists in federal criminal courts, and an estimated 40 more are to be charged and put on trial in federal courts. They are likely to be convicted and sentenced to federal prisons. Indeed, one Guantánamo prisoner has just been transferred to New York to stand trial for his alleged role in the bombing of American embassies in Africa in 1998. Other terrorists have been tried in federal courts and are in federal penitentiaries today.

However, some members of Congress resist putting any Guantánamo prisoners on trial in civilian courts, and they do not want them in American prisons for fear they would mobilize existing prisoners to riot–or might escape. Yet, as Senator Lindsey Graham, points out, the United States successfully housed thousands of Germans (and ethnic Japanese in internment camps!) in American prisons during World War II. An obvious remedy to appease fearmongerers is for judges to order them placed in solitary confinement before trial without bail in such locations as the “supermax” prison in Colorado from which there has never been an escape. If they have killed someone, as Senator McConnell alleges, they might be sentenced to be executed under federal law.

Some of the remaining 110 prisoners at Guantánamo are suspected terrorists but are unlikely to be convicted because of tainted or insufficient evidence; judges are likely to dismiss their cases for those reasons. According to Obama, they “in effect, remain at war with the United States.” But that begs the question whether they are really terrorists. If the evidence is a confession extracted by illegal interrogation methods, they may be innocent. If there is insufficient evidence, they may also be innocent of wrongdoing. If they are truly dangerous, that can be determined at properly constituted military hearings. The UNHCR option remains for those who are not deemed probable terrorists. For those who are considered dangerous but could not be convicted, President Obama suggests three options.

One is to try them in revamped military commissions. A second option is to set up brand new “national security” courts. Since Congress may fail to authorize such tribunals, which in turn would be subject to endless legal challenges, and Guantánamo will be closed before the details can be worked out, they might ultimately be released by habeas corpus petitions, so both makeshift options are unworkable.

Obama’s third option is to invoke the law of warfare as grounds to retain them indefinitely in “prolonged detention.” If they are from Afghanistan, as is Mohammed Jawad (who was picked up at age 12), they could be sent to the prison at Bagram Air Force Base, which can properly hold combatants for the duration of that war. But most are from Yemen, a hotbed of terrorism, and the policy of prolonged detention may be found unconstitutional in federal courts. That is why several knowledgeable observers propose that they be tried quickly by military courts-martial. If found guilty, they can be placed in military brigs, as has already been the case for some American citizens accused of terrorist acts. If innocent, they could be turned over to the UNHCR for resettlement.

Congress was nonplussed when asked by President Obama to fund the closure of Guantánamo without a specific plan to deal with 240 prisoners. Rather than embarking on further delays by using military commissions or “national security courts,” the above suggestions could be the basis for such a plan to meet the January 22, 2010, deadline.

These are extraordinary times for our country. We’re confronting a historic economic crisis. We’re fighting two wars. We face a range of challenges that will define the way that Americans will live in the 21st century. So there’s no shortage of work to be done, or responsibilities to bear.

And we’ve begun to make progress. Just this week, we’ve taken steps to protect American consumers and homeowners, and to reform our system of government contracting so that we better protect our people while spending our money more wisely. The — it’s a good bill. The engines of our economy are slowly beginning to turn, and we’re working towards historic reform on health care and on energy. I want to say to the members of Congress, I welcome all the extraordinary work that has been done over these last four months on these and other issues.

In the midst of all these challenges, however, my single most important responsibility as President is to keep the American people safe. It’s the first thing that I think about when I wake up in the morning. It’s the last thing that I think about when I go to sleep at night.

And this responsibility is only magnified in an era when an extremist ideology threatens our people, and technology gives a handful of terrorists the potential to do us great harm. We are less than eight years removed from the deadliest attack on American soil in our history. We know that al Qaeda is actively planning to attack us again. We know that this threat will be with us for a long time, and that we must use all elements of our power to defeat it.

Already, we’ve taken several steps to achieve that goal. For the first time since 2002, we’re providing the necessary resources and strategic direction to take the fight to the extremists who attacked us on 9/11 in Afghanistan and Pakistan. We’re investing in the 21st century military and intelligence capabilities that will allow us to stay one step ahead of a nimble enemy. We have re-energized a global non-proliferation regime to deny the world’s most dangerous people access to the world’s deadliest weapons. And we’ve launched an effort to secure all loose nuclear materials within four years. We’re better protecting our border, and increasing our preparedness for any future attack or natural disaster. We’re building new partnerships around the world to disrupt, dismantle, and defeat al Qaeda and its affiliates. And we have renewed American diplomacy so that we once again have the strength and standing to truly lead the world.

These steps are all critical to keeping America secure. But I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values. The documents that we hold in this very hall — the Declaration of Independence, the Constitution, the Bill of Rights — these are not simply words written into aging parchment. They are the foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality, and dignity around the world.

I stand here today as someone whose own life was made possible by these documents. My father came to these shores in search of the promise that they offered. My mother made me rise before dawn to learn their truths when I lived as a child in a foreign land. My own American journey was paved by generations of citizens who gave meaning to those simple words — “to form a more perfect union.” I’ve studied the Constitution as a student, I’ve taught it as a teacher, I’ve been bound by it as a lawyer and a legislator. I took an oath to preserve, protect, and defend the Constitution as Commander-in-Chief, and as a citizen, I know that we must never, ever, turn our back on its enduring principles for expedience sake.

I make this claim not simply as a matter of idealism. We uphold our most cherished values not only because doing so is right, but because it strengthens our country and it keeps us safe. Time and again, our values have been our best national security asset — in war and peace; in times of ease and in eras of upheaval.

Fidelity to our values is the reason why the United States of America grew from a small string of colonies under the writ of an empire to the strongest nation in the world.

It’s the reason why enemy soldiers have surrendered to us in battle, knowing they’d receive better treatment from America’s Armed Forces than from their own government.

It’s the reason why America has benefitted from strong alliances that amplified our power, and drawn a sharp, moral contrast with our adversaries.

It’s the reason why we’ve been able to overpower the iron fist of fascism and outlast the iron curtain of communism, and enlist free nations and free peoples everywhere in the common cause and common effort of liberty.

From Europe to the Pacific, we’ve been the nation that has shut down torture chambers and replaced tyranny with the rule of law. That is who we are. And where terrorists offer only the injustice of disorder and destruction, America must demonstrate that our values and our institutions are more resilient than a hateful ideology.

After 9/11, we knew that we had entered a new era — that enemies who did not abide by any law of war would present new challenges to our application of the law; that our government would need new tools to protect the American people, and that these tools would have to allow us to prevent attacks instead of simply prosecuting those who try to carry them out.

Unfortunately, faced with an uncertain threat, our government made a series of hasty decisions. I believe that many of these decisions were motivated by a sincere desire to protect the American people. But I also believe that all too often our government made decisions based on fear rather than foresight; that all too often our government trimmed facts and evidence to fit ideological predispositions. Instead of strategically applying our power and our principles, too often we set those principles aside as luxuries that we could no longer afford. And during this season of fear, too many of us — Democrats and Republicans, politicians, journalists, and citizens — fell silent.

In other words, we went off course. And this is not my assessment alone. It was an assessment that was shared by the American people who nominated candidates for President from both major parties who, despite our many differences, called for a new approach — one that rejected torture and one that recognized the imperative of closing the prison at Guantanamo Bay.

Now let me be clear: We are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability. For reasons that I will explain, the decisions that were made over the last eight years established an ad hoc legal approach for fighting terrorism that was neither effective nor sustainable — a framework that failed to rely on our legal traditions and time-tested institutions, and that failed to use our values as a compass. And that’s why I took several steps upon taking office to better protect the American people.

First, I banned the use of so-called enhanced interrogation techniques by the United States of America.

I know some have argued that brutal methods like waterboarding were necessary to keep us safe. I could not disagree more. As Commander-in-Chief, I see the intelligence. I bear the responsibility for keeping this country safe. And I categorically reject the assertion that these are the most effective means of interrogation. What’s more, they undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us, while decreasing the will of others to work with America. They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured. In short, they did not advance our war and counterterrorism efforts — they undermined them, and that is why I ended them once and for all.

Now, I should add, the arguments against these techniques did not originate from my administration. As Senator McCain once said, torture “serves as a great propaganda tool for those who recruit people to fight against us.” And even under President Bush, there was recognition among members of his own administration — including a Secretary of State, other senior officials, and many in the military and intelligence community — that those who argued for these tactics were on the wrong side of the debate, and the wrong side of history. That’s why we must leave these methods where they belong — in the past. They are not who we are, and they are not America.

The second decision that I made was to order the closing of the prison camp at Guantanamo Bay.

For over seven years, we have detained hundreds of people at Guantanamo. During that time, the system of military commissions that were in place at Guantanamo succeeded in convicting a grand total of three suspected terrorists. Let me repeat that: three convictions in over seven years. Instead of bringing terrorists to justice, efforts at prosecution met setback after setback, cases lingered on, and in 2006 the Supreme Court invalidated the entire system. Meanwhile, over 525 detainees were released from Guantanamo under not my administration, under the previous administration. Let me repeat that: Two-thirds of the detainees were released before I took office and ordered the closure of Guantanamo.

There is also no question that Guantanamo set back the moral authority that is America’s strongest currency in the world. Instead of building a durable framework for the struggle against al Qaeda that drew upon our deeply held values and traditions, our government was defending positions that undermined the rule of law. In fact, part of the rationale for establishing Guantanamo in the first place was the misplaced notion that a prison there would be beyond the law — a proposition that the Supreme Court soundly rejected. Meanwhile, instead of serving as a tool to counter terrorism, Guantanamo became a symbol that helped al Qaeda recruit terrorists to its cause. Indeed, the existence of Guantanamo likely created more terrorists around the world than it ever detained.

So the record is clear: Rather than keeping us safer, the prison at Guantanamo has weakened American national security. It is a rallying cry for our enemies. It sets back the willingness of our allies to work with us in fighting an enemy that operates in scores of countries. By any measure, the costs of keeping it open far exceed the complications involved in closing it. That’s why I argued that it should be closed throughout my campaign, and that is why I ordered it closed within one year.

The third decision that I made was to order a review of all pending cases at Guantanamo. I knew when I ordered Guantanamo closed that it would be difficult and complex. There are 240 people there who have now spent years in legal limbo. In dealing with this situation, we don’t have the luxury of starting from scratch. We’re cleaning up something that is, quite simply, a mess — a misguided experiment that has left in its wake a flood of legal challenges that my administration is forced to deal with on a constant, almost daily basis, and it consumes the time of government officials whose time should be spent on better protecting our country.

Indeed, the legal challenges that have sparked so much debate in recent weeks here in Washington would be taking place whether or not I decided to close Guantanamo. For example, the court order to release 17 Uighurs — 17 Uighur detainees took place last fall, when George Bush was President. The Supreme Court that invalidated the system of prosecution at Guantanamo in 2006 was overwhelmingly appointed by Republican Presidents — not wild-eyed liberals. In other words, the problem of what to do with Guantanamo detainees was not caused by my decision to close the facility; the problem exists because of the decision to open Guantanamo in the first place. (Applause.)

Now let me be blunt. There are no neat or easy answers here. I wish there were. But I can tell you that the wrong answer is to pretend like this problem will go away if we maintain an unsustainable status quo. As President, I refuse to allow this problem to fester. I refuse to pass it on to somebody else. It is my responsibility to solve the problem. Our security interests will not permit us to delay. Our courts won’t allow it. And neither should our conscience.

Now, over the last several weeks, we’ve seen a return of the politicization of these issues that have characterized the last several years. I’m an elected official; I understand these problems arouse passions and concerns. They should. We’re confronting some of the most complicated questions that a democracy can face. But I have no interest in spending all of our time relitigating the policies of the last eight years. I’ll leave that to others. I want to solve these problems, and I want to solve them together as Americans.

And we will be ill-served by some of the fear-mongering that emerges whenever we discuss this issue. Listening to the recent debate, I’ve heard words that, frankly, are calculated to scare people rather than educate them; words that have more to do with politics than protecting our country. So I want to take this opportunity to lay out what we are doing, and how we intend to resolve these outstanding issues. I will explain how each action that we are taking will help build a framework that protects both the American people and the values that we hold most dear. And I’ll focus on two broad areas: first, issues relating to Guantanamo and our detention policy; but, second, I also want to discuss issues relating to security and transparency.

Now, let me begin by disposing of one argument as plainly as I can: We are not going to release anyone if it would endanger our national security, nor will we release detainees within the United States who endanger the American people. Where demanded by justice and national security, we will seek to transfer some detainees to the same type of facilities in which we hold all manner of dangerous and violent criminals within our borders — namely, highly secure prisons that ensure the public safety.

As we make these decisions, bear in mind the following fact: Nobody has ever escaped from one of our federal, supermax prisons, which hold hundreds of convicted terrorists. As Republican Lindsey Graham said, the idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational.

We are currently in the process of reviewing each of the detainee cases at Guantanamo to determine the appropriate policy for dealing with them. And as we do so, we are acutely aware that under the last administration, detainees were released and, in some cases, returned to the battlefield. That’s why we are doing away with the poorly planned, haphazard approach that let those detainees go in the past. Instead we are treating these cases with the care and attention that the law requires and that our security demands.

Now, going forward, these cases will fall into five distinct categories.

First, whenever feasible, we will try those who have violated American criminal laws in federal courts — courts provided for by the United States Constitution. Some have derided our federal courts as incapable of handling the trials of terrorists. They are wrong. Our courts and our juries, our citizens, are tough enough to convict terrorists. The record makes that clear. Ramzi Yousef tried to blow up the World Trade Center. He was convicted in our courts and is serving a life sentence in U.S. prisons. Zacarias Moussaoui has been identified as the 20th 9/11 hijacker. He was convicted in our courts, and he too is serving a life sentence in prison. If we can try those terrorists in our courts and hold them in our prisons, then we can do the same with detainees from Guantanamo.

Recently, we prosecuted and received a guilty plea from a detainee, al-Marri, in federal court after years of legal confusion. We’re preparing to transfer another detainee to the Southern District Court of New York, where he will face trial on charges related to the 1998 bombings of our embassies in Kenya and Tanzania — bombings that killed over 200 people. Preventing this detainee from coming to our shores would prevent his trial and conviction. And after over a decade, it is time to finally see that justice is served, and that is what we intend to do.

The second category of cases involves detainees who violate the laws of war and are therefore best tried through military commissions. Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.

Now, some have suggested that this represents a reversal on my part. They should look at the record. In 2006, I did strongly oppose legislation proposed by the Bush administration and passed by the Congress because it failed to establish a legitimate legal framework, with the kind of meaningful due process rights for the accused that could stand up on appeal.

I said at that time, however, that I supported the use of military commissions to try detainees, provided there were several reforms, and in fact there were some bipartisan efforts to achieve those reforms. Those are the reforms that we are now making. Instead of using the flawed commissions of the last seven years, my administration is bringing our commissions in line with the rule of law. We will no longer permit the use of evidence — as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods. We will no longer place the burden to prove that hearsay is unreliable on the opponent of the hearsay. And we will give detainees greater latitude in selecting their own counsel, and more protections if they refuse to testify. These reforms, among others, will make our military commissions a more credible and effective means of administering justice, and I will work with Congress and members of both parties, as well as legal authorities across the political spectrum, on legislation to ensure that these commissions are fair, legitimate, and effective.

The third category of detainees includes those who have been ordered released by the courts. Now, let me repeat what I said earlier: This has nothing to do with my decision to close Guantanamo. It has to do with the rule of law. The courts have spoken. They have found that there’s no legitimate reason to hold 21 of the people currently held at Guantanamo. Nineteen of these findings took place before I was sworn into office. I cannot ignore these rulings because as President, I too am bound by the law. The United States is a nation of laws and so we must abide by these rulings.

The fourth category of cases involves detainees who we have determined can be transferred safely to another country. So far, our review team has approved 50 detainees for transfer. And my administration is in ongoing discussions with a number of other countries about the transfer of detainees to their soil for detention and rehabilitation.

Now, finally, there remains the question of detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people. And I have to be honest here — this is the toughest single issue that we will face. We’re going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who’ve received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.

Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can’t be based simply on what I or the executive branch decide alone. That’s why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

Now, as our efforts to close Guantanamo move forward, I know that the politics in Congress will be difficult. These are issues that are fodder for 30-second commercials. You can almost picture the direct mail pieces that emerge from any vote on this issue — designed to frighten the population. I get it. But if we continue to make decisions within a climate of fear, we will make more mistakes. And if we refuse to deal with these issues today, then I guarantee you that they will be an albatross around our efforts to combat terrorism in the future.

I have confidence that the American people are more interested in doing what is right to protect this country than in political posturing. I am not the only person in this city who swore an oath to uphold the Constitution — so did each and every member of Congress. And together we have a responsibility to enlist our values in the effort to secure our people, and to leave behind the legacy that makes it easier for future Presidents to keep this country safe.

Now, let me touch on a second set of issues that relate to security and transparency.

National security requires a delicate balance. One the one hand, our democracy depends on transparency. On the other hand, some information must be protected from public disclosure for the sake of our security — for instance, the movement of our troops, our intelligence-gathering, or the information we have about a terrorist organization and its affiliates. In these and other cases, lives are at stake.

Now, several weeks ago, as part of an ongoing court case, I released memos issued by the previous administration’s Office of Legal Counsel. I did not do this because I disagreed with the enhanced interrogation techniques that those memos authorized, and I didn’t release the documents because I rejected their legal rationales — although I do on both counts. I released the memos because the existence of that approach to interrogation was already widely known, the Bush administration had acknowledged its existence, and I had already banned those methods. The argument that somehow by releasing those memos we are providing terrorists with information about how they will be interrogated makes no sense. We will not be interrogating terrorists using that approach. That approach is now prohibited.

In short, I released these memos because there was no overriding reason to protect them. And the ensuing debate has helped the American people better understand how these interrogation methods came to be authorized and used.

On the other hand, I recently opposed the release of certain photographs that were taken of detainees by U.S. personnel between 2002 and 2004. Individuals who violated standards of behavior in these photos have been investigated and they have been held accountable. There was and is no debate as to whether what is reflected in those photos is wrong. Nothing has been concealed to absolve perpetrators of crimes. However, it was my judgment — informed by my national security team — that releasing these photos would inflame anti-American opinion and allow our enemies to paint U.S. troops with a broad, damning, and inaccurate brush, thereby endangering them in theaters of war.

In short, there is a clear and compelling reason to not release these particular photos. There are nearly 200,000 Americans who are serving in harm’s way, and I have a solemn responsibility for their safety as Commander-in-Chief. Nothing would be gained by the release of these photos that matters more than the lives of our young men and women serving in harm’s way.

Now, in the press’s mind and in some of the public’s mind, these two cases are contradictory. They are not to me. In each of these cases, I had to strike the right balance between transparency and national security. And this balance brings with it a precious responsibility. There’s no doubt that the American people have seen this balance tested over the last several years. In the images from Abu Ghraib and the brutal interrogation techniques made public long before I was President, the American people learned of actions taken in their name that bear no resemblance to the ideals that generations of Americans have fought for. And whether it was the run-up to the Iraq war or the revelation of secret programs, Americans often felt like part of the story had been unnecessarily withheld from them. And that caused suspicion to build up. And that leads to a thirst for accountability.

I understand that. I ran for President promising transparency, and I meant what I said. And that’s why, whenever possible, my administration will make all information available to the American people so that they can make informed judgments and hold us accountable. But I have never argued — and I never will — that our most sensitive national security matters should simply be an open book. I will never abandon — and will vigorously defend — the necessity of classification to defend our troops at war, to protect sources and methods, and to safeguard confidential actions that keep the American people safe. Here’s the difference though: Whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions — by Congress or by the courts.

We’re currently launching a review of current policies by all those agencies responsible for the classification of documents to determine where reforms are possible, and to assure that the other branches of government will be in a position to review executive branch decisions on these matters. Because in our system of checks and balances, someone must always watch over the watchers — especially when it comes to sensitive administration — information.

Now, along these same lines, my administration is also confronting challenges to what is known as the “state secrets” privilege. This is a doctrine that allows the government to challenge legal cases involving secret programs. It’s been used by many past Presidents — Republican and Democrat — for many decades. And while this principle is absolutely necessary in some circumstances to protect national security, I am concerned that it has been over-used. It is also currently the subject of a wide range of lawsuits. So let me lay out some principles here. We must not protect information merely because it reveals the violation of a law or embarrassment to the government. And that’s why my administration is nearing completion of a thorough review of this practice.

And we plan to embrace several principles for reform. We will apply a stricter legal test to material that can be protected under the state secrets privilege. We will not assert the privilege in court without first following our own formal process, including review by a Justice Department committee and the personal approval of the Attorney General. And each year we will voluntarily report to Congress when we have invoked the privilege and why because, as I said before, there must be proper oversight over our actions.

On all these matters related to the disclosure of sensitive information, I wish I could say that there was some simple formula out there to be had. There is not. These often involve tough calls, involve competing concerns, and they require a surgical approach. But the common thread that runs through all of my decisions is simple: We will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it’s uncomfortable. I will deal with Congress and the courts as co-equal branches of government. I will tell the American people what I know and don’t know, and when I release something publicly or keep something secret, I will tell you why. (Applause.)

Now, in all the areas that I’ve discussed today, the policies that I’ve proposed represent a new direction from the last eight years. To protect the American people and our values, we’ve banned enhanced interrogation techniques. We are closing the prison at Guantanamo. We are reforming military commissions, and we will pursue a new legal regime to detain terrorists. We are declassifying more information and embracing more oversight of our actions, and we’re narrowing our use of the state secrets privilege. These are dramatic changes that will put our approach to national security on a surer, safer, and more sustainable footing. Their implementation will take time, but they will get done.

There’s a core principle that we will apply to all of our actions. Even as we clean up the mess at Guantanamo, we will constantly reevaluate our approach, subject our decisions to review from other branches of government, as well as the public. We seek the strongest and most sustainable legal framework for addressing these issues in the long term — not to serve immediate politics, but to do what’s right over the long term. By doing that we can leave behind a legacy that outlasts my administration, my presidency, that endures for the next President and the President after that — a legacy that protects the American people and enjoys a broad legitimacy at home and abroad.

Now, this is what I mean when I say that we need to focus on the future. I recognize that many still have a strong desire to focus on the past. When it comes to actions of the last eight years, passions are high. Some Americans are angry; others want to re-fight debates that have been settled, in some cases debates that they have lost. I know that these debates lead directly, in some cases, to a call for a fuller accounting, perhaps through an independent commission.

I’ve opposed the creation of such a commission because I believe that our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws or miscarriages of justice.

It’s no secret there is a tendency in Washington to spend our time pointing fingers at one another. And it’s no secret that our media culture feeds the impulse that lead to a good fight and good copy. But nothing will contribute more than that than a extended relitigation of the last eight years. Already, we’ve seen how that kind of effort only leads those in Washington to different sides to laying blame. It can distract us from focusing our time, our efforts, and our politics on the challenges of the future.

We see that, above all, in the recent debate — how the recent debate has obscured the truth and sends people into opposite and absolutist ends. On the one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and would almost never put national security over transparency. And on the other end of the spectrum, there are those who embrace a view that can be summarized in two words: “Anything goes.” Their arguments suggest that the ends of fighting terrorism can be used to justify any means, and that the President should have blanket authority to do whatever he wants — provided it is a President with whom they agree.

Both sides may be sincere in their views, but neither side is right. The American people are not absolutist, and they don’t elect us to impose a rigid ideology on our problems. They know that we need not sacrifice our security for our values, nor sacrifice our values for our security, so long as we approach difficult questions with honesty and care and a dose of common sense. That, after all, is the unique genius of America. That’s the challenge laid down by our Constitution. That has been the source of our strength through the ages. That’s what makes the United States of America different as a nation.

I can stand here today, as President of the United States, and say without exception or equivocation that we do not torture, and that we will vigorously protect our people while forging a strong and durable framework that allows us to fight terrorism while abiding by the rule of law. Make no mistake: If we fail to turn the page on the approach that was taken over the past several years, then I will not be able to say that as President. And if we cannot stand for our core values, then we are not keeping faith with the documents that are enshrined in this hall.

The Framers who drafted the Constitution could not have foreseen the challenges that have unfolded over the last 222 years. But our Constitution has endured through secession and civil rights, through World War and Cold War, because it provides a foundation of principles that can be applied pragmatically; it provides a compass that can help us find our way. It hasn’t always been easy. We are an imperfect people. Every now and then, there are those who think that America’s safety and success requires us to walk away from the sacred principles enshrined in this building. And we hear such voices today. But over the long haul the American people have resisted that temptation. And though we’ve made our share of mistakes, required some course corrections, ultimately we have held fast to the principles that have been the source of our strength and a beacon to the world.

Now this generation faces a great test in the specter of terrorism. And unlike the Civil War or World War II, we can’t count on a surrender ceremony to bring this journey to an end. Right now, in distant training camps and in crowded cities, there are people plotting to take American lives. That will be the case a year from now, five years from now, and — in all probability — 10 years from now. Neither I nor anyone can stand here today and say that there will not be another terrorist attack that takes American lives. But I can say with certainty that my administration — along with our extraordinary troops and the patriotic men and women who defend our national security — will do everything in our power to keep the American people safe. And I do know with certainty that we can defeat al Qaeda. Because the terrorists can only succeed if they swell their ranks and alienate America from our allies, and they will never be able to do that if we stay true to who we are, if we forge tough and durable approaches to fighting terrorism that are anchored in our timeless ideals. This must be our common purpose.

I ran for President because I believe that we cannot solve the challenges of our time unless we solve them together. We will not be safe if we see national security as a wedge that divides America — it can and must be a cause that unites us as one people and as one nation. We’ve done so before in times that were more perilous than ours. We will do so once again.

Thank you, God bless you, and God bless the United States of America.

On May 15, after a review of evidence that might be used to try prisoners at Guantánamo, President Barack Obama announced that some prisoners will be tried by military commissions, others in federal criminal courts. Some will be set free when a host country agrees to accept them, but many remain in limbo. By refusing to negotiate with the ACLU and related organizations to achieve a pragmatic compromise, Obama ensures that court challenges will delay prosecutions indefinitely.

As president, George W. Bush tried to establish military commissions to try Guantánamo prisoners by executive fiat, but the Supreme Court told him in Hamdan v Rumsfeld (2006) that Congress, according to the Constitution, has the sole power to set up new tribunals. And, the court noted, the Geneva Conventions only permit “regularly constituted courts” to try war criminals. Bush and Defense Secretary Donald Rumsfeld were thus obliquely castigated as war criminals for operating such tribunals, which prisoner Binyam Mohammed (who is now in Britain) eloquently characterized as “con-missions.” Shortly after the Supreme Court decision, Congress passed the Military Commission Act of 2006 to provide legal cover for the commissions.

Only 3 defendants have been prosecuted to a conclusion by military commissions. During the same time, 145 prosecutions for terrorism were pursued in federal criminal courts, including Zacarias Moussaoui for his role in the 9/11 attacks. Obama has not promised that any specific prisoners at Guantánamo will be similarly tried, though several habeas corpus cases are under review in federal courts.

During his campaign for the presidency, Obama attacked the commissions as “enormous failures” for denying legal protections for defendants equivalent to those observed in federal criminal courts. His executive order of January 22, 2009, asked the military to stop all 13 prosecutions that were then underway, pending a 120-day review. On May 15, one week ahead of schedule, Obama extended the review and the trials pending Congressional action for an additional 120 days (by September 17). An estimated 80 prisoners may eventually be tried by revamped military commissions. But federal court trials are unlikely because defendants would be freed on such grounds as the failure to have been granted speedy trials.

The 240 prisoners at Guantánamo now fall into several categories:

• 13 prisoners, whose prosecutions were stopped on January 22, will be tried by military commissions.
• 21 prisoners who were charged but not prosecuted before January 22 will be tried by military commissions.
• 46 other prisoners are expected to be charged and prosecuted by military commissions.
• 100 prisoners may be held indefinitely after trial in “national security courts” to be set up by Congress.
• 60 prisoners, deemed eligible for release in 2008, are refugees awaiting resettlement. (Because their home countries are likely to torture them upon arrival, they remain at Guantánamo, eligible for asylum).
• 100 prisoners are in limbo, not yet categorized.

For those who will be tried by military commissions, Obama announced minor procedural modifications:

• Statements obtained through cruel, inhuman and degrading treatment are not admissible as evidence (reversing WC#160).*
• Prisoners can veto attorneys selected for them by the military (reversing WC#137), though it is unclear who else prisoners can select as their attorneys.
• The government will have the burden of proof to demonstrate the reliability of hearsay evidence, and prisoners will not be presumed guilty for invoking their right not to testify at trial (reversing some but not all elements in WC#132).
• In addition, military commission judges will be given more flexibility to establish jurisdiction.

Nevertheless, the following major violations of the Geneva Conventions remain unmodified in upcoming trials by military commissions:

• Lawyers for prisoners may not be permitted to view some classified information or to discuss that information with their clients (WC#130).
• Prisoners continue to be denied speedy trials (WC#134) .
• Many prisoners still lack information about charges that should have been filed against them long ago on a timely basis (WC#143-144).
• Prisoners evidently will continue to be denied the right to call witnesses (WC#135).
• Defense attorneys can still be denied free access and privacy in communicating with prisoners (WC#139-140).
• Prisoners on trial can still be denied the right of cross-examining witnesses against them (WC#148).
• The appeal procedure is still unclear (WC#142).

Congress, according to rumor, will be asked to set up “national security courts” to enable the indefinite incarceration of certain prisoners. The premise appears to be that so long as Al-Qaeda is steadfastly committed to aggression against the United States, their members should remain imprisoned. In other words, some prisoners might be freed in federal courts or by military commissions because the evidence against them has been tainted. Miranda warnings, for example, were not used prior to questioning that produced self-incriminating evidence. Obama, in short, appears to be maintaining the fiction that there is an ongoing “war on terror” without saying so, though he used the word “war” on May 21 to refer to those who might be held for “prolonged detention.” Representative Adam Schiff, meanwhile, has proposed that all trials be conducted by military courts-martial, since the Uniform Code of Military Justice provides a proven jurisprudence that can ensure fair trials, thus obviating endless tinkering and litigation inherent in makeshift military commissions.

Among those currently eligible for release are 17 Uighur refugees (Turkic peoples from China) who were ordered to be freed by a federal court last year. According to Amnesty International, countries that participated in extraordinary renditions should accept innocent prisoners for which they bear responsibility. In March, Ireland’s Prime Minister, Brian Cowen, appropriately offered to accept some refugees from Guantánamo, but none have yet arrived in the land of the shamrock. One sticking point is that Washington has placed conditions on the release of prisoners from Guantánamo to which most countries have objected. Many countries feel reluctant to receive former prisoners until the United States sets an example by accepting some of the refugees on its own shores.

Obama has clearly taken a nuanced approach toward prisoners at Guantánamo. But the recent procedural modifications fall short of providing the basis for fair trials and can only be characterized as based on a naïve understanding of the 44 juridical war crimes already committed at Guantánamo. Whether the actual result will accord with international law remains to be seen. The obvious prospect is for more court challenges to the procedures, thus more delays in trials, and a consequent inability to close Guantánamo by January 22, 2009.

*War Crime (WC) numbers refer to the enumeration in Michael Haas, George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes (2009)

Several Republican members of Congress insist that Guantánamo should remain open for business as usual, and some have even postured that prisoners should not be transferred to civilian or military prisons in their states. The latest plea, from distinguished Senators Lindsey Graham and John McCain in the Wall Street Journal on May 6, deserves an answer.

They begin their op-ed with several easily answered questions that perplex them:

1) “How do we prosecute detainees suspected of committing war crimes now that military commissions have been suspended?” Later, they nix both civilian trial courts and military courts-martial, both of which are clearly available. They prefer military commissions without the safeguards provided by the Geneva Conventions.

2) “How should we handle those detainees who cannot be tried, but who are too dangerous to release?” Here they beg two questions. Without naming anyone in particular, they advance a straw man argument.

3) “Where will we house them?” Obviously there are plenty of facilities, but they assume that those declared innocent of any crime and eligible for release should be held anyway.

4) “How should we deal with detainees who, if released, would return to the fight against us?” Here their “Willie Horton” claim can only be based on their power as psychics. Nancy Reagan’s unusual advisers surely have no place in the United States Senate.

5) “How do we deal with the prisoners held at Bagram Air Force Base in Afghanistan where some detainees captured outside Afghanistan are being held?” They surely know that they a high court has ruled that they deserve a hearing to determine why they are being held. If improperly, they would be released. If for cause, then a trial is warranted.

Then they advance five points that are easily disputed:

1) “Do not confuse war with common criminality.” In fact the “law of war,” to which they refer, is incorporated into American criminal law in several statutes. Later, in their op-ed they advocate reviews by civilian judges anyway. They go on to exaggerate that “the vast majority of them [Guantánamo prisoners] are fundamentally committed to the destruction of our way of life.” Yet nearly 100 were deemed eligible for release by the Bush administration if a host country could be found, leaving around 60 that might be put on trial, and another 100 or so in limbo.

2) “Military commissions remain the appropriate trial venue for these individuals.” They refer to the Military Commissions Act of 2006 as their authority. Yet contradictorily they refer to the existing military justice system and also argue for something new. The two systems are fundamentally different, as the 2006 law substantially differs from Geneva Convention requirements, whereas the military justice system was set up in full compliance.

3) “Preventive detention will continue to have a place in the war on terror.” They claim that captured combatants must be held on a battlefield, yet Guantánamo is not a battlefield. Further, they pretend that there is a “war on terror.” Terrorist acts are criminal acts according to domestic and international law. They also use a disputed Department of Defense estimate that ten percent of those released from Guantánamo have been recidivists as grounds for keeping the other ninety percent indefinitely. On their logic, no prisoners should ever be released from civilian jails, where the recidivism rate is higher, even those exonerated of any crime.

4) “We must address the detainee situation at Bagram in Afghanistan.” Here they will find wide agreement, but they mistakenly believe that those recently granted habeas corpus rights were part of enemy armed forces. Those granted habeas corpus rights at Bagram were captured outside the battlefield in Afghanistan.

5) “Congress must be involved in crafting detainee policy.” Here two Republicans ask the Democratic majority to hear their prayer. Contradictorily, they praise the military justice system and yet they want something new to be designed, presumably not even the flawed military commission system that was suspended temporarily.

Neither Nuremberg nor the Geneva Conventions are mentioned in their essay, and they do not define what they mean by the “law of war,” which they ignore anyway. They advocate the following eleven war crimes:

• Failure to treat captured belligerents as prisoners of war (WC#117)
• Failure to try accused prisoners in a regularly constituted court (WC#121)
• Failure to use a competent tribunal to determine whether to detain prisoners (WC#123)
• Failure to disseminate Geneva Convention provisions (WC$126)
• Failure to put prisoners on trial (WC#132)
• Failure to inform prisoners promptly of charges against them (WC#143)
• Failure to promptly repatriate prisoners eligible for release (WC#171)
• Transfer of children from their home Countries to prisons abroad (WC#181)
• Failure to obtain permission from parents or guardians for transfer of their children to prisons abroad (WC#182)
• Indefinite detainment of children (WC#195)
• Presumption of the guilt of child prisoners before trials (WC#201).

They also engage in oldspeak, referring to a “war on terror” and to prisoners as “detainees.” Their thinking is too muddled to be taken seriously except as an assignment dutifully carried out in support of a Republican Party leadership that has been repudiated by the American people as unworthy of the basic constitutional principles–our way of life–on which the United States was founded.

*War crime (WC) numbers refer to the enumeration in Michael Haas, George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes (2009)

Pundits are using euphemisms today. Although the word “crimes” and violations of “the law” appear in columns of the major newsmagazines and newspapers, the term “war crimes” strangely does not appear in discussions about torture. It is as if the term were the equivalent of certain expletives that must be deleted from print. Why?

Two television journalists have used the words “war crimes.” On CNN, Frank Cafferty did so, calling Donald Rumsfeld a “war criminal” on November 6, 2006. Having done so, CNN network’s CEO with lawyers in tow flew from Atlanta to New York to insist on a retraction. Cafferty then complied but had the last say by describing the incident on his website (http://caffertyfile.blogs.cnn.com). On October 1, 2007, Cafferty explained what happened on Comedy Central’s cable program The Daily Show, anchored by Jon Stewart.

Then on April 28, 2009, the same Jon Stewart used the words “war crime” on the Daily Show on Comedy Central’s website. He apologized two days later during his regular television program for saying that President Harry Truman was a war criminal. But, of course, Truman’s use of the atomic bomb was not technically a war crime at the time because no international treaty covered the subject of aerial warfare in 1945. Rather than noting that technicality, Stewart’s apology was for misspeaking the words, but he presented no explanation.

Yet President George W. Bush had no such compunctions. On March 17, 2003, on the eve of the Iraq War, he addressed the American people in a nationally televised speech that was also directed at Saddam Hussein’s army, as follows:“Do not destroy oil wells, a source of wealth that belongs to the Iraqi people. Do not obey any command to use weapons of mass destruction against anyone, including the Iraqi people. War crimes will be prosecuted. War criminals will be punished. And it will be no defense to say, ‘I was just following orders.’”

On June 26, 2003, Bush said that the United States was “committed to the worldwide elimination of torture” and promised to prosecute torture and to prevent “other cruel and unusual punishment.” His statement, issued on the United Nations International Day in Support of Victims of Torture, implied but did not use the term “war crime,” as there would be no point to prosecution unless he recognized the international crime of torture. That he would prosecute for cruelty meant that he recognized that anything close to torture was illegal under international law.

And during 2008, headlines in mainstream media used the words “war crimes.” New York Times reporters Eric Lichtblau and Scott Shane made reference to the FBI’s “War Crimes File” in their article published on May 20. But that file, which documents war crimes committed by the CIA, has never been made public. On June 7, the International Herald Tribune printed an Associated Press story in which the Committee on the Rights of the Child, an international body of experts formed by the Convention on the Rights of the Child, criticized the United States for “war crimes” against minors imprisoned at Guantánamo. On June 19 Scott Horton warned in a New Republic essay that European countries might try Bush administration officials for “war crimes.” Dan Froomkin, writing in the Washington Post on June 21, characterized former General Antonio Taguba’s objection to the abuse of prisoners at Abu Ghraib as “war crimes.”

But in 2009, the words “war crimes” are conspicuously absent from the public discourse. Although I have emailed several columnists to point out the absence of the term in their writing, none has responded. On May 1, 2009, a thirty-minute discussion on torture on the Bill Moyers Journal failed to use the term, though Bruce Fein pointed out that torture is a crime that warrants investigation and prosecution, while Mark Danner opined that the legal approach was a “dead end.”

Those who call for an investigation of torture forget that several Congressional committees have already investigated the subject. Some call for an independent blue-ribbon commission to do the same or for a special prosecutor to look into the matter of torture.

President Barack Obama has hinted that there will be no investigation and no prosecution of torture. But torture is only one crime. The legacy of the Bush administration is that at least 269 war crimes were committed, and President Barack Obama has not issued executive orders to stop other war crimes, many of which are ongoing. Until the term “war crimes” returns to the public discourse, the debate on torture will eventually become boring, citizens will be robbed of the knowledge of the immensity of war crimes violations, victims of war crimes are doomed to suffer, and perpetrators of war crimes will operate with impunity into the indefinite future.

Detailed memos area being released, and there is a clash of opinions on whether to convene a truth commission on torture or to prosecute certain individuals who are responsible for torture during the years of the administration of George W. Bush. Torture indeed is a crime under American and international law, but the focus on torture is now serving as a sideshow that obscures more important matters.

What could be more important than the torture meted out to perhaps a few hundred suspected terrorists? There are at least two answers. First of all, thousands of American soldiers and innocent civilians have died as a result of Bush’s decision to go to war in Iraq on the deliberately false pretext that Saddam Hussein possessed weapons of mass destruction. According to Vincent Bugliosi, the attorney who put Charles Mansson behind bars, Bush is guilty of their murder and should be prosecuted accordingly. Although Mansson was not at the scene of the murders, he was convicted for ordering others to commit homicide. Bush’s culpability falls into the same legal framework, according to Bugliosi, who has put forward his argument in The Prosecution of George W. Bush for Murder (2008) as well as before Congress during hearings in July 2008.

Moreover, some of those tortured have died from torture. Murders have also been committed because of improper medical care in American-run prisons. The number of deaths from both sources is somewhere between 20 and 100, but evidence is incomplete. Congress is not demanding to know the exact number, and the national campaign against torture has not demanded an investigation.

Another consideration is that thousands of children have been victims of Bush’s war crimes, but those focusing on torture forget that many children have been tortured. Inexplicably, the abuse of so many children has not caught the attention of those who seem mesmerized by lurid, X-rated details of torture. The following are some of the documented war crimes involving children:

• Incarceration of children in the same quarters as adults (WC#183)*
• Failure to provide educational & recreational programs for imprisoned children (WC#184,193)
• Withholding parental contact from child prisoners & failing to inform parents of the whereabouts of their children (WC#185,186,196)
• Refusal to allow child detainees to receive information (WC#187)
• Failure to protect child detainees from abuse, including rape (#188)
• Failure to provide social programs for child prisoners to deal with prison abuse, both while confined and afterward (WC#189,200)
• Failure to establish programs to prevent abuse of child prisoners (WC#190)
• Failure to investigate abuse of child prisoners (WC#191)
• Failure to prosecute prison personnel who abuse child prisoners (WC#192)
• Torture and Inhumane treatment of child detainees (WC#55,194)
• Indefinite detainment of children, including methods to force child prisoners to incriminate themselves (WC#195,203)
• Failure to allow child prisoners to have legal counsel and to inform them of charges against them (WC#197,202)
• Failure to provide an impartial tribunal and speedy trials for child prisoners (WC#198-199,201,204-205)

Many of the above war crimes are still taking place today. While some observers focus excessively on torture in the past, by default they direct attention away from war crimes against child prisoners, the murder of young Americans on the battlefield, and the innocent civilians in Afghanistan and Iraq who have died from “collateral damage.” The highest possible priority should be to stop ongoing war crimes as soon as possible, particularly those involving children. All prisoners who were captured as children should be released forthwith, whether at Bagram Air Force Base in Afghanistan or at Guantánamo. Children should be considered victims of war, not imprisoned as if they were war criminals, according to the Committee on the Rights of the Child, an international body of eminent experts on the subject.

Truth commissions, Congressional investigations, and prosecutions take time, and successful prosecutions for murder may be followed by more delays whenever judges and juries deliberate on the proper punishment for murder, which can include the death penalty. Meanwhile, the lives of innocents, including children, are in jeopardy now.

The debate on what to do about torture continues nevertheless. Many prominent Republicans support torture, and they will not be dissuaded by what they perceive as sanctimonious moralizing. They believe that the threat of torture may deter future attacks and that the practice of torture will yield information to stop attacks that are planned. If they are right, they will dig in their heels and oppose prosecutions. If their claims are proved wrong to the satisfaction of the opponents of torture, the same Republicans will discount the evidence. After five years of debate on the subject, the public remains divided, with Dick Cheney assuring Republicans that torture is needed to protect national security.

The best way to ensure that Republicans will break ranks and call for prosecution of war crimes (as they did against President Richard Nixon during the Watergate scandal) is to go beyond torutre to focus on child abuse. Few Republican men will defend child abuse and murder as necessary for national security. They certainly will not persuade Republican women that children, who are extremely unlikely to possess important intelligence, should be arrested, taken from their parents indefinitely, confined on flimsy pretexts, subjected to inhumane conditions, placed in indefinite solitary confinement, and subjected to beatings and torture just to please the fiendish desires of Dick Cheney, Sean Hannity, and Rush Limbaugh.

Once the door is open for a Congressional hearing or truth commission on child prisoners or for the prosecution of those who engaged in child abuse, the entire architecture of war crimes will unravel, since adults have been mistreated in a similar manner. President Barack Obama has taken the first step by agreeing at long last to sign the Convention on the Rights of the Child. Who will take the next step to save children from more abuse?

*War crime (WC) numbers correspond to the delineation in Michael Haas, George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes (2009)

There is a serious gap in President Barack Obama’s executive orders of January 22, 2009. One element of those orders was to bring Guantánamo into compliance with the Geneva Conventions by February 22, 2009. A second aspect was a review of interrogation and litigation procedures to be announced by July 22, 2009. A third aspect was an immediate halt to all legal proceedings at Guantánamo, pending a decision by July 22, 2009, on how to try those accused of war crimes. A fourth was a decision to close Guantánamo by January 22, 2010, by which time prisoners would be relocated.

However, the Pentagon’s February 22 report, written by Admiral Patrick M. Walsh, defied Obama by dealing only with Article 3 of the Geneva Conventions. Hundreds of articles in the Geneva Conventions were ignored, while prisoners at Guantánamo continue to be beaten and otherwise denied their rights. Either the author of the report, Walsh, should be fired for insubordination or a new executive order is needed to clarify that the military must comply with every one of the more than one hundred provisions of the Third Geneva Convention that deal with the treatment of prisoners (WC#43-205).*

Presumably there will be a Presidential Memorandum regarding acceptable interrogation procedures after the expected mid-year report. The current dialog over cruel and unusual procedures suggests that no extraordinary procedures will be allowed in the future. In the past, eleven war crimes violations occurred during interrogations (WC#50-60), of which torture was only one (WC#55).

A new executive order is expected on criminal procedures for trying prisoners accused of war crimes. Alternatively, the president could issue a Presidential Memorandum that criminal trials will take place in federal district courts under normal judicial procedures. Three “enemy combatants” not held at Guantanamo have already been tried in federal court. Juridical war crimes violations were perpetrated on the rest during the Bush administration (WC#117-160).

However, at least two other major executive orders remain unpromulgated. One is to apply the Geneva Conventions and related international agreements to those confined in American-run prisons within Afghanistan, notably Bagram Air Force Base, and to request a report on compliance. Limited information available on conditions at Bagram today reveals serious issues of noncompliance, notably the denial of juridical rights specified in the Geneva Conventions.

A second executive order is to require combat in Afghanistan, Iraq, and Pakistan to comply with the Geneva Conventions and related international agreements. When the war began in late 2001, General Tommy Franks ordered his troops to abide by the Geneva Conventions, but President George W. Bush later rescinded that requirement. Obama has not yet demanded that American troops must follow the rules of military warfare set forward in the Geneva Conventions, whether in American or North Atlantic Treaty Organization (NATO) units.

Meanwhile, countries in the NATO coalition that abide by Geneva Convention guidelines are reluctant to send more troops to join NATO. The forces of France, Germany, and other NATO countries would find themselves in conflict with the American military command in Afghanistan and Iraq whenever Geneva Convention violations were ordered by an American NATO commander.

Several violations have occurred since January 20, 2009, notably indiscriminate bombing of nonmilitary targets that have killed innocent civilians (WC#8,10,16,27,31,34,35,38), but others may continue so long as Obama fails to return the rules of combat to those observed by General Franks at the beginning of the Afghan War. The types of war crimes in the conduct of war that have not been declared illegal by Obama include attacks on prohibited targets (WC#7-17), use of prohibited weapons (WC#18-21), misconduct by soldiers in combat (WC#22-27), misconduct by commanding officers (WC#28-40), and the use of mercenary soldiers (WC#41-42).

Although attacks inside Pakistan have been approved neither by Congress nor the United Nations Security Council, they have the tacit approval of the government in Islamabad. Pakisan’s approval needs to be confirmed in writing lest military operations in Pakistan become the basis for war crimes relating to planning and waging aggressive war (WC#1,4-6).

The Geneva Conventions were originally inspired by guidelines supplied to military troops during the Civil War by President Abraham Lincoln. Over the years, those guidelines have been refined in American and international law. President Barack Obama has a responsibility to live up to the traditions of humane warfare for which the United States has been a pioneer. Otherwise, he will join Bush as a traitor to basic principles that once made America respected around the world.

*War crime (WC) numbers are based on the enumeration in Michael Haas, George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes (2009).

War crimes were inevitable because the Geneva Conventions were ignored by the Bush administration. After flaws in the memoranda of 2002 by Jay S. Bybee and John Yoo were well recognized by Bush’s Department of Justice, and the Supreme Court tried to rein in excesses in Hamdi v Rumsfeld (2004), more memos were written to justify violating Geneva Convention provisions by Steven G. Bradbury, while Principal Deputy Assistant Attorney General.

CIA Senior Deputy General Counsel John A. Rizzo asked Bradbury to comment on the legality of various “enhanced interrogation techniques” in May 2005. Bradbury’s opinions, which have just been released and repudiated by the Obama administration, provide further evidence of war crimes by the Bush administration.

Bradbury wrote three memos. One, dated May 10, was to reconcile individual interrogation techniques with the War Crimes Act. The second, issued on the same date, justified the use of several techniques in combination. The third memo, dated May 30, sought to assure the CIA that the various techniques, singly or in combination, did not violate the Convention Against Torture and Other Cruel, Degrading Treatment or Punishment or the Torture Victim Protection Act.

Twelve specific techniques were reviewed:  (1) dietary manipulation, (2) nudity, (3) grabbing, (4) pushing prisoners into a wall, (5) facial hold, (6) slapping the face and abdomen, (7) cramped confinement, (8) stress positions, (9) wall standing, (10) water dousing, (11) sleep deprivation, and (12) waterboarding. There were three stress positions: (a) sitting on the floor with legs extended straight out in front and arms raised above the head,  (b) kneeling on the floor while leaning back at a 45 degree angle, and (c) leaning against a wall generally about three feet away from the feet, with only the head touching the wall, while wrists are cuffed in front or behind the back. In wall standing, a prisoner is not permitted to move while standing about 4-5 feet from a wall, with his feet spread approximately to shoulder width and arms stretched out in front with .his fingers resting on the wall and supporting the body weight. The twelve techniques went beyond those in the Bybee memo of 2002 which Bradbury superseded.

Citing several court cases, Bradbury concluded that there were no violations of the law because the CIA followed various precautions associated with all twelve techniques. The safeguards were designed by medical and psychological personnel, some of whom were present during the administration of the techniques. Thereby, Bradbury was advising the CIA that no laws would be broken by harsh treatment being meted out to prisoners under its control. His nuanced memos had a scholarly appearance, referring to various court cases, but nonetheless ignored the Geneva Conventions as well as the following precedents:

·        Watts v Indiana, in which the court disallowed 6 days of repeated questioning in solitary confinement and confinement without advice of counsel or friends (Watts v Indiana)

·        Spano v New York, disallowing 8 hours of continuous questioning

·        Youngblood v Romero, disallowing bodily restraints

·        United States v Lee, disallowing waterboarding.

The mere fact that the CIA was holding prisoners secretly without appropriate legal due process should have alerted Bradbury to the following ongoing war crimes:

·        secret imprisonment (WC #118)

·        failure to advise prisoners of their rights under the Geneva Conventions, including the right to an attorney (WC#119,136,139)

·        denial of an attorney or the right of an attorney to visit them (WC#120,131,138,144)

·        failure to process prisoners by a competent, public tribunal to determine whether they should be incarcerated, notified of the charges against them, and then have the right to appeal (WC#123,142,143,145)

·        failure to post the Geneva Conventions for prisoners to read in their mother tongues (WC#127,128)

·        failure to disseminate Geneva Convention provisions to prison officials (WC#126)

·        failure to disclose publicly how prisoners are to be treated (WC#129).

The main war crime was Bradbury’s attempt to legally justify torture (WC#155).* Instead of writing the memo, he should have stopped the use of the various techniques in combination, which the International Red Cross had already characterized as “tantamount to torture” (WC#55). As a law enforcement official, he should have referred those engaging in torture for criminal prosecution. Failing to do so, meant that the following war crimes were violated:

·        failure to arrest and prosecute torturers (WC#156)

·        failure to investigate allegations of torture (WC#157

·        failure to cooperate in investigations and prosecutions of torturers (WC#158).

Bradbury should also have authorized compensation for those who were tortured. Failure to do so is yet another war crime (WC#159).

The effect of Bradbury’s memos was to authorize violations of the following war crimes, even though he knew that three prisoners had been waterboarded:

·        medical experiments on prisoners (WC#84)

·        violations of medical ethics (WC#98)

·        placing a wounded prisoner in a torture chamber rather than a medical facility (WC#76,90)

·        coercive techniques designed to force self-incrimination (WC#52,59,133)

·        close confinement (WC#65)

·        cruel treatment (WC#48)

·        unpleasant or disadvantageous treatment (WC#53)

·        reckless endangerment of health (WC#83).

Bradbury notes that Abu Zubaydah was waterboarded 83 times during August 2002 and Khalid Sheik Mohammed 138 times during March 2003. Rather than raising a red flag for such excesses, Bradbury made them paradigm cases to guide future secret interrogation, which stopped after Hamdan v Rumsfeld (2006).

That an official of the United States government could attempt a cold, calculating evaluation of the fine line between legality and illegal torture means that he accepted the concept of legal torture. The detailed description of each technique, which would clearly satisfy Hannah Arendt’s notion of the banality of evil, appeared to be instructions to sexual sadomasochists more than writing from the pen of someone sworn to uphold the Constitution of the United States.

Thus far, Steven G. Bradbury had escaped the attention from those who had been calling for accountability for the war crimes of the Bush administration. Now he has achieved notorious notoriety.

*War Crime (WC) numbers are based on the delineation in Michael Haas, George W.  Bush, War Criminal: The Bush Administration’s Liability for 269 War Crimes (2009).