Whither Guantanamo?

Attorney General Eric Holder told the European Parliament in September 2011 that he would try to close Guantanamo by Election Day 2012 or at least by the end of the year. How he would do so was not specified, but ten suggestions appear below.

First, however, it is useful to recall that when the Afghan War began, General Tommy Franks ordered compliance with the Geneva Conventions on October 17, 2001. On November 13 he was countermanded by an executive order in the form of a military order from President George W. Bush regarding prisoners who were then being collected, though no specific mention was made of the Geneva Conventions. When the first prisoners arrived at the Naval Base on January 11, 2002, the commanding general, Brigadier General Rick Baccus, ordered compliance with the Geneva Conventions. His order was then rescinded on February 7 by another executive order signed by George W. Bush making specific reference to the inapplicability of the Geneva Conventions of 1949 but not the 1929 Geneva Convention.

Despite Baccus’s initial attempt at compliance, the world viewed blindfolded, bound prisoners on their knees wearing orange jumpsuits together behind barbed wire. The photo, which has flashed across screens many times, already suggested six Geneva Convention violations:

• inhuman treatment (Article 3 of both the 1929 and 1949 treaties)
• humiliating and degrading treatment (Article 3 of both the 1929 and 1949 treaties)
• cruel treatment (Article 3 of the 1949 treaty; Article 46 of the 1929 treaty)
• close confinement (Article 21 of the 1949 treaty; Article 9 of the 1929 treaty)
• public display of prisoners (Article 13 of the 1949 treaty; Article 2 of the 1929 treaty)
• deprivation of personal property (Article 18 of the 1949 treaty; Article 6 of the 1929 treaty)

It was not the stalag of Hogan’s Heroes!

According to Human Rights First, some 779 prisoners have been housed at Guantánamo over the years. Today, there are 174. Of the 605 no longer at Gitmo, most were sent home or to countries that received them as refugees. Eight have died at Gitmo, 4 of whom were considered suicides, though some may in fact have been murdered. One, who pled guilty, is back home in Australia. Another, who was convicted, was sent back to Yemen.

Three others, who have been prosecuted, remain as prisoners at Gitmo, making the facility a penitentiary, contrary to Article 56 of the Geneva Convention of 1929 and Article 22 of the Third Geneva Convention of 1949.

Today, the following categories of prisoners remain:

• 3 confessed or convicted prisoners who may never be released
• 5 temporary detainees (Uighurs from China who await resettlement)
• 84 conditional detainees (30 Yemenis, who want to go home, are held due to instability there but are otherwise cleared for release)
• 46 dangerous prisoners who will not be prosecuted because of “tainted” evidence
• 36 prosecutable prisoners, some for civilian offenses.

I envision ten options:

Resettlement in the United States. Seventeen dissidents from Western China, the Uighurs held at Gitmo, could easily be accommodated with their brethren in Virginia. They were wrongly imprisoned, as they have no animosity toward the United States and instead oppose repression of Uighurs inside China. Yet in 2009 President Obama refused to accept a court order for their release to the Mainland United States, deferring to Congressional opposition.

Transfer to foreign countries. Congress currently allows transfer of prisoners cleared for release to settle abroad, provided that the Secretaries of Defense and State stipulate that the host countries meet specific strategic requirements.

Transfer to the UN refugee authority. Part of Guantánamo now serves as a refugee camp. The 89 prisoners already approved for transfer are technically “refugees,” since they reside neither in their home country nor in a country that will accept them as residents, and they hope to leave soon. The Geneva-based UN High Commissioner for Refugees could be asked to handle those already cleared for release. If sent to Geneva, Congressional strategic requirements could easily be met. Existing UN refugee camps, however, may offer inferior accommodations.

Join the International Criminal Court. If the United States joins the International Criminal Court (ICC), those with prosecutable offenses might be sent to The Hague for trial. However, the Senate must first be persuaded to ratify the ICC treaty, and that seems unlikely at present, as that would open the door to prosecution of George W. Bush and company. However, a country that has ratified the ICC treaty might bring such a case.

Return prisoners to Afghanistan. Those held at Guantánamo who were engaged in active combat when picked up should have remained under military detention in that country. To conform to Geneva Convention requirements, they should be sent back. The UN Security Council, which annually approves of the Afghan War, aiming to stabilize the country, might address their resettlement. The United States is building a new prison facility in Afghanistan today, possibly to accommodate those now at Guantanamo.

Trials in civilian courts. Some prosecutable prisoners at Guantánamo are accused of various crimes related and unrelated to air piracy and murder on 9/11, offenses that are appropriate for civilian courts, as they are criminal offenses. The International Covenant on Civil and Political Rights requires a civilian trial for at least some of them. Federal courts have already successfully prosecuted some 400 similar cases, only one of which (Ahmed Ghalani) was housed for a time at Guantánamo. On May 21, 2009, President Barack Obama declared that civilian trials were appropriate in many cases, and Attorney General Eric Holder as recently as June 16, 2011, expressed a preference to try all terrorists in civilian courts, but he has lost a turf battle with Congress. Political leaders in New York objected to the cost of providing security for a high-profile trial in Manhattan of those charged with 9/11 offenses, so there must be a change of venue. Security can be handled more economically around federal courts in Fargo, Grand Forks, or Minot, North Dakota, and elsewhere. Jury trials could then have defendants present through videoconference if not in person. If prosecution witnesses are called upon to confront defendants directly, they can be flown to Gitmo for that purpose.

Trials by military courts. “Dangerous prisoners,” who might be exonerated if put on trial because of tainted evidence could nevertheless be put on trial anyway. Juries are unpredictable. If they are found guilty, they would be locked up. If they are found not guilty, they can be released, subject to current Congressional restrictions. And if they subsequently become terrorists, they can be tracked down, arrested, and tried in a manner similar to criminals released from American prisons who re-offend by committing arson, murder, or rape. Given the vast counterterrorism network that has been erected since 9/11, only cowards would fear a few more terrorists on the loose today.

Confinement in federal prisons. If convicted in civilian or military trials, the prisoners could be sent to prisons in Terre Haute, Indiana, where suspected terrorists are already held in federal prisons. Or to the Supermax prison in southern Colorado, which houses convicted terrorists. For that matter, all prisoners could be sent either place.

Reassignment to other venues. Gitmo is not the only possible venue. Prisoners could be split up and sent to military bases elsewhere in the United States or its territories, such as Anderson Air Force Base on Guam, which was originally considered. Midway Island, St. Thomas, Virgin Islands, and Wake Island are also possible. Although such transfers might be perceived as shellgames, at least Guantánamo would be closed, once and for all.

Assertion of executive authority. Attorney General Eric Holder and President Barack Obama could ignore Congressional meddling in the implementation of operations by the executive branch of government regarding Guantánamo. The constitutional separation of powers gives the executive branch full responsibility over the disposition of prisoners under the control of the national government. But Congress, which did not arrest them, has set administrative rules for handling them, thereby pretending to exercise a legislative veto over acts of the executive branch. Obama threatened a veto in 2011 for having the legislative branch interfere with executive authority, in effect making those at Gitmo prisoners of Congress. Indeed, Congressional laws on the subject nearly amount to passage of a Bill of Attainder, that is, an attempt to impose a sentence on prisoners by legislative means. According to former Chief Justice William Rehnquist, those who wrote the Constitution had experience with the English practice of “a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial” and therefore prohibited bills of attainder in the Constitution.

Guantanamo could close very soon, but President Barack Obama and Attorney General Eric Holder would have to act with more determination.

Torture is considered a violation of inherent human rights, with the United Nations declaring it one of the most damaging violations known. Despite the international stance in opposition, torture still continues to be practiced in many countries around the world. As an official response, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment was adopted by member states, which then required to pass anti-torture laws. Unfortunately, only countries affiliated with the UN are covered by the treaty.

The UN defines “torture” as any action against another that causes severe physical and mental suffering and is inflicted purposely on a person for such reasons as obtaining a confession or information. Types of torture include sleep deprivation, physical attacks, exploitation of fears, mock executions, rape, simulated drowning, isolation, and sensory deprivation.

Victims of torture usually suffer lasting psychological trauma afterward, most often in the form of the anxiety disorder known as post-traumatic stress disorder (PTSD). Symptoms of PTSD may include flashbacks and nightmares of the event, depression, detachment and emotional avoidance, depression, hypervigilance, trouble sleeping, and increased nervousness. Whereas some victims of torture experience PTSD, Dr. Ibrahim Kira’s research shows that some torture victims actually prove to be better at coping with difficulties than victims of other types of trauma. Unfortunately, post-torture resilience may not last, as victims can handle only so many traumas before exceeding a threshold. Then any additional trauma will bring to the forefront previous traumas, resulting in more severe symptoms. His study also shows that some torture victims had better attitudes concerning recovery from the physical symptoms of torture, were less anxious, had fewer violent tendencies, and were better adjusted socially and culturally.

For torture victims, acknowledgment and acceptance of the event is usually the place to start in returning to normality. Having a strong support system or joining a support group with those having similar experiences may also help. However, the most important step a victim can take is to promptly seek psychological help from a trained professional, especially one qualified to treat PTSD. One method of treatment, desensitization, has the victim remember the traumatic event and share any associated feelings. This kind of repeated exposure helps to lessen feelings of anxiety and fear over time. Medication can be prescribed to curb depression, if necessary.

The psychological effects of torture aren’t limited to the victims, as research has shown that the people who commit acts of torture may experience similar effects. While the effect of torture on victims is well-known, little is said about the psychological effects on the person committing the torture. Dr. Richard Kulka, who studied readjustment among Vietnam veterans, discovered that acts of torture committed by soldiers strongly correlated with their development of PTSD, even more so than the effects of battle alone. Soldiers who engaged in torture, he found, had no history of abuse, nor were they abused as children.

Lara Battles, a psychologist who treated a member of a US military unit responsible for torturing Iraqi prisoners, claims that it’s hard for soldiers to live with what they’ve done, even if it was ordered. Many experience a distorted concept of correctness and question their ability to distinguish moral from immoral. However, not all perpetrators of torture experience psychological trauma. Those who feel no guilt for the abuses they committed rarely experience negative effects. But those who feel an abundance of guilt almost certainly will suffer psychological consequences.

Torture is a gross violation of human rights. Compensation for victims is required by international law.  The United Nations encourages torture victims to find relief from their distress and attempt rehabilitation through a fund that was established especially for these purposes. Obtaining grants for torture victims takes priority so that these victims can receive appropriate medical and psychological care, along with any legal and monetary assistance required. Notably, David Hicks, an Australian terrorist who was detained in Guantanamo Bay and later authored Guantanamo, is seeking reparations for inhumane treatment. He claims that he confessed to terror charges in order to get a ticket home. The UN also provides funds for training health professionals to engage in post-torture therapy.

Victims of torture can endure intense emotional anguish for the rest of their lives. Although the United Nations and human rights organizations protest human rights violations, yet not every country complies. Until the movement against torture garners more support in the international community, no one can be safe from the possibility that they will be tortured some day.

Essay by Allison Gamble

Three former prisoners have received compensation for their ordeal at the hands of torture approved by the United States. But their payments have been from Australia, Britain, and Canada—not the United States. Nevertheless, claims have been filed in American courts as well as courts of other nations, and several cases are pending today.

Cases Filed in American Courts

• Khaled El-Masri, a German of Lebanese ancestry, filed a claim for compensation for his capture, extraordinary rendition, and torture. The American government later admitted its mistake. El-Masri v Tenet was filed in 2005, changed to El-Masri v United States on appeal, but was finally dismissed in 2007 on grounds of national security—that “state secrets” would have to be disclosed. However, the case was under investigation by a grand jury in mid-2011.
• Maher Arar, due to incorrect information, was whisked out of an American airport in 2002 under the extraordinary detention program and tortured. Released in the following year, he filed a claim in 2004 for compensation (Arar v Ashcroft), which was denied on “state secrets” grounds; the final appeal was in 2009. A Syrian-born Canadian, the Ottawa government paid him compensation for its role in supplying the incorrect information to American authorities.
• Rasul v Rumsfeld was filed in 2004 on behalf of four former Gitmo inmates, alleging torture. The case was later dismissed.
• 30 of 200 lawsuits filed by the Society of Victims of the U.S. Occupation in Iraq were accepted by federal courts by the end of 2008. The 200 were filed in Maryland, Michigan, and Virginia, but no follow-up information has appeared.
• Mohamed v Jeppesen involved five former Gitmo prisoners, one of whom (Binyam Mohamed) had his penis slashed three times while in custody in Morocco because of the Bush-era practice known as extraordinary rendition. Although Mohamed, a British citizen of Ethiopian ancestry, received compensation from Britain for its role in the matter, the Obama administration invoked “national security” to quash the case, arguing that a trial would have to reveal “state secrets” regarding how the extraordinary rendition was carried out. The final appeal was denied in May 2011.
• Al-Zahrani v Rumsfeld is filed on behalf of the family of two Gitmo prisoners who died under suspicious circumstances in 2006. Rumsfeld and other officials are accused of abuse, wrongful detention, and murder. The district court dismissed the case on grounds of “state secrets,” but in 2011 the case was on appeal.
• Saleh v Caci, filed on behalf of 26 prisoners abused at Abu Ghraib (beatings, sexual humiliation, exposure to extreme temperatures, rape), was dismissed in June 2011.
• Janko v United States was filed after his release in 2009, accusing officials of both the Bush and Obama administrations of beatings, harsh interrogation, sleep deprivation, torture, urination upon him.
• Vance v Rumsfeld was filed in a Chicago federal court during 2006 by two American contract workers, who seek unspecified damages for their detention at Camp Cropper, Iraq, after whistleblowing on financial irregularities of their contractor. While at Camp Cropper, they were repeatedly interrogated for long hours by unidentified military personnel, who used coercive methods, mentally and physically, including “walling,” that is, walked into walls while blindfolded. They were denied the right to counsel. Fluorescent lights were turned on continuously, and heavy metal or country music blared in the corridor most of the time. To further deprive them of sleep, they were awakened at random times and ordered to stand in their cold cells (with temperatures in the 50s). They tried to sleep in 9×9-foot cells on worn 3” foam mats on concrete slabs. The suit alleges that they were tortured and otherwise treated in a manner authorized by Rumsfeld, including false arrest, denial of property without due process, unlawful detention, unlawful search and seizure, denial of right to counsel in interrogations, coerced statements, denial of Sixth Amendment right to counsel, denial of right to confront adverse witnesses, denial of right to present witnesses and evidence, and to have exculpatory evidence disclosed, unlawful conditions of detention, denial of necessary medical care. Although Rumsfeld tried to have the case dismissed, his motion was denied, and the case is currently in preparation for trial.
• Rumsfeld is being sued by another former military contractor, whose identity has been withheld. He was subjected to the same treatment at Camp Cropper.

Cases Filed in Courts Outside the United States

• A Guantánamo prisoner of British nationality filed Abbasi v Secretary of State with a British court in 2002 to ask the British government to act on his behalf, but his motion was rejected because the court cited lack of jurisdiction.
• Three cases were filed in Belgium during 2003 regarding damages resulting from the wars in Afghanistan and Iraq, not Guantánamo. One, charging General Tommy Franks, specifically referred to injuries from cluster bombs. All three were later dismissed
• Cases against the United States were filed in German courts in 2004 and 2006 on behalf of four victims of torture. Filed against Donald Rumsfeld, George Tenet, and ten others. They were both dismissed.
• As soon as he was sent home to Australia from Guantánamo in 2005, Mamdouh Habib pressed the Canberra government for compensation. He received a payment in 2011 with which he plans to sue Egypt and the United States over his torture.
• A criminal case was filed in Argentina in 2005 regarding torture at Gitmo. No further information on the case has been reported.
• A criminal case was filed in Sweden in 2007 on behalf of a former Gitmo prisoner who was tortured. No progress on the case has been reported.
• After Donald Rumsfeld had resigned as Secretary of Defense, he flew to Paris in 2007 to give a talk. Upon arrival in France, a summons was issued to take him into custody because an unidentified former Gitmo inmate had complained in 2007. Rumsfeld fled to Germany and then back to the United State to avoid arrest. The complaint was dismissed three weeks later.
• In 2008, a case was filed with the Inter-American Commission on Human Rights, asking the United States to admit responsibility for the wrongful detention of Khaled El-Masri. Compensation, not requested, is implied. The case is now El-Masri v Obama.
• Djamel Ameziane, now held at Guantánamo, filed a similar case (now Ameziane v Obama) with the Inter-American Commission on Human Rights in August 2008. An Algerian, testimony before the Commission on October 29, 2010, alleged that his continued detention is unlawful, and included his request for a Latin American country to host him as a refugee, since he fears torture if returned to his homeland. Release from Gitmo might also mean a later request for compensation.
• Poland opened an investigation in September 2008 on the use of facility in its borders by American officials for purposes of extraordinary rendition and torture of Abu Zubaydah, who is currently detained at Guantánamo. The American government is not cooperating with the investigation.
• In 2009, Baltazar Garzón, a judge in Madrid, began investigating the case of Lahcen Ikassrien, a Moroccan-born citizen of Spain, who claims that he was tortured in Guantánamo. Three others are involved in the case. Although Garzón was removed from the case for an unrelated reason, the case was reassigned to another judge and is still pending.
• In 2009, Eloy Velasco, another Spanish judge, decided to look into a suit against Alberto Gonzales and five other Bush-era officials for authorizing torture at Gitmo. The suit was referred to the U.S. Department of Justice in April 2011, but that ruling is on appeal.
• On November 5, 2009, a Lithuanian parliamentary investigation committee investigated allegations that Lithuanian officials were involved in an American extraordinary rendition, including torture. The inquiry did not result in a lawsuit, and the investigation was later dropped.
• On November 29, 2010, Karim Khan’s lawyer revealed plans to sue the United States in a Pakistani court for killing his relatives in drone attacks during 2009. There has been no press confirmation that a case has been filed.
• In 2010, the Danish Justice Ministry rejected a case filed by Slimane Abderrahman, who had been held at Gitmo.
• Khaled El-Masri filed a compensation claim in February 2011 against the government of Macedonia, which turned him over to American officials for extraordinary rendition.
• Two former Gitmo inmates filed a case against Bush in Switzerland during February 2011. Bush cancelled his scheduled trip to the country as a result.
• Algerian-born Saber Lahmar alleges that he was tortured at Gitmo. The case was filed in France during May 2011.
• Abd Al-Rahim Al-Nashiri, now held at Guantánamo, has been granted “victim status” in a case filed in Poland during May 2011 for his torture while incarcerated in a secret prison in the country.
• Two cases have been filed in Pakistan. One is by Sadaullah, who lost both his legs and three relatives in a drone attack in September 7, 2009. The other is by Kareem Khan over a strike on December 31, 2009, which killed his son and brother in the village of Machi Khel in North Waziristan. In both cases, the defendant is John Rizzo, until recently acting general counsel for the Central Intelligence Agency, who has publicly admitted approving drone attacks. The two plaintiffs are being represented by Clive Stafford Smith, famous author of a book on mistreatment of prisoners at Guantanamo.

Al-Qaeda’s dissatisfaction with the United States has been based on foreign policy differences, as ably documented in Michael Scheuer’s recent book Osama Bin Laden (Oxford University Press, 2011) and many other sources. A major aspect of that disapproval has been over the presence of American military forces in countries with Muslim majorities.

Accordingly, the details of the death of Osama Bin Laden (OBL) are important in assessing what Al-Qaeda will do next. The iconic Osama Bin Laden is dead, but Al-Qaeda’s cause remains because American foreign policy has not fundamentally changed.

There are two aspects of the raid that produced OBL’s death—what happened and the legal grounds for the operation.

The details of the raid are still incomplete. Did the Seals ask for the surrender of the inhabitants of the compound before opening fire? Could the operation have been conducted without any deaths? Exactly who died and who survived the raid? Were innocent civilians killed? Was an unarmed Osama Bin Laden killed?

Reports state that there were at least 22 in the compound, but there was no advance assurance that Osama Bin Laden was inside. President Barack Obama says that he preferred to capture OBL alive. Most in the residence stood out of the way or surrendered and had zip ties applied to their wrists. Aside from OBL, four were killed. OBL, who vowed never to be taken alive, was unarmed and did not put up a fight. The Seals were ordered to capture him alive only if there was evidence that he did not have access to ordnance—for example, if he were naked.

On the flimsy pretext that no country would agree to give him a decent burial, OBL was then dumped into the waters near the where U.S.S. Cole was attacked in 2000. The U.S. military claims that the burial was in accordance with Muslim requirements, though no neutral party was present to affirm what they did.

In 1998, OBL had been secretly indicted for conspiracy to attack the American defense installation in Mogadishu, Somalia, during 1993. Now that indictment will be quashed.

What is the legal basis for a foreign military force to enter a civilian home? Was the raid an example of extrajudicial execution or the exercise of the right of reprisal?

Under customary international law, the right of reprisal gives every country a right to respond to another country’s unprovoked attack. The unprovoked attack on 9/11 violated the Convention for the Suppression of Unlawful Seizure of Aircraft of 1970 and an American law with provisions implementing the treaty. Both Pakistan and the United States have ratified the treaty.

The treaty obligated Pakistan to take action to arrest OBL and any others responsible for 9/11. Pakistan did indeed capture some of those responsible and turned them over to the United States, which in turn imprisoned them at Guantánamo. But Pakistan did not take OBL into custody.

Action under the treaty and the law does not include a right of military reprisal for air piracy. That may be why the 9/11 attack was elevated by President George W. Bush into a “war on terror,” since what was interpreted as an unprovoked military attack was used to sanction military retaliation against Afghanistan. President Barack Obama continued to avoid the term “war” until May 1, 2011, when he defined his policy as a more limited “war on Al-Qaeda.”

Any reprisal under customary international law must be proportionate to the initial attack, so the war waged against the entire country of Afghanistan, including support for one side in what became a civil war, was initially illegal. More proportionate was a limited American aerial attack on Libya during 1988 in response to Colonel Muammar Khaddafi’s complicity in the bombing of a discotheque in Berlin during 1986, as evidenced by his refusal to surrender those responsible inside Libya’s embassy in East Germany for the attack.

The illegality of the American war in Afghanistan ended on December 20, 2001, when the UN Security Council approved of the presence of NATO forces to stabilize the new Afghan government. Ever since, the UN Security Council has approved the presence of foreign military forces to support the government in Afghanistan, though their actions are limited by international human rights guidelines.

International law from 1648 has recognized the right of rescue. That is, a country may intervene in another country to rescue its nationals from danger, such as Israel’s Entebbe Raid of 1976. The 1970 treaty against air piracy authorizes extradition of those complicit with the hijacking of aircraft, but the United States never requested OBL’s extradition from Pakistan. Washington neither requested arbitration nor went to the International Court of Justice to hold Pakistan accountable, actions that the United States could have taken in accordance with the provisions of the 1970 treaty.

The 1970 treaty authorizes capture and trial of those involved in carrying out and plotting air piracy. A raid against Osama Bin Laden’s residence, thus, might be seen as a proportionate form of reprisal for the 9/11 attack or as consistent with the terms of the 1970 treaty. But there is no legal precedent for an armed military unit of country #1 to enter country #2 to arrest those responsible for conspiracy to engage in air piracy in order to murder civilians in country #1. In 1989, American military captured President Manuel Noriega in the midst of an invasion of Panamá and flew him back to Miami for trial, but that was in the context of war, and he was charged with offenses other than air piracy.

Based on the principle of universal jurisdiction, the capture of Adolf Eichmann in Argentina involved a raid by Israel that might have been similar to the events of May 1, 2011, but only if Osama Bin Laden had been rounded up for trial. Instead, the leader of Al-Qaeda was shot and killed during the raid. However, may we conclude that Osama Bin Laden was the victim of extrajudicial execution, which is contrary to Articles 6 and 14(2) of the International Covenant on Civil and Political Rights? That’s why the details of the raid within the compound in Pakistan are important in vindicating the American unilateral action.

Current accounts of the half-hour incident, which took place after 2 a.m., are in conflict over exactly how OBL was killed. Evidently one of his wives rushed toward an armed American soldier, provoking him to shoot her, whereupon shots were fired, and she was hit in the leg. OBL, who after standing in his bedroom hallway to view the unexpected intruders, went back to his bedroom, an act interpreted as non-surrender, with the possibility that he was going for a weapon inside his bed chamber. He was gunned down as he retreated.

The other deaths were of one of OBL‘s brothers, a son, an unidentified woman, and a courier. How they died is uncertain. The courier, who lived in a guesthouse, reportedly opened fire, whereupon the Seals shot and killed him along with the unidentified woman.

Going to the main house, the Seals evidently shot their way up from the ground to the third floor. The brother, with hands behind his back as if he were about to reach for a weapon, was immediately targeted and killed on the first floor. The son, unarmed, charged them as they were ascending, whereupon he was shot dead. OBL, initially sleeping in his bedclothes, was never given the order to surrender or to strip naked, to prove that he did not have a bomb or other lethal device on his person. He was therefore killed on suspicion that he had access to a hidden weapon. Al-Qaeda can now claim that his death was an example of extrajudicial execution. Police would have handled the situation more professionally.

Pakistan investigators report that none in the residential compound opened fire, so they claim that some deaths were murder.

With martyred Osama Bin Laden out of the picture, Al-Qaeda may now justify terror attacks on the United States on new grounds. That American authorities are redoubling efforts to anticipate retaliation from Al-Qaeda suggests that they are aware of the possibility of reprisal, though of course Al-Qaeda may not claim that right under international law because it is not a sovereign state.

The death of Osama Bin Laden has resulted in much rejoicing within the United States and around the world. But the continuation of policies by the United States to which OBL objected, including war crimes on battlefields as well as at Guantánamo, ensures that militant opposition will continue.

To forestall retaliation by jihadists, withdrawal of American troops from Afghanistan and the closure of Guantánamo might now serve as condign signals to the world. President Barack Obama has claimed that war on the Taliban is necessary to prevent Al-Qaeda from returning to a safe haven in Afghanistan. Now, with Al-Qaeda’s leader dead, that justification rings hollow, even to Republican Senator Dick Lugar, who sees little strategic value in the war.

Is the world safer now that Osama Bin Laden is dead? Time alone will tell.

According to the Convention on Duties and Rights of States in the Event of Civil Strife of 1928, countries must be neutral in civil wars. However, Article 42 of the UN Charter empowers the Security Council to authorize “action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” 

Vietnam’s intervention in Cambodia in 1978, which drove the Khmer Rouge from power, was justified by Hanoi as “humanitarian intervention.” Legal scholar Gary Klintworth agreed in an official Australian government publication, but the UN and the United States did not.

In Nicaragua v United States (1986), the International Court of Justice ruled that humanitarian intervention in a civil war was justified “to protect life and health and to ensure the respect of persons.” In so doing, the court rejected the mining of a Nicaraguan harbor in 1984 by the United States as justifiable. In other words, that action was identified as a war crime, and the ruling implicitly accepted Vietnam’s claim.

In 1994, the world community failed to stop preventable genocide in Rwanda. Accordingly, legal scholars developed the concept of “responsibility to protect” so that there would be a clearer basis for intervention in internal conflicts within the corpus of international law. That concept was finally endorsed by the United Nations in 2009.

The concepts of international humanitarian intervention and “responsibility to protect” are not settled in international law, as one relies on the abovementioned court decision and the latter on UN General Assembly Resolution 63/308, not a treaty.

Security Council Resolutions 1970 (unanimously adopted) and 1973 (adopted by a majority without a veto) make no specific claim that Libya has failed to maintain international peace and security. Instead, the resolutions imply that the civil strife has been internationalized because (a) refugees are fleeing to neighboring countries, (b) civilian Libyans and civilians in Libya from outside countries have been placed in jeopardy by military actions of the Libyan government. The latter condition, in turn, enabled the Security Council to invoke the Rome Statute of the International Criminal Court as grounds for demanding the arrest and trial of Colonel Al-Qadhafi and others who have violated international humanitarian law.

Now that military operations have begun in accordance with limited goals set forth in Resolution 1973, questions have arisen whether the actions exceed the UNSC authorization. UNSC has the authority to monitor such excesses if indeed they constitute war crimes.

In other words, the action in Libya may serve as a precedent that the “responsibility to protect” empowers the UN Security Council to act in a manner similar to Resolution 1973 in future situations, such as when the Burmese government slaughters peaceful protests by monks if joined by foreigners.

Thus, a lot is at stake for the future of the international system in the situation within Libya today. Predictions about the outcome cannot be made with certainty.

The number one cause of recent terrorist attacks on the shores of the United States is that the CIA is committing war crimes abroad (extrajudicial executions from drone attacks in Afghanistan, Pakistan, and Yemen). Terrorists are acting in retaliation and specifically attest that they are acting because of American war crimes. American war crimes are well known throughout the rest of the world.

Americans are ignorant of war crimes. That ignorance is the main reason why war crimes are occurring today, since you cannot protest war crimes until you know what they are. Those who know about 200+ war crimes, some of which are worse than torture, can more effectively work to stop war crimes. 

That’s why you MUST buy both George W. Bush, War Criminal? (2009) and its sequel America’s War Crimes Quagmire, From Bush to Obama (2010). When you realize that 269 different war crimes have occurred, most of which are still taking place, you are empowered to protect America from future attacks by demanding that war crimes must stop.

Now you have an opportunity to get informed, put pressure, stop American war crimes, and stop terrorist attacks. If you fail to do so, you are not defending your country and you are not carrying on the American tradition of making the world a better place.

Michael Haas’s George W. Bush, War Criminal? The Bush Administration’s Liability for 269 War Crimes was published a few days before Barack Obama took the oath of office. Torture, murder, illegal war, the slaughter of thousands of innocents, abuse of child prisoners—these are only a few of 269 war crimes committed during the Bush administration that rolled over to the Obama administration on January 20, 2009, to haunt his presidency. The book has the distinction of having inspired a protest in front of the New York Times building because the venerable newspaper refused to publish a review soon after its release.

Although President Obama signed executive orders to stop torture and close Guantánamo, the war crimes have continued virtually unabated ever since. Indeed, the Times Square bomber specifically cited American war crimes as the reason for his action on May 1, 2010.

Newly published America’s War Crimes Quagmire, From Bush to Obama identifies how the war crimes of the Bush administration have continued to be documented by the press while politicians and pundits have withheld criticisms. The book consists of forty-seven essays that were originally blogs on the website www.USwarcrimes.com. Essays are edited appropriately, with occasional postscripts to bring the narrative up to date.

America’s War Crimes Quagmire, From Bush to Obama concludes that war crimes continue because American leaders have only focused on torture, thereby allowing thousands of victims of more than two hundred other war crimes to suffer. Instead, the term “war crimes” is taboo in the United States. And although some Americans have called for prosecution of war criminals, cries from overseas victims have been muffled. Yet the rest of the world, in contrast, is fully aware of American lawlessness.

The book also identifies how the Georgian republic, Russia, and other countries have copied American post-9/11 war crimes. As a result, there is a new era of international barbarism that serves to aid anti-American terrorist recruitment while repudiating the advances achieved in humanizing warfare by President Abraham Lincoln during the Civil War, by the Red Cross, at the Hague Conventions, at the Nuremberg War Crimes Trials, and by the Geneva Conventions.

The author, Michael Haas, is a Nobel Peace Prize nominee for his work on behalf of human rights. An academic political scientist, he has taught at Northwestern University, Loyola Marymount University, Occidental College, Purdue University, Stanford University, the University of California (Riverside), the University of Hawai‘i, the University of London, and six campuses of California State University, most recently California Polytechnic University (Pomona).

The 278-page book, available for $25 (including postage and handling) per domestic copy and $30 for international purchase, can be ordered by sending a check or money order payable to “Publishinghouse for Scholars,” P.O. Box 461267, Los Angeles, CA 90046. The book has an extensive set of references, and a comprehensive index.  

If Robert Jackson, prosecutor at Nuremberg, were alive today, here is doubtless what he would say about America’s War Crimes Quagmire, From Bush to Obama: “The real complaining party is Civilization. International law, a struggling and imperfect force, points to the sequence of aggressions and war crimes and to the greater potentialities for destruction elsewhere in the days to come. It is not necessary to argue the proposition that to start or wage an aggressive war has the moral qualities of the worst of crimes. The refuge of the defendants can be only their hope that international law will lag so far behind the moral sense of mankind that conduct which is crime in the moral sense must be regarded as innocent in law.”

Time will tell. America’s War Crimes Quagmire, From Bush to Obama promises to serve as the most recent clarion call of our time.

For years, President Hamid Karzai has wanted to give amnesty to members of the Taliban in order to stabilize his country. Currently, he continues to do so, and the American military in Afghanistan is following suit.

Within Afghanistan, the term “Taliban” is code for a loose collection of outright gangsters, former members of the Taliban government now in Karzai’s government, jihadists eager to unseat Karzai, warlords who prefer to control their own region rather than ceding control to Karzai’s corrupt government, and others controlling provinces where Karzai is unpopular.

The United Nations supports the goal of stabilizing the Afghan government and thereby endorses the presence of North Atlantic Treaty Organization (NATO) forces, which are pledged to do so. President Barack Obama has never told the American people that its military presence is pursuant to a UN mandate. Instead, Obama has made clear that American troops are in Afghanistan to root out both Al Qaeda and the Taliban, since they are allied. To provide a legal basis for current American military operations in Afghanistan, Obama relies on the Authorization of the Use of Military Force (AUMF) resolution, passed by Congress in 2001.

Meanwhile, Al Qaeda has funded the Taliban in Pakistan to undermine the government in Islamabad. Pakistan claims to be capable of handling the threat, so the UN has not been asked to support military efforts to rid Pakistan of either Al Qaeda or the Taliban. And Congress has never been asked to provide a legal basis for American military action inside Pakistan. Instead, Obama has implicitly invoked AUWF.

When Faisal Shahzad plotted to put a car bomb in Times Square on May 1, some evidence suggests that he was doing so in retaliation. Why? For what?

The apparent answer is retaliation for deaths of hundreds of innocent civilians in Pakistan from drone attacks by the United States.

While George W Bush was president, American drone strikes were taking place in the tribal zones of Pakistan. Some Al Qaeda residences were targeted, but many civilians died in the raids. As reported by a British journalist on May 8, 2010, Shahzad told a Connecticut neighbor in 2008, “They shouldn’t be shooting people from the sky. You know, they should come down and fight.”

Aerial murders of persons outside battlefields are contrary to international law because they are “extrajudicial executions.” Shahzad explicitly accused Bush of being a “war criminal.”

While campaigning for president, Obama pledged that he would authorize military force inside Pakistan if Islamabad were unwilling to hunt down Al Qaeda hiding in Pakistan. Recently, the Pakistani army has been hunting down Al Qaeda and the Taliban on the ground. After becoming president, however, Obama authorized a major increase in aerial attacks inside Pakistan on both Al Qaeda and the Taliban. As a result of faulty CIA intelligence, the United States has again been responsible for murdering hundreds of innocent civilians.

American aerial attacks in Pakistan are conducted by unmanned drones operated by the CIA, not the U.S. military. The Pakistan government has repeatedly condemned CIA drone attacks whenever civilians have been killed. Yet the drones take off from Pakistani air bases, clearly with the approval of the Pakistani government.

Meanwhile, militant Anwar Al Awlaki, the American-born “YouTube” preacher of Yemeni descent, is said to have inspired both the Fort Dix attack plot of 2007 and the Fort Hood shooter of 2009. In mid-December 2009, Obama ordered Cruise missiles to bomb a portion of Yemen believed to house Al Awlaki, murdering more than 100 civilians. In apparent retaliation, the Underpants Bomber left Yemen with a bomb that he intended to explode over Detroit on Christmas Day 2009.

Obama’s order to assassinate Al Awlaki, an American citizen, was issued in January 2010. The Times Square bomber returned from Pakistan after the assassination order on February 3.

Prior to May 1, 2010, the people of the United States suffered no consequences from the killing of innocent civilians by the CIA in Pakistan or by the Navy in Yemen. They still have not been murdered in retaliation for what the CIA and the American military are doing. No-fly lists, Miranda nonwarnings, and similar measures may stop future plots. But plotting itself evidently will continue as long as the war crimes continue—indiscriminate killing of innocent civilians in Pakistan and Yemen.

Shahzad was angered by the deaths of innocent Pakistanis in his homeland while Bush was president. He would have been disappointed as Obama ordered a sharp increase in drone attacks of Pakistanis. And he also would have been unhappy about reprisals in Yemen. Actions indeed lead to reactions.

The title of a recent book by former ambassador Peter Galbraith is Unintended Consequences (2008). Its subtitle is How War in Iraq Strengthened America’s Enemies. Surely there must come a time when decision makers in Washington will learn from Galbraith and others to become better chessplayers, anticipating reactions before taking actions.

Meanwhile, Washington refuses to connect the dots and continues to foment more anger among Muslims around the world, who in turn are aware of and eager to retaliate against such obvious American war crimes.

Will Donald Rumsfeld face accountability for his actions in authorizing torture? After resigning as Secretary of Defense in 2006, a warrant for his arrest was issued in Paris during October 2007 soon after he arrived in France to give a talk. But he sneaked out of the country to avoid handcuffs and incarceration, and he was secretly driven to Germany before flying back to the United States, clutching a passport that he may now have shredded to avoid similar incidents in the future.

Less well publicized was a lawsuit filed just after Rumsfeld left office in 2006, Vance v Rumsfeld, until Judge Wayne Anderson ruled in early March 2010 that the case will proceed to trial in a Chicago federal court. The case, in which two Americans seek unspecified damages, alleges the following offenses were committed against them:

• false arrest
• denial of property without due processunlawful detention
• unlawful search and seizure
• denial of right to counsel in interrogations – coerced statements
• denial of Sixth Amendment right to counsel
• denial of right to confront adverse witnesses
• denial of right to present witnesses and evidence, and to have exculpatory evidence disclosed
• unlawful conditions of detention
• denial of necessary medical care

What happened to the two Americans also occurred to thousands of Afghans, Iraqis, and others who were not protected by the American constitution. But the same offenses could be repackaged as war crimes, as noted below.

The circumstances of the allegations by the two men, Donald Vance and Nathan Ertel, provide more substantiation of the abuses of Abu Ghraib and elsewhere. The fate of the case will serve as precedent for foreigners to file suit on the same basis. The following are facts alleged in their lawsuit:

• Ertel and Vance were employed in Iraq during 2005 as private security contractors of Shield Group Security (SGS). In that capacity they observed SGS agents making payments to insurgent Iraqi sheikhs, who in turn bought weapons from SGS. While on home leave, Vance reported the payoffs to the Chicago FBI office, which in turn asked Vance to collect evidence on the matter. Ertel, his roommate, was unaware of Vance’s quest to identify illegal actions by SGS, but tendered his resignation due to his suspicions.
• Rather than allowing Ertel to leave SGS housing, on April 14, 2006, to secure employment elsewhere, SGS confiscated both of their access cards, effectively imprisoning them in the SGS compound. When they asked FBI officials in Iraq for advice on what to do, they were told to barricade themselves in their room until they could be rescued. Army personnel arrived, liberated Ertel and Vance, and took them to the American embassy, where their property was seized and they were questioned. They, of course, provided testimony about SGS activities during the interrogation.
• However, three hours after their questioning, they were arrested, handcuffed, blindfolded, earmuffed, and accused of supplying weapons to insurgents. When they arrived at Camp Prosperity, they were strip searched, placed in a cage, and then held in solitary confinement in separate cells. Two days later, they were shackled, blindfolded, and transferred to Camp Cropper, where they were also strip searched and placed in solitary confinement. They were fed a breakfast (bread, a powdered rink, with occasional fruit) and a lunch and dinner (chicken and rice).
• While at Camp Cropper, they were repeatedly interrogated for long hours by unidentified military personnel, who used coercive methods, mentally and physically, including “walling,” that is, walked into walls while blindfolded. They were denied the right to counsel. The fluorescent lights were turned on continuously. Heavy metal or country music blared in the corridor most of the time. To further deprive them of sleep, they were awakened at random times and ordered to stand in their cold cells (with temperatures in the 50s). They tried to sleep in 9×9-foot cells on worn 3” foam mats on concrete slabs. The suit alleges that they were tortured and otherwise treated in a manner authorized by Rumsfeld.
• On April 20, they were informed that they would appear before the Detainee Status Board on April 23 to determine their status, but on April 22 they learned instead that their status was identified as “security internees.” Given the right to appeal, on April 26 they appeared before the Board to appeal their cases, though they were denied the evidence seized from them to present in their defense, and they were not allowed to testify on each other’s behalf.

On May 7, Ertel was reclassified as an innocent civilian and released on May 17. Vance was held for two more months of continuous questioning, called his fiancé at the end of his first week after the hearing, and requested blankets and legal representation. He wrote ten letters to his fiancé, who contacted Senator Richard Durban and others, but the only letter she received through the courtesy of the Red Cross was dated July 17. Vance was finally released on July 20. Neither was charged with any crime.

After they returned to Illinois, they sought legal counsel, and they filed their case on December 18, 2006. Rumsfeld, a resident of Maryland, sought to have the venue of the cased moved from Chicago, but Judge Anderson denied the request on October 11, 2007. Rumsfeld also sought to have the case dismissed, but that motion was denied on March 5, 2010.

The larger significance of the case is that the two Americans and an unidentified third at Camp Cropper appear to have been treated in a manner similar to the other prisoners (except for appearing in person before a tribunal, a right denied to all Iraqis but Saddam Hussein). Extrapolating from the way the Americans were treated to what the other Iraqis experienced as prisoners in an ongoing war, Rumsfeld is being judged in an American court for what a lawsuit filed by Iraqis at the same base might characterize as the following war crimes:

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