The Obfuscation Report

Will War Crimes Be Outed?

By Jeremy Brecher & Brendan Smith

December 17, 2008 The Nation

As the officials of the Bush administration pack up in Washington and move into their posh suburban homes around the country, will they be able to rest easy, or will they be haunted by the fear that they will be held accountable for war crimes?

There are many reasons to anticipate that the incoming Obama administration and the new Congress will let sleeping dogs lie. Attention to criminal acts by the former administration would probably anger Republicans, whose support Obama is hoping to win for his first priority, his economic program. Democratic Congressional leaders have known a great deal about Bush administration lawlessness, and in some cases have even given it their approval--making an unfettered review seem unlikely.

Some of Obama's own top appointees would undoubtedly receive scrutiny in an unconstrained investigation--Obama's reappointed defense secretary Robert Gates, for example, has had responsibility not only for Guantánamo but also for the incarceration of tens of thousands of Iraqis in prisons in Iraq like Camp Bucca, which the Washington Post described in a headline as "a Prison Full of Innocent Men," without even a procedure for determining their guilt or innocence--unquestionably a violation of the Geneva Conventions in and of itself.

But the repose of the Cheneys, Bushes, Gonzaleses and Rumsfelds may not turn out to be so undisturbed. In his notorious torture memo, Alberto Gonzales warned about "prosecutors and independent counsels" who may in the future decide to pursue "unwarranted charges" based on the US War Crimes Act's prohibition on violations of the Geneva Conventions. While no such charges are likely to be brought anytime soon, neither are they likely to vanish. In the short run, Obama and his team face inescapable questions about the legal culpability of the Bush administration. And in the long run, such charges are likely to grow only more unavoidable once the former officials of that administration have lost the authority to quash them.

In April Obama said that if elected, he would have his attorney general initiate a prompt review of Bush-era action to distinguish between possible "genuine crimes" and "really bad policies."

"If crimes have been committed, they should be investigated," Obama told the Philadelphia Daily News. He added, however, that "I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we've got too many problems we've got to solve."

Obama's nominee for attorney general, Eric Holder, speaking to the American Constitution Society in June, described Bush administration actions in terms that sound a whole lot more like "genuine crimes" than like "really bad policies":

Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution.... We owe the American people a reckoning."

A Reckoning?

While attention has focused on whether, once president, Obama will move quickly to close Guantánamo, shut down secret prisons, halt rendition and ban torture, there's a less visible struggle over whether and how to provide a reckoning for war crimes past.

A growing body of legal opinion holds that Obama will have a duty to investigate war crimes allegations and, if they are found to have merit, to prosecute the perpetrators.

In a December 3 Chicago Sun-Times op-ed, law professors Anthony D'Amato (the Leighton Professor at Northwestern University School of Law) and Jordan J. Paust (the Mike & Thersa Baker Professor at the Law Center of the University of Houston) ask whether president-elect Barack Obama will have "the duty to prosecute or extradite persons who are reasonably accused of having committed and abetted war crimes or crimes against humanity during the Bush administration's admitted 'program' of 'coercive interrogation' and secret detention that was part of a 'common, unifying' plan to deny protections under the Geneva Conventions."

They answer, "Yes."

"Under the US Constitution, the president is expressly and unavoidably bound to faithfully execute the laws." The 1949 Geneva Conventions "expressly and unavoidably requires that all parties search for perpetrators of grave breaches of the treaty" and bring them before their own courts for "effective penal sanctions" or, if they prefer, "hand such persons over for trial to another High Contracting Party."

The statement is particularly authoritative--and particularly striking--because Paust is also a former captain in the United States Army JAG Corps and member of the faculty at the Judge Advocate General's School.

Michael Ratner of the Center for Constitutional Rights says that one of Barack Obama's first acts as president should be to "instruct his attorney general to appoint an independent prosecutor to initiate a criminal investigation of former Bush Administration officials who gave the green light to torture."

Parallel to the legal community, members of Congress and president-elect Obama are trying to chart a strategy that avoids the appearance of seeking to punish Bush administration officials without appearing blatantly oblivious to their apparent war crimes. According to the AP's Lara Jakes Jordan, "Two Obama advisors say there's little--if any--chance that the incoming president's Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage." Instead, "Obama is expected to create a panel modeled after the 9/11 Commission to study interrogations, including those using waterboarding and other tactics that critics call torture."

Asked if Bush administration officials would face prosecution for war crimes, Senate Judiciary Chairman Patrick Leahy flatly said, "In the United States, no," but he does intend to continue to investigate Bush administration officials and their interrogation policies. "Personally, I would like to know exactly what happened. Torture is going to be a major issue."

Continue the Cover-Up?

President-elect Obama may well seek to delay taking a stand for or against such accountability actions. But he is likely to be confronted early in his administration by choices about whether to continue or terminate legal cover-up operations the Bush administration currently has under way.

For example, the Bush administration has blocked the civil suit against US officials by Canadian Maher Arar for his "rendition" to Syria and his torture there by invoking the "state secrets" privilege. According to Christopher Anders, senior legislative counsel for the ACLU, they have appointed a prosecutor to investigate the destruction of videotapes of CIA interrogations, but the investigation is limited only to whether crimes were committed in relation to the destruction of the tapes--not whether what was being videotaped is a crime. The administration has refused to cooperate with the trial of twenty-six Americans, mostly CIA agents, who kidnapped a terrorism suspect in Milan and flew him to Egypt where, he says, he was tortured. And they have refused to provide secret documents to the British High Court in the case of Guantánamo detainee Binyam Mohamed that may demonstrate that US officials were complicit in his torture in Morocco.

If the Obama administration continues the Bush administration's efforts to prevent investigators from investigating and courts from hearing such cases, it will rapidly become part of the cover-up. If it begins to, at a minimum, stop obstructing such proceedings, the result could be a rapid crumbling of the wall of silence the Bush administration has tried so assiduously to build around its "war on terror."

A bipartisan report issued by the Senate Armed Services Committee on December 11 will make it far more difficult to evade the responsibility of holding Bush administration officials legally accountable for war crimes. Released by Senators Carl Levin and John McCain after two years of investigation, the report concluded:

The abuse of detainees in US custody cannot simply be attributed to the actions of 'a few bad apples' acting on their own.... The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.... Secretary of Defense Donald Rumsfeld's authorization of aggressive interrogation techniques for use at Guantánamo Bay was a direct cause of detainee abuse there.

In an interview published in the Detroit News, Senator Levin said he was not responsible for deciding whether officials should be prosecuted for authorizing torture, but he admitted that there is enough evidence that victims of abuse could file civil lawsuits against their assailants. Levin also suggested that the Obama administration "needs to look for ways in which people can be held accountable for their actions."

An Accountability Movement

Outside the Beltway, a movement to hold Bush administration officials accountable for torture and other war crimes after they leave office is gradually emerging. It received a boost when over a hundred lawyers and activists met in Andover, Massachusetts on September 20 at a conference entitled "Planning for the Prosecution of High Level American War Criminals." The conference created an ongoing committee to coordinate accountability efforts. At the close, conference convener Dean Lawrence Velvel of the Massachusetts School of Law noted more than twenty strategies and specific actions that had been proposed, ranging from the state felony prosecutions proposed by former district attroney Vincent Bugliosi to the international prosecutions pioneered by the Center for Constitutional Rights' Rumsfeld cases; and from impeaching Bush appointees like Federal Judge Jay Bybee to public shaming of torture-tainted former officials like ohn Yew, now a professor at the University of California Law School.

One of proposals discussed at the Andover conference was the creation of a citizens' War Crimes Documentation Center, modeled on the special office set up by the Allied governments before the end of World War II to investigate and document Nazi war crimes. Such a center could be the nexus for research, education and coordination of a wide range of civil society forces in the US and abroad that are demanding accountability. It could bring together the extensive but scattered evidence already available, to compile a narrative of what actually happened in the Bush administration. It could help or pressure Congress to conduct investigations to fill in the blanks. It could pull together high-profile coalitions to campaign around the issue of accountability for specific crimes like torture. If Obama does initiate some kind of investigating commission, such a center could provide it with information and help hold it accountable.

A Moral Education

There are a myriad of reasons for urgently holding the Bush regime to account, ranging from preventing unchallenged executive action from setting new legal precedent to providing a compelling rationale for the immediate cessation of bombing civilians in the escalating Afghan war.

But the issue raised by Bush administration war crimes is even larger than any person's individual crimes. As Thomas Paine wrote in Common Sense, "A long habit of not thinking a thing wrong gives it a superficial appearance of being right." The long history of aggressive war, illegal occupation, and torture, from the Philippines to Iraq, have given the American people a moral education that encourages us to countenance war crimes. If we allow those who initiated and justified the illegal conquest and occupation of Iraq and the use of torture at Abu Ghraib and Guantánamo to go unsanctioned, we teach the world--and ourselves--a lesson about what's OK and legal.

As countries like Chile, Turkey and Argentina can attest, restoration of democracy, civic morality and the rule of law is often a slow but necessary process, requiring far more than simply voting a new party into office. It requires a wholesale rejection of impunity for the criminal acts of government officials. As Rep. Robert Wexler (D-FL) put it, "We owe it to the American people and history to pursue the wrongdoing of this administration whether or not it helps us politically.... Our actions will properly define the Bush Administration in the eyes of history."

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by Glenn Greenwald

For obvious reasons, the most blindly loyal Bush followers of the last eight years are desperate to claim that nobody cares any longer about what happened during the Bush administration, that everyone other than the most fringe, vindictive Bush-haters is eager to put it all behind us, forget about it all and, instead, look to the harmonious, sunny future. That's natural. Those who cheer on shameful and despicable acts always want to encourage everyone to forget what they did, and those who commit crimes naturally seek to dismiss demands for investigations and punishment as nothing more than distractions and vendettas pushed by those who want to wallow in the past.

Surprisingly, though, demands that Bush officials be held accountable for their war crimes are becoming more common in mainstream political discourse, not less so. The mountain of conclusive evidence that has recently emerged directly linking top Bush officials to the worst abuses -- combined with Dick Cheney's brazen, defiant acknowledgment of his role in these crimes (which perfectly tracked Bush's equally defiant 2005 acknowledgment of his illegal eavesdropping programs and his brazen vow to continue them) -- is forcing even the reluctant among us to embrace the necessity of such accountability.

It's almost as though everyone's nose is now being rubbed in all of this: now that the culpability of our highest government officials is no longer hidden, but is increasingly all out in the open, who can still defend the notion that they should remain immune from consequences for their patent lawbreaking? As Law Professor Jonathan Turley said several weeks ago on The Rachel Maddow Show: "It's the indictment of all of us if we walk away from a clear war crime." And this week, Turley pointed out to Keith Olbermann that "ultimately it will depend on citizens, and whether they will remain silent in the face of a crime that has been committed in plain view. . . . It is equally immoral to stand silent in the face of a war crime and do nothing."

That recognition, finally, seems to be spreading -- beyond the handful of blogs, civil liberties organizations and activists who have long been trumpeting the need for this accountability. The New York Times Editorial Page today has a lengthy, scathing decree demanding prosecutions: "It would be irresponsible for the nation and a new administration to ignore what has happened . . . . A prosecutor should be appointed to consider criminal charges against top officials at the Pentagon and others involved in planning the abuse." Today, Politico -- of all places -- is hosting a forum which asks: "Should the DOJ consider prosecuting Bush administration officials for detainee abuse as the NYT and others have urged?" Even Chris Matthews and Chris Hitchens yesterday entertained (albeit incoherently and apologetically) the proposition that top Bush officials committed war crimes.

Perhaps most notably of all -- and illustrating the importance of finally having someone like Rachel Maddow occupy such a prominent place in an establishment media venue -- Democratic Sen. Carl Levin, one of the Senate's most restrained, influential and Serious members, was prodded by Maddow last night into going about as far as someone like him could be expected to go, acknowledging the necessity of appointing a Prosecutor to investigate top Bush officials for the war crimes they committed and to determine if prosecutions are warranted:

To be sure, the political class still desperately wants to avoid meaningful investigations and prosecutions, in no small part because every key component of it -- including the leaders in both parties -- are implicated by so much of it. But as more undeniable evidence emerges of just how warped and criminal and heinous the conduct of our top political leaders has been -- and the more Dick Cheney and comrades resort to openly admitting what they did and proudly defending it, rather than obfuscating it behind euphemisms and secrecy claims -- the more difficult it will be to justify doing nothing meaningful. That is why, even as the desire to forget about the Bush era intensifies with the Promise of Obama ever-more-closely on the horizon, the recognition continues to grow of the need for real accountability.

The weapons used to prevent such accountability are quite familiar and will still be potent. Those who demand accountability will be derided as past-obsessed partisans who want to impede all the Glorious, Transcendent Gifts about to be bestowed on us by our new leaders. The manipulative claim will be endlessly advanced that our problems are too grand and pressing to permit the luxury of living under the rule of law. When all else fails in the stonewalling arsenal, impotent "fact-finding" commissions will be proposed to placate the demand for accountability but which will, in fact, be designed and empowered to achieve only one goal: to render actual prosecutions impossible.

But with these new, unprecedentedly stark revelations, this facade will be increasingly difficult to maintain. It is already the case, as the Times Editorial today notes, that "all but President Bush’s most unquestioning supporters [i.e., this] recognized the chain of unprincipled decisions that led to the abuse, torture and death in prisons run by the American military and intelligence services." That leaves only two choices: (1) treat these crimes as the serious war crimes they are by having a Prosecutor investigate and, if warranted, prosecute them, or (2) openly acknowledge -- to ourselves and the world -- that we believe that our leaders are literally entitled to commit war crimes at will, and that we -- but not the rest of the world -- should be exempt from the consequences. The clearer it becomes that those are the only two choices, the more difficult it will be to choose option (2), and either way, there is great benefit just from having that level of clarity and candor about what we are really doing.

Special report - The Guardian UK

'I was still holding my grandson's hand - the rest was gone'

In the second of our series of dispatches from the ravaged country, Afghans explain how mounting civilian casualties are aiding Taliban recruiting

It was 7.30 on a hot July morning when the plane came swooping low over the remote ravine. Below, a bridal party was making its way to the groom's village in an area called Kamala, in the eastern province of Nangarhar, to prepare for the celebrations later that day.

The first bomb hit a large group of children who had run on ahead of the main procession. It killed most of them instantly.

A few minutes later, the plane returned and dropped another bomb, right in the centre of the group. This time the victims were almost all women. Somehow the bride and two girls survived but as they scrambled down the hillside, desperately trying to get away from the plane, a third bomb caught them. Hajj Khan was one of four elderly men escorting the bride's party that day.

"We were walking, I was holding my grandson's hand, then there was a loud noise and everything went white. When I opened my eyes, everybody was screaming. I was lying metres from where I had been, I was still holding my grandson's hand but the rest of him was gone. I looked around and saw pieces of bodies everywhere. I couldn't make out which part was which."

Relatives from the groom's village said it was impossible to identify the remains. They buried the 47 victims in 28 graves.

Stories like this are relatively common in today's Afghanistan. More than 600 civilians have died in Nato and US air strikes this year. The number of innocents killed this way has almost doubled from last year, and tripled from the year before that. These attacks are weakening support for the Afghan government and turning more and more people against the foreign occupation of the country.

"If things were going OK maybe we could accept the occasional mistake. But with the economy the way it is, the worsening security situation, and the lack of development - when they kill civilians on top of everything else, it's too much for people," says Jahid Mohseni who runs Tolo TV, Afghanistan's most popular television station, with his two brothers.

The US military initially denied any civilians had been killed in the Kamala bombing but later said they were investigating the incident. When asked this week for an explanation of events on that morning in July, the US military in Afghanistan said they were unfamiliar with the specifics but would look into it.

The latest figures from the Afghan Independent Human Rights Commission, taken a month ago, suggest about 750 civilians have been killed by foreign forces this year. Most were killed in air strikes. The remainder were shot by jumpy soldiers, who often open fire in crowded public places after an attack on one of their convoys.

Humanitarian aid agencies say privately that they believe the figure is significantly higher, as many victims classed as "insurgents" are actually non-combatants.

As the situation deteriorates across the country, the killing of civilians is seen as a final affront in a litany of mistakes by the foreign forces in Afghanistan. Patience among ordinary Afghans has worn thin and anger grows with each attack.

In July this year hundreds of Afghans took to the street in Nangarhar province after the air strike on the wedding party. The riots turned violent as protesters raged against the foreign occupiers and the government they support. The army eventually had to be called in to quell the rioting.

Civilian casualties are not new to Nangarhar province - last year a convoy of US Marines hit by a bomb attack subsequently opened fire in a bazaar killing 16 people. The marines involved were sent home and their officers charged, but a subsequent ruling cleared them of responsibility for the deaths.

Nato and US spokesmen say their forces go to great lengths to avoid civilian casualties. But all too often after an air strike, they deny civilians are among the dead or claim far fewer were killed.

A recent Human Rights Watch report said US investigations, when launched, have been "unilateral, ponderous, and lacking in transparency, undercutting rather than improving relations with local populations and the Afghan government".

The routine denials and hands-off attitude are contributing to a growing sense among Afghans that their lives are cheap in the eyes of the foreigners.

"We know they don't intend to kill the civilians but we don't believe they care enough not to," said Ahmad Zia, a jeweller in Kabul's busy bazaar. "If it continues we will see a lot more people joining the fight against the foreigners. It's inevitable."

The accidental targeting of wedding parties in Afghanistan has only deepened resentment. Last month 27 people were killed when a wedding party was bombed near Kandahar. It was the third wedding party to be hit this year alone.

He says many of the incidents result when planes are brought in to protect forces coming under fire. "Their troops are in trouble so they call in the air strikes without considering that it is a civilian area."

Sharif Hassanyar, a former interpreter with US Special Forces who is now working as a journalist, described how decisions were taken to bomb areas based on flimsy intelligence.

"I remember when I was working with a group of Rangers and a spy in the area told them the Taliban were training in a garden of a house so they bombed the house, without checking the information. Afterwards they found out that there had not been any Taliban there, only civilians were killed by the bombs," he said.

Informants for the foreign forces often give bad information either accidentally or because they are pursuing tribal or personal vendettas against individuals in neighbouring villages, he added.

"The Taliban grow very strong in the aftermath of each attack," said Hassanyar.

Mullah Zubiallah Akhond, a Taliban commander in Oruzgan province, says the attacks are sending recruits his way daily. "The people who are fighting with the Taliban are the brothers, uncles and relatives of those killed by the Americans. They have joined the Taliban and are fighting the Americans because they want to avenge their brothers, fathers or cousins," he says.

"There are now Taliban in every village, many of them have rejoined the movement after the savage attacks carried out by the Americans."

He believes the attacks have helped turn their fight against the foreigners into a nationwide popular struggle.

"When an American vehicle is blown up every day on the main road in Wardak, the order is not coming from the Taliban leadership. It is the people themselves who have turned against the foreigners. They have come together in their villages and do not allow the foreigners to pass through their areas."

It is not just the deaths from air strikes that are poisoning the hearts of Afghans. In the capital, Kabul, each day, terrified drivers swerve out of the way as foreign troops hurtle through the streets in their armoured convoys training their rifles on the drivers and pedestrians and shouting obscenities: "Stay the fuck back!"

The Afghans know to keep out of the way. Last year a US military convoy ploughed into several vehicles, killing seven people including a family. The incident sparked a riot involving thousands of angry Kabul residents. It was suppressed only after the security forces started shooting protesters on the streets. At least 15 people were killed.

"The anti-American feelings in Afghanistan are not just coming from conservative or religious elements," said Shukria Barakzai, a female MP.

"These feelings stem from the actions and military operations of the foreign troops. The anti-western sentiment is directly because of the military actions, the civilian casualties, and the lack of respect by foreign troops for Afghan culture."

December 15th, 2008 11:18 am
Arabs hail shoe attack as Bush's farewell gift

AFP

Iraq faced mounting calls on Monday to release the journalist who hurled his shoes at George W. Bush, an action branded shameful by the government but hailed in the Arab world as an ideal parting gift to the unpopular US president.

Colleagues of Muntazer al-Zaidi, who works for independent Iraqi television station Al-Baghdadia, said he "detested America" and had been plotting such an attack for months against the man who ordered the war on his country.

"Throwing the shoes at Bush was the best goodbye kiss ever... it expresses how Iraqis and other Arabs hate Bush," wrote Musa Barhoumeh, editor of Jordan's independent Al-Gahd newspaper.

Hundreds of Iraqis joined anti-US demonstrations to protest at Bush's farewell visit on Sunday to Iraq, which was plunged into a deadly insurgency and near civil war in the aftermath of the 2003 invasion.

The Iraqi government branded Zaidi's actions as "shameful" and demanded an apology from his Cairo-based employer, which in turn called for his immediate release from custody.

Zaidi jumped up as Bush was holding a press conference with Iraqi Prime Minister Nuri al-Maliki on Sunday, shouted "It is the farewell kiss, you dog" and threw two shoes at the US leader.

The shoes missed after Bush ducked and Zaidi was wrestled to the ground by security guards. He is currently being held by the Iraqi authorities, a source in Maliki's office said without elaborating.

Al-Baghdadia issued a statement demanding Zaidi's release "in line with the democracy and freedom of expression that the American authorities promised the Iraqi people."

"Any measures against Muntazer will be considered the acts of a dictatorial regime," it added.

But the government called for the channel to apologise, saying: "This action harms the reputation of Iraqi journalists and journalism in general."

Saddam Hussein's former lawyer Khalil al-Dulaimi said he was forming a team to defend Zaidi and that around 200 lawyers, including Americans, had offered their services for free.

"It was the least thing for an Iraqi to do to Bush, the tyrant criminal who has killed two million people in Iraq and Afghanistan," said Dulaimi.

"Our defence of Zaidi will be based on the fact that the United States is occupying Iraq, and resistance is legitimate by all means, including shoes."

Zaidi's colleagues in Baghdad, where he had worked for three years, said he had long been planning to throw shoes at Bush if ever he got the chance.

"Muntazer detested America. He detested the US soldiers, he detested Bush," said one on condition of anonymity.

Soles of shoes are considered the ultimate insult in Arab culture. After Saddam's statue was toppled in Baghdad in April 2003, many onlookers pelted it with their shoes.

But young Iraqi woman Oum Mina said she didn't consider Zaidi a hero.

"Bush is our enemy. But when you invite your enemy into your home, you don't treat him this way. This could destroy the image of Iraqis."

Protestors in Sadr City, the bastion of radical anti-US cleric Moqtada al-Sadr, however, threw shoes at passing US military vehicles, while in the holy Shiite city of Najaf, the crowds chanted "Down with America."

"All US soldiers who have used their shoes to humiliate Iraqis should be brought to justice, along with their US superiors, including Bush," said Ali Qeisi, head of a Jordan-based Iraqi rights group.

"The flying shoe speaks more for Arab public opinion than all the despots/puppets that Bush meets with during his travels in the Middle East," said Asad Abu Khalil, a popular Lebanese-American blogger and professor at Stanislaus University in California at angryarab.blogspot.com

An Iraqi lawyer said Zaidi risked a miminum of two years in prison if he is prosecuted for insulting a visiting head of state, but could face a 15-year term if he is charged with attempted murder.

"We fear for his safety," said Muzhir al-Khafaji, programming director for the television channel, adding that Zaidi had been arrested before by the Americans and that there were fears that more of its 200 correspondents in Iraq would be detained.

But in Libya, a charity headed by Moamer Kadhafi's daugher Aisha announced it was going to award Zaidi an "order of courage" for his actions.