Sep 10 2010

Torture Is A War Crime, So Is Covering It Up

Court Dismisses a Case Asserting Torture by C.I.A. by Charlie Savage

A federal appeals court on Wednesday ruled that former prisoners of the C.I.A.  could not sue over their alleged torture in overseas prisons because such a lawsuit might expose secret government information.

The sharply divided ruling was a major victory for the Obama administration’s efforts to advance a sweeping view of executive secrecy powers. It strengthens the White House’s hand as it has pushed an array of assertive counterterrorism policies, while raising an opportunity for the Supreme Court to rule for the first time in decades on the scope of the president’s power to restrict litigation that could reveal state secrets. . . . .

   The decision bolstered an array of ways in which the Obama administration has pressed forward with broad counter-terrorism policies after taking over from the Bush team, a degree of continuity that has departed from the expectations fostered by President Obama’s campaign rhetoric, which was often sharply critical of President Bush’s approach.

   Among other policies, the Obama team has also placed a United States citizen on a targeted-killings list without a trial, blocked efforts by detainees in Afghanistan to bring habeas-corpus lawsuits challenging their indefinite imprisonment, and continued the C.I.A. rendition program . . . .

   As a senator and candidate for the White House, President Obama had criticized the Bush administration’s frequent use of the state-secrets privilege. In February 2009, when his weeks-old administration reaffirmed the Bush administration’s view on the case, civil libertarian groups that had supported his campaign expressed shock and dismay.

Glen Greenwald points out how far we haven fallen:

here’s what The New York Times’ John Schwartz reported in February, 2009, when the Obama DOJ first told the 9th Circuit that they were going to assert the same “state secrets” arguments in this case which the Bush DOJ made:  

“In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.”


Schwartz described how the judges on the appellate panel were so startled that they actually asked multiple times if the Obama DOJ was really sticking with the Bush position, as though they couldn’t believe what they were hearing.  What a quaint time that was, when people were surprised by Obama’s replicating Bush’s secrecy and Terrorism positions — the very ones he so vehemently condemned when running for President. After 18 months of seeing this over and over in multiple realms, nobody would react that way now.

The ACLU’s Ben Wizner on the decision:    

This is a sad day not only for the torture victims whose attempt to seek justice has been extinguished, but for all Americans who care about the rule of law and our nation’s reputation in the world. To date, not a single victim of the Bush administration’s torture program has had his day in court. If today’s decision is allowed to stand, the United States will have closed its courtroom doors to torture victims while providing complete immunity to their torturers. The torture architects and their enablers may have escaped the judgment of this court, but they will not escape the judgment of history.

h/t Marcy Wheeler @ FDL

My stand on torture, rendition, targeted assassinations, Guantanamo, Baghram, the two wars is pretty clear. These are war crimes. As per the Nuremberg Principles which the US signed and ratified, covering up the evidence is a war crime. There is already enough evidence to arrest and prosecute George W. Bush and Richard Cheney, along with their co-conspirators at the Hague. There is no statute of limitations, either.

Writing on Slate, the noted conservative constitutional scholar, Bruce Fein notes:

President Obama pledged to restore the rule of law. But the state-secrets-privilege wars with that promise.

I give you this from Paul Rosenberg at Open Left with regards to this case,

Obama Embraces Nazi Nurermberg Trials Logic: “They Were Only Following Orders”:


In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.

Principle IV

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

More precisely, Principle IV was specifically embodied in Article 8 of London Charter of the International Military Tribunal At Nurmberg, the same charter which clearly encompasses the crimes that Obama now wishes to sweep under the rug:    


   Article 6. The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.

   The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

   (a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

The invasion of Iraq was demonstrably a crime against peace.  It was both a war of aggression and a war in violation of international treaties–to wit, the UN Charter. The Downing Street Memos clearly demonstrate that the Bush Administration was determined to invade Iraq, and was merely trying to figure out the best way to justify this aggression.  

(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

The treatment of prisoners in the “war on terror” was clearly a war crime, whether one argues that those suffering ill-treatment were prisoners of war, or not.  For if they were not prisoners of war, then they were civilians, who were similarly protected.    

(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

   Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

   Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Thus Bush, Cheney and all top Administration officials are culpable under the Nuremberg Principles.    

Article 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

Thus all those “only following orders” are also culpable.

The Nuremberg Defense was rejected but now Obama and his DOJ is siding with Nazis. Really. I find it stunning that a Democratic President is invoking this argument. The President is now complicit in covering up CIA war crimes and using the courts to protect himself from scrutiny while he violates US and International Law.

No, It is not OK if you are Obama.

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