More Calls for Prosecutions Over Administration Torture & War Crimes

David Swanson has an article up at Daily Kos. It summarizes the a report released by the "Steering Committee of the Justice Robert H. Jackson Conference On Planning For The Prosecution of High Level American War Criminals." The report names 30 Bush Administration officials involved in authorizing or engaging in torture, seeking to cover it up, Furthermore, according to Lawrence Velvel, chairman of the Steering Committee:

"Far from American officials and lawyers authorizing or engaging in torture because it was lawful, they authorized and engaged in it because they wanted to (and) kept their actions secret from interested officials for as long as they could lest there be strong opposition to the torture and abuse they were perpetrating," Velvel said. "They deliberately ignored repeated warnings that the torture and abuse were illegal and could lead to prosecutions, and they ignored these warnings even when they came from high level civilian and military officers"....

Bush officials were involved in shaping or carrying out torture policies despite written and/or verbal warnings given by high government officials in the Pentagon, State Department, FBI, and other agencies. Among these objectors were:

# William Howard Taft IV, the Legal Advisor to the State Department whose 40-page memo of January 11, 2002 warned Bush’s claim the Geneva Conventions were not applicable to prisoners held by the U.S. could subject Bush to prosecution for war crimes. State Department lawyer David Bowker further warned "there is no such thing" as a person that is not covered by the Geneva Conventions. # The Defense Department’s own Criminal Investigative Task Force headed by Col. Brittain Mallow warned Haynes that tactics used at Guantanamo could be illegal. His warning were ignored by Haynes, whose position was based on statements of Yoo and Chertoff. # FBI Director Robert Mueller barred FBI agents from participating in coercive CIA interrogations, "a warning-fact well known to many in the Executive," the Steering Committee Report said. Also, Marion Bowman, head of the FBI’s national security law section in Washington called lawyers in Jim Haynes’ office in the Pentagon to express his concern but said he never heard back. # David Brant, head of the Naval Criminal Investigative Service learned about the torture and abuse at Guantanamo and took the position that "it just ain’t right" and expressed his concern to Army officials in command authority over military interrogators at Guantanamo but "they did not care," the Report said. # A senior CIA intelligence analyst that visited Guantanamo in 2002 reported back that the U.S. was committing war crimes there and that one-third of the detainees had no connection to terrorism. The report alarmed Rice’s lawyer John Bellinger and National Security Council terrorism expert General John Gordon but their concerns were "flatly rejected and ignored" by Addington, Flanigan and Gonzales, as well as by Rumsfeld’s office. # Navy General Counsel Alberto Mora carried his concern over Guantanamo torture to Haynes and to Mary Walker, head of a Pentagon working group that was drafting a DOD memo based on Yoo’s work that authorized torture. Mora said what was occurring at Guantanamo was "at a minimum cruel and unusual treatment, and, at worst, torture." His warning was ignored.

Administration officials named include:

Vice President Dick Cheney and his former chief of staff and legal counsel David Addington, former Defense Secretary Donald Rumsfeld, Secretary of State Condoleeza Rice and her predecessor Colin Powell, former Attorneys-General John Ashcroft and Alberto Gonzales, Department of Homeland Security Secretary Michael Chertoff and his aide Alice Fisher, former deputy assistant Attorney General; and Tim Flanigan, a deputy White House attorney.

Also named are "Scooter" Libby, Douglas Feith, Stephen Cambone, former CIA Director George Tenet, Cofer Black, former Assistant Attorneys General Jay Bybee and John Yoo, Defense Department chief legal officer Jim Haynes, and General Michael Dunlavey, and Major General Geoffrey Miller, the former commander of Guantanamo prison, among others.

Besides Swanson and Vevel, members of the Steering Committee include President of the National Lawyers Guild, Marjorie Cohn, writer Elaine Scarry, Peter Weiss, the vice president of the Center For Constitutional Rights, and University of Toledo law professor Ben Davis, among others.

Meanwhile, up on Capitol Hill, Congressman Jerrold Nadler (Dem.-NY-08), Chair of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, has reintroduced a resolution in the House of Representative that calls for that body to demand that President Bush render no pre-emptive pardons of Administration officials prior to leaving office.

Even more, the resolution would put the House on record as calling for formal investigation and possible prosecution of Bush administration law-breakers:

(4) it is the sense of the House of Representatives that a special investigative commission, or a Select Committee be tasked with investigating possible illegal activities by senior officials of the administration of President George W. Bush, including, if necessary, any abuse of the President’s pardon power; and

(5) the next Attorney General of the United States appoint an independent counsel to investigate, and, where appropriate, prosecute illegal acts by senior officials of the administration of President George W. Bush.

In addition to Nadler's resolution, mcjoan at Daily Kos reports:

Judiciary Chair John Conyers, on the first day of the 111th Congress, introduced H.R. 104, a bill that, as reported by TPM, would "set up a National Commission on Presidential War Powers and Civil Liberties, with subpoena power and a reported budget of around $3 million, to investigate issues ranging from detainee treatment to waterboarding to extraordinary rendition."

The next months will see a wild fight politically over the question of investigating Bush administration war crimes. In an interview on today's ABC "This Week" with George Stephanopoulos, President-elect Barack Obama seemed to throw cold water on the idea he would support investigations or prosecutions of Bush officials on torture, leaving open only the tiniest crevice of hope that he would.

STEPHANOPOULOS: The most popular question on your own website is related to this. On change.gov it comes from Bob Fertik of New York City and he asks, "Will you appoint a special prosecutor ideally Patrick Fitzgerald to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping."

OBAMA: We're still evaluating how we're going to approach the whole issue of interrogations, detentions, and so forth. And obviously we're going to be looking at past practices and I don't believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering (ph).

STEPHANOPOULOS: So, no 9/11 commission with Independence subpoena power?

OBAMA: We have not made final decisions, but my instinct is for us to focus on how do we make sure that moving forward we are doing the right thing. That doesn't mean that if somebody has blatantly broken the law, that they are above the law. But my orientation's going to be to move forward.

STEPHANOPOULOS: So, let me just press that one more time. You're not ruling out prosecution, but will you tell your Justice Department to investigate these cases and follow the evidence wherever it leads?

OBAMA: What I -- I think my general view when it comes to my attorney general is he is the people's lawyer. Eric Holder's been nominated. His job is to uphold the Constitution and look after the interests of the American people, not to be swayed by my day-to-day politics. So, ultimately, he's going to be making some calls, but my general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed looking at what we got wrong in the past.

Stephanopoulos discussed the now popular theme of replacing CIA torture techniques with the procedures outlined in the Army Field Manual. Elsewhere, I have argued that the AFM is not a decent replacement, and contains within it a sophisticated program of psychological torture that only eschews the worst of the known interrogation techniques (waterboarding, sexual humiliation, stress positions, etc.). Here's the relevant exchange:

OBAMA: ...Vice President Cheney I think continues to defend what he calls extraordinary measures or procedures when it comes to interrogations and from my view waterboarding is torture. I have said that under my administration we will not torture.

STEPHANOPOULOS: How about them taking that to the next step. Right now the CIA has a special program, would you require that that program -- basically every government interrogation program be under the same standard, be in accordance with the army field manual?

OBAMA: My general view is that our United States military is under fire and has huge stakes in getting good intelligence. And if our top army commanders feel comfortable with interrogation techniques that are squarely within the boundaries of rule of law, our constitution and international standards, then those are things that we should be able to (INAUDIBLE)

The country is rightly preoccupied with the terrible economic crisis and massive growing unemployment. Much of the political class is preoccupied with the criminal assault of U.S. forces on the population of Gaza, in the name of subduing Hamas. It seems entirely possible that sufficient public will to investigate and prosecute Bush and company will not materialize. That would be a horrible mistake. As Lawrence Vevel put it:

"If Bush, Vice President Dick Cheney, and others are not prosecuted," Velvel said, "the future could be threatened by additional examples of Executive lawlessness by leaders who need fear no personal consequences for their actions, including more illegal wars such as Iraq."