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Omniarchy describes the principals and positions of a new political philosophy in the United States. The originality of the political positions espoused by the essays contained on the following pages is matched by the novelty of the name used to define them: Omniarchy. If anarchy is the rule of none, monarchy is the rule of one, and oligarchy is the rule of some, then Omniarchy is the rule of all.

Monday, August 08, 2005

Is George Bush a War Criminal?

It's easy to understand why the American public is confused about the torture and abuse of Iraqi prisoners in Abu Ghraib prison. This is because Abu Ghraib was the end result of a long line of policy decisions and treaty violations. In short, we got the end of the story first, and we're just now beginning to see the beginning.

Abu Ghraib didn't start in 2004 when those horrific photographs came to light; it started with the fall of Kabul in Afghanistan at the end of 2001. So perhaps, a brief chronology might add some perspective.
At the end or 2001, America was still reeling from the barbarous attacks of September 11th. The Bush Administration was seething and, perhaps legitimately, it feared of another terrorist attack upon the United States. Simultaneously, it was trying to figure out what to do with all of the Taliban fighters it had just captured. In short, the question quickly became whether or not the Taliban or al-Qeada or both were covered under the Geneva Conventions on the Treatment of Prisoners of War.

On the face of it, it seemed quite clear. Al-Qeada was a non-governmental terrorist organization, and its members should be treated as captured criminals. The Taliban militia was a military organization, and its members should be treated as POWs. If there was some confusion between the two, Article Five of the Geneva Convention was quite explicit:
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

This raised some problems for the Bush Administration, however. We were fighting "a new kind of war" apparently. Under our treaties and protocols, criminals and POWs have rights, such as humane treatment and repatriation after the end of hostilities, and the Bush Administration didn't want to honor those commitments. They wanted the "flexibility" to hold captured belligerents in perpetuity and treat them in any manner the Armed Forces believed to be appropriate.

So the Department of Defense (DoD) asked the Department of Justice (DoJ) if the Geneva Conventions applied to captured Taliban militia. On January 9, 2002, they got their answer from John Yoo and Robert Delahunty: No. Al-Qeada was obviously not covered under the Conventions. The Taliban, however, was a little trickier.
"Whether the Geneva Conventions apply to the detention and trial of members of the Taliban militia presents a more difficult legal question. Afghanistan has been party to all four Geneva Conventions since 1956. Some might argue that this require application of the Geneva Conventions to the present conflict with respect to the Taliban militia, which would then trigger the WCA [War Crimes Act]. This argument depends, however, on the assumptions that during the period in which the Taliban militia was ascendant in Afghanistan, the Taliban was the de facto government of that nation, that Afghanistan continued to have the essential attributes of statehood, and that Afghanistan continued in good standing as a party to the treaties that its previous governments had signed.

We think that all of these assumptions are disputable, and indeed false. The weight of informed opinion strongly supports the conclusion that, for the period in question, Afghanistan was a 'failed State' whose territory had been largely overrun and held by violence by a militia of faction rather than a government. Accordingly, Afghanistan was without the attributes of statehood necessary to continue as a party to the Geneva Conventions . . . ."
So "informed opinion" said that Afghanistan was a "failed State". This made its government illegitimate, even though the United States was instrumental in helping it to acquire power during its war with the Soviet Union in the late 1980s, and supporters of governments that we deem to be illegitimate unilaterally and arbitrarily aren't protected by our international treaties. In other words, our treaties aren't binding; they're only applicable when the Executive branch of the government says they are.

As a result, President Bush proclaimed that the Taliban was not protected Geneva, and Secretary Rumsfeld issued an order to the Joint Chiefs of Staff the next day.

But not so fast, said Secretary of State Colin Powell. He wrote a memo to the DoJ refuting many of the contentions made in its memo of January 9th. Specifically, Powell stated,
"The Memorandum [from the DoJ] should note that any determination that Afghanistan is a failed state would be contrary to the official U.S. government position. The United States and the international community have consistently held Afghanistan to its treaty obligations and identified it as a party to the Geneva Conventions."
Well, apparently the DoJ considered the Secretary Powell and the State Department to be excluded from "informed opinion" about the diplomatic status of Afghanistan. Notwithstanding the question of whether the Departments of State or Justice were better informed about the international status of Afghanistan, President Bush called upon is top lawyer, Alberto Gonzales, to sort things out. So, in the best tradition of bureaucratic Washington, he sent the President a memo on January 25th.

Gonzales's memo gave the President of the option of applying the Geneva Conventions to the Taliban in clear violation of Article 5. How could he do so? Why because, despite the statements of his Secretary of State to the contrary,
"Afghanistan was a failed state because the Taliban did not exercise full control over the territory and people . . . .

The Taliban and its forces were, in fact, not a government, but a militant, terrorist-like group."
Apparently President Bush decided to rely on Justice instead of State to determine foreign policy.

But Gonzales didn't want to appear as if he was making foreign policy. After all, that's the President's job; he could only recommend. So his memo included the pluses and minuses of excluding al-Qeada and the Taliban from the Geneva Conventions. He indicated that only two positives could be associated with the suspension of the treaty. First, he listed "flexibility", which would provide the Armed Forces with "the ability to quickly obtain information from captured terrorists" without having to worry about incidentals such as repatriation and humane treatment.

Secondly, and more ominously, he discussed the reduced "threat of domestic prosecution under the War Crimes Act"! Yes, you heard me right. The Office of the Legal Counsel of the Department of Justice told the President of the United States that, if he wants to institute a policy of prisoner abuse, he should, contrary to the opinion of his State Department, simply declare the nation a "failed state" and stipulate that the Geneva Conventions are inapplicable. Why? So that the President of our nation could avoid future domestic prosecution as a WAR CIMINAL:
"Third, it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based upon Section 2441 [the War Crimes Act]. Your determination [that the Geneva Conventions do not apply to the Taliban] would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution."
Did I read that right? For the President to escape prosecution as a war criminal, all he needs to do is say that the Geneva Conventions, and hence the War Crimes Act, do not apply. Shades of Louis XVII, "L'etat, c'est moi!" (I am the state!) Federal law doesn't apply to me. Why? BECAUSE I'M THE PRESIDENT AND I SAID SO!

Well, needless to say, George II liked this opinion, overrode the opinion of his Secretary of State, and on February 7th signed an order validating Rumsfeld's January 19th order to the Joint Chiefs.
"Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida [sic], al-Qaida detainees also do not qualify as prisoners of war."
Let the games begin. And begin they did. Not at Abu Ghraib in Iraq, but at Bagram in Afghanistan. At some point during 2002 our troops began to torture their prisoners, and in December of that year they eventually beat two of them to death. One was the brother a reputed Taliban commander and the other was a taxicab driver. Their crimes? They had resisted having hoods placed over their heads. Was placing a hood over a prisoner humane treatment? It didn't matter because the President said so. Was beating them in order to force compliance humane? Ditto.

So who' s going to jail? Why the grunts, of course. Is it fair? Is it right? Is it just? Well, maybe it is, but the guys who are up on charges don't think so.
"In the first interview granted by any of the accused soldiers, a former guard charged with maiming and assault said that he and other reservist military policemen were specifically instructed at Bagram how to deliver the type of blows that killed the two detainees, and that the strikes were commonly used when prisoners resisted being hooded or shackled.

'I just don't understand how, if we were given training to do this, you can say that we were wrong and should have known better,' said the soldier, Pvt. Willie V. Brand, 26"
Six months later, the Bagram policies found their way to Abu Ghraib. By the end of 2003, our soldiers were, in the words ofMajor General Antonio M. Taguba, engaged in,
"egregious acts and grave breaches of international law"
at Abu Ghraib.

So who's really to blame? I don't know and neither does anybody else. Why? Because I don't have subpoena power and both Bagram and Abu Ghraib have been Army investigations.

That's why the Congress has to appoint a special prosecutor to investigate the commission of war crimes in Afghanistan and Iraq. We need to know if our President is a war criminal, notwithstanding the opinion of his legal counsel. We need to know if any of his staff are war criminals. We need to know if the DoD employed any war criminals. After all, as the War Crimes Act clearly states:
(c) Definition.--As used in this section the term 'war crime' means any conduct--

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
All I do know is that no one, not even our President, is above the law simply because he says so.


Anonymous Anonymous said...

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Bill Adams

9:27 AM  
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