By Jena Ardell
By Jon Campbell
By Alan Scherstuhl
By Tessa Stuart
By Roy Edroso
By Jon Campbell
By Albert Samaha
By Zachary D. Roberts
In a June 6 letter to Attorney General Michael Mukasey—largely ignored by a press immersed in the future of Hillary Clinton—56 Democrats in the House of Representatives asked for "an immediate investigation with the appointment of a special counsel to determine whether actions taken by the President, his Cabinet, and other Administration officials are in violation of the War Crimes Act (18 U.S.C. 2441) . . . and other U.S. and international laws."
This isn't front-page news?
The letter began with a brief account of the notorious facts about Abu Ghraib ("sexual exploitation and torture") and Guantánamo ("an independent investigation by the International Committee of the Red Cross documented several . . . acts of torture . . . including soaking a prisoner's head in alcohol and lighting it on fire"). Nor was "coercive interrogation" in Afghanistan omitted: "In October 2005, The New York Times reported that three detainees were killed during interrogations in Afghanistan and Iraq by CIA agents or CIA contractors."
This is not a call for articles of impeachment. Bush will soon be gone, and the new president and Congress have far too much to do to get mired in that quicksand. These are grave criminal charges, and since international crimes are involved as well as the U.S. War Crimes Act and the Anti-Torture Act, other nations whose laws include "universal jurisdiction" could prosecute.
But why would House Judiciary Committee chairman John Conyers Jr. and Intelligence Committee members Jerrold Nadler (my congressional representative) and Jan Schakowsky—among other signers—make such dramatic and historic charges of "war crimes" now, after most congressional Democrats have not shown the same interest? House Speaker Nancy Pelosi, for example, is not on the list of signers; she and Senate Democratic majority leader Harry Reid have never, in their opposition to the administration, come anywhere near these shocking accusations.
As of this writing, I've seen no alarm evident among Republicans, but if the story has legs, the response will begin with a derisive claim that this is a cheap, transparent, and bush-league trick to propel the election of Barack Obama.
But in the letter, these latter-day Thomas Paines (assuming you agree with them) assert that what impelled them to act immediately was that, "within the last month, additional information has surfaced that suggests the fact that not only did top Administration officials meet in the White House and approve of the use of enhanced techniques, including waterboarding against detainees, but that President Bush was aware of and approved of the meetings taking place. . . . This information indicates that the Bush administration may have systematically implemented, from the top down, detainee interrogation policies that constitute torture or otherwise violate the law." (Emphasis added.)
If Bush, Cheney, Gonzales, et al. are ever in the dock after such an investigation, I am sure that the prosecutors will show, among other thoroughly documented sources, the very specific names of the perpetrators and the dates of this series of crimes, as published in Torture Team: Rumsfeld's Memo and the Betrayal of American Values by Phillippe Sands (Palgrave MacMillan) and the irrefutable evidence found in University of Houston professor Jordan J. Paust's Beyond the Law: The Bush Administration's Unlawful Responses in the "War" on Terror (Cambridge University Press).
The latter is a book I wish every voter in November will have read, along with the same publisher's 1,249-page The Torture Papers: The Road to Abu Ghraib, edited by Karen J. Greenberg and Joshua L. Dratel. Such books will help build the careers of future historians around the world.
I am further encouraged because chairman John Conyers, the June 8 Washington Post reported, "is looking into the role played by administration lawyers" in all of these crimes.
Conyers, calling treatment of detainees "a truly shameful episode," emphasizes that Bush's "enhanced" interrogation techniques were "used under cover of Justice Department legal opinions," and so "the need for outside counsel is obvious."
And since the letter from the 56 House Democrats is going to Attorney General Michael Mukasey—who claims that he cannot prosecute any perpetrator of these alleged war crimes because, by golly, they were authorized by Justice Department legal opinions—these House patriots are saying that Mukasey must appoint a special counsel rather than handle the investigation himself.
To give you a snapshot of Michael Mukasey's dedication to the rule of law and its essential requirement of fairness and impartiality in all trials, Bush's attorney general recently told an annual conference of Washington federal judges that trials of suspected terrorists by military commissions at Guantánamo will be "in the best traditions of the American legal system" (New York Sun, June 5). On June 12, the Supreme Court, declaring the commissions unconstitutional, exposed Mukasey's constitutional ignorance.
The administration lawyers, whom Conyers is also going after, designed those Guantánamo military commissions after advising Bush that the prisoners were not entitled to the protections of habeas corpus and the Geneva Conventions—and didn't have to be tried in our federal courts.
In Beyond the Law, Paust says of these lawyers (most of them graduates of our premier law schools): "Not since the Nazi era have so many lawyers been so clearly involved in international crimes concerning the treatment and interrogation of persons detained during war. . . . Such a direct role in a process of denial of protections under the laws of war [and our Constitution] is far more serious than the loss of honor and integrity to [presidential] power. It can form the basis for a lawyer's civil and criminal responsibility. . . .
"[These were lawyers] . . . directly advising how to deny protections in the future (denials of such protections are violations of the laws of war and war crimes)." And dig this: The administration lawyers advised the president how to take "actions that allegedly would avoid the restraints of various criminal statutes and their reach to the President and others with respect to future conduct," and especially with respect to the planned "coercive" interrogation tactics authorized by George W. Bush. (Emphasis added).
Next week: the legal and historic precedents for "command responsibility."