Crime and Punishment
To the victors go the spoils, and the winners of wars write the history books. Let’s add to the list of truisms, Americans don’t get tried for war crimes, whether they deserve it or not.
Or do they?
The media has been reporting the details of the executive summary from the Senate Armed Services Committee’s study of U.S. interrogation tactics (i.e., torture) since the start of the war on terror. The report has led some people to think the Committee is laying down the groundwork for someone convening some kind of trial, though I doubt it would be like the first war crimes trial, Nuremberg (more on that later).
The executive summary puts it out bluntly:
“The abuse of detainees in U.S. 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.”
The New York Times noted this week that “the officials…issued legally and morally bankrupt documents to justify their actions, starting with a presidential order saying that the Geneva Conventions did not apply to prisoners of the “war on terror” – the first time any democratic nation had unilaterally reinterpreted the conventions.”
Well-timed with the report’s release was an article by Michael Ratner in the Winter 2008 issue of Amnesty International. The article is an excerpt from his book The Trial of Donald Rumsfeld, in which Ratner conducts his own trial of the “war criminals” responsible for the torture at Abu Ghraib, Guantánamo, and the secret CIA prisons around the world. The defendants include Donald Rumsfeld, George Tenet, Alberto Gonzalez, John Yoo, David Addington, and others. Our pres and veep are off the hook because they cannot be charged with crimes allegedly committed while in office.
Ratner traces the history of the various memos written to spell out the tactics that would be used and their justification. They started with saying detainees would not be considered prisoners of war and thus not subject to the Geneva Convention, Bush’s memo saying torture could be used if it were required by necessity, and Yoo’s memo saying, in effect, the president can orders certain tactics that seem like torture and not be breaking the law - the Geneva Convention, other international agreements, and our own laws be damned. And of course, what constituted torture was narrowly defined, moving away from the widely accepted notion of torture as, in Ratner’s words, “intentionally inflicting significant pain, or putting someone in fear of serious physical injury.” I don’t know about you, but if I were naked and someone pointed a fang-bearing, growling dog at my balls and said Fido was going to remove them for me, I would be in fear of some serious physical injury.
The Yoos and Addingtons and others who wrote these memos, did they believe all this putrid rationalization of what almost everyone else sees as torture? I don’t know. Maybe they were just following orders (hmm, that Nuremberg scent again). But as we learned this year, somebody in the government should have known they were teaching torture techniques to CIA and military interrogators. Some of the tactics came from a 1957 report that documented the techniques used to coerce false confessions from captured American GIs during the Korean War. And everybody knew Cheney’s favorite party game, waterboarding, was on the list of proscribed tactics.
I suppose if you want to defend Bush and his partners in crime, you say the ends justify the means: gotta protect the homeland. But then you have people inside and out of the military and intelligence communities saying no – the info we get through torture is not guaranteed accurate. Just the opposite, as folks have a tendency to tell you what you want to hear so you won’t keep them in stressful positions for hours, hosing them down with cold water, or depriving them of sleep.
Bringing up Nuremberg in the context of Ratner’s article and the Senate report might upset some people. You, you mean you’re equating our president and his aides with the Nazis? No, not exactly (though the “only following orders” comment does show some kind of bias…). The administration did not commit atrocities on a grand, psychopathic scale. But Americans who thing being patriotic means shutting down your reason and morality during wartime need to accept the facts: our leaders lie. At times they break the law. And those who are guilty should be punished, especially if we want to live up to the high values we constantly assert we govern by. At the least, there was in this case a perversion of justice, of the rule of law, that would have shocked Robert Jackson, the chief U.S. prosecutor at Nuremberg. Ratner cites this quote from Jackson’s opening statement in November 1945 (which can be found here):
“But the ultimate step in avoiding periodic wars…is to make statesmen responsible to law. And let me make clear that while this law is first applied against German aggressors…if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment.”
And of course, those sitting in judgment included the United States.
Norbert Ehrenfreund was also at Nuremberg, serving as a reporter for Stars and Stripes. Later, he went to law school and then served as a California superior court judge for 30 years. In 2007, he published The Nuremberg Legacy. The trials of Goering and hundreds of other Nazis created the framework for future international tribunals and established the notion of war crimes. It also said that even those accused of the most heinous crimes during war would face some semblance of fair justice (whether that has been carried out at all times, some might disagree, but again, the winners do call the shots). Because of Nuremberg, Ehrenfreund argues, the world created the UN Declaration of Human Rights, and amended Geneva Conventions on prisoners’ rights and torture, and passed the UN Conventions Against Torture. The Bush stance on detainees and torture, on denying habeus corpus and due process, violated all those protection. They were blots on the country and were “not the legacy that Nuremberg promised. America must take back that legacy and save itself from being lost in the name of national security.”
A war-crimes trial of our own, right here in the USA, might be one way to start. But don’t hold your breath. We are the “victors,” and we don’t try our own. Hell, we didn’t even bring impeachment charges against the one president most deserving of them in 220 years of US history (not that Nixon didn’t deserve them; Clinton - well…not the place for that argument. But on the scale of lying about blowjobs and Bush and Co’s acts, you know where I stand). I guess we will have to suffice with Ratner’s mock trial. Or the online “jury vote” carried out by Philip Zimbardo (and reported here). Or hope that I’m wrong and somewhere, here or abroad, someone has the guts to bring the charges against Rumsfeld and others that they deserve.