War Crimes, USA

Could administration officials be called to account?

Interview with Jeremy Brecher, Jill Cutler, and Brendan Smith

by Mark Engler

Mother Jones magazine, December 5, 2005

In normal times, suggesting that the leaders of our country might have committed war crimes would violate a firm taboo in American political discussion. Yet in the post-Abu-Ghraib era-and especially as President Bush has quarreled with Congress over the McCain amendment prohibiting abuse of all detainees in U.S. custody-observers can no longer profess shock at the idea that criminal breaches of humanitarian law have occurred. According to a recent editorial in the Washington Post, the amendment "would mandate an end to the hundreds of cases of torture and inhumane treatment, many of them qualifying as war crimes, that have been documented by the International Red Cross, and the Army itself at Guantanamo Bay, Cuba, and in Afghanistan and Iraq, and elsewhere."

With the White House on the defensive about its justifications for the invasion of Iraq, and with European governments in an uproar over whether American abuse of prisoners has taken place in bases on the continent, scrutiny of alleged U.S. war crimes looks sure to intensify. And if debate about this inflammatory topic begins to rage, a new book, edited by Jeremy Brecher, Jill Cutler, and Brendan Smith, promises to add fuel to the fire. In the Name of Democracy: American War Crimes in Iraq and Beyond collects damning official documents, leaked e-mails, testimonies, commentaries, and investigative articles. Together, these items make a strong case that Bush administration actions overseas violate international norms and treaties, and that those responsible are subject to legal repercussions.

Are we actually going to see Donald Rumsfeld stand trial? Motherjones.com talked to the editors about why the issue of war crimes may become an ever-sharper thorn in the side of administration officials, about the potential and the limitations of international law, and about the obligation of citizens to prevent further crimes from being committed.

Historian Jeremy Brecher has written and edited over a dozen books, including the labor history classic, Strike! Jill Cutler is an assistant dean at Yale College and editor of Global Visions: Beyond the New World Order. Brendan Smith is a legal scholar and former congressional aide to Representative Bernie Sanders (I-VT).

Mother Jones: Does accusing United States of war crimes make you sound out of touch with mainstream American sentiment? Wouldn't most people think that these accusations are coming out of left field?

Jeremy Brecher: If the United States is involved in committing war crimes, we as Americans have a responsibility to address that. I don't think hiding from reality is a solution to the fact that no one likes to be told that they're doing something wrong.

The second point, though, is that Americans actually are very worried that our country may be doing things that are not in accord with our own values. Appealing to that concern isn't a matter of trashing our country, but of giving Americans a means of confronting what our government has been doing.

Jill Cutler: People who work at the FBI, Senators, and Congressmen are very concerned about our conduct in the war on terror. The FBI was concerned about the torture that was occurring in various places. Military officials are concerned that the Army's field manual is not being observed.

Brendan Smith: The concept of war crimes is actually bringing together some unlikely allies. Paralleling the peace movement, we're seeing what we could call a "law and order movement." Here, you have organizations like Amnesty International and the ACLU that are concerned with civil liberties and human rights. But you also have a dozen retired military officials, led by Marine Corps General David Brahms, who wrote a letter to the Senate Judiciary Committee saying that it should not confirm Alberto Gonzales as Attorney General because he promoted violations of the Geneva Conventions.

JB: The public attitude about war crimes has changed a lot since the beginning of the 1990s. We've moved away from a situation where war crimes were just epithets that governments used to bash foreign leaders they didn't like. Now, we've seen tribunals for the former Yugoslavia and for Rwanda. We have the International Criminal Court, which, even though the United States is not part of it, is designed for the purpose of trying war crimes. The United States itself has brought either formal charges or accusations of war crimes against other countries' leaders-including, as we speak, against Saddam Hussein. So this is a concept that we are becoming more familiar with, something that is regarded as part of the fabric of law.

Mother Jones: The idea that the U.S. could commit war crimes is taboo, yet on the other hand, it's taken for granted that our country has a special role in the world--that America is an exception. And that exceptionalism gives the U.S. a certain prerogative to act without having to submit to an international litmus test.

JB: This is a claim that's made by the Bush administration, but when you look at the poll data, it's quite clear that this belief is not widely shared by the American people. There's a very interesting set of polls done by an organization called PIPA, the University of Maryland's Program on International Policy Attitudes. They show that most Americans believe that the United States is bound by international law and by the Geneva Conventions. It's this fundamental belief in law, including both national and international law, that we're hoping to appeal to.

For me personally, it goes back to the pictures I saw of the Nazi concentration camp victims when they first came out after World War II, and to hearing about the Nuremberg tribunal. I'm too young to remember the tribunal actually happening, but I certainly learned about it at an early age. The idea that top officials could be held responsible for crimes committed by those under their command seemed to me to be an essential part of how to make some decency and peace in the world.

There was an attempt to apply that idea to the Vietnam War, but there was no mechanism for actually enforcing it-even though the Bertrand Russell Commission held a tribunal in what we would now call civil society to investigate alleged U.S. war crimes. But as we moved through 1990s, war crime tribunals became live institutions. And that raised the question of whether this could really be meaningfully applied to every country, including the United States.

BS: Beyond exceptionalism, there is a more grounded principle in American society, which is that even the most powerful among us are accountable to the law. If you juxtapose those two principles, accountablilty and exceptionalism, I think the one that wins out is accountability.

Mother Jones: What specifically are the war crimes that you are identifying?

BS: We are talking about three categories. The first are crimes against peace. After Nuremberg an idea took hold that launching an aggressive war is the supreme international crime. There are only a few specific circumstances where a state can use force against another state. The U.N. charter says either you need a resolution from the Security Council or you need to be acting in self-defense from an imminent and immediate attack. In the current situation, the U.S. launched an aggressive war in Iraq that even Kofi Annan declared illegal.

The second category of crimes concern the conduct of the war and occupation. This would include the administration's use of illegal weapons, such as napalm, white phosphorus, and cluster bombs. It includes a failure to protect civilians. It includes trying to break the Iraqi insurgency with collective punishment against the civilian population-with acts like cutting off water supplies. This is a practice we saw in Fallujah and elsewhere, and which the U.N. has condemned.

Fallujah actually summarizes several of these crimes. There we had eight weeks of bombing, we destroyed 36,000 houses, 60 schools, and 65 mosques. One of the military's first acts was to storm the hospital. The U.S. cut off all food supplies, all power to the entire city. The Defense Department said that all the civilians were out at the time of the attack, but reports show that 30,000 to 50,000 civilians remained in the city. The U.S. blocked the Red Crescent from entering. All males between 15 and 55 weren't allowed to leave. So in Iraq, Falljah has become iconic of American war crimes and brutality.

The third set of war crimes centers on torture. Here, the question is not whether it's happening, it's how often and who's responsible. When we wrote the book there were 32 deaths of prisoners in U.S. custody reported. Now there are over 100. The FBI reports cases of strangulation, burning with cigarettes, routine beatings.

JC: Failure to count civilian deaths is also a war crime, a violation of the Geneva Conventions.

Mother Jones: Certainly, war is ugly. Terrible things happen in war. But the charge that these types of things are criminal seems to be controversial. The administration would respond, for example, that they are trying their best to prevent civilian deaths.

BS: Our claim is that there is more than enough evidence to bring an initial indictment or to hold an investigation. The finer questions of whether a certain attack-like the attack on the hospital in Fallujah, whether that was a legal attack because the building was overrun by insurgents or whether the facility was a functioning hospital serving the sick and wounded-is a factual question. It should be up to a jury; it should be up to a court of law to decide.

JB: The failure of the U.S. to record and investigate the deaths of civilians really goes to the heart of this. If you do not investigate the killing of civilians by bombs, or at road blocks, or in house-to-house fighting, you have no way to know whether your operations are being conducted in accord with international law or not. That's why knowledge of the effects of warfare on civilians is the legal responsibility of military commanders. There are open statements-specifically by Mr. Rumsfeld-that these things are not being investigated, that no records of civilian deaths are being kept. That is an inherently criminal act.

Mother Jones: Torture may be the war crime that we hear the most about, and perhaps there's good reason for that. The evidence on torture, particularly the testimony of those who have been tortured in Guantanamo or Abu Ghraib, and the leaked documents from our government showing official knowledge of this situation, seems exceptionally damning. I wonder if that's how you would account for the focus on this area.

JC: The evidence of other war crimes is also very strong and quite striking. I think maybe people have a special feeling about torture because they feel a democratic nation doesn't use it. They don't care so much that a democratic nation uses the deprivation of water against civilians. We respond more strongly to the idea of torture because we can see it happening to ourselves. Most of us can't see ourselves in a position where our city is deprived of water.

BS: Like any good prosecutor, you go with your strongest case first. And the strongest case out there, because of the incredible work of Amnesty International, the ACLU and other groups, is torture. We know about these leaked memos because of Freedom of Information Act cases by the ACLU and other groups.

Another thing that really struck a raw nerve right at the beginning was the scapegoating of low-level soldiers like Lynndie England. The administration argued that that this was just a matter a few rotten apples, when actually high-level officials are responsible.

Mother Jones: Recently, one of the daily newspapers in New York had a large picture of President Bush on its cover and a banner headline that was a quote from him, saying: "We are not torturers." The fact that he would have to make this denial seems to me to be extraordinary in the U.S. political context.

JB: We are seeing the fallout from some ideas and practices that probably have never been pushed so openly to the extremes. One is the idea that the President has unlimited power. This argument has been made before, and certainly the executive has had wide latitude in wartime. But people are now being forced to confront the fact that, taken to its logical conclusion, this idea means the President can simply order that people be tortured. The Bush administration has actually said in court that if it decided to summarily execute those it held captive, no court would have the right to intervene. They actually said that in court.

Then there's the doctrine of preemptive war. The White House has taken this so far as to say that it has the right to do anything it claims is in defense of national security--and that international law has no claim to stop it.

These are such extreme positions that they are beginning to force people to say, "Where are the lines?" There must be some lines we can't cross. And I think once that question is raised, it is a moment for self-education for all of us--a moment for thinking about where those lines we cannot cross actually lie.

BS: I believe the Bush folks are really in trouble. Sweden, Iceland, Spain, Italy, and the European Union's human rights commission are all investigating the CIA for torture-they're looking at charges that the U.S. has reinvented the Gulag inside the gulags of Poland and Romania. Various mainstream groups like the ACLU and Human Rights First are already going after Rumsfeld for his direct role in the torture.

I don't think the Bush administration knows how to get out of this situation. Its solutions are things like having Vice President Cheney lobby on the Hill to make an exemption in the McCain anti-torture amendment, so that CIA officials can torture as a matter of policy. In response, the Washington Post labeled Cheney the "Vice President for Torture." The administration must be getting the sense that this has really spun out of control.

Remember, they've explicitly expressed worry about charges of war crimes. When Gonzales wrote his torture memo of January 25, 2002, it warned the President about possible prosecution under the U.S. War Crimes Act of 1996, which makes any grave violation of the Geneva Conventions a crime under U.S. federal law. The President's counsel is actually warning him there that he needs to think through this problem and to plan so that he's not going to be busted for war crimes.

Mother Jones: You argue that one implication of looking at the Iraq war from a war crimes perspective is that it changes the way we see war resisters.

JC: It doesn't necessarily change the way we see war resisters, but it certainly leads us to put a higher value on their resistance. What stands out for me is that the people who do resist, especially military resisters, often face horrific consequences. When Greg Ford, a 30-year Coast Guard veteran, went to tell his superior officer that prisoners were being tortured by his unit in Samarra, Iraq, he was told that he had 30 seconds to change his mind about making the report. When he refused, he was airlifted to a psychiatric hospital in Germany. In this context, I think resisting takes a kind of courage that we can hardly imagine.

JB: One of the things that has been striking in profiling some of the resistors is how much resistance is based on a defense of national and international law. In late 2004 a military judge listened to the testimony of Pablo Parades, a sailor who was ordered to get on a ship bound for Iraq, He showed up in a t-shirt that said, "Like a Cabinet member, I resign." He refused to go on board because he was convinced that the war violated the law. The remarkable thing is that the judge ultimately refused to send Paredes to jail. He said that the government's case against the sailor was so weak that there was reasonable cause to believe that the war in Iraq was illegal.

I don't think we're going to see a large number of judges in the military declaring the war illegal. But this is an extreme reflection of a deep concern about the illegality of the Bush administration's actions that is widespread among military lawyers.

Mother Jones: In the book you discuss the "evident limitations" international law. You write, "Surely there is little expectation that members of the Bush administration will soon be subject to war crimes prosecution in U.S. courts." Yet you argue nevertheless that war crimes are an important part of a wider strategy to confront White House lawlessness.

BS: When we wrote the book, I never imagined that we would be where we are today, with so much action in the courts. Still, I think that the general point is valid. I think we should be skeptical of the law as alternative to organizing.

At the same time, the law can be a force that supports social movements. One manner in which movements use the law is called popular constitutionalism--the use of legal concepts to legitimize social goals. We saw this when Martin Luther King argued that the Constitution was a promissory note, that it promised equality to all people, and that the civil rights movement was there to cash in the note. There's a long history of using legal documents in this way.

Social movements can also capitalize on unintended developments in the law. There are parts of the law that are very progressive but were never intended that way. For example, President Truman insisted, against the wishes of Churchill, that Nazi and Japanese military leaders have a fair trial, with due process. Churchill at the time was arguing for summary execution, that the enemies should be drug out behind the building and shot. But Truman, who was originally a small-town judge, believed in an abstract concept of legal justice. He was only thinking about the Nuremberg trials. But when war crimes trials developed in later decades-against Milosevic, for example-they needed precedents. And they looked to the Nuremberg trials. We want to encourage the on-going development of war crimes law and use unintended developments to advance the goals of social justice.

JB: A key example that I would raise is the Brown vs. the Board of Education decision, which ruled that separate was not equal. To the extent that integration occurred in the United States in the decade after the Brown decision, it was not because of the courts. It was primarily because of the actions of the civil rights movement. However, the legal principle gave a basis for action. The civil rights movement ultimately had to use not only political persuasion but also civil disobedience on a massive scale in order to achieve what the court decision had promised. I would not be surprised if the implementation of war crimes law will require that same kind of social action.

Our book ultimately is not a compendium of crimes. It is about giving us, as Americans, the understanding, knowledge, and perspective to deal with a reality that otherwise is quite overwhelming. I think it's very important that, as a society, we assimilate lessons of what's happened in Iraq. We didn't assimilate the lessons of Vietnam very well. We knew that something bad happened. But as a country we never really saw the fundamental mistakes that led us there. That's one of the reasons we facing the catastrophe in Iraq today.

One purpose of raising the war crimes issue is to point out that we got in to this partly because we didn't have barriers, principles, and values in our society to say that certain things are unacceptable. If anything constructive is to come out of the horrors of the United States in Iraq, it will be that kind of reflection and the creation of limits that will prevent us from doing it again.

[Note: This month Brecher, Cutler, and Smith are launching a War Crimes Watch web site to track continued evidence of war crimes and national efforts to stop future crimes from being committed.]

Mark Engler, a writer based in New York City, can be reached via the web site www.democracyuprising.com.

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