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Above the Law: U.S. Crimes during The War on Terror

By Henry "Chip" Carey

International criminal tribunals, as well as domestic prosecutions for extraordinary crimes are on the rise. The conviction of former Liberian President Charles Taylor for war crimes and crimes against humanity in the Special Court for Sierra Leone on April 26 is the first international prosecution of a former head of state since the 1946 conviction of Admiral Karl Dőnitz, the nominal German leader after Hitler’s suicide, at the Nuremberg trials. In September 1998, the International Criminal Tribunal for Rwanda (ICTR) prosecuted Rwandan Prime Minister Jean Kabanda, who pled guilty for genocide.

The guilty verdict for Taylor sends a signal that the international community will no longer tolerate impunity for heads of state and governments who commit crimes. This marks a trend toward criminalizing acts that were previously viewed as political or military options such as: declaring war on other countries, torture, extrajudicial disappearances, executions, and systematic rape. 

However, one must ask whether this is an exception to the rule of impunity and that the reason for Taylor's conviction had more to do with the politics of the powerful states that funded the Sierra Leone hybrid court and who arranged for his arrest at the Nigerian border and extradition from Liberia. The international community has shown no such resolve to punish other equally guilty leaders of great powers who have fit the Nuremberg precedent for prosecuting leaders based on actions like torture and indefinite detainment.

Most world leaders, however, who plan unjust wars and crimes against humanity have little to fear from this Taylor verdict, except possibly the heads of weak states who no longer serve great powers' national interests.

One example was the late Slobodan Milosevic, who was extradited and arrested six months after the 2000 revolution against his attempted presidential electoral fraud in Serbia and  about one year after he had yielded in June 1999 to NATO’s demand for Serbian withdrawal from Kosovo. His eventual trial at the International Criminal Tribunal Yugoslavia (ICTY) was terminated when he died about two and a half years into legal proceedings, which were marred by his forged documents, witness intimidation, and dilatory historical rants.

There are real concerns for encouraging credible peace negotiations based on amnesties in end-of-war or regime transitions—the high costs of litigation and the occasional illegitimacy of formal prosecutions in rural areas which have their own customary law. However, Milošević was no longer in power when the new prime minister of Serbia agreed to extradite him to the Hague for trial at the ICTY.

Countries such as Peru, Argentina, and Chile have been pioneers in the domestic prosecution of former leaders and security officials for murder and torture. These countries have  systematically proceeded to enforce the law, often after courts and/or legislatures have declared any prior amnesties regarding crimes against humanity illegal. In Uruguay’s case, there were two national plebiscites against ending the amnesty. But after that, the country joined its South American counterparts in ending its amnesty in 2011, although it has not yet established any truth commissions or prosecutions. In Argentina's case, it initially prosecuted its junta leaders soon after its regime change in 1983. But the subsequent elected president, Carlos Menem, pardoned the junta leaders. However, in the past six years, Argentina has reversed the amnesty encouraged by Menem and has become a world leader in prosecuting hundreds of defendants suspected of crimes against humanity.

South Africa took a different approach. Those who committed atrocities in the ruling African National Congress regime were able to negotiate settlements and were granted amnesty by President Nelson Mandela. However, this was done only under the condition that the guilty parties would confess their crimes before a Truth and Reconciliation commission.

There is however a big contrast in how advanced democracies like the U.S., Israel, France, and India, have handled cases of alleged crimes against humanity. Few, if any, prosecutions of war crimes have taken place, gravely weakening the credibility of norms for punishing crimes against humanity.

The U.S. and Israel have routinely conducted acts of torture, from water-boarding, stress positions, sleep deprivations, shackling, sexual humiliation and beatings—all in violation of the Anti-Torture statute, which applies for actions outside U.S. territory. In Israel, the “Shabah” position is still used, despite being banned in a 1999 Israeli Supreme Court decision. Like the parsing of language during court interrogations, the Israel Security Agency, whose officials have never been prosecuted, simply alter the precise position used from past practices in order to avoid committing criminal acts—even though torture is still being used, as Israeli human rights groups like B’Tselem and the Public Committee against Torture in Israel (PCATI) have documented.

This problem is also demonstrated by the reckless 840-odd detentions at Guantánamo, where no more than 20 percent had committed a crime of any kind, according to studies by UC Berkeley School of Law and Seton Hall Law School in Newark. President Obama’s own Guantánamo Task Force in mid-2009 also concluded that only 100 out of the 850 detainees held there since 2002 needed to be detained. About 150 detainees still remain there and none of the hundreds of innocents who were unjustly detained and tortured have received reparations as required by the UN Convention against Torture and U.S. law.

Not one U.S. or Israeli official, other than low-ranking soldiers or police, have ever been prosecuted or held liable for complicity with torture.

Even though American constitutional rights, such as habeas corpus, date back to the Magna Carta, this oldest of rights has been denied to those the U.S. decides or suspects to be terrorists, whether or not they are U.S. citizens. Under President Obama, the U.S. continues rendering individuals to countries that torture, such as Egypt. Before, this was called “extraordinary rendition,” because the CIA made the decision to violate the Convention against Torture and the U.S. enabling legislation, both of which prohibit rendering someone to a country where it is likely he or she would be tortured. Obama ended the CIA’s role in this process, but now, the Justice Dept. can render anyone to Egypt for trial, which has no practical effect, since most or all prisoners suspected of terrorism or mere political dissent in Egypt are tortured.  “Extraordinary rendition” under President Bush and “ordinary rendition to trial” under Obama has amounted to the same thing since Attorney General Holder’s view of the war on terrorism is the same as his predecessors, Michael Mukasey, Alberto Gonzales, and John Ashcroft.

One notable case of where this went wrong was with Maher Arrar. Following a tip from the Canadian government to American authorities, he was detained at JFK Airport in New York. He was then rendered to Syria where he was held and tortured for 10 months. He was able to negotiate a $10 million settlement from the Canadian government, but American courts accepted the Obama administration's argument that no civil or criminal trial could proceed because of U.S. national security claims. 

Obama's claim that he outlawed torture is similarly weak. Torture by U.S. government officials still happens under the Obama administration. The case of suspected Wikileaks leaker Bradley Manning is one such example. Even before Manning was charged with espionage for his alleged theft of classified documents given to Wikileaks, he was held for months, without clothes, under solitary confinement. What is more troubling is the increased deaths of Afghan civilians due to drone attacks by the U.S. Under Obama, drone air strikes have intensified, killing more civilians and creating more resentment from Afghan partners for the U.S. presence in the country. Recently, a U.S. airstrike killed 5 children and their mother. This war on terrorism on the cheap, is not only criminal and immoral, it is also counter-productive.

American courts accepted the Obama administration's argument that no civil or criminal trial could proceed because of U.S. national security claims. No victim of rendition has ever received an apology or acknowledgment in a U.S. court. For example, three British citizens known as the Tifton Three were arrested while touring Afghanistan and then tortured in Guantanamo, only to be told after their release that they could not sue because they were non-persons under U.S. law.

The lack of accountability in the U.S. and other Western states in reference to crimes against humanity such as torture, enforced disappearances, rendition to trial in torturing states, and the deaths of innocent civilians stands in direct contrast with the idea that only the rank and file are prosecuted or even identified. The risk of harming the innocent, as well as the use of prohibited methods, even against terrorists, is an ongoing reality.

Mark Danner, a journalist and UC Berkeley professor, describes this state of affairs as the “new normal.” U.S. officials continue to break the law with impunity excused by a “state of exception,” which the public tolerates or supports, even though democratic rights, the rule of law and constitutional democracy are eroding.

U.S. officials continue to say, a la President Bill Clinton’s dictum, “that depends on what the meaning of is, is.” The parsing of words by the chief of the National Security Agency (NSA), allows him to claim recently that there is no “intercepting” conversations of American citizens. But the NSA is continuing to listen to private conversations. It is just not “intercepting” them, because the word has been given a different definition from what we assume it means. Thus, there is a tremendous need, if not for prosecutions, then for a public inquiry or truth commission to detail what human rights violations are currently veiled in secrecy and lies—as well as clarifying what are the real, if any, counter-terrorism intelligence accruing from these ostensibly criminal acts.

Poland has just charged its Interior Minister of 2002-2004, Zbigniew Siemiątkowski, for allowing the CIA to torture the “high value detainees,” such as the waterboarding of Khalid Sheik Mohammed 183 times and Abu Zoubaydah 83 times. Romania has been exposed by the press for receiving many CIA detainees from Poland after the latter closed its prison and then housed them in Bucharest at 4 Mureş Street. The Council of Europe and the European Parliament, along with Germany, Italy, Spain, and the UK, are investigating the claims of torture by the U.S. government and military and extraordinary rendition on their territory.

The U.S. will not be able to fight wars against terrorism without its European allies. This issue of violent human rights violations by the U.S. government will not disappear, even if it refuses to cooperate with any of these investigations. In Argentina, it took 30 years of civil society lobbying before prosecutions occurred. In terms of scale, the U.S. was not responsible for 30,000 disappearances, as in Argentina. Still, we do not know what the U.S. has done to the innocent, nevermind the guilty, who were not allowed due process. Current policies are unexamined and will come back to haunt the United States because Obama has not yet authorized a commission to explain what occurred in these interrogations and what intelligence benefits, if any, ever accrued. To alter policies, it is necessary to show that these alleged crimes against humanity are hurting the country by straining relations with the developing world—whose leaders are prosecuted for the same crimes the United States is being accused of—and perhaps more importantly, by straining relations with its allies.

To defend democracy, a state cannot be hypocritical. To fight terrorism, democracies need to fight, in the words of Israeli Judge Ahron Barak in his 1999 Supreme Court judgment, “with one hand tied behind their back.” In this PCATI case, he wrote:

“This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties.”

The U.S. can win the war on terrorism, and it can be fought as a war—but not by torturing and killing the innocent and failing to prosecute those who do. Our failure to prosecute is not only criminal; it will only continue this endless war by creating more terrorism and encourage other countries to follow our bad examples.

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Henry "Chip" Carey is an associate professor of political science at Georgia State University. He is author of  Reaping What You Sow: A Comparative Examination of Torture Reform in the United States, France, Argentina, and Israel and Privatizing the Democratic Peace: Policy Dilemmas of NGO Peacebuilding (Rethinking Peace and Conflict Studies).

[Picture courtesy of Paul Keller]

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