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War Crimes R Us

December 22, 2015

Watching the Republican presidential debate last Tuesday night, I kept flashing back to George W. Bush's acceptance speech at the 2000 Republican National Convention. Vice President Al Gore, Bush charged that August night, "now leads the party of Franklin Delano Roosevelt, but the only thing he has to offer is fear itself." Coming as it did even as the economy boomed and two wars in the Balkans had been ended by Democratic leadership in the White House, Bush's slander was bad enough at the time. But now, with Bush's would-be heirs on stage warning that "America has been betrayed" even as "our nation is in grave danger" and "we have people across this country who are scared to death," the perpetual fear machine that is now the GOP makes Dubya's dig all the more grotesque. In the age of ISIS, the Daddy Party has become the Bedwetter Party.
But along with ISIS itself, that legacy isn't the only one President Bush bequeathed to Americans. Propagating a constant fear of terrorism that is worse now than after 9/11 doesn't just produce people baselessly believing they are "living night and day in the Valley of the Shadow of Death." Terrified people will do terrible things--and tolerate almost anything--just to make the dread stop. And in that environment, the Republicans' best and brightest showed with such bravado in Las Vegas on Tuesday, torture, war crimes and other horrific acts once unthinkable for Americans are the new normal.

Just in time to mark the one-year anniversary of the release of the Senate torture report, frontrunner Donald Trump told the assembled GOP faithful that collective punishment must be an arrow in the quiver of American responses to terrorist acts. In Las Vegas, he repeated his earlier promise that President Trump would order the families of terrorists to be killed:

"You look at the attack in California the other day--numerous people, including the mother that knew what was going on," Trump responded. "They saw a pipe bomb sitting all over the floor. They saw ammunition all over the place. They knew exactly what was going on."
"I would be very, very firm with families," he added. "Frankly, that will make people think, because they may not care much about their lives, but they do care, believe it or not, about their families' lives."

Famed neurosurgeon turned GOP White House hopeful Ben Carson suggested that he, too, would use his gifted hands to commit war crimes banned by U.S. treaty obligations. Carson assured panelist Hugh Hewitt that he was "OK with the deaths of thousands of innocent children and civilians" by turning to an analogy from the operating room:

"You have to be able to look at the big picture and understand that it's actually merciful if you go ahead and finish the job, rather than death by 1,000 pricks."

Speaking of pricks, Texas Senator Ted Cruz doubled-down on his pledge to "carpet bomb ISIS into oblivion" and test "whether sand can glow." But with his First Gulf War comparison, Cruz didn't just show his ignorance of terms like "carpet bombing" and "saturation bombing," but of the obvious distinction between targeting conventional military forces in the field versus pockets of terrorist fighters embedded in civilian population centers. Then, of course, is that small problem that Rand Paul highlighted for Cruz, Carson and Trump:

"If you are going to kill the families of terrorists, realize that there's something called the Geneva Convention we're going to have to pull out of. It would defy every norm that is America. So when you ask yourself, whoever you are, that think you're going to support Donald Trump, think, do you believe in the Constitution? Are you going to change te Constitution?"

For his part, former Florida Governor Jeb Bush repeatedly insisted Trump wasn't a "serious" candidate. But the serious Mr. Bush previously made clear he had no serious qualms about waterboarding. As the New York Times reported in August:

"I'm not ruling anything in or out," he said in the evening when asked by reporters if he would prohibit waterboarding. He distinguished it from torture, which he said he would never allow. "There's a difference between enhanced interrogation techniques and torture," Mr. Bush said. "America doesn't torture."

But the United States did torture. And we know this not just because President Obama casually announced, "we tortured some folks." In November 2014, the U.S. delegation to the quadrennial review of the United Nation's Convention Against Torture "acknowledged that the United States had tortured terrorism suspects after the Sept. 11 attacks." And one year ago, the highly redacted executive summary of the 6,300 page Senate Select Committee on Intelligence report on torture introduced Americans to terms like "rectal hydration" and "rape by broomstick."

But what the United States did not do--what President Obama did not do--is hold anyone accountable for either those acts of torture or the preposterous and dangerous legal framework the Bush administration erected to justify them. Placing political expediency over principled rule of law, Obama refused to "look backwards" to prosecute those responsible, even when they bragged about their culpability.
President Bush's endorsement of the use of waterboarding and other enhanced interrogation techniques against 9/11 mastermind Khalid Sheikh Mohammed and other terrorism suspects came during an appearance before a business audience in Grand Rapids, Michigan in June 2010. As CNN reported:

"Yeah, we waterboarded Khalid Sheikh Mohammed," the former president said during an appearance at the Economic Club of Grand Rapids, Michigan, according to the Grand Rapids Press.
"I'd do it again to save lives," he added.

If that sounds familiar, it should. That February, Dick Cheney bragged to ABC's Jonathan Karl is almost the exact same terms:

"I was a big supporter of waterboarding. I was a big supporter of the enhanced interrogation techniques..."

And in that same interview, Cheney confirmed that the both Bush legal team that invented the spurious rationale for detainee torture and those implementing it were merely following orders:

"The reason I've been outspoken is because there were some things being said, especially after we left office, about prosecuting CIA personnel that had carried out our counterterrorism policy or disbarring lawyers in the Justice Department who had -- had helped us put those policies together, and I was deeply offended by that, and I thought it was important that some senior person in the administration stand up and defend those people who'd done what we asked them to do."

Besides, former National Security Adviser and Secretary of State Condoleezza Rice explained in 2011 to her students at Stanford University, what President Bush asked them to do was legal by definition. Echoing Richard Nixon's post-Watergate dictum that "when the president does it that means that it is not illegal," Condi announced:

"The president instructed us that nothing we would do would be outside of our obligations, legal obligations under the Convention Against Torture...The United States was told, we were told, nothing that violates our obligations under the Convention Against Torture, and so by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture." [Emphasis mine]

There are only two problems with the Bush-Cheney tag team defense of waterboarding. The first, as the Senate torture report is expected to once again confirm, is that it didn't save lives. As ThinkProgress noted:

Waterboarding Mohammed 183 times didn't save any lives. In fact, Mohammed told U.S. military officials that he gave false information to the CIA after withstanding torture. Additionally, a former Special Operations interrogator who worked in Iraq has stated that waterboarding has actually cost American lives: "The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001."

The second problem for the Bush torture team is the one President Ronald Reagan raised in his May 1988 signing statement accompanying the Convention Against Torture (CAT). Reagan noted that it "marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment." As the Gipper explained in his message to the Senate:

The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called "universal jurisdiction." Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.

To put it another way, American and international law doesn't give Barack Obama--or any American President--the choice to decide whether "to look forward as opposed to looking backwards" when it comes to torture practiced by the United States. It's no wonder the UN's CAT Committee expert Alessio Bruni asked Assistant Secretary of State Tom Malinowski "if the delegation could give an example of prosecution of public official violating this legal provision."
As Marjorie Cohn detailed in October 2012, the United States has "a legal duty to prosecute torturers":

The US has a legal duty to prosecute those responsible for torture and abuse, or extradite them to countries where they will be prosecuted. When we ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), we promised to prosecute or extradite those who commit, or are complicit in the commission, of torture. The Geneva Conventions also mandate that we prosecute or extradite those who commit, or are complicit in the commission of, torture.

In February 2010, Scott Horton pointed out that the while legal action against members of the Bush administration would be an extremely difficult task, in this case the prosecutors would have one major piece of evidence in their favor:

Section 2340A of the federal criminal code makes it an offense to torture or to conspire to torture. Violators are subject to jail terms or to death in appropriate cases, as where death results from the application of torture techniques. Prosecutors have argued that a criminal investigation into torture undertaken with the direction of the Bush White House would raise complex legal issues, and proof would be difficult. But what about cases in which an instigator openly and notoriously brags about his role in torture?

As a horrified Horton pondered in amazement:

What prosecutor can look away when a perpetrator mocks the law itself and revels in his role in violating it? Such cases cry out for prosecution. Dick Cheney wants to be prosecuted. And prosecutors should give him what he wants.

Ironically, George Washington University law professor Jonathan Turley thought so as well. Turley, the self-proclaimed crusader against over-reaching executive power, is now leading the House GOP's lawsuit against President Obama implementation of the Affordable Care Act. Writing on February 15, 2010, Turley lamented that President Obama had turned his back on the law:

It is an astonishing public admission since waterboarding is not just illegal but a war crime. It is akin to the vice president saying that he supported bank robbery or murder-for-hire as a public policy.

"Because it would have been politically unpopular to prosecute people for torture," Turley later wrote, "the Obama Administration has allowed officials to downgrade torture from a war crime to a talking point." And, as we'll see below, a Republican talking point at that.
Even he before he was sworn in, President-elect Obama made it clear that the Bush, Cheney and their torture architects need not fear punishment from him:

"We need to look forward as opposed to looking backwards."

From a political and economic perspective, Obama's fear of looking into that rearview mirror was understandable. After all, the economy he inherited from President Bush was in freefall. In the last quarter of 2008, GDP collapsed by 8.9 percent; 2.2 million jobs evaporated in the first quarter of 2009 alone. With the economy requiring immediate action and his ambitious agenda for 2009 before Congress, President Obama was afraid to risk a total political conflagration in Washington by launching the kind of investigation the Bush administration's possible war crimes demanded.
So, Obama signaled to Team Bush and its Republicans allies there would be no accountability for their high crimes and misdemeanors. And he did so by reducing war crimes to a talking point conservatives love most: "criminalizing politics." During his confirmation hearings on January 16, 2009, Attorney General nominee Eric Holder declared, "waterboarding is torture." But he also reassured Republicans on the Senate Judiciary Committee about something else:

"I think President-elect Obama has said it well. We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don't want to do that."

Ultimately, President Barack Obama never prosecuted anyone involved in the design and execution of President Bush's program of detainee torture. While the memos authorizing these potential war crimes have seen the light of day, those who ordered and perpetrated them did not. Attorney General Holder announced, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." (Ultimately, none were, as Holder in August 2012 ended his last investigation into two detainee deaths. President Obama went further in seemingly backing away from any legal action against the Bush torture team:

"In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution...
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."

But while Obama was counseling reflection, Republicans and their amen corner were promising retribution if the new President did anything more. If Republican war criminals were prosecuted, conservatives warned, Republicans would launch a scorched-earth response to metaphorically burn Washington to the ground.
Powerline's John Hinderaker made that threat in a piece titled, "Criminalizing Conservatism." "Many liberals don't just want to defeat conservatives at the polls, they want to send them to jail," he wrote, adding, "Toward that end, they have sometimes tried to criminalize what are essentially policy differences." In a scathing editorial on April 23, 2009 titled, "Presidential Poison," the Wall Street Journal went on the attack using the GOP's tried and untrue criminalizing politics canard:

Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret...
Above all, the exercise will only embitter Republicans, including the moderates and national-security hawks Mr. Obama may need in the next four years. As patriotic officials who acted in good faith are indicted, smeared, impeached from judgeships or stripped of their academic tenure, the partisan anger and backlash will grow...
Mr. Obama is more popular than his policies, due in part to his personal charm and his seeming goodwill. By indulging his party's desire to criminalize policy advice, he has unleashed furies that will haunt his Presidency.

But over five years later, no "patriotic official" has been indicted, no judges have been impeached and no professor has been stripped of his academic tenure--not even the one who defined torture as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. Last summer, John Yoo was awarded an endowed faculty chair at the UC Berkeley School of Law. Bush appointee Jay Bybee remains on the federal bench. Cheney's legal alchemist David Addington is now creating alternative realities at the Heritage Center. Psychologist James Mitchell, one of the consultants who helped the Bush administration render the Geneva Conventions quaint, didn't lost his professional credentials, even after claiming, "I'm just a guy who got asked to do something for his country." Jose Rodriguez, who as head of the CIA's clandestine service personally ordered the destruction of dozens of interrogation videotapes, is a conservative hero who has smeared the soon-to-be released Senate Intelligence Committee report on the CIA torture program despite having never read a word of it. Meanwhile, Dick Cheney appears regularly on your television screen to accuse President Obama of treason. As for Cheney's former Oval Office sock puppet, George W. Bush is free to paint himself in the shower and give speeches to "replenish the ol' coffers."
But that's not all that's gotten replenished as the wrongdoers again went unpunished in the wake of the Senate torture report. The post-9/11 American appetite for--or at least tolerance of torture has grown.
As polling from AP, the Pew Research Center, and others has suggested, the American people increasingly believe torture of terror suspects can be justified. It may just be that a decade after the disgusting images from Abu Ghraib, the "debate" over torture has immunized to the reality. Perhaps years of repeated (though debunked) torture defenses, clashing claims that its efficacy "saved lives" and "prevented attacks," bureaucratic euphemisms such as "enhanced interrogation techniques" and catchy talking points like "bad apples" and "Club Gitmo"--and worse--have made the once unthinkable seem commonplace and even routine for many Americans.

Writing in the Washington Post, Christopher Ingraham concluded, "Let's not kid ourselves: Most Americans are fine with torture, even when you call it 'torture.'" This week, the Pew Research Center offered some insight as to why:

The use of practices like waterboarding began to surface publicly in press reports not long after 9/11, and when the Pew Research Center first surveyed on the subject in July 2004, a narrow majority (53%) said the use of torture to gain important information from suspected terrorists could be only rarely or never justified.
Opinion has shifted since then, with more Americans finding torture acceptable. In August 2011, a narrow majority (53%) of Americans said the use of torture could be often or sometimes justified, while 42% said it could only rarely be justified or not be justified at all.
A more recent poll by Associated Press/NORC conducted in August 2013 found similar results. Half said the use of torture could sometimes or often be justified while 47% said it could rarely or never be justified.

Unsurprisingly, the surveys show a massive partisan chasm on the question of torturing suspected terrorists. Pew's 2011 survey found that a substantial majority of Republicans (71 percent) said torture could be at least sometimes justified, compared with 51 percent of independents and 45 percent of Democrats. In the AP/NORC poll two years later, 66 percent of Republicans backed use of torture in dealing with terrorists compared with 53 percent of independents and 39 percent of Democrats.
That persistent gap is no coincidence. The Bush White House, its Republican allies in Congress, the conservative commentariat online and off, and the entire Fox News network for years have assured Americans that "the United States does not torture." In 2007, then-GOP White House hopeful Rudy Giuliani compared torture to running for president; this week, his Fox News colleague and attorney Kimberly Guilfoyle likened it to taking the bar exam. Even the term torture itself was semantically waterboarded, replaced among loyal Bushies, defensive Republicans, Fox News talking heads and, as current CIA Director John Brennan has showed once again, with the euphemism enhanced interrogation techniques. And as Harpers' Scott Horton among others reminded us in 2007, Team Bush's favorite term sounded better in the original German:

Before there were "enhanced interrogation techniques," there was verschärfte Vernehmung, (which means "enhanced interrogation techniques") developed by the Gestapo and the Sicherheitsdienst in 1937 and subject to a series of stringent rules. Now, as we have seen previously, there were extremely important differences between the Gestapo's interrogation rules and those approved by the Bush Administration. That's right - the Bush Administration rules are generally more severe, and include a number of practices that the Gestapo expressly forbade.

As Andrew Sullivan pointed out, during the war those German officers who went beyond the verschärfte Vernehmung were punished. And after the war, as Horton helpfully recalled, those defended their brutality at the Nuremberg trials by saying they were "just following orders" or acting to prevent imminent attacks were put to death.
To be sure, other studies have shown that Americans overwhelmingly oppose many of the specific torture techniques highlighted in the Senate report. (Even John Yoo, who in 2005 declared the President could lawfully order the crushing of a detainee child's testicles, had to admit that "you can do these things cumulatively or too much that it would cross the line of the anti-torture statute.") And American soldiers and marines, the ones with the most to lose if captured in Iraq, strongly opposed torture.
It's no wonder that a majority of Americans now believes torture is sometimes or often justified to extract information from prisoners the U.S. swept up during the "Global War on Terror." When you can turn off an episode of 24 only to watch your congressional rep cite Jack Bauer as a role model, torture becomes expected, assumed, routine, and banal. What the United States once executed Japanese and German soldiers for doing is now presumed to an essential part of the American war-fighting tool kit. (Zero Dark Thirty told us so.) Apparently, the Inquisitor isn't a villain after all, just as long as he's on our side. The unimaginable is now the unexceptional, the unnatural the new normal.
Just ask Georgia Tech student Josh Jacob. During last week's debate, he asked:

Recently Donald Trump mentioned we must kill the families of ISIS members. However, this violates the principle of distinction between civilians and combatants in international law.
So my question is, how would intentionally killing innocent civilians set us apart from ISIS?

After some back and forth with Rand Paul, Trump essentially admitted that it doesn't:

So, they can kill us, but we can't kill them?

Judging by the applause he gets, we have more to fear than fear itself.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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