[THS] !!!! Top U.S. officials are liable for war crimes

[Peter Webster]

http://www.counterpunch.org/cohn05062008.html

May 6, 2008
Why John Yoo and Other Top Administration Lawyers Should be
Investigated for War Crimes
Under U.S. Law Torture is Always Illegal

By MARJORIE COHN

What does torture have in common with genocide, slavery, and wars of
aggression? They are all jus cogens. Jus cogens is Latin for "higher law" or
"compelling law." This means that no country can ever pass a law that
allows torture. There can be no immunity from criminal liability for violation
of a jus cogens prohibition.

The United States has always prohibited the use of torture in our
Constitution, laws executive statements and judicial decisions. We have
ratified three treaties that all outlaw torture and cruel, inhuman or
degrading treatment or punishment. When the United States ratifies a
treaty, it becomes part of the Supreme Law of the Land under the
Supremacy Clause of the Constitution.

The Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, says, "No exceptional circumstances whatsoever,
whether a state of war or a threat of war, internal political instability or any
other public emergency, may be invoked as a justification for torture."

Whether someone is a POW or not, he must always be treated humanely;
there are no gaps in the Geneva Conventions. He must be protected
against torture, mutilation, cruel treatment, and outrages upon personal
dignity, particularly humiliating and degrading treatment under, Common
Article 3.

In Hamdan v. Rumsfeld, the Supreme Court rejected the Bush
administration's argument that Common Article 3 doesn't cover the
prisoners at Guantánamo. Justice Kennedy wrote that violations of Common
Article 3 are war crimes.

We have federal laws that criminalize torture.

The War Crimes Act punishes any grave breach of the Geneva Conventions,
as well as any violation of Common Article 3. That includes torture, willfully
causing great suffering or serious injury to body or health, and inhuman,
humiliating or degrading treatment.

The Torture Statute provides for life in prison, or even the death penalty if
the victim dies, for anyone who commits, attempts, or conspires to commit
torture outside the United States.

The U.S. Army Field Manual's provisions governing intelligence
interrogations prohibit the "use of force, mental torture, threats, insults, or
exposure to unpleasant and inhumane treatment of any kind."
Brainwashing, mental torture, or any other form of mental coercion,
including the use of drugs, are also prohibited. Military personnel who
mistreat prisoners can be prosecuted by court-martial under provisions of
the Uniform Code of Military Justice. These include conspiracy, cruelty and
maltreatment, murder, manslaughter, maiming, sodomy, and assault.

In Filartiga v. Peña-Irala, the Second Circuit declared the prohibition against
torture is universal, obligatory, specific and definable. Since then, every
U.S. circuit court has reaffirmed that torture violates universal and
customary international law. In the Paquete Habana, the Supreme Court
held that customary international law is part of U.S. law.

The Constitution gives Congress the power to make the laws and the
President the duty to carry them out. Yet on February 7, 2002, President
Bush, relying on memos by lawyers including John Yoo, announced that the
Geneva Conventions did not apply to alleged Taliban and Al Qaeda
members. Bush said, however,

    "As a matter of policy, the United States Armed Forces shall continue to
treat detainees humanely and, to the extent appropriate and consistent
with military necessity, in a manner consistent with the principles of
Geneva."

But torture is never allowed under our laws.

Lawyers in the Department of Justice’s Office of Legal Counsel wrote memos
at the request of high-ranking government officials in order to insulate them
from future prosecution for subjecting detainees to torture. In memos
dated August 1, 2002 and March 18, 2003, former Deputy Assistant
Attorney General John Yoo (Jay Bybee, now a federal judge, signed the
2002 memo), advised the Bush administration that the Department of
Justice would not enforce the U.S. criminal laws against torture, assault,
maiming and stalking, in the detention and interrogation of enemy
combatants.

The federal maiming statute makes it a crime for someone "with the intent
to torture, maim, or disfigure" to "cut, bite, or slit the nose, ear or lip, or cut
out or disable the tongue, or put out or destroy an eye, or cut off or disable
a limb or any member of another person." It further prohibits individuals
from "throwing or pouring upon another person any scalding water,
corrosive acid, or caustic substance" with like intent.

Yoo said in an interview in Esquire that "just because the statute says --
that doesn't mean you have to do it." In a debate with Notre Dame
Professor Doug Cassell, Yoo said there is no treaty that prohibits the
President from torturing someone by crushing the testicles of the person's
child. In Yoo's view, it depends on the President's motive, notwithstanding
the absolute prohibition against torture in all circumstances.

The Torture Convention defines torture as the intentional infliction of severe
physical or mental pain or suffering. The U.S. attached an "understanding"
to its ratification of the Torture Convention, which added the requirement
that the torturer "specifically" intend to inflict the severe physical or mental
pain or suffering. This is a distinction without a difference for three reasons.

First, under well-established principles of criminal law, a person specifically
intends to cause a result when he either consciously desires that result or
when he knows the result is practically certain to follow.

Second, unlike a "reservation" to a treaty provision, an "understanding"
cannot change an international legal obligation.

Third, under the Vienna Convention on the Law of Treaties, an
"understanding" that violates the object and purpose of a treaty is void. The
claim that treatment of prisoners which would amount to torture under the
Torture Convention does not constitute torture under the U.S.
"understanding" violates the object and purpose of the Convention, which is
to ensure that "no one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment." The U.S. "understanding" that adds
the specific intent requirement is embodied in the U.S. Torture Statute.

Nevertheless, Yoo twisted the law and redefined torture much more
narrowly than the definitions in the Convention Against Torture and the
Torture Statute. Under Yoo's definition, the victim must experience intense
pain or suffering equivalent to pain associated with serious physical injury
so severe that death, organ failure or permanent damage resulting in loss
of significant body functions will likely result.

Yoo wrote that self-defense or necessity could be used as a defense to war
crimes prosecutions for torture, notwithstanding the Torture Convention's
absolute prohibition against torture in all circumstances. There can be no
justification for torture.

After the exposure of the atrocities at Abu Ghraib and the publication of the
August 1, 2002 memo, the Department of Justice knew the memo could not
be legally defended. That memo was withdrawn as of June 1, 2004. A new
opinion, authored by Daniel Levin, Acting Assistant Attorney General Office
of Legal Counsel, is dated December 30, 2004. It specifically rejects Yoo’s
definition of torture, and admits that a defendant’s motives to protect
national security will not shield him from a torture prosecution. The
rescission of the August 2002 memo constitutes an admission by the Justice
Department that the legal reasoning in that memo was wrong. But for 22
months, it was in effect, which sanctioned and led to the torture of
prisoners in U.S. custody.

John Yoo admitted the coercive interrogation “policies were part of a
common, unifying approach to the war on terrorism.” Yoo and other
Department of Justice lawyers, including Jay Bybee, David Addington,
William Haynes and Alberto Gonzalez, were part of a common plan to
violate U.S. and international laws outlawing torture. It was reasonably
foreseeable that the advice they gave would result in great physical or
mental harm or death to many detainees. Indeed, more than 100 have
died, many from torture.

ABC News reported last month that the National Security Council Principals
Committee consisting of Dick Cheney, Condoleezza Rice, Donald Rumsfeld,
Colin Powell, George Tenet, and John Ashcroft met in the White House and
micromanaged the torture of terrorism suspects by approving specific
torture techniques such as waterboarding. Bush admitted, "Yes, I'm aware
our national security team met on this issue. And I approved."

These top U.S. officials are liable for war crimes under the U.S. War Crimes
Act and torture under the Torture Statute. They ordered the torture that
was carried out by the interrogators. Under the doctrine of command
responsibility, used at Nuremberg and enshrined in the Army Field Manual,
commanders, all the way up the chain of command to the commander in
chief, can be liable for war crimes if they knew or should have known their
subordinates would commit them, and they did nothing to stop or prevent
it. The Bush officials ordered the torture after seeking legal cover from their
lawyers.

But Yoo and the other Justice Department lawyers who wrote the enabling
memos are also liable for the same offenses. They were an integral part of
a criminal conspiracy to violate our criminal laws. Yoo admitted in an
Esquire interview last month that he knew interrogators would take action
based on what he advised.

The President can no more order the commission of torture than he can
order the commission of genocide, or establish a system of slavery, or wage
a war of aggression.

A Select Committee of Congress should launch an immediate and thorough
investigation of the circumstances under which torture was authorized and
rationalized. The high officials of our government and their lawyers who
advised them should be investigated and prosecuted by a Special
Prosecutor, independent of the Justice Department, for their crimes.

John Yoo, Jay Byee, and David Addington should be subjected to particular
scrutiny because of the seriousness of their roles in misusing the rule of law
and legal analysis to justify torture and other crimes in flagrant violation of
domestic and international law.

This essay is adapted from Marjorie Cohn's testimony before the
Subcommittee on the Constitution, Civil Rights and Civil Liberties
of the House Judiciary Committee.

Marjorie Cohn is president of the National Lawyers Guild and author of
Cowboy Republic.