"I wouldn't join the International Criminal Court. It's a body based in The Hague where unaccountable judges and prosecutors can pull our troops or diplomats up for trial.
"And I wouldn't join it. And I understand that in certain capitals around the world that that wasn't a popular move. But it's the right move not to join a foreign court that could -- where our people could be prosecuted." - George W. Bush 09/30/04
"Men without conscience are capable of any cruelty the human mind can imagine." - Dick Cheney 01/26/05
Philip Carter continues to provide valuable information on the legal issues involved with the Bush administration's detentions in the name of the "War on Terrorism," including the torture scandal. In this blog post, he discusses the precedents from the Second World War affecting the prosecution of accused terrorists and war criminals: A precedent for justice? by Phil Carter 04/11/05. I was not able to access the Wall Street Journal articles he says are publicly available, but he quotes extensively from them.
He focuses on what is known as the Kikuchi case, in which captured American fliers were tried and executed in Japan during the war on the grounds that bombing of cities involved the deliberate killing of civilians. After the war, the US prosecuted those responsible for those trials on the grounds that the Americans had been denied due process. Prosecuted them for war crimes. Carter writes:
What the records make clear are some unbelievable similarities between the policy positions and defenses of the Japanese during World War II, and the U.S. government today. Then, the U.S. prosecuted such abuses, aggressively using the "command responsibility" doctrine to go after senior officers who knew or should have known about their subordinates' misconduct. Now, a year after Abu Ghraib, we have yet to see a single court-martial for a soldier over the rank of staff sergeant.
Carter quotes the Journal on a particularly relevant point:
Perhaps surprisingly, U.S. Army reviewers concluded in 1949 that "a Japanese tribunal could have reasonably found there was indiscriminate bombing" and that "in the course of a legal trial might well have found the [American] crew members guilty." Moreover, they acknowledged that Japanese legal procedures, although based on inquisitorial judges rather than the adversarial system used in the U.S., cannot be considered "automatically illegal."
But the abridged procedures employed as the war wore down violated the flyers rights, the U.S. found. "These men were not informed they were being charged with indiscriminate bombing and, except in the intelligence investigation, where they might reasonably be expected to give as little information as possible, they were not given a chance to make a statement." The flyers weren't permitted to attend the hearings where they were convicted and sentenced, the Army reviewers found.
Carter argues that there are a number of ways that special military commissions could be legitimately used to try suspected terrorists and war criminals, provided that they were designed in accordance with US and international law, which, he argues, the current "military commissions" are not:
It may well be easier to simply try such defendants in a general court-martial, since the UCMJ grants military courts jurisdiction over enemy combatants for war crimes, and the military justice system is a far more mature and respected institution. Or, the current commission system can be legislatively authorized, and then amended to conform more closely to the UCMJ and past commissions procedures. The New York Times reported two weeks ago that the Pentagon was considering a proposal to do just that, but my sources agree that the proposal was dead-on-arrival when it got to the Office of the Secretary of Defense and the Vice President's office.
I suppose there is a final irony in all of this, which I alluded two in last week's Slate column on lawfare. As a nation, we have now committed ourselves to the spread of freedom and democracy throughout the world. Establishing the rule of law, and building democratic institutions, come part and parcel with this charter to spread freedom. We cannot embrace such things on the one hand, as we are in Iraq, while flouting the rule of law on the other, as we are in Gitmo. The world sees our inconsistency, and criticizes our policies as a naked, unprincipled grab for power. It's not enough to talk the freedom talk; you must also walk the freedom walk. And that means adhering to the rule of law in all contexts, such as treating captured enemy fighters according to established U.S. and international law. There is no evidence that giving these men a proper trial would somehow hurt national security; all the evidence suggests our political and moral standing would be enhanced if we treated these men according to the law. So why haven't we done so? (bolded words are my emphasis)
It's striking that Rummy and Dick Cheney specifically rejected proposals designed to make the special commissions conform to law. These people really are devoted to secrecy and, by all appearances, are seeking to establish authoritarian Republican Party rule wherever they can.
In the European Union, where democratic prodecures are generally preferred to authoritarian measures like extralegal military tribunals and convictions based on secret evidence the defendent is not allowed to challenge, the US conduct toward European nationals in causing more than little concern: Europeans Investigate CIA Role in Abductions by Craig Whitlock Washington Post 03/13/05.
Whitlock begins by mentioning the case of a suspect Egyptian cleric who was abducted in Rome, a kidnapping being investigated by Italian police, and writes:
The Italian probe is one of three official investigations that have surfaced in the past year into renditions believed to have taken place in Western Europe. Although the CIA usually carries out the operations with the help or blessing of friendly local intelligence agencies, law enforcement authorities in Italy, Germany and Sweden are examining whether U.S. agents may have broken local laws by detaining terrorist suspects on European soil and subjecting them to abuse or maltreatment.
Now, all this is perfectly fine for our American superpatriots who like to think of the government torturing swarthy-looking Arabs or other people not like themselves. But it's having a very real effect on the practical cooperation in dealing with terrorism that really is an essential thing for the US and Europe alike.
Maybe Cheney and Rumsfeld are afraid that genuinely legal proceedings, as opposed totheir special kangaroo commissions, wouldn't be able to pull stunts like this (Panel Ignored Evidence on Detainee by Carol Leonning Washington Post 03/27/05):
A military tribunal determined last fall that Murat Kurnaz, a German national seized in Pakistan in 2001, was a member of al Qaeda and an enemy combatant whom the government could detain indefinitely at the U.S. military prison at Guantanamo Bay, Cuba.
The three military officers on the panel, whose identities are kept secret, said in papers filed in federal court that they reached their conclusion based largely on classified evidence that was too sensitive to release to the public.
In fact, that evidence, recently declassified and obtained by The Washington Post, shows that U.S. military intelligence and German law enforcement authorities had largely concluded there was no information that linked Kurnaz to al Qaeda, any other terrorist organization or terrorist activities.
Also on the same story: Zum Terroristen erklärt - trotz Entlastungsmaterial Süddeutsche Zeitung (Munich) 27.03.05. This article also notes that a "US military tribunal" had decided based on alleged secret information that Kurnaz was linked to Al Qaeda, when both US and German intelligence had found that he was not.
Maybe Ahmed Chalabi or "Curveball" provided the secret information.
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