War Crimes, USA

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.]