What if... and then what?

First, a few assumptions:

1. Legal grounds exist to initiate impeachment proceedings against Bush/Cheney on the theory that the invasion and occupation of Iraq were criminal acts under the Nuremberg Principles of 1945 and international law, and possibly under U.S. law;

2. Despite overwhelming evidence of such crimes against peace, including waging a war of aggression, the Democratic leadership will not initiate impeachment proceedings against Bush/Cheney, as Nancy Pelosi has already declared;

3. Bush/Cheney will finish out their full 8-year terms without facing criminal prosecutions in the U.S. or elsewhere;

4. The next president will not pardon Bush/Cheney, having noticed the effects of Nixon's pardon on Jerry Ford's prospects in 1976; and,

5. No criminal prosecutions against Bush/Cheney will ever be initiated by the federal government or any U.S. state.

There's ample reason to believe that all these assumptions will prove correct. So will Bush simply fly off to a comfortable retirement in Crawford and clear brush for the rest of his life, unmolested by the legal system (not to mention his conscience, if he ever had one)? Will Cheney go back to Halliburton for a victory lap? (Certainly the Iraq war has been a "victory" for Halliburton's bottom line.)

The short answer: probably. Congress will likely investigate the roots of the war and its disastrous outcome, if the Democrats retain control, and a long series of damaging revelations will undoubtedly follow.

But if legal action comes from any quarter, it will have to originate in another country or some international body. The prospects of that happening aren't very promising, either.

A national court might initiate a prosecution under its own law, as Spain memorably did with Pinochet of Chile in 1998. Pinochet was charged with perpetrating murder, torture, illegal detention and "disappearances" on Spanish citizens in Chile during and after the 1973 coup. Pinochet was arrested and held on a Spanish warrant in the U.K., but he was eventually released for reasons of poor health.

In theory, a court in just about any country could take similar action against Bush/Cheney—especially if world opinion finds it repugnant that the U.S. legal system can ignore their war crimes. If an EU country like Spain were to initiate a prosecution, any other EU country may be bound to enforce the warrant and extradite the defendant for trial. But it's hard to imagine the U.K., for example, extraditing its former allies under any circumstances. (Besides, Tony Blair is equally susceptible to such a legal attack.) Besides, George Bush only left the U.S. twice before taking office (and I say that advisedly) in 2001—so staying home won't be much of an inconvenience for him.

In 1993, Belgium enacted a unique War Crimes Law that authorized its courts to prosecute individuals for war crimes committed anywhere on the planet. Its courts were given "universal jurisdiction" regardless of the location of the crimes or the nationality of the perpetrators and victims. Cases were filed against various members of the Bush/Cheney cabal, leading Donald Rumsfeld to threaten to withdraw NATO's headquarters from Brussels. The U.S. ignored these claims and denounced them as propaganda stunts. Belgium has drastically curtailed the law during the last few years.

For these and other political reasons, a successful prosecution in any national court seems very unlikely—except maybe in absentia, as a court in Milan is now prosecuting 26 alleged CIA agents for kidnapping an Egyptian cleric on Italian soil. The U.S. is unlikely to acknowledge the right of any other country to bring a former president and vice-president to justice in its own courts, or even members of their administration.

How about international forums? The most obvious possibility is the International Court of Justice (the ICJ or World Court) in The Hague, the UN's judicial branch. But the U.S. withdrew from the "compulsory jurisdiction" of the ICJ during the Reagan administration in 1986. The reason? The government of Nicaragua had sued the U.S. for its support of the illegal contra guerilla war against its elected government (1). In effect, Nicaragua won a default judgment against the U.S., which had rejected the court's jurisdiction and refused to try the case on its merits.

In theory, an aggrieved state, like Iraq, could initiate a case against the Bush/Cheney administration—but not against its individual members—through the ICJ on the model of the Nicaragua v. U.S. litigation. But the U.S., even under a Democratic administration, is unlikely to consent to the ICJ's jurisdiction in a case which it could almost certainly lose.

The ICJ is ineffectual, in other words, unless two countries voluntarily submit to its jurisdiction in advance and try the case to a final judgment. The U.S. would never agree to try Iraq v. U.S. in the ICJ or in any other international forum.

That leaves the International Criminal Court (ICC). So far 145 countries have either joined the court or signed the Rome Statute that created it. The notable exceptions are the three most populous countries in the world: India, China and, predictably, the U.S. Unlike the ICJ, the ICC has jurisdiction over individuals who commit genocide, crimes against humanity, war crimes and the crime of "aggression" (which has not yet been defined [2]). But the ICC would be powerless to prosecute Bush/Cheney without the advance consent of the U.S. government, and that perceived challenge to U.S. sovereignty wouldn't be accepted by any conceivable administration in Washington.

The final option would be an ad hoc court, authorized by the UN, similar to the one created in The Hague in 1993 that eventually prosecuted former Serbian president Milosevic for war crimes. That temporary court, awkwardly known as the "International Criminal Tribunal for the former Yugoslavia" (ICTY), was established by the Security Council rather than the General Assembly. The U.S. could simply veto any UN resolution that would create a similar court to investigate and prosecute Bush/Cheney and their co-conspirators.

Even if any of the options mentioned above were viable, the U.S. would almost certainly ignore a warrant and refuse to extradite Bush/Cheney et al. for trial in any other country or international forum. If the five assumptions at the top of this entry are correct, no international body will be able to make Bush/Cheney accountable for their criminal behavior after they leave office.

Which closes the circle and brings us back to domestic legal remedies. But Speaker Pelosi declared the constitutional remedy of impeachment "off the table" for Congress over a year ago. Once Bush/Cheney finally walk away from the disasters they've created on January 20, 2009, it's conceivable that an aggressive U.S. attorney could launch a criminal prosecution against them and other former members of their cabal. But the new administration will likely opt to begin a "healing" process, perhaps with some equivalent to the South African "truth and reconciliation" commission.

All of which would leave this country's reputation as a "nation of laws" in about the same shambles as the capital of Iraq.

NOTES

Thanks to Wikipedia's articles on the Belgian War Crimes Law, the ICJ, and the ICC for dates and other background information.

(1) The ICJ found the Reagan administration "in breach of its obligations under customary international law not to use force against another State", "not to intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956."

(2) The International Military Tribunal at Nuremberg defined "aggression" as "the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

PHOTO: The International Criminal Court in The Hague (Wikipedia Commons)

Blues Break: Andrea Gibson - "Blue Blanket"

Poet Andrea Gibson performs "Blue Blanket," from her album "Swarm." (Complete lyrics, and many other poems by Gibson, are available online.)

Wednesday snippets

Bong Hits 4 Alito

The "BONG HITS 4 JESUS” decision (Morse v. Frederick) by the U.S. Supreme Court has gotten a lot of attention (and deserved scorn) this week.

The only real surprise, and slightly encouraging development, is Samuel Alito's concurring (and probably naive) declaration that the decision "provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'"

While clearly troubled by the majority's analysis, Alito shares its dubious conclusion that the student's sign advocated illegal drug use. But at best, as Justice Stevens commented in dissent, the statement was "ambiguous." Most likely, it was a satirical comment on both right-wing fundamentalism and "the wisdom of the war on drugs." In other words, this case is about protected political speech that lies at the very core of the 1st Amendment's protections.

This is a wretched decision, again favoring the police powers of the state over civil liberties, but it could've been even worse. Alito may not prove to be another Souter, but could he already be moving (very tentatively) towards a mild ideological independence, at least on 1st Amendment issues?

My prediction: nahhhhh... Ain't gonna happen.

Supporting and opposing dictatorships

When does a state, or an international force authorized by the U.N. or NATO, have the legal and moral right to invade another sovereign state and overthrow its government? One simple and plausible answer is "never," but it seems to me that certain behaviors by a state can be so barbaric and unacceptable that it forfeits its right to exist.Those behaviors include:

1) When one country gratuitously or without provocation invades another, as in Korea in 1950.

2) When a dysfunctional government is unable or unwilling to control the mass slaughter of one group of citizens by another (as in Rwanda and Darfur).

3) When a government is engaged in genocide or ethnic cleansing against its own population, or the population of an occupied country (as in Bosnia).

The form of "intervention," whether by military force or an aggressive regime of sanctions, can be debated. But it seems reasonable that military interventions can only be justified if they are specifically authorized by the UN Security Council (whose rules need to be modified and whose membership needs to be changed to include China and India as permanent members).

It's easy to imagine a dictatorship so harsh and repressive towards its own population, without actually engaging in mass murder, that it practically demands to be removed. Saddam Hussein's case confronts this issue directly, but his worst behavior occurred at a time (the '80s) when he had the tacit support of the U.S. government. The U.S. has a long history of supporting friendly regimes whose behavior has been equally horrific, from the Shah of Iran to Pinochet in Chile to the Saudi royal family. The only variable, it seems, is whether the regime is willing to accommodate U.S. "interests," which Saddam violated only by attempting to annex Kuwait (yet another undemocratic "friend" in the region). The gassing of 5,000 Kurds at Halabjah in 1988 barely attracted official notice in Washington (1).

The unprovoked U.S. invasion of Iraq makes it obvious that there need to be clearer international standards for military interventions in the affairs of sovereign countries. With clearer standards, maybe Bush would've been less reckless in 2003, when he invaded Iraq "gratuitously or without provocation." Even under the existing standards of Nuremberg, Bush's "preventive war" was a criminal act for which he and his administration need to be held accountable.

Now we know why the Bush administration refused to participate in the International Criminal Court.

Greasing the skids for dictators

On a related subject, a recent article in Harper's asks and answers this question: "How is it that regimes widely acknowledged to be the world’s most oppressive nevertheless continually win favors in Washington?" The answer, in part, is: highly-paid Washington lobbyists who have effectively represented despicable regimes like those of Hitler, Saddam, Nicolas Ceausescu of Rumania and Mobutu Sese Seko of Zaire. Their approach has gone way beyond traditional lobbying with Washington politicians: a major focus has been on extracting favorable stories for clients from reporters.

The second element of the strategy was a “media campaign.” In a slide entitled “Core Media Relations Activities,” APCO promised to “create news items and news outflow,” organize media events, and identify and work with “key reporters” [like Jim Hoagland of the Washington Post].

Apparently nothing is too sleazy for Washington's political culture nowadays, no hand too dirty to shake or even praise. [Check out Hullabaloo for Digby's take on this subject and the Harper's article.]

The Hate Boat

It seems the The National Review has sponsored another Caribbean cruise featuring conservative luminaries (if that's the right word) from William F. Buckley to Rich Lowry to Dinesh D'Souza. Johann Hari seemingly stowed away to write his own hilarious and deeply disturbing account of this Ship of Fools for The New Republic. Hari skewers this racist and xenophobic crowd nicely, but I have to raise an objection to his unfair and ageist reference to the passengers' (apparently) advanced age: "They give [a speaker] a wheezing, stooping ovation and break for coffee." The elderly may be a tempting target for ridicule regardless of political persuasion, but we need to get beyond easy laughs directed at physical characteristics, like age, that people can't control. [More thanks to Digby at Hullabaloo for the link to Hari's article.]

NOTES

(1) In fact, the U.S. State Department "instructed its diplomats to say that Iran was partly to blame" for the massacre. The Defense Intelligence Agency (DIA) did a study that

concluded, apparently by determining the chemicals used by looking at images of the victims, that it was in fact Iran that was responsible for the attack, an assessment which was used subsequently by the the Central Intelligence Agency (CIA) for much of the early 1990s... The CIA altered its position radically in the late 1990s and cited Halabja frequently in its evidence of WMD before the 2003 invasion.

PHOTO: U.S. Supreme Court (Wikipedia Commons)

Geaghan's Pique of the Week: Cellphone towers

Anyone who pays attention to the built landscape has noticed the proliferation of cellphone towers, most dramatically in suburban areas and along freeways. On recent trips, for example, I've seen some gargantuan towers along freeways in Ohio and Pennsylvania. Their ugly (and strictly utilitarian) design further degrades landscapes that are already afflicted by billboards, shopping malls, parking lots, subdivisions, "monster warehouses" and the freeways themselves. From a hill outside our small town, it's easy to see the extent to which a forest of 80-100 foot cell towers has proliferated in recent years.

To compound the problem, cell towers are sometimes built right next to one another, ignoring the obvious advantages of reducing impacts and costs by encouraging companies to share towers. In a political culture and economy where everything—and I mean everything—is subordinated to short-term corporate profit, tower design and appropriate siting are rarely considered (1). Licensing fees can be an irresistable temptation to property owners no matter how detrimental the visual and potential health impacts may be on a community—not to mention the devaluation of adjacent properties.

Efforts by local governments to regulate cell tower construction have been rejected by the courts, most recently in San Diego:

[Last week's] ruling was a victory for mobile carriers, including Sprint PCS, which sued the county on claims the law limited competition in wireless telecommunications by making it too expensive and arduous for network providers to put up new towers.

A three-judge panel of the 9th Circuit Court of Appeals found the county ordinance "imposes a permitting structure and design requirements that presents barriers to wireless telecommunications within the county, and is therefore preempted" by federal law [the Telecommunications Act of 1996].

Changing technologies may have the beneficial effect of at least limiting the need for new towers. TechNewsWorld reports that:

Seoul, South Korea-based wireless carrier SK Telecom is planning early next year to deploy new technology that reduces the need for cell phone towers -- so-called "antennae diversity" technology, which may soon also be installed throughout the U.S. and Europe, experts tell TechNewsWorld.

The technology, developed by Bedminster, N.J.-based Magnolia Broadband, Inc., enables carriers to double the number of customers they serve with each mobile phone tower.

But there are downsides. Given the continuing rate of expansion in cellphone networks, the total number of towers seems likely to increase no matter what—especially in places like China and India. And the towers are likely to remain aesthetic nightmares. Worse yet, according to TechNewsWorld:

The next generation of the technology -- currently being tested in Korea -- is even more powerful, promising to give customers GPS-like tracking capabilities on each mobile phone in the network, enabling them, as one expert told TechNewsWorld, to track where one's 18-year-old daughter is after her high school prom, or where one's teenage son is, two hours past curfew.

One can easily imagine more malevolent uses. By permitting the electronic monitoring of millions of people, the same technology could enable the federal government to continue its present course toward what was once called "Total Information Awareness." In a country that already has the least amount of personal privacy in the developed world, this technology has to be considered an ominous development.

Cellphone towers don't have to be as ugly as they uniformly are. Communities can't ban towers, despite unanswered health concerns (2), nor would such a move be very popular with the tens of millions of Americans who have woven the cellphone into their lifestyles to a disturbing extent.

"Stealth" designs are far more common in Europe than North America, with towers that are camouflaged to resemble trees or church steeples. No doubt artists and architects would respond creatively to the challenge of reducing the visual impacts of cell towers. Unfortunately, courts would likely continue to reject attempts by communities to require tower design to meet certain aesthetic standards. But it's worth a try. It would help if congress would empower states, cities and counties to increase local control over the siting and design of cell towers.

NOTES

(1) A dozen years ago, our local City Council refused to consider any restrictions on siting cell towers, with predictable results.

(2) And not just for humans: the latest Harper's magazine, in its "Findings" column, reports that the proliferation of cellphone signals may have something to do with the drastic decline in bee populations.

PHOTO: A cellphone tower in Oregon (Wikipedia Commons).

DISCLOSURE: Yeah, yeah—I have a cellphone, too. But it's never turned on unless I'm making or expecting a call, and my use is limited to about a fifteen minutes per week.

Prediction for a future Pique of the Week: Utility poles and wires that continue to needlessly degrade our towns and neighborhoods. As for those who might quibble over my use of "pique," I realize it has something to do with "wounded vanity." In fact, I still harbor the vain notion that I live in a stunningly beautiful democratic country, though that notion seems harder to justify than it once did.

Blues Break: Rory Gallagher - "Bullfrog Blues"

The indefatigable Irishman Rory Gallagher (1948-95) redlines at 9,000 RPM and mixes it up with the crowd at a 1980 concert in France.

Not asking, not telling

Not since the disastrous French colonial war in Algeria has a democratic country been engaged in a deep internal debate about torture—or, "enhanced interrogation techniques," to use the clinical euphemism that's currently in vogue. The first Guantanamo detainees have been in military custody for over five years, with yet another suicide in recent weeks, and the crimes at Abu Ghraib were revealed early in the Iraq war, yet the debate in the U.S. continues.

Unfortunately, and to our national shame, it's an exaggeration to say that there's a "debate" at all: there's little evidence of any controversy outside the Beltway, raising profound questions about the state of U.S. political culture these days. If I had to guess, I'd say that the general attitude on the subject may be summarized by a phrase from an altogether different controversy: "don't ask, don't tell." The Administration, it would seem, is tacitly authorized to take whatever action George Bush deems suitable to protect the country (as noted in earlier posts here and here).

To the extent that there has been any debate at all, there's ample evidence that it was most intense within the Pentagon, between the civilian and military leaderships:

Speaking publicly for the first time, senior U.S. law enforcement investigators say they waged a long but futile battle inside the Pentagon to stop coercive and degrading treatment of detainees by intelligence interrogators at Guantanamo Bay, Cuba.

Their account indicates that the struggle over U.S. interrogation techniques began much earlier than previously known, with separate teams of law enforcement and intelligence interrogators battling over the best way to accomplish two missions: prevent future attacks and punish the terrorists.

In extensive interviews with MSNBC.com, former leaders of the Defense Department’s Criminal Investigation Task Force said they repeatedly warned senior Pentagon officials beginning in early 2002 that the harsh interrogation techniques used by a separate intelligence team would not produce reliable information, could constitute war crimes, and would embarrass the nation when they became public knowledge.

The investigators say their warnings began almost from the moment their agents got involved at the Guantanamo prison camp, in January 2002. When they could not prevent the harsh interrogations and humiliation of detainees at Guantanamo, they say, they tried in 2003 to stop the spread of those tactics to Iraq, where abuses at Abu Ghraib prison triggered worldwide outrage with the publishing of graphic photos in April 2004.

[...]

It was two years before the photos emerged from Abu Ghraib, the Pentagon cops said, when they began arguing that coercive or abusive interrogations would not serve war-fighting or justice.

Despite this internal debate, the techniques of torture had already been studied in depth for decades by the Pentagon—but only to teach soldiers how to resist torture, not to practice it:

"Many of the controversial interrogation tactics used against terror suspects in Iraq, Afghanistan and Guantanamo were modeled on techniques the U.S. feared that the Communists themselves might use against captured American troops during the Cold War, according to a little-noticed, highly classified Pentagon report released several days ago. Originally developed as training for elite special forces at Fort Bragg under the "Survival, Evasion, Resistance and Escape" program, otherwise known as SERE, tactics such as sleep deprivation, isolation, sexual humiliation, nudity, exposure to extremes of cold and stress positions were part of a carefully monitored survival training program for personnel at risk of capture by Soviet or Chinese forces, all carried out under the supervision of military psychologists. (1)

So the techniques of presumed communist torturers were assimilated by the U.S. military and eventually re-emerged in the protocols for treatment of detainees in Iraq and Guantanamo. Contrary to the conventional wisdom that untrained and understaffed U.S. guards improvised techniques, perhaps inspired by Jack Bauer and other government operatives in shows like "24:"

The report, completed last August but only declassified and made public on May 18, suggests that the abusive techniques stemmed from a much more formal process than the Defense Department has previously acknowledged. By 2002 the Pentagon was looking for an interrogation paradigm to use on what it had designated as "unlawful combatants" captured in the "war on terror." These individuals, many taken prisoner in Afghanistan, were initially brought to the U.S. detention facility at Guantanamo, although others were subsequently hidden away in CIA secret prisons or turned over to U.S.-allied governments known to practice torture. That same year, the commander of the detention facility at Guantanamo began using the abusive "counter resistance" techniques adopted from SERE on prisoners at the base, and according to the Pentagon report SERE military psychologists were on hand to help.

The use of some "enhanced interrogation techniques" has apparently, for now, been limited:

In response to fallout over the well-documented cases of prisoner abuse — which included prolonged isolation, sensory deprivation (visual and auditory), forced removal of clothing, exploiting prisoners phobias (notably fear of dogs), and threats against family members — the Pentagon began scaling back the use of SERE tactics in 2002 and eventually banned them altogether. The Army Field Manual, which serves as a primary guide for U.S. military interrogation, now specifically rules out the use of a variety of SERE-founded techniques including water-boarding, a form of simulated drowning, as well as the use of dogs.

But critics remain concerned that the Pentagon's clean-up has not gone far enough. In the letter to Secretary Gates, dated May 31, 2007, the non-profit Physicians for Human Rights cites an appendix of the current Army Field Manual that "explicitly permits what amounts to isolation, along with sleep and sensory deprivation." The letter, signed by retired Army General Stephen Xenakis, a psychiatrist and former senior medical commander, and Leonard Rubenstein, the organization's executive director, also points out that the current Field Manual remains "silent on a number of other SERE-based methods (including sensory overload and deprivation) creating ambiguity and doubt over their place in interrogation doctrine."

If the latest Republican presidential debate is any indication, the more restrictive policy on torture could be short-lived. The candidates, notably excepting John McCain in a rare moment of lucidity, fell over themselves to prove who could be toughest on future detainees. The current policies are ambiguous at best:

Even assuming that Pentagon reforms have succeeded in cleaning up the worst excesses of U.S. interrogations, a number of experts have grave doubts that current policies are either workable or effective. Members of the Intelligence Science Board, many of whom serve as consultants to the Pentagon, have recently argued that U.S. interrogation policy involves a grab-bag of outmoded techniques, many dating from the 1950s, that ignore lessons learned from law enforcement and lack cultural sensitivity to Arab and other foreign prisoners. The kind of insensitivity, critics might now add, that we once assumed only our worst enemies would show their foreign prisoners. (2)

The de facto standard for the treatment of detainees was best revealed by George Bush in his memorandum of February 7, 2002. He declared that the U.S. would treat unlawful combatants "humanely and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva" [my emphasis]. As events have demonstrated, the final authority on "military necessity" is George Bush and no one else.

NOTES

(1) SERE techniques were designed to "replicate harsh conditions that the Service member might encounter if they are held by forces that do not abide by the Geneva Conventions." [Quoted from page 23 of the 131-page secret report (2006) by the Defense Department's Inspector General, of which a heavily-redacted copy is available online. Its purpose was to evaluate the DoD's investigations into detainee abuse.]

(2) There's a succinct definition of torture, along with a statement of the moral and policy reasons not to practice it, on page 4 of the DoD report.

PHOTO: Hooded Iraqi prisoner chained to a railing at Abu Ghraib (from Wikipedia Commons).

Blues Break: Mississippi John Hurt - "Lonesome Valley Blues"

The great Mississippi John Hurt (1892-1966) dazzles Pete and (I think) Peggy Seeger, probably on the Seegers' Rainbow Quest TV show in 1965 or so. Hurt enjoyed a brief musical career in the 1920's but soon, during the Depression, went back to his life as a sharecropper in Avalon, Mississippi. He was rediscovered by ethnomusicologist Tom Hoskins in 1963, performed widely and produced several highly influential albums.

It may be possible to sit passively during any of Hurt's performances, but why would anyone want to bother?