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June 18, 2007


Great Post, Mimi. I've long been chaffed by the idea that a few sergeants and privates were responsible for the runaway torture that occured in out name. Anyone who's ever been in the service knows this is absurd.

If there is anyone who needs to be in jail Rumsfeld is near the top of the list. He should be pursued ruthlessly, and punished to the full extent of the law.

In my mind, Rummy is no different than the men who ran the Natzi camps, and I've seen black and white photos of the punishment we rightly suffered upon them.

Excellent post and comments, Mimikatz. You say: "But it will take more witnesses willing to take a stand."

More witnesses? Just how MUCH more does it take, I wonder? We HAVE the photographs. We HAVE some videos. We have testimony from those who were there...some of whom are now in jail. We have the Army's code of conduct in writing.

We have waaay more than enough. What we don't have is courage. The Congress people who are supposed to investigate ....and bring charges.....are deliberately dragging their feet. Why? The 2008 election? To make it easier for Democrats to run agains these criminals? These are people worthy of holding office? Good grief! Dennis Kucinich and a few others are the only ones who do not seem to be bought and paid for -- like Nancy Pelosi and Harry Reid. Pathetic.

These are crimes you have described. Despicable. But the crimes of doing nothing are equally as bad.

We will all have to answer for those.

bmaz (and any other lawyers around here...) -- Given that the Gonzales DoJ is not going to investigate much less prosecute war crimes charges (particularly since Gonzo was himself involved), is there any other agency/legal mechanism by which criminal proceedings against Rumsfeld (and his cohorts) could proceed? How would you recommend getting the ball rolling on this?

Congressional investigations are great, but at some point all the sunshine that Christy talks about at FDL needs to lead to real consequences. And at this point, I am at a loss to see how to get any criminal complaints off the ground...


I'm not a lawyer, but I decided some time back that the only feasible way to proceed will be after this cabal leaves office. I pray every day that we will get a President and AG who are willing to pursue Rumsfeld and Bush for their violations of the War Crimes Act.

After that, they can prosecute Bush, Ashcroft, and Gonzales for breaking FISA.

it appears that one problem that Taguba highlighted, the Special Ops guys who belong to no chain of command, as well as the contractors who carry out some of the abuses, could be addressed by Congress in the Defense Authorization Bill. Of course, Bush may just ignore what Congress does, but it puts more pressure on Bush and the GOP. These lawless cowboys are going to get the US in much more trouble in the future. Maybe they can delete the funds for Rumsfeld's office that he still maintains in the Pentagon, for all we know still directing these operations.

Any thorough cleansing is going to take a decade, however. Light needs to be constantly shined on these problems so that they can't be ignored or denied forever, and so that more and more people will speak out. There were many, many editorials against prisoner abuse, for instance. It helps create a counter-narrative that the American people really don't want torture done in their name.

The person (Jon) who commented in the Sophie Scholl thread that the majority of Americans just want the Bush Admin to be over but won't do anything to hasten the end may be correct, but maybe they just haven't found a context and forum for making their displeasure known. This may unfold more as the election season heats up, or later this year. Who'd have thought in spring 2005 that Bush would fall so far?

And I do think the Dems are screwing up their courage.

This reminds me of the sibling that smacks the younger kid then runs to mom claiming that he is being attacked for no reason. This works perfectly for the WH bullies, it keeps the justification for the occupation going since the Iraqis are so pissed at us. (Vice?) President Cheney can sneer at those vicious Arabs that need to be taught a lesson. They must be evil; they hate us for NO REASON (wink wink).

BTW do you guys have any idea how intimidating it is to write something for a bunch of ENGLISH MAJORS to read? I had to turn on my grammar checker

Phred - As a matter of international law, war crimes and other crimes against humanity have universal jurisdiction, and any state may take action against such crimes regardless of the lack of traditional jurisdictional requirements, such as a territorial incursion by the war criminal or an act against the country's nationals. Canada has a statute governing crimes against humanity, and it does not require(at least legally, politically is an entirely different issue) nexus with Canada to proceed. Pinochet was charged by a Spanish judge, and arrested in England for complicity in torture that took place in Chile decades earlier, despite the sovereign immunity doctrine, and the specific immunity put in place by the Chilean government for his actions and his henchmen in the military. Even Henry Kissinger is very careful these days when he travels. So, the legal mechanisms are all in place. I believe that proceedings have begun against Rumsfeld in Germany, and that the US government, given the Pinochet precedent, has been very upset with the Germans as a result.

These proceedings are rooted in the development of international law arising from acts of piracy. Every country was deemed to have jurisdiction against pirates, who were the terrorists of their time, sometimes committing acts of piracy for political purposes as much as individual profit. With the very great assistance of the British Navy, the piracy scourge was eventually eradicated, a great lesson in international co-operation. Why this approach has not been adopted against terrorists in the 21st century, with international co-operation backed up by the military and logistical might of the US as an analogue to the British Navy, is a mystery to me. Unless, of course, terrorists were never really the target! (snark)

The use of torture by this administration (or any other) is no different from its use by Saddam Hussein, or Pinochet, or the Gestapo, or the KGB - they know that it is completely ineffective as an intelligence tool, they really want to use torture as a form of state terrorism. Fear of falling into the clutches of the secret police is one of the most effective ways of keeping a population in check, and references by the current junta to its use in popular culture, from secret agents like James Bond and Jack Bauer to tough and brutal cops like Dirty Harry are a way of legitimizing the brutality in the early stages for those who think they don't have any chance of falling into their clutches. Once the secret police tactics have become normalized and well established, there will be less need to refer to these types of cartoons, and the horror and fear itself will become the dominant meme. Sooner or later, everyone will become an informer, as in the late East Germany, where Stasi informers were everywhere. In the US, they are fortunate to have the phone companies on side to get things started. A couple of weeks ago, Colbert donned a Roman centurion's costume while discussing whether the United States were becoming Rome - as usual, he gets it, and the US is gradually adopting old Roman customs like torture, or heads on pikes, and crucifixion, and for every one of ours killed, 100 of yours. It was interesting to me that the satirists may be the most effective way of combatting this kind of torture porn - I truly dread the idea that the successor to Cindy Sheehan as a Gold Star mother for peace may indeed have to be the Mothers of the Disappeared from Argentina and Chile.

William -- It's a real shame when there is no mechanism by which a cabinet level officer can be prosecuted for criminal activity, because another cabinet level officer is protecting him. It seems as if there are two levels with which to address malfeasance by administration officials one is removal from office (impeachment) and the other ought to be criminal prosecution. But, if the criminal activity involves the DoJ, are the citizens left without any recourse? I know... how 'bout a class action lawsuit: Citizens v. Rumsfeld et al.? ;) Ok, so those are only civil not criminal, but still it shouldn't be possible for the Attorney General to stand in the way of pursuing criminal charges, should it?

Mimikatz -- I think what you said "but maybe they just haven't found a context and forum for making their displeasure known" hits the nail on the head. I am certain that I am counted among the silently apathetic by the media mouthpieces who tell me how silently apathetic we all are. But everyone I talk to thinks torture is heinous and the MCA was outrageous. We just don't have access to the cameras and microphones that the media have. Until now. I found the blogs and I've been sharing links with friends who feel equally isolated from the picture painted by the pundits. I have every confidence in the world that as little people like me can make their voice heard, the pundits won't be able to brush us aside so readily.

Ishmael -- Thanks so much for your explanation of international jurisdiction. It helps a lot. I remember reading about Germany's prosecution of Rumsfeld, but it had slipped my mind. I still hope we can find a way to pursue criminal charges in this country, without having to wait for a change in administration. But I suspect William Ockham is right, and I will have to wait. I'm not good at waiting.

Phred: I'm planning to write some posts trying to tease out what the public really thinks and how the right context might be created.

One thing is to puncture the image of the all-powerful State. Standing up to the Admin bullies and their media handmaidens is one thing. Comedy, YouTube and other new media are very key here, also viral campaigns like Kagro's "Impeach" campaign. Even if they don't (immediately) "go anywhere", they are part of creating the counter-narrative. Supporting the local paper when they do take a good stand, especially if you don't live in somewhere like the SF Bay Area.

Supporting the independent journalism of people like Glenn Greenwald and our own Emptywheel will help demonstrate that there is a market for such opinions, even tuning into Keith Olbermann makes a difference.

And of course participating in politics. Like many of my generation, I basically dropped electoral politics between 1984 and 2002. I was involved in issue advocacy and voted, but left the electoral stuff to others. It was precisely during this time that the Dem Party made its unholy alliance with big business and stopped considering its actual voters as important people worthy of cultivation. Overcoming that divide/mindset is absolutely key.

Ishmael- this is another instance where it is just bad luck that we are allied with Israel. If they were less dependant on our continued goodwill, and less idealogically compromised w/r/t torturing Muslims, perhaps they would be willing to kidnap and extradite (or, heh, just assassinate) some of our more egregious resident war criminals. That's how they got Eichmann, right?

All good points Mimikatz. I've just starting reading Gore's Assault on Reason and I had the pleasure of hearing him speak on its subject last December. I think he is quite right in his assessment that the internet is a venue that can re-establish the public square, where everyone gets to contribute to the political discourse in a more meaningful way than simply choosing which of the broadcast networks to watch, thereby telling Nielsen and the broadcasters what we think by which limited choice we make. I do believe that we have been trained as a society to be viewers rather than actors in our public affairs. It is the nature of television to make us viewers, but it is the nature of the internet for us to be participants.

I would add though, it is partly a function of age (in reference to your 20 year hiatus from politics). As a young adult, I assumed that older more powerful people would take care of things. And now that I'm in my forties it has finally dawned on me that I'm now one of the older people and it is time I start to take care of things. The trick is learning how to go about it as an average citizen rather than a powerful one.

I look forward to your future posts!

so dumsfeld doesn't know anything about this ???

that's gonna make the War Crimes Trial a lot easier

if dumsfeld doesn't know, he can't really offer a defense, can he ???

and, IIRC, under international law, a commander's failure to know about crimes against humanity ISN'T a defense. In fact, a commander who claim NO KNOWLEDGE of war crimes has just PLEADED GUILTY to all charges that are proven by the slightest smidgen of evidence

guess dumsfeld didn't quite thinf that one thru, huh ???

Several years ago I was asked if America was now a 'rogue nation'. I said it wasn't yet clear.

Now it is clear. America has rogue leaders.

They must be put down and I wouldn't want Europe to dirty their hands with the deed. It could create an unnecessary animosity for the future. Americans need to clean up our own messes.

The question is how to proceed in a legal way. Lawyers need to bellyup and provide solutions.

MarkH: I'm not a lawyer. Yet. But the first step towards correcting the problem is impeachment. We must attempt to use the framework of the Constitution to remove the wrongdoers from power. Once they can no longer hide behind the office of the President, we can hand them over to the Hague, or prosecute them here for their treason.

tekel -- Let me ask you a hypothetical question then... Lets say we have a Republican Executive Branch where an official is clearly breaking the law, but the executive refuses to fire him for whatever reason (personal/political/whatever). And we have a Republican majority Legislative Branch that refuses to impeach the official for political reasons. Are you saying that even with the criminal activity apparent in broad daylight, the criminal activity cannot be prosecuted (assuming of course that the Attorney General refuses to pursue it)?

we can hand them over to the Hague, or prosecute them here for their treason.

can't we do both ???

I saw tweety ask Sy Hersh if Sy thought dumsfeld wolfie and friends would ever be held to justice for their actions

if tweety is willing to mention it, the idea of forcing bushco before the bar of justice must be gaining some serious momentum

does anybody still believe george bush could attack Iran without starting a Civil War in America ???

Not me.

Phred, that is probably about right. It is possible to prosecute some things under state law perhaps. Doctrine known as federal preemption would make it difficult in most instances, but I think there are some acts that could be pursued. One would be some of the voting violations, such as caging etc. As you have seen, getting federal prosecution is difficult even with a Democratic congress.

Thanks bmaz. I've been thinking about this since the discussion about Fitzgerald's appointment. It seems to me that our system of checks and balances has a loop hole that I hadn't realized was there.

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