The Lasting Legacy of George W. Bush

Yes, I know those are pictures of Augusto Pinochet and not President Bush. But these are the images that encapsulate what will be President Bush's most lasting legacy.

"PINOCHET CASE BACKGROUND

General Augusto Pinochet led a 1973 military coup that overthrew democratically-elected Chilean President Salvador Allende. According to a national truth and reconciliation commission, at least 3,196 people were killed or forcibly disappeared during Pinochet's subsequent 17-year dictatorship. Thousands more were tortured or exiled.

On October 16, 1998, British authorities detained Augusto Pinochet in London on an arrest warrant issued by Spanish Magistrate Baltasar Garzón. Garzón had charged Pinochet with genocide, terrorism, and torture committed during the Chilean dictatorship.

Although Garzón's complaint included several Spanish victims, the majority were Chilean citizens who had been killed or tortured in Chile. Garzón's case was therefore largely founded on the principle of universal jurisdiction-that certain crimes are so egregious that they constitute crimes against humanity and can therefore be prosecuted in any court in the world.

In November 1998, a panel of British law lords ruled that Pinochet did not enjoy immunity from prosecution as a former head of state and could be extradited to Spain. This decision, based largely on customary international law, was set aside, however, when one of the judges who heard the appeal was found to have ties to Amnesty International. A larger panel of law lords heard the appeal again in March 1999, and in a 6-1 decision, reaffirmed that Pinochet could be extradited. This time, however, the majority based their decision primarily on British domestic law and limited Pinochet's extraditable crimes to acts of torture committed after the UK ratified and incorporated the UN Convention Against Torture into domestic legislation in 1988."

The last sentence in that article refers to the United Nations "Convention Against Terrorism and Other Cruel, Inhuman or Degrading Treatment or Punishment"

The United States is a signatory to this international treaty.

ARTICLE 1.1
For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

Incoming Attorney General Eric Holder has testified before Congress that water boarding, an interrogation technique that the United States has admitted to employing, is in fact, torture.

In 2002, members of the Bush Administration, public officials and other persons acting in an official capacity, authorized the use of torture.

"On January 18, 2002, President George Bush (the decision is referenced1 in the Gonzales Memo of 25 January, 2002) made a presidential decision that captured members of Al Quaeda and the Taliban were unprotected by the Geneva POW Convention. That decision was preceded by a Memorandum dated January 9, 2002, submitted to William J Haynes II, General Counsel to the Department of Defense, by the Department of Justice's Office of Legal Counsel (which provides legal counsel to the White House and other executive branch agencies) and written by Deputy Assistant Attorney General John Yoo and Special Counsel Robert J. Delahunty.

The Yoo Delahunty Memorandum of January 9, 2002

The Yoo/Delahunty Memorandum provided the analytical basis for all which followed regarding blanket rejection of applicability of the Third Geneva Convention to captured members of al Qaeda and the Taliban. Its validity is, accordingly, analyzed in some detail at the end of this discussion.


The Rumsfeld Order January 19, 2002

In a Memorandum dated 19 January, 2002, Secretary of Defense Donald Rumsfeld ordered the Chairman of the Joint Chiefs of Staff to inform combat commanders that "Al Quaeda and Taliban individuals...are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949." He ordered that "commanders should "...treat them humanely, and to the extent appropriate and consistent with military necessity, consistent with the Geneva Conventions of 1949." That order thus gives commanders permission to depart, where they deem it appropriate and a military necessity, from the provisions of the Geneva Conventions.


The Bybee Memorandum of 22 January, 2002

The Bybee Memo, Memorandum of 22 January, 2002 from Jay Bybee, Office of Legal Counsel for Alberto R. Gonzales, Counsel to the President and William J. Haynes II, General Counsel of the Department of Defense, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees , follows the same structural pattern as the Yoo/Delahunty Memo, but with additional analysis of certain international law/ law of war issues. Parts of it are also discussed below in some detail.

The Alberto Gonzales Memo January 25, 2002

On January 25, 2002, White House Counsel Alberto Gonzales sent a Memorandum to President Bush regarding a presidential decision on January 18, 2002, (the White House has issued an Order to that effect, dated February 7, 2002, see below) that captured members of the Taliban were not protected under the Geneva POW Convention ("GPW"), to which the legal advisor to the Secretary of State had objected. He advised that "there are reasonable grounds for you to conclude that GPW [the ] does not apply ...to the conflict with the Taliban." Mr. Gonzales argued that grounds for the determination might include:

1) a determination that Afghanistan was a failed state "...because the Taliban did not exercise full control over the territory and people, was not recognized by the international community, and was not capable of fulfilling its international obligations" (see definition of statehood in Cpt. 1.3 and discussion in Kadic v. Karadzic, 70 F.3d 232, 244 to 245 (2nd Cir, 1995) ) and/or

2) a "determination that the Taliban and its forces were, in fact, not a government but a militant, terrorist-like group."

Mr. Gonzales then identified what he believed were the ramifications of Mr. Bush's determination. On a positive note he felt they preserved flexibility stating that:

"The nature of [a "war" against terrorism] places a high premium on ...factors such as the ability to quickly obtain information from captured terrorists and their sponsors ... and the need to try terrorists for war crimes... [t]his new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners..." He also believed the determination "...eliminates any argument regarding the need for case-by-case determinations of POW status." The determination, Mr. Gonzales said, also reduced the threat of domestic prosecution under the War Crimes Act (18 U.S.C. 2441). His expressed concern was that certain GPW language such as "outrages upon personal dignity" and "inhuman treatment" are "undefined' and that it is difficult to predict with confidence what action might constitute violations, and that it would be "...difficult to predict the needs and circumstances that could arise in the course of the war on terrorism." He believed that a determination of inapplicability of the GPW would insulate against prosecution by future "prosecutors and independent counsels."


Mr. Gonzales then identified the counter arguments from the Secretary of State (See, Colin Powell Memo of January 26, 2002 pages 1,2,3,4,5) which included:

Past adherence by the United States to the GPW;

Possible limitations on invocation by the U.S. of the GPW in Afghanistan;

Likely widespread condemnation by allied nations;

Encouragement of potential enemies to find "loopholes" to not apply the GPW;

Discouraging turn-over of terrorists by other nations;

Undermining of U.S. military culture "which emphasizes maintaining the highest standards of conduct in combat..."

In response, Mr. Gonzales says, inter alia, "...even if the GPW is not applicable, we can still bring war crimes charges against anyone who mistreats U.S. personnel." He adds that, "...the argument based on military culture fails to recognize that our military remains bound to apply the principles of GPW because that is what you have directed them to do." (Emphasis added). In light of subsequent events, that last sentence is of particular interest.


The Bush Order February 7, 2002

On February 7, 2002, President Bush signed an Order, (pdf copy) accepting the reasoning of the Yoo and Gonzales memos, and validating the order issued by Secretary Rumsfeld on January, 19, 2002.

From the sequence of events, and discussion by White House Counsel, it appears fairly clear that the decision by Mr. Bush, and the subsequent orders from Mssr.s Bush and Rumsfeld, were based on the Yoo/Delahunty Memorandum of 9 January, 2002. A close analysis of that document is accordingly appropriate.

The Yoo/Delahunty Memo January 9, 2002

This Memorandum is written in four parts. The first examines the 18 U.S.C. Section 2441, the War Crimes Act, and some of the treaties it implicates. The second part examines whether members al Qaeda can claim protection of the Geneva Conventions and concludes they can not. The third portion examines application of those treaties to members of the Taliban. It concludes nonapplicability because 1) it says "the Taliban was not a government and Afghanistan was not...a functioning State", 2) "the President has the constitutional authority to suspend our treaties with Afghanistan pending restoration of a legitimate government", and 3) "it appears...that the Taliban militia may have been ...intertwined with Al Qaeda" and thus on the same legal footing. Finally, the fourth part concludes that customary international law does not bind the President or restrict the actions of the United States military [under a constitutional analysis].

Although the Memorandum is questionable on many grounds, both factual and legal, a close analysis is for this casebook, both too extensive and unnecessary. An article more closely analyzing the international law/law of war aspects of the Memorandum is forthcoming. For the present the reader should note the following:

1) As long as there is a genuine issue of fact or law regarding the status of captured individual combatants who are members of the Taliban or Al Qaeda, the Third Geneva Convention of 1949 must apply, until properly otherwise determined. Article 5 of that Convention provides, in part, that "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." (Emphasis added).

2) The key to whether there exists any genuine issue of fact or law resides in the Yoo/Delahunty Memo which is the authoritative basis for all the actions which follows. Leaving aside the American constitutional arguments which present no bar to a delict in international law (see,e.g. the Dostler Case) 2, the argument for nonapplicability of Geneva III rests on the argument that as a matter of fact and law the Taliban did not constitute a de facto government. The short answer is that while the position is certainly arguable, it is also very reasonably arguable that the Taliban were the de facto government. They controlled a substantial geographic territory and population, enacted and enforced laws and mandates, carried on relatively complex military operations, appointed persons to governmental posts and received diplomatic recognition from several nations. The core validity of that point is admitted, albeit inadvertently, in the following quote from the 22 January, 2002, Memorandum from Jay Bybee to Alberto Gonzales and William Haynes:

Whether the Geneva Conventions apply to the detention and trial of members of the Taliban presents a more difficult legal question. Afghanistan has been a party to all four Geneva Conventions since September, 1956. Some might argue that this requires application of the Geneva Conventions to the present conflict with respect to the Taliban militia...Nevertheless, we conclude that the President has more than ample grounds to find that our treaty obligations under Geneva III toward Afghanistan were suspended during the period of the conflict... the weight of informed opinion indicates that, for the period in question, Afghanistan was a "failed state" whose territory had been held by a violent militia or faction rather than by a government....Second, there appears to be developing evidence that the Taliban leadership had become closely intertwined with, if not utterly dependent upon, al Qaeda. This would have rendered the Taliban more akin to a terrorist organization.

Memorandum of 22 January, 2002 from Jay Bybee, Office of legal Counsel for Alberto R. Gonzales, Counsel to the President and William J. Haynes II, General Counsel of the Department of Defense, Re: Application of Treaties and Laws to al Qaeda and Taliban Detainees at pp 10-11. (Emphasis added).

We want to make clear that this Office does not have access to all of the facts related to the activities of the Taliban militia and al Qaeda in Afghanistan. Nevertheless, the available facts in the public record would support the conclusion that Afghanistan was a failed state...Indeed, there are good reasons to doubt whether any of the conditions were met.

Ib at 16.

What is of particular interest in this analysis is the emphasized language. It is that of argument, not fact, and what it seems to effectively admit is that there is indeed some doubt as to the status of the Taliban detainees. That, of course, triggers the requirements of Geneva Convention Article 5 for a competent tribunal to determine status, and mandates treatment as a POW until the tribunal is held. Indeed, Judge Bybee later discusses Article 5. See also, the references by Justice O'Connor in the plurality opinion in Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004), to "the Taliban regime" and "the Taliban government," 124 S.Ct at 2635-2636, and her statement that "active combat operations against Taliban fighters apparently are ongoing in Afghanistan," id. at 2642, as well as Justice Souter's concurrence in which he points to the Government's Brief saying "the Geneva Convention applies to the Taliban detainees." Id at 2658.


"Should any doubt arise as to whether persons, having committed a belligerent act, and having fallen into the hands of the enemy," article 5 of Geneva III requires that these individuals "enjoy the protections" of the Convention until a tribunal has determined their status. As we understand it, as a matter of practice prisoners are presumed to have article 4 POW status until a tribunal determines otherwise. Although these provisions seem to contemplate a case-by-case determination of an individual detainee's status the President could determine categorically that all Taliban prisoners fall outside article 4. Under Article II of the Constitution, the President posesses the power to interpret treaties on behalf of the Nation.He could interpret Geneva III, in light of the known facts concerning the operation of the Taliban...to find that all of the Taliban forces do not fall within the legal definition of prisoners of war as defined by article 4. A presidential determination of this nature would eliminate any legal "doubt" as to the prisoners' status, as a matter of domestic law, and would therefore obviate the need for article 5 tribunals.

Ib at 30-31.

This argument presents an interesting question of domestic law as to whether a Commander in Chief can order a violation of international law by making a factual finding unsupported by independent evidence. Could one charged under the War Crimes Act (18 U.S.C. 2441) assert as a defense that as a matter of domestic law there was no grave breach, even though it was clearly a violation of international law? The answer to that proposition is beyond the scope of this discussion, although it appears questionable. What the argument does not do, however, for the same Dostler Case) reasons above discussed, is present any defense to charges by any other Geneva III signatory charged to prosecute perpetrators of grave breaches wherever they may be found.


3) No Article 5 tribunal (see, Army Regulation 190-8, Section 1-6) has been convened or held regarding any captured member of Al Qaeda3 or the Taliban.

4) Accordingly, any such persons are protected by the Third Geneva Convention until a competent tribunal determines otherwise. It appears quite certain that such a determination if it did occur, would not operate retroactively to validate actions by captors which were otherwise violations of the rights of protected persons.

5) That protection is not merely procedural. As long as the Convention protects an individual, grave breaches of its provisions constitute a breach of both U.S. and international law.

6) Article 130 of the Convention provides that grave breaches include "... any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention."

Thus, the Bush Orders of January and February, 2002, denying Geneva Convention protection to captured members of the Taliban and Al Qaeda appears inherently flawed. Acts carried out in furtherance of those orders, if themselves violations, might, accordingly, constitute war crimes.

_____________________________________

1: "On January 18, I advised you that the department of Justice had issued a formal legal opinion concluding that the Geneva Convention III on the Treatment of Prisoners of War (GPWIII) does not apply to the conflict with al Qaeda. I also advised that the DOJ’s opinion concludes that there are reasonable grounds for you to conclude that GPW does not apply with respect to the conflict with the Taliban. I understand that you decided that GPW does not apply and accordingly that al Qaeda and Taliban detainees are not prisoners of war under the GPW." Gonzaelz Memo, 25 January, 2002.

2: Those arguments present a startling analogy to the arguments raised by defendants at the post World War II Nuremburg trials, and elsewhere, that, because they were required by national law to obey superior orders, they had an absolute defense against war crimes committed in carrying out those orders. That so called Nuremburg defense was, and has been since, roundly rejected. The point is, of course, that whatever their validity under U.S. national law, they present no defense to an otherwise valid charge of a war crime under international law.

3: The status of an al Qaeda detainee is, of course, problematical and fact driven. Often, it appears most closely analogous to pirates or common criminals. The problem arises if captured persons functioned, as alleged in the Yoo/Delahunty Memo, as an intertwined part of al Qaeda. Given the amorphous nature of al Qaeda, on any given day the individual's status might be as a Taliban fighter, an irregular militia supporter, a Taliban agent, a terrorist or a common criminal."

In a nutshell, the position of the Bush administration has been "The United States does not engage in torture. Therefore nothing that the United States does, no matter how cruel or extreme can be defined as torture. None of this legal shucking and jiving protects members of the administration from being subject to the terms of the treaty.

"ARTICLE 2

...

2. 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 of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture."

So none of legal manueverings of the Bush adminstration's Justice Department can exempt it from the prohibition on torture.

Furthermore,

"ARTICLE 4

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by ant person which constitutes complicity or participation in torture.

2. Each State Party shall make these offenses punishable by appropriate penalties which take into account their grave nature"

This means that the United States, as a signatory to this treaty, is obligated to prosecute and punish anyone that we find to have engaged in torture as defined by this treaty.

"ARTICLE 6

1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offense referred to in Article 4 is present shall take him into custody or take other legal measures to ensure his presence. ..."

2. Such State shall immediately make a inquiry into the facts.

...

ARTICLE 7

1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in Article 4 is found shall in the cases contemplated in Article 5, if it does not extradite him, submit the case to it's competent authorities for the purpose of prosecution.

2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in Article 5, Paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in Artice 5, Paragraph 1."

The longest legacy of the Bush administration will be the impact of their willingness to violate international law and torture prisoners and the legal repercussions this will gave on the cabinet level officials of the Bush Justice Department, State Department and Defense Department.

A lot of former high ranking officials (Rumsfeld, Addington, Gonzales, Yoo, Delahunty) are going to have to lawyer-up and prepare for years of court battles around the world.

They will be forever confined to the borders of the United States and dependant upon the grace and protection of future administrations. Knowing that they could be thrown under the bus at any time in exchange for some short term political capital.

If they so much as go on a ski trip to Switzerland, they could be detained, tried and prosecuted under international law for complicity in torture.

Remember that even in 2009, there are still investigations and prosecutions ongoing against members of Hitler's Third Reich. No amount of time, no international borders can provide refuge against international outrage and justice.

The Bush legacy will reverberate in international courts of law for decades.

Don't let the door of the White House hit you in the ass on your way out, Dubya.