Sunday, October 24, 2004


Remember Bush in the second debate, strutting around and bragging, yes, bragging about the fact that he had blown off the International Criminal Court, thereby placing the U.S. in the distinguished company of China, Iraq, and Libya?
I made a decision not to join the International Criminal Court in The Hague, which is where our troops can be brought in front of a judge, an unaccounted [sic] judge. I don't think we ought to join it. That was unpopular. And so what I'm telling you is that sometimes in this world you make unpopular decisions because you think they're right.
Kerry was too polite, or too gormless, to point out the bleeding obvious: Bush is the man who brought us Abu Ghraib. It happened on his watch. Of course he doesn't want America to be subject to the jurisdiction of the ICC, because half of the senior officials in his administration would be in the goddam dock right now. Christ, Bush 41 pardoned Weinberger, McFarlane, Abrams, Fiers, George, and Clarridge to keep his own ass out of the frying pan, but he at least had the good taste not to congratulate himself afterward.

We do not doubt that the systematic abuse at Abu Ghraib derived from the initiative of a few bad apples; the problem is, those few bad apples are the ones running the government. Here's what they were up to two weeks after Salon broke this story, two weeks before Gen. Taguba turned in his finished report, and six weeks before 60 Minutes II first showed the Abu Ghraib abuse photos. For five full paragraphs the resourceful Dana Milbank heroically manages to avoid using the phrase "war crime":
At the request of the CIA, the Justice Department drafted a confidential memo that authorizes the agency to transfer detainees out of Iraq for interrogation -- a practice that international legal specialists say contravenes the Geneva Conventions.

One intelligence official familiar with the operation said the CIA has used the March draft memo as legal support for secretly transporting as many as a dozen detainees out of Iraq in the last six months. The agency has concealed the detainees from the International Committee of the Red Cross and other authorities, the official said.

The draft opinion, written by the Justice Department's Office of Legal Counsel and dated March 19, 2004, refers to both Iraqi citizens and foreigners in Iraq, who the memo says are protected by the treaty. It permits the CIA to take Iraqis out of the country to be interrogated for a "brief but not indefinite period." It also says the CIA can permanently remove persons deemed to be "illegal aliens" under "local immigration law."

Some specialists in international law say the opinion amounts to a reinterpretation of one of the most basic rights of Article 49 of the Fourth Geneva Convention, which protects civilians during wartime and occupation, including insurgents who were not part of Iraq's military.

The treaty prohibits the "[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory . . . regardless of their motive."

The 1949 treaty notes that a violation of this particular provision constitutes a "grave breach" of the accord, and thus a "war crime" under U.S. federal law, according to a footnote in the Justice Department draft. "For these reasons," the footnote reads, "we recommend that any contemplated relocations of 'protected persons' from Iraq to facilitate interrogation be carefully evaluated for compliance with Article 49 on a case by case basis." It says that even persons removed from Iraq retain the treaty's protections, which would include humane treatment and access to international monitors . . . .

International law experts contacted for this article described the legal reasoning contained in the Justice Department memo as unconventional and disturbing.

"The overall thrust of the Convention is to keep from moving people out of the country and out of the protection of the Convention," said former senior military attorney Scott Silliman, executive director of Duke University's Center on Law, Ethics and National Security. "The memorandum seeks to create a legal regime justifying conduct that the international community clearly considers in violation of international law and the Convention."
Much quacking was done in the wake of the Post's revelation:
"These conventions and these rules are in place for a reason because you get on a slippery slope and you don't know where to get off," McCain, R-Ariz., told ABC's "This Week."

"The thing that separates us from the enemy is our respect for human rights," he said.

Sen. Joseph Biden, D-Del., called for new leadership at the Justice Department.
-- but, now that "concerns" have been "voiced," the issue will be dropped, as always, and the Bush administration will continue to function in typical fashion, unbound by law, exempt from oversight, laughing up its sleeve at the very notion of accountability.

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