GEORGE W. BUSH, WAR CRIMINAL?
The Bush Administration’s Liability for 269 War Crimes
A book by Nobel Peace Prize Nominee, Political Scientist Michael Haas,
with a Foreword by Nuremberg Chief Prosecutor Benjamin B. Ferencz
Whither Guantanamo?
Michael Haas on October 16th, 2011
Attorney General Eric Holder told the European Parliament in September 2011 that he would try to close Guantanamo by Election Day 2012 or at least by the end of the year. How he would do so was not specified, but ten suggestions appear below.
First, however, it is useful to recall that when the Afghan War began, General Tommy Franks ordered compliance with the Geneva Conventions on October 17, 2001. On November 13 he was countermanded by an executive order in the form of a military order from President George W. Bush regarding prisoners who were then being collected, though no specific mention was made of the Geneva Conventions. When the first prisoners arrived at the Naval Base on January 11, 2002, the commanding general, Brigadier General Rick Baccus, ordered compliance with the Geneva Conventions. His order was then rescinded on February 7 by another executive order signed by George W. Bush making specific reference to the inapplicability of the Geneva Conventions of 1949 but not the 1929 Geneva Convention.
Despite Baccus’s initial attempt at compliance, the world viewed blindfolded, bound prisoners on their knees wearing orange jumpsuits together behind barbed wire. The photo, which has flashed across screens many times, already suggested six Geneva Convention violations:
•inhuman treatment (Article 3 of both the 1929 and 1949 treaties)
•humiliating and degrading treatment (Article 3 of both the 1929 and 1949 treaties)
•cruel treatment (Article 3 of the 1949 treaty; Article 46 of the 1929 treaty)
•close confinement (Article 21 of the 1949 treaty; Article 9 of the 1929 treaty)
•public display of prisoners (Article 13 of the 1949 treaty; Article 2 of the 1929 treaty)
•deprivation of personal property (Article 18 of the 1949 treaty; Article 6 of the 1929 treaty)
It was not the stalag of Hogan’s Heroes!
According to Human Rights First, some 779 prisoners have been housed at Guantánamo over the years. Today, there are 174. Of the 605 no longer at Gitmo, most were sent home or to countries that received them as refugees. Eight have died at Gitmo, 4 of whom were considered suicides, though some may in fact have been murdered. One, who pled guilty, is back home in Australia. Another, who was convicted, was sent back to Yemen.
Three others, who have been prosecuted, remain as prisoners at Gitmo, making the facility a penitentiary, contrary to Article 56 of the Geneva Convention of 1929 and Article 22 of the Third Geneva Convention of 1949.
Today, the following categories of prisoners remain:
•3 confessed or convicted prisoners who may never be released
•5 temporary detainees (Uighurs from China who await resettlement)
•84 conditional detainees (30 Yemenis, who want to go home, are held due to instability there but are otherwise cleared for release)
•46 dangerous prisoners who will not be prosecuted because of “tainted” evidence
•36 prosecutable prisoners, some for civilian offenses.
I envision ten options:
Resettlement in the United States. Seventeen dissidents from Western China, the Uighurs held at Gitmo, could easily be accommodated with their brethren in Virginia. They were wrongly imprisoned, as they have no animosity toward the United States and instead oppose repression of Uighurs inside China. Yet in 2009 President Obama refused to accept a court order for their release to the Mainland United States, deferring to Congressional opposition.
Transfer to foreign countries. Congress currently allows transfer of prisoners cleared for release to settle abroad, provided that the Secretaries of Defense and State stipulate that the host countries meet specific strategic requirements.
Transfer to the UN refugee authority. Part of Guantánamo now serves as a refugee camp. The 89 prisoners already approved for transfer are technically “refugees,” since they reside neither in their home country nor in a country that will accept them as residents, and they hope to leave soon. The Geneva-based UN High Commissioner for Refugees could be asked to handle those already cleared for release. If sent to Geneva, Congressional strategic requirements could easily be met. Existing UN refugee camps, however, may offer inferior accommodations.
Join the International Criminal Court. If the United States joins the International Criminal Court (ICC), those with prosecutable offenses might be sent to The Hague for trial. However, the Senate must first be persuaded to ratify the ICC treaty, and that seems unlikely at present, as that would open the door to prosecution of George W. Bush and company. However, a country that has ratified the ICC treaty might bring such a case.
Return prisoners to Afghanistan. Those held at Guantánamo who were engaged in active combat when picked up should have remained under military detention in that country. To conform to Geneva Convention requirements, they should be sent back. The UN Security Council, which annually approves of the Afghan War, aiming to stabilize the country, might address their resettlement. The United States is building a new prison facility in Afghanistan today, possibly to accommodate those now at Guantanamo.
Trials in civilian courts. Some prosecutable prisoners at Guantánamo are accused of various crimes related and unrelated to air piracy and murder on 9/11, offenses that are appropriate for civilian courts, as they are criminal offenses. The International Covenant on Civil and Political Rights requires a civilian trial for at least some of them. Federal courts have already successfully prosecuted some 400 similar cases, only one of which (Ahmed Ghalani) was housed for a time at Guantánamo. On May 21, 2009, President Barack Obama declared that civilian trials were appropriate in many cases, and Attorney General Eric Holder as recently as June 16, 2011, expressed a preference to try all terrorists in civilian courts, but he has lost a turf battle with Congress. Political leaders in New York objected to the cost of providing security for a high-profile trial in Manhattan of those charged with 9/11 offenses, so there must be a change of venue. Security can be handled more economically around federal courts in Fargo, Grand Forks, or Minot, North Dakota, and elsewhere. Jury trials could then have defendants present through videoconference if not in person. If prosecution witnesses are called upon to confront defendants directly, they can be flown to Gitmo for that purpose.
Trials by military courts. “Dangerous prisoners,” who might be exonerated if put on trial because of tainted evidence could nevertheless be put on trial anyway. Juries are unpredictable. If they are found guilty, they would be locked up. If they are found not guilty, they can be released, subject to current Congressional restrictions. And if they subsequently become terrorists, they can be tracked down, arrested, and tried in a manner similar to criminals released from American prisons who re-offend by committing arson, murder, or rape. Given the vast counterterrorism network that has been erected since 9/11, only cowards would fear a few more terrorists on the loose today.
Confinement in federal prisons. If convicted in civilian or military trials, the prisoners could be sent to prisons in Terre Haute, Indiana, where suspected terrorists are already held in federal prisons. Or to the Supermax prison in southern Colorado, which houses convicted terrorists. For that matter, all prisoners could be sent either place.
Reassignment to other venues. Gitmo is not the only possible venue. Prisoners could be split up and sent to military bases elsewhere in the United States or its territories, such as Anderson Air Force Base on Guam, which was originally considered. Midway Island, St. Thomas, Virgin Islands, and Wake Island are also possible. Although such transfers might be perceived as shellgames, at least Guantánamo would be closed, once and for all.
Assertion of executive authority. Attorney General Eric Holder and President Barack Obama could ignore Congressional meddling in the implementation of operations by the executive branch of government regarding Guantánamo. The constitutional separation of powers gives the executive branch full responsibility over the disposition of prisoners under the control of the national government. But Congress, which did not arrest them, has set administrative rules for handling them, thereby pretending to exercise a legislative veto over acts of the executive branch. Obama threatened a veto in 2011 for having the legislative branch interfere with executive authority, in effect making those at Gitmo prisoners of Congress. Indeed, Congressional laws on the subject nearly amount to passage of a Bill of Attainder, that is, an attempt to impose a sentence on prisoners by legislative means. According to former Chief Justice William Rehnquist, those who wrote the Constitution had experience with the English practice of “a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial” and therefore prohibited bills of attainder in the Constitution.
Guantanamo could close very soon, but President Barack Obama and Attorney General Eric Holder would have to act with more determination.
The Bush Administration’s Liability for 269 War Crimes
A book by Nobel Peace Prize Nominee, Political Scientist Michael Haas,
with a Foreword by Nuremberg Chief Prosecutor Benjamin B. Ferencz
Whither Guantanamo?
Michael Haas on October 16th, 2011
Attorney General Eric Holder told the European Parliament in September 2011 that he would try to close Guantanamo by Election Day 2012 or at least by the end of the year. How he would do so was not specified, but ten suggestions appear below.
First, however, it is useful to recall that when the Afghan War began, General Tommy Franks ordered compliance with the Geneva Conventions on October 17, 2001. On November 13 he was countermanded by an executive order in the form of a military order from President George W. Bush regarding prisoners who were then being collected, though no specific mention was made of the Geneva Conventions. When the first prisoners arrived at the Naval Base on January 11, 2002, the commanding general, Brigadier General Rick Baccus, ordered compliance with the Geneva Conventions. His order was then rescinded on February 7 by another executive order signed by George W. Bush making specific reference to the inapplicability of the Geneva Conventions of 1949 but not the 1929 Geneva Convention.
Despite Baccus’s initial attempt at compliance, the world viewed blindfolded, bound prisoners on their knees wearing orange jumpsuits together behind barbed wire. The photo, which has flashed across screens many times, already suggested six Geneva Convention violations:
•inhuman treatment (Article 3 of both the 1929 and 1949 treaties)
•humiliating and degrading treatment (Article 3 of both the 1929 and 1949 treaties)
•cruel treatment (Article 3 of the 1949 treaty; Article 46 of the 1929 treaty)
•close confinement (Article 21 of the 1949 treaty; Article 9 of the 1929 treaty)
•public display of prisoners (Article 13 of the 1949 treaty; Article 2 of the 1929 treaty)
•deprivation of personal property (Article 18 of the 1949 treaty; Article 6 of the 1929 treaty)
It was not the stalag of Hogan’s Heroes!
According to Human Rights First, some 779 prisoners have been housed at Guantánamo over the years. Today, there are 174. Of the 605 no longer at Gitmo, most were sent home or to countries that received them as refugees. Eight have died at Gitmo, 4 of whom were considered suicides, though some may in fact have been murdered. One, who pled guilty, is back home in Australia. Another, who was convicted, was sent back to Yemen.
Three others, who have been prosecuted, remain as prisoners at Gitmo, making the facility a penitentiary, contrary to Article 56 of the Geneva Convention of 1929 and Article 22 of the Third Geneva Convention of 1949.
Today, the following categories of prisoners remain:
•3 confessed or convicted prisoners who may never be released
•5 temporary detainees (Uighurs from China who await resettlement)
•84 conditional detainees (30 Yemenis, who want to go home, are held due to instability there but are otherwise cleared for release)
•46 dangerous prisoners who will not be prosecuted because of “tainted” evidence
•36 prosecutable prisoners, some for civilian offenses.
I envision ten options:
Resettlement in the United States. Seventeen dissidents from Western China, the Uighurs held at Gitmo, could easily be accommodated with their brethren in Virginia. They were wrongly imprisoned, as they have no animosity toward the United States and instead oppose repression of Uighurs inside China. Yet in 2009 President Obama refused to accept a court order for their release to the Mainland United States, deferring to Congressional opposition.
Transfer to foreign countries. Congress currently allows transfer of prisoners cleared for release to settle abroad, provided that the Secretaries of Defense and State stipulate that the host countries meet specific strategic requirements.
Transfer to the UN refugee authority. Part of Guantánamo now serves as a refugee camp. The 89 prisoners already approved for transfer are technically “refugees,” since they reside neither in their home country nor in a country that will accept them as residents, and they hope to leave soon. The Geneva-based UN High Commissioner for Refugees could be asked to handle those already cleared for release. If sent to Geneva, Congressional strategic requirements could easily be met. Existing UN refugee camps, however, may offer inferior accommodations.
Join the International Criminal Court. If the United States joins the International Criminal Court (ICC), those with prosecutable offenses might be sent to The Hague for trial. However, the Senate must first be persuaded to ratify the ICC treaty, and that seems unlikely at present, as that would open the door to prosecution of George W. Bush and company. However, a country that has ratified the ICC treaty might bring such a case.
Return prisoners to Afghanistan. Those held at Guantánamo who were engaged in active combat when picked up should have remained under military detention in that country. To conform to Geneva Convention requirements, they should be sent back. The UN Security Council, which annually approves of the Afghan War, aiming to stabilize the country, might address their resettlement. The United States is building a new prison facility in Afghanistan today, possibly to accommodate those now at Guantanamo.
Trials in civilian courts. Some prosecutable prisoners at Guantánamo are accused of various crimes related and unrelated to air piracy and murder on 9/11, offenses that are appropriate for civilian courts, as they are criminal offenses. The International Covenant on Civil and Political Rights requires a civilian trial for at least some of them. Federal courts have already successfully prosecuted some 400 similar cases, only one of which (Ahmed Ghalani) was housed for a time at Guantánamo. On May 21, 2009, President Barack Obama declared that civilian trials were appropriate in many cases, and Attorney General Eric Holder as recently as June 16, 2011, expressed a preference to try all terrorists in civilian courts, but he has lost a turf battle with Congress. Political leaders in New York objected to the cost of providing security for a high-profile trial in Manhattan of those charged with 9/11 offenses, so there must be a change of venue. Security can be handled more economically around federal courts in Fargo, Grand Forks, or Minot, North Dakota, and elsewhere. Jury trials could then have defendants present through videoconference if not in person. If prosecution witnesses are called upon to confront defendants directly, they can be flown to Gitmo for that purpose.
Trials by military courts. “Dangerous prisoners,” who might be exonerated if put on trial because of tainted evidence could nevertheless be put on trial anyway. Juries are unpredictable. If they are found guilty, they would be locked up. If they are found not guilty, they can be released, subject to current Congressional restrictions. And if they subsequently become terrorists, they can be tracked down, arrested, and tried in a manner similar to criminals released from American prisons who re-offend by committing arson, murder, or rape. Given the vast counterterrorism network that has been erected since 9/11, only cowards would fear a few more terrorists on the loose today.
Confinement in federal prisons. If convicted in civilian or military trials, the prisoners could be sent to prisons in Terre Haute, Indiana, where suspected terrorists are already held in federal prisons. Or to the Supermax prison in southern Colorado, which houses convicted terrorists. For that matter, all prisoners could be sent either place.
Reassignment to other venues. Gitmo is not the only possible venue. Prisoners could be split up and sent to military bases elsewhere in the United States or its territories, such as Anderson Air Force Base on Guam, which was originally considered. Midway Island, St. Thomas, Virgin Islands, and Wake Island are also possible. Although such transfers might be perceived as shellgames, at least Guantánamo would be closed, once and for all.
Assertion of executive authority. Attorney General Eric Holder and President Barack Obama could ignore Congressional meddling in the implementation of operations by the executive branch of government regarding Guantánamo. The constitutional separation of powers gives the executive branch full responsibility over the disposition of prisoners under the control of the national government. But Congress, which did not arrest them, has set administrative rules for handling them, thereby pretending to exercise a legislative veto over acts of the executive branch. Obama threatened a veto in 2011 for having the legislative branch interfere with executive authority, in effect making those at Gitmo prisoners of Congress. Indeed, Congressional laws on the subject nearly amount to passage of a Bill of Attainder, that is, an attempt to impose a sentence on prisoners by legislative means. According to former Chief Justice William Rehnquist, those who wrote the Constitution had experience with the English practice of “a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial” and therefore prohibited bills of attainder in the Constitution.
Guantanamo could close very soon, but President Barack Obama and Attorney General Eric Holder would have to act with more determination.
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