Thursday, July 17, 2008

Of Dogs and War Crimes: The Paul Henss Case

War Crimes Paradox

National Public Radio has been spending much news time on Darfur in Western Sudan where a great deal of human suffering and death are occurring. The military conflict has been brought on in part by climate change, according to UN Secretary General Ban Ki-moon. Drought is forcing nomads in search of water into areas occupied by other claimants. No doubt the conflict is tribal and racial as well. The entire catastrophe is overseen by a government with few resources other than bullets.

Now an International Criminal Court prosecutor wants to bring charges against Sudan’s president, Omar al-Bashir, for crimes against humanity and war crimes.

I have no sympathy for people who make others suffer. Nevertheless, I wonder at the International Criminal Court’s pick from the assortment of war criminals? Why al-Bashir?

Is it because Sudan is a powerless state, and the International Criminal Court hasn’t the courage to name George W. Bush and Tony Blair as war criminals?

Bush and Blair’s crimes against humanity in Iraq and Afghanistan dwarf, at least in the number of deaths and displaced persons, the terrible situation in Darfur. The highest estimate of Darfur casualties is 400,000, one-third the number of Iraqis who have died as a result of Bush’s invasion. Moreover, the conflict in the Sudan is an internal one, whereas Bush illegally invaded two foreign countries, war crimes under the Nuremberg Standard. Bush’s war crimes were enabled by the political leaders of the UK, Spain, Canada, and Australia. The leaders of every member of the “coalition of the willing to commit war crimes” are candidates for the dock.

But of course the Great Moral West does not commit war crimes. War crimes are charges fobbed off on people demonized by the Western media, such as the Serbian Milosovic and the Sudanese al-Bashir.

Every week the Israeli government evicts Palestinians from their homes, steals their land, and kills Palestinian women and children. These crimes against humanity have been going on for decades. Except for a few Israeli human rights organizations, no one complains about it. Palestinians are defined as “terrorists,” and “terrorists” can be treated inhumanely without complaint.

Iraqis and Afghans suffer the same fate. Iraqis who resist US occupation of their country are “terrorists.” Taliban is a demonized name. Every Afghan killed--even those attending wedding parties--is claimed to be Taliban by the US military. Iraqis and Afghans can be murdered at will by American and NATO troops without anyone raising human rights issues.

The International Criminal Court is a bureaucracy. It has a budget, and it needs to do something to justify its budget. Lacking teeth and courage, it goes after the petty war criminals and leaves the big ones alone.

Don’t get me wrong. I’m for holding all governments accountable for their criminal actions. It is the hypocrisy to which I object. The West gives itself and Israel a pass while damning everyone else. Even human rights groups fall into the trap. Rights activists don’t see the buffoonery in their complaint that President Bush, who has violated more human rights than any person alive, is letting China off the hook for human rights abuses by attending the Olympics hosted by China.

President Bush claims that the enormous destruction and death he has brought to Iraq and Afghanistan are necessary in order for Americans to be safe. If we are accepting excuses this feeble, Milosovic passed muster with his excuse that as the head of state he was obliged to try to preserve the state’s territorial integrity. Is al-Bashir supposed to accept secession in the Sudan, something that Lincoln would not accept from the Confederacy? How long would al-Bashir last if he partitioned Sudan?

Last October the Atlanta Journal-Constitution had a photo on its front page above the fold of an elderly man with mikes shoved in his face. Paul Henss, 85 years old, is being deported from the US, where he has lived for 53 years, because Eli Rosenbaum, director the the US State Department’s Nazi-hunting bureaucracy, declared him a war criminal for training guard dogs used at German concentration camps. Henss was 22 years old when World War II ended.

A kid who trained guard dogs is being deported as a war criminal, but the head of state who launched two wars of naked aggression, resulting in the deaths of more than 1.2 million people, and who has the entire world on edge awaiting his third war of aggression, this time against Iran, is received respectfully by foreign governments. Corporations and trade associations will pay him $100,000 per speech when he leaves office. He will make millions of dollars more from memoirs written by a ghostwriter.

Does no one see the paradox of deporting Henss while leaving the war criminal in the White House?

Paul Craig Roberts was Assistant Secretary of the Treasury in the Reagan administration. He was Associate Editor of the Wall Street Journal editorial page and Contributing Editor of National Review. He is coauthor of The Tyranny of Good Intentions.He can be reached at:


Tuesday, July 15, 2008

Portrait of Panic

Portrait of a Panic
by Nicholas von Hoffman

For the past two days, America has been shaken by photos and video reports of angry customers lined up to withdraw their money from branch offices of the failed IndyMac bank. Such images would not have been seen during America's last great financial disaster.

Comb the microfilm records of newspapers in 1931 and 1932, when depositor panics closed most of the banks in the United States, and you will not find a picture of terrified depositors lining up in hopes of extricating their life savings. Their absence stemmed from editors' fear that the publicity would intensify the panic.

Today editors exercise no such restraint -- and with the Internet, who needs editors? Stockholders in banks and kindred financial institutions are in such a panic state, they cannot get rid of their investments fast enough. But as they dump their holdings, the price tanks faster than they sell.

Media images of panicked Americans may have depressed Federal Reserve Chairman Ben Bernanke. But more depressing after his repeated efforts -- including the throat-slitting of Bear Stearns -- must be in realizing that he has failed.

In the space of a year, Citigroup, once considered America's largest bank and now the world's largest mess, has seen the price of a share of its stock fall from almost $53 to less than $14. Most of that happened before Treasury Secretary Henry Paulson popped up in front of a replica of the Liberty Bell on a Sunday afternoon to announce his plan to save, bolster, prop up, rescue, bail out or pick-your-verb Fannie Mae and Freddie Mac.

In the years before Paulson's plan, Bernanke had moved hell and high water to stop the implacable slide of real estate prices, but he has not been able to do it. He loaned money, he pumped money, he swapped money for unsellable bonds. In every imaginable way he forced money into the imploding system, and to no avail; the price of real estate keeps dropping.

Bonds, derivatives and all the other financial arcana have lost value to the point that nobody knows what anything is worth anymore. The superstructure of what is now only ironically called high finance is melting and swaying.

The announcement of the Paulson plan, meant to soothe and reassure, has had no such effect. If anything, in the days after his announcement the contagion has spread. Instead of the stock market perking up and the mortgage world calming down, there were predictions that we will shortly see as many as 150 banks fail.

"There is widespread speculation and rumors in the markets today," said a beleaguered spokesperson for Cleveland's National City Bank, adding plaintively, "Look, we are not experiencing any unusual depositor or creditor activity today." The Securities and Exchange Commission, which has distinguished itself through the months of this developing disaster by doing nothing, told the world it would be going after anyone spreading "false" rumors driving down the price of securities. True rumors are apparently OK.

While the Securities and Exchange Commission was swatting flies, Chairman Bernanke turned up on Capitol Hill to tell Congress that he was one confused man. That was the gist of a presentation in which he was able to do little more than point out the dangers of a collapsing economy and growing inflation.

As he was speaking, General Motors was telling its employees and its stockholders that more layoffs, huge salary cuts, and no more dividends were in their immediate future. At the same time the dollar drank the shrinking potion from Alice in Wonderland and set a new record for weakness against the euro.

The American economy has not been in such serious trouble in seventy-five years. You cannot expect government officials to say that, however. Commerce, like religion, depends on faith. That Paulson would present a plan that contradicts everything he has stood for as a businessman and a Republican demonstrates what he actually thinks.

Things are going to get worse, and people know it. Panic, fear and worry about jobs, savings, debts and bills are on the minds of millions. Unemployment will grow, incomes will continue to shrink and prices grow higher as more companies head for bankruptcy court.

The Paulson plan, like the Bernanke plans that preceded it, is not tough enough, not close enough to the bone to make a telling difference. His is a temporizing attempt to prop up the unproppable. There is too much rot in these financial institutions. They will have to be allowed to fail and be reorganized in the process of which a lot of people will, in Wall Street parlance, take a major haircut.

Nicholas von Hoffman writes regularly for The Nation. He is the author of thirteen books, including Citizen Cohn, and he is a columnist for the New York Observer.

Copyright © 2008 The Nation

Monday, July 14, 2008

The Tortured Rule of Law

Torture and the rule of law
by Glenn Greenwald

The New Yorker's Jane Mayer, one of the country's handful of truly excellent investigative journalists over the last seven years, has written a new book -- "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals" -- which reveals several extraordinary (though unsurprising) facts regarding America's torture regime. According to the New York Times and Washington Post, both of which received an advanced copy, Mayer's book reports the following:

"Red Cross investigators concluded last year in a secret report that the Central Intelligence Agency's interrogation methods for high-level Qaeda prisoners constituted torture and could make the Bush administration officials who approved them guilty of war crimes."

"A CIA analyst warned the Bush administration in 2002 that up to a third of the detainees at Guantanamo Bay may have been imprisoned by mistake, but White House officials ignored the finding and insisted that all were 'enemy combatants' subject to indefinite incarceration."

"[A] top aide to Vice President Cheney shrugged off the report and squashed proposals for a quick review of the detainees' cases . . .

'There will be no review,' the book quotes Cheney staff director David Addington as saying. 'The president has determined that they are ALL enemy combatants. We are not going to revisit it.'"

"[T]he [CIA] analyst estimated that a full third of the camp's detainees were there by mistake. When told of those findings, the top military commander at Guantanamo at the time, Major Gen. Michael Dunlavey, not only agreed with the assessment but suggested that an even higher percentage of detentions -- up to half -- were in error. Later, an academic study by Seton Hall University Law School concluded that 55 percent of detainees had never engaged in hostile acts against the United States, and only 8 percent had any association with al-Qaeda."

[T]he International Committee of the Red Cross declared in the report, given to the C.I.A. last year, that the methods used on Abu Zubaydah, the first major Qaeda figure the United States captured, were 'categorically' torture, which is illegal under both American and international law".

"[T]he Red Cross document 'warned that the abuse constituted war crimes, placing the highest officials in the U.S. government in jeopardy of being prosecuted.'"
This is what a country becomes when it decides that it will not live under the rule of law, when it communicates to its political leaders that they are free to do whatever they want -- including breaking our laws -- and there will be no consequences. There are two choices and only two choices for every country -- live under the rule of law or live under the rule of men. We've collectively decided that our most powerful political leaders are not bound by our laws -- that when they break the law, there will be no consequences. We've thus become a country which lives under the proverbial "rule of men" -- that is literally true, with no hyperbole needed -- and Mayer's revelations are nothing more than the inevitable by-product of that choice.

That's why this ongoing, well-intentioned debate that Andrew Sullivan is having with himself and his readers over whether "torture is worse than illegal, warrantless eavesdropping" is so misplaced, and it's also why those who are dismissing as "an overblown distraction" the anger generated by last week's Congressional protection of surveillance lawbreakers are so deeply misguided. Things like "torture" and "illegal eavesdropping" can't be compared as though they're separate, competing policies. They are rooted in the same framework of lawlessness. The same rationale that justifies one is what justifies the other. Endorsing one is to endorse all of it.

In fact, none of the scandals of radicalism and criminality which we've learned about over the last seven years -- including the creation of this illegal torture regime -- can be viewed in isolation. They're all by-products of the country that we've become in the post-9/11 era, primarily as a result of our collective decision to exempt our Government leaders from the rule of law; to acquiesce to the manipulative claim that we can only be Safe if we allow our Leaders to be free from consequences when they commit crimes; and to demonize advocates of the rule of law as -- to use Larry Lessig's mindless, reactionary clich├ęs -- shrill, Leftist "hysterics" who need to "get off [their] high horse(s)".

That is the mentality that has allowed the Bush administration to engage in this profound assault on our national character, to violate our laws at will. Our political and media elite have acquiesced to all of this when they weren't cheering it all on. Those who object to it, who argue that these abuses of political power are dangerous in the extreme and that we cannot tolerate deliberate government lawbreaking, are dismissed as shrill Leftist hysterics.

All the way back in May, 2006 -- just months after the NYT revealed the illegal NSA spying program -- I wrote in my first book, How Would a Patriot Act, the following about the NSA eavesdropping scandal:

This is not about eavesdropping. This is about whether we are a nation of laws . . . . The heart of the matter is that the President broke the law, repeatedly and deliberately, no matter what his rationale for doing so was . . . .

The National Security Agency eavesdropping scandal is not an isolated act of lawbreaking. It is an outgrowth of an ideology of lawlessness that has been adopted by the Bush administration as its governing doctrine. Others include the incarceration in military prisons of U.S. citizens who were not charged with any crime or even allowed access to a lawyer, the use of legally prohibited torture techniques, and the establishment of a military detention center in Guantanamo Bay, a no-man's-land that the administration claims is beyond the reach of U.S. law. In the media and the public mind, these issues have been seen in isolation, as though they are unconnected.

In fact, all of these controversial actions can be traced to a single cause, a shared root. They are grounded in, and are the by-product of, an unprecedented and truly radical theory of presidential power that, at its core, maintains that the president's power is literally unlimited and absolute in matters relating to terrorism or national security. . . .

What we have in our federal government are not individual acts of lawbreaking or isolated scandals of illegality, but instead a culture and an ideology of lawlessness.

But those who argued such things were The Shrill Leftists, The Crazed Civil-Liberties Extremists, the Hysterics. And they still are. By contrast, Serious People understood -- and still understand -- that our leaders made complex and weighty decisions for our own Good and that terms like "lawbreaking" and "war crimes" and "prosecutions" have no place in respectable American political circles. Hence, our political leaders operate in a climate where they know they can do anything -- anything at all, including flagrantly breaking our most serious laws -- and they will be defended, or at least have their behavior mitigated, by a virtually unanimous political and media establishment. The hand-wringing over Mayer's latest revelations will be led by the very people who are responsible for what has taken place -- responsible because they decided that rampant, deliberate lawbreaking by our Government officials was nothing to get worked up over.

There are many political disputes -- probably most -- composed of two or more reasonable sides. Whether the U.S. Government has committed war crimes by torturing detainees -- conduct that is illegal under domestic law and international treaties which are binding law in this country -- isn't an example of a reasonable, two-sided political dispute. Nor is the issue of whether the U.S. Government and the telecom industry engaged in illegal acts for years by spying on Americans without warrants. Nor is the question of whether we should allow Government officials to break our laws at will by claiming that doing so is necessary to keep us Safe.

There just aren't two sides to those matters. That's what the International Red Cross means when it says that what we did to Guantanamo detainees was "categorically torture." It's what the only federal judges to adjudicate the question -- all three -- have concluded when they found that the President clearly broke our laws with no valid excuses by spying on our communications for years with no warrants. It's why the Bush administration has sought -- and repeatedly received -- immunity and amnesty for the people who have implemented these policies. It's because these actions are clearly illegal -- criminal -- and we all know that.

And that's true no matter how many Bush-loyal DOJ lawyers justify the behavior, no matter how many right-wing lawyers go on TV to defend the Government's conduct, no matter how many Brookings "scholars" go to The New Republic in order flamboyantly to boast how deeply complex these matters are and how only Super-Experts (like themselves) can grapple with the fascinating intellectual puzzles they pose. Displaying cognitive angst and/or above-it-all indifference in the face of unambiguously illegal and morally reprehensible government conduct isn't a sign of intellectual sophistication or political Seriousness. It's exactly the opposite. It's the hallmark of complicity with it.

Law Professor Jonathan Turley, on MSNBC last night discussing Mayer's revelations, put it this way:

[The IRC] is the world's preeminent institution on the conditions and treatment of prisoners and specifically what constitutes torture. And the important thing here is they're saying it's not a close question, that as many of us, and there are many, many of us who have argued for years that this is clearly, unmistakably a torture program; the Red Cross is saying the same.

The problem for the Bush administration is they perfected plausible deniability techniques. They bring out one or two people that are willing to debate on cable shows whether water-boarding is torture. And it leaves the impression that it's a close question. It's not. It's just like the domestic surveillance program that the a federal court just a week ago also said was not a close question. These are illegal acts. These are crimes. And there weren't questions before and there's not questions now as to the illegality. . . .

I never thought I would say this, but I think it might, in fact, be time for the United States to be held internationally to a tribunal. I never thought, in my lifetime, that I would say that, that we have become like Serbia, where an international tribunal has to come to force us to apply the rule of law. I never imagined that a Congress, a Democratic-led Congress would refuse to take actions, even with the preeminent institution of the Red Cross saying, this is clearly torture and torture is a war crime. They are still refusing to take meaningful action.

So, we've come to this ignoble moment where we could be forced into a tribunal and forced to face the rule of law that we've refused to apply to ourselves.

That's the inevitable outcome when a country's political establishment decrees itself exempt from the rule of law. If the rule of law doesn't constrain the actions of government officials, then nothing will. Continuous revelations of serious government lawbreaking have led not to investigations or punishment but to retroactive immunity and concealment of the crimes. Judicial findings of illegal government behavior have led to Congressional action to protect the lawbreakers. The Detainee Treatment Act. The Military Commissions Act. The Protect America Act. The FISA Amendments Act. They're all rooted in the same premise: that our highest government leaders have the power to ignore our laws with impunity, and when they're caught, they should be immunized and protected, not punished.

When our political and media elite aren't defending the Bush administration's lawbreaking, they're dismissing its importance. David Broder believes that government crimes are mere "policy disputes" that shouldn't be punished. And here's "liberal" pundit Tim Rutten of The Los Angeles Times, acknowledging that our highest political officials ordered illegal torture, but then invoking the very common -- and indescribably destructive -- mentality of most of our Good Establishment Liberals to insist that they should not be held legally accountable:

It's true that there are a handful of European rights activists and people on the lacy left fringe of American politics who would dearly like to see such trials, but actually pursuing them would be a profound -- even tragic -- mistake. Our political system works as smoothly as it does, in part, because we've never criminalized differences over policy. Since Andrew Jackson's time, our electoral victors celebrate by throwing the losers out of work -- not into jail cells.

The Bush administration has been wretchedly mistaken in its conception of executive power, deceitful in its push for war with Iraq and appalling in its scheming to make torture an instrument of state power. But a healthy democracy punishes policy mistakes, however egregious, and seeks redress for its societal wounds, however deep, at the ballot box and not in the prisoner's dock.

To do otherwise risks the stability of our own electoral politics almost as recklessly as the Bush/Cheney regime has risked our national interests abroad.

That warped mentality -- as much as the most lawless elements of the Bush administration -- is what is responsible for the destruction of our fundamental national character over the last seven years. "Laws" and "crimes" are only for the common people and for other countries. We're too magisterial a country, our political leaders are too Important and too Good, to subject them to punishment when they break our laws. That's the mentality that has created the climate of Lawlessness that defines who we are.

Yes, I'm well aware that the U.S, like all countries, was deeply imperfect prior to 9/11, and that many of the systematic excesses of the Bush era have their genesis prior to 2001. The difference (a critical one) is that what had been acts of lawbreaking and violations of our national values have become the norm -- consistent with, rather than violative of, our express values and policies. As Mayer writes in her book:

For the first time in its history, the United States sanctioned government officials to physically and psychologically torment U.S.-held captives, making torture the official law of the land in all but name.
The enactment of the new FISA bill last week was destructive for many reasons, including the fact that it legalized a regime of warrantless eavesdropping that is certain to be abused. But the far more destructive aspect of the new law is that it was just the latest example -- albeit the most flagrant -- of our political class abolishing the rule of law in this country.

It will never stop being jarring that Pulitzer-Prize-winning revelations from the New York Times that the President and the telecom industry were committing felonies for years culminated in the full-scale protection of the lawbreakers and retroactive legalization of the criminality by the "opposition party" which controls the Congress.

One cannot coherently sanction or even acquiesce to serious government lawbreaking and then feign outrage over illegal torture and other war crimes. The sanctioning of government illegality is precisely what leads to abuses like the American torture regime. Those who have spent the last seven years scoffing at Unserious, Hysterical objections to Bush lawlessness are the very people who have created this climate that they will now pretend to find so upsetting. The "rule of law" isn't some left-wing dogma that is the province of Leftist radicals and hysterics. It's the cornerstone of every civilized and free society, and Jane Mayer's new book is but the latest piece of evidence to prove that.

-- Glenn Greenwald