Judging the Torture Presidency of George W. Bush

In Standard Operating Procedure, a definitive account of what happened at Abu Ghraib published by Penguin Press, author Philip Gourevitch writes of the American interrogators who so degraded the humanity of prisoners:

“Even as they sank into a routine of depravity, [the interrogators] showed by their picture taking that they did not accept it as normal. They never fully got with the program. Is it not to their credit that they were profoundly demoralized?”

The much more compelling question—in view of the extent to which Abu Ghraib and other American war crimes have degraded us around the world—is whether the president and all the others at the top of the chain of command ever felt themselves in the least demoralized by the results of their orders.

And, even more important, will these perpetrators ever be put on trial as a deterrent to future presidents, Defense Department and CIA heads, and their eager lawyer-accomplices in these crimes?

General Ricardo Sanchez, former commander of the coalition forces in Iraq, in his recent memoir Wiser in Battle, writes that George W. Bush’s 2002 memorandum—that the Geneva Conventions did not apply to our “detainees” suspected of terrorist ties—”constituted a watershed event in U.S. military history. . . . And that guidance set America on a path to torture.” (Emphasis added.)

Article 3 of the 1949 Geneva Conventions, signed by the United States and thereby part of our law, guarantees that any detained person has the right to be free from “cruel treatment and torture; outrages upon personal dignity, in particular, humiliating and degrading treatment.”

This right applies whether the detainee is a prisoner of war, an “unprivileged” belligerent, a terrorist, or a noncombatant. Moreover, this right is in effect “in all circumstancesandat any time and in any place whatsoever.” (Emphasis added.)

In last week’s column, “The ‘W.’ Stands for ‘War Criminal,’ ” I detailed the undeniable and direct involvement of George W. Bush and others at the highest levels of the executive branch in these criminal violations of the Geneva Conventions, and of our own laws.

Was Bush demoralized when he first saw the disgusting Abu Ghraib photographs? He publicly expressed sorrow for the humiliation suffered by the prisoners and their families, but added, wearing his American-flag pin, that he was “equally sorry that the people who had been seeing those pictures didn’t understand the true nature and heart of America.

There is a hole in the soul of this faith-based commander in chief.

But on what legal basis can Bush and his confederates be charged in an American court for these war crimes? It’s called “command responsibility,” codified for the first time as an international doctrine in the 1977 Additional Protocol to the 1949 Geneva Conventions:

“The fact that a breach of the Conventions . . . was committed by a subordinate does not absolve his superiors from . . . responsibility . . . if they knew, or had information which should have enabled them to conclude, in the circumstances at the time, that [the subordinate] was committing or about to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.”

In our law, this command responsibility is called the “Yamashita Standard,” from the 1946 Supreme Court case of that name. During the last months of World War II, General Tomoyuki Yamashita (the so-called “Tiger of Malaysia”) commanded a unit of the Japanese army in the Philippines. To quote The Supreme Court in Conference (1940–1985), published by Oxford University Press: “When Japanese forces surrendered to the allies, Yamashita was arrested and charged with allowing his troops to commit murder and other war crimes against POWs and Philippine civilians.”

Tried by a special military commission created by President Franklin D. Roosevelt, Yamashita was convicted by a vote of 5-0 and sentenced to death on December 7, 1945—four years to the day after the Japanese attack on Pearl Harbor. The commission decided that the atrocities committed by the Japanese forces in the Philippines were so notorious that General Yamashita had to know about them—and did nothing to stop them.

George W. Bush and his lawyers obviously knew about Abu Ghraib and other war crimes, and not only didn’t try to prevent their continuance, but justified these interrogation practices—which are actually forbidden in the U.S. Army Field Manual—by exempting the CIA from the policies laid out in that manual.

General Yamashita’s chain of appeals ended with the Supreme Court, where, in a 6-2 opinion written by Chief Justice Harlan Stone (with Hugo Black, Felix Frankfurter, and William O. Douglas agreeing), the court ruled that Yamashita had been convicted by a military commission instituted by the president, the military command, and Congress—and that its authority did not end after the peace agreement.

Dissenters Frank Murphy and Wiley Rutledge angrily claimed that in an American court, Yamashita had been deprived of such constitutional rights as a grand-jury indictment, trial by jury, and the protection of American rules of evidence.

But in the majority, passionate civil libertarians Douglas and Black nonetheless let the original charge stand that General Yamashita, the commanding officer, was guilty of “unlawfully disregarding and failing to discharge his duty as commander to control the acts of members of his command by permitting them to commit war crimes.” General Yamashita was subsequently executed.

Internationally, there were also the Nuremberg trials, in which we participated, and at which Nazi leaders were convicted of war crimes after having been given extensive due-process rights.

Although I believe that a war-crimes trial of George W. Bush and his accomplices is legally justified, I cannot foresee it ever taking place; not only because it would much more deeply divide the nation than impeachment proceedings, but also because I doubt that any future American administration, with the threat of terrorism likely to continue for generations, would welcome the precedent of such a trial if there were another 9/11, or worse—resulting in more violations of American and international law uncritically accepted by a terrified citizenry.

Even so, the future histories of George W. Bush’s torture presidency will lay out an abundantly documented case regarding the resounding crimes he has permitted, and committed, in our name.

Next week: A former high-ranking CIA lawyer adds dramatically to the indictment.

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