The Gonzales Indictment
Marjorie Cohn
The Gonzales Indictment
Wed Jan 19, 2005 03:43
64.140.158.10

The Gonzales Indictment
By Marjorie Cohn
t r u t h o u t | Perspective
http://www.truthout.org/docs_05/011905A.shtml

Wednesday 19 January 2005

Alberto Gonzales should not be the Attorney General of the United States. He should be considered a war criminal and indicted by the Attorney General. This is a suggested indictment of Alberto Gonzales for war crimes under Title 18 U.S.C. section 1441, the War Crimes Act.

COUNT I: Application of Geneva Conventions; Definition of Torture

On or about January 25, 2002 through January 16, 2005, Defendant ALBERTO GONZALES, Counsel to George W. Bush, the President of the United States of America, did write, commission and concur in memoranda that advocated conduct by United States military forces, amounting to war crimes under Title 18 U.S.C. section 1441 (The War Crimes Act ).

The War Crimes Act defines as war crimes: grave breaches of the Geneva Conventions, and violations of Article 3 common to the Geneva Conventions.

Section 130 of the Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) defines as grave breaches of that Convention: "willful killing, torture or inhuman treatment," and "willfully causing great suffering or serious injury to body or health."

It is well-established that Article 3 common applies to international as well as internal armed conflicts. Article 3 common provides that "persons taking no active part in the hostilities, including members of armed forces who have laid down their arms...shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria."

The following acts constitute violations of Article 3 common: "Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture"; "outrages upon personal dignity, in particular, humiliating and degrading treatment"; and "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Article 5 of the Third Geneva Convention provides: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy [are prisoners of war under this Convention], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

Defendant ALBERTO GONZALES wrote, in a memorandum to President George W. Bush dated January 25, 2002, that the war against terrorism is a "new paradigm" that "renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."

Defendant GONZALES wrote that the Third Geneva Convention should not apply to members of the Taliban and Al Qaeda who were captured after the United States invaded Afghanistan in October 2001. Defendant GONZALES also advised President Bush in that memorandum that he could avoid allegations of war crimes under The War Crimes Act by simply declaring that the Geneva Convention does not apply to members of the Taliban and Al Qaeda. Defendant GONZALES wrote that a determination of the inapplicability of the Third Geneva Convention would insulate against prosecution by future "prosecutors and independent counsels."

In apparent reliance on the advice in Defendant GONZALES' memorandum, and notwithstanding the requirement of Article 5 of the Third Geneva Convention that a "competent tribunal" determine the status of prisoners, President George W. Bush issued an order on February 7, 2002, specifying that the United States would not apply the Third Geneva Convention to members of Al Qaeda, and that as commander-in-chief of the United States, he had the power to suspend the Geneva Conventions regarding the conflict in Afghanistan, although he declined to suspend them at that time.

Defendant ALBERTO GONZALES commissioned the Office of Legal Counsel of the Department of Justice's memorandum dated August 1, 2002, which required that, in order to constitute "torture," the pain caused by an interrogation must include "injury such as death, organ failure, or serious impairment of body functions." This definition is contrary to The War Crimes Act and the Convention Against Torture and Other Cruel, Unusual or Degrading Treatment or Punishment, a treaty ratified by the United States.

Before the August 1, 2002 memorandum was issued, Colin Powell, Secretary of State, had counseled against its conclusions that the Geneva Conventions did not apply; he wrote that this "will reverse over a century of U.S. policy and practice in supporting the Geneva conventions, and undermine the protection of the law of war for our troops, both in this specific conflict and in general."

Although the August 1, 2002 memorandum was retracted on December 30, 2004, the provisions of the August 1, 2002 memorandum remained in effect for 2 ½ years, notwithstanding the warnings of Secretary Powell.

The January 25, 2002 and August 1, 2002 memoranda, and the February 7, 2002 order set forth policies that led to the willful killing, torture or inhuman treatment; and great suffering or serious injury to body or health, of DOES 1 through 1,000, prisoners in United States custody in Afghanistan, Iraq, Guantánamo Bay, Cuba, as listed in EXHIBIT A (Dear Mr. Gonzales).

Defendant ALBERTO GONZALES knew or should have known that, pursuant to memoranda written by, commissioned or concurred in by him, prisoners in United States custody would be subjected to willful killing, torture or inhuman treatment; and great suffering or serious injury to body or health, in violation of The War Crimes Act.

COUNT II: Military Commissions

Between September 11, 2001 and November 13, 2001, Defendant ALBERTO GONZALES did participate in the drafting of the Military Order establishing the Military Commissions, which order was signed by President George W. Bush on November 13, 2001. Said order mandated conduct by members of United States military forces which constitute war crimes under The War Crimes Act.

The War Crimes Act defines war crimes as grave breaches of the Geneva Conventions. Section 130 of the Third Geneva Convention defines as a grave breach of that Convention: "willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention."

Article 84 of the Third Geneva Convention provides that prisoners of war shall be tried in the same types of courts (military or civilian) as members of the armed forces of the Detaining Power. It also provides: "In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized."

Article 3 common to the Geneva Conventions prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Unlike courts convened pursuant to the Uniform Code of Military Justice, and civilian courts of the United States, the Military Order provides for no judicial review by federal courts of the United States. The final level of review in the Military Commissions is to the President or the Secretary of Defense.

Military Commission Order No. 1(6)(B)(3) allows the use of evidence that the accused is not permitted to see, and provides for the exclusion of the accused from the proceedings. These provisions violate the rights of the accused to be confronted with the evidence against him, and to confront and cross-examine adverse witnesses. These rights are guaranteed to the accused in courts convened under the Uniform Code of Military Justice and civilian courts in the United States.

Section 4(c)(3) of the Military Order provides for the "admission of such evidence as would, in the opinion of the presiding officer of the military commission...have probative value to a reasonable person." Such evidence would be inadmissible under the rules of evidence in courts convened under the Uniform Code of Military Justice and civilian courts in the United States.

Defendant ALBERTO GONZALES knew or should have known that the Military Commissions, in whose creation he participated, will deprive prisoners in United States custody who will be tried before them, of the rights of fair and regular trial prescribed in the Third Geneva Convention and Article 3 common to the Geneva Conventions.

Penalties Under the War Crimes Act

Title 18 U.S.C. sec. 1441 provides that any national of the United States who commits a war crime "shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death."


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Media's coverage has distorted world's view of Iraqi reality
http://www.detnews.com/2005/nation/0501/18/A01-62686.htm

By LTC Tim Ryan
SPECIAL TO WORLD TRIBUNE.COM
Tuesday, January 18, 2005

Editors' Note: LTC Tim Ryan is Commander, Task Force 2-12 Cavalry, First Cavalry Division in Iraq. He led troops into battle in Fallujah late last year and is now involved in security operations for the upcoming elections. He wrote the following during "down time" after the Fallujah operation. His views are his own.

All right, I've had enough. I am tired of reading distorted and grossly exaggerated stories from major news organizations about the "failures" in the war in Iraq. "The most trusted name in news" and a long list of others continue to misrepresent the scale of events in Iraq. Print and video journalists are covering only a fraction of the events in Iraq and, more often than not, the events they cover are only negative.

The inaccurate picture they paint has distorted the world view of the daily realities in Iraq. The result is a further erosion of international support for the United States' efforts there, and a strengthening of the insurgents' resolve and recruiting efforts while weakening our own. Through their incomplete, uninformed and unbalanced reporting, many members of the media covering the war in Iraq are aiding and abetting the enemy.

The fact is the Coalition is making steady progress in Iraq, but not without ups and downs. So why is it that no matter what events unfold, good or bad, the media highlights mostly the negative aspects of the event? The journalistic adage, "If it bleeds, it leads," still applies in Iraq, but why only when it's American blood?

As a recent example, the operation in Fallujah delivered an absolutely devastating blow to the insurgency. Though much smaller in scope, clearing Fallujah of insurgents arguably could equate to the Allies' breakout from the hedgerows in France during World War II. In both cases, our troops overcame a well-prepared and solidly entrenched enemy and began what could be the latter's last stand. In Fallujah, the enemy death toll has exceeded 1,500 and still is climbing. Put one in the win column for the good guys, right? Wrong. As soon as there was nothing negative to report about Fallujah, the media shifted its focus to other parts of the country.

More recently, a major news agency's website lead read: "Suicide Bomber Kills Six in Baghdad" and "Seven Marines Die in Iraq Clashes." True, yes. Comprehensive, no. Did the author of this article bother to mention that Coalition troops killed 50 or so terrorists while incurring those seven losses? Of course not. Nor was there any mention about the substantial progress these offensive operations continue to achieve in defeating the insurgents. Unfortunately, this sort of incomplete reporting has become the norm for the media, whose poor job of presenting a complete picture of what is going on in Iraq borders on being criminal.

Much of the problem is about perspective, putting things in scale and balance. What if domestic news outlets continually fed American readers headlines like: "Bloody Week on U.S. Highways: Some 700 Killed," or "More Than 900 Americans Die Weekly from Obesity-Related Diseases"? Both of these headlines might be true statistically, but do they really represent accurate pictures of the situations? What if you combined all of the negatives to be found in the state of Texas and used them as an indicator of the quality of life for all Texans? Imagine the headlines: "Anti-law Enforcement Elements Spread Robbery, Rape and Murder through Texas Cities." For all intents and purposes, this statement is true for any day of any year in any state. True — yes, accurate — yes, but in context with the greater good taking place — no! After a year or two of headlines like these, more than a few folks back in Texas and the rest of the U.S. probably would be ready to jump off of a building and end it all. So, imagine being an American in Iraq right now.

From where I sit in Iraq, things are not all bad right now. In fact, they are going quite well. We are not under attack by the enemy; on the contrary, we are taking the fight to him daily and have him on the ropes. In the distance, I can hear the repeated impacts of heavy artillery and five-hundred-pound bomb...ting their targets. The occasional tank main gun report and the staccato rhythm of a Marine Corps LAV or Army Bradley Fighting Vehicle's 25-millimeter cannon provide the bass line for a symphony of destruction. As elements from all four services complete the absolute annihilation of the insurgent forces remaining in Fallujah, the area around the former insurgent stronghold is more peaceful than it has been for more than a year.

The number of attacks in the greater Al Anbar Province is down by at least 70-80 percent from late October — before Operation Al Fajar began. The enemy in this area is completely defeated, but not completely gone. Final eradication of the pockets of insurgents will take some time, as it always does, but the fact remains that the central geographic stronghold of the insurgents is now under friendly control. That sounds a lot like success to me. Given all of this, why don't the papers lead with "Coalition Crushes Remaining Pockets of Insurgents" or "Enemy Forces Resort to Suicide Bombings of Civilians"? This would paint a far more accurate picture of the enemy's predicament over here. Instead, headlines focus almost exclusively on our hardships.

What about the media's portrayal of the enemy? Why do these ruthless murderers, kidnappers and thieves get a pass when it comes to their actions? What did the the media show or tell us about Margaret Hassoon, the director of C.A.R.E. in Iraq and an Iraqi citizen, who was kidnapped, brutally tortured and left disemboweled on a street in Fallujah? Did anyone in the press show these images over and over to emphasize the moral failings of the enemy as they did with the soldiers at Abu Ghuraib? Did anyone show the world how this enemy had huge stockpiles of weapons in schools and mosques, or how he used these protected places as sanctuaries for planning and fighting in Fallujah and the rest of Iraq? Are people of the world getting the complete story? The answer again is no! What the world got instead were repeated images of a battle-weary Marine who made a quick decision to use lethal force and who immediately was tried in the world press. Was this one act really illustrative of the overall action in Fallujah? No, but the Marine video clip was shown an average of four times each hour on just about every major TV news channel for a week. This is how the world views our efforts over here and stories like this without a counter continually serve as propaganda victories for the enemy. Al Jazeera isn't showing the film of the CARE worker, but is showing the clip of the Marine. Earlier this year, the Iraqi government banned Al Jazeera from the country for its inaccurate reporting. Wonder where they get their in

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