War Crimes, USA
Could administration officials
be called to account?
Interview with Jeremy Brecher,
Jill Cutler, and Brendan Smith
by Mark Engler
Mother Jones magazine, December
In normal times, suggesting that the leaders
of our country might have committed war crimes would violate a
firm taboo in American political discussion. Yet in the post-Abu-Ghraib
era-and especially as President Bush has quarreled with Congress
over the McCain amendment prohibiting abuse of all detainees in
U.S. custody-observers can no longer profess shock at the idea
that criminal breaches of humanitarian law have occurred. According
to a recent editorial in the Washington Post, the amendment "would
mandate an end to the hundreds of cases of torture and inhumane
treatment, many of them qualifying as war crimes, that have been
documented by the International Red Cross, and the Army itself
at Guantanamo Bay, Cuba, and in Afghanistan and Iraq, and elsewhere."
With the White House on the defensive
about its justifications for the invasion of Iraq, and with European
governments in an uproar over whether American abuse of prisoners
has taken place in bases on the continent, scrutiny of alleged
U.S. war crimes looks sure to intensify. And if debate about this
inflammatory topic begins to rage, a new book, edited by Jeremy
Brecher, Jill Cutler, and Brendan Smith, promises to add fuel
to the fire. In the Name of Democracy: American War Crimes in
Iraq and Beyond collects damning official documents, leaked e-mails,
testimonies, commentaries, and investigative articles. Together,
these items make a strong case that Bush administration actions
overseas violate international norms and treaties, and that those
responsible are subject to legal repercussions.
Are we actually going to see Donald Rumsfeld
stand trial? Motherjones.com talked to the editors about why the
issue of war crimes may become an ever-sharper thorn in the side
of administration officials, about the potential and the limitations
of international law, and about the obligation of citizens to
prevent further crimes from being committed.
Historian Jeremy Brecher has written and
edited over a dozen books, including the labor history classic,
Strike! Jill Cutler is an assistant dean at Yale College and editor
of Global Visions: Beyond the New World Order. Brendan Smith is
a legal scholar and former congressional aide to Representative
Bernie Sanders (I-VT).
Mother Jones: Does accusing United States
of war crimes make you sound out of touch with mainstream American
sentiment? Wouldn't most people think that these accusations are
coming out of left field?
Jeremy Brecher: If the United States is
involved in committing war crimes, we as Americans have a responsibility
to address that. I don't think hiding from reality is a solution
to the fact that no one likes to be told that they're doing something
The second point, though, is that Americans
actually are very worried that our country may be doing things
that are not in accord with our own values. Appealing to that
concern isn't a matter of trashing our country, but of giving
Americans a means of confronting what our government has been
Jill Cutler: People who work at the FBI,
Senators, and Congressmen are very concerned about our conduct
in the war on terror. The FBI was concerned about the torture
that was occurring in various places. Military officials are concerned
that the Army's field manual is not being observed.
Brendan Smith: The concept of war crimes
is actually bringing together some unlikely allies. Paralleling
the peace movement, we're seeing what we could call a "law
and order movement." Here, you have organizations like Amnesty
International and the ACLU that are concerned with civil liberties
and human rights. But you also have a dozen retired military officials,
led by Marine Corps General David Brahms, who wrote a letter to
the Senate Judiciary Committee saying that it should not confirm
Alberto Gonzales as Attorney General because he promoted violations
of the Geneva Conventions.
JB: The public attitude about war crimes
has changed a lot since the beginning of the 1990s. We've moved
away from a situation where war crimes were just epithets that
governments used to bash foreign leaders they didn't like. Now,
we've seen tribunals for the former Yugoslavia and for Rwanda.
We have the International Criminal Court, which, even though the
United States is not part of it, is designed for the purpose of
trying war crimes. The United States itself has brought either
formal charges or accusations of war crimes against other countries'
leaders-including, as we speak, against Saddam Hussein. So this
is a concept that we are becoming more familiar with, something
that is regarded as part of the fabric of law.
Mother Jones: The idea that the U.S. could
commit war crimes is taboo, yet on the other hand, it's taken
for granted that our country has a special role in the world--that
America is an exception. And that exceptionalism gives the U.S.
a certain prerogative to act without having to submit to an international
JB: This is a claim that's made by the
Bush administration, but when you look at the poll data, it's
quite clear that this belief is not widely shared by the American
people. There's a very interesting set of polls done by an organization
called PIPA, the University of Maryland's Program on International
Policy Attitudes. They show that most Americans believe that the
United States is bound by international law and by the Geneva
Conventions. It's this fundamental belief in law, including both
national and international law, that we're hoping to appeal to.
For me personally, it goes back to the
pictures I saw of the Nazi concentration camp victims when they
first came out after World War II, and to hearing about the Nuremberg
tribunal. I'm too young to remember the tribunal actually happening,
but I certainly learned about it at an early age. The idea that
top officials could be held responsible for crimes committed by
those under their command seemed to me to be an essential part
of how to make some decency and peace in the world.
There was an attempt to apply that idea
to the Vietnam War, but there was no mechanism for actually enforcing
it-even though the Bertrand Russell Commission held a tribunal
in what we would now call civil society to investigate alleged
U.S. war crimes. But as we moved through 1990s, war crime tribunals
became live institutions. And that raised the question of whether
this could really be meaningfully applied to every country, including
the United States.
BS: Beyond exceptionalism, there is a
more grounded principle in American society, which is that even
the most powerful among us are accountable to the law. If you
juxtapose those two principles, accountablilty and exceptionalism,
I think the one that wins out is accountability.
Mother Jones: What specifically are the
war crimes that you are identifying?
BS: We are talking about three categories.
The first are crimes against peace. After Nuremberg an idea took
hold that launching an aggressive war is the supreme international
crime. There are only a few specific circumstances where a state
can use force against another state. The U.N. charter says either
you need a resolution from the Security Council or you need to
be acting in self-defense from an imminent and immediate attack.
In the current situation, the U.S. launched an aggressive war
in Iraq that even Kofi Annan declared illegal.
The second category of crimes concern
the conduct of the war and occupation. This would include the
administration's use of illegal weapons, such as napalm, white
phosphorus, and cluster bombs. It includes a failure to protect
civilians. It includes trying to break the Iraqi insurgency with
collective punishment against the civilian population-with acts
like cutting off water supplies. This is a practice we saw in
Fallujah and elsewhere, and which the U.N. has condemned.
Fallujah actually summarizes several of
these crimes. There we had eight weeks of bombing, we destroyed
36,000 houses, 60 schools, and 65 mosques. One of the military's
first acts was to storm the hospital. The U.S. cut off all food
supplies, all power to the entire city. The Defense Department
said that all the civilians were out at the time of the attack,
but reports show that 30,000 to 50,000 civilians remained in the
city. The U.S. blocked the Red Crescent from entering. All males
between 15 and 55 weren't allowed to leave. So in Iraq, Falljah
has become iconic of American war crimes and brutality.
The third set of war crimes centers on
torture. Here, the question is not whether it's happening, it's
how often and who's responsible. When we wrote the book there
were 32 deaths of prisoners in U.S. custody reported. Now there
are over 100. The FBI reports cases of strangulation, burning
with cigarettes, routine beatings.
JC: Failure to count civilian deaths is
also a war crime, a violation of the Geneva Conventions.
Mother Jones: Certainly, war is ugly.
Terrible things happen in war. But the charge that these types
of things are criminal seems to be controversial. The administration
would respond, for example, that they are trying their best to
prevent civilian deaths.
BS: Our claim is that there is more than
enough evidence to bring an initial indictment or to hold an investigation.
The finer questions of whether a certain attack-like the attack
on the hospital in Fallujah, whether that was a legal attack because
the building was overrun by insurgents or whether the facility
was a functioning hospital serving the sick and wounded-is a factual
question. It should be up to a jury; it should be up to a court
of law to decide.
JB: The failure of the U.S. to record
and investigate the deaths of civilians really goes to the heart
of this. If you do not investigate the killing of civilians by
bombs, or at road blocks, or in house-to-house fighting, you have
no way to know whether your operations are being conducted in
accord with international law or not. That's why knowledge of
the effects of warfare on civilians is the legal responsibility
of military commanders. There are open statements-specifically
by Mr. Rumsfeld-that these things are not being investigated,
that no records of civilian deaths are being kept. That is an
inherently criminal act.
Mother Jones: Torture may be the war crime
that we hear the most about, and perhaps there's good reason for
that. The evidence on torture, particularly the testimony of those
who have been tortured in Guantanamo or Abu Ghraib, and the leaked
documents from our government showing official knowledge of this
situation, seems exceptionally damning. I wonder if that's how
you would account for the focus on this area.
JC: The evidence of other war crimes is
also very strong and quite striking. I think maybe people have
a special feeling about torture because they feel a democratic
nation doesn't use it. They don't care so much that a democratic
nation uses the deprivation of water against civilians. We respond
more strongly to the idea of torture because we can see it happening
to ourselves. Most of us can't see ourselves in a position where
our city is deprived of water.
BS: Like any good prosecutor, you go with
your strongest case first. And the strongest case out there, because
of the incredible work of Amnesty International, the ACLU and
other groups, is torture. We know about these leaked memos because
of Freedom of Information Act cases by the ACLU and other groups.
Another thing that really struck a raw
nerve right at the beginning was the scapegoating of low-level
soldiers like Lynndie England. The administration argued that
that this was just a matter a few rotten apples, when actually
high-level officials are responsible.
Mother Jones: Recently, one of the daily
newspapers in New York had a large picture of President Bush on
its cover and a banner headline that was a quote from him, saying:
"We are not torturers." The fact that he would have
to make this denial seems to me to be extraordinary in the U.S.
JB: We are seeing the fallout from some
ideas and practices that probably have never been pushed so openly
to the extremes. One is the idea that the President has unlimited
power. This argument has been made before, and certainly the executive
has had wide latitude in wartime. But people are now being forced
to confront the fact that, taken to its logical conclusion, this
idea means the President can simply order that people be tortured.
The Bush administration has actually said in court that if it
decided to summarily execute those it held captive, no court would
have the right to intervene. They actually said that in court.
Then there's the doctrine of preemptive
war. The White House has taken this so far as to say that it has
the right to do anything it claims is in defense of national security--and
that international law has no claim to stop it.
These are such extreme positions that
they are beginning to force people to say, "Where are the
lines?" There must be some lines we can't cross. And I think
once that question is raised, it is a moment for self-education
for all of us--a moment for thinking about where those lines we
cannot cross actually lie.
BS: I believe the Bush folks are really
in trouble. Sweden, Iceland, Spain, Italy, and the European Union's
human rights commission are all investigating the CIA for torture-they're
looking at charges that the U.S. has reinvented the Gulag inside
the gulags of Poland and Romania. Various mainstream groups like
the ACLU and Human Rights First are already going after Rumsfeld
for his direct role in the torture.
I don't think the Bush administration
knows how to get out of this situation. Its solutions are things
like having Vice President Cheney lobby on the Hill to make an
exemption in the McCain anti-torture amendment, so that CIA officials
can torture as a matter of policy. In response, the Washington
Post labeled Cheney the "Vice President for Torture."
The administration must be getting the sense that this has really
spun out of control.
Remember, they've explicitly expressed
worry about charges of war crimes. When Gonzales wrote his torture
memo of January 25, 2002, it warned the President about possible
prosecution under the U.S. War Crimes Act of 1996, which makes
any grave violation of the Geneva Conventions a crime under U.S.
federal law. The President's counsel is actually warning him there
that he needs to think through this problem and to plan so that
he's not going to be busted for war crimes.
Mother Jones: You argue that one implication
of looking at the Iraq war from a war crimes perspective is that
it changes the way we see war resisters.
JC: It doesn't necessarily change the
way we see war resisters, but it certainly leads us to put a higher
value on their resistance. What stands out for me is that the
people who do resist, especially military resisters, often face
horrific consequences. When Greg Ford, a 30-year Coast Guard veteran,
went to tell his superior officer that prisoners were being tortured
by his unit in Samarra, Iraq, he was told that he had 30 seconds
to change his mind about making the report. When he refused, he
was airlifted to a psychiatric hospital in Germany. In this context,
I think resisting takes a kind of courage that we can hardly imagine.
JB: One of the things that has been striking
in profiling some of the resistors is how much resistance is based
on a defense of national and international law. In late 2004 a
military judge listened to the testimony of Pablo Parades, a sailor
who was ordered to get on a ship bound for Iraq, He showed up
in a t-shirt that said, "Like a Cabinet member, I resign."
He refused to go on board because he was convinced that the war
violated the law. The remarkable thing is that the judge ultimately
refused to send Paredes to jail. He said that the government's
case against the sailor was so weak that there was reasonable
cause to believe that the war in Iraq was illegal.
I don't think we're going to see a large
number of judges in the military declaring the war illegal. But
this is an extreme reflection of a deep concern about the illegality
of the Bush administration's actions that is widespread among
Mother Jones: In the book you discuss
the "evident limitations" international law. You write,
"Surely there is little expectation that members of the Bush
administration will soon be subject to war crimes prosecution
in U.S. courts." Yet you argue nevertheless that war crimes
are an important part of a wider strategy to confront White House
BS: When we wrote the book, I never imagined
that we would be where we are today, with so much action in the
courts. Still, I think that the general point is valid. I think
we should be skeptical of the law as alternative to organizing.
At the same time, the law can be a force
that supports social movements. One manner in which movements
use the law is called popular constitutionalism--the use of legal
concepts to legitimize social goals. We saw this when Martin Luther
King argued that the Constitution was a promissory note, that
it promised equality to all people, and that the civil rights
movement was there to cash in the note. There's a long history
of using legal documents in this way.
Social movements can also capitalize on
unintended developments in the law. There are parts of the law
that are very progressive but were never intended that way. For
example, President Truman insisted, against the wishes of Churchill,
that Nazi and Japanese military leaders have a fair trial, with
due process. Churchill at the time was arguing for summary execution,
that the enemies should be drug out behind the building and shot.
But Truman, who was originally a small-town judge, believed in
an abstract concept of legal justice. He was only thinking about
the Nuremberg trials. But when war crimes trials developed in
later decades-against Milosevic, for example-they needed precedents.
And they looked to the Nuremberg trials. We want to encourage
the on-going development of war crimes law and use unintended
developments to advance the goals of social justice.
JB: A key example that I would raise is
the Brown vs. the Board of Education decision, which ruled that
separate was not equal. To the extent that integration occurred
in the United States in the decade after the Brown decision, it
was not because of the courts. It was primarily because of the
actions of the civil rights movement. However, the legal principle
gave a basis for action. The civil rights movement ultimately
had to use not only political persuasion but also civil disobedience
on a massive scale in order to achieve what the court decision
had promised. I would not be surprised if the implementation of
war crimes law will require that same kind of social action.
Our book ultimately is not a compendium
of crimes. It is about giving us, as Americans, the understanding,
knowledge, and perspective to deal with a reality that otherwise
is quite overwhelming. I think it's very important that, as a
society, we assimilate lessons of what's happened in Iraq. We
didn't assimilate the lessons of Vietnam very well. We knew that
something bad happened. But as a country we never really saw the
fundamental mistakes that led us there. That's one of the reasons
we facing the catastrophe in Iraq today.
One purpose of raising the war crimes
issue is to point out that we got in to this partly because we
didn't have barriers, principles, and values in our society to
say that certain things are unacceptable. If anything constructive
is to come out of the horrors of the United States in Iraq, it
will be that kind of reflection and the creation of limits that
will prevent us from doing it again.
[Note: This month Brecher, Cutler, and
Smith are launching a War Crimes Watch web site to track continued
evidence of war crimes and national efforts to stop future crimes
from being committed.]
Mark Engler, a writer based in New York
City, can be reached via the web site www.democracyuprising.com.
War Crimes & Criminals