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Donald Rumsfeld: The War Crimes Case

JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law, president of the National Lawyers Guild, says that although Donald Rumsfeld is resigning as US Secretary of Defense, steps should be and will be taken to hold him accountable for breaches of international law and even war crimes sanctioned in Iraq and Guantanamo during his tenure ...


As the Democrats took control of the House of Representatives and were on the verge of taking over the Senate, George W. Bush announced Wednesday that Donald Rumsfeld was out and Robert Gates was in as Secretary of Defense. When Bush is being run out of town, he knows how to get out in the front of the crowd and make it look like he's leading the parade. The Rumsfeld-Gates swap is a classic example.

The election was a referendum on the war. The dramatic results prove that the overwhelming majority of people in this country don't like the disaster Bush has created in Iraq. So rather than let the airwaves fill up with beaming Democrats and talk of the horrors of Iraq, Bush changed the subject and fired Rumsfeld. Now, when the Democrats begin to investigate what went wrong, Rumsfeld will no longer be the controversial public face of the war.

Rumsfeld had come under fire from many quarters, not the least of which was a gaggle of military officers who had been clamoring for his resignation. Bush said he decided to oust Rumsfeld before Tuesday's voting but lied to reporters so it wouldn't affect the election. Putting aside the incredulity of that claim, Bush likely waited to see if there would be a changing of the legislative guard before giving Rumsfeld his walking papers. If the GOP had retained control of Congress, Bush would probably have retained Rumsfeld. But in hindsight, Bush has to wish he had ejected Rumsfeld before the election to demonstrate a new direction in the Iraq war to angry voters.

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Rumsfeld's sin was not in failing to develop a winning strategy for Iraq. There is no winning in Iraq, because we never belonged there in the first place. The war in Iraq is a war of aggression. It violates the United Nations Charter which only permits one country to invade another in self-defense or with the blessing of the Security Council.

Donald Rumsfeld was one of the primary architects of the Iraq war. On September 15, 2001, in a meeting at Camp David, Rumsfeld suggested an attack on Iraq because he was deeply worried about the availability of "good targets in Afghanistan." Former Treasury Secretary Paul O'Neill reported that Rumsfeld articulated his hope to "dissuade" other nations from "asymmetrical challenges" to U.S. power. Rumsfeld's support for a preemptive attack on Iraq "matched with plans for how the world's second largest oil reserve might be divided among the world's contractors made for an irresistible combination," Ron Suskind wrote after interviewing O'Neill.

Rumsfeld defensively sought to decouple oil access from regime change in Iraq when he appeared on CBS News on November 15, 2002. In a Hamlet moment, Rumsfeld proclaimed the United States' beef with Iraq has "nothing to do with oil, literally nothing to do with oil." The Secretary doth protest too much.

Prosecuting a war of aggression isn't Rumsfeld's only crime. He also participated in the highest levels of decision-making that allowed the extrajudicial execution of several people. Willful killing is a grave breach of the Geneva Conventions, which constitutes a war crime. In his book, Chain of Command: The Road from 9/11 to Abu Ghraib, Seymour Hersh described the "unacknowledged" special-access program (SAP) established by a top-secret order Bush signed in late 2001 or early 2002. It authorized the Defense Department to set up a clandestine team of Special Forces operatives to defy international law and snatch, or assassinate, anyone considered a "high-value" Al Qaeda operative, anywhere in the world. Rumsfeld expanded SAP into Iraq in August 2003.

But Rumsfeld's crimes don't end there. He sanctioned the use of torture and cruel, inhuman and degrading treatment, which are grave breaches of the Geneva Conventions, and thus constitute war crimes. Rumsfeld approved interrogation techniques that included the use of dogs, removal of clothing, hooding, stress positions, isolation for up to 30 days, 20-hour interrogations, and deprivation of light and auditory stimuli. According to Seymour Hersh, Rumsfeld sanctioned the use of physical coercion and sexual humiliation to extract information from prisoners. Rumsfeld also authorized waterboarding, where the interrogator induces the sensation of imminent death by drowning. Waterboarding is widely considered a form of torture.

Rumsfeld was intimately involved with the interrogation of a Saudi detainee, Mohamed al-Qahtani, at Guantánamo in late 2002. General Geoffrey Miller, who later transferred many of his harsh interrogation techniques to Abu Ghaib, supervised the interrogation and gave Rumsfeld weekly updates on his progress. During a six-week period, al-Qahtani was stripped naked, forced to wear women's underwear on his head, denied bathroom access, threatened with dogs, forced to perform tricks while tethered to a dog leash, and subjected to sleep deprivation. Al-Qahtani was kept in solitary confinement for 160 days. For 48 days out of 54, he was interrogated for 18 to 20 hours a day.

Even though Rumsfeld didn't personally carry out the torture and mistreatment of prisoners, he authorized it. Under the doctrine of command responsibility, a commander can be liable for war crimes committed by his inferiors if he knew or should have known they would be committed and did nothing to stop of prevent them. The U.S. War Crimes Act provides for prosecution of a person who commits war crimes and prescribes life imprisonment, or even the death penalty if the victim dies.

Although intending to signal a new direction in Iraq with his nomination of Gates to replace Rumsfeld, Bush has no intention of leaving Iraq. He is building huge permanent U.S. military bases there. Gates at the helm of the Defense Department, Bush said, "can help make the necessary adjustments in our approach." Bush hopes he can bring congressional Democrats on board by convincing them he will simply fight a smarter war.

But this war can never get smarter. Nearly 3,000 American soldiers and more than 650,000 Iraqi civilians have died and tens of thousands have been wounded. Our national debt has skyrocketed with the billions Bush has pumped into the war. Now that there is a new day in Congress, there must be a new push to end the war. That means a demand that Congress cut off its funds.

And the war criminals must be brought to justice - beginning with Donald Rumsfeld. On November 14, the Center for Constitutional Rights, the National Lawyers Guild, and other organizations will ask the German federal prosecutor to initiate a criminal investigation into the war crimes of Rumsfeld and other Bush administration officials. Although Bush has immunized his team from prosecution in the International Criminal Court, they could be tried in any country under the well-established principle of universal jurisdiction.

Donald Rumsfeld may be out of sight, but he will not be out of mind. The chickens have come home to roost.


Marjorie Cohn, a professor at Thomas Jefferson School of Law, is president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists. Her new book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, will be published this spring by PoliPointPress.

November 09, 2006


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Comments:

A favorite strategy of oppressive regimes is the criminalization of dissent. This often begins with an attempt to criminalize the policies of the predecessor regime.

I am no admirer of Bush administration policies and I opposed the war in Iraq from the beginning. At the same time, I recognize the problem posed by an extremist ideology that seeks the destruction of modern civilization. Much of the “torture” described by Professor Cohn is little more traumatic than the hazing I suffered as a freshman at a Catholic high school in the 1970s. I do not regard intensive, prolonged questioning of captured terrorists as torture; nor do I think that sanctioning it compromises the values of a libertarian society; it is an attempt to save lives. What is the alternative?

Professor Cohn directs her moral wrath at the use of force against those who indiscriminately abduct and decapitate non-combatants. I think there are targets much more worthy of our attention.

November 10, 2006  

Professor Cohn apparently either ignores international law as regards the making of war or is simply unaware of it. International law has held for centuries that violating the terms of a cease fire agreement is good and sufficient cause to recommence hostilities. After the first Gulf War, Iraq entered into a cease fire agreement that required, among other things, that Iraq destroy their stockpiles of long range missiles, disclose and destroy their stockpiles of chemical weapons. During the air war in 2003, Iraq fired a number of Al-Abbas, Al-Hussein, and Scud missiles at Kuwait, proving that they had NOT destroyed those missiles, in accordance with the terms of the cease fire. Coalition forces have captured over 17 tons of chemical weapons and over 200 tons of precursor chemicals, proving beyond doubt that Iraq had violated the terms of the cease fire on THAT point as well. Coersive interrogation has been settled in courts as well. After World War 2, charges were brought for techniques like sleep deprivation used by the Nazis on Allied Prisoners of War, all those charged for such actions were acquitted of all charges. The Geneva Convention does not require that you ask pretty please for information, then bring milk and cookies. Methods beyond just asking are allowed. I note that there was no outrage from Professor Cohn or any more of her ilk over the mistreatment of US prisoners during either the first Gulf War or during the 2003 invasion. Female prisoners were raped and beaten, male prisoners were beaten and abused, at least one American flyer was even executed. If you hate Bush, that's fine, but trying to cloak it in "law" is simply a travesty.

November 10, 2006  

The previous comment seems to be partially relying on the argument that "these people are barbaric, so it is fair to act barbarically in return".

When put in such blunt terms it isn't such an attractive proposition, eh?

In broad terms, I think a major failing of the Bush administration has been that, while it leads the world militarily and economically, it provides absolutely no moral leadership. Taking a more progressive, enlightened stance on issues of human rights and treatment of enemies would provide a big step towards greater leadership in international affairs.

November 10, 2006  

An intersting Catholic high the one writer attended in the 1970's. I doubt however that the hazing came anywhere near the torture at Abu Ghraib.

We are supposed to be the good guys. I would never want a US soldier to go through the same treatment. In retrospect, what if the photographs from Abu Ghraib had been of Americans.

No one thinks of themselves as a war criminal but when you decided that your cause is right and anything you do or order is OK because you are right, then you start down that slippery slope towards being one.

I think the US was justified in entering Iraq (it was destined to happen at some point). It is after we entered that things fell apart. There is no doubt in my mind that Rumsfeld slid down that slope.

In the end however, it is up to a court of law to decide nad not folks like us who write comments.

November 10, 2006  

Over 650,000 dead Iraqis? That is not a fact, but an estimate based on a poll. I have read a lot about how this polling was done and it seems to me, in my humble opinion, that it is subject to many discrepancies, false factors and outright lies. People LIKE throwing this figure around if they are against the war in Iraq because a bigger number lends credibility to their argument, or so they would think. So, why don't we just get ridiculous and say 1.2 million? Or maybe 10 million??? Yes, the Iraqi was has killed three times the number of U.S. soldiers killed in World War II.

I don't believe it. Innocent people are being killed. Not 650,000 of them. And a majority of the REAL number of people killed, whatever that may be, has been at the hands of OTHER IRAQIS, not the U.S. Armed Forces. It is the U.S. Armed Forces that is preventing total, utter chaos erupting between the Sunnis and Shiites. To have them withdraw will doom the country.

War crimes against Rumsfeld? Ridiculous. Study history. Study international law. Actually, you don't need to do either. You don't even need be a lawyer. They will NEVER bring a U.S. President or Secretary of State up on war crime charges. Period. Never. Ever. Ever. The Cubs will win the World Series in a sweep over KC Royals before that happens.

November 10, 2006  

It is sad to see Professor Cohn use a legal forum to vent her political views. The article is full of personal views that have no legal argument.

The senate voted for the iraq action, believing it was justified, not as 'aggression'. Why would Professor Cohn not bring up the charge against each senator that voted for the 'aggression'? When voting for US security, I don't believe the senate should consider whether the UN thinks the action would be in 'self defense' or not, as Professor Cohn implies. This would be severely detrimental to security, as no other UN member is interested in US security. The UN has a clear history of corruption, cannot uphold its resolutions, is full of corrupt member states, and can have anything vetoed.

Professor Cohn also needs a dose of reality. Every president (and every country) partakes in 'extrajudicial killing'. And the interrogation methods described are very soft, and do not come close to the various methods of mutilation used by other entities. At least the US has some form of transparency, rules, and judicial process in the military. In making her political argument, it is always easy to argue either way on the fuzzy line of what is torture.

I believe steps can be taken to improve transparency, due process and accountability, that are fair and reasonable. But the article is political, rather than fair minded. The article also offers no thoughts in dealing with regimes and religous hatred.

November 11, 2006  

I find it amusing to read so many people saying that this war was not illegal, when every other country outside the US believe it was (with the possible exception of the UK). You can't just invade some country because you want to. This is a basic facet of modern civilized life. One enshrined in the UN. You can't invade someone because you're tired of the despot you put in charge, nor can you invade them on a hunch. Even if the hunch was right, your country was not in any danger. Now take that and add the fact that they knew all this and still lied to you, the people they should be serving and I think you have a very good case for at least impeaching them. That said, US history shows that their leaders will go on exacting regime change, meddling, invading, lying and the only thing that will make you act will be if he gets head in the oval office. Incredibly important that. So much more important than all that torture and death nonsense.

I wish you luck Professor, but I fear you need more than that.

-Mark

November 11, 2006  

Much of the “torture” described by Professor Cohn is little more traumatic than the hazing I suffered as a freshman at a Catholic high school in the 1970s.

Were you really covered with excrement and set upon by dogs as part of your high school hazing?

I do not regard intensive, prolonged questioning of captured terrorists as torture

But how, without benefit of charge or trial, did these individuals qualify as "terrorists" in your mind? Surely you must be aware that hundreds of Guantanamo prisoners, who were subjected to years of torture, have now been released for it turned out they were nothing more than innocent cab drivers, kids, old men or strangers in town who were turned in for the American bounty.

November 11, 2006  

"During a six-week period, al-Qahtani was stripped naked, forced to wear women's underwear on his head, denied bathroom access, threatened with dogs, forced to perform tricks while tethered to a dog leash, and subjected to sleep deprivation. Al-Qahtani was kept in solitary confinement for 160 days. For 48 days out of 54, he was interrogated for 18 to 20 hours a day."

Sorry Ms. Cohn, that constitutes "harsh interrogation" NOT "torture and mistreatment". Torture is when you have to explain to a child why his/her father isn't coming home because of an IED!

---John

November 12, 2006  

From my strictly personal viewpoint (and I'll acknowledge it as such, so there is no need to challenge it), torture is what my onetime faith in the processes of American government have been put through, for the past six years, by an ideologically partisan government that has shorn this country of its international standing and made me feel like an expatriate in my own land.

Those of you who pursue the niceties of legal justification, and argue such points on sites such as this possibly ignore the simple realities that we of routine and ordinary lives live with. When the sense of pride in one's country and constitution is finally shaken so badly that one defensively becomes merely 'anti-Republican' in his voting, and seeks only an end to, and then a righting of the terrible wrongs already done. Nothing else, now, will do . . . and that righting can only come when the criminal miscreants responsible receive their due.

November 13, 2006  

Regarding this article, I feel that most of it is rubbish. I feel that humilation is being mistaken for torture. They fought in the war, they got captured and interrogated, they broke. This looks less like torture and more like a weak helpless attempt to regain respect from their peers after cracking under the pressure and giving up vital information. Keep the term 'war crimes' where it belongs, with those who murder thousands with disregard. No I dont agree with the war, I never have, but I also would not put Rumsfeld the same catagory (or even the same book) as mass murderers and demented individuals as Hilter and Hussein.

November 15, 2006  

Another thought provoking piece from Professor Cohn. As a University Lecturer in International Law & Human Rights (from the other side of the pond) I must say that I am disappointed by certain responses here to Professor Cohn's writing. Where are those who will stand up for the ideals of the 1941 Atlantic Charter today? What constitutes torture or cruel, inhuman or degrading treatment or punishment (for that is what Professor Cohn describes) has been well covered by the UDHR, ICCPR, CAT, etc. It has been developed by the the Special Rapporteurs, General Commentaries and jurisprudence (the most developed being from the pan-European court at Strasbourg). To use the phrases "hazing" or "harsh interrogation" as a justification, for what the US rightly agrees is illegal, is wrong. Those in the US attacking the UN are keeping strange bedfellows.

February 02, 2007  


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