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WHERE'S THE INTERNATIONAL CRIMINAL COURT WHEN WE NEED IT? By Stephen Lendman Unless exposed, denounced and stopped, torture's heading to mainland America and maybe a neighborhood near you.

Post-9/11, torture has been official US policy under George Bush - authorized at the highest levels of government. Evidence of its systematic practice continues to surface. First some background.

On September 17, 2001, George Bush signed a secret finding empowering CIA to "Capture, Kill, or Interrogate Al-Queda Leaders." It also authorized establishing a secret global network of facilities to detain and interrogate them without guidelines on proper treatment. Around the same time, Bush approved a secret "high-value target list" of about two dozen names. He also gave CIA free reign to capture, kill and interrogate terrorists not on the list. It was the beginning of events that followed.

On November 13, 2001, the White House issued a Military Order regarding the "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism." It "determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest and that issuance of this order is necessary to meet the emergency."

It defined targeted individuals as Al Queda and others for aiding or abetting acts of international terrorism or harboring them. These individuals shall be denied access to US or other courts and instead tried by "military commission" with the power to convict by "concurrence of two-thirds of the members."

On December 28, 2001, Deputy Assistant Attorney Generals, Patrick Philbin and John Yoo, sent a Memorandum to General Counsel, Department of Defense, William Haynes II titled: "Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba." It said federal courts have no jurisdiction and cannot review Guantanamo detainee mistreatment or mistaken arrest cases. It further stated that international laws don't apply in the "war on terror." This laid the groundwork for abuses in all US torture prisons.

On January 18, 2002, Bush issued a "finding" stating that prisoners suspected of being Al Queda or Taliban members are "enemy combatants" and unprotected by the Third Geneva Convention. They were to be denied all rights and treated "to the extent....consistent with military necessity." Torture was thus authorized. The 2006 Military Commissions Act (aka the "torture authorization act") later created the Geneva-superceded category of "unlawful enemy combatant" to deny them any chance for judicial fairness.

International law expert Francis Boyle spoke out about this lawless designation: "this quasi-category (created a) universe of legal nihilism where human beings (including US citizens) can be disappeared, detained incommunicado, denied access to attorneys and regular courts, tried by kangaroo courts, executed, tortured, assassinated and subjected to numerous other manifestations of State Terrorism" on the pretext of as protecting national security.

The January 18 memo was preceded by a January 9 one to William Haynes II - co-authored by John Yoo, and Special Council Robert Delahunty. It read in part:

Regarding "international treaties and federal laws on the treatment of individuals detained by the US Armed Forces (in) Afghanistan....the laws of armed conflict (don't) apply to the conditions of detention and the procedures for trial of members of al Queda and the Taliban militia." These treaties "do not protect members of the al Queda organization (or) the Taliban militia."

On January 19, 2002 Donald Rumsfeld sent a memo to the Joint Chiefs titled: "Status of Taliban and al Queda." It stated that these detainees "are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949." It gave commanders enormous latitude to treat prisoners "to the extent appropriate with military necessity" or essentially as they saw fit.

On January 22, 2002, Assistant Attorney General for the Office of Legal Counsel, Jay Bybee (now a federal judge), issued a Memorandum to Counsel to the President, Alberto Gonzales and William Haynes II. It was titled: "Application of Treaties and Laws to al Queda and Taliban Detainees." It covered the same ground as the Yoo/Delahunty memo plus added misinterpretations of international law with regard to war.

On January 25, 2002, Alberto Gonzales, then issued a sweeping memo to George Bush. In it he called the Geneva Conventions "quaint" and "obsolete" and said the administration could ignore Geneva law in interrogating prisoners henceforth. He also outlined plans to try prisoners in "military commissions" and deny them all protections under international law, including due process, habeas rights, and the right to appeal. In December 2002, Donald Rumsfeld concurred by approving a menu of banned interrogation practices allowing anything short of what would cause organ failure.

On February 7, 2002, the White House issued an Order "outlining treatment of al-Qaida and Taliban detainees." It stated that "none of the provisions of Geneva apply to our conflict with al-Qaida (or Taliban detainees) in Afghanistan 'or elsewhere throughout the world...' " It meant they'd be afforded no protection under international law and could be treated any way authorities wished, including use of torture as was later learned.

A virtual blizzard of similar memos followed covering much the same ground to allow all measures banned under international and US law (including the 1996 War Crimes Act, 1994 Torture Statute and the Torture Act of 2000). The War Crimes Act is especially harsh. It provides up to life in prison or the death penalty for persons convicted of committing war crimes within or outside the US. Torture is a high war crime, the highest after genocide.

Two other memos particularly deserve mention - written by John Yoo, Alberto Gonzales, Jay Bybee and David Addington (Cheney's legal counsel). One was for the CIA on August 2, 2002. It argued for letting interrogators use harsh measures amounting to torture. It said federal laws prohibiting these practices don't apply when dealing with Al Queda because of presidential authorization during wartime. It also denied US or international law applies in overseas interrogations. It essentially "legalized" anything in the "war on terror" and authorized lawlessness and supreme presidential power.

On March 14, 2003, the same quartet issued another memo - this one for the military titled: "Military Interrogation of Alien Unlawful Combatants Held Outside the United States." It became known as "the Torture Memo" because it swept away all legal restraints and authorized military interrogators to use extreme measures amounting to torture. It also gave the President as Commander-in-Chief "the fullest range of power....to protect the nation." It stated he "enjoys complete discretion in the exercise of his authority in conducting operations against hostile forces."

Military law expert and Yale University lecturer, Eugene Fidell, called it "a monument to executive supremacy and the imperial presidency....(and) a road map for the Pentagon (to avoid) any prosecutions." It denied due process is applicable and virtually all other constitutional protections. It argued against any prohibition banning "cruel and unusual treatment." It was a document that would make any despot proud. So much so that in late 2004, Office of Legal Counsel head, Jack Goldsmith, rescinded the Memorandum saying it showed an "unusual lack of care and sobriety in (its) legal analysis (and it) seemed more an exercise of sheer power than reasoned analysis."

Nonetheless, other administration documents authorized continued use of practices generally reflecting John Yoo's views. They may inflict "intense pain or suffering" short of what would cause "serious physical injury so severe that death, organ failure, (loss of significant body functions), or permanent damage" may result.

The President's July 20, 2006 Executive Order (EO) was one such document, titled: "Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency." It pertained to "a member or part of or supporting al Qaeda, the Taliban, or associated organizations (who might have) information that could assist in detecting, mitigating, or preventing terrorist attacks....within the United States or against its Armed Forces or other personnel, citizens, or facilities, or against allies or other countries cooperating in the war on terror...."

It authorized the Director of CIA to determine interrogation practices. Based on what's now known, they include sleep deprivation, waterboarding or simulated drowning, stress positions (including painfully extreme ones), prolonged isolation, sensory deprivation and/or overload, beatings (at times severe and life-threatening), electric shocks, induced hypothermia, and other measures that can cause irreversible physical and psychological harm, including psychoses.

International Committee of the Red Cross (ICRC) on Bush Administration Use of Torture

In a secret 2007 report, the ICRC concluded that CIA interrogators tortured high-level Al Queda prisoners. Abu Zubaydah was one, a reputed close associate of Osama bin Laden and Guantanamo detainee. He was confined in a box "so small (that) he had to double up his limbs in the fetal position" and stay that way. He and others were also "slammed against the walls," waterboarded to simulate drowning, and given other harsh and abusive treatment.

The report also said Khalid Shaikh Mohammed, the supposed chief 9/11 planner, was kept naked for over a month - "alternately in suffocating heat and in a painfully cold room." Most excruciating was a practice of shackling prisoners to the ceiling and forcing them to stand for as long as eight hours. Other techniques included prolonged sleep deprivation, "bright lights and eardrum-shattering sounds 24 hours a day."

ICRC's Bernard Barrett declined to comment but confirmed that Red Cross personnel regularly visit Guantanamo detainees, including high-level ones. They also "have an ongoing confidential dialogue with members of the US intelligence community, and we would share any observations or recommendations with them."

In her new book just out, "The Dark Side," Jane Mayer went further using sources familiar with ICRC's report. She wrote it "warned that the abuse (at torture prisons) constituted war crimes, placing the highest officials in the US government in jeopardy of being prosecuted." She also explained that Red Cross investigators based their report largely on prisoner interviews. However, CIA officers she spoke to confirmed what ICRC disclosed. More on Mayer's book below.

Presidential July 20, 2007 Executive Order (EO) 13440: Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency

The EO is noteworthy for what it doesn't say, not what it does. Its language is reassuring but avoids stopping short of the administration's official policy of torture. Or real compliance with Geneva's Common Article 3 that states in part:

(1) Noncombatants, including "members of armed forces who laid down their arms....shall in all circumstances be treated humanely...."

...."the following acts are prohibited at any time and in any place....:

• violence to life and person (including) murder, mutilation, cruel treatment and torture;
• taking of hostages;
• ....humiliating and degrading treatment;"
• sentencing or executing detainees "without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees....recognized as indispensable by civilized peoples;" and
• assuring wounded and sick are cared for.

Various human rights organizations weighed in on the EO. Washington Director of Human Rights First, Elisa Massimino, said: The Order "fails to make clear whether (CIA authorized) interrogation techniques are still permitted." If CIA interprets the Order "as authorization to (continue using) techniques such as waterboarding, stress positions, hypothermia, sensory deprivation (and overload), sleep deprivation and isolation, it sends a powerful - and dangerous - message" that these and other banned practices are permissible. Bush's EO avoided clarity and left considerable leeway for abuse.

New Yorker Writer Jane Mayer's New Book: "The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals"

Mayer's book reflects what the ICRC reported and is now common knowledge except for more grim details and personal accounts. Prior to its release, the publisher's promotion commented:

"The Dark Side is a dramatic, riveting, and definitive narrative account of how the United States made terrible decisions in the pursuit of terrorists around the world - decisions that not only violated the Constitution to which White House officials took an oath to uphold, but also hampered the pursuit of Al Queda. In gripping detail...Jane Mayer relates the impact of these decisions - US-held prisoners, some of them completely innocent, were subjected to treatment more reminiscent of the Spanish Inquisition than the twenty-first century."

"The Dark Side" recounts the fallout from the above administration documents and more. It reveals high-level contempt for the law to advance an imperial project. The story is gripping and comprehensive. It's about an American gulag throughout the world where mostly innocent detainees are held secretly outside the law and subjected to ritual abuse, humiliation and excruciating torture - day after day repeatedly. Some don't survive. All who do remain scarred for life.

Mayer states that decisions were taken at the highest levels - to make "torture the official law of the land in all but name," and it's no longer secret. Her evidence is compelling and comes from military officers, intelligence professionals and other conservative Bush appointees - "hard-line law-and-order stalwarts in the criminal justice system" who came forward nonetheless, and apparently for good reason.

Unlike past lawless periods, this time is different given the menu of what occurred post-9/11: an array of

• illegal aggressive wars and the possibility of others;
• police state laws enacted;
• extremist Executive Orders;
• similar National and Homeland Security Presidential Directives; military orders and signing statements;
• "unitary executive" authority assumption granting unlimited presidential powers;
• lawless and pervasive spying on Americans;
• turning elections into shams;
• gutting the Constitution, article by article, including the Bill of Rights;
• ending any sense of checks and balances;
• ignoring international laws and norms;
• establishing an official policy of secrecy;
• silencing dissent and free speech;
• conducting massive sweeps against Muslims, Latino immigrants and other designated targets;
• convicting innocent people (mostly Muslim men) in US courts and holding them as political prisoners;
• constructing US-based concentration camps for declared enemies of the state to be used if martial law is declared;
• using NORTHCOM, DHS, CIA, FBI, NSA and private paramilitary security forces to militarize the continent; and
• ending the rule of law, crushing any sense of democracy, and heading the country for tyranny.

Instituting the above fell to a small group of lawyers known as the "War Council." Also other select high-level officials reporting to Dick Cheney and George Bush as head co-conspirators. They seized on 9/11 to establish what David Addington called a "new paradigm" authorizing vast new executive powers in the "war on terror." They believe the US legal system is "a burden" to be countered by "error-prone legal decisions whose preordained conclusions were dictated by Addington" as Dick Cheney's legal counsel following Lewis Libby's resignation.

Their view is hard-line and simple. On matters of national security (meaning anything), presidential authority isn't "limited by any laws." It's empowered "to override existing laws that Congress had specifically designated to curb him" and thus render checks and balances and the Constitution null and void.

For these men, everything changed post-9/11. The gloves came off. Conventional law enforcement methods were inappropriate, and only global conflict without end can keep us safe. It sounds bizarre and like the ravings of madmen, and maybe to a degree they are. But very smart and cunning ones who've led us to the current brink.

Article continues at:  http://www.baltimorechronicle.com/2008/071808Lendman
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