George W. Bush’s Criminal Legacy – Part II

GeorgeWBushHIjoIn my last blog [George W. Bush’s Criminal Legacy – Part I] I laid out the case charging that the invasion of Iraq under former President George W. Bush was illegal under both domestic and international law, and that Bush along with his top advisors were liable to charges of war crimes.

I listed actions taken in other nations that give substance to these charges: In September 2005 a German court declared that the Iraq war violated international law. In March 2007 a Spanish judge called for the architects of the Iraq invasion to be tried for war crimes.

In October 2011 when Bush attended an economic summit in British Columbia, Amnesty International submitted a detailed legal brief to Canada’s Attorney General arguing that

Canada is required by its international obligations to arrest and prosecute former president Bush given his responsibility for crimes under international law including torture.

Bush cancelled an earlier visit to Switzerland in February 2011, after facing similar public calls for his arrest.

These actions all took place outside the United States and are generally regarded as unenforceable within American borders.

However, I noted at the end of that blog that in August 2013 a class action civil suit was filed against George W. Bush and five officials of his administration within the United States – in the U. S. District Court of the Northern District of California, which is currently slowly proceeding to trial. That suit is the focus of the present blog.

gavelThe lawsuit being discussed was filed by Inder Comar of Comar Law based in San Francisco on behalf of the lead plaintiff in the case, Sundus Shaker Saleh an Iraqi mother of three who is now a refugee in Jordan, “and those similarly situated.”

The defendants named in the case are former President George W. Bush, former Vice-President Richard Cheney, former Secretary of State Colin Powell, former Secretary of Defense Donald Rumsfeld, former National Security Advisor Condoleezza Rice, and former Deputy Secretary of Defense Paul Wolfowitz.

Citing the precedent laid down at the post-World War II Nuremburg trials, the suit specifically charges that the

Defendants violated the rule of Nuremberg by attacking another country without legal justification, and specifically, by committing the crime of aggression against Iraq on March 19, 2003. Defendants violated the rule of Nuremberg by using fraudulent and untrue statements in an attempt to convince diplomats, world leaders and the American public that Iraq posed a threat to the United States and/or that Iraq was in league with al-Qaeda, when neither of these things was true.

Furthermore, the suit charges that the

Defendants violated the Kellogg-Briand Pact, a treaty signed in 1928, to which the United States is still a signatory. The Kellogg-Briand Pact requires signatory nations such as the United States to “condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.” The Kellogg-Briand Pact requires signatory nations such as the United States to resolve all disputes or conflicts through “pacific means.” As a Treaty of the United States, the United States Constitution incorporates this principle into its law under Article VI, clause 2, which declares “treaties made . . . to be the supreme law of the land.”

And that the

Blue_UN_logoDefendants violated the United Nations Charter by planning to commit the crime of aggression. Article II, Section 4 of the United Nations Charter requires countries to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nation.” As a Treaty of the United States, the United States Constitution incorporates this principle into its law under Article VI, clause 2, which declares “treaties made . . . to be the supreme law of the land.”

It is quite possible that the case will not succeed in the courts. The defendants may argue that they were acting properly under their “scope of employment” with the United States government.

Paul Stephan, who teaches law at the University of West Virginia and has served as a consultant to the Department of State on international law, states that

The Westfall Act of 1988 permits the United States as an entity to substitute itself in for individuals who were acting in their “scope of employment

and

it’s difficult to sue a U.S. employee acting under the “scope of employment.”

Even if no culpability is declared, the charges that are documented in the lawsuit are chilling. You can read the entire 27 page legal complaint here. It portrays a deliberate strategy to intentionally deceive the American public and to operate outside the scope of American and international law in launching an invasion against a foreign nation.

Details of the Lawsuit

New American CdnturySpecifically, the suit charges that Cheney, Rumsfeld and Wolfowitz were all members of “The Project for the New American Century” [or PNAC] formed in 1997, which over the next three years produced a number of documents advocating the military overthrow of Saddam Hussein. [5; footnotes are as they appear in the lawsuit; the reader is encouraged to check the information sources detailed in the links] Rumsfeld and Wolfowitz actively promoted this objective in Congress. [6, 7]

President Bush received a briefing from the CIA on August 6, 2001 warning of Bin Laden’s determination to mount a major strike against the U.S. [13] However, Richard A. Clarke, the former National Coordinator for Security, Infrastructure Protection and Counter-terrorism, later reported that the Bush administration was so focused on Iraq at that time that it failed to heed these warnings about an imminent attack from al-Qaeda.

The day after the 9/11 attacks, Wolfowitz and Rumsfeld “openly pushed for war against Iraq – despite the fact that the 9/11 hijackers were Saudi Arabian and had been based out of Afghanistan.”

alqaeda-iraqlinkClarke reports an astonishing conversation that took place at the White House that day. President Bush approached him saying, “See if Saddam did this. See if he’s linked in any way.” When Clark replied, “But, Mr. President, Al Qaeda did this,” Bush responded, “I know, I know, but – see if Saddam was involved. Just look. I want to know any shred-” Clarke replied, “But you know, we have looked several times for state sponsorship of Al Qaeda and not found any real linkages to Iraq. Iran plays a little, as does Pakistan, and Saudi Arabia, Yemen.” “Look into Iraq, Saddam,” Bush repeated. [10]

Clarke concludes that Wolfowitz, Rumsfeld and Bush all sought to use 9/11 as a pretext to attack Iraq. [9]

In July 2002 the British government learned that the Bush administration was planning to attack Iraq and was “fixing” its intelligence around that policy. [14]

The suit charges that

In August 2002, the White House established a group called the White House Iraq Group (“WHIG”), the purpose of which was to convince the American public into supporting a war against Iraq. Defendant RICE was a member of WHIG, along with Karl Rove, I. Lewis (“Scooter”) Libby, and other high-ranking Bush Administration officials.

boomAs reported by the New York Times, the centerpiece of their strategy was to use Mr. Bush’s upcoming speech on September 11 “to help move Americans towards support of action against Iraq, which could come early next year.” [16] Leading up to this event, on September 8, 2002 National Security Advisor Condoleezza Rice asserted on CNN’s Late Edition that Saddam Hussein was “actively pursuing a nuclear weapon,” and warned that “we don’t want the smoking gun to be a mushroom cloud.”

Former press secretary Scott McClellan would later state that Bush’s staff actively engaged in a “political propaganda campaign” aimed at “manipulating sources of public opinion.” [18]

On October 7, 2002 President Bush told the American people that

Iraq and al Qaeda have had high-level contacts that go back a decade. Some al Qaeda leaders who fled Afghanistan went to Iraq …who have been associated with planning for chemical and biological attacks. We’ve learned that Iraq has trained as Qaeda members in bomb-making and poisons and deadly gases. [19]

In the same speech Bush claimed that Saddam Hussein had a group of “nuclear mujahaideen – his nuclear holy warriors.” A week later Bush repeated his charge that Saddam Hussein “has had connections with al Qaeda,” adding that, “This is a man who, in my judgment, would like to use al Qaeda as a forward army.” [20]

Bush made these statements despite the fact that “ten days after the 9/11 attacks, he was told in his daily brief (“PDB”) from the CIA that there was no evidence linking Iraq to 9/11 and scant evidence that Iraq had any collaborative ties with al Qaeda.” [21] In addition, “A Defense Intelligence Agency document from February 2002 confirmed that the source of the intelligence linking Iraq to al Qaeda was a likely fabricator and “intentionally misleading” his interrogators.” [22] [This has been reported on elsewhere in detail]

iraq-powellIn February 2003, Colin Powell gave a speech to the United Nations Security Council that was considered to be crucial for winning approval for military action against Iraq. In his speech, Powell alleged that Iraq “harbors a deadly terrorist network headed by Abu Musab Al-Zarqawi, an associated collaborator of Osama bin Laden and his al-Qaeda lieutenants,” that Saddam Hussein was “more willing to assist al-Qaida after the 1998 bombings of [US] embassies in Kenya and Tanzania,” and that, “From the late 1990s until 2001, the Iraqi Embassy in Pakistan played the role of liaison to the Al Qaeda organization.” [26] All of this was untrue. Powell later admitted, “I have never seen a connection [between Iraq and al-Qaeda. … I’d never seen evidence to suggest there was one.”

On March 18, 2003, acting on the orders of President Bush, the United States invaded Iraq. The lawsuit against George W. Bush and his co-defendants notes that the

Iraq warDefendants failed to secure United Nations authorization for the war. Article 39 of the United Nations Charter requires the United Nations Security Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42 to maintain or restore international peace and security.”

Furthermore,

On September 14, 2004, United Nations Secretary General Kofi Annan stated, “I have indicated it was not in conformity with the UN charter. From our point of view and from the charter point of view it was illegal.” [28]

Based on the evidence contained in the suit, the plaintiff calls

1. For an order finding that Defendants planned and committed the crime of aggression.

2. For an award of compensatory damages against Defendants in an amount sufficient to compensate Plaintiff and all members of the Iraq Civilian Victims’ Class for damages they sustained as a result of Defendants’ illegal actions in planning and mounting a war of aggression against Iraq.

Should the defendants’ assets not be sufficient to cover these damages, the suit asks that the defendants

set up, manage and obtain other funding at their expense a restitution fund to provide for proper compensation to any and all Iraqi civilians who were damaged because of Defendants’ commission of the crime of aggression against Iraq.

It should be interesting to follow this case as it proceeds through the courts to see what the final determination will be.

Footnotes:

[5] http://www.newamericancentury.org/iraqmiddleeast2000-1997.htm

[6] http://www.newamericancentury.org/iraqletter1998.htm

[7] http://www.newamericancentury.org/iraqsep1898.htm

[13] http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB116/index.htm

[10] http://www.nytimes.com/2004/03/28/books/chapters/0328-1st- clarke.html?pagewanted=all

[9] This information is lifted from press articles and Richard A. Clarke, Against All Enemies – Inside America’s War On Terror (Free Press 2004).

[14] http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB328/II- Doc14.pdf

[16] http://www.nytimes.com/2002/09/07/us/traces-of-terror-the-strategy-bush- aides-set-strategy-to-sell-policy-on-iraq.html

[18] http://www.washingtonpost.com/wp- dyn/content/article/2008/05/27/AR2008052703679.html

[19] http://georgewbush-whitehouse.archives.gov/news/releases/2002/10/20021007- 8.html

[20] http://georgewbush-whitehouse.archives.gov/news/releases/2002/10/20021014- 3.html

[21] http://www.nationaljournal.com/whitehouse/key-bush-intelligence-briefing- kept-from-hill-panel-20051122

[22] http://www.nytimes.com/2005/11/06/politics/06intel.ready.html?pagewanted=all &_r=0

[26] http://www.guardian.co.uk/world/2003/feb/05/iraq.usa3

[28] http://www.guardian.co.uk/world/2004/sep/16/iraq.iraq

Photo credit:  Mario Tama, AFP/Getty Images

George W. Bush’s Criminal Legacy – Part I

US flag-TortureOn December 9th the Senate Intelligence Committee released its report on the torture of detainees by the CIA during the Bush administration. Reaction to the report has been swift and harsh. CIA officials and some Bush era appointees have tried to discredit the report, while others have demanded that those responsible for these crimes be brought to justice.

As disturbing as the findings in the Senate report are, Reed Brody of Human Rights Watch notes that the scope of the report is actually quite limited. It only

deals with one aspect of one part of the detainee mistreatment in the war on terror [namely,] CIA prisoners held in black sites. … [I]t doesn’t talk about what the Pentagon was doing. It doesn’t talk about the programs approved by Donald Rumsfeld. And … it tends to kind of let off the hook all those people above who authorized these programs.

In my last post [Taking Action Against Torture] I laid out the grounds for pursuing criminal charges not only against George Tenet, the CIA Director during the Bush administration (who oversaw these torture practices) as well as those agents under his command, but also former Defense Secretary Donald Rumsfeld (who approved these illegal interrogation methods), former Vice-President Dick Cheney (who was the driving force behind these illegal detention policies), and President George W. Bush (who authorize the CIA secret detention program and had ultimate authority over its operations). [See link]

But even this does not address the full scope of the illegal and criminal actions carried out on the international stage during the Bush administration.

The Case for War Crimes

Iraq warIn March 2003 the United States launched its invasion of Iraq to overthrow the brutal regime of Saddam Hussein. President George W. Bush explained at the time that this was necessary since Saddam possessed weapons of mass destruction and was known to be in league with al-Qaida.

His statements, and those of other top White House officials who orchestrated the invasion of Iraq, were later revealed to be false. President Bush lied to the American people. More importantly, it has been argued that his actions not only violated the U.N. Charter that forbids wars of aggression, but violated U. S. law as well.

As former federal prosecutor Elizabeth De La Vega wrote in a cover story for the Nation magazine in October 2005 detailing this deception:

The evidence shows, then, that from early 2002 to at least March 2003, the President and his aides conspired to defraud the United States by intentionally misrepresenting intelligence about Iraq to persuade Congress to authorize force, thereby interfering with Congress’s lawful functions of overseeing foreign affairs and making appropriations, all of which violates Title 18, United States Code, Section 371.

Appeals were made for the Justice Department to appoint a special prosecutor to investigate the administration’s involvement in this deception much like the investigation into president Nixon’s cover-up of the Watergate break-in. But no action was taken. Some called for President Bush to be impeached, but nothing came of this during Bush’s remaining time in office.

international-flag1Actions were taken on the international stage, however. In September 2005 a German court declared that the Iraq war violated international law. In March 2007 a Spanish judge called for the architects of the Iraq invasion to be tried for war crimes.

In October 2011 when then ex-President Bush attended an economic summit in British Columbia, Amnesty International submitted an extensive legal brief to Canada’s Attorney General arguing that

Canada is required by its international obligations to arrest and prosecute former president Bush given his responsibility for crimes under international law including torture.

Although the Canadian government declined to take such action, the National Post (Canada’s national conservative newspaper) reported that

Bush cancelled a visit to Switzerland in February, after facing similar public calls for his arrest.

amnesty_logoLest anyone take Amnesty International’s charges lightly, it should be noted that its charges are well documented.

Amnesty’s case, outlined in its 1,000-page memorandum, relies on the public record, U.S. documents obtained through access to information requests, Bush’s own memoir and a Red Cross report critical of the U.S.’s war on terror policies.

We should also note that

In Kuala Lumpur, after two years of investigation by the Kuala Lumpur War Crimes Commission (KLWCC), a tribunal (the Kuala Lumpur War Crimes Tribunal, or KLWCT), consisting of five judges with judicial and academic backgrounds, reached a unanimous verdict [in November 2011] that found George W. Bush and Tony Blair guilty of crimes against peace, crimes against humanity and genocide as a result of their roles in the Iraq War.

And finally,

In January 2014 a devastating 250-page dossier, detailing allegations of beatings, electrocution, mock executions and sexual assault, was presented to the International Criminal Court (ICC) … . This formal complaint to the ICC is the culmination of several years’ work by Public Interest Lawyers (PIL) and the European Centre for Constitutional and Human Rights (ECCHR). It calls for an investigation into the alleged war crimes, under Article 15 of the Rome Statute.

All of the actions reported above have taken place outside the United States and, many would argue, are unenforceable within American borders.

However, in August 2013 a domestic class action civil suit was filed against George W. Bush and five officials of his administration that is proceeding to trial. I will provide a detailed examination of that case of my next blog.

Photo credit: RAMZI HAIDAR/AFP/Getty Images