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Preliminary Memorandum of the Justice Robert H. Jackson Conference on Federal Prosecutions of War Criminals

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I.  INTRODUCTION 

An extensive complaint seeking federal prosecution of American officials who ordered, authorized, approved or committed war crimes is currently being prepared.  While the complaint is in preparation, the Steering Committee of the Justice Robert H. Jackson Conference is issuing this preliminary memorandum setting forth several of the points to be presented more extensively in the complaint itself.  Such points include the acts of torture and abuse which constitute war crimes, the high level individuals of the American Government who ordered, authorized, or approved these acts plus some of the lower level officials who committed them, and the warnings of illegality and immorality given to the culpable American officials -- as news of their secret actions slowly began to percolate within the Executive branch -- by persons ranging from FBI officials on the ground, to other executive investigative personnel on the ground, to military Judge Advocates General, to general counsels of the armed services.  These warnings of illegality and immorality given by knowledgeable and experienced persons were ignored by the small group of high Executive officers who were determined that America would torture and abuse its prisoners and who had the decisionmaking power to secretly require this to be done.

The Steering Committee’s Report was drafted for the entire committee by the committee Chair, Lawrence Velvel.
 
The Report anticipates a more extensive, full scale complaint, currently being drafted, that will be presented to the Executive Branch after January 20th, urging prosecution of President Bush and those who aided him.

We note that the information in this preliminary memorandum on criminal acts, officials who authorized them or carried them out, and warnings of criminality and illegality which were ignored, has become available in the last four years in a host of investigatory books, investigatory articles, initially secret government memoranda which have now been publicly released, internal governmental investigations, statements of present and former governmental officials and generals (e.g., Dick Cheney and Antonio Taguba), investigatory television programs, legal complaints and other legal documents, transcripts of interviews, congressional hearings and congressional reports (such as the recent report of the Senate Armed services’ Committees). 

Among the books which extensively detail the matters written of here are Jane Mayer’s The Dark Side, Philippe Sands’ The Torture Team, Jack Goldsmith’s The Terror Presidency (Goldsmith is a former head of the Office of Legal Counsel), and Steven Wax’s Kafka Comes To America.

II.  ACTS OF TORTURE AND ABUSE, AND THE LAWS THEY VIOLATED  
           
There are a large number of “standard” acts of torture and abuse that were committed on the order or authorization of this country’s highest officials.  What the public generally does not realize is that these acts were not committed in isolation, one from the other.  Instead they were committed in combination, with up to ten or fifteen being perpetrated on a single detainee. 
 
Nor were the acts isolated from each other in time.  Rather, many detainees were subjected to combinations of tortures for weeks and months in a row.  One detainee was tortured by combinations for 54 straight days without let up.  Others were tortured by combinations for several weeks in a row.  The torture of sensory deprivation by isolating a detainee in a single small room, sometimes with black-out goggles over his eyes and sound-stopping plugs for his ears, and sometimes with the prisoner being kept in a tiny slot the size of a coffin, was carried on for years with regard to some prisoners, with the prisoners also being subjected to other tortures during this period.

Though torture is illegal whether the victim is innocent or guilty, many of the prisoners upon whom torture was practiced proved to be innocent -- estimates of the innocent run up to 50 percent and higher.  
 
The acts of torture and abuse that were regularly practiced on order or authorization of this country’s highest officials included:
 
Savage Beatings.  Prisoners were severely and regularly beaten with clubs, rifles and fists. They were beaten to the point that bones were broken, ribs were fractured, and prisoners sometimes were killed. 
 
It is already known that at least two prisoners, one now known to be falsely accused, were beaten to death at Bagram Air Force Base in Afghanistan, that a third savagely beaten prisoner, Manadel al-Jamadi, died, within one hour of entering Abu Ghraib, because of beatings that fractured six ribs and then being hung by the arms, with his arms secured behind him (not over his head) in the so-called “Palestinian hanging” position.  It is Jamadi’s corpse, packed in ice, with a grinning female American soldier named Sabrina Harman giving the thumbs up sign, that is in the infamous photograph from Abu Ghraib.
 
Peroneal Strikes.  Peroneal strikes are a specific form of savage beating, consisting of blows to the soft tissue and nerves just above the knee.  The falsely accused prisoner beaten to death at Bagram had been given so many peroneal strikes that a coroner testified that his leg tissue had ‘“basically been pulpified.’”
 
Sleep Deprivation.  Though the matter is not widely understood by the public, the effects of sleep deprivation are extremely serious.  In addition to becoming weary, a person’s electrolyte balance changes, a mental haze forms, balance evaporates and the prisoner wants only one thing in the world:  to be allowed to sleep.  The person becomes delusional, and it has been known since the Middle Ages that sleep deprivation produces false confessions because the prisoner will say anything to be allowed to sleep.  An American Bar Association Report has said that ‘“It has been known since 1500 at least that deprivation of sleep is the most effective torture and certain to produce any confession desired.’”  (Emphasis added.)
 
There reportedly were prisoners who were deprived of sleep for a dozen days, and other prisoners deprived of sleep for 96 hours in a row.  Still other prisoners were intermittently deprived of sleep for three months.  One prisoner, while being subjected to numerous other tortures as well, was allowed to sleep no more than a total of four hours a day for 54 straight days. 
 
Waterboarding.  The water torture, now called waterboarding, has been a torture since the Spanish Inquisition.  It was used by the Americans to torture Filipinos after the Spanish American War; it was used by the Nazi Gestapo; Japanese officers committed it upon Americans and were executed for their acts after World War II; it was used by the French in Algiers, by Pol Pot’s Khmer Rouge, and by Latin American dictatorships such as Chile and Argentina.  It has been used on prisoners held by the Americans, sometimes at the apparently express command of George Bush.  Some of the Americans’ prisoners have been waterboarded many times.
 
Waterboarding is not simulated drowning.  It is actual slow drowning.  It usually produces panic and hysteria.  A number of Americans, including Americans who did waterboarding of prisoners, underwent waterboardings themselves to see what it was like:  some lasted as few as five second before they broke and none lasted more than ten or fifteen seconds.  When waterboarding prisoners, American torturers would sometimes deliberately bring them to the brink of death. 
 
Waterboarding is so awful that, to avoid this unlawful act being seen, the CIA lied to the 9/11 Commission and to federal Judge Brinkema by falsely telling them it had no videotapes of the waterboarding of prisoners.  The CIA then further obstructed justice by destroying the tapes rather than allowing them to be seen even by officials in the three branches of the federal government.
 
Hanging by the Arms.  A highly excruciating “stress position” torture used on many prisoners, sometimes every day for two to three months, is hanging them by their arms, often or usually on tiptoe, for up to eight hours at a stretch.  The prisoners’ wrists and arms are shackled while they hang.  Excruciating pain arises because ankles double in size, blisters erupt, skin “tenses,” and shackles cut through the skin of the ankles and wrists.
 
In the version of hanging by the arms known as “Palestinian hangings,” the arms are not stretched directly above the head, but are instead stretched behind the body.
 
Slamming a Prisoner’s Head into Concrete Walls.  In this torture a towel is wrapped around a prisoner’s neck and is then used to propel the prisoner head first into a concrete wall.  Subsequently, instead of using a towel, the CIA used a plastic strip around the neck like a dog collar, with the strip being attached to a lead so that the torturer could have better leverage in propelling the prisoner head first into a concrete wall.
 
This torture was so fraught with risk of serious injury to or death of a prisoner that the CIA kept a doctor on hand at all times to guard against death or crippling injury. The physician was, of course, violating medical ethics by assisting in the perpetration of torture. 
 
Additional “Stress Positions” and Electric Shocks.  Hanging prisoners by their arms with only their toes touching the ground, and “Palestinian hangings,” were only two of the “stress positions” used as tortures.  Prisoners were also chained to walls in a way that forced them to maintain a painful crouch.  They were chained to the floor in the same way or in a fetal position with hands and feet chained, and were kept naked and forced to defecate and urinate on themselves.  They were hung by the arms with their feet on a drum through which electric shocks were applied to their feet; the shocks would cause the feet to “dance” so that the prisoners’ full weight was on their arms, excruciatingly.  They were hung by their arms with their feet and legs in water. 
 
Extremes of Hot and Cold.  Prisoners were subjected to extremes of hot and cold.  Cells would be kept at over 100 degrees, and then switched to freezing temperatures with air conditioners going full blast.  Cold water would repeatedly be thrown on prisoners who were being kept in frigid temperatures for up to a month.  At least one prisoner is known to have frozen to death after he was left in a freezing cell, wet and naked.  (There has been no accounting of the number of prisoners who were killed by American torture, though estimates run to several dozen. Nor has the prisoner who froze to death ever been identified.  He just “‘disappeared from the face of the earth,’” and the CIA supervisor of his torture was reportedly promoted.)
 
Tiny Cages, Hoods and Duct Tape, Lack of Medical Care and Food, Torture by Continuous Strobe Lights and Continuous Noise, and Other Tortures.  Prisoners were kept in tiny slot-like cells and in small boxes that were like coffins. They were kept hooded and with duct tape over their mouths.  Their wounds were left untreated, and they were denied medical care and pain killers.  They were denied food.  They were threatened by vicious dogs.  They were threatened with death, with being buried alive, and their families were threatened.  Their cells were flooded with continuous, never ending light, including strobe lights, and they were subjected to never-ceasing loud music.  At other times they were kept in pitch dark.
 
Ghost Detainees.  Prisoners known as “ghost detainees” were kept “off the books,” so that nobody, including their families, would know they were in custody, to avoid any oversight by Congress, the courts, and the International Red Cross, and to avoid any knowledge on the part of the media or public.  Keeping prisoners “off the books” in this way is in itself a war crime, and was done to facilitate torture of prisoners.
 
Renditions for Torture.  Infamously, prisoners were “rendered” to other countries for torture.  Men were kidnapped off the street, hooded, shackled, sedated by anal suppositories or syringe injections, dressed in jump suits, and flown by private Gulfstream jets (registered to dummy corporations) to countries such as Egypt, Syria and Uzbekistan to be tortured at the behest of the CIA.  These persons were “disappeared,” as had occurred in Chile under Pinochet.  Torture practiced by one of the countries they were given to, Egypt, was long known to include beatings with metal rods and whips, being suspended from ceilings or door frames, electric shocks, and dousing with cold water.  The CIA was able to give questions to Egyptian torturers in the morning and get answers by the evening.  In Syria, it was known, torture included electric shocks, “pulling out fingernails, freezing cells, forcing objects into the rectum” and “hyper-extending the spine” to fracture or near fracture.  Uzbekistan has long engaged in boiling people -- they are placed in water which is raised to boiling temperature. 
 
It is not yet known how many people were kidnapped and rendered to other countries for torture, but confirmed cases range from a low of 117 to at least 150.  Every rendition to torture was approved by the CIA’s General Counsel, and rendition for torture excited and was personally encouraged by George W. Bush, who wanted to brag about it publicly but was unable to because some of the participating governments were fearful that their own populations might learn what they were doing. 
 
Though the Executive has made every effort to keep renditions secret, information has leaked out.  Thus it is already known, for example, that at least seven of the persons who were rendered and tortured were innocent.  (Sometimes mistaken identity was involved, as when an innocent “rendee” had the same Arab name as a possible culprit (much like two Americans might both be named George Thomas.)  Federal judges such as David Trager and T.S. Ellis, III refused to allow cases brought by innocent but tortured persons to proceed against the federal government, lest the government be forced to disclose information it desires to keep secret.  Such torture-promoting decisions may constitute war crimes in themselves under principles applied against Nazi judges and lawyers at Nuremberg in the Alstotter case. 
 
* * * * * *

The foregoing acts, singly and in combination, violate numerous international treaties and domestic statutes.  In particular they violate Common Article 3 of the Geneva Conventions, the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, the federal War Crimes Act, and the federal Antitorture Statute.  These laws outlaw torture, other war crimes, breaches of Common Article 3, cruelty, infliction of serious physical or mental pain, degrading or inhumane treatment, death threats against the prisoner or his relatives, violence against prisoners or abuse of prisoners, other similar conduct, or grave breaches of Geneva Conventions rules that bar such acts. 
 
The punishments provided for violation of the federal laws range up to life imprisonment, and execution if the tortured prisoner was killed. These are serious penalties for serious acts, showing the seriousness with which this country has regarded torture and abuse of prisoners prior to the Bush administration.  Nor can there be any legitimate dispute that laws against torture and abuse have been violated -- wholesale.

III.  THE OFFICIALS, POLITICIANS AND LAWYERS WHO ORDERED, AUTHORIZED, OR ATTEMPTED TO FALSELY JUSTIFY AMERICAN WAR CRIMES  
           
The persons already known to be responsible for ordering, authorizing or carrying out the torture and abuse which constitute war crimes include government officials and politicians who ordered these actions, CIA officials who committed the actions, and lawyers (who sometimes were also officials and/or politicians) who carried out the bidding of the politicians and CIA by creating false, professionally incompetent memoranda claiming that acts of torture were legal.  The lawyers acted in the “tradition” of the lawyers and judges who were convicted at Nuremberg because they aided the commission of war crimes, or, as has been said, in the “tradition” of mob lawyers who invent justifications for the unlawful actions of the mob.

The government officials and politicians who are guilty of war crimes, and violations of both international law and domestic statutes, include George Bush, Dick Cheney, Alberto Gonzales, David Addington, Tim Flanigan, Lewis Libby, Condoleeza Rice, Donald Rumsfeld, Douglas Feith, Stephen Cambone, John Ashcroft, Michael Chertoff, Michael Dunlavey, Geoffrey Miller, and to a lesser extent, because he sometimes tried to stop the torture in which he was complicit, Colin Powell.  Gonzales, Addington, Flanigan, Feith, Dunlavey, Libby, Ashcroft and Chertoff are lawyers as well as officials and/or politicians.  The CIA officials who are guilty of war crimes include George Tenet, Cofer Black, James Pavitt, Scott Muller and John Rizzo (who are lawyers), David Becker, and a woman whose name is classified and who is therefore publicly identified only as a spiky-haired, red-headed person who, as head of the CIA’s Al Qaeda unit, insisted on and for no apparent reason flew abroad to see the waterboarding of a prisoner.  (She also was a CIA briefer of George Bush). 

The lawyers who are guilty of war crimes, as well as those named above, include Jay Bybee, John Yoo, Jim Haynes, Robert Delahunty, Patrick Philbin, Steven Bradbury, Diane Beaver, Mary Walker and to a somewhat lesser extent, because he at least withdrew the professionally incompetent memo of August 1, 2002 authorizing war crimes, Jack Goldsmith. (Goldsmith did not withdraw the torture memo because he was in disagreement with the kind of actions it approved, but because he was appalled by its professional incompetence.  He did not disagree with the recommended actions, and did not withdraw the second memo of August 1, 2002, which listed specifically authorized techniques of torture.    Rationalizing his action regarding the second memo, he claimed, among other things, that he did not know if the techniques -- which included waterboarding -- were torture.  Also, he authored a memo unlawfully authorizing prisoners to be removed from Iraq for interrogation in other countries, where they were tortured, and he participated extensively in authorizing illegal wiretapping.)

  
IV.  PROCESSES BY WHICH HIGH OFFICIALS ORDERED AND AUTHORIZED TORTURE, AND KEPT THEIR ACTIONS SECRET

The ordering of torture and abuse of prisoners was part of a larger view of Executive prerogative held by several leading actors, especially Dick Cheney and David Addington.  Both of them propounded their view since at least the 1980s.  And, when Executive officials showed compunctions about continuing to carry out those views during the administration of G.W. Bush, the very powerful Cheney would vigorously oppose such “backsliding,” while the large, physically imposing Addington, who was known to speak as the voice of the powerful Cheney (his boss), would aggressively browbeat those who had qualms about what was being done. 

The view of Executive authority imposed by Cheney and Addington, carried out by a group of powerful acolytes who were officials and/or lawyers, and approved by George W. Bush, was that the Executive was all powerful.  The Executive could break the laws of the United States, as with the FISA law and laws against torture.  The Executive could secretly and bindingly opine, through the Office of Legal Counsel (OLC) of the Department of Justice, that Congress and the laws of the United States could not stop the Executive from doing whatever it wished, as was exemplified in secret OLC memos, including memos falsely authorizing torture and abuse of prisoners.  The Executive could even announce that parts of U.S. laws would be ignored, as with scores or hundreds of signing statements.  The Executive could refuse to tell Congress what it was doing and could, indeed, even hide its actions from the leaders of Congressional committees with jurisdiction over those actions. The Executive was, in short, all powerful and Congress was merely a cipher. 

As now widely recognized, this Cheney/Addington view -- signed onto by their acolytes, by George Bush, and at least partly endorsed publicly by some individuals whom George Bush has appointed to the Supreme Court -- was an attempted constitutional revolution.  It was, moreover, an attempted constitutional revolution which succeeded for several years (at least partly because the so-called mass media went along with it).

With regard to torture and abuse, the unlawful ordering and authorization of war crimes proceeded on two parallel but intimately related tracks.  One was the civilian track involving the Department of Justice, the CIA and the White House. The other was the Department of Defense track.  John Yoo of the OLC was a major point of commonality for both tracks, because his memoranda authorizing torture formed the basis of the false, incompetent and identical legal positions of both tracks.

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Lawrence R. Velvel is a cofounder and the Dean of the Massachusetts School of Law, and is the founder of the American College of History and Legal Studies.

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