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January 30, 2005

Reject Confirmation of Torture and Lawlessness
Demand Congress Charge Bush, Rice and Gonzales as War Criminals
Bush Cabinet Choices Reflect Growing U.S. Reaction
U.S. Support for Torture Continues
ACLU Reveals New Abuses at Guantanamo
Gonzales Added to War Crimes Charges Against Top U.S. Officials


Reject Confirmation of Torture and Lawlessness

Demand Congress Charge Bush, Rice and Gonzales as War Criminals

The confirmation of Condoleezza Rice as Secretary of State and the expected confirmation of Alberto Gonzales as Attorney General are being widely recognized as confirmation of the most brutal and violent reaction of U.S. imperialism. They represent the utter backwardness the U.S. is preparing to impose on humanity, striving to completely eliminate all rule of law and standards of international relations developed by humanity.

Rice is the main architect and representative of pre-emptive war and the wholesale use of force against the peoples of the world, a position she defended during her hearings. She also claimed that the U.S. can decide who is and is not to be considered a "legitimate participant in the international system," specifically targeting Iran. She threatened that the U.S. will pursue a path of confrontation. Rice, as the person in charge of the Iraq Stabilization Group now in charge in Iraq, also has direct responsibility for the slaughter of Iraqi civilians, currently numbered at over 100,000, and the massive destruction of hospitals, schools and other civilian infrastructure.

Pre-emptive war, doing propaganda for such aggressive war, massacres of civilians, all are war crimes and crimes against humanity. This is well established in the laws enacted as part of the struggle against fascism, such as the Geneva Conventions, Nuremberg Accords, and similar laws. All such conventions and accords signed by the U.S. are also law of the land in the U.S. In addition, in 1996, Congress passed the War Crimes Act making it a federal crime to breach the Geneva Conventions.

Bush and Rice are clearly guilty of war crimes. U.S. Senators and Representatives are in a position to bring charges immediately. We demand that they do so.

Alberto Gonzales is without question the representative of use of torture and architect and staunch defender of rule by the executive. Gonzales has and continues to defend the stand that the Geneva conventions do not apply in the U.S. "war on terror." He claims the President alone has full authority to brand anyone an enemy combatant and hold them indefinitely. While saying he personally abhors torture, he said that it is lawful for the U.S. military and to use "cruel and inhuman" treatment in interrogations of people held outside the U.S.

Gonzales, as White House Counsel, has refused to condemn or demand action against a Deputy Attorney General who testified that it is permissible to use "evidence" gotten through torture. Both the torture and use of such evidence has long been outlawed in U.S. courts. Gonzales also did not oppose statements by outgoing Secretary of Homeland Defense Tom Ridge, who said that the U.S. "should not rule out use of torture" in "extreme conditions."

His stand again confirms that his role will in fact be to impose all the lawlessness, torture and brutality the U.S. is inflicting on the peoples of Iraq and the world, inside the country. As Attorney General his role will be to complete the elimination of rule of law.

Dozens of human rights and civil rights organizations, lawyers, unions and activists of all kinds have called for the rejection of Gonzales and exposed the danger he represents. He too is guilty of war crimes. Far from succumbing to Bush dictate and confirming him for Attorney General, Congress should bring charges, against Gonzales, Rice and Bush. All are guilty of war crimes.

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Gonzales & Rice Confirmed

Bush Cabinet Choices Reflect Growing U.S. Reaction

The brutal and reactionary character of the Bush administration is being sharply revealed in his choice for Secretary of State and Attorney General. Condoleezza Rice is a main architect of the Bush doctrine of pre-emptive war and open spokeswoman for the lies used to try to justify war against Iraq. Rice has been confirmed by the Senate, with a vote of 85-13. Alberto Gonzales, nominee for Attorney General, is well-known as the architect of rule by executive authority without regard to international or U.S. law, including defending the use of torture, saying the Geneva Conventions do not apply in the “war on terror” and elimination of military norms for trials of captured prisoners of war.

Rice Confirmation Hearings

The Senate confirmed Rice on an 85-13 vote on January 26. Bush had planned the confirmation for Inauguration Day, January 20, but it was delayed by Democrats calling for more time to question Rice. She first appeared before the Senate Foreign Relations Committee, and then before the full Senate.

A main feature of the Rice confirmation hearings was questioning about her role in lying to Congress as part of justifying going to war against Iraq. Senator Mark Dayton opposed the adminstration’s “Lying to Congress, lying to our committee and lying to the American people. It’s wrong, it’s immoral.” He voted no saying Rice had been “instrumental in deceiving Congress and the American people.”

Senators Barbara Boxer and Robert Byrd were among the more vigorous questioners. Senator Boxer referred to what she called “inconsistencies” by Rice about the imminent threat of war and weapons of mass destruction. She said Rice’s loyalty to Bush “overwhelmed your respect for the truth.” Rice denied this, claiming “I have never, ever, lost respect for the truth in service of anything.”

Senator Byrd also spoke to lies and fear-mongering by Rice, including her claims that the government knew for certain that there were weapons of mass destruction in Iraq and that Saddam Hussein was building nuclear weapons. He referred to Rice’s infamous statement that, “there will always be some uncertainty about how quickly he can acquire nuclear weapons. But we don’t want the smoking gun to be a mushroom cloud.” Weapons inspectors recently again confirmed that there was no nuclear weapons program in Iraq and there has not been one since the end of the last Gulf war.

In addition, Byrd emphasized his opposition to the usurping of power by the Office of the President. He cited the 2002 “National Security Strategy of the United States,” a report Rice was in charge of developing. Byrd said, “Under this strategy, the President lays claims to an expansive power to use our military to strike other nation first, even if we have not been threatened or provoked. There is no question that the President has the inherent authority to repel attacks against our country, but this National Security Strategy is unconstitutional on its face...This doctrine of preemptive strikes places the sole decision of war and peace in the hands of the President and undermines the Constitutional power of Congress to declare war...The National Security Strategy makes only one passing reference to the Constitution: It states that ‘America’s constitution’-- that is ‘constitution’ with a small “C” -- ‘has served us well.’ As if the Constitution does not still serve this country well! One might ask if that reference to the Constitution was intended to be a compliment or an obituary?”

Senators Kerry and Kennedy of Massachusetts also questioned and opposed Rice.

It is notable that while a number of Senators said Rice had lied or “misstated the facts” to Congress -- which is a federal crime -- none took action to charge her with this crime. Similarly, if she, like Bush, is responsible for acts against the Constitution, she and Bush can be charged and removed from office for that as well. Instead, the Senate confirmed Rice.

Among those Democrats speaking for Rice were Joseph Biden, top Democrat on the Senate Foreign Relations Committee, Dianne Feinstein and Joseph Lieberman, former vice-presidential candidate with Gore. Lieberman urged the Senate to “resoundingly endorse this nomination and send the message to friend and foe alike that while we have our disagreements, ultimately what unites us around this very qualified nominee in this hour of war is much greater than what divides us.”

For the vote itself, the following Senators voted “no”: Akaka (D-HI), Bayh (D-IN), Boxer (D-CA), Byrd (D-WV), Dayton (D-MN), Durbin (D-IL), Harkin (D-IA), Jeffords (I-VT), Kennedy (D-MA), Kerry (D-MA), Lautenberg (D-NJ), Levin (D-MI) and Reed (D-RI).

Gonzales Confirmation Hearings

The nomination of Alberto Gonzales for Attorney General was confirmed by the Senate Judiciary Committee, 10-8, with all 8 Democrats opposing confirmation. He is being questioned by the full Senate and is likely to be confirmed in early February.

In the course of the hearings so far, including written responses to questions, Gonzales has said that he was personally “sickened and outraged” by the photographs of the torture of Iraqi prisoners. Asked if he approved of torture, he said “Absolutely not.” He also said the President personally did not approve of torture. He did not say that he would act to insure that every government office and official, including the military and Office of the President would be prosecuted for any acts of torture. When asked directly whether the President, under conditions of war, can, as Senator Russ Feingold put it, “disobey laws as fundamental to our national character as the prohibition on torture,” Gonzales refused to answer.

Feingold represented common themes brought out by various Senators. He brought out, in questioning and in his statement, that Gonzales said the Office of Legal Council (OLC) memo -- supporting torture and saying the Geneva conventions do not apply -- is “no longer operative.” Gonzales headed the OLC at the time and still does. While saying the memo, in use for two years, now no longer is, Gonzales admitted that he did not disagree with the conclusions expressed in it. Feingold emphasized that Gonzales “refused time after time to repudiate the most far-reaching and significant conclusion of the OLC memo -- that the President has the authority as Commander-in-Chief to immunize those acting at his direction from the application of U.S. law.” He was referring to content in the OLC memo attempting to protect U.S. officials and troops from prosecution for breaches of the Geneva conventions and similar war crimes. As Attorney General, Gonzales has responsibility for pursuing such prosecutions.

Feingold brought out that Gonzales’ support for such measures “goes directly to the question of his commitment to the rule of law. Under our system of government, the Attorney General of the United States may be called upon to investigate and even prosecute the President. We cannot have a person heading the United States Department of Justice who believes that the President is above the law.”

Feingold, like other Senators, also expressed as a main concern the U.S. image abroad, saying that “Time after time Judge Gonzales has been a key participant in developing secret legal theories to justify policies that, as they have become public, have tarnished our nation’s international reputation and made it harder, not easier, for us to prevail” in the war on terrorism.

In his testimony, Gonzales continued to defend the view expressed in the OLC memo that existinglaw and the Constitution are not applicable. He said, “As we have debated these questions, the president has made clear that he is prepared to protect and defend the United States and its citizens and will do so vigorously, but always in a manner consistent with our nation’s values and applicable law, including our treaty obligations. I pledge that, if I am confirmed as attorney general, I will abide by those commitments.”

It is important to note here that Gonzales says he will abide by “applicable law” as distinct from saying he will uphold all rule of law, including the Constitution and treaties. Bush and Gonzales have justified the treatment of prisoners at Guantánamo Bay, which includes well-documented torture, by simply declaring that the Geneva conventions do not apply. On this basis criminal actions contrary to the Geneva Conventions are acceptable and those involved in them and responsible for them, including the President, are immune from prosecution.

Gonzales refused to say whether interrogation tactics using torture and witnessed by FBI agents were unlawful. He said instead that there should not be public discussion of interrogation tactics.

Gonzales also asserted in his testimony that indefinite detention and “cruel and inhuman” treatment for prisoners held abroad was acceptable. He said this was the case because international conventions and Constitutional protections against this, including the fifth, eighth and fourteenth Amendments, did not apply.

According to Gonzales, and the Justice Department, the Constitution does not apply to people held by the U.S. military overseas. The eighth amendment makes no such distinction, stating simply that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted,” by the government. It is also the case that the Supreme Court ruled against the government’s claim that the Naval Base in Guantánamo Bay Cuba is not under U.S. jurisdiction because it is located in Cuba. The Court said the base is under U.S. jurisdiction. Evidently, for Gonzales, this ruling also does not apply.

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Gonzales Silent

U.S. Support for Torture Continues

Alberto Gonzales, nominee for Attorney General, is being questioned as the results of White House support for torture are in the news. Gonzales is widely known for memos supporting use of torture and saying the Geneva Conventions, which specifically outlaw torture and cruel and degrading treatment, do not apply. This position was also directly approved by Defense Secretary Rumsfeld, who issued an order stipulating that “Al Qaida and Taliban individuals...are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949.”

On January 14, outgoing Secretary of Homeland Defense, Tom Ridge, openly said the U.S. would “not rule out torture.” He said that using torture would be legitimate in interrogations under an “extreme set” of conditions, such as gaining intelligence to stop a “nuclear threat.” Ridge also said that “intelligence” gathered under torture is not usually reliable.

Similarly, in December, the Principal Deputy Associate Attorney General Brian Boyle said evidence gained solely by torture was admissible in the military commissions determining if prisoners held at the U.S. Naval base in Guantánamo Bay, Cuba have rightly been branded as “enemy combatants.” He was testifying in U.S. federal court in a case brought by the detainees. Boyle also used the “extreme” conditions justification saying that the “United States would never adopt a policy that would have barred it from acting on evidence that could have prevented” 9/11. While saying evidence gained by torture was admissible, Boyle also claimed “nothing like torture” is being used by the U.S.

Lawyers for the Guantánamo detainees brought out that statements produced under torture are not admissible in U.S. courts and have not been for about 70 years. Torture of all kinds, under all conditions, is forbidden under a number of international laws that the U.S. has signed, making them law of the land. As well, in 1996 Congress passed the War Crimes Act which makes any breaches of the Geneva Conventions a crime. The Conventions themselves specifically say that no nation “bound by the Convention can offer any valid pretext, legal or other, for not respecting the Convention in all its parts.”

The American Civil Liberties Union recently issued another report concerning abuse of prisoners by the U.S or those under their command, at U.S. detention centers. The report indicates that the abuse and torture is widespread and continues. The report was based on highly censored materials from the Pentagon, gotten on the basis of an ACLU lawsuit. Many of the cases involve American Special Forces, adding to the abuse by prison guards.

One of the lowest level soldiers who engaged in the torture at Abu Ghraib in Iraq was found guilty. In the course of the trial for Army Spc. Charles Garner, his lawyer attempted to dismiss the torture, claiming “cheerleaders all across America form human pyramids.” His reference was to the photo of naked and abused bodies of Iraqi prisoners piled on top of each other. Garner stood next to them giving a “thumbs up.” His lawyer also attempted to use the defense that Garner was “following orders,” a defense outlawed by the Nuremburg trials and accords, based on the struggle against fascism. Garner is one of two soldiers who were prison guards in the U.S. before being sent to Iraq. The fact that torture, humiliation and abuse are regularly imposed inside U.S. prisons has also been well documented.

Gonzales, like the White House, has been silent on all of these examples of continuing U.S. support of torture. As Attorney General, he would be obligated to take legal action in defense of U.S. law forbidding torture and requiring implementation of the Geneva Conventions. As White House counsel, he is obligated to vigorously object and call for action. His silence and inaction shows that his testimony before Congress, that torture would not be permitted and the Geneva conventions upheld, are more lies.

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ACLU Reveals New Abuses at Guantanamo

The American Civil Liberties Union (ACLU) says that government records pertaining to an investigation of prisoner abuses at the Guantanamo Bay detention center are still being withheld, and those it has received under a court order are so heavily censored that they "raise more questions than they answer."

Correspondence handed over to the American Civil Liberties Union (ACLU) recounts what one observer calls "treatment that was not only aggressive, but personally very upsetting" -- including leaving prisoners shackled in the fetal position and covered in urine and feces.

Under pressure from Congress, the Defense Department announced late last week that it would open its own probe into all reports of abuse contained in documents newly released by the Federal Bureau of Investigation (FBI). Guantanamo's commanding general, Jay Hood, said a military team independent of the Guantanamo mission was needed to find and interview people who had left the post and were no longer under his command.

Meanwhile, the ACLU says it "will return to court both to challenge the adequacy of the agencies' searches and to challenge particular redactions." The release of the documents followed a federal court order that directed the Defense Department and other government agencies to comply with a year-old request under the Freedom of Information Act (FOIA) filed by advocacy groups including the ACLU, the Center for Constitutional Rights, Physicians for Human Rights, Veterans for Common Sense and Veterans for Peace.

Among the new documents is an FBI summary of "potentially relevant criminal statutes." The statutes pertain to war crimes, torture, aggravated sexual abuse and sexual abuse of a minor.

The ACLU's review of the documents also shows that other critical records have not been released. For instance, the FBI has withheld a copy of a May 30, 2003 "electronic communication" in which the FBI formally complained to the Defense Department about the treatment of detainees.

These most recent FBI documents were released on the eve of Senate confirmation hearings of Attorney General-nominee Alberto Gonzales, who wrote a memorandum to President George W. Bush providing legal justifications for the use of torture.

Thousands of pages of other FBI documents were received by the ACLU as the result of an earlier request and a federal court recently ordered the Central Intelligence Agency (CIA) to turn over all documents relating to its internal investigation of prisoner abuse.

The new documents obtained by the ACLU indicate that prisoner abuse at Guantanamo went far beyond anything the government had acknowledged.

In one document, dated July 2004, an FBI agent reports seeing a detainee at Guantanamo "sitting on the floor of the interview room with an Israeli flag draped around him, loud music being played and a strobe light flashing."

In another, dated August 2004, an unidentified FBI agent reports "on a couple of occasions" entering interview rooms at Guantanamo and finding one of the detainees "chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves and had been left there for 18, 24 hours or more. On one occasion, the air conditioning had been turned up so far and the temperature was so cold in the room that the barefooted detainee was shaking with cold."

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CCR in Germany

Gonzales Added to War Crimes Charges Against Top U.S. Officials

The Center for Constitutional Rights (CCR) on January 31 filed war crimes charges against Alberto Gonzales in Germany. The charges were added to complaints already filed in Germany, November 30, against 10 top U.S. officials for the torture of prisoners at the U.S. Abu Ghraib prison in Iraq. These included Defense Secretary Donald Rumsfeld, former CIA head George Tenet, Lieutenant General Ricardo S. Sanchez, in charge of military bases in Iraq at the time and Jay Bybee, a Justice Department official who signed the infamous August 2002 memo approving torture. The others charged are, Major-General Walter Wojdakowski, Brig.-General Janis Karpinski, Lt.-Colonel Jerry L. Phillabaum, Colonel Thomas M. Pappas, Lt.-Colonel Stephen L. Jordan, Major-General Geoffrey Miller, and Undersecretary of Defense for Intelligence Stephen Cambone.

The charges were filed in Germany as German law outlawing war crimes and crimes against humanity is universal, meaning those charged do not have to live in Germany and the crime need not have been committed in Germany. Charges against war crimes committed anywhere by anyone can be brought. The law also provides that the prosecutor is required to investigate the case and take action, although he can conclude that the U.S. is pursuing the case and on this basis drop the charges. According to the German Deutsche Presse-Agentur (DPA), shortly after the initial charges were filed, Rumsfeld told the German government that he would not be coming to Germany this February to participate in the Munich Security Conference unless Germany quashed the legal action.

We reprint below the summary statement by CCR concerning the new filing against Alberto Gonzales. The full letter sent to the German prosecutor and Scott Horton’s views are available at CCR’s website, www.ccr-ny.org.

* * *

CCR filed new documents on January 31, 2005, with the German Federal Prosecutor looking into war crimes charges against high-ranking U.S. officials including Donald Rumsfeld: one includes new evidence that the Fay investigation into Abu Ghraib protected Administration officials – it is a comprehensive and shocking opinion by Scott Horton, an expert on international law and the Chair of the International Law Committee of the Association of the Bar of the City of New York. The second is a letter that details how Attorney General nominee Alberto Gonzales’s testimony before the Senate Judiciary Committee confirms his role as complicit in the torture and abuse of detainees in Abu Ghraib and elsewhere in Iraq.

In a declaration filed with the prosecutor in Karlsruhe, Germany, Scott Horton, who was asked to consider whether or not the U.S. would conduct a genuine investigation up the chain of command for war crimes, unequivocally states that “…no such criminal investigation or prosecution would occur in the near future in the United States for the reason that the criminal investigative and prosecutorial functions are currently controlled by individuals who are involved in the conspiracy to commit war crimes.”

One of the legal issues before the prosecutor is whether the German investigation should be dismissed or deferred so that the U.S. authorities have a chance to conduct their own investigation. The obvious answer from Horton’s affidavit is no. The impossibility of an independent and far-reaching domestic investigation of high-ranking U.S. officials coupled with the United States’ refusal to join the International Criminal Court make the German court a court of last resort.

Horton also reveals that a study he undertook of Major General George R. Fay’s investigation of the Abu Ghraib abuses (The Fay Report, spring 2004) was in fact designed to cover up the role of high-ranking officials. He reports that “certain senior officials whose conduct in this affair bears close scrutiny, were explicitly ‘protected’ or ‘shielded’ by withholding information from investigators or by providing security classifications that made such investigation possible…in each case, the fact that these individuals possessed information on Rumsfeld’s involvement was essential to the decision to shield them.”

Horton cited appeals by leaders of the legal profession in the United States and by the American Bar Association for investigation and action on obvious war crimes, and noted that the Justice Department had failed to act. With the confirmation of Alberto Gonzales now looming, he states “any serious criminal investigation and prosecution would certainly involve Gonzales.”

CCR Vice President Peter Weiss said Gonzales’s testimony before the Senate Judiciary Committee “demonstrates his involvement in setting policy where torture and inhumane treatment was authorized at the highest levels of the Bush Administration.” Weiss pointed to Gonzales’s claim that the prohibition on cruel, inhuman and degrading treatment does not protect aliens in U.S. custody overseas, stating “this makes clear that Gonzales and the Bush Administration continue to believe that non-citizens held outside the U.S. can be treated inhumanely.”
According to recent news reports, Rumsfeld has threatened to stay away from the annual

Munich security conference because of possible investigation and prosecution in Germany. Commenting on this development, CCR President Michael Ratner said, “While we think this is nothing more than a tactic to bully the Germans into dropping the case, we also believe that Donald Rumsfeld cannot escape accountability for his alleged crimes.”

The German Prosecutor was asked on November 30, 2004, by the Center for Constitutional Rights (CCR) to investigate the role of ten high-ranking U.S. officials, including Donald Rumsfeld, in the abuse of detainees in Iraq. Under the doctrine of universal jurisdiction, which is part of German law, suspected war criminals may be prosecuted irrespective of where they are located. In addition, at least three of the defendants, LTG Ricardo Sanchez, MG Walter

Wojdakowski and Colonel Thomas Pappas, are stationed in Germany, providing the Prosecutor with another basis to investigate. Plaintiffs in this case are represented by German attorney Wolfgang Kaleck, and include three Iraqi citizens who were abused at U.S.-run detention facilities in Iraq including Abu Ghraib, and the following organizations who joined the complaint: the Federation Internationale des Droits de l’Homme (FIDH), Lawyers Against the War (LAW) and the International Legal Resources Center (ILRC).

The new letter to the prosecutor also cites the recent documents unearthed by CCR and the ACLU under the Freedom of Information Act, a report of the International Committee of the Red Cross, a confidential report by Colonel Stuart A. Herrington of the U.S. Army and numerous other reports that confirm the widespread character of the abuses and the knowledge of high-ranking U.S. officials.


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