By Terrence McCoy
By Scott Fishman
By Deirdra Funcheon
By Allie Conti
By New Times Staff
By Ryan Pfeffer
By Deirdra Funcheon
By Kyle Swenson
President Bush is coming to town Thursday night to debate John Kerry and try to earn your vote. But the question emerging now is not whether he should be elected but if he should be impeached for war crimes.
Remember when the Abu Ghraib prison abuse scandal broke with all those detestable pictures and the administration repeated that it was the fault of a "few bad apples"? Well, they were right. Thankfully, the bad apples have been identified: John Ashcroft, Donald Rumsfeld, Dick Cheney, and President Bush.
Bush decided to ignore the federal War Crimes Act, which is punishable by death. But impeachment will do. It takes a very high crime to justify removing the president, especially during time of war -- even an unpopular and disastrous war like the one in Iraq. But Bush, unfortunately, has risen to that height.
I was apprised of the bones of the case by Ray McGovern, one of the brightest and most sensible fellows you'll ever find. McGovern is a retired, 27-year CIA veteran who, during the Reagan administration, gave White House briefings to Bush I. I caught up with the former intelligence analyst last week while he was in town to speak at Florida International University. "I believe the president is guilty of a crime," says McGovern, who is a member of a 45-member group called Former Intelligence Professionals for Sanity.
After researching the case on my own, I'm convinced it's not only sound but also compelling. It begins with a stroke of the president's pen and ends with the institutionalized torture, sexual humiliation, and, in some cases, murder of men and women in Iraq's Abu Ghraib prison. It has disgraced our country, stirred hatred against us across the Arab world, and certainly helped spawn more mortal enemies to America. More than 300 cases of abuse have been reported at Abu Ghraib, Guantanamo Bay, and Afghanistan so far. Dozens of soldiers have been implicated, and the investigations continue.
In May, after the appalling photos of Abu Ghraib came to light, the Bush administration released hundreds of pages of documents in an attempt to vindicate itself. Instead, the release supplied a noose for the government's highest officials. The key memo, signed by Bush on February 7, 2002, showed that the president personally issued the order to exempt Taliban detainees from the long-standing and world-honored Geneva Conventions, which set moral and ethical rules for prisoners of war after World War II and are encoded into federal law under the 1996 War Crimes Act.
In the February 7 directive, Bush wrote that Taliban soldiers don't qualify as prisoners of war. Instead, he declared them "unlawful combatants," a new and legally ambiguous designation that strips detainees of many of the Geneva protections. In short, that move introduced the opportunity for torture.
Since Afghanistan is a party to Geneva, Bush needed a rationale. White House records show it came from Cheney's office, Ashcroft's Justice Department, Rumsfeld's Defense Department, and Bush's own chief counsel, Alberto Gonzales.
In a January 22, 2002 memo, Justice lawyer Jay S. Bybee wrote that the president could "determine that Afghanistan was not a functioning state and therefore the Taliban was not a government."
Three days after the Bybee memo was sent, White House counsel Gonzales urged the president to exempt the Taliban from Geneva, telling Bush that parts of the conventions were "obsolete" and "quaint." Most interestingly, the justice lawyer informed the president that exempting the Taliban would provide U.S. officials protection from prosecution under the War Crimes Act. "It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on [the War Crimes Act]," he wrote. "Your determination would create a reasonable basis in law that [the act] does not apply, which would supply a solid defense to any future prosecution."
Here, Gonzales, in a dazzling display of arrogance, supposed that if Bush decided Geneva doesn't apply, then the president and other officials couldn't be tried for war crimes. In reality, the counsel only implicated the White House in a premeditated plan to subvert federal law and commit those crimes.
The State Department, led by Colin Powell, objected to casting aside Geneva, saying it could lead to a backlash against American soldiers and cause outrage in the world. In the end, Bush tried to have it both ways. In his February 7 directive, the president stated that, while he has the power to suspend Geneva, the conventions would apply to the Taliban -- until he decided otherwise.
At the same time, he stripped Taliban detainees of their rights as prisoners of war and exempted them from Article 3 of Geneva, which specifies that prisoners must be treated humanely and protects them from torture and other "outrages upon personal dignity, in particular, humiliating and degrading treatment."
It's a case of murky presidential doublespeak, but a key statement comes toward the end of the two-page memo. "U.S. armed forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity [italics added], in a manner consistent with the principles of Geneva," Bush wrote.
It logically follows, then, that if it isn't deemed appropriate or consistent with military necessity, then the principles of Geneva could be tossed, literally, to the dogs.
After Bush signed his historic order, Taliban prisoners held at Guantanamo Bay were subjected to treatment outside the Geneva Conventions. That alone is an impeachable offense, argues McGovern, since the president authorized those soldiers to break Geneva and, therefore, the federal War Crimes Act. "This is really, really important -- Americans aren't supposed to torture people," he says. "[White House counsel] Gonzales says there is a reasonable basis in law where they can escape prosecution, but there isn't a decent lawyer that agrees with that."
Indeed, more than 130 prominent attorneys -- including 12 former federal judges and eight former presidents of the American Bar Association -- sent the president a letter last month denouncing his decision and alleging that the memos show that the administration sought "to circumvent long established and universally acknowledged principles of law and common decency." It went on to say that the White House and Justice Department "ignored and misinterpreted the U.S. Constitution and laws, international treaties and rules of international law."
"I think there very well may have been laws broken," says Neal Sonnett, a Miami lawyer who's involved in the ABA.
But it's the tie to Abu Ghraib that I believe makes the president's actions impeachable. And that connection was made crystal clear last month by an independent panel formed by Rumsfeld, of all people. The panel, led by former Defense Secretary James Schlesinger, determined that unlawful interrogation tactics "migrated" from Guantanamo Bay to Iraq. Most chillingly for the president, the so-called Schlesinger Report revealed that Lt. Gen. Ricardo Sanchez specifically used Bush's February 7 directive to justify the use of dogs and other unlawful techniques at Abu Ghraib. "Interrogators and lists of techniques circulated from Guantanamo and Afghanistan to Iraq," Schlesinger wrote in the August 24 report.
There you have it. Not only did Bush break federal law but his actions led to Abu Ghraib, creating a mess that will haunt this country long after Bush has vacated the Oval Office.
Yet the media, while sporadically reporting the facts, have failed to question whether the president's actions were legal (forget about any mention of the i word). But that isn't surprising, especially considering the mainstream media's failure to call Bush on the deception used in the buildup to war. And the media have never been known to let a gravely serious scandal get in the way of an election. Remember Watergate and Iran-Contra?
Democrats are even more to blame than reporters for letting Bush get away with his arrogant and costly decision. Impeachment, after all, is a legislative function. "We have a one-party government right now," McGovern complains. "We have a Republican majority in both houses of Congress and a Republican president and a Republican judiciary. Democrats don't want to be seen as retarding something that is necessary in the war on terror. But some gutsy Democrat should go for it."
And that's all it would take, one courageous congressman -- you listening, Robert Wexler? -- to file a resolution for impeachment. Even with all the damning facts on the table, the House would vote against it, just as surely as it voted to authorize the foolhardy debacle in Iraq.
But at least the people might hear the truth.