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Should Criminalizing War Start by Pretending It’s Legal?

cover_18_Abolishing_WarThere’s a terrific new book on abolishing war called Abolishing War: Criminalizing War, Removing War Causes, Removing War as Institution. The authors are Johan Galtung, Erika Degortes, Irene Galtung, Malvin Gattinger, and Naakow Grant-Hayford. Johan Galtung, who was recently on my radio show, is brilliant as always, drawing on vast knowledge and wisdom.

As the book’s subtitle suggests, it proposes three types of approaches to eliminating war: “three approaches to have war join slavery and colonization in the dust-bin of history. No question of picking and choosing, they belong together and the more seamlessly, the better.” I couldn’t agree more, and will be drawing on the ideas in this book in the work we do at World Beyond War.

The book’s longest section is on criminalizing war, and it offers an argument I haven’t seen before. I think there’s great value in the argument, and that it can augment others. Nonetheless, I’m going to quibble with it.

Here is a book that practically quotes the arguments of the Outlawrists of the 1920s without mentioning them. It recommends, as its first recommended course of action right on the inside of the front cover, recreating Japan’s Article 9 for all states. And yet it largely ignores and bizarrely dismisses the existence of the Kellogg-Briand Pact, from which Article 9 derives (and which it practically quotes) and which already applies to most large nations.

The book’s second recommendation is to somehow build on the Universal Declaration of Human Rights’ “implicit” criminalization of war. Nowhere is it explained how an implicit criminalization of war is more useful than an explicit one. In fact, Irene Galtung rather wistfully imagines how nice it would be to have an explicit one. Nowhere is the problem mentioned that the United Nations, as “implicit” criminalizer of war, legalizes defensive and otherwise UN-authorized wars — two loopholes that have been stretched and abused to effectively allow any Western war whatsoever. This is, of course, in contrast to the Kellogg-Briand Pact, which bans all war and requires that nations settle all of their disputes entirely peacefully.

In the one instance where the book refers to the Kellogg-Briand Pact, it claims that, “this opens two huge loop-holes: use of force by non-members, and by and on non-states.” There are a number of errors in this claim. One of them is chronological. There were no laws banning war prior to Kellogg-Briand. In forbidding war between nations, the pact took war away in many cases from many major wagers of war. The pact was open to and remains open to all nations. Any nation that is not a member can simply send a letter to the U.S. State Department and instantly become a member. So, the so-called loophole for non-members is one that has been closing and could close further, but it wasn’t opened by the pact. War was legal for all states against all states prior to 1928.

What about non-states? The states that made the pact considered, and still to this day consider, war by non-states to be illegal. In fact, they consider illegal almost any action, if not the very existence, of most entities that might wage war without being a state. Within states, killing by anyone other than the state, is forbidden by national laws and by customary standards of law — as outlined, in fact, by the strategy pursued in the book by Galtung et alia — on which, more in a second. The bigger shortcoming is the failure to outlaw war by a member state against a non-state, but most such wars are also wars on the populations of states and often against the will of the governments of those states, often — indeed — against yet other states using proxies to wage war for them. A shortcoming, moreover, is not a condemnation of a useful step as counterproductive; it’s just a shortcoming requiring an additional step forward.

Clearly Galtung does not really think that criminalizing war between nations is an unhelpful step. He wants to do it singly, nation by nation, modeled on Japan’s Article 9 (which arguably has the very same shortcomings as the Kellogg-Briand Pact, plus the shortcoming of only applying to a single nation). Of course, Article 9 is under threat, and somewhat similar statements in the Constitutions of Italy and Germany and other nations are even less adhered to. But Galtung is right: bans on war in national constitutions should be strengthened, defended, and complied with. Doing so, however, presents a problem of logic in dismissing the Kellogg-Briand Pact as unhelpful. Never mind the purity of heart of its creators (its creators in fact were masses of people who brought legislators to it kicking and screaming) or the perfection of compliance by its members heretofore. If Japan launches a major war next year, Galtung will still want Article 9 upheld — or he should; I will. The Kellogg-Briand Pact is a law clearly banning all war for most major nations, including the least likely nations to agree to newly creating such a law today. Other nations could sign onto it and urge their fellow members to comply with it. Malaysia, for example, could choose to become a member of the pact and suddenly find itself a leader among its members by advocating for compliance — and for accountability and reparations and reconciliation — exactly as it would have to do with eternal vigilance if it instead used its own version of Article 9, only in this case with the major war makers of the world formally committed in clear language to compliance as well.

Because war is, in a major way, already illegal, calls to criminalize it ring in my ear a bit hollow, a bit like the rhetoric of the U.S. Congress proposing over and over again, year after year, to re-criminalize torture, rather than prosecuting torturers under long-standing laws. But the approach to criminalizing war proposed by Irene Galtung certainly has some merit. It doesn’t exactly claim that war is now legal, but it does claim that in written law it is legal, and this strikes me as dangerous.

The argument that Irene Galtung makes is not unrelated to the argument I have long made about drone murders, namely that murder is illegal under national law and customary international law. And it is nearly identical to the argument that Marjorie Cohn and other lawyers make for the illegality of torture under customary international law — only applied to war rather than torture.

Irene Galtung’s idea is that customary international law is higher than written international law or written national law. The problem, as she readily admits, is that — being unwritten — it is highly controversial. Still, what’s needed is an act of interpretation not entirely unlike the interpretation of a written law. Galtung claims that all national constitutions provide a right to life, and that the right to use deadly force in self-defense exists only when such use is necessary for self-defense. War is deadly force, simply on a larger scale, and it is never necessary, as there are always alternatives. Therefore, logically, even if you’d be hard-pressed to get many well-paid lawyers or human rights organizations or governments or judges to admit it, war is a crime.

This argument (which I have, of course, only sketched very roughly) is smart, logical, and educationally useful. I plan to repeat it often. But what appeals to “customary law” come down to are attempts to radically change legal custom on the authority of current legal custom (reinterpreted). That this couldn’t be helped by also pointing to existing laws like the Kellogg-Briand Pact is difficult for me to imagine. In fact, later in the book the authors cite the UN’s Declaration of the Right of the Peoples to Peace. That we have a right to peace means that we have a right to the absence of war. The Declaration states that it:

“Emphasizes that ensuring the exercise of the right of peoples to peace demands that the policies of States be directed towards the elimination of the threat of war, particularly nuclear war, the renunciation of the use of force in international relations and the settlement of international disputes by peaceful means on the basis of the Charter of the United Nations.”

The weakness is in those last few words, as the Charter contradicts itself and permits war. The Kellogg-Briand Pact lacks that particular weakness. I would love someday to hear a clear statement from Johan Galtung on what weaknesses he thinks its carries that justify its dismissal from public awareness and use.

You Should Watch Making of a Murderer

There's a 10-hour documentary on Netflix with more to teach us than all the combined episodes of Star Wars. (Yes, it's nice to see a storm trooper refuse to fight, but only until he gleefully joins in the killing for the other side, with all his victims still in masks so that we, the executioner audience, don't have to see faces die.)

Making of a Murderer is a hugely important film, and it is in fact quite suspenseful. And I am about to SPOIL the plot for you. So please STOP READING until you've watched the film if you want it to include suspense. (To give you time to watch something so lengthy, I'll also spoil the rest of the NCAA basketball season and tournament for you. Virginia wins.)

HAVE YOU STOPPED READING IF YOU DON'T WANT THE PLOT SPOILED?

Good.

I'm going to assume you've seen Making of a Murderer or are not concerned about the element of suspense.

The reason I find a need to write about this is because it exposes a silent epidemic. If child abuse or rape or child labor or some other horror were never talked about, an article or book exposing an unknown epidemic would be quite valuable. And, historically, a video documenting such a thing would be remarkable.

This past year, videos filmed primarily on telephones have exposed the long-pre-existing epidemic of U.S. police murdering unarmed people. We still don't know the full size of that epidemic. It will of course pale beside something like cancer, while dwarfing other horrors about which we are trained to obsess, such as Islamic terrorism.

Making of a Murderer exposes something else that police do. But this is a horror that cannot be documented in a 5-minute video. It takes 10 hours. What police, together with prosecutors do, on a significant scale but a scale we have not yet tried to measure, is this: they frame innocent people and send them to prison.

The psychology involved is tantalizing but a bit of a distraction. When a police officer shoots an unarmed kid, we can ask whether the act grew out of sadism or racism or fear or carelessness. The fact is it grew out of impunity. When police and prosecutors -- and judges and juries -- railroad innocent people to prison, we can ask whether they've acted out of malice, ignorance, fear, or recklessness. The fact is that they've acted out of a sense of untouchable power.

That every level of law enforcement is twisted by racism is well documented in The New Jim Crow, among other places. We know that ugly and ignorant views regularly influence what police and prosecutors do. But Making of a Murderer is a true story of white people framing innocent white people with crimes. The victims of this frame-up are poor, poorly educated, and of markedly low intelligence and social skills. Various prejudices may have been at work. But primarily what's revealed in the documentary is the power of the presumption of guilt that comes with all criminal accusations, combined with the power of the presumption of innocence that in our culture belongs to the police, and only to the police.

During the explosive growth of the U.S. prison system, most people have gone to prison under plea bargains. That many innocent people have falsely pled guilty to plea bargains in order to avoid the risk of a higher penalty has been well documented, although we have no idea of the true scale of this phenomenon. Among those who go to trial in the United States, we know also that a significant number of innocents are found guilty. One reason we know this is that in a tiny fraction of cases there is DNA evidence to be tested that can prove innocence, and -- particularly during the 1980s -- there have been cases in which that evidence was maintained but not tested. Later testing has resulted in numerous exonerations.

Those lucky cases in which DNA evidence was available to free an innocent were not unlike most other cases in the manner in which a false guilty verdict was arrived at. As I've noted before, Brandon Garrett's Convicting the Innocent: Where Criminal Prosecutions Go Wrong examines the prosecutions of the first 250 people exonerated by DNA testing. Of the 250, 76% were misidentified by an eyewitness -- most of the witnesses having been led to that act by police and/or prosecutor, some of them badgered and threatened, others merely manipulated. Invalid forensic science expertise contributed to 61% of the convictions, much of it willfully manipulated, some fraction perhaps attributable to well-intentioned but negligent incompetence. Informants, mostly jailhouse informants, and most of them manipulated and bribed by police or prosecutor, helped out in 21% of the trials. In 16% of the cases, the accused supposedly confessed to the crime, but these "confessions" tended to be the result of police intimidation, manipulation, brutality, and simple lying. Garrett fears that similar problems infect the U.S. justice system as a whole. I have no doubt that they do.

In Making of a Murderer we see police produce a false confession, witnesses provide false testimony, the FBI provide false scientific evidence, and -- in a rape case toward the beginning of the story -- an eyewitness led by police into misidentifying a rapist. That earlier crime puts the protagonist in prison for 18 years before a DNA exoneration. Once free, he files a suit for $36 million that threatens to expose numerous crimes by the police who framed him for rape. But at that moment, they frame him for murder.

One of the police and prosecutors' main tools is the media. They produce a false confession by their victim's 16-year-old nephew that proves too ludicrous to be used in court. They never call him as a witness against his uncle. But the jury pool has already been overwhelmingly contaminated by the dramatic tale fed to the media. Many years ago, I reported on the production by the Culpeper, Virginia, police of a false confession by a low-IQ man named Earl Washington. The transcript of the confession was absurd. When asked a straight-forward question, Washington would guess, and always guess wrong. He didn't know any of the facts of the case. But the questioner would then feed him the facts and ask "Isn't that right?" and Washington, aiming to please, would agree. Some states have since required the videotaping of interrogations and confessions.

In the case of Making of a Murderer there is enough videotape of the questioning of the 16-year-old to make crystal-clear what happened. And yet it didn't do a damn bit of good. The kid had no money and therefore no expert defense. His lawyers and his jury blew it. But his uncle had two huge advantages. First he had been exonerated for an earlier crime. The fact that the police were out to get him was widely recognized. The local police department was forbidden to take part in the investigation of the new crime, and took part anyway, and happened to find key evidence. Second, Steve Avery -- that's the name of this innocent man -- settled his $36 million suit for $400,000 and used that money to hire excellent attorneys.

Now, having excellent attorneys is very rare but far from unheard of. Wealthy people have them all the time. But having attorneys who actually believe you're innocent is virtually unheard of. And having attorneys willing to argue that the police framed you is the most extreme rarity. Avery had all of these things, and it still was not enough.

What can we do? Sign this petition to free Steve Avery and his nephew Brendan Dassey.

What can we do about the thousands who could not afford to go to trial, could not afford a good lawyer, could not devise any means to persuade their good lawyer to believe them, and/or could not convince their good layer who believed them to risk his or her career by taking on the police department?

I think we have to work to encourage the production of films that will make the phenomenon of frame-ups as well known as the phenomenon of police murder. It's either that or get people to start reading.

Amnesty International Once Again Refuses to Oppose War

In an online discussion I asked Salil Shetty, Secretary General of Amnesty International, a fairly straightforward question:

"Will Amnesty International recognize the UN Charter and the Kellogg Briand Pact and oppose war and militarism and military spending? Admirable as it is to go after many of the symptoms of militarism, your avoidance of addressing the central problem seems bizarre. The idea that you can more credibly offer opinions on the legality of constituent elements of a crime if you avoid acknowledging the criminality of the whole seems wrong. Your acceptance of drone murders as possibly legal if they are part of wars immorally and, again, bizarrely avoids the blatant illegality of the wars themselves."

Shetty replied without so much as hinting at whether or not Amnesty International would recognize the UN Charter or the Kellogg Briand Pact. In fairness, probably eight people on earth recognize the Kellogg Briand Pact, but the UN Charter is almost universally considered worthy of at least pretended respect and manipulation. And Shetty's last job before this one was for the United Nations. He did not address in any way my suggestion that many human rights abuses are symptoms of militarism. He did not explain how Amnesty can have more credibility speaking on the illegality of war's constituent parts by avoiding speaking to the illegality of war itself (a common contention of his colleagues when I've questioned them). I pointed fairly directly, in the limited number of characters permitted for the above question, to Amnesty's recent report on drones, but rather than answering my question about it, Shetty just pointed out the report's existence. Here is his full "response" to the question above:

"As a human rights organization, Amnesty International's main goal will always be to take that course of action which practically does the most to ensure protection for human rights and respect for international law. We strongly condemn opportunities which have been missed to take effective measures to protect human rights and civilians. We treat the fundamental human right to life with utmost importance -- hence the importance and status we give to our global death penalty campaign. We also believe that governments must not be allowed to use 'security' as an excuse to carry out human rights violations against their citizens. We know, for example, that the humanitarian and human rights catastrophe in Syria did not develop overnight. For the last few years, the states involved and the international community as a whole have manifestly failed to take effective action to stem the crisis, protect civilians, and hold perpetrators of crimes against humanity and war crimes to account. For several years now, Amnesty International's calls for targeted sanctions, an arms embargo and a referral of the situation in Syria to the Prosecutor of the International Criminal Court have gone largely unheeded despite the mounting toll on civilians. On drones: we find the use of drone aircraft deeply troubling, and we have published reports on the terrible suffering they have caused, for example in Pakistan, where the title speaks for itself 'Pakistan: Will I be next? US drone strikes in Pakistan'. amnesty.org/en/documents/...13/en/  The current status quo is absolutely unacceptable, as is the handwashing of the US administration on this theme."

Needless to say, Amnesty's proposal to refer "the situation in Syria" to the ICC is not actually anything of the sort. You can't refer a situation to the ICC. You refer an individual to the ICC. In this case, the individual whom Amnesty wants prosecuted is the individual whom the United States wants overthrown: Bashar al Assad. In other words, in replying to a demand to start opposing war, Shetty offers an example of one of the ways in which his and other human rights groups commonly facilitate wars in places like Syria and Libya, namely by giving war the aura of law enforcement by demanding international accountability for the crimes of one party, the party targeted by the West.

This doesn't mean Amnesty International is pro-war. This doesn't mean Amnesty International does more harm than good. An arms embargo is exactly what's needed. It does mean that Amnesty International falls far short of the role of good global citizen and maintains a radically different relationship to war than many of its supporters imagine.

Video and Audio of Pilots Who Bombed Hospital

There is video and audio. It exists. The Pentagon says it's critically important. Congress has asked for it and been refused. WikiLeaks is offering $50,000 to the next brave soul willing to be punished for a good deed in the manner of Chelsea Manning, Thomas Drake, Edward Snowden, and so many others. You can petition the White House to hand it over here.

The entire world thinks the U.S. military intentionally attacked a hospital because it considered some of the patients enemies, didn't give a damn about the others, and has zero respect for the rule of law in the course of waging an illegal war. Even Congress members think this. All the Pentagon would have to do to exonerate itself would be to hand over the audio and video of the pilots talking with each other and with their co-conspirators on the ground during the commission of the crime -- that is, if there is something exculpatory on the tapes, such as, "Hey, John, you're sure they evacuated all the patients last week, right?"

All Congress would have to do to settle the matter would be to take the following steps one-at-a-time until one of them succeeds: publicly demand the recordings; send a subpoena for the recordings and the appearance of the Secretary of "Defense" from any committee or subcommittee in either house; exercise the long dormant power of inherent contempt by locking up said Secretary until he complies; open impeachment hearings against both the same Secretary and his Commander in Chief; impeach them; try them; convict them. A serious threat of this series of steps would make most or all of the steps unnecessary.

Since the Pentagon won't act and Congress won't act and the President won't act (except by apologizing for having attacked a location containing white people with access to means of communication), and since we have numerous similar past incidents to base our analysis on, we are left to assume that it is highly unlikely that the hidden recordings include any exculpatory comments, but more likely conversation resembling that recorded in the collateral murder video ("Well it's their fault for bringing their kids into a battle.")

There isn't actually any question that the U.S. military intentionally targeted what it knew to be a hospital. The only mystery is really how colorful, blood-thirsty, and racist the language was in the cockpit. Left in the dark, we will tend to assume the worst, since past revelations have usually measured up to that standard.

For those of you working to compel police officers in the United States to wear body cameras, it's worth noting that the U.S. military already has them. The planes record their acts of murder. Even the unmanned planes, the drones, record video of their victims before, during, and after murdering them. These videos are not turned over to any grand juries or legislators or the people of the "democracy" for which so many people and places are being blown into little bits.

Law professors that measure up to the standards of Congressional hearings on kill lists never seem to ask for the videos; they always ask for the legal memos that make the drone murders around the world part of a war and therefore acceptable. Because in wars, they imply, all is fair. Doctors Without Borders, on the other hand, declares that even in wars there are rules. Actually, in life there are rules, and one of them is that war is a crime. It's a crime under the U.N. Charter and under the Kellogg-Briand Pact, and when one mass-murder out of millions makes the news, we ought to seize that opportunity to draw attention, outrage, and criminal prosecution to all the others.

I don't want the video and audio recordings of the hospital bombing. I want the video and audio recordings of every bombing of the past 14 years. I want Youtube and Facebook and Twitter full, not just of racist cops murdering black men for walking or chewing gum, but also of racist pilots (and drone "pilots") murdering dark-skinned men, women, and children for living in the wrong countries. Exposing that material would be a healing act beyond national prejudice and truly worthy of honoring Doctors Without Borders.

Where there were massacres there are now power plants

In the United States it's hard to imagine admiring an attorney general. The words call to mind people like Eric Holder, Michael Mukasey, Alberto Gonzales, John Ashcroft, Janet Reno, and Edwin Meese. There were those who fantasized that Barack Obama would not prevent an attorney general from prosecuting top officials for torture, but the idea of a U.S. attorney general prosecuting a U.S. president for war/genocide doesn't even enter the realm of fantasy (in part, because Americans don't even think of what the U.S. military does in the Middle East in those terms).

For a lesson in daring to imagine equality before the law, we can turn our eyes toward Guatemala. Here's a country suffering under the Monroe Doctrine since the dawn of time, a place where the United States engaged in human experimentation giving syphilis to unwitting victims during the time that U.S. lawyers were prosecuting Nazis in Nuremberg. Guatemala had a relatively decent government in 1954 when the CIA overthrew it. U.S. destruction has been unremitting in Guatemala, with the U.S. government backing dictators, killers, and torturers, including during the 1980s and 1990s, a period from which Guatemala is still trying to recover.

A new film called Burden of Peace tells the story of Claudia Paz y Paz, Attorney General of Guatemala from December 9, 2010 to May 17, 2014. Paz y Paz had a poster of Robert Kennedy on her wall during her time as attorney general, herself finding something admirable in a U.S. holder of that same office. Kennedy's actual record was quite mixed, of course. Paz y Paz became attorney general following a long period of unaccountable crime, understood impunity, and rampant corruption.

"Where there were massacres there are now power plants," says one voice in the film. "Where there were massacres there are now mines." People had been killed in large numbers for money, and those responsible would be protected from prosecution as well.

A 1996 peace agreement did not end violence in Guatemala. The government remained corrupt, with killers still holding positions of power.

It's interesting to imagine what would happen if a true reformer were made president or attorney general in the United States, while their staff and colleagues and Congress and the courts and the system of bribery and lobbying remained unchanged. It will be fun to watch Jeremy Corbyn try to take on the British Parliament. We have an example of how this works from Guatemala.

In Burden of Peace we see Claudia Paz y Paz meeting with an office of attorneys in a northen province that had solved zero murder cases and prosecuted almost no one. She insists on change. And she gets it. For over three years she achieves big increases in prosecutions and convictions, including of gang members, including of police officers.

This law-and-order heroism should appeal to Americans if they can overlook the fact that the United States helped cause the problem. I have a mixed reaction. I can't be totally thrilled watching a SWAT team arrest gang members. This is not truth and reconciliation, but force and degradation. And yet I recognize that in a state of lawless violence it will be difficult to address other problems and solutions unless the violence is addressed first. Paz y Paz, in fact, reduced crime rates as solved murdered cases increased from 5% to 30%.

She had previously worked on the first big investigation of crimes committed during the civil war in Guatemala, which accused top military and political leaders, inlcuding the head of state, of genocide. Bishop Juan José Gerardi presented the report to the public and was murdered the next day. You see a big crowd taking part in his funeral in footage included in the film.

In her second year as AG, Paz y Paz reopened the investigation of war crimes. Soon she would issue warrants for the arrest of Oscar Mejia Victores, former Secretary of "Defense," for genocide. But because of his age and health, he was not tried.

Paz y Paz continued to increase law enforcement, as Otto Perez Molina, a former military official, was elected president. Business elites wanted Paz y Paz not to prosecute military members. In fact they wanted her removed from office. But she held a four-year term and refused to leave early.

During the dictatorship of Rios Montt, Mayans had been murdered in large numbers. He was not held accountable. He enjoyed immunity as president of Congress until 2012. Then Paz y Paz prosecuted him for genocide. In Burden of Peace we see the trial, including survivors recounting the horrors of soldiers killing and raping, as the accused sits and listens.

His lawyers declare the trial illegal and rise and leave, leaving him sitting there alone. The trial is suspended, then reconvened with new lawyers. The elderly Montt is convicted and sentenced to decades in prison. We see the people of Guatemala celebrating.

And then a higher court overturns the sentence, and people protest to no avail. But Montt spends only one day in prison, and the rightwingers acquire a taste for blood. They pursue Paz y Paz. Seeking to block her from completing her fourth year in office, they charge her with abuse of power (although they publicly focus on accusing her of being a Marxist). The same court that overturned the sentence for Montt removes Paz y Paz from office.

She appeals, and we see a crowd cheering her at the appeal. She tries to run for reelection, and a court denies her that right. It's over. She is out of office, and we see her staff as well as the public cheer for her, tearfully, as she departs, fleeing the country with her husband and son because she will no longer have security guards.

This is a true story that ends in May of 2014, crying out for a sequel. But earlier this month, Molina was forced to resign as president, after prosecutors accused him of running a scheme to defraud the customs service of millions of dollars, and Congress stripped him of immunity from prosecution. This was a first in Central America, as was much of what Claudia Paz y Paz did. It begins to appear that she was part of a change in the culture of Guatemalan governance, that the idea of holding the powerful to account has actually caught on.

Perhaps she will return to Guatemala one day. Perhaps peace will return to Guatemala one day.

Imagine if the United States were to leave Guatemala alone and try following its example in the U.S. Justice Department.

Talk Nation Radio: Inder Comar on Prosecuting Bush for War

https://soundcloud.com/davidcnswanson/talk-nation-radio-inder-comar-on-prosecuting-bush-for-war

D. Inder Comar is legal director at Comar Law, a boutique law firm in San Francisco. We discuss the case of Saleh v. Bush in which he is lead counsel, currently in the 9th Circuit, seeking to hold George W. Bush, Richard Cheney, and others responsible under the laws of Nuremberg for the invasion of Iraq in 2003. See: http://witnessiraq.com

Total run time: 29:00

Host: David Swanson.
Producer: David Swanson.
Music by Duke Ellington.

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Human Experimentation: a CIA Habit

The Guardian on Monday made public a CIA document allowing the agency's director to "approve, modify, or disapprove all proposals pertaining to human subject research."

Human what?

At Guantanamo, the CIA gave huge doses of the terror-inducing drug mefloquine to prisoners without their consent, as well as the supposed truth serum scopolamine. Former Guantanamo guard Joseph Hickman has documented the CIA's torturing people, sometimes to death, and can find no explanation other than research:

"[Why] were men of little or no value kept under these conditions, and even repeatedly interrogated, months or years after they'd been taken into custody? Even if they'd had any intelligence when they came in, what relevance would it have years later? . . . One answer seemed to lie in the description that Major Generals [Michael] Dunlavey and [Geoffrey] Miller both applied to Gitmo. They called it 'America's battle lab.'"

Non-consensual experimentation on institutionalized children and adults was common in the United States before, during, and even more so after the U.S. and its allies prosecuted Nazis for the practice in 1947, sentencing many to prison and seven to be hanged. The tribunal created the Nuremberg Code, standards for medical practice that were immediately ignored back home. Some American doctors considered it "a good code for barbarians."

The code begins: "Required is the voluntary, well-informed, understanding consent of the human subject in a full legal capacity." A similar requirement is included in the CIA's rules, but has not been followed, even as doctors have assisted with such torture techniques as waterboarding.

Thus far, the United States has never really accepted the Nuremberg Code. While the code was being created, the U.S. was giving people syphilis in Guatemala. It did the same at Tuskegee. Also during the Nuremberg trial, children at the Pennhurst school in southeastern Pennsylvania were given hepatitis-laced feces to eat.

Other sites of experimentation scandals have included the Jewish Chronic Disease Hospital in Brooklyn, the Willowbrook State School on Staten Island, and Holmesburg Prison in Philadelphia. And, of course, the CIA's Project MKUltra (1953-1973) was a smorgasbord of human experimentation. Forced sterilizations of women in California prisons have not ended. Torture by Chicago police has for the first time just resulted in compensation for victims.

If we are, at long last, to put such contemptible behavior behind us, it will require breaking some bad habits.

Congress has busily re-banned torture a number of times in recent years. Now it must drop that charade and instead demand that the Attorney General enforce the anti-torture statute, which made torture a felony before George W. Bush ever became president.

It's good of John Oliver to denounce torture. And he's right to go after the lies told about torture in popular entertainment. But he's also spreading the false idea that it's legal. "We checked," he says, reporting that his crack team of investigators discovered that the only ban on torture is found in an executive order written by President Obama. This is dangerous nonsense. The U.S. was a party to the Anti-Torture Convention and had made torture a felony under the anti-torture statute and the war-crimes statute before George W. Bush ever became president.

Since then, Congress has repeatedly "banned" torture. But, just as the U.N. Charter's ban on war actually legalized certain wars, purporting to replace the total ban in the Kellogg-Briand Pact with a partial ban, these Congressional efforts (such as the Military Commissions Act of 2006) have actually legalized certain cases of torture, replacing (at least in everyone's mind) the total ban already existing in the U.S. Code and in a treaty to which the U.S. is party.

The latest "ban" proposal from Senator McCain and friends, would create exceptions in the form of those in the Army Field Manual, and advocates maintain that step number two would be to reform that manual. But if you skip both steps and acknowledge the existence of the anti-torture statute in the U.S. Code, you're done. The proper task is to press for its enforcement.

Oliver's mistake, like virtually everyone else's, is based on two myths. One, torture began with Bush. Two, torture ended with Bush. On the contrary, torture has been around in the United States and elsewhere for a very long time. So has the practice of banning it. Torture is prohibited by the Eighth Amendment to the U.S. Constitution, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, as well as the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. In fact, under international law, torture can never be legalized and is always banned.

Myth number two is also wrong. Torture has not ended and won't as long as it's not punished.

An attorney general can be questioned and threatened with impeachment until our laws are enforced. A new website created Monday let's you email Congress to demand that it do just that.

Pentagon Admits that War is Illegal

The Pentagon has just published 1,204 pages on how it thinks you can behave legally during a war. Looking through this "Law of War Manual" at various hot topics, one finds some atrocities excused as acceptable (cluster bombs, nuclear bombs) and others rejected as completely disallowed (torture) even when in reality they are routinely engaged in.

Beginning to wonder what the point is of writing out such a lengthy description of laws when someone could just read the laws themselves in less time, I notice that nowhere does this document strengthen any actual law, while in many places it weakens them. It picks and chooses which laws to mention and which to leave out or marginalize in footnotes. It stresses the supposed right to ignore any international law that a nation objected to while that law was being created. It incorporates into the whole scheme the idea of launching wars not only against nations, but against any other entities, and of launching wars in nations with those nations' approval. This paper is a sort of enormous signing statement appended retroactively to all existing laws, indicating which will be adhered to and which disregarded, while attempting to advertise a pattern of legal behavior by the U.S. military as a public relations correction to people's awareness of the actual pattern of lawlessness.

But I think the place to start is with the pretense that war itself is legal. This is what permits three-quarters of this document to exist, devoted as those sections are to proper legal conduct during a war. The Pentagon says that one must fight wars legally whether or not the wars are legal. That is, whether or not you have some legal justification for attacking a country, you must nonetheless meet completely vague standards of proportionality and so forth during the course of the attack -- or of the occupation. There's a large section on the legal conduct of occupations that breezes right past any question of the illegality of maintaining the occupation at all. Here's a typical passage about legal "proportionality": "Attacks using nuclear weapons must not be conducted when the expected incidental harm to civilians is excessive compared to the military advantage expected to be gained." How much "harm" to civilians from nuclear weapons would be "excessive"? The so-called law, once you accept war and then try to regulate its conduct, is in the eye of the sociopathic beholder; there's nothing empirical or enforceable about it.

The short section of this manual on what makes wars themselves legal is of particular interest, I think, because it -- in fact -- ends up admitting that they are not. It doesn't intend to make this point, however. In fact, it goes to every effort to suggest that legality is something murky, almost something aesthetic, laying out a number of "principles" to consider in deciding whether to begin a mass slaughter of human beings. Is a "competent authority" making the decision? Is the action "proportionate"? Have all peaceful alternatives been exhausted? That last one, actually, would ban every war the United States has ever launched, including all current ones, if the facts of each situation were dealt with honestly -- but when does that ever happen?

Eventually, the manual comes around to mentioning a law: the U.N. Charter. It gives this tiny part of its text the heading "Prohibition on Certain Uses of Force," but quotes the Charter: "All Members shall 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 Nations." The "purposes" in Chapter I of the Charter are focused on the need "to maintain international peace."

And the manual notes: "Numerous other treaties also reflect these prohibitions on the threat or use of force." There's a footnote that reads as follows:

"See, e.g. , Inter-American Treaty of Reciprocal Assistance, art. 1, Sept. 2, 1947, 62 STAT.1681,1700 ('The High Contracting Parties formally condemn war and undertake in their international relations not to resort to the threat or the use of force in any manner inconsistent with the provisions of the Charter of the United Nations or of this Treaty.'); Treaty Providing for the Renunciation of War as an Instrument of National Policy, art. 1, Aug. 27, 1928, 46 STAT.2343, 2345-46 ('The High Contracting Parties solemnly declare in the names of their respective peoples that they 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.')."

This footnote is the key to unraveling the entire 1,204 pages. It fudges its contents by lumping together two treaties and including only half of the key language of the second one. The first treaty it cites has holes in it, just like the U.N. Charter, and by virtue of reference to the U.N. Charter. The second treaty, the "Treaty Providing for the Renunciation of War as an Instrument of National Policy" -- more commonly known as the Kellogg-Briand Pact -- does not. Article I of the Peace Pact of Paris, the Pact of Kellogg and Briand, is quoted above. But Article II reads: "The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means."

This is a treaty, let us note, that remains in force, is listed as such on the U.S. State Department's website, and is acknowledged as such, as just noted, in the Pentagon's brand-new murder manual. It is a treaty that includes some very difficult-to-fudge words: "all" (disputes or conflicts), "whatever" (nature), "of whatever" (origin), "never" (be sought except by pacific means). "Pacific means" is not pacific ends. That is, one cannot claim to be pursuing peace through war and be in compliance with the Kellogg-Briand Pact. One is required to pursue whatever one is pursuing through peace. The Pentagon offers no justification for violating this treaty. None. It simply buries it in a footnote and omits half of its content. But that's an evasion, not a justification. The ban, it is worth repeating, is absolute. A war on Afghanistan is a non-pacific means. A murder by missile from a drone is a non-pacific means; one need not dive into obscurantist twaddle about how many drone strikes fit onto the head of a war.

A truly desperate debater could claim that a drone murder in Yemen is not a dispute between the United States and Yemen but between the two aligned governments and another group or individual. But this line of justification runs up against the most common line of argument produced in the White House and Justice Department, namely that drone murders are not murder because they are war. Once you claim that Kellogg-Briand allows wars on non-nations, you not only violate the entire purpose, intent, and past use of Kellogg-Briand (including at Nuremberg; it's not as if the Jews were a nation), but you legalize murder by any nation or non-nation (or local police department) that declares its murdering to be warmaking. It's worth remembering that the people of Yemen never approved U.S. drone murders in their country, and in fact were lied to for a long time by their own government that it was in fact their own government and not the U.S. doing it. The Yemeni government, in the person of a dictator, later fled to Saudi Arabia and asked Saudi Arabia to attack the people of Yemen with more U.S.-made weaponry. Can a dictator who has fled a country still legalize a war just by uttering the word "war"? I contend that an interpretation of a law that eliminates the very possibility of lawfulness is no interpretation at all.

So, understanding Kellogg-Briand as it was written, what good is it? Well, elsewhere, this same manual says, "[T]he fact that a State's domestic law does not provide for a penalty with respect to a violation of international law does not relieve a person from responsibility for that act under international law." In other words, the fact that violation of the Kellogg-Briand Pact has not been made punishable under U.S. domestic law does nothing to exonerate an American who violates it, any American, that is, who launches or participates in a war. This was the clear intent of those who created this law. Yes, some, but not all, of the U.S. senators who ratified it, expressed their belief that self-defense would still justify warfare, but they did not add that or anything else as an official reservation to the treaty upon ratification -- false rumors to that effect notwithstanding.

Having skipped past the heart of the matter -- the complete ban on war -- in footnote #208, the Pentagon's manual hurries on in this manner:

"The resort to force must have a legal basis in order not to violate these prohibitions. The legality of the use of force must be assessed in light of the particular facts and circumstances at issue."

But something that is banned cannot have a legal basis that allows it to not violate the ban. A further footnote (#209) adds that in the most egregious cases of aggressive wars, one should ignore legal standards in light of the uniqueness of the situation:

"See, e.g., William H. Taft IV, Legal Adviser, Department of State, & Todd F. Buchwald, Assistant Legal Adviser for Political-Military Affairs, Department of State, Preemption, Iraq, and International Law, 97 AJIL 557 (2003) ('In the end, each use of force must find legitimacy in the facts and circumstances that the state believes have made it necessary. Each should be judged not on abstract concepts, but on the particular events that gave rise to it.'); Daniel Webster, Letter to Mr. Fox, Apr. 24, 1841, reprinted in DANIEL WEBSTER,THE DIPLOMATIC AND OFFICIAL PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 105 (1848)('It is admitted that a just right of self-defense attaches always to nations as well as to individuals, and is equally necessary for the preservation of both. But the extent of this right is a question to be judged of by the circumstances of each particular case;')."

The manual goes on to list lots of rationales for launching wars. But the fact that legally there can be none has already been acknowledged. What we're dealing with here is a matter of culture, not of written law. The U.S. public has been so propagandized that the very idea of abolishing war is unthinkable, and so the fact that it has legally been done cannot be thought. And so it does not have to be refuted.

But what if we were to take the radical step of obeying the law as written? What, then, should be done? Well, according to this same manual,

"Each member of the armed services has a duty to: (1) comply with the law of war in good faith; and (2) refuse to comply with clearly illegal orders to commit violations of the law of war."

The manual quickly muddies up that legal clarity with this:

"[T]he obligation of individual service members to comply with the law of war in good faith is met when service members: (1) perform their duties as they have been trained and directed; and (2) apply the training on the law of war that they have received."

In other words, you can refuse to comply with unlawful orders by complying with whatever you are ordered. But the clarity of the actual law, once stated, can't really be undone. Nor can this, also from the new manual:

"State responsibility for violations of the law of war results in obligations to compensate other States for violations. . . . A State that is responsible for an internationally wrongful act is under an obligation to make full reparation for the injury caused by that act."

Compensating Iraq, Afghanistan, Libya, Pakistan, Yemen, Somalia, etc., will not be cheap, but it is required by law and it will cost less than continuing the crime of war-making and preparations for more of the same.

Reading further in the manual, we find that, in fact, the Pentagon believes people like George W. Bush and Barack Obama, and all of their subordinates, can be prosecuted for the wars they've launched under U.S. domestic law:

"The War Crimes Act authorizes the prosecution of individuals for certain war crimes if the victim or the perpetrator is either a U.S. national or a member of the U.S. Armed Forces, whether inside or outside the United States. Under this statute, an individual may be prosecuted for conduct: . . . prohibited by Article . . . 25 . . . of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907 . . . "

Here's Article 25:

"The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited."

How many of the houses that U.S. missiles and bombs (from drones and otherwise) have been hitting have been defended? Not all, certainly. Not most, I suspect.

But this is a silly way to go after a part of the overarching crime of war, even if it is the largest part of that crime. When the U.S. prosecuted Nazis at the end of World War II, it did so on the basis of the Kellogg-Briand Pact and an understanding that each smaller component action was criminal because the whole of the war (on the losing side) was criminal. Robert Jackson and others expressed the hypocritical sentiment at the time that the U.S. should fall under the same standard in future years.

What more prevalent tradition is there in the United States than striving to live up to past hypocritical but eloquent statements on justice and equality? Perhaps we should try that in the case of the greatest evil there is.

Talk Nation Radio: Rebecca Gordon on Mainstreaming Torture

https://soundcloud.com/davidcnswanson/talk-nation-radio-rebecca-gordon-on-mainstreaming-torture

A new book called Mainstreaming Torture argues that torture has been with us for a long time and remains with us and has been mainstreamed and increased in acceptability in the years since Bush and Cheney left office.  We speak with the author, Rebecca Gordon. She teaches in the Philosophy department at the University of San Francisco. Previous publications include Letters From Nicaragua  and Cruel and Usual: How Welfare “Reform” Punishes Poor People. She is an editor of WarTimes/Tiempo de guerras, which seeks to bring a race, class, and gender perspective to issues of war and peace.

Total run time: 29:00

Host: David Swanson.
Producer: David Swanson.
Music by Duke Ellington.

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