Monday, April 20, 2009

Update Addendum To A Call For Truth With Justice And Not The Acceptance Of A Nazi Argument For Exoneration From War Crimes Prosecution.

Update Addendum To A Call For Truth With Justice And Not The Acceptance Of A Nazi Argument For Exoneration From War Crimes Prosecution.


“Each member of the US military took an oath to preserve, protect and defend the Constitution of the United States. Each also took a pledge to follow the legal orders of the Commander in Chief. Under the Constitution, no soldier is required to follow an illegal order. But that's what many Americans have been doing now for quite some time. And this is not confined to our military personnel, but also to members of the FBI, the CIA, the NSA (the folks who have been carrying out those illegal wire taps), outsourced contractors, the media, and perhaps most egregious of all— elected members of Congress, who for all intents and purposes, put their conscience and oversight responsibilities on hold as they get their marching orders from the Oval Office or from party leaders.”

It Is The Final Finding Of The Court Of Impeachment And War Crimes That All Members Of The Bush Administration Charged Are Not Above The Law, Should Be Provided No Protection Of Amnesty, Immunity Or Pardon, Should Be Investigated, Indicted, Brought To Trial In All Appropriate  Jurisdictions, And Pending Verdicts, Should be Imprisoned Or Executed As Provided For In International Law Where Applicable.


The Decision Is Not Pleasant, Convenient Or Pragmatic; It Is Justice!




Clarity and candor dictate; integrity requires the observation that: the Constitutional crisis we face as a nation is of long standing and has a long evolutionary trail.  The Constitution has been under assault from the very moment that it was ratified and “crisis’s in our national experience” have always served by “the necessity of the moment” in providing opportunity for legal excess, viewed as temporary and acceptable, seldom if ever, has that which has been legislated or litigated in such instances been corrected or expunged from the growing archive of collective governmental powers.   Like the clutter and trash files that can accumulate on a computer the process has moved forward without a simple mechanism to delete them and their impact is of severe import and impact.

The 9/11 experience, however, created yet again another “opportunity” for Constitutional assault in the name of expedient necessity. I say “opportunity” because both events and documentation reveal a pattern of Constitutional attack that has been not only, and perhaps only, necessary, but an opportunity that within the Bush Administration and its Neocon/Corporate sponsors was deliberately manipulated to accelerate the assault on the integrity of, and validity of that “Old Piece Of Paper”.

The rule of law, as we have come to expect it to apply, ended in a regime-minded administration that has chosen to rule by fiat, arbitrarily act, decree, order, direct, dismiss with signing statements any legitimate impediment to their will and wishes, the execution of their whims without regard for the laws of this nation, the international community and any moral principles, which, with the greatest of hypocrisy they have repeatedly professed to cherish; they have created “America…The Lawless State” a nation dictated to by a fear-invoking choking Fascist modelproducing a true Imperial Presidency ,a  Vice Presidential parallel shadow government and a virulent contagious infection of popular complacency, resignation, apathy, and enabling citizen impotence. We are seen as a nation devoid of any Moral Compass.

Cowering in fear, massaged into acceptance, as fact, that principles cannot be advanced for fear of reprisal and the socially isolating labels of “unpatriotic” and “treasonable”, ostracized from any meaningful change agent role by media accomplice silence and demonizing tags of dismissive derision, the Peace and Impeachment Movements have been relegated to the descriptor of “That bunch of ragged old weekend street theater players”, unable to muster the massive street upheaval called for to bring the Bush Bunch to justice; the movements languish near demise their pleas been heard only as whimpering.  

Even recent memo revelations and higher level testimony is under cut by the now inherent belief and climate of acquiescence, that nothing substantive will be accomplished as regards true accountability; that thought much of the truth may be now revealed, the guilty will be shielded in non-prosecution by variances of amnesty, immunity and defacto pardon…that we shall be given “Truth Without Consequences” and the world view of a United States that holds itself and its leaders to be above the law, exemplary by ego  exclusion and exemption shall be only fortified. Though the words of President Obama may seem to hold out the balm of relief; deeds will ultimately determine the attitude and judgment of the world, and yes the judgments of both the citizens of this nation and the pages of history.

A judgment that determines that the American people had neither the courage of convictions nor the will for the necessary confrontation for change and justice exemplified by the America of the 60s and the class of Sam Adams, Thomas Jefferson, Patrick Henry, George Washington and Caesar Rodney will write a page of disgrace and contempt.  Worse than the record will surely be the result! We speak frequently of that which we bequeath to future generations. We are on the brink of bequeathing a failed nation with a perverted history and surrender, surrender to those who dared us to do something about them, and we did nothing but talk, walk and whine.

When one discards all of the wailing, buzz word attacks and feverish rhetorical  savaging of the Bush Administration; all well and accurately deserved; one is left with the incontrovertible fact that the Bush Administration, among its most malignant, corrosive, corrupt, unprincipled, sadistically perverted well-defined policies has been the application of  LEGITIMIZED-TORTURE as a tool of “Their-War-On-Terror”, a tool consciously constructed, and for which they have gone to unbelievable horrific extra-legal lengths to validate and vindicate by institutional legalization, that which is anathema to all civilized men and women. 

Cloaking and concealing its dictates with the CIA and Blackwater operatives, black ops operations and third party other-state detention/torture facilities. It is not sufficient to root out the truth and hold it up as warning of that which never again must permitted in our names.  That constitutes a tepid scolding for killing, murder, lying, spying, genocide and torture.  Bad boy; don’t do that again or else! If you were an educator you would be taught to never tell a class that if you do this; then the consequence will be thus; because if you don’t mean it and cannot carry through; you will be a laughing stock, a failed teacher with an out-of-control class that has no respect for you and that will go on until things become so deteriorated that you are fired.  Well class….you have been calling for justice and the restoration of order and the rule of law. What are YOU going to do about it?

This final answer on my part has been prompted by an email I received from someone I respect and one who is serious of purpose and has tried valiantly to communicate the need for justice and accountability. The email reminds me of moment I had in a college class when the venerable Dr. Theodore Paulin said to the class; let Mr. Dickau speak; he’s trying to work through a pragmatic solution to this problem  Maybe there is one and maybe there is not, but let’s follow him for the moment.  The problem was one of Latin American Foreign Policy…I arrived at no pragmatic solution as there was none.  The answer was to be found in an action of right and not wrong. But let me share this…

“I take it that you are also pissed that R…. and I are taking a position of supporting the immunity of those who took orders on torture.  

Of course, I would rather just round up the whole bunch of them - top to bottom - humiliate and disgrace them thoroughly with a fair trial, then lock 'em up for life, but in reality I know how this always goes down: the lower level takes the hit one-by-one, media circus blow-by-blow, until all financial trial resources and public interest is exhausted.  And by then those who orchestrated the whole mess go scott-free.  Realistically, it seems that is our choice. But it does feel bad, compromising on principles. 

Being a veteran, maybe you can enlighten us a bit more about that.  We're just air force brats.  It seems to me, though, that given the surreal nightmarish environment of war - an environment fraught with the ever-present feeling of extreme threat - that those who necessarily are well-trained to take orders (soldiers, mid-level officers and lower ranking CIA), would be understandably well-primed to commit acts they ordinarily would never dream of doing under normal circumstances. Perspective gets lost under stress. And I believe the vast majority of those who carried out the "sanctioned" acts of torture would not have done so if they didn't believe it was legal.  They were led to believe it was legal and in most facilities the Geneva Convention was not posted (another violation).   Most rank and file today don't know any detail of the regulations of the Geneva Convention.   We need the rank and file to speak up. Open for discussion.”

I am not “pissed” as I have been there before.

I have given the matter much thought and my position is unaltered.  Yesterday afternoon only fortified my convictions.  Perhaps I would have, perhaps, more sympathy for our men and women under direct fire whose lives and limbs can be taken at any moment with all manner of bombs and bobby traps in Iraq, but a serious question was answered by primary authorities yesterday afternoon.  In conversation with recently retired military personnel, one a major another an admiral, it was made Gin clear that their Military Academy education included serious education of : “When An Officer Is Obligated To Disobey/Refuse To Follow An Order”!  That argument is therefore dismissed and officers, who participate in, condone or order wrongful actions under the Geneva Conventions must and should be held to full account…no Americanized rationalized interpretation of military field manuals with standing.

When the matter of torture at the hands of the CIA or Blackwater operatives is evaluated there is no mediating circumstance. They are in a controlled environment safe from war zone threats to person. They make conscious decisions to engage in the unlawful perversions of torture, and it seems, all too willing to engage in those practices given any feeble word of justification from Washington. That is inexcusable and beyond any circumstance that justifies the protection and forgiveness of amnesty, immunity and/or pardon.  Their acts are those conscious decision making, their choices of torture, personal selections.  They are guilty and should be held up to the fullest prosecution and punishment available under both American and International Law!

Those who have authored the documents of justification in The White House and The Justice Department are guilty of legal wrong doing to such an extent that they should be imprisoned and never permitted to act in the legal system of this country again!

This nation had full warning of the evil that Dick Cheney had brought to and perpetrated within the Bush Administration and there is no acceptable conscionable pragmatic excuse for non-prosecution of this man.  After American Civil prosecution he should be turned over and deported to The Hague to stand trial for his part in the war crimes, torture and genocide to which he has been a party.  The same holds true for George W. Bush.  It’s that old Harry Truman desktop logo: “the Buck Stops Here!”… and indeed it does.

I do not excuse as extenuating circumstances the 9/11 event, his perhaps dry-drunk impairment, limited native intelligence, native vindictiveness, perpetually lying and consistent, persistent violation of basic American law to such an extent that one must question his basic mental well-being. None of those matters.  He is guilty by every standard that governs this decision on my part!

It is found further, that Profound Egregious errors comprising willful, persistent, insistent and deliberate premeditated acts of Misfeasance, Malfeasance, Nonfeasance, dereliction of duty, and violations of freely taken oaths of office, constituting malice afore-thought, have been engaged by numerous members of the Congress Of The United States Of America warranting the request of resignations of such guilty parties, including, but not limited to: Nancy Pelosi, Steny Hoyer, John Conyers, Patrick Leahy, and that extensive Congressional investigations should be initiated immediately in the matters of all accused members related to issues of sanctioned/supported torture, illegal electronic spying, and impeding/preventing a Constitutional Impeachment proceeding against George W. Bush and Richard B. Cheney, and further, that all found complicit in any and all acts proscribed here shall be asked to resign, failing cooperation in that minimalist act of dignity and integrity that civil prosecutions be initiated to remove and imprison said members who have in open defiance of the Constitution of These United States, aided and abetted in massive acts of criminality against the people of this nation.     

References to the principles set forth in The Nuremberg Trials are not hysterical rhetoric; they are on-point and relevant to disclosures pronouncements and decisions being made on now an almost daily basis. 

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Though I do not support the Death Penalty; I cannot escape the fact that those who live by the rules and tools of War; Shall perish by those rules and tools!”


The Entire World Has Long Been Aware Of The Absolute Criminality And Total Disregard Of Every Standard Of Decency And Respect For Any Law, Domestic Or Foreign, US Or International, Of The Bush Administration. Justice Can Be Had Only If We Are Willing To Demand It, otherwise we all become accomplices to murder and genocide, accomplices to the belief that America Is Above The Law And The Government Of This Nation Has Our Sanction To Commit Any Crime Any Aggression In Our Names.














February 27, 2003

A Duty to Disobey All Unlawful Orders

An Advisory to US Troops




As the United States government under George Bush gets closer to attacking the people of Iraq, there are several things that the men and women of the U.S. armed forces need to know and bear in mind as they are given orders from the Bush administration. This information is provided for the use of the members of the armed forces, their families, friends and supporters, and all who are concerned about the current direction of U.S. policy toward Iraq.

The military oath taken at the time of induction reads:

"I,____________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to the regulations and the Uniform Code of Military Justice. So help me God"

The Uniform Code of Military Justice (UCMJ) 809.ART.90 (20), makes it clear that military personnel need to obey the "lawful command of his superior officer," 891.ART.91 (2), the "lawful order of a warrant officer", 892.ART.92 (1) the "lawful general order", 892.ART.92 (2) "lawful order". In each case, military personnel have an obligation and a duty to only obey Lawful orders and indeed have an obligation to disobey Unlawful orders, including orders by the president that do not comply with the UCMJ. The moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the UCMJ.

During the Iran-Contra hearings of 1987, Senator Daniel Inouye of Hawaii, a decorated World War II veteran and hero, told Lt. Col. Oliver North that North was breaking his oath when he blindly followed the commands of Ronald Reagan. As Inouye stated, "The uniform code makes it abundantly clear that it must be the Lawful orders of a superior officer. In fact it says, 'Members of the military have an obligation to disobey unlawful orders.' This principle was considered so important that we-we, the government of the United States, proposed that it be internationally applied in the Nuremberg trials." (Bill Moyers, "The Secret Government", Seven Locks Press; also in the PBS 1987 documentary, "The Secret Government: The Constitution in Crisis")

Senator Inouye was referring to the Nuremberg trials in the post WW II era, when the U.S. tried Nazi war criminals and did not allow them to use the reason or excuse that they were only "following orders" as a defense for their war crimes which resulted in the deaths of millions of innocent men, women, and children. "In 1953, the Department of Defense adopted the principles of the Nuremberg Code as official policy" of the United States. (Hasting Center Report, March-April 1991)

Over the past year there have been literally thousands of articles written about the impact of the coming war with Iraq. Many are based on politics and the wisdom of engaging in an international war against a country that has not attacked the U.S. and the legality of engaging in what Bush and Rumsfield call "preemptive war." World opinion at the highest levels, and among the general population, is that a U.S. first strike on Iraq would be wrong, both politically and morally. There is also considerable evidence that Bush's plans are fundamentally illegal, from both an international and domestic perspective. If the war is indeed illegal, members of the armed forces have a legal and moral obligation to resist illegal orders, according to their oath of induction.

The evidence from an international perspective is overwhelming. The United States Constitution makes treaties that are signed by the government equivalent to the "law of the land" itself, Article VI, para. 2. Among the international laws and treaties that a U.S. pre-emptive attack on Iraq may violate are: · The Hague Convention on Land Warfare of 1899, which was reaffirmed by the U.S. at the 1946 Nuremberg International Military Tribunals; · Resolution on the Non-Use of Nuclear Weapons and Prevention of Nuclear War, adopted UN General Assembly, Dec 12, 1980; · Convention on the Prevention and Punishment of the Crime of Genocide; December 9, 1948, Adopted by Resolution 260 (III) A of the UN General Assembly; · Geneva Convention relative to the Protection of Civilian Persons in Time of War, Adopted on August 12, 1949 by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War; · Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques, 1108 U.N.T.S. 151, Oct. 5, 1978; · The Charter of the United Nations; · The Nuremberg Principles, which define as a crime against peace, "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for accomplishment of any of the forgoing." (For many of these treaties and others, see the Yale Avalon project Also see a letter to Canadian soldiers sent by Hamilton Action for Social Change at

As Hamilton Action for Social Change has noted "Under the Nuremberg Principles, you have an obligation NOT to follow the orders of leaders who are preparing crimes against peace and crimes against humanity. We are all bound by what U.S. Chief Prosecutor Robert K. Jackson declared in 1948: [T]he very essence of the [Nuremberg] Charter is that individuals have intentional duties which transcend the national obligations of obedience imposed by the individual state." At the Tokyo War Crimes trial, it was further declared "[A]nyone with knowledge of illegal activity and an opportunity to do something about it is a potential criminal under international law unless the person takes affirmative measures to prevent commission of the crimes."

The outcry about the coming war with Iraq is also overwhelming from legal experts who have studied this in great detail.

By November of 2002, 315 law professors had signed a statement entitled "A US War Against Iraq Will Violate US and International Law and Set a Dangerous Precedent for Violence That Will Endanger the American People."

Other legal organizations such as the Lawyers' Committee on Nuclear Policy and the Western States Legal Foundation have written more extensive reports, such as that by Andrew Lichterman and John Burroughs on "War is Not the Path to Peace; The United States, Iraq, and the Need for Stronger International Legal Standards to Prevent War." As the report indicates "Aggressive war is one of the most serious transgressions of international law." In fact, at the Nuremberg trials, the issue was not just individual or collective acts of atrocities or brutal actions but the starting of an aggressive war itself. U.S. Supreme Court Justice Robert L. Jackson stated,

"We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy." (August 12, 1945,Department of State Bulletin. )

In another report written by the same authors and also by Michael Ratner, President of the Center for Constitutional Rights, New York, and Jules Lobel, Professor of Law at the University of Pittsburgh entitled "The United Nations Charter and the Use of Force Against Iraq," the authors note that:

"Under the UN Charter, there are only two circumstances in which the use of force is permissible: in collective or individual self-defense against an actual or imminent armed attack: and when the Security Council has directed or authorized use of force to maintain or restore international peace and security. Neither of those circumstances now exists. Absent one of them, U.S. use of force against Iraq is unlawful."

The authors were specifically referring to Article 51 of the UN Charter on the right to self-defense. Nothing that Iraq has done would call that provision into effect. The report also states that:

"There is no basis in international law for dramatically expanding the concept of self-defense, as advocated in the Bush Administration's September, 2002 "National Security Strategy" to authorize "preemptive"--really preventive--strikes against states based on potential threats arising from possession or development of chemical, biological, or nuclear weapons and links to terrorism. Such an expansion would destabilize the present system of UN Charter restraints on the use of force. Further, there is no claim or publicly disclosed evidence that Iraq is supplying weapons of mass destruction to terrorist.

The Bush administration's reliance on the need for "regime change" in Iraq as a basis for use of force is barred by Article 2(4) of the UN Charter, which prohibits "the threat or use of force against the territorial integrity or political independence of any state." Thus the rationales being given to the world, the American public, and the armed forces are illegal on their face. (For a copy of this report

It is important to note that none of the authors cited thus far or to be cited have any support for Saddam Hussein or the Government of Iraq whatsoever. They and others who do not support an illegal war in Iraq believe that government of Saddam Hussein is corrupt, vile, and contemptible. So is the leadership and governments of many of our "allies," such as Saudi Arabia and Pakistan-governments that the United States may very well attack within the next decade. It is important to remember that Saddam Hussein was an important "ally" during the 1980s and that many of the weapons that may be faced by our armed forces will bear a "Made in the USA" label. The issue here is not the "evil' of Saddam Hussein, nor the international community doing nothing, but an illegal march to war by the Bush administration.

Even former House Majority Leader Dick Armey, a very conservative Republican from Texas, has warned that an "unprovoked attack against Iraq would violate international law and undermine world support for President Bush's goal of ousting Saddam Hussein." Armey explicitly states "If we try to act against Saddam Hussein, as obnoxious as he is, without proper provocation, we will not have the support of other nation states who might do so. I don't believe that America will justifiably make an unprovoked attack on another nation. It would not be consistent with what we have been as a nation or what we should be as a nation." (Chicago Tribune, August 9, 2002, available at

Other articles demonstrating the illegality of this war can be found at here.

In addition to the violations of international laws, which have been incorporated into U.S. law, the impending attack on Iraq is a direct violation of national law as Bush claims that he has the authority to decide whether the U.S. will go to war or not. The U.S. Constitution is very explicit on this point. Only the Congress has the authority to declare war, Article 1, section 8, Par. 11. Congress does not have the right to give that power away, or to delegate that power to the president or anyone else. The President as the "Commander in Chief" (Article 2, section 2, Par. 1) can command the armed forces in times of peace and war, but he does not have the authority to declare the war or determine if that war is to occur, especially if he is engaged in illegal conduct in violation of the Constitution itself or his oath of office. The Constitution spells out very clearly the responsibility of the President and his oath, "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." (Article 2, section 2, Par. 8). The President also has the primary duty to make sure "that the laws be faithfully executed," (Article 2, section 3).

The vaguely worded resolution passed by the Congress in October was both illegal and an act of cowardice, as noted by Senator Robert Byrd of West Virginia. Byrd's remarks were made on the floor of the Senate on October 3, 2002. In part he said:

"The resolution before us today is not only a product of haste; it is also a product of presidential hubris. This resolution is breathtaking in its scope. It redefines the nature of defense, and reinterprets the Constitution to suit the will of the Executive Branch. It would give the President blanket authority to launch a unilateral preemptive attack on a sovereign nation that is perceived to be a threat to the United States. This is an unprecedented and unfounded interpretation of the President's authority under the Constitution, not to mention the fact that it stands the charter of the United Nations on its head."

The full texts of his remarks are well worth reading, not only on the illegality of the war but also the illegality of Congress in abandoning its duty under the Constitution.


The United States is a secular country with a great variety of religions, which are adhered to by the majority of the people. Political leaders who claim to speak in the name of God are rightfully looked upon with suspicion, whether they are foreign leaders or the president of the United States. This is especially true when the issues are those of war and peace. Nevertheless, the U.S. often blends the border on issues of Church and State, including in public oaths, such as the oath which is taken at the time of induction. This author will not claim to know the will of God, but it is valuable to examine what the religious leaders of the country are saying about this war. Virtually every major religion in the United States has come out against the Bush plans for war. Again this is not because of any support for Saddam Hussein, but rather the Bush plans do not meet any criteria for the concept of "just war." One would expect this from the religions that are respected and pacifist, but it also true from those who have supported past U.S. wars, and even have Chaplains in the service. Below is a sample of the analysis of U.S. religious leaders:


We respectfully urge you to step back from the brink of war and help lead the world to act together to fashion an effective global response to Iraq's threats that conforms with traditional moral limits on the use of military force. US Conference of Catholic Bishops, Letter to President Bush, Sept. 13, 2002.


The question for us now must be: what is our role in the community of nations? I believe we have the capacity within us to help lead our world into the way of justness and peace. The freedoms we enjoy as citizens of the United States oblige us to attend not only to our own welfare, but to the well-being of the world around us. A superpower, especially one that declares itself to be "under God," must exercise the role of super servant. Our nation has an opportunity to reflect the values and ideals that we espouse by focusing upon issues of poverty, disease and despair, not only within our own nation but throughout the global community of which we are a part. The Presiding Bishop's statement on military action against Iraq, September 6, 2002.

Jewish International cooperation is far, far better than unilateral action, and the U.S. must explore all reasonable means of attaining such support. Non-military action is always preferable to military action, and the U.S. must fully explore all options to resolve the situation through such means. If the effort to obtain international cooperation and support through the United Nations fails, the U.S. must work with other nations to obtain cooperation in any military action. Union of American Hebrew Congregations, Executive Committee Decision on Unilateral Action by the U.S. Against Iraq.


While we are fully aware of the potential threat posed by the government of Iraq and its leader, I believe it is wrong for the United States to seek to over-throw the regime of Saddam Hussein with military action. Morally, I oppose it because I know a war with Iraq will have great consequences for the people of Iraq, who have already suffered through years of war and economic sanctions. Further, I believe it is detrimental to U.S. interests to take unilateral military action when there is strong international support for weapons inspections, and when most other governments oppose military action. I also believe that U.S. military action at this time will further destabilize the region. I call upon members of our congregations to be fervent in prayer, engaged in conversation with one another and with our leaders. In the final analysis, we must stand unequivocally for peace. ELCA Presiding Bishop Mark S. Hanson's Statement on Iraq Situation, August 30, 2002.

Methodist United Methodists have a particular duty to speak out against an unprovoked attack. President Bush and Vice-President Cheney are members of our denomination. Our silence now could be interpreted as tacit approval of war. Christ came to break old cycles of revenge and violence. Too often, we have said we worship and follow Jesus but have failed to change our ways. Jesus proved on the cross the failure of state-sponsored revenge. It is inconceivable that Jesus Christ, our Lord and Savior and the Prince of Peace, would support this proposed attack. Secretary Jim Winkler of The United Methodist Church General Board of Church and Society, August 30, 2002.


We urge Presbyterians to oppose a precipitate U.S. attack on Iraq and the Bush administration's new doctrine of pre-emptive military action. We call upon President George W. Bush and other leaders to: Refrain from language that seems to label certain individuals and nations as "evil" and others as "good"; Oppose ethnic and religious stereotyping, Guard against a unilateralism, rooted in our unique position of political, economic and military power, that perpetuates the perception that "might makes right"; Allow United Nations weapons inspections in Iraq, without undue pressure or threats of pre-emptive, unilateral action; and End the economic sanctions against Iraq, which have been ineffectual but have done untold damage to the Iraqi people. The General Assembly Council and the staff leadership team of the Presbyterian Church (USA), September 28, 2002.

United Church of Christ With heavy hearts we hear once again the drumbeat of war against Iraq. As leaders committed to God's reign of justice and peace in the world and to the just conduct of our nation, we firmly oppose this advance to war. While Iraq's weapons potential is uncertain, the death that would be inflicted on all sides in a war is certain. Striking against Iraq now will not serve to prevent terrorism or defend our nation's interests. We fear that war would only provoke greater regional instability and lead to the mass destruction it is intended to prevent. UCC leaders, September 13, 2002.

Ecumenical As Christians, we are concerned by the likely human costs of war with Iraq, particularly for civilians. We are unconvinced that the gain for humanity would be proportionate to the loss. Neither are we convinced that it has been publicly demonstrated that all reasonable alternative means of containing Iraq's development of weapons of mass destruction have been exhausted. We call upon our governments to pursue these diplomatic means in active cooperation with the United Nations and to stop the apparent rush to war. World Council of Churches, August 30, 2002.

For a fuller elaboration of these and other comments from religious leaders, such as by the Mennonites, Quakers (Society of Friends), Unitarian Universalist, and other ecumenical groups see Other religious and moral objections to Bush's plans have been articulated. In September of 2002, 100 Christian Ethicists from major seminaries, divinity schools, and traditionally conservative religious schools challenged the claim that preemptive war on Iraq would be morally justified in a simply worded statement, "As Christian ethicists, we share a common moral presumption against a pre-emptive war on Iraq by the United States." (See the Chronicle of Higher Education, September 23, 2002,)

Religious resistance to Bush's war plans can also be found in the overwhelming vote of 228-14 by the U.S. Catholic Bishops against the war and in the unprecedented show of unity by Chicago's top Christian, Jewish, and Muslim leaders in the first public statement on any national issue of the Council of Religious Leaders of Metropolitan Chicago in opposing Bush's war. (Seattle Post-Intelligencer, December 1, 2002)

It is noteworthy that the Pope John Paul II has come out very strongly against this war in unambiguous terms, "No to war!" The Pope said during his annual address to scores of diplomatic emissaries to the Vatican, an exhortation that referred in part to Iraq, a country he mentioned twice. "War is not always inevitable. It is always a defeat for humanity." (NY Times, January 14, 2003). The Pope, a seasoned diplomat, was not just making a moral statement about peace; he referred to the legal codes discussed earlier in this article, "War is never just another means that one can choose to employ for settling differences between nations. As the Charter of the United Nations organization and international law itself reminds us, war cannot be decided upon, even when it is a matter of ensuring the common good, except as the very last option and in accordance with very strict conditions, without ignoring the consequences for the civilian population both during and after the military operations." (See Irish Examiner, 1/13/2003)

It is also important to restate that the head of Bush's own church has come out against this war. Jim Winkler, the general secretary of the Board of Church and Society for the United Methodist Church has come out very strongly against this war. President Bush has refused to meet with Winkler.

"The Methodist Church, he (Winkler) says, is not pacifist, but 'rejects war as a usual means of national policy'. Methodist scriptural doctrine, he added, specifies 'war as a last resort, primarily a defensive thing. And so far as I know, Saddam Hussein has not mobilized military forces along the borders of the United States, nor along his own border to invade a neighboring country, nor have any of these countries pleaded for our assistance, nor does he have weapons of mass destruction targeted at the United States'." (SeeObserver/UK, October 20, 2002)

Individual will have to make their own decisions about the "morality" of the war but the consensus decision that has been developing among religious leaders is that this war does not constitute a "just war" by virtually anyone's standards. The concept of "sin" is also a personal decision but again those who study these issues from the Pope to theologians to pastors to other religious leaders do not and cannot give their approval to the illegal actions that the Bush administration are going to impose on the world in general, and people of Iraq and the men and women of the U.S. armed forces in particular.


The reasons for war are not supposed to be the purview of soldiers in the field. They are just supposed to follow orders. But when a war is so blatantly illegal soldiers need to have some background to make an informed decision about how to conduct themselves. In a short space it is not possible to delineate the full reasons, but it is not about the dangers of Saddam Hussein. As indicated above, there are no credible anti-war or peace advocates that advocate any positive statements about Saddam Hussein or the Government of Iraq. The world, however, in general, does not believe that the Bush administration has any solution to the situation. In fact many believe that Bush, himself, is a significant part of the problem.

Many people have pointed out that this war is about the oil. It is, but it is much more than that. The United States does not need the oil to survive but the people in the Bush administration want to expand the hegemony that the United States government has had since the collapse of the Soviet Union. This is not a critique of U.S. foreign policy, per se, but a recognition of reality. This is essentially what Bush has been saying in his public speeches at West Point, etc., and is very explicitly saying in his "National Security Strategy (NSS), which he published in September of 2002.

The NSS is the political articulation of what the main actors of the Bush administration published in September 2000, before the elections, before they took power, and before the fateful day of September 11, 2001. That project was called "Rebuilding America's Defenses: Strategy, Forces and Resources for a New Century", A Report of The Project For the New American Century. These documents are essentially the blueprints for hegemony and for a word that has come back into vogue- Empire. These documents are publicly available, but not often read. All Americans and all members of the armed forces should read them. Many of the people quoted in this article have no doubt read them and understand the policies basic illegalities, and thus the conclusion that the war itself is domestically, internationally and morally indefensible.

There are many critiques of the impact of these policies-which articulate the reasons not to go to war. Some of the better ones can be found at Global Policy ; Foreign Policy in Focus or the Education for Peace in Iraq Center. There are also several other valuable research sites.

There are also many U.S. veteran groups that have seen the horrors of war up close and do not want to have another generation of young Americans suffer not only the war, but also the post traumatic stresses that emerge after war, when they discover they have been lied to, have participated in aggression, and then are abandoned by their government after the wars. This war is particularly amenable to such, since there is so much dissention, based on solid information that this war is not only unnecessary but also illegal, and may be without a foreseeable end.

Charles Sheehan Miles, is a Gulf War veteran and former President of the National Gulf War Resource Center ( He also help to found the extraordinarily useful "Veterans for Common Sense" ( which has a great deal of information about the current situation. On January 16, 2003, he wrote:

"This war does nothing to protect American lives, but it will do everything to destroy the lives of many thousands of Iraqis and Americans. This war will not protect us from weapons of mass destruction, but it will make it more likely Iraq will try to use them. This war will not liberate the Iraqi people, but it will do everything to ensure they receive a new master, one ruled by corporate profits and oil to fuel more American consumption. This war isn't worth the life of one American soldier." (

The idea that those who oppose the Bush plans for war are against the troops is a fundamental lie. Support for the troops is not done by sending them off to a war which is fundamentally unnecessary-support is keeping them home. Support for the troops is not done by lying to them about the purpose and goals of the war and allowing those who will benefit and profit a free ride on the backs of the troops. Support for the troops is not done by making them complicit in an illegal and immoral war-it is done by exposing the lies and giving the troops an opportunity not to be complicit in war crimes.

A group of veterans of many different wars and eras has issued a statement that has been distributed to active duty soldiers making some of the points made in this article. Signers includes many well-known veterans such as Vietnam veteran and author Ron Kovic (Born on the 4th of July), author and film producer Michael Moore (Bowling for Columbine), and American historian Howard Zinn (A People's History of the United States) and several hundred other veterans.

The statement "Call to Conscience from Veterans to Active Duty Troops and Reservist" reads in part:

"Many of us believed serving in the military was our duty, and our job was to defend this country. Our experiences in the military caused us to question much of what we were taught. Now we see our REAL duty is to encourage you as members of the U.S. armed forces to find out what you are being sent to fight and die for and what the consequences of your actions will be for humanity. We call upon you, the active duty and reservists, to follow your conscience and do the right thing.

In the last Gulf War, as troops, we were ordered to murder from a safe distance. We destroyed much of Iraq from the air, killing hundreds of thousands, including civilians. We remember the road to Basra -- the Highway of Death -- where we were ordered to kill fleeing Iraqis. We bulldozed trenches, burying people alive. The use of depleted uranium weapons left the battlefields radioactive. Massive use of pesticides, experimental drugs, burning chemical weapons depots and oil fires combined to create a toxic cocktail affecting both the Iraqi people and Gulf War veterans today. One in four Gulf War veterans is disabled.

If you choose to participate in the invasion of Iraq you will be part of an occupying army. Do you know what it is like to look into the eyes of a people that hate you to your core? You should think about what your "mission" really is. You are being sent to invade and occupy a people who, like you and me, are only trying to live their lives and raise their kids. They pose no threat to the United States even though they have a brutal dictator as their leader. Who is the U.S. to tell the Iraqi people how to run their country when many in the U.S. don't even believe their own President was legally elected?

There is no honor in murder. This war is murder by another name. When, in an unjust war, an errant bomb dropped kills a mother and her child it is not "collateral damage," it is murder. When, in an unjust war, a child dies of dysentery because a bomb damaged a sewage treatment plant, it is not "destroying enemy infrastructure," it is murder. When, in an unjust war, a father dies of a heart attack because a bomb disrupted the phone lines so he could not call an ambulance, it is not "neutralizing command and control facilities," it is murder. When, in an unjust war, a thousand poor farmer conscripts die in a trench defending a town they have lived in their whole lives, it is not victory, it is murder.

If the people of the world are ever to be free, there must come a time when being a citizen of the world takes precedence over being the soldier of a nation. Now is that time. When orders come to ship out, your response will profoundly impact the lives of millions of people in the Middle East and here at home. Your response will help set the course of our future. You will have choices all along the way. Your commanders want you to obey. We urge you to think. We urge you to make your choices based on your conscience. If you choose to resist, we will support you and stand with you because we have come to understand that our REAL duty is to the people of the world and to our common future." (To see the full statement and view all the signatures see

The choices that those in the military and their supporters face are hard ones. Let us begin with some undisputed options. Members of the armed forces are sworn to protect the Constitution from all enemies, foreign and domestic. They are also sworn to obey all LAWFUL orders and have an affirmative duty to DISOBEY all UNLAWFUL orders.

The unelected president will not tell his troops or his commanders that he is issuing unlawful orders. Few, if any, of the top commanders will tell their troops that they are issuing unlawful orders. Those on the front lines, those who fly the planes, those who target Cruise missiles and other weapons of mass destruction need to make decisions. According to International Law, Domestic Law, the Constitution, and various Moral Codes it is not enough to say or believe that one is just "doing their job" or just "following orders." Decisions have to be made.

One should check out the sources of information presented in this article, to see if International Law still applies to America, to see if the Constitution still applies, to see if the Pope and other national and international members of the clergy are right in their moral objections to this war, to see if the legal arguments are valid against the war or for the war. One should investigate if they are being lied to by their unelected commander in chief. Members of the armed forces have a sworn and sacred duty to uphold the law and the Constitution. According to the laws, international, domestic, and moral, the interpretation of whether orders are legal are not only the responsibility of "superior officers," but is needed each level of command, and by those who execute those commands.

Please note that the information presented here is not meant to encourage one to break the law, but rather to follow international, domestic, and moral laws. The information here is not intended to encourage one to break one's oath but rather to be true to one's duty and conscience and make an informed decision.

If the decision is made that the orders to begin or continue the war are illegal, then each bomb dropped will be a war crime, each bomb loaded will be a war crime, each support effort will be aiding and abetting a crime. Each death, especially that of a civilian, will be a war crime (not collateral damage). If the war itself is a crime than all efforts that aid in that effort are criminal. Given that over 50% of the people of Iraq are children under the age of 16, this will be a war against children and a crime against humanity. The decision to obey one's oath and not follow illegal orders is no doubt a difficult one, and one that will probably result in punishment from those who issue the illegal orders. One should not take this issue lightly, just as one should not take the decision to follow an illegal order lightly. There will no doubt be consequences for those who follow their conscience. It is the duty of all who recognize the illegality of the war to support all resisters. For examples on how hundreds of thousands of GIs resisted the illegal war in Vietnam (by the U.S. Governments own admission in the Pentagon Papers) read Howard Zinn's "A People's History of the United States," Chapter 18. For a personal account of a brave officer's resistance in Vietnam and later, see "Witness to War" by Charles Clement.

I am aware that many active duty personnel and reservist already have grave doubts and reservations about the conduct of this war, just as do significant numbers of veterans and the general public and citizenry. Those who have severe doubts about the legality of what they are "ordered" to do should talk to their comrades in arms, their spiritual advisor (if they have one), and should contact one of the groups listed below and weigh their options.

There may well be some safety in numbers. Albert Einstein, the genius physicist, once stated that if 2% of the military refused to fight or participate, the wars could not continue. Time is short. Or if you are reading this after the hostilities have commenced, it is time to stop the madness and war crimes.

At the end of this article there is contact information for organizations that have historically assisted active duty personnel, reservist, or veterans of conscience who desire specific legal, political, or moral guidance in time of war. If possible, these would be good organizations to contact. As the veterans "Call to Conscience" statement notes "if you have questions or doubts about your role in the military (for any reason) or in this war, help is available. Contact one of the organizations listed below. They can discuss your situation and concerns, give you information on your legal rights, and help you sort out your possible choices." These organizations are listed for your information and are not responsible for the contents of this article.

Also listed below are sources of information that may be useful about the current situation, in addition to the sources listed in the article.

Lawrence Mosqueda, Ph.D. teaches at The Evergreen State College in Olympia, Washington. He can be reached



BOOKS on foreign policy

Noam Chomsky, especially Deterring Democracy, 9/11, Rouge States

Phyllis Bennis, Before and After: U.S. Foreign Policy and the September 11 Crisis

Gilbert Achcar, The Clash of Barbarisms: September 11 and the Making of the New World Disorder

William Blum, Killing Hope

Dilip Hiro, Iraq, In the Eye of the Storm



Alternative News and analysis,

Alternative Analysis,;

Middle East Analysis,; 

English Reports from Iraq,


(Some are religious, some political, some pacifist) 
Central Committee for Conscientious Objectors (CCCO) The GI Rights Hotline (800) 394-9544 (215) 563-4620 Fax (510) 465-2459 630 Twentieth Street #302 Oakland, CA 94612

American Friends Service Committee-National 1501 Cherry Street Philadelphia, PA 19102 Phone: (215) 241-7000 Fax: (215) 241-7275

American Friends Service Committee--New England Region 2161 Massachusetts Ave. Cambridge, MA 02140 617-661-6130

Center on Conscience & War (NISBCO) 
1830 Connecticut Ave. NW, Washington, DC 20009 Tel: (202) 483-2220 Fax: (202) 483-1246 Email:

Military Law Task Force of the National Lawyers Guild 
1168 Union Street, Suite 200 San Diego, CA 92101 619-233-1701

National Lawyers Guild, National Office 
143 Madison Ave 4th Fl., New York NY 10016 212-679-5100 FAX 212 679-2811

Northcoast WRL / Humboldt Committee for Conscientious Objectors (NCWRL-HCCO) 1040 H Street Arcata, CA 95521 707-826-0165

Quaker House of Fayetteville, NC 
223 Hillside Ave Fayetteville, NC 28301 910-323-3912 or 919-663-7122

Seattle Draft and Military Counseling 
PO Box 20604 Seattle, WA 98102 206-789-2751

War Resisters League 339 Lafayette Street New York, NY 10012 212-228-0450 or 800-975-9688 wrl@warresisters.org

Veterans Call to Conscience 
4742 42nd Ave. SW #142 Seattle, WA 98116-4553

Veterans for Common Sense

National Contacts

Citizen Soldier 
267 Fifth Ave., Suite 901 New York, NY 10016 
Phone (212) 679-2250 Fax (212) 679-2252

Fellowship of Reconciliation 
P.O. Box 271,NY, NY 10960 845-358-4601 Fax:(845) 358-4924 

Catholic Peace Fellowship 
P.O. Box 41 Notre Dame, Indiana 46556-004 

Peace Education Office of Mennonite Central Committee MCC US 
21 S. 12th Street Akron, PA 17501-0500 717-859-3889


When one enlists in the United States Military, active duty or reserve, they take the following oath:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.

Military members who fail to obey the lawful orders of their superiors risk serious consequences. Article 90 of the Uniform Code of Military Justice (UCMJ)makes it a crime for a military member to WILLFULLY disobey a superior commissioned officer. Article 91makes it a crime to WILLFULLY disobey a superior Noncommissioned or Warrant Officer. Article 92 makes it a crime to disobey any lawful order (the disobedience does not have to be "willful" under this article).

The Nuremberg Defense is a legal defense that essentially states that the defendant was "only following orders" ("Befehl ist Befehl", literally "order is order") and is therefore not responsible for his crimes. The defense was most famously employed during the Nuremberg Trials, after which it is named.

  • Currently found in Army FM 27-10, under the section listed “Defenses not Available.”



·         509. Defense of Superior Orders


·         a. The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful. In all cases where the order is held not to constitute a defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in mitigation of punishment.


·         b. In considering the question whether a superior order constitutes a valid defense, the court shall take into consideration the fact that obedience to lawful military orders is the duty of every member of the armed forces; that the latter cannot be expected, in conditions of war discipline, to weigh scrupulously the legal merits of the orders received; that certain rules of warfare may be controversial; or that an act otherwise amounting to a war crime may be done in obedience to orders conceived as a measure of reprisal. At the same time it must be borne in mind that members of the armed forces are bound to obey only lawful orders (e. g., UCMJ, Art. 92).


  • Sometimes termed Nuremburg Defense, or the Yamashita or Medina Standard.


Before the end of World War II, the Allies suspected such a defense might be employed, and issued the London Charter of the International Military Tribunal (IMT), which specifically stated that this was not a valid defense against charges of war crimes.

Thus, under Nuremberg Principle IV, "defense of superior orders" is not a defense for war crimes, although it might influence a sentencing authority to lessen the penalty. Nuremberg Principle IV states:

"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."

The United States military adjusted the Uniform Code of Military Justice after World War II. They included a rule nullifying this defense, essentially stating that American military personnel are allowed to refuse unlawful orders. This defense is still used often, however, reasoning that an unlawful order presents a dilemma from which there is no legal escape. One who refuses an unlawful order will still probably be jailed for refusing orders (and in some countries probably killed and then his superior officer will simply carry out the order for him or order another soldier to do it), and one who accepts one will probably be jailed for committing unlawful acts, in a Catch-22 dilemma.

All US military personnel are supposed to receive annual training in the Law of Armed Conflict, which delineates lawful and unlawful behaviors during armed conflicts, and is derived from the Geneva Conventions, a subset of international law. This training is designed to ensure that US military personnel are familiar with their military, ethical and legal obligations during wartime but proof of military personnel receiving this training is difficult to substantiate and is often not received.

Wilhelm KeitelAlfred Jodl and other defendants of the Nuremberg trials unsuccessfully used the defense during their trials. The defense was employed during the court martial of William Calley following the My Lai Massacre in 1968. The defense has also been used to defend soldiers during the Abu Ghraib torture and prisoner abuse scandal.

Some have argued that the outcome of the My Lai Massacre courts martial was a reversal of the laws of war that were set forth in the Nuremberg and Tokyo War Crimes Tribunals.[1] Secretary of the Army Howard Callaway was quoted in the New York Times as stating that Calley's sentence was reduced because Calley honestly believed that what he did was a part of his orders — a rationale that stands in direct contradiction of the standards set at Nuremberg and Tokyo, where German and Japanese soldiers were executed for similar acts.






The Case Of Ehren Watada

Ehren Watada refused to go to Iraq on account of his belief that the Iraq war was a crime against peace (waging a war of aggression for territorial aggrandizement), which he believed could make him liable for prosecution under the command responsibility doctrine. In this case, the judge ruled that soldiers, in general, are not responsible for determining whether the order to go to war itself is a lawful order - but is only responsible for those orders resulting in a specific application of military force, such as an order to shoot civilians, or to treat POWs inconsistently with the Geneva Conventions. This is consistent with the Nuremberg Defense, as only the civilian and military principals of the Axis were charged with Crimes against peace, while subordinate military officials were not so charged.

A Soldier's Right to Disobey Illegal Orders: The Court Martial of Lt. Watada

By Paul Rockwell, Common Dreams. February 1, 2007

It is a sad day in American jurisprudence when a soldier of conscience is court-martialed not for lying but for telling the truth, not for breaking a covenant with the military but for upholding the rule of law in wartime.

The court-martial of Army 1st Lt. Ehren K. Watada is set for Monday at Fort Lewis near Seattle. The 28-year-old soldier from Hawaii is the first commissioned officer to refuse deployment to Iraq. He is charged with "missing movement" and "conduct unbecoming of an officer," including "use of contemptuous words for the president." He was out of uniform on leave over a year ago when he delivered a moving address to a Veterans for Peace convention. He questioned the legality of the war in Iraq, and he denounced the mendacity of the Bush administration. Although he is not a conscientious objector (he offered to serve in Afghanistan), Lieutenant Watada believes no soldier should give a life, or take a life, for a lie.

For delivering two public speeches on presidential deceptions - saying little more than what the world already knows - Lieutenant Watada could spend two years in prison.

All the major issues of imperial occupation - the fraudulent basis for the war, the absence of a formal declaration from Congress, the systematic nature of war crimes in Iraq, the flagrant violations of international treaties such as the U.N. Charter - are coming to a head in this historic battle between a soldier of conscience and an Army whose Abu Ghraib scandals shocked the world.

Ordinarily, the truth of a claim is a strong defense against any charge of defamation. Not in the Army. Prosecutors told presiding Judge Lt. Col. John Head that the truthfulness of Lieutenant Watada's speeches is irrelevant to the case.

Lieutenant Watada's legal arguments, however, are strong and deserve to be heard in court. The audacious officer is raising matters of principle that concern the right of all soldiers to full protection of the law. Under the enlistment contract, every soldier has a right, even a duty, to disobey illegal orders. The legality of Lieutenant Watada's orders pursuant to a "war of choice" is the central issue of the trial.

No American soldier has any obligation to participate in military aggression, in "crimes against peace," or in any operations that violate the Geneva Conventions. Under constitutional government, the authority of military command derives not from one person alone but from the rule of law itself.

There are only two conditions in which a war is legal under international law: when force is authorized by the U.N. Security Council, or when the use of force is an act of national self-defense and survival. Apart from these conditions, war is an act of aggression. The U.N. Charter, based on the Nuremberg Conventions, prohibits war "as an instrument of policy." And the war in Iraq is just that - a war of choice.

There is a common tendency among lawyers and military commanders to sneer at international law. But the Constitution is unambiguous. Article VI states: "All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby."

There is no exception for the military, no wall between domestic and international law.

Lieutenant Watada reminds us that the U.S. Army Field Manual states: "Treaties relating to the law of war have a force equal to that of laws enacted by Congress. Their provisions must be observed by both military and civilian personnel with the same strict regard for both the letter and spirit of the law which is required with respect to the Constitution and statutes."

Nevertheless, in a pretrial hearing Jan. 16, Judge Head denied all defense motions to present hard evidence of ongoing war crimes in Iraq. Judge Head also upheld a pivotal government motion "to prevent the defense from presenting any evidence on the illegality of the war." Judge Head ruled that Lieutenant Watada's case is a political issue beyond the jurisdiction of the court.

Judge Head is wrong, and his ruling denies American soldiers protection of the very laws for which they sacrifice their lives. Lieutenant Watada is not taking political positions in his trial. The United States may be overextended; the invasion may create blowback; unilateral actions may alienate allies; war debts may boomerang on the economy; anarchy in Iraq may be hopeless. These are political questions, to be sure. But they are not part of Lieutenant Watada's defense.

Lieutenant Watada is being persecuted because he is challenging the legality, not the political wisdom, of the war. The commander in chief is the final arbiter in foreign policy, but only so long as policies are in accordance with the law. Law trumps politics, not the other way around. The "political question doctrine," as attorneys call it, is nothing more than judicial abdication.

Believing that the outcome of the hearing Monday is all but pre-determined, Lieutenant Watada's attorneys are prepared for appeals. Eventually, the Supreme Court may be called upon to reject the Machiavellian doctrine that "in war, the laws are silent."

Paul Rockwell ( is a writer in the San Francisco Bay area.


Watada's defense team had intended to demonstrate that the war was illegal by maintaining that the required congressional approval was granted only on the basis of the existence of WMDs in Iraq and ties between Saddam Hussein and al-Qaeda. They also intended to subpoena witnesses to testify and to cite the Nuremberg Principles,[24] which require soldiers to disobey illegal orders. However, on January 16, 2007, Judge John M. Head ruled that Watada would not be allowed to present any defense based on the Nuremberg principles, stating that the legality of a war was a "nonjusticiable political question"[25] and ruling that the order that Watada had refused was lawful. Watada was also forbidden to present a First Amendment defense.[26] Seitz said about the rulings that "they are essentially saying there is no right to criticize, which we all know is not true," and that they intend to appeal any conviction to the federal courts.[27]


Ehren Watada is a TRUE AMERICAN HERO, and no matter WHAT the government does to him in the future, they CANNOT take that away from him. 

Watada stuck in Army as it decides whether to appeal - News ...

Monday, April 13th, 2009

What's up with Ehren Watada?

Posted by Scott Fontaine @ 03:28:13 pm

Have you been wondering what's the latest with Ehren Watada, the Stryker officer who refused to deploy to Iraq?

The Honolulu Star-Bulletin offers a quick update: Basically, his case is still caught up in the system, and he's still working a desk job at I Corps.

From the article:

"The Army says it is still awaiting a decision from newly appointed U.S. Solicitor Elena Kagan, who was sworn in three weeks ago, as to whether it will appeal a federal judge's decision rendered in October.

The judge said that a second court-martial could not be held for the 1996 Kalani High School graduate pending the outcome of his claim that it would violate his Fifth Amendment rights by trying him twice for the same charges."


Water Boarding Water Torture In The USA…Yes Right Here At Home!


744 F.2d 1124

UNITED STATES of America, Plaintiff-Appellee,
Carl LEE, Defendant-Appellant.

No. 83-2675.

United States Court of Appeals,
Fifth Circuit.

Oct. 12, 1984.

Roy Beene, Houston, Tex., for defendant-appellant.

Daniel K. Hedges, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., Mildred M. Matesich, Atty., William Bradford Reynolds, Jessica Dunsay Silver, Dennis J. Dimsey, Atty., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GEE, JOLLY and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:


Carl Lee was jointly tried with three fellow San Jacinto County, Texas law enforcement officers on charges of violating and conspiring to violate the civil rights of prisoners in their custody. The sole issue Lee presses in this appeal is whether the trial judge abused his discretion in denying him a severance. Finding no abuse, we affirm.



Lee was indicted along with two other deputies, Floyd Baker and James Glover, and the County Sheriff, James Parker, based on a number of incidents in which prisoners were subjected to a "water torture" in order to prompt confessions to various crimes. On the morning trial was to begin, Floyd Baker's counsel informed the court and his co-defendants that Baker intended to admit the government's allegations were true but would argue that he did not have the "state of mind" required for criminal liability. Lee, Glover and Parker each intended to defend on the ground that they did not participate in any torture incidents and were unaware that any such incidents were taking place. Counsel for the other defendants immediately moved for severance. The district court deferred a ruling on these motions pending some clarification of exactly what Baker's defense and testimony would be.


At trial, Baker's defense as developed by his counsel and his testimony rested on two points. The first was that he actively participated in only a single torture episode, and then only because ordered to do so by his superiors--a "Nuremberg defense." The second was that while he believed the torture of prisoners immoral, he did not at the time think it was illegal. In the course of Baker's testimony, he identified Lee as a participant in the torture of several prisoners. Seven other witnesses also connected Lee with various torture incidents. At the close of the evidence, the district judge severed Baker, and put the case of the remaining defendants to the jury. Lee was convicted on three counts. In this appeal he contends that Baker's defense was in such conflict with his own that he should have been granted a severance at the beginning of trial.II.


The groundwork of our decision today has long since been laid in the decisions of this court. Defendants indicted together should, as a rule, be tried together. Federal Rule of Crim. Procedure 14, however, allows a trial judge to order a severance if it appears that a defendant will be prejudiced by a joint trial. The severance decision is reviewed under an abuse of discretion standard, and to prove an abuse the defendant undertakes the considerable burden of proving "that he received an unfair trial and suffered compelling prejudice against which the trial court was unable to afford protection." United States v. Romanello, 726 F.2d 173, 177 (5th Cir.1984); United States v. Berkowitz, 662 F.2d 1127, 1132 (5th Cir.1981).


When co-defendants raise conflicting defenses, this test is met and severance is required when the defenses are "antagonistic to the point of being irreconcilable and mutually exclusive." Romanello, 726 F.2d at 177. The standard for mutual exclusivity is that: "[t]he essence or core of the defenses must be in conflict such that the jury, in order to believe the core of one defense, must necessarily disbelieve the core of the other." Id. Defendants may disagree on the facts not comprising the core of their defenses without generating the kind of prejudice that mandates severance. Id., United States v. DeVeau, 734 F.2d 1023, 1027 (1984).


Our initial inquiry is thus whether in order to believe the core of Baker's defense--that he participated in the torture only because ordered to do so by his superiors and did not know that it was illegal--the jury had necessarily to disbelieve Lee's defense--that he did not take part in any of the incidents. Lee's participation or lack thereof in the torture sessions obviously is irrelevant to Baker's belief in the legality of his own actions. In order for the cores of these defenses to conflict, it is necessary that Baker have contended that Lee was one of the superiors who ordered him to take part in the torture.


We have examined the entire record in this case, and must conclude that if Floyd Baker did indicate that Carl Lee ordered him to torture anyone it was only in an extremely impersonal and indirect fashion. It is true that Baker's counsel made some efforts to develop the fact that Lee had greater seniority than Baker and Baker considered Lee his superior. Baker did not testify at any point, however, that Lee ordered him to torture anyone. According to Baker's testimony and his counsel's opening statement, the actual orders came from James Glover.


More important, the underlying purposes of the rule requiring severance when irreconcilable defenses are raised are not implicated in this case. Perhaps the primary danger against which the rule is designed to guard is that of a defendant having to face what amounts to two prosecutors--the state and his co-defendant. United States v. Crawford, 581 F.2d 489, 492 (5th Cir.1978); United States v. Sheikh, 654 F.2d 1057, 1066 (5th Cir.1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982); United States v. Johnson, 478 F.2d 1129, 1132 (5th Cir.1973). Examination of the record in this case convinces us that Baker's counsel simply cannot be cast in the role of the second prosecutor. His examination of witnesses was directed toward establishing Baker's innocence, not toward damning Carl Lee.


The rule is also designed to prevent a situation in which each defendant is the government's best witness against the other. Crawford, 581 F.2d at 492; Berkowitz, 662 F.2d at 1134. Baker was without doubt a strong witness against Lee, but the government's case was based on the testimony of seven witnesses in addition to Baker. Three of these were former law enforcement officials. In such a situation it can hardly be said that Baker was the government's "best witness."


Since the defenses raised here are not mutually irreconcilable, we must now determine whether Lee yet suffered compelling prejudice as a result of the failure to sever. We conclude that he did not. In this determination we must balance the public's interest in economy of judicial administration with the possible prejudice to the defendant. United States v. Salomon, 609 F.2d 1172, 1176 (5th Cir.1980); United States v. Sudderth, 681 F.2d 990, 996 (5th Cir.1982). Again there is no doubt that Baker's testimony was extremely damaging to Lee, but Baker would have been available as a government witness even in a separate proceeding. Again, seven other witnesses, three of whom were former law enforcement officers, connected Lee with the torture. As in United States v. Herring, 602 F.2d 1220, 1225 (5th Cir.1979), cert. denied, 444 U.S. 1046, 100 S.Ct. 734, 62 L.Ed.2d 732 (1980), this is a case in which severance would have resulted in separate proceedings concerning the same transactions, and in which the same evidence would have been presented.


In short, we conclude that the defenses raised by Lee and Baker were not so irreconcilable as to be mutually exclusive, and Lee did not suffer compelling prejudice.




More than Nuremberg: Update: Rahm Says "No Prosecutions"

by Valtin


Joan Walsh

UPDATE: This is important, and I'm essentially using this diary to make the community aware. This morning on "This Week with George Stephanopoulos", Obama's chief of staff, Rahm Emanuel, said the White House did not support prosecuting -- not only CIA officers who tortured, believing in "good faith" what they were doing was legal -- but would also not support the prosecution of "those who devised the [interrogations/torture] policy." This is clearest statement yet from the Obama White House of their (non-)intentions, and it's an outrage. -- Here's the link to the video, and H/T to Ateo at sharistuff'sexcellent diary.

I challenge Daily Kos regulars: how much do you really care about prosecutions of torturers from the Bush administration? Because the gauntlet is now thrown down (not by me, by Obama).

Now back to our regular diary, which was originally titled, "More than Nurmemberg: 1000s Prosecuted for War Crimes After World War II".

Valtin's diary 

While the example of the Nuremberg Trials is used often these days to describe what prosecutions might look like, few seem to remember that the prosecution of war criminals after World War II was much larger and took place over a longer period of time than most people realize. This is important when one considers the context of President Obama's granting of immunity to lower-level CIA interrogators (if they acted in "good faith" upon "authoritative" legal advice).

What even a cursory examination of historical precedent demonstrates is that after World War II prosecution of war criminals and accessories to war crimes were not limited to the famous Nuremberg 22 high-level Nazis, nor the few hundred or so prosecuted through the Nuremberg tribunals, but thousands of accused throughout Europe.

What follows is a brief lesson in how these prosecutions occurred, who was involved, and where and when they took place.

It may surprise you that the United States, for instance, has an Office of Special Investigations (OSI) at the US Department of Justice. Its mission was to hunt down war criminals and bring them to justice. Established only in 1979, the OSI has a sterling record:

As of 2008, OSI has successfully prosecuted 107 Nazi persecutors. OSI has also worked closely with the Department of Homeland Security to stop more than180 former European and Japanese Axis perpetrators and suspected perpetrators of acts of persecution at U.S. ports of entry and bar them from entering the United States.

But looking back to the immediate post-World War II period, I found this at Teachers Guide to the Holocaust:

In addition to the well-known Nuremberg Trials of 1945-46 [of 22 defendents], there were Subsequent Nuremberg Proceedings held between December 1946, and April 1949, which tried 177 persons. Individual countries also prosecuted war criminals in national courts of law. The British held trials of the commandant and staff of the Bergen-Belsen camp, those responsible for forced labor, and the owners and executives of the manufacturer of Zyklon B, among others. The Netherlands, Hungary, Norway, Poland, West Germany, and Romania were some of the other countries that brought war criminals to trial.

Prosecutions continued for decades after World War II. Many are familiar with the trials of Adolph Eichmann and Klaus Barbie. Consider this from Eli Rosenbaum, who in 2000 was Director of the OSI at the US Department of Justice:

Let us look, if you will, just at the past month, February 2000. In one month, my office won two prosecutions. One at the United States Board of Immigration Appeals, the other, two weeks ago, at the United States Supreme Court, involving the case of former Auschwitz SS man Ferdinand Hammer. The Canadian government, just last week, won its citizenship case against Helmut Oberlander, a member of a mobile killing unit. And just last month, the British authorities won the appeal of the Sawoniuk case, a Ukrainian perpetrator, at the High Court in London. And only a few months ago the Croatian government, which frankly had to be dragged kicking and screaming into this prosecution, successfully prosecuted Dinko Sakic, the former commandant of the Jasenovac concentration camp.

Then, there's also the Documentation centers established to bring war criminals to justice (from the Danish Center for Holocaust and Genocide Studies):

After World War II, centres, commissions and offices were established with the purpose of bringing Nazi war criminals to trial. They collect information, investigate crimes, pass on names of Nazis to their respective governments and take action against Nazi criminals in their own countries.

‘Zentrale Stelle Ludwigsburg’ is Germany’s documentation centre, which collects evidence for the prosecution of crimes committed during the nazi regime in the period 1933-1945.

Immediately after World War II, the provisional Polish government established the ‘Central Commission for Investigation of German Crimes in Poland’. The main commission has since then investigated nazi crimes committed in Poland during World War II and these days exist under a different name, the 'Main Commission for the Investigation of Crimes against the Polish Nation'....

The ‘Simon Wiesenthal Center’ in Vienna, founded by the Nazi-hunter Simon Wiesenthal, is perhaps the most famous documentation centre. Since World War II, the centre has tracked down many Nazi war criminals.

And the trials continued:

Poland was relatively quick to convict the camp personnel from Auschwitz – at least those that could be found. Trials were initiated against at least 600 members of the Auschwitz camp personnel. Among these were the two camp commandants, Rudolf Höss and Arthur Liebehenschel, who were sentenced to death in 1947. Rudolf Höss was hanged in Auschwitz in 1941 [sic] [actually, in April, 1947 -- V.]. A total of 21 were executed....

In West Germany the so-called Auschwitz Trials were conducted against the camp guards from the concentration and extermination camp at Auschwitz. The largest of these trials took place in Frankfurt am Main between 1963 and 1965, where 20 were accused. 17 were given jail sentences....

On 3 July 1964 twelve of the personnel in the extermination camp Sobibor stood accused of participating in the murder of Jews in the camp. All twelve were accused of assisting in the killings. The trial itself began in Hagen on 6 September 1965 and ended on 20 December 1966. More than 100 witnesses were called.

Major war crimes trials occurred in over 30 European cities between 1943-1947, from Paris to Riga, from The Hague to Bratislava, Bucharest, and Kharkov. Among those prosecuted were "concentration camp guards and commandants, police officers, members of the mobile killing squads, and doctors who participated in medical experiments."

The U.S. National Holocaust Memorial Museum has this to say:

The overwhelming majority of post-1945 war crimes trials involved lower-level officials and functionaries. In the immediate postwar years, the four Allied powers occupying Germany (and Austria) -- the United States, Great Britain, France, and the Soviet Union -- held trials in their zones of occupation and tried a variety of perpetrators for wartime offenses. Many of the earliest zonal trials, especially in the U.S. zone, involved the murder of Allied military personnel who had been captured by German or Axis troops. In time, however, Allied occupiers expanded their juridical mandate to try concentration camp guards and commandants and others who had committed crimes against Jews and others who suffered persecution in areas the Allies now occupied. Much of our early knowledge of the German concentration camp system comes from the evidence and eyewitness testimonies at these trials....

Allied Control Council Law No. 10 of December 1945 authorized German courts of law to pass sentence on crimes committed during the war years by German citizens against other German nationals or against stateless persons. For this reason, occupation officials left Euthanasia crimes -- where both victims and perpetrators had been predominantly German nationals -- to newly reconstructed German tribunals. These proceedings represented the first German national trials in the early postwar period. Both the German Federal Republic (West Germany) and the German Democratic Republic (East Germany) continued to hold trials against Nazi-era defendants in the decades following their establishment as independent states. To date, the Federal Republic (in its old manifestation as West Germany and in its current status as a united Germany) has held a total of 925 proceedings trying defendants of National Socialist era crimes. Many detractors have criticized German proceedings, particularly those held in the 1960s and 1970s, for doling out acquittals or light sentences to aging defendants or defendants who claimed superior orders.

Many nations which Germany occupied during World War II or who collaborated with the Germans in the persecution of civilian populations, especially Jews, have also held national trials in the years following World War II. Poland, the former Czechoslovakia, the Soviet Union, Hungary, Romania, and France, among others, have tried thousands of defendants -- both Germans and indigenous collaborators, in the decades since 1945. The Soviet Union held its first trial, the Krasnodar Trial, against local collaborators in 1943, long before World War II had ended. Perhaps Poland's most famous postwar national trial was held in 1947 in Krakow. The proceedings tried a number of functionaries of the Auschwitz concentration camp and sentenced Auschwitz camp commandant Rudolf Höss and others to death.

Another source notes the French tried over 2,000 "lesser criminals for crimes against humanity and war crimes" (see footnote 9 at link).

As we can see, the amount of people prosecuted for war crimes is much more than most people (even myself, prior to doing this research) imagined!

As the protest over the immunity granted by Obama to CIA torturers continues -- as to how much immunity it really grants, whether it was smart, whether it was a capitulation to blackmail, or a wily maneuver to get the top leadership of the Bush years -- we should all consider the lessons of history as regards prosecutions for war crimes. This history, so recent it seems, is already largely forgotten or misunderstood as pertains to the prosecutions argument.

This brief essay is an attempt to correct those misconceptions, and restore a sense of continuity with the precedents set by our immediate forebears as regards who should be prosecuted for war crimes. The criminals who are or recently were in the U.S. government should soberly consider the many decades the pursuit of war crimes can persist.

If I were them -- and I say this with a straight face -- I'd turn myself in and throw myself on the mercy of the court.

Also posted at InvictusProgressive Historians, and Docudharma

Impeach Jay Bybee, and ignore Rahm Emanuel


The blogosphere has been charged with debate about impeaching Jay Bybee, the deputy attorney general whose name is on arguably the worst torture memo released last Thursday. Bruce Ackerman wrote a convincing case for impeaching Bybee on Friday; today the New York Times joined the cause with a fiery editorial: "These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him."

But the editorial goes beyond that point – read the whole thing – to make the case that President Obama and Congress have a legal obligation to investigate the entire chain of command behind Bybee and other government lawyers' sick, skewed defense of torture.

"[I]f the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.

After eight years without transparency or accountability, Mr. Obama promised the American people both. His decision to release these memos was another sign of his commitment to transparency. We are waiting to see an equal commitment to accountability."

Unfortunately, on ABC's "This Week," White House chief of staff Rahm Emanuel seemed to say that Obama had ruled out prosecuting not only CIA officials and agents but also higher-ups who authorized the torture.

STEPHANOPOULOS: Final quick question. The president has ruled out prosecutions for CIA officials who believed they were following the law. Does he believe that the officials who devised the policies should be immune from prosecution?

EMANUEL: What he believes is, look, as you saw in that statement he wrote, and I would just take a step back. He came up with this and he worked on this for about four weeks, wrote that statement Wednesday night, after he made his decision, and dictated what he wanted to see. And Thursday morning, I saw him in the office, he was still editing it.

He believes that people in good faith were operating with the guidance they were provided. They shouldn't be prosecuted.

STEPHANOPOULOS: What about those who devised policy?

EMANUEL: Yes, but those who devised policy, he believes that they were -- should not be prosecuted either, and that's not the place that we go -- as he said in that letter, and I would really recommend people look at the full statement -- not the letter, the statement -- in that second paragraph, "this is not a time for retribution." It's time for reflection. It's not a time to use our energy and our time in looking back and any sense of anger and retribution.

Emanuel can't be the last word on that; he's the politics guy, and sure, there are political risks to pursuing the architects of our torture policy. But the political risks that come with ignoring what happened are so much greater.

I was also grateful to the Times for a terrific Saturday piece that laid out in sickening detail the points I made in my CNN debate with G. Gordon Liddy Thursday night: In the case of Abu Zubaydah, U.S. officials claimed they were torturing a top al-Qaida leader with a strong psychological and spiritual backbone; instead they tortured a flunky who was probably crazy before they tortured him, and who gave them nothing of value despite the abuse.

There were a couple of fascinating tidbits in the Times piece that I hadn't known. For one thing, the useful piece of information Zubaydah gave the U.S. – that the top planner of 9/11 was Khalid Sheikh Mohammed – came before the torture began, when Zubaydah was interrogated by FBI agents who were playing good cop, helping him get medical treatment for the wounds he suffered in his capture.

Second, and this was chilling, some of the interrogators on hand began to blanch at the abuse of Zubaydah, and also came to believe he had no more to tell them – but "top CIA officials back at headquarters" continued to push for more harsh treatment. I don't care if Obama says he has no plans to punish them; we need to know the names of these incompetent sadists.

I'm concerned about the relative silence from the Obama administration and Congress about what comes next. There clearly needs to be a torture investigation; personally, I'd prefer that it be led by an independent prosecutor at this point. I think there is more than enough proof that laws were broken, and we need accountability. But I'd support starting with a strong Congressional probe if there's more political will for that right now.

I believe that every step we take to learn more will only strengthen the case that someone must be held accountable for the lawless cruelty that marked the Bush-Cheney torture regime. We can start by impeaching Jay Bybee, but it can't end there.


The News In An Aggregation Update:


The Los Angeles TimesNew York Times, and Washington Post lead with the Justice Department documents released by the Obama administration that provide the most detailed accounting to date of the harsh interrogation tactics used by the Central Intelligence Agency during the Bush administration, as well as the legal reasoning to back them up. At the same time, the administration made it clear that CIA officers who followed the guidelines would not be prosecuted. The four memos, one from 2002 and three from 2005, spell out in painstaking detail the techniques that could be used to get information from prisoners.

Many of the interrogation tactics described in the Justice Department memos were already well-known, but others either haven't received a lot of attention or were unknown. The two highlights involve insects and "walling." In one memo, lawyers allowed interrogators to exploit a prisoner's fear of insects by putting him in a small box with what they would describe as a stinging insect when, in fact, it would be a harmless one, "such as a caterpillar." The technique was allowed, although never actually used, as long as the prisoner was told the insect "will not have a sting that would produce death or severe pain." In the practice known as "walling," a prisoner could be pushed "quickly and firmly" against a "flexible false wall" so that his shoulder blades hit the wall and produce a loud noise. Interrogators could do this up to "thirty times consecutively."

Even if most of the techniques had already been known, that doesn't make the memos any less terrifying, particularly when all the techniques are brought together and described in such detail. Prisoners could be deprived of sleep for as many as 11 days, confined to small boxes, doused with water as cold as 41 degrees, kept shackled for days at a time, and slapped in the face and abdomen, among others. All with the ultimate goalof making prisoners feel as if they have "no control over basic human needs." The memos also included extensive discussions about water-boarding and how it should be carried out. But the NYT points out that these directives weren't always followed, and one memo notes that water-boarding was used "with far greater frequency than initially indicated" and with "large volumes of water."

The LAT notes that, as outlined in the documents, "[e]ven the less violent techniques … can have a harrowing aspect," and points out that a prisoner being deprived of sleep would have his feet shackled to the floor, his hands cuffed near his chin. In that position the prisoner would be forced to wear a diaper and fed by hand and wouldn't be able to fall asleep because he would lose his balance.

Reading through the memos, it is evident that the administration's lawyers devoted lots of effort to justifying each and every technique. As the WP notes, the lawyers seemed to "put significant weight on the question of whether the tactics would cause severe, lasting pain."

The memos were released after a long, drawn-out fight within the upper echelons of the Obama administration. The CIA opposed the Justice Department's desire to release the documents. But ultimately, the documents were released practically without redactions, marking a victory for Attorney General Eric Holder. The talks became more urgent in recent weeks as the administration faced a court-imposed deadline in a lawsuit filed by the American Civil Liberties Union to obtain the documents. Obama said the documents illustrated "a dark and painful chapter in our history," but the WSJ reports that the president "wrestled with the decision" on Wednesday night and had been considering redacting more of the information. The WSJ says that one of the main factors that pushed Obama to release the documents was that the New York Review of Books had published the Red Cross account of the interrogations, which led him to conclude that most of the information was already known.

Although Obama said that those who followed the advice from Justice would not be prosecuted, a carefully worded statement seems to leave "open the possibility that operatives and higher-level administration officials could face jeopardy if they ventured beyond the boundaries drawn by the Bush lawyers," notes the Post. The NYT also points out that it's not clear whether the lawyers themselves could be penalized in some way.

Bush Memos Suggest Abuse Isn’t Torture If a Doctor Is There

Former CIA Director Michael V. Hayden was fond of saying that when it came to handling high-value terror suspects, he would play in fair territory, but with “chalk dust on my cleats.”Four legal memos released yesterday by the Obama administration make it clear that the referee role in CIA interrogations was played by its medical and psychological personnel.

According to the U.S. Department of Justice’s Office of Legal Counsel, which authored the memos, legal approval to use waterboarding, sleep deprivation and other abusive techniques pivoted on the existence of a “system of medical and psychological monitoring” of interrogations. Medical and psychological personnel were assigned to monitor interrogations and intervene to ensure that interrogators didn’t cause “serious or permanent harm” and thus violate the U.S. federal statute against torture.

The reasoning sounds almost circular. As one memo, from May 2005, put it: “The close monitoring of each detainee for any signs that he is at risk of experiencing severe physical pain reinforces the conclusion that the combined use of interrogation techniques is not intended to inflict such pain.”

In other words, as long as medically trained personnel were present and approved of the techniques being used, it was not torture.

The memos provide official confirmation of both much-reported and previously unknown roles of doctors, psychologists, physician assistants and other medical personnel with the CIA’s Office of Medical Services (OMS). The government’s lawyers characterized these medical roles as “safeguards” for detainees.

Medical oversight was present from the beginning of the special interrogation program following the 9/11 attacks and appears to have grown more formalized over the program’s existence. The earliest of the four memos, from August 2002, states that a medical expert with experience in the military’s Survival Evasion Resistance, Escape (SERE) training would be present during waterboarding of detainee Abu Zubaydah and would put a stop to procedures “if deemed medically necessary to prevent severe medical or physical harm to Zubaydah.” (All interrogation techniques, the memos said, were “imported” from SERE.)

Later, OMS personnel were involved in “designing safeguards for, and in monitoring implementation of, the procedures” used on other high-value detainees. In December 2004, the OMS produced a set of “Guidelines on Medical and Psychological Support to Detainee Rendition, Interrogation and Detention,” a still-secret document that is heavily quoted from in three legal memos that were written the following year.

The CIA declined our request to comment further on the OMS’ role in detainee treatment. The OMS employs physicians, psychologists and other medical professionals to care for CIA employees and their families.

Perhaps the most chilling aspect of the memos is their intimation that medical professionals conducted a form of research on the detainees, clearly without their consent. “In order to best inform future medical judgments and recommendations, it is important that every application of the waterboard be thoroughly documented,” one memo reads. The documentation included not only how long the procedure lasted, how much water was used and how it was poured, but also “if the naso- or oropharynx was filled, what sort of volume was expelled… and how the subject looked between each treatment.” Special instructions were also issued with regard to documenting experience with sleep deprivation, and “regular reporting on medical and psychological experiences with the use of these techniques on detainees” was required.

The Nuremberg Code, adopted after the horrors of “medical research” during the Nazi Holocaust, requires, among other things, the consent of subjects and their ability to call a halt to their participation.

The memos also draw heavily on the advice of psychologists that interrogation techniques would not be expected to cause lasting harm. At times this advice sounds contradictory. While calling waterboarding “medically acceptable,” the OMS also deemed it “the most traumatic of the enhanced interrogation techniques.”

The fact that traumatic events have the potential to cause long-lasting post-traumatic stress syndrome has been well documented. Physicians for Human Rights, in interviews with eleven former detainees held in Iraq and Afghanistan, found “severe, long-term physical and psychological consequences.” “All the individuals we evaluated were ultimately released without ever being charged,” said Dr. Allen Keller, medical director of the Bellevue/New York University School of Medicine Program for Survivors of Torture.

The memos describe the techniques in highly precise and clinical detail, befitting a medical textbook. During waterboarding, in which a physician and psychologist were to be present at all times, “the detainee is monitored to ensure that he does not develop respiratory distress. If the detainee is not breathing freely after the cloth is removed from his face, he is immediately moved to a vertical position in order to clear the water from his mouth, nose and nasopharynx.” Side effects including vomiting, aspiration and throat spasm that could cut off breathing were each addressed: “In the event of such spasms…if necessary, the intervening physician would perform a tracheotomy.”

While physician assistants could be present when most “enhanced” techniques were applied, “use of the waterboard requires the presence of a physician,” one memo said, quoting the OMS guidelines.

Doctors were also described as having vetted the practices for safety. Certain limits on waterboarding were created “with extensive input from OMS.” One memo states that OMS “doctors and psychologists” confirmed that combining the various techniques “would not operate in a different manner from the way they do individually, so as to cause severe pain.”

Medical and psychological personnel were required to observe whenever interrogators came into physical contact with detainees, including slapping them and pushing them into flexible walls (“walling”). Whenever a detainee was doused with cold water, a medical officer had to be on hand to monitor for signs of hypothermia. Confining prisoners to cramped boxes required “continuing consultation between the interrogators and OMS officers.” Prisoners made to stand for long periods to prevent sleep were to carefully monitor detainees for swelling of the legs and other dangerous conditions, and at least three times early in the program were switched, on medical advice, to “horizontal sleep deprivation.”

This was one example of how medical personnel could, according to the CIA, help prevent “severe physical or mental pain or suffering” on the part of the detainees. However, the memos show that the OMS’ role was not merely to limit the medical impact of interrogations, but also to consult on the effectiveness of interrogations. A May 30, 2005,memo quotes the OMS suggesting that cramped confinement was “not…particularly effective” because it provides “a safe haven offering respite from interrogation.”

This was one example of how medical personnel could, according to the CIA, help prevent “severe physical or mental pain or suffering” on the part of the detainees. However the memos show that the OMS’s role was not merely to limit the medical impact of interrogations, but also to consult on the effectiveness of interrogations. A May 30, 2005 memo quotes the OMS suggesting that cramped confinement was “not…particularly effective” because it provides “a safe haven offering respite from interrogation.”

Monitoring interrogations is a role that the American Medical Association, among others, has rejected, pointing out that the presence of physicians or other medical personnel could paradoxically make interrogations more dangerous. As Keller explains it: “The interrogator may think well, the health professional will stop me if I go too far. The health professional is thinking I’m really here at the behest of the CIA. There’s a tension of dual loyalty.”

Just as officials in the Justice Dept. now condemn waterboarding as torture, so, too, did opinion change at another organization, the American Psychological Association. In the frightening days following the 9/11 attacks, “there were two schools of thoughts in the psychological community. One was if you were there on the ground you could do some good," said APA spokesperson Rhea Farberman, whose organization was criticized for originally taking that position. The group's current stance is to forbid psychologists from participating, she said. "If you are there on the ground, you may be seen as condoning the behavior.”

Some medical professionals are calling for colleagues to be investigated and sanctioned. But finding out which professionals were involved in designing, monitoring and implementing the interrogation techniques may be difficult. The four memos were released almost in their entirety. The few redactions concerned mainly the names of the personnel involved.

Sheri Fink is both ProPublica reporter and a medical doctor.


The New York Times leads with word that senior CIA officials ordered the use of water-boarding and other rough treatment against an al-Qaida detainee, despite interrogators' conviction that the prisoner had already revealed everything he knew. In a similar off-lead story, the Washington Post investigates the role of psychologists and other health officials in condoning and facilitating the abuse of detainees; medical ethicists say the supervising psychologists and physicians violated their profession's basic standards by participating in the interrogations.

An already-cooperative al-Qaida prisoner, initially believed to be a senior leader but later determined to be merely a personnel clerk, was water-boarded, slammed against walls, confined in boxes, and deprived of food, despite his captors' belief that he knew nothing of further value, reports the NYT. An official involved in the interrogation said the treatment, carried out on direct orders from CIA headquarters, plunged the prisoner into the "depths of human misery and degradation" but produced no new breakthroughs. "He pleaded for his life," the official said. "But he gave up no new information. He had no more information to give."

Inside, the NYT reports that further revelations are likely, with members of Congress and human rights lawyers pushing for more details about CIA interrogations in the light of the torture memos released this week. "These are the first dominoes," said one ACLU lawyer. "It will be difficult for the new administration to now argue that other documents can be lawfully withheld." On the other hand, the LAT reports that the White House and the Senate intelligence committee are in the early stages of conducting studies to determinewhether water-boarding produced useful evidence—a process that "may determine whether the methods banned by President Obama will ever be used again by the U.S." (Looks like Slate's Dahlia Lithwick may have been onto something.)


Open Left:: De-Nazify America--Part 4: Accountability Watch ...
By Paul Rosenberg 
Impeachment means he gets a chance to defend himself, and we, the people, get a chance to hear that defense in a public proceeding. This sort of openness and accountability is at the very heart of what's been lacking these last eight ...
Open Left - Front Page -




In 1996, the Nuremberg Defense was successfully used by Erich Priebke, although the verdict was appealed and he was later convicted. It was used with varying degrees of success by those involved in the Hostages Trial

Based on this principle international law developed the concept of individual criminal liability for war crimes which resulted in the current doctrine of Command responsibility

“An individual must be involved at the policy-making level to be culpable for a crime against peace ... the ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict. Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper.”[4] [5]

Probably the most famous case of the "I was only following orders" defense was the court-martial (and conviction for premeditated murder) of First Lieutenant William Calley for his part in the My Lai Massacre on March 16, 1968. The military court rejected Calley's argument of obeying the order of his superiors. On March 29, 1971, Calley was sentenced to life in prison. However, the public outcry in the United States following this very publicized and controversial trial was such that President Nixon granted him clemency. Calley wound up spending 3 1/2 years under house arrest at Fort Benning Georgia, where a federal judge ultimately ordered his release.

In 2004, the military began court-martials of several military members deployed to Iraq for mistreating prisoners and detainees. Several members claimed that they were only following the orders of military intelligence officials. Unfortunately (for them), that defense won't fly. The mistreatment of prisoners is a crime under both international law, and the Uniform Code of Military Justice (see Article 93 — Cruelty and Maltreatment).

It's clear, under military law, that military members can be held accountable for crimes committed under the guise of "obeying orders," and there is no requirement to obey orders which are unlawful. However, here's the rub: A military member disobeys such orders at his/her own peril. Ultimately, it's not whether or not the military member thinks the order is illegal or unlawful, it's whether military superiors (and courts) think the order was illegal or unlawful.

Hitler killed only one person in his lifetime: himself. All the other atrocities that are attributed to him were carried out by people who were only following orders.

The war in Iraq is illegal; therefore,  all the deaths and atrocities that have occurred to date, inflicted by our coalition forces, are the acts of individuals who, knowingly or unknowingly, with good intentions or not, have been willing to break the law in order to follow the orders of superiors. 

Each member of the US military took an oath to preserve, protect and defend the Constitution of the United States. Each also took a pledge to follow the legal orders of the Commander in Chief. Under the Constitution, no soldier is required to follow an illegal order.
But that's what many Americans have been doing now for quite some time. And this is not confined to our military personnel, but also to members of the FBI, the CIA, the NSA (the folks who have been carrying out those illegal wire taps), outsourced contractors, the media, and perhaps most egregious of all— elected members of Congress, who for all intents and purposes, put their conscience and oversight responsibilities on hold as they get their marching orders from the Oval Office or from party leaders.

The primary reason that many of those who do follow illegal orders, or otherwise fall into line under pressure, is that if they refused, they would be subject to severe ridicule and/or punishment. They know that if they subjected themselves to this ridicule or punishment, that we would not do anything to protect them from that injustice. 

And so, in pursuit of this war, we have suspended the Constitution. Many members of Congress have supported the administration in carrying out illegal acts, rationalizing that such behavior is in the name of national security. That was Hitler's rationale too. Innocent people have been killed, wounded, tortured, rendered, humiliated, had their privacy invaded, and their lives dismantled all in the name of national security. Anyone who objects can now be put under suspicion and may be targeted for future intimidation or worse. According to members of Congress, nothing this administration does is egregious enough to qualify them for impeachment.

The stories of individuals who have been damaged by the illegal acts of our government and their agents are beginning to filter through. But the damage that's been done is far greater than the stories yet told. Damage done to our Constitution and to our self respect will likely take a heavy toll for generations to come. 

And yet for most Americans their sensibilities are not disturbed by what's been happening… many do not want to hear about it. Those who do hear about it, make up their own rationalization of why it's ok. Many simply don't know what to think or do. 

This all leads
 to the fact that with every victory the Bush administration experienced, the light of liberty and freedom will dimmed a little more. If we were to achieve the victory that Bush talked about in Iraq, it would not help the cause of freedom; it would help to kill it. It would have only encouraged his hubris, his arrogance. He didn’t want democracy, he only wanted stability.

He and his kind only wants the oil. He doesn't believe in the Constitution or the rule of law. He has the sensibilities of a despot. 

Since the atrocities and illegalities for which his administration is responsible have not been repudiated by Congress or the American people, he and his conspirators will continue to conclude that there is no limit to their power… all they have to do is take however much they want... but do it just a little bit at a time. And there is no reason to suspect that they will not do just that and use that power for their own purposes, whatever that might be. 

The ends do not justify the means. If we do not identify, explore, and repudiate the illegal acts of this government, soon the fist of injustice will come knocking at every door… if history teaches us anything at all, it surely teaches us that.

There was good reason for secrecy in the Bush administration. The reason they didn’t and do do not
 want to conduct or discuss their activities in the light of day is because eventually the American people would figure it out: they would come to the conclusion that the reason the so called terrorists are out to kill Americans is because secretly the American government has been responsible for murder and the disenfranchisement of decent people all over the world. The United States has been active in destroying democratic institutions for a long time. We have done this to satisfy American greed for resources that don't belong to us, oil being supreme among them. We have caused people in Middle Eastern countries to suffer tyrants like Saddam Hussein and the Saudi family. 

American leaders favor tyrants. We help install them. We work very hard to keep them in place. We like tyrants because we can buy them off in a protection racket. We use our money and our military power to support their illegitimate regimes in exchange for cheap oil, or whatever the resource happens to be. In all countries it works pretty much the same. And in these countries it is ordinary people who suffer because of our policies. 

When some of these people finally decide to strike out, fight back, to get us to stop, our leaders call it terrorism and then they ask us to send our children to die in battle fighting these 'bad' guys. They tell us that we are being attacked for no other reason than that they hate our freedom and our democracy. And we believe them; and we send our children to die and to kill because we don't have the knowledge or courage not to believe them. We are so afraid; we are even willing to send our beautiful children to die and to kill. What a price to pay for ignorance and blind faith.

No one in Congress has been willing to stand up and say what I just said. It is only the truth that will save us. Nothing less will do. The truth, the whole truth, and nothing but the truth.

Stand up. Speak out. Remove the traitors from their perches; investigate them; expose them; indict them, prosecute them, convict them, imprison them or they will take our children and turn them into criminals like themselves. Grant no Amnesty, No Immunity, No Pardons and where the Obama Administration has so moved; fight back and demand reversal of course with every fiber of your being and every drop of your blood if need be.



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