The Need for Nuremberg-style Trials for the USA

We all knew that the US forces and officials under the George W. Bush regime were torturing people not only at Guantanamo Bay but at other secret camps across the World. We knew that torture was used at the US-run Abu Ghraib in Iraq. We know now that the British Security Service, MI5 and even the Greater Manchester Constabulary were involved in driving torture in Pakistan. In recent days confirmation of what we believed and has been corroborated by released prisoners, has come in the form of high-level memos about torture techniques used by the US security services, notably the CIA. I have discussed before how the 11th September 2001 attacks on the USA gave its government the feeling that it had a free hand to carry out any activity it deemed as necessary, going far beyond the acceptable bounds of behaviour for any government let alone that of a democracy and self-vaunted 'Land of the Free'. It led the US government to criticise those countries it felt was not going far enough in violating civil liberties and so has damaged them not just in the USA but more widely across the World. In looking at George W. Bush's regime we must see that his the policy which has had most impact in the World has been to make abduction and torture acceptable. Did Bush never realise that he had lost the War on Terror the moment he made the USA a terror state? What is the point of fighting to defend liberty if you have already killed it in your own country?

It is good that the new US President Barack Obama has had the courage to make public the memos which expose how far the previous regime, and no doubt so many of the agents and officials still in power, went in adopting totalitarian, terrorist techniques. One important thing is that it vindicates those people who have been released and have spoken of torture. Many people remained sceptical, feeling these former detainees (they were not convicts as they were never convicted of a crime) had reasons to condemn the US and perhaps exaggerate their treatment. We now know that they had no need to exaggerate anything; the USA was constantly torturing people. I was stunned by a radio report today that said it had been revealed one detainee had been 'water boarded' effectively brought to the edge of drowning (the detainee is tied down and has cloth placed over their mouth and nose which is then soaked making it almost impossible to breath), far more times than had so far been revealed and in fact it had happened 186 times in one month. On my calculations that is 6-7 times every day. Try and imagine almost being killed repeatedly, many times per day, every day. In addition, this was just one among a wide repertoire of psychological and physical torture inflicted on the detainees. This is factory torture, it is a process that goes beyond what we know of many totalitarian regimes and a world that has had the Soviet system, Idi Amin's regime, the Nazis, China today, Pol Pot's regime, that is a difficult league to get into let alone to reach the top.

It is clear the torture was not being done to gain information, it was simply for Americans to exercise their fury at those they saw as responsible for daring to violate US society by terrorist activity. The rest of the World was rather sickened by the Americans whining on about how the 11th September 2001 attacks were so horrific and so exceptional. Many people across the World, including here in the UK, have been living with terrorism for over 30 years, what made the Americans so special? The constant torturing of detainees stems from the delusion that the Bush administration suffered from that across the World was this vast organisation called Al-Qaeda, with Osama bin-Laden sitting at the centre like Ernst Stavro Blofeld of SPECTRE in the James Bond novels. We know George W. Bush is not intelligent and it is clear that he was easily led to believe that fiction had become reality. There are Al-Qaeda operatives out there, but more than that the word 'Al-Qaeda' is a banner which lots of local Islamist terror groups use to scare people. These are at best cells and more likely, just disparate groups adhering to a title which they know will make them appear bigger than they actually are. You can torture detainees as much as you like but they are going to be unable to tell you details of Al-Qaeda because it has never existed in the form the US administration persists in believing. Al-Qaeda followers (and I use that word to distinguish from 'members') did have connections with the Taliban but certainly none with Saddam Hussain's regime in Iraq.

Now, unsurprisingly, Barack Obama has done the right thing in bringing all of this to light. He knows that the USA can never be safe if it is not seen to be a state that does not engage in terrorist activity itself. It will take many years to restore people's faith in the USA, and Obama is right to start by coming clean as early as possible. Of course it puts him in a difficult position as it has generated hostility from his own intelligence/security bodies. I hope Obama checked who was loyal to him among these bodies as it would be to the entire World's detriment if he happens to be assassinated by a 'rogue' US agent, probably an Arabic one in order to scare the US public back into fearing the 'threat' to their country. The officials are unrepentant, Obama was advised not to reveal the memos and former head of the CIA General Michael Hayden and Michael Mukasey, Attorney General 2007-9 said it would undermine the moral of the intelligence services, invite scorn of the USA's enemies (whereas they have invited the scorn of the USA's friends) and certainly stimulate a 'faux outrage' about what had happened. This insults the World, there is nothing 'faux' i.e. forced or false about our outrage, believe me it is genuine, so much so it is painful. It is painful to see a country which lauds liberty and democracy not only pursuing terrorist tactics but also having shifted the sense of what is 'normal', let alone what is right, to the extent that they cannot understand why people are offended by such horrific behaviour.

Obama was told by Leon Panetta, Director of the CIA not to release the memos because they would give away techniques that the CIA might want to use again in the future. This echoes statements by Hayden and Mukasey. That in itself is scary, that the CIA is not only willing to draw a line at using torture but will not rule out using it again in the future. It also betrays an ignorance of the public. Anyone who wants to know torture techniques, as I have noted before, only has to watch popular television programmes. If you want to know more Amnesty International has been producing information on what governments have been doing for decades now. Panetta's concern is that the memos end the speculation, they show high-level approval for things we only suspected before were being used. Despite the popular perception that intelligence services have all the highest level high-tech equipment, they are very attached to old fashioned methods. I remember MI5 being unwilling in the late 1990s to allow documents produced in 1895 to come into the public domain because they said that the techniques mentioned were still relevant over 100 years later. How do they expect to apprehend anyone if they are using methods developed before aeroplanes and when the car and telephone were novelties and a mobile phone that that fitted your palm was a video camera and could send information to the whole world in seconds. The historian M.R.D. Foot pointed out that during the late 1980s he had been able to go to a small regional museum in the USSR and find many of the documents MI5 was unwilling to reveal to its own population.

The US administration under Bush under went that shift of perceptions that we see in all dictatorships. What is acceptable is altered. For example, in Nazi Germany, it became accepted that Jews were not people but vermin and so needed to be exterminated. In Stalin's USSR it became accepted that anyone could be suspect and deserved to be killed or sent to a gulag. In modern day China it became accepted that anyone who was deemed to be a landowner or an intellectual should be abused and nowadays that anyone from particular religious groups or asking for independence for Tibet or East Turkistan or for some freedom of speech should be suppressed and tortured. In these countries under those regimes, 'normal' shifted to what the bulk of the World sees as abnormal and horrific. The fact that the officials believe Obama only acted in order to garner media plaudits shows how far away they have got from normality. Obama did it because the memos revealed how evil agents of his own country had been and he felt that had to cease and not be done again.

With Abu Gharib, there was the excuse that low-level troops got out of hand and that though there was a permissive atmosphere from senior officers, there was no clear direction to use torture. With these memos we see that John Yoo and Jay Bybee were writing torture policy for Bush. Bybee, a Mormon, was Assistant Attorney General 2001-03; John Yoo was an assistant to the Attorney General and a law professor. Quotations from him about the legality of torture make you sick. On 1st December 2005 at a debate at Notre Dame University, Chicago, he even condoned the theoretical crushing of the testicles of the child of a detainee if that was felt necessary by the President to secure the information desired. Yoo wanted to have US forces exempt for war crimes prosecutions. Quite rightly given that he provided the so-called legal 'golden shield' for US officials carrying out torture the Spanish government is looking into trying him for war crimes. Yoo, of course, all along has believed that the USA is exempt from things like the Geneva Convention on the treatment of prisoners. He also believes that the US government is exempt from its own constitution for example in regard to the 4th Amendment preventing surveillance of US citizens in the USA. With such people at the top of the administration actively embracing torture it is unsurprising that it was used vigorously by lower level officers/officials. Yoo is one of the 'Bush Six' which includes Bybee, former Attorney General, Alberto Gonzalez; Douglas J. Feith, former Under Secretary of Defense for Policy; William J. Haynes II, former General Counsel to the Department of Defense and David S. Addington, former chief of staff and legal counsel to former Vice-President Dick Cheney and the man seen as co-ordinating the clear policy of adopting torture. Cheney has asked the CIA to declassify material showing the 'success' of torturing as if this will justify and excuse it. As Obama has noted this shows how far the US administration had lost its 'moral bearings'.

Since the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the USA and China are among the signatories), it has been possible for any state to try someone for torture even if the activity has been carried out in another country. This is why Spain was looking to prosecute the Bush Six. These men have warned that if they travel outside the USA they are likely to be arrested on war crimes charges. Of course unlike the Guantanamo Bay detainees they will not find themselves abducted and turn up in a camp in Canada or Mexico or Spain to be tortured something of course their victims were not spared. I just hope they are extradited to the The Hague as happened to the war crimes perpetrators from the Yugoslav War. This will be an important step for the World to show the USA that it cannot simply behave how it wishes. Obama has said that the officers who actually carried out the torture will not be prosecuted, but Spain challenged this on the basis of the principle of 'just obeying orders' which was thrown out at the Nuremberg War Crimes Trials 1945-6. Obama will find it very difficult to fight off criticism within the USA and so has sought to minimise the impact, tackling the men who drove the action rather than the men who carried it out.

The Nuremberg Trials were an international court which tried leading members of the Nazi regime who had not escaped or committed suicide before hand, including Albert Speer and Herman Göring who did kill himself subsequently. The trials gave body to the concepts of war crimes and crimes against humanity and so established the basis on which these things are still judged sixty years later. In addition, they removed the excuse 'just obeying orders' which many German officers had felt was a stronger imperative than being humane. These principles not just in the West but across the world have remained basically unchallenged, though some dictatorships such as Soviet USSR argued many of these issues are internal affairs and not an international concern and China has argued that the principles are embedded in a Western perception of ethics which is inappropriate to societies from outside that tradition. Interestingly, though it is argued that the Bush Six could find refuge in Israel (or Saudia Arabia), in the 1960s, the Israelis were most vigorous in applying the international nature of war crimes charges, most famously abducting Adolf Eichmann a leading SS officer and so called 'architect of the Holocaust' from Argentina in 1960 and putting him on trial for war crimes and executing him in 1962. On one hand this shows Israel's vigorous application of such indictments, but also that their methodology was similar to that used by the USA against suspects in Afghanistan. Of course Israel had the correct information about their suspect whereas in many (not all) cases the USA has abducted people with little or no connection to terrorism.

I am sceptical that we will ever see the trial of anyone over the US torture programme. However, in my idea world, we would see the Bush Six brought to a war crimes trial in The Hague. As the Nazi leaders, Saddam Hussain and Slobodan Milosevic all said, they will claim it has no jurisdiction over them and that somehow they are exempt from justice because of how important they once were. I think a minimum of 25 years imprisonment for creating a regime that promoted abduction and torture just in the way Nazi Germany did, is the starting point. It is ironic that anyone entering the USA has to declare that they were never a member of the Nazi regime or its agencies and yet you were entering a country where the attitudes of many of the government's leading lawyers were based on the same assumptions as those of Nazi Germany.

As for the frontline officers who carried out the torture, again we can draw on the pattern from the late 1940s. Between 1945-8 there was the process of Denazification. The Nuremberg Trials were part of this, but the process was also aimed at lower-ranking Nazis. They were graded after being investigated and received a range of penalties from terms of imprisonment to fines to being restricted to holding only manual labouring jobs and all were barred from holding any public office, most usually for 20 years. Certainly any officer who has been involved in torture needs to be expelled immediately from any of the intelligence or security services or the military and be barred from working in private security companies and from holding public office. There needs to be a root and branch exorcising of this evil which has penetrated right to the heart of the US government. If not it will infect US society for decades to come and give succour to those that the USA professes to be opposing.

The USA has severely lost credibility in the free world, because it has removed itself from that company by its actions and yet expects the world to back it actively or suffer its wrath. There needs to be a real understanding in the USA that 'freedom', 'liberty' and 'democracy' are not just terms that you define for yourself, they are objective standards that you must strive to attain. Civil liberties are not luxuries that only some nationalities are permitted to have.

I have been stunned by the number of online discussion groups in the USA dismissing the 'faux outrage' especially from abroad and also seeking to define what is torture. They have very strict discussions of what is torture and keep ruling certain practices as insufficiently horrific to be called torture. Even being locked in the boot (trunk for Americans) of a car is something most of us cannot bear and yet that is seen as one of the mildest forms of treatment being meted out to detainees. I suggest if they claim that then they should experience these practices for themselves, even for just an hour, let alone a month or months, then I know their definitions would change immediately. We have to admire the strength of spirit of those detainees to have withstood such horrific treatment. Henri Alleg was tortured by water boarding in 1957 by French forces and in his book 'The Question' (in English 2008) gives a graphic account of it. Malcolm Nance, advisor to the Department of Homeland Security has also been exposed to it and terms it torture. I do not advise anyone to try it, but simply believe from these men who know that it is torture and that the USA has been carrying out an extensive torture programme, only some of which has come to light so far.The USA has certainly lost its moral bearings and in so doing has made the World a far worse place. It cannot stand and criticise the other torturing regimes of this planet when it simply uses many of the same techniques, many of which originate from the Middle Ages not the 21st century. The hypocrisy is stunning. The inability of millions of US citizens to accept even that their government has behaved in an immoral, cruel manner is shocking. In these circumstances it does seem we are blighted with a new Dark Age. The only hope of washing away this evil is to have thorough trials. This has been done before and needs to be done again as quickly as possible.