With the Nuremberg tribunal after World War II, the United States helped establish the international principles guiding the prosecution of war crimes. But the US refuses to apply these principles to itself. American Nuremberg makes the case for indicting the officials who have presided over torture, extraordinary rendition, drone assassinations and more since 9/11 in the name of national security. Order your copy of this provocative book by donating to Truthout today!
In this interview, Rebecca Gordon, author of American Nuremberg: The US Officials Who Should Stand Trial for Post-9/11 Crimes, says if US officials are not held accountable for torture and other alleged war crimes committed after 9/11, the American people and US leaders are likely to allow these crimes to be committed again.
Mark Karlin: When Obama assumed the presidency in 2009, there were a lot of leaked news reports that his advisers were debating prosecuting Bush administration officials for torture. However, Obama decided against it. Why did you choose to address this issue now, in your 2016 book?
Rebecca Gordon: Because here it is 2016, and no one has been held accountable for the crimes committed in the so-called war on terror. One result is what we've seen during the current season of primary elections: Republican candidates for president are competing to see who can promise to commit the most crimes.
"There's a reason why there are laws against starting wars, and that is because war creates so much painful death and human misery."
We've heard Ben Carson [the former GOP candidate] say he was okay with the deaths of thousands of children if that's what it takes to defeat ISIS. We've heard Ted Cruz offer to carpet bomb them into submission, and promise to "find out" whether "sand can glow in the dark." A candidate for president promising to use nuclear weapons! And then there's the presumptive Republican candidate, Donald Trump, who's said he'll bring back waterboarding "and a hell of a lot worse" -- along with explaining that the way to get terrorists' attention is by murdering their families.
The decision not to prosecute -- or in some way hold accountable -- officials who are very likely responsible for war crimes makes it that much more likely that the next time this country is frightened, we'll do the same things all over again, or "a hell of a lot worse."
Can you summarize what the Nuremberg tribunals were and why they were such an important precedent?
As it gradually became clear that Germany would be defeated in World War II, the great powers -- the US, Great Britain, France and the Soviet Union -- began to discuss how they would deal with the Nazi leaders who'd started the war, and had overseen the horrors of the Holocaust. One option was simply to line them up and shoot them. Instead, they decided to establish a legal tribunal and put them on trial in the city of Nuremberg, Germany. The trials went on for some years, but the best remembered is the first trial of the highest Nazi government officials to survive the war, along with some of their bankers and supporters in industry -- 22 men in all.
"Waterboarding has been described in the mainstream press as 'simulated drowning.' But there's nothing simulated about it."
The Nuremberg trials -- imperfect as they were -- mark an important step in world history. It was the first time that the international community used legal proceedings to enforce the international laws and customs of war. Individual soldiers had been tried for war crimes before, either by their own countries or their adversaries, but never before had nations come together to try officials at the highest level of government for such crimes.
And some of [the] crimes they prosecuted were also new. The organizing committee chose the name "crimes against humanity" to describe the unprecedented attempt to destroy entire categories of human beings, including of course Jews, Roma, political enemies, the ill and disabled, and social "undesirables," such as homosexuals and [sex workers].
There was another "new" kind of crime, however, which the Americans and the British fought to have included -- crimes against peace, "namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances." Although the international laws and customs of war had for centuries made it illegal to start a war, it wasn't until Nuremberg that the world had a way of enforcing those laws.
All these crimes, together with the procedures for trying them, were laid out in a document called the London Charter.
In the Nuremberg tribunals after World War II, both Nazi officials and military personnel were put on trial. Do you believe that would be ideally the case for post-9/11 US war crimes?
To be perfectly frank, I have conflicted feelings about this. On one hand, I believe that people at the highest levels of the US government are responsible for terrible crimes in the war on terror and should be held accountable. On the other, I can't help but be aware that we've been living through an unprecedented expansion of incarceration in this country. We've seen our jail and prison population of 750,000 in 1975 rise to the estimated 2.2 million people imprisoned today -- a population that is vastly disproportionately made up of African Americans and Latinos.
Clearly, something is deeply wrong with the US criminal justice system and its emphasis on punishment by incarceration, which makes it an imperfect vehicle at best for bringing our war criminals to justice.
Ideally, the people I name in American Nuremberg would be tried in an international venue, in trials similar to the ones held at Nuremberg. And there's an obvious place for that to happen: the International Criminal Court. Unfortunately, the United States is not a party to the treaty that created the ICC. We did sign the treaty, but in 2002, the Bush administration notified the ICC that the US was withdrawing its signature and that the Senate would never ratify the treaty. Congress went even further, making it a federal crime to cooperate with the ICC in trying any US national.
Who are some of the key people you single out as potential individuals who would be prosecuted for their role in authorizing, overseeing or carrying out crimes against humanity, such as torture, extraordinary renditions, assassinations, deadly night raids that killed untold civilians etc.?
They're the usual suspects: George W. Bush, Dick Cheney, Donald Rumsfeld, Condoleezza Rice, George Tenet, and sadly, President Barack Obama for his drone assassinations. The book documents the crimes of at least 30 members of the previous and/or current administrations, CIA's torture program.
What might surprise your readers more than the names is the action I identify as the most serious of all the crimes or the war on terror. Like the Nazis' crime against peace, it was the source of many of the other crimes, including the renditions and torture, the assassinations and detentions without charge. That crime is, to quote the London Charter again, the "planning, preparation, initiation [and] waging of a war of aggression, or a war in violation of international treaties, agreements or assurances." I am talking about the crime of invading Iraq, a nation which had not attacked the United States, and which did not threaten our nation in any way.
"As a country, we are now more comfortable with torture than we were in the years immediately following 9/11."
Dick Cheney, his adviser Paul Wolfowitz, Donald Rumsfeld and other neocons who'd served in previous administrations walked into the Bush administration with a plan. They intended to overthrow Saddam Hussein, destabilize Syria and remake the whole Middle East in ways they considered more conducive to the interests of the United States. (It's no accident that those "national" interests happened to coincide perfectly with the desires of the major US oil companies and of Cheney's previous employer Halliburton, the world's biggest purveyor of oil field services.)
The plan itself had been kicking around since the 1990s, when its authors first tried to convince Benjamin Netanyahu to adopt it, and later when the Project for the New American Century tried to sell it to President Bill Clinton. It had served as the main agenda item for Cheney's secret meetings in early 2001 with oil company heads to develop a new national energy strategy. But the terrorist attacks of September 11 finally provided the pretext that they needed.
By September 12, George W. Bush was already looking for "any shred" of evidence tying 9/11 to Saddam Hussein. It is now clear that many of the first tortures the CIA committed, including that of Abu Zubaydah, and under the Pentagon at Guantánamo, were carried out in order to get someone to say that Saddam Hussein was responsible for 9/11. He wasn't, but that didn't stop torture victims from saying what their interrogators wanted to hear.
There's a reason why there are laws against starting wars, and that is because war -- especially modern war -- creates so much painful death and human misery. In modern times, the majority of those who suffer in wars are not the government officials who start them, nor even the soldiers who fight them, but the ordinary civilians who are caught up in them. We don't know how many people have died in Iraq as a result of the US invasion and occupation. Depending on the counting method, reputable organizations have reported figures between 250,000 and a million excess violent deaths. And that doesn't even begin to account for the suffering caused by the destruction of the country's infrastructure, let alone the misery unleashed by the war in a now thoroughly destabilized Syria.
I want to digress a moment. Much of the mass media continually use waterboarding as the only issue involved in US torture or war crimes. However, we have countless evidence that waterboarding was only one form of torture used by the US. We even have photographs in the public domain of prisoners who died of torture at Abu Ghraib. Why do you think the mass media only mention waterboarding, in general, as the only torture conducted post-9/11?
That's a good question. I think it's because, unless you know what it is, waterboarding doesn't really sound so bad. After all, water is the source of life; how terrible can it be?
Waterboarding has been described in the mainstream press as "simulated drowning." But there's nothing simulated about it. Interrogators strap the victim to a board and tilt it so his feet are elevated above his head. They cover his face with a wet cloth, and then gradually pour water through the cloth until he almost drowns. The pouring then stops, the victim coughs and/or vomits, and the process is repeated.
The CIA did this to Abu Zubaydah 83 times over two months, according to the Senate Intelligence Committee's report on CIA torture. At one point during this endlessly repeated ordeal, the committee reports, Zubaydah became "completely unresponsive, with bubbles rising through his open, full mouth."
Each of those 83 uses of what was called "the watering cycle" consisted of four steps:
"1) demands for information interspersed with the application of the water just short of blocking his airway 2) escalation of the amount of water applied until it blocked his airway and he started to have involuntary spasms 3) raising the water-board to clear subject's airway 4) lowering of the water-board and return to demands for information."
But of course there were many other kinds of torture, as we have known for some years now. These include: rape and other sexual assaults, prolonged isolation, prolonged sleep deprivation, excruciating "stress positions," in which the prisoner's own body becomes an instrument of torture, rectal "feeding" and "rehydration," as well as death threats to prisoners and/or their families. The list, sadly, goes on.
You mention in the book that even if such a war crimes trial were convened in the US, it would end up as largely symbolic. Why is it important to conduct it anyway in such a scenario?
I talk about the option of organizing a people's tribunal. What I have in mind is a serious undertaking, conducted by highly respected individuals, ideally from across the political spectrum. Their charge would be to make a public identification of the crimes committed and the people responsible. Such a group, known as The Constitution Project, began this process in 2013 and issued an excellent, well-documented report on detainee treatment, which found that the "nation's most senior officials, through some of their actions and failures to act in the months and years immediately following the September 11 attacks, bear ultimate responsibility for allowing and contributing to the spread of illegal and improper interrogation techniques."
Clearly, a tribunal of the kind I'm suggesting would not have the force of law, or even subpoena powers, let alone the power of punishment. Still, I think that it could, if done carefully and well, go a long way toward establishing a permanent record of the crimes that were committed -- and continue to be committed -- in the name of the American people.
Would such a trial possibly help slow down or stop what you wrote about in another book, Mainstreaming Torture?
I think that the failure to bring anyone to trial has contributed to a measurable change in Americans' attitudes toward torture. Before the September 11 attacks, the majority of people in this country opposed torture. Things changed afterward, but the really disturbing thing is that the longer time stretches since those attacks, the larger the percentage of Americans who tell pollsters that torture is sometimes or often justified. As a country, we are now more comfortable with torture than we were in the years immediately following 9/11.
Logistically, how would such an "American Nuremberg" be implemented as an actual tribunal with legal standing?
Unfortunately, unless the executive branch develops an appetite for federal prosecutions -- which seems very unlikely -- we will probably never see an American tribunal with legal standing. Other options include congressional hearings into the waging of the war on terror, which is just imaginable if the Democratic Party were to regain control of one or both houses of Congress; a US decision to join the International Criminal Court and/or individual prosecutions in other jurisdictions, such as Spain or Switzerland, should any of these alleged criminals find themselves in those countries.
In your introduction, you cite that infamous quotation from Richard Nixon in a post-presidential interview with David Frost: "Well, when the president does it, that means it is not illegal." That about says everything about the modern-day development of unaccountable and absolute executive power in the US, doesn't it?
It certainly does. Frost was asking Nixon about crimes that he might have committed, either in ordering the break-in at the Democratic Party headquarters in the Watergate apartment building, or in the cover-up of the break-in. Nixon's response perfectly encapsulates the attitude of the federal executive in this country today: As the supposed "leader of the free world," the US presidency holds the power to define both what is legal and what is right. If they did it, then whatever it was, it was legal. And good.
You write that the so-called war on terror has forced us to sacrifice our sense of human empathy. Can you discuss that a bit more?
No regime tortures everyone. Every government that decides to employ torture first designates a particular group of people as legitimate targets. In Chile under the dictator Augusto Pinochet, torture victims were called "humanoid" -- to distinguish them in the minds of both the torturers and the Chilean people from actual human beings. Our words are "terrorist" and "Islamofascist," but the effect is the same -- the placing of the enemy outside the human circle. And that dehumanization is the first step toward the destruction of empathy.
I also think that in the last 15 years the federal government has worked to stoke our fear, constantly reminding us of the threat we face. In effect, we've been offered a deal, which goes something like this: "Remember that you are in terrible danger from terrorists. Fortunately, you can count on your government to protect you. You let us institute mass surveillance of your email, internet use and phone calls; you let us do what ever we need to over here on 'the dark side' -- torture, assassination, the occasional undeclared war; and in return, we promise that you will always be safe."
The things the government has promised and done on "the dark side" are illegal and immoral. Accepting them as the necessary price of "security" makes us ever more willing to accept the next outrage. Indeed, over time we become used to hearing about these crimes, so that it takes more and more to shock us. At the same time, we become more willing to allow anything to happen, if it will ensure our own survival. There's a word for people whose first and only concern is their own survival. In English, we call them cowards.
But in the end the government's deal is a lie. There is no such thing as perfect security. As we saw at the Boston Marathon and more recently in San Bernardino, no amount of surveillance, war-making or torture can prevent a few angry and disaffected people from buying guns or building bombs and turning them against other human beings. That is the world we live in. That is the species we belong to. The question is, what kind of human beings do we want to be?