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Prosecuting Bush

Hundreds of U.S. laws require that various executive agencies certify to Congress that something is happening (or isn’t). Certifications go hand in hand with reports to Congress that go forever unread.

Some certifications are supposed to be significant, such as the one President Trump refused to sign that Iran was complying with its obligations under Obama’s misbegotten nuclear weapons deal. Also among them is the State Department’s certification, refused two weeks ago, that the Palestinian Authority isn’t trying to prosecute Israel or Israeli government officials at the “International Criminal Court.”

As a result of that non-certification, the State Department threatened to close down the PA’s office in Washington. It has since backed off the threat.

The latter certification is a reflection of Congress’s realization that the ICC is a political body, not a real court. Established by the “Rome Statute” — which isn’t a law, but a treaty — the ICC is supposed to investigate and prosecute war crimes. Since its creation in 1998, it has precisely three convictions to its credit.

To its discredit, the ICC’s usual procedure is to announce — with great press fanfare — an investigation into one or more people for war crimes, genocide, and the like. It will issue arrest warrants for those people which signatory nations of the Rome treaty — most of the world’s nations with exceptions such as the U.S., China, Russia, and Israel — will enforce.

The charges will be investigated and leaked to the press but those charged will usually either have the charges dismissed quietly or simply evade arrest.

Serious war crimes prosecutions — such as those of war criminals in the Serbian-Croatian war of 1991-1995 — are undertaken by special courts established for that purpose. Another such court prosecuted the Rwandan war criminals from the genocide of 1994. The ICC can’t be trusted with those matters because it is, again, a political body, not a real court.

The United States, along with China, Russia, Israel, and a few other countries, never signed the Rome treaty and are thus not bound by it, but their citizens may be charged with war crimes that are committed in the territory of signatory nations.

Fatou Bensouda, a Muslim woman from Gambia, is the ICC’s chief prosecutor. Last week she asked this “court” for permission to investigate the actions of U.S. military personnel and CIA members for alleged war crimes in Afghanistan. She also proposes investigating actions by the Afghan government and the Taliban.

Her investigation is proposed to seek evidence of war crimes on Afghani soil since 2003 and at secret detention facilities in other nations since July 2002. Her submission to the court refers to “the use of sexual violence, severe isolation, suffocation by water or waterboarding, hooding under special conditions, threats of torture and the use of dogs to induce fear.”

Afghanistan is a party to the Rome treaty, as is Poland (where some of the CIA’s “black sites” were reportedly located), but Iraq is not.

It’s entirely clear that Bensouda isn’t aiming at U.S. soldiers and CIA interrogators. She’s aiming to indict, with great fanfare, and issue arrest warrants for former president George W. Bush and his national security team including former vice president Dick Cheney, former defense secretary Donald Rumsfeld, and former CIA directors Porter Goss and George Tenet. Before we get to that, we need to go into the law.

Under U.S. law as it existed between 1996 and 2005, waterboarding wasn’t torture. As I’ve written many times before, the Justice Department looked at the law against torture as it was written then — Title 18 US Code Section 2340 — and determined that because waterboarding didn’t cause lasting mental harm, it wasn’t torture. They based that conclusion on the study of the hundreds of U.S. pilots who were subjected to it in “SERE” — survival, evasion, resistance and escape — over several decades.

Isolation, hooding, threat of torture and the use of dogs to induce fear — which has a greater effect on Muslims than others because of their belief dogs are unclean — also isn’t torture or wasn’t under U.S. law. (Sen. McCain grandstanded an amendment to the torture statute through Congress in 2005 which made the law ambiguous and probably did outlaw waterboarding, but the CIA had ceased using waterboarding by 2004.)

Bensouda’s application for investigation asserts that the alleged acts were so serious that they require investigation, which she also justifies by asserting that there have been no national proceedings against those who were most responsible for those acts.

Her assertions are false. When Eric Holder was being confirmed as Obama’s first attorney general, he promised a then-U.S. senator I know that he wouldn’t prosecute CIA operatives and contractors who engaged in waterboarding. He lied. Later proceedings against several of them failed because the law, at the time they acted, permitted waterboarding.

So what’s her game? Bensouda clearly wants to go after two layers of U.S. citizens. The first would be some of the same people Holder tried to proceed against and failed. She can, of course, get the “evidence” of the “victims.” Many former residents of the terrorist detention facility at Guantanamo Bay have alleged that they were tortured by various means.

The press will be eager to publish everything Bensouda’s investigation reveals, regardless of the truth. But she’s not after the small fry. She’s after big game: Bush, Cheney, Rumsfeld, Goss, and Tenet.

Some of the charges against those four can already be written and probably have been. President Bush’s memoir, Decision Points, says specifically that he approved the enhanced interrogation techniques, including waterboarding, that the CIA used because they were determined to be legal. Cheney, in his memoir In My Time, says the same.

In Known and Unknown, Rumsfeld wrote that he disapproved of waterboarding and any interrogation techniques that involved a tinge of sexual humiliation. Tenet, in At the Center of the Storm, wrote that we obtained more useful intelligence from the enhanced interrogation methods than from all other sources of intelligence combined.

From records published by the CIA and Congress we know that very few terrorists — Khalid Sheik Mohammed (the organizer of the 9-11 attacks) and other high-ranking al-Qaeda members such as Ramzi bin-Alshib and Abu Zubeyda — were waterboarded. We also know that members of Congress including Nancy Pelosi were briefed on the fact that those terrorists had been waterboarded.

It will be easy for Bensouda to combine the evidence garnered from those memoirs with the reported claims by terrorists that they were tortured to produce indictments of Mr. Bush’s national security team and even issue arrest warrants for them.

She may also proceed against former British PM Tony Blair, our close ally and friend of Mr. Bush, who must have known of the so-called “torture” and the valuable intelligence it produced. Bensouda reportedly said that she isn’t specifically targeting Blair but she is investigating conduct of British military and intelligence officials in Iraq. Unlike the U.S., Britain is a signatory of the Rome treaty. But like the U.S., Britain exhaustively investigated the allegation of torture without deciding to prosecute the alleged offenses.

So far, the only U.S. reactions have been brief statements have been issued by the State Department and the Pentagon which were mildly critical of her efforts.

Bensouda’s investigation is another form of “lawfare,” the use of Western laws against those nations to further the ambitions of the terrorist networks. But it takes lawfare to another level, attempting to control the decisions necessary to warfare. No nation — far less the Western nations — can permit the ICC to do so.

There’s no way for us to stop the investigation but America — and Britain — have a compelling interest to refuse to cooperate with it and to refuse to recognize any validity in it or its results.

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