Are Bush & Co. War Criminals?
By charlie smith

Gail Davidson laid criminal charges against U.S. President George W. Bush. A Provincial Court judge later declared them a "nullity".
Mark Mushet photo.

Some lawyers claim the U.S. is guilty of crimes against humanity

Serving tea in her kitchen in her home on Vancouver’s West Side, Gail Davidson seems more like a friendly neighbour than a wild-eyed revolutionary. Davidson, a grandmother, laughs easily, enjoys gardening, and speaks with a remarkable absence of egotism. In this setting, it’s hard to comprehend that she is a key figure in an international campaign to hold U.S. President George W. Bush accountable for committing war crimes. But that has become her central preoccupation.

Davidson, cochair of an international group called Lawyers Against the War (LAW), says she is the only person in the world who has ever laid criminal charges against Bush. On November 30, 2004, Davidson walked into Vancouver Provincial Court and convinced a justice of the peace to accept seven Criminal Code charges against Bush while he was visiting Canada. She brought evidence to support her contention that Bush should be held criminally responsible for counselling, aiding, and abetting torture at the Abu Ghraib prison in Iraq and at a U.S. military jail at Guantanamo Bay, Cuba. Each offence carries a prison sentence of up to 14 years.

On December 6, Provincial Court Judge William Kitchen ruled in an in-camera hearing that those charges were a “nullity”. In law, this means they never occurred even though they had been approved. Kitchen permitted Davidson to reveal outside the courtroom that his decision was based on Bush’s “diplomatic immunity”.

LAW cochair Michael Mandel, a law professor at Osgoode Hall law school at York University, claimed in a December 6 news release that Kitchen’s decision was “irregular in procedure and wrong in substance”. However, Michael Byers, a UBC expert in global politics and international law, told the Georgia Straight that a sitting head of state always has diplomatic immunity.

Davidson told the Straight that she has a “personal commitment” to ensure that Bush, U.S. Vice-President Dick Cheney, Secretary of Defense Donald Rumsfeld, and others are eventually held accountable. “They have obviously committed a wide range of international crimes of the most serious nature,” Davidson said. “So I can’t see how members of the United Nations such as Canada can avoid prosecution of those people and still maintain the integrity of their own legal systems.”

Davidson is one of dozens of lawyers in different countries who are pursuing Bush and other top U.S. officials through the courts and at citizens’ tribunals. On the same day that Davidson filed her private prosecution against Bush in Vancouver, the New York–based Center for Constitutional Rights laid war-crimes charges in Germany against Rumsfeld and nine other U.S. military and civilian personnel. LAW joined this action.

In February, a German court threw out the case, rejecting CCR’s contention that the U.S. is unwilling to prosecute its own senior officials.

CCR president Michael Ratner described the ruling in a news release as “a purely political decision” to enable Rumsfeld to attend a security conference in Germany. Wolfgang Kaleck, a German human-rights lawyer who handled the case for CCR, e-mailed the Straight on April 5 saying he is appealing the ruling.

In addition, CCR has launched civil suits for military detainees against Bush and other top officials in U.S. courts. The U.S. Supreme Court ruled last June that U.S. courts may review detentions of foreigners at Guantanamo Bay. Last month, U.S. officials revealed that at least 108 people have died in U.S. custody in Iraq and Afghanistan; 26 are confirmed or suspected criminal homicides.

CCR is also representing Maher Arar in his lawsuit against former U.S. attorney general John Ashcroft. Arar, a Syrian-Canadian, alleged that in September 2002, U.S. officials yanked him off a plane during a stopover at JFK Airport in New York. Arar claimed he was driven to Maine, put on a plane to Jordan in the Middle East, and driven to Syria, where he was tortured for a year in a tiny cell. Arar has denied any connection to al-Qaeda.

U.S. journalist Seymour Hersh, author of Chain of Command: The Road From 9/11 to Abu Ghraib (HarperCollins, 2004), reported that Bush signed a decree creating an unacknowledged “special-access program”. Over a three-year period, Hersh wrote, suspected terrorists were transported under this program to secret prisons in allied countries for harsh interrogations. Hersh’s sources claimed that these interrogation techniques were introduced into the Abu Ghraib prison.

Last month, the American Civil Liberties Union and Human Rights First, a New York–based group, filed a 77-page civil suit against Rumsfeld on behalf of eight military detainees in Iraq and Afghanistan. The plaintiffs allege that Rumsfeld “formulated, approved, directed or ratified the torture or other cruel, inhuman or degrading treatment…as part of a policy, pattern or practice”.

Hina Shamsi, a New York lawyer with Human Rights First, told the Straight that a great deal of work went into preparing this case. Lawyers worked with human-rights and humanitarian organizations in Iraq and Afghanistan to identify people who had been mistreated in U.S. detention centres. Then the clients had to be interviewed.

The civil complaint alleges that, among others, Arkan M. Ali, a 26-year-old Iraqi, “suffered severe beatings to the point of unconsciousness, stabbing and mutilation, isolation while naked and hooded in a coffin-like box, prolonged sleep deprivation enforced by beatings, deprivation of adequate food and water, mock execution and death threats”.

The same lawsuit alleges that another Iraqi plaintiff, Sherzad Kamal Khalid, 34, was also subjected to torture, including sexual abuse involving assaults and threats of anal rape. A third, high-school student Ali H., was allegedly dragged from one location to another after surgery, forcefully ripping away the dressing and exposing him to infection. Mehboob Ahmad, a 35-year-old Afghanistan citizen, was allegedly beaten, suspended from the ceiling to cause pain, and intimidated by a vicious dog.

The case centres on Rumsfeld’s decision to personally sign off on “unlawful” interrogation techniques in December 2002. According to the civil complaint, Rumsfeld “expressly permitted cruel, inhuman or degrading treatment or punishment and tolerated or authorized torture”.

The so-called December Rumsfeld Techniques included the use of “stress positions”, 20-hour interrogations, the removal of clothing, and playing upon a detainee’s phobias to induce stress—none of which are permitted in U.S. army manuals.

On January 15, 2003, Rumsfeld rescinded his blanket authorization. The following April, he personally approved 24 techniques, which included “sleep adjustment”, “dietary adjustment”, and the display of false flags during interrogation to trick detainees. Rumsfeld allegedly ensured that harsher techniques could be used with his personal authorization. The civil complaint doesn’t mention the special-access program.

“Although there has been other lawsuits filed on behalf of detainees for abuse suffered in U.S. detention facilities, none of those have focused on the policy-making role of a top U.S. official,” Shamsi said. “What we have done here is connect the dots. We connect the creation of interrogation policies and the beginning of abuse in Afghanistan with the migration of those policies to Iraq.”

The plaintiffs’ 17-member legal team includes retired U.S. rear admiral John Huston and retired U.S. brigadier-general James Cullen, who are both lawyers. By press time, Rumsfeld had not filed a response. The ACLU also filed civil suits last month against three senior military officials beneath Rumsfeld, including Lieut.-Gen. Ricardo Sanchez, former commander of U.S. military forces in Iraq.

The U.S. Department of Defense issued a news release last month “vigorously” disputing the plaintiffs’ allegations in all four cases against U.S. officials: “No policies or procedures approved by the Secretary of Defense were intended as, or could conceivably have been interpreted as, a policy of abuse or condoning abuse.”

UBC’s Byers said that this type of human-rights litigation in national courts usually has little chance of success. “This is a way of attracting media attention for the entirely noble purpose of informing the public, and achieving change as a result of public opinion,” he said.

The recent lawsuits did not target Bush, who enjoys extra protection under the U.S. Constitution as that country’s commander-in-chief. On December 21, 2004, the ACLU released a Federal Bureau of Investigation e-mail suggesting that Bush issued an executive order allowing interrogators to use military dogs and permit “sensory deprivation through the use of hoods”.

Meanwhile, citizens’ tribunals have issued their own rulings, according to a recent LAW newsletter. Following two days of hearings at the London School of Economics in November 2003, a panel of eight international law professors decided there was “sufficient evidence” for the International Criminal Court prosecutor to investigate senior U.K. officials for crimes against humanity committed in Iraq.

On December 12, 2004, a citizens’ tribunal comprising judges from Korea, Japan, and Indonesia concluded that British Prime Minister Tony Blair, Japanese Prime Minister Koizumi Jun’ichiro, and Philippines President Gloria Arroyo “could be appropriately prosecuted”. The tribunal found Bush guilty of “torture and maltreatment of Iraqi detainees”.

“They came to the conclusion that Bush and the other people indicted were guilty of a variety of crimes, number one, of course, waging a war of aggression against Afghanistan,” Davidson said. “Also, they were guilty of using weapons that were prohibited by the laws of war. Some of the weapons that they cited in their judgment were the use of depleted uranium, use of fuel-air explosives such as daisy cutters, cluster bombs, and antipersonnel mines.”

In a January 2005 article in Energy Bulletin, Dr. Chris Busby, the U.K. representative on the European Committee on Radiation Risk, claimed that thousands of children all over the world will die from the use of depleted uranium in modern weapons. He noted that radiation from the Chernobyl nuclear-reactor accident reached Wales.

Last October, the prestigious British medical journal the Lancet published an epidemiological study that estimated anywhere between 8,000 and 194,000 Iraqis have died because of the war. The leader of the study, Dr. Les Roberts, made a “conservative” estimate of 100,000 war-related deaths, according to a BBC report. Iraq Body Count, a British nongovernmental group that tabulates media reports of civilian deaths in Iraq, stated that its number approached 20,000 on the second-year anniversary of the invasion.

Iraqi lawyers have demanded that Bush and Blair be charged as war criminals. According to a March 23 story on, Fallujah bar association chairman Kamal Hamdoun claimed that U.S. attacks on his city “are a blatant violation of the Geneva Conventions and the Universal Declaration of Human Rights which ban the killing of the wounded, captives and civilians”.

The Nuremburg Tribunal that prosecuted Nazi leaders described a war of aggression as the “supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole”. LAW cochair Mandel, author of How America Gets Away With Murder: Illegal Wars, Collateral Damage and Crimes Against Humanity (UBC Press, 2004), claimed in his book that the U.S. bore ultimate responsibility for all war-related deaths in Iraq, including those caused by suicide bombers.

“Every death was a crime for which the leaders of the invading coalition were personally, criminally responsible,” Mandel wrote. “When General [Vince] Brooks said the soldiers at the Karbala checkpoint were exercising their ‘inherent right to self-defense’ he was talking nonsense: an aggressor has no right to self-defense. If you break into someone’s house and hold them at gunpoint and they try to kill you but you kill them first, they’re guilty of nothing and you’re guilty of murder.”

Human Rights Watch alleged in a 2004 report, The Road to Abu Ghraib, that the Bush administration has “effectively sought to re-write the Geneva Conventions of 1949 to eviscerate their most important protections”. Those include freedom from humiliating and degrading treatment, as well as from torture. “The Pentagon and the Justice Department developed the breathtaking legal argument that the president, as commander-in-chief of the armed forces, was not bound by U.S. or international laws prohibiting torture when acting to protect national security, and that such laws might even be unconstitutional if they hampered the war on terror,” it stated.

U.S. law professor John Yoo, a former Bush ad?ministration Justice Department lawyer, wrote an opinion piece in the Wall Street Journal last year claiming that the war with al-Qaeda is not governed by the Geneva Conventions for two reasons: al-Qaeda is not a state, and its members violate the laws of war by targeting civilians. “While Taliban fighters had an initial claim to protection under the conventions (since Afghanistan signed the treaties), they lost POW status by failing to obey the standards of combat for legal combatants: wearing uniforms, a responsible command structure, and obeying the laws of war,” Yoo wrote.

Charles Gittings, a Washington state computer programmer, has filed three “amicus curaie” (friend of the courts) briefs in U.S. courts opposing this legal interpretation. During a recent visit to Vancouver, Gittings told the Straight that he thinks the Bush administration deliberately set out to do an end run around the Geneva Conventions following the September 11 attacks. He cited a November 13, 2001, presidential military order, which gave Rumsfeld wide latitude in dealing with detainees.

Gittings has alleged that the treatment of detainees violates a 1996 U.S. federal statute banning war crimes. The law carries the death penalty. When Gittings was asked what his goal is in pursuing these cases, he replied: “George Bush, Dick Cheney, Donald Rumsfeld, John Ashcroft, and everybody down the line in prison, serving probably life sentences for their crimes, actually.”

The ACLU and other groups have urged U.S. Attorney General Alberto Gonzales to appoint an outside special counsel to investigate. Gonzales, as the former White House counsel, wrote a memo in January 2002 advising Bush that the Geneva Conventions didn’t apply to enemy combatants in Afghanistan.

Gail Davidson isn’t holding out much hope that Bush administration officials will ever be punished in the United States, but she doesn’t rule out the possibility of it occurring elsewhere. She said there is certainly enough latitude under Canada’s Crimes Against Humanity and War Crimes Act to prosecute senior Bush administration officials if they visit Canada after leaving office. However, charges under this act must be approved by the attorney general of Canada, Irwin Cotler.

“I think we still have a great reluctance to see our kings decrowned and prosecuted,” Davidson said. “How many years after the Magna Carta are we? That was 1215. And we still aren’t absolutely comfortable with somebody crying that the king is naked.”

According to the Canada’s War Crimes Program annual report, the policy is unequivocal: “Canada will not be a safe haven for persons involved in war crimes, crimes against humanity or other reprehensible acts.”

The annual report states that 2,608 persons complicit in war crimes or crimes against humanity have been prevented from entering Canada. Another 325 were deported.

So far, none of them have been high-ranking officials in the Bush administration. -