By Rebecca Gordon

From Tom Dispatch | Original Article

War Crimes and War Criminals, Old and (Potentially) New

A barely noticed anniversary slid by on March 20th. It’s been 15 years since the United States committed the greatest war crime of the twenty-first century: the unprovoked, aggressive invasion of Iraq. The New York Times, which didn’t exactly cover itself in glory in the run-up to that invasion, recently ran an op-ed by an Iraqi novelist living in the United States entitled “Fifteen Years Ago, America Destroyed My Country,” but that was about it. The Washington Post, another publication that (despite the recent portrayal of its Vietnam-era heroism in the movie The Post) repeatedly editorialized in favor of the invasion, marked the anniversary with a story about the war’s “murky” body count. Its piece concluded that at least 600,000 people died in the decade and a half of war, civil war, and chaos that followed -- roughly the population of Washington, D.C.

These days, there’s a significant consensus here that the Iraq invasion was a “terrible mistake,” a “tragic error,” or even the “single worst foreign policy decision in American history.” Fewer voices are saying what it really was: a war crime. In fact, that invasion fell into the very category that led the list of crimes at the Nuremberg tribunal, where high Nazi officials were tried for their actions during World War II. During the negotiations establishing that tribunal and its rules, it was (ironically, in view of later events) the United States that insisted on including the crime of “waging a war of aggression” and on placing it at the head of the list. The U.S. position was that all the rest of Germany’s war crimes sprang from this first “crime against peace.”

Similarly, the many war crimes of Dick Cheney and George W. Bush -- the extraordinary renditions; the acts of torture at Guantánamo, Bagram Air Base in Afghanistan, and CIA black sites all over the world; the nightmare of abuse at Abu Ghraib, a U.S. military prison in Iraq; the siege and firebombing (with white phosphorus) of the Iraqi city of Fallujah; the massacre of civilians in Haditha, another Iraqi city -- all of these arose from the Bush administration’s determination to invade Iraq.

It was to secure “evidence” of a (nonexistent) connection between Saddam Hussein and the al-Qaeda attackers of 9/11 that Secretary of Defense Donald Rumsfeld upped the ante at Guantánamo in his infamous memo approving torture there. The search for proof of the same connection motivated the torture of Abu Zubaydah at a CIA black site in Thailand. If not for that long-planned invasion of Iraq, the “war on terror” might have ended years ago.

But Wasn’t That Then?

Fifteen years is an eternity in what Gore Vidal once called “the United States of Amnesia.” So why resurrect the ancient history of George W. Bush in the brave new age of Donald Trump? The answer is simple enough: because the Trump administration is already happily recycling some of those Bush-era war crimes along with some of the criminals who committed them. And its top officials, military and civilian, are already threatening to generate new ones of their own.

Last July, the State Department closed the office that, since the Clinton administration, has assisted war crimes victims seeking justice in other countries. Apparently, the Trump administration sees no reason to do anything to limit the impunity of war criminals, whoever they might be. Reporting on the closure, Newsweek quoted Major Todd Pierce, who worked at Guantánamo as a judge advocate general (JAG) defense attorney, this way:

“It just makes official what has been U.S. policy since 9/11, which is that there will be no notice taken of war crimes because so many of them were being committed by our own allies, our military and intelligence officers, and our elected officials. The war crime of conspiring and waging aggressive war still exists, as torture, denial of fair trial rights, and indefinite detention are war crimes. But how embarrassing and revealing of hypocrisy would it be to charge a foreign official with war crimes such as these?”

Guantánamo JAG attorneys like Pierce are among the real, if unsung, heroes of this sorry period. They continue to advocate for their indefinitely detained, still untried clients, most of whom will probably never leave that prison. Despite the executive order President Obama signed on his first day in office to close GITMO, it remains open to this day and Donald Trump has promised to “load it up with some bad dudes,” Geneva Conventions be damned.

Indeed, Secretary of Defense James (“Mad Dog”) Mattis has said that the president has the right to lock up anyone identified as a “combatant” in our forever wars, well, forever. In 2016, he assured the Senate Armed Services Committee that any detainee who “has signed up with this enemy” -- no matter where “the president, the commander-in-chief, sends us” to fight -- should know that he will be a “prisoner until the war is over.” In other words, since the war on terror will never end, anyone the U.S. captures in Afghanistan, Iraq, Niger, Somalia, Syria, Yemen, or elsewhere will face the possibility of spending the rest of his life in Guantánamo.

Recycling War Criminals

Speaking of Mattis and war crimes, there’s already plenty of blood on his hands. He earned that “Mad Dog” sobriquet while commanding the U.S. Marines who twice in 2004 laid siege to Fallujah. During those sieges, American forces sealed that Iraqi city off so no one could leave, attacked marked ambulances and aid workers, shot women, children, and an ambulance driver, killed almost 6,000 civilians outright, displaced 200,000 more, and destroyed 75% of the city with bombs and other munitions. The civilian toll was vastly disproportionate to any possible military objective -- itself the definition of a war crime.

One of the uglier aspects of that battle was the use of white phosphorus, an incendiary munition. Phosphorus ignites spontaneously when exposed to air. If bits of that substance attach to human beings, as long as there’s oxygen to combine with the phosphorus, skin and flesh burn away, sometimes right into the bone. Use of white phosphorus as an anti-personnel weapon is forbidden under the Chemical Weapons Convention, which the U.S. has signed.

In Iraq, Mattis also saw to it that charges would be dropped against soldiers responsible for murdering civilians in the city of Haditha. In a well-documented 2005 massacre -- a reprisal for a roadside bomb -- American soldiers shot 24 unarmed men, women, and children at close range. As the convening authority for the subsequent judicial hearing, Mattis dismissed the murder charges against all the soldiers accused of that atrocity.

Mattis is hardly the only slightly used war criminal in the Trump administration. As most people know, the president has just nominated Deputy CIA Director Gina Haspel to head the Agency. There are times when women might want to celebrate the shattering of a glass ceiling, but this shouldn’t be one of them. Haspel was responsible for running a CIA black site in Thailand, during a period in the Bush years when the Agency’s torture program was operating at full throttle. She was in charge, for instance, when the CIA tortured Abd al-Rahim al-Nashiri, who was waterboarded at least three times and, according to the executive summary of the Senate Intelligence Committee’s Torture report, “interrogated using the CIA's enhanced interrogation techniques.” (The report provided no further details.)

Haspel was also part of the chain of command that ordered the destruction of videotapes of the torture of Abu Zubaydah (waterboarded a staggering 83 times). According to the PBS show Frontline, she drafted the cable that CIA counterterrorism chief José Rodríguez sent out to make sure those tapes disappeared. In many countries, covering up war crimes would itself merit prosecution; in Washington, it earns a promotion.

More on Trump and Torture

Many people remember that Trump campaigned on a promise to bring back waterboarding “and a whole lot worse.” On the campaign trail, he repeatedly insisted that torture “works” and that even “if it doesn’t work, they [whoever “they” may be] deserve it anyway, for what they’re doing.” Trump repeated his confidence in the efficacy of torture a few days after his inauguration, saying that “people at the highest level of intelligence” had assured him it worked.

Trump’s nominee to replace Rex Tillerson as secretary of state is former Tea Party congressman and CIA Director Mike Pompeo. Known for his antipathy to Muslims (and to Iran), he once endorsed calling his Indian-American electoral opponent a “turban topper.”

Pompeo is as eager as Trump to restore torture’s good name and legality, although his public pronouncements have sometimes been more circumspect than the president’s. During his CIA confirmation hearings he assured the Senate Intelligence Committee of what most of its members wanted to hear: that he would “absolutely not” reinstitute waterboarding and other forms of torture, even if ordered to do so by the president. However, his written testimony was significantly more equivocal. As the British Independent reported, Pompeo wrote that he would back reviewing the ban on waterboarding if prohibiting the technique was shown to impede the “gathering of vital intelligence.”

Pompeo added that he planned to reopen the question of whether interrogation techniques should be limited to those -- none of them considered torture techniques -- found in the Army Field Manual, something legally required ever since, in 2009, President Obama issued an executive order to that effect. (“If confirmed,” wrote Pompeo, “I will consult with experts at the [Central Intelligence] Agency and at other organizations in the U.S. government on whether the Army Field Manual uniform application is an impediment to gathering vital intelligence to protect the country.”) Unlike many of Trump’s appointees, Pompeo is a smart guy, which makes him all the more dangerous.

When President Trump lists his triumphs, often the first one he mentions is the confirmation of Neil Gorsuch as a Supreme Court justice. Gorsuch, too, played a small but juicy role in the Bush torture drama, drafting the president’s signing statement for the Detainee Treatment Act when he worked in the Justice Department’s Office of Legal Counsel back in 2005. That statement officially outlawed any torture of “war on terror” detainees, and yet left open the actual practice of torture because, as Gorsuch assured President Bush, none of the administration’s self-proclaimed “enhanced interrogation techniques” (including waterboarding) amounted to torture in the first place.

Still, of all Trump’s recycled appointments, the most dangerous of all took place only recently. The president fired his national security advisor, Lieutenant General H.R. McMaster, and replaced him with John Bolton of Iran-Contra and Iraq invasion fame.

Under George W. Bush, Bolton was a key proponent of that invasion, which he’d been advocating since at least 1998 when he signed an infamous letter to Bill Clinton from the Project for a New American Century recommending just such a course of action. In 2002, Bolton, while undersecretary of state for arms control, engineered the dismissal of José Bustani, the head of the U.N.’s Organization for the Prohibition of Chemical Weapons, which was involved in overseeing Iraq’s disarmament process. A former Bolton deputy told the New York Times that Bolton was dismayed because Bustani “was trying to send chemical-weapons inspectors to Baghdad in advance of the U.S.-led invasion.” Presumably Bolton didn’t want the U.N. trumpeting the bad news that Iraq had no active chemical weapons program at that moment.

Nor has Bolton ever forgotten his first Middle Eastern fascination, Iran, although nowadays he wants to attack it (along with North Korea) rather than conspire with it, as President Reagan and he did in the 1980s. He’s argued in several editorials and as a Fox News commentator -- wrongly as it happens -- that it would be completely legal for the United States to launch first strikes against both countries. Naturally, he opposes the six-nation pact with Iran to end its nuclear weapons program. When that agreement was signed, the New York Times ran an op-ed by Bolton entitled “To Stop Iran’s Bomb, Bomb Iran.” It should (but doesn’t) go without saying that any first strike against another country is again the very definition of the initial crime on that Nuremberg list.

Recycling War Crimes

We can’t blame the Trump administration for the decision to support Saudi Arabia’s grim war in Yemen, a catastrophe for the civilians of that poverty-stricken, now famine-plagued country. That choice was made under Barack Obama. But President Trump hasn’t shown the slightest urge to end the American role in it either. Not after the Saudis threw him that fabulous party in Riyadh, projecting a five-story-high portrait of him on the exterior of the Ritz Carlton there. Not after his warm embrace of Saudi crown prince Mohammed bin Salman during his recent visit to the United States. In fact, at their joint press conference, Trump actually criticized former president Obama for bothering the Saudis with complaints about human rights violations in Yemen and in Saudi Arabia itself.

Meanwhile, the United States continues to fund and support the Saudi military’s three-year-old war crime in that country, providing weaponry (including cluster bombs), targeting intelligence, and mid-air refueling for Saudi aircraft conducting missions there. The conflict, which the New York Times has called “the world’s worst humanitarian crisis,” has killed at least ten thousand people, although accurate numbers are almost impossible to come by. As of December 2017, the Yemen Data Project had catalogued 15,489 separate air attacks, of which almost a third involved no known military targets and another 4,800 hit targets that have yet to be identified. Hospitals and other health facilities have been targeted along with crowded markets. Government funding for public health and sanitation ended in 2016, leading to a cholera epidemic that the Guardian calls “the largest and fastest-spreading outbreak of the disease in modern history.”

Through the illegal blockading of Yemen's ports, Saudi Arabia and its allies have exposed vast numbers of Yemenis to the risk of famine as well. Even before the latest blockade began in November 2017, that country faced the largest food emergency in the world. Now, it is in the early stages of a potentially devastating famine caused entirely by Saudi Arabia’s illegal war, aided and abetted by the United States. In addition, Trump has increased the number of drone assassinations in Yemen, with their ever-present risk of civilian deaths.

Yemen is hardly the only site for actual and potential Trump administration war crimes. In response to requests from his military commanders, the president has, for instance, eased the targeting restrictions that had previously been in place for drone strikes, a decision he’s also failed to report to Congress, as required by law. According to Al-Jazeera, such drone strikes in countries ranging from Libya to Afghanistan will no longer require the presence of an “imminent threat,” which means “the U.S. may now select targets outside of armed conflict,” with increased risk of hitting noncombatants. Also relaxed has been the standard previously in place “of requiring ‘near certainty’ that the target is present” before ordering a strike. Drone operators will now be permitted to attack civilian homes and vehicles, even if they can’t confirm that the human being they are searching for is there. Under Trump, the CIA, which President Obama had largely removed from the drone wars, is once again ordering such attacks along with the military. All of these changes make it more likely that Washington’s serial aerial assassinations will kill significant numbers of civilians in Iraq, Syria, Yemen, and other target countries.

Defense Secretary Mattis has also loosened the rules of engagement in Afghanistan by, for example, removing the “proximity requirement” for bombing raids. In other words, U.S. forces are now free to drop bombs even when the target is nowhere near U.S. or Afghan military forces. As Mattis told the Senate Armed Services Committee last October,

“If they are in an assembly area, a training camp, we know they are an enemy and they are going to threaten the Afghan government or our people, [Gen. John Nicholson, commander of U.S. Forces Afghanistan,] has the wherewithal to make that decision. Wherever we find them, anyone who is trying to throw the NATO plan off, trying to attack the Afghan government, then we can go after them.”

Under such widened rules for air strikes -- permitting them anytime our forces notice a group of people “assembling” in an area -- the chances of killing civilians go way up. And indeed, civilian casualties rose precipitously in Afghanistan last year.

And then there’s always the chance -- the odds have distinctly risen since the appointments of two raging Iranophobes, Pompeo and Bolton, to key national security positions -- that Trump will start his very own unprovoked war of aggression. “I’m good at war,” Trump told an Iowa rally in 2015. “I’ve had a lot of wars of my own. I’m really good at war. I love war in a certain way, but only when we win.” With Mike Pompeo whispering in one ear and John Bolton in the other, it's frighteningly likely Trump will soon commit his very own war crime by starting an aggressive war against Iran.