Conspiracy to Commit War Crimes

[gottaB]

Check it out: Conspiracy to Commit War Crimes.

This is an essay I pretty much agree with, except that I'd add Cheney for sure and wouldn't rule out Scalia and Lay et al. Also, I'd be sure to add to the docket Conspiracy to commit offense or to defraud United States and Conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country, and depending upon what evidence comes to light, possibly Seditious conspiracy.

But I'm pretty jaded.

:tinfoilhat:

[niceypoo]

1. This is surely a smoking gun

The Neo-cons surely would love to keep this buried on page 27. Its a couple weeks old but Ive only heard it in passing once or twice

[gottaB]

2. Rangel's H. Res 629

Rumsferatu

It does go directly to * of course, but Rumsferatu is guilty as sin too and must be brought down.

At the moment the dominant attitude among the gatekeepers is derision, like the way Peter Jennings derided the aWol story, and then the chatterboxes followed suit. This one has legs too.

I saw Rangel on the Charlie Rose show, and the way he expressed gratitude for being allowed to air his indictment of Rumsfeld was sickening--not that it reflects poorly on the esteemed gentleman from New York, but for what it says about the ideological lockdown on the media.

[Spazito]

3. Excellent article, thanks for the link!

I believe bush signed a presidential finding authorizing the contravention of the Geneva Conventions sometime in October, after receiving the Gonzales memos. I don't see his underlings wanting to take the fall without a piece of paper to "immunize" them from possible charges. These guys are the epitome of "protect your ass or PYA" believers and as such, I firmly believe, would have some kind of "protection" such as a signed presidential finding.

Here is a clip from Section 413b of the US Code:

(a) Presidential findings
The President may not authorize the conduct of a covert action by
departments, agencies, or entities of the United States Government
unless the President determines such an action is necessary to
support identifiable foreign policy objectives of the United States
and is important to the national security of the United States,
which determination shall be set forth in a finding that shall meet
each of the following conditions:
(1) Each finding shall be in writing, unless immediate action
by the United States is required and time does not permit the
preparation of a written finding, in which case a written record
of the President's decision shall be contemporaneously made and
shall be reduced to a written finding as soon as possible but in
no event more than 48 hours after the decision is made.
(2) Except as permitted by paragraph (1), a finding may not
authorize or sanction a covert action, or any aspect of any such
action, which already has occurred.
(3) Each finding shall specify each department, agency, or
entity of the United States Government authorized to fund or
otherwise participate in any significant way in such action. Any
employee, contractor, or contract agent of a department, agency,
or entity of the United States Government other than the Central
Intelligence Agency directed to participate in any way in a
covert action shall be subject either to the policies and
regulations of the Central Intelligence Agency, or to written
policies or regulations adopted by such department, agency, or
entity, to govern such participation.
(4) Each finding shall specify whether it is contemplated that
any third party which is not an element of, or a contractor or
contract agent of, the United States Government, or is not
otherwise subject to United States Government policies and
regulations, will be used to fund or otherwise participate in any
significant way in the covert action concerned, or be used to
undertake the covert action concerned on behalf of the United
States.
(5) A finding may not authorize any action that would violate
the Constitution or any statute of the United States.

Here is a link to the Section:

http://caselaw.lp.findlaw.com/casecode/uscodes/50/chapters/15/subchapters/iii/sections/section_413b.html

This relates to intelligence, contractors, etc. which is what the bush admin has said was the reason to exclude the prisoners (detainees) from the Geneva Convention.

[gottaB]

4. fascinating googles stemming from 413b

These are scattery. Sorry. It's going to take some time for me to absorb.

• Republican Senator makes case for special prosecutor. This examines grounds for impeachments based on 413b (f). It covers the use and meaning of covert ops. If we can discount the Bush-the-Bumbler hypothesis, what are we left with?

  
  The most dire conclusion would strongly imply a perceived pattern within the executive office of secretly influencing United States public opinion, policies, and media. Such a conclusion would naturally demand a full investigation to determine whether or not the President and the Executive Branch were in violation of US Code Title 50, Chapter 15, Section 413b, Paragraph (f). Paragraph (f) clearly states: "No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media."
  

  
  
  
• Fighting the New War. Bruce Berkowitz is a Hoover Fellow who examines the role of covert ops in the war on terror. He recommends increased but cautious use of covert ops in the "war on terror." Berkowitz argues for understanding the function of covert action within an infowarfare paradigm.

  Usually, the only good reason for covertness is that public knowledge of U.S. responsibility would make the operation much less effective or simply impossible to carry out. For instance, some propaganda will have a greater impact on foreign audiences if it seems to come from a neutral source. Payoffs or security protection to a foreign official could discredit the official or give his rivals political ammunition if they became public.

  
  He goes on to recommend necessary but sparing use of covert ops in the "war on terror." Along the way, he makes some arguments that ought to raise a few eyebrows. I cite him because he's informative, perhaps damning, and, in the spirit of building bridges, I'd love to see this line of argument come back to bite the David Brooks' of this world in the ass.
  
  "All Means Necessary" - Employing CIA Operatives in a Warfighting Role Alongside Special Operations Forces via Google's cache, also in pdf format, "All Means Necessary" - Employing CIA Operatives in a Warfighting Role Alongside Special Operations Forces. I haven't studied yet, but it seems to speak for itself.
  

  
  This leads to another issue. The use of formal military force to conduct a covert military operation amounts to an act of war in terms of international law. If such an operation were undertaken and was somehow discovered and publicized, the President would not only lack plausible deniability, but unless he was prepared to punish severely the military personnel involved (which would be extremely difficult to do if he directed or “permitted” the operation), the Nation would face de facto and de jure a condition of war that had not been authorized by Congress. By using the CIA, or some other non-military organization to undertake such missions, the President at least fuzzes the legal issue of an act of war. While it is true that CIA covert actions can themselves amount to an act of war, the President can use the CIA to engage in an act of war without U.S. fingerprints. This capability lies in the CIA’s lap for a reason.
  

  
  
  You must continue reading. It's absolutely rivetting. Among the many jaw-droppers,
  
  

  
  Covert actions do not imply that U.S. law is superior to that of another country’s, or that of international law, but that, instead, there are overriding national interests (vital interests) that must be protected outside the framework of international law and regular diplomatic relations.
  
  While there is a statutory requirement for CIA covert actions to comply with U.S. national law, there is no parallel statutory requirement for such actions to comply with international law.
  

  
  
  (pp.23-24, 2 Footnotes omitted, weak arguments imo, including a reference to Title 50, Section 413b (a) and (a)1.)
  
  Oh, man. There's stuff in here to make your blood boil. But I'm going to digress, because I don't believe Ms. Stone is correct in her understanding of the legal framework that governs covert actions, as spelled out both in Title 50, Section 413b and Executive Order 12333.
  
  
• Executive Order 12333--United States intelligence activities
  
  
• Executive Orders from FAS. From here you can surf many relevant documents. One document you won't find is NSPD 24 (National Security Presidential Directive 24) because it hasn't been made public. Supposedly it concerns the reconstruction of Iraq. See following
  
  
• The Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities (pdf format).
  
  
• U.S. Plan For Iraq's Future Is Challenged. NSPD 24 is aslo mention in this article by the Washington Post. This could be a red herring, on the other hand:
  

  
  The concerns begin with the secrecy that has surrounded the planning process and the lack of publicly released details. What is known is that President Bush, for reasons he has not made clear, has given the Department of Defense primary control over all postwar aid and reconstruction, a role that has sparked discomfort across a broad, bipartisan spectrum in Congress and among other governments.
  

  
  
  

Signing out for a moment....

[gottaB]

5. Found a statement by Robert M. McNamara

A Primer on the Changing Role of Law Enforcement and Intelligence in the War on Terrorism (pdf format).

Covert action can only be undertaken after the President issues a written finding, in which he must find that such an action is necessary to support an identifiable foreign policy objective and is important to the national security of the United States. A presidential finding cannot authorize a covert action that has already occurred, cannot violate the U.S. Constitution or federal law, and cannot be intended to influence U.S. political process, public opinion, policies or media. The National Security Act of 1947 sets forth specific notification requirements, which enable the House and Senate Intelligence Committees to exercise appropriate oversight of the these covert actions.

A brief entry about McNamara, and also The Markle Foundation, which put its impramatur on the study. Finally, Undermining Terrorism, resources from the John F. Kennedy School of Government.

I'm getting the impression BushCo weren't listening to McNamara, unless they were scheming how to get around the law.

[gottaB]

6. An allusion to the secret presidential finding

From blogger James S. Henry, US Brutilitarianism Comes to Iraq. Henry cites a story in the Washington Post from November 5, 2003 (page A10, natch), Deported Terror Suspect Details Torture in Syria , which mentions a secret presidential finding authorizing, well, torture.

One senior intelligence official said Tuesday that Arar is still believed to have connections to al Qaeda. The Justice Department did not have enough evidence to detain him when he landed in the United States, the official said, and "the CIA doesn't keep people in this country."

With those limitations, and with a secret presidential "finding" authorizing the CIA to place suspects in foreign hands without due process, Arar may have been one of the people whisked overseas by the CIA.

In the early 1990s, renditions were exclusively law enforcement operations in which suspects were snatched by covert CIA or FBI teams and brought to the United States for trial or questioning. But CIA teams, working with foreign intelligence services, now capture suspected terrorists in one country and render them to another, often after U.S. interrogators have tried to gain information from them.

Renditions are considered a covert action. Congress, which oversees the CIA, knows of only the broad authority to carry out renditions but is not informed about individual cases, according to intelligence officials.

Did somebody say "Smoking gun"?

[Spazito]

8. Yep, a smoking gun, indeed!

There is an active investigation going on in Canada regarding Arar and that takes out the ability for total control within the US. Arar being sent to Syria and then tortured was a big blunder on the part of the bush admin because now Canada has it's own investigation on this and there have been "requests" made to the US on documents, etc.

Edited to add: Link to CBC re Arar case

http://www.cbc.ca/news/background/arar/arar_statement.html

and Link to the official government site of the Commission of Inquiry into the actions of Canadian Officials in Relation to Maher Arar:

http://www.ararcommission.ca/eng/index.htm

[gottaB]

9. Arar's story is an outrage--and * is directly responsible

You saw the FOIA case in LBN, US is sued over records of military prisoner abuse. I added some links there you might find useful. The rendition issue is the third part of the FOIA request. The Center for Constitutional Rights has the full complaint in pdf format: FOIA torture Complaint, ACLU, CCR et al. v. Department of Defense et al.. Regarding rendition, two news stories were cited.

• U.S. Behind Secret Transfer of Terror Suspects
  
• US ships Al Qaeda suspects to Arab states
  

§37 of the complaint concerns the CIA denial of the FOIA request. The CIA gave as reason for non-compliance an "operational files" exclusion under US Code Title 50, § 431. Would that definition of "operational files" cover a presidential directive? I don't know.

§40 reads:

News media have also reported that the practice of rendering Detainees and other individuals is far more widespread than previously believed, and that there exists a "joint intelligence task force," comprised of United States government personnel, that participates in the interrogation of individuals rendered to foreign powers known to violate international standards. Dana Priest & Joe Stephens, U.S. Arranges Detentions and Conducts Interrogations of Terror Suspects in Secret, Washington Post (May 12, 2004).

I wasn't able to find that exact title, but did find Secret World of U.S. Interrogation, by Priest and Stephens.

Are there legal issues? Here's what the Post reported:

None of the arrangements that permit U.S. personnel to kidnap, transport, interrogate and hold foreigners are ad hoc or unauthorized, including the so-called renditions. "People tend to regard it as an extra-judicial kidnapping; it's not," former CIA officer Peter Probst said. "There is a long history of this. It has been done for decades. It's absolutely legal."

In fact, every aspect of this new universe -- including maintenance of covert airlines to fly prisoners from place to place, interrogation rules and the legal justification for holding foreigners without due process afforded most U.S. citizens -- has been developed by military or CIA lawyers, vetted by Justice Department's office of legal counsel and, depending on the particular issue, approved by White House general counsel's office or the president himself.

In some cases, such as determining whether a U.S. citizen should be designated an enemy combatant who can be held without charges, the president makes the final decision, said Alberto R. Gonzales, counsel to the president, in a Feb. 24 speech to the American Bar Association's Standing Committee on Law and National Security.

Critics of this kind of detention and treatment, Gonzales said, "assumed that there was little or no analysis -- legal or otherwise -- behind the decision to detain a particular person as enemy combatant."

Back to 413(b)?

[gottaB]

12. Does Everybody Agree on the Definition of Rendition?

No there is confusion.

I'm going to quote a document prepared by Senator Shelby (R), (http://www.senate.gov/~intelligence/shelby.pdf )(pdf format), so take a deep breath, adjust your thresholds for irony tolerance, and keep an eye on the footnotes.

VI. Covert Action

A. Clarity and Support

As with HUMINT operations, there is obviously little one can say here about the lessons that should be learned from the CIA's clearly mixed record of success in offensive operations against Al-Qa'ida before September 11, 2001.¹⁶³ One important lesson, however, was suggested by former National Security Advisor Sandy Berger in his testimony before our Joint Inquiry. In giving covert action instructions to the CIA, he said it is incumbent upon the President to convey legal authorities ­- the limits spelled out in a covert action "finding" or Memorandum of Notification (MON) as to what agents are permitted to do in pursuit of the stated aim ­- with absolute clarity. ¹⁶⁴ Unfortunately, as the committees have heard repeatedly from knowledgeable participants, Berger's injunction was honored more in the breach than in the observance by the very Administration he served.

Particularly given the unpleasant history of covert action scandals that have affected the CIA, one should not be surprised to find that ­ ironically, perhaps ­ the covert action infrastructure is a relatively cautious one. Intelligence officers will often, and with good reason, hesitate to take operational risks or to push aggressively to accomplish their missions if they are operating under ambiguous or convoluted legal authorities and always suspect that they may be prosecuted or hauled before a hostile inquiry for any actual or perceived missteps. This admonition clearly applies to both Executive Branch and Congressional leaders: what ever the merits or demerits of the policies they are asked by the President to execute, our intelligence operators risking their lives in the field need to know that their own government will make clear to them what their job is and protect them when they do it. Neither assurance, unfortunately, could be had by the DO's covert action staffs working against terrorism in the late 1990s.

As far as the anti-terrorism efforts of the Intelligence Community since September 11 are concerned, I believe it is important that the record reflect that we on the oversight committees of Congress have been kept apprised of the new approaches and initiatives adopted by the President as part of our country's war on terrorism. As any perusal of our closed hearing records at the SSCI will show, we have been uniformly supportive. These are challenging times, and they have in some respects demanded unprecedented responses. In the past, Congress has sometimes contributed to cultural and legal problems of risk-aversion within the Intelligence Community by conducting high-profile investigations into intelligence activities. Congress can and must continue to a ssert its prerogatives in undertaking careful oversight of IC activities and conducting investigations wherever necessary. Historians of the United States' war on terrorism, however--and, above all, our intelligence operatives currently in the field -­ should be aware that our committee Members have forcefully supported the IC's current counterterrorist campaign. Far too much is already publicly known about this campaign, but if and when the full story is actually told, it must be made clear that what has occurred has been undertaken with the knowledge and support of the oversight organs of our national legislature.


B. Oversight Challenges

Perhaps in part because of frustrations with the existing covert action system, it has been widely reported that the Defense Department is interested in augmenting a quasi-covert action capability of its own, based upon its highly competent cadre of special operations forces (SOF).¹⁶⁵ If this parallel system works, I wish it well: the covert action side of the war on terrorism could certainly use the manpower and expertise. It is worth emphasizing, however, that a greater DOD involvement in the world of covert action could present oversight challenges for Congress.

The oversight mechanism and reporting requirements for covert action contained in 50 U.S.C. §§ 413b, of course, operate in a functional basis rather than an agency-specific one. The law does not require that only the CIA conduct covert action: rather, the President can designate any government entity for this purpose if he sees fit. DOD forces conducting covert action-type operations against Al-Qa'ida, however, may be harder for Congress to oversee if the Defense Department decides to treat attacks on Al-Qa'ida and affiliated terrorist networks as part of its "wartime" operational responsibilities rather than as part of covert action policy.

Like the rules in Executive Order 12,333 regarding "assassination," some might argue that "covert action" is a conceptual category more appropriate to times of "peace" in which special restrictions and oversight rules are crafted to oversee the government's employment of certain somewhat sinister policy tools. By this argument, operational conduct in attacking "enemy" forces in time of "war" is something else entirely -­ and is not something into which Congress has traditionally enjoyed any meaningful visibility, let alone had "oversight" responsibilities. In truth, such questions are legal matters of first impression, because the federal laws governing covert action were not yet in place the last time we faced a bitter war of indefinite duration against a global enemy. How exactly the line is drawn between "covert action" oversight and "operational" opacity, therefore, remains to be determined. The 108th Congress should watch these issues carefully, for the oversight committees are the only real "check" our constitutional scheme provides in these areas. We should take care that any alleged covert action "exception" does not swallow its rule.

---

¹⁶³ DCI Tenet confirmed the existence of CIA offensive operations against Al-Qa'ida in public testimony before the Joint Inquiry. See George Tenet, testimony before joint SSCI/HPSCI hearing (October 17, 2002), available from FDCH Political Transcripts (October 17, 2002) (declining to discuss specific legal authorities received by CIA to conduct operations before September 11, 2001 but describing "offensive operations" and a "plan of attack" both "inside Afghanistan and globally" to "render" Al-Qa'ida terrorists (capture and deliver them to appropriate authorities), "disrupt" Usama bin Laden's terrorist infrastructure and finances, and otherwise "degrade his ability to engage in terrorism").

¹⁶⁴ Sandy Berger, testimony before joint SSCI/HPSCI hearing (September 18, 2002), available from FDCH Political Transcripts (September 19, 2002) (remarking with respect to covert action authorities that "We certainly would have to have clarity from the President of the United States....").

^165]See, e.g., Schmidt & Ricks, supra.

Now, that's not the understanding of rendition that we are concerned with here. This is Tenet's testimony from 2002: Tenet's Testimony before the Joint Inquiry into Terrorist Attacks Against the United States, the unclassified version, natch. Here you see examples of his usage of "render" and "rendition":

....The arrest of Ahmad Ressam coming across the Canadian border into the US was the single most compelling piece of evidence we had that UBL was intending to strike at us in the United States. During this period, we identified numerous terrorist suspects around the world and carried out disruption activities against more than half of these individuals including arrests, renditions, detentions, and interrogations.

....The campaign involved a multifaceted program to capture and render Bin Ladin and his principal lieutenants. The range of operational initiatives employed included a strong and focused FI collection program using all means at our disposal to monitor Bin Ladin and his network around the world, and to disrupt al-Qa'ida operations.

And from 2004, for comparison, Written Statement for the Record of the Director of Central Intelligence Before the National Commission on Terrorist Attacks Upon the United States.

....

This strategy took on the name, The Plan. It evolved in conjunction with increased covert action authorities and built on what the Counterterrorist Center was recognized as doing well—collection, quick reaction to operational opportunities, renditions and disruptions, and analysis. The Plan emphasized in its multifaceted program the priority of capturing and rendering to justice Bin Ladin and his principal lieutenants.

....The Agency’s strategy of drawing foreign governments into the fight against terrorism also has continued to pay strong dividends. Through the Counterterrorist Center we have financed training and information-sharing arrangements that have encouraged the cooperation of scores of nations in regions both breeding and afflicted by terrorism. This has facilitated many renditions and other successful disruptions.

....Over a period of months, there were close daily consultations that included the Director of the FBI, the National Security Advisor, and the Attorney General. We identified 36 additional terrorist agents at the time around the world. We pursued operations against them in 50 countries. Our disruption activities succeeded against 21 of these individuals, and included arrests, renditions, detentions, and surveillance.

etc. etc. The point I'm making is that traditional usage of "rendition" by law enforcement and intelligence agencies entails bringing suspects to justice. It's rather strongly implied that suspects should be brought before U.S. courts, which, naturally, we put our trust in. I believe Tenet's usage is consistent with that idea. I do not get the impression from his testimony that suspects are being rendered to foreign governments to facilitate their torture--and neither did Senator Shelby.

Tenet's testimony was cited by Priest and Stephens, who aslo cited Christopher Kojm's testimony to similar effect, namely, that bringing suspects to U.S. courts is a primary motivation for rendition.

Now, I'm off to regoogle using "Memorandum of Notification."

[gottaB]

7. kick

:kick:

[maggrwaggr]

10. Wow! Once again, the model for Bushco was Hitler!! No joke!

This is really fascinating. Great find.

[gottaB]

11. with a splash of Iran-Contra for good measure

When I woke up this morning for the first time I had a sinking feeling about the damage this could cause.

It will be like a root canal for the nation, necessary, but extremely unpleasant. It's not a joke to me anymore.

[maggrwaggr]

13. everybody should read these three paragraphs!!

:kick:

Recycling War Crimes

Dismissing the Geneva Conventions is nothing new. Fifty-eight years ago, after World War II, the Nuremberg War Crimes Tribunal showed that by labeling certain Allied soldiers terrorists, the Third Reich used a legalistic policy for attempting to get around the Geneva Conventions. Openly armed and uniformed Allied troops had been landed behind German lines in occupied France and Norway. In response, Adolf Hitler signed the Commando Order.

Hitler's legalistic directive claimed that Allied units inside of German occupied territory were engaged in terrorist activities. Thus the Commando Order provided for captured commandos to be summarily executed. A related order directed the population to retaliate against Allied airmen who parachuted from disabled aircraft. The airmen had been accused of indiscriminately and illegally attacking civilians -- in bombing raids -- thus making them terrorists. Clearly, similar principles were adopted by Gonzales so that Bush could ignore the Geneva Conventions to advance his policies for his so-called "war on terror."

By February 2002, the White House issued a statement declaring that while the United States would adhere to the Geneva Conventions in the conduct of the war in Afghanistan, captured Taliban and Al Qaeda fighters would be exempt from prisoner of war status under the Conventions. Administration lawyers believed that this maneuver would protect U.S. interrogators who mistreated prisoners and also their superiors in Washington so that they could not be subjected to prosecutions under the War Crimes Act.

[gottaB]

14. kick

:kick: