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Beyond the Law: The Bush Administration's Unlawful Responses in the "War" on Terror ReviewJordan Paust is Professor of International Law at the University of Houston's Law Center. He has produced a thorough and definitive account of US war crimes against its detainees.
50,000 people have been detained at Guantanamo Bay, at 25 sites in Afghanistan and 17 in Iraq. As Paust writes, "The `dirty war' would involve at least cruel and inhumane treatment of captured human beings and the forced disappearance of various detained persons, despite the fact that cruel and inhumane treatment and forced disappearance are well-known examples of conduct that is absolutely proscribed under several treaties of the United States and customary international law." The International Committee of the Red Cross described the US's interrogation process as `a form of torture'.
Presidential memos and directives illegally authorised illegal interrogation methods including at least cruel and inhumane treatment and the illegal secret detentions, renditions and disappearance of human beings. President Bush publicly admitted in September 2006 that he had approved `tough' interrogation tactics and a `program' of secret detentions and secret renditions, and that this would continue. Paust writes, "during the long history of the United States, no other President is known to have authorized violations of the laws of war concerning the transfer, treatment, and interrogation of human beings."
Government officials in most European countries, including Britain, are wrongfully complicit in violations of the rights of prisoners secretly detained in and/or transferred through their territory. They are obliged under international law not to be complicit in these violations.
Paust notes the Bush administration's "unprincipled plan to evade the reach of law and to take actions in violation of Geneva law while seeking to avoid criminal sanctions." He goes on, "The common plan and authorizations have criminal implications, as denials of protections under the laws of war are violations of the laws of war, which are war crimes." The illegal denial of combatant and POW status to members of Taliban armed forces provides a pretext for similar denials to US and other soldiers.
Bush's decision to call his post-9/11 policy a `war' on terror meets Al Qaeda's desires, because it upgrades terrorism to armed conflict and glorifies terrorists as warriors. It also makes the Pentagon a legitimate military target and gives Al Qaeda combatant immunity. The USA cannot be at `war' with bin Laden, Al Qaeda or `terrorism' because Al Qaeda is not a state or an insurgent, just a terrorist group. 9/11 was an armed attack, a crime against humanity, and the USA has only the right of selective and proportionate self-defence under the UN Charter against those directly involved.
Paust criticises `the Bush administration's unconstitutional and autocratic commander-above-the-law theory'. He writes, "The claim that the President has authority to violate international laws of war, human rights law, and domestic legislation is patently unconstitutional and unacceptable. Its nihilistic essence is remarkably close to the unlimited psychotic justifications of many terrorists ..."
Paust documents case law showing that presidents are bound by the laws of war and that presidential powers are subject to restraint by Congress, or should be. In fact, the rule of law appears to be ineffective, the separation of powers is not working, as President Bush rides over all judicial and congressional limits. He has claimed the authority to disobey more than 750 laws enacted since he took office.
He sums up, "war crimes policies and authorizations are not merely a threat to constitutional government and our democracy. They threaten law and order more generally, violate our common dignity, degrade our military, place our soldiers and CIA personnel in harm's way, thwart our mission, and deflate our authority and influence abroad. They can embolden an enemy, serve as a terrorist recruitment tool, lengthen social violence, and fulfill other terrorist ambitions." These consequences `are ultimately more threatening than actual terrorist attacks'.
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