Are you a War Criminal? Is President Bush? Is Jeppesen Dataplan?

According to the principles established by the Nuremberg trials, you and I are probably in the clear with respect to charges of crimes against humanity or war crimes, but perhaps our political leaders are not. Could those principles be extended to all taxpayers who fund war criminals? It might sound obvious or absurd depending on how you view the issues, but it’s not an easy question.

This was brought to mind last week when Fresh Air replayed an interview with the televangelist D. James Kennedy on the occasion of his death. Asked the question of whether a judge who believes abortion is wrong should decide based on the law or based on his conscience, he invoked a simple analogy. He said that in Nazi Germany, Jews were denied all rights, including eventually the right to live, so there was no law against killing a Jew. Thus, a judge who threw out a murder case against someone who killed a Jew, or a million Jews, would be acting entirely within the law. By the principles of the Nuremberg court, however, the killer would be guilty of crimes against humanity and a judge who pushed, promoted and actively abetted these killings by his activities in his court might also be guilty depending on his actual actions and degree of complicity. According to the Nuremberg court, it was not just those who gave the orders or those who carried them out, but also those in between who greased the wheels who could be guilty of crimes against humanity. Furthermore, the fact that a crime is not punishable by internal law does not, according to Principle II, exempt a person from international law. The definition of crimes against humanity used in Nuremberg included "Murder, extermination, enslavement, deportation and other inhumane acts". They don’t specifically mention torture, but mass torture would not doubt constitute a crime against humanity (which does, by the way, have a connotation of scale that could not be realized through a single act against a single individual).

Now, let’s imagine that all the laws concerning crimes against humanity were applied not just to men in Germany and Serbia, but also to, well, Americans. This is totally abstract, though, right? Not exactly. Bush, Cheney, Rumsfeld, Gonzales and others worked hard to make torture possible. There is the nasty little matter of "aggressive" interrogation techniques like waterboarding which would, almost undoubtedly, meet the test as torture in almost any context except the fanatic milieu of the Bush administration. In the initial “torture memos” out of the White House Office of Legal Counsel, they defined torture as limited to something that caused major internal bleeding or organ failure and damage like that. This was an absurdity caused because the statutes against torture prohibit causing great pain, but failed to define pain. So they looked to totally unrelated and irrelevant statutes governing medical care which said that organ failure can cause great pain. This was absurd and allowed many practices that any reasonable court would find to be torture, as Gonzales successor found when reviewing the legal underpinnings of administration actions.

But let’s say they get away with torture actually committed by Americans (and they have and they will). There is also the dirty little matter of “renditions” where the US has turned over at least 150 foreign nationals, often in the absence of any damning evidence, to foreign governments known to practice torture during interrogations (Jordan, Syria, Egypt). Extraordinary rendition violates the UN Convention Against Torture which the US finally signed in 1992 after much hand-wringing and foot-dragging for fear of exactly this situation: that US officials would be culpable under the terms of the treaty (and justifiably so, it would appear, in light of recent events). In addition to the UN Convention Against Torture and the basic principles laid out by the Nuremberg trials, it turns out that one can also try to stop these practices through the Alien Tort Statute, passed by Congress in 1789 in order to guarantee foreign nationals access to the US court system. This, then is a long-standing protection in in international law and in US Statute, both clearly violated by the Bush administration and their helpers (is that me? I paid taxes).

Still think this is just abstract? The American Civil Liberties Union has recently brought suit against Jeppesen Dataplan, the company that aids and abets the CIA by providing flights for renditions and whose unfortunate motto in light of these accusations is: "Making Every Mission Possible". Apparently that includes CIA torture flights, flights that apparently the CIA did not think that more closely-watched institutions like the Air Force could make possible. The ACLU are presenting a case on behalf of a handful of unhappy Jeppesen passengers. These are people such as Abou Elkassim Britel, an Italian who was bound and blindfolded and flown from Pakistan to Morocco and held and tortured for eight months without being allowed to contact anyone. He has permanent damage to his left eye and other body parts and was never even charged with anything. Upon release, he was arrested by the Moroccans and sentenced to six years in prison. Binyam Mohamed was blindfolded, shackled and repeatedly had his head beaten against a wall until he bled. He was beaten to the point that several bones were broken. They put small cuts on his genitals and then poured stinging liquid over them. He is now held without charge at Guantanamo. So the ACLU is brigning suit against those who transported these victims at the behest of the CIA.

Is there precedent for trying people who organize transportation that contributes to crimes under international law? Well, yes, there is. Adolph Eichmann, Nazi transportation minister for Jewish affairs was treated to his own extraordinary rendition in 1962. Discovered in Argentina, the Israeli Mossad kidnapped Eichmann, drugged him, and smuggled him out of Argentina and off to Israel. There Eichmann was tried and exectued. There were some protests in the UN for the violation of Argentinian sovereignty, but more or less the incident was allowed to pass.

You might balk at equating Jeppesen Dataplan with the Nazi minister of transportation for Jewish affairs, but I would say it’s just a question is one of scale. Yes, scale does matter, but it reminds me of the joke where a man turns to a woman at a bar and asks if she would have sex with a stranger for ten million dollars.
“Sure, she says.”
“Well, then, will you have sex with me for $100?”
“Certainly not! Do you think I’m a whore?” she replied indignantly.
“My dear lady,” the man replies, “we’ve already established that you’re a whore. Now we’re just haggling over price.”

Is it necessary to say that it makes no difference whether or not these people are guilty or plotting terrorism or not? As John McCain said so brilliantly when criticizing the Bush administration for promoting torture, “This is not about who they are. This is about who we are.” The goal should not be first and foremost to protect our country, but first and foremost to have a country worth protecting. A country and government that does not protect civil liberties, engages in torture, approves torture at the highest levels, and has willing corporations who, for a few dollars, are willing to engage in crimes against humanity is, I’m sorry to say, not worth protecting. The country that government represents may be worth protecting, but not the government. As Mark Twain said: Loyalty to your country always. Loyalty to your government when it deserves it.

Is there a meaningful difference between a government that, at the highest levels, approves torturing a few hundred people and a government that, at the highest levels, approves torturing a few million people? On just that one criterion, I don’ think so. That isn’t to say that I think there is no difference between Eichmann and Jeppesen, no difference between the US and Nazi Germany. That would be an obscene trivialization of Nazi crimes and a gross exaggeration of the Bush administration crimes. And for a long time, that gap made me oppose impeachement and criminal prosecution Bush officials, but in pondering the Kennedy interview and thinking over Eichmann and Nuremberg, I’ve changed my mind. I now feel that if we have a country worth protecting, we need to prove it by holding people at the highest levels accountable for their crimes against humanity.

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