Sort of made my day when this came screaming into my inbox, flaps down and shakin'.
The Gonzales Indictment
By Marjorie Cohn
Alberto Gonzales should not be the Attorney
General of the United States. He should be
considered a war criminal and indicted by the
Attorney General. This is a suggested
indictment of Alberto Gonzales for war crimes
under Title 18 U.S.C. section 1441, the War
COUNT I: Application of Geneva Conventions;
Definition of Torture
On or about January 25, 2002 through January 16, 2005,
Defendant ALBERTO GONZALES, Counsel to George
W. Bush, the President of the United States of America,
did write, commission and concur in memoranda that
advocated conduct by United States military forces,
amounting to war crimes under Title 18 U.S.C. section
1441 (The War Crimes Act ).
The War Crimes Act defines as war crimes: grave
breaches of the Geneva Conventions, and violations
of Article 3 common to the Geneva Conventions.
Section 130 of the Geneva Convention Relative to
the Treatment of Prisoners of War (Third Geneva
Convention) defines as grave breaches of that
Convention: "willful killing, torture or inhuman
treatment," and "willfully causing great suffering
or serious injury to body or health."
It is well-established that Article 3 common applies
to international as well as internal armed conflicts.
Article 3 common provides that "persons taking no
active part in the hostilities, including members of
armed forces who have laid down their arms...shall
in all circumstances be treated humanely, without
any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other
The following acts constitute violations of Article 3
common: "Violence to life and person, in particular
murder of all kinds, mutilation, cruel treatment and
torture"; "outrages upon personal dignity, in
particular, humiliating and degrading treatment"; and
"the passing of sentences and the carrying out of
executions without previous judgment pronounced by
a regularly constituted court affording all the judicial
guarantees which are recognized as indispensable
by civilized peoples."
Article 5 of the Third Geneva Convention provides:
"Should any doubt arise as to whether persons, having
committed a belligerent act and having fallen into the
hands of the enemy [are prisoners of war under this
Convention], such persons shall enjoy the protection
of the present Convention until such time as their
status has been determined by a competent tribunal."
Defendant ALBERTO GONZALES wrote, in a
memorandum to President George W. Bush dated
January 25, 2002, that the war against terrorism is
a "new paradigm" that "renders obsolete Geneva's
strict limitations on questioning of enemy prisoners
and renders quaint some of its provisions."
Defendant GONZALES wrote that the Third Geneva
Convention should not apply to members of the
Taliban and Al Qaeda who were captured after the
United States invaded Afghanistan in October 2001.
Defendant GONZALES also advised President Bush
in that memorandum that he could avoid allegations
of war crimes under The War Crimes Act by simply
declaring that the Geneva Convention does not apply
to members of the Taliban and Al Qaeda. Defendant
GONZALES wrote that a determination of the
inapplicability of the Third Geneva Convention would
insulate against prosecution by future "prosecutors
and independent counsels."
In apparent reliance on the advice in Defendant
GONZALES' memorandum, and notwithstanding
the requirement of Article 5 of the Third Geneva
Convention that a "competent tribunal" determine
the status of prisoners, President George W. Bush
issued an order on February 7, 2002, specifying
that the United States would not apply the Third
Geneva Convention to members of Al Qaeda, and
that as commander-in-chief of the United States,
he had the power to suspend the Geneva
Conventions regarding the conflict in
Afghanistan, although he declined to suspend them
at that time.
Defendant ALBERTO GONZALES commissioned
the Office of Legal Counsel of the Department of
Justice's memorandum dated August 1, 2002,
which required that, in order to constitute "torture,"
the pain caused by an interrogation must include
"injury such as death, organ failure, or serious
impairment of body functions." This definition is
contrary to The War Crimes Act and the
Convention Against Torture and Other Cruel,
Unusual or Degrading Treatment or Punishment,
a treaty ratified by the United States.
Before the August 1, 2002 memorandum was issued,
Colin Powell, Secretary of State, had counseled
against its conclusions that the Geneva Conventions
did not apply; he wrote that this "will reverse over a
century of U.S. policy and practice in supporting the
Geneva conventions, and undermine the protection
of the law of war for our troops, both in this specific
conflict and in general."
Although the August 1, 2002 memorandum was
retracted on December 30, 2004, the provisions
of the August 1, 2002 memorandum remained in
effect for 2 ½ years, notwithstanding the warnings
of Secretary Powell.
The January 25, 2002 and August 1, 2002 memoranda,
and the February 7, 2002 order set forth policies that
led to the willful killing, torture or inhuman treatment;
and great suffering or serious injury to body or health,
of DOES 1 through 1,000, prisoners in United States
custody in Afghanistan, Iraq, Guantánamo Bay, Cuba,
as listed in EXHIBIT A (Dear Mr. Gonzales).
Defendant ALBERTO GONZALES knew or should
have known that, pursuant to memoranda written by,
commissioned or concurred in by him, prisoners in
United States custody would be subjected to willful
killing, torture or inhuman treatment; and great
suffering or serious injury to body or health, in
violation of The War Crimes Act.
COUNT II: Military Commissions
Between September 11, 2001 and November 13,
2001, Defendant ALBERTO GONZALES did
participate in the drafting of the Military Order
establishing the Military Commissions, which
order was signed by President George W. Bush
on November 13, 2001. Said order mandated
conduct by members of United States military
forces which constitute war crimes under The
War Crimes Act.
The War Crimes Act defines war crimes as grave
breaches of the Geneva Conventions. Section
130 of the Third Geneva Convention defines as
a grave breach of that Convention: "willfully
depriving a prisoner of war of the rights of fair
and regular trial prescribed in this Convention."
Article 84 of the Third Geneva Convention provides
that prisoners of war shall be tried in the same types
of courts (military or civilian) as members of the
armed forces of the Detaining Power. It also provides:
"In no circumstances whatever shall a prisoner of war
be tried by a court of any kind which does not offer
the essential guarantees of independence and
impartiality as generally recognized."
Article 3 common to the Geneva Conventions
prohibits "the passing of sentences and the
carrying out of executions without previous
judgment pronounced by a regularly constituted
court affording all the judicial guarantees which
are recognized as indispensable by civilized
Unlike courts convened pursuant to the Uniform
Code of Military Justice, and civilian courts of
the United States, the Military Order provides for
no judicial review by federal courts of the United
States. The final level of review in the Military
Commissions is to the President or the Secretary
Military Commission Order No. 1(6)(B)(3) allows
the use of evidence that the accused is not permitted
to see, and provides for the exclusion of the accused
from the proceedings. These provisions violate the
rights of the accused to be confronted with the
evidence against him, and to confront and
cross-examine adverse witnesses. These rights are
guaranteed to the accused in courts convened under
the Uniform Code of Military Justice and civilian
courts in the United States.
Section 4(c)(3) of the Military Order provides for
the "admission of such evidence as would, in the
opinion of the presiding officer of the military
commission...have probative value to a reasonable
person." Such evidence would be inadmissible
under the rules of evidence in courts convened
under the Uniform Code of Military Justice and
civilian courts in the United States.
Defendant ALBERTO GONZALES knew or should
have known that the Military Commissions, in whose
creation he participated, will deprive prisoners in
United States custody who will be tried before them,
of the rights of fair and regular trial prescribed in the
Third Geneva Convention and Article 3 common to
the Geneva Conventions.
Penalties Under the War Crimes Act
Title 18 U.S.C. sec. 1441 provides that any national
of the United States who commits a war crime "shall
be fined under this title or imprisoned for life or any
term of years, or both, and if death results to the
victim, shall also be subject to the penalty of death."
Search the NYTr Archives at:
To subscribe or unsubscribe or change
your settings via the web, visit:
NY Transfer News Collective * A Service of Blythe Systems
Since 1985 - Information for the Rest of Us
339 Lafayette St., New York, NY 10012