The Gonzales Indictment

By Marjorie Cohn, TruthOut.org. Posted January 19, 2005.

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 Crimes Act.

    COUNT I: Application of Geneva Conventions; Definition of Torture

    On or about Jan. 25, 2002 through Jan. 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 similar criteria."

    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 Jan. 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 Feb. 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 Aug. 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 Aug. 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."

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