JULY 19, 2016
THE NOVELIST CORMAC MCCARTHY said of a character in The Road, “He thought that in the history of the world it might even be that there was more punishment than crime.” No truer words could be said of the United States today. There are currently more than 2.2 million confined in US prisons and jails, one million of whom are African American; a quarter of the world’s prisoners are held by a country with just five percent of the world’s population. At the same time, the opposite appears true — that crime exceeds punishment. Action to hold government accountable for its history of torture and aggressive war has been tepid. There is little apparent appetite to revisit Bush administration duplicity with regards to the Iraq War, even as public opinion has tilted toward viewing the conflict as a mistake. The rule of law — that touted bedrock of American democracy — lies shattered.
Scholar-activist Rebecca Gordon has published a bold new book that takes on this current age of injustice. In American Nuremberg: The U.S. Officials Who Should Stand Trial for Post-9/11 War Crimes, she proposes a formal tribunal to prosecute members of the Bush team for the invasion of Iraq as an illegal war and for erecting a sordid global torture program. Gordon names as potential defendants ex-president Bush, Dick Cheney, Donald Rumsfeld, Condoleezza Rice, military leaders, and a handful of conniving Department of Justice (DoJ) attorneys and executive branch staffers.
The bodies of law these government officials potentially violated range from the Geneva Conventions and the 1996 War Crimes Act to the Convention Against Torture. Parsing the language of relevant statutes, and presenting initial evidence of their breech, Gordon makes a persuasive case that any such tribunal might well convict the defendants. Her claim is nothing less than that our government, at its highest levels, committed war crimes akin to leading Nazi figures and countless other murderous statesmen.
The charge is serious. But Gordon makes it with steady conviction and legal and ethical rigor. The stakes go way beyond attitudes toward a controversial presidency and its widely reviled executors, such as Dick Cheney. They speak to the heart of what the United States is, or chooses to be.
Gordon’s invocation of Nuremberg seems intended to shock the nation out of complacency about the systematic violation of its laws and values. At the same time, she remains realistic, conceding that it is “extremely unlikely” such a tribunal would ever come to pass with government consent. It would therefore serve the “people’s justice,” akin to the famous “Russell War Crimes Tribunal” aimed at US conduct in the Vietnam War. Its overarching purpose would be to further burnish the public record with accounts of US crimes so as to prevent their repetition, while delivering to their victims some measure of symbolic justice.
US crimes in the war on terror matter […] because hundreds of thousands have died, millions have been made homeless, an unknown number have been kidnapped, tortured, and disappeared — and because the nation responsible for all this is the most powerful the world has ever known. These crimes matter because impunity is a dangerous thing, both for the souls of the people of this still nominally democratic country, and for the rest of the world […]
Gordon’s terrific 2014 book Mainstreaming Torture put her on the map as a compelling human rights advocate. The book dissects the role of political rhetoric, media discourse, popular culture, and even academic treatise in making torture (by whatever name) acceptable. It stands as an instant classic among accounts of 9/11 and its aftermath, joining the path-breaking research of Alfred McCoy, Jane Mayer, Andy Worthington, and Karen Greenberg.
Initially Gordon’s PhD dissertation, Mainstreaming Torture capped her unconventional path into academia. She was a professional activist for years, involved in LGBTQ struggles and solidarity campaigns with Central and Latin American peoples in the 1980s. She is therefore well attuned to the long durée of violence — including the sponsorship of torture in Latin America — within the United States’s imperial history. More than that, Gordon’s background has helped her craft an analytic language for talking about torture sensitive to its human — and not just its legal, political, and ethical — dimensions.
In American Nuremberg she trades academic nuance for a plainspoken, even folksy, prose style. The effect is to present damning legal arguments as common moral sense. The book is eminently valuable in distinguishing the categories of potential crimes and the national and international laws relevant to them. Gordon also revisits the stomach-turning detail many Americans would just as soon forget, including the specious reasoning by which Bush’s Justice Department sought to exempt torture from the law, and the grisly methods — from “anal rehydration,” to threats of execution, to sexual humiliation — visited upon US captives. (CIA records, just released via a Freedom of Information Act request by the American Civil Liberties Union, detail this abuse.) All of what Gordon cites is a matter of ample public record, including in FBI and US Senate reports.
The book’s most harrowing section recounts the horrors visited upon Abu Zubaydah. Zubaydah, initially thought by the CIA to be a leader of al-Qaeda, was the first, formal victim of Bush administration-approved “enhanced interrogations.” In other words, he was the subject of macabre experiments in bodily and psychological torture. Perhaps the most shocking but least reported aspect of his ordeal: the US government has long withdrawn its initial accusations against Zubaydah. Just the same, it insists on holding him indefinitely without charge, perhaps now to avoid the added embarrassment his release might bring.
The key difference from this and other similarly depressing texts is that Gordon offers a constructive path for one’s outrage: to stage an American Nuremberg. The book’s last section lays out the case for holding an unofficial tribunal and sketches what it might look like. This includes trained jurists and prosecutors; evidence from documents and witnesses (former Guantanamo detainees would have to testify by Skype, as their travel to the United States is prohibited); media attention; and, ideally, patronage from figures within government, religion, and the law. A genuine American Nuremberg, with the full force of law, may be wildly implausible. It remains to be seen if activists, attorneys, the victims, and survivors of US crimes, and Gordon herself, will take up the invitation of her book to deliver a “people’s justice.”
For all its virtues, American Nuremberg is not without its flaws. The text is peppered with the kinds of mistakes that suggest it was rushed into print. Gordon writes that the United States has “put its heavy boots on the ground in every continent.” But the continent of Antarctica is subject to a ban on military operations, observed by the United States. More consequentially, she reports that Bush first told Americans after 9/11 “to go shopping,” with the saber-rattling coming later. In fact, at ground zero on September 11 Bush portended military action by thundering, “I can hear you! […] and the people who knocked these buildings down will hear all of us soon.” That evening, Bush enunciated what became a cardinal point in the “Bush Doctrine” by declaring that the United States “will make no distinction between the terrorists who committed these acts and those who harbor them.”
Gordon also admits that her editor insisted on the famous Nuremberg trials as a provocative frame for potential, post–9/11 prosecutions. She says all the right things to mitigate objections to the tenuous comparison: that the scale of Nazi crimes of course dwarfs US conduct; that international law must be enforced, no matter the extent of its violation; and that the suffering of individual victims is absolute, not relative, entitling each to justice. Even so, the association of Nuremberg with Nazi crimes is so profound, and the severity of Jewish suffering so great, that one may still blanch at the analogy.
Finally, American Nuremberg is not without its conundrums. An elemental part of the torture saga has been government efforts not just to shield torturers from prosecution but to make torture, de facto, legal. Most notoriously, at the request of the CIA Office of Legal Counsel, attorneys John Yoo and Jay Bybee redefined torture in their secret, 2002 legal memoranda. The memos, according to a CIA lawyer, were a “golden shield” against legal culpability. Department of Justice memoranda in 2005 reaffirmed the protections of the shield.
Congress also got into the immunity act. The December 2005 Detainee Treatment Act — ostensibly designed to protect captives from abuse — stripped Guantanamo detainees of the right of habeas corpus (since restored by the Supreme Court), badly limiting legal challenges to their abusive treatment. The Military Commissions Act of 2006 went so far as to grant CIA interrogators retroactive immunity for past conduct, while leaving the door open for future abuse.
Despite his campaign promises, Barack Obama failed to fully repudiate and come to honest terms with Bush-era practices. In what amounts to an original sin of Obama’s administration, Attorney General Eric Holder announced early in his tenure that the Department of Justice would not pursue criminal investigations of CIA and other interrogators who operated under the broad auspices of the Yoo/Bybee memos condoning torture. Put bluntly, the Obama administration accepted the premise that the executive may essentially void standing laws by rewriting them to its liking.
Subsequently, the DoJ failed to bring indictments even against CIA torturers who went beyond the already draconian, approved “enhance interrogation” techniques, sometimes resulting in homicides. And, preposterously, no criminal conduct was found in the CIA’s destruction of more than 90 videotapes of “enhanced interrogations” of Zubaydah and another detainee in Thailand in 2002. These likely would show to a horrified public, like the photos from Abu Ghraib, the gruesome reality of detainee abuse. All of the above crimes went unpunished.
Efforts to prosecute within federal law mini-American Nurembergs have likewise been stymied. For years, attorneys from the ACLU, the Center for Constitutional Rights (CCR), and other legal collectives have filed lawsuits on behalf of victims of American abuse. The named defendants range from key government figures who authorized the torture program, like Donald Rumsfeld, to private companies that executed the “rendition” of captives for overseas abuse, like Jeppesen Dataplan, Inc. And for years, DoJ attorneys — under Obama as well as Bush — have successfully invoked executive privilege, state’s secrets doctrine, jurisdictional issues, and other national security grounds to dismiss all such lawsuits.
Legal action to hold the Bush Administration to account for the Iraq War has met a similar fate. Saleh v. Bush, a class action suit arguing that the conflict violated the ban on aggressive war prosecuted at Nuremberg, has sputtered in court. Efforts to invoke international jurisdiction have fared no better, as national courts have dismissed lawsuits against Rumsfeld for overseeing torture. In a minor miracle within the history of such litigation, a US federal court in April 2016 let proceed a lawsuit against the two infamous psychologists who devised the CIA’s torture techniques on behalf of three of its victims. Surely aware of this history of legal capitulation, Gordon makes negligible mention of it in her book.
Is it worse to live under the abject tyranny of a rogue government which flouts the law, or under a constitutional tyranny which renders its very barbarism legal? Whatever one’s preference, the latter has been the sad American story since 2001. Changing the narrative may take more than symbolically pulling the levers of justice on a vitiated body politic.
But at least it is a place to start.
Jeremy Varon is a professor of history at the New School in New York City. He is author of Bringing the War Home: The Weather Underground, the Red Army Faction, and Revolutionary Violence in the Sixties and Seventies.