REPLY TO ANDREW SULLIVAN, THE ATLANTIC MAGAZINE

Future criminal defendants facing prosecution for war crimes? Or carefree vacationers?


So Andrew Sullivan thinks that the perpetrators of kidnapping, rape, torture, and murder (according to the Department of Defense at least 34 homicides of detainees tortured to death) should be let off scot-free because:

"... it would be too damaging and polarizing to the American polity to launch legal prosecutions against [President Bush], and deeply unfair to solely prosecute those acting on [his] orders or in [his] name?"

[The Atlantic, October 2009, "DEAR PRESIDENT BUSH."]

Call me crazy, but the American polity is already damaged and polarized, just as it was in 1974 when President Richard Nixon committed crimes which pale in comparison to the crimes against humanity authored by President Bush, his Vice President, Secretary of Defense, and Attorney General. Somehow we managed to survive- thrive even- in the wake of the 1974 House Judiciary Committee impeachment related investigation of the Watergate burglary and coverup efforts that caused a president to resign while his attorney general, chief of staff, and numerous other high officials were sent to prison. Why was the country able to weather that storm? Because those officials had committed crimes, they got caught, and rather than dragging out the process or trying to foist it all off as politics as usual or a Democratic witch hunt, they ended up, for the most part, resigning and (except for Nixon who was pardoned by President Ford) pleading guilty under threat of criminal trials and stiff sentences. In 1973 and 1974 we had men of courage and integrity heading the prosecutions of Watergate related crimes under the Nixon Administration- first Archibald Cox, then, after the "Saturday Night Massacre," Leon Jaworski, who saw the process through to the end. Unlike Barack Obama and Eric Holder, neither of them appeared to care a whit about the perception of politics- their devotion was to the rule of law.

Mr. Sullivan proposes this country resolve the thousands of crimes by the Bush Administration with a sincere "apology" from President Bush. It would seem to me, being a rational person, that Mr. Sullivan lost all credibility with regard to his purported analytical abilities when he admitted he voted for President Bush in 2000 (the majority of the voters were smart enough to avoid that awful mistake, as Gore won the popular vote by 543,000 votes), when he supported the invasion of Iraq in 2003, when he now blames the catastrophic (to both Iraq and the U.S.) invasion on "an intelligence fiasco" (Sullivan still doesn't get what the British already knew in the summer of 2002- that the intelligence was being "fixed" to provide the results that would justify an invasion, as revealed in the "Downing Street Memo"), and when his only problem with the post invasion aftermath appears to be that it was poorly handled, rather than it should never have occurred.

Since Mr. Sullivan was not only wrong, but spectacularly so, at so many critical moments in our recent history, it stands to reason that he is once again badly mistaken in his analysis of how our country should respond to the prospect of criminal prosecutions of Bush Administration officials for murder, kidnapping, rape, and torture. Mr. Sullivan, who admits he is no legal scholar, proposes that we should not adhere to our laws and our treaty obligations which mandate that we prosecute murderers, violators of the Geneva Conventions, and other perpetrators of crimes against humanity. For his edification, here is what we must do under the United States Constitution and our treaty obligation as signers of the 1988 convention against torture, ratified by the U.S. Senate in 1994::

"Each State Party shall ensure that all acts of torture are offences under its criminal law (Article 4) . . . . The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. . . . An order from a superior officer or a public authority may not be invoked as a justification of torture."


One has to wonder in what parallel universe Mr. Sullivan lives in which he thinks we should ignore the following crimes in the interest of political comity- and these are just a few examples of the atrocities committed in our name:


"... the death of an Afghan man who was stripped naked, dragged across a concrete floor and chained there by CIA operatives in a secret prison north of Kabul known as the "Salt Pit"; he was left on the floor overnight and froze to death."

"Iraqi Abed Hamed Mowhoush, a 56-year-old who, reportedly uncooperative with interrogators, was stuffed into a sleeping bag and clubbed to death."

"Detainee was found unresponsive restrained in his cell. Death was due to blunt force injuries to lower extremities ... . Contusions and abrasions on forehead, nose, head, behind ear, neck, abdomen, buttock, elbow, thigh, knee, foot, toe, hemorrhage on rib area and leg."

Department of Defense Report of 12/10/2002 murder at Bagram, Afghanistan.

"Died as a result of asphyxia (lack of oxygen to the brain) due to strangulation as evidenced by the recently fractured hyoid bone in the neck and soft tissue hemorrhage extending downward to the level of the right thyroid cartilage. Autopsy revealed bone fracture, rib fractures, contusions in mid abdomen, back and buttocks.... No evidence of defense injuries ... . Manner of death is homicide...."

DOD 003329 Report of homicide of Iraqi in US custody at Whitehorse Detention Facility, Iraq, 6/6/2003.

"... I was handcuffed, blindfolded and severely beaten.... I saw men dressed in black, wearing black ski masks.... . I was put in a diaper, a belt with chains to my wrists and ankles, earmuffs, eye pads, a blindfold and a hood. I was thrown into a plane, and my legs and arms were spread-eagled and secured to the floor.... [and flown] to Afghanistan.

... , I was dragged to the interrogation room, where a feeding tube was forced through my nose into my stomach. I became extremely ill, suffering the worst pain of my life....
I was ... warned that I was never to mention what had happened because the Americans were determined to keep the affair a secret...."

Statement of man kidnapped and held for five months.


So why should The Atlantic publish my letter (or essay)? You shouldn't. Because unlike Mr. Sullivan, I was right at the crucial moments when he was wrong. Like Mr. Sullivan, I initially had a favorable opinion of then Governor George W. Bush, based on everything I had read about him. That lasted right up to the moment when I first saw him on television. It was his first Republican debate early in 1999, when he was asked to name his favorite philosopher. He tilted his head and said in an obviously insincere attempt at evangelical earnestness, "Jesus." Bush only went downhill from there in subsequent debates and primaries. He hit rock bottom in the South Carolina primary with his attack "push poll" on John McCain which had his callers asking likely Republican primary voters how their vote would be affected by the fact that John McCain had an illegitimate black child (McCain and his wife had adopted a brown skinned orphan from Bangladesh).

In 2001, when we were attacked on September 11th, I knew that we had been attacked by Al Qaida jihadists based in Afghanistan, not Iraq, and I told my son that evening (he was a Marine reservist who was at his barracks across the river from the Pentagon when it was hit) that we would have troops on the ground in Afghanistan in 90 days. Unlike Donald Rumsfeld and President Bush, both of whom on September 12, 2001, were looking for Iraq connections to the terror attacks so they could use them as an excuse to hit Iraq, I knew that the fundamentalists in Al Qaida considered the highly Westernized Iraq (women wore modern dress, alcohol was publicly served, women held positions of authority) anathema. And I knew that Iraq had nothing to do with the 9-11 attacks. I also knew that of all the countries in the world that wanted to harm us, the least likely to be a military threat was Iraq. They had endured sanctions for a decade, had their own air space restricted by "no-fly zones" over northern (Kurdish) and southern (Shia) areas where our warplanes routinely patrolled, had hostile Iran on its eastern border, and had our armies camped on both its southern border in Kuwait and its northern border in Turkey. Here is what Colin Powell had stated publicly and testified to in 2001:

"He [Saddam Hussein] has not developed any significant capability with respect to weapons of mass destruction. He is unable to project conventional power against his neighbors."

Secretary of State Colin Powell during a visit to Cairo, Egypt, February 24, 2001

"The sanctions, as they are called, have succeeded over the last 10 years.... The Iraqi regime militarily remains fairly weak. ... It has been contained."

Colin Powell testimony before the Senate Appropriations Committee, May 15, 2001.



In the Fall of 2002, when Bush & Co. were ginning up a war with Iraq as the midterm elections approached, I knew that there wasn't the slightest chance that either weapons of mass destruction or a purported connection to Al Qaida was a legitimate causus belli. Not because I had access to secret intelligence reports; all I had was a brain in my head, the ability to read a newspaper, and walking around common sense. Seven years later Mr. Sullivan has apparently forgotten the political climate that existed when the war vote was taken just before the 2002 midterm elections. The Senate had gone 51-49 Democratic in 2001 when a swing vote senator (Jim Jeffords) from Vermont got disgusted and left the Republican Party. In the wake of stunning collapses of fraudulent companies like Enron' and Worldcom and other scandals tied directly to Bush (Enron executives such as Ken Lay raised millions and propelled Bush into office, and they wrote his 2001 energy policy in secret meetings with Vice President Cheney) and Bush's failure to get Bin Laden- dead or alive. Bush faced the very real prospect of a Democratic House and Senate in the wake of the 2002 midterm elections. It was no coincidence that the October 11, 2002, vote to authorize war came three weeks before the Congressional elections. The fact that then Senate Majority Leader Tom Daschle (D. South Dakota) allowed that vote to happen when it did- causing several presidential aspirants (Edwards, Kerry, and Clinton) and senators facing re-election (Max Cleland, who lost anyway) to sacrifice their country and their beliefs for their perceived political fortunes should be his greatest shame.

In the Fall of 2002, in my living room, talking to my buddy Glenn- a staunch Republican- we both agreed that stirring up war fever as a political distraction from domestic and foreign policy failures was brilliant political strategy on the part of Bush's advisors. We also agreed that if Bush actually followed through and invaded Iraq, it would be an utter disaster.

Unfortunately for America (and for my family), Bush did follow through, and too many of us had family members who were sent overseas to launch an invasion of Iraq from bases in Kuwait. War is hell- and I feel for every parent and spouse who is now going through what I went through as my son's unit was involved in the March 20, 2003, invasion.

A month after the invasion, here's what I wrote in an email on April 19, 2003-- two weeks before president Bush landed a fighter on the deck of the carrier Abraham Lincoln in front of the infamous "MISSION ACCOMPLISHED" banner -- to another parent of a Marine in my son's unit in Iraq:

"Why the UN should take over is simple. Whether or not they do a better job, the perception among the people in the region will be hugely different regarding a UN sponsored trusteeship of the country. It simply is in our national interest to have a respected international organization take over the rebuilding of Iraq. The sooner American and British soldiers are out of there, the less likely that terrorists or suicide bombers will attack our loved ones there or here. And a quick exit will defeat the absurd arguments that we are a colonialist country seeking to exploit Iraq's oil."

Sadly enough, right again. Of course Andrew Sullivan missed the boat on that one, too, as he was among those who fantasized publicly that we'd be welcomed as liberators and the democratic domino effect would transform the Middle East.

So that puts me on far different ground than Andrew Sullivan. I knew that electing Bush was a terrible mistake in 2000. I knew that Al Qaida, not Iraq, had attacked us in 2001. I knew in 2002 that Iraq was no military threat to us whatsoever- that the very idea of that was laughable. I knew that those who voted to grant war powers authority to Bush in October of 2002 did so for political reasons, not based on any concern for our national security. I knew that the threats of imminent danger ("... we don't want the smoking gun to be a mushroom cloud.", then National Security Advisor Condaleeza Rice infamously said) were bogus. I knew that invading Iraq would be a disaster- that winning the "war" would be easy, but that it would only be the beginning of a horrific mistake if we stayed. I knew that we couldn't impose democracy at the point of a gun. I knew that no matter how grateful any Iraqi might have been to be relieved of the brutal dictator, Saddam Hussein, that gratitude would quickly grow to resentment, then hate, and then active guerilla operations, including suicide bombers, if we stayed on and occupied their country.

And today I know that the best course for our country, the surest way to avoid a repeat of the awful damage we have inflicted on innocents and the loss of our national honor, isn't to allow Bush to publicly apologize. It is to prosecute him for murder. And rape. And kidnapping. And torture. He is liable the same way as the head of any criminal enterprise- and that is exactly what his administration was. Joining him in the dock should be Cheney, Rumsfeld, Ashcroft, and Gonzalez. Separately, we should prosecute every American agent and contractor who committed those crimes, who ordered them committed, or who covered them up (by destroying tapes in one well known instance).


Will criminal prosecutions of a former president and his top officials be polarizing? Of course. But no more so than the fantastic and absurd attacks we've suffered through just the first eight months of Obama's presidency: Obama's death panels; Obama's concentration camps, Obama wants to take over banks, the health care industry, and the car industry; Obama is from Kenya; he's a terrorist, Nazi, a socialist, and a community organizer funneling billions to ACORN. And when in our nation's history has anyone ever suggested excusing murderers because prosecuting them would polarize the community? Did we fail to prosecute the murderers of civil rights workers because the local community was adamantly opposed? Was William Calley excused from trial for the My Lai massacre because the country was deeply divided over Vietnam?


The better question is: will prosecuting every criminal, from the highest (Bush) to the lowest interrogator, deter future presidents, top advisers, and low level agents and contractors from repeating those crimes in the future? And the answer that no one denies, is: Yes. Without question. Will prosecuting our own war criminals restore our honor in the eyes of the rest of the world and help return a little bit of our self respect at home? Yes and yes.