National Lawyers Guild Calls For Prosecution Of President Bush For Role In Torture

2003 State of the Union Address Contained Implicit Admission

New York, June 18, 2004--The National Lawyers Guild calls for the prosecution of President George W. Bush with a "command responsibility" theory of liability under the War Crimes Act. Bush can be prosecuted under the War Crimes Act or the Torture Statute, if he knew or should have known about the U.S. military's use of torture and failed to stop or prevent it. A comment in the President's January 2003 State of the Union Address contained an implicit admission by Bush that he had sanctioned the summary execution of many when he said: "All told, more than 3,000 suspected terrorists have been arrested in many countries, and many others have met a different fate." "Let's put it this way," he continued, "they are no longer a problem for the United States and our friends and allies."

The Defense Department and the Justice Department each commissioned documents attempting to justify the use of torture under the President's war-making power, notwithstanding the Constitution's clear mandate that only Congress can make the laws. The Defense Department memo said that as commander-in-chief, the President has a "constitutionally superior position" to Congress. This blatant disregard for the tripartite Separation of Powers doctrine is also contrary to the landmark ruling in the Korean War case, Youngstown Sheet & Tire Co. v. Sawyers, in which the Supreme Court held, "In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker."

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was ratified by the United States and is thus part of the supreme law of the land. Congress implemented U.S. obligations under this treaty by enacting the Torture Statute, which provides 20 years, life in prison, or even the death penalty if death results from torture committed by a U.S. citizen abroad. The USA PATRIOT Act added the crime of conspiracy to commit torture to the Torture Statute. The Convention Against Torture prohibits the intentional infliction of severe physical or mental pain or suffering on a person to (a) obtain a confession, (b) punish him or (c) intimidate or coerce him based on discrimination of any kind. To violate this treaty, the pain or suffering must be inflicted "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

The Istanbul Protocol of 9 August 1999 is the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It sets forth international guidelines for the United Nations High Commission for Human Rights. Included in the Protocol's list of torture methods are rape, blunt trauma, forced positioning, asphyxiation, crush injuries, humiliations, death threats, forced engagement in practices violative of religion, and threat of attacks by dogs. The photographs and reports from prisoners in Abu Ghraib include all of these techniques. Moreover, the Defense Department analysis maintained that a torturer could get off it he acted in "good faith," not thinking his actions would result in severe mental harm. If the torturer based his conduct on the advice of these memos, he could according to this argument, have acted in good faith.

Referring to the 9/11 Commission's preliminary reports issued this week, National Lawyers Guild President Michael Avery said: "The Justice Department memorandum reads like a pre-trial brief on behalf of the Nazi defendants in the Nuremberg trial. It's rife with justification after justification for the use of torture."

Bush implicitly admitted sanctioning willful killing, torture and/or inhuman treatment in his 2003 State of the Union Address. The Constitution mandates the impeachment of a President for high crimes and misdemeanors. There is no higher crime than a war crime. Willful killing, torture and inhuman treatment constitute grave breaches of the Geneva Convention, which are considered war crimes under The War Crimes Act of 1996.

The National Lawyers Guild, founded in 1937, comprises over 6,000 members and activists in the service of the people. Its national office is headquartered in New York and it has chapters in nearly every state, as well as over 100 law school chapters. Guild members provide legal support to progressive demonstrations throughout the country, and well understand the nationwide trend toward increasingly repressive measures deployed against political protesters.