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Tillerson Mulls Closing War Crimes Office

Secretary of State Rex Tillerson is reportedly considering closing the Office of Global Criminal Justice, a tiny agency with a meager budget of $3 million a year, located within the State Department.

According to its website, the office “advises the Secretary of State . . . on issues related to war crimes, crimes against humanity, and genocide.” It “also coordinates U.S. Government positions relating to the international and hybrid courts currently prosecuting persons responsible for genocide, war crimes, and crimes against humanity—not only for such crimes committed in the former Yugoslavia, Rwanda, Sierra Leone, and Cambodia—but also in Kenya, Libya, Côte d’Ivoire, Guatemala, and elsewhere in the world.”

Furthermore, it deploys “a range of diplomatic, legal, economic, military, and intelligence tools to help expose the truth, judge those responsible, protect and assist victims, enable reconciliation, deter atrocities, and build the rule of law.”

The New York Times reported that human rights advocates saw the proposal [1] as an example of “the Trump administration’s indifference to human rights outside North Korea, Iran and Cuba.” Human rights activists also said that shutting the Office “would hamper efforts to publicize atrocities and bring war criminals to justice.” Newsweek [2] reported, however, that the Obama administration also reportedly considered downgrading the office and merging it with another agency.

According to the Newsweek article, the office offered rewards for information on “war criminals, and has inveighed against brutal dictators, including Sudanese President Omar al-Bashir and Syrian President Bashar al-Assad.” But the article also noted it “has not criticized Saudi Arabia or other American allies with dismal human rights records.”

The same Newsweek piece explained that the office was formed following the 1996 passage of the War Crimes Act. That Act defined a war crime as a “grave breach” of the Geneva Conventions. The War Crimes Act, codified as 18 U.S. Code § 2441, makes it an offense, “whether inside or outside the United States,” to commit a war crime, if one is a member of the Armed Forces of the United States or a national of the United States. Newsweek writer Nina Burleigh correctly noted that when “the CIA began using torture early in the Iraq War and, later, jailing people indefinitely and without trial in Guantanamo, the U.S. was in open breach of the conventions.” As noted above, the Office of Global Criminal Justice has inveighed against Syrian President Bashar al-Assad. But it seemed to have had no problem with the Syrian government when CIA officials outsourced torture to the Syrian government earlier in the so-called Global War on Terror.

So, if there was ever a U.S. government agency standing as a symbol for U.S. hypocrisy, the Office of Global Criminal Justice is it. It is not hard to see in decoding their mission statement that “elsewhere in the world” does not mean leaders of any U.S. allied nations. But even more hypocritical is having a U.S. government agency charged with tasks to “help expose the truth, judge those responsible, protect and assist victims, enable reconciliation, deter atrocities, and build the rule of law,” when the U.S. Department of Justice is doing the exact opposite in enforcing the War Crime Act itself.

That hypocrisy is seen in a series of cases beginning in 2006 with the decision in Rasul v. Rumsfeld, by the D.C. District Court. As law professor Steve Vladeck explained, when asked of that case in a 2006 article [3], “Is torture or other forms of cruel, inhuman, or degrading treatment (CIDT) within the scope of government employment? At least somewhat surprisingly, . . . the answer to that question is ‘yes.’”

Since 2006, the principle in the decision of Rasul v. Rumsfeld that Vladeck referred to has become a time-honored principle of U.S. jurisprudence, and a symbol of U.S. hypocrisy when compared to other U.S. pronouncements on torture and war crimes, as seen in a long series of cases down to the present day.

The manner that those decisions are written eliminates all illusions that the United States government is opposed to war crimes when done by “a member of the Armed Forces of the United States or a national of the United States”—they have been granted impunity under the law to offend. Famously, that was expressed by President Obama when he stated that those CIA officials guilty of torture would not be held criminally accountable for acts that are defined as “war crimes,” that is, torture. Little wonder that Donald Trump could so readily say he believed torture worked, since that is what many CIA officials continue to say. Failing to prosecute war crimes is in itself a war crime under international law, and, to use the words of the “Office of Global Criminal Justice,” the opposite of its mission to “expose the truth,” and “judge those responsible.” But taking matters a step further, the U.S. government has designed a legal procedure to deny protection and assistance to victims. This is exactly what leaders of countries that are in line for U.S.-sponsored regime change are routinely accused of doing by the Office of Global Criminal Justice.

The issue in a series of lawsuits involving the war crime of torture is whether former Guantanamo prisoners who were victims of U.S. government officials could sue the officials for civil damages. The courts have held, however, that government officials were entitled to immunity for the acts they had committed and were being sued for torture, as it was “within the scope of their employment.” These decisions are based on procedures based on the Westfall Act, which is too convoluted to explain here, but it serves to nullify the War Crimes Act.

Typical of the language in the court’s decisions is: “several detainees were subjected to abuse—including ‘forced grooming, solitary confinement, sleep deprivation, forced medication, transport in ‘shackles and chains, blackened goggles, and ear coverings,’ and the disruption of … religious practices”—even after a CSRT had determined that there were not enemy combatants…. The court held that the defendants’ actions were ‘of the kind’ [they were] employed to perform,” even though the mistreatment occurred when several of the plaintiffs “had no intelligence value.” The court noted that “[t]hough the intelligence rationale has dissipated, the need to maintain an orderly detention environment remained after CSRT clearance.” The court continued: “Authorized or not, the conduct was certainly foreseeable because maintaining peace, security, and safety at a place like Guantanamo Bay is a stern and difficult business.”

That was what German military and Gestapo officers said of the prisons they worked in when they went on trial for war crimes at Nuremberg. Most common as their legal defense against war crime charges was that the defendants were only following “superior orders,” in German, “Befehl ist Befehl” (“orders are orders”)—a tactic now known as the Nuremberg defense. In other words, the earlier generation of war criminals effectively claimed their actions were “within their scope of employment.” That defense didn’t work at Nuremberg for Germans, but it works now for U.S. officials in U.S. courts.

The closing the Office of Global Criminal Justice just makes official what has been U.S. policy since 9/11. If it is true that hypocrisy is the tribute that vice pays to virtue, then the U.S. government has showered tribute upon vice with the hypocrisy of the Office of Global Criminal Justice. If it closes, it means we won’t even pay tribute anymore to virtue, preferring to fully embrace vice in a display of our “authenticity.” And that may be the one example where the “Office of Global Criminal Justice” fulfills its mission to “expose the truth.”

(Ret.) Maj. Todd E. Pierce is a former Army judge advocate general defense attorney at Guantanamo Bay detention center, Cuba.

12 Comments (Open | Close)

12 Comments To "Tillerson Mulls Closing War Crimes Office"

#1 Comment By Not Jimmy Stewart’s America Anymore On July 26, 2017 @ 10:55 pm

It seems we owe heartfelt apologies and probably reparations to thousands of convicted Nazi war criminals. Indeed, it makes one wonder why we fought anyone other than Japan in World War Two. Odd and ironic that the only people who seem to concern themselves with war crimes anymore are the Germans …

#2 Comment By partiality On July 27, 2017 @ 12:06 am

This is part of a general scaling back of the grotesque bloat of the Hillary/Kerry years. The war crimes part of it to one side, the elimination of the countless special envoys of various (and often absurd or obsolete) description is all to the good.

#3 Comment By Rod Willmot On July 27, 2017 @ 3:07 am

A fine and badly needed article. Bravo.

#4 Comment By Scott Ritter On July 27, 2017 @ 9:04 am

A fine article that demonstrates one of the greatest threats facing Americans today–that in the name of security, virtually any sin can be rationalized. In this day and age of mass incarceration, it is not a stretch to expect the kind of abuse perpetrated at Guantanamo make its way into the American prison system, and into our streets and homes as police become more empowered by a judiciary intimidated by ignorance and fear. There is no sympathy for either perpetrators of terror or criminal acts here, but once a society eliminates basic humanity for some in its pursuit of justice, it does so for all. Thank you, Major Pierce, for bringing this issue to light.

#5 Comment By Centralist On July 27, 2017 @ 9:39 am

I wonder if people realize these abuse to foreign nationals accused of terrorism could eventually be done to US Citizens accused of the same. They were doing their job to protect us from terrorism. Its the perfect enemy because its almost completely subjective.

Love Madison and this is one of his best:
“If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.”

#6 Comment By Joe Almeida On July 27, 2017 @ 11:41 am

This is such a timely piece, because here in Canada, there has been a big uproar in regards to a settlement with Omar Khadr – the 15 year old boy who was in Afghanistan, accused of throwing the grenade at Medic Speer, and now has been paid $10 million dollars. It happened because the Canadian government did not do its basic duty of insuring a citizen was given proper due process via standard American civil courts, and that the confession was done under “enhanced interrogation” techniques were allowed as evidence (against Geneva convention), and at 15 – Khadr is a minor (Geneva convention sees 18 and above as full fledged combatants). Regardless of if you feel Khadr truly was a terrorist or not, because the Canadian government prejudged Khadr as a terrorist, and did not insure proper due process, the Canadian Supreme Court found the Canadian Government guilty of violating Khadr’s fundamental human rights, which gave Khadr the green light to sue the Canadian Government for $20 million. Justice denied the accused results in Justice delayed or denied to the families seeking justice. What worries me the most, is that when you look at the commentary in regards to this case, you realize that many Canadians accuse their Supreme Court as corrupt for doing its job, because of the sheer anger coming from the settlement, and the lack understanding of what and why due process, and rule of law truly mean. As an echo to @Centralist and his use of Madison’s quote – it’s not the terrorists that I’m worried about – but our own citizens in reaction to terrorists that they would so quickly seek to undermine those fragile things that make use civil.

#7 Comment By Helen Marshall On July 27, 2017 @ 11:50 am

I once worked in the Human Rights bureau at State, which battled with regional bureaus to at least pretend to include human rights in their strategies…it would be hard to return there now. Imagine working in a US embassy and explaining to local contacts how seriously the US takes war crimes!!!

#8 Comment By ScottA On July 27, 2017 @ 1:41 pm

But we’re the righteous and virtuous indispensable, exceptional nation! If our heroes need to torture a few ragheads so I can drive my fat American butt around in a full- sized SUV then I support the troops. If the Middle East needs to be turned into a hellscape so I can sit in the drive through at McDonalds in my SUV and don’t have to waddle in and stand in line for my Big Mac then it’s worth it. Support the troops! USA! USA!

#9 Comment By Adriana I Pena On July 27, 2017 @ 2:11 pm

Hypocrisy did not start after 9/11. Ask in Latin America what was done there in the name of “freedom” (meaning stopping Communism).

[4]

So, if they stop lying about it, is it a good sign or a bad sign? On one hand I approve of truth telling. On the other hand, it means that worse is coming

#10 Comment By EliteCommInc. On July 27, 2017 @ 2:43 pm

““If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.”

Yet, chose to advance a war against Britain and launched an invasion into Canada. Clearly nearly everything about our response to the events of 9/11 was wrong and wrong in just about every way one could be wrong.

As for war crimes, it’s strange to have an office within the office that handles such issues. We are still accountable externally and internally for such behavior.

There is no ethical response to hypocrisy. Unlike many, I don’t think we can waltz away minus any accountability and in my view, it’s far better that we take up that mantle to our own stead.

#11 Comment By sid_finster On July 30, 2017 @ 9:16 am

Since the United States ignores war crimes when it and its allies commit them, and accuses countries that it doesn’t like of war crimes without evidence, they might as well drop the charade and devote the resources to more propaganda.

#12 Comment By Bianca On July 30, 2017 @ 11:40 am

The only purpose of the office is to find ways to pressure and threaten those we want to coerce into behavior we want, or to prepare stage for invasion, color revolution or “moderate” head-choping. Real victims never are even mentioned except as a ptop in media fake reality. And some never. As there are deserving and undeserving victims. Even though Hutu population of Rwanda were by far the greatest victims, we created myth of Tutsi genocide. Even though Serbs were by far the greatest victims of Balkan wars, we created myths of Bosnian Moslem or Kosovo Albanian suffering only. These are all fake narratives to push American population into supporting globalist agendas.
Thiis may be small agency, but it has caused wide spread pain and injustice around the world. Far from being the beacon of justice for the undertrottrn, it has abused and caused harm to whole nations of people. Enough of fake humaniarians that only feed globalist appetites. Their efforts had always same goals — undermine sovereign states wherever possible, and impose upon them political judiciary of Hague — today, the most discredited kangaroo couurts in the world. As for Nazism — enough of fake comparisons. If we were to aplly Nurenmberg legislation — US would be in the dock many times over for wars of agression, the primary cause of all other war crimes.