The Gonzales Indictment
By Marjorie Cohn
t r u t h o u t | Perspective
Wednesday 19 January 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
On or about January 25, 2002 through January 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
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 January 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 February 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
Defendant ALBERTO GONZALES commissioned the Office of Legal
Counsel of the Department of Justice's memorandum dated
August 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 August 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."
Although the August 1, 2002 memorandum was retracted on
December 30, 2004, the provisions of the August 1, 2002
memorandum remained in effect for 2 ½ years,
notwithstanding the warnings of Secretary Powell.
The January 25, 2002 and August 1, 2002 memoranda, and the
February 7, 2002 order set forth policies that led to the
willful killing, torture or inhuman treatment; and great
suffering or serious injury to body or health, of DOES 1
through 1,000, prisoners in United States custody in
Afghanistan, Iraq, Guantánamo Bay, Cuba, as listed in
EXHIBIT A (Dear Mr. Gonzales).
Defendant ALBERTO GONZALES knew or should have known that,
pursuant to memoranda written by, commissioned or concurred
in by him, prisoners in United States custody would be
subjected to willful killing, torture or inhuman treatment;
and great suffering or serious injury to body or health, in
violation of The War Crimes Act.
COUNT II: Military Commissions
Between September 11, 2001 and November 13, 2001, Defendant
ALBERTO GONZALES did participate in the drafting of the
Military Order establishing the Military Commissions, which
order was signed by President George W. Bush on November
13, 2001. Said order mandated conduct by members of United
States military forces which constitute war crimes under
The War Crimes Act.
The War Crimes Act defines war crimes as grave breaches of
the Geneva Conventions. Section 130 of the Third Geneva
Convention defines as a grave breach of that Convention:
"willfully depriving a prisoner of war of the rights of
fair and regular trial prescribed in this Convention."
Article 84 of the Third Geneva Convention provides that
prisoners of war shall be tried in the same types of courts
(military or civilian) as members of the armed forces of
the Detaining Power. It also provides: "In no circumstances
whatever shall a prisoner of war be tried by a court of any
kind which does not offer the essential guarantees of
independence and impartiality as generally recognized."
Article 3 common to the Geneva Conventions prohibits "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
Unlike courts convened pursuant to the Uniform Code of
Military Justice, and civilian courts of the United States,
the Military Order provides for no judicial review by
federal courts of the United States. The final level of
review in the Military Commissions is to the President or
the Secretary of Defense.
Military Commission Order No. 1(6)(B)(3) allows the use of
evidence that the accused is not permitted to see, and
provides for the exclusion of the accused from the
proceedings. These provisions violate the rights of the
accused to be confronted with the evidence against him, and
to confront and cross-examine adverse witnesses. These
rights are guaranteed to the accused in courts convened
under the Uniform Code of Military Justice and civilian
courts in the United States.
Section 4(c)(3) of the Military Order provides for the
"admission of such evidence as would, in the opinion of the
presiding officer of the military commission...have
probative value to a reasonable person." Such evidence
would be inadmissible under the rules of evidence in courts
convened under the Uniform Code of Military Justice and
civilian courts in the United States.
Defendant ALBERTO GONZALES knew or should have known that
the Military Commissions, in whose creation he
participated, will deprive prisoners in United States
custody who will be tried before them, of the rights of
fair and regular trial prescribed in the Third Geneva
Convention and Article 3 common to the Geneva Conventions.
Penalties Under the War Crimes Act
Title 18 U.S.C. sec. 1441 provides that any national of the
United States who commits a war crime "shall be fined under
this title or imprisoned for life or any term of years, or
both, and if death results to the victim, shall also be
subject to the penalty of death."