U.S. in Iraq: Returning to the Scene of the Crime

The American occupation in the context of war crimes

By Noam Chomsky
April 4, 2006

[This piece is adapted from Chapter 2 of Noam Chomsky's newest book, Failed States: The Abuse of Power and the Assault on Democracy (New York: Metropolitan Books, 2006).]
In 2002, White House counsel Alberto Gonzales passed on to Bush a memorandum on torture by the Justice Department's Office of Legal Counsel (OLC). As noted by constitutional scholar Sanford Levinson: "According to the OLC, ‘acts must be of an extreme nature to rise to the level of torture… Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.'" Levinson goes on to say that in the view of Jay Bybee, then head of the OLC, "The infliction of anything less intense than such extreme pain would not, technically speaking, be torture at all. It would merely be inhuman and degrading treatment, a subject of little apparent concern to the Bush administration's lawyers."

Gonzales further advised President Bush to effectively rescind the Geneva Conventions, which, despite being "the supreme law of the land" and the foundation of contemporary international law, contained provisions Gonzales determined to be "quaint" and "obsolete." Rescinding the conventions, he informed Bush, "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act." Passed in 1996, the act carries severe penalties for "grave breaches" of the conventions: the death penalty, "if death results to the victim" of the breach. Gonzales was later appointed to be attorney general and would probably have been a Supreme Court nominee if Bush's constituency did not regard him as "too liberal."
How to Destroy a City to Save It

Gonzales's legal advice about protecting Bush from the threat of prosecution under the War Crimes Act was proven sound not long after he gave it, in a case far more severe even than the torture scandals. In November 2004, U.S. occupation forces launched their second major attack on the city of Falluja. The press reported major war crimes instantly, with approval. The attack began with a bombing campaign intended to drive out all but the adult male population; men ages fifteen to forty-five who attempted to flee Falluja were turned back. The plans resembled the preliminary stage of the Srebrenica massacre, though the Serb attackers trucked women and children out of the city instead of bombing them out. While the preliminary bombing was under way, Iraqi journalist Nermeen al-Mufti reported from "the city of minarets [which] once echoed the Euphrates in its beauty and calm [with its] plentiful water and lush greenery… a summer resort for Iraqis [where people went] for leisure, for a swim at the nearby Habbaniya lake, for a kebab meal." She described the fate of victims of these bombing attacks in which sometimes whole families, including pregnant women and babies, unable to flee, along with many others, were killed because the attackers who ordered their flight had cordoned off the city, closing the exit roads.
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