Guest Writings
22/12/03 Nuremberg, Iraq - What’s changed? By Edward Teague

    "We're going to be on the ground in Iraq as soldiers and citizens for years. We're going to be running a colony almost,"
    Source: Cincinnati Business Courier, L. Bremer III February 23 2003

Nuremberg, Iraq - What’s changed ?

Vengeance is costly but is easily quantified in barrels of oil and taxpayer’s dollars, but the moral and political consequences are incalculable. It is said that there is an urgency in establishing the Iraqi people’s faith in democratic justice. Their condition may be compared with post war Germany — the situation which Paul Bremer said was the first thing he looked at when given the task to lead post "liberation" construction, having evidently trashed the plans (if any) his short lived predecessor had.

Nine months after their "liberation", the Iraqi’s are like the Germans at Nuremberg. Rechtlos: without civil or political rights and without the security offered by a government of laws not of men.

A German lawyer said at Nuremberg: "We have merely exchanged one dictatorship for another; after twelve years of Hitler’s lawless rule, we have had four years of military government with its similar arbitrary decrees and denial of justice."

Such a harsh military system contrasts sharply with the U.S. occupation of Japan after W W II, when Americans sat down with Japanese scholars and collaboratively designed and implemented one of the most progressive, democratic constitutions in the world (for more see Imperial Myth to Democracy: Japan's Two Constitutions, 1889 to 2002 by Lawrence W. Beer and John M. Maki. ). The US can reasonably take pride for having helped Japan evolve into a peaceful, stable, and prosperous country that is one of their closest allies. It is therefore no surprise that the recent announcement of a 1,000 strong Japanese military force heading for Iraq has caused so much public disquiet in Japan.

"Democracy is a tool to be used and broken" Winston Churchill

The basis of democracy is government of laws not of men, this means that the law is known, and is applied equally to all. At Nuremberg the visitors not only applied ex post facto law but also stated that it applied only to Germans. According to the judgments of the United States tribunals at Nuremberg the will of the conquerers is absolute, and the vanquished have no right to appeal to international law, American law, or any other law against it.

The simple truth that "crime does not pay," is disregarded. The victors felt entitled to do anything they pleased to the vanquished once the war is over. The logic of the judgments at Nuremberg, was the punishment of the Germans, not for having committed war crimes, but for having lost the war.

Might is Right is clearly stated to be the basis of the trials the Allies conducted at Nuremberg. "We sit," said the American judges, "as a Tribunal drawing its sole power and jurisdiction from the will and command of the four occupying powers. . . . In so far as Control Council Law No. 10 may be thought to go beyond established principles of international law, its authority, of course, rests upon the exercise of the ‘sovereign legislative power’ of the countries to which the German Reich unconditionally surrendered."

Few were aware in post-war Europe, or concerned that their representatives at Nuremberg expressly stated that the victors are not bound by the same laws as the vanquished. "The Allied Powers are not subject to the limitations of the Hague Convention and rules of land warfare." Furthermore they gave a reason….

Because," said judges and prosecutors at Nuremberg, "the rules of land warfare apply to the conduct of a belligerent in occupied territory so long as there is an army in the field attempting to restore the country to its true owner, but these rules do not apply when belligerency is ended, there is no longer any army in the field, and, as in the case of Germany, subjugation has occurred by virtue of Military conquest."

This sophist argument that what is a crime during war ceases to be one as soon as the fighting stops, is surely the choicest bit of legal chicanery thought up by Mr. Justice Jackson, or Brigadier General Telford Taylor who succeeded him as chief United States Prosecutor at Nuremberg.

The Soviet Government refused to have any part in the trials. For their part they were busy inducing the German "war criminals" to become their collaborators. That is, after the cream of the Abwehr and the rocket scientists had been picked over by the Americans… principally to assist in the building of the next generation of WMD’s.

Liberty what have they done in your name ?

So what have the "Liberators" done, well they have set up "The Coalition Provisional Authority to help the Iraqi people build a stable and democratic society with a future full of hope in a land that is free. Any actions they may take can be vetoed by Paul ( call me Jerry) Bremer III the US appointed Secretary. He reports to the Secretary of the Department of Defense Donald "Rummy" Rumsfeld. Interestingly it has just been revealed (19/12/03) Bremer survived an assassination attack on December 6th when Rumsfeld visited Baghdad on route from Georgia - where they are enjoying the fruits of the US inspired "Velvet Revolution" and the downfall of the ageing Shevardnadze. News Story BBC see also The Real Terror Network Paul Bremer, the new ‘Gauleiter’ of Iraq William Bowles 5/5/03.

Don’t forget where the funds come from either —The Development Fund for Iraq - into which the $1.7 billion of Iraqi money (although in euros because Saddam cleverly wanted euros not dollars — and saw a 19% appreciation in funds against the mighty US$) from the UN Oil-for-Food program and where all proceeds from future sales of Iraqi oil and gas will be placed - is controlled by Paul Bremer. That’s some spending money — even if Halliburton do charge $2.46 per gallon for gas — when selling it to the CPA — try that price in downtown Chicago!

This authority, uniquely for an Arab state, issues its Regulations (instruments defining the institutions and authorities of the (CPA). Orders — (binding instructions to the Iraqi people that create penal consequences including changes to Iraqi law — i.e the law under Saddam) Memoranda — expand or adjust Orders or Regulations and Public Notices communicate the intentions of the Administrator to the public. So for example an Order states …" Iraqi law prohibits the use of tinted windows and curtains in vehicles. The CPA has not suspended this law and intends to enforce it, due to security threats…"

The Nuremberg trials aroused a justified suspicion in Germany and Europe generally, that the real objective of the Americans responsible for them was to level the social structure of Germany… dragging the Junkers, militarists and industrial barons in the dust, not on the basis of individual guilt but collectively . Their aim was to destroy, not just Nazis but the pre-Nazi social structure of Germany, based on private property, free enterprise, and the European tradition. Similarly a great deal of the maze of instruments is to deal with the de-Ba'athification of Iraqi society, the seizure of their assets, their disbarment from public office etc., essentially most of this is trumped up charges against men, undoubtedly guilty of hideous crimes after the event, as an act of vengeance. Alexander Hamilton, the architect of the republic's sound finances said in 1788 "To establish an act as a crime after it has been committed, or in other words to punish people for things which did not violate any law when committed, and the practice of arbitrary detention, were at all times the most favorite and also most horrid tools of tyranny."

Laws and quasi laws

The bulk of the legal structure to date appears to be is a halting attempt to impose some sort of interim and hotch- potch legal structure but some blends a curious quasi legal authority of uncertain, indeed an unknown origin, for example, brazenly on the front page of their web site the CPA claim, Pentagon Announces:  Only Coalition Countries Allowed to Bid on Iraqi Contracts and the link takes you to the American forces information service (AFIS) where Pentagon spokesman Lawrence Di Rita is quoted, saying that the policy of limiting bids was a result of leaders at the State Department and the Defense Department, in consultation with coalition administrator L. Paul Bremer III agreeing that this was "the best way forward".

The Judgement of the Victors

At the same time, on December 10th the CPA (containing a fugitive from justice such as the US favoured and richly pomaded Mr Ahmed Chalabi) announced the THE IRAQI SPECIAL TRIBUNAL

  1. A Tribunal is hereby established and shall be known as the "Iraqi Special Tribunal for Crimes Against Humanity" (the "Tribunal").  The jurisdiction and functioning of the Tribunal and its associated bodies as defined in Article 3(b)… shall be governed by the provisions of this Statute.  The Tribunal shall be an independent entity and not associated with any Iraqi government departments.
  2. The Tribunal shall have jurisdiction over any Iraqi national or resident of Iraq accused of the crimes listed in Articles 11 to 14 …, committed since July 17, 1968 and up until and including May 1, 2003, in the territory of the Republic of Iraq or elsewhere, including crimes committed in connection with Iraq’s wars against the Islamic Republic of Iran and the State of Kuwait

So a nifty and lawyerly, and much unnoticed insertion of time limits absolves any activities of the occupying, sorry," liberating" forces from any threat of appearance before this high sounding Tribunal. This is handy in saving the US legal establishment from being troubled with any problems that might arise from the activities of the assorted "Coalition of the willing" especially as, "Arabic shall be the official language of the Tribunal." Which could cause some problems to the Washington legal Eagles. Anyway we can fix the result by fixing the judges because…" The Governing Council, if it deems necessary, can appoint non-Iraqi judges who have experience in the crimes encompassed in this statute, and who shall be persons of high moral character, impartiality and integrity.

But then of course as stated earlier, ". At Nuremberg the visitors not only applied ex post facto law but also stated that it applied only to Germans. " Been there. Done that. Wrote the book.

Anyway as we shall see, there is another agenda than the establishment of Iraqi civilians’ democratic rights and liberties.

Executive order 13303 22.5.2003 a day that will live in infamy

However it’s the laws made outside Iraq that really matter.

It is in this context that one should consider firstly the absurd (but none the less real ) Presidential Executive Order EO 13303 , signed with no fanfare by President Bush on May 22, 2003, immediately after "mission accomplished" (Hollow laughs not allowed) entitled, "Protecting the Development Fund for Iraq and Certain Other Property in Which Iraq Has an Interest." It prohibits all judicial process -- including, but not limited to, "attachment, judgment, decree, lien, execution, [and] garnishment" -- with respect to the Development Fund for Iraq and all interests in Iraqi oil products. ( in support of these actions the EO invokes the International Emergency Economic Powers Act (IEEPA). the National Emergencies Act; section 5 of the United Nations Participation Act (UNPA); and 3 U.S.C. 301. … it also refers to "an unusual and extraordinary threat to the national security and foreign policy of the United States." The president simply declares this to be a "national emergency" and issues the blanket immunity. (Note that more recently on October 29th 2003 …. Because the proliferation of weapons of mass destruction and the means of delivering them continues to pose an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States, the national emergency first declared on November 14, 1994, ( By President Clinton) must continue in effect beyond November 14, 2003. Consistent with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency declared in Executive Order 12938, as amended.)

The description of the of that last category — "all interests in Iraqi oil products" -- is deliciously vague and broad. It covers not only the oil and the interests, but also all "proceeds, obligations, or any financial instruments . . .in which any foreign country or a national thereof has any interest, that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of United States persons."

Simply, this means that no court or litigant can touch any of the oil products, interests in them, or proceeds. And in effect, it also means that it is useless to sue any company or person to try to get any of this -- for even if a court were to issue an opinion saying you were entitled to it, that holding could never be enforced. (Indeed, the order explicitly says that a creditor cannot collect on a legally enforceable claim arising from Iraqi oil production.)

Unenforceable Torts

What else does EO 13303 do, besides making claims arising from Iraqi oil production unenforceable? Arguably, ( as m’learned friends would say), a plaintiff is prohibited from bringing a tort claim for damages caused by a company's negligence in a project arising from Iraqi oil.

So it appears that a US company (say, Halliburton), may have an accident claim from (say, a US citizen working for an independent subcontractor) and if the victim tried to sue in a U.S. court (say, in Texas.) That leads to an unfortunate anomaly.

That US worker injured in the US might get a multimillion-dollar verdict in the U.S. By going to Iraq, to work there, he may not be able to recover a dollar in court, and be at the mercy of (say), Halliburton's decision as to how much -- or even whether -- to compensate him.

So the EO appears to prevent ordinary tort suits, by ordinary Americans, (or indeed from any country) who happen to be working in Iraq to rebuild the country – as America has called upon them to do.

Such legal powers, established by Presidential fiat, are not entirely novel. For example, following the Iranian Hostage Crisis, President Carter blocked Iranian assets in the U.S. After he did, the Treasury Department limited judicial process with respect to any non-Iranian interest in property -- meaning that, if Iran owed you money, you were out of luck, even though you had nothing at all to do with the hostage crisis. President Reagan followed up with an executive order suspending the enforcement, in the United States, of all claims that were to be presented to the U.S.-Iran Claims Tribunal.

Subsequently the Supreme Court upheld the actions of both Presidents. But would the same result occur if the Court were to review President Bush's recent Executive Order?

So does the EO "divest the federal court of jurisdiction," or not? As our friends in pin stripes would say, Arguably, it does, for 2 main reasons.

  1. It prohibits the transfer of Iraqi property, just as Reagan's claim suspension order did, it also goes further -- to prohibit process against persons, too.
  2. Bush's EO, unlike President Reagan's does not only suspend claims -- it claims to extinguish them entirely. Claims cannot and do not exist. There is no alternative tribunal at which the claimant may find justice. He or she , like Bush’s Baghdad Thanksgiving turkey, is stuffed.

Why the EO ?

7 months later the rushed (but evidently well prepared) EO is domestic US law and order. Its apparent impact, is to shield US companies from suits brought by US citizens -- including accident victims who may have been grievously injured -- in US courts.

Why? Simply to lower the costs and problems arising from reconstruction, and let us note this carefully, not of the country but those relating to …" all interests in Iraqi oil products. "

If I was the executive of a US company (say Halliburton), it is as if the company have got a tax break for all my business in Iraq. Giving such tax breaks might -- or might not -- make sense. The US oil companies have had cancelled their civil and criminal liability abroad and domestically, as well as their normal liability for spending of US taxpayers' money.

As a tort victim, the perspective, is very different. Taxpayers may ante up for Iraqi reconstruction, tort victims, will pay even more. No wonder the South Korean surrogate Uncle Sams, after 2 dead and 2 severely wounded hi-tailed it back to Seoul, leaving the Power distribution system unfinished.

In short, the EO 13303 is a blank cheque for corporate pork-barrel spending and consequently a recipe for intensified conflict between the occupiers and the occupied.Not to mention the partners in the "coalition of the willing" if they can’t get their snouts in the trough.

Paul Begala an advisor to the previous President, (who was noted for a unique understanding of evidential law), exhibited a frightening view from the top, of this misuse of executive order authority "Stroke of a pen, law of the land, kind of cool." Dylan Thomas described it accurately in his war time lament, "The hand that signed the paper, felled a city, and ruin cameGreat is the hand that holds Dominion over man by a scribbled name"

EO 13303 - US Corporates in Iraq: A Protected Species

Bush has granted Iraqi oil a lifetime exemption provided US companies are involved in the oil's production, transport, or distribution. This order applies to Iraqi oil products that are "in the United States, hereafter come within the United States, or that are or hereafter come within the possession or control of United States persons." (Under US law, corporations are "persons.")

Jim Vallette, guru at the improbably named Sustainable Energy & Economy Network of the Institute for Policy Studies in Washington DC. is reported as saying ," .. if ExxonMobil or ChevronTexaco touch Iraqi oil, anything they or anyone else does with it is immune from legal proceedings in the US. So if US oil companies around the world have problem – a massive tanker accident; an oil refinery explosion; using slave labour to build a pipeline; murder of locals by corporate security; lawsuits by current creditors or the next true Iraqi government demanding compensation – anything at all, is immune from judicial accountability.

    "Effectively Bush has unilaterally declared Iraqi oil to be the unassailable province of US oil corporations," Vallette added.

Again, in a report for the US Democratic legal think tank Government Accountability Project (GAP), the legal director, Tom Devine, said that in terms of legal liability, 13303 "cancels the concept of corporate accountability and abandons the rule of law . . . (It) is a blank cheque for corporate anarchy. Its sweeping, unqualified language places the industry above domestic and international law for anything related to commerce in Iraqi oil."

The best way to fight terrorism is to advance justice; and justice will not be possible as long as corporations, their assets, funds and profits are prioritized over people.

1/11/2001 The President issued EO 13233 limiting public access to papers of all Presidents since 1980 — that includes his Dad. What was it Paul Begala said "Stroke of a pen, law of the land, kind of cool."

Edward Teague

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