Just Above Sunset
May 16, 2004 - Responsibility - Military Style... and legal issues

Home | Question Time | Something Is Up | Connecting Dots | Stay Away | Overload | Our Man in Paris | WLJ Weekly | Book Wrangler | Cobras | The Edge of the Pacific | The Surreal Beach | On Location | Botanicals | Quotes

This is curious.  The question about the abuse of prisons in Iraq (and it seems now Afghanistan and a whole lot of other places in what many are now calling our all-American gulag)?  A few bad apples?  Or a systematic problem?  Who is responsible? 

See Not Just Following Orders
I'm ashamed of the unit I once commanded. 
James D. Villa, The Washington Post, Wednesday, May 12, 2004; Page A23

So who is this guy? 


From 1989 to 1992 I commanded the 372nd MP Company, the Army Reserve unit from Cumberland, Md., that is at the center of the Abu Ghraib prison scandal.  In the years since then, I've had an enduring affection for the unit and those who serve in it.  Today what I feel is a sort of sickness, and shame at having been affiliated with the 372nd.



After a long discussion Villa comes to these conclusions -


… Various people, including the families of some of the soldiers in question, have said that the soldiers were not given appropriate training to run a detention facility and had inadequate support to do their jobs.  While these statements may be true, in what Army field manual can one locate the section about stacking naked prisoners like cordwood, or affixing collars to their necks?  Is special training needed to show a soldier that this sort of thing is contemptible and contrary to any standards of decency? 

Further, it is no defense for MPs to claim that they were only following orders, that they were instructed to "soften up" prisoners to enhance subsequent interrogations.  While battlefield intelligence gleaned from interrogations may prove invaluable and can save American lives, no officer, no sergeant, has the authority to direct a soldier to commit an atrocity or to violate the Geneva Conventions.  While soldiers in a combat environment may face split-second decisions involving difficult moral choices, such was not the case here.  We are confronted with picture after picture, story upon story, detailing systematic abuse and degradation by American MPs.  We have a right to expect more from our military. 

Those serving in Iraq, including the many reservists and National Guardsmen, deserve our respect and admiration.  The men and women of our military who are serving in Iraq do so under terrible circumstances.  They live each day with fear and danger, far from their families, deprived of the basic comforts of life.  Their families suffer for their absence every day and each milestone missed -- a child's graduation, an anniversary, a loved one's birthday -- can never be reclaimed. 

To minimize the egregious conduct of some members of the 372nd (and their superiors) dishonors those men and women who honorably serve their country.  We must not, as some commentators have said, deem this to be soldiers "blowing off steam" and equate it to a fraternity initiation.  To me, that sort of response dishonors those who strive each day to serve their fellow soldiers and complete their missions -- and who risk their lives to do so.  A failure to condemn what is wrong is also a failure to recognize what is right -- and what our committed military men and women do around the world each day.  Further, minimizing the conduct of these MPs by comparing it to the reckless and violent acts of the Iraqi insurgents is wholly beside the point.  We must compare our actions to those of the men and women who have honorably served this country as soldiers, sailors, Marines and airmen.  We must look to them, and to our own standards of conduct, and not to people who would wantonly kill and terrorize innocents.  If our claim is merely that we are better than the terrorists, we leave a tenuous legacy for a budding democracy in Iraq.


Where does the buck stop?  With the individual.  Claim these were orders that had to be obeyed.  Claim is was general policy in theater.  Claim in was national policy.  It doesn’t matter.  You are responsible for your own actions.  They should have known better. 

But some are claiming that what happened at that prison and got into the photographs and MPG videos was, well, even if true, and no one disputes the evidence, probably justified. 

Lost of folks are commenting on what Senator Inhofe from Okalahoma said in the hearings on the matter this week.  "I'm probably not the only one up at this table that is more outraged by the outrage than we are by the treatment ...  These prisoners, you know they're not there for traffic violations.  If they're in cellblock 1-A or 1-B, these prisoners, they're murderers, they're terrorists, they're insurgents.  Many of them probably have American blood on their hands and here we're so concerned about the treatment of those individuals."

A problem - our own government says in the Taguba report sixty percent of those detained in that particular prison were held there by mistake.  That's the US Army talking.  And if you look here we do seem to be dealing now with the International Committee of the Red Cross data – the figure is more like seventy to ninety percent. 

Senator Inhofe from Okalahoma seems to be claiming our Army and the ICRC are just flat-out wrong, or perhaps that it doesn’t matter.  If you are arrested, you must be guilty.  That, to him, is common sense.  These are bad people who would kill all Americans if they got the chance.  How does he know that?  Well, otherwise they wouldn’t have been arrested – and that’s the proof.  And thus, QED, they do not deserve kid glove treatment. 

It seems the right and the left have different concepts of the basics of the law and fairness.  Attorney General Ashcroft has the same sort of circular vision of the law. 

Note to self: next cross-country trip, drive AROUND Oklahoma, not through it. 

Ah well. 

So what really happened? 

An interesting summary of where this all stands can be found here from Robert Jeffers:


The story changes so fast you can't keep up with it. 

They first learned about this when the "courageous" soldier took the pictures to his superiors.  And the pictures were all "personal."

But then stories came out that the pictures were ordered by MI for "intimidation" purposes. 

And the ICRC reported it had told the Admin. about these problems months ago. 

And it was limited to a handful of "bad apples."  Except the same thing happened in Afghanistan. 

And the photos were staged, not "snapshots."

And they knew something was up in November, but they fixed it.  But they were surprised by the allegations in January. 

But no one knew about it.  But everyone knew about it, because there was a breakdown in command. 

But there was no breakdown.  And the Geneva Convention has always applied. 

Except when it hasn't. 

And we've always followed it.  Except when we didn't. 

And we don't abuse prisoners.  Except when we do.  It's not "American." Except it is expressly sanctioned by military regulations.  Except it can only be sanctioned by the DoD, because Rumsfeld keeps tight rein on everything. 

Except he doesn't.  Because this was authorized in Iraq, not in Washington.  Except it couldn't have been, because Rummy runs a tight ship. 

Except he didn't know.  But don't call it "plausible deniability." Because there's a chain of command. 

Except Rumsfeld doesn't know what it is.  He only knows about the PR campaign he's been conducting since these photos went public. 

But he isn't lying.  He just doesn't know anything. 

But it's okay.  Because he's doing a great job. 

Even though everything is a shambles. 


Well, yes.  It is, isn’t it? 

The president last year when asked if we had enough troops on the ground in Iraq said yes, we did.  We could take care of the bad guys – and said to the bad guys “Bring it on!”  Consider that fellow from Philadelphia was beheaded by these bad guys this week.  So they are doing just that.  But it would be unkind to suggest a connection between these two things.  But one is tempted to be unkind here. 

Then this… Colin Powell is now saying "…we kept the president informed of the concerns that were raised by the ICRC and other international organizations as part of my regular briefings of the president, and advised him that we had to follow these issues, and when we got notes sent to us or reports sent to us ...  we had to respond to them, and the president certainly made it clear that that’s what he expected us to do."

And he’s saying too that Rice and Rumsfeld kept Bush “fully informed of the concerns that were being expressed, not in specific details, but in general terms.”

Say what?  Josh Marshall points out the obvious.  Not only does this contradict what the White House and the president have said.  It contradicts the testimony of one of Don Rumsfeld's principal deputies from the day before.  [Tuesday, 11 May]


When asked by Sen. John Warner whether the ICRC's concerns had made their way to the Secretary's level, Stephen Cambone replied: "No, sir, they did not.  Those reports -- those working papers, again, as far as I understand it, were delivered at the command level.  They are designed -- the process is designed so that the ICRC can engage with the local commanders and make those kinds of improvements that are necessary in a more collaborative environment than in an adversarial one."

I've been hearing for days that the State Department at the highest levels (i.e., not a few lefty FSOs in the bureaucracy, but authorized at the highest levels) has been leaking like crazy against the civilian leadership of the Pentagon on this story. 

And here we have it right out in the open.  Powell isn't exactly saying the White House or the president is lying.  What he's doing might fairly be described as walking up to the black board, writing out "2+2=" and then letting us draw our own conclusions.


Let’s see, the President and Rumsfeld are saying they really didn’t know about these problems with the abuse of these prisoners who for the most part seem to have been mostly hapless folks caught in a broad round-up of whoever looked a little shifty and perhaps looked a little too Islamic or something – so it wasn’t THEIR fault – and when they found out, they did just the right thing. 

And their own Secretary of State basically says, but says quite diplomatically, they’re liars. 


Well, James Villa - who knows something about command – says yes, you can blame the individual soldiers for this.  The Senator from Oklahoma says he’s outraged if you do – because these folks we arrested did not deserve kindness and respect, if you follow his logic. 
 Rumsfeld is still maintaining we are doing pretty much what we should – and has defended these military interrogation techniques, rejecting complaints that they violate international rules and may endanger Americans taken prisoner – after all, Pentagon lawyers had approved methods such as sleep deprivation and dietary changes as well as rules permitting guards to make prisoners assume stressful positions. 

Well, define stress, Don.  And Pentagon lawyers?  Really? 

The Committee on International Law of the New York City Bar Association did find that the American military's treatment of detainees and prisoners of war in Afghanistan, Cuba and Iraq violates international law — and the compilers of the report say that the techniques employed by interrogators at prisons such as Abu Ghraib were "sanctioned by Pentagon political appointees."

Well, Don has his lawyers too.  And his lawyers say there’s nothing to see here, folks - move on. 

Shall we? 


Moving on would be easier if things like this didn’t keep showing up.


U.S. Military Lawyers Felt 'Shut Out' of Prison Policy

They said civilian political lawyers were deciding how prisoners could be questioned. At issue is how to interpret the Geneva Convention.

Ken Silverstein, Los Angeles Times, May 14, 2004


The problem?


WASHINGTON — A group of senior military lawyers were so concerned about changes in the rules designed to safeguard prisoners during interrogation that they sought help outside the Defense Department, according to a New York lawyer who headed a recent study of how prisoners have been treated in the war on terrorism.

The military lawyers were part of the Army Judge Advocate General's office, which in the past has played a role in ensuring that interrogators did not violate prisoners' rights.

"They were extremely upset. They said they were being shut out of the process, and that the civilian political lawyers, not the military lawyers, were writing these new rules of engagement," said Scott Horton, who was chairman of the New York City Bar Assn. committee that filed a report this month on the interrogation of detainees by the U.S.


Damn.  So that’s how the Committee on International Law of the New York City Bar Association got in on this.  The military lawyers, the JAG guys, were appalled, and Rumsfeld had decided to use his own civilian attorneys.  You want the legal advice you know you want to hear, that you really need, but then, damn it, you get legal opinion you really, really don’t want?  Find different lawyers.  Quite creative.


How is it all playing out?


… Defense Secretary Donald H. Rumsfeld said the rules had been examined and approved by lawyers for the administration.

On Tuesday, Stephen A. Cambone, undersecretary of Defense for intelligence, said Douglas J. Feith, undersecretary of Defense for policy, "issued any number of statements and directives to the effect that detainees in Iraq, civilian or military, were to be treated under the provisions of the Geneva Convention."

The military lawyers complained that the Pentagon was creating "an atmosphere of legal ambiguity," Horton said. "What's happened is not an accident. It is exactly what they were warning about a year ago," he said.

None of the military lawyers would agree to speak publicly, he said, because to do so would threaten their careers.


The JAG view of the law can end your career?  Guess so.


ABC News reports it this way

Lawyers from the military's Judge Advocate General's Corps, or JAG, had been urging Pentagon officials to ensure protection for prisoners for two years before the abuses at Iraq's Abu Ghraib prison came to light, current and former JAG officers told ABCNEWS.

But, the JAG lawyers say, political appointees at the Pentagon ignored their warnings, setting the stage for the Abu Ghraib abuses, in which military police reservists photographed each other subjecting Iraqi prisoners to physical abuse and sexual humiliation.

As the military's uniformed lawyers, JAG officers are in charge of instructing military commanders on how to adhere to domestic and international rules regarding the treatment of detainees.

"If we — 'we' being the uniformed lawyers — had been listened to, and what we said put into practice, then these abuses would not have occurred," said Rear Admiral Don Guter (ret.), the Navy Judge Advocate General from 2000 to 2002.

Specifically, JAG officers say they have been marginalized by Douglas Feith, undersecretary of defense for policy, and William Haynes II, the Pentagon's general counsel, whom President Bush has nominated for a judgeship on the United States Court of Appeals for the Fourth Circuit.


Okay, the law is slippery.  There are a few ways to see any statute.  And I’m sure Haynes will make a fine judge.


Want to give this all a try yourself?  See the footnote below that lists the statutes.


Anyway, Villa, the military guy, says it’s all the responsibility of the individual soldier who has a prisoner to interrogate, or just to feed and house.  Break the rules and you bought that tar baby.  Do the rules now allow for a little bit of slapping around and stress and humiliation?  Maybe they sort of do.  From the top down, after finding the “right” legal advice, Rumsfeld through Feith through Cambone through all the lower levels of command, says, well, you sort of can do these things.


(Note: photographing it all is REALLY dumb, either way.)


And anyway, we don’t really do torture and abuse prisoners, as an official policy.  Just when we must, regrettably, edge a little toward it.  It’s for the greater good.


But these few guards with their digital cameras just went too far.  They were not following policy.  Yeah, yeah.


Then for the third weekend in a row, Seymour Hersch in the New Yorker stirs the pot with this.  


The roots of the Abu Ghraib prison scandal lie not in the criminal inclinations of a few Army reservists but in a decision, approved last year by Secretary of Defense Donald Rumsfeld, to expand a highly secret operation, which had been focused on the hunt for Al Qaeda, to the interrogation of prisoners in Iraq.  Rumsfeld’s decision embittered the American intelligence community, damaged the effectiveness of élite combat units, and hurt America’s prospects in the war on terror.

According to interviews with several past and present American intelligence officials, the Pentagon’s operation, known inside the intelligence community by several code words, including Copper Green, encouraged physical coercion and sexual humiliation of Iraqi prisoners in an effort to generate more intelligence about the growing insurgency in Iraq.  A senior CIA official, in confirming the details of this account last week, said that the operation stemmed from Rumsfeld’s long-standing desire to wrest control of America’s clandestine and paramilitary operations from the CIA.


What?  It comes down to a turf war – who controls the most stuff?


Here’s the official denial of what Hersch contends – "Assertions apparently being made in the latest New Yorker article on Abu Ghraib and the abuse of Iraqi detainees are outlandish, conspiratorial, and filled with error and anonymous conjecture."


Okay.  Enough. 


This coming week the courts martial of the low-level GI’s begin.  The evidence mounts that even if these low-level folks were being exceptionally egregious assholes and deserve severe punishment for being so incredibly stupid, there was much more going on all over, at much higher levels.  And someone will pay – probably Cambone (the current buzz).  He is the one everyone quotes as saying the Geneva Conventions are simply laws in the service of terrorism.


Of course too there is a Newsweek article quoting a memo White House Counsel Alberto Gonzales wrote to the president in January 2002: "As you have said, the war against terrorism is a new kind of war.  The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians ... In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."




But then again from Bush on down we have heard years of claims that everything changed after 9-11.  We’ve pulled out of treaty after treaty and claimed this or that international law no longer was really useful, that it really didn’t apply, now that everything has changed.


What did you expect would happen?






Is Torture Against the Law?

Brendan Koerner explains here.

The federal anti-torture statute is formally known as Title 18, Part I, Chapter 113C of the U.S. Code.  The law consists of three sections (2340, 2340A, and 2340B), which define the crime of torture and prescribe harsh punishments for anyone—an American citizen or otherwise—who commits an act of torture outside of the United States.  (Domestic incidents of torture are covered by state criminal statutes.)  A person found guilty of committing torture faces up to 20 years in prison or even execution, if the torture in question resulted in a victim's death.


The law was added to the books in 1994, as part of the United States' efforts to ratify and comply with the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (more simply known as the CAT).  The treaty was adopted by the United Nations in 1984, but not ratified by the U.S. Congress until a decade later.  The CAT mandates that all parties to the treaty "take effective legislative, administrative, judicial, or other measures to prevent acts of torture in any territory under its jurisdiction."


Another section of the U.S. Code (Title 28, Part IV, Chapter 85, Section 1350) also deals with the issue of torture.  The so-called Torture Victim Protection Act of 1991 allows victims of torture, or the families of those who were killed through extrajudicial means, to sue their tormentors in U.S. courts, regardless of their citizenship or where the crime occurred.


Both of these anti-torture statutes include identical, albeit imprecise, definitions of what constitutes torture.  Among the proscribed actions are "the intentional infliction or threatened infliction of severe physical pain or suffering"; the use of "mind-altering substances"; and threats against other people, presumably family members.


Despite its efforts to adhere to the directives of the CAT, the United States has recently grumbled over the United Nations' efforts to add an inspection regime to the treaty.  In 2002, the United Nations added an "optional protocol" to the CAT, requiring signatories to permit surprise inspections of their prisons.  The United States has so far refused to sign, contending that the inspections would infringe on states' rights.

Play lawyer.  What was permissible?  If statutes were violated, who was responsible?



Copyright © 2003, 2004, 2005, 2006 - Alan M. Pavlik
The inclusion of any text from others is quotation
for the purpose of illustration and commentary,
as permitted by the fair use doctrine of U.S. copyright law. 
See the Details page for the relevant citation.

This issue updated and published on...

Paris readers add nine hours....