At the American camp outside Fallujah, prisoners are beaten with full plastic water bottles which break, cutting the skin. At Abu Ghraib, prison dogs have been used to frighten and to bite prisoners.1
The CIA has had its fair share of bad press, as well. Most notorious is the Salt Pit case, in which Afghan guards paid by and under the supervision of CIA were ordered by a new agent to strip an uncooperative detainee, chain him to the floor and leave him overnight without blankets; they then dragged him naked over the floor before putting him in his cell. By the morning he was frozen. He was buried in an unmarked, unacknowledged cemetery used by Afghan forces. Other reports, notably a February 14, 2005, piece by Jane Mayer for the New Yorker, have detailed the transfer of some 150 people suspected of terrorism to the custody of foreign governments known to use torture in interrogations, and the existence of CIA prisons being operated in Thailand, Qatar, and Afghanistan.2 Others document insistence by CIA agents that prisoners in Iraq be “kept off the books” and out of reach of Red Cross inspectors, becoming so-called “ghost detainees.”
Putting all this together, with a detailed chronology, are several good websites and a new book, The Torture Papers (Cambridge: Cambridge University, 2005). The book's “minutely detailed chronological narrative … which has appeared piecemeal in other publications, possesses,” according to a February 8, 2005, New York Times review of it, “an awful and powerful cumulative weight.”
Accountability
In an effort to get to the bottom of the scandal, the government has spent a significant amount of time and effort. The Pentagon calculated that there had been, as of early December 2004, 18 congressional hearings and more than 39 congressional staff briefings on the abuse scandal. The above-mentioned Schlesinger report itself cited nine major reports that formed the basis of its review of DoD detention operations, including the well-known Miller and Taguba reports. Five others, including the Church report and a three-star investigation appointed on February 28, 2005, to look into GTMO abuse complaints lodged by the FBI, have since been completed. Still ongoing are various DoJ and Army Criminal Investigation Command investigations, and the CIA inspector general is also reportedly investigating about a half-dozen cases of suspected abuse.
The completed investigations cite leadership failures – inadequate oversight and unclear guidance from senior officers – as factors contributing to a morally permissive attitude within detention facilities. Clearly, commanders are directly responsible for what is done and what is not done within their command. Here a basic rule, practiced by every successful leader, comes into play: what the boss emphasizes sets the tone, especially in a hierarchical organization like the military.
Failings of leadership turn on the practical and pragmatic, not the ethical, which comes under tremendous pressure in war. Combat places great psychological stress on troops at the same time that actions normally forbidden – killing – are sanctioned by the state in its defense. The pressures to succumb to “operational necessity” at the expense of individual ethics can be daunting, and success in resisting these pressures may turn on a combination of a solid ethical foundation reinforced by the unambiguous commitment of leaders and commanders at all levels to – and their emphasis upon – high moral standards. Considering this latter element, constraints against mistreating detainees that should have been in play were missing because of unclear policies, exceptions to and expansion of permitted “techniques,” and the migration of these techniques from one venue (GTMO) to another (Abu Ghraib).
For this reason did the Schlesinger report note that “military and civilian leaders at the Department of Defense share … responsibility” for command failures. It cites an “unclear chain of command” established by CJTF-7; “poor leadership and lack of supervision”; and a failure of Sanchez and his deputy, Maj. Gen. Walter Wojdakowski, “to ensure proper staff oversight.” (The Fay-Jones report also said that Sanchez “failed to ensure proper staff oversight.”) The Schlesinger document also mildly admonishes those in the Pentagon-the chairman of the Joint Chiefs of Staff, his Joint Staff, and the Office of the Secretary of Defense – for failing to anticipate what could (and did) happen after Saddam's fall, and for being unprepared to respond rapidly to changed circumstances on the ground. The most that the March 2005 Church report ultimately was willing to say – at least the part released publicly – was that there were “missed opportunities” for things to be done differently.
… Or Lack Thereof
Notwithstanding the money and man-hours spent trying to get to the bottom of the abuses, none of these investigations seriously looked upward into the civilian Pentagon and White House circles. While the Schlesinger report did possess the broad charter to review detention operations on a DoD-wide basis, it confined its findings largely to platitudes about leaders sharing a “burden of responsibility.” The other reports have, in general, characterized the behavior of those responsible for the cases of torture and detainee abuse as the actions of a few “bad apples.” Part of this characterization may stem from the focus of most investigations on one aspect of what John Dean has called “Torturegate,” to the exclusion of the broader picture. The Taguba report looked at Military Police operations; the Fay-Jones report looked at Military Intelligence (MI) operations; the Church report considered only interrogation operations and omitted a review of senior official accountability; and the April 1, 2005, Schmidt-Furlow report on the FBI allegations confined itself to evaluating whether certain activities were approved by Army or secretary of defense policy, admittedly begging the question as to the “legal validity” of the policy itself. During the March 10, 2005, press briefing in which the Church report was rolled out, Vice Adm. Church was asked whether those responsible for failures and what he called “missed opportunities” would be held accountable. In a statement that seems scandalous for a senior and highly decorated officer, Church remarked, “I don't think you can hold anybody accountable for a situation that maybe if you had done something different, maybe something would have occurred differently.”
No wonder, then, that this report was widely called a whitewash. Even the Republican chairman of the Senate Armed Services Committee, Senator John Warner (R-Va.), said, when the report was released, that “there has not been finality as to the assessment of accountability.”1 Senator Carl Levin (D-Mich.) also expressed dismay over what he considered to be the incompleteness of the Church report.
There's been no assessment of accountability of any senior officials, either within or outside of the Department of Defense …. I can only conclude that the Defense Department is not able to assess accountability at senior levels, particularly when investigators are in the chain of command of the officials whose politics and actions they are investigating [emphasis mine].1
A Washington Post editorial dated March 13, 2005 – aptly entitled “More Excuses” – made similar observations: “… no genuinely independent investigator has been empowered to connect these decisions and events and conclude where accountability truly should lie.” The same piece noted the refusal of Senator Pat Roberts (R-Kan.), Chairman of the Intelligence Committee, to investigate credible reports of “torture, abuse, and homicide by the CIA in a clandestine network of overseas prisons, a scandal for which there has been no public accounting, much less accountability.” Roberts has since shown no sign of having changed his mind; in response to a renewed call for investigation into behavior of CIA and other interrogators by Senator Rockefeller (D-W. Va.), also of the Intelligence Committee, Roberts simply stated: “I am fast losing patience with what appears to me to be almost a pathological obsession with calling into question the brave men and women on the front lines of the war on terror.”
Roberts's position notwithstanding, calls for accountability have been forthcoming since the abuse scandal broke, and no doubt will continue to be. Almost a year ago, the American Bar Association (ABA), at the annual meeting of its House of Delegates on August 9, 2004, called for the creation of an “independent, bi
partisan commission with subpoena power to prepare a full account of detention and interrogation practices carried out by the United States [and] to make public findings.”2 An even more significant call came on August 4, 2004, the day before the ABA's annual meeting began. It was directed to the White House by a group of lawyers, law professors, and public-interest and human-rights groups – including representatives from the Alliance for Justice, Human Rights Watch, Human Rights First, Physicians for Human Rights, and the American Civil Liberties Union – in the form of a memorandum signed by, among others, 12 former judges, eight American Bar Association presidents, six former Congressmen, former law school deans, former state and national attorneys general, numerous senior law professors, and others.
The signatories indicate, in their memo, that “the administration's memoranda, dated January 9, 2002, January 25, 2002, August 1, 2002, and April 4, 2003, ignore and misinterpret the U.S. Constitution and laws, international treaties and rules of international law.” Further serious charges are enumerated in the memo as follows:
… the most senior lawyers in the Department of Justice, the White House, the Department of Defense, and the vice president's office have sought to justify actions that violate the most basic rights of all human beings ….
These memoranda and others like them seek to circumvent long established and universally acknowledged principles of law and common decency. The memoranda approve practices that the United States itself condemns in its annual Human Rights Report. No matter how the memoranda seek to redefine it, torture remains torture.
… The unprecedented and under-analyzed claim that the Executive Branch is a law unto itself is incompatible with the rule of law and the principle that no one is above the law.
The lawyers who prepared and approved these memoranda have failed to meet their professional obligations …. the lawyer has a … duty, as an officer of the court and as a citizen, to uphold the law.
Enforcement of all of our laws depends on lawyers telling clients not only what they can do but also what they can not do. This duty binds all lawyers and especially lawyers in government service. Their ultimate client is not the President or the Central Intelligence Agency, or any other department of government but the American people. When representing all Americans, government lawyers must adhere to the Constitution and the rule of law.
The demand for a serious investigation and a real assessment of accountability concludes the memorandum. “We therefore,” the signatories wrote,
… [c]all for an appropriate inquiry into how and why such memoranda were prepared and by whom they were approved, and whether there is any connection between the memoranda and the shameful abuses that have been exposed and are being investigated at Abu Ghraib prison in Baghdad and at other military prisons.
An even more formal call for an investigation into senior-level accountability has more recently come from a group of exasperated Democratic members of Congress – 51 of them, in fact, led by John Conyers, Jr. (D-Mich.), ranking member of the House Judiciary Committee. In a letter to Attorney General Alberto Gonzalez dated May 12, 2005, the members call for a special counsel to get to answer, once and for all, whether
high-ranking officials within the Bush administration violated the War Crimes Act, 18 U.S.C. §2441, or the Anti-Torture Act, 18 U.S.C. §234, by allowing the use of torture techniques banned by domestic and international law at recognized and secret detention sites in Iraq, Afghanistan Guantánamo Bay and elsewhere.1
Their motive for requesting such a move by Gonzales is not surprising. “One year and 10 investigations after we first learned about the atrocities committed at Abu Ghraib,” they point out, “there has yet to be a comprehensive, neutral and objective investigation with prosecutorial authority of who is ultimately responsible for the abuses there and elsewhere.” Though it was not widely reported, they had already asked once, on May 20, 2004, for a special counsel to be appointed, though they received no reply from then-Attorney General Ashcroft. “The need for a special counsel is more important than ever,” they write,
as the administration and military have repeatedly exonerated high-ranking officials, or declined to even investigate their actions, even as other official investigations linked the policy decisions by these officials to the crimes that occurred at Abu Ghraib. The administration's haphazard and disjointed approach to these investigations appears to have insulated those in command and prevented a full account of the actions and abuses from being determined.
A second reason for appointment of a special counsel is to avoid a situation where the administration is expected to investigate itself, as others have pointed out. “A special counsel is necessary,” they indicate,
not only because high-ranking administration officials, including Cabinet members, are implicated, but also because you personally, and the Department of Justice generally, may have participated in this conspiracy to violate the War Crimes Act.
They further point out how previous inquiries
were not empowered to impose punishments on those it found culpable, and … were not empowered to examine the role of high-ranking officials, including members of the administration, in the perpetuation of these abuses.”
The only adequate approach, they emphasize, is an independent and properly empowered investigation:
While Lynndie England and other low-ranking officers have pleaded guilty, those who ordered and authorized their actions appear to have been protected by the military and this administration. Because so many high level officials, including you, have been implicated in these events, the only way to ensure impartiality is through the appointment of a Special Counsel. Indeed, our nation's integrity is at stake.
Meanwhile, in the absence of higher-level and more independent investigations, addressing the issue of senior-leader accountability has been left to “amateur” and “watchdog” investigators, who, through their own examination of documents, events, and interrelationships have come up with a different picture from that portrayed by the official inquiries. AI's report of May 2005, Guantánamo and Beyond, provides a sadly accurate account of abuses based upon firsthand testimony from Combatant Status Review Tribunal transcripts, FBI memos, and U.K. investigations, one of which confirms outright the use of hooding, sleep and food deprivation, and stress positions in Iraq through May of 2004.1 Tim Golden's recent piece on the Bagram detainee deaths paints a disturbing picture of what went on routinely at the former air base, notwithstanding the incredible remark of then-Lt. Gen. Daniel McNeill (now a four-star), the U.S. commander in Afghanistan at the time, that he had “no indication” that abuse by soldiers contributed to the deaths, and that interrogation methods were “in accordance with … generally accepted … interrogation techniques.”2The Torture Papers, furthermore, is said by the above-noted Times review to “blow to pieces” the argument that the abuses at Abu Ghraib and elsewhere are the failings of a bunch of bad apples and not a reflection of a larger problem. “In fact,” the reviewer writes,
the book provides a damning paper trail that reveals, in uninflected bureaucratic prose, the roots that those terrible [Abu Ghraib] images had in decisions made at the highest levels of the Bush administration – decisions that started the torture snowball rolling down the slippery slope of precedent by asserting that the United States need not abide by the GC in its war on terror.3
It is interesting to note the review's later summary of just what kind of accountability has been demanded of the senior leadership in the Bush administration by their commander-in-chief. “What happened to higher-up architects and consultants on administration policy?” the reviewer asks.
Mr. Rumsfeld … twice offered to resign over the Abu Ghraib scandal and was twice turned down by President Bush. Mr. Bybee, who defined torture as pain equivalent to “organ failure,” was nominated by Mr. Bush to the Ninth Circuit Court of Appeals and took his seat there in 2003. Michael Chertoff, who in his capacity as head of the Justice Department's criminal division advised the CIA o
n the legality of coercive interrogation methods, was selected by President Bush to be the new secretary of homeland security. William J. Haynes II, the Department of Defense's chief legal officer, who helped oversee Pentagon studies on the interrogation of detainees, was twice nominated by President Bush to the Fourth Circuit Court of Appeals. And Mr. Gonzales, who used the words “obsolete” and “quaint” in reference to the GC, was confirmed … as attorney general, the nation's top legal post.
As for the general officers recently exonerated by the Army inspector-general report, Lt. Gen. Sanchez remains head of the Army's V Corps, though Rumsfeld has equivocated as to what the future looks like for him.1 Maj. Gen. Walter Wojdakowski, former CJTF-7 Deputy Commander under Sanchez, is now acting Deputy Commanding General, U.S. Army Europe (a spot normally reserved for three-star officers), and Maj. Gen. Barbara Fast, former chief intelligence officer (C2) for CJTF-7, is Commanding General and Commandant of the Army Intelligence Center. Maj. Gen. Geoffrey Miller, former commander of both the Guantánamo Bay and Abu Ghraib facilities, is now Assistant Chief of Staff of the Army for Installation Management. Though the generals investigating the FBI allegations recommended that Miller be admonished for failing to supervise the interrogation of one “high-value” detainee, Gen. Bantz J. Craddock, commander of U.S. Southern Command, questioned the report's conclusion and refused to discipline Miller.
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