Neo-Conned! Again

by D Liam O'Huallachain

  the highest profile cases in which the severest sanctions are sought consistently involve those soldiers who through neglect or oversight permitted photographic evidence of the crimes at Abu Ghraib to become public knowledge. Several soldiers I interviewed told me that they had a clear understanding from this process, that it wasn't the abuse of prisoners which was being punished ….1

  Furthermore, Horton claims to have been informed by senior officers that high-ranking individuals were protected from significant investigation due to their knowledge of Rumsfeld's connection with the scandal. The names of those shielded, according to Horton, are those who would have also had certain knowledge of the operation of any special access program, if one existed.

  [C]ertain senior figures whose conduct in this affair bears close scrutiny were explicitly “protected” or “shielded” by withholding information from investigators or by providing security classifications which made such investigation impossible. The individuals “shielded,” I was informed, included MG Geoffrey Miller, MG Barbara Fast, COL Marc Warren, COL Steven Boltz, LTG Sanchez and LTG William (“Jerry”) Boykin. In each case, the fact that these individuals possessed information on Rumsfeld's involvement was essential to the decision to “shield” them.2

  Horton reported as well that criminal proceedings reflect a similar desire to shield senior officials. The Ft. Hood prosecutions, he says, “are further marked by a conscious obstruction of efforts by the defense to prove that they were acting in reliance upon orders up the chain of command.” Col. James L. Pohl, the presiding judge, declined all requests that certain senior officers be immunized so as to compel their testimony.3 This fact is born out by a comment that Charles Graner's defense lawyer, Guy Womack, made indicating that he was hampered from trying to prove that Graner had been ordered by intelligence agents to do what he did in order to make the prisoners easier to interrogate. As he told CBS News, 'None of those superiors came into court, none were questioned, and we were precluded from even bringing them into court because they invoked their right to remain silent.”1 Horton also notes his belief that Senator Warner was threatened with political retaliation by leading Republicans “if he carried through with his plan to conduct real hearings.” When Horton proposed witnesses to be interviewed by SASC staff, he was told, he says, “that Senator Warner has assured Rumsfeld that the Committee will conduct no independent investigation of these matters.”2

  Karpinski relates stories that are similarly disturbing. When the International Committee of the Red Cross (ICRC) visited Abu Ghraib, she wasn't involved in dealing with the report of their findings until the eleventh hour. The “usual suspects” dealt with the ICRC findings: “… it was already reviewed by the military intelligence people and Col. (Marc) Warren, the CJTF-7 staff judge advocate, before they even presented it to me.” The only reason she was asked to bottom-line the report, she says, was to help CJTF-7 avoid scrutiny for having transferred command of the prison to military intelligence personnel.3

  Finally, there is the disturbing story of Sgt. Frank Ford, a counterintelligence agent in the California National Guard's 223rd Military Intelligence (M.I.) Battalion who was stationed in Samarra, Iraq. On June 15, 2003, he told his commanding officer that he had witnessed five incidents of torture and abuse of Iraqi detainees at his base, and requested a formal investigation. Thirty-six hours later Ford was ordered to submit to a psychiatric evaluation, diagnosed with combat stress, and evacuated outside the country. The evaluation at first diagnosed him as “completely normal,” and a non-commissioned officer witness claims that Ford's company commander “became enraged when he read the initial medical report finding nothing wrong with Ford and intimidated the psychiatrist into changing it.” Reportedly the psychiatrist was told “that it was a 'C.I. [counterintelligence] or M.I. matter' and … that she had to change her report and get Ford out of Iraq.”4

  Hersh's sources maintain that the “damage control” surrounding the alleged special access program is unsurprising. “If General Miller had been summoned by Congress to testify” (as he was), his intelligence source pointed out,

  he, like Rumsfeld and Cambone, would not have been able to mention the special-access program. “If you give away the fact that a special-access program exists,” the former intelligence official told me, “you blow the whole quick-reaction program.”1

  The problem is that the program got out of control at Abu Ghraib; “[t]he photos,” one of Hersh's sources commented, “turned out to be the result of the program run amok.”2 Something clearly needed to be done, for complete silence was just not an option, regardless of the desire to preserve the alleged program and insulate senior officials. The focus on a half dozen junior enlisted folks, along with a few officers – to the exclusion of the real leadership – seems consistent with the Pentagon's possible desire to salvage the aggressive interrogation program. Indeed, Karpinski has said, even since her demotion, that she's “not convinced” that abuse has necessarily ceased. It's possible, she told ABC's Nightline on May 12, 2004, “Maybe people who are orchestrating have [simply] gotten smarter and have gotten better.”3 Indeed, Hersh's sources would agree with any suggestion that the crackdown on wayward enlisted reservists is simply grist for the public mill. “Rumsfeld's explanation to the White House,” one of Hersh's sources related, was that “'We've got a glitch in the program. We'll prosecute it.' The cover story was that some kids got out of control “(emphasis mine).4

  The Burden of Accountability

  Given the repeated calls from congressional and other professional sphere for a serious look into the actual level of responsibility for the torture and abuse scandals, special access program notwithstanding, one might wonder why – in the Post's words – “no genuinely independent investigator has been empowered” to connect the dots and hold high level officials accountable. Indeed all the action at this point has focused on low-level operators and a rather “dispensable” woman Army reservist.

  Perhaps what is discouraging the executive branch from launching a truly independent and empowered investigation – especially if its complicity in the scandal is as significant as reporters like Hersh make it out to be – is the thought of the price that senior officials stand to pay should a full review of their accountability ever be conducted. In this light it is perhaps unsurprising that Secretary Rumsfeld dismissed the call for a special counsel to investigate the abuses and their context independently; “to go back into all of the things that's [sic] already been reviewed by everybody else doesn't make sense,” he said, reinforcing the point by reminding viewers of a Sunday talk show that the GTMO detainees are “bad people.”1 One cannot help thinking, in fact, that the Army IG's exoneration of Sanchez (along with Craddock's defense of Miller) is just another useful impediment to any eventual reckoning. To be sure, if Sanchez's September 2003 memo authorizing dogs and high fear inducement aren't enough to land him in the dock, the DoD and DoJ memos wouldn't seem to be either.

  While cries of “war crimes” are too easily dismissed as the ravings of the leftist, lunatic, anti-Bush fringe, many serious and thoughtful professionals have admitted that the memos noted above provide damning evidence of a complicity to commit torture or abuses or in some fashion to break the law. John Dean called the Bybee memo “'smoking-gun' level evidence of a war crime.”2 The House Judiciary Committee Democrats say, in their May 12, 2005, letter to Attorney General Gonzalez, “it is clear that a prima facie violation of federal criminal law exists,” and that “high-ranking administration officials, including the Defense Secretary, as well as high-ranking military officials … are potentially subject to criminal prosecution …. “Liz Holtzman, a former New York comptroller and Congresswoman who was on the House Judiciary Committee when letters of impeachment were drafted for President Nixon, thinks that if any senior government officials “directed or authorized murder, torture or inhuman treatment of prisoners or, possibly, if they permitted such conduct to continue after they knew about it,” they could be held accou
ntable for war crimes. Additionally, following two days of hearings at the London School of Economics in November 2003, a panel of eight international law professors decided there was “sufficient evidence” for the International Criminal Court prosecutor to investigate senior U.K. officials for crimes against humanity committed in Iraq.

  As stated earlier, on November 30, 2004, the Center for Constitutional Rights (CCR) in New York filed a complaint with the Federal Prosecutor's Office in Karlsruhe, Germany, under the doctrine of “universal jurisdiction,” whereby suspected war criminals may be prosecuted irrespective of where they are located.1 The action was joined by the Fédération Internationale des Droits de l'Homme (comprising 116 human rights organizations in almost 100 countries), Lawyers Against the War, and the International Legal Resources Center. The German prosecutor at first refused to take the case because he believed that the United States would investigate the matter itself; this would make the “universal jurisdiction” argument unnecessary. In response to this refusal, the CCR filed an appeal on January 31, 2005, and included with it the expert testimony of Scott Horton. His testimony concluded:

  I have formed the opinion that no such criminal investigation or prosecution would occur in the near future in the United States for the reason that the criminal investigative and prosecutorial functions are currently controlled by individuals who are involved in the conspiracy to commit war crimes.

  Though the German court replied negatively to the appeal on February 10, 2005, Horton's opinion in this matter is still worth considering.2 It-along with his comments on other aspects of the Abu Ghraib scandal – is not to be scoffed at; his credentials are impressive.3 Michael Ratner, director of the CCR, explained the basis for Horton's finding, which is worth reading in its entirety.4

  First, Horton pointed out that the Department of Defense was under the control of defendant Secretary of Defense Rumsfeld who therefore had “effective immunity.” Second, he found that the criminal investigations pursuant to army regulations look only down the chain of command and not up, and thus eliminate any “meaningful inquiry into the criminal misconduct of the defendants.” Third, he found that the criminal investigations were influenced from above with the “intention of producing a 'whitewash' exculpating those up the chain of command.” Fourth, he found that the responsibility of the legislative branch to investigate had been abdicated, since Senator John Warner, chairman of the Senate Armed Services Committee, “was threatened [by other Republicans] with sharp political retaliation if he carried through on his plans to conduct real hearings.” Fifth, he found that the Attorney General controls war crimes prosecutions under the U.S. War Crimes Act and that since former Attorney General Ashcroft was “complicit in a scheme for the commission of war crimes” he had not undertaken a criminal investigation. Alberto Gonzales, the current Attorney General, Horton said, was the “principal author of a scheme to undertake war crimes” and was motivated in writing his January 25, 2002, memo by a fear of prosecution for war crimes, which he sought to evade in that memo.1

  Ratner is optimistic that eventually the right people will be held accountable for their actions, even if that accountability is not generated through more of the administration-directed investigations and reports. “Although we have not yet been able to hold high-level officials accountable, it will happen,” he says. “It may not happen this year or even next year, but eventually … justice will be done.”2 The fact noted the January 27, 2005, update his office filed with the German court four days later – that over 11,000 letters of support for the lawsuit have been sent to the court – may be one reason he is optimistic.

  Efforts by others are moving ahead as well. Also on November 30, 2004, Gail Davidson, co-chairwoman of Lawyers Against the War, brought seven Canadian criminal code charges in the Vancouver Provincial Court against President Bush while he was visiting Canada. There she presented evidence to support her contention that Bush should be held criminally responsible for counseling, aiding, and abetting torture at the Abu Ghraib prison and at GTMO.

  On March 1, 2005, the American Civil Liberties Union and Human Rights First, a New York-based group, filed a 77-page civil suit against Rumsfeld on behalf of eight military detainees in Iraq and Afghanistan. The plaintiffs allege that Rumsfeld “formulated, approved, directed, or ratified the torture or other cruel, inhuman or degrading treatment … as part of a policy, pattern, or practice.” The Georgia Straight of Vancouver, Canada, reported on April 7, 2005, that “a great deal of work went into preparing this case. Lawyers worked with human-rights and humanitarian organizations in Iraq and Afghanistan to identify people who had been mistreated in U.S. detention centers.” The clients were then interviewed extensively.

  Hina Shamsi, a New York lawyer with Human Rights First, commented to the Straight that “although there [have] been other lawsuits filed on behalf of detainees for abuse suffered in U.S. detention facilities, none of those have focused on the policy-making role of a top U.S. official.” She also noted the role of the suit in putting the pieces of the whole picture together in a way that official investigations have not. “What we have done here is connect the dots. We connect the creation of interrogation policies and the beginning of abuse in Afghanistan with the migration of those policies to Iraq.”

  Most remarkable are the individuals who have joined this lawsuit as probono co-counsels: Rear Adm. John D. Hutson, USN, (ret.), former judge advocate general of the Navy;1 Brig. Gen. James Cullen, USA (ret.); former chief judge of the U.S. Army Court of Criminal Appeals; Bill Lann Lee, chairman of the Human Rights Practice Group at Lieff, Cabraser, Heimann & Bernstein, LLP; and former assistant attorney general for civil rights at the Department of Justice. With former senior military lawyers taking on high-profile lawsuits against a sitting secretary of defense, the ramifications of the Abu Ghraib and related torture and abuse scandals cannot be underestimated.

  Guantánamo Bay: Still Cutting Corners

  What many thought at the time would be the last chapter in this saga unfolded at GTMO where “unlawful combatants” are kept. In June 2004, post-September 11 barriers to due process were struck down by the Supreme Court when it ruled that the detainees had a right to petition federal courts for a habeas corpus hearing.2

  Reaction in the Pentagon's top civilian echelons suggests they had not anticipated the Court's ruling. In an apparent effort to blunt the fairness of any habeas corpus proceeding which, on a level playing field, might lead to the release of the detained petitioner, then-Deputy Defense Secretary Paul Wolfowitz signed a new directive creating “Combatant Status Review Tribunals” to evaluate whether a detainee's categorization as an “enemy combatant” was still valid.

  On the surface, this might seem to be a step forward in restoring the basic rights of the detainees. But in contradiction to U.S. legal tradition enshrined in the Constitution and international norms set forth in the GC, the Wolfowitz directive specifies that the tribunal will approach each review with a “rebuttable presumption” favoring the government's assertion and its evidence that the detainee is an enemy combatant. That is, the presumption in each review is “guilty until proven innocent,” which places the burden on the detainee to disprove the government's “evidence” – in a process where “normal” legal supports (e.g., a qualified attorney) are denied. By the end of March 2005, of more the 558 detainees whose cases were “reviewed,” all but 38 were deemed by the tribunals to pose a continuing threat to the U.S.

  Past and Future: From Afghanistan to Abu Ghraib and Back Again

  In a recent post at Tomdispatch.com, media commentator and watchdog Tom Engelhardt persuasively chronicled the way in which coverage of the prison abuse scandals has mirrored the government's investigations into them: both continue to follow the “bad apple” approach, insisting that abuses do not reflect a policy of intentional, aggressive, frankly tortuous interrogations, but simply the misdeeds of a few rogue interrogators. Engelhardt's point is an interesting one: by reporting only on government-spon
sored reviews, most journalists have no choice but to follow this “'bad apple' school of journalism,” which is based largely on “various military or official investigations of what the military, intelligence agencies, and the Bush administration have done.”

  His suggestion for getting past this approach is to look to where unpalatable truth is often likely to be found. Doing so reveals a rather disturbing pattern of increasing numbers of detentions and interrogations in Afghanistan, from where the “aggressive” methods of interrogation are believed to have migrated to Iraq, through the facility at GTMO. “Problems are indeed continuing,” Engelhardt writes, “in a form that simply cannot be read about in the mainstream media in this country.” He cites reports, such as one by Emily Bazelon from the March/April 2005 issue of Mother Jones, that suggest a disturbing, continuing pattern.

  Hundreds of prisoners have come forward, often reluctantly, offering accounts of harsh interrogation techniques including sexual brutality, beatings, and other methods designed to humiliate and inflict physical pain. At least eight detainees are known to have died in U.S. custody in Afghanistan, and in at least two cases military officials ruled that the deaths were homicides. Many of the incidents were known to U.S. officials long before the Abu Ghraib scandal erupted; yet instead of disciplining those involved, the Pentagon transferred key personnel from Afghanistan to the Iraqi prison.

  … Even now, with the attention of the media and Congress focused on Abu Ghraib and Guantánamo, the problems in Afghanistan seem to be continuing …. The Afghan commission and Human Rights Watch, as well as a smaller group, the Washington, D.C.-based Crimes of War Project, have also gathered evidence on detainee abuse at American “forward operating bases” near Kandahar, Gardez, Khost, Orgun, Ghazni, and Jalalabad. Investigators estimate that in each of these places, between 5 and 20 prisoners are held at a time, compared to as many as 200 at Bagram.