Recommendation: throw the book hard at those responsible;
Also prosecute the intelligence officials who sought to 'set the conditions' for questioning
As a former Army MP officer, I am very interested in any news involving MPs deployed abroad, particularly in Iraq and Afghanistan. Unfortunately, the latest news involving MPs is bad -- so bad, in fact, that it leaves me disgusted. I watched this report on Wednesday night when it aired on 60 Minutes II
, and my stomach turned at the pictures of U.S. soldiers posing with naked Iraqi prisoners performing sex acts on each other. Now that I'm done with finals, I have time to respond.
The Washington Post
and Los Angeles Times
carry detailed reports in Friday's paper on the scandal at Abu Ghraib prison, where MPs allegedly committed such acts as forcing an Iraqi to stand on an MRE box with inert wires connected to him, saying that he would be electrocuted if he stepped off the box. The MPs were even audaciously stupid enough to take pictures of their exploits. And to top it off, the chain of command was so derelict as not to notice these incidents or do anything about them. The result: 17 MPs now face criminal or administrative charges, including a 1-star general.
... the top U.S. commander in Iraq, Army Lt. Gen. Ricardo Sanchez, has ordered administrative penalties against seven unnamed officers who supervised the Army Reserve military police unit that was responsible for the Abu Ghraib detention facility in November, when Iraqi prisoners allegedly were subjected to beatings and sexually degrading acts by American soldiers.Analysis
Criminal charges were filed in March against six members of the unit, the 372nd Military Police Company, based in Cumberland, Md. The charges included conspiracy, dereliction of duty, cruelty and maltreatment, assault and indecent acts with another, the military's term for sexual abuse.
* * *
According to sealed charging papers that were provided to The Washington Post, soldiers forced prisoners to lie in "a pyramid of naked detainees" and jumped on their prone bodies, while other detainees were ordered to strip and perform or simulate sex acts. In one case, a hooded man allegedly was made to stand on a box of MREs, or meals ready to eat, and told that he would be electrocuted if he fell off. In another example, the papers allege, a soldier unzipped a body bag and took snapshots of a detainee's frozen corpse inside.
Several times, soldiers were photographed and videotaped posing in front of humiliated inmates, according to the charges. One gave a thumbs-up sign in front of the human pyramid.
The documents add to growing accusations of improper prisoner treatment at Abu Ghraib, which was Iraq's largest and most notorious prison during the rule of ousted president Saddam Hussein. In addition to the military's announcement in March that soldiers had been charged, details of the abuses and photographs from inside the prison were broadcast Wednesday night by CBS's "60 Minutes II."
On Thursday, U.S. officials confirmed that the images were authentic and said they had taken several steps to stop the mistreatment of prisoners.
: So let's be clear on what's going on here. We go into Iraq to stop, among other things, human rights abuses that were being directed by the Hussein regime. Many of those abuses took place at Abu Ghraib prison, the same building at the center of this report. Iraqi guards regularly beat, humiliated, and tortured their detainees, and they reveled in their cruelty. Now, we have American soldiers doing many of the same things, allegedly at the direction of American intelligence officers who wanted these MPs to set the conditions for productive interrogation sessions. I can't condemn this conduct enough, and yet, I feel that condemning this conduct isn't
enough. This is truly reprehensible stuff.
What's worse is that other American soldiers may suffer for the brutal excesses of these MPs, interrogators, and OGA ("other government agency" = CIA) employees. Reciprocity is a very real thing where the laws of wars are concerned, and we should be very concerned about retaliation against any Americans captured by Iraqi insurgents in the future. Similarly, reprisals are very real problem in war; they're often fueled by anger over mistreatment of one side's own troops. When American troops learned of the German massacre at Malmedy during the Battle of the Bulge, historical accounts said they went on a killing spree -- double-tapping every German in their sights, and giving no quarter even the Germans sought it. Other historical accounts reflect this trend. I think we can expect this news to reach every quarter of the Arab world, from the hideouts of the Iraqi insurgency to the Arab street. And when it does, I think we can expect it to fire up our adversaries in a huge way. This event will do significant, lasting damage to American credibility in the eyes of the Arab world. If a lot of Arabs were on the fence about American foreign policy, they won't be after they see this report. (If you think for one minute I'm exaggerating, imagine the American response if we'd seen our POWs treated this way and had these pictures broadcast on Al-Jazeera.)
Fortunately, we do have American soldiers doing good things abroad, like the well project in Siyu and the scores or hundreds of nation-building projects in Iraq today. In large parts of the country, Americans do enjoy some amount of normalcy in their relations with Iraqis, even if the Iraqis resent our presence and want us to go home. But incidents like this have the potential to ruin everything. As the old aphorism goes, one "aww sh*t" can ruin a whole lot of "atta boys".So what should be done?
The Army's military police corps is known for eating its own when they screw up, and I don't think this case will be any exception. The right answer here is to slam the book at the MP chain of command responsible for this action -- especially the colonels, captains and lieutenants who failed to properly train their soldiers on the laws of war, failed to supervise them in the running of this prison, and failed to set the proper climate for the dignified treatment of these prisoners. Administrative punishment for many of these officers is insufficient, in my opinion. They deserve a general court-martial for these actions. I think the American military command in Baghdad must take a hard line on this reprehensible conduct, and that it must prosecute these officers and NCOs to the fullest extent of the law. If they are innocent, a military jury will acquit them. But the military justice system
exists primarily to support mission accomplishment through the promotion of "good order and discipline." This incident represents a staggering breach of discipline, and it must be dealt with appropriately.
Unfortunately, the problem extends to more than just military personnel. The misconduct at Abu Ghraib prison apparently involved employees of the CIA, as well as civilian contractors employed by Titan Corporation and CACI. Unfortunately, the legal solutions are murkier when it comes to misconduct by government contractors overseas, as I write in this Slate article
titled "Hired Guns":
Private military contractors generally don't have to listen to these rules and orders, in any event, and they have historically not been prosecuted for disobeying military rules. The Uniform Code of Military Justice's jurisdictional article (10 U.S.C. Section 802) provides that "In time of war, persons serving with or accompanying an armed force in the field" may be tried by a military court, but there's little precedent for military trials of civilian contractors who behave badly in a war zone—even assuming Iraq can legally be called a "war."
Moreover, while the Justice Department has jurisdiction to prosecute military contractors for actions overseas under a 2000 law, it may decline to do so as a result of limited resources and the fact that there is no U.S. attorney's office (yet) established in Iraq to govern U.S. civilian activities there.
The legal murkiness helps shield the contractors from effective discipline. The Coalition Provisional Authority has decreed that contractors and other foreign personnel will not be subject to Iraqi criminal processes. Yet, there's also no clear mandate for American jurisdiction. And in the absence of any specific mandate telling military officials to clamp down on contractors, American prosecutors can simply decline to do so as a matter of discretion—precisely what has happened on U.S. military deployments in the Balkans, as pointed out by Peter W. Singer in a Salon article on contractor transgressions during that deployment.
* * *
... the president could direct his Defense Department or Justice Department lawyers to immediately exercise jurisdiction in cases where contractors behave badly. Thankfully, there has been a dearth of such incidents in Iraq, but the large number of contractors there makes it likely that some criminal conduct will occur in the future. A clear message from the administration that it's serious about exercising criminal jurisdiction might deter some of that criminal conduct—or at least ensure systems are in place to adjudicate any incidents that do occur.
I had no idea when I wrote this piece how prescient I was being, or that such criminal conduct had already occurred. Make no mistake about it -- this is criminal conduct. And it must be dealt with strictly, severely and certainly by the U.S. government. My reading of the Military Extraterritorial Jurisdiction Act of 2000
is that the Justice Department may exercise criminal jurisdiction over these persons as contractors and sub-contractors of the U.S. government overseas. And it must do exactly that. At a minimum, these contractors' conduct amounts to a violation of the laws of war with respect to torture during the course of interrogation. Any violation of the laws of war is a federal offense, under 18 U.S.C. 2441
. The military should immediately apprehend these individuals and render them to Justice Department prosecution before a U.S. District Court in the United States. Nothing less -- not termination, not administrative sanction, not suspension or debarment for these contractors -- will be sufficient. These contractors broke the law in a heinous and brutal way, and they should be prosecuted to the fullest extent of the law.Post-Script
: The Sunday Washington Post
and New York Times
reports on Abu Ghraib paint a slightly different picture of culpability than first indicated, proving the old military maxim that first reports are always suspect. Both the Post and Times seem to point the finger at intelligence officials, both on the ground in Iraq and in Washington, who were pushing the MPs to "set the conditions" for favorable interrogations by softening up the prisoners at Abu Ghraib. According to The Post
The Army Reserve commander who oversaw the prison said that military intelligence, rather than the military police, dictated the treatment of prisoners at Abu Ghraib. "The prison, and that particular cellblock where the events took place, were under the control of the MI command," Brig. Gen. Janis L. Karpinski said in a telephone interview Saturday night from her home in Hilton Head, S.C. Analysis
Karpinski, who commanded the 800th Military Police Brigade, also described a high-pressure atmosphere that prized successful interrogations. A month before the alleged abuses occurred, she said, a team of military intelligence officers from the detention facility at Guantanamo Bay, Cuba, came to Abu Ghraib last year. "Their main and specific mission was to get the interrogators -- give them new techniques to get more information from detainees," she said.
* * *
According to a source familiar with the March findings of an administrative review conducted by the Army, the 205th Military Intelligence Brigade, which helped oversee the questioning of prisoners at Abu Ghraib, pressed members of the military police unit, 372nd Military Police Company, to use rough tactics to prepare prisoners for questioning.
U.S. officials said the review, by Maj. Gen. Antonio M. Taguba, found that prisoners at Abu Ghraib were regularly subjected to cruel and harsh punishments. In an article posted on its Web site, the New Yorker magazine reported in its May 10 issue that Taguba found a pattern of "sadistic, blatant, and wanton criminal abuses" at the prison.
According to the New Yorker article, by Seymour M. Hersh, a report last November by Maj. Gen. Donald J. Ryder, the Army's top law enforcement officer, concluded that military intelligence did not order military police to put pressure on prisoners to prepare them for interrogations. Taguba, the article states, disagreed.
"Contrary to the findings of MG Ryder's report, I find that personnel assigned to the 372nd MP Company, 800th MP Brigade were directed to change facility procedures to 'set the conditions' for MI interrogations," Taguba wrote, according to the article. Army intelligence officers, CIA personnel and private contractors "actively requested that MP guards set physical and mental conditions for favorable interrogation of witnesses," according to the article's account of Taguba's report.
: It's hard to tell what's going on here, because there are so many generals pointing fingers at each other. Moreover, there is a lot of internal Army politics at work here, between the MP and the MI branches and between the intelligence and operations communities generally. So I'm not sure where to lay the blame. But, I can say one thing. If it's true that interrogators and intelligence officers pushed the MPs to "set the conditions" for these interrogations, then they must be prosecuted too. In acting this way, they gave unlawful orders and they should be subject to military discipline (if applicable) or criminal prosecution in federal court under 18 U.S.C. 2441. Ultimately, I think someone in this MP chain of command should've stepped up to exercise moral courage and tell the intelligence folks "no". But the failure to blow the whistle doesn't relieve the intelligence officers of culpability. I think it would be wrong to let these orders go unpunished simply because these intelligence officials were one or two steps removed from the conduct.Post-Post Script
: Also see this op-ed
by Peter Singer in Sunday's L.A. Times describing the legal climate for these abuses, and the need to hold the right persons accountable. He makes some really good arguments regarding civilian intelligence officers and contractors acting on behalf of the U.S. government.Post-Post-Post Script
: And for a more conservative perspective, see this op-ed
by military historian Victor Davis Hanson in Monday's Wall Street Journal (subscription required). Prof. Hanson doesn't defend the actions of the soldiers at Abu Ghraib, but says that we should put these in perspective. Specifically, he expresses dismay over the asymmetry of coverage and outrage that has met this incident, as compared to other abuses in recent conflicts:
If a small number of soldiers has transgressed, then let us punish them severely, as well as the officers who either ordered or ignored such reprehensible behavior. But let us also accept that the reaction to this incident is indicative of larger moral asymmetries that are the burdens of the West when it goes to war, a culture that so often equates the understandable absence of perfection, either moral, political, or military, with abject failure -- a fact not lost on our enemies.
We have seen terrible things since September 11 -- monotonous public executions, taped decapitations, videos of brutalized hostages, diplomats gunned down, aid workers riddled with bullets, children's bodies blown apart by improvised explosive devices, nuts, bolts and rat poison added to suicide bombs -- most under either the sponsorship of some autocratic Middle Eastern governments or of terrorist cabals that could not exist without at least the tacit support of thousands in the Arab street.
So as we in America address the moral inadequacies of a handful of our soldiers, let those in the Middle East take heart from our own necessary and stern democratic inquiries and audits, and thus at last now apply the same standards of accountability to tens of thousands, far more culpable, of their own.