The New York Times reports
that Defense Secretary Donald Rumsfeld personally ordered the clandestine detention of an Iraqi tied to Ansar al-Islam in such a way so as not to let the Red Cross or anyone else know that he existed, and was in U.S. custody. Mr. Rumsfeld apparently did so at the request of CIA Director George Tenet. However, the order appears to have raised hackles at the lower levels of command. And, it has generated many new questions about the extent to which the SecDef and his top advisers personally knew of — or sanctioned — the events at Abu Ghraib.
This prisoner and other "ghost detainees" were hidden largely to prevent the International Committee of the Red Cross from monitoring their treatment, and to avoid disclosing their location to an enemy, officials said.Analysis
Maj. Gen. Antonio M. Taguba, the Army officer who in February investigated abuses at the Abu Ghraib prison, criticized the practice of allowing ghost detainees there and at other detention centers as "deceptive, contrary to Army doctrine, and in violation of international law."
This prisoner, who has not been named, is believed to be the first to have been kept off the books at the orders of Mr. Rumsfeld and Mr. Tenet. He was not held at Abu Ghraib, but at another prison, Camp Cropper, on the outskirts of Baghdad International Airport, officials said.
Pentagon and intelligence officials said the decision to hold the detainee without registering him - at least initially - was in keeping with the administration's legal opinion about the status of those viewed as an active threat in wartime.
* * *
In July 2003, the man suspected of being an Ansar al-Islam official was captured in Iraq and turned over to C.I.A. officials, who took him to an undisclosed location outside of Iraq for interrogation. By that fall, however, a C.I.A. legal analysis determined that because the detainee was deemed to be an Iraqi unlawful combatant - outside the protections of the Geneva Conventions - he should be transferred back to Iraq.
Mr. Tenet made his request to Mr. Rumsfeld - that the suspect be held but not listed - in October. The request was passed down the chain of command: to Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, then to Gen. John P. Abizaid, the commander of American forces in the Middle East, and finally to Lt. Gen. Ricardo S. Sanchez, the ground commander in Iraq. At each stage, lawyers reviewed the request and their bosses approved it.
: So, let's literally play devil's advocate here. Let's assume the role of a defense attorney for the MPs charged with criminal misconduct at Abu Ghraib. To fight those charges, we have to make what's known as an "affirmative defense" that our clients were ordered by their superiors to do what they did, and
that those orders were lawful. The "superior orders" defense, as it is known, is a complete defense where the orders were lawful, and a mitigation defense where the orders were not lawful. This is because of the inherently coercive nature of the military where subordinates do not have great latitude to contradict orders.
As defense attorneys, we're dancing on our desks right now, because we now have another piece of evidence to bolster our "superior orders" defense. So far, we have our own clients' testimony, corroborated by that of their co-defendants, that they were ordered to do what they did. That is a factual matter, and will likely require the calling of certain officers and intelligence officials who gave these MPs orders. Next, we must establish the lawfulness of the orders. Towards that end, we now have at least three big pieces of evidence:
1. The now infamous Defense Department torture memo
, first reported by the Wall Street Journal, which outlines ways around criminal prosecution should one of the low-ranking soldiers or spooks be prosecuted for their acts on the orders of higher command. As I wrote
in Slate, this is "a cookbook on how to conduct illegal torture and get away with it."
2. The Justice Department memorandum
to much the same effect, first reported by the Washington Post
. Like the DoD memo, this one provides a litany of ways out of criminal liability, and is designed to provide legal cover for the actions of high-ranking officials and low-ranking subordinate alike. According to the WP:
If a government employee were to torture a suspect in captivity, "he would be doing so in order to prevent further attacks on the United States by the Al Qaeda terrorist network," said the memo, from the Justice Department's office of legal counsel, written in response to a CIA request for legal guidance. It added that arguments centering on "necessity and self-defense could provide justifications that would eliminate any criminal liability" later.
3. This latest report from the New York Times
regarding "ghost detainees". If true, it establishes that orders to break the law came from as high as the Secretary of Defense. This story tends to corroborate Sy Hersh's reporting in the New Yorker
about "Copper Green" — a special-access program for the interrogation of detainees controlled by the very top echelons of the Pentagon. These two stories lend a great deal of credence to the MPs' claims that their orders to abuse prisoners at Abu Ghraib came from very high in the Pentagon.
More importantly, these stories regarding legal memoranda and superior orders help us, the defense attorneys, establish the legality of the orders' lawfulness — at least in the soldiers' minds. Imagine you're a young Army Reserve MP serving at Abu Ghraib, and you get an order to beat up a naked detainee. Your instincts tell you that's wrong, so you question your sergeant, who questions his lieutenant, who questions her captain, who eventually gets in contact with a JAG officer. That JAG explains that these orders have already been vetted for their legality, by the most senior lawyers in the Pentagon and Justice Department. Thus, the soldier can be assured that these are, in fact, legal
orders. Everyone gets constructive credit for asking the right questions, and the orders get carried out. But at no point does anyone engage in any real deliberative legal analysis about the actual legality
of the orders. In effect, by producing these one-sided legal documents blessing torture, the Washington lawyers stamped the unlawful orders with their imprimatur, enabling lower-ranking officers to point to something as proof that the orders were legal.
: So far, what I've described is like a quadruple hearsay problem — and then some. There are all kinds of evidentiary reasons why this stuff may be kept out of court, both in the military trials about to begin and the federal criminal case brought today
against a civilian contractor at Abu Ghraib. In addition to serious hearsay issues, you have so-called relevance issues, "best evidence" issues, and character evidence issues. Oh, and let's not forget the trump card: the "state secrets" privilege under FRE Rule 501, which has been invoked by the government to keep out evidence which might harm the national security if disclosed. [Note: the military rules of evidence and federal rules of evidence are nearly identical on these points.] So the defense team has an uphill struggle if it wants to use these memoranda and reports in its case. More to follow...