"There are always going to be differences of views….The test is what has been decided and what is issued, and then is it adhered to."
That was Secretary of Defense Donald Rumsfeld this past May 13 en route to Iraq. The day prior, Rumsfeld and Chairman of the Joint Chiefs General (GEN) Richard Myers told Congress that, Abu Ghraib prison notwithstanding, the Geneva Conventions did apply to Iraqi detainees and were being followed by U.S. troops in Iraq (New York Times). Moreover, both men emphasized that interrogation procedures being used in Iraq, Afghanistan, and Guantanamo had been reviewed by Pentagon and White House lawyers, who declared the techniques conformed to the Conventions.
Back in Washington, as Rumsfeld flew to Iraq, Senator Jack Reed (RI) did what no other member of Congress had done since the Iraq prison abuses caught the public’s attention: he hypothetically inverted the circumstances. Reed’s question to Marine GEN Peter Pace, Vice-Chairman of the Joint Chiefs, was straight-forward: "If you were shown a video of a United States Marine or an American citizen in the control of a foreign power, in a cell-block, naked, with a bag over their [sic] head, squatting with their [sic] arms uplifted for 45 minutes, would you describe that as a good interrogation technique or a violation of the Geneva Convention?" To which GEN Pace responded: "I would describe it as a violation, sir."
Two days before, on May 12, the "Interrogation Rules of Engagement" (IROE) issued last year over the signature of Lieutenant General (LGEN) Ricardo Sanchez, Combined Joint Task Force-7 (CJTF-7) commander in Iraq, appeared in the Washington Post. Incredibly, both GEN Pace and Deputy Secretary of Defense Paul Wolfowitz, who also was testifying that day before Congress, told lawmakers they only saw the IROE just before their appearance. Unlike GEN Pace, Wolfowitz seemed to have trouble categorizing Senator Reed’s examples ("crouching naked for 45 minutes" and having "a bag over your head for 72 hours") as inhumane.
Wolfowitz’s hesitancy is quite understandable, especially in view of what came to light in the following week:
– In May and again in October, as many as eight senior Judge Advocate General (JAG) officers privately met with the chair of the New York City Bar Association’s International Human Rights Committee to express their deep forebodings that the legal ambiguity created by the Bush Administration concerning the classification and handling of prisoners vis-à-vis the Geneva Conventions was a "disaster waiting to happen" (Salon.com, May 15, 2004). JAG officers had not been included in the process of defining safeguards, in discussions about the use and role of civilian contractors as interrogators, or in oversight of prison operations.
The directing role of military intelligence (MI) at Abu Ghraib, long suspected, began to come into focus. Buried in the 6,000 page Army investigation report by Major General (MGEN) Antonio Taguba is an acknowledgement by the ranking intelligence officer, Colonel (COL) Thomas Pappas, that MPs designated to "support" interrogators were instructed by MI personnel to force prisoners to strip and to shackle them prior to questioning. Pappas further acknowledged that his unit had "no formal system in place" to ensure the guards understood what they had been told and what restrictions applied to their actions (New York Times, May 18, 2004). In the words of a senior International Committee of the Red Cross (ICRC) official, there was such "physical and psychological coercion [that it] in some cases was tantamount to torture."
– The use of extremely secret "Special Access Program" (SAP) regulations to disguise or hide legally questionable interrogation techniques and practices employed on "high value" prisoners was revised. The Army’s 1998 regulations (AR 380-381) permitted creation of SAPs "to prevent significant damage to national security or the reputation or interests of the United States" (National Security Archives, May 18, 2004). But safeguarding the "reputation of the U.S." is not sufficient justification for classifying any governmental activity, and most assuredly not the use of a SAP. With the furor over the Abu Ghraib scandal, the regulations were rewritten in April with the "reputation" reference dropped.
– In a reversal of policy with regard to the prisoners held at Guantanamo Bay, the Defense Department established three-person military boards to review, on an annual basis, the status of prisoners and ascertain whether they remain a threat to the United States. Prisoners are to be provided military "representation"–but not legal counsel–and can make oral presentations. Boards will accept written communications from families and the governments of detainees and, after due consideration, recommend to a "high-level Defense Department official" whether the prisoner should be detained longer or be released. At first glance, creation of the boards seems to bring the U.S. closer to conformity with the Geneva Conventions. However, all captured individuals are supposed to be immediately processed by a board to determine combatant status, a procedure that apparently is not followed in the drive to extract "actionable" intelligence. Moreover, the directive does not provide information about the standards the board will use to evaluate the continuing "danger" a prisoner may pose.
– A British newspaper revealed that U.S. forces in Afghanistan had distributed a flyer warning Afghans that humanitarian aid could be cut off unless they provided information on the Taliban and al Qaeda (Guardian, May 6, 2004). While the threat to end aid or to condition it on the basis of compelling non-combatants to take sides in a war does not seem to violate the Geneva Conventions per se, it does–as one senior international aid official noted–seriously assault the spirit of international laws regarding care of non-combatants.
– The Taguba report also detailed one instance in which the CJTF-7 commander, LGEN Sanchez, authorized the use of "harsh" interrogation measures approved by Defense Department and White House lawyers (USA Today, Mach 19, 2004). However, in testimony before the Senate Armed Services Committee on May 19, LGEN Sanchez said he could remember approving only some two dozen requests for extensive (more than 30 days) solitary confinement. Reflecting the uproar over the "harsh" measures, many of which contravene the Geneva Conventions, Sanchez later banned all aggressive interrogation techniques in April 2004.
– During the same May 19 Senate Armed Services Committee hearing, MGEN Geoffrey Miller, who ran the Guantanamo prison compound and went to Iraq to "advise" CJTF-7 on interrogation techniques, denied that his recommendations in any way contributed to the violations of the Geneva Conventions by MPs in Iraq. Miller said he encouraged only passive activities (e.g., watching prisoners, noting who they talk to). However, MGEN Taguba noted that Miller’s recommendations in September 2003 included: "It is essential that the guard force be actively engaged in setting the conditions for successful exploitation of the internees." Miller attributed the abuses to a failure of leadership at the prison rather than a misinterpretation of his recommendations. GEN John Abizaid, Central Command commander, along with LGEN Sanchez, concurred. Abizaid also said there was no climate of abuse in Central Command. Rather, the military’s system for monitoring detention and interrogation activities was disjointed.
To the contrary, the record of events suggests that more than the military’s system was awry. There was a climate of abuse–one that, within the military, spread from Central Command but originated in higher-level policy circles.
The poisonous atmosphere in which the abuses flourished was set in January 2002 when the Administration unilaterally declared that the Geneva Conventions did not apply to Taliban or al Qaeda prisoners. White House counsel Alberto Gonzales, in a January 25, 2002, memorandum that primarily dealt with possible future domestic prosecutions of officials under the 1996 U.S. War Crimes statute, urged the President to "stay the course," claiming that many terms in the Conventions were "undefined." Gonzales asserted that "Your determination [that the Conventions did not apply] would create a reasonable basis in law that [the statute] does not apply which would provide a solid defense to any future prosecution" (Newsweek, May 17, 2004).
Gonzales then expanded the scope of his opinion to the whole "war on terror": "The nature of the new war places a high premium on other factors [than the Geneva Conventions], such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities." Gonzales conceded that prisoners could be treated in accordance with the Conventions, but he opined that such treatment would have nothing to do with the strictures of international law as the option to treat prisoners humanely could be claimed to be conditioned "to the extent appropriate and consistent with military necessity" (emphasis added).
An earlier (January 9, 2002) Justice Department draft memorandum first proposed this point of view, claiming that in Afghanistan the laws of war did not apply either to orders from the President or to actions by U.S. personnel on the ground. This same theme emerged in Iraq where MGEN Miller, just before returning to the U.S. for the Senate committee hearing, told reporters that he always insisted that Geneva Convention standards were to be observed "except where military necessity dictates" (Los Angeles Times, May 19, 2004) (emphasis added).
Apparently, some in CJTF-7 must have reasoned that "military necessity dictated" that the Conventions could be ignored by either refusing access to prisoners by the ICRC or requiring the ICRC to request inspection access. As a matter of fact, the ICRC formally raised objections to prison and interrogation regimens observed by inspectors as early as March 2003, a few days after the war started. Instances of physical abuse, prisoner deaths caused by overreaction by guards, and other mistreatment were noted in a series of "working reports" of visits and interviews conducted throughout the spring and summer months of 2003. In general, abuses were corrected at the various facilities visited. But, except for an "informal" visit in July, Abu Ghraib did not receive an in-depth inspection until October 2003 (Wall Street Journal, May 21, 2004).
CJTF-7 response to the ICRC’s November 6 report covering the October inspection was signed December 24, three weeks before the scandal was first mentioned by the U.S. command. Significantly, the senior legal officer in CJTF-7 knew of the ICRC report in November. He drafted the reply, but there is no indication he informed LGEN Sanchez, leaving the latter "in the dark" until mid-January. Moreover, the reply strongly suggested that not all detainees in Iraq were covered by the Geneva Conventions, a position that directly contradicted White House statements (New York Times, May 23, 2004).
Throughout this period, misgivings and objections by military officers to the fundamental thrust of the whole policy surfaced. In a lengthy memorandum dated in February 2003, "senior military lawyers" reportedly cautioned that plans to use severe interrogation methods for a particular "high-interest" al Qaeda detainee in Guantanamo would violate the Geneva Conventions. (Some of the proposed "techniques" had been employed at Guantanamo in late 2002 and early 2003.) In response to the lawyers’ memo, in April 2003 Secretary of Defense Rumsfeld approved a list of "aggressive" techniques from an array of "nondoctrinal" methods presented by MGEN Miller, who was then in charge of the Guantanamo facility. Tellingly, Miller’s predecessor disclosed that he had been under unremitting pressure to "bend" the Conventions (Los Angeles Times and USA Today, May 21, 2004).
But Guantanamo was not the only influence on how prisoners were treated in Iraq. Personnel from the 519th Military Intelligence Battalion who had interrogated detainees in the more permissive (according to the U.S.) atmosphere of Bagram air base and Kandahar in Afghanistan were among those working at Abu Ghraib. And from numerous detainee accounts, the more aggressive interrogation tactics were transferred along with the interrogators. Reportedly, investigators looking into the abuses at Abu Ghraib have found conflicting IROE issued by the MI unit operations officer and by LGEN Sanchez. As it was, Sanchez at first (September 14) approved interrogation policies that, if not violating the Conventions, straddled the line very closely, finally deciding in mid-October to require his direct approval of the questionable practices on a case-by-case basis. Nonetheless, this October 12 instruction authorized the MI-MP interaction to "manipulate internees’ emotions and weaknesses" that contributed to the poisonous atmosphere in which abuses occurred (New York Times, May 21, 2004).
It is quite obvious that many officials, civilian and military, have been uncomfortable during their appearances before congressional committees. Their discomfiture ranges across not only descriptions of what actually happened at Abu Ghraib but also the basis for the development of highly questionable, unilateralist policies regarding treatment of prisoners that clearly violated international law and the law of land warfare. The prohibitions against physical and psychological coercion in the Geneva Conventions explicitly forbid both, and as a signatory to the Conventions, the strictures of the Conventions are part of U.S. law and cannot be abrogated by executive fiat.
While highly-placed U.S. civilian officials have thus far publicly escaped legal consequences or even censure (unless one counts Bush’s discussion with Rumsfeld in mid-May) in connection with these breaches of international law, the uniformed military has been forced to act. Specialist Jeremy Sivits, one of the MPs accused of abuse at Abu Ghraib, has pled guilty in a "special court-martial" proceeding as part of a plea-bargain agreement with military prosecutors. Although the proceedings and sentence have yet to be reviewed, Sivits received the maximum sentence the military judge could impose (which is less than the others who have been charged could receive as they are to face general, rather than special, courts-martial).
In an ironic twist, the military has convicted a Florida National Guardsman with desertion for refusing to return to his unit in Iraq. The soldier, who has filed for conscientious objector (CO) status, said one reason for refusing to go back involved the "great cruelty" inflicted on Iraqi detainees at the U.S.-controlled al-Assad air base. Significantly, the Guardsman’s statements and application for CO status were submitted to military authorities on March 16, 2004, well before the scandal broke into the mainstream press. His description of techniques that troops were instructed to use to aid the interrogators included some that violated international law (Associated Press, May 19 and May 22, 2004).
Self-serving interpretations such as those from the Justice Department and the Gonzales opinions cannot be said by any objective person to be law or the basis for law. This realization underlies and informs a crucial statement from testimony by Deputy Secretary of State Richard Armitage before the Senate Foreign Relations Committee on May 18: "Americans are human beings; we are not above injustice and sin. But because we are American, we can also say that we are not above the law–no one is above the law."
In the end, it is law and the rule of law–which includes recognition of and respect for individual human dignity–that translates moral principle into ethical action. The United States has a choice: it can reaffirm its historical principles by following the rule of law or surrender its claim to moral leadership by defying the law. Without question, in less arrogant times, history and principle would triumph.
Col. Daniel Smith, a West Point graduate and Vietnam veteran, is Senior Fellow on Military Affairs at the Friends Committee on National Legislation, a Quaker lobby in the public interest. He can be reached at: firstname.lastname@example.org