The Mowhoush Murder, Geneva, the Scorpions, and Military "Special Forces"

Marty Lederman

A few preliminary reactions to the two must-read stories in today's Washington Post, which I summarize below:

1. The fact of Mowhoush's murder has been publicly acknowledged for some time. But what these stories show is that it was not the result of an isolated, unauthorized incident of brutality: From all that appears, this was a concerted, planned, systematic and extended series of brutal interrogations, carried out by numerous persons and entities, within the military and the CIA, in a manner that they all considered to be authorized. No rotten apples. No nightshift. Official U.S. policy and practice.

2. This has nothing whatsoever to do with Al Qaeda or the Taliban. The Scorpions were employed, and Mowhoush was murdered, in Iraq. The Administration has repeatedly insisted that detainees in Iraq—in contrast to the suspected Al Qaeda and Taliban detainees at GTMO—remain fully protected by the Geneva Conventions. With respect to POWs, Article 17 of the Third Geneva Convention provides that "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind." And Article 27 of the Fourth Geneva Convention requires that civilian detainees "shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity."

Quite obviously, what occurred in Iraq in 2003 was not even close to being in compliance with Geneva (not to mention the violations of federal criminal laws). And yet we still see military officials testifying that stuffing a detainee in a sleeping bag and putting detainees in a wall locker and banging on it were "appropriate," effective and approved techniques. How can this be?

I can think of at least four explanations:

a. Perhaps the Administration does not consider suspected Iraqi insurgents to be protected by the Geneva Conventions. By some time in 2004, the Department of Justice had concluded that at least some non-Iraqi insurgents were not Geneva-protected. And in his written testimony, now-Attorney General Gonzales—while reaffirming the Administration's long-stated position that the Geneva Conventions apply to the conflict between the United States and Iraq, and that Iraqi military personnel who satisfy the criteria of Article 4 are entitled to POW status under Geneva—clarified that other actors in Iraq, such as insurgents, who take up arms without complying with the criteria of Article 4, "may not be legally entitled to protections under [Geneva]." Is it possible that there was an Administration determination, as early as 2003, that a wider category of Iraqi detainees was not protected by Geneva? It certainly appears as if many U.S. personnel in Iraq—most of them trained to strictly apply Geneva—were working under an assumption that Geneva was inapposite.

b. The Pentagon set the stage for the derogation of Geneva norms by entrusting Iraqi detainee operations to commanders who promulagated rules that can best be described as confusing, and then turned a blind eye when soldiers sought clear guidance. This is basically the story told in the Schlesinger, Fay and Jones Reports.

Those reports explain in detail that the interrogators at Guantanamo, and the conflicting and confusing set of directives from the Pentagon for GTMO, "circulated" freely to Afghanistan and then to Iraq (Schlesinger 9). Lieutenant General Sanchez, the commander of the Combined Joint Task Force in Iraq, approved techniques going beyond those approved for GTMO, "using reasoning" from the President's February 7, 2002 directive on unlawful combatants (id. at 10). The "existence of confusing and inconsistent interrogation technique policies," including a "proliferation of guidance and information from other theatres of operation," contributed "to the belief that additional interrogation techniques were condoned in order to gain intelligence" (Jones 15-16; Fay 8, 10, 22). "The lines of authority and the prior legal opinions blurred" (Fay 10), and "DoD's development of multiple policies on interrogation operations for use in different theatres or operations confused Army and civilian Interrogators [at Abu Ghraib]" (Fay Finding No. 7).

And when the soldiers "on the ground" in Iraq repeatedly sought specific advice about proper interrogation parameters, the Pentagon was, at best, suspiciously unforthcoming about the governing rules. This is the way General Paul Kern, the appointing authority for the Jones/Fay investigations, delicately put the point: "The people who were conducting the interrogations clearly were feeling a lot of pressure to produce intelligence, as they should have been. That's what the purpose of the interrogation is. And in looking for . . . guidance, they were submitting requests back and forth, which were never in our view completely clarified. So they were using drafts of other processes that they had known and they were asking for clarity, which in the end resulted in a couple of memos which were published by the Combined Joint Task Force for them to use. But in the end, it did not absolutely make it clear what the boundaries were."

c. This abuse was the foreseeable result of a special, separate set of approved practices for the CIA and for certain military "Special Forces." As the Fay Report explained, "CIA detention and interrogation practices [in Iraq] led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib" (pp. 52-53). The CIA practices and techniques led to a "perception" that such techniques and practices "were suitable and authorized for DoD operations" (pp. 118-119).

Furthermore, such extreme techniques apparently were not reserved for use by the CIA. As Seymour Hersh reported last year, Secretary Rumsfeld and Under-Secretary Cambone have established secret special access programs (SAPs) within DoD that are authorized to use rough treatment, and sexual humiliation, in interrogating not only suspected al Qaeda operatives, but also the numerous persons rounded up as possible "insurgents" in Iraq. (And as Bart Gellman reported in the Washington Post, Rumsfeld further concluded that such operations need not be disclosed to Congress.) If these reports are correct—and today's stories appear to confirm them—there is a wholly secret interrogation regime within the Department of Defense that is playing by non-Geneva-compliant rules. (Of course, this does not explain how such rules could have been authorized or justified, in light of the Uniform Code of Military Justice, and other federal criminal statutes prohibiting assault and torture. In many previous posts, I've speculated that the Administration must be relying on the notion that the President has the constitutional authority to authorize conduct that would violate such statutes.)

d. This possible explanation is perhaps the most disturbing of all: It's possible that many military (and other) interrogators have come to believe that the techniques used in Iraq comply with Geneva. How is that possible? Here's the key quotation from today's story: "It was a time when U.S. interrogators were coming up with their own tactics to get detainees to talk, many of which they considered logical interpretations of broad-brush categories in the Army Field Manual, with labels such as 'fear up' or 'pride and ego down' or 'futility.'" In other words, the interrogators convinced themselves that these techniques were described in Army Field Manual 34-52—a Manual that has, since the 1960's, defined the interrogation techniques that are acceptable within the military even for POWs who are entitled to the protections of the Geneva Conventions.

This is consistent with the troubling development about which I wrote a couple of weeks ago—the conclusion of the Pentagon's own recent Schmidt Report that degrading and abusive techniques (such as having female interrogators physically seduce and taunt a Muslim detainee; forcing him to wear a bra and placing a thong on his head during interrogation; tying him to a leash, leading him around the room and forcing him to perform a series of dog tricks; stripping him naked; and pouring water on his head during interrogation 17 times) are authorized by Field Manual 34-52, because they are examples of what the Manual calls the "Futility" and "Ego Down" techniques.

This exact same reasoning is at the heart of today's story. The absurd logic appears to be this: (i) Manual 34-52 describes treatment that may be used on POWs, consistent with Geneva; (ii) Manual 34-52 approves of particular techniques denominated "Futility," "Pride and Ego Down," and "Fear Up"; (iii) Hence, any technique, no matter how "abusive" and "degrading," no matter how violent, that results in the detainee's sense of futility, loss of ego, or "fear up," is permissible, and legal under Geneva.

It should be obvious why this logic is so disturbing, and so dangerous.

3. Most, if not all, of the abuse that has thus far been reported—at GTMO, in Iraq, and in Afghanistan—occurred between November 2002 and Mowhoush's murder in November 2003. A couple of weeks ago, a Deputy General Counsel at the Pentagon testified that the Pentagon was told (perhaps by DOJ) in December 2003—presumably before knowledge of Abu Ghraib—that it should no longer rely on John Yoo's legal analysis, such as that found in the (still undisclosed) March 14, 2003 OLC memo and in the final DoD Working Group Report. Among other things, that analysis apparently explained that federal laws could be circumvented pursuant to the President's Commander-in-Chief authority.

I have been wondering what might have prompted DOJ, in December 2003, to do such an extraordinary about-face, and to renege on recent OLC recent legal advice that had been provided in the teeth of profound concerns expressed by the JAGs and others. Is it possible that this murder was the last straw—the incident that proved the JAGs right and that caused the Administration to insist on a serious reconsideration of where the "new paradigm" had so swiftly led? What, if anything, do we know about CIA and DoD policies and practices after 2003? [UPDATE: The Denver Post reports that military investigations are ongoing into the following allegations of detainee abuse in Iraq after the Mowhoush murder:

April 12, 2004: Member of the 1st Marine Expeditionary Force abused a detainee involved in shooting death of a Marine lieutenant and sergeant. During interrogation, detainee was kicked in the rib cage, punched in kidney area and slapped in the head. Incident being investigated.

Jan. 9, 2004: FOB Rifles Base detainee died while in custody. The detainee, an escapee who had been recaptured, was shackled to the door of his cell with his hands over his head and gagged. Five minutes later, he was found dead. The death is under investigation.

Dec. 31, 2003: Military police officer used butt of M-4 rifle to strike a detainee in the face and on the back of the neck. Then the officer placed the muzzle of his M-4 rifle in the detainee's mouth and pulled trigger on the empty weapon. Officer then chambered a round and pointed the rifle at detainee, firing a round 5 or 6 feet from detainee. The incident is under investigation.]

4. It's increasingly obvious that we will not have a full and fair accounting of this dark chapter in our history—and that we will not have an accurate picture of what was authorized, nor what continues to be authorized, for the CIA and the Pentagon—until we have divided government. In one of today's stories, Peter Hoekstra (R-Mich.), chair of the House Intelligence Committee, asked if he was satisfied with the information he received on the Scorpions unit, responded: "We're not spending a lot of time going back and dissecting tactical programs." I'll say.
Posted 7:10 AM by Marty Lederman [link]