Shirking Responsibility

Scott Horton

"Command is a sacred trust. The legal and moral responsibilities of commanders exceed those of any other leader of similar position or authority. Nowhere else does a boss have to answer for how subordinates live and what they do after work."

-- Dep't of the Army, Field Manual 22-100, sec. 1-61.

With a sense of timing that can only be described as exquisite, the Secretary of the Army, Francis J. Harvey, and the Army Chief of Staff, General Peter J. Schoomaker, have published a defense of the Army's handling of the torture and prisoner abuse scandal in the National Review Online, just as another, particularly gruesome, chapter in this seemingly endless saga breaks across the front pages of the nation's newspapers. See here, here, and here. We are rapidly arriving at the point where the denials of military senior brass and political appointees who supervise them can only be viewed either as shirking responsibility or as confirmation that torture and abuse are official U.S. policy. It is hard to judge which of these alternatives is more harmful to the nation and its armed forces.

Torture at Camp Mercury

The new stories paint a now very familiar tale. They focus on an airborne unit stationed at Camp Mercury, a forward base near Fallujah, in some of Iraq's most hotly contested real estate, and they date from 2003 and 2004 -- which is to say, the events were ongoing as the Army conducted its internal investigation focusing on Abu Ghraib and other detention centers in Iraq. However, other new reports emerge from Camp Tiger, located on the Iraqi-Syrian frontier, and from Afghanistan.

According to the allegations -- detailed in a new Human Rights Watch Report -- Military Intelligence (MI) officers directed soldiers in daily beatings of prisoners before they underwent interrogation. Some beatings were severe, involving brutal disfigurement. In one case a detainee's leg was broken by blows from a metal bat. Other techniques used included subjecting detainees to strenuous exercises until they collapsed into unconsciousness; and exposure to extremes of heat and cold. As at Abu Ghraib, prisoners were stacked in human pyramids and had their faces exposed to burning chemicals. Food and water were withheld and prisoners were regularly forced into stress positions. CIA interrogators were involved along side of MI personnel, and by some accounts the CIA was the source of some of the torture techniques.

Torture for Amusement

Detainees were designated as "PUCs" (pronounced "pucks") for "persons under control." At Camp Mercury, torture and abuse of prisoners was made a matter of pasttime and amusement. Two techniques were developed to allow soldiers to "blow off steam." These were called "fuck a PUC" and "smoke a PUC." "Fuck a PUC" involved beatings and physical abuse and "smoke a PUC" entailed forcing a prisoner to exercises or physical exertions until he collapsed.

The Human Rights Watch report quotes an NCO as saying that "on their day off, people would show up all the time. Everyone in camp knew if you wanted to work our your frustration you show up at the PUC tent. In a way it was sport."

The Role of Command Authority

Bad as this is, it gets worse. Soldiers state they fully appreciated that the abuse to which the detainees were subjected was sanctioned up the chain of command. A decision apparently had been made not to apply the Geneva Conventions in the War on Terror, and unambiguous instructions had come down the line of command to "take the gloves off" with the detainees. But one officer saw Donald Rumsfeld testifying before the Senate Armed Services Committee in 2004 saying that the Geneva Conventions were being respected in Iraq. "Something was wrong," he said. The officer went up the chain of command and to the JAGs in theater trying to get clarification of how the Geneva Conventions could possibly permit what was happening. He got nowhere. Moreover, he found he was subjected to implied and direct threats. Asking questions or reporting on what he saw would affect "the honor of the unit" and would damage his career.

The officer attempted to report these matters to several Republican senators. When his intention to do this became clear, officers in his chain of command denied him leave and took other steps to block his actions.

These facts echo strongly the recent reports on the murder of General Mowhoush, involving CIA, special forces and MI and a failed cover-up, that reached high up the ranks. Both cases provide a perfect backdrop for evaluating the claims made by Harvey and Schoomaker in the National Review.

Army Values

The Army is the oldest of the nation's institutions, antedating the Presidency, the Congress and the courts. It played a unique role in defining and unifying the nation and in fixing the traditions with which the country has been associated since its founding. First among these may well be the tradition of humane warfare, articulated by George Washington after the Battle of Trenton, December 24, 1776. "Treat them with humanity," Washington directed with respect to the captured Hessians. He forbade physical abuse and directed the detainees be quartered with the German-speaking residents of Eastern Pennsylvania, in the expectation that they would become "so fraught with a love of liberty, and property too, that they may create a disgust to the service among the rest of the foreign troops, and widen the breach which is already opened between them and the British." (Things unfolded exactly as Washington envisioned). Washington also set the rule that detainees be given the same housing, food and medical treatment as his own soldiers. And he was particularly concerned about freedom of conscience and respect for the religious values of those taken prisoner. "While we are contending for our own liberty, we should be very cautious of violating the rights of conscience in others, ever considering that God alone is the judge of hearts of men, and to Him only in this case are they answerable." I provide a more extensive account of Washington's doctrine on treatment of detainees and its philosophical underpinnings here.)

Under Abraham Lincoln, in 1863, Washington's orders were expanded in the world's first comprehensive codification of the laws of war, General Orders No. 100 (1863), also called the Lieber Code. Among other points, Lincoln clarified what was meant by "humane" treatment. It could under no circumstance comprehend torture, he directed in article 16.

This tradition has been a source of pride for our nation for over 200 years. The
pressing question today is whether this legacy has been betrayed by those in the highest positions of our Government and in the Department of Defense. The evidence to this effect is now overwhelming.

Doctrine and Training

The Secretary of the Army and his Chief of Staff (Harvey and Schoomaker) give appropriately prominent discussion to doctrine and training issues. They recount steps that have been taken to clarify doctrine and to train soldiers in it. Unfortunately, their account is unconvincing. In fact, some of the clearest evidence of command liability can be found in doctrine and training. Military commanders owe their soldiers clear, unambiguous guidance on how interrogation is to proceed and how detainees are to be treated. Instead, the most charitable way we could characterize the situation would be to say they have created a fog of uncertainty in the area (whereas until 2001, the sun had shone with exemplary brightness).

We should start with Field Manual 34-52 (1992), entitled "Intelligence Interrogation," a highly regarded document that gives guidance on interrogation practices. Conscientiously followed, the manual would have prevented most, and perhaps all, of the abuse that occurred in Iraq, Afghanistan and Guantánamo. To a large extent, these problems spring from a conscious decision by command authority to set this manual aside -- while not replacing it with any new guidance. Indeed, notwithstanding promises that a new version of FM 34-52 would be issued, none has come. The press reports out of Camp Mercury are completely consistent with other reports showing no training on the Geneva Conventions or the traditional rules prohibiting abuse, many of which are in the Uniform Code of Military Justice. This is an unambiguous responsibility and failing of leadership at the highest levels.

But this is about the most generous reading of the facts that is possible.

There is also a darker and more ominous reading. A strong case is emerging that decisions were made at the level of the Office of Secretary of Defense -- and perhaps higher -- to open the door to experimentation with tactics that are acknowledged as cruel, inhuman and degrading, and that will certainly be counted as torture by many experts. Marty Lederman's most recent post is hard on the trail. Assistant Attorney General Levin's February 4, 2005 letter strongly suggests the impact of DOJ advice and guidance on military doctrine, implemented in the field in Iraq, Afghanistan and Guantánamo. This gives a Rosetta Stone-like quality to the still-withheld Yoo memorandum of March 14, 2003. Until the Yoo March 14, 2003 memo is released to congressional oversight -- and to the public -- it is impossible for any serious analyst to accept the Harvey and Schoomaker claims about the role of doctrine. To the contrary, the unjustified withholding of this document -- along with the military's own Church Report, and the numerous primary documents collected during that investigation -- invites a strong inference that their claims are false. Moreover, at this point the text of the March 14, 2003 memo in and of itself is not enough. We need to see exactly how it affected military doctrine in the form of advice given by the DOD General Counsel's office, the JAG Corps, and the Military Intelligence branch, among other things. Some e-mail traffic I have seen among MI officers in Iraq suggests that this memo shaped actions on the ground in the War on Terror within a matter of weeks, if not days.

Transparency

Harvey and Schoomaker write that "no other institution in the world has taken a more critical look at itself, or been more transparent in pursuit of the truth, than the United States Army." They cite a series of twleve separate investigations. But the investigations that were conducted and the results that flow from them suggest anything but transparency or a willingness to come to grips with the problem presented. By definition, investigations conducted under Army Regulation 15-6 are limited by the strict parameters fixed by the command authority; more significantly, they look down the chain of command, not up it. Thus, the investigations are perfectly positioned to scapegoat and avoid the responsibility of those up the chain of command, and particularly of political appointees, who are fully immunized from review in these processes. Investigators who pursued these investigations may very well have performed their duties with professionalism and diligence, but those who have examined the full texts of the reports against the "executive summaries" that work their way into the public often detect striking discrepancies. Of the existing reports, the Fay/Jones and Taguba reports are particularly valuable and reflect impressive and scrupulous work by investigators. They also contradict the claims of Harvey and Schoomaker about the nature of the problem and the identity of those responsible.

More Rotten Apples

The problem in the view of Harvey and Schoomaker is simple: "A small number of our soldiers have not lived up to the Army values." They thus continue the claim set out by President Bush and Secretary Rumsfeld that a few "rotten apples" are responsible for the abuses that have been reported.

Former Secretary Schlesinger gave it a different flourish, saying that the abuses at Abu Ghraib related to "Animal House on the night shift," and suggesting that a small group of improperly supervised junior enlisted personnel inspired by college fraternity pranks were responsible for the worst of it. Are these characterizations really consistent with the reports? The answer is clearly "no." The report of Lt. General Randall Mark Schmidt subsequently exposed Schlesinger's characterization as a sham. When Schmidt reviewed allegations of abuse at Guantánamo, he repeatedly noted incidents identical or nearly identical to those covered in the Fay/Jones report. However, time after time, Schmidt recommended no punishment on the grounds that the abusive, degrading and inhuman treatment that was being doled out was fully consistent with established interrogation procedures and the law. Marty Lederman's
masterful analysis of this report remains unmatched.

But beyond this, is it really credible to talk of a "few rotten apples," when the number of those concerned goes from six, to a dozen, to nearly a hundred, and now to several hundred, operating in installations around the world and engaging in suspiciously similar patterns of conduct? As a commentator in Slate wrote earlier this year:

Are there really that many bad apples in today's vaunted, all-volunteer,
highly educated military? Doubtful. What's more likely is that the U.S. military has been corrupted by a morally and politically ambiguous mission, poorly trained and resourced for occupation duty, forced to work with impractical rules of engagement, and left with too few troops to do the job in Iraq. Cumulatively, all these external factors enabled a few sadistic soldiers (led by derelict officers) to do their dirty deeds at Abu Ghraib. But the Army refuses to acknowledge the role these systemic factors played, choosing instead to heap all the blame on a few junior enlisted soldiers. Those soldiers now face prison time, unlike their officers, who are being let off with administrative reprimands.

Harvey and Schoomaker claim that "each report has established that the abuses did not result from promulgated interrogation policies and procedures, nor were they directed, sanctioned, sanctioned or encouraged by senior leadership." This statement is flatly untrue. Particularly since the Army investigations were not permitted to examine the role of policymakers in these events, it is striking how far they go in demonstrating the role that departure from long-settled policy on interrogations and treatment of detainees played in the abuses that occurred. Moreover, the Fay/Jones and Taguba reports, and the Schmidt report, each implicated senior officers in wrongdoing and recommended action. The following senior officers were cited in connection with possible disciplinary measures: LTG Sanchez, MG Wojdakowski, MG Fast, MG Miller, BG Karpinski, Col. Warren and Col. Pappas.

Of these, only Karpinski and Pappas were disciplined and the circumstances of
each disciplinary action shows cartwheels being turned to avoid addressing the focal problem of detainee abuse. The rest were spared disciplinary action through command decision or other bureaucratic legerdemain. It is particularly noteworthy that General Karpinski has stated in a subsequent interview that she saw directions issued by Secretary Rumsfeld, bearing his own handwritten notations, encouraging the use of brutal interrogation tactics in Iraq. "It was a memorandum signed by Secretary of Defense Rumsfeld, authorizing a short list, maybe 6 or 8 techniques: use of dogs; stress positions; loud music; deprivation of food; keeping the lights on, those kinds of things," Karpinski said. "And then a handwritten message over to the side that appeared to be the same handwriting as the signature, and that signature was Secretary Rumsfeld's. And it said, 'Make sure this happens' with two exclamation points. And that was the only thing they had. Everything else had been confiscated."

But most significantly, notwithstanding the preparation of memoranda and orders at the highest echelons of the Department of Defense reflecting the approval of aggressive new interrogation techniques, the investigations proceed with the highly implausible assumption that these policy decisions had no effect on what happened on the ground in Iraq. Since the U.S. Army's command-and-control structures are the envy of the world, this assumption lends an element of the surreal to these reports.

Critical Self-Examination

Harvey and Schoomaker also claim that the reports reflect that the Army took a "critical look at itself" and that it "investigated every credible allegation of detainee abuse." But the cumulative evidence shows that, although the investigators and staff took their work seriously, the focus of those higher up was on a whitewash. An excellent example of this can be found in the work of MG Fay, who before being called up was a New Jersey insurance executive best known for his fund-raising activities on behalf of the Bush-Cheney campaign. As it happens, I was in Germany in the spring of 2004 at roughly the same time that MG Fay was there interviewing soldiers and officers with V Corps MI units. Having some contacts with these units, I took the time to speak to a number of NCOs and officers to get a sense of just how Fay was conducting his investigation. What I heard was consistent and very disturbing. Fay repeatedly warned soldiers that if they were involved in incidents, they would be put up on charges. And if they had seen things and not reported them, they would be up on charges. Then he asked if the soldiers had anything to report. One soldier told me that when he began to describe an incident to Fay, he was stopped and told "Son, you don't want to go there." This process was constructed to stop soldiers from coming forward with evidence about what had happened -- the opposite of a fair or critical inquiry.

But I stress that among the twelve investigations conducted, the Fay/Jones report was one of the best. One wonders what it would have netted had proper investigatory technique been used.

Shirkers at the Top

The torture and abuse saga has now raged on the public stage for 18 months, and a comparison of the Harvey/Schoomaker article with the current newspaper headlines suggests strongly that the Pentagon views the problem as little more than a public relations squabble. This scandal exposes an assault on core values of the Army by senior policymakers -- for the most part political appointees outside the scope of military investigation. The doctrine of humane treatment has been all but eviscerated. But for the long term, the damage done to the doctrine of command responsibility may be even more troubling.

Under both military doctrine and U.S. law (Ex parte Yamashita, 327 U.S. 1 (1946)), command authority bears responsibility for the conduct of soldiers under its supervision. Where command authority fails to control the operations of its troops, particularly by permitting atrocities and war crimes, the command authority assumes criminal liability. Similarly, when crimes are committed and the command authority fails to punish those with supervisory responsibility, the result may be to pass criminal liability up the chain of command. In light of the disciplinary actions recommended and not carried out with respect to general and field grade officers, and the fact that detainee abuse remains unresolved after the passage of years, criminal responsibility has now been passed up the chain of command to those who exercise oversight, potentially including the authors of the National Review piece. This liability exists independently of liability that may arise from the formulation and implementation of policy that foments or permits abuse.

As a highly regarded Army reserve lawyer -- now called up to active duty in Iraq -- recently wrote, these developments cumulatively reflect "abdication of responsibility by the Defense Department and the Army. The question is not whether these officers actually directed the abuses or participated in them; rather, the question is how they acted as generals and leaders to facilitate the abuses, fail to prevent them, or fail to stop them." The introduction of torture and abuse as interrogation practices has badly corrupted military intelligence and is undermining morale and discipline throughout the service. The decision to scapegoat the "grunts" for decisions that clearly were taken at or near the top of the chain of command has further undermined confidence in the chain of command and in the integrity of the Army as an institution. The systematic denial of the doctrine of command responsibility threatens the ethic of the military on the most fundamental level. One must wonder when and where this whirlwind of destruction that now engulfs our military and threatens to undermine our national security will end.

Washington's Admonition

The nation's first commander-in-chief had a firmer and more comprehensive grip on these issues than his successor 230 years later. Washington engaged in no equivocation on the concept of treatment of those under our power. He ordered that "should any American soldier be so base and infamous as to injur[e] any [of them]... I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause." Any officer who failed to heed this direction, he said, would bring "shame, disgrace and ruin to themselves and their country." Departure from this injunction was a grave mistake.

If Harvey and Schoomaker are right, and a "small number" have failed to live up to the values that Washington and Lincoln fixed, it is increasingly clear that that "small number" sits at the top of the chain of command, not at the bottom. The time has come for accountability.
Posted 12:13 AM by Scott Horton [link]