an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This week Capt. James Yee’s book concerning his experiences in Guantánamo will hit America’s bookstores. This morning’s Sunday Times (London) offers a fascinating set of excerpts from Yee’s work. Money quote:
“It was my turn to be humiliated every time I was taken to have a shower. Naked, I had to run my hands through my hair to show that I was not concealing a weapon in it. Then mouth open, tongue up, down, nothing inside. Right arm up, nothing in my armpit. Left arm up. Lift the right testicle, nothing hidden. Lift the left. Turn around, bend over, spread your buttocks, knowing a camera was displaying my naked image as male and female guards watched.
“It didn’t matter that I was an army captain, a graduate of West Point, the elite US military academy. It didn’t matter that my religious beliefs prohibited me from being fully naked in front of strangers. It didn’t matter that I hadn’t been charged with a crime. It didn’t matter that my wife and daughter had no idea where I was. And it certainly didn’t matter that I was a loyal American citizen and, above all, innocent.”
When all the baseless suspicions against Yee were disproved, the Pentagon turned to its favored technique to punish him. He was accused of improper sexual conduct. In American society today, these words generally relate to conduct that is abusive – unauthorized sexual contact. Not in Donald Rumsfeld’s Pentagon: there they relate to consensual sexual relations between a man and a woman. The consistent factor is that one of the sexual partners has made it on to the Pentagon’s black list for one reason or another.
The Rumsfeld Pentagon has developed destruction of the character of those who get in its way to an art form. Those viewed as troublesome become the target of a special investigation. Wiretaps are applied to their telephones and their emails are read. An evidentiary case is built and humiliating leaks to the press occur.
Let’s stop for a moment and ask: when the persons in question are two-, three- and four-star generals, at what level must this be authorized? In fact, the targets have included two-, three- and four-star generals, and the authority or impetus for such action has almost certainly come from the Office of the Secretary of Defense. The charges brought have tended to fall into two baskets: charges of petty dereliction and sexual misconduct. In the former case, we have seen charges that officers kept classified documents on their laptop computers – when the documents turned out not to be classified; and we have seen charges of petty errors and oversights in contract administration. (Conversely, serious cases of contract misadministration involving billions of dollars and Halliburton are resolved by persecuting the whistleblower.) But the favored technique clearly lies in bringing charges of improper sexual conduct, invariably involving consensual sexual relations.
These charges are easily brought. The number of eunuchs and sexual abstainers among the uniformed military is low and sociological research has long shown that the vast majority of the population has sexual relations outside of wedlock at some point. That means that these charges can be brought against virtually anyone. If the rules were enforced uniformly and aggressively, we would not be able to maintain a volunteer army. But the current highly selective application may achieve the same result. Two important bar organizations have already looked at the situation and concluded that the application of sexual misconduct rules by the uniformed services suggests highly uneven application. Both urged reforms. The Pentagon refuses to budge. The tool is too powerful, and too readily abused. Therein lies its attraction.
In addition to the case of Capt Yee, developed in his current book, consider these:
Each of these cases suggests highly irregular investigative and disciplinary process which sharply discredits the Pentagon and the military justice system. Press reports also demonstrate a remarkably incurious media that frequently plays into the Pentagon's smear tactics by failing to fathom the currents under the press releases. The Pentagon is aided in this process by the coerced silence of the accused, usually eager to salvage something of his pension and benefits. A good example is the Washington Post article reporting on the punishment of General Fiscus. An unnamed Pentagon source is quoted as saying, with obvious malice, that Fiscus can expect to be disbarred as a consequence of their action. When I raised the matter with a bar ethics committee chair, I was told this: "If we began disbarring lawyers because of consensual sexual relations, we would rapidly run out of members."
To really understand what’s going on, these cases and the extreme sexual priggishness they reflect must be juxtaposed against a decision – taken at or near the top of the chain of command and crammed down on investigators – to jettison prior military doctrine requiring humane treatment of detainees. In introducing new, inhumane practices, the Pentagon leadership embraced sexual humiliation tactics with particular relish. An examination of published accounts of the twelve internal Army investigations discloses the following admittedly inhumane practices:
- enforced nudity, including suggestive poses and stacking of bodies;
- allusions to and threats of improper sexual conduct;
- improper and unauthorized touching, including touching of genitalia;
- probes involving light sticks and other tools (which may come close to constituting rape by instrumentality under state statutes);
- use of (fake) menstrual blood;
- sexual blackmail;
- distribution and use of sexually explicit materials;
- suggestions that detainees are homosexual or have otherwise engaged in sexual conduct inconsistent with Muslim religious values; and
- having an interrogator deliver “lap dances” to detainees.
These practices clearly violate legal rules and traditional US military doctrine on the treatment of detainees. They also degrade the US service personnel who are required to apply them. But consider the swing between the disgrace and ruin of highly valued career officers for consensual sexual relations and the officially sanctioned, grossly abusive sexual misconduct described above. It demonstrates a plasticity in moral values, that can only be called breathtaking. How are we to bridge this chasm? The most appealing explanation lies in the motives of those driving this ostensibly schizophrenic conduct. Plainly, they view sexual morals as something to be manipulated for the accomplishment of political objectives. Hence, lewd and offensive sexual conduct can be deliberately used as a tactic against detainees. On the other hand, officers who earn the leadership’s ire will be humiliated and disgraced using innuendo of sexual misconduct as a tactic.
The cynicism and immorality of this mindset is staggering. It reflects a wholesale repudiation of traditional military values.
One can well question the efficacy of sexual humiliation practices as tools for interrogation and intelligence gathering. However, no one can question their highly inflammatory effect in the War on Terror: they tarnish America's reputation and put our soldiers at risk. And they may well claim another victim. Experts are already noting that at Rumsfeld's current burn rate, the volunteer army cannot be sustained much longer. Rumsfeld's cynical sexual policies are destroying military morale and discipline and hastening the volunteer army's demise. Posted
by Scott Horton [link]
That was one of the best posts I have read in my time reading the blogosphere. A true must read.
Hey, have you ever looked into Scott Ritter's advocacy FOR war against Iraq until he was revealed to be a self-serving a_____e who could not be trusted to tell you the time of day and then turned 180 degrees around to keep his name in the news?
And as for the credibility of Mr. Horton's "[T]he vast majority of the population has sexual relations outside of wedlock at some point..." and all the other garbage. Hey, some of us can think and we know innuendo, half-truth and opinion pretending to be fact when we see it. Just write: "I hate Rumsfeld and you should too."
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Excellent post, Mr. Horton. Reading your post, Col. Wilkerson's point in his speech at the New America Foundation came to my mind again. He, a former military man, pointed out it was clear to him that something like Abu Ghraib was enabled by the implied encouragement coming from Cheney's office and the Pentagon.
Certainly, this wasn't masterminded by Lynndie England. This goes right to the top.
The Pentagon procecutions mentioned in your post, namely of Gen. Fiscus and Gen. Byrnes, IMO underline that.
It's a disgrace when superiors are using disciplinary tools selectively to enforce conformity and a political view, or to shut up dissent.
But I guess that's what happens when people who are so full of themselves as Bush's politicos are, are trying to enforce their vision of civilian control of the military (not a bad point in itself).
In my view (and in my country anyway) torture is a crime, and not a policy.
When politicians like Dick Cheney, and their mouthpieces, are pushing it as a issue, that tells a lot. Wilkerson made a good point: Never before America had a justice-department (perversely) or a vice-presidential approval for torture.
Cheney might well learn something reading about George Washington and his view on how to treat prisoners. That was IMO American tradition in the best sense, heritage of the America I admire.
Mr. Cheney has seemingly decided to opt for another American tradition, coming from the savage Indian Wars: That an dishonourable opponent - and so the Indians were perceived, and so are faceless, dark-skinned, broadly muslim terrorists perceived - doesn't deserve fair play. If they want a dirty fight, they'll get it.
Watching from over the atlantic I found this stance quite prevalent after 911: These ragheads are subhuman, and don't deserve better.
It is, however, very difficult to counter this with moral or factual arguments. This is about sentiment and emotion. It blinds people holding this view to the palpable problems involved, like that most of the folks imprisoned in Gitmo were not terrorists, but insurgent fighters, that is, peasants with an AK. Or that in Iraq as many as 80% of the people locked up in those broad sweeps are innocent, according to U.S. military intel.
Mr. Horton, I wich you all the best. Keep on writing, America needs you.
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