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Saturday, October 01, 2005

What the England Courtmartial Doesn't Tell Us

Scott Horton

"The martial law, being based upon no settled principles, is, in truth and reality, no law, but something indulged rather than allowed as a law."

- Matthew Hale, History of the Common Law (1713)

The Wall Street Journal’s editorial page is increasingly isolated in its counter-factual approach to developments in the still unfolding detainee abuse scandal. In a week in which most newspapers in the United States have focused on the the shocking new allegations of abuse coming out of Camp Mercury, the Journal’s Robert Pollack tells us that the “torture narrative” (adopting Heather Mac Donald’s phrase) is unraveling. In this conclusion Pollack fails only in his understanding of what constitutes the “torture narrative,” for indeed the claims that policymakers were divorced from the mounting record of abuse have been exploded to such a degree that a Republican Congress now seems determined to deal with them.

From the outset of the torture abuse scandal, Rumsfeld has pursued a strategy of blaming a “few rotten apples” and attempting to focus public attention on figures visually associated with the abuses of Abu Ghraib. Lynndie England is accorded a star role in this process, and indeed her grinning, leash-holding pose over a stripped Iraqi prisoner has achieved a near iconographic quality.

Last week, England was convicted and sentenced by a courtmartial in Ft Hood, Texas. The process followed a busted plea bargain arrangement – her supervising NCO and father of her seven-month-old son, Charles Graner, gave testimony contradicting the England plea bargain and thus making it impossible to implement under military procedure.

Tunnel Vision

Pollack focuses his analysis on what has gone on in the courtmartial proceedings surrounding roughly a dozen low-ranking soldiers at Abu Ghraib. He then links this to the Schlesinger commission conclusions, quoting Schlesinger’s “Animal House on the night shift” remark. In doing this he provides little real analysis and demonstrates an alarmingly poor grasp of the basic facts. We should start by noting that the problems at Abu Ghraib are at this point a tiny fraction of the horror of detainee abuse – in the meantime, many of the most serious cases have been documented coming from other facilities such as Bagram and the Salt Pit in Afghanistan, Camp Cropper, Volturna and Camp Mercury in Iraq, and, of course, Guantanamo Bay. Since patterns of conduct in many of these cases is strikingly similar to what transpired at Abu Ghraib, the notion that the abuses there arose from the initiative of a group of 19- and 20-year-olds is no longer plausible.

But the column also reveals a faulty understanding of how a courtmartial operates and the conclusions that can be drawn from it.

Plea Bargain Practice

Pollack quotes statements of both Lynndie England and Jeremy Sivits in earlier proceedings without telling us anything about the circumstances of these statements. Both were plea bargain statements. The plea bargain process is essential to the economics of our criminal justice system. However, it frequently isn't consistent with justice. Anyone familiar with the plea bargain process knows that plea bargain statements are a form of kabuki theater - in essence, what the prosecutor gets as a gift in exchange for a reduced sentence. Accordingly, the plea bargain statements that Pollack quotes tell us one thing: that the prosecutors were focused with a laser-like intensity on throwing inquiry off the trail of command authority. It does not provide any kind of evidence that the command authority is innocent. Given the relationship between command authority and the prosecutorial service, it might suggest just the opposite. Citing such statements as proof of what is said borders on being comical.

That's particularly true in England's case. Her plea bargain was busted because Graner testified that the photos had been taken in order to train others in techniques for preparing prisoners (directly contradicting Pollack’s characterization, incidentally). This was inconsistent with the plea bargain statement, and thus forced the court to throw the plea bargain out.

Defense of Superior Orders

The mistreatment of prisoners through acts including physical abuse is a clear offense under the Uniform Code of Military Justice. The operative provisions are seen as simultaneously implementing US military doctrine dating back over two hundred years, US criminal law, and important provisions of the Third and Fourth Geneva Conventions. There is no question but that the anti-prisoner abuse provisions of the UCMJ were violated at Abu Ghraib. Pollack’s column focuses on suggestions that command authority “created the climate” or “set the tone” for prisoner abuse, and suggests that this was disproved at the England court martial. This reveals an amazing ignorance of the charges and available defenses.

I am skeptical about whether superior orders should be available in a case such as this one, so my sympathies are not with Lynndie England and her counsel on this question. But I also feel Pollack's observations are ignorant. We cannot permit a soldier to defy law – especially key provisions of the laws of armed conflict – and get away with it based on a murky and subjective sense that this is what the command authority wanted. The law quite properly requires more. Rule 916 of the Manual for Courts Martial states that

"[i]t is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful."

There must be a clear demonstration of superior orders, which the soldier had a reasonable basis to believe lawful. What this reasonable basis may be is something of a sliding scale. A fresh recruit cannot be expected to understand all the details of the Geneva Conventions and can rely on guidance from an officer as to what they say and what it means. A senior NCO is expected to know more. Officers are charged with a great deal of knowledge of the law of armed conflict, and field grade and flag officers generally undergo fairly detailed training and are absolutely charged with intricate knowledge of these rules. However, the abuses charged were things that only a morally depraved person would put in a gray zone. A very insightful analysis of this issue in the context of the England courtmartial has been furnished by Phil Carter; I share almost all of the views he expresses there.

But in the end, England’s defense counsel backed away from the superior orders defense, choosing instead to position her as weak minded and impressionable – a characterization with which virtually all observers agree. So, far from being some sort of show down on command responsibility, as Pollack suggests, the issue barely figured in the trial.

Discovery

The strategic decisions of England’s defense counsel were dictated by a series of rulings by the trial judge on discovery matters. Most of counsel's requests to take depositions of command authority figures were denied. I don't mean to imply criticism of the judge's decisions in saying this. In fact, I examined the first deposition list produced by England's counsel and thought it was clearly designed to burden the Government. I also would have limited the scope of witnesses.

Perhaps more troubling, it appears that the Army’s document production was not very thorough, and indeed, that the production may have been “sanitized.” I have not examined these productions, and my information is limited to discussion with counsel in other cases, but I will give a clear example of what I have in mind. On June 12, 2005, Time’s Adam Zagorin went with a story about a
secret Guantánamo interrogation log. I am familiar with some of the materials that Zagorin drew on for his piece and discussed them with Zagorin as he was writing it. These materials were not produced in the courtmartial proceedings, though they must have been within the scope of the defendants' document requests. The log that Zagorin discusses had vital significance to England's defense because it establishes beyond any doubt that one of the procedures that England engaged in - leading a detainee striped naked on a dog leash - was in fact a fully sanctioned and approved procedure used to prepare detainees in connection with interrogation under the "Ego Down" technique. I have strong reason to believe they were drawn from a cache of documents which were pulled to hide them from investigators and those seeking discovery in courts martial. (This is what I mean by “sanitized.”) Time, acting on demands from the Department of Defense, failed to make the documents it discussed public, thus contributing to the effort to "sanitize." I expect that some of these materials will soon be published nevertheless.

In addition to this, we should consider a recent statement of General Janis Karpinski. She notes that she went searching for command documents reflecting authorization for the extraordinary detention arrangements established at Abu Ghraib. She found something quite interesting. "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." (My emphasis). The document that Karpinski describes was also not produced, though its existence has been confirmed by other officers.

These are two out of several "red flags" suggesting that a special effort was made to "sanitize" the record. If borne out, they would point to a significant attempt to obstruct the justice process. But in the context of the Lynndie England courtmartial, it would have made a defense of superior orders, already problematic, all but impossible.

What General Schmidt Taught Us

Pollack denies a link between the Guantanamo procedures and what transpired at Abu Ghraib. However, the Fay/Jones and Taguba reports sharply contradict him on this point. General Taguba noted that among other things MG Miller had introduced the use of military dogs at Abu Ghraib and advocated the use of the military police units (such as England's unit) to "prepare" detainees for interrogation. The central story of the Fay/Jones report is one of the "migration" of the Guantanamo techniques to Abu Ghraib.

Lt Gen Mark Schmidt's report thoroughly exploded the Schlesinger conclusion about "Animal House on the night shift." Schmidt repeatedly reviews cases of abuse that track the incidents at Abu Ghraib perfectly - the use of a leash to force a naked detainee perform "dog tricks," forcing a detainee to wear women's lingerie and other practices intended to sexually degrade the detainee, strip searches, the process of stacking bodies. But time and again he concludes "this was a SecDef approved technique."

Consequently, no question persists as to the origin of the techniques that England, Graner and others used at Abu Ghraib. They were procedures designed for use at Guantanamo, approved by Rumsfeld, and implemented in Iraq.

Unindicted Co-conspirators

The core of Pollack’s piece rests in the assertion that by convicting England, the courtmartial has acquitted command authority, and particularly Secretary of Defense Donald Rumsfeld. The thought that the conviction of one defendant implies the innocence of another (much less a person not a co-defendant) makes fine Hollywood or Broadway drama, but is neither rational nor the way the criminal justice system works. It also demonstrates ignorance of the vital military doctrine of command responsibility.

Of course, no one has ever accused Rumsfeld of holding a leash on or physically pummeling a detainee. The potential charges against Rumsfeld are different, and far more serious than those against Lynndie England. At present, the charges come to two major points. First, that he oversaw and directed changes in policy that produced a brutalization of the detention system. The policy debate and Rumsfeld's pivotal role in it is now spread out on the record. The suggestion that these policies, once formed, would have no effect in the theater of battle displays an alarming ignorance of command and control systems. Pollack must have a low opinion of our military indeed to think that policy dictates of the Secretary of Defense would be ignored by officers in the field. Second, the charge is that Rumsfeld failed to enforce the laws banning torture and abuse and failed to discipline or punish those who violated them, creating command responsibility at the highest level. This is the issue I most recently visited in “Shirking Responsibility.” Straddling these two prongs is the doctrine developed by the United States at the Nuremberg tribunals, under which cabinet officers hold per se liability for systematic abuse at prison camps in times of war, especially when a policy link to this abuse is found. Rumsfeld may well have good defenses to all these points, and he should be given an opportunity to articulate them. However, the charges as developed to this point are grave.

These charges have not been briefed or presented to the England court martial; nor obviously could a courtmartial convened under the authority of Secretary Rumsfeld presume to entertain questions about crimes involving him. That would be a matter for other courts, applying different rules than those found in the courtmartial system.

The Order to Gitmoize

Donald Rumsfeld gave a direction to “gitmoize” the intelligence gathering process in Iraq. He dispatched MG Geoffrey Miller, who introduced the new brutal intelligence gather techniques to Guantánamo, to Iraq, and to Abu Ghraib, to introduce the Guantanamo procedures there. Classified, since disclosed portions of the Fay/Jones report record that within twenty-four hours of LTG Sanchez’s exit interview with MG Miller, the first of a series of orders was issued opening the door to abusive and unlawful interrogation practices. The Fay/Jones report fully and responsibly accepts that these acts led to serious war crimes. This included procedures which had been designed in conscious evasion of the rules of the Geneva Conventions. The evidence ties these fateful decisions inextricably to the abuses that occurred in Abu Ghraib and other locations across Iraq.

With the conviction of Lynndie England, we have indeed gotten to the bottom of the abuse scandal. However, as Joseph Galloway says, now it is time to get to the top.

Comments:

I'm not sure what the point of the Hale quote is. What he says was surely true of the British system of military justice in 1713, as it would be of any system which relies completely on laypersons for administration and does not have appellate review. But it has no relevance to the current system of United States military justice.
 

Military justice is not concerned with either justice or punishment. Its only purpose is to enforce military discipline. It is analogous to civil law in the sense that it imposes order on a "society" but that society is only the military. For the same reasons, it is usually more clement than civil law.
 

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". . . the charges as developed to this point are grave."

As an outraged citizen of the United States, do I have standing to press this charges? Who will press these charges and in what courts?
 

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