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
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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Almost two years ago, Seymour Hersh reported in the New Yorker that Secretary Rumsfeld and Under-Secretary Cambone had 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 in January 2005, Rumsfeld further concluded that such operations need not be disclosed to Congress, so that there is a wholly secret interrogation regime within the Department of Defense playing by its own interrogation rules.
No one in Congress or the press has done much until today to follow up on this brewing scandal, but thanks to the ACLU and the New York Times, now we have a small window into the handiwork of these military operations: Secret Task Force 6-26 and the horror chamber of Camp NAMA ("Nasty-Ass Military Area").
At Camp NAMA, placards posted by soldiers at the detention area boast "NO BLOOD, NO FOUL," and the adage is "If you don't make them bleed, they can't prosecute for it." "According to Pentagon specialists who worked with the unit, prisoners at Camp Nama often disappeared into a detention black hole, barred from access to lawyers or relatives, and confined for weeks without charges. 'The reality is, there were no rules there,' another Pentagon official said."
And their techniques are so brutal that even the CIA -- no stranger to waterboarding and hypothermia -- felt the need to bar its personnel from Camp NAMA! If the CIA thinks it's beyond the pale . . . .
Lots more details over at Andrew Sullivan's site. [UPDATE: And Katherine over at Obsidian Wings connects many of the dots, showing how Task Force 6-26 is at the heart of several of the most notorious instances of abuse, assault and murder that have previously been reported.] Andrew expressly draws the analogy to Milosevic's thugs. I'm generally averse to such analogies -- what's the value, really, in a side-debate about how we're not comparable to the Gulag? -- but at this point, is Andrew being so hyperbolic? How many stories such as this must be published before the rest of the world justifiably views the U.S. as one of the world's principal purveyors of torture and inhumane treatment? When we're accused of war crimes, what will be the response? That although our personnel have repeatedly breached the Geneva Conventions, they weren't "grave" breaches?
The Hersh story linked above reported that it was Cambone -- a close aid to Rumsfeld -- who instructed the Special Ops to take the gloves off, and to play without rules when it came to obtaining intelligence about Iraqi insurgents. Tomorrow's Times story reports that Cambone was shocked, shocked! to discover that there was mistreatment was going on in there! (You see, he never for a moment seriously believed that they would take him at his word . . . .)
What is there to add? Well, since my little corner of this debate has been the legal angle, let's put this in a bit of legal perspective.
-- It is a felony under the Uniform Code of Military Justice for military personnel to assault detainees, or to threaten them with assault -- or even to subject them to cruelty and maltreatment. And yet from all that appears, the very reason for Task Force 6-26's existence is to employ techniques -- i.e., elctric shocks, burns, punches -- that constitute assault, threats, and cruelty and that ordinary military interrogators consider off-limits.
-- Article 17 of the Third (POW) Geneva Convention prohibits all coercive, unpleasant and disadvantageous treatment of POWs: "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." For decades, military personnel have been trained to apply these standards, which form the basis for Army Field Manual 34-52. What ever could possibly have given Task Force 6-26 the idea that they could ignore Geneva with impunity?
-- Article 27 of the (Civilian) Geneva Convention requires that protected persons "shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof . . . ." The Times story indicates that the Task Force detention and abuse is not limited to suspected insurgents, but extends also to persons who apparently are detained simply because they might have information about insurgents. In early 2004, for example, an 18-year-old man suspected of selling cars to members of the Zarqawi terrorist network was seized with his entire family at their home in Baghdad. "Task force soldiers beat him repeatedly with a rifle butt and punched him in the head and kidneys, said a Defense Department specialist briefed on the incident." And in January 2004, "the task force captured the son of one of Mr. Hussein's bodyguards in Tikrit. The man told Army investigators that he was forced to strip and that he was punched in the spine until he fainted, put in front of an air-conditioner while cold water was poured on him and kicked in the stomach until he vomited." (Army investigators were forced to close their inquiry in June 2005 after they said task force members used battlefield pseudonyms that made it impossible to identify and locate the soldiers involved. The unit also asserted that 70 percent of its computer files had been lost.")
* * * *
If a military unit openly boasts of slogans such as "NO BLOOD, NO FOUL," it's not much of a stretch to assume that the unit for some reason does not consider itself bound by these provisions of the UCMJ, the Army Field Manual, and the Geneva Conventions.
What possibly could have led TF 6-26 to believe that it could ignore these laws with impunity? One day we may find out, if we ever have a serious public inquiry where experienced lawyers are able to closely question Cambone, Boykin, Miller, Sanchez, et al., along with the officers of units such as Task Force 6-26. But I'm not holding my breath.
Not a "lot of details" at Andrew Sullivan, after all. Prety much just factless general accusations such as are posted here. I tried a case like this once. The other side cited an hour's worth of "thou shalt nots" and not a single provable fact that they had been "shalted" by my client. I won. But keep on trying. Say a lie long and loudly enough and it may find some who believe it.
Your enumerated concerns seem timely, and particularly relevant balanced with JBalkin's companion post today about novel 4th amendment imperilments. I would expect congressional hearings on the matter you discuss here; hopefully, both sides of the aisle could partition off topics which would be off limits: namely, I would advise against incorporating in US congressional debate and hearings the inflammatory issue of the international court in The Hague. Furthermore, while you cite military rulebook regulations, Field Manual and UCMJ, it would be worthwhile assessing the precise condition of those two documents and incorporating the outcome of that review in a revisit to the theme of your article; which is to say, it is my understanding, perhaps imprecise, that both documents have undergone revision and some operations are guided by various drafts not yet finalized. Part of the reason Congress would be the appropriate venue for investigation of your post's theme, aside from the reported practices' putative anomalousness, would be providing an occasion for Congress to ponder publicly if there is a pattern, as many legal observers are suggesting in examining other executive innovations since the commencement of the ongoing peculiar conflict with non-nationally identified foes in the loose aggregate of terrorist movements; as I doubt many of these extraordinary alterations in regulations and practices by the US would have increased absent the terrorism and response by our military and our congress and the executive and its agencies.
Is what the army is doing now different or worse than what the CIA (& army?) did in SE Asia 30-40 years ago? I'm thinking specifically here of Operation Phoenix. I am not sure exactly why I am asking, I think to try to understand if our behavior is worse than it was then, or if perhaps we have made some progress since then; the scale seems less than it was then, and more people are aware of it more quickly than back then.
Experience, both American and other countries' suggests that these tactics are inevitable when fighting guerillas (i.e. counter-insurgency). The lesson may be that we should be very wary of counter-insurgency, and recognize what is almost certainly bound to develop once we get involved in such wars.
I'm very disturbed and worried aout the behavior at this detention facility. However, I'm very unconvinced that the parts of the Geneva code you cite are relevant. After all these are not uniformed members of an opposing milatary group, nor even would they count as spies. Also it is unclear if we even count as an occupying power anymore given we are there with some level of consent from the Iraqi government.
Besides in general I think all this invocation of the Geneva convention is a bad idea. The Geneva convention is a very narrow sort of protection designed to provide some standards of treatment for particular sorts of situations. Trying to stretch the convention to cover unclear cases makes it easier to defend such treatment simply by arguing it doesn't violate the Geneva convention and avoid the real question of moral justificaiton.