Army Confirms: Rumsfeld Authorized Criminal Conduct

Marty Lederman

Today the Army filed criminal charges against Lt. Col Steven L. Jordan, a military intelligence officer who was second-in-command of interrogation operations at Abu Ghraib prison in Iraq. Charge III of the Army's Charge Sheet accuses Jordan of "cruelty and maltreatment," based on the allegation that he subjected Iraqi detainees subject to his orders "to forced nudity and intimidation by military working dogs."

This is a charge under Article 93 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 893, which provides that "[a]ny person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct."

The Army's charges against Jordan reflect the view, undoubtedly correct, that the use of forced nudity or intimidation with dogs against detainees subject to military control constitutes cruelty and maltreatment that Article 93 makes criminal. It doesn't matter whether they are or are not "torture," as such; nor does it matter whether the armed forces should be permitted to use such interrogation techniques: As things currently stand, they are unlawful, as even the Army now acknowledges.

But then how can we account for the actions of the Secretary of Defense and his close aides?

On November 27, 2002, Pentagon General Counsel William Haynes, following discussions with Deputy Secretary Wolfowitz, General Myers, and Doug Feith, informed the Secretary of Defense that forced nudity and the use of the fear of dogs to induce stress were lawful techniques, and he recommended that they be approved for use at Guantanamo. (The lists of techniques to which Haynes was referring can be found in this memorandum.) On December 2, 2002, Secretary Rumsfeld approved those techniques for use at Guantanamo -- and subsequently those techniques were used on detainee Mohammed al-Qahtani.

In other words, the Secretary of Defense authorized criminal conduct.

Shortly thereafter, the military JAGs and Navy General Counsel Alberto Mora raised concerns about the legality of the proposed techniques, which led to the formation of the DoD Working Group. The final DoD Working Group Report, secretly issued on April 4, 2003, noted the UCMJ prohibitions on cruelty and maltreatment, but nevertheless recommended that Rumsfeld approve the use of forced nudity and the use of dogs to induce stress, among other techniques.

As Jane Mayer has explained, members of the Working Group itself (including Mora), in whose name the Report was drafted, were never informed that it was finalized and issued on April 4, 2003. But the Pentagon did brief Major general Geoffrey Miller on the Report before he was assigned to Iraq -- and coincidentally enough, forced nudity and use of dogs to induce stress became common interrogation techniques in Iraq after Miller arrived there.

Today's Army charge under UCMJ Article 93 against Lt. Col. Jordan -- for conduct that the SecDef actually authorized as to some detainees -- demonstrates that Rumsfeld approved of, and encouraged, violations of the criminal law. (The UCMJ only applies to the Armed Forces themselves, and my understanding is that it therefore does not apply to civilian leaders such as the SecDef. I don't know offhand whether Rumsfeld's approval of criminal conduct by the uniformed forces is itself unlawful under some other source of law. Can anyone tell me whether there's any sort of military-law doctrine by which a civilian leader may authorize uniformed officers to violate the UCMJ?)

If the conduct at issue is so clearly unlawful, why did Haynes and Rumsfeld think that it could be approved? The answer to this question lies, I think, in the final DoD Working Group Report of April 4, 2003, which acknowledges that assault, cruelty, and maltreatment are offenses under the UCMJ, but which ominously adds, in a subsection heading, that there are "legal doctrines [that] could render specific conduct, otherwise criminal, not unlawful." The text refers to a "discussion of Commander-in-Chief authority, supra." And that earlier discussion of the Commander-in-Chief authority in turn concludes:

"In order to respect the President's inherent constitutional authority to manage a military campaign, 18 U.S.C. 2340A (the prohibition against torture) as well as any other potentially applicable statute must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority. Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war."

This analysis, which many in the Working Group opposed, came directly from a memo written by Deputy Assistant Attorney General John Yoo for Department of Defense General Counsel Haynes, dated March 14, 2003, and which was presented to the Working Group as "controlling authority" because it came from OLC. (Does the analysis sound familiar? It should.)

As I've previously written, this is the key to the puzzle: The Pentagon understood that federal criminal law -- particularly the UCMJ -- stood in the way of what it wished to do, and rendered unlawful what it already had done in the case of al-Qahtani. It had in its back pocket, however, the legal immunity conferred by the Department of Justice's authoritative legal opinion that the President has the absolute authority, pursuant to his Commander-in-Chief power, to determine "what methods to use to best prevail against the enemy," notwithstanding any statutory restrictions that Congress may have imposed.

It will be interesting to see to what extent Rumsfeld's approval becomes an issue in Jordan's military trial.
Posted 11:11 PM by Marty Lederman [link]