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
Army Confirms: Rumsfeld Authorized Criminal Conduct
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?
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.
They seem to rely on a paraphrase of a couple of sentences in Dept. of Navy v. Egan but ignore contradictory language a bit later in that same Part.
"[U]nless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs." (emphasis added)
I have considerable military law experience. To put this issue in an analogous context, consider "transactional" immunity. While the UCMJ generally does not apply to civilians [see 10 USC 802], a limited number have the authority to convene a court-martial, e.g., the President and Secretary of Defense.
Don Rehkopf Co-Chair, Military Law Committee National Association of Criminal Defense Lawyers
Contrary to popular belief, and the protestations of their spokespeople, the UCMJ is not a system of "justice." Rather, it is a system of discipline where if triggered, the UCMJ is intended to provide some semblance of "justice." Hence, the Administration's argument that the UCMJ does not apply to the GTMO military "commissions."
Here, under their Supreme, all-powerful Commander-in-Chief concept, the President and SecDef can "withhold" jurisdiction from senior Military Commanders, to even convene a court-martial, assuming that they did.
Since the President controls the DoJ, what US Attorney is going to seek an Indictment under the federal torture statute in Title 28?
The text of Art. 93 [10 USC 893] reads in full: "Any 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 key phrase here is the last clause, "as a court-martial may direct." If a higher HQ withholds the jurisdiction to convene a particular court-martial, that is the functional equivalent of transactional immunity.
But, to understand the charges against LtCol Jordan, you have to put them in perspective. His two immediate supperiors, a Colonel and Brigadier General were both punished administratively - there is little doubt in my mind, that LtCol Jordan would have met the same "justice." But, if you look at his Charge Sheet, he committed a far greater "disciplinary" breach, when he: (1) violated the direct orders of two different 2 Star Generals; (2) twice "failed to obey a lawful [note this] general order, to wit: paragraph 3, CJTF [Combined Joint Task Force] Interrogation and Counter-Resistance Policy . . . [now that would be a good read!!]by wrongfully failing to obtain the permission to . . . [use] military working dogs;" [It is clear that the "approval authority" was LtGen [3-Star] Sanchez]; (3) two specifications of making a false OFFICIAL statement [a real "no-no" for an officer]; (4) submitted two false claims; and (5) two specifications of obstructing justice.
LtGen Sanchez will certainly lawyer-up and demand immunity before testifying. If the Army does not grant immunity, he'll invoke his rights as did MajGen Miller, and those charges won't be able to be tried.
The Charge Sheet is clearly designed to induce a plea-bargain which could avoid the "cruelty" specifications. Proving the "cruelty" charges is going to be a nightmare, as the following definitions apply:
"(“Subject to the orders of” includes persons under the direct or immediate command of the accused and all persons who by reason of some duty are required to obey the lawful orders of the accused, even if those persons are not in the accused’s direct chain of command.) (“Cruel”) (“oppressed”) (and) (“maltreated”) refer(s) to unwarranted, harmful, abusive, rough, or other unjustifiable treatment which, under all the circumstances: (a) results in physical or mental pain or suffering, and (b) is unwarranted, unjustified and unnecessary for any lawful purpose."
Unless the Army can clearly show that the abused prisoners were POWs at the time of the abuse [a novel concept under the Administration's guideline's and interpretations of the Geneva Conventions...], Jordan's defense counsel will make them prove that they were under "his command" as the prisoner's clearly had no duty to obey him otherwise.
The CJTF "Interrogation" policy document is dated October 12, 2003 - long after the DoD's "Working Group" document was secretly implemented and long after SecDef himself had "approved" the techniques - as ok'd by the DoD's General Counsel, Mr. Haynes. So, who is Jordan's Defense Counsel going to subpoena? We know MajGen Miller was briefed on the techniques prior to this, and he's already invoked his right to remain silent.
From a defense counsel's perspective, getting out the evidence that the DoD General Counsel, as well as the now US Attorney General viewed the techniques as lawful, will create a reasonable doubt under the "maltreatment" specifications, because he's entitled to rely on those interpretations - not the "superior orders" defense, but to rebut the prosecution's requirement to prove that his conduct was NOT "for any lawful purpose."
What is, in my opinion most significant about this case is not that he was charged - the "disciplinary" violations - violating direct orders, violating a written order/policy, false official statements and obstructing justice charges, were virtual guarantees that he was going to be prosecuted by the military.
As anyone who has followed this saga/tragedy knows, the JAG Generals wanted POW status early on and wanted nothing to do with these "interrogation" techniques, but were overruled by the Gonzalez/Ashcroft/Haynes cabal. They could not preclude the Army from charging LtCol Jordan, but they can make the successful prosecution impossible.
So, the key is going to be two things: (1) enforcement of Defense subpoenas; and (2) immunity for the higher ranking personnel.