Friday, April 28, 2006
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."
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)
If you think this is relevant, my post Classified Information has links.
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.Post a Comment
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.