Category Archives: Iraq Atrocities

Phillip Carter, Prisoners' Dilemma – How the administration is obstructing the Supreme Court's terror decisions.

If there is a historical analogy to be drawn here, it is with the legal tactics of segregationists in the years following the Supreme Court's famous 1954 Brown v. Board of Education decision. In its second Brown decision, the U.S. Supreme Court ordered the segregated school districts to integrate themselves “with all deliberate speed.” Segregationists took that message to heart, literally taking decades to integrate their schools (a task which some say has still not been accomplished). Segregationists used every legal tactic imaginable to delay the progress of integration—from filibusters in the Senate on civil rights legislation, to crazy school districting schemes, to literally standing in the schoolhouse door of Central High School in Little Rock, Ark. Eventually, the legal principle of equality won, and segregation faded into the history books, but it took a protracted fight to make the Supreme Court's Brown decision a reality.

The issue here is not so much the detainees' rights per se (although the detainees might say otherwise) as the need to restore the U.S. commitment to the rule of law in the eyes of the world. To date, the United States has not been able to enlist many of its allies to help shoulder the burden of Iraq, and Sen. John Kerry is unlikely to do much better given the current state of animus toward the U.S. in the world. Treating the wartime detainees fairly by giving them a fair hearing before a neutral magistrate (as ordered by the Supreme Court) would go a long way toward rebuilding bridges with our allies abroad. American moral leadership on these issues will also help win hearts and minds in Iraq, where the parallels between the Abu Ghraib abuses by U.S. soldiers and Saddam Hussein's henchmen are all too easy to draw. But none of that will happen if the United States continues to drag its feet, kicking and screaming at every step of the way. Indeed, if the fight to implement Rasul takes as long as the fight for equality after Brown, then many of the detainees at Gitmo could die in captivity before they see their rights vindicated.

Oh, just read it.

Sadly No! posts the text of an email from from John Heacock, “who served for nearly a year in Iraq with the 267th MP Company from the Tennessee National Guard.” It has very credible-sounding details about the treatment of under-18 detainees in Iraq.

The writer blames the mistreatment of detainees on three causes:

1) soldiers asked to be guards without proper training responding to their own fear by trying to be as intimdating to prisoners as possible;

2) bureaucratic failure: no one made any decent plans to cope with a number of forseeable contingencies, e.g. child prisoners; and

3) what I see as plain bad faith on the part of ranking officers (see the end of this paragraph):

The problems with the treatment of the kids at Camp Bucca was about the same as the flaws with the other prisoners: lack of a policy regarding standards of guilt or length of imprisonment, bureaucratic indifference, laziness of those of high rank whose job it was to process prisoners, scarce resources, and conflicting guidance from above. Consequently, we had hundreds if not thousands of prisoners that we didn't know why they were being held, who would never be convicted of a crime under any civilized standard of proof, and who spent more time awaiting a hearing than they would have been held in prison if convicted. A typical example: men held for months for stealing gasoline or butting in lines, when their sentence would have been 2 weeks or 30 days. I once asked the sole JAG attorney (a 1st Lt., BTW, the lowest rank for JAG) why we weren't following the Geneva Convention rules about hearings and length of incarceration, and he expressed shock; when I told him he could go to either the main camp or Iraqitraz [the nickname for the high-threat detention area], to see the shortcomings for himself, he told me that the camp commander wouldn't let him into either site. It's hard to do your job ensuring that the military follows its rules when you can't even see what's going on.

Seymour Hersh says the US government has videotapes of boys being sodomized at Abu Ghraib prison in Iraq.

“The worst is the soundtrack of the boys shrieking,” the reporter told an ACLU convention last week. Hersh says there was “a massive amount of criminal wrongdoing that was covered up at the highest command out there, and higher.”

See Ed Cone for pointers to more grisly stuff.

Of course, none of this in any way should be laid at the feet of our leaders, who consistently deplore torture in all forms. Indeed, the very concept of command responsibility, and especially 'buck stops here' theories of the Presidency, are anachronistic thinking ill-suited to the realities of modern governance in large organizations.

Where once we aspired to leadership of virtue, now we must learn to enjoy Virtual Leadership.

Adrian Vermeule and Eric Posner, both respected law scholars at U. Chicago, penned an op-ed last week [now suddenly offline, only available via google cache] in which they argued that the torture memos were in fact quality lawyering, a view endorsed by the pseudonymous member of the Volokh conspiracy (who often writes as if s/he were a government lawyer).

There are a lot of things I find disturbing about this view. First, if the Torture Memo author(s) (mostly John Yoo) were asked to survey the field and opine on the best answer, they clearly failed. They did not even let on there was another side to the Presidential power question, much less that the majority of the Supreme Court had endorsed it, and most likely would again endorse it.

The Chicago profs counter this argument by saying that the OLC engaged in “standard lawyerly fare, routine stuff”. And,

Although it is true that they did not, in their memorandum, tell their political superiors that torture was immoral or foolish or politically unwise, they were not asked for moral or political advice; they were asked about the legal limits on interrogation. They provided reasonable legal advice and no more, trusting that their political superiors would make the right call. Legal ethics classes will debate for years to come whether Justice's lawyers had a moral duty to provide moral advice (which would surely have been ignored) or to resign in protest.

Wrong. This isn't a close call at all. To the extent that they lawyers may have been told they had to justify as much torture as could be squared with the law, they again failed on two grounds. First, their arguments as to specific intent, at least, were (I have it on good authority) specious. Second, if tasked with justifiying a given and evil conclusion, they should have found somewhere to mention that torture would be wrong. The failure to do so, as Jack Balkin noted some time ago, makes the entire argument one of those documents that makes you ashamed to be a lawyer.

Indeed, Balkin again has useful things to say about this op-ed, focusing on the claim that in the Torture Memo the OLC was just doing what it usually does, asserting a strong view of Presidential power.

Both Posner and Vermeule (and yes for that matter John Yoo also) have written scholarly papers that I respect. But there's something worryingly wrong here when smart lawyers endorse the view that a lawyer is a machine, and can or should turn off his moral compasses, justifying it by saying he is just following the client's orders, or meeting his expectations, or that saying “this would be wrong” is a futile gesture. This is never more true when they are government lawyers with an independent oath and obligation to the American people and to the Constitution.

Fafblog—evidence for the hypothesis that the nation's mental ecosystem has powerful waffle-based antibodies against evil:

“But Fafnir I do not want to read about torture” you say because you are a lazy whining person. “I want to read about gumdrops an rainbows and Presidents who are made of gumdrops an rainbows an use them to blow up the terrorists.”

No you should really read it it is a very important issue now go or I will have Giblets hit you with the waffle again.

“Blah blah blah torture, blah blah blah human rights. I like watchin things blow up on television, it gives me a feelin of comfy security, readin about human rights violations makes me feel bad.”

That does it, Im tellin Giblets to go get the waffle! He's gettin the waffle now!

“Okay Fafnir I will do whatever you say just so long as Giblets an the waffle are not involved!”

It's so easy to kind of sweep it all under your brain an think “Well theres nothin more to be said an nothin more to think about it” cause let's face it nobody wants to think about their government participating in horror. An right now the level of torture talk has gone from “Torture: Bad!” to “Torture: Bad, But Not As Bad As Saddam Hussein” to “Torture: Bad, But What About Ticking Bombs?” to “Torture: Bad, But Not Necessarily Proof That The People Who Ordered Torture Are Bad” to “Torture: We Still Talkin Bout Torture?” to “Torture: Bad?” An before we get to “Torture: Sorta Like Mowin Your Lawn” I think we should try as hard as we can to wake up.

A reader sent me something interesting: It seems that just before the July 4th holidays, everyone at Andrews Air Force Base — including the local contingent of the Air National Guard — was sent a power point file of talking points about the Iraq War and the Abu Ghraib scandal produced by the Office of the Assistant Secretary Of Defense for Legislative Affairs.

The two-pager includes some information about what the public can do to support the troops, but the main thrust of it is how important intelligence is to the war effort…

The United States is at war. In the Global War on Terror, the most important weapon in our arsenal is intelligence. Because of the intelligence gathered from interrogations we have thwarted enemy attacks and saved American lives.

… how important interrogations are to intelligence…

• Intelligence gathered from detainee interrogations contribute to Coalition success in the Global War on Terror.
• Interrogations played a key role in the capture of Saddam Hussein.
• Interrogations are critical to determining how foreign fighters get into Fallujah and Ar Ramadi.
• Interrogations are critical to discovering improvised explosive devices targeted at Coalition force

… and how much the Bush administration wanted and wants everything to be humane…

• The President directed in February 2002 that all persons in U.S. custody are to be treated humanely. This decision was made by the President and it is in accordance with all applicable national and international laws.
  • The so-called “torture memo” was a speculative work that explored the limits of detainee treatment under U.S. and international law. It was not a policy recommendation.
    DoD policy requires that all interrogation practices be humane.

Of course anything to the contrary is just bad apples:

• The actions of the soldiers in the Abu Graib photographs were perpetrated by a small number of U.S. military, they were also brought to light by the honorable and responsible actions of other military personnel.
• Eight Iraq-related detention lines of inquiry have been ordered by DoD.
• At least seven soldiers now face or may soon face criminal charges. Three of them have been preferred for court martial
  • Charges include dereliction of duty, conspiracy to maltreat subordinates, maltreatment of subordinates, indecent acts, and battery.

  • Additionally, two noncommissioned officers were charged with aggravated assault.

• Since the onset of the war in Iraq, the United States government has recognized and made clear that the Geneva Convention applies to our activities in Iraq. General Sanchez has instructed the forces under his command of that obligation.
• Orders placing Abu Ghraib under the tactical control of the 205th Military Intelligence Brigade in no way changed the rules governing the conduct of the military police and military intelligence personnel in Iraq with respect to the laws of war or the Geneva Convention.
• Contractors at the prison were primarily used for translation, interpretation, and interrogation purposes. Felony criminal sanctions for any crimes a defense contractor may commit are available under U.S. Federal law.

Repeat, we are NOT guilty of torture:

• Development and approval of interrogation techniques were done in a deliberate manner with strict legal and policy review to ensure the protection of detainees, our institutions and our troops responsible for carrying out those operations.
• Throughout this conflict the procedures have been constantly reviewed and modified when deemed necessary and appropriate.
• The implication that the United States government has, in one way or another, ordered, permitted, or tolerated torture is simply not true.
• Individuals who have abused the trust and confidence placed in them, regardless of rank or position, will be held accountable

Leaving aside the question of why the Pentagon uses Powerpoint for two pages of crowded three-column text, one might ask why the troops are getting this message, and why just before a weekend in which many of them would either be going home or having other July 4th related contact with the public.

In normal times, one might look at this document, complete with the centered and inset quote from a Bush Presidential directive, and say that it’s just normal to give the troops information about issues that would obviously be of concern to them. (Although in fact I have no idea how common this is — not very, I’d imagine?) It’s surely a sign of the times that at least some of the recipients saw it as a clumsy way to prime the recipients with pro-administration propaganda.

Read it for yourself and decide. In case the original powerpoint doesn’t work, I’ve converted it to a much larger .pdf version, but it may be harder to read.