The news that yet another Army private, Lynndie England, 22, of Fort Ashby, W. Va., has been convicted and sentenced for posing for the infamous photos of torture at Abu Ghraib, while her superiors duck responsibility, is a sad commentary on the degenerating ethos of the U.S. Army.
The reminder of the photos of those inexcusable activities was sickening enough and England deserves to be punished. But I am of the old-Army school where officers took responsibility for the actions of those under their command. It is no less than scandalous how the Army brass and its civilian leadership, who are demonstrably responsible for the torture, continue to dance away from taking responsibility.
They chose, instead, to stone the woman, like the hypocrites of Bible fame, contending that the photos inflamed the insurgency in Iraq. It is the torture, not the photos, that has inflamed the insurgency. And responsibility for the torture reaches directly up the chain of command to the commander in chief himself. Perhaps when even more repulsive photos and videos of torture at Abu Ghraib are released, as federal judge Alvin Hellerstein ordered yesterday, the American people finally will be jarred awake.
So far, the silent acquiescence with which Americans have greeted President George W. Bush’s open assertion of a right to torture some prisoners evokes memories of the unconscionable behavior of "obedient Germans" of the 1930s and early 1940s. Thankfully, despite the hate whipped up by administration propagandists against people branded "terrorists," polling conducted last year showed that most Americans reject torturing prisoners. Almost two-thirds held that torture is never acceptable.
Yet few speak out, perhaps because President Bush says he too, is against torture, and our domesticated media have successfully hidden from most of us the fact that the president has added a highly significant qualification. On February 7, 2002, the president issued an order instructing our armed forces "to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva" (emphasis added). In the preceding paragraph, the president determined that Taliban and al-Qaeda detainees "do not qualify as prisoners of war." Never mind that there is no provision in the Geneva Conventions for such a unilateral determination.
In taking this position, Bush had to overrule then-Secretary of State Colin Powell, the only one of his senior advisers with experience in combat. On January 26, 2002, Powell sent to then-White House counsel Alberto Gonzales formal comments on the latter’s memorandum for the president, the subject of which was "Decision Re Application Of The Geneva Convention On Prisoners Of War To The Conflict With al-Qaeda And The Taliban.”
This is the Mafia-like memorandum in which Gonzales not only branded some Geneva provisions "quaint" and "obsolete," but also reassured the president that he could probably escape domestic criminal prosecution for violating the U.S. War Crimes Act of 1996 (18 U.S.C. 2441), as well. Here is what Gonzales tells the president on this key point:
"…it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution."
Meanwhile, back at the State Department, Powell apparently thought the memorandum was still in draft. But Gonzales, who knew what the president wanted, did not wait for Powell’s formal comments. Rather, on January 25, Gonzales sent his final draft to the president, thereby shielding him from dissonance like Powell’s written observation that exempting detainees from Geneva protections "will reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the law of war for our troops."
Gonzales was already aware of Powell’s opposition, and in his own memo, the former White House counsel and now attorney general was dismissive of Powell’s request that the president reconsider the argument that al-Qaeda and Taliban detainees are not prisoners of war under Geneva. In a short paragraph tacked onto the bottom of a list of "negatives," Gonzales took brief note of Powell’s objections. Gonzales" paragraph speaks volumes in the light of subsequent abuses in Abu Ghraib, Afghanistan and Guantánamo :
"A determination that the GPW [Geneva Convention on Prisoners of War] does not apply to al-Qaeda and the Taliban could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries."
Last week, more than a dozen high-ranking military officers sent a letter to President Bush, pointing out that "It is now apparent that the abuse of prisoners in Abu Ghraib, Guantánamo and elsewhere took place in part because our men and women in uniform were given ambiguous instructions, which in some cases authorized treatment that went beyond what was allowed by the Army Field Manual."
A pity that Colin Powell limited himself to writing memos to the president"s lawyer.
The photos from Abu Ghraib and the more recent Human Rights Watch report describing "routine" torture by the once highly professional 82nd Airborne Division offer graphic evidence that Powell’s misgivings were well-founded. The report relies heavily on the testimony of a West Point graduate, an Army captain who has had the courage to speak out after 17 months of trying in vain to go through Army channels.
Human Rights Watch Director Tom Malinowski has noted, "The administration demanded that soldiers extract information from detainees without telling them what was allowed and what was forbidden. Yet when the abuses inevitably followed, the leadership blamed the soldiers in the field instead of taking responsibility." A Pentagon spokesman has dismissed the report as "another predictable report by an organization trying to advance an agenda through the use of distortion and errors of fact." Judge for yourselves; the report can be found here. It’s grim but required reading.
Pictures Worth A Thousand Words
After seeing the photos from Abu Ghraib last year, Senate Armed Forces Committee Chairman John Warner of Virginia took a strong rhetorical stand against torture. But then he quickly succumbed to White House pressure to postpone Senate hearings on the subject until after the November 2004 election.
More recently, Warner joined two other Republican senators, John McCain and Lindsey Graham, in attempts to introduce amendments against torture to the defense authorization bill. The amendments would require that U.S. forces revert to the standards set forth in Army Field Manual (FM 34-52) for interrogating detainees held by the Defense Department. The manual prohibits the use of torture and cruel, inhuman and degrading treatment. Another amendment discussed would require that all foreign nationals "be registered with the International Committee of the Red Cross." This would prohibit sequestering unregistered "ghost detainees" at prisons like Abu Ghraib and secret CIA interrogation centers.
Inured as I thought I had become to outrageous behavior at the top of the Bush administration, I found its reaction shocking. On the evening of July 21, Vice President Dick Cheney went to Capitol Hill to dissuade the three senators from proceeding with the amendments. But the senators have not been cowed"not yet, at least. Four days later on the floor of the Senate, John McCain who knows something of torture made a poignant appeal to his colleagues to hold our country to humane standards in treating captives, "no matter how evil or terrible" they may be. "This is not about who they are. This is about who we are," said McCain.
The following day, Senate Majority Leader Bill Frist pulled the Pentagon spending bill off the floor, sparing Bush the political risk of vetoing the much-needed defense authorization bill simply because it included amendments requiring the protections for detainees required by U.S. criminal statute and international law.
It will be interesting to see if, in the end, the senators cave in to White House pressure. For if they do, they will be providing yet another congressional nihil obstat for the general approach so succinctly voiced by the president to then-terrorism czar Richard Clarke and Defense Secretary Rumsfeld in the White House on the evening of 9/11. According to Clarke, the president yelled, "I don"t care what the international lawyers say, we are going to kick some ass.”