World>Terrorism & Security
posted May 17, 2004, updated 12:00 p.m.

Military lawyers advised Pentagon two years ago to protect prisoners

But JAGs say Pentagon political appointees had a harsher agenda.

by Tom Regan | csmonitor.com

ABC News reports that lawyers from the military's Judge Advocate General's Corps, or JAG, had been advising the Pentagon for two years before the Iraqi prisoner abuse scandal at Abu Ghraib prison to ensure protection for prisoners. But the military lawyers say that political appointees in the Defense Department ignored their warnings, thus setting the stage for the abuse scandal that has undermined the US's standing in the Middle East, and much of the rest of the world.

"If we �� 'we' being the uniformed lawyers �� had been listened to, and what we said put into practice, then these abuses would not have occurred," said Rear Admiral Don Guter (ret.), the Navy Judge Advocate General from 2000 to 2002.

ABC quotes several JAG sources as saying that the Pentagon had formed a "Tiger Team" of Army JAG officers after 9/11 to help create rules for military tribunals, but it was soon disbanded and taken over by political appointees. The JAG officers attributed the move to their insistence on greater rights and protections for the prisoners than what the Pentagon's political appointees wanted to give. The JAG officers said in particular they have been "marginalized" by Douglas Feith, undersecretary of defense for policy, and William Haynes II, the Pentagon's general counsel, who has been nominated for a judgeship on the United States Court of Appeals for the Fourth Circuit. Mr. Feith, however, told ABC that there were no tensions with the JAG officers.


05/16/04 Report: Rumsfeld OK'd plan for harsh interrogations 05/14/04 Fighting in Gaza + rising oil prices 05/13/04 Nick Berg: 'Iraqi police thought I was an Israeli spy'

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The military lawyers were so upset, Joe Conason of Salon reported last week, that eight senior JAG officers took the unprecedented step of arranging an off-the-record meeting with Scott Horton, chairman of the New York City bar association's Committee on International Human Rights Law. The meeting, held a little more than a year ago, was not long on details, Mr. Horton told Newsday, but it was soon apparent that the officers were deeply concerned about the movement away from the Geneva Conventions that was being orchestrated inside the Pentagon. The Geneva Conventions are a set of guidelines agreed to by most of the world's nations that sets standards of protections for prisoners of war, and for civilians during times of war.

"They were very specific in saying there is a policy coming from the top creating an atmosphere of legal ambiguity surrounding the interrogation process that serves no legitimate function and carries grave risks," Horton recalls. "They made it very clear they wanted the bar to raise its voice about this."

Fox News reports that with the news about the military lawyers concerns and the allegations in this week's New Yorker about Secretary of Defense Donald Rumsfeld giving the approval for new, harsher techniques to be used during interrogations, the story about Abu Ghraib was broadened and shifted to whether or not the new legal foundations created by the Bush administration opened the door for US troops and military intelligence to use physical coercion and sexual humiliation against Iraqi prisoners. Newsweek reports that after 9/11, President George Bush, Mr. Rumsfeld, and US Attorney General John Ashcroft signed off on a " on a secret system of detention and interrogation" designed to prevent another 9/11.

It was an approach that they adopted to sidestep the historical safeguards of the Geneva Conventions, which protect the rights of detainees and prisoners of war. In doing so, they overrode the objections of Secretary of State Colin Powell and America's top military lawyers��and they left underlings to sweat the details of what actually happened to prisoners in these lawless places. While no one deliberately authorized outright torture, these techniques entailed a systematic softening up of prisoners through isolation, privations, insults, threats and humiliation��methods that the Red Cross concluded were "tantamount to torture."

The White House has long insisted that Taliban and Al Qaeda prisoners are not covered by the Geneva Conventions because they are "enemy combatants," although Mr. Powell and his staff were "horrified" by the suggested changes to prisoners protections and tried without success to negate them. Newsweek reports that the post 9/11 plan signed off on by Mr. Bush gave the CIA permission to set up secret detention facilities outside the US. The White House then negotiated novel "status of forces agreements" with foreign governments for the secret sites. These agreements "gave immunity not merely to US government personnel but also to private contractors."

The situation changed in the summer of 2003, Newsweek reports, when Rumsfeld, desperate to find a way to get more information out of detainees in Iraq, OK'ed the use of the new "interrogation" techniques in Iraq, although the war was clearly covered by the protections of the Geneva Conventions. Rumsfeld allegedly authorized his deputy Stephen Cambone, the under secretary of defense for intelligence, to send Gen. Geoffrey Miller, then commander of the US detention facility at Guantanamo Bay, Cuba to Iraq to implement the "system" he had used to get information from detainees at Gitmo. Mr. Cambone used his assistant, Gen. Gen. William (Jerry) Boykin, to arrange the trip with Gen. Miller. Miller's trip seems to have set in motion the conditions that lead to the abuse at the prison, according to the Newsweek report.

What also seems to be emergingis a more detailed timeline of when allegations of the abuse and torture of prisoners were first reported by the media or other organizations.

In December of 2002 the Washington Post wrote about the use of "stress and duress" techniques on prisoners by US forces. "If you don't violate someone's human rights some of the time, you probably aren't doing your job," one Pentagon official told the Post. Citing eyewitnesses, the paper reported, "captives are often 'softened up' by MPs and US Army Special Forces troops who beat them up." Then in January of 2003, the Economist ran a story that reports had emerged that "American intelligence agents have been torturing terrorist suspects, or engaging in practices pretty close to torture."

If, in their efforts to defeat Al Qaeda, American officials are moving towards a policy of using torture on a systematic basis, or conspiring with other countries to do so by handing over suspects to them for interrogation in the full knowledge that torture will be used, this would be a remarkable and ominous reversal of policy.

Editor and Publisher reports that The Associated Press ran a series of stories in November of 2003 (almost completely ignored by other mainstream media) that quoted several former Iraqi detainees who said they had been tortured while they were in Abu Ghraib. Charles J. Hanley, the AP correspondent who wrote the story, said it didn't have any "traction" with his media colleagues because it didn't come from a government "handout."

He [Hanley] is still amazed that apparently no one else was looking into the allegations, and no major newspaper picked up on his reporting after it appeared. Why? "That's something you'd have to ask editors at major newspapers," he said. "But there does seem to be a very strong prejudice toward investing US official statements with credibility while disregarding statements from almost any other source – and in this current situation, Iraqi sources."

The Associated Press also reported Sunday that some members of Congress were made aware as far back as February that there was a problem at Abu Ghraib. AP says the family of one accused soldier wrote to 14 members of Congress that " something went wrong" involving "mistreatment of POWs" at the prison.

So with all these stories about US interrogations tactics allegedly drifting over into torture, and with specific reports about abuse at Abu Ghraib as far back as November of last year, what was it that made the difference this time? Eric Umansky writes in USA Today that it was the photos.

Maybe not all of the Abu Ghraib photos should be immediately published. There are negative consequences in doing so. But let's not keep fooling ourselves about the positive consequences of disclosure. The photos �� not the details about them �� are what forced us, finally, to pay attention.

Experts are split on the usefulness of "torturing" prisoners for information. Harvard law professor and author Alan M. Dershowitz, who supports the use of torture in some situations, says that while torture should continue, it should be "leaders, not servicemen and women" who decide when to use it.

"If someone asked me to draft the statute, I would say, 'Try buying them off, then use threats, then truth serum, and then if you came to a last recourse, nonlethal pain, a sterilized needle under the nail to produce excruciating pain,' " he said. "You would need a judge signing off on that. By making it open, we wouldn't be able to hide behind the hypocrisy."

But Darius Rejali, an associate professor of political science at Reed College in Portland, Oregon and author of "Torture and Modernity," says his studies show that torture is ineffective as a tool for gathering information. "My position is there is no empirical evidence to suggest that this works, at least in the way that people claim that it does in the war against terrorism," Mr. Rejali says. And in an article for the Seattle Times he says that the " interrogation techniques" learned by US soliders today will not just be used against enemies in the war on terror.

Torture like this doesn't just happen "over there." Torture like this casts a shadow back here for years afterwards. Soldiers trained in stealth torture take these techniques back into civilian life as policemen and private security personnel. It takes years to uncover the subsequent damage. The American style of electric torture in Vietnam appeared in Arkansas prisons in the 1960s and Chicago squad rooms in the 1970s and 1980s. Likewise, the excruciating water tortures American soldiers used for interrogation during the Spanish American War appeared in American policing in the next two decades. For those who suffered from these tortures, it was small comfort that President Theodore Roosevelt felt it was a "mild torture," or that it was hard to see that anyone "was seriously damaged," or that, on Memorial Day 1902, the president regretted the "few acts of cruelty" American troops had performed.

Finally, Secretary of State Colin Powell apologized to Iraqi prisoners Sunday, the day after he told a group of Arab leaders meeting in Jordan that the US would see that those who had perpetrated the abuses at Abu Ghraib would be brought to justice. But he also chastised Arab leaders at that meeting for not expressing more outrage over the recent videotaped beheading of an American civilian in Iraq.