As a comprehensive study just published by Human Rights First reveals, a year since Gonzales' statement, no meaningful insistence on accountability has been discernable from either the Gonzales Justice Department or the Rumsfeld Defense Department. It has been left to human rights organizations to piece together the alarming history of the CIA and U.S. Army's illegal descent into torture and the failure to apply bedrock principles of command accountability.
The Human Rights First report, "Command's Responsibility," shocks the conscience, and should long ago have triggered either determined congressional oversight hearings or, better yet, establishment of an independent, bipartisan commission to look at the full scope of serious violations of federal and international law that Gonzales and Defense Secretary Donald Rumsfeld have permitted to go unpunished.
At a minimum, Sen. Orrin Hatch might consider using his authority on the Senate Intelligence Committee to look into the CIA's role in many of these cases - a role even the Pentagon says has been overlooked in all of its investigations.
Although Abu Ghraib triggered several investigations, their common thread has been limited scope, lack of authority to follow the evidence wherever it might lead, and no prosecutorial mandate. It can fairly be argued that the object of these investigations was to shift the focus away from senior officers and civilians in the military chain of command. Retired Army Col. Lawrence Wilkerson, who was Secretary of State Colin Powell's chief of staff, put it bluntly: "The military has thwarted investigation every step of the way . . . Vice Admiral Albert Church [who led one such investigation] more or less stonewalled me. Others stonewalled me. There's been an awful lot of coverup."
The latest findings only underscore the widespread scope of the problem, and the widespread failure to hold leadership to account. Well beyond the actions of a few bad apples, the treatment of prisoners, inside the interrogation booth and out, was a problem far beyond Abu Ghraib.
Indeed, of the 98 deaths documented in "Command's Responsibility," more than two-thirds were in U.S. custody in places other than Abu Ghraib. Four years since the first known death, only 12 detainee deaths have resulted in punishment of any kind for any U.S. official. For the torture-related deaths - cases where people were suffocated, beaten to death, or, as in at least one case, effectively crucified - the highest sentence anyone has received is five months in jail. Critically, no officer above the rank of major has been charged in any detainee death.
The system of military justice is supposed to reflect and give force to America's values, even in wartime. The uninvestigated, unpunished homicides committed by U.S. personnel against prisoners says a good deal about what has changed in today's military. It suggests that a new "anything goes" ethic has replaced the older, morally driven, Army "values" ethic. In the new ethic, the constraints of law can be set aside whenever expediency or whim demand. Because there is no top-driven command accountability for senior officers, there are no operational boundaries at the bottom of the chain of command. Even if you get caught, if you have enough rank, it won't matter.
The starkest illumination of this corrosive new Army ethic was stated this past week by former Army interrogator Anthony Lagouranis: "Maj. Gen. Geoffrey Miller [who 'took the gloves off' at Guantanamo Bay] has denied recommending the use of guard dogs to intimidate prisoners during interrogations in Iraq. He also recently said he would not testify in the courts-martial [of two Army dog handlers], invoking his right to avoid self-incrimination. As someone who voluntarily spoke at length about my actions in Iraq to investigators, without a lawyer present, I can't have a favorable opinion of General Miller. By 'taking the Fifth,' he's decided to protect himself, apparently happy to let two dog handlers take the fall - a stunning betrayal of his subordinates and Army values."
The Nuremburg legacy this nation bequeathed to the world after the Second World War is unyielding: As a matter of law, senior commanders and political leaders are personally accountable for the conduct of their subordinates where it involves war crimes or for failing to control the troops under their command. When we send troops into the field with unclear or unlawful guidance, as was evidently done repeatedly in Afghanistan and Iraq, we not only compromise that principle, we also compromise the ability of our Armed Forces to accomplish the mission they've been given.
And latest indications from Washington are that as the Bush administration reviews new revisions to the U.S. Army Field Manual on interrogation, we may be poised to make the same mistakes again. The rules should be clear, and they should follow U.S. law. The troops we've sent to the front lines, and the country we all work to defend, deserve this much at least.
"Command's Responsibility" can be read in its entirety at http://www.humanrightsfirst .org.
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Brig. Gen. David R. Irvine, (Ret.), is a former Army Reserve strategic intelligence officer who taught prisoner interrogation and military law for 18 years with the Sixth Army Intelligence School. He currently practices law in Salt Lake City. Deborah Pearlstein is director of the U.S. Law and Security Program at Human Rights First, and a visiting scholar at the Woodrow Wilson School for Public and International Affairs at Princeton University.
