Tortured Times for America’s Global Standing
BY DAVID R. IRVINE
Not far from Stratford, on the river Avon, stands Warwick Castle. This thousand year-old relic is one of Britain’s premier historical attractions. The dungeons and torture chamber, with the rack and press, the thumbscrews and iron maiden, are popular tour stops as visitors ponder the dark barbarity of the age of chivalry. It seems unreal, like a movie set, and the first thought that comes to mind is how horribly those devices could cause unspeakable pain. The next thought, however, is: what kind of people could make use of those cruel instruments of torture, whether to actually inflict it or order it done?
Who would make a good torturer? Sweep your eyes over the theater audience at the next movie or play you attend. If statistical averages hold true, about two-thirds of your seatmates would be willing to shock you with electricity even beyond your passing out, if they were told to “push the button” by someone who appeared to be an authority figure and who assumed responsibility for the consequences. As Dr. Stanley Millgram’s obedience experiments show, average people are capable of terrible things. This is particularly true in war, which is why armies need disciplined leadership.
There have been many mistakes about and in Iraq; but none, beyond the decision to invade in the first place, has had a more damaging effect upon the nation’s international leadership than the widespread abuse of prisoners in our custody. The problem is far bigger than “a few bad apples.” The Army has opened more than 500 inquiries into allegations of prisoner abuse, but the cases have too much political amperage for the military justice system to equitably function. In its shocking report, Command’s Responsibility, Human Rights First analyzed 98 detainee deaths in U.S. custody and found that more than two thirds occurred in places other than Abu Ghraib. Four years since the first such death, only twelve 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 one instance, effectively crucified—the most severe sentence imposed is five months in jail. Critically, no officer above the rank of major has been charged in connection with any detainee’s death.
One of the most serious cases dealt with the torture killing of Iraqi Maj. Gen. Abed Hamed Mowhoush in late 2003. In January 2006, a court-martial convicted CW3 Lewis Welshofer, a married father of three children, of negligent homicide and negligent dereliction of duty. His sentence: a letter of reprimand, two months’ confinement to base, and forfeiture of $6,000 in pay. Prior to his death, the prisoner was beaten so brutally with a rubber hose, sledge hammer handles, fists, and kicks by U.S. personnel and their CIA-sponsored Iraqis (as Welshofer, who was in charge of the interrogation, looked on), that Mowhoush had seven broken ribs, 47 contusions, and could not walk unaided. During a subsequent interrogation, a dirty sleeping bag was pulled over his head and down to his feet; he was tied tightly inside the bag with electrical cord, and Welshofer sat on his chest. Throughout the interrogation, Welshofer repeatedly pressed his hand down on the general’s mouth (covered by the sleeping bag), for up to 15 seconds. After 20 minutes, General Mowhoush suffocated to death.
Welshofer claimed that he was justified in using illegal techniques because the Army Field Manual on Intelligence Interrogations, which explicitly prohibits the use of “force, mental torture, threats, insults, or exposure to unpleasant or inhumane treatment of any kind,” is “outmoded, unrealistic, and ineffectual against enemies who are not industrialized and Christian.”
The claim that torture and other serious abuse was not pervasive in Iraq is no longer credible. It was rampant in several different chains of command because too many senior officers, including some wearing stars, winked at it and placed career considerations ahead of command discipline and the law of war. The leaders at the top hung the junior military personnel out to dry. Welshofer was operating without much, if any, supervision. The captain who was responsible for evaluating his performance worked in a different area and never monitored an interrogation. The company commander, Maj. Jessica Voss, was seldom seen and failed to deal decisively with Welshofer’s face-smacking of detainees. The regimental deputy commander, a lieutenant colonel, testified that Welshofer was a fine soldier, but he had never watched an interrogation. Colonel David Teeples, the regimental commander, testified that Welshofer was the regiment’s “subject matter expert” about interrogation, but the single interrogation he ever witnessed was a quiet interview across a table. No one in Welshofer’s chain of command would admit to having any idea that torture was going on under their noses. However, every commissioned officer is thoroughly familiar with this Army rule of leadership: the commander is responsible for all his unit does or fails to do. The second such rule is: the unit does what the commander checks. Running the boat aground is a career-ending accident for Navy submarine commanders, no matter who is driving. At the very least, Welshofer’s chain of command was casually indifferent to whether the Geneva Conventions—part of the law of war—were followed.
That no senior officers have been as severely dealt with as junior enlisted personnel is a travesty. Chief Warrant Officer Welshofer received the merest tap on the wrist for negligent homicide; Major Voss was given immunity from prosecution. Colonel Teeples has a new job as the Executive Assistant to the Chairman of the Joint Chiefs of Staff. Three junior enlisted soldiers, convicted for their roles at Abu Ghraib, were imprisoned for ten, eight, and three years—and they didn’t kill anyone. Sgt. Kevin Myricks, convicted of punching detainees in Afghanistan, was recently sentenced to six months’ confinement and reduced in rank to private.
The military justice system is supposed to reflect and give force to America’s values, especially in wartime. The uninvestigated, unpunished homicides committed by U.S. personnel against prisoners 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. There are no operational boundaries at the bottom of the command chain because there is no top-driven command accountability for senior officers; if you have enough rank, it won’t matter if you get caught. The starkest illumination of this corrosive new Army ethic was stated in February 2006 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 selfincrimination. 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.
To his great credit, then-Maj. Gen. David Petraeus once stood down the 101st Airborne Division for a day as a way of instructing and making it clear to his subordinate officers and soldiers that prisoner abuse would not be tolerated. To “stand-down” a division in combat is to essentially freeze in-place all activities, except for security measures, for the purpose of standardizing an aspect of operating procedure, via instructions from the commanding general given to all soldiers and units within the division. Such stand-downs are rare events, and reflect the commander’s extreme concern that the troops quickly correct a dangerous or illegal procedure or practice.
Captain Ian Fishback, a combat-experienced infantry officer and West Point graduate, took his concerns about prisoner abuse in the 82d Airborne Division to Senator John McCain after his chain of command spent 18 months vacillating over how to respond to his questions about the lawfulness of the way prisoners were treated, some of whom, he reported, were having limbs broken with baseball bats.
How could the world’s best-trained military force reach this point? Torture was let out of the bag in Iraq by senior Bush administration officials who overruled the contrary legal advice of the Service Judge Advocates General. Relying on dubious Department of Justice legal opinions for cover, the civilians blurred the bright lines of the laws prohibiting torture and prisoner abuse. Soldiers were allowed to assume that the Geneva Conventions and federal law did not control their treatment of prisoners (or whatever linguistic term du jour—“unlawful enemy combatants,” “PUCs” [“Persons Under Control”], or “terrorists”—might serve to dehumanize captives).
Fiercely trying to forestall passage of the McCain anti-torture amendment, President George W. Bush repeatedly declared that “the United States does not torture.” Nevertheless, faced with a veto-proof congressional vote, the President agreed to the amendment, and posed for deal-sealing photographs with Senator McCain. The President, however, proved his skeptics correct when it came time to sign the bill. He added a signing statement, in which he gave himself permission to ignore the law, as he might see fit, in the exercise of his powers as commander-in-chief.
That action simply makes the administration look all the more slippery and hypocritical. It undermines the moral leverage the McCain amendment sought to re-establish as a means of assuring humane treatment of Americans who may yet become prisoners of war. By declaring that he can override the force of federal law at will, President Bush has tried yet again to blur the law prohibiting torture, and he is creating the same kind of ambiguity which launched the Army into the disastrous torture practices in the first place.
If the incalculable damage to our world leadership is to be repaired, it’s time for a major presidential address, perhaps at Fort Huachuca, Arizona, the home of the Army Intelligence School. Such a speech should be built around this quotation from The Armed Forces Officer, a Defense Department manual printed in 1950:
The United States abides by the laws of war. Its armed forces, in their dealing with all other peoples, are expected to comply with the laws of war, in the spirit and to the letter. Wanton killing, torture, cruelty or the working of unusual and unnecessary hardship on enemy prisoners or populations is not justified in any circumstance. The main safeguard against lawlessness and hooliganism in any armed body is the integrity of its officers. When men know that their commander is absolutely opposed to such excesses and will take forceful action to repress any breach of discipline, they will conform. But when an officer winks at any depredation by his men, it is no different than if he had committed the act [emphasis added].
When sergeants and warrant officers know that generals, colonels, and majors are absolutely opposed to torture and that they will take forceful action to repress any breach of discipline, good soldiers will comply.
Deborah Pearlstein, Director of the U.S. Law and Security Program at Human Rights First, gives a compelling insight:
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 Administration reviews new revisions to the 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.
At the end of November 2005, the current Chairman of the Joint Chiefs, General Peter Pace, came close to re-establishing that leadership principle for military officers, when he publicly contradicted
Secretary Rumsfeld and declared that soldiers: “if they are physically present when inhumane treatment is taking place, Sir, they have an obligation to try to stop it.” Regrettably and within a week, that courageous position was retracted by the general. The Army, and the world, needs to hear this war President’s unequivocal rejection of torture—soon—and no one needs it more than the officer corps.
David Irvine (drirvine@aol.com) is an attorney in Salt Lake City, Utah. The retired Army Brigadier General was commissioned in the U.S. Army Reserve as a strategic intelligence officer in 1967. He taught prisoner-ofwar interrogation and military law for 18 years for the Sixth United States Army Intelligence School, and is a graduate of the Army War College.
