No Comment — August 29, 2007, 7:51 am

Another Verdict on Abu Ghraib

Yesterday at Fort Meade, a jury consisting of nine colonels and one brigadier general rendered a verdict in the case of Lieutenant Colonel Steven Jordan. He was acquitted on all charges related to the abuse of detainees at Abu Ghraib prison. He was convicted of disobeying an order that he not speak with third persons about the investigation of abuses at Abu Ghraib.

Paul von Zielbauer reports on the case in the New York Times:

Colonel Jordan’s acquittal on most charges means that no officers have been found criminally responsible for the abuses at the prison. Col. Thomas M. Pappas, the military intelligence officer who ran Abu Ghraib, was punished administratively by senior Army commanders for improperly allowing military dogs to be used during interrogations to frighten detainees. Janis Karpinski, the brigadier general who was the military police commander at Abu Ghraib, was reprimanded and demoted.

During Colonel Jordan’s seven-day court-martial, Army lawyers representing him argued that he was not responsible for training and supervising the military police soldiers who abused detainees from mid-September to late December 2004. Rather, his lawyers argued, he served as a manager of sorts at the prison, focused on making living and working conditions at Abu Ghraib, a notorious complex that Saddam Hussein’s government had used to torture its enemies, as accommodating as possible.

The jury members apparently were not convinced by the conclusions of two generals who had investigated the Abu Ghraib scandal and found that Colonel Jordan’s “tacit approval” of violent techniques by the military police during an episode in November 2003 was “the causative factor that set the stage for the abuses that followed for days afterward.”

This leaves a curious record in prosecutions coming out of Abu Ghraib. Accountability, it seems, is something which applies to enlisted personnel and noncommissioned officers who make the mistake of being caught in photographs. The officers who were supposedly in charge of the facility and giving them guidance escape without serious punishment.

I believe there is a way in which the jury’s actions make perfect sense. If the jury believed that the atmosphere that prevailed in the prison and led to the abuse was the product of conscious Department of Defense policy, and that Colonel Jordan (and Colonel Pappas, who escaped with nonjudicial punishment) were doing exactly what their superiors far up the line would have them do, then the decision to acquit is easily understood.

‘Blame the Grunts,’ Continued
Moreover, this meshes perfectly with a strategy formulated at the top of the chain of command, in the office of Secretary of Defense Rumsfeld himself. After the Abu Ghraib scandal, a commission composed of close friends of Secretary of Defense Rumsfeld and headed by former Secretary of Defense Schlesinger, issued a report which exculpated Rumsfeld without ever interviewing him or examining any evidence of his involvement, or that of others in the Office of Secretary of Defense, in the affair. It was one of the most breathtaking whitewash jobs in American history. Schlesinger pursued a strategy of “blaming the grunts” for everything that happened—it was “Animal House on the nightshift” in the words of his famous tag line.

That characterization was a conscious lie. Reports completed regarding the abuses that occurred at Guantánamo, Bagram and other locations showed the same consistent techniques being used—enforced nudity, stress positions, sexual humiliation techniques, even the so-called “walking the dog” technique later revealed to have been a specifically authorized practice under “pride and ego down.” In sum the practices labeled as abuse at Abu Ghraib and used to prepare the prisoners for interrogation were, in fact, practices authorized by Rumsfeld for use in connection with interrogations.

The problem was that they were exposed to the public. The prosecution therefore went after soldiers whose negligence resulted in the information becoming public, not in the key offenders. And indeed, what happened at Abu Ghraib was fairly mild compared to far more severe abuse that occurred at other facilities such as Volturna and Camp Cropper.

Silence is Golden
The Defense Department’s prosecution strategy matches perfectly the Schlesinger cover-up technique: go after the grunts who let all of this out of the bag, make loud noises about investigations, but do nothing with respect to those who were in authority.

But most significantly: Jordan was punished not for any abuses that occurred at Abu Ghraib, but for having loose lips. He talked about it. Thus the verdict reinforces the vlaue the Pentagon has consistently placed on silence with respect to detainee abuse matters.

Indeed, it is easy to understand the entire process as a drive not to expose the truth, but to secure Jordan’s continued silence. While the court martial is pending, he is not free to talk. While the sentencing process is open, he has strong incentives to keep quiet. Nothing better explains the fact that today, more than three years after the scandal broke and four years after the operative events, the court martial is still on-going.

Jordan knew a lot he is not telling. He could expose many of the still unresolved secrets out of Abu Ghraib. For instance, he could complete the story of Major General Geoffrey Miller, the commander at Gitmo, who visited Abu Ghraib in the fall of 2003 on Rumsfeld’s orders and introduced a series of techniques first developed for Gitmo. The use of military police to prepare detainees; the use of military dogs to frighten and torment prisoners; the use of enforced nudity, sensory deprivation, stress techniques–practices such as “walking the dog.” Rumsfeld and Schlesinger told us that the MPs at Abu Ghraib simply improvised all of this. But later reports out of Gitmo documented that these techniques were carefully developed and introduced under Miller. Jordan could explain in greater detail how after Miller’s visit they came to be used there. Jordan probably also knows the details of the personal involvement of Stephen Cambone, Undersecretary of Defense for Intelligence, and Rumsfeld himself, in high-value detainee (HVDs) operations at Abu Ghraib. Cambone and Rumsfeld both received briefings out of Abu Ghraib about dealings with the HVDs–these were the people subjected to the most serious abuse–by video hook-up out of the secured communications room at Abu Ghraib. Details of these briefings have never fully emerged.

Command Responsibility
The key issue here is command responsibility. The historical American view has been that when soldiers are sent into harm’s way, they are accompanied by officers who have a responsibility to provide training and guidance. The officers insure that orders are followed; discipline and morale is maintained. If a soldier gets out of line, it’s the soldier’s fault, provided he has reason to know where the line is. However, if he doesn’t know where the line is or if he gets out of line persistently and is never reprimanded, punished or called to account, the failing is also his officer’s. That’s a doctrine which was historically developed and nurtured by the United States military, going back to the rules introduced by Baron von Steuben at the time of the Revolutionary War.

The essence of command responsibility lies in care for the soldier. Military doctrine at the time of the American Revolution viewed the soldier as just so much cannon fodder. But the American idea was of a citizen soldier, motivated by love for country and a sense of duty, and also entitled to protection and fair treatment by the military. The Rumsfeld Pentagon seems to have suffered from a convenient failure of memory about command responsibility—the doctrine disappeared into thin air as soon as Rumsfeld arrived. The lapse of command responsibility is reflected not just in the strange prosecutions coming out of Abu Ghraib, but also in the unconscionable failure in health care at Walter Reed Hospital, and the failure to provide armor and maintain equipment in Iraq. It is a lapse of the duty of care towards soldiers—and the only proper reaction to it is outrage.

Yet it’s strange that in the midst of this phenomenon, few public voices can be found amidst the vacuous chatter of the Washington punditry who understand what “command responsibility” is. Many talk about “supporting the troops,” but that is most often an empty formula.

The Jordan case reveals a near complete collapse of the command responsibility notion—it was not properly charged, proved nor explained to the jury. And without it, predictably, an acquittal followed.

The Incomplete Story of Jordan at Abu Ghraib
A critical insight on the Jordan trial is provided by Sam Provance, an NCO at Abu Ghraib who came forward during the inquiry. His case was highlighted by Rep. Chris Shays (R-CT) in hearings last February. Provance was singled out for praise by Shays and by Rep. Henry Waxman (D-CA) at the end of those hearings as a soldier who demonstrated the best values of the military, including standing up for principle. Provance showed moral courage in this process, and as a result he was hit with a gag order, threatened repeatedly, reduced in rank and drummed out of the Army. The Army punished him nominally for giving an interview to ABC News. In fact, he was punished for cooperating with House and Senate committee investigators who were looking into the abuses at Abu Ghraib.

Here’s what Provance writes about the Jordan case:

Watching Act I of the faux-trial of Lt. Col. Steven Jordan last week at Fort Meade, Maryland, confirmed my worst suspicions. I know Jordan; I was in place for his entire tenure at Abu Ghraib, including when prisoners were being tortured; he was my immediate boss. Enter from the wings reserve Maj. Gen. George Fay. MG Fay was handpicked to run interference for then-Defense Secretary Donald Rumsfeld by conducting the same kind of “full and thorough investigation” that former President Richard Nixon ordered for Watergate.

With Fay, too, I speak from personal experience. Shortly after photos of the torture at Abu Ghraib were published, I found myself being interviewed by Fay on May 1, 2004. It was a surreal performance, with Fay seeming to take his cue at times from Peter Seller’s Inspector Clouseau. Except it wasn’t funny then; and it is not funny now. To me, Fay showed himself singularly uninterested in what really was going on at Abu Ghraib. I had to ask him repeatedly to listen to my eyewitness account. Whereupon he said he would recommend action against me for not reporting what I knew sooner for, if I had done that, I could have prevented the abuse. Right…

One of the soldiers who worked very closely with Jordan verified that he was fully familiar with the infamous “hard site,” where much of the torture took place. Jordan had been seen there on more than one occasion, hanging out laid back with his feet propped up. My soldier informant also bragged that he had joined Jordan in beating up a prisoner. Jordan also took liberties with what were standard procedures, much like the CIA and other civilians who did not seem to bother much with such niceties. One of the sergeants with direct access to Jordan told me that Jordan felt empowered to ignore regulations and interview detainees alone, which was highly irregular even for swashbuckling CIA interrogators.

I cannot tell whether the Army is deliberately oblivious to my potential input or that it is simply not taking these things seriously. Last month, a person from the Army’s Criminal Investigations Division and one from the team prosecuting Jordan came to interview me. Why? Because they had seen me in a documentary and learned from the film that I was at Abu Ghraib at the same time as Lt. Col. Jordan. Never mind the copious testimony I had given over the past several years. Never have I been called to testify at any of the trials.

In my view, it was clear that Fay’s job was to quiet any discordant notes from noncommissioned officers like me and help Rumsfeld push the responsibility down to “rotten apples” at the bottom of the chain of command. When Maj. Gen. Taguba’s Abu Ghraib investigation report was leaked to the press on May 4, 2004, I was very surprised to find myself listed as the only military intelligence soldier to witness to the truth. And for my conscientiousness, the Army imposed a gag order on me 10 days later; a week after that my top-secret clearance was suspended, and eventually I was reduced in rank.

In the end, I find it hard to be critical of the jury’s verdict. They were limited by the case and evidence that the prosecution put on, which was not much. The prosecutors were in turn limited by the view taken of the case by the command, which was, to put it mildly, blindered. The shortcoming here was, and has consistently been, a shortcoming high up the chain of command—it has been the command’s own fear of accountability.

Justice was not served in the courts-martial that emerged from Abu Ghraib. What we have seen is a cover-up that continued into the courtroom.

The Unanswered Questions
But this is far from the last case involving Abu Ghraib. The Army’s Fay-Jones report identified more than a dozen civilian contractors who were involved in some of the worst cases of abuse–in several cases far more serious than any thing that the court martialed grunts did. Those cases were fully investigated by the CID, and the files were turned over to the Department of Justice. They were sent as a group to the U.S. Attorney for the Eastern District of Virginia, Paul J. McNulty. He did nothing. He became Alberto Gonzales’s deputy and was just forced from office under a cloud linking him to the politicization of the U.S. attorneys offices and under accusations of making false statements under oath. McNulty passed the files to Charles Rosenberg, who was himself tapped by Gonzales to serve as his chief of staff when Kyle Sampson resigned. Rosenberg also has done nothing. The Justice Department has furnished no meaningful explanation for its failure to act on these cases, but I keep thinking that there is some strange proximity to Gonzales and other senior administration figures haunting the case file.

The other and ultimately still more potentl question of accountability goes to those whose decisions about policy ultimately enabled these abuses. It may take some time for all the facts to develop and to rekindle a spirit of justice in the country that calls for proper accountability. We can wait. But we shouldn’t forget.

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