The Bad Apples on Trial
The Attorneys of the court-martialed soldiers argued that the defendants should not be held responsible for the abuse of detainees because their actions stemmed from policies implemented by the Bush administration. Policies that migrated from Guantanamo and Afghanistan to the dysfunctional environment of Abu Ghraib, and created a new environment that normalized and commended abuse. This environment allowed and encouraged soldiers to commit the sadistic abuses like those captured in the pictures (Alkadry and Witt 2009, Smuelers and van Niekerk 2008). The defense’s expert witness Stjepan G. Mestrovic described the dynamics of the trial in his 2007 book, The Trials of Abu Ghraib: An Expert Witness Account of Shame and Honor:
The defense teams tried, and failed, to get high-ranking officers, and even the secretary of defense to testify. For the most part, the defense teams were putting the Army on trial… the government seemed guilty, in part for the unlawful policies and chaos that were established at Abu Ghraib and elsewhere, yet the government was going through the rituals of justice and assigning blame onto its lowest-ranking soldiers. (Mestrovic 2007, 18)
Investigations conducted by the government, The International Red Cross, and Human Rights Watch confirmed the defense’s arguments about the dysfunctional environment. However, the trials were not about determining guilt or innocence, rather they were:
About defending the positive image of the U.S Army against the seven rotten apples who were depicted as having brought shame and dishonor to the army… The trials were not about the Iraqi prisoners; not about violations of the Geneva Conventions; not about policies that emanated from the White House and trickled down the chain of command; not about the abuse that was committed… and not about Gitmoization, which seems to be the primary source of the social toxins that poisoned Abu Ghraib. (Mestrovic 2007, 8)
The Taguba (2004) Schlesinger (2004), Fay (2004), and Human Rights Watch Report (2005), all acknowledged how the dysfunctional environment created unfavorable conditions, which allowed sadistic behaviors to happen. The Schlesinger and Fay reports do not accept the dysfunctional environment excuse as acceptable.
Based on the Taguba and Jones/Fay investigations, ‘setting favorable conditions’ had some basis in fact at Abu Ghraib, but it was also used as an excuse for abusive behavior toward detainees. (Schlesinger 2004, 77)
The MPs being investigated claim their actions came at the direction of MI. Although self- serving, these claims do have some basis in fact. The climate created at Abu Ghraib provided the opportunity for such abuse to occur and to continue undiscovered by higher authority for a long period of time. (Fay 2004, 71)
Mestrovic asks, if the environment is not an applicable excuse, then ”who or what is responsible for introducing the unlawful climate and failing to restore it to a lawful, normative state?” (Mestrovic 2007, 57)
Who is to Blame? Trickle Down Torture
Four themes emerge from the numerous reports and articles about Abu Ghraib: sadistic abuse did occur by a group of individuals (“bad apples” (Mestrovic 2007)) and was captured in the revealed photographs; abuse was not unique or limited to the individuals or Abu Ghraib; the dysfunctional nature of Abu Ghraib created an environment where such abuse could occur; and policies implemented by the Bush administration trickled down the chain of command and contributed to the dysfunctional environment at Abu Ghraib. The Fay Report does not relieve the “bad apples” of responsibility but does document a number of dysfunctions that led to abuse at Abu Ghraib including the photographed abuse.
The environment created at Abu Graib contributed to the occurrence of such abuse and the fact that it remained undiscovered by higher authority for a long period of time. What started as nakedness and humiliation… carried over into sexual and physical assaults by a small group of morally corrupt and unsupervised soldiers and civilians. (Fay 2004, 71)
First, The Fay Report, Schlesinger Report, and Human Rights Watch Report all acknowledge the group of individuals photographed at Abu Ghraib committed sadistic abuse. I believe the soldiers should be punished for their actions. Punishment is necessary in order to serve justice, repair the military’s image, and establish legitimacy in the international community. The problem did not start with the individuals in the pictures. The photographs from Abu Ghraib represented the dysfunctional atmosphere of the prison and not photographed abuses of other soldiers at Abu Ghraib, Guantanamo, and Afghanistan. Ultimately, the photographs and abuses represent legal justifications of the Bush administration to employ torture to gain information in the war on terror. These three issues disprove President Bush’s assertion that the scandal at Abu Ghraib was just “disgraceful conduct by a few American troops who dishonored our country and disregarded our values,” (Human Rights Watch 2005, 8) The detainees and the soldiers were victims of a poisoned environment partly causesd by Bush’s declaration that the Geneva Conventions were obsolete.
The second theme that emerged is that detainee abuse was not unique to the bad apples or Abu Ghraib prison. Contradicting public statements by Bush and Rumsfeld, the methods of abuse did not originate at Abu Ghraib or with the soldiers. The Fay Report listed 44 incidents of abuse committed at Abu Ghraib by the rotten apples, MPs, MIs, CIA, and an Army Officer and Captain (Fay 2004, 75-83). Additionally, Fay reported that between July 25th, 2003 and February 6th, 2004, 27 military interrogators (not bad apples) “requested, encouraged, condoned, or solicited MP personnel to abuse detainees; participated in detainee abuse or; Violated established interrogation procedures and applicable laws and regulations as a preparation for interrogation operations at Abu Ghraib.” (Fay 2004, 109)
Similar cases of abuse and interrogation by CIA, MI, and other government agencies (OGA) “were part of a process deployed… at Bagram Air Base in Afghanistan, and then… at Guantanamo, and finally against hundred of innocent Iraqi’s at Abu Ghraib and other military bases across Iraq.” (Hamm 2007, 265)
The Fay, Schlesinger, and Human Rights Watch Reports each recognize the photographed abuse as inexcusable, but they also report abuses and deaths of detainees at the hands of others at Abu Ghraib, not photographed. The 2005 Human Rights Watch Report noted the ordinariness of the abuse:
While some of the acts portrayed in the pictures may be attributed to individual or group sadism, the widening record reveals that the only truly exceptional aspect of the horrors at Abu Ghraib was that they were photographed. (Human Rights Watch 2005, 8)
Schlesinger reported the photographed abuse was an “aberration” caused by “poor leadership” and “lack of oversight.” (Schlesinger 2004, 77)
The dysfunctional environment of Abu Ghraib is the third theme. The Fay report cites twelve endemic problems including confusion about who was in charge, the difference between approved and abusive activities, and about which norms to follow. The report also lists the “Gitmoization” and “Afghanistanization” of the prison, unauthorized use of dogs, insufficient training, lack of social integration between MI and MP units, rapid changes of interrogation policies, intense pressure to obtain intelligence, an unhealthy mystique, failure of self-correcting mechanisms, and cultural insensitivity (Mestrovic 2007, 58-67). Many described the prisons as “’hell on earth,’ ‘the nastiest place on earth,’ ‘Bizzaro World,’ ‘not like a normal prison,’ and other emotionally laden phrases.” (Mestrovic 2007, 188)
The Fay report’s issues reveal three major breakdowns - poor leadership, confusion of roles, and confusion about the application of the Geneva Conventions. First, the leadership breakdown was exemplified by the fact that the Joint Interrogation Debriefing Center (JIDC) was made up of six different units without normal command (Schlesinger 2004). The Commanders improperly trained and supervised their command. They lacked proper experience and failed to “establish the basic standards and accountability that might have served to prevent the abusive behaviors that occurred.” (Schlesinger 2004, 67-68) The next major break down was confusion about roles. “MI and MP personnel at Abu Ghraib had little knowledge of each other's missions, roles and responsibilities in the conduct of detainee/interrogation operations. As a result, some ‘lanes in the road’ were worked out ‘on the fly.’ Other relationships were never fully defined and contributed to the confused operational environment.” (Fay 2004, 115) The last break down was confusion about who was protected under the Geneva Conventions. Senior leadership and command knew that the Geneva Conventions did not bind Operation Enduring Freedom but did bind Operation Iraqi Freedom (Schlesinger 2004). The differentiation was lost in the field and policies designed for Guantanamo and Afghanistan were implemented in Iraq:
The message in the field, or the assumptions made in the field, at times lost sight of this underpinning. Personnel familiar with the law of war determinations for OEF in Afghanistan tended to factor those determinations into their decision-making for military actions in Iraq. Law of war policy and decisions germane to OEF migrated, often quite innocently, into decision matrices for OIF. We noted earlier the migration of interrogation techniques from Afghanistan to Iraq. Those interrogation techniques were authorized only for OEF. More important, their authorization in Afghanistan and Guantanamo was possible only because the President had determined that individuals subjected to these interrogation techniques fell outside the strict protections of the Geneva Conventions. (Schlesinger 2004, 82)
The Fay Report recommended that, “DOD should improve training provided to all personnel in Geneva Conventions, detainee operations, and the responsibilities of reporting detainee abuse.” (Fay 2004, 115) The problem with that recommendation was that the DOD helped render the Geneva Conventions obsolete.
Finally, the dysfunction at Abu Ghraib was an extension of the Bush administrations determination that the Geneva Conventions were obsolete and the redefinition of what constitutes torture. The Office of Legal Council drafted two memos that became the legal justification for the administration’s policies. The Gonzalez Memo (2002) that rendered the Geneva Conventions obsolete for enemy combatants captured in Afghanistan and detained at Guantanamo Bay. The Bybee Memo (2002) redefined torture. President Bush, issued an executive order on February 7, 2002, stating:
I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons al Qaeda is not a High Contracting Party to Geneva. (Bush 2002)
The war paradigm began to change occurred before Attorney General Alberto Gonzalez’s 2002 memorandum determined that “the new paradigm of the war on terror ‘renders obsolete’ the ‘strict limitations’ on questioning of enemy prisoners’ required by the Geneva Conventions.” (Smuelers and van Niekerk 2008, 335) Five days after the 9/11 attacks, Dick Cheney appeared on Meet the Press and proclaimed:
We also have to work, though, sort of the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective. (Human Rights Watch 2005, 9)
One month after President Bush’s executive order, the defense department determined that the “President’s authority to ‘manage a military campaign’ overrode any statutory or treaty prohibitions against torture,’” (Hersh 2004b, 17) and on July 26, 2002 Attorney General John Ashcroft concluded that “waterboarding is lawful, allowing the CIA to go ahead and use the technique on Zubayda.” (Lowrey 2009, 3) A few days later, August 1, 2002, The Bybee Memo redefined torture by saying it ‘”must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” (Bellamy 2006, 127) Bybee’s definition contradicted the 1985 UN Convention Against Torture and Article 3 of the Geneva Conventions on prisoners of war. The UN convention defines torture as “’any act by which sever pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or confession.’” (Hamm 2007, 265) Article 3 of the Geneva Conventions prohibits “‘violence to life and person, in particular murder of all kinds mutilation, cruel treatment and torture.’ Grave breaches of these international standards are called war crimes.” (Hamm 2007, 266)
Despite these revelations and findings, the United States has not engaged in a serious process of accountability. Officials have denounced the most egregious abuses, rhetorically reaffirmed the U.S. commitment to uphold the law and respect human rights, and belatedly opened a number of prosecutions for crimes committed against detainees in Afghanistan and Iraq. To date, however, with the exception of one major personally implicated in abuse, only low-ranking soldiers — privates and sergeants — have been called to account. (Human Rights Watch 2005, 1, emphasis added)
Only eleven soldiers from Abu Ghraib were court-martialed and ten were convicted: six MPs (appeared in picture, original bad apples), two MIs, and two dog handlers. If government reports, journalists, academics, and human rights organizations have documented that detainee abuse was not isolated to just the photographed bad apples but pervasive throughout Abu Ghraib, Iraq, Afghanistan, and Guantanamo Bay; then why were only eleven soldiers court-martialed? Why, after government reports determined the severity of dysfunction at Abu Ghraib was only eleven soldiers court-martialed? Why, when the Bush administration, violated international laws, in ways that would normally be considered war crimes, has there not been any repercussions for the administration or any other senior official? Mestrovic and Lorenzo approached these questions when they stated:
The discourse on this explosive subject avoids completely the subject of putting on trial Americans who are high in the chain of command and who should have known and should have taken steps to prevent the abuse even if they did not order it. (Mestrovic and Lorenzo 2008, 191)
I believe that further convictions were not pursued because the Bush administration effectively scapegoated the bad apple soldiers and justified administration policies by satisfying three debates about torture – the moral, utility, and legal debates.
When society undergoes suffering, it feels the need to find someone whom it can hold responsible for its sickness, on whom it can avenge its misfortunes: and those against whom opinion already discriminates naturally designated for this role. Those are the pariahs who serve as expiatory victims.’(Durkheim quoted in Mestrovic and Lorenzo 2008, 203)
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