Torture Redux: Some thoughts after reading reports of military investigation

Great Debates
1

This week I completed my role in a project helping to document torture and accountability for torture in the US War on Terror. Among other things, I examined dozens of documents produced by the CID and NCIS–the criminal investigation agencies of the army and marines/navy, respectively. Some of the work is being used in litigation, so I can’t share all the details of my research, but I wanted to share some general thoughts about what I learned and on the notion that the US doesn’t torture.

Let’s put aside for a moment the issue of whether water boarding, sleep deprivation, stress positions, “fear upping,” religious humiliation, and sensory deprivation are torture. In my view, they clearly are torture under international law, but this is a debate that has been done.

Instead, let’s consider cases of what is unambiguously torture: mock execution, beatings, electrocution, burning, sodomy, etc. These things have all been done to detainees in our names. The US government’s official response is: bad apples. But what distinguishes a system in which bad apples are minimally punished and commanders are not punished at all from a system in which torture is policy? What evidence would be required to show that we have a de facto policy to encourage abusive interrogation? How many instances of torture must go unpunished, or with minimal punishment?

If this were criminal law, I would say that the military leadership has been, at a minimum, reckless (especially after the lessons of Abu Ghraib). Consider the following case from an NCIS report: A sergeant is the subject of a possible assassination plot. His unit finds out about the possible plot from an anonymous informant who implicates a member of the Iraqi police. So, the squad arrests this guy for interrogation. A responsible system would have a trained, third-party interrogator interview this suspect. In this case, the very subject of the assassination plot, a sergeant with no interrogation experience, is assigned to interview the suspect. Aren’t the results entirely predictable? Of course the result is abuse. In this case, the beating and a mock execution of a man about whom there was no more evidence than a tip. Why should we say that the commanders in this case, and the designers of the system itself are not at least recklessly responsible for that abuse? I, for one, assign even more blame to them than I do the sergeant. Fortunately for him, he was only demoted and fined, both of which were suspended for six months (which means that if he is not involved in other incidents for a six month period he will suffer no consequences).

I think there are a few things to debate here, but if not I guess this could be shunted to IMHO or something.

2

It seems to me that in a US criminal investigation, it seems to me that there are a couple of mechanisms to prevent abuse. The first is that an officer violating the rights of a suspect would be subject to departmental discipline or even criminal prosecution, though these sanctions are usually limited to cases of gross abuse.

The more important protective mechanism is the exclusionary rule, which prohibits evidence obtained in violation of a defendant’s rights from being used against him or her. If the collection of the evidence will likely be examined before a neutral judge, an officer who wants to get a conviction has a strong incentive to use proper methods to collect evidence.

This works, however, because the whole criminal justice system is working toward the goal of convicting the guilty after a fair trial in court.

In the interrogations you have revewed, what were the objectives of the interrogation? Were there any built-in mechanisms to minimize abuse? To what extent have those personally responsible for abuse been subject to discipline? Are there any mechanisms to discipline commanders who have condoned or encouraged abuse?

3

First, let me make something clear: I don’t mean to suggest that military interrogations should be treated like US criminal interrogations. Far from it. If that were the case, they should have never arrested this guy in the first place.

In the abusive interrogations I reviewed (which is a subset of overall detainee abuse), there were few if any built-in mechanisms to prevent abuse. Obviously the possibility of CID/NCIS investigation is there. But all punishments are determined by the commanding officer, and even when that officer consents to punishments, they are rarely more than a slap on the wrist.

Of the 300 or so cases I’ve looked at (and there are many more), abusers are court martialed maybe 3% of the time. Though, to be fair, that number includes credible incidents of abuse that were never investigated, much less recommended for court martial.

There are mechanisms to discipline commanders. The command responsibility doctrine states that if a commander knew or should have known about the abuse and he/she did not take measures to prevent it then the commander is culpable. In all of the incidents I’ve reviewed, this have never been invoked with regard to immediate commanders, much less Rumsfeld et al.

4

I think you pretty much found your own answer. The issue is pretty simply that the military isn’t the police, nor are they the CIA. Even police, who are trained in proper investigative technique, aren’t asked to become a detective straight out of school. And when they are promoted, they have limited access to the accused and a camera pointed at them whenever they’re together. The odds that the perp will have been a danger to the officers in question or a friend is minimal, and if there is a chance of bias someone else can be asked to step in. Out in the middle of the ass-end of nowhere, there isn’t a nice handy investigation unit that you can call in to take over for you, and the (possible) machismo ethos of young recruits with big fucking guns would probably stand in the way of turning things over even if it was.

Outlawing torture (for extra real) will, in the end, be less effective than hiring 25+ year old recruits and sprinkling people trained and experienced in proper investigatory thought and method liberally through the military. But of course, neither of those is terribly realistic for a military as–at heart–their mission is to go out and kill, not to occupy and police. The entire military would essentially need to be rethought and reworked to be terribly good at the job they’re holding now. So then the question becomes whether it’s more useful in the long run to have a military good at fighting or one good at policing. But you can’t really hope for both.

5

I’m not unsympathetic to your point of view, but I don’t agree entirely.

For one, I think it is possible to have a “nice handy investigation unit that you can call in to take over for you.” Indeed, in most cases, there is such a unit. It just isn’t always used. At a minimum, there could be a rule that says the victim shouldn’t be the interrogator. Keep in mind also that not all abuse is about a lack of training. Some of the best-trained units have the worst records (try googling TF 626, for example).

I think you’re right that further lawmaking is not the order of the day. But we could enforce the ones we have. Why shouldn’t a sergeant who beats a detainee be put in confinement? Or, perhaps more aggressively, why should a commander get to determine whether his subordinate is subject to court martial? Why not let CID decide?

On the larger point, I don’t think the a military occupation is per se inconsistent with preventing abuse. It may be that having a bunch of improperly trained, poorly led 18-year-olds fighting a chaotic insurgency is inconsistent with preventing abuse. But I think we can remedy that without destroying their fighting capability.

6

Not knowing much about things military, I couldn’t say whether giving commanders near supreme power within their bailiwick is an issue of practicality or a vestigial remnant of when commisions were bought and communications were limited. I would just tend to lean (of the two options) towards the idea that the military does it the military way because that’s been found to be the most effective in regards to their overall mission, at least until I heard anything directly from someone in the know.

7

Minimal punishment? I don’t think any number would be enough. Think about it-- no one is going to be encouraged to torture if they are punished even minimally*. Not in the military. Why would they? If they aren’t being encouraged to torture, then I don’t see how you can say it’s policy.

You’d have to have clear evidence that senior personnel were looking the other way, or were actively involved.

*assuming minimally isn’t a wink and a nod-- it results in pay grade reduction or some time in jail.

8

That’s fair. But even if the military believes this is a practical necessity, I think you must concede that at some point we can overrule the military’s judgment (like we did with military integration and like we should do with gays in the military).

Do we have enough evidence now to overrule the judgment that the present system is best? I think maybe we do. Among our highest missions in the War on Terror is the public relations battle. If we cannot conduct our missions without abusing detainees, then we will only continue to reap more terrorism. Surely *something *must change.

9

It is often a wink and nod. In my survey, about half of the punishments were suspended (explained above). And punishment was the exception, not the rule. Jail time happens very rarely, and pay reduction is only slightly more common.

Like I said, the command structure is at least reckless in that they know it happens but they make no institutional changes to prevent it. I take your point that recklessness does not a policy make. But it seems a thin distinction to me when it comes to the effects on detainees and on our efforts to prevent terrorism.

In other words, it is a de facto policy *that *encourages, perhaps, rather than *to *encourage.

10

I’d concede it if I thought that the greater good was served. But without knowing what the practicalities at hand are and how important they are to the overall effectiveness of the military, it’s not really something I would feel qualified to judge on.

I’m not even sure how prevalent such activities really are. I mean, all you’ve been looking at for the last several months (I assume) are reports of such occurences, so I’m not sure that your expectations are in line with what is to be expected.

Going by this page, there’s something like 150,000 troops in Iraq. And going by http://www.fbi.gov/ucr/05cius/offenses/violent_crime/index.html, there were 1.4 million violent crimes (rape, assault, etc.) in a population of about 300 million. So, for instance, would you say that there are significantly more cases of people misbehaving than would be expected in a year (1.4 / 300 * 150,000 = 700)? (Which I’m asking as a factual question, as you’re someone who would appear to be qualified to have an accurate answer.)

I’m not sure that trying to take the moral high ground is going to buy as much traction in the Middle East as you are saying. The standards of policing and punishment in the area are and probably have been* torture and lopping off body parts (respectively) for the last several centuries if not millenia, and certainly neither Saddham nor his troops were all that gentle. I’d argue that our simple foreigness and attempts to handle things militarily instead of politically in the area is our bigger issue (but that’s more a subject for a different thread.)

  • No cite. Just my impression.
11

Impossible to say with any certainty, really. All we have to go on are the bread crumbs, the most reliable of which are military reports, of which we have a fraction. And even if we had them all, based on other sources (Fay report, etc.) they only investigate a fraction of abuse.

Based on the evidence I’ve seen, I wouldn’t be able to say more than that abuse is certainly prevalent and could be substantially reduced through improved procedures and better accountability.

I think all the available evidence indicates that Abu Ghraib hurt us very badly. According to some, it was a turning point in the success of our occupation. Maybe iit’s too late now to remedy that image of us. But I don’t think it hurts to try.

12

Interesting question. In civilian criminal law, we would not say that judges and prosecutors are responsible for crimes just because they do not punish them aggressively enough. But the military is not a free society – it is an inherently authoritarian organization, and in particular, I think that when we give individual commanders, rather than an impartial legal system, the responsibility for administering discipline, they must bear some responsibility for the consequences of their policies.

I agree with this, but to me torture is a fundamental moral issue; I don’t really care how people in the Middle East feel about it.

13

I would also point out that if we are going to get into the issue of our image, we must consider not only what Iraqis think of us but also the opinions of our traditional allies around the world.

14

This principle doesn’t just apply to the military. In ordinary civilian organisations, we often hold the whole organisation, and the managers and supervisors, responsible for the wrong-doing of their subordinates, especially if they knew or should have known what was going on.

15

This is a misunderstanding.

Let’s talk about rogue operatives: I.e. those who operate outside the rules. Why do so many dramas have them as heroes? Leaving aside the dramatic tension and irony, of breaking rules/enforcing rules. The answer is that rogue practices can get a result, not available within the proper constraints.

I am afraid to say, it is almost universal in law enforcement that senior management likes to have rogue elements for just that reason. It can win and still disavow rogue practices hand on heart.

But in the military? It’s a little different. While there is still the ‘results’ driver, it is largely symbolic. Each incident of torture is a statement to the occupied peoples that this is who we are: Americans.

Each incident of torture is a flaunting of the US victory and the subjugation of the occupied peoples. And the troops need that. That’s the result you have to have when the WMD don’t turn up and military becomes the object of derision.