A Few Bad Men

When The Election Ends, A Complete Abu Ghraib Prisoner Abuse Investigation Should Begin

Tim McGivern
25 min read
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Scott Horton became familiar with military doctrine long before he was fairly able to understand it. As a child, he was raised on Kirtland Air Force Base, the son of an officer, before leaving Albuquerque three decades ago to embark on a career as an international transaction attorney and human rights lawyer, most notably representing former-Soviet Union dissident Andreis Sakharov.

Horton returned to Albuquerque last week, appearing at the Petroleum Club as a featured speaker of the Albuquerque Bar Association, where he delivered a searing lecture entitled “War Over the Geneva Conventions: A Crisis in International Humanitarian Law.” Beginning in the early months of 2003, before the Abu Ghraib prison abuse photos told the American public the story of “sadistic, blatant and wanton criminal abuses” as confirmed by Maj. Gen. Antonio M. Taguba in a report leaked to the New Yorker magazine more than a year later, Horton began investigating the matter after he was contacted by high ranking Pentagon officials in his New York office. The officials were concerned about the rewriting of U.S. military doctrine pertaining to treatment of detainees. According to Horton, these military officials were eager for the American Bar Association to raise questions about what was happening in the Pentagon. Horton, who currently serves as the president of the International League for Human Rights, immediately began consulting with the bar's military attorneys to compile a report on U.S. law regarding prisoners of war. As a result, Horton has joined with retired military officers to call for a 9-11-style commission to investigate the civilian leaders at the Pentagon who evidence suggests were at the heart of authorizing abuses that violated U.S. law. The following is a transcript of Horton's interview with the Alibi that took place last week.

Explain how you became involved in investigating prisoner abuse in Iraq?

About a year and a half ago, out of the blue, I was visited by eight military lawyers, known as JAG Corps. They asked that the American Bar Association pay attention to what was going on with treatment of detainees at Abu Ghraib prison. They said policy decisions being made at the highest levels of the Pentagon were going to have terrible consequences for the United States reputation. One of the things they said was that the United States has had a very honorable history of observing the Geneva Conventions for 50 years and as a result of these new positions, this was coming to an end and the results would be catastrophic for the United States.

They told me a few particular things. They said civilian contractors were being used in connection with interrogation and that there was no legitimate reason for this. They said that it was a very conscious decision taken by the Undersecretary of Defense for Policy to put an atmosphere of legal ambiguity all around this interrogation process. Specifically, they said the Uniform Code of Military Justice sets the law and requires people to behave when they undertake an interrogation. It says if you cross the line you can be prosecuted. They said (the Pentagon's civilian leadership) is bringing people in to conduct the investigations who aren't subject to the Uniform Code of Military Justice. And these contractors were also not subject to criminal law. So they were bringing in people to conduct the investigations who cannot legally be held accountable for what they do.

Do you see this as the direct reason why civilian contractors were brought in, to skirt the law?

There was a conscious decision to abuse prisoners in such a way that people who were acting couldn't be held to account. Yes. When they raised this with me, I really didn't understand what they were talking about. I didn't have a depth of understanding in this area. I then went to military lawyers who explained to me what was going on and why these things were important and then we started undertaking the project to research and write about military interrogation guidelines, which we did over a period of a year. We released our report two weeks before the Abu Ghraib scandal broke in the media. Then, when the scandal broke, I looked at the report and saw exactly what these JAG officers were complaining about. Our bar association report is called “United States Law Standards for Interrogation of Detainees in the Global War on Terror.”

But didn't Secretary Rumsfeld, in the Senate hearings that followed—what was just shown on “Frontline” this week—say the Geneva Conventions were being adhered to.

That's a lie, and he knows that's not true. In fact, you're right, he said that repeatedly. Here's another example of the sorts of outrageous lies he makes all the time. His principle deputy, Stephen Cambone, also went before that same Senate committee and testified that the Red Cross—which is responsible for monitoring and oversight of prisoners—was not in contact with senior people in the Pentagon, was only dealing with field and operational officers, so that Rumsfeld didn't know anything about the Red Cross involvement. And that's just not true. In fact, Secretary of State Colin Powell came out the next day and flatly contradicted this. Mr. Cambone also made a sworn statement, where he said that questions may come up about the transfer and treatment of civilian detainees in Iraq and that's something President Bush would have to think about as the issue arose. Now we know that was a lie. On Sunday, Oct. 24, the Washington Post published an internal Justice Department memorandum that had been requested by the Department of Defense and CIA in which legal opinions and guidelines were given for transferring civilians outside of Iraq, which by the way is also a violation of the Geneva Conventions.

So they have just had a pattern of consistent misrepresentations—statements—not innocent misrepresentation, from the beginning of the scandal to the end. And the most serious area really is when it comes down to the abuse that occurred in Abu Ghraib. They want to point the finger at six or seven grunts and prosecute them. But it's Secretary Rumsfeld who took the decisions that led to the tragedy at Abu Ghraib. He gave an order to introduce into Iraq the interrogation standards that were developed for use in Guantanomo Bay, Cuba. The instruction he gave was to send Maj. Gen. Geoffrey Miller to Iraq and “gitmoize” the intelligence gathering operation.

Explain “gitmoize.”

The Guantanamo facility was set up to house detainees in an environment that was completely outside of the Geneva Conventions. These were people who were supposed to be terrorists who were captured in Afghanistan who were not entitled to protections under the Geneva Conventions. So a whole new set of interrogation standards and treatments were developed for use in Guantanamo that just ignored the Geneva Conventions, enforced nudity, sexual humiliation, stress and duress techniques. Then Secretary Rumsfeld gave an express order to take that system and import it into Iraq where the U.S. recognized from the beginning that the Geneva Conventions applied. And by the way, Rumsfeld hasn't got the foggiest idea what the Geneva Conventions are and what they provide.

Why do you say that?

He continually gives press conferences in which he talks about articles three and four of the Geneva Convention. It's not the Geneva Convention, it's the Geneva Conventions, plural. It's the third and fourth conventions that apply here. He hasn't got the foggiest idea what they require and he doesn't care, and he's made that clear over and over again.

Explain Abu Ghraib's purpose as a U.S. military operation, and who were the people being detained there?

I think the press constantly talks about Abu Ghraib as a moniker for prison abuse and one thing you have to be cautious of is that the abuses that occurred happened systematically all over Iraq and all over Afghanistan. The same sorts of abuses occurred all over and by far the most serious abuses that occurred—torture and murder—didn't occur at Abu Ghraib. They occurred at Camp Cropper near Baghdad International Airport and at El Asaad. Abu Ghraib was the most notorious prison under Saddam Hussein. The largest prison in the country. When we came in as an occupying power we should have just destroyed it. Instead, we took it over and we began to use it to detain prisoners.

Who are the prisoners who were there? The Red Cross said in its evaluation, which the U.S. military now readily accepts, that 90 percent of them were there for no reason whatsoever. They were civilians who got picked up in sweeps and were dumped there. So 90 percent were wrongly detained and should have been released. But when the violence was mounting, the Pentagon was so concerned about releasing the wrong people that it stopped and held these people for long periods of time.

There was a great concern when the insurgency began. Remember the administration told us our troops were going to be met with flowers and chocolates, that it was going to be a cakewalk and we don't need more than 140,000 troops. Well, the counterinsurgency started very early on after the occupation and that sent the people in the Pentagon into a tailspin. They thought, this isn't what we were expecting, let's start gathering information about counterinsurgency. So Secretary Rumsfeld directed the intelligence gathering to be stepped up and become much more aggressive. To get results, the instructions he gave were take off the gloves. That means physical abuse of the detainees at Abu Ghraib.

Now, if you know the tradition of the United States Army, one thing has been consistent and that is that we are aggressive and tough on the field of battle, but when you take prisoners they are treated humanly and with respect. That's the rule that was set by George Washington in the battle of Trenton on Dec. 25, 1776. The soldiers of the continental army took the Hessians and said these soldiers are mercenaries and we should take retribution on them. They wanted the Hessians to run the gauntlet and they would beat them with sticks. General Washington said we will not do this. He said these people will be treated with respect and dignity and they will suffer no abuse or torture, because to do otherwise would bring dishonor upon our sacred cause. That's one of the first orders given to the continental army and that antedates the United States. It has been military tradition for 240 years, and it was stopped by Donald Rumsfeld.

Let's go back to Abu Ghraib. What impact do you think that scandal has had on the growing number of insurgents in Iraq today?

I think the decision to use these harsh methods has had everything to do with the growing insurgency. I think Rumsfeld was not expecting this insurgency. He and the people in the White House had been running around for the prior several months saying its just a handful of dead-enders and they'll be done with in no time. Then in the course of the summer of 2003 they began to realize that doesn't wash, it was ridiculous to make this assertion. And obviously, it was far more serious than that. It wasn't just a handful of Baath Party leaders. It was, in many places, a popular rebellion that embraced entire villages.

That popular rebellion, how much was Abu Ghraib a catalyst for it?

Well it was. One thing is quite clear. When people in the U.S. learned about the scandal, when “60 Minutes II” ran that story at the end of April, it became quite clear that masses of people in Iraq knew about it already. It was because they would visit people in the prison and see what was going on and news spread. That shocked people in Iraq. Most people in Iraq really believed that the United States was different, that people in the United States embraced concepts of honor, dignity and humane treatment. I think deep down inside they really believed that until Abu Ghraib. Then they came to believe there wasn't a helluva lot of difference between the United States and Saddam Hussein. The United States was using the same facility to torture that Saddam used!

What is the status of Abu Ghraib today?

It's been cleaned up, but it's still open. We see now more investigations going on. I have information that the Pentagon has recently completed a systematic investigation of abuses in Afghanistan. There are some 60 service personnel involved in that review. The patterns of abuse are exactly the same things that went on in Abu Ghraib: sexual humiliation, stress positions and similar tactics. Those techniques were not the product of some depraved thinking of the grunts and the MPs, as Rumsfeld would make you think. Those were tactics that were consciously developed over time by the United States (psy-ops) people, and they were developed for use in Arab cultures where there is a sense that sexual taboos were very strong, that you could humiliate and break people by manipulating sexual taboos involving nudity and improper sexual conduct.

Those kind of information gathering techniques, do they even work? Isn't there an idea that people will just say what interrogators want to hear when they are subjected to that kind of situation?

First of all, the United States takes the position that they will not disclose their interrogation techniques because that would undermine their efficacy. That's a reasonable position. If every one knew what the U.S. was going to do, people could prepare for it. That's a fair position to take. I'm just going to say, they have to follow the law and the law prohibits torture, cruelty and human degrading treatment. They cannot cross the line. But they have been systematically crossing the line for the past few years and this was not prior American practice.

With respect to torture, specifically, we have decades of detailed studies by psychologists and medical professionals and all of that scholarship boils down to one proposition: If you torture people, they don't tell you the truth; they tell you exactly what they think you want to hear.

For Donald Rumsfeld, who went into this war with very fixed preconceptions, he was never interested in hearing the truth. He was interested in having people reaffirm his preconceptions. I think he is absolutely predisposed to like torture as a technique and to value the fruits of torture, which are false. I think that is the core of our problem here.

How then will these crimes be prosecuted in the United States?

I'd say the first step that needs to be taken is to redress the problem in terms of policy in the military. That's the first thing—to stop this abuse. That could be done pretty easily. The bottom line is, the United States did this right for 240 years. You just have to go back to U.S. military doctrine. In fact, if you look at all these papers that came out and the counter statements, you'll see consistently that there are very forceful people in the administration who are arguing for the right course. Those were Secretary of State Colin Powell, the Joint Chiefs of Staff and the Judge Advocates General. They were consistent and correct. The problem came from a group of politicos at the Pentagon who never wore a service uniform in their life, and who don't understand or respect the noble traditions of the military.

Who would that be?

Dick Cheney, Donald Rumsfeld, Douglas Feith, Stephen Cambone and Paul Wolfowitz. Of that entire group, Rumsfeld is the only one who did wear a uniform. He was a trainer. But I would say his position continuously evidences contempt for the uniformed service. None of the others ever served. All of them obtained deferments and dodged the draft.

Back to the prosecution question. What is the next step?

Rumsfeld arranged a series of Department of the Army and Department of the Navy internal investigations. Now he did that conscious of one thing. They are only permitted to look down the chain of command; they may not look up the chain. Meaning that neither he nor any of the other political leadership at the Pentagon can be subject to any review or scrutiny.

Second, who would usually have responsibility for criminal investigation of the wrongdoings of political leaders? The Department of Justice. We have a problem here. Because senior officers in the Department of Justice were complicit in these abuses from the beginning. Who wrote the memoranda attempting to authorize torture? The Office of Legal Counsel, Department of Justice—involving the Attorney General himself, John Ashcroft. Do you think Mr. Ashcroft is going to start a criminal investigation that involves himself? No. Or the senior members of his staff? No.

There's only one possible solution. About a month ago, I stood on the podium in Washington, D.C., with eight retired generals and admirals, and we together and made the call for the appointment of a 9-11-style commission to be authorized by Congress that would have subpoena power and the ability to investigate all of this and get to the bottom of it, write a report about it and also make referrals for criminal action for those individuals who have violated United States law, and that includes the War Crimes Act.

If this commission went forward based on evidence you've already seen, who should be the first person investigated?

It has to start at the top of the Department of Defense. To me, the senior officer of the government who is most clearly, directly involved is Donald Rumsfeld, no question about it. And two of his assistants, Feith and Cambone, and his general counsel. They are deeply involved in this and they made a number of egregious mistakes to produce this tragedy. You can go up from there too. There was clearly the connivance of key figures in the Department of Justice, the Attorney General and several assistant attorneys general. Then if we go to the White House, it's completely clear based on the documents that Vice President Cheney was deeply involved in advocating for torture, a very aggressive advocate through his lawyer, David S. Addington. Condoleezza Rice new about it and decided to remain quiet.

The branch of the government that comes out the cleanest in all of this is the Department of State, which from beginning to end, consistently showed full appreciation of U.S. military doctrine and aggressively advocated continuing the noble traditions of the U.S. military. As did, by the way, the senior officer corps at the Department of Defense. If you saw the “Frontline” piece, you know there is a battle royal going on within the Pentagon between a tiny handful of political radicals—Wolfowitz, Feith, Cambone and Rumsfeld—and the officer corps. The officer corps in the Pentagon, by the way, are overwhelmingly Republican conservatives. This is not about political ideology. It is about the traditions of the uniformed service, which these political radicals did not understand and did not respect.

Why are they so silent? Who joined you at the podium?

Those were retired officers. Whenever people retire, then they speak publicly. But, under our system of government, we have a principle of civilian control of the military, a constitutional principle, which is very important. It would be a breach of that principle were the uniformed service officers to stand up publicly and challenge the White House, Secretary of Defense or other political leaders. I think that's an appropriate doctrine, but it creates the dilemma they are in.

How do you know there was that battle royal then?

I've seen the document trail. I've talked to a lot of people there. The people that came to me were very senior Pentagon officials. As I said, they are not politically liberal. These are political conservatives. I don't think any of them ever pulled a Democratic lever. I've listened to Rush Limbaugh and other right-wingers talk about Abu Ghraib, and everything instantly becomes Democrats versus Republicans.

To me, this is one of the complete inanities of our age, this (expletive) that goes on in conservative talk radio. Everything is polarized and divided this way. To me, the idea that these fundamental humanitarian notions that our country was founded upon, that this could become a matter of political dialogue between Democrats and Republicans is just shocking. I mean, we have just fallen into an incredible gutter for that to happen. There is no respectable position to be taken supporting torture. None. And this is the reason why they sought so aggressively to keep this hidden and obscured, and why they lied incessantly about it. There is no way to defend what they did. It's just wrong. Everybody learned that when they went to Sunday school when they were 5 years old.

Back to this call for a commission. What progress has been made in Congress?

It's been endorsed by the American Bar Association. The legislation has been drafted and co-sponsors are being solicited. It's not going to go anywhere until after the election. I think Republicans who are sympathetic to it really can't be involved with it when the election is underway. It looks too much like an attack on the administration. When the election is passed then I expect to see a big push to get this done. The key is to get the Republicans who have been most aggressive raising their voice on this issue to support it. That's Sen. John McCain (R-AZ), Lindsey Graham (R-SC), Chuck Hagel (R-NE), Richard Lugar (R-IN) and in the House Henry Hyde (R-IL), Chris Smith (R-NJ). There are a dozen Republicans who are tremendously upset about this. This has deeply damaged morale in the Pentagon and that has got to be reversed.

As for morale in the military right now, it's not just in Iraq that it's bad. It's bad in the Pentagon, where you have senior career officers who feel abused and mistreated, manipulated. They feel that the honor of their military uniform has been disrespected by their civilian leaders. That's a pretty profound crisis right now. I would say, without equivocation, the worst Secretary of Defense we've ever had is Donald Rumsfeld. He's been the most damaging and destructive and single-handedly brought disgrace on our entire country. He deserves to be investigated.

The political rancor is going to continue after the election. When can the public expect the truth to come out?

Colin Powell gave an interview to a television station in Indonesia when the scandal first broke. He said watch very closely what is happening, because you are going to see how a modern, mature democratic society copes with a crisis, investigates it, gets to the bottom of it, and punishes those who are responsible. We're still waiting to see that. This is a fundamental test for American democracy. Are we still capable of dealing with political problems, or have we established such a cocooned and all powerful political apparatus that they stand above the law and can never be held accountable for their errors. That's the fundamental question.

That's the future of our federal government in a nutshell?

The future of our society. I do think that it's ironic that an administration that prides itself on its religious fervor and faith brings about the most disgraceful and unethical conduct in the history of the country.

Even transcending the Vietnam-era lies of LBJ and the criminal acts of the Nixon administration?

I don't think that even begins to compare. Someone said to me the other day that this is nothing compared to the My Lai massacre in Vietnam. I would say, you couldn't begin to compare Abu Ghraib with My Lai, which involved the heat of a battle. In the heat of battle, mistakes in judgment occur, civilians are killed. That happens in every single war. It's part of the human condition. It always happens. What we have here is a group of political leaders at the highest echelon of the government setting policy to systematically violate the requirements of law respecting the humane treatment of detainees, systematically plotting to legitimize torture.

Are there more photos from Abu Ghraib?

Many more. The ones released are not the most egregious.

What do you see as the media's role in answering the fundamental question Secretary Powell posited?

The media has a key role in disclosing the facts and bringing the documents to light. We are in the process right now of seeing the second shoe drop. Rumsfeld and the CIA are sitting on reports, right now, that have already been completed. They won't release them, because they could have a negative effect on the election. They'll come out after the election. The administration is running a gulag archipelago of torture camps around the world, in Jordan, Singapore and other places. They've been investigated by Congress and the bar association. We'll release our report this week. That's the next shoe that's going to drop. There is a lot more still to come.

The uniformed officers in the Pentagon have leaked a lot of these documents anonymously already, right?

There are a very large number of patriotic Americans serving in high positions in the Department of Defense who are deeply troubled by what has been done and believe that the American public has a right to know about it. Most consistently things are leaked and documents come out in one case only. Which is, when the Pentagon spokesman or Donald Rumsfeld or Stephen Cambone go before cameras and microphones and lie to the American people. Then people in the Pentagon release the documents that expose the lies. It almost never happens any other way. The (military officers) in the Pentagon will keep these matters confidential, but they will not tolerate senior officials of the government knowingly lying about what is going on.

How will the election results effect the outcome of the investigation?

It doesn't matter to us who is in the White House. It could be Bush or Kerry. Either way we are going to push this issue. Dealing with President Bush has been an immensely frustrating process. He would go before cameras in the Rose Garden and say I abhor torture, I'm absolutely against it, we won't condone torture, blah, blah, blah, and it has absolutely no effect. The administration just continues on the same blind path it's on, no change, no modification.

What has New Mexico Rep. Heather Wilson's position been on this?

I'd have to go and check. You should ask her.

That's easier said than done.

Well, Heather Wilson has been all over the place on this issue. I would say when the scandal first started, I found her comments to be inappropriately dismissive. And then later she began to pull back from that and I think that's probably because she was contacted by a lot of military people who told her this is very troubling to the military service and of course you have a big military community here in Albuquerque. So I don't know where she stands on this, but she certainly wasn't a leader when the scandal broke. She was one of many people who said raising all these issues and spending all this time investigating it undermines the morale of our soldiers in Iraq.

Actually, if you speak to soldiers in Iraq, and I do all the time, nothing pisses them off more than the fact that the rules were changed and that torture was introduced and brought such shame and opprobrium on them. A lot of them are concerned about coming back to America. They don't know what people are going to think who have seen these photos. It's embarrassing to them. They think it's going to cause people to think poorly of them. They're angry about it. And they're right to be angry about it, because it has stained the honor of the service uniform.

What does this all mean for quelling the growing insurgency in Iraq at this very minute?

Well, on the ground in Iraq, the global war on terror can only be won from a position of moral supremacy. The biggest tactical advantage the United States had going into this was 9-11 and a position of moral righteousness. Abu Ghraib has demolished the American position of moral righteousness. Just demolished it. We have to start a process of building back our good name. That's going to take a generation to do, or longer. But it's going to start with resurrecting the traditions of the military. The Uniform Code of Military Justice should be adhered to. The United States had absolutely correct rules across the board, which were abrogated by Donald Rumsfeld and his cronies.

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