Long before official reports and journalistic exposés revealed the horrific abuse of Iraqi prisoners at Abu Ghraib, high-ranking American officers expressed their deep concern that the civilian officials at the Pentagon were undermining the military's traditional detention and interrogation procedures, according to a prominent New York attorney.
Scott Horton, a partner at Patterson, Belknap, Webb and Tyler who now chairs the Committee on International Law of the Association of the Bar of New York City, says he was approached last spring by "senior officers" in the Judge Advocate General Corps (JAG), the military's legal division, who "expressed apprehension over how their political appointee bosses were handling the torture issue."
Prompted by their allegations, Horton and other members of the New York bar began to compile a report examining U.S. and international legal standards governing the treatment of military prisoners. The 110-page report, released last week, leaves no doubt that the practices revealed at Abu Ghraib violated both U.S. and international law. During the preparation of that report, Horton and his colleagues were more concerned with practices in Afghanistan and Guantánamo than in Iraq. What they have learned recently, however, suggests that questionable practices and attitudes toward prisoners stem from broad policy decisions made at the very highest levels of the Defense Department.
Indeed, Horton says that the JAG officers specifically warned him that the undersecretary of defense for policy, Douglas J. Feith, one of the most powerful political appointees in the Pentagon, had significantly weakened the military's rules and regulations governing prisoners of war. The officers told Horton that Feith and the Defense Department's general counsel, William J. Haynes II, were creating "an atmosphere of legal ambiguity" that would allow mistreatment of prisoners in Iraq and Afghanistan.
Haynes, who was recently nominated to a federal appeals court seat by President Bush, is responsible for legal issues concerning prisoners and detainees. But the general counsel takes his marching orders from Feith, an attorney whose scorn for international human rights law was summed up by his assessment of Protocol One, the 1977 Geneva accord protecting civilians, as "law in the service of terrorism."
How did the "permissive environment" that encouraged rampant criminality and cruelty arise at Abu Ghraib? According to the JAG senior officers who spoke with Horton, Pentagon civilian officials removed safeguards that were designed to prevent such abuses. At a detention facility like Abu Ghraib, those safeguards would include the routine observation of interrogations from behind a two-way mirror by a JAG officer, who would be empowered to stop any misconduct.
The JAG officers told Horton that those protective policies were discontinued in Iraq and Afghanistan. They said that interrogations were routinely conducted without JAG oversight and, worse, that private contractors were being allowed unprecedented participation in the interrogation process.
"The Uniform Code of Military Justice, which governs the conduct of officers and soldiers, does not apply to civilian contractors," Horton says. "They were free to do whatever they wanted to do, with impunity, including homicide."
After hearing the complaints of the JAG officers, Horton and his bar colleagues wrote to Haynes at the Defense Department and the CIA's general counsel in an effort to clarify U.S. policy on the treatment and interrogation of detainees. Those inquiries, he recalls, "were met with a firm brushoff. We then turned to senators who had raised the issue previously, and [we] assisted their staff in pursuing the issue directly with the Pentagon. These inquiries met with a similar brushoff." The Bush administration wanted no meddling by human rights lawyers.
Horton says that career military officers at the Pentagon were "greatly upset" by what they regarded as the deliberate destruction of traditions and methods that have long protected soldiers as well as civilians. Those officers and others who may have evidence to offer are obviously reluctant to speak because they fear reprisal from the Pentagon and the White House. It is to be hoped that in the investigations to come those conscientious officers will be able to tell what they know about the decisions that led to this national disaster.
Joe Conason writes for the New York Observer and Salon.