Friday, January 14, 2005

Court Martial Conspiracy - Redux

Well, the latest Abu Ghraib court martial trial is over, and there is a conviction. On one hand, as a member of society, I am always glad to see people convicted when they are really guilty and they are given a fair trial. I don't want to see people railroaded, I would prefer that guilty people get fair trials and get convicted upon presentation of real and honest evidence. And I would prefer that such evidence exists against guilty people.

However, I have been troubled by these prison abuse scandal trials. Not because I think that the abusers (the soldiers accused of abusing Iraqi detainees who frequently turned out to be incorrectly incarcerated) were good and nice people, but because I think that something is being hidden from us, and that these people are taking the fall for rot that extends far higher up the chain of command.

Last May I wrote two posts about the Court Martial Conspiracies, here and here. I posited then that lower level soldiers would take deals so that they could testify against their own, but so that high level commanders, and especially the bigwigs in Washington, do not get dirtied in the scandal.

Since then, we have found out quite a bit of ugliness that existed from the very top down with regards to our nation's official position on torture. Basically, our country now tortures people, and justifies it in ugly, disgusting ways. Our Attorney General to be, Alberto Gonzalez, wrote about how the Geneva Conventions were quaint and out of date, and that torture only exists in the MOST extreme of circumstances (such as permanently losing an organ) and only if the torturer actually intends to commit the legal act of torture (an almost impossible standard to meet). The person commanding the prison in Guantanamo Bay was moved to Abu Ghraib with the specific purpose of "Gitmoizing" it.

Conclusion, our present administration has decided that all of those virtues we extolled world-wide don't apply to us, they just don't want to admit it. And who is taking the fall for it? That's right, the soldiers who are being asked to carry out these acts. We know that the torture that has gone on by our intelligence services is too pervasive to be "a few bad apples," or "exceptions to the rule." Dozens of people have been killed in custody after being physically abused, this abuse has happened in places as diverse as Afghanistan (at the Baghram Air Base), Abu Ghraib and other prisons in Iraq, and Guantanamo Bay. The only common denominator is the commanders of all three, which is our nation's military and civilian leadership. But, to ensure that this doesn't reach the highest levels of command, we have nailed these lowly soldiers as scapegoats.

It's disgusting.

I remember watching Tom Cruise and Jack Nicholson in "A Few Good Men," where Jack Nicholson, the commander (of Guantanamo Bay, coincidentally) allows his subordinates to take the fall for a murder that he ordered. The cover up is discovered by Tom Cruise, the JAG lawyer, where Nicholson utters the famous line "You can't handle the truth!!!" When I saw it, I thought, "nice fiction." Sadly, that is looking more and more true every day.

Incidentally, I don't believe that "just following orders" should necessarily be a shield for this activity, but I can't shake this nagging feeling that we "can't handle the truth," and that these soldiers are taking the fall for following someone else's orders, someone so politically insulated (by reelection and a compliant Congress?) that anyone who gets in the way gets shoved rudely aside.

UPDATE - Graner was given a 10 year sentence (out of a possible 15 year) by the jury. I saw the movie The Last Castle, with Robert Redford, and I remember thinking to myself, "there is absolutely no difference between military prisons and other prisons). I think that he has to do most of that time, but I'm not sure how military law works in that respect. In other words, it's a severe sentence. I only hope that some of the people who actually killed people get more severe sentences. His lawyer's quote was most fascinating, along the lines of what I've been saying.

"People have talked about this case as being like a Nuremburg trial," he said, referring to the prosecution of high-ranking Nazis who tried to defend
their actions by saying they had followed orders. "There's a difference. In Nuremberg it was generals we were going after. We didn't grab sacrificial E-4s,
we were going after the order-givers. Here we're going after the order- takers."



Windypundit said...

As I understand it (I haven't read the Conventions, just summaries, so I could be very wrong) Gonzalez was right about the Geneva Conventions being "quaint and out of date." Think WWI and WWII, which provided the background for their creation.

The conventions provide for things like a canteen where prisoners can buy supplies such as food and tobacco products. The prisoners are to be given an allowance for this purpose. All quite reasonable in a scenario where we've imprisoned thousands of enemy regular army, and they've got thousands of ours, and we expect a massive prisoner exchange (and settling of POW accounts) as part of the enemy surrender. The Conventions do not adequately address prisoners arising out of conflicts like Afghanistan or Iraq where one of the sides isn't a nation. That makes them out of date.

Also, because they are rules for war, where no enforcement authorities exist, the Conventions are intended to be self-enforcing by relying heavily on reciprocity. If one side in a conflict mistreats its prisoners, that allows the other side to also do so. But how should enemy prisoners be treated if the enemy is, as a matter of doctrine, always cruel to your prisoners?

Lastly, the authors of the Conventions regarded spies, in the military sense of non-uniformed combatants, as a destabilizing influence. They are offered no protection and may be summarily executed. But what about a war in which the other side consists of nothing but spies?

Of course, just because the Geneva Conventions do not prohibit torture does not mean that a great nation should freely condone it. Just to be clear, I think that torturing enemy prisoners is very wrong. (I can't believe I have to say it explicitly.) And I thought that was our military's policy as well.

As for Gonzalez, I suspect he is in the position of a lawyer whose client has asked what he can get away with and he responded with his understanding of the absolute limits. That doesn't mean I want him for Attorney General. This isn't a criminal trial, just a job interview. We don't have to prove he favored torture, it's enough just to detect the stink of it on him.

Windypundit said...

And another thing: I've always felt that "just following orders" has received a undeservedly bad reputation as a criminal defense. Soldiers can be punished severely for disobeying orders, including sometimes even summary execution. To refuse an order, even an illegal one, is to really stick your neck out. And sticking your neck out that way is a requirement of high rank: commissioned officers, not enlisted men.

That said, my theory of this case is that guys like Graner never received actual orders to do these things. If the higher-ups encouraged mistreatment of prisoners, I suspect it was through hints and suggestions and promises to look the other way. So the people they're prosecuting now are the ones who took those hints and ran with them. It's hard to feel that sorry for them, if I'm right.

Brian said...

It is sad, sad , SAD that your opinions about military justice are formed in no small part by Hollywood movies. Perhaps you also think that the greatest threat of a nuclear attack we face is from neo-Nazis.

Anonymous said...

I never got it with that movie. Nicholson is all like "you can't handle the truth! We defend you while you sleep!" and I'm watching it at home thinking "how is this remotely relevant to the offence you are accused of, which is murdering one of your own recruits in a base in Cuba?". I simply don't believe that the USA is under any particular danger of Cuban invasion, or for that matter whether beating unpopular recruits to death as they slept would help all that much if it was.

hiro said...

You have a great blog here! I will be sure to book mark you. I have a alabama lawyer site. It pretty much covers alabama lawyer related stuff. Check it out if you get time :-)