BY Scott Horton
PUBLISHED August 25, 2007
Earlier this week the Judge Advocate General of the Army, Major General Scott Black, issued a memorandum for the JAG Corps which has been secured by No Comment (readers who wish to view it can email me for a copy). Referencing President Bush’s July 20 Executive Order, which appears designed to authorize highly coercive, non-Geneva compliant interrogation techniques for use by the CIA, General Black stated:
This Executive Order does not change the standard for the Army. The Army standard of treatment for interrogations and detainees is found in the Army’s FM 2-22.3, and DoD Directives 2310.1E and 2311.01E. These publications, and the DEPSECDEF memo of 7 July 2006, make clear that Common Article 3 is the minimum humane treatment standard. They also establish that, as a matter of Army policy, the treatment standards contained in the Geneva Convention Relative to the Treatment of Prisoners of War and the Geneva Convention Relative to the Protection of Civilians apply for the vast majority of issues which arise in the context of detainee operations. Further, DoD Directive 3115.09 prohibits the use of non-DoD methods in DoD facilities.
I understand from a number of discussions with senior military lawyers that the JAG corps and other senior figures in the military, including general officers at the joint staff level, were completely taken aback by the Executive Order. It was kept secret from them until the last minute, and then they were given only about 30 hours in which to make comments. When they did, their comments were, as usual, totally disregarded.
So why are the military so concerned about rules that are being set down to govern intelligence agency conduct? After all, part of the rationale that resulted in the segregation of the intelligence service from the uniformed military and the crafting of the agency that became the CIA shortly after the end of World War II was just this: the CIA should have greater latitude in which to transact its affairs. It should not be constrained by the fairly restrictive rules, especially rules governing interrogation practices, imposed on the uniformed military.
The troubles reflected by the top brass are complex, but there are two concerns at the middle of things. Both emanate from the fact that the CIA is not designed to, and is unwilling to, operate prisons. It would prefer to leave detainees in the custody of other agencies which do have a prison-running mandate, like the Department of Defense, and visit the prisoners.
• The first concern is that practices, once introduced, wind up being mimicked by military personnel—notwithstanding the clear guidance given by the Field Manuals. This is because interrogation personnel are eager to assimilate new techniques, particularly something they suspect may be cutting edge and effective, and are likely to assume that if other government employees are using it, it must be legal.
• The second concern is more purely legal: there is an emerging doctrine of per se liability for the agency that operates the detention facility in question. Under notions of command responsibility and the older doctrine of respondeat superior, the prison authority may be considered liable for whatever transpires in the prison. They control access and have custody over the prisoner. They are in a position to check the conduct of anyone who visits the prisoner. In cases decided at the end of World War II, both German and Japanese military authorities were help accountable for the torture and mistreatment of prisoners. In several cases, the defense argued that the actual wrong doing was by non-military intelligence agencies. However, the international tribunals concluded that whoever did the abuse, the military authorities were accountable because they had custody of the detainees. Many of these cases resulted in the death sentence. Similarly at the end of the Korean War, the U.S. court-martialed American prison commanders over incidents that occurred at U.S.-run prison camps using the same theory.
This means, in the view of senior military, that the distinctions the Bush Administration is trying to make between uniformed military and the CIA are illusory. The military will be held to account in any event. And the CIA rules have in the past and will in the future “severely undermine military morale and discipline”—to use the language of the Abu Ghraib report authored by Generals Fay and Jones on behalf of the Department of the Army.
Today, Pulitzer Prize-winner
Charlie Savage at the Boston Globe reports that senior military lawyers have now taken their complaints over the Bush order to Capitol Hill:
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