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Analysis: Schlesinger Report

Admiral John Hutson
Former Navy Judge Advocate General
Wednesday, August 25, 2004; 12:00 PM

Two commissions tasked with reviewing prisoner abuse at Iraq's U.S.-run Abu Ghraib prison, released reports this week critical of the military chain of command. The Independent Panel to Review DoD Detention Operations, led by former defense secretary James R. Schlesinger, found a failure to reallocate resources once it was seen that there were severe problems at Abu Ghraib. The Army's investigation, led by Maj. Gen. George R. Fay and Lt. Gen. Anthony R. Jones, is expected to report that the Iraq war plan Secretary of Defense Donald H. Rumsfeld played a key role in shaping helped create the conditions that led to the scandal.

Former Navy Judge Advocate General Admiral John Hutson, currently dean of Franklin Pierce Law School, was online Wednesday, Aug. 25, at Noon ET to discuss the findings, recommendations and implications for the military chain of command.

Howard Kurtz (washingtonpost.com)


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Maastricht, the Netherlands: Dear Mr. Hutson,

I have two questions for you:

Even though the report does a good job in pointing out both leadership and individual failures, isn't it missing the point that these abuses took place because of a "hardening" on the war on terror after Sept. 11 and vague policy guidelines? Looking at some guidelines approved by Secretary Rumsfeld, it is clear that some very vague policies were introduced in Iraq which were left to the interpretation of people at the scene. In your opinion, should the Army field manual, the CIA interrogation manual and the Torture Statute be rewritten with more specific restrictive terms so that these abuses can never happen again due to a vague policy regarding prisoners?

My second question is a specific question regarding the use of dogs. Secretary Rumsfeld expressed his disbelief about the pictures where prisoners are being threathened, and in one case being bitten by dogs. If we look at the three categories that were proposed by William J, Haynes II in a memo of Dec. 2, 2002, to Secretary Rumsfeld of which he approved the first two categories, where the use of dogs was specifically mentioned (number 12): "Using detaines individual phobias (such as fear of dogs) to induce stress." How can the report than say that the vague policies regarding prisoners led to the conditions that subsequently led to the abuses, when such a specific method was personally approved by the Secretary of Defense?

Thank you very much.

Adm. John Hutson: I don't think the manuals and other guidance you mention have to be rewritten; they just have to be enforced. In this case, they were largely ignored or overridden by other, ill-advised and confused, policy. At the end of 2002 and early 2003, the rules regarding interrogation techniques changed several times. That was unnecessary and fraught with peril. People on the ground need to clearly know what the rules are in order to comply with them. They didn't and they didn't.

wrt the dogs, I believe the vagueness the report refers to was the back and forth aspect of the rules in place at the time. That's why sticking to the rules in place would have been a better idea.

"Torture" is a tough word to define. At the outer edges, it's pretty easy, but it gets grey in the middle. Forcing a healthy 21 year old man to stand for hours at a time may not be torture, while forcing an infirm 75 year old woman may be. It ends up being based largely on the circumstances which sets up the opportunity for abuse under the best of circumstances...and these weren't the best of circumstances.

You may note that there ratio of guards to prisoners at Abu Ghraib was about 1:75. At Gitmo, it was 1:1.

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Atlanta, Ga.: The fact that officers in Iraq hid "ghost prisoners" from the Red Cross is very troubling to me. Did the military prisons system in Iraq headed by Janet Karpinski have a Staff Judge Advocate assigned during the time these abuses occurred? Do you know if there is a military lawyer now advising the command and staff of the prisons system there? Thanks.

Adm. John Hutson: I don't think she had a lawyer assigned but LGen Sanchez did.

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Concord, N.H.: Dean Hutson:

Do any of these reports touch on the uncomfortable subject of whether having an all-volunteer force contributed to what happened at Abu Ghraib? One "defense" of a soldier charged is that an "evil" atmosphere existed and that the soldier merely succumbed to those evil influences. Can't we do a better job of screening out both people who might create an "evil" atmosphere and people who might be too "weak" to withstand those evil influences? Or would that hurt recruiting too much?

Adm. John Hutson: Good question, but I don't think I have a good answer. Recruiting is a challenge in several respects. Numbers is certainly one, but also getting people who have the right motivation.

Another issue here is a warzone with too few soldiers, many of whom are not well trained for the particular task they are assigned.

Use of civilian contractors in what have been traditional military jobs is also at play.

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Akron, Ohio: How can such rampant and repulsive abuses at Abu Graib, such as the most recently revealed abuse of Iraqi teenagers, go on without knowledge of the actions going all the way to the top? My husband is a retired U.S. Army Colonel. We have both been saying to each other that the commander of a unit always knows what's going on, and if it's questionable or even dead wrong, it doesn't continue unless he's been ordered to let it continue. These are career-busting, even prosecutable offenses. If a commander let them happen, he must have thought his actions were covered. If he thought that, someone must have told him so. It sounds to me like there's not just one or a handful of rotten apples; the whole barrel is spoiled. I say we dump them out. What do you say?

Adm. John Hutson: I agree with you. This is one of those situations where either the chain of command knew, or they didn't know. One is almost as bad as the other. There were clearly some rotten apples at the bottom of the barrel; but there seem to be some bad watermelons at the top of the barrel.

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Mt. Lebanon, Pa.: How can a commission be "independent" if the people serving on it have pensions from the Pentagon/Defense Department, have ties to current or past administrations, or are prominent members of two national political parties?

Shouldn't true independence be required on these investigations where American taxpayer money is the fuel and the engine is the integrity of the American character?

My guess is many well-qualified Americans that meet the test for independence from Washington could readily be found to serve on these inquiries and commissions. All you have to do is ask.

Thanks much. Vietnam Era U.S. Navy Veteran & political atheist

Adm. John Hutson: Excellent point. I have believed for some time that we need a fully independant, bulletproof, investigative body with nothing to lose and nothing to gain. It must be armed with adequate funding and staffing and, importantly, sub poena power and the authority to take testimony under oath (read: perjury for lying). Only then will we get at the bottom of this.

The 9/11 Commission may serve as a model or the investigation the Admiral (ret) Gehman and his team did into the the shuttle disaster.

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Harrisburg, Pa.: General Karpinski earlier seemed to state she had been out of the loop and was unaware of prison abuses. Now it is being alleged she knew or should have known. What do you think?

washingtonpost.com: Transcript: BG Janis L. Karpinski, (Live Online, May 14)

Adm. John Hutson: Respectfully, and without knowing all the facts, I think she was as derelect in the execution of her responsibilites as any officer could possibly be.

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Lakeland, Fla.: Several weeks ago, the NewsHour on PBS had a segment with three psychologists and one historian discussing the Abu Ghraib prisoner abuses. From their studies and research, they agreed that the behavior of the guards occurred because they believed they had at least tacit approval from superiors to treat the prisoners in the way they did. In your experience, have you found that when rogue behavior happens, there was a permissive tone set by people higher in the chain of command?

Adm. John Hutson: That's an excellent question and you are absolutely right. In the military, the chain of command is critical. The attitudes and behavior demonstrated at the top fall like a rock to the bottom. So, if the attitude at the top is that "they are all terrorists, so different rules apply", very quickly that becomes the attitude at the bottom.

I think Tailhook in the Navy was an example of that and the Navy took dramatic steps to correct not only the misbehavior but also the prevailing attitudes at the top echelons of the Navy.

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Kitty Hawk, N.C.: Risking some over simplification of the prison scandal, was it not a part of a cockeyed plan to falsely imprison 30,000 to 50,000 Iraqis, selected at random, and photograph them in compromising positions? After which these civilians could be subject to blackmail and thereby create a base of informants?

""...The Patai book," an academic told me, was "the bible of the neocons on Arab behavior." In their discussions, he said, two themes emerged -- "one, that Arabs only understand force and, two, that the biggest weakness of Arabs is shame and humiliation."

The government consultant said that there may have been a serious goal, in the beginning, behind the sexual humiliation and the posed photographs. It was thought that some prisoners would do anything -- including spying on their associates -- to avoid dissemination of the shameful photos to family and friends. The government consultant said, "I was told that the purpose of the photographs was to create an army of informants, people you could insert back in the population." The idea was that they would be motivated by fear of exposure, and gather information about pending insurgency action, the consultant said. If so, it wasn't effective; the insurgency continued to grow."

"By fall, according to the former intelligence official, the senior leadership of the C.I.A. had had enough. "They said, ‘No way. We signed up for the core program in Afghanistan—pre-approved for operations against high-value terrorist targets—and now you want to use it for cabdrivers, brothers-in-law, and people pulled off the streets'" -- the sort of prisoners who populate the Iraqi jails. "The C.I.A.'s legal people objected," and the agency ended its SAP involvement in Abu Ghraib, the former official said."
Both quotes taken from:
THE GRAY ZONE
by SEYMOUR M. HERSH
How a secret Pentagon program came to Abu Ghraib.
Issue of 2004-05-24
Posted 2004-05-15

Adm. John Hutson: If there is anything that is clear about this fiasco, it is that it was not a plan.

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Alexandria, Va.: From Tuesday's Post: "...Pittman karate-kicked the handcuffed, hooded Hatab in the chest so hard that he flew three feet before hitting the floor... An autopsy concluded that Hatab had seven broken ribs and slowly suffocated from a crushed windpipe... Pittman could get more than three years in a military prison if found guilty of assault and dereliction of duty."

My question is this: Why isn't this Marine being charged with murder? To characterize the act of thus karate-kicking a restrained, blinded, utterly helpless prisoner in the chest hard enough to crush his windpipe, with the words "assault" and "dereliction of duty," is to grossly understate the crime. What this guy did was sadistic, consciously sadistic (a person with that kind of kicking ability has had training and must know that his leg is a lethal weapon), and as vile as most anything I can think of.

My guess is that the Marine was target-practicing on somebody he thought was a throw-away. How is it that our soldiers were never advised of the notion that if they were to treat the Iraqi people -- all the Iraqi people -- as decently as our highest ideals would require, the Iraqis would be more likely to embrace the opportunity of greater freedom we are trying to deliver? If some (according to the report, more than a few) of our soldiers have behaved like cruel, thoughtless idiots, this has surely done damage not only to the Iraqi people's ability to believe in our mission, and the Arab world's ability to believe in our mission, but many Americans' ability to believe in our mission. I know I am disheartened.

(And wondering if the generation now fighting in Iraq will be dealing with this war as a never-ending headache and heartache for the rest of their lives, in the way their parents' generation has never been free of the unresolved issues of Vietnam.)

Adm. John Hutson: You make some excellent points. wrt the homicide, he may yet be prosecuted. There is no statute of limitations for murder.

My biggest complaint about the lack of leadership in this whole shameful drama is that no one in a leadership position said, "They may be terrorists, they may be evil-doers, but they are human beings and we are Americans. As such, we will treat them with the dignity and respect that Americans treat other humans."

Instead, the messages sent to the troops were very mixed and our reputation and self-respect was thereby tarnished. We will pay the price for that for years to come in ways we can't even convieve of now.

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washingtonpost.com: Admiral, Sen. John Kerry today renewed his call for Donald Rumsfeld to resign. What are your thoughts on how much responsibility Rumsfeld bears for abuses at Abu Ghraib and do you think we'll see any high-level resignations as a result of the newly-released reports?

Adm. John Hutson: Personally, I have been quite critical of Sec'y Rumsfeld in his role in this. I think he failed to make clear the "rules of engagement" for dealing with detainees. Indeed, I think his pronouncements made the made matters worse.

In the aftermath, his statement to the SASC and media that it was just a few bad apples made it more difficult to find the truth. We now know that there are 300 cases of abuse in three countries. We are investigating deaths. It's more than a few bad apples.

I doubt anyone will resign or be fired on the basis of this report.

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Washington, D.C.: These reports seem to point to failures in military leadership, but wasn't "military leadership" largely ignored in planning for the war? Especially in regards to troop deployments. Isn't it really the civilian leadership at the Pentagon that should be examined?

Adm. John Hutson: I thought it was interesting that the report pointed pretty directly at the JCS, Centcom, and the uniformed side of the house, but pulled the punch wrt political appointees. The civilians are either in charge, or they are not, they have to decide. The constitution says they are.

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Lyme, Conn.: Does the military adequately conduct background checks on its personnel? I ask because there have been press reports of at least two people alleged to have abused prisoners in Iraq who were charged to have previously been abusive prison guards in America, including one incident where a prisoner died here in Connecticut. If the military didn't check, why didn't they? If they did check, were they seeking abusive prison guards?

Adm. John Hutson: The background checks for enlistment are fairly cursory. For security clearances (Confidential, Secret, Top Secret, that sort of thing)it's in much more depth. I believe that the abuses we have seen require that we re-evaluate how we are recruiting soldiers.

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Basking Ridge, N.J.: As we discussed the unfolding scandal, last spring as members of the CPA in Baghdad, many of us with Navy or Marine Corps experience viewed leadership issues such as this requiring senior accountability acceptance and resignation as the only acceptable solution. Army and Air Force officers seemed only to support direct individual action accountability leaving the indirectly accountable undeciplined. Does our conflicting ethical values cause the confusion among the military leadership which created this environment for condoning misconduct? Thank you.

Adm. John Hutson: In the military, it is axiomatic that leaders can delegate authority (say, to run a prison) but they can never delegate the responsibility. Therefore, the relevant question is not how high the authority goes, it is how high the responsibility goes.

I think conflicting or unclear values always leads to confusion and often to misbehavior.

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Silver Spring, Md.: Do you think the president has adequately responded to the prison abuse scandal?

Adm. John Hutson: That's a hard question. I think he has to decide whether and who he's going to hold accountable beside the 6 or 7 junior enlisted personnel. Maybe he has made that decision, and we are seeing precisely what it is.

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Washington, D.C.: About prison guards: I read a book about the Pacific war (by Spector) that said the Japanese considered guarding prisoners to be dishonorable and assigned such duty to misfits and psychopaths. Were the worst U.S. soldiers given duty at Abu Ghraib as a punitive measure?

Adm. John Hutson: No, that's not the way it works in the modern U.S. Army.

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Washington, D.C.: This entire series of incidents is a monumental command failure, and it plainly appears that personnel above O-5 are being let off as a matter of policy. As a practical issue, the entire Army MP corps is so top-thin and NCO-dependant that this kind of thing is guaranteed to happen again (over two-thirds of MP branched officers are captain or below, even though they have extremely sensitive duties). A mid-level Intel-branch officer can walk into a large MP operation and instantly be the highest ranking man in the place. Until the Army stops viewing the MP Officer Corps as a short-termer job primarily for company-grades, expect many more Abu Ghraibs.

Adm. John Hutson: I think that it is imperative that we conduct a thorough investigation into recruiting, training, supervision, leadership, command structure, and accountability in order to ensure that this kind of thing doesn't happen again.

Crisis creates opporutunity, if you let it. We have a crisis, and we have the opportunity to make the Army better and ensure we don't repeat this but only if we have the courage to take a hard introspective look at the military.

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Washington, D.C.: So the Schlesinger Report commended Rumsfeld for his handling of the prison scandal once it broke. This just seems like on SecDef giving another a free ride.

Adm. John Hutson: That is certainly an understandable interpretation.

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Cifton, Va.: What's the next step? Will any more reports about Abu Ghraib be coming out and, if so, what good are they really doing anyway? We get report after report with no action really being taken to correct the culture that led to the abuse.

Adm. John Hutson: There are, I believe, 11 investigations either completed or still underway, and yet, none of them has had the necessary tools and authority to get the entire job done well.

What we really need,as I said earlier, is a bulletproof investiation from view of the entire battlefield from 35,000 feet.

This patchwork quilt of discreet investigations will only result in disageement among the various investigations, which we have alreaady seen, and run the risk of important issues falling between the cracks.

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Centreville, Va.: There was a plan. There is documentation and written evidence. You and this report are just trying to gloss over the facts and blame it on lax chain of command and rogue personel. My husband was an officer in the Navy for 20 years and no enlisted person would do anything without the approval of their commander and no officer would do anything without approval from his commander. It goes to the top. You can whitewash it all you want, but it goes to the top.

Adm. John Hutson: Gee, I thought I was being fairly critical. There were a ton of failures. There was confusion about what rules applied and what techniques were permitted. There was a failure to plan for the intensity of the post-war insurgency; a failure to react quickly once the intensity became apparent; a delay for additional, trained personnel at Abu Ghraib and elsewhere; poor training, supervision, and leadership; and an incomprehensible chain of command.

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Arlington, Va. (Civ. Correctional Officer): RADM Hutson -- many thanks for participating in this session and for your very candid, very essential comments.

In civilian correctional facilities, there is normally a statutory requirement that non-facility/non-agency personnel must conduct periodic announced and unannounced facility inspections. In New York State, every local lock-up and jail must be inspected monthly by local judges, who need not pre-schedule their visits. State prisons are likewise inspected by State judges. In Virginia, all local jails are inspected by the State DOC, and are also headed by elected sheriffs who can be removed at election time in the event of scandal. Federal BOP facilities are inspected by Federal judges, and by DOJ's IG.

But in military facilities, it seems that absolute secrecy and non-accountability is the rule. This may convey the impression to Correctional MPs that they are intended by command to be non-supervised.

This system strikes me as fundamentally dumb. Any thoughts?

Adm. John Hutson: Abu Ghraib stands as a model of how not to run a prison. It was appallingly understaffed by essentially untrained personnel who couldn't possibly comprehend the chain of command. It was in a warzone and had a mission that included interrogation in addition to safekeeping. (It appears rehabilitation wasn't on the screen).

Certain prisoners were kept "off the books."
Who thought that was going to work OK? It was a recipe for disaster.

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Alexandria, Va.: Admiral:

Can you comment on the respective roles of full-time soldiers vs. reservist soldiers or civilian contractors as military police at Abu Graib? Did this contribute to the "permissive tone?"

For example, If need my car repaired I prefer to have a trained mechanic perform said repairs instead of a "temp worker?"
Was this a factor?

Adm. John Hutson: Sure, those things were key factors. CIA, civilian contractors, MI, MPs all mixed together. when everyone is in charge, no one is in charge. It's fundamental.

The reserves and Guard do a wonderful job, forthe most part. But whether reserve, Guard or active duty, you have to be well trained and well led. These folks were neither.

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Bethesda, Md.: Early on someone in Congress remarked that if the only people punished for this scandal are privates and seargents then justice will not have been done. Have the higher ups, for the most part, escaped accountability?

Adm. John Hutson: So far.

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Kennesaw, Ga.: Dean Hutson: First of all, thanks for doing this chat.

I have some concern about the evident public confusion about how the abuses of detainees in Iraq and Afghanistan were allowed to get to the state they were. The Schlesinger, Taguba and other investigation reports point to a system that got overloaded: leadership that did not expect or know how to deal with large numbers of prisoners, inadequate numbers of troops assigned to prisoners, second-rate officers unsure as to what their responsibilities were reporting to senior officers who responded much too slowly to reports of abuses.

Some media commentary, on the other hand, has pointed to instances of prisoner abuse in Iraq as flowing directly from administration policy toward detainees at Guantanamo. While I have some reservations about that policy, it seems to me that the ugly incidents in Iraq and Afghanistan happened precisely because procedures designed for use at Guantanamo were not followed.

Have you any thoughts on this?

Adm. John Hutson: My answer probably won't be directly responsive but let me say this. The decision was made early on that the Geneva conventions didn't apply to those in Gitmo because they were terrorists. Sec'y Rumsfeld said in reference to the detainees in Gitmo, "They are all terrorists, so different rules apply."

The war in Iraq was then itself billed as a war on terror, among other things. I believe that created confusion about whether the Geneva Conventions applied in Iraq or not. that confusion was never cleared up.

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Columbia, Md.: The question of "Ghost Prisoners" has come up but has not really been adequately addressed. Secretary Rumsfeld has stated recently that he hid prisoners "off the books" at the request of Director Tenet (I believe). He also indicated that this situation was continuing. Since this is a clear violation of the Geneva Convention, why hasn't any action been taken to correct this violation?

Adm. John Hutson: I'm not sure that action hasn't been taken all detainees are now "on the books". The rules contained in the Geneva Conventions aren't enforceable except through public pressure (domestic or international) and diplomacy. Or, for example, the War Crimes Act, a domestic law, incorporates "grave breaches" of the GC as a war crime.

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Albany, N.Y.: Iraq has been a huge black eye for Bush. No WMD have been found and the Iraqi resistance has left us heavily committed in Iraq for an indefinite period of time, severely limiting our ability to respond militarily anywhere else. This, the rising cost and the rising death toll have severely danaged Bush's re-election campaign. Given this, it is simply not credible to me that very senior DoD officials, acting at the behest of the White House -- and perhaps the White House itself, directly -- would not have made it known to the field commanders that they wanted major results in a hurry by any means necessary. Yet this seems to be unexplored. The investigations do not go above Sanchez. If my analysis is correct, any role Sanchez would have played would have been that of a participant, not an initiator. I think that the trail needs to be followed wherever it goes, and I am very concerned that this is not happening.

Adm. John Hutson: I agree. That's why I suggest we need this super investigation that is empowered to go wherever the trail leads. If they pull the string and someone in the E-ring of the Pentagon wiggles, so be it.

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Santa Barbara, Calif.: Is it naive to expect an officer in charge to step forward to say, "this happened under my command; without my knowledge, but under my command, and therefore I'm responsible." It seems every officer involved is busy saying "I didn't know, I didn't know."

Adm. John Hutson: It's not only not naive, it is precisely that kind of accountability, moral courage, and even self-sacrifice that demonstrates true leadership.

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Boca Raton, Fla.: Admiral Hutson,

First thank you for your service.

Your answer to Concord included this sentence: "Another issue here is a warzone with too few soldiers, many of whom are not well trained for the particular task they are assigned."

To me this says it all of why Secretary Rumsfeld should be held accountable. He was the one who vetoed General Shinseki and he was the one who went in on the cheap.

Abu Graib is nothing more than a vivid example of Sec. Rumsfeld's short sightedness.

Sir, your thoughts please.

Adm. John Hutson: I can't quote it exactly but Sec'y Rumsfeld has some pretty good rules to live by. One of them was essentially that you should always be willing to resign. It makes you more better at your job and more valuable to the President.

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Arlington, Va.: Can you tell us if any civilian contractors have been named in Gen. Fay's report? Did they work for Titan or CACI? What are the chances of these civilians being prosecuted?

Adm. John Hutson: I believe General Fay's report comes out tomorrow.

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Kendall Park, N.J.: I've read that several soldiers believed to have mistreated prisoners or raped fellow soldiers have received nothing more than a dishonorable discharge, with no court-martial or other punishment. This is because commanders have discretion over consequences for misbehavior. Do you agree with this? Shouldn't there be penalties for crimes committed by troops that are more in line with penalties a civilian would face? A discharge just seems like letting them off the hook. I'd hate to think someone who raped a woman in Iraq could move next door to me because the military didn't see fit to punish him with jail time.

Adm. John Hutson: I don't know the facts, but you can't get a dishonorable discharge without a court-martial. If your facts are correct, perhaps they pled guilty in exchange for a pretrial agreement limiting the sentence.

I have to sign off now. Thanks everyone for you superb, thoughtful questions. This is a tough time in our history. We all need to stick together and work to ensure there is a thoughtful, reasonable dialogue.

John

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