The Unlearned Lessons of Abu Ghraib
President Bush has signed into law Congress's latest attempt to clarify our country's position on proper treatment of detainees and the boundaries of legitimate interrogation techniques. Unfortunately, this legislation demonstrates that both the administration and Congress have failed to learn important lessons from what Bush described as the "biggest mistake that's happened so far" in Iraq: the detainee abuses at Abu Ghraib.
By dissociating potential criminal responsibility from overly aggressive interrogation practices that could be classified as "minor" breaches of the Geneva Conventions, and setting up a situation in which different interrogation practices can be used by our military and the CIA, our national leadership has ensured more abuse scandals.
As part of the Army judge advocate general team investigating and prosecuting the Abu Ghraib soldiers, I crisscrossed the globe interviewing witnesses, collecting documents and studying our national policies, searching for went wrong at that prison. The evidence demonstrated that most of the photographed abuse had little or nothing to do with interrogation; it was done for sport by prison guards. But we also found disturbing conduct by military and civilian interrogators.
The interrogation abuses could be linked to three main areas of breakdown: confusion in the military ranks about what was acceptable behavior, given the conduct of civilian contractors and "other governmental agencies"; migration of certain techniques within the intelligence community without an understanding of how to implement them properly; and exploitation of the ambiguity in apparently innocuous interrogation tactics.
The new law does nothing to remedy these weaknesses.
First, our military and civilian intelligence agencies do not operate in mutually exclusive bubbles. A great deal of interaction occurs as military units capture suspected personnel, hand them over to interested agencies and, often, witness the interrogations. Our service members, especially Special Operations forces, will see the double standard -- the CIA's and the military's. This blurring was a main complaint of Abu Ghraib prison guards.
Army Maj. Gen. George Fay, who investigated Abu Ghraib, wrote in his report that "CIA detention and interrogation practices led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere." The power of the CIA's mystique to influence our soldiers should not be underestimated. Army guards reported seeing unknown men in civilian clothes dropping prisoners off and telling the guards not to give the detainees identification numbers, contrary to usual practices under the Geneva Conventions. The civilians exuded an air of confidence that suggested they knew exactly what they were doing and that this departure from the norm was allowed. Similar issues were unearthed in the interrogation booth, including one instance of a man dying during a CIA interrogation at Abu Ghraib.
The CIA conducted its own internal abuse investigation but never reported the results to any military authority in Iraq, creating resentment, the impression of a double standard and confusion in the military ranks as to what were acceptable practices. Having strict controls over interrogations and the ability to hold individual interrogators responsible for their actions is another important lesson stemming from abuses seen in Iraq.
Chief Warrant Officer Lewis Welshofer, an Army interrogator, exploited the ambiguous language of the "harsh" interrogation approach to wrap an Iraqi general in a sleeping bag, tie electrical cords around the bag and sit on the man's chest in an attempt to scare him with suffocation. The general died. (This was not at Abu Ghraib.) Welshofer was convicted by the military of negligent homicide. But given the language of the new law, it is unclear whether a civilian interrogator performing the same actions would be prosecuted, since it would be impossible to prove that the interrogator "specifically intended" to torture or inflict "severe or serious physical or mental pain."
The new law grants too much latitude in an area where precision and oversight are critical. If confusion reigned in Washington during the past several weeks over whether waterboarding or other, "harsher" techniques would be permissible under the legislation, imagine the results when our agents and service members are faced with the same question halfway around the world and years removed from this debate -- especially if the threat of criminal responsibility is gone.
The better route would have been to authorize mirror-image interrogation techniques for both the CIA and the military and to maintain the possibility of criminal prosecution if an interrogator exceeds these authorized approaches. All interrogators would have more than enough flexibility to obtain necessary information simply by using the approaches recently rewritten into the new Army field manual that governs interrogation.
Now we must wait to see what interrogation rules the president will promulgate for the CIA. Given the administration's rhetoric, there seems little hope for a cure for the systemic problems exposed at Abu Ghraib.
The writer, who served as an active-duty Army JAG officer for more than seven years, participated in the prosecution of 10 soldiers for detainee abuse at Abu Ghraib prison.