Marjorie Cohn: Playing Politics With Torture

As George W. Bush prepares to take center stage at Madison Square Garden, two reports released in tandem purport to represent thorough investigations of the 'abuses' at Abu Ghraib prison in Iraq.

The near-simultaneous publication of the Schlesinger Report and the Fay Report is not coincidental. Following Senator John McCain's admonition when the Abu Ghraib scandal broke back in April, the Bush administration wants to get all the bad news out now, so it will be overshadowed by the Grand Ol' Party in New York next week.

The 'Independent' Panel to Review Department of Defense Operations, aka the Schelsinger Report, was prepared by a team Donald Rumsfeld selected from his own Defense Policy Board. Not surprisingly, it stops short of pointing the finger at the Secretary of Defense, or the President.

An Army panel headed by Maj. Gen. George R. Fay likewise accepts at face value Rumsfeld's denial that he had any knowledge of the atrocities perpetrated by Americans against Iraqis.

After all, as Rumsfeld claimed Thursday,"if you are in Washington, D.C., you can't know what's going on in the midnight shift in one of those many prisons around the world." The Secretary evidently hasn't heard of telephones, faxes or email.

Rumsfeld hadn't even read the reports - or even the executive summaries - when he denied in a radio interview in Phoenix that abuses took place during interrogations at Abu Ghraib: "I have not seen anything thus far that says that the people abused were abused in the process of interrogating them or for interrogation purposes."

In fact, the Fay report found that 13 of the 44 instances of abuse took place during interrogations. And Rumsfeld would only have had to read the first paragraph of the Schlesinger report, which says: "We do know that some of the egregious abuses at Abu Ghraib which were not photographed did occur during interrogation sessions and that abuses during interrogation sessions occurred elsewhere."

Nevertheless, the reports read like an apologia for the mistreatment: the prison was understaffed, personnel were not well-trained and lacked discipline, and they were under pressure to get information in the Global War on Terror. Yet only one-third of the documented atrocities took place during interrogations. And they don't remind us that, according to the Red Cross, 70 to 90 percent of those held at Abu Ghraib were there by mistake.

Neither report discusses the well-established doctrine of "command responsibility." Where a commander, even a commander-in-chief, knew or should have known about misbehavior committed by his inferiors, and the commander fails to stop or prevent it, he is just as liable as the soldier who committed the offense.

So the question is whether Rumsfeld or Bush should have known about the unleashing of dogs on two juveniles to see if they would defecate on themselves, the rape of a young screaming prisoner, or the man the CIA killed and left dead in the shower for others to smuggle out on ice as if he were still alive. Should the Secretary and the President have known that forced nudity around Abu Ghraib was commonplace?

The Schlesinger report adopts the well-worn adage that good news travels up the chain of command, but bad news does not. The suggested fix: Rummie needs a better pipeline.

Newly leaked secret portions of the Fay report confirm that Lt.Gen. Ricardo S. Sanchez "approved the use in Iraq of some severe interrogation practices intended to be limited to captives held in Guantanamo Bay, Cuba, and Afghanistan."

The Schlesinger report uncritically agrees with Bush's decision that the Geneva Conventions don't apply to al Qaeda and Taliban prisoners; therefore, severe treatment was permissible in Gitmo and Afghanistan.

But unfortunately, according to the report, the Gitmo and Afghanistan practices somehow "migrated" with the interrogators to Iraq, where prisoners should have been protected by Geneva.

Missing from the analysis is a reminder that Geneva requires a competent tribunal - not George W. Bush - to decide whether a prisoner falls under the Geneva Convention on the protection of prisoners of war. Even if the prisoners at Gitmo and Afghanistan are not POW's, they are still entitled to humane treatment under Geneva.

Even more forceful interrogation practices conducted by the CIA provided a role model for soldiers and civilians at Abu Ghraib. Although alluded to in the Fay report, the CIA insists on keeping secret the document that served as a template for unauthorized interrogation practices.

Although 44 allegations of brutality are chronicled in the Fay report, there is no thorough discussion of why many of them may actually amount to torture, not simply "abuse." In fact, the executive summary classifies rape as "abuse," even though it is well-accepted that rape constitutes torture. Yet Fay used the 't' word at a Pentagon news conference. He admitted to reporters: 'there were a few instances when torture was being used."

The Schlesinger report, again walking in lockstep with the Bush administration, slams the venerable International Committee of the Red Cross for saying Bush's classification of prisoners as 'unlawful combatants' violates the Geneva conventions.

While concluding the Secretary of Defense had no knowledge of the abuses, the Schlesinger report accuses the Pentagon's top civilian and military leadership of failing to exercise sufficient oversight and permitting conditions that led to the abuses. Rumsfeld's reversals of interrogation policy, according to the report, created confusion about which techniques could be used on prisoners in Iraq.

A major omission in the reports is mention of the effect of the 'legal' memos prepared by the Defense and Justice Departments that justify the use of torture during interrogations. Under U.S. law, torture is never permitted, even in wartime. Yet the memos advise Bush and Rumsfeld how they can avoid prosecution under the federal torture statute. This advice should surely figure in to a discussion of whether our leaders should have known what was happening on their watch.

Indeed, more than 300 lawyers, retired judges, and law professors, including a former FBI director and an ex-Attorney General, seven past presidents of the American Bar Association, and this writer, signed a statement denouncing the memos, which, we wrote,"ignore and misinterpret the U.S. Constitution and laws, international treaties and rules of international law." The statement condemns the most senior lawyers in the DOJ, DOD, White House, and Cheney's office, who "have sought to justify actions that violate the most basic rights of all human beings."

Even the conservative American Bar Association criticized what it called "a widespread pattern of abusive detention methods." Those abuses, according to the ABA, "feed terrorism by painting the United States as an arrogant nation above the law."

In July, Brig. Gen. Janis Karpinski, part of the command structure at Abu Ghraib, alleged that Rumsfeld personally approved the transfer of harsher interrogation methods from Guantanamo to Iraq, a charge the Defense Secretary denied.

Karpinski also told the BBC she met an Israeli who worked at a secret intelligence center in Baghdad. The Israeli government has denied that charge, as well as FBI allegations yesterday that Larry Franklin, an Israeli spy in Undersecretary of Defense for Policy Douglas Feith's office, supplied Israel with classified documents including secret White House policy deliberations on Iran. Before the war, Feith set up a special intelligence unit to link Iraq with Al Qaeda. Franklin also has ties with Deputy Defense Secretary Paul Wolfowitz, architect of Bush's Iraq policy. The FBI's new bombshell may lead to evidence of Israel's undue influence on Bush's Iraq - and Iran - policy.

It's secrecy as usual in the Bush administration.

A recent editorial in The New York Times about the Schlesinger and Fay reports found it "pretty obvious that Mr. Rumsfeld's panel - two former secretaries of defense, a retired general and a former Republican congresswoman - was not going to produce a clear-eyed assessment of responsibility." But the Times went on to say: 'the two reports do make it starkly evident that President Bush's political decision to declare the war over far too prematurely and Mr. Rumsfeld's subsequent bungling of the occupation set the stage for the prison abuses."

John Kerry has called on Donald Rumsfeld to resign, but added,"The buck doesn't stop at the Pentagon." James R. Schlesinger, a former defense secretary in two Republican administrations, had his marching orders, however. Rumsfeld's resignation, Schlesinger told the media, would only help our enemies. Remember that when the photographs came to light last spring, Bush declared Rumsfeld was 'the best secretary of defense the United States has ever had."

The dots are all there to connect up the chain of command to the top. Next week, we will see more smoke and mirrors as the GOP launches its Texas sweetheart toward the White House once again. There will be additional studies of the "abuses" at Abu Ghraib. What is less certain is whether the Commander-in-Chief and his Secretary of Defense will be held accountable for a war that never should have been, and a policy that led to the torture of so many prisoners.

Marjorie Cohn, is a contributing editor to t r u t h o u t, a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

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