Email between Army Officers re: Slate News Service Article on Detainee Abuse

tveny (7arti 3+6 — art
From: TC--41D SJA
Sent: ust 25, 20042:30 P
To: AJ 4ID OSJA; PT--4ID A;
PT--4ID OSJ PT SJA•
COL S COL - SJA
Subject: FW: GO° Geneva (Slate, Aug 25 2004)

FYI; Interesting article.
war stories Goodbye, Geneva
its time to rewrite the laws of war.
-co_s.0-4
By Phillip Carter rt. (
Slate, Posted Tuesday, Aug. 24, 2004, at 2:19 PMT /14-1-"k tws
This week, the Pentagon releases two new reports on de inee abuses by American troops. A blue
ribbon panel's report released Tuesday concludes that a-L e cast of senior officers, including Lt.
Gen. Ricardo Sanchez, contributed to the Abu Ghraib abus with lax oversight and poor guidance
regarding detainee policy. A second report, authored by thecA my's intelligence branch, implicates
intelligence officers and contractors for taking their interroga too far. Together, the reports
undercut the Bush administration's initial response that these ac were the work of a few rotten
soldiers.
These two reports will get all the publicity, but it's two lesser-known les that should trouble Americans even more. The first report, authored by the Center for Ar , y Lessons Learned at Fort Leavenworth in May 2004, indicates that several American units in Iraq,detained wives and children of insurgents in an attempt to make the insurgents turn themselves inL o) to k while in custody. According to a study by U.S. Army Maj. Christopher Varhola (one of the port's authors), it was also common practice for Americans to "collectively detain ... all males in a giv n area or village for up to several weeks or months." The collective and family detentions served "\ ienate much of the population," Varhola concluded. Such collective detentions played a major rec in inflating the Abu Ghraib prison population, to the point where the Red Cross reported that 70 ercent to 90 percent of detainees were "arrested by mistake." (Lt. Col. Barry Johnson, an Army spo'ke \man in Baghdad, said there is currently no policy endorsing such detentions, and such past dete4tions, fell outside the bounds of standard operating procedure. But Johnson said such detentions c still occur where family members were personally connected to insurgency activities, and comman ers decided it was necessary to detain them.)
A second report, issued this month by the Army's Judge Advocate General School, flames severe troop shortages-especially of military police-for the chaotic and disorganized detain operations in postwar Iraq. It has been widely reported that the Pentagon failed to effectively pla for postwar Iraq and the failure to quickly put military police and civil affairs troops on the ground afte e Saddam Hussein regime's fall contributed to the postwar anarchy that gripped the country for mu h of 2003. But the JAG report goes much further than that, criticizing decisions to delay the deplo ent of the 800th Military Police Brigade (the unit responsible for Abu Ghraib) until well after combat' had begun. From the moment they touched ground, the 800th MP Brigade was behind the eight ball, and it's not
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dear that they ever got a handle on the detainee mission.
Perhaps more interesti ly, the JAG report says the practical questions about how to treat detainees
in Afghanistan and Iraq w re 9verwhelmingly confusing. Soldiers didn't know what they were
supposed to do with detain s and what they were forbidden to do. Detainees usually arrived in
custody with little to no infor, tion about the circumstances of their capture, making it very difficult
for military lawyers to sort goo guy,s from bad. Initially, it was also unclear how to treat detainees in
Afghanistan, partly becausehife House's and Pentagon's hedging over the legal status of
prisoners caught there. When it me time to get intelligence from detainees, there remained
enormous uncertainty about how r interrogators could go and where the line was drawn between
intensive questioning and torture'.
In Afghanistan, issues concerning \e‘tainee interrogation proved among the most sensitive and difficult questions JAs [judge advoc s] faced. Detainees are a potential source of valuable information, and the motivation to e act that information through interrogation may sometimes create strong temptation to test the Ii rt is of the [law of armed conflict]. Questions often co rued the legality of specific proposed inter ation techniques.
Don't be fooled by the circumspect language, ich is typical of all military after-action reports. Even
though they're not shouting from the rooftops lye, it's clear from this report that the Army's legal
community struggled to find the right answers irk the field with respect to interrogation practices, and
that in some cases, the questions were never ftify resolved.
Where international law speaks to these issues, it igenerally quite clear. The 4 1/-' Geneva
Convention Relative to the Protection of Civilian Per - ns in Time of War flatly prohibits the practice
of detaining insurgent family members to get intellige cp. Article 31 of that treaty prohibits "physical
or moral coercion" to obtain information from citizens o 'an occupied state; taking someone's wife
and children hostage certainly qualifies as moral coercio . Likewise, Article 33 proscribes the use of
collective punishment, and Article 34 states plainly that`"[ he taking of hostages is prohibited."
Similarly, international law and U.S. law clearly prohibiitortyre, whether for intelligence purposes or
not. The U.N. Convention Against Torture makes such acts `an international crime, and Section
2340A of the federal criminal code outlaws the practice as w- I
Yet taken together, the four reports raise a compelling questionhould the 20th-century laws of war change to reflect 21st-century methods of war? Reading these lat in the classroom or courtroom is one thing; applying them in the field is quite another. These Armli reports indicate that legal questions surrounding detainee treatment weren't just fodder for memoranda among the White House, Justice Department, and Pentagon. They posed tangible problems for/Comnders on the ground in Iraq,
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th faced with the need to gather intelligence about insurgents who were filling their soldiers. In some cases, commanders appear to have decided that the ends justified-\ eans-that military necessity justified the use of potentially unlawful detention and interrogation practi Gel s.
It's easy to condemn such choices as inhumane and immoral from the reta ive safety of New York City or Los Angeles. And we should condemn barbaric abuses like thosp de icted in the photographs from Abu Ghraib. But doing so does little to address the practical problems *ed by our soldiers in Iraq and Afghanistan, where issues arise every day that don't fit neatly lento either our moral or legal paradigms. The modern laws of war, consisting of the four Geneva Conrntioi* were written in 1949 to apply to state-on-state conflicts that would look like World War II. Since WorldVar II, our nation has fought two conventional wars (Korea and. Desert Storm) and a long lit.pf unconventional or ambiguous wars. The laws of war don't apply so cleanly to places like Somaira, K*vo, Afghanistan, and Iraq. Our enemies, like al-Qaida and the Iraqi insurgents, have adapted to overwelming U.S. battlefield superiority by adopting unconventional tactics that generally break international law.
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And the laws of war don't five our field commanders a good way to respond to this unconventional threat while still staying wit in bounds themselves. The central challenge of counterinsurgency is the proper calibration of forde: . oo uch will alienate the population; too little will allow an insurgency to survive. Good intelligence en: b es commanders to find the right level of force, but such intelligence is very difficult to get in Iraq, bec use of our enemies' zeal and the cultural barriers that prevent us from understanding family and tribal etworks.
A better legal framework is need help commanders in these kinds of ambiguous situations, one
that gives commanders the flexibili on the ground to do what has to be done while not stepping on
our values in the process. Military la yers or international human-rights organizations should play a
key role in this process both to vet posed intelligence tactics and to add a level of accountability
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that will prevent rogue soldiers from gong too far-as may have happened at Abu Ghraib. Some measure of transparency should al o b added. The military can't publicize exactly what they're doing to interrogate prisoners, because that wo estroy the value of these methods. But U.S. forces
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must use international organizations and t e media to tell the world what they're not doing, lest these detention and interrogation tactics be confused with the "disappearances" and torture of Saddam's regime.
The Defense Department began pretrial heqring this week for its military commissions that will try some of the men now held at Guantanamo Bay-,-C,\Iba. The government has justified these men's detention as "unlawful enemy combatants" on the grounds that their organization, al-Qaida, does not fight according to the laws of war. Ironically, al-Qaila's operational doctrine agrees, rejecting international law both as a Western construct and as impractical given the necessity of unconventional warfare in response to U.S. battlefield superiority. So now both the United States and its enemies are defending breaches of internationa the grounds of necessity. That says something about the ambiguity of the war we're now fighti "s, and the extent to which it has corrupted our moral and legal framework for warfare. It should also siAld a note of caution, for there are few slopes more slippery than that from small war crimes to large nes. Any wartime action, no matter how heinous, can always be justified by some battlefield ?xigertcy. We must give our field commanders the legal and ethical framework they need tkdecide which war crimes are really worth it, if any.
Phillip Carter is a former U.S. Army officer who now writes on legal and military affairs in Los Angeles.
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