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May 03, 2004

More on the Iraqi prisoner abuse scandal.

#1. BG Karpinski should just shut up. She's digging the hole for herself deeper and deeper. She wants to take someone down with her, it would seem. I understand she's terrified that she's being set up. Fine. Get with your lawyer, start building a defense that names names. But General, you're just making yourself sound like a fool - and more and more an embarrassment to the uniform you wear.

#2. Between forays over to The Queen of All Evil to defend my criticism of Kerry (which has turned into teaching pigs to wrestle - we're just getting dirty, but the pig's having fun) I got an email with questions from a fellow blogger and frequent commenter. I decided what the heck, why not share the questions and the answers (and, he said I could). Heck, probably over half of my 1200+ visitors today are googling the Iraqi prisoner thing. I must be sitting pretty high in Google on the subject. Therefore: Any JAG types or senior commanders who have the time to read it (and even know about the Castle - feel free to jump in and bash it around, or email with comments. I've got no problem with posting them anonymously for you, and I'd rather put out the current truth as opposed to my fading memories of same.

Without further ado - here we go.

XXX - my responses interspersed among the questions.

I'm writing because I wanted to ask people I know who are or were members of the armed forces some questions to help me gain some context regarding the accusations of prisoner abuse in Iraq. I'm sure you've heard the rationales offered by some of those accused that the leadership was aware of what was going on, and in some cases made allegations that the leadership was either encouraging it or even ordering it. Some of the rebuttals to these assertions I have read include statements that the accused should have known that any orders of this nature were unlawful.

They are correct, they should have known they were illegal orders. Even if true, it's a bogus defense, and simply means more people need to come visit here at Leavenworth for a long tour for failure to do their duty in training these people.

My questions are:

1) It is my understanding that a soldier (or other member of the armed forces) can either refuse to obey an unlawful order or request that order be given in writing. Is this true?

A soldier is required to disobey an unlawful order. In the case where a soldier is not sure that the order is or isn't unlawful, they should request a written order. They should still pursue getting a legal opinion about the order. If a superior refuses to give a written order, you can pretty much guess you're on good ground. I ran into this exactly once. I had a senior officer ask me to purchase something in my capacity as a contracting officer that was clearly outside the guidelines. He knew it was. He knew I knew. And he let me know that this sort of thing was going to happen from time to time over a career and we had to learn to work with it. I told him, give me a written order, please. He threw me out of his office. My boss had to go and fly top cover for me when it came time for fitness reports. He did. I survived. But I did what I did not knowing whether or not my boss would take care of me. I did it because I was supposed to.

When you start getting into junior enlisteds it gets a little less clean. Clearly, they are in positions where they can be intimidated into doing things they feel are probably wrong. I don't think that applies in this case, but I can cut some slack in the punishment phase of a courtsmartial in that regard. Officers don't get any slack - as some of the Kerry-defenders over at Rose's (Dean Esmays wife) site have found out. I don't cut officers slack.

You take a risk when you refuse an order you believe to be illegal. Goes with the territory, and is all part of the integrity thing. If you refuse, and the determination is made that the order was legal - any number of Bad Things can happen to you, depending on the consequences of your refusal to obey. On the flip side, you may work for someone who recognizes you were trying your best to do what was right, have learned that not all circumstances match your conceptions, and all is right with the world. Reality is, the fallout will fall somewhere between the two extremes, depending on the who, what, where, why, and results.

Getting an order in writing, if said order is illegal, isn't necessarily going to relieve you of responsibility (this is where BG Karpinski is going to get her butt in a crack, if she keeps up the way she's going). An illegal order is an illegal order. You are essentially just ensuring other people go in the dock with you. As I said, circumstances count, as do the level of experience and maturity of the junior member of this example, but those are questions for the courtsmartial convening authority and in the punishment phase. The CMCA can simply choose not to prosecute junior people who were seemingly obviously led astray by bad leaders. Or, they can see evidence of a greater level of culpability and leave it to the panel to decide guilt or innocence and appropriate response.

2) If it is true that a member of the armed forces can refuse an unlawful order, would a Reservist or, even more so, a member of the National Guard, feel that they could assert that refusal to an unlawful order, especially if the order was given by a "regular" officer?

The should feel that way. Once on active duty in a federal status, there is no distinction in authority, and Guard and Reserve troops should know this. There is also no official distinction between Guard and Reserve on fully federalized active duty. The distinctions come when in drill status other situations. An illegal order is an illegal order regardless of it's source. Doesn't mean that intimidation can't happen, or that weak personalities won't console themselves with that thought. But there is no statutory distinction in authority regardless of component, when in federal status.

3) It is my understanding that regardless of the level of knowledge regarding the incidents in question, the commander of the facility is ultimately responsible for what has occurred. It appears to me from what I have read that the commander is attempting to deny responsibility. Is it true that the commander is responsible even if she or he were not aware of the incidents in question, and if so, could this officer be subject to court martial over these apparent abuses of prisoners?

Given that I only know what I've read - you've hit it exactly on the head. BG Karpinski seems to be using the defense of "I brought it up to my bosses and they didn't do anything!" I'll buy that from junior enlisted. I'll listen to it from a Second Lieutenant. I won't countenance it from a senior officer, much less a general officer. If Karpinski knew something was going on that was wrong - and she didn't take steps to prevent further abuse of the prisoners while she forced the issue to a resolution through the chain of command - I think she's vulnerable under failure to discharge the duties of her office, i.e., her people were responsible for the safety, health and well-being of the prisoners entrusted to her care. I like to think that had I been BG Karpinski, I would have forwarded my concerns to my superiors, and instituted my own, local investigation. At the same time - I would have ordered my MPs to cease and desist cooperation with the MI types (and reassigned MPs under suspicion) until such time as I could talk to the MI chain of command. If those discussions were unsatisfactory, I would have taken that up with my chain of command - still refusing access to the prisoners by the MI types absent a direct order from competent authority (meaning someone in my chain of command, not the MI). If I got such an order, I would have discussed it with my JAG, and if needed, told my JAG to run it up the JAG side of things.. If those attempts were not producing a resolution to my satisfaction (of legality), I and my JAG would have had face-to-faces with my boss if that hadn't happened already. I suspect by this time I would have either succeeded or been fired. If my internal investigation showed credible allegations of abuse, I would have taken those to my boss (because of the horrible possible consequences) and asked my higher if they would like me to deal with it, or would they prefer it be bumped up to higher and handed off to a different agency (like CID) for further investigation). My lawyer would have lived in my hip pocket. For my money, at this point, everybody in the direct chain of command from the troops to Karpinski is at risk for relief, or should be, and should have to defend themselves. Above Karpinski - that all depends on what she said, how she said it, and to whom she said it - and the actions that result from that. I'm willing to entertain the idea that there are those above Karpinski who should also be retaining lawyers. But I don't have any information to base an informed opinion in that regard. I don't have a whole lot with Karpinski - but every time I read her latest quote in the paper, it isn't helping her case.

I have been concerned for quite some time about the constant undercurrent of reports regarding the "coercive techniques" being used by the US in interrogating prisoners who may have information relevant to the war on terrorism. My concern arose because it seems to me to be a fundamental part of human nature to allow these "coercive techniques" to get out of hand and result in something along the lines of what we appear to have in the case of the prison in Iraq, or to result in instances of outright torture. I want to make sure I am not letting my cynicism regarding human nature overwhelm my intellect when thinking and discussing the apparent incidents in the Iraqi prison. If

Wartime interrogation is always a sticky business, because of the lives on the line. And here is where I have the weakest answer for you. We have pretty robust guidelines about what you can and can't do. We do a lot of them to our own guys when they go through SERE, (Survival, Evasion, Resistance, and Escape) school. You can make someone very uncomfortable physically without actually doing much damage, and with no long-term damage. And you can screw with someone mentally, too. But it has to be watched, or it can, and will, slip over the line. Choosing and training interrogators is a very delicate process, and hard to get right. And keeping them from slipping over to the dark side is probably even harder.

Like it or not - out there where the Iron Crosses grow, it's a shitty world and shit happens. The measure of an Army is not so much if it happens - it will - but how they react and deal with it. The former Iraqi government would either give raises all 'round, or fire 'em for not getting enough info.

So far, we seem to be doing the right thing - and going for prosecution.

Hope this helps.

John | Permalink | Comments (6) | Global War on Terror (GWOT)
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