“A Few Bad Apples”

 “A Few Bad Apples”


            On October 19, 2003,[1]  Specialist Sabrina Harman of the 372nd Military Police Company picked up a Sony Cybershot camera and began taking photographs of life on Tier 1A at Abu Ghraib prison.  She documented naked prisoners being stacked like cordwood, prisoners being threatened by attack dogs, hooded prisoners, beaten prisoners, prisoners handcuffed in stress positions, prisoners strung up to electrodes.  The perpetrators of this mistreatment were members of her own unit, including herself.


            She and her fellow military police did not understand themselves to be in the interrogation business, but they were unambiguously given to understand that they were “setting the conditions of interrogation.”  Tiers 1A and 1B were devoted to “military intelligence holds,” and MI and CIA personnel were later found by Major General Antonio Taguba’s official investigative report to have directed the MPs to humiliate, keep awake, and otherwise torment the prisoners there, in order to facilitate interrogation.[2]   These directions were invariably oral, never in writing.


            But there was a writing that the interrogators were following when Harman picked up the camera.  It  was known as “CJTF-7 Interrogation Rules of Engagement (October 9, 2003),[3] ” commonly called the IROE.  It included things like stress positions, military dogs, and sleep deprivation.  Since the military and CIA interrogators were recognized to be too few in number to live up to all of the demands of implementing the IROE on the large Abu Ghraib population, it was explicitly contemplated within the ranks of the interrogators that the MP contingent would have to act as an auxiliary force, and not merely as jailers.  Harman and her mates did many things contemplated in the IROE at the direction of the interrogators.


            Accordingly, the members of the 372nd felt free to log their activities, performed them in full view of JAG Corps lawyers who frequently stopped by, and were commended in official counseling forms for their activities.[4]   The International Committee of the Red Cross had visited 1A less than two weeks before Harman’s first photos, had seen the same things, and had been told that the MP corps were acting at the direction of MI.


            Theirs was indeed only an auxiliary role.  The worst abuses were carried out by MI and CIA.  Harman photographed (and was photographed with) one notorious example: a prisoner they nicknamed Gilligan, who had been beaten to death by the CIA and packed in ice.


            The IROE had been issued on the authority of Lieutenant General Ricardo Sanchez, the ground commander in Iraq.  It was an updating of a policy he had issued a month before, on September 14, 2003.  Sanchez later claimed he had had no idea the IROE was ever implemented (which begs the question why he bothered to issue it).  It is true that the policy called for his prior approval each time one of the heightened interrogation techniques was used on “enemy prisoners of war,” and he claims he regarded the 1A detainees as POWs, and was never asked for permission.  But he acknowledged knowing from Major General Geoffrey Miller that the MPs had been tasked to “set the conditions for productive interrogations”[5]  – interrogations which at least in theory could include the torments prescribed in his IROE.


            Regardless, there is no disagreement among the various investigative reports that the IROE was in practice the charter for everything that was done in the Abu Ghraib interrogations.[6]   The IROE’s prior approval language and the detainees’ POW status had no practical effect.


            Sanchez’s September 14 policy and IROE, according to Sanchez, were in turn based on guidance issued by Secretary of Defense Donald Rumsfeld on April 16, 2003 for interrogations at Guantanamo.[7]   To read it, one might conclude that Rumsfeld had reviewed recommendations for a wide variety of torments, and endorsed only the milder techniques – far milder than what Sanchez permitted in ostensible reliance on that memo.


            But there had been another strand of memos.  In a bewildering series of publications and rescissions (largely attempts to accommodate the unsung resistance of the service branch lawyers), the Defense Department approved and then withdrew approval for the harshest techniques.  In such circumstances, however, rescissions were seldom effective because the original policy would keep being republished after the initial publication was technically inoperative.  That was the case here.


            Specifically, the Senate Armed Services Committee concluded that another source of Sanchez’ IROE was “the [Special Mission Unit Task Force] in Iraq’s interrogation policy.”  The SMU TF was reportedly a group of Navy SEALS who had killed a couple of interrogees at Bagram, and then brought their lethal group of techniques to Iraq.[8]   Their harsh policies were formalized in a February 2003 document that their commander neglected to sign, leaving it technically unofficial for Iraq.  That unofficial policy, however, simply rebranded for the Iraq theater an official January 10, 2003 interrogation policy for Afghanistan.  And that January Afghanistan policy, the Senate Armed Services Committee found, had in turn been drafted largely in reliance upon a December 2, 2002 memorandum by Secretary Rumsfeld.[9] 


            Rumsfeld’s December 2, 2002 memo technically applied only to Guantanamo.  Again, that memo inclined toward milder techniques under consideration (if one includes stress positions and isolation among the milder ones).  However, a) the actual interrogation regime at Guantanamo was tougher than that Rumsfeld had formally approved, and b) the December 2, 2002 memo was revoked on January 15, 2003.[10]   Hence SMU TF’s memo in Iraq  was simultaneously based on an actual highly aggressive practice and (at one remove) on a revoked policy memo.


            It will be apparent, then, that the chain of command that led from the MPs on 1A back to Rumsfeld was full of “cutouts”: links that would not implicate the link above or acknowledge linkage to the one below.  The CIA and MI personnel who ordered the things Harman photographed never put anything in writing, and tended not even to use their names.  Sanchez, upon whose blanket authority the interrogators relied, claims in his preposterous memoir Wiser in Battle (2008) to have been shocked, shocked that anyone was actually using the techniques he prescribed.  And he inconsistently a) insists that Harman’s photos captured a one-time event, and b) hints that the MPs were acting at the direction of General Miller, whom the Pentagon had “parachuted” into Abu Ghraib in mid-2003 to restructure interrogation routines there.  (That’s routines, not one-time events.)  Rumsfeld, whose memos indirectly inspired Sanchez’ IROE, could point out that those memos referred only to Guantanamo, only to non-POWs, and that in any case by the time anyone in Iraq relied on them, they had been revoked.


            For what it is worth, however, former Brig. General Janis Karpinski, commander of the Abu Ghraib MPs in 2003, told the Santa Clarita Signal in 2004 that she had seen an unreleased Rumsfeld memo specifically approving these techniques for Iraq.[11]


            Sanchez was also accurate that the Pentagon’s point man in the Iraqi torture chambers was Miller.  It was Miller who at Guantanamo had pioneered the use of military police to soften detainees for formal interrogation.[12]   And the trail for Miller runs right back to the Pentagon anyway.  He had been sent to Iraq at the specific direction of Undersecretary of Defense for Military Intelligence Steven Cambone and Donald Rumsfeld to “Gitmo-ize” interrogation there[13] .  And upon his return, he delivered an off-the-record personal briefing to Cambone and Deputy Secretary of Defense Paul Wolfowitz.[14] 


            In short, no matter how effectively the Pentagon had covered its tracks, the MPs were carrying out Pentagon policies.  It is improbable but possible no one above Generals Sanchez and Miller specifically knew of or ordered the abusive involvement of the MPs in the Abu Ghraib interrogations, but Harman and her mates had been authoritatively recruited to implement policies the chain of command had ordained, albeit with “cutouts,”  winks and nods.


            On January 13, 2004, one of the MPs could bear it no more, and delivered a disk containing several hundred of Harman’s photos to the Army Criminal Investigation Division.[15]   The Army tried to keep the inevitable resulting investigation out of the public eye.  This became impossible, however, after a relative of one of the MPs leaked the photos to CBS in April 2004.


            In addressing the resulting furor, the Pentagon dispatched Undersecretary of Defense Curtis Gilroy, head of military recruiting, to label the MPs “bad apples”[16]  and suggest that they were examples of quality control problems, probably recruits with criminal histories.  And Rumsfeld said the following about those who had followed what were his own orders in all but name: “I take full responsibility. It is my obligation to … make sure those who have committed wrongdoing are brought to justice….  To those Iraqis who were mistreated by members of U.S. armed forces, I offer my deepest apology.  It was un-American.  And it was inconsistent with the values of our nation.”[17] 


            The MPs were in fact “brought to justice.”  Nine of them were duly punished for acting “inconsistently with national values.”  One is still in the brig today.  As to the “full responsibility” Rumsfeld claimed to take, however, we are still waiting on that.


            The immediate question this raises is not the large one about whether the people who directed our torture policies should face accountability.  It is, rather, whether any government boss who allows subordinates to go to jail and have their military careers destroyed for following his own policies should escape a similar accounting.  Shouldn’t we treat the contaminated barrel the same way we treat the bad apples inside?  In fact, wouldn’t it be fair to impose heavier penalties on the Rumsfelds, Cambones, and Millers, who gave the orders, than on a Sabrina Harman (six months in prison and a bad conduct discharge),[18]  who was just obeying them?  And why should we punish the MPs who merely tormented the detainees, and not the interrogators who directed those torments – and who beat “Gilligan” to death?  Shouldn’t there be some consistency?


            Just asking.



 [1] Dating by Harman correspondence transcribed in http://www.newyorker.com/reporting/2008/03/24/080324fa_fact_gourevitch

 [2] Article 15-6 Investigation of the 800th Military Police Brigade (Taguba Report) at 18

 [3] http://armed-services.senate.gov/Publications/Detainee%20Report%20Final_April%2022%202009.pdf at 216.  The text is copied in http://www.city-journal.org/html/eon_01_13_05hm2.html.

 [4] Philip Gourevich, Comment: Interrogating Torture, New Yorker at 33-34 (May 11, 2009).

 [5] R. Sanchez, Wiser in Battle (Sanchez) at 273 (2008).

 [6] See, e.g. http://fl1.findlaw.com/news.findlaw.com/wp/docs/dod/abughraibrpt.pdf at 15, commonly known as the Schlesinger Report (August 24, 2004)

 [7] Senate Armed Services Committee Report  (Senate Report) at 201 et seq.  Copied at http://www.dod.mil/pubs/foi/detainees/working_grp_report_detainee_interrogations.pdf

 [10]Senate Report at 105.

 [12] Senate Report at 132, 137-38.

 [13] Senate Report at 190.

 [14] Id. at 199

 [15] Sanchez at 303

 [16] http://www.christusrex.org/www1/news/lat-7-1-04c.html reprinting Ken Silverstein, Pentagon Alerted to Trouble in Ranks, LA Times 7/1/04

Copyright (c) Jack L. B. Gohn