The latest Army IG report clearing senior officers of wrongdoing in connection with Abu Ghraib ignores centuries of norms within the military profession and undermines the legal doctrine of command responsibility

The Washington Post reports today (also see the AP) that the Army's inspector general has cleared several of the most senior officers involved with the Abu Ghraib scandal of any wrongdoing — let alone any conduct which might lead to a court-martial. I'm finding it very hard right now to square this result with the Army's leadership manual, FM 22-100 (excerpted below). As you can read, the top officers at the chain of command have been exonerated — not just for their official actions, but also for any responsibility they might bear as commanders and military officers.

An Army inspector general's report has cleared senior Army officers of wrongdoing in the abuse of military prisoners in Iraq and elsewhere, government officials familiar with the findings said yesterday.

The only Army general officer recommended for punishment for the failures that led to abuses at the Abu Ghraib prison and other facilities in Iraq and Afghanistan is Brig. Gen. Janis L. Karpinski, who was in charge of U.S. prison facilities in Iraq as commander of the 800th Military Police Brigade in late 2003 and early 2004. Several sources said Karpinski is expected to receive an administrative reprimand for dereliction of duty.

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The investigation essentially found no culpability on the part of Lt. Gen. Ricardo S. Sanchez and three of his senior deputies, ruling that allegations they failed to prevent or stop abuses were "unsubstantiated." A military source said a 10-member team began the investigation in October and based its conclusions on the 10 major defense inquiries into abuse and interviews with 37 senior officials, including L. Paul Bremer, who led the Coalition Provisional Authority in Iraq. The report has not been released.

Of those 10 major inquiries, the inspector general's was designed to be the Army's final word on the responsibility of senior leadership in relation to the abuses. It was the only investigation designed to assign blame, if any, within the Army's senior leadership. Questions about Sanchez's and other senior leaders' role in approving harsh interrogation tactics — including the use of military working dogs to intimidate detainees — have swirled since photographs of abuse at Abu Ghraib surfaced almost exactly a year ago.

Army officials said yesterday that they have identified 125 soldiers and officers who were either tried at courts-martial or issued administrative punishments for detainee abuses in Iraq and Afghanistan. So far, seven low-ranking soldiers have faced the most serious charges in the sexual humiliation and physical abuse cases arising out of Abu Ghraib; five have pleaded guilty or have been found guilty, and two have courts-martial scheduled for next month.

Talk about cognitive dissonance. In the Army's leadership schools for officers and sergeants, the doctrinal manual preaches quite a different result from the outcome of this investigation. Bottom line: commanders (and NCOs) are responsible for everything their unit(s) do or fail to do, period. A commander, especially a general officer, is not just responsible for those things he/she ordered, but for those things that he/she knew about — or should have known about. This is the essence of the mantle of command, as reflected in several passages of FM 22-100, the Army's field manual for leadership. Consider this excerpt from Part 1:

LEADERSHIP AND COMMAND

When you are commanding, leading [soldiers] under conditions where physical exhaustion and privations must be ignored, where the lives of [soldiers] may be sacrificed, then, the efficiency of your leadership will depend only to a minor degree on your tactical ability. It will primarily be determined by your character, your reputation, not much for courage—which will be accepted as a matter of course—but by the previous reputation you have established for fairness, for that high-minded patriotic purpose, that quality of unswerving determination to carry through any military task assigned to you.

--General of the Army George C. Marshall
Speaking to officer candidates in September, 1941

1-60. Command is a specific and legal position unique to the military. It's where the buck stops. Like all leaders, commanders are responsible for the success of their organizations, but commanders have special accountability to their superiors, the institution, and the nation. Commanders must think deeply and creatively, for their concerns encompass yesterday's heritage, today's mission, and tomorrow's force. To maintain their balance among all demands on them, they must exemplify Army values. The nation, as well as the members of the Army, hold commanders accountable for accomplishing the mission, keeping the institution sound, and caring for its people.

1-61. Command is a sacred trust. The legal and moral responsibilities of commanders exceed those of any other leader of similar position or authority. Nowhere else does a boss have to answer for how subordinates live and what they do after work. Our society and the institution look to commanders to make sure that missions succeed, that people receive the proper training and care, that values survive. On the one hand, the nation grants commanders special authority to be good stewards of its most precious resources: freedom and people. On the other hand, those citizens serving in the Army also trust their commanders to lead them well. NCOs probably have a more immediate impact on their people, but commanders set the policies that reward superior performance and personally punish misconduct. It's no wonder that organizations take on the personal stamp of their commanders. Those selected to command offer something beyond their formal authority: their personal example and public actions have tremendous moral force. Because of that powerful aspect of their position, people inside and outside the Army see a commander as the human face of "the system"—the person who embodies the commitment of the Army to operational readiness and care of its people.

We trust commanders to do the right thing, and to make sure their units do the right thing. And we impose a very high legal standard on them when they fail to do so — we hold them liable for the actions of their subordinates — both for what they knew about, and what they should have known about as commanders. Consider this excerpt from Appendix A of FM 22-100:

Command Responsibility

A-18. Command responsibility refers to collective or organizational accountability and includes how well units perform their missions. For example, a company commander is responsible for all the tasks and missions assigned to his company; his leaders hold him accountable for completing them. Military and DA civilian leaders have responsibility for what their sections, units, or organizations do or fail to do.

That's what the Army field manual on leadership has to say. Next, consider this excerpt from Chapter 8 of FM 27-10, the Army's field manual on the law of land warfare:

501. Responsibility for Acts of Subordinates

In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander. Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.

This is not just Army doctrine though — it's also the law. In the case of Application of Yamashita, 327 U.S. 1 (1946), decided shortly after World War II, the U.S. Supreme Court recognized the doctrine of command responsibility in the context of a Japanese general who was being tried for the war crimes of his subordinates. Here is how the Supreme Court framed the issue in that case:

The Charge. Neither Congressional action nor the military orders constituting the commission authorized it to place petitioner on trial unless the charge preferred against him is of a violation of the law of war. The charge, so far as now relevant, is that petitioner, between October 9, 1944 and September 2, 1945, in the Philippine Islands, 'while commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its allies and dependencies, particularly the Philippines; and he ... thereby violated the laws of war.'

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. . . it is urged that the charge does not allege that petitioner has either committed or directed the commission of such acts, and consequently that no violation is charged as against him. But this overlooks the fact that the gist of the charge is an unlawful breach of duty by petitioner as an army commander to control the operations of the members of his command by 'permitting them to commit' the extensive and widespread atrocities specified. The question then is whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result. That this was the precise issue to be tried was made clear by the statement of the prosecution at the opening of the trial.

It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection. Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.

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These provisions [cited above] plainly imposed on petitioner, who at the time specified was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own military tribunals. . . .

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. . . It is plain that the charge on which petitioner was tried charged him with a breach of his duty to control the operations of the members of his command, by permitting them to commit the specified atrocities. This was enough to require the commission to hear evidence tending to establish the culpable failure of petitioner to perform the duty imposed on him by the law of war and to pass upon its sufficiency to establish guilt.

Today's news represents both an abandonment of this principle and the abdication of responsibility by the Defense Department and the Army. The question is not whether these officers actually directed the abuses or participated in them; rather, the question is how they acted as generals and leaders to facilitate the abuses, fail to prevent them, or fail to stop them. That is the standard to which commanders are held, and that is the standard which is not being enforced here today. I dare say that this story sends a staggeringly bad message to the soldiers and junior leaders now on the front lines: we will hold you, your sergeants and your lieutenants responsible for their actions, but we will not hold your colonels and generals responsible for theirs. It is hard to see how that message can possibly support the "good order and discipline" which is so essential for maintaining an effective fighting force.

Based on the evidence contained in the Taguba report, Schlesinger report, Fay-Jones report, and the Church report, as well as the volume of documents obtained by the ACLU's FOIA litigation, I believe there to be sufficient evidence to find probable cause that these senior officers committed criminal failures of leadership. One of the worst scandals in American military history happened on their watch, under their direction, at least partly due to conditions under their control. And yet, the highest-ranking individual to see prosecution so far for these abuses is a Staff Sergeant. [The highest ranking officer to face detainee-related charges was LTC Allen West, an artillery battalion commander who personally roughed up a prisoner to get intelligence; that trial tangentially involved issues of command responsibility, but not issues of vicarious liability for one's subordinates.] In wartime, the military must send a better message to the troops, that it will hold their leaders accountable for everything their units do or fail to do. We expect a great deal of our soldiers and Marines, and I believe they have a right to expect even more out of their senior commanders.

Update I: Remember the Fay-Jones report? It was an exhaustive review of U.S. military intelligence activities in Iraq that was published in August 2004. Together with the Schlesinger and the Taguba reports, the Fay-Jones report provided a mind-numbing catalog of detail about the abuses which took places in Iraq. But did you know that the Fay-Jones report also produced a verdict with respect to the command responsibility of the senior officers involved? Here's what LTG Anthony Jones and MG George Fay had to say in their ExSum (PDF):

Abuse

Clearly abuses occurred at the prison at Abu Ghraib. There is no single, simple explanation for why this abuse at Abu Ghraib happened. The primary causes are misconduct (ranging from inhumane to sadistic) by a small group of morally corrupt soldiers and civilians, a lack of discipline on the part of the leaders and Soldiers of the 205th MI BDE and a failure or lack of leadership by multiple echelons within CJTF-7. Contributing factors can be traced to issues affecting Command and Control, Doctrine, Training, and the experience of the Soldiers we asked to perform this vital mission.

For purposes of this report, abuse is defined as treatment of detainees that violated U.S. criminal law or international law or treatment that was inhumane or coercive without lawful justification. Whether the Soldier or contractor knew, at the time of the acts, that the conduct violated any law or standard, is not an element of the definition.

The abuses at Abu Ghraib primarily fall into two categories: a) intentional violent or sexual abuse and, b) abusive actions taken based on misinterpretations or confusion regarding law or policy.

LTG Jones found that while senior level officers did not commit the abuse at Abu Ghraib they did bear responsibility for lack of oversight of the facility, failing to respond in a timely manner to the reports from the International Committee of the Red Cross and for issuing policy memos that failed to provide clear, consistent guidance for execution at the tactical level.

MG Fay has found that from 25 July 2003 to 6 February 2004, twenty-seven 205 MI BDE Personnel allegedly requested, encouraged, condoned or solicited Military Police (MP) personnel to abuse detainees and/or participated in detainee abuse and/or violated established interrogation procedures and applicable laws and regulations during interrogation operations at Abu Ghraib.

LTG Jones minces no words later in his report — on page 30, he pins direct responsibility on specific officers within the chain of command who deserve blame:

(c) (U) I find that LTG Sanchez, and his DCG, MG Wojdakowski, failed to ensure proper staff oversight of detention and interrogation operations. As previously stated, MG Wojdakowski had direct oversight of two new Brigade Commanders. Further, staff elements of the CJTF-7 reacted inadequately to some of the Indications and Warnings discussed above. However, in light of the operational environment, and CJTF-7’s under-resourcing and unplanned missions, and the Commander’s consistent need to prioritize efforts, I find that the CJTF-7 Commander and staff performed above expectations, in the over-all scheme of OIF.

Despite these generals' findings, none of the officers responsible for facilitating these abuses will face criminal charges. Or, put another way, the Army IG has wholly disregarded the record evidence before him to arrive at an arbitrary and capricious decision that the senior Army leaders involved should face no legal consequences for their actions. What kind of message does that send to our junior military leaders? What kind of message does that send to the world?

New York magazine has an amazing profile of Marine Lieutenant Ilario Pantano, who currently faces capital murder charges for the killing of two Iraqis last year. It is, in many respects, a tragic tale worthy of the Greeks -- a man who worked his way up from Hells Kitchen to Goldman Sachs; who enlisted in the Marines to fight Gulf War I was an enlisted Marine, and the second Gulf War as an officer; but who could now be sent to Leavenworth for the rest of his life. Like one of his contemporaries, Army Capt. Roger Maynulet, Lt. Pantano now stands accused of what some may see as an absurd crime: the unlawful killing of a person in a war zone where it is lawful to kill. But, of course, these stories are much more complex than that. I haven't come to a judgment yet about Lt. Pantano's case because I don't have enough of the facts to make a decision. But from what's on the record, and in this story, I can tell that this is going to be a very important trial -- both for Lt. Pantano, and the U.S. military.

Richard Whittle has a great story in today's Dallas Morning News on the Kevlar body armor being developed and purchased by a few units for use in combat. Specifically, Kevlar "shorts" that look and wear like lederhosen, and weigh in at 11.5 pounds. They're designed to protect gunners who stand in HMMWV turrets, whose lower bodies are particularly vulnerable to shrapnel and small-arms fire, and who could die if hit in the femoral artery. According to the article:

... thanks to the ingenuity and cooperation of a small group of military officers and civilian equipment specialists, the Marine Corps Warfighting Lab at Quantico has developed a novel form of body armor – Kevlar shorts – to save troops from death or maiming injuries.

But the new armor has been issued to only a handful of the troops at risk. After public outcry over shortages of flak vests and armored Humvees, the Army and Marines ordered those items by the thousands. The unfamiliar Kevlar shorts have yet to inspire such fervor.

The manufacturer calls it a classic illustration of bureaucratic inertia.

Nine months after the Marines began trying out the new shorts, only the Air Force has bought a significant number for personnel on dangerous convoy duty in Iraq. The Marines, who pride themselves on being the nation's quick reaction force, are still testing a batch of 10 pair and don't plan to make a decision on buying more for months.

That frustrates John Clark, one of the principals at L.B. Technologies, the Fredericksburg, Va., firm that devised the shorts. "It's not rocket science to figure out they need something to protect them," he said.

Navy Lt. Deborah Packard, the officer in charge of the Kevlar shorts project for the Warfighting Lab, said feedback is needed from Marines in Iraq.

"If commanders in the field are saying they want this, we'll make it happen," she said. If they don't, she added, "There's a process. You have to do a request for information, a request for proposal and all that."

"If you go through every single step, it could take quite a while."

And that's the problem... The system for developing, procuring and fielding combat equipment is very slow — too slow, in fact, for a nation at war. There are various contractual and procurement vehicles contained in the Federal Acquisition Regulation which can be used to speed up the process, such as the commercial acquisition authority and "other transaction authority". However, the commercial part of the FAR doesn't quite apply to situations like this, and the OTA provisions raise hackles among some who see a loss of oversight there. The Army has a "rapid fielding initiative" too, but that's mostly for gear already in the pipeline. What is needed is a streamlined system that can identify issues in the field and work with industry to develop solutions for rapid procurement and fielding. Whether we're talking about Kevlar boxer shorts or the counter-IED jamming devices, we need such a system that can be invoked in wartime to get critical warfighting gear to the soldiers and Marines who need them.

Conceptually, I see this in terms of overlapping O-O-D-A loops. On the offense side, the Iraqi insurgents have their O-O-D-A loop, one which drives their employment of IEDs, hit-and-run ambushes, and other tactics based on their perceptions of our strengths and weaknesses. On the defensive side, we have an O-O-D-A loop of our own, where we develop counter-measures in response to the Iraqi tactics. (It should be noted that the roles are often flipped, but that's not really relevant here.) The critical variable is time — how fast your enemy develops a tactic, and how fast you develop a countermeasure. Right now, the Iraqis have the advantage, because it's far easier for them to develop TTPs than for us to develop countermeasures like Kevlar shorts or counter-IED jammers. We need to do all that we can to reduce this time gap, and to make our procurement system more responsive, in order to respond as expeditiously as possible to new developments in the field. And this applies to a lot more than just materiel — it applies to doctrine, manpower, organizations, and other elements of combat power. The winner is not necessarily the strongest or the largest, but the most agile.

Update I: Also check out "Saving Ryan's Privates" on Military.Com for more background on the Kevlar shorts.

James Joyner (of the weblog "Outside the Beltway") and I are holding an online debate at Legal Affairs' website on the question of the draft — and whether America should consider pulling its dusty conscription plans off the shelf to ramp up its military for the global war on terror. The online debate will go on until Friday, and feature one post per day from James and I. Check it out.

Richard Serrano reports in the L.A. Times on a new report published by the Pentagon which is intended to rebut some of the criticism aimed at the 3-year-old U.S. military detention facility. In general, the criticism has taken on 3 tacks: 1) the facility there is unlawful as a matter of U.S. and international law; 2) the interrogators at Gitmo have committed myriad acts of abuse; and 3) Gitmo is undermining the war on terrorism by producing a lot of useless information and by inflaming Arab (and global) sentiment against the U.S. Mr. Serrano reports that the Pentagon wants to change at least one of these impressions — and argue that Gitmo has produced results:

The new report appears to buttress the military's claim that it should be allowed to run Camp Delta without outside intervention because the camp has become "the single best repository of Al Qaeda information."

The declassified summary cites more than 4,000 interrogation reports and says that some indicated Al Qaeda operatives were pursuing chemical, biological and nuclear weapons. The summary does not elaborate on what that information is or how close the terrorist organization might be to getting such weapons.

According to the report, captives have described how Al Qaeda trained them to spread deadly poisons, and at other times armed them with grenades stuffed inside soda cans, bombs hidden in pagers and cellphones and wristwatches that could trigger remote control explosions on a 24-hour countdown.

The report also showed that not all those being held were suspected of being front-line soldiers and that 1 in 10 of the captives were well-educated — often at U.S. colleges — in fields such as medicine and law.

More than 20 detainees have been positively identified as Osama bin Laden's personal bodyguards and one as his close "spiritual advisor," according to the report. Another is listed as the "probable 20th 9/11 hijacker" — a Saudi man named Mohamed al-Kahtani who made it to Orlando, Fla., before being deported just a month before the Sept. 11 attacks.

One detainee vowed to his captors that U.S. citizens in Saudi Arabia "will have their heads cut off." Another prisoner, this one with strong ties to Bin Laden, the Taliban and the Chechen mujahedin leadership, said of Americans everywhere: "Their day is coming…. One day I will enjoy sucking their blood."

The information gleaned from prisoners has been shared with U.S. intelligence agencies and top military officials. It also is designed to get the Pentagon message out to the public that the interrogations at Guantanamo Bay have been valuable and should not be interrupted by the courts.

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Navy Lt. Cmdr. Flex Plexico said the document was cleared for release through the military's Southern Command, which oversees Guantanamo Bay, and is to be used "in response to general questions from the public about the operations of the joint task force."

His Southern Command colleague, Navy Lt. Cmdr. Chris Loundermon, added that the data were crucial to helping the military brass tell the Guantanamo Bay story. "Unless you track GTMO operations day to day, you need to see this," he said.

But the six-page summary report does not address the frustration that has been expressed by civil liberty advocates, defense lawyers and the families of prisoners held at Camp Delta.

Commentary: It's hard to tell what this report says, partly because neither the Gitmo nor Southcom sites have a copy available to the public. Whenever I see an unclassified summary of classified reports, whether in the law enforcement, military or intelligence contexts, I'm always a little skeptical. Not that I necessarily think we should be releasing classified intelligence into the public domain — but there's inevitably going to be a selection bias which is going to produce a selection error in the data. Moreover, it's clear here that there's an intended purpose for this report: to tell the Defense Department's side of the story with respect to Gitmo. I think it's also inevitable that this intended purpose will produce a slant in the selection of classified data for inclusion, and the arrangement of the information in this unclassified summary. So to be quite honest, I put about as much weight in this report as I do in a Pentagon press release. It's good for some factual information (like the point about 1 in 10 detainees having a college education), but I question the summary's conclusions.

I also think that Mr. Serrano describes the Gitmo critics too narrowly. The ranks of the critics are not limited to "civil liberty advocates, defense lawyers and the families of prisoners", as he writes. Indeed, some of the fiercest criticism of Gitmo has come from the quarter of the world that I inhabit: the military and the ranks of ex-military officers who are appalled at the way we have squandered our moral and political and legal standing in the world to create this facility which has done more to undermine our war on terror than to help it. There is also great concern that our legal sophistry has forever undermined our ability to request reciprocal protection for our own soldiers when they are captured, and that this bill will be paid by generations of young Americans to come. (See the amicus brief by the generals and admirals in Hamdan v. Rumsfeld for more on this.) So it's not fair to simply say that the usual suspects (civil liberties types and prisoner families) oppose the operations at Gitmo. In fact, the chorus of voices speaking out against Gitmo is much larger than that.

Ultimately, I believe we probably should be holding many of the men now detained at Gitmo, and we ought to be interrogating them too. But as a nation, we have long adhered to certain principles in the way we conduct warfare because we have understood that certain strategic and tactical advantages accrue to the side which is just in warfare. As Michael Walzer writes, justice is a military necessity, and I think the sooner we recognize that with respect to our Gitmo policies, the better. As I wrote in "To Fight Another Day" for Slate last October, a more prudent course of action would have been to follow Geneva all along. as Marine Lt. Col. William Lietzau, who worked on detainee issues in the Defense Department's office of general counsel, told the New York Times: "There were very good reasons not to designate the detainees as prisoners of war, but the claim that they couldn't be interrogated was not one of them."

Shredding Geneva has had very bad repercussions for us, and it has brought us little gain, notwithstanding the questionable contents of this report. I think we should reevaluate our Gitmo facilities and expeditiously bring this chapter of American history to a close.

Update I: A law professor friend passes on the link to the 6-page unclassified summary released by DOD in March. At first glance, it looks fairly sanitized, although there are some interesting facts and quotes buried within. I'll try to parse it later tonight -- more to follow.