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?