Poets and essayists never tire of celebrating the resiliency of the human spirit in the face of the most awful circumstances.
That resiliency was clearly evident at a Baghdad health clinic that, over one September weekend, witnessed a different kind of “boom” from what it normally experiences these days – a baby boom (Christian Science Monitor, September 13, 2004). Twenty Iraqi women became happy mothers.
By contrast, as this story came to light, ten times that number of Iraqis – bystanders, demonstrators, insurgents – died during armed clashes between western and indigenous forces.
Meanwhile, in Washington, the “boom” in reports from investigations into abuses committed at Guantanamo Bay, Iraqi, and Afghan prison facilities continued. The Senate Armed Services Committee (SASC) heard testimony from panels created by the Army and Defense Department. Unfortunately, resiliency seemed confined to the careers of senior civilians and officers who escaped censure even though their actions directly or indirectly contributed to the permissive attitude toward violating detainee rights.
The Pentagon and the White House had hoped the prison abuse scandal would die or, like “old soldiers,” at least fade away after perfunctory congressional hearings. That hope was dashed during September 9 testimony before the SASC by Army General Paul Kern. He drew a distinction between responsibility and culpability and limited the assignment of culpability to lower-ranking personnel, giving new life to the issue.
Responsibility, for General Kern and the military, has two aspects. The more specialized is “command responsibility,” the premise that commanders, by what they do or don’t emphasize, create an atmosphere for action for subordinates. On this basis, commanders are held accountable for whatever their subordinates do or fail to do and for being knowledgeable of critical developments within subordinate units.
The second aspect is the broader “moral responsibility” common to all humans. This presupposes three conditions: a “well formed” conscience enabling an individual to distinguish standards or rules; knowledge that standards or rules exist and what they are; and the capability to act or not act in accordance with or to meet those standards.
By contrast, culpability implies a moral failing only as it attaches to actions (or lack of preventive actions) insofar as a person is free to act and does so contrary to conscience.
Assuming that those who committed abuses had “well-formed” consciences, they are clearly culpable. But surely some culpability must attach to those who, knowing the international standards on treatment of detainees, nonetheless debated and authored memos or studies designed to subvert the rules by devising new detainee categories and new “interpretations” of customary and conventional laws against inhumane treatment. Because they strongly opposed the “revisions,” senior military lawyers were excluded from the circle of civilians writing the Defense Department’s position paper on torture.
Moreover, not widely reported, was the existence of a reporting channel for high-value intelligence from Abu Ghraib prison, where most of the abuses occurred, through intelligence and legal staffs at Combined Task Force-7 (CTF-7) headquarters (headed by Lieutenant-General Ricardo Sanchez) in Iraq, directly to the office of the Secretary of Defense. Yet in discussing the role of senior CTF-7 staff officers, the Kern report trails off into a void. It assigns no responsibility or culpability for recommendations or advice to permit the use – or for knowledge of actual use – of interrogation techniques contrary to international law.
All of which suggests that, independent of the inhumane acts committed in Guantanamo Bay, Afghanistan, and Iraq, and the confusion at unit level about interrogation policy stemming from multiple, conflicting memos, those in Washington who purposefully ignored and undercut accepted practice regarding detainees are both morally responsible and morally culpable for contributing to, if not creating, the attitude that international law could be bent, broken, and discarded with impunity – an attitude that, predictably, could be expected to filter to those units under pressure to provide “actionable” intelligence.
SASC chairman Senator John Warner (VA) has promised to follow both threads – responsibility and culpability – wherever they go. Despite his resolve, he may find that the politics of his own party intervene to effectively shut down his hearings. Should that occur, the last recourse available to find and assign responsibility and culpability is a 9/11-style, fully independent, subpoena-wielding, politically balanced commission of prominent citizens dedicated to finding all the facts.
Yes, another commission and another report would keep the issue alive well into 2005. But to bury it prematurely, before reaching a better understanding of how these illegal interpretations and attitudes were diffused from the highest policy level to battlefield units, risks glossing over the continuing need in a democracy to hold strictly accountable all those who exercise power, especially power over the powerless.
English psychologist and poet Erasmus Darwin put the point most succinctly: “He who allows oppression shares the crime.”
Col. Daniel Smith, a West Point graduate and Vietnam veteran, is Senior Fellow on Military Affairs at the Friends Committee on National Legislation, a Quaker lobby in the public interest. He can be reached at: dan@fcnl.org
