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Remembering Abu Ghraib (2): Not Company Men and Women

[This is the second of a two-part post on the tenth anniversary of the Abu Ghraib scandal. I broke it up for easier reading. The first part is here.]

Most people will comply but some people will not. Humanly speaking, no more is required, and no more can reasonably be asked, for this planet to remain a fit place for human habitation.

– Hannah Arendt

In my last post, I suggested that one powerful form of accountability for torture is remembering, honoring, and celebrating those people within the government and the military who never lost their moral bearings – who opposed and resisted the torture program. For they are the living proof that keeping your moral compass pointed north is a real possibility. By now, most of us know about “the Lucifer Effect” — psychologist Philip Zimbardo’s label for power organizations and situations  exert over the very thought patterns of those who work within them. It is tempting to conclude that those pressures are irresistible, so we all need to be reminded that real people nevertheless resist. Combatting the  temptation to determinism is Hannah Arendt’s point in the cryptic words I quoted above. Some will not comply: No more is required than a handful of real people, not necessarily heroes, not mavericks, and not malcontents, who don’t follow the crowd. And no more can reasonably be asked, because in everyday life we mostly do take our moral bearings from those around us, and probably should. The struggle against terrorism was and is, to say the least, not everyday life.

To begin with Abu Ghraib itself, there was Sergeant Joe Darby, an M.P. at the camp, who – after agonizing for a month – provided compact discs with the Abu Ghraib photographs to the Army’s Criminal Investigation Division. He explained that what he saw “violated everything I personally believed in and all I’d been taught about the rules of war.” After his identity was outed by Donald Rumsfeld, he and his family had to live under armed protection for six months. Darby was recognized in 2005 with the John F. Kennedy Profile in Courage Award, given by the JFK Library.

In the wake of the scandal, General Antonio Taguba led an Army investigation and published a significant report. Four years later, Taguba wrote in a preface to a Physicians for Human Rights report on detainee abuse that

there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.

Also in Iraq, Air Force reserve Col. Steven Kleinman (an interrogation expert) became “the most unpopular officer in that area, if not in the entire country of Iraq” for pushing back and refusing to participate in abusive interrogations. Kleinman later became one of the most outspoken critics of torture and cruel interrogation. CIA officer Glenn Carle rebelled against the torture of a man who had been rendered to [REDACTED] – an episode he related in The Interrogator: An Education, a book absurdly redacted by the CIA. And Captain (now Major) Ian Fishback reported abuses in Falluja committed by his own unit. When his  chain of command did not react, Fishback made headlines by writing to Senator John McCain. His letter reported:

a wide range of abuses including death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation and degrading treatment. I and troops under my command witnessed some of these abuses in both Afghanistan and Iraq.

This is a tragedy. …

Do we sacrifice our ideals in order to preserve security? Terrorism inspires fear and suppresses ideals like freedom and individual rights. Overcoming the fear posed by terrorist threats is a tremendous test of our courage. Will we confront danger and adversity in order to preserve our ideals, or will our courage and commitment to individual rights wither at the prospect of sacrifice? My response is simple. If we abandon our ideals in the face of adversity and aggression, then those ideals were never really in our possession. I would rather die fighting than give up even the smallest part of the idea that is “America.”

Fishback, a Special Forces officer who  currently teaches ethics at West Point, will soon begin a Ph.D. in philosophy at the University of Michigan.

Other whistleblowers fared less well. Matthew Diaz, a former Navy JAG, was deputy director of the detention center’s legal office during the dark days in which the government was keeping the very identities of the prisoners secret. Among other things, the secrecy had the effect of making it impossible for them to receive any legal representation. After considerable soul-searching, in 2005 Diaz revealed their identities to the Center for Constitutional Rights, a public interest law firm. Once their identities were known, it became possible for the prisoners’ relatives to authorize legal representation for them, and some of the darkness of the black hole began to lift. Diaz was charged, convicted, and served a 6-month prison sentence. He received the Ridenhour Prize for truth-telling. Mary McCarthy, a senior career CIA officer, was fired for talking with reporters, reportedly about the CIA’s secret prisons.

Jesselyn Radack was a DOJ legal ethics advisor who blew the whistle on government misconduct, including physical abuse and violation of constitutional rights, in the case of John Walker Lindh, the “American Taliban.”  (She has written a memoir about the episode and its aftermath, and she features in the documentary film Silenced, which premiered this year at the Tribeca Film Festival.) The government filed grievances against her with the Maryland and D.C. bars. The Maryland bar quickly dismissed the complaint as political retaliation, but the D.C. bar counsel shamefully let it drift on, unresolved, for a decade, until it was finally dismissed this past summer – but only because two of the government’s witnesses had died. Remarkably, during that time Radack served honorably and well on the D.C. Bar’s Legal Ethics Committee (full disclosure: she and I served on the committee at the same time, where I greatly admired her knowledge of legal ethics, her diligence, and her skill in drafting opinions). Currently, she works at the Government Accountability Project, a major whistleblower protection organization.

In addition to those who exposed torture, there are those in government who resisted it. Perhaps the best-known is Alberto Mora, the former General Counsel of the Navy – the subject of a remarkably powerful 2006 profile by The New Yorker’s Jane Mayer. Mora led a fight within the DOD against torture and cruelty at Guantánamo. Mayer quotes Mora:

The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America – even those designated as “unlawful enemy combatants.” If you make this exception, the whole Constitution crumbles. It’s a transformative issue.

Mora, like Joe Darby, won a John F. Kennedy Profile in Courage Award. Currently Mora is an Advanced Leadership Fellow at Harvard’s Kennedy School.

Philip Zelikow, an advisor to Secretary of State Condoleezza Rice, previously served as executive director of the 9/11 Commission. He is also a professor at the University of Virginia. In 2005, Zelikow wrote an important “anti-torture” memo, presenting legal arguments that most of the CIA’s enhanced interrogation techniques were illegal. Long hidden, it was finally released in 2012 in response to a FOIA request. Remarkably, Zelikow reports that “the White House attempted to collect and destroy all copies of my memo” – unsuccessfully. Zelikow also gave an important speech in 2007, which includes this powerful reminder:

Everyone knows the scenario of the imminent terrorist operation that can be averted with desperately tough methods. But the ‘ticking time bomb’ scenario is mainly the invention of scriptwriters. Intelligence is usually more of a patiently assembled mosaic, where many pieces are usually missing, and leads are pursued to find more pieces. And even broken captives can reveal much, while hiding a little.

The administration cites examples of people who have been caught or operations that may have been stopped. It would be useful to have a professional, objective analysis of such successes in order to determine and illustrate the contributions of various forms of intelligence.

In such an analysis, the elementary question would not be: Did you get information that proved useful? Instead it would be: Did you get information that could have been usefully gained only from these methods? (my emphasis)

Zelikow’s crucial but “elementary” question is the one we never ask in our endless, and endlessly shallow, debate about whether torture “works.” Of course, that debate itself is hardly the alpha and omega of moral reasoning, although far too often we treat it as such. (Personally, I think it is the epsilon of moral reasoning – the Greek letter “epsilon” being the mathematical symbol for an infinitesimally small quantity.) Zelikow, although disinclined to moralism, also includes this simple reminder: “In most moral lexicons, there is some absolute core of behavior that is improper, whatever the policy gain.”

Also in the upper reaches of government is John Helgerson, the CIA’s Inspector General who wrote a damning report about the CIA’s “enhanced interrogation” project.

Others are less well-known. David Brant, the former Naval Criminal Investigative Service Director, first brought to Mora’s attention the report that detainees were being abused in Guantánamo. Mora recalls: “His leadership on this issue was always firm and consistent: NCIS, he once told me, would not be party to the abusive practices ‘even if ordered’.” Mora also singles out Michael Gelles, the chief NCIS psychologist. “Mike was the first to warn me of the danger of ‘force creep’ taking place at Guantánamo and the risk that, if not curbed, abuse would morph into cruelty and torture.” Gelles also took the lead in arguing to the DOD Working Group on Interrogation that “the vast weight of scientific literature held that relationship-based interrogation techniques were not only humane (and thus legally compliant) but also the more effective approach to interrogations” (Mora). Angela Birt,  a criminal investigator,  took a hard look at the Bagram homicides after the first round of investigators punted. And Col. Manuel Supervieille, the head JAG at Southern Command, invited the ICRC to Guantánamo in the face of opposition from Rumsfeld’s office.

Lt. Col. Stuart Couch was a Marine Corps pilot turned prosecutor at Guantánamo, who was assigned to prosecute torture victim Mohamedou Ould Slahi. Among other things, interrogators threatened Slahi that his mother would be arrested and sent to Guantánamo. This was a diabolically well-lawyered threat: under U.S. law, threats to kill or torture his mother might have counted as torture (18 U.S.C. §2340(2)(D)), but a “mere” threat of rendering her to perpetual imprisonment is exempt. Not that there weren’t also the moral equivalent of death threats: one interrogator told Slahi that he had dreamed of Slahi being forced to dig his own grave, and his coffin being lowered into it. Early on at Guantánamo, Couch witnessed a prisoner being bombarded with heavy-metal music, “rocking back and forth, mumbling as strobe lights flashed.” Couch couldn’t stop thinking about what he had seen, and after examining the evidence of Slahi’s torture, he refused to prosecute. Slahi remains imprisoned, despite a U.S. court order that he be released for lack of evidence to detain him. Couch is now an immigration judge in North Carolina.

In October 2002, a group of officers and lawyers gathered in Guantánamo to discuss interrogation methods, and to receive a briefing by the CIA’s counterterrorism counsel about the newly-written torture memos. Six years later, the minutes of that meeting were released (here, at Tab 7). They document a stunning conversation, which included such topics as how to hide prisoners from the International Committee of the Red Cross, the effects of waterboarding on the lymphatic system, the exploitation of phobias, and the memorable line “If the detainee dies, you’re doing it wrong.”

The minutes were reviewed by a veteran Criminal Investigation Division investigator Mark Fallon. Fallon wrote a blistering reply:

This looks like the kinds of stuff Congressional hearings are made of. Quotes … seem to stretch beyond the bounds of legal propriety … [and] would in my opinion shock the conscience of any legal body looking at using the results of the interrogations or possibly even the interrogators. Someone needs to be considering how history will look back at this.

Fallon’s comment about the “stuff Congressional hearings are made of” was prescient – for the minutes were released by Senator Carl Levin during hearings. And Fallon’s last line should resonate with us – after all, “how history will look back at this” depends completely on us. We are history’s stand-ins. We should celebrate the resisters (including all those I omitted) — not because they are heroes, but because they never lost the way.

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About the Author

is University Professor in Law and Philosophy at Georgetown.