Cross posted from TomPaine
These are not auspicious days for defense secretaries new and old. Incoming Pentagon boss Robert Gates must negotiate the gap between the Iraq Study Group’s position and his boss’s obdurate refusal to see the implausibility of current strategy for that war. While Iraq must loom large on the Pentagon’s agenda for the foreseeable future, there is much more unfinished business from the era of Donald Rumsfeld.
Nine former residents of U.S. detention facilities in Afghanistan and Iraq moved closer last week in their attempts to hold Rumsfeld personally responsible for torture they allege occurred while in detention, as their civil lawsuit against Rumsfeld and other government employees faced its first day in the courtroom of Chief U.S. District Judge Thomas Hogan. Their lawsuit raises hard questions Congress and the public need to be asking about how the military is to be kept from becoming “independent of and superior to the civil power,” as our Declaration of Independence accuses King George of England of allowing to happen. Without answering this most basic of issues, the nation will continue to find it difficult to determine the wisest deployment of its military forces.
This is but the latest in a series of cases in which the government has argued that those harmed by its misguided and ill-targeted national security policies ought not to have redress in the federal courts. Last week, for example, the government raised precisely the same contention in the case of Khaled El Masri, who was “accidentally” kidnapped and abused, apparently by the CIA.
While the Rumsfeld lawsuit is principally a way to secure just restitution for the innocent detainees whose lives have been wrecked by American interrogation policy, it is also a vehicle for the advocacy groups behind the case to assign public responsibility for the errors and wrongs of military detention policy since 9/11.
It is striking-and shameful-that there is even the need for such accounting. After World War II, America led the world in demanding justice be done in the case of Nazi war criminals. Out of Nuremberg and parallel criminal trials, numerous vital principles of the law of war emerged: Among the most famous of these was the idea that soldiers could not invoke “superior orders” to justify acts of rank inhumanity. Alongside this was the principle of “command responsibility”: That commanding officers, including civilian officers such as Rumsfeld, are responsible for controlling and directing their troops, and hence are culpable for the war crimes those troops commit.
The principle of “command responsibility”-invoked to vindicate the post-war hanging of Japan’s prime minister, among other things-is no longer in operation today in America. Indeed, there has been a broader breakdown of responsibility that is antithetical to the rule of law.
After the Abu Ghraib revelations, the military initiated a sequence of investigations into detainee abuse. But these inquiries were purposefully structured not to get at the structural connections between the detainee abuse and the civilian command. Hence, both the Army Inspector General and the Independent Panel to Review Department of Defense Operations, could describe the Abu Ghraib events as “aberrant behavior.” Yet the pervasiveness of abuse, across time and across theaters of operations, gives the manifest lie to this picture: Abuses flowed from instruction given at the highest level.
That the nation has failed to grapple with this elemental fact is not only shameful, it is also indicative of a continuing failure of governance: We have yet to draw those lines of responsibility that ought to link and tether the military to the civilian leadership.
The dissemination of torture policy is only the most notorious of innovations that Rumsfeld has overseen at the Pentagon. Equally disturbing have been a series of unaccountable structures for “extraordinary rendition” that show a military no longer operating with democratic accountability.
For some time now, it has been clear that the Central Intelligence Agency has been engaged in a program of secret kidnapping, disappearance, and torture-the system of “extraordinary rendition.” Less clear has been the collateral role of military agencies in this program. In one case, a documented rendition of an Egyptian cleric, who was kidnapped from the streets of took place through the U.S. air force base in Aviano, Italy, and the base in Ramstein, Germany.
Swiss parliamentarian Dick Marty has raised the troubling possibility that NATO treaties between the United States and European countries might contain loopholes that facilitate the use of military airbase facilities in Europe for extraordinary rendition. (The treaty, in other words, would provide legal “cover” for European governments, by seeking to exempt the European governments from determining whether the rendition planes are being used for a criminal offense).
Such provisos-effectively permitting a parallel network of counterterrorism operations to emerge under the radar of the law-have precedent in the detainee context. In Iraq, the military reached agreements with the CIA that allowed the Agency to keep off-book “ghost prisoners” in violation of international law.
For both the detainee abuse case and the extraordinary rendition system, it appears there has been a failure in the structures of accountability that ensure that the political branches (and yes, Mr. President, there are two political branches), have knowledge of and control over the military.
If the era of the Rumsfeld Pentagon has proved one thing, it is that secretive and insular decisionmaking severed from public debate and criticism is no short cut to wisdom. Moving toward a military policy that is open to democratic debate and responsive to informed criticism is a vital stuff to solving not only the crisis that is Iraq, but also longer term strategic questions.
Congress must therefore secure an accounting of precisely what the military is doing in the name of counter-terrorism. It must determine precisely how the enormous military of today is being used and misused. Gates proved more forthcoming than his predecessor at his confirmation hearing. Whether Gates is able to achieve a needed larger change is a question we will only be able to answer on the day of his resignation, or, like Rumsfeld, on the last day of his trial.
Aziz Huq: “Taking Back the Pentagon” (PDF)