Brutal Chain of Command

Harsh light from the Supreme Court on White House war crimes against detainees everywhere

[The detainee] was stripped naked, put in the mud and sprayed . . . with very cold hoses in February. At night it was very cold. . . . He was completely naked in the mud, you know. . . . [Then] he was taken out of the mud and put next to an air conditioner. It was extremely cold, freezing, and he was put back in the mud and sprayed. This happened all night. Everybody knew about it.— An interrogator with the special military and CIA task force at Camp Nama, Baghdad, quoted in a new 53-page Human Rights Watch report, "No Blood, No Foul: Soldiers' Accounts of Detainee Abuse in Iraq From 2003-2005."


With war in the Mideast and civil war in Iraq, the June Supreme Court decision Hamdan v. Rumsfeld telling the president he does not have the "inherent" constitutional power to make up the law as he goes along with regard to our prisonershas lost traction in the news.

But in the weeks and months ahead, you'll be seeing and hearing a lot about a part of the ruling that especially alarmed the president, Donald Rumsfeld, Dick Cheney, and the Republican leadership in Congress.

In addition to telling George Bush's lawyers that the Guantánamo military commissions they inventedoutside our lawsdo not measure up to "all the judicial guarantees recognized as indispensable by civilized persons," the Supreme Court's most shameful instruction to the administration was that, in the way it treats its prisoners anywhere in the world, the standard must be Common Article 3 of the Geneva Conventions of 1949, to which this country is a signatory.

For those not aware of the very specific protections in Article 3 that set a minimal standard for prisonerswhether or not they are part of a national armythey mandate that all detainees "in all circumstances be treated humanely."

The president, Cheney, Rumsfeld, Gonzales, et al. assure the world that we do just thatand nobody anywhere believes them. But Article 3 goes much deeper than treating prisoners "humanely," prohibiting "at any time and in any place what- soever . . . violence to life and person [of detainees]in particular, murder of all kinds, mutilation, cruel treatment and torture, [and]outrages upon personal dignity, in particular, humiliating and degrading treatment." (Emphases added.)

Moreover, in "No Blood, No Foul"—a report based largely on firsthand accounts by U.S. military personnel in Iraq who, like all our military there, were told by Bush and Rumsfeld the Geneva Conventions did not apply to their prisoners—Human Rights Watch emphasizes that the chain of command, all the way to the top, is accountable for what has been done to detainees because:

"Acts of torture and other mistreatment . . . constituted grave breaches of the Geneva Conventions. The United States is bound to investigate and prosecute grave breaches that are committed by U.S. personnel in Iraq. The Geneva Conventions impose on the United States an obligation to 'search for persons alleged to have committed, or to [have ordered] to be committed, grave breaches and to prosecute them.' "

An independent prosecutor—if Congress ever appoints one—won't have any difficulty finding "grave breaches" by the White House, the Justice Department, and the Defense Department, going back to 2002.

This so far mythical prosecutor will be relying not only on Article 3 (common to the various Geneva Conventions of 1949) but also on an American law, the War Crimes Act of 1996. That statute forbids any U.S. personnel from committing any of the crimes listed in that statute. One of them is perpetrating "grave breaches" of the Geneva Conventions.

If an investigation of the chain of command happens, it would be one hell of a revelation, with reams of documented reports, including testimony by army personnel in Iraq and Afghanistan, searches by human rights organizations, complaints by FBI agents on the scene, the many pages of facts on the ground obtained by the ACLU through the Freedom of Information Act, and testimony by many of the actual survivors of these "grave breaches."

In the imminent national midterm political campaigns—and the presidential tournament two years from now—do you think Howard Dean, Harry Reid, Nancy Pelosi, the Wizard of Oz money man George Soros, and other chieftains of the Democratic Party will persistently focus on the need for a truly independent inquiry into this administration's routine, systemic violations of Common Article 3? Ask your Democratic representatives in the House and Senate!

In the recent, nationally covered Democratic primary in Connecticut, focusing on beleaguered Joe Lieberman—billed as a "battle for the soul of the Democratic Party"—I haven't seen or heard any mention of the torture and other "humiliating and degrading treatment of U.S. prisoners" in Iraq and Afghanistan, let alone a demand for breaking down the doors of the CIA's secret prisons in various parts of the world. (Surely some of the treatments there are, at the least, degrading.)

The author of "No Blood, No Foul" (see hrw.org) is the invaluable John Sifton, senior researcher on terrorism and counter-terrorism at the organization. "It is now clear," he says, "that leaders were responsible for abuses that occurred in Iraq. It's time for them to be held accountable."

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