For Detainee Abuse: the Instructive Case of Mohammed Jawad

Articles Military Accountability (or the Lack Thereof) for Detainee Abuse: The Instructive Case of Mohammed Jawad By DAVID J. R. FRAKT* Introduction IN THE LATTER YEARS OF the second Bush Administration, many details emerged about significant abuses experienced by some detainees while in U.S. custody and the policy decisions by senior political and military leaders that led directly to those abuses.1 As a result, there were numerous calls for accountability, particularly from human rights groups.2 The term “accountability” became a political buzzword * Associate Professor of Law at the Dwayne O. Andreas School of Law, Barry University. Professor Frakt is a Lieutenant Colonel in the U.S. Air Force Judge Advocate General’s Corps Reserve. He served as a defense counsel in the Office of Military Commissions from April 2008 to August 2009. The views expressed herein are solely the author’s. 1. See generally JANE MAYER, THE DARK SIDE: THE INSIDE STORY OF HOW THE WAR ON TERROR TURNED INTO A WAR ON AMERICAN IDEALS (2008) (examining the Bush Administra- tion’s fashioning of extreme interrogation policies and practices); PHILIPPE SANDS, TOR- TURE TEAM (2008) (examining the Bush Administration’s implementation, under Rumsfeld’s purview, of interrogation techniques outside the limits of the Geneva Conven- tion and Torture Convention); INT’L COMM. OF THE RED CROSS, REPORT ON THE TREATMENT OF FOURTEEN “HIGH VALUE DETAINEES” IN CIA CUSTODY 7–21 (2007), available at http:// www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf (describing the methods used on fourteen individuals arrested in Pakistan, Thailand, Dubai, and Djibouti between 2002 and 2005); S. COMM. ON ARMED SERVS., 110TH CONG., INQUIRY INTO THE TREATMENT OF DETAINEES IN U.S. CUSTODY (Comm. Print 2008) (inquiring into U.S. interrogation policies during the Bush Administration). 2. See, e.g., The Rutherford Inst., Human Rights, Faith-Based and Justice Groups Urge Obama to Establish Presidential Torture Commission, RIGHT SIDE NEWS (Apr. 28, 2009, 2:49 PM), http://www.rightsidenews.com/200904284559/editorial/us-opinion-and-editorial/ human-rights-faith-based-and-justice-groups-urge-obama-to-establish-torture-commission. html (“The Rutherford Institute has joined with a coalition of 18 other human rights, faith- based, and justice organizations to urge President Obama to appoint a commission to in- 873 874 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 45 and a galvanizing and polarizing issue in the 2008 presidential campaign. Much of the focus of the accountability movement has been on the necessity to hold the senior political leaders and policy makers from the Bush Administration, up to and including the President him- self, accountable for the abuses. A great deal of attention has also been paid, particularly in legal academic circles, to the issue of accountability for the lawyers, such as John Yoo, who wrote the memoranda purporting to provide a legal justification for some of the worst abuses of detainees meted out by U.S. personnel.3 The sharpest focus has been on the undeniable torture committed by CIA personnel of high-level detainees held in secret “ghost” prisons.4 However, while the “enhanced interrogation techniques” utilized by the CIA were un- doubtedly among the most egregious examples of cruelty experienced vestigate torture sanctioned by the Bush administration.”); United States: U.S. Accountability Project, INT’L CENTER FOR TRANSITIONAL JUST., http://www.ictj.org/en/where/region2/ 2260.html (last updated Oct. 2010) (“In 2008 ICTJ launched its U.S. Accountability Project with the objective of contributing to the debate on accountability for serious human rights abuses in the context of the U.S. ‘war on terror’ during a period of political transition.”); Projects, CENTER FOR HUMAN RTS. AND GLOBAL JUST., http://www.chrgj.org/projects/detainees.html (last visited Mar. 27, 2011) (describing the Detainee Abuse and Accountability Project’s efforts to document allegations of torture and abuse in Iraq, Afghanistan, and Guantanamo);´ About the Torture Accountability Working Group, NAT’L LAW. GUILD, http:// torturewatch.posterous.com/pages/local-ordinances-on-torture-accountability (last visited Mar. 27, 2011) (describing the Torture Accountability Working Group’s focus on achiev- ing accountability for torture perpetrated by U.S. officials). 3. See, e.g., Joseph Lavitt, The Crime of Conviction of John Choon Yoo: The Actual Criminal- ity in the OLC During the Bush Administration, 62 ME. L. REV. 155 (2010) (addressing govern- ment accountability for the implementation of torture techniques); Jens David Ohlin, The Torture Lawyers, 51 HARV. INT’L L.J. 193 (2010) (discussing whether lawyers who authored or signed memoranda regarding torture should face prosecution). See generally Michael P. Scharf, International Law and the Torture Memos, 42 CASE W. RES. J. INT’L L. 321 (2009) (exploring the role of international law on the Bush administration’s Global War on Ter- ror); Jordan J. Paust, Civil Liability of Bush, Cheney, et al. for Torture, Cruel, Inhuman, and Degrading Treatment and Forced Disappearance, 42 CASE W. RES. J. INT’L L. 359 (2009) (argu- ing there should be no immunity for conduct that violates international law); Cassandra Burke Robertson, Beyond the Torture Memos: Perceptual Filters, Cultural Commitments, and Parti- san Identity, 42 CASE W. RES. J. INT’L L. 389 (2009) (elaborating on the difficulties with holding the drafters of the Torture Memos professionally accountable); Kai Ambos, Prose- cuting Guantanamo´ in Europe: Can and Shall the Masterminds of the “Torture Memos” be Held Criminally Responsible on the Basis of Universal Jurisdiction, 42 CASE W. RES. J. INT’L L. 405 (2009) (inquiring into whether criminal prosecutions of the masterminds of the torture memos are feasible in three European nations—Belgium, Germany, and Spain); Julian Ku, The Wrongheaded and Dangerous Campaign to Criminalize Good Faith Legal Advice, 42 CASE W. RES. J. INT’L L. 449 (2009) (advocating against criminal punishment of the attorneys be- hind the Torture Memos). 4. Mark Danner, US Torture: Voices from the Black Sites, N.Y. REV. BOOKS, Apr. 9, 2009, at 69, available at http://www.nybooks.com/articles/archives/2009/apr/09/us-torture- voices-from-the-black-sites/?page=1. Spring 2011] THE INSTRUCTIVE CASE OF MOHAMMED JAWAD 875 by detainees, abuses by CIA personnel represent only a small fraction of the total number of documented incidents.5 The vast majority of persons detained by the United States in our post-9/11 armed conflicts have been held in military custody, with a proportionate number of detainee abuses committed by military hands.6 There are hundreds of well-documented incidents of detainee abuse by military personnel in the wars in Iraq and Afghanistan and at the U.S. Navel Station at Guantanamo´ Bay, Cuba (“Guantanamo”´ or “GTMO”).7 While such incidents have involved only a small fraction of the overall number of persons detained and only a small percent- age of the soldiers involved with detainee operations have perpetrated such incidents, these incidents of abuse of helpless prisoners are nev- ertheless significant. Yet, comparatively little scholarly attention has focused on military accountability, and much of what has been written has centered on the dramatic and sensational Abu Ghraib abuse scan- dal.8 Perhaps part of the reason for the relative lack of scrutiny of this 5. See John Sifton, United States Military and Central Intelligence Agency Personnel Abroad: Plugging the Prosecutorial Gaps, 43 HARV. J. ON LEGIS. 487 (2006). 6. Fewer than one hundred detainees were in CIA Custody. Adam Goldman, Hayden: CIA Had Fewer Than 100 Prisoners, USA TODAY (Sept. 7, 2007, 9:04 PM), http:// www.usatoday.com/news/topstories/2007-09-07-502409224_x.htm. In contrast, nearly eight hundred detainees have been held at Guantanamo´ Bay. Exec. Order No. 13,492, 74 Fed. Reg. 4,897 (Jan. 22, 2009) (“Over the past 7 years, approximately 800 individuals whom the Department of Defense has ever determined to be, or treated as, enemy combat- ants have been detained at Guantanamo.”)´ Thousands of detainees have been held at the Bagram prison in Afghanistan, the Abu Ghraib prison in Iraq, and other detention facilities in Afghanistan. See Alissa J. Rubin & Sangar Rahimi, Bagram Detainees Named by U.S., N.Y. TIMES, Jan. 16, 2010, http://www.nytimes.com/2010/01/17/world/asia/17af- ghan.html (estimating the Bagram prison population at 750); Walter Pincus, U.S. Expects Iraq Prison Growth: Crackdown Likely to Mean More Inmates at 2 Detention Centers, WASH. POST, Mar. 14, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/03/13/AR 2007031301732.html?nav=emailpage (stating that the Iraqi detainee population is seven- teen thousand). 7. HUMAN RIGHTS WATCH ET AL., BY THE NUMBERS: FINDINGS OF THE DETAINEE ABUSE AND ACCOUNTABILITY PROJECT 2 (2006), available at http://www.chrgj.org/docs/ By_The_Numbers.pdf (“The DAA Project has documented over 330 cases in which U.S. military and civilian personnel are credibly alleged to have abused or killed detainees. These cases involve more than 600 U.S. personnel and over 460 detainees. Allegations have come from U.S. facilities throughout Afghanistan, Iraq and at Guantanamo´ Bay.”). 8. See, e.g., Victor Hansen, What’s Good for the Goose is Good for the Gander Lessons From Abu Ghraib: Time for the United States to Adopt a Standard of Command Responsibility Towards its Own, 42 GONZ. L. REV. 335 (2006–07) (outlining the legal theory of command responsibility); Jason Sengheiser, Command Responsibility for Omissions and Detainee Abuse in the “War On Terror,” 30 T. JEFFERSON L. REV. 693 (2008) (applying the command responsibility theory to the War on Terror); James W. Smith III, A Few Good Scapegoats: The Abu Ghraib Courts-Mar- tial and the Failure of the Military Justice System, 27 WHITTIER L.

Load more