Terrorism and Individual Liability

1. Katja Bowman Dave Buffaloe Laura Crehan Terrorism and Individual Liability

2. Background of Abu Ghraib • Summer 2003, 800th Military Police Brigade assumed control and responsibility for all Iraqi detention operations. • The Brigade's 320th Battalion was assigned to Abu Ghraib.

3. Background of Abu Ghraib • General Janice Karpinski took formal control of U.S. military prisons in Iraq on June 30, 2003 and the facility went into operation on 4 August 2003. • A month later, General Geoffrey Miller, the commander of the U.S. detention center at Guantanamo Bay Cuba visited Abu Ghraib and recommended changes that would require the military police to assist military intelligence in its mission of extracting information from inmates of the prison. After this visit, particularly in October, November, and December of 2003, U.S. personnel engaged in the now notorious abuses that resulted in the humiliation, injury, and death of prisoners.

4. Background of Abu Ghraib • March 2004, U.S. Army announces six military members of the 800th Military Police Brigade were being investigated for the possible abuse of 20 prisoners in Abu Ghraib. • April 2004, photographs surfaced depicting cruel and inhumane treatment of prisoners at Abu Ghraib while in U.S. custody.

5. International Reaction • International community condemned the abuse and demanded the U.S. rectify the situation • It fuelled extremists' motivation • Heightened the threat of harm to Americans overseas

6. After photographic evidence of abuse of prisoners was reported in early January 2004, Major General Antonio M. Taguba was assigned to investigate the abuses. General Taguba concluded that at Abu Ghraib “numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees. This systemic and illegal abuse of detainees was intentionally perpetrated by several members of the military police guard force.”[i] Taguba concluded that abuse of prisoners was often done at the request of military intelligence personnel and “Other US Government Agency’s (OGA) interrogators” (i.e. CIA) in order to “set physical and mental conditions for favorable interrogation of witnesses.” The Taguba Report

7. The types of “intentional abuse of detainees by military police” documented included:Punching, slapping, and kicking detainees; jumping on their naked feet; Videotaping and photographing naked male and female detainees. . . Arranging naked male detainees in a pile and then jumping on them; Positioning a naked detainee on a MRE Box, with a sandbag on his head, and attaching wires to his fingers, toes, and penis to simulate electric torture;. . . A male MP guard having sex with a female detainee; Using military working dogs (without muzzles) to intimidate and frighten detainees. . . After General Taguba issued the report on the abuse that he was tasked to investigate, his military career was essentially finished; he was shunned by fellow officers and encouraged to retire. The Taguba Report

8. 5 hearings held by Senate Armed Services Committee 4 hearings held by House Armed Services Committee 3 public hearings held by the House Permanent Select Committee on Intelligencea Congressional Hearings

9. U.S. Military Accountability • Military members must follow the laws of war and can be tried in international or national tribunals for violations. • Military members may be held individually accountable for violations to the law of war, to include abuse of prisoners in their control, whether they are in immediate or indirect control. • All military members are also subject to the Uniform Code of Military Justice (UCMJ). • Military members may also be subject to federal jurisdiction.

10. The Uniformed Code of Military Justice (UCMJ)‏ • Culpable Negligence • Assault • Sodomy • Communication of a Threat • Violation of Failure to Obey a Lawful General Order or Regulation • Dereliction in the Performance of Duties • Sentencing: • Matters in Aggravation • Retribution, deterrence, rehabilitation, and general protection of society

11. The Uniformed Code of Military Justice (UCMJ)-Article 77 Obviously, the offender who personally commits all the elements of a crime is guilty. But, what is the responsibility of someone who in indirectly responsible? Article 77 makes clear that a person need not personally perform the acts necessary to constitute an offense to be guilty of it. A person who aids, abets, counsels, commands, or procures the commission of an offense, or who causes an act to be done, which if done by that person directly would be an offense, is equally guilty of the offense as one who commits it directly and may be punished to the same extent. Article 77 eliminates the common law distinction between principal in the first degree (“perpetrator”) and principal in the second degree (one who aids, counsels, commands, or encourages the commission of an offense and who is not present at the scene of the crime. All of these are now “principals,” and equally punishable with the active perpetrator.

12. Official Convictions • 11 enlisted soldiers convicted and sentenced. • Highest enlisted conviction was of a staff sergeant. • Longest sentence was 10 years • One soldier's sentence was dismissal from the Army and no prison time.

13. Official Convictions • 1 Officer was court-martialed • Convicted for disobeying an order • Conviction was overturned and administrative punishment was deemed sufficient.

14. Administrative Punishments • Former Brig. Gen. Janis Karpinski was demoted to colonel • Col. Thomas M. Pappas, was reprimanded and fined $8,000 • Lt. Col. Jerry Phillabaum was reprimanded and relieved of command • Maj. Donald J. Reese was reprimanded for a failure of leadership.

15. Today, only 11 enlisted military members have been formally held accountable for the prisoner abuse scandal. No military officers or civilians have been formally held responsible. Final Accountability Tally

16. The Whistleblower • Joe Darby reported finding the Abu Ghraib photos. • Reaction from the troops, in theatre, after perpetrators were removed, was general support. • Reaction from friends and family at home has put his family's and his own life at risk.

17. International Criminal Court US no longer a signatory of ICC due to: • ICC having unacceptable consequences for U.S. national security; • Is against American ideas of sovereignty, checks and balances, and independence • Prosecutor and Court are considered unaccountable • No U.S. President or advisor could be guaranteed safety from criminal proceedings • Can not be certain that judicial nominations are non-bias

18. Bilateral Immunity Agreements • As of August 2, 2006 • State Department Reports that 101 agreements have been signed • To shield U.S. citizens from the jurisdiction of the ICC • Current or former U.S. government officials, military or other personnel and U.S. nationals would not be transferred to the ICC • Based on Article 98 of the Rome Treaty • U.S. has publicly threatened sanctions, such as the termination of military assistance, if countries do not sign

19. Germany • Code of Crimes Against International Law (2002)‏ • Grants German courts universal jurisdiction in cases involving war crimes or crimes against humanity • Makes military and civilian commanders who fail to prevent their subordinates from committing such acts liable • Complaint filed by Center for Constitutional Rights (NY) and Berlin’s Lawyer’s Association (2004)‏ • Names Rumsfeld, Tenet, Under Secretary of Defense Steven Cambone, Lieutenant General Ricardo Sanchez, Brigadier General Janis Karpinski and others.

20. Germany 2006 • 2006 • For abuses committed at Iraq’s Abu Graib prison and at Guantanamo Bay, Cuba • Charges against Rumsfeld, Alberto Gonzales, and George Tenet • Response from Brig. Gen. Janis Karpinski • “It was clear the knowledge and responsibility [for what happened at Abu Graib] goes all the way to the top of the chain of command to the Secretary of Defense” • What has changed? • Rumsfeld is no longer the Secretary of Defense • U.S. has not handled the situation

21. Other War Crimes Cases • Cases have also been brought against Rumsfeld in France, Sweden and Argentina • In the United States • Lawsuit brought against Rumsfeld and 3 other high-ranking military officials • For ignoring allegations that U.S. soldiers in Iraq and Afghanistan tortured prisoner • Dismissed due to the plaintiffs lack of standing, 1/11/2008 • Decided U.S. District Judge Thomas Hogan

22. Torture Memos • Making the connection to non-military officials • Justice Department memo sent to the Pentagon in 2003 • Asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned Al-Qaeda captives because the President’s ultimate authority as commander in chief overrode such statutes • Justice Department told the Pentagon to stop relaying on this memo 9 months later • It has been argued that the memo created a legal environment that allowed prisoner abuse at Abu Graib

23. Cases against Yoo • He is included in the case in Germany • January 4, 2008 • Jose Padilla’s attorneys filed a novel civil action on behalf of Padilla against Yoo • Yoo crafted policies dealing with enemy combatants and “alternative” interrogation tactics • Yoo personally recommended to AG Ashcroft that Padilla be named an enemy combatant • Yoo is the principal drafter of the Torture Memos • Yoo is responsible for the violations of Padilla’s First, Fifth, Sixth, and Eighth Amendment rights • Seeks nominal damages of $1 and judicial declaration • Unlikely to anywhere but does bring attention to the matter

24. Proposal Pros: Cons: • Legislative changes to make civilian government officials personally liable and accountable for their actions.

25. America takes pride in the fairness and due diligence of its justice system. This proposal takes advantage of our fair and best practices so that our top government officials can be held accountable and given their fair trial under U.S. terms rather than being held accountable and tried under another country's justice system that would not be necessarily as just as our own. Conclusion

26. References • Abu Ghraib: One Year Later, Who's Accountable?. Amnesty International USA.http://www.amnestyusa.org/page.do?id=1107945. (accessed April 6, 2008). • Abu Ghurayb Prison Prisoner Abuses: Joint Interrogation and Debriefing Center [JIDC]. Global Security. http://www.globalsecurity.org/intell/world/iraq/abu-ghurayb-prison-abuse.htm. (accessed April 6, 2008). • Bazelon, Emily, Phillip Carter, and Dahlia Lithwick. What is Torture?. Slate Magazine.http://www.slate.com/id/2119122/. (accessed April 6, 2008). • Bazelon, Emily, “Yoo’s Utter Glib Certainty” April 1, 2008, http://www.slate.com (accessed 4/10/2008)‏ • Bryan, Dawn. 2007. Abu Ghraib Whistleblower's Ordeal. BBC News.http://news.bbc.co.uk/1/hi/world/middle_east/6930197.stm. (accessed April 6, 2008). • Cassel, Elaine, “Jose Padilla’s Suit Against John Yoo: An Interesting Idea, But Will It Get Far?” http://www.writ.corporate.findlaw.com/cassel/20080114.html • Coalition for the International Criminal Court, “Status of US Bilateral Immunity Agreements” http://www.iccnow.org (accessed 4/10/2008)‏ • Eggen, Dan and White, Josh, “Memo: Laws Didn’t Apply to Interrogators” Washington Post, April 2, 2008

27. References • Cohen, Alexander. Special Report: The Abu Ghraib Supplementary Documents The Center for Public Integrity Posts Classified Documents that form the Basis of the Taguba Report. http://www.publicintegrity.org/report.aspx?aid=396 (accessed April 6, 2008)‏ • CNN “Suit Accusing Rumsfeld of Ignoring Torture Dropped” http://www.cnn.com/2007/LAW/03/27/iraq.torturesuit/index.html (accessed 4/10/2008)‏ • Constraining Executive Power: George W. Bush, the Rule of Law, and the Constitution, by James P. Pfiffner. • DW Staff.”Rumsfeld Sued for Alleged War Crimes” http://www.dw-world.de. (accessed 4/10/2008)‏ • Elsea, Jeinnifer K. U.S. Treatment of Prisoners in Iraq: Selected Legal Issues. CRS Report for Congress. (2005). • Exposing the Truth of Abu Ghraib. CBS News: 60 Minutes. http://www.cbsnews.com/stories/2006/12/07/60minutes/main2238188.shtml. (accessed April 6, 2008). • Global Policy Forum,”U.S. Bilateral Immunity Agreements” April 18, 2003. http://www.globalpolicy.org/intljustice/icc/2003/0606usbilaterals.htm (accessed 4/10/2008)‏

28. References • http://www.publicintegrity.org/report.aspx?aid=396 • Military Law for the Citizen Soldier, 3rd Edition, Faculty, Department of Law, U.S. Military Academy, 1995. • Nuckols, Ben. Abu Ghraib Officer Says Investigation of Abuses at Iraqi Prison Didn't Go Far Enough. North County Times. http://www.nctimes.com/articles/2008/01/12/news/nation/7_04_051_11_08.txt. (accessed April 8, 2008). • Zagorin, Adam. “Exclusive: Charges Sought Against Rumsfeld Over Prison Abuse” http://www.time.com/time/printout/0,8816,1557842,00.html (accessed 4/10/2008)‏