Terrorism and Individual Liability

1
Terrorism and Individual Liability

• Katja Bowman
• Dave Buffaloe
• Laura Crehan

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
The Taguba Report

• 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 Agencys (OGA) interrogators (i.e.
  CIA) in order to set physical and mental
  conditions for favorable interrogation of
  witnesses.

7
The Taguba Report

• The types of intentional abuse of detainees by
  military police documented includedPunching,
  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.

8
Congressional Hearings

• 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

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
Final Accountability Tally

• 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.

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 Berlins Lawyers 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 Iraqs 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 Presidents 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 Padillas 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
  Padillas 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

• Legislative changes to make civilian government
  officials personally liable and accountable for
  their actions.

Pros Cons
25
Conclusion

• 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.

26
References

• Abu Ghraib One Year Later, Who's Accountable?.
  Amnesty International USA. http//www.amnestyusa.
  org/page.do?id1107945. (accessed April 6, 2008).
• Abu Ghurayb Prison Prisoner Abuses Joint
  Interrogation and Debriefing Center JIDC.
  Global Security. http//www.globalsecurity.org/int
  ell/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, Yoos 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/wor
  ld/middle_east/6930197.stm. (accessed April 6,
  2008).
• Cassel, Elaine, Jose Padillas Suit Against John
  Yoo An Interesting Idea, But Will It Get Far?
  http//www.writ.corporate.findlaw.com/cassel/20080
  114.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 Didnt
  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?aid396
  (accessed April 6, 2008)?
• CNN Suit Accusing Rumsfeld of Ignoring Torture
  Dropped http//www.cnn.com/2007/LAW/03/27/iraq.to
  rturesuit/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/2006/12/0
  7/60minutes/main2238188.shtml. (accessed April 6,
  2008).
• Global Policy Forum,U.S. Bilateral Immunity
  Agreements April 18, 2003. http//www.globalpoli
  cy.org/intljustice/icc/2003/0606usbilaterals.htm
  (accessed 4/10/2008)?

28
References

• http//www.publicintegrity.org/report.aspx?aid396
  
• 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/na
  tion/7_04_051_11_08.txt. (accessed April 8,
  2008).
• Zagorin, Adam. Exclusive Charges Sought Against
  Rumsfeld Over Prison Abuse http//www.time.com/ti
  me/printout/0,8816,1557842,00.html (accessed
  4/10/2008)?