While the accused Abu Ghraib ringleader, Army Spc. Charles Graner Jr., provides a tempting scapegoat for the widening American POW abuse scandal, no legitimate investigation can stop short of the White House and the Pentagon.
The Graner case looks certain to test the limits of the "Nuremberg defense" of superior orders. It is time for the civilian policy-makers in the White House and Pentagon, those who ordered American soldiers to flout the Geneva Conventions, to be held accountable.
Unlike the Nuremberg trials that moved up the chain of command to try policy-makers and leaders, the cases of Graner and six other defendants charged separately in the Abu Ghraib affair represent little more than primitive political justice. Graner's lawyer, Guy Womack, has said he will attempt "to hold the order givers to higher standards" by invoking the "Nuremberg" defense: "Our entire case will resolve around obedience to orders." But it is unlikely that the "superior-orders defense" will fare any better in this Army court martial than it did at Nuremberg.
The Bush administration deserves full blame for the prisoner abuses and ensuing public-relations fiasco. Throughout the "war on terror," the FBI, the CIA and professional soldiers have both privately and publicly raised objections about the American treatment of prisoners. The Bush administration ignored those they did not mock as "soft" on terror.
Eight senior officers from the Office of the Judge Advocate General - the highest military legal authority - sounded an alarm in 2003 in a series of secret meetings with the New York City Bar Association. The career military lawyers complained that the Pentagon had sidelined them because they supported Geneva Convention protections for American prisoners. Retired Rear Adm. John Hutson, judge advocate general from 1997-2000, blames the decision to ignore the Geneva Conventions for "the kind of chaos we've seen."
Recently released FBI documents provide still more compelling evidence that the United States has systematically abused prisoners of war in Afghanistan, Iraq and Cuba. FBI agents who visited Guantanamo Bay were shocked by both the style and the substance of the interrogations. They complained that, in addition to being brutal, the interrogation techniques they witnessed "produced no intelligence."
From a monitoring room, FBI agents saw "another detainee sitting on the floor of the interview room with an Israeli flag draped around him, loud music being played and a strobe light flashing." The FBI reported on interviews with two generals in charge of Gitmo: "Both agreed the Bureau has their way of doing business and the DoD has their marching orders from the SecDef ."
The incalculable public relations damage done by the Abu Ghraib photos was compounded by an American blindness to the power of impressions in international politics: a tortured prisoner wrapped in an Israeli flag, American women torturing naked Muslim men, forcing Muslim prisoners to eat pork and drink alcohol, sexually abusing Iraqi women. Osama bin Laden himself could not have staged a more successful propaganda coup.
Iranian supreme leader Ayatollah Ali Khamenei made the most of it: "The president and the gang ruling America say they did not know what was going on. That is how they have apologized. They say they did not know and that they have closed Saddam's torture chambers. You have not closed Saddam's torture chambers. You have replaced Saddam."
President George W. Bush, Defense Secretary Donald Rumsfeld, and soon-to-be confirmed Attorney General Alberto Gonzales continue to stonewall and to deny the overwhelming evidence of systematic American POW abuse. During his confirmation hearing, Gonzales continued to maintain: "The president has not authorized or condoned torture." The Bush administration continues simply to deny that the prisoner abuses are anything but isolated events that do not "reflect the nature of the American people."
The Graner case highlights the Bush administration and the Pentagon's unwillingness to admit, much less accept responsibility for, their policy blunders. Several reports on U.S. prisoner abuses all point to massive failure of leadership at the highest levels. The time has come to put this national disgrace behind us. The time has come for an independent investigation of American POW policy.
Peter Maguire, author of "Law and War: An American Story," has taught at Columbia University and Bard College. He was the historical adviser for the documentary, "Nuremberg: A Courtroom Drama."
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