This is an archived article that was published on sltrib.com in 2006, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
A recent Knight Ridder story about a new Human Rights First report studying detainee deaths in U.S. custody since 2002 highlights a part of America's torture problem that has gone overlooked for too long: an abject failure to hold those responsible for torture and abuse - even deaths of detainees - accountable for their actions.
These misdeeds are not just the work of a "few bad apples" as the pictures from Abu Ghraib were so famously and cavalierly dismissed. Indeed, there are nearly a dozen brutal deaths as the result of the most horrific treatment that could only be described as torture even under the administration's strained definition. One such incident is an isolated transgression; two is a serious problem; a dozen of them is policy.
These episodes read almost like a Kafka novel. Because so many people are responsible we can't hold any single person responsible so we hold no one responsible. The failures are both of the military justice system and our civilian and military leadership.
Leadership is a critical attribute to a well functioning military. But leaders can lead in the wrong direction. The heart of military effectiveness is the chain of command, up to and including the President of the United States. Indeed, one of the four criteria for qualifying as a prisoner of war under the Geneva Conventions is that the individual is part of an armed force organized with a chain of command; it is that discipline ensured by that structure that causes forces to comply with the laws of armed conflict. Without a strong chain of command, fighting a war - a perilous endeavor under the best of circumstances - becomes utterly chaotic.
If the chain of command is the heart of the military, then accountability is its soul. Accountability up the chain of command is the quid pro quo for obedience down the chain. It's the solemn obligation of military leaders to those who are led. Soldiers must know that the orders they are called upon to follow are legal, wise, and effective. Their lives and the lives of the comrades as well as the successful completion of the mission depend on that.
They must also know that if their orders are illegal, mindless, or immoral, those who issued them will be held accountable. We don't want to have soldiers having to ask themselves which orders they should follow and which they should ignore.
Good order and discipline and military effectiveness are inexorably tied. An army without good order and discipline won't be an effective fighting force. And, without a strong chain of command, there can't be good order and discipline. Good order and discipline alone can't guarantee effectiveness, but lack of those qualities will ensure that the war fighting machine is doomed to failure over the long run just as surely as if the army lacked bullets.
Willingness, even eagerness, to be held accountable is a form of moral courage. It takes courage to say, "This was my responsibility. I accept the blame." Certainly, more courage than it takes to say it was the fault of "a few bad apples."
For these reasons, the law of military justice has long recognized that military leaders are held responsible for the conduct of their troops. This is a concept that is as old as the military itself. Yet according to Human Rights First, no civilian official or officer above the rank of major responsible for interrogation and detention practices has been charged in connection with the torture or abuse-related death of a detainee in U.S. custody. And the greatest punishment for anyone handed down in the case of a torture-related death has been five months in jail. That is not accountability as we know it in the United States.
Our failure to get to the bottom of what happened in U.S. detention and interrogation operations during the past four years, and to pursue, where appropriate, accountability up and down the chain of command will eventually undermine our strength. For this reason, if no other, it is long past time for Congress to convene a bipartisan commission to take a hard look at what went wrong and how the United States got into this sorry mess. If there are systemic problems, we need to identify them so we can correct them. If we don't have the courage to do that, we are doomed to repeat the errors of the past. And in the not-so-long run, America will be the weaker for it.
Rear Admiral John Hutson (Ret. USN), dean and president of the Franklin Pierce Law Center, was the Navy's Judge Advocate General from 1997 to 2000. He has testified before the Senate about U.S. interrogation and detention policy. Readers may write to the author at Franklin Pierce Law Center, 2 White St, Concord, NH 03301.