Abu Ghraib

By Charles Mills
Locust Valley, NY
May 2009

In October 2003 and on May 25, 2004 the ACLU made broad Freedom of Information Act requests for all government documents concerning the treatment of detainees in the War on Terrorism. It followed this up with a suit in the District Court for the Southern District of New York in 2005  Both the ACLU and the United States Attorney seem to have wanted this suit handled one issue at a time and the Judge seems to have done that.

I am the general counsel (“Judge Advocate” in their terms) to The American Legion in New York State.  The National Headquarters of The American Legion retained me to write an amicus curiae brief against the production and publication of certain photographs known as the Darby photographs taken of Military Policemen and Policewomen and Army Intelligence soldiers humiliating and frightening certain prisoners at the Baghdad Central Confinement Facility at Abu Ghraib.  These were part of the same set of photographs as those already leaked that showed such things as an American female soldier in a T-shirt leading an Arab prisoner on a leash.  My position is that we should not release things like this until the day we withdraw all our combat troops and thereby avoid stirring up hostility toward them.

It quickly became apparent to me that the United States Attorney was not making the strongest arguments available.  The only arguments being made by the government was that the photographs might invade privacy and were an exception to the Freedom of Information Act covering materials gathered in a criminal investigation whose release might severely endanger life or physical safety.  The ACLU argued that this exception applied only to danger to law enforcement personnel.  The government never argued that the MP Brigade in Baghdad was law enforcement personnel, and indeed refused to make this argument on oral argument when the Judge asked them about it.

The government also never argued that the photographs were not covered because at the time the Freedom of Information Act request was made they were in Iraq being used to prepare for courts martial.  This was a critical argument because it attacked the very subject matter jurisdiction of the court to order the photographs produced.

The situation appeared to be permeated with the possibility that Military Police are being made scapegoats to protect intelligence agents.  In 2004, all the military personnel in the photographs were tried by courts martial and sentenced to extraordinarily harsh terms of imprisonment.  They were also harshly denounced by the Chairman of the Joint Chiefs of Staff. According to the Commanding General of the Military Police Brigade, she had an argument with the Commanding General of the Military Intelligence Brigade about using Military Police to soften up prisoners for interrogation which she opposed.  Both were female Brigadier Generals.  The MP one was retired as a colonel.  The MI one was promoted to Major General.

In my brief in the District Court I made the arguments the United States Attorney had inexplicably failed to make.  The Department of Justice let it be known that it was unhappy with me but some Department of the Army lawyers complimented me privately on my brief. 

The Judge ruled in favor of disclosure of the photographs.  He mentioned each of my arguments in footnotes, in each case saying he was not considering them because the government had not raised them.  This is clearly reversible error.  It is settled beyond any doubt that a judge should consider suggestions that he lacks subject matter jurisdiction from any source.

The government appealed and I wrote and filed a brief in the US Court of Appeals. Before the appeal could be argued the rest of the photographs appeared on the internet and the United States Attorney withdrew the appeal.  It is hard to conceive of any way the photographs got out other than a leak in the US Attorney’s office or the Department of Justice.  I was told that the Viet Nam veterans who hold the key positions in the National Headquarters of The American Legion felt like they were “back in Viet Nam” – betrayed by Washington.  I do not think that the leak was the work of just one person.

That ended my direct involvement in the case but I continued to receive hundreds of  electronic notices from the Court as the case dragged on for four more years.

Recently the issue came up in the case of the three Department of Justice memoranda  known as the torture memos.  These were 2002 and 2005 Top Secret (in two cases with further restriction) internal Department of Justice memoranda concerning the legality of certain interrogation techniques, including waterboarding. These memoranda reached the conclusion that the techniques, including waterboarding, were not torture as defined in the United States Code.  On the other hand, the average person who has never heard of the United States Code usually thinks waterboarding is torture.  It may also be torture under international law.  The Department of Justice would have naturally had a special interest in preventing the disclosure of memoranda by its people justifying waterboarding. There was, certainly, a good reason not to disclose these memoranda because their disclosure tells terrorists exactly what to expect if captured, but it also seems that the Department of Justice had its own motives.

These memoranda were released as part of the case but only after the Department of Justice could blame them on the prior administration.

In my opinion protecting soldiers is more important than protecting government lawyers.  That dilemma would not have come up if we had just kept the lid on everything until combat was over and then released it.  If low ranking MPs were made scapegoats to protect government lawyers it was despicable.

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2 comments to Abu Ghraib

  • Charles Merlis

    Without taking a position on any of the merits of the case, if Charles’ arguments referred to by footnotes in the Judges decision were considered subject matter jurisdictional, the Judge could have considered them, as a Judge could sua sponte always raise subject matter jurisdiction.

  • William Doying

    Charles’s assessment of motivations, both within the military and within DOJ, rings very true, to this veteran of both military and government service. When I was in the Navy (and, I am reasonably confident, still) the sad saying was that “[stuff] rolls downhill,” i.e., that the chain of responsibility for a terrible decision is seldom pursued upward to its origins, but left to reside with some suitably sacrificial underling.

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