High stakes, harsh scrutiny as prison-abuse trials go on
It now appears that legal proceedings for US military personnel charged in the Abu Ghraib case may help answer a key question: In the chain of command, how high did responsibility for the abuse of prisoners go?
Defense lawyers say they'll try to get testimony from President Bush himself in an effort to show that their clients were simply following orders. A military judge has already ruled that top generals will have to submit to questioning.
Meanwhile, Secretary of Defense Donald Rumsfeld has admitted that he personally approved the decision to hide several prisoners from the Red Cross - though he denies that this helped create the atmosphere that led to the problems at Abu Ghraib.
It seems likely that the US national security structure is facing a summer of more messy revelations about interrogation methods and its treatment of prisoners around the world. That's something that may be necessary to try to reassure the US public - if not skeptical Iraqis - that the American system of military justice can deal with such wrong-doing.
"We need to see what's there," says Helle Dale, director of foreign policy studies at the Heritage Foundation.
The Pentagon has long portrayed the seven lower-level service personnel accused in the Abu Ghraib case of being simply bad soldiers - people who for reasons known only to themselves manipulated and abused prisoners.
Indeed, some of the accused have reportedly told investigators that such actions as piling naked prisoners on top of each other, and then taking pictures, had nothing to do with obtaining intelligence, or any other military mission. They did it because it "looked funny," Pfc. Lynndie England reportedly said.
But this sort of abuse may be only part of the story. Defense lawyers for some of those charged so far claim that pressure for productive interrogations, combined with ambiguous orders about the treatment of prisoners, created an environment in which many were culpable for the actions of a few.
The door to continued legal exploration of this subject was opened wide on Monday when a military judge, Col. James Pohl, held that leaders such as Lt. Gen. Ricardo Sanchez, the top US commander in Iraq, would have to answer questions about whether they approved treatment of prisoners that violated the Geneva Convention.
The judge also ordered that Abu Ghraib itself be preserved as a "crime scene," and not destroyed, as Mr. Bush had previously ordered.
Thus the stakes are now raised for the Bush administration in the Abu Ghraib legal process. Generals seldom sit for such questioning, say legal experts. They will now have to answer uncomfortable questions about what they knew of a number of US memos that laid out arguments for how harsh treatment of prisoners could be held as legal.
"This is not your ordinary case," says Eugene Fidell, president of the National Institute of Military Justice. "Some of the things floating around here are of great moment."
An August 2002 Justice Department memo, for example, argued that cruel and inhuman treatment was justifiable in the protection of national security, as long as it did not become actual torture, which the memo defined as pain equivalent to "serious physical injury."
Such memos were simply theoretical, and did not affect actual decisions about what was and was not permissible in regards to interrogation, according to administration officials.
But other decisions clearly were not theoretical. Mr. Rumsfeld agreed to hide some prisoners from the Red Cross, creating "ghost detainees." In December 2002, he also approved use of interrogation methods beyond those approved in Army field manuals for use on detainees at the US military's prison at Guantánamo Bay, Cuba.
The particular target of this change was Mohamed al-Khatani, a Saudi Arabian believed to involved in planning for the Sept. 11 attacks. US authorities were desperate to get him to talk, and, in their view, possibly prevent future attacks.
That's the balance that officials were trying to strike in some of these situations, points out Ms. Dale of the Heritage Foundation. They felt they were under tremendous pressure to protect the nation, and that in the post-9/11 world, the old rules might no longer entirely apply.
But the old rules were there for a reason. If the US is seen by the rest of the world as ignoring the restraints of the Geneva Convention, the rest of the world may be less condemnatory if captured US personnel are some day treated the same way.
Perhaps US officials believe they did gain crucial information from loosening some of the rules. Revelations so far do not indicate that to be the case.
"They were walking a fine line, and at some point they seem to have overstepped," says Dale.