Dereliction of Duty

The Guardian features a preview today of Torture Team, the new book by Philippe Sands, a University College London law professor, on the saga surrounding American detention and interrogation policy over the past several years. Sands wrote in a previous book about how the Bush administration policies undermined the global rule of law. In this book, he takes aim at what he describes as a concerted effort to legitimate torture as an effective and lawful tool of American national security policy.

Specifically, Sands describes the role played by retired Air Force Gen. Richard Myers, the chairman of the Joint Chiefs during this time. Myers -- a former fighter jock who is not highly regarded within the military -- reportedly received briefings on the Pentagon's plans for a coercive interrogation regime at Guantanamo. But, in Sands's telling, was confused about this regime's legal pedigree and whether it conformed to standard military practice. In the end, Myers did little to investigate the matter, deferring to the Pentagon's general counsel and other senior officials.

According to the Guardian's preview:

Sands, who spent three hours with the former general, describes him as being "confused" about the decisions that were taken.

Myers did not realise that fundamental safeguards provided by the Geneva conventions and elsewhere were being abandoned by his own junior officers as well as political appointees in the administration, the author says.

He believed new techniques recommended by Haynes and authorised for use by the military at Guantánamo by Rumsfeld in December 2002 had been taken from the US army field manual.

However, none of the severe interrogation techniques came from the manual, and all breached established US military guidelines and rules.

The techniques included hooding, sensory deprivation and physical and mental abuse.

"As we worked through the list of techniques, Myers became increasingly hesitant and troubled," Sands writes. "Haynes and Rumsfeld had been able to run rings around him."

Myers and his closest advisers were cut out of the decision-making process, so he was not given sufficient opportunity to object to measures he now says he strongly disapproved of.

He did not know that Bush administration officials were changing the rules allowing interrogation techniques, including the use of dogs, amounting to torture.

"We never authorised torture, we just didn't, not what we would do," Myers said.

Sands comments: "[Myers] really had taken his eye off the ball ... he didn't ask too many questions, or inquire too deeply, and kept his distance from the decision-making process."

Sands's reporting raises interesting questions about whether Myers faithfully performed the duties of a general officer in his position. In both military and international law, there is a doctrine called "command responsibility." This doctrine has been incorporated into U.S. law by the Supreme Court in Application of Yamashita, 327 U.S. 1 (1946). This paragraph, from a recent edition of the Army's leadership manual (pdf), explains what it is:

Command Responsibility

A-18. Command responsibility refers to collective or organizational accountability and includes how well units perform their missions. For example, a company commander is responsible for all the tasks and missions assigned to his company; his leaders hold him accountable for completing them. Military and DA civilian leaders have responsibility for what their sections, units, or organizations do or fail to do.

And this paragraph from the Army's field manual for the law of war explains how command responsibility works in a legal sense:

501. Responsibility for Acts of Subordinates.

In some cases, military commanders may be responsible for war crimes committed by subordinate members of the armed forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander. Such a responsibility arises directly when the acts in question have been committed in pursuance of an order of the commander concerned. The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.

As chairman of the joint chiefs, Myers occupied a unique position at the top of the U.S. military command structure. Federal law designated him as the senior ranking member of the military and the "principal military adviser" to the president. But the chairman does not have a place in the chain of command -- which, in wartime, runs from the president to the Secretary of Defense to the combatant commanders to theater commanders like Gen. David Petraeus. He also does not exercise command authority over the services, which have the statutory mission to recruit, organize, supply, equip, train, administer and maintain their respective forces. So, as a formal matter, Myers commanded no one. And consequently, it's unclear whether he owed a specific legal duty under the command responsibility doctrine.

Nonetheless, as a moral and practical matter, Myers clearly had a duty to do more here. It was his job, as America's top general, to give voice to the millions of servicemembers who would be asked to carry out these policies and live with the consequences. It was also his role to speak about the organizational consequences that would flow from the loosening of American adherence to international law, and the need to maintain our global leadership in this area. Most importantly, it was Myers's job to inquire about what was going on, so he could fulfill his duty as "principal military adviser" to the president. According to Sands's account, Myers clearly failed to do his duty.

By Phillip Carter |  April 21, 2008; 10:01 AM ET  | Category:  Law
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Please email us to report offensive comments.

Congratulations on your new blog space; I'm an infrequent commenter but regular reader who hopes you get a much bigger audience.

The failure of Myers is historic, I think. But I cannot help but admire him slightly for not covering his ass -- or throwing Sands out -- when presented with the evidence. I'm also pretty interested in Sands's recommendation that Yoo, Hughes, Gonzalez, Addington, etc. not travel outside of the US. I think there's going to be a LONG discussion about war crimes in the coming decade, and it's going to be extremely embarrassing to the Bush "legacy".

Posted by: Fnarf | April 21, 2008 10:47 AM

It would be nice if you would specify exactly what abuses you are referring to. Are you referring to Abu Ghraib specifically, or something else? Furthermore, this sentence gives me a little trouble: "Myers did little to investigate the matter, deferring to the Pentagon's general counsel and other senior officials." Is that surprising? It would be excellent if all of our high level military officers had legal knowledge, but they don't and I believe that is why they have counsel. As to the legal issues, it is a bit more confusing than you admit. The extension of POW status to "enemy combatants" has long been considered but rejected as it was thought that such an extension would legitimize terrorists and increase the danger to civilians in wartime. If you are arguing that by denying this status to prisoners in the War on Terror lead directly to the abuses, I think that is a bit of a disingenuous argument. The occurrence of actual abuses is a separate issue; prisoners could have been denied official Geneva protection but still not abused. To conflate the two is a mistake. That the abuse at Abu Ghraib was reprehensible and unacceptable is beyond question, but to hold those who upholded the existing legal interpretation of the Geneva Conventions which denied non-uniformed combatants Geneva protection somehow responsible is somewhat of a stretch. Furthermore, I think in considering whether Gen. Myers should be condemned one should also take into account the unprecedented nature of the events and decisions that were being dealt with at the time instead of narrowly focusing in on some abuses and sanctimoniously castigating a man who has served the country his entire career.

Posted by: DHobgood | April 21, 2008 12:27 PM

Myers may truly have been kept out of the loop, or duped as you say but, reports of Torture and abuse began leaking out years ago. It was his duty to look into those leaks and see if there was any truth to them. When you consider what he already knew, the stuff that had made him uncomfortable,his duty was clear and he failed to uphold the oath he took to protect the Constitution and Country. Does his inaction amount to the same level of War Crimes as Bush, CHeney, etal, ? Probably not, but he should not be given the pension a person in his positon ends up with and that we pay for. He did not do the job and hence did not earn it.

Posted by: SmileySam | April 22, 2008 5:44 AM

Any analysis of our big mistakes in Iraq must include Abu Ghraib. There is fairly strong linkage between the tactics used there and what was going on at Gitmo. Normal barriers for interrogation had been broken. Thousands of deaths ensued from this. Myers seems guilty of "looking the other way". This is not acceptable for the JCS.


Posted by: steve | April 22, 2008 7:11 AM

Legaly speaking, I do think an interesting question comes up: What are the consequences, legaly, in the US for breaking the Geneva conventions? Do they still apply? According to the current administration, they do not.

Posted by: fnord | April 22, 2008 10:46 AM

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