OK, This Is Bad

I’ve deflected the “we’re torturing folks” meme by arguing that the people who did the bad things were being prosecuted and, where appropriate, convicted and punished.

Not so much, it appears.

A Chief Warrant officer who was brutally interrogating an Iraqi general – not a Geneva-convention-flaunting guerilla or terrorist – tied him up, stuffed him in a sleeping bag, sat on him, and killed him.

His punishment?

…instead of serving jail time and being forced from the military, Welshofer would receive a formal reprimand, forfeit $6,000 of his salary and spend 60 days restricted to his home, office and church.

I’m sorry, but that doesn’t cut it.

Overall, other than the telegenic Abu Ghreib defendants, the penalties meted out for killing Iraqi prisoners appear to have been very light.

This kind of blows my argument – that this isn’t an issue because we find the people who do Bad Stuff and punish them – out the window.And it implies a higher level of organizational responsibility than makes me happy. I’m not advocating closing Camp X-Ray, nor am I suddenly of the belief that reading terrorists their rights in the heat of battle before shooting them is a requirement. But there is a line, and it looks to me like we are on the wrong side of it.

I need to think about this a bit. But it’s clear that supporters of the war – folks like me – have a responsibility to take a stand on this.

60 thoughts on “OK, This Is Bad”

  1. If you didn’t follow the trial it is reasonable to come up with your judgment…

    …however, I believe the sentence was probably fair considering some of the facts presented at the case (i.e. the cause of death was determined to NOT be suffocation caused by the sleeping bag, the General was widely known to be involved in the insurgency, the General was injured prior to interrogations by Welshofer, etc.)

    He was charged and convicted with a felony in this case because the dude died in his care, but numerous mitigating circumstances were considered in the sentencing phase. Realistically in addition to the sentence he got: his career is over, he is forever disgraced, and he can NEVER get a job in the Intel Community again. Considering the fact that he has no other marketable skills, his life is screwed. I’d say the sentence is just in the end.

    As for the Abu Ghraib idiots…a sentence like 3 years for PVT Whats-her-name is ridiculous considering one could do more harm to someone in a bar-fight and only get convicted for misdemeanor battery in the real world. Some sentences were justified…some were just the product of a politically motivated witch hunt.

  2. Armed Liberal: “Overall, other than the telegenic Abu Ghreib defendants, the penalties meted out for killing Iraqi prisoners appear to have been very light.”

    Armed Liberal: “… it’s clear that supporters of the war […] have a responsibility to take a stand on this.”

    I agree with this.

    In addition to and not instead of action on this, I again suggest that we may be taking far too many prisoners, and that, whenever possible, illegal combatants should be shot.

    I realise that this will have a cost in friendly and civilian lives, including the lives of children, prime targets of the terrorists. I also realise that my suggestion bears at least a family resemblance to Hitler’s infamous “commando order.”

    But, these people are supposed to be dead, not alive. By the laws of war we can and should kill them. Morally, no men could be more deserving of death. And by making then prisoners we tacitly give them rights that that they should not have.

    We override our moral obligation on the assumption that keeping these monsters alive serves the war effort. But on balance, does it really?

    We do not appear to have the strength of morality and character needed to treat prisoners of this type chivalrously and to punish adequately and speedily even gross violations of correct behaviour. We have not been able to avoid scandal gravely harmful to the war effort. Justified scandal, based on real crimes. We have not been able to avoid releasing dangerous prisoners to resume making illegal war against us. We have not been able to reach a non-partisan consensus on how these prisoners should be interrogated effectively but in a way that does not shame us.

    For it to be advantageous for us, for the war effort, to take and hold these prisoners, we would need the strength, in a variety of senses, to gain by doing so. We would have to have the power not only to gain information but to earn credit for doing things right. We assume that we have the strength to accomplish that, but every year we prove again that we don’t.

    We ought to abandon a task that has proved to be beyond our abilities. No more grabbing terrorist tar-babies if we can help it.

    In a spirit of cold-blooded loss-cutting: we should just shoot them.

  3. Armed Liberal

    Not a Geneva-convention-flaunting guerilla or terrorist

    Depends on when he was arrested and how. I believe this guy was scooped after the invasion in counter insurgency raids. The fact he was once a general don’t protect him. Not to mention even if he was active but not uniformed when fighting he gets no protection. Ask the German SOF’s that went behind the lines during the Battle of the Bulge.

    I with Blue this terrorist and all others should be squeezed for all the Intel they got then tried, convicted, .22hollow, next.

  4. I think that T-bone is right on point.

    Armed Liberal, are there any circumstances in which you would support brutal torture of an enemy prisoner?

  5. I would support torture only if the person doing so would also agree to plead guilty to doing so and receive say a 10 year sentence. Certainly if it is worth torturing it is worth sending one person to prison for doing it. The person could go to jail knowing that he had saved many lives. Of course I realize that not as many Americans might be as willing to torture if this were the case but I know that some patriotic Americans would be willing to take one for the team.

  6. LH, one niggling point (which doesn’t affect the thrust of your post.)

    Camp X-Ray is closed. It was a temporary facility that we threw together to receive prisoners from OEF.

    Currently, Gitmo detainees are housed at Camp Delta, which is much larger, more permanent (more like a prison than a camp,) more services and amenities, keeps detainees out of the sun, etc.

    Of course, a lot of newspapers still run pictures of X-Ray alongside any article about Gitmo… (*sigh*)

    “This article has more.”:http://http://www.globalsecurity.org/military/facility/guantanamo-bay_delta.htm/

  7. “I would support torture only if the person doing so would also agree to plead guilty to doing so and receive say a 10 year sentence. Certainly if it is worth torturing it is worth sending one person to prison for doing it. ”

    John has almost got it right. I totally disagree with the idea of torture warrants or legalizing torture, but in a ticking time bomb situation the torture should be done, those who executed it charged, and the president should pardon them. Then it becomes a political issue, which it should be in an extreme circumstance. The law should not be contorted to account for such a thing.

  8. No. No pardon !! the guy justs does his time. But he does get to feel good about saving everybody. If you throw the pardon in then there may be torture in ummm less compelling circumstances. You know where the torturer isn’t really really sure that there is an a-bomb ticking away with one of those digital clocks like in the movie. Our criminal justice system isn’t perfect a few more innocents will not really matter in that respect, and it could save millions !

  9. Armed Liberal,

    I’m not a supporter of the war but it is refreshing to read a post from a war supporter with the intellectual honesty to be critical. My hat’s off to you.

    The treatment of prisoners taken during the WoT are distressing but not suprising. POWs have always been treated badly and out and out murder has never been uncommon. The main difference now is the scrutiny everything gets exposed to.

    The americans should be a great deal smarter about this.

    In many ways America is making the same mistakes that the Brits did with the IRA in the bad old days. Let’s hope it doesn’t take them forty years to clean up their act.

    David Blue,

    There was a time when we in the west employed policies similar to the ones you’re espousing. It was a period widely known as the Dark Ages. We eventually decided to move on.

  10. john ryan, that makes no sense. If an interrogator discovers a prisoner has “ticking time bomb” type information, they’d presumably have some obligation to extract that info. Under your system, if such extraction necessitated “torture” (and I suspect the DoD would not want certain strongly opinionated people deciding what to define as torture), the interrogator gets a 100% probability of 10 yrs jail sentence, but no guarantee that the intel would save lives, or that he could successfully extract it in the first place. Who in their right mind would accept such a pact?

    In other words, you’d be setting up a situation where it would make MUCH more sense to just shoot the combatants on the battle field than to make the effort to capture them (just as David Blue posited). Not only would soldiers avoid a situation where they’re forced into 10 years of jail, but there’d be no processing and transportation costs, no tying down troops for prison guard duty, and no potential for “catch-and-release” of terrorists who’ll just resurface to shoot their former captors. If the mere act of interrogating for intel puts soliders at risk (of jail time), why would they ever even attempt it?

  11. This incident is one of two I would consider myself upset over. A whopping two throughout the whole war.

    The other one being the soldiers who made the two 19 year old Iraqis jump off the dam into the river, and one of them drowned. That garners little attention though…

  12. Jose, by “Dark Ages” I assume you mean WWII.

    After all, as C-Low makes reference to, U.S. forces summarily executed German POWs captured wearing American uniforms behind American lines. Similar incidents happened in Korea and in Vietnam (the prisoner in the famous photograph of the police chief executing a man was actually an NVA officer captured inside of South Vietnam in civilian clothing.) The facts are that summary execution of combatants who are not uniformed has ALWAYS been a part of the laws of war. It’s been codified in the Geneva Conventions. Granted, whether or not we actually choose to follow this ruling is a policy/political decision given the drastic change in combat. But from a legal standpoint, we would be completely justified in executing every single person we captured after a direct firefight with Coalition forces.

    And it certainly has nothing to do with the “Dark Ages.”

  13. AL, I see no need to hyperventilate or have a tantrum. The outcome may not satisfy your desires in this matter, but I doubt you were/are priveleged to all the facts of this case. I’m not, either, but I strongly suspect there were some extenuating circumstances that prompted the sentence that was given. Negligent homicide already means the person did not intend to kill the victim, and other factors that the interrogator could not have reasonably foreseen may have contributed to the victim’s death.

  14. Though it’s true that executing illegal combatants is in perfect accord with the G Conventions, I don’t think it’s a good idea in general to shoot prisoners, and definitely not a good idea to shoot them just because we’re frustrated with unjust criticisms about detention and interrogation.

    Regarding the German infiltrators, we could have shot SS commandoes for wearing lace underwear and nobody would have given a damn; we could have tortured them to death and published the pictures of it in LIFE magazine. No one would have worried about the impact on the constitution or international law. Certainly we wouldn’t have had to worry about what the French thought about it, since they tortured or lynched hundreds of Frenchmen as suspected collaborators, some of whom were guilty of nothing worse than prostitution. The rules were frankly different then.

    That should be a cautionary note to WoT critics, a lot of whom think that this whole situation could be banished with a dose of liberal foreign policy. If the world decides that EVERYTHING is at stake – and a lot of people in Europe already think so – then the old rules might come back into play if things get far enough out of hand.

  15. Given that many of the operations coalition forces are involved in are situated in built up area’s full of non-combatatants I think a shade more discretion is required than that of just shooting everyone you come into contact with.
    Does the standard become, “Well we shot him, so he’s a terrorist?”. Its inane to suggest that every single person swept up in coalition operations is an active member of the insurgency.

  16. I read the LA Times article. Would encourage folks to follow that link.

    The defendant has an argument when he says orders and guidelines were unclear (NB: a similar defense was used successfully by Danish soldiers in their non-US trial). That has been true, and it puts US soldiers between a rock and a hard place.

    It also creates an environment where it is more difficult to prosecute real abuse. And there has indeed been some of that – Human Rights Watch has documented some incidents via US soldiers’ testimony to them that I found credible, over the line and also unnecessary (i.e. had zip to do with interrogation).

    While I found Tom Holsinger’s points re: the “McCain Amendment’s” dangers well taken, something does need to be done to give US soldiers the certainty that what they’re doing at any given time is within bounds and they cannot be prosecuted for it. Exactly how we achieve that is worthy of discussion, and there are a number of ways to skin that cat, but that needs to be the bottom line.

    With respect to this case, I’d like to know more facts. For instance, if it turns out the sleeping bag deal did not in fact kill the guy per TBone’s comment #1, then that would indeed be a pretty major mitigating circumstance.

  17. If the world decides that EVERYTHING is at stake – and a lot of people in Europe already think so – then the old rules might come back into play if things get far enough out of hand.

    The only thing wrong with this statement is the “if” part. Trust me, when push comes to shove (and it will) the Europeans and us too will fight with everything we have…and that means executions out of hand… the only question to be resolved is will we decide to pull the gloves off with enough time remaining in the game to actually win against Islam.

  18. This is just an example of the problem of using the criminal justice system to normalize behavior in war. The prosecutor must prove his case beyond a reasonable doubt. I believe the accused has a right not to testify. Some of the cases are going to have to be built on the testimony of people who are simply not credible.

    Some of the evidence is not going to be available. If the prosecutor has a doctor testifying to the cause of death; that doctor probably won’t have access to prior medical history like he would domestically. (“Could your opinion change if you had access to his medical history? It could.”) All the defendant needs is a little doubt.

    The prosecution is probably well-advised to avoid seeking the highest penalties, which afford the most protections. There are “lower classifications of court martial.”:http://www.military.com/Resources/ResourcesContent/0,13964,30902–1,00.html The other option might be to eliminate some of the rights that our service men and women enjoy. Or open them up to more civil lawsuits brought by the victims or civil rights groups.

  19. A.L. is spot on, and could even offer much more incredible sentences.

    Specifically the Dilawar case which, when it comes to refusing to hold anyone truly accountable is truly disgusting.

    28 U.S. soldiers faced charges over the deaths, but only three have been held accountable. One is James P. Boland, charged with assault and dereliction in the deaths. Another, Pfc. Willie V. Brand, was charged with striking Dilawar 37 times and maiming him. He was convicted, after which his rank was reduced to private. (This NYT article reports that even if Dilawar had lived, both his legs would have had to have been amputated.)

    As to Captain Beiring, the same New York Times article reported:

    An Army report dated June 1, 2004, about Mr. Habibullah’s death identifies Capt. Christopher Beiring of the 377th Military Police Company as having been “culpably inefficient in the performance of his duties, which allowed a number of his soldiers to mistreat detainees, ultimately leading to Habibullah’s death, thus constituting negligent homicide.”
    At Captain Beiring’s Article 32 hearing in December, this was some of the testimony:

    Maj. Jeff Bovarnick said that after a detainee known as Habibullah died in December 2002 he ordered Beiring to make sure his MPs stopped chaining detainees with their hands above their heads, a common practice that he said was not illegal. He did not think his order was followed, Bovarnick said. “I had 0.0 percent confidence that Captain Beiring had done anything or told anyone about this, so I went over his head,” Bovarnick said, referring to a conversation he had with a higher-ranking commander after a second detainee, a man known as Dilawar, died at the Bagram detention center.

    Why were charges dropped against Captain Beiring? The Washington Times has this quote from the Article 32 hearing findings of Lt. Col. Thomas S. Berg, who made the recommendation:

    I see no evidence … that Capt. Beiring failed to perform his duty to the best of his ability. As a newly classified MP, newly assigned to command MP guard company that was going off to war to do an ill-defined mission for which it was not designed for or even notionally trained, in a crud-hold like the [Bagram Collection Point] in 2002 with [military intelligence] calling the shots, Capt. Beiring was sorely challenged at every step.”

    More information and links than you’d probably want

    These men were murdered plain and simple. And no one will pay the price.

    But hey, we don’t hold those at the top accountable so why should we bother with those lower down the ladder right?

    First rule of military leadership. You delegate authority, but not responsibility.

    Guess Rumsfeld’s never heard that one.

  20. I know this torture-ticking bomb meme has been thoroughly hashed out in all the discussion about to torture-not to torture and maybe this question has been elaborated on at WofC but I still want to ask about this issue again, so I ask you Mark B.

    Many have suggested the ticking-bomb exception. Some side with requiring a warrant to torture (I forget the most prominent name suggesting this … damn it’s on the tip of my tongue). Others side with many variations of your recommendation. (I’ll skip those who disagree with the concept completely.)

    Is there panoply of extreme circumstances to this ticking-bomb for the latter side? That’s important to using your recommended approach which you say pushes it into the political arena just as it does with warrants. At least the warrants approach, conceptually, gets things such as the circumstance, if not the limits of torture and partial/full shelter, out of the way beforehand even though the drawback is it takes too much time. (If you think a 3″ file for a FISA tap is thick, guess what a torture warrant file thickness will be.)

    So, is there a laundry list of circumstances? A bomb killing X civilians? A bomb planted by war criminals killing troops? A gas attack? How many civilians or troops need to be affected — 10,000, 1,000, 100, 10? How about the certainty that the barbarian in the holding cell knows where an American reporter is and we know his henchmen are going to start sawing in a few hours? Are any of these questions affected by the torture methods intended? Is the trigger pull of an empty gun to the head of the object of torture the limit for the troop attack while waterboarding is a limit for others circumstances? “No holds barred for the nuke knowledge harborer?

    Of course, your approach would allow for more prolonged torture (used as a descriptor not definitionally) — the battery of interrogation methods talked about frequently as being used to extract information — whereas the warrants approach would likely never let that get past a few days of working a prisoner over (which kind of makes them useless). Let me qualify that: it would allow for it to the extent the potential interrogators, in the aftermath, want to take the chance in the court, both literally and the public opinion court, weeks, months or years afterward.

    If you (others) have addressed this in-depth, I’d appreciate the link if it is a simple task for you (those) out there. I’d like to understand it much better because at this time I’m still, if you will a fence- sitter, agonizingly so.

    I oppose torture. But I don’t think everything is torture and wrt that I see the abusiveness of a method being tied to the subject. The use of waterboarding on Zarqawi is different than it’s use on the honorable enemy combatant. That’s why I am sympathetic to Armed Liberal’s post here — I don’t know where this general is located on the scale — though I see TBone has added some clarification, insufficient though it still is for me to make a judgement.

    But John Ryan’s basic layout is the height of unseriousness. While you, Mark, don’t directly note you agree with the most unserious part of it, i.e., one of our troops or some small (large) chain of command takes an X year hit for violating the law, I infer in it that you provide a looser approach — whoever wants to place their bet and spin the wheel take one step forward. Even in that, I think it’s inappropriate to ask any one of our troops to take one for their team, by their team. That’s asking them to run an undetermined fragging gauntlet not to mention this, too, is not what establishment of a law is about — some get off others don’t based on undefined circumstances.

    I think that Bush played it right in opposing the law passed, believing it better to have a freer hand in using discretion and, in my presumption, having an attitude similar to mine in letting harsh interrogation fit the circumstance. I think he was right to sign the law and prepare a signing statement, even tough, it is my belief, the law has now tied his hands much tighter now. I say this because I will abide by the majority decision. But I also know full well there will likely come a time that this law will be fully ignored, at worst, or significantly amended, at best, when larger tragedies come a cropping and believe me, when they do, waterboarding and such will be the least harsh of methods used and the tragic deaths that occur will be the payment made to use them.

    I could be wrong about this. It’s still possible we would never relent in maintaining our conviction against the use of torture even to the point of glassifying half the Middle East instead.

  21. Depends on when he was arrested and how. I believe this guy was scooped after the invasion in counter insurgency raids.

    Not exactly. He turned himself in in an attempt to get his sons freed, who were being held in violation of just about every convention and international law in an attempt to make the father surrender.

    More details here

    And the defense, that the CWO believed he was following orders?

    If so then someone needs to explain what orders he was given and how he could reasonably have assumed that what he did was in compliance with those orders IMO.

    Everyone gets off. The CWO says “I was following orders I believed I was given” and basically skates, and his superiors can claim “we never gave him those orders” and also skate.

  22. Well, starting the comment when #7 was the last one, I see that Joe K (#17) has nicely summed my concern about ambiguous laws, though, I think, it will always boil down to, in essense, your level of trust in the President, etc.

    And, backwards, Glenn W (#15) does better at noting my concerns about the implications of letting the pendulum swing to far in outlawing methods as torture.

    Re Unbeliever’s (#11) comment: I have similar concerns with his last ‘graph. I think it would be unfortunate if that were happen because we made the mistake we’ve made now in overblowing the torture issue.

  23. Yes. As a staunch conservative and a supporter of the IRaq War, I think this is a bad thing that that particular officer has done, particularly given how ready the MSM is to find anything they can to undermine America and inspire the Islamic fundamentalists.

    By the way, here is an awesome new blog I found, with a good post on China and Human Development.

    http://futurist.typepad.com/

  24. War is ugly shit.

    When you ask people to murder, some are going to get overzealous. It is a fact of life. Some people are going to get away with murder.

    The rules get relaxed. Have to. What would you do to save your buddies on the battle field? The individual moral calculus changes. The command structure has to take this into account.

    War is all about the number of innocents who have to die to get at the guilty. We should keep it down. We should balance objectives vs. cost. It is unlikely it will ever be zero. Compared to other times and places I’d say performance was adequate with possibly some room for improvement. In war it is always a comparative thing. Are we making more enemies (since this iis a hearts and minds war) than Islamo Nazis?

    So what do I propose we do about it? I think it is past time that the Islamic Nazis gave up. Them Irainians are a bunch of trouble makers. I propose we have an incentive program. Clean up your act or else.

    I asked for this war. I have no illusions. There will be a lot of crying and heart ache.

  25. A.L.,

    I occasionally represented criminal accused in private practice, and am familiar with how a probation report can turn a conviction around. I’ve had clients basically walk due to favorable probation reports – work furlough & weekend evenings in jail.

    On one occasion I drove a 60 year-old client with awful medical problems to jail to serve his 90-day sentence, gave the intake sergeant a bunch of large paper bags with three months of the guy’s required medications in it, and a doctor’s report saying that missing a week of it might kill him. The sergeant told my client to sit in a room for thirty minutes and for me to wait. Thirty minutes later he told us to leave and that the records would show my client had served his time. This was in Merced County 25 years ago.

    There is just so much which can possibly be going on in sentencing that snap judgments based only on news reports are likely to be wrong.

  26. MarcH –

    You ask whether there are any circumstances under which I’d perform or condone torture. I haven’t blogged much about it, but I’ve thought about it, and I share my answer with a bunch of smart folks (who I’m too lazy to look up) – sure, torture away if you think it’s that critical. But it ought to be against the law, and you should do it knowing that you’re breaking the law and that if you don’t defuse the nuke in Times Square, you’ll go to jail.

    A.L.

  27. It is Alan Dershowitz that has been championing the torture warrant. His point was whatever it is we are doing should be under the pretext of law with some sort of accountability and oversite. The counterargument (which i agree with) is that we as Americans shouldnt be in the business of codifying something as antithetic to our values as torture. Pardons are built for such a situation, where we are willing to say that an act was criminal within our system but must be forgiven for the greater good.

    To answer the question of when should a ‘ticking timebomb scenario’ be invoked, again I think codifying the line is a mistake as well as ultimately pointless. Anywhere you draw the line will always have one more exception providing another gray area that the line can be redrawn. In my opinion, it just shouldnt be an issue. The situation has to be crystal clear, right out of 24. If there is any real question that it needs to be done, that is answer enough. Realistically, the pardon option is the only one in which people wont be wondering if what they are doing is going to be worth it. It will only be used when it is viscerally obvious that it is worth it, and damn the consequences regardless. If you try to codify this thing, people _will_ be consulting lawyers and such, which is precisely what we dont want.

    The bottom line is that torture (and i mean true bamboo under the fingernails torture) should simply never be a tolerable part of American society. It should be used only in the most extreme emergency imaginable, and then the president and the American people can decide whether a pardon is appropriate.

  28. AL — the problem in the General’s death was the Iraqi forces that brought him in. He was brought in so beaten he could not walk and had trouble breathing.

    At that point the Intel Officer should have called for medical treatment but did not. The General may have been so badly beaten by Iraqi forces that nothing could have saved him; autopsy was inconclusive but not calling for immediate medical treatment was a grievous error.

    [Incidentally, wounded terrorists are treated constantly by medics and doctors in Afghanistan and Iraq just as GIs]

    This raises another question: will the anti-War Left accept abuses and torture that are CERTAIN to occur when more and more operational control and responsibility is handed over to Iraqis? Probably not because they want two mutually exclusive things: no torture (Iraqis and other locals will ALWAYS use it) and the US disengaged from Iraq.

    Use of native forces in countries like Afghanistan and Iraq will ALWAYS result in torture, and the control by the US in many cases is nominal at best. You can have as a larger issue almost exclusive US military action and the resulting ability to prevent torture, but with lots of dependency for generations; or allow indigenous forces to operate without hand-holding and accept that yes, they will torture but US forces will be out relatively soon (within five years or so).

  29. I don’t remember all this “War is Hell, So What” stuff when US troops recovered Jessica Lynch, beaten and raped. And, hey, she was still alive.

    Armed Liberal should read these comments very carefully. It’s long past time for those supporters of the war who maintain elemental standards of decency to confront what the Bush/Cheney doctrine of “whatever we do is legal” does to the United States.

    Marc Cooper (h/t Kevin Drum) understands what happened here and lays it out, plain and simple.

    Let’s make sure we get this story right. You take the captured, uniformed general of an enemy army – and in blatant violation of all notions of human decency and of the Geneva Conventions— you beat him with rubber hoses, pour water down his nose, then stuff him into a sleeping bag, tie him with electrical cord, and then sit your ass down on his chest until he suffocates and you are convicted of what? “Negligent homicide?”
     
    Just what part of this deliberate torture-onto-death is negligent? And your punishment? A “reprimand,” a $6000 fine and house detention for eight weeks?
     
    [snip]Remember that the victim in this case, Iraqi General Abed Hamel Mowhoush was a top, uniformed officer of a recognized state-sponsored enemy army and not some “illegal combatant.” Worse, when Mowhoush was suffocated in November 2003, it was after he had voluntarily turned himself in to U.S. military authorities. At least, sort of voluntarily. Fact is, the General surrendered to American troops because they were holding his sons hostage – yet another stark violation of international law.

    No ticking bomb, no illegal combatant, no terrorist. Just an officer of the enemy army.

    We swung Japanese POW-camp commandants for this, remember?

  30. Andrew,

    Your comment (#31) highlighted this quote:

    “Remember that the victim in this case, Iraqi General Abed Hamel Mowhoush was a top, uniformed officer of a recognized state-sponsored enemy army and not some “illegal combatant.””

    The fact is that traditional combat operations in Iraq were long over by the time Mowhoush was captured. Mowhoush neither capitulated or surrendered after the Hussein regime CEASED TO EXIST. At that point he was no longer a “uniformed officer” for anything; but he was certainly a member of the terrorist insurgency. Those references to his supposed innocence and protection under Geneva ceased to exist when he switched the uniform of the Iraqi Army for the uniform of terror.

    At the time of his capture, the towns of Al Qaim and Husayba were a chaotic wild-west combat zone. Dozens of Iraqi civilian “collaborators” hung headless from light poles on a regular basis there; courtesy of honorable men like Mowhoush.

    I don’t condone “torture” (real bamboo shoots under the nails torture, to quote the guy above) but I don’t believe in coddling guys who are responsible for the absolute atrocities that were occurring DAILY in Al Qaim at the time. Can we expect our troops to view and treat the violent perpetrators with absolute compassion, while still maintaining enough pressure to break the will of a hardened, ideologically driven murderer?

    Do you think there is a switch that completely turns off the aggression needed to break down the door of a house and engage an armed enemy? Do you think an American warrior has a switch that turns off the horror of seeing innocent civilians swinging from a light pole? Do you think there is a switch that turns off the fear and the fog of war; an easy mechanism that stops the momentum of a mind that is committed to stopping the violence that confronts it? Disciplined soldiers can control themselves, and regularly do, but how long can a soldier see violence day after day without being affected?

    This issue is much more psychologically complex than we try to make it. It’s easier for donut-eating civilians to pass judgment in the relative safety of fantasy land, than it would be for them if they were plunked down in the middle of the hell called Al Qaim, Iraq. It’s all about perspective, and walking a mile in the other man’s shoes. I’m not trying to justify criminal activity; but merely to say that sometimes black and white is not so easy to see when you are walking in the gray, foggy world of violence and combat.

    He who is without sin, cast the first stone.

  31. Cro,

    Hmm. So we need to “win against Islam.” Does this war against Islam that we apparently need the will to fight include the several hundred thousand Iraqi and Afghan Muslims who are fighting alongside U.S. forces? Just curious.

  32. Tbone,

    I’ve already shown the man wasn’t captured but surrendered (after out illegal act of holding his children sure, but surrendered none the less).

    Why ignore that fact?

    And yet again, if the jury believed the CWO was just following orders at what point will we see the person who issued those orders on trial?

  33. Well, the excuses keep pouring in. Sorry, TBone, but Mowhoush was killed in cold blood, at a detention facility, not in the heat of a hasty arrest. Your argument would prove too much, if it were true: it excuses the treatment of Jessica Lynch, which I don’t think we would overlook if we knew the perpetrators. Indeed, it excuses the practices of the Nazi and Japanese treatment of captured generals, whose governments had also ceased to function. (The GC makes cleara, by the way, that officers of a defeated army are still entitled to its protection.)

    But go on, confabulate away.

  34. TBone –

    No, I don’t believe we’re built with a lightswitch to turn off ‘the red haze'; I believe that our troops are good enough and well-trained enough to refrain from turning into William Calley.

    I’ve done enough ridealongs with LEO’s, and seen them transition back-and-forth to know how hard it is.

    But there needs to be a line, and we need to keep our people on the right side of it. I just flat don’t see how this action is anything but on the wrong side.

    A.L.

  35. Note that the comments are rarely about the nominal topic – the sentence imposed on the accused. Instead they concentrate on the offense. This is because the sentence indicates that other factors were involved which might distract from their preferred activity.

    Had these posters wanted to discuss issues, as opposed to issuing ritual denunciations of the United States, they’d have delved in the sentence’s implications that the Court felt the accused was being used as a fall guy, and that it was one or more of his seniors who should have been prosecuted.

    But that’s too much reality. Lefties much prefer their fantasies to the hard work of finding ugly truths which might support their preconceptions.

    Thinking is hard. Emoting is easy. Their obvious preference between these shows the value of their posts.

    Dealing with abuses like this, and preventing further ones, is up to conservatives. The lefties have abdicated their responsibility as an opposition.

  36. Good point Tom (#39). The jury did not believe that the Chief Warrant Officer murdered the victim. They found he committed negligent homicide (with mitigating circumstances). Negligent homicide is not even a crime in some States.

    “Here”:http://www.danieldrezner.com/archives/002492.html is a case in which a women high on opiates and amphetamines passed a stopped school bus, killing a 9 year old child. She received 10 days in jail for the more serious crime of manslaughter.

    So do people here think the officer intended to kill the victim? Cause the sentence does not seem shocking for the crime convicted.

  37. #39)_the Court felt the accused was being used as a fall guy, and that it was one or more of his seniors who should have been prosecuted._

    Ok, I agree with you. Let’s prosecute his seniors. Wait? You mean that won’t happen? I’m shocked, just shocked that the people above him who either 1)ordered this to happened or 2) allowed this to happen under their watch will never be brought to trial.

  38. I wonder if Tom H. ever applied his “logic” here to, say, the light sentence given to Dan White when he killed SF Mayor George Moscone and (gay) Supervisor Harvey Milk? According to Tom, instead of viewing this (or the even more outrageous acquittal of OJ Simpson) as a miscarriage of justice, we should go back to find the court’s reasoning and modify the obvious reality accordingly. The obvious reality, in this case as in many others, is that we are minimizing the significance of mistreatment of prisoners, even unto fatal abuse.

    Tom will have to explain more slowly why the psuedo-justification that the defendant in this case was a fall guy for someone higher up who will walk is not a criticism of the United States. (Of course, we all know by now that the responsibility for mistreatment of prisoners goes as to people like Gen. Gitmo Miller, SecDef Rumsfeld, and the President and Vice President themselves, but it remains impolite to say so.)

    But OK, Tom, let’s just suppose my knee-jerk Bush Derangement Syndrome disqualifies me from the opposition. You’re a conservative. By your own description officers of the United States military were (are?) engaged in criminal abuse of POWs—make no mistake, the general of a defeated army is a POW—what are you planning to do about it?

    Let me guess. Babble on that only George Bush knows how to make this country safe. Safe for what? The war criminals?

  39. If you’re going to bring in the OJ Simpson case, then the bias of the Welshofer jury needs to be pointed out as well:

    bq. A defense witness then testified that he overheard the senior officer on Welshofer’s jury pool [Col. Saffold] say that *Fort Carson commander Maj. Gen. Robert Mixon was pleased none of the jurors had served in Iraq* and that *Iraq veterans on previous juries had been too lenient.* [And] in previous court-martials, *”The results were not as they should have been for good order and discipline.”* Short said he “immediately recognized it as unlawful command influence.” “I am suggesting the possibility that Col. Saffold is placing loyalty to Gen. Mixon over integrity,” Spinner told the judge.

    “Col. Saffold remained on the jury.”:http://www.denverpost.com/search/ci_3407891

  40. ‘Intent’ has too much emphasis placed on it in our system in general imo. And ‘results’ too little. Whatever this man intended, sitting on someones head, particularly someone you know to be injured, has some pretty obvious risks attached to it. And the resulting damage our nation and miltary have suffered was predictable even if it was probably inordinately huge compared to the simple act. Every single soldier, airman, marine, and sailor, officer and enlisted man in Iraq has been reminded up the wazoo that they are American ambassadors and that their actions have far reaching consequences for American policy, not to mention their own safety. The truth of the matter is that this little stunt will almost certainly cost American (not to mention Iraqi) lives. Whatever the _intention_ was, the _results_ are clear and grevious.

  41. #39 from Tom Holsinger on January 26, 2006 06:52 PM

    “Note that the comments are rarely about the nominal topic – the sentence imposed on the accused. Instead they concentrate on the offense. This is because the sentence indicates that other factors were involved which might distract from their preferred activity.

    Had these posters wanted to discuss issues, as opposed to issuing ritual denunciations of the United States, they’d have delved in the sentence’s implications that the Court felt the accused was being used as a fall guy, and that it was one or more of his seniors who should have been prosecuted.”

    With all respect, I think that’s a little tough. For a start, Armed Liberal did not open this thread to focus on the sentence imposed upon the convicted officer. Nor did he provide information that would enable us to second-guess the court or confirm for ourselves the rightness of its sentence.

    Rather he spoke to those like himself who would accept without argument that this fits an unfortunate and unethical pattern – which has been discussed a fair amount by Gregory Djerejian – and it does not sit well with the defence that the offenders are being promptly and adequately punished, therefore (transition away from the case to its implications for what we should do) those who supported and support the war have to take a clear(er) stand against this sort of thing. And some other action or recommendation or something should follow.

    I strongly agree. As both President George H.W. Bush and President George W. Bush said (regarding greater outrages): “This will not stand.”

    It mustn’t stand, because there are lines that should not be crossed. Again, I agree with Armed Liberal: “… there needs to be a line, and we need to keep our people on the right side of it.”

    Armed Liberal and I have profound differences on where what you might call the ultimate line of moral horror is – what sorts of things you can never do and be OK or have it not be that big of an issue. But before you get to that, you get to what might be called the line of really serious. This general situation of prisoner abuse (not just the sentencing in one case) is over that “really serious” line.

    In World War Two, in the European campaign after D-Day, there was a lot of discussion over another “own goal” problem: Allied planes bombing our own troops. When Zurich was bombed, men were charged with having “wrongfully and negligently caused bombs to be dropped in friendly territory.” (The defendants were tried by Jimmy Stewart, then Colonel James Stewart, and acquitted.) Regardless of that odd case, overall, I think the problem was that World War Two bombers dropping iron bombs from a great height simply weren’t accurate enough to do the jobs that planners assigned them. That kind of air-power, in the conditions prevailing at the time, was a very blunt instrument. The problem wasn’t that (again!) there was a short drop and somebody had to be blamed, the problem was that if you were serious about avoiding short drops the bombers couldn’t be there in the first place.

    Would that have meant giving up a great deal of military effect, and would it have meant practically killing a lot of good men who would run into Germans not killed by bombs that were not dropped for fear of short drops? Yes. Even so.

    Now: does the task we are assigning our forces correspond to their abilities? Can this Coalition army (excepting the Iraqis, who are A. Muslim and B. native forces and are outside what I am discussing) do what we suppose they can, regarding the correct treatment of large numbers of terrorist prisoners? Not according to several years of evidence, no.

    Would an alternative policy to minimise the taking of prisoners altogether (or to allow them only to be taken by Iraqis, with out guys having no part of that) mean practically killing a lot of good men through lack of information and stiffened hostile determination to fight? Yes. Even so.

  42. #39 – Tom H –

    Tom, the sentance is exactly the issue, as is what appears to be a pattern of (relatively) light sentances for a series of actions which are, in any case, hard to defend. And this isn’t just nonvet me saying it; go see what Uncle Jimbo “has to say”:http://www.blackfive.net/main/2006/01/torture_case_up.html over at Blackfive:

    My concern was the lack of any jail time and the common sense rejection of that by many good people. Looking at the case, we have a prisoner beaten (although not by us) , roughly interrogated (by us) and then dead. That screams for responsibility, and in this case the individual most responsible for the man’s life was the Chief. I have softened my view of his actions, but not my view that he should serve jail time for this.

    I’ll rest my case with that.

    A.L.

  43. David Blue,

    The trial in question reeks to experienced counsel. The accused was clearly being scapegoated, and the sentencing judge rightly picked up on it. It is obvious that this trial was used as a vehicle to protect the really guilty.

    If I were investigating this one, I’d start with this hypothesis:

    1) that the decedent had suffered fatal injuries during torture elsewhere by the real culprits,

    2) that the torturers knew they had gone too far,

    3) that the real culprits and/or their superiors had transferred the dying Iraqi general to the accused for interrogation, without revealing the extent of the general’s injuries

    4) that the accused was given instructions to treat the general roughly,

    5) and the purpose of (3) and (4) was that the general die during interrogation by the accused so he’d take the heat for doing what he was told, and

    6) that (5) would protect the really guilty – the torturers and their superiors.

    A.L.,

    Consider that you are too trusting and innocent for criminal work.

  44. Andrew, attempting now to imply some sort of homophobia to Tom?

    Huh? I’m afraid White and OJ were simply two notorious examples of perpetrators who didn’t get what they deserved. Your reading is absurd, and says a lot about you.

    Tom is trying to discover good reasons for the really light sentence—even the curious defense that senior officers who appear to be immune are most to blame—to avoid accepting the most obvious reason: we don’t care very much about conformance to legal standards for treatment of POWs, standards we thought were important enough to enforce with capital punishment when roles were reversed.

    It’s worth mentioning yet again: George Bush comes from the antinomian wing of American evangelism. Being George Bush means you can ignore the Vienna Convention, the Geneva Conventions, the ICAT, the law establishing FISA, and who knows what else. It isn’t really Article II that trumps all known American law, it’s personal salvation.

  45. Gosh, Tom, now I’m all a-twitter. Puh’leeze.

    OK, let’s go to this. The man is transferred to our custody in an unknown (but obviously not good) state; our guy proceeds to do a bunch of things to raise his stress level – at a minimum. At what point was he responsible for ascertaining the man’s condition? At the point that he walked in the door.

    My friends and training partners have worked custody at the Twin Towers here in LA. Do you really think I’m going to get arrythmia because some prisoner claims abuse? every prisoner claims abuse.

    But I do know what a reasonable standard of care on a base is – which is different than in the field, and different from Landsruhl or Culver City for that matter.

    Was this guy a scapegoat? Maybe. If so we have much deeper problems to talk about.

    My military – the one that wears the flag of my nation – needs to be composed of people who take responsbility for their prisoners. I’m not opposed to duress – although I’m unconvinced of it’s effectiveness, I’m willing to yield to those in the field on that. But those who use duresss have a responsibility7 for reasonable care, and I’m just effing befuddled how you can believe that was what took place.

    A.L.

  46. A.L.,

    No one in the accused’s unit was using “reasonable care” – they didn’t have the resources to do so, in particular the resources to check the condition of prisoners before interrogation, which IMO was known to the people who gave him instructions to use duress.

    My investigative instincts say the accused was set up.

  47. Re: #50 from Tom Holsinger,

    Thanks for spelling out your complete hypothesis.

    I have nothing useful to say about it, and the famous (in Australia) Lindy Chamberlain case taught me to be very reluctant to suppose that I know better than the jury (or the court martial in this case) without seeing all the evidence that the jury or the court did.

    My more general points stand.

  48. David Blue,

    My first boss at SEC Enforcement taught me to do investigations by holding up umpteen template scenarios to the known evidence and seeing which ones fit it closer than others.

    Also that familiarity with known patterns of fraud would help in looking for evidence which should be there but wasn’t known of yet.

    This technique is used in many different types of investigations and intelligence work. And I’m using it here.

    The evidence shown in the stories about this incident cause the pattern I see to leap out. There are other patterns – the next closest is negligence. But the Iraqi general was already dying or really severely injured when the accused got custody of him. Someone did that to him. The rest follows.

    Like I said, the lefties are so focused on ritual denunciations that they plain don’t recognize a fact situation which reinforces, rather than contradicting, their pre-conceptions. They’re operating on internal stimuli – external events are merely a vehicle for them to express their personal issues.

    They wouldn’t recognize real evil if it kissed them.

  49. In the death of two prisoners at Baghram, the charges against Captain Christopher M. Beiring were dropped.

    The reason, per the findings of Lt. Col. Thomas S. Berg were:

    Lt. Col. Thomas S. Berg, after conducting a hearing at Fort Bliss, Texas, recommended all charges be dropped against Capt. Christopher M. Beiring, who commanded the 377th Military Police Company.

    Col. Berg wrote, “I see no evidence … that Capt. Beiring failed to perform his duty to the best of his ability. As a newly classified MP, newly assigned to command MP guard company that was going off to war to do an ill-defined mission for which it was not designed for or even notionally trained, in a crud-hold like the [Bagram Collection Point] in 2002 with [military intelligence] calling the shots, Capt. Beiring was sorely challenged at every step.”

    Capt. Beiring contended that he had insufficient Army training to lead the reservists from the 377th Military Police Company.

    So it’s okay for an OFFICER to do dumb things.
    .
    .
    On the other hand, Graner at Abu Ghraib did dumb things (he obeyed MI LTC Jordan) and got ten (10) years in Leavenworth.
    .
    .
    There is a first hand report of Abu Ghraib at:
    .
    supportmpscapegoats.com
    .

  50. FWIW, I read the daily trial reports in the Denver Post and I thought that there was reasonable doubt that Welshofer killed the victim. “(Denver Post)”:http://search.denverpost.com/sp?aff=3&keywords=Welshofer+&searchButton=Search

    A pathologist testified that the victim had an enlarged heart and died of heart disease brought on by stress. The prosecutor’s expert testified that was possible. Not the most likely explanation IMO, but if we are not sure how he died, then we aren’t sure which actions caused his death. And there were a number of actors.

    When you have several people charged with a crime (or worse 28 in davebo’s example), each of them has the defense that someone else did it. The prosecutor in this case adopted a medical theory and then entered into immunity agreements with the other accused so that they could testify. Then the prosecutor argued that Welshofer was a “rogue interrogator.”

    The real problem appears to be that Welshofer had no training as an interrogator, but was told to interrogate using stress positions and sleeping bags. But he clearly did not know how to do those things safely, particularly given internal injuries that the victim had sustained from others.

  51. Efforts to explain away these charges are coming up short with me. The more evidence that is presented that this guy was in bad shape when we took custody, the more ludicrious is becomes that he was subjected to further abuse. These may be mitigating circumstances certainly, but you dont mitigate murder down to paying a fine just because the guy was real sick. If nothing else this was hideously bad judgement that have led to dreadful consequences. Now I wasnt there and questioning the guys on the ground isnt a great thing to do, but at some point there needs to be accountability. There are pragmatic victory oriented reasons for this. Every time an Iraqi dies and the US looks like we dont take it seriously is a defeat for us and a victory for our enemies. Honestly im less concerned with the ‘justice’ of this decision than the propaganda victory it hands the insurgents.

  52. Mark: the evidence that he was in bad shape came from autopsies. He had internal injuries. The victim was 270 pounds. There did not appear to be any evidence that Welshofer knew about the beatings and the prosecutor never claimed that Welshofer was involved in the beatings.

    And I don’t this guy is the key to the “hearts and minds” of ordinary Iraqis. He was a Baathist fat cat who was helping organize and fund the insurgency, and after he died the insurgency pretty much stopped in that area of the country. Not that he deserved to die and not that anyone wanted him to die, but I think there are better instances to make that case (like all the Iraqis killed because they didn’t understand what to do at the checkpoints).

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