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August 31, 2007

Law Lesson: Command Responsibility

Part of a Continuing Series: The national debate about the War on Terror has led to intense discussion of laws both international and domestic. In my other Law Lessons posts I’ve focused on international law because I believe conservatives too often assume that it is an obstacle to their goals. Leftists and lazy journalists like to rely on ignorance or distaste for international law to get away with shady arguments.

However, law that is wholly domestic is just as contentious as its international variation. Let’s face it, Americans love to argue about the law. So I am expanding my Law Lessons series to include issues of domestic law that have been the subject of debate during the last few years.

It’s been a few weeks since you’ve been bothered at either the coffeepot or the watercooler. Then some coworkers hear the news…

Current Event That Prompts Discussion: The court martial of Army Lt. Col. Steven L. Jordan, former director of the “Joint Interrogation Debriefing Center” at Abu Ghraib, ends with Jordan acquitted of: (1) cruelty and maltreatment for subjecting detainees to forced nudity and intimidation by dogs; (2) dereliction of a duty to properly train and supervise soldiers in humane interrogation rules; and (3) failing to obey a lawful general order by ordering dogs used for interrogations without higher approval. He was convicted only of disobeying an order not to discuss the military’s investigation into the Abu Ghraib matter. His punishment is a reprimand.

Leftist Commentary #1: This is a shameful example of the military protecting one of their own. We saw the pictures. We know that Jordan was the director of interrogation. He shouldn’t be getting off for this.

Your Answer: Lieutenant Colonel Jordan was never linked with any specific instance of abuse. He was never in the pictures and no witness has come forward and stated that he participated. So the only way to get to Jordan is under the doctrine of command responsibility.

The doctrine of command responsibility embodies the idea that military commanders can be held responsible for the actions of the soldiers they command. It was used after World War II to convict high level Nazis for various war crimes across Europe and in the Hostage Case.

Its most famous use was against Tomoyuki “Tiger of Malaya” Yamashita, the Japanese general who commanded forces in the Philippines at the end of the war. During that time, the Japanese military killed over 8,000 civilians in a two week period; many were raped, thousands were tortured. General McArthur wanted to hold someone accountable for those war crimes; the doctrine of command responsibility was his method. After trial by military commission, Yamashita was sentenced to death by hanging. The procedures of his military commission were later upheld by the Supreme Court.

The modern U.S. conception of the doctrine is found in Army Field Manual 27-10: 501. The first part of 501 provides:

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. thereof.

The key, here, is that the doctrine applies only against someone who had subordinate soldiers or who had others subject to their control. Jordan’s defense was that he did not have command authority or control over the soldiers who abused combatant-detainees. Jordan was outside the chain of command of the military intelligence soldiers who conducted interrogations and of the military police who guarded the facility. The jury (one brigadier general and nine colonels) agreed with Jordan.

Leftist Commentary #2: So why wasn’t President Bush or Dick Cheney or Rumsfeld ever held responsible for the abuse. You can’t claim that they didn’t have command authority over the prison or the soldiers in it.

Your Answer: First, right off the bat you need to take the Vice President off your list. His connection to the chain of command is only through the National Security Council, on which he sits with the president, and the secretaries of state and defense. He can only give orders to the military through that body and with its consent. I know it's an article of faith on the Left that Cheney is the Root of All Evil, but you will just have to control yourselves.

Second, regarding Bush and Rumsfeld, the doctrine of command responsibility has a very specific test. It states:

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.

Command responsibility only applies where the commander gave the order to his subordinates to commit war crimes or where he failed to take steps to prevent or punish war crimes that he knew or should have known about. Neither Bush nor Rumsfeld can be said to have given the order to abuse combatant-detainees at Abu Ghraib. (Although Lefties have frequently complained that Bush has fostered a culture of abuse, it would take some actual order to implicate this part of the command responsibility doctrine.)

The second part of the doctrine links the commander to the crimes only if he knew or should have known that war crimes were occurring and did not act to prevent them or punish the perpetrators. The very fact of Jordan’s court-martial, the last of twelve about the Abu Ghraib incident, should put that contention to rest. The modern U.S. military has ably sought to prevent and punish war crimes.

So neither the President nor the former Secretary of Defense can be held responsible for the crimes at Abu Ghraib.

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posted by Gabriel Malor at 12:51 AM

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