Ben Davis [University of Toledo College of Law]: "There's an old adage in the military that goes "different spanks for different ranks" (see James W. Smith III, "A Few Good Scapegoats: The Abu Ghraib Courts-Martial and the Failure of the Military Justice System", 27 Whittier Law Review 671, 677, 693 (2006)): persons at lower levels in the military receive more severe punishment then those at higher levels.
The classic case of this is the Abu Ghraib scandal in which no general or high level civilian authority was court-martialed and Brigadier General Karpinski was given nonjudicial punishment that was specifically said to not relate to the prisoner abuse.
Army Reserve Specialist Charles Graner, Staff Sgt. Ivan Frederick II, Spc. Jeremy Sivits, Spc. Megan Ambuhl, and Army Reserve Pfc Lynndie England were all court-martialed. They should all be seeking review and a Presidential pardon if the compromise detainee bill is made law.
Under the compromise detainee bill, nothing in any of those infamous Abu Ghraib pictures that shocked the world would be prohibited. The basic rule of the compromise detainee bill is "don't kill or rape them". With the assistance of creative Office of Legal Counsel lawyers that brought us this bill we can expect definitions of "severe" and "serious" and "cruel, inhuman and degrading" to allow the dogs and everything else.
As part of the Program, we can expect the President (in the role of the sole arbiter of Geneva Conventions compliance as foreseen in the bill) to feel comfortable that no technique short of death or rape "shocks the conscience" (the implicit residual standard).
The offenders at Abu Ghraib were held to a different standard - the Uniform Code of Military Justice which embodies the Geneva Conventions.
If they did what they were asked to do and Congress now says that we can continue the Program (which appears much worse then what the Abu Ghraib offenders did) then it seems extremely unfair for the Abu Ghraib offenders to be languishing in prison if this is the legislation.
At a minimum, the President should pardon all of them so that we do not appear to be hypocritical. After all, it has been made clear that the torture that has been going on will be allowed to continue as part of "the Program." It is patently clear that our domestic law as proposed by this compromise and as expected to be practiced will be in breach of the United States obligations under Common Article 3.
Now, if, as we all felt, there remains some revulsion about the Abu Ghraib pictures then it seems to me that whether those acts are done by soldiers or intelligence persons we should object - they are torture no matter what the euphemisms proposed and are "outrages against human dignity". And to make that objection clear we should reject this detainee bill compromise. That is, if we still have consciences that can be shocked.
This does not mean we have any sympathy for the detainees like Khalid Sheik Muhammad. But, what disturbs me is that the manner in which this bill is going forward reminds me of how lynch mobs work - they would torture the person before they burned him. A structure is being put in place that embraces the kind of unlawful command influence that caused dysfunctional proceedings in World War II. We had a Vanderbilt Commission which examined those proceedings and that work led to the kinds of adjustments to military law and military commission law embodied in the Uniform Code of Military Justice.
A further concern is that the lesson of this is to (1) select lawyers to make fanciful interpretations of the law, (2) as President sign off on orders that are made pursuant to those fanciful interpretations, (3) have members of the military and intelligence community compromise themselves by working under those fanciful interpretations, (4) when it all explodes, prosecute a few of the low level military under tough UCMJ standards and one civilian contractor (Passarro), (5) for the core employees press Congress to amend the law for "clarity" to protect them (6) and then push Congress to "not look weak" by enshrining in law the procedures based on the original fanciful interpretations.
Please note, in the context of international law, this type of process is precisely why the rule has developed that a state can not avail itself of its internal law to extract itself from its international obligations. Thus, those amateurs of U.S. foreign relations law who may succeed through this compromise in immunizing themselves from domestic court proceedings (and the language as presented does not prevent federal conspiracy or state charges) will not have absolved themselves of individual responsibility as a matter of international criminal law.
Clearly, these actors in the Executive and Legislative are willing to take that risk.
One possible glimmer is whether Congress delegation of authority to the President here will be considered too broad. But that would require a challenge in the courts, and that will take some time. In the meantime, the Program would continue.
So reject this compromise or be consistent with the compromise language and pardon the Abu Ghraib offenders. In other words, demonstrate what we think America stands for. After all, now we have the pictures. I hope we would reject the compromise - that's what America is to me."