JURIST Guest Columnists Victor Hansen and Lawrence Friedman of New England School of Law say that revelations by now-retired Major General Antonio Taguba in a recent New Yorker interview raise some very troubling issues suggesting that the US military and civilian leaderships have learned nothing from the Abu Ghraib scandal….

In a recent interview in the New Yorker, Major General (Retired) Antonio Taguba talks about the investigation he led into the reports of detainee abuse at Abu Ghraib prison. General Taguba was ordered to conduct an investigation into the abuse by the then commander in Iraq, Lieutenant General Sanchez, after General Sanchez became aware of the allegations of widespread detainee abuse at the prison. In the interview, General Taguba makes a number of very serious and troubling claims about the limits of the investigation and about the failure of any investigation to date to fully examine the role of the senior military and civilian leadership’s knowledge of and involvement in creating the conditions that led to the detainee abuse.

Particularly troubling is General Taguba’s revelations that he was given very specific limits as to what he was authorized to investigate, and that he was specifically prevented from investigating the conduct and involvement of higher military and civilian authorities outside of the Military Police Brigade responsible for security at the prison. General Taguba suspected that the military intelligence interrogators at the prison were in some instances operating outside of the established chain of command in Iraq and were in fact being guided on the conduct of aggressive interrogations from other sources, perhaps from within Secretary Donald Rumsfeld’s office.

General Taguba’s investigation was not the only official investigation into the causes of the detainee abuse at Abu Ghraib and other locations, and other investigations have looked beyond the conduct of the soldiers in the Military Police Brigade at Abu Ghraib. Nevertheless, General Taguba’s revelations raise some very troubling issues that, if they are not resolved, mean that the military and civilian leadership have learned nothing from the Abu Ghraib scandal.

First and foremost, General Taguba’s statements show that it is not too late in the day for Congress to order and conduct an independent investigation into the causes of the detainee abuse. All of the investigations to date have been conducted under the authority of the Department of Defense. When allegations are raised that the policies and directives of the Secretary of Defense and other senior civilian and military officials within the Department may have contributed to the detainee abuse, an outside investigation is the only way to ensure a complete and accurate assessment.

General Taguba’s revelations also point to the inability of the military, and in this case the Army, to apply any standard of command responsibility to senior leaders. To date, only the lower ranking enlisted soldiers have faced courts-martial proceedings for their conduct at Abu Ghraib. While the Abu Ghraib scandal has quietly ended the careers of a number of senior military officers, ironically including General Taguba’s for his truthful reporting, there has yet to be a full accounting. As General Taguba points out, even today there are senior civilian and military leaders that bear some responsibility and who should be held accountable. One primary reason for the failure to hold the military leadership accountable is that the Uniform Code of Military Justice provides no legal standard of command responsibility by which the conduct of senior military commanders can be accurately and fairly evaluated. It is long past time to adopt such a standard.

Importantly, the events surrounding the abuses at Abu Ghraib reflect more than a failure of military command responsibility—they also reflect a failure of Congress to exercise its constitutional authority to prevent such incidents. The evidence seems clear that the civilian leaders at Defense knew more about the abuses than they were willing to admit, and Congress refused to press the matter. But it should not have got to that point to begin with. While the President has undeniable authority to exercise authority in making battlefield decisions, as a constitutional matter, Congress controls the President's ability to commit the nation to war and controls the means by which wars are fought through regulation of the armed forces and the appropriations power.

Indeed, the Constitution expressly authorizes the Congress, among other things, to “provide for the common Defense,” U.S. Const., Art. I, § 8, cl. 1; to raise and support armies, see id. § 8, cl. 12, and to “make rules for the government and regulation of the land and naval forces,” see id. § 8, cl. 14. The President, on the other hand, has the authority to see “that the Laws [are] faithfully executed,” Art. II, § 3, and to serve as the Commander-in-Chief, see id. § 2, cl. 2. These textual commitments of authority and responsibility demonstrate that the President does not have exclusive authority over matters related to foreign affairs and national security, particularly not regulation of the country’s armed forces and the direction of such forces when they are not engaged in traditional military operations.

Regardless of the deference Congress has shown Presidents in times of war, it would not be unconstitutional for Congress to condition military spending with the requirement that the President regularly report to Congress on the military’s intelligence-gathering techniques and efforts. The President has elected to use the military for intelligence-gathering off the battlefield, but that does not mean those activities can or should escape Congressional oversight. This form of accountability would not impede the President's ability to defend the nation in times of crisis, and it would ensure that the civilian leaders who control our armed forces comply with the laws of war and whatever domestic regulations Congress deems appropriate, like a prohibition on the use of torture.

In respect to Abu Ghraib, the failure of command responsibility did not end with the members of the military who made questionable choices when it came to intelligence-gathering tactics. Rather, that failure extended all the way to the President who, through his executive officers, allowed such tactics to be used, and the Congress that refused to exercise its power to ensure that the United States, in fighting the war on terror and the war in Iraq, would do so effectively. As we have seen the respect for the nation’s efforts in the war on terror diminish in correlation with the revelations of Abu Ghraib, for the United States to be effective, Congress must ensure that the military operates as consistently as possible, in the words of General Taguba, with the laws of war, the Geneva conventions, the core of military values, and the system of accountability established by the Constitution. Congress, in short, must ensure that the United States no less than those it holds in contempt respects the rule of law.

Victor Hansen was a lieutenant colonel in the United States Army JAG Corps and currently teaches courses in criminal law at New England School of La
w, where Lawrence Friedman teaches courses in constitutional law.
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