Eugene Volokh has a thoughtful essay on whether the Abu Ghraib scandal will, or should, influence the Supreme Court as it wrestles with the question of the authority of the civilian courts over the military’s detention of captives.
He makes a tentative case against having the courts intervene in the cases of non-citizens captured abroad, on the basis of an institutional-competence analysis:
The Justices know and if civilian judges would be too active, they may interfere too much with military effectiveness, especially since they know that if they intervene in the cases of genuine abuse they’ll also be called to intervene in many times more cases of alleged abuse. And if they’re too passive (or even if they’re just active enough), they may actually deflect responsibility from traditional military investigations: They’ll make it too easy for the Executive to make excuses such as “Sorry, we can’t talk about it, there’s litigation going on.” Finally, remember just how painfully slow the civil justice process really is — much slower than the military review process (for all its flaws) has been.
So to the Justices, I think this will be a matter of comparative institutional effectiveness: The question wouldn’t be whether the military / executive / congressional / public pressure remedies are perfect or even very good, but rather whether the Justices think adding the civilian judicial remedies would make things better. I suspect the Justices would say, even (or perhaps especially) in a case like this one — or in the Guantanamo detentions, where the concern is chiefly detention of the wrong people rather than abuse of the detainees — that it’s better for the civilian courts to stay out. (My guess is also that even those Justices who endorse judicial control over the conditions of confinement in civilian prisons aren’t terribly thrilled by the way that control process works. While they wouldn’t abandon it, its track record isn’t going to make them excited about extending the process into a zone where it has never been applied.)
That seems to me a potent, though perhaps not a decisive, argument. But in setting it up, Eugene makes what I think are misjudgments (which I have highlighted in bold in the quotation below) of the facts of the case:
The government’s argument in these cases is that the proper remedy for the abuses is through the political branches, and the military that they control. The military makes its decisions. The Defense Department and ultimately the President can review them. Congress can step in, through its investigative power, its funding power, and its legislative power. All these officials will be accountable to the public. And foreign governments can also step in on behalf of their citizens (as I understand they have been doing with regard to at least some of the Guantanamo detainees).
This sort of supervisory process has in fact been the traditional means of preventing abuse and wrongful detention of enemy captives. The civilian courts, to my knowledge, have never gotten seriously involved in this process in the past. The government argues that they ought not get involved now.
In this respect, the recent prisoner abuse scandal, shocking as it may be, in considerable measure supports the government’s argument. The abuse was investigated by the military. The press got its hand on it. The Executive Branch seems to be willing to try to correct it, and the public and Congress seem to be pressuring the Executive to do so. Among other things, this is happening precisely because prisoner abuse is so broadly condemned, and seen as so unnecessary (at least in situations such as this one) to military success.
So the traditional review process seems to be working. It’s working far, far from perfectly, and certainly quite slowly. But I doubt that the Justices will think that it would have worked better had civilian courts gotten involved.
I think that analysis is way, way too sanguine about the origins of, and the military response to, Abu Ghraib.
The actions taken so far to deal with the problem have, I would say, been unimpressive.
* The general in charge of Guantanamo, who is also the general who earlier studied the problem missed the abuses entirely, and recommended that the guards be made subordinate to the interrogators to encourage “cooperation,” is now being put in charge of the prisons in Iraq.
* The general who wrote the critical report is being reassigned to a desk job at the Pentagon.
* The non-coms and privates in the reserve MP unit face courts-martial, and some of their superiors face reprimand.
* The colonel in charge of intelligence, the CIA people, and the contractors are still all on duty. An investigation into their conduct was started after the SecDef knew that the pictures were going to come out.
* The SecDef says he still hasn’t read the Taguba report.
* Apparently the President is upset mostly about not having been told that there were pictures, and that the pictures were going to be published.
Now that we know that prisoners were being shuffled around Abu Ghraib (and presumably elsewhere) and not logged in and out in order to keep them away from the ICRC, there’s absolutely no possibility that criminal responsibility ought to stop with the people now facing courts-martial.
And there’s good reason think that there have been widespread abuses elsewhere. The ICRC apparently told DoD that some time ago, apparently without effect. But in the absence of dirty pictures, the press is paying little attention, just as Powell and Armitage couldn’t get anyone to take the prisoner-treatment issue seriously when they raised it in White House meetings.
So this looks to me much more like a widespread pattern of abuse uncovered mostly by accident (one brave MP went outside channels to complain, and got his hands on the pictures) and which the military responded to with laxity until the PR sh*t storm, than it does like “the system working.”
In particular, neither Myers nor Rumsfeld had what seems to me the mimimal decent response to finding out that this stuff was going on: (1) demand to know who was in the chain of command (a question Rumsfeld couldn’t answer yesterday) and issue orders down that chain to cut the crap; (2) order someone (say, the Army IG) to review prisoner conditions in all the prisons in Iraq (and probably Afghanistan).
I think the lesson here is simple: When some human beings are given uncontrolled power over other human beings, especially if those over whom control is exercised are thought of as enemies, horrible things are likely to happen. And it’s transparent that the military has not organized its interrogation process to keep that from coming about. Instead, the goal has been to give the interrogators as much power as possible over the prisoners, to encourage the prisoners to “break.”
I agree that getting the civilian courts involved has problems. (And I’m sympathetic to the claim that they lack jurisdiction.) But I don’t think the argument that problems in U.S. civilian prisions prove that court intervention doesn’t work.
Conditions in some U.S. prisons, especially state prisons and local jails, are intolerably bad, thanks in part to the statutes and court decisions making prisoner-abuse cases harder to bring. Nor are juries always sympathetic, even in egregious cases; California prison guards who encouraged one prisoner to rape another were acquitted.
But it’s simply not the case that anything like the Abu Ghraib horrors could go on in a contemporary domestic prison, where the prisoners have access to lawyers and visitors and are allowed to send letters out, and where the courts can and do intervene in especially egregious cases.
If we’re going to leave it to the military, keeping the courts out of it, and if we really don’t want some of the prisoners tortured, then there needs to be an agency with the power to find out what’s going on and make it stop. That would have to be an inspectorate not reporting to the same people who run the prisons and the interrogations, and whose inspectors have absolute authority to show up unannounced anywhere in the system and demand to go anywhere, see any document, interview any prisoner, soldier, or civilian employee off-premises, and promise interviewees who offer credible information about abuses that they will not be returned to the prison where the abuse took place.
But that ain’t gonna happen. And since it ain’t gonna happen, Justice Breyer, for example, is going to have to face that fact that if he follows his instinct to let the Executive Branch execute he’s voting for torture. Whether that should influence his vote, and whether it will, are two different questions to which I don’t know the answers.
I’m not surpised that the usual suspects — the people who think that the war was a masterstroke, that Bush is a hero, and that anyone who criticizes him should be assumed to be doing so out of bad, if not actually disloyal motives — are clinging to the “few bad apples” theory of what happened at Abu Ghraib, despite its transparent falsity. (It wasn’t an E-6 who gave the order that proper records not be kept of who the prisoners were or where they were.)
But it would be very bad for the country if the grown-ups on the pro-war side — people like Eugene Volokh — allowed themselves to be taken in. We’ve known for a couple of years now that our interrogators were being allowed to use “aggressive measures.” Once that’s the case, the Abu Ghraib crimes (if not the scandals) were really only a matter of time. The only actually surprising thing about what happened at Abu Ghraib is that the press got its hands on the pictures.