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The Jordan Abu Ghraib Verdict: Command Responsibility in the UCMJ

JURIST Guest Columnist Victor Hansen of New England School of Law says that the recent acquittal of Lieutenant Colonel Stephen Jordan of Abu Ghraib abuse charges reflects a structural failure to adequately incorporate the principle of command responsibility into the US Uniform Code of Military Justice...


The acquittal of Lieutenant Colonel Stephen Jordan on charges relating to the abuse of detainees at Abu Ghraib prison is being roundly criticized as a failure by the military to hold senior officials accountable in the detainee abuse scandal. Much of this criticism focuses on a perceived lack of will to hold senior military and civilian officials accountable for their role in the detainee abuse. There is little doubt that the Bush Administration is not keen to affix responsibility on military and civilian leaders within the Department of Defense for carrying out aggressive interrogation techniques which the Administration itself developed.

There is, however, another reason why the case against Lieutenant Colonel Jordan ultimately failed and why the military has been unable to hold more senior military leaders accountable. The reason is quite simply that under the Uniform Code of Military Justice (UCMJ) there is no adequate mechanism to hold commanders and supervisors criminally accountable for the law of war violations committed by forces under their command. To be sure, if a commander ordered, directed, participated in, or otherwise facilitated the detainee abuse at Abu Ghraib, there are adequate provisions under the UCMJ to affix criminal liability. The fact is, however, that there is simply not sufficient evidence to show that commanders and senior officers engaged in this kind of criminal conduct, hence, the acquittal of Lieutenant Colonel Jordan on these charges.

The more important question is what type of criminal responsibility attaches to a commander who has a duty to control the forces under his command and fails in that duty? What of the Commander for example who does not know, but under the circumstances should have known about detainee abuse? The criminal law concepts of accomplice liability, conspiracy, and the like do not get at these cases, because there is no evidence of shared intent between the commander and the offending forces.

At least since the end of WWII, the law has recognized that gap and filled the breach by creating the doctrine of command responsibility. Under this doctrine, liability can be imposed on a commander for the law of war violations committed by his forces, if the commander failed in his duty to prevent, suppress or punish war crimes. The United States was one of the strongest proponents of this doctrine in international law and the doctrine was used successfully in a number of war crimes prosecutions at the conclusion of WWII. Since that time, the doctrine has gained the status of customary international law and has been codified in a number of international treaties and statutes. Interestingly, the doctrine was also codified by the United States in the recently passed Military Commissions Act.

Inexplicably, the doctrine has escaped codification under the UCMJ. The consequences of the failure to incorporate this doctrine could not be more obvious. For all intents and purposes, the military prosecutions arising out of Abu Ghraib are over. The only people successfully court-martialed for their role in the abuse were eleven enlisted soldiers. Lieutenant Colonel Jordan was the only officer to face court-martial charges for his involvement in abuse and he was acquitted. This acquittal came not because a panel of senior officers was unwilling to hold a fellow officer accountable for his conduct. The acquittal came because the military lacks the legal tools necessary to bring someone in Lieutenant Colonel Jordan’s situation to account for his failings.

It is long past time for Congress to amend the UCMJ and fully incorporate the doctrine of command responsibility. Incorporation of this doctrine will serve a number of important ends. It will create a clear standard by which to evaluate the conduct of military commanders, as well as give strong legal incentives to commanders to ensure that their forces are obeying the law of war, particularly when those forces are involved in high risk activities, like detainee operations. The doctrine will also create equity in the criminal justice system so that enlisted solders are not the only ones called to account for their failings. And most importantly, it will recognize that the authority of command carries with it an equally important responsibility. Many times it is the military commander alone who can prevent forces under his command from committing war crimes.


Victor Hansen was a lieutenant colonel in the United States Army JAG Corps and currently teaches at New England School of Law

September 01, 2007


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Comments:

It was an undisputed fact at trial that Lt. Col. Jordan was not a commander at Abu Ghraib. Certainly not in the legal sense of the word under military law as he had no authority to take disiplinary action against any soldier. He did not even rate (evaluate) any soldier at Abu Ghraib. Lt. Col. (Ret) Hansen's call for expanded command responsiblity may have some merit, but it is wholly inapplicable to the facts of the Jordan trial.

September 02, 2007  

Certainly the definition of commander can include both de jure and de facto commanders as it did in WWII and in other contexts. Depending on a number of factors, there is the possibility that someone like LTC Jordan could fit the definition of a commander.

September 03, 2007  

What of the offense of dereliction of duty? (10 U.S.C 892) Janis Karpinski was punished by reprimand for that offense. The Manual on Court Martials (Art. 92) caps the penalty at three months at 2/3 pay and three months imprisonment for negligent dereliction; for wilful dereliction, "[b]ad-conduct discharge, forfeiture of  all pay and allowances, and confinement for 6 months." Granted these are relatively and even woefully lax penalties compared to what has historically been meted out in instances of command responsibility, or even compared to what dereliction has sometimes resulted in. Also, command responsibility is a theory of liability and not a criminal offense. It seems to me, though, that neither shortcoming means that "dereliction of duty" can't be applied to punish cases of command responsibility. We just need to stiffen the penalty so that it fits the nastier and especially the nastiest cases.

Ewen Allison

September 03, 2007  

I think that there are other aspects of the current formulation of Article 92 which make it problematic beyond just light maximum punishments. Specifically, as the mens rea for dereliction has been applied by the courts, it is doubtful that dereliction could be effectively used in the context of command responsibility. And while command responsibility is a theory of liability, it certainly can and should be codified just as the criminal theories of conspiracy and accomplice liability have been codified under the UCMJ.

September 03, 2007  

Lt. Col. Jordan was court-martialed for disobeying an order by talking about the investigation. Isn't that message basically one to "shut up or else" meaning it is not the crime at that level but it is the cover-up?

In addition, if one is aware of command responsibility doctrine but one would want to get something done, it would seem that the logical approach would be to determine a chain of command and then have people outside the chain of command induce the lower level persons to do things. These could be uniformed staff or even non-uniformed from Other Government Agencies or military contractors given lots of informal authority who disappear when the heat comes. In that setting, Lt. Col Jordan is the "virgin" so to speak while all kinds of conspiracies operate indirectly around him. Of course, in that setting, Lt. Col. Jordan can do a Schultz (I see nothink! I see nothink!). He just should not talk.

Isn't that the more realistic vision of the dynamic that we are trying to capture? Based on Taguba's recent comments it sure sounds more probable like that.

Best,
Ben

September 05, 2007  


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