QandO

May 16, 2004

Copper Green
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I'm not sure what to make of the Seymour Hersh article that appeared on the New Yorker web site yesterday. Hersh alleges that the prison abuse at Abu Ghraib is the direct result of a secret Pentagon program, called by various names, including Copper Green. According to Hersh, a prime characteristic of this program was to use psychological pressure on prisoners in order to obtain information from them. As a result, this program's excessive vulnerability to abuse led directly to the prison abuse scandals.

The roots of the Abu Ghraib prison scandal lie not in the criminal inclinations of a few Army reservists but in a decision, approved last year by Secretary of Defense Donald Rumsfeld, to expand a highly secret operation, which had been focussed on the hunt for Al Qaeda, to the interrogation of prisoners in Iraq. Rumsfeld’s decision embittered the American intelligence community, damaged the effectiveness of élite combat units, and hurt America’s prospects in the war on terror.

According to interviews with several past and present American intelligence officials, the Pentagon’s operation, known inside the intelligence community by several code words, including Copper Green, encouraged physical coercion and sexual humiliation of Iraqi prisoners in an effort to generate more intelligence about the growing insurgency in Iraq. A senior C.I.A. official, in confirming the details of this account last week, said that the operation stemmed from Rumsfeld’s long-standing desire to wrest control of America’s clandestine and paramilitary operations from the C.I.A.

I'm not entirely sure what to make of the allegations, mainly because I'm not possessed of a high degree of belief in Hersh's reliability. And, I have a problem with the way Hersh reports it. he quotes "an unnamed CIA official" here, or a "a former high-level intelligence figure" there, but provides no names. I'm always skeptical of reports based entirely on anonymous sources. Moreover, I remember Hersh's assessment of the original combat phase of the war, when, by day 8, he wrote an assessment that the war was falling apart, and that our battle plan was deeply flawed. A week later, the Iraqi regime had been destroyed. So, Hersh is not a stranger to R.W. Apple territory, if you know what I mean.

But, let us start by saying that the torture of abuse of prisoners is always wrong. If this Abu Ghraib deal is a direct result of Copper Green, assuming it exists, then Rumsfeld will have to go. Indeed, if this was the British government, he'd already be gone. In the British system, ministers traditionally resign almost any time a major scandal occurs in their department. The American system is different. We can't force people out of office unless we find a smoking gun that points directly at their personal culpability. If we can connect the dots between Copper Green and Abu Ghraib, that should force a Rumsfeld resignation.

It is also quite possible that a secret program very much like Copper Green does exist, but that it has nothing whatsoever to do with what happened at Abu Ghraib. In fact, I would not be very much surprised if this turned out to indeed, be the case.

It is important to point out that Copper Green, as I understand Hersh's article, was not a program of physical torture or abuse. It was a program of psychological pressure. It may have stepped right up to the bright line of physical abuse, but it appears not to have been intended to step over it. That's an important point to remember. I have a lot fewer problems with forcing a prisoner to listen to Blue Oyster Cult's "I'm Burnin' for You" played at loud volume all night than I'd have with the bastinado or the rack.

And it may be a very long stretch to connect the dots between a program of psychological pressure on certain prisoners, and the kind of generalized physical and mental abuse heaped on the Abu Ghraib prisoners generally.

But, prepare yourself. I am about to make an argument that many of you will find highly inflammatory, and inconsistent besides.

One of the primary principles of the Law of Armed Conflict (LOAC) is that prisoners are not to be abused or tortured, or otherwise subject to punitive measures, except in cases where the prisoner has committed a serious crime. For instance, if a POW kills a military guard during the course of an escape, this is not a punishable offense. The prisoner and his guard are soldiers, and the death of the guard during an escape is an incident of war, and not a crime. By the same token, a prisoner may be shot trying to escape, and the guard has committed no crime in shooting him in that circumstance.

On the other hand, a prisoner that escapes, breaks into the home of a non-combatant, and kills him in order to steal his money has committed a crime, and may be punished for it. Non-combatants are out of bounds.

Still, the general rule is that abusing POWs for any reason is a war crime. And I can immediately think of several circumstances where I would commit such a war crime without blinking an eye.

When I was on active duty in Europe, we lived with the daily possibility that the Russians would come pouring across the Fulda Gap at any time.

Now, imagine that, when this happens, you are a young lieutenant, trapped behind Russian lines with your platoon. You are fortunate enough to have captured a Russian major, who knows more or less where Russian troops are advancing, and who may be able to provide you with information that will get you and your command through the Russian lines to relative safety.

If you remain where you are, your troops will be discovered, and your command will be killed or captured. The Russian officer, however, refuses to divulge any information. So, the question then becomes whether you sacrifice your command, and let the 30 men in it be killed, or you tape the wires from your field phone to the Russian's genitals and give it a few good cranks to see whether he becomes more forthcoming.

And, once you have obtained the information, what do you then do to the Russian officer? Do you try to take him with you, as you are legally obligated to do, and take the chance that he will give your position away to a roving patrol? Or do you just shoot him in the back of the head and move off to E&E back to your own lines?

Or imagine you are a Staff Sergeant, leading a small 8-man recon patrol behind enemy lines, you come across an enemy patrol in the darkness, and after a brief action, 5 enemy soldiers surrender. You have no facilities for taking prisoners, nor can you secure them in such a way as to keep the existence of your patrol a secret. What do you do?

Personally, I would do whatever was necessary to secure the lives of the men under my command, even knowing that I might be imprisoned or executed for War Crimes. In the balance between the life of one foreign officer and the lives of the men in my platoon, the lives of my men will always take precedence.

I might have to pay a stiff price for that decision later, but I can't imagine making any other choice. The lives of my men are my primary charge, and the life of an enemy officer is secondary.

In the context of the war on terror, a program like Copper Green makes sense. If we can prevent another 9/11 by pressuring an al-Qaida operative for information, then I would say that the ends justify the means. But, at the same time, officials responsible for applying such pressure may have to pay the price, in terms of criminal action, if they are found out. If that pressure goes beyond psychological pressure into physical abuse, that price might be very steep.

In other words, I guess I want to have it both ways. I'm not happy about it, but there it is. I put it to you, what would you find easier to stomach: torturing a prisoner to find information that prevents another 9/11 attack, or doing nothing, and allowing thousands of your fellow citizens to be killed?

War is a nasty, brutish business, and it's best to engage in it as little as possible. The whole reason for the LOAC is to prevent, to the extent possible, abuses against enemy soldiers and civil populations. And it's a very fine thing, too. You can't really weaken LOAC without putting your own soldiers at risk.

At the same time, there is the "law of necessity", which occasionally has to be weighed against the LOAC. I do not know how to reconcile the tension between those two wartime realities. Nor do I know how to create a legal framework that defines special circumstances when the LOAC may be abrogated.

My suspicion is that such abrogation will always have to be extra-legal, and those who choose to violate the LOAC will have to do so with the knowledge that a war crimes tribunal may eventually be required to pass judgment on their actions. At most, I suspect that a defense of "necessity" will be a mitigating factor in sentencing, rather than a true defense against prosecution.

So, if you want to make the argument that a program like Copper Green is necessary, I'm certainly willing to listen to your arguments. But, in return, you have to be willing to face a war crimes tribunal if, under the auspices of such a program, you get caught violating the LOAC. I may understand that necessity may occasionally require it, but you have to understand that the rule of law requires that you be held accountable for your actions if you get caught.

Of course, there is a difference between a frightened 24 year-old lieutenant deciding on the spur of the moment to make a field phone call to an enemy officer's genitals, and in having a secret, official program that explicitly authorizes prisoner abuse. Such a program would have to be strictly limited to certain special classes of prisoners, and certain limited situations, lest it become an excuse for generalized brutality under the stress of the battlefield. And with such a program, there's always the danger that the excuse of necessity can be stretched out of all reasonable interpretation, and the program can become rife with abuse.

But don't fool yourself; every nation has a similar wartime policy that authorizes pressure, either psychological or physical, against certain enemy prisoners. If you think, for example, that Winston Churchill greeted Rudolph Hess with tea and crumpets in 1940, you're very much mistaken.

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