- The Washington Times - Saturday, May 15, 2004

The person we have in custody is the person who planted nuclear or biological devices in New York City, and he won’t tell us where they are or when they will go off.

We have this person in custody outside the United States and he is not a “U.S. Person.”

In this circumstance, the basic “rules” that govern what we can do to extract information from this person are found in the unclassified 1981 Executive Order No. 12333, “United States Intelligence Activities”: While we are prohibited from conducting “medical experiments” on this person, the reality is we can consider nearly anything else so long as we get the appropriate level of approval to do it.

And, “appropriate level” in this case might be at the highest levels of elected government, perhaps with appropriate congressional notification or consultation.

What could this “authorize” and what other limitations would apply? Could you, for example, drug the person, humiliate him, threaten him, lie to him, construct various and elaborate ruses to convince him if he didn’t tell you where the devices were, you would torture or kill him or torture or kill others?

The answer is you could probably do all these things to find the devices — and, if approved, it would be both “legal” and morally justifiable under the circumstances.

But what happened in Iraq seems substantially different than that:

• Some of those in custody may be prisoners of war, hence subject to the custodial legal regime established by the Geneva Conventions — there are clear violations of international law in this situation.

• Treatment of the persons in custody by the Army was probably governed by regulations established by the Combatant or Component Service Commander or the Army — there would seem to be clear violations of military law.

What is clearly evident is some incredibly stupid behavior by a few incredibly ignorant people.

This is, as is popular to say these days, a “training and equipping” issue — read Army — and if any high-level official is to be fired, it should be in the Army, working up from the soldiers in the pictures or others who engaged in this behavior.

In sum, what we have here, is a failure — perhaps a massive failure — of Army training and leadership.

But, illustrated by the nuclear device hypothetical, the answer that has been around since 1981 is also correct. And we shouldn’t lose sight of it in the political and media hyperbola surrounding the activities of a few very stupid and poorly supervised soldiers.

In a future and very dangerous situation, we might well need to consider and authorize some otherwise very unpleasant measures to prevent thousands or hundreds of thousands of us from being blown up, gassed or poisoned.

We shouldn’t hesitate.

Daniel J. Gallington is a senior research fellow at the Potomac Institute for Policy Studies in Arlington. He is a former military officer and judge advocate, Justice Department deputy counsel for intelligence policy, Senate Intelligence Committee general counsel and a recent deputy defense assistant secretary for territorial security.

Copyright © 2019 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide