By Scott Horton
Special to the Huffington Post
Back on September 1, the Washington Post's venerable national security guru, Walter Pincus, published a news column entitled "Do CIA and Military Face Double Standard on Interrogations?" In it, he recounted the story of former Army Lieutenant Colonel Allen B. West, who brandished a pistol and threatened to shoot an Iraqi police officer while interrogating him in 2003. West also allowed three soldiers to sporadically beat the prisoner for 25 minutes.
When disciplinary proceedings were commenced against West, senior congressional Republicans, including Senator John Warner and Congressman Duncan Hunter -- who as chairs, respectively, of the Senate and House Armed Services Committees, had their hands on the Pentagon's pursestrings -- intervened aggressively to protect him. The result: instead of facing punishment that could have included prison time, West got off with a fine, a reprimand and early departure from the service.
Why was Pincus writing about this case? He explains:
The West case is one reason CIA officials wonder whether a double standard is at play -- one that penalizes intelligence officers more harshly than the military for the use of coercion in interrogating detainees.
I was struck on reading this, because at an off-the-record gathering a couple of years ago I listened to a former senior CIA official make an almost identical pitch -- without, in the process, disclosing what we now all know, namely that CIA Inspector General John Helgerson's 2004 report identified a couple of incidents similar to the ones involving West in which CIA operatives brandished weapons (in one case a power drill) in an effort to shake up a prisoner. These cases are apparently among the roughly ten cases that the Inspector General recommended be investigated by the Justice Department, and that Attorney General Eric Holder has now referred to special prosecutor John Durham for a preliminary look over to determine whether a proper criminal investigation is warranted.
But there's something fundamentally askew in Pincus's piece.
We start with the fact that he focuses attention on a case which is, in the overall parade of offenses that Helgerson identifies, relatively modest. The rules clearly prohibit threats of death, and if the rule is going to count for anything, breaking it in a notorious fashion has to be accompanied by some sanction.
But the cases that raise the most concern coming out of the Helgerson report are those in which the prisoner actually died or suffered some long-term impairment. Homicides and cases of serious assault resulting in long-term damage are, in the ordinary course of things, prosecuted. Pincus and his CIA informants seem to be working hard to take our attention off the really troubling cases and focus it instead on a vivid story which is really from the minor leagues.
And the Pincus story is misleading in another respect. West's case actually began and ended as a criminal proceeding. The Army filed criminal charges against him, an article 32 hearing was conducted at which West admitted wrongdoing, and ultimately he was fined $5,000 for misconduct and assault and then allowed to resign from the military. The Army concluded that his actions were criminal and that "his crimes merit a court-martial." Had West been prosecuted and convicted, he could have faced as much as 11 years in prison, a dishonorable discharge and forfeiture of pension and benefits.
However, Major General Raymond Odierno, who exercised the final prosecutorial call, concluded that sanctions other than criminal penalties were appropriate in light of "mitigating factors," including West's service record and the "stressful environment" of combat (a fact which does not appear applicable to the CIA cases, which transpired at black sites far removed from the battlefield). In the end, West received a nonjudicial punishment -- the path that accounts for 90 percent of infractions of the Uniform Code of Military Justice.
David Remes, a former partner at Washington's Covington & Burling law firm, who is now legal director of the human rights organization Appeal for Justice, offers me this analysis:
Pincus missed the point. There is a double standard in these cases, but it's not the one he mentioned. West did commit crimes. His case not only began as a criminal proceeding, as Pincus notes; it ended with a finding that his actions were criminal. He avoided prison only because powerful members of Congress intervened. So in asking Durham to review the CIA interrogator's case, Holder is proceeding exactly as the Army did in West's case. What happens down the road, if Durham prosecutes and obtains convictions, is another question. The real difference here is that the Army owned up to the fact that West's actions were crimes, while the CIA insists the same actions are lawful. That's the double standard.
And what became of Allen B. West? He was lionized by right-wing talk radio and named the "Man of the Year" by FrontPage Magazine, a vehicle of radio talk jock David Horowitz. He lost his career in the Army and instead emerged carrying the banner of the GOP, which nominated him as its candidate for Florida's 22nd congressional district (Broward and Palm Beach Counties). West lost in 2006 and again in 2008, but fared better than Republican candidates generally do in a heavily Democratic district. West is now preparing a third run for the congressional seat in 2010.
This suggests that the message that torture enablers really draw from the West experience is this: Political cards played deftly will foil the impartial administration of justice every time. They may even win you a seat in Congress.
About Scott Horton
Scott Horton is a contributing editor at Harper's Magazine, where he writes on law and national security issues, an adjunct professor at Columbia Law School, where he teaches international private law and the law of armed conflict, and a frequent contributor to the Huffington Post. A life-long human rights advocate, Scott served as counsel to Andrei Sakharov and Elena Bonner, among other activists in the former Soviet Union. He is a co-founder of the American University in Central Asia, where he currently serves as a trustee. Scott recently led a number of studies of issues associated with the conduct of the war on terror, including the introduction of highly coercive interrogation techniques and the program of extraordinary renditions for the New York City Bar Association, where he has chaired several committees, including, most recently, the Committee on International Law. He is also an associate of the Harriman Institute at Columbia University, a member of the board of the National Institute of Military Justice, Center on Law and Security of NYU Law School, the EurasiaGroup and the American Branch of the International Law Association and a member of the Council on Foreign Relations. He co-authored a recent study on legal accountability for private military contractors, Private Security Contractors at War. He appeared at an expert witness for the House Judiciary Committee three times in the past two years testifying on the legal status of private military contractors and the program of extraordinary renditions and also testified as an expert on renditions issue before an investigatory commission of the European Parliament.