Applying the Responsible Corporate Officer and Conscious Avoidance Doctrines in the Context of the Abu Ghraib Prison Scandal

• Author: John Monroe
• Position: J.D. Candidate, The University of Iowa College of Law
• Pages: 06

John Monroe: J.D. Candidate, The University of Iowa College of Law, 2006; B.A., The George Washington University, 2003. I would like to thank Mary, my family, and my friends for their support during law school and law review. I would also like to thank the editors and writers of the Iowa Law Review for their many helpful suggestions.

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I Introduction

The U.S. government and military have been heavily criticized as a result of the recent revelations of prisoner abuse and the deaths of detainees held at U.S. military prisons used in the United States' war on terror.¹ The treatment of prisoners held at the Abu Ghraib prison in Iraq is one of the most prominent and controversial examples. An internal military investigation determined that the abuses at Abu Ghraib were "systematic," "sadistic, blatant, and wanton,"² and constituted "grave breaches of international law."³ The effect of these events has been significant. The mistreatment of the detainees has undermined the U.S. military's prestige and tarnished its reputation of professionalism at home and abroad. The widely distributed pictures of abused detainees have undermined the United States' efforts to win over the hearts and minds of Iraqis, and have led to condemnation by many Americans from both ends of the political spectrum.

While the U.S. government has aggressively investigated the errors that led to these horrendous events, many have raised questions regarding who should be held criminally accountable for the abuse. This inquiry is focused on the civilian and military officials who supervised the individuals who actually committed the illegal actions.⁴

Holding persons in authority criminally accountable for the actions of their subordinates raises many ethical and legal issues. The tradition of criminal law is to limit criminal culpability to those persons, or in some cases corporations, who purposely or knowingly engage in an illegal act.⁵Similarly, within established international law and military law, the principle of command responsibility provides for the criminal liability of civilian and Page 1370 military officers when they knowingly allow their subordinates to violate the laws of war.⁶ However, because it is difficult to establish the requisite mens rea of superior officers beyond a reasonable doubt, courts have developed doctrines that lower, or even arguably eliminate, the bar that prosecutors must reach in order to establish criminal culpability.⁷ Such doctrines are commonly used in corporate criminal law, where civil sanctions have often failed to deter prohibited conduct, and the prosecution of corporate officers responsible for the operations of the corporation has been exceedingly difficult.⁸

Holding superior officers within the government criminally liable for the actions of their subordinates is particularly relevant in the context of the Abu Ghraib prisoner abuse scandal. This Note argues that tools such as the responsible corporate officer ("RCO") and conscious avoidance doctrines are applicable in the context of prosecuting civilian and military officers.

First, Part II of this Note examines the nature of the prisoner abuse at Abu Ghraib and the calls by some to broaden the scope of accountability, and also discusses the legal protections afforded to detainees in U.S. military prisons.⁹ Part II also discusses the legal offenses committed by soldiers at Abu Ghraib and potential legal theories for liability of their superior officers. Second, Part III examines the well-established principle of command responsibility, which allows for criminal sanctions against commanders who knowingly permit their subordinates to violate the laws of war.¹⁰ Next, Part IV introduces two common-law doctrines, the RCO and conscious avoidance doctrines, which provide an analytical framework for establishing such knowledge.¹¹ Finally, Parts V and v. analyze the Page 1371 applicability of these doctrines in determining the criminal liability of military and civilian officers for the prisoner abuse at Abu Ghraib.¹²

II Background

The Abu Ghraib prison scandal has raised questions of whether criminal liability is limited only to those soldiers who directly participated in the abuse, or whether their superior civilian and military officers are also criminally liable for the violations of military regulations and international law.¹³ While the Bush Administration maintains that the abuses were the acts of a few "bad apples," many observers are skeptical and argue for further investigation.¹⁴

A Abuse Of Prisoners At Abu Ghraib Prison

In early 2004, Major General Antonio M. Taguba directed an investigation into the abuse of prisoners and the security failures at Abu Ghraib prison in Iraq.¹⁵ After completing his investigation, Major General Taguba authored the "Taguba Report," which is the primary source of information regarding the abuses that occurred at Abu Ghraib.¹⁶ In his report, Major General Taguba issued a stern condemnation of the conditions at Abu Ghraib and found evidence of criminal violations by personnel at the prison.¹⁷ He also noted the absence of clear command and control,¹⁸ and reported several violations of international law and military regulations.¹⁹ Major General Taguba found that "numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees."²⁰ According to the report, the abuse was "systematic" and Page 1372 "intentionally perpetrated" by American soldiers.²¹ Major General Taguba found that the abuse ranged from humiliating acts, such as making detainees masturbate, to physical abuse or torture, including a "guard having sex with a female detainee,"²² "[s]odomizing a detainee with a chemical light and perhaps a broom stick,"²³ and beating detainees.²⁴ The Taguba Report also found that officials at Abu Ghraib prison held prisoners for the Central Intelligence Agency without recording the detainees' presence or allowing the International Red Cross access, in violation of military regulations and international law.²⁵

The Taguba Report concluded that such abuses were symptoms of a flawed system rooted in the suggestions of Major General Geoffrey Miller.²⁶Major General Miller's role is particularly troubling, because he reportedly advocated harsh interrogation techniques while in charge of the Guantanamo Bay detention facilities in Cuba, although no reports have shown that the techniques used there were as extensive as those utilized at Abu Ghraib.²⁷ Officials within the Department of Defense were reportedly pleased with the information obtained from detainees held in Cuba and therefore transferred Major General Miller to Iraq to improve the intelligence produced from the detainees there.²⁸

Major General Miller applied the tactics used in Cuba to his interrogations in Iraq.²⁹ This included transforming the detention facilities and military police from tools of security and protection into enablers of intelligence.³⁰ In essence, the military police were now part of military Page 1373 intelligence instead of being a separate entity from military intelligence.³¹Major General Taguba found that combining military intelligence with military police created an unclear chain of command, under which those in military intelligence asked the untrained military police to "loosen up" prisoners.³² For example, soldiers whom Major General Taguba interviewed in his investigation stated that "'[military intelligence] wanted to get them to talk," it was the military police's "job to do things for [military intelligence] and [other government agencies] to get [the detainees] to talk," and that "[military intelligence] insinuate[d] to the guards to abuse the inmates."³³Before discussing whether officers are criminally liable for the abuse at Abu Ghraib and the legal standard for determining their criminal liability, it is necessary to discuss the legal protections afforded to the prisoners at Abu Ghraib.

B Legal Protections Of Detainees

The detainees at Abu Ghraib have several legal protections against the abuse they suffered. International law, U.S. military law and regulations, and U.S. civilian domestic law all regulate the treatment of the prisoners. The mistreatment of the detainees described in the Taguba Report implicates all three of these sources of law.³⁴

First, under international law, the Geneva Conventions provide legal protections to the detainees. The Geneva Conventions, which in large part constitute the "law of armed conflict," provide that even persons not considered "prisoners of war" are, at minimum, entitled to humane treatment.³⁵ Other principles rooted in international law, such...