Hearing of the Senate Armed Services Committee - Investigation of the 205th Military Intelligence Brigade at Abu Ghraib Prison, Iraq
Federal News Service
HEADLINE: HEARING OF THE SENATE ARMED SERVICES COMMITTEE
SUBJECT: INVESTIGATION OF THE 205TH MILITARY INTELLIGENCE BRIGADE AT ABU GHRAIB PRISON, IRAQ
CHAIRED BY: SENATOR JOHN WARNER (R-VA)
WITNESSES: GENERAL PAUL J. KERN, COMMANDING GENERAL, UNITED STATES ARMY MATERIEL COMMAND; LIEUTENANT GENERAL ANTHONY R. JONES, DEPUTY COMMANDING GENERAL, CHIEF OF STAFF, UNITED STATES ARMY TRAINING AND DOCTRINE COMMAND; MAJOR GENERAL R. STEVEN WHITCOMB, SPECIAL ASSISTANT TO THE COMMANDER, UNITED STATES CENTRAL COMMAND; MAJOR GENERAL GEORGE R.FAY, DEPUTY COMMANDER, UNITED STATES ARMY INTELLIGENCE AND SECURITY COMMAND; MAJOR GENERAL ANTONIO M. TAGUBA, DEPUTY ASSISTANT SECRETARY OF DEFENSE FOR RESERVE AFFAIRS, READINESS, TRAINING AND MOBILIZATION
LOCATION: 216 HART SENATE OFFICE BUILDING, WASHINGTON, D.C.
BODY:
SEN. JACK REED (D-RI): Thank you, Mr. Chairman. And thank you, gentlemen, for your effort, but more importantly for your service to the country. I've had the chance to know General Kern for several years, and I respect and admire him greatly.
GEN. KERN: Thank you.
SEN. REED: Let me go to page 17 of the report, General Jones. "In addition," your words, "there is sufficient evidence to reasonably believe that personnel in the CJTF-7 staff, primarily in the officer staff -- (inaudible) -- and the JC2X, the intelligence staff, had knowledge of potential abuses and misconduct, in violation of the Geneva Convention, at Abu Ghraib. This knowledge was not presented to the CJTF-7 leadership." I find that statement shocking.
I find it shocking because now, again, go to page 69 of General Fay's report, "The duty to report detainee abuse is closely tied to duty to protect, so failure to report an abusive incident could result in additional abuse. Soldiers who witness these offenses have an obligation to report the violations under the provisions of Article 92, UCMJ. Soldiers who are informed of such abuses also have a duty to report violations. Depending on their position and their assigned duties, the failure to report detainee abuse could support a charge of dereliction of duty."
Who were these officers on the staff of CJTF-7 that had this knowledge and failed to communicate to commander?
And let me emphasize something else. This is not just UCMJ. This goes to the values that you gentlemen live with all your life, the duty of a subordinate to inform their commander of all information, not just the good news but the bad news. And you have cited specifically a failure to do that. Who were these officers, general?
GEN. KERN: There are-in our report, first we separated responsibility from culpability, as I stated earlier --
SEN. REED: Excuse me, General-and the responsibility under Article 92 of the UCMJ, do they have the responsibility to report these abuses?
GEN. KERN: When they know, that is correct. And if we found that the ICRC report, which I have in reference, was reported through the staff judge advocate and staff, and delivered to General Karpinski. It never made it past that point.
General Wojickowski (sp), whom we cite in the report, is the deputy commanding general who was responsible for the separate brigades, which included both military intelligence and military police, and that was not adequately addressed, and we cite that in our report. So, the personnel and the circumstances that you addressed are correct, and we have cited them in our report. And I'd ask General Jones to add comment.
GEN. JONES: Yes sir, you are exactly right. Where I found, and that was under what I considered indications and warnings, that there was not specifically abuse but there was sufficient evidence out there that needed to be looked at an informed the chain-of-command on. Obviously, the legal counsel section in the CJTF's staff saw the Criminal Investigation reports and the things they were working on. The get the reports up to the division's subordinate commands. They also got the ICRC report and worked that. So there's, if you put that all together in cumulative effect, they should have advised the commander and the types and the magnitude or the trends that they may have seen, and he should have been aware of it, and they didn't do that.
SEN. REED: They failed to do that.
GEN. JONES: Yes sir.
SEN. REED: And how do you then conclude, Colonel, that in light of all the circumstances the CJTF-7 -- excuse me, General-staff, that everything they could have reasonably been expected to do to successfully complete their assigned missions, one of their assigned missions to ensure that the Geneva Convention and detention policy was appropriately (assigned ?).
GEN. JONES: You're exactly right. What I concluded there was because the legal section itself, Colonel Warren was also split supporting the Coalition Provisional Authority so that --
SEN. REED: Let me ask this specifically: Did Colonel-was Colonel Warren aware of this ICRC report, these potential abuses?
GEN. JONES: Yes sir.
SEN. REED: And he did not inform General Sanchez?
GEN. JONES: He did not.
SEN. REED: Was General Fast aware of these abuses?
GEN. JONES: She was not aware of it until it surfaced in late December-December 24th.
SEN. REED: Now, I find this, again, extraordinary. Here is the chief staff officer responsible for implementation of the Geneva Convention interpretation in a very complicated situation receiving a report from the ICRC of serious alleged abuses who does not communicate that to the commander, and you find that is a functioning staff?
GEN. JONES: If you look at the system for the ICRC reports, they are handled in confidentiality.
SEN. REED: Excuse me, sir. That's confidentiality between the ICRC and the greater world. Here is a colonel, JAG officer, with a report of abuses, and he does not communicate that to his commander.
GEN. JONES: He had reports from the ICRC in which they specified --
SEN. WARNER: Senator Reed, I think there are two issues to the answer. I'll give you time, but I don't think General Jones had completed his answer.
Had you completed your answer?
GEN. JONES: The other thing I wanted to add to you, with regards to the human intelligence section within the intelligence staff, the reason I thought that they should believe, based on my questioning with General Fast, they were involved down with the detention facilities, because they were outlined in the priorities that were needed from the human intelligence collection, and they had a lot of interface with the interrogators, not only at Abu Ghraib, but all the prisons, so they should have known something, or heard some feedback, but they did not surface any reports of abuses.
SEN. WARNER: The "they" is two-star General Fast, and the colonel, is that correct?
GEN. JONES: General Fast at the time was a one-star, sir.
SEN. WARNER: This committee was rushed to put it at a two-star at some point, I don't know where, but I'll take my time. I don't mean to detract from yours.
But when you say "they," you're talking about the two officers, one a General Fay, and the other the colonel, is that correct?
GEN. JONES: Sir, what we're talking about is Colonel Warren, who is the legal advisor, legal counsel within, and the staff Judge Advocate within the JTF-7 staff and his people. The other is a sub- element, a subordinate in the C-2, which is the HUMINT management cell, generally made up of majors and captains, and that subordinate element works directly with the collection effort and the human intelligence effort with the interrogators down at subordinate elements. And nothing surfaced out of them. But there appeared to me, in my findings, that their work at the interrogator level down at the lowest level, and the frequency thereof should have surfaced abuses if they were known.
GEN. KERN: Could I add to Senator Reed's question?
SEN. REED: If I could, I would like to introduce one other aspect.
SEN. WARNER: I'll see that you get time to reply, General.
SEN. REED: And I apologize, but the time is very short, that's one of the frustrating aspects of this. The Chairman is doing a remarkable job getting us this far, but this is a report of many, many pages requiring intense questioning, and I apologize if I'm a little bit more direct than I should be. But let me go to page 54 of the report, local CIA officers convinced Colonel Pappas and Lieutenant Colonel Jordan that they should be allowed to operate outside the established local rules and procedures. When Colonel Pappas raised the issue of CIA use of Abu Ghraib to Colonel Boltz, Colonel Boltz encouraged Colonel Pappas to cooperate with the CIA because everyone was all one team. Colonel Boltz directed Colonel Jordan to cooperate.
Did Colonel Pappas raise the issues of abuse and violation of regulations by the CIA with Colonel Boltz?
GEN. KERN: Senator, to my knowledge, he did not. But I think there is an issue here of what the word "cooperate" means. Cooperate does not mean violate laws, regulations, and policies. And there is a development that was going on here to build intelligence architectures, to build intelligence fusion, and so there are two ways you can interpret those words. Colonel Pappas, in my view, did not interpret it correctly.
SEN. REED: Did Colonel Pappas relate, as it appears in this statement, that the CIA was operating outside the established local rules and procedures?
GEN. KERN: We believe that they were, and that's what we found out after the fact, and that's why we have asked for that particular piece to be further investigated.
SEN. REED: I understand that. But, let me ask it another way, was Colonel Boltz, because Colonel Pappas told him, aware of the potential abuses at Abu Ghraib? I mean, let's just-the nice, I think, et cetera. Here is a commanding officer in a very difficult position who is making difficult decisions every day. And I think the first response of any commander is to go to his higher commander or the staff and ask for commander's guidance. What do I do when the CIA walks in with a prisoner, and you're suggesting that Pappas never did that, that he simply came in and said, they're not following rules, he gave no specific examples?
GEN. JONES: Sir, let me add some clarification, if I may. When the initial request for the agency to use facilities, not only Abu Ghraib, but our detention facilities manned by our military police, General Fast (sp) directed Colonel Pappas to consult the commanders of the military police to see if they had a problem with that. Now, subsequent to that there is no documented memo of agreement between CJTF-7 staff, and/or any other agencies to do that. My assumption in what I read was that Colonel Pappas coordinated with the military police who were in charge of the detention facilities to see if they would accept that request. He, himself, was not in charge of the detention facility.
SEN. REED: But, it says specifically that he informed the staff of abuses by the CIA, overstepping regulations, and established local rules. That's what I read, is that right?
GEN. FAY: Sir, I don't believe it reads that they knew about abuses, my recollection was the conversations related to the control of the detainees, and the lack of accountability of the detainees. There was never any conversations relating to the direct abuses, it was the ghost issues of bringing them in undocumented.
SEN. REED: Which is a violation?
GEN. FAY: Which is a violation, but it not --
SEN. REED: Well, now we're making a very nice distinction between the abuses, and other violations of the Geneva Convention. As I read your report, subject to Article 92 of the DCMJ, those are abuses that had to be reported. Did Colonel Boltz have knowledge of those types of abuses of those detainees?
GEN. FAY: We did not consider that, nor are they one of those 44 that we enumerated as abuses, so that did not meet our definition of abuse when we were writing the report.
SEN. REED: So you never asked General Fast of Colonel Boltz whether they had specific knowledge of ghost detainees?
GEN. FAY: Yes, we did ask them.
SEN. REED: And what did they say?
GEN. FAY: General Fast did not know about the ghost detainee issues until later on. Colonel Boltz when he had that conversation with Colonel Pappas, Colonel Pappas had a conversation about what was occurring with the CIA bringing in undocumented, unaccounted for detainees. Colonel Boltz did know that that was --
SEN. REED: What date was that, sir?
SEN. WARNER: Senator, we've got to-we'll come back on the second round here, and we'll have an opportunity --
SEN. REED: Thank you sir. May I have just the date, sir?
GEN. FAY: I'm actually not sure, I'd have to go back and check what the statements say. I don't remember what specific date it was.
SEN. WARNER: It's an important line, and I intend to return to that, and the role of General Fast in this matter.
BREAK IN TRANSCRIPT
SEN. REED: Thank you, Mr. Chairman.
General Jones, let me follow up and I want to make sure I heard you correctly. You indicated that General Fast was aware of the death of Detainee 28, or did not?
GEN. JONES: I'm not sure what number it is, she was informed of the 4 November case. She was called and informed of that death, and she reported directly to General Sanchez that it had happened.
SEN. REED: So as of November 4th General Sanchez was aware that there were significant violations, the death of the detainee, is that correct?
GEN. JONES: She was aware of the death of the detainee, and she followed up as General Sanchez directed, to go to the chief of station and ensure that an investigation was initiated.
SEN. REED: Isn't there a responsibility, since the death was in the custody of the United States Army to do something more than that?
GEN. JONES: The criminal investigation took that on, was informed. And I think the results of that just came out recently.
SEN. REED: You also indicated, General Kern, that General Fast also worked with the CPA, is that correct?
GEN. JONES: She supported the CPA, a considerable amount of her time was spent supporting the CPA.
SEN. REED: So she essentially had if not formally, informally, two commanders, Ambassador Bremer, and General Sanchez, maybe not in the strict formal sense.
GEN. JONES: Formally she had one commander, informally she was reporting to two different headquarters.
SEN. REED: You have had not an opportunity to interview Ambassador Bremer or other CPA officials?
GEN. JONES: That's correct, Senator.
SEN. REED: So it's conceivable that she was receiving instructions from Ambassador Bremer and CPA that were different or inconsistent from the instructions she received from General Sanchez?
GEN. JONES: It's conceivable, but it never came out in any of our interviews that that is the case.
GEN. KERN: I don't believe it's conceivable, sir. I spent a great deal of time with General Fast on two occasions, and I believe through all my questioning she would have revealing that to me, if that were the case.
GEN. KERN: General Sanchez has --
SEN. REED: Excuse me, did you ask her specifically if she had received guidance from anyone else?
GEN. KERN: I did not, sir.
SEN. REED: You did not. So that's a conjecture on your part?
GEN. KERN: It is, sir.
SEN. REED: Thank you. General Jones?
GEN. JONES: I specifically asked General Sanchez if he got direction from Mr. Bremer, and he said occasionally he would ask us to do things. If any of his guidance or requests conflicted with the guidance he got from the CENTCOM commander, he would go back to the CENTCOM commander for to clarify.
SEN. REED: To General Abizaid?
GEN. JONES: Yes, sir.
SEN. REED: With respect to the information that Colonel Warren had with potential violations of the Geneva Convention, as you cite in the report, how long did he wait before informing General Sanchez of the possible violations of the convention?
GEN. KERN: I will-in my view General Sanchez was not informed until after the atrocities. The report-the person that he informed was General Karpinski. Make sure I have that correct from General Taguba, because that was the part that he'd followed.
GEN. TAGUBA: Yes, sir. The trail was the serving battalion commander, an acting battalion commander at Abu Ghraib prison was at an out-brief by ICRC in October, which was in General Karpinski's chain of command.
SEN. WARNER: Let's put his name in the record. Acting --
GEN. TAGUBA: Yes, sir. It's Lieutenant Colonel Chew. C-H-E-W.
SEN. REED: Let me try to understand this. Colonel Warren is the staff judge advocate for General Sanchez.
GEN. KERN: CJTF-7, correct.
SEN. REED: He is the staff judge advocate. He has been informed that there is serious violations, potentially, of the Geneva Convention. He's the chief legal officer in theater. He's responsible more than anybody else on a staff level to ensure that these laws are interpreted correctly and followed. He received that notification roughly when would that be? Does anyone know?
GEN. JONES: November I think.
GEN. KERN: He received a-he was on leave from like 8 or 12 November till the end of November, his mid-tour leave. He came back and the ICRC report had been worked by his staff, and they had prepared a response for General Karpinski at that time, early December. And he saw it.
SEN. REED: Now, he was not notified while on leave of this development? This was done at a staff level by a deputy?
GEN. KERN: Not that I'm aware of.
SEN. REED: And the officer assigned to investigate these charges, at least to validate them, prepared a letter, was Major O'Kane of the Australian Army? Is that correct?
GEN. KERN: He was at least one of the people involved.
SEN. REED: He apparently from the report actually drafted the response that General Karpinski said she signed without any specific knowledge. Is that accurate?
GEN. KERN: Yes, I believe it was Colonel-Major O'Kane from the Australian Army that actually went to Abu Ghraib.
SEN. REED: And Major O'Kane has refused to make himself available to any questioning by this panel. Is that correct?
GEN. KERN: I'm not sure that's technically correct. We made our request through the Australian government. I'm not sure whether their lack of a response to produce Major O'Kane was his decision or the Australian government's decision. They did respond in writing, very recently, to some written questions we submitted to Major O'Kane.
SEN. REED: But a key witness, if you will, to the incidents of the ICRC report, who knew what within the JAG section, whether Colonel Warren was fully apprised it, when General Sanchez was apprised, has been beyond the scope of your investigation? You haven't reached him?
GEN. KERN: That's correct, sir.
SEN. REED: But the situation which troubles me, frankly, is that you have the key staff officer responsible for informing the commander of the operation of the convention, the Geneva Convention respect for it, and that person has information, credible information, which he withholds for a-and what time did he-finally, again, I'll re-ask the question if I can get an answer: When did he finally indicate to General Sanchez that this has been going on? How many weeks or months?
GEN. KERN: I'd have to go back and check for a specific date, but I believe the answer is January, which would have been about a month after he knew of it.
SEN. REED: So this is-he knew of it for a month. And that's his revelation to the general was contemporaneous with the photographs coming to light. Is that correct?
GEN. KERN: That's our knowledge, yes. That's correct.
SEN. REED: To me that is a gross disservice to General Sanchez as the commander. And yet this report concludes, General Jones, that the staff of the command, the Combined Joint Task Force-7 did everything they reasonably could do. I beg to disagree. I respect your position, but I beg to disagree. I think the obligation of that officer was to inform his commander immediately. Maybe these suspicions were unfounded-but then to investigate fully. Apparently the investigating officer has gone to Australia and has not cooperated with any, at any degree, with no cooperation. I think that's a glaring omission in this report.
GEN. KERN: Senator, I think what we conclude in the report is that the whole method of receiving and processing the ICRC reports is inadequate, and that needs an independent person involved, and our suggestion it ought to be somebody in the inspector general chain of command who would take that report, not somebody in a staff process.
SEN. REED: General, I respect that, and that is a good recommendation. But it still doesn't answer the question why in terms of your recommendations you have not indicated that it was a glaring error on the staff of this combined task force to inform their commander.
Then there's another dimension, which is the UCMJ, which General Fay cites in his report very accurately the responsibility to report that officially as a crime. And this raises to me, in my mind, two very important question. First a question in the scope of this investigation. Are you applying the same standard of justice and accountability to low-ranking officers as you are to higher-ranking officers?
GEN. KERN: In our judgment, we are. And I would expect that you would hold us to that standard as well. And that is why we clearly went through and did the reviews of what we define as culpability versus the responsibility. And we've had a number of discussions with our legal staffs about where that line is.
Now, Senator Warner has asked us to re-look that in the light of the recommendations made with the Schlesinger panel's report, and we will do that and re-look those recommendations.
GEN. KERN: In our judgment, we are. And I would expect that you would hold us to that standard as well. And that is why we clearly went through and did the reviews of what we define as culpability versus the responsibility. And we've had a number of discussions with our legal staffs about where that line is.
Now, Senator Warner has asked us to re-look that in the light of the recommendations made with the Schlesinger panel's report, and we will do that and re-look those recommendations.
SEN. WARNER: And I think the line of questioning by our colleague merits, with regard to this particular colonel, that similarly should be examined in that light.
GEN. KERN: He was one that I included in that list.
SEN. WARNER: Yes, he's in here also.
GEN. JONES: Well, I think the question-and I have not seen the ICRC report-whether or not it specifically referred to instances that were-could be categorized as abusive-I think the responsibility I agree with you to inform the commander if the substance of those reports were such that there were abuses was there.
Now, having not seen the ICRC reports in the details, they did owe an investigation also-at least an analysis, to determine if those abuses, or if there were abuses, or if the report the ICRC was doing merited further investigation. And they should have done that before the subordinate commander also.
SEN. REED: I've seen the reports, general. My recollection is that they reported that prisoners were kept naked, prisoners were being held in conditions that I think the reasonable person, let alone the reasonable international lawyer, would include were per se violations, or at least plausible violations.
But let me go on. There's something else here too. You're making this differentiation between culpability and responsibility. I assume under the UCMJ it is the responsibility of someone who has been informed about abuses to report the violations. Those-apparently Colonel Warren did not report those violations to his immediate commander. Colonel Boltz, who is cited in the report, the discussion with Colonel Pappas, and again there is a gap in the information. But I have to believe that if I was the 06 witnessing what happened on November 4th, and other incidents, that I would simply not walk in and have a technical discussion about the SOP for the CIA. I think I'd tell them this is what they're doing down there in this prison-what do I do? And the message was, Cooperate-we're just one big team. In other words, look away. Sep 09, 2004 16:14 ET .EOF
Now, the real question that troubles me that I don't think you reach in the report-these are all professional soldiers, highly capable people. You might disagree with some of them as being not up to the standards of a general officer or colonel or captain. But I've met General Fast, and I share your judgment she's a superb professional. I think General Wojdakowski wouldn't be the deputy commander unless he similarly had those skills. Colonel Warren was here testifying-he impressed all of us as a very remarkably intelligent, dedicated officer-not only a professional soldier, but a lawyer. Why would all these people not follow Army regulations, not report violations to the Geneva Convention, wait months to inform commanders of vital information? And then take action which was designed not to report these violations but simply to try to fix them going through the CIA? There are many answers I have. One is that they were told to do that. I don't think they were told to do that by Sanchez, because frankly it appears to me, and based on the report, Sanchez was kept in the dark. But somebody I think suggested that these people should not do what professional soldiers should do. I'm looking at all of you gentlemen. I think if you found out that your staff officers, your subordinates, were doing this it wouldn't take a year of investigations. They'd be fired immediately and charged with dereliction of duty-particularly if it were found out that they were hiding information from you. I don't think you've reached that, to me, basic question of what went on out there. I appreciate what you've done. I appreciate your service to the country and to the Army. Thank you.
SEN. WARNER: Let's give the panel an opportunity to reply to the senator's observation. He may not have couched it in a direct question, but the chair gives you such opportunity as you and your colleagues wish.
GEN. KERN: Senator Reed, I think we are troubled by the same issues that you raised, and in our review of it our judgment was to hold these people responsible for their staff actions, but not culpable for criminal actions. And that was the judgment which we reached in looking at it. If there is additional information as you suggested that there may be, that is a different circumstance than what we found in our investigation.
The-I take very seriously, and I think every member of this panel takes very seriously, that we hold all ourselves to the same standard. We looked at this very seriously, with a great deal of review by multiple personnel, to include lawyers, and the judgment we made is the one of responsibility. The people that you've referred to all acknowledge that they should have done more. The line that we drew was whether or not that they were in a position to have prevented, taken part, condoned or participated in an abuse. And that's the distinction that we worked through from a legal standpoint. The issue that you bring up of dereliction of duty, we report as where they failed in their responsibilities and their staff action. That report has been provided to their chains of command, the same as we provided it to you. So they have the same information to deal with as you and I do.
We are taking on also, to further make-avail ourselves of the information which the Schlesinger panel may have found, which may provide different information, and get back to your committee in response to whether or not our judgments would have a different outcome if we consider that information. And I'd clearly ask my other panel members to comment.
GEN. JONES: I would agree, sir, and I appreciate your logic and how you've seen what we have reported. And I think that same logic has to be applied by the commanders in the chain of command, the people we have given the report to. Certainly if there was knowledge, it should have been reported. The issue becomes: How much knowledge did they have, and to ascertain that level of knowledge and what actions they did take? There are instances not specifically or outside of the ICRC report in terms of the CID and other investigations, they were reported. They did have a method to track it, and they did keep the commander informed. So it's an issue of which abuses and knowledge of level of the abuses, and they apply their military experience to tell that commander-certainly in some cases they should have. I would tell you in other cases they told the commander right away, and investigations were initiated, and it was done properly. And there were instances that dealt with the agency that were handled very quickly, and to get a response to make sure they complied with the rules and the policies in place.
SEN. REED: Thank you, Tony.