The Case Against Rumsfeld

Statement of Brig. Gen. James Cullen
(Ret. USA)

March 1, 2005

James Cullen is a retired Brigadier General in the United States Army Reserve Judge Advocate General's Corps, and
last served as the Chief Judge (IMA) of the U.S. Army Court
of Criminal Appeals. He currently practices law in New York City.

Brig. Gen. Cullen is of counsel to Human Rights First
in this litigation.

Remarks:

The decision to bring this action against Mr. Rumsfeld was taken out of a sense of deep frustration.

Mr. Rumsfeld's policies have undermined core principles on which the military's values and training have been based. His policies cast aside decades of military experience in employment of proper detention interrogation techniques. His policies also had us ignore Geneva Convention requirements to classify and treat properly individuals detained by our forces. Detainees are treated as though they are criminals before there has been any minimally satisfactory determination of their status in accord with the Geneva Conventions. Mr. Rumsfeld authorized techniques that have led directly to acts constituting grave breaches of the Geneva Conventions. The Geneva Conventions have served as protection for our military in conventional wars and guerilla wars. We rightly invoked their protections even when our adversaries were guerillas or a non-functioning government. Mr. Rumsfeld's short-sighted and arrogant leadership has put at serious risk those protections on which our prisoners of war and civilians caught in war zones have relied.

We sought appointment of an independent commission outside of the Department of Defense to investigate patterns of torture, inhumane treatment and other abuse of detainees in facilities under the control of Mr. Rumsfeld. Those patterns of abuse bear striking similarities that defy suggestions of coincidence. There has been no effort to investigate these patterns independent of Mr. Rumsfeld's control. Earlier litigation and leaks by those outraged by Mr. Rumsfeld's directions revealed memoranda he issued authorizing interrogation techniques not previously permitted by the military. He refused to recognize some basic rights of detainees until the Supreme Court felt his notions of executive power; i.e., his power to detain indefinitely, violated fundamental constitutional principles.

Command and leadership bear distinct responsibilities. If there were any doubts about the range of these leadership responsibilities, those doubts were put to rest in cases decided by the courts after World War II. It is no longer sufficient for a leader to claim "I did not do the criminal act," or "I did not personally order it." Mr. Rumsfeld put in place policies that facilitated the disgraceful acts about which we read with numbing regularity. A leader has clear responsibility to take meaningful measures to stop grave violations of international law in facilities and areas under his control, especially grave violations spawned by his policies. A few public utterances issued for damage control purposes are not sufficient. We called General Yamashita to account after World War II for grave breaches of international law committed by his forces, even though circumstances cast some doubt about his actual control of and communications with those forces. The courts felt he had failed to take sufficiently strong measures to insure his forces did not carry out grave breaches of international law, and for these failures he was held to account. Our country argued that this standard of leadership responsibility should apply, and no one can persuasively argue we should exempt ourselves from the same standard.

The Peers Commission findings after the My Lai massacre reinforced these lessons. Among those lessons was the culture created by policies of the then Secretary of Defense, Robert McNamara, to measure success in war. The "body count syndrome" that evolved from the focus on quantitative "success" played a significant role in the circumstances leading to My Lai. Dehumanizing the enemy was also prominently mentioned by General Peers among factors bearing on war crimes' predictability. The dehumanization and humiliation of detainees under Mr. Rumsfeld's policies should cause us to amplify the warnings that General Peers sounded three decades ago.

Mr. Rumsfeld has made clear that he does not intend to accept responsibility for the patterns of misconduct emerging in the wake of his policy decisions. We feel the honor of our military is at stake. We owe it to those who still wear the uniform and continue to serve their country honorably to bring this suit. Mr. Rumsfeld's policies have stained our military's record for adherence to the rule of law and observance of human rights. We want to remove that stain.

I have been called by many on active and reserve duty, who serve proudly, and have been thanked privately for doing what they cannot do. They want the American people to look with pride on their sacrifices. They do not want to risk loss of that pride or support by imposition of policies in stark violation of core national values and military culture.