For a Kinder, Gentler Society
Rules of Engagement?
A Social Anatomy of an American War Crime — Operation Iron Triangle, Iraq
  • Stjepan G. Mestrovic
Reviews Table of Contents Introduction «Back
Rules of Engagement?. A Social Anatomy of an American War Crime — Operation Iron Triangle, Iraq
Sound Bite
Blackwater, Abu Ghraib and other scandals in Iraq were presaged by the murderous Operation Iron Triangle in May 2006 when US soldiers were ordered to kill all Iraqis of military age.

The soldiers were imprisoned; the officer was merely reprimanded. Mestrovic details the American leadership’s fake commitment to the Geneva Conventions and the rule of law, fake due process for defendants, fake goals of promoting democracy, and compulsion to repeat our errors in Vietnam.

Prof. Mestrovic served as an expert witness in the trial of the three soldiers in this case and in five other war crimes trials. His experience gives him a penetrating insight in analyzing a war crime that involved the murder of noncombatants, questionable rules of engagement, and the doctrine of command responsibility.

Published in 2008, his book was the first to break the story of how US soldiers involved in war crimes are treated, and what makes them do it, etc. In preparing his July 6, 2009 article in The New Yorker, Raffi Khatchadourian had extensive correspondence with and received many leads from Prof. Mestrovic, although Khatchadourian fails to mention that. Furthermore, contrary to Prof. Mestrovic’s  professional opinion that the commissioned officers and the Bush administration were responsible for the solders’ actions, the article appears to adhere to the official interpretation of events, protecting the chain of command by scapegoating those at the bottom.

Listen to the Author on the Rick Amato Radio Show

About the Author

Prof. Mestrovic has testified as an expert witness at The Hague and at Fort Hood. He is the author of 17 books (two with Algora) and numerous articles. His particular areas of interest include Abu Ghraib, culture, and race and ethnic studies in the Balkans. He holds three degrees from Harvard University and has been teaching at Texas A&M since 1991.

About the Book

Coalition and Iraqi troops raided an insurgent training camp southwest of Tikrit as part of Operation Iron Triangle May 9-11, 2006. After intelligence sources identified the 60-square-mile Muthana Chemical Complex, 200 soldiers from the 4th...

Coalition and Iraqi troops raided an insurgent training camp southwest of Tikrit as part of Operation Iron Triangle May 9-11, 2006. After intelligence sources identified the 60-square-mile Muthana Chemical Complex, 200 soldiers from the 4th Iraqi Army Division and about 230 soldiers from the 101st Airborne Division assaulted the complex. The operation resulted in the detention of 200 suspected terrorists and the confiscation of weapons and propaganda materials.

Mestrovic’s book investigates the three soldiers who were charged with murder after questions were raised about the rules of engagement (ROE), which were to kill every military aged male on sight for Operation Iron Triangle. The statements given by the three soldiers presented three distinct versions of what happened. The Prosecution avoided going to trial by getting the defendants to agree to plea bargains. Colonel Steele, the commanding officer who issued the unlawful ROE, was never prosecuted and neither was anyone further up the chain of command. Pfc. Corey Clagett was sentenced to 18 years in prison in January 2007.

As described in a CBS interview,

The soldiers first told investigators they shot the detainees because they were attempting to flee — a story they now say they made up — and that commanders had given them orders to kill all military-age males on the mission.

Two of those soldiers, Spc. William B. Hunsaker and Spc. Juston R. Graber, have changed their stories and pleaded guilty. The squad leader, Staff Sgt. Raymond Girouard, is awaiting his court-martial.

“(Sgt. Girouard) said we were going to cut the zip ties loose and kill the detainees," Clagett told the military judge....
Four other soldiers from the division's 2nd Brigade Combat Team are accused of raping and killing an Iraqi teenager and killing three others in her family last March. A former Army private also faces murder and rape charges in federal court for the same incident.

Books about the war in Iraq have until now ignored questioning rules of engagement. Mestrovic challenges U.S. perceptions of responsibility for war crimes, which are viewed differently in other countries.

At the Hague, many high-ranking officials including the former President of Yugoslavia, Slobodan Milosevic, have stood trial for war crimes under the doctrine of command responsibility, the view that commanders are responsible even if they did not pull the trigger or give the order. Commanders should known and should take steps to prevent the commission of crimes by their subordinates. However, in the U.S., low-ranking soldiers are court-martialed under the principle stated in the Uniform Code of Military Justice (UCMJ) that obedience to unlawful orders is not a defense.

Both attitudes are inspired by the Nuremberg trials, albeit in starkly divergent ways. The ICTY seems to reject the excuse for World War II atrocities, namely, "We didn't know". Conversely, the U.S. military system seems to reject the excuse, "We were just following orders" and insists that low-ranking soldiers are responsible for their own actions. Which approach is more just?

A distinguished expert in matters of war crimes, Mestrovic has testified at the trials regarding Abu Ghraib torture and prisoner abuse and at the International Criminal Tribunal for the former Yugoslavia. Currently, Mestrovic is working on two more books concerning the Abu Ghraib cases on high ranking generals, other officers and stories of soldiers that slipped through the cracks. As a sociologist, Prof. Mestrovic bases his study of the participants' behavior in Operation Iron Triangle in the idea of "fake sincerity" as defined and described by Dr. David Riesman in his classic work, The Lonely Crowd, tying together fake commitment to the Geneva Conventions and fake commitment to the rule of law, false versions of policies announced to the American people, fake due process for the defendants, and fake goals of promoting democracy.

This book stands alone in analyzing a war crime from Iraq that involved the murder of noncombatants, questionable rules of engagement, and the doctrine of command responsibility. The questions are not only about the facts of the case but about the military's principles, rules, and code of honor.

Once the trial was canceled, the evidence that would allow the public to judge what happened – and why – were buried. Far from being a cut and dry legal case, this story can be read as a mystery that will never fully resolved.

For a look at Prof. Mestrovic's classes on war crimes, you can go to iTunes here: Cultural Studies--War Crimes by Stjepan G Mestrovic, Professor, Department of Sociology.
Introduction
... In its narrowest sense, this book is about a legal case that concerns the killing of four Iraqi males by US soldiers during a mission called Operation Iron Triangle that occurred on May 9, 2006, near Samarra, Iraq. The Rules of Engagement (ROE) for that mission were, in the words of the soldiers, to kill...
... In its narrowest sense, this book is about a legal case that concerns the killing of four Iraqi males by US soldiers during a mission called Operation Iron Triangle that occurred on May 9, 2006, near Samarra, Iraq. The Rules of Engagement (ROE) for that mission were, in the words of the soldiers, to kill every military-aged male on sight....

In my view, the central plot concerns the ROE: whether it was related to other, similar ROE in Iraq and similar killings; the three distinct versions of what happened that are offered in sworn statements; and the ambivalence of the prosecutors and investigators in deciding exactly what was lawful versus unlawful in this case. Far from being a cut and dry legal case, it can be read as a mystery that is never fully resolved. Everything depends on which parts of the story are made central versus peripheral. I deliberately center my focus on the seemingly peripheral parts of the story.

My colleagues and students often ask me, “How did you get to be an expert witness in the case?” The answer is that I had built up experience as an expert witness in war crimes at The Hague in the year 1999 and in three Abu Ghraib courts-martial in the year 2005. It always started with an unexpected phone call from a lawyer. I had published several books on the war crimes in the former Yugoslavia in the 1990s, and an attorney, Turner Smith, who had read one of those books, telephoned me to come to The Hague and comment professionally on the case of Dario Kordic. I cut short a vacation at Big Bend, Texas, and made the flight to the Netherlands, and the next thing I knew, I was hired as an expert witness. That experience led several years later to a phone call from Paul Bergrin, attorney for Javal Davis in the Abu Ghraib abuse scandal, which led to another experience as expert witness, and so on for the cases of Sabrina Harman, Lynndie England, and finally, Corey Clagett in the Operation Iron Triangle case. It is still a mystery to me and my colleagues how, with my background in social theory (from classical theorists such as Emile Durkheim to postmodernists such as Jean Baudrillard) I would end up as an expert witness in war crime trials. Part of the reason is my surprise, and the surprise of attorneys, that I could withstand cross-examination. As a professor, one encounters apathy in students, and the annoying, standard question from them following any lecture, “Will this be on the test?” It does not matter how inspirational, brilliant, or passionate the lecture — it always comes down to the coldest pragmatism for the current generation of students, namely, which part of the lecture can be ignored and which part will get them the grade they seek to move up the career ladder. As an expert witness, one encounters a passionate attorney from the opposing side who yells “objection” every minute or so to anything one says, and whose aim during cross-examination is to “deconstruct” and tear apart everything the witness believes to be true. Again, it does not matter how cogent, truthful, or relevant the testimony — it always comes down to surviving the cross-examination. The classroom and the courtroom are two different worlds. I never imagined being an expert witness in war crimes trials.

Part of the mystery is resolved when I look back on my friendship with David Riesman, a renowned sociology professor at Harvard University, which started when I was an undergraduate. I am not citing him to drop names or to impress others. He was not a snob, as evidenced by the fact that he sought out friendships with undergraduates such as myself, and I am not a snob either. I cite him to explain a subtle influence he exerted on me which I did not notice throughout our friendship, but which lasted up to his death in the year 2002. Mark Twain, who was one of Riesman’s heroes, defined a classic as “a book which people praise and don’t read,” and this statement applies to Riesman’s classic, The Lonely Crowd. Even though I have read and re-read his classic many times, it was only after my experiences as an expert witness at The Hague that I realized Riesman had already prepared me for the witness stand over the course of a thirty-year friendship. He had graduated from Harvard Law School; he had clerked for Supreme Court Justice Louis Brandeis; and he had served for a time as Assistant District Attorney in Buffalo. He never earned a PhD in Sociology or any other field, yet this highly trained lawyer went on to write a classic in sociology. One of his central concepts is the “jury of one’s peers,” applied not to the courtroom but to society at large. He is best known for his theory that American society is moving away from the inner-directed type, who possesses a rigid, internal, metaphorical “gyroscope” which would not change much despite changes in society, toward the other-directed type who looks to the “jury of one’s peers” for guidance as to what is right, wrong, beautiful, ugly, or any other standard. Riesman was the lawyer who became the accidental sociologist, and I was the academic sociologist who became an accidental expert witness, but the two of us could relate to each other in the no-man’s land between the professions of law and sociology. He was appointed to the sociology department by the President of Harvard University over the strong objections of his colleagues, and I was appointed as an expert witness at the Abu Ghraib trials over the strong objections of the military judge. For example, the judge allowed to me to serve as an expert witness in the Javal Davis case only if I agreed to do the work pro bono, to which I agreed readily. Riesman’s colleagues objected to the fact that he was too popular to be a “real” academic, and the military judge objected to the fact that my testimony was putting the Army on trial, which, in a sense, it was.

I discovered quickly that the way to survive a cross-examination is to be inner-directed, to be sincere, and to hold rigidly to oneÂ’s gyroscope as to what is verifiably true no matter what the opposing attorney says or does. This is more complicated than it seems at first blush. A fanatic is also rigid, but a fanatic clings to unverifiable, private truths. The truth has to be publicly verifiable, that is to say, something that the jury of oneÂ’s peers will accept, and sincere rigidity on behalf of such publicly verifiable truths is usually convincing. It thereby leads to consequences that go far beyond the particular event or exchange. Let me illustrate this with an example.

During the Sabrina Harman court martial for the Abu Ghraib abuses, the military judge and prosecutor would not allow the words “Guantanamo” and “Afghanistan” to be mentioned in any testimony. Perhaps both were following their inner-directed gyroscopes that the Army should not be put on trial and only the soldier was on trial. Their publicly stated reasons were that Abu Ghraib had no connection to abuses at Guantanamo and Afghanistan. In any case, Harman’s defense hinged on the fact that she and the other so-called “rotten apples” did not dream up the abuse on their own but were following unlawful techniques that had “migrated” from US installations at Gitmo and in Afghanistan. When I mentioned on the witness stand that these abusive techniques did, indeed, originate in and migrated from Gitmo and Afghanistan, the military judge stopped the trial and asked the jury to leave the courtroom. He argued with the defense attorney, Frank Spinner, at length as to whether I should be permitted to say this in open court. The judge demanded to know my evidence. Spinner responded that it came from a US government reported authored by James Schlesinger. The prosecutor argued that the Schlesinger Report is not a bona fide learned treatise, and is inadmissible as evidence. Spinner argued and cited the UCMJ (Uniform Code of Military Justice) that government reports are considered on par with learned treatises. This “hanging judge,” as he was called by the courtroom staff, was put in the difficult position of adhering to his rigid and laudable love for the Army, the demands of his role to be rigidly objective, and considering the prosecutor’s claim that statements in a US government report on Abu Ghraib might not true. The judge chose to allow my testimony, and the jury was called in. When I repeated my citation from this report, the prosecutor again objected, and this time the judge sent me out of the courtroom. I was genuinely perplexed, but convinced myself again that a courtroom is nothing like a classroom. They argued some more, and eventually I was called back in and allowed to state an obvious truth which is verified by multiple sources, that the abusive techniques migrated from Gitmo and Afghanistan to Abu Ghraib and were part of a widespread pattern, not an idiosyncrasy dreamed up by the low-ranking soldiers. By this point, the jury was clearly attentive, and the testimony visibly registered on their facial expressions. Harman received the lightest sentence of all the seven defendants in the Abu Ghraib scandal.

The parallel to the Operation Iron Triangle case is the following: The trial of the accused soldier, Corey Clagett, was cancelled and he made a plea bargain in which he pleaded guilty in order to avoid the possibility of a life sentence without parole. This situation is much more dramatic than asking the jury or a witness to leave the courtroom so as to avoid the disclosure of painful truths that would, indeed, put the Army on trial. The fact that Clagett’s trial by military jury was cancelled meant that his Brigade Commander, who was scheduled to testify in the trial in exchange for immunity from prosecution, would not have to and did not testify concerning the strange and new ROE that he supposedly issued. There is no need to question the motives of any of the attorneys or officials involved in any of these decisions regarding the trial. All the various actors in the legal drama were doing their jobs. Typically, judges and opposing attorneys jockey as to what information will be disclosed versus withheld from open trial. Based upon my experience as an expert witness, I can conclude that only a small fraction of the overall evidence is ever used during a trial; a smaller portion makes it through the filter of adversarial procedure and cross-examination; and the tiniest portion makes it through media filters to the public at large, the real “jury of one’s peers.” Perhaps it is for this reason that the public is often shocked and outraged by verdicts. It is usually not privy to the process that leads to the verdicts and sentences.

Yet the sworn affidavits and other documents that were made available to me by the government so that I could prepare to testify did not disappear even if the trial did vanish. The sworn statements now became “research data” in my more familiar domain of academic sociology. There is something truly wondrous about the transformation of these legal documents into data in the context of Army as well as American, inner-directed principles. A sworn statement is a solemn, legal document, admissible as evidence in trials and also the starting point for evidence, discovery, and cross examination. The Army’s judicial system mandates that both the prosecutorial and defense teams have access to sworn statements. The First Amendment of the US Constitution is interpreted to mean that the government does not hold a copyright to the statements, because they belong to “the people.” In these regards, it is clear that inner-directed standards derived from the Constitution still hold in the United States, which truly may be regarded as a free and open society in comparison with many other societies.

In quoting from the sworn statements as research data, I have kept the misspelled words, the colloquial expressions, the military jargon, and in sum, all the data as it exists without any changes. I felt that this was important for historical purposes, and also because the minute details of what the soldiers and officers said, wrote, and felt reveals aspects of the case whose importance may not be immediately evident but whose importance may come to be realized in the future. Some of the statements include questions from the investigators as well as answers by the soldiers. Some are typed and some are handwritten. When read in sequential order over the course of three different time periods, the statements offer insight into the process of the social construction of the reality that was finally presented by the Army. At the same time, the statements offer insight into social constructions of reality the Army rejected.

In this book, I avoid scrupulously issues and questions as to what “really” happened or the “real” motivations of any of the actors. I accept from the outset the sociological premise that “reality” is socially constructed. Lawyers share this assumption, only they call it “building a case.” Reality, whatever it is, can only be known through representations, and it never speaks for itself. There is no need to investigate or cite the many learned treatises on “reality” in sociology, philosophy, or related fields, which often come across as incomprehensible even to learned experts. The pragmatic, and important, point is simply this: The soldiers were apparently convinced that they were ordered to follow an ROE that compelled them to kill every military-aged Iraqi male on sight. Was the ROE lawful or unlawful, and if it was unlawful, who was responsible for following it?

One cannot escape the social construction of reality even in pursuing these pragmatic questions. By strict, inner-directed, gyroscopic standards, this new ROE was unlawful. However, it is well known that the Bush Administration has opted for malleable standards of what is lawful versus unlawful with regard to the Geneva Conventions. Ironically, this Republican, and ostensibly conservative, administration has used other-directed approaches to the laws of warfare. And when it comes to the doctrine of command responsibility, the situation seems to be even more flexible.

For example, at the Kordic trial at The Hague, as at all the other trials at the International Criminal Tribunal for the Former Yugoslavia (ICTY), the central issue was the doctrine of command responsibility. I know from personal observation and experience at this trial that the judges interpreted this doctrine to mean that a commander (civilian or military) was responsible for the war crimes committed by subordinates, even if the commander did not directly order or even know of the unlawful behavior by the subordinates. The ICTY took its cues from the Nuremberg trials and the Yamishita case, and pronounced that commanders were responsible even if they did not pull the trigger or give the order, by virtue of being commanders who should have known and should have taken steps to prevent the commission of crimes by their subordinates. Because I am not a lawyer, I am less interested in the legal precedents or consequences of the doctrine of command responsibility, and because I am a sociologist, I am more interested in the night-versus-day difference in US military courts martial regarding the way that this doctrine is socially constructed. US military judges routinely hold the opposite standard, that it is the low-ranking soldierÂ’s duty to disobey an unlawful order.

The contrast in perceptions of responsibility for war crimes could not be more pronounced. At The Hague, the former President of Yugoslavia, Slobodan Milosevic, as well as many other high-ranking commanders, were put on trial for war crimes under the doctrine of command responsibility. In the United States, low-ranking soldiers were court martialed under the principle enshrined in the UCMJ that obedience to unlawful orders is not a defense. Both attitudes are inspired by the Nuremberg trials, albeit in starkly divergent ways. The ICTY seems to reject the excuse for World War II atrocities, namely, “We didn’t know,” and insists that the commander should have known what his or her subordinates did unlawfully. The US military system seems to reject the excuse for World War II atrocities, namely, “We were just following orders,” and insists that low-ranking soldiers are responsible for obeying unlawful orders. Which approach is more just? I will always remember one of the ICTY judges, Justice Patrick Lipton Robinson, saying to me, while I was on the witness stand, that perhaps both approaches are extreme and the most just perspective lies somewhere between these two extremes. This is an issue that will be resolved by judges, jurists, and legal scholars, and I will not venture into their domain. The more important point is that inner-directed, universal, gyroscopic standards for these crucial issues do not exist.

However, as a sociologist, I take note of the pragmatic consequences of the US approach to war crimes, which typically is to prosecute low-ranking soldiers for failure to disobey unlawful orders in military courts martial rather than resorting to international tribunals that could prosecute high-ranking civilian and military leaders. This approach leads to a kind of Freudian compulsion to repeat historical errors since the Vietnam War such that commanders sometimes establish unlawful ROE that lead to “search and destroy” missions or wanton killing of civilians, and commanders generally escape responsibility for such policies. More importantly, American society as a whole is not compelled to examine or be responsible for the unlawful policies that are established in its name, because the resulting trials do not focus on the author of the unlawful ROE but on the failures of the low-ranking soldiers.


Reviews
John Jay College, CUNY | More »
TIME Magazine | More »
University of Hull, UK | More »
Brunel University, West London | More »
Chronicle of Higher Education | More »
Book News | More »

Pages 194
Year: 2008
LC Classification: DS79.766.T54M47 2008
Dewey code: 956.7044'3420973--dc22
BISAC: LAW068000 LAW / Military
BISAC: LAW051000 LAW / International
BISAC: POL012000 POLITICAL SCIENCE / Political Freedom & Security / International Security
Soft Cover
ISBN: 978-0-87586-672-7
Price: USD 23.95
Hard Cover
ISBN: 978-0-87586-673-4
Price: USD 33.95
eBook
ISBN: 978-0-87586-674-1
Price: USD 23.95
Available from

Search the full text of this book
Related Books
• War Trauma: —    Lessons Unlearned, From Vietnam to Iraq - Vol. 3 in A VIETNAM TRILOGY
• Fear Anger and Failure: —   A Chronicle of the Bush Administration's War Against Terrorism
• Occupation and Insurgency: —   A Selective Examination of The Hague and Geneva Conventions
• The Good Soldier on Trial —   A Sociological Study of Misconduct by the US Military Pertaining to Operation Iron Triangle, Iraq