Respond to this Article November 2004

The Road to Abu Ghraib

The biggest scandal of the Bush administration began at the top.

By Phillip Carter

A generation from now, historians may look back to April 28, 2004, as the day the United States lost the war in Iraq. On that date, “CBS News” broadcast the first ugly photographs of abuses by American soldiers at Baghdad's Abu Ghraib prison. There were images of a man standing hooded on a box with wires attached to his hands; of guards leering as they forced naked men to simulate sexual acts; of a man led around on a leash by a female soldier; of a dead Iraqi detainee, packed in ice; and more. The pictures had been taken the previous fall by U.S. Army military police soldiers assigned to the prison, but had made it into the hands of Army criminal investigators only months later, when a soldier named Joseph Darby anonymously passed them a CD-ROM full of prison photos. The images aroused worldwide indignation, and illustrated in graphic detail both the lengths to which the United States would go to get intelligence, and the extent to which those efforts had been corrupted by the exigencies of the difficult war in Iraq.

Two days later, The New Yorker published a report on Abu Ghraib by Seymour Hersh. Hersh won a Pulitzer Prize in 1970 for his reporting on the U.S. Army's atrocities in Vietnam; now he had come full circle, documenting the full extent of the abuses at Abu Ghraib and the Army's initial efforts to investigate them. Hersh's reporting—which forms the nucleus of his new book, Chain of Command—helped launch nearly a dozen different criminal investigations into what former vice president Al Gore dubbed “the American Gulag,” the extraterritorial chain of prisons and detainment centers, stretching from Guantanamo Bay to Afghanistan, set up by the Bush administration to hold suspected terrorists. More than 300 instances of abuse in those facilities, from November 2001 to as recently as March 2004, have been alleged since then. To date, eight out of 11 investigations have been completed. They have produced thousands of documents, witness interviews, military orders, emails, and PowerPoint briefings, with each one telling a small piece of the story of how America's vaunted all-volunteer professional military lapsed into some of the most unprofessional and despicable conduct of its history. Forty-five soldiers have been recommended for courts-martial, and 23 others for summary discharge. Nearly one year after the first sadistic acts took place, the extent of the abuses remains unknown. But by all indications, the worst revelations are yet to come. In closed-door presentations before Congress, Pentagon officials revealed evidence of crimes ranging from the rape of female detainees to the sexual abuse of minors held at Abu Ghraib.

There is no doubt that the abuses at Abu Ghraib stand as an indelible stain on the honor of the American military. What is less clear is the degree to which the resulting scandal has damaged our national security and undermined our efforts to bring peace to Iraq and win the war against radical terrorism—a war that is as much a fight for the political and moral high ground as it is a shooting war that pits American soldiers against Islamist ones. America suffered a huge defeat the moment those photographs became public. Copies of them are now sold in souks from Marrakesh to Jakarta, vivid illustrations of the worst suspicions of the Arab world: that Americans are corrupt and power-mad, eager to humiliate Muslims and mock their values. The acts they document have helped to energize the insurgency in Iraq, undermining our rule there and magnifying the risks faced by our soldiers each day. If Osama bin Laden had hired a Madison Avenue public relations firm to rally Arabs hearts and minds to his cause, it's hard to imagine that it could have devised a better propaganda campaign.

The damage done by Abu Ghraib might at least have been minimized had the administration pursued a strategy of publicly and sincerely holding accountable those responsible for it. Instead, it has done something close to the opposite. The Bush administration has condemned the abuses as the work of a “few bad apples,” while working diligently to get the story off the front pages and out of the presidential campaign. In a meeting with Human Rights Watch executive director Kenneth Roth shortly after the scandal broke, reports Hersh, National Security Adviser Condoleezza Rice argued that the abuses resulted not from the president's policies in the war on terrorism, but from “implementation of policy” by the military. The various committees and commissions investigating the scandal have more or less abetted this line of defense. Discussing the results of the independent investigation into Abu Ghraib he chaired, former defense secretary James R. Schlesinger explained that while “institutional and personal responsibility” for the abuses went all the way to Washington, they were rooted in the sadism and brutality of a few individuals—“Animal House on the night shift,” as he put it. While the military's civilian leadership was guilty of “indirect responsibility,” Schlesinger told reporters, Donald Rumsfeld's resignation “would be a boon to all of America's enemies.”

Go past the executive summaries and press releases, however, and a careful reading of the reports reveals a different story. The devastating scandal of Abu Ghraib wasn't a failure of implementation, as Rice and other administration defenders have admitted. It was a direct—and predictable—consequence of a policy, hatched at the highest levels of the administration, by senior White House officials and lawyers, in the weeks and months after 9/11. Yet the administration has largely managed to escape responsibility for those decisions; a month from election day, almost no one in the press or the political class is talking about what is, without question, the worst scandal to emerge from President Bush's nearly four years in office.

Defenders of the administration have argued, of course, that there is no “smoking gun”—no chain of orders leading directly from Defense Secretary Donald Rumsfeld to Pfc. Lynndie England and her co-conspirators. But that reasoning—now largely accepted within the Beltway—betrays a deliberate indifference to how large organizations such as the military actually work. In any war, civilian leaders set strategic aims, and it falls to commanders and planners at successively lower levels of command to refine that guidance into executable orders which can be handed down to subordinates. That process works whether the policy in question is a good one or a bad one. President Bush didn't order the April 2003 “thunder run” into Baghdad; he ordered Tommy Franks to win the war and the Third Infantry Division's leaders figured out how to make it happen. Likewise, no order was given to shove light sticks into the rectums of Iraqi prisoners at Abu Ghraib. Nevertheless, the road to the abuses began with flawed administration policies that exalted expediency and necessity over the rule of law, eviscerated the military's institutional constraints on the treatment of prisoners, commenced combat with insufficient planning, preparation and troop strength, and thereby set the conditions for the abuses that would later take place.

But there's a reason why most of the investigations into Abu Ghraib have punted on the essential question of executive responsibility. To judge the administration's decisions to have been wrong, after all, requires us to discern what the right decisions would have been. And to do that, we must put ourselves in their shoes. Given the particular conditions faced by the president and his deputies after 9/11—a war against terrorists, in which the need to extract intelligence via interrogations was intensely pressing, but the limits placed by international law on interrogation techniques were very constricting—did those leaders have better alternatives than the one they chose? The answer is that they did. And we will be living with the consequences of the choices they made for years to come.

Breaking the law

War has always had its own codes and rules, but the modern laws governing armed conflict were developed during the 20th century, when industrialized nations fought large, mechanized, bloody wars of attrition. World Wars I and II—featuring aerial combat, bombing campaigns, chemical and trench warfare, and the slaughter of soldiers and civilians on an unprecedented scale—spurred the four Geneva Conventions of 1949, which laid out basic principles of conduct for civilized nations. These treaties aimed to distinguish between combatants and civilians, and to the extent possible, to minimize the suffering inherent in war. But like their predecessors—the prisoner-of-war treaty signed in Geneva in 1929, the Union Army's Lieber Code of 1863, the 1864 Geneva Convention, and the 1907 Hague Conventions, among others—the Geneva Conventions of '49 were fundamentally backward-looking, reflecting the dominant nature of warfare at the time: large air and land campaigns between states employing relatively symmetrical forces. When the treaties mentioned paramilitaries and non-state guerrillas, they were typically treated as bandits who played only a tangential role in the conduct of warfare. The conventions wholly failed to anticipate the wave of unconventional warfare that would sweep the world after World War II, from U.S. and British-sponsored guerillas in Greece to Communist-backed insurgents in Vietnam to the asymmetric warfare practiced by the terrorists of today. By the late 1990s, conflicts in the Balkans and elsewhere made it clear that paramilitaries, terrorists, and other irregular combatants—far from fighting on the margins—had become the principal security threat to much of the world, including the United States. Yet international law continued to treat them as mere criminals, best dealt with through indictments rather than artillery.

Such was the legal paradigm in place when al Qaeda attacked the nation on September 11, 2001. By the conventional laws of war, al Qaeda was neither a state nor a military; its operatives were neither soldiers nor civilians. Within weeks of the 9/11 attacks, the United States launched its armed response in Afghanistan—and, almost immediately, legal questions emerged which showcased the difficulty of pounding the round problem of al Qaeda into the square hole of existing international law. Unlike a national army, al Qaeda and the Taliban militia wore no conventional uniforms, and often did not operate in conventional units that could be identified or distinguished from the civilians among whom they hid. Most importantly, al Qaeda rejected the very notion of the laws of war, of protecting civilians when at all possible. Indeed, the terrorists' apocalyptic doctrine expressly made civilians—in their view, agents of Western cultural and economic imperialism—legitimate targets.

The inherent nature of stateless terrorism presented the Bush administration with another quandary, this one linked to the desperate need, in the months after 9/11, for reliable intelligence about the shadowy force that had just murdered more than 3,000 Americans. In a conflict between states, captured soldiers rarely possess strategically useful information; they may know about their own unit, or the plans for the next ground offensive, but rarely much more than that. A German corporal, or even a colonel, was unlikely to know much in 1944 about the big picture on the Western Front, let alone plans for V-2 strikes on London. Thus nations at war could, in the past, usually afford to treat prisoners relatively well—because doing so did not require trading away significant intelligence opportunities. The war on terror—an asymmetric war in which small numbers of combatants could inflict catastrophic damage—changed that equation. Unlike states, where the most important intelligence might concern evidence of a nuclear capability or the presence of tanks near the border, the most valuable intelligence about al Qaeda concerned its plans and intentions. Moreover, rank-and-file enemy operatives might well possess such information; were U.S. authorities to capture someone from a terror cell on the eve of its next attack, they couldn't afford simply to store him in a jail cell until the war was over. (Similar conditions obtained once the war in Iraq shifted from a conventional war fought largely between designated combatants to an insurgency fought between American soldiers on the one side, and a hodgepodge of guerrillas and irregulars on the other.)

In military terms, the global war on terror shifted the calculus of intelligence-gathering almost entirely towards human intelligence (HUMINT) of the kind that can only be produced through clandestine infiltration, interrogation, and other means. Satellites, surveillance systems, giant listening devices, and ground-penetrating radar won't alert the CIA and FBI to the next terrorist attack, or tell the U.S. Army where the insurgents have placed explosives on the highway between Fallujah and Baghdad. Yet here, too, the Bush administration had a problem: Over the years, the intelligence community's HUMINT capabilities had atrophied considerably, in favor of “technical” intelligence collection systems like satellites and electronic surveillance. Indeed, where the Middle East was concerned, the CIA, FBI, and military had virtually no HUMINT assets in place before or immediately after 9/11 to provide intelligence about the terror organization that had hit the United States. “At the time of the attacks, it's possible that there wasn't a single such [clandestine] officer operating today inside Islamic fundamentalist circles,” Hersh writes in, based on what he says are extensive interviews with current and former officials in the U.S. intelligence community. Writing in the Atlantic in the summer of 2001, former CIA officer Reuel Marc Gerecht summed it up this way: “Operations that include diarrhea as a way of life don't happen.” The only way to gather intelligence about global terrorism would be to extract it from the terrorists themselves.

Prisoner's dilemma

These problems converged with the first mass capture of prisoners at Mazar-i-Sharif in Afghanistan in November 2001. Under the Geneva Conventions, prisoners of war are accorded certain rights and privileges—among them humane treatment, freedom from coercive interrogation, and repatriation at the end of active hostilities. But the Pentagon and CIA needed to gather HUMINT from these detainees about al Qaeda and its global terror network. As the Bush administration saw it, its choice was clear. Al Qaeda posed a clear and present danger. The nation desperately needed to gather intelligence about that threat. Either they could toss out the rule book and operate by any means necessary, or America would be attacked again.

Any president in that situation would have had to go beyond the bounds of existing law. But in truth, there were choices beyond either action or acquiescence. Well before Mazar-i-Sharif, legal scholars and philosophers had grappled with the question of whether a nation could ever justify the use of torture, assassination, hostage-taking, mass internment, and other measures. One course would have been to open up a series of narrow loopholes in the law, with tight oversight, and require that top leaders approve every use of extraordinary measures. This is more or less what former president Bill Clinton did during the 1990s, when he secretly signed an order essentially legalizing the assassination of Osama bin Laden should the opportunity arise. According to the order, the president had to personally sanction bin Laden's death—a measure framed largely at the insistence of Agency officials who wanted to ensure their agents would not be found culpable if anything went wrong. (In the end, when the opportunity did present itself—a planned 1998 raid by the CIA on the al Qaeda camp at Tarnak Farms near Kandahar—the Clinton White House was talked out of it.)

The other option was to sanction a wholesale abandonment of the law and delegate the responsibility for its violation down the chain of command to front-line troops. And that's precisely what the Bush administration did. They began with the plausible argument that the Geneva Conventions were anachronistic in an age of asymmetrical, non-state warfare. Al Qaeda didn't wear uniforms or fight according to the laws of war, they reasoned, and so they were not necessarily entitled to the conventions' protections. But the lawyers—including White House counsel Alberto Gonzales, Defense Department general counsel William Haynes II, Vice President Cheney's counsel David Addington, and Jay Bybee of the Justice Department (who now sits on the Ninth Circuit Court of Appeals)—went further. They advised the president to sign a blanket statement of policy that the men captured in Afghanistan would not be subject to the Geneva Conventions, and that by executive fiat, they would all be declared “unlawful enemy combatants,” a category that does not exist in international law. White House, Justice Department and Pentagon lawyers also pushed President Bush to sign a secret finding on Feb. 7, 2002, that would have far-reaching consequences for the nation and the world. “I… determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world,” this document determined, adding that the White House also had “the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.” For all intents and purposes, these memoranda gutted the Geneva Conventions.

Within months, those first legal memoranda were joined by more focused opinions from the administration's top lawyers, each authorizing specific tactics the Bush administration wanted to use in the global war on terrorism. In 2002 and 2003, attorneys in the departments of Justice and Defense drafted memoranda outlining what international and domestic law would allow with respect to “coercive interrogation” practices, eventually settling on a list of dozens of tactics, among them sleep deprivation and the use of stressful and painful physical positions. Such tactics, argued the lawyers, didn't run afoul of the Geneva Conventions because the President had already unilaterally declared those conventions null and void with respect to al Qaeda and other terrorist detainees. This opinion also rendered the U.S.'s own federal war-crimes statute impotent, because that law defines a war crime as a violation of the existing international laws of war, including the Geneva Conventions. To be enforced, that law depends on the existence of a Geneva Convention violation; similarly, the Uniform Code of Military Justice prohibits war crimes, but without a Geneva Convention violation, there was no war crime.

The Bush administration's memoranda also took an excruciatingly narrow view of the federal torture statute, essentially defining it out of existence for the purposes of interrogations in Afghanistan and Guantanamo Bay: “A defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control.” In other words, interrogation tactics which accidentally result in severe pain or suffering were not enough to merit the label of torture. Only tactics which were specifically intended to cause severe pain and suffering—and performed by professional torturers with the knowledge of how their tactics would affect the body—would fit the definition under federal criminal law. Under this reasoning, amateur interrogators (such as the reserve military police soldiers assigned to Gitmo) could never be guilty because they lacked the skill and experience to know the exact causal links between their tactics and the pain and suffering those tactics would cause. The Justice Department also took the view that only someone who specifically intended to cause extreme pain and suffering, on the level of organ failure and death, would be guilty. This interpretation set a bar so high that virtually no prosecutor would ever be able to meet it in court, and opened the door to any use of coercive interrogation tactics that fell just shy of the “severe pain and suffering” threshhold. Justice's interpretation ensured no U.S. defendants would ever face torture charges and made the U.N. Convention Against Torture a dead letter too.

The Bush administration also chose Guantanamo as the site to hold detainees specifically because it was thought to be outside the reach of U.S. courts—and it was, until the Supreme Court ruled in June 2004 that detainees there had the right to ask a federal court for a writ of habeas corpus. In addition, the federal anti-torture statute excluded from jurisdiction military bases and diplomatic missions, such as Guantanamo and Abu Ghraib, a loophole that would remain open until October 2004 when Congress closed it. Thus, in addition to stripping the detainees themselves of rights, the administration picked a place where the law simply had no force—Gitmo provided the perfect legal black hole in which to house detainees and practice the dark arts of interrogation.

One of the problems cited by the Schlesinger report was the disconnect between tactics authorized at Guantanamo, where “unlawful enemy combatants” were held and the Geneva Conventions did not apply, and the tactics authorized in Iraq where the president had said the Geneva Conventions did apply. As guidance from the top filtered down through several layers of command, it became unclear which methods were appropriate for which location, an ambiguity compounded by the movement of individual interrogators and guard force personnel between the two physical locations. One fateful decision was the one to “Gitmoize” the prison operation in Iraq in August 2003, a response to the blooming insurgency there and the failure of the U.S. military prisons in Iraq to produce intelligence about the insurgency. The Pentagon brought Maj. Gen. Geoffrey Miller, the head of the Guantanamo Bay facility, to Iraq to make recommendations on how better to squeeze detainees for information. His prescription: “Detention operations must act as an enabler for interrogation… to provide a safe, secure and humane environment that supports the expeditious collection of intelligence.” Miller imported a number of the non-Geneva Convention techniques from Cuba to Iraq to assist interrogators in gathering information, and by so doing reportedly turned on a spigot of human intelligence, leading, among other things, to the capture of Saddam Hussein. But in his own investigation of the Abu Ghraib abuses, Maj. Gen. Antonio Taguba reported that this extension of Gitmo tactics to Iraq had only exacerbated confusion about what the Geneva Conventions did and did not authorize, and where Geneva applied, to the point that intelligence officers and military lawyers could not define any recognizable lines between the two modes of interrogation. Under the circumstances, it was almost inevitable that the techniques authorized for Gitmo would migrate over to Abu Ghraib.

The investigation by Maj. Gen. George Fay and Lt. Gen. Anthony Jones, which looked at the role of military intelligence units in the abuse scandals, backed up Taguba's findings. According to Gen. Paul Kern, who oversaw the Fay-Jones inquiry, “the people who were conducting the interrogations clearly were feeling a lot of pressure to produce intelligence, as they should have been. That's what the purpose of the interrogation is.” But when they sought policy guidance and legal advice about what they could do to produce intelligence, they got directives back from headquarters “which were never in our view completely clarified … in the end, [headquarters] did not absolutely make it clear what the boundaries were.” An after-action report on the “legal lessons learned” from the wars in Afghanistan and Iraq, authored by the Army's Judge Advocate General (“JAG”) school, found the same thing: “Detainees are a potential source of valuable information, and the motivation to extract that information through interrogation may sometimes create strong temptation to test the limits of the [law of armed conflict]. Questions often concerned the legality of specific proposed interrogation techniques.” Army officers tend to understate these things, especially in after-action reports, so it's no surprise that Gen. Kern and the JAG school phrase their findings so circumspectly. But don't be fooled: This is the military equivalent of shouting from the rooftops.

The memos had another practical effect, which was the evisceration of any legal opposition from the ranks to the proposed methods of interrogations. Military units of a certain size are staffed with JAG officers, chaplains, and other professionals who typically serve as a unit's legal and ethical conscience. In formal and informal ways, they vet operational plans to ensure missions comply with the laws of war. According to Army doctrine, operational orders at the brigade level and above must contain an annex covering the legal implications of the plan, procedures for dealing with prisoners, and other issues. It's not clear to what extent the actions at Abu Ghraib were subjected to this sort of scrutiny before they were implemented. But even if a young JAG officer were to raise objections in the field, it's unlikely they would have gone anywhere. The memoranda from the White House—signed by the commander-in-chief's top lawyer —stamped the interrogation tactics with the imprimatur of legality, ensuring that any dissent from the field would have been ignored.

Finally, the memos directly affected the junior soldiers, like Pfc. England, who now stand accused of torturing Iraqi prisoners. Every new soldier learns in basic training that he or she must follow lawful orders when they are given. But they also learn they must disobey orders—to kill innocent civilians, for example, or torture detainees—that are unlawful, and they cannot invoke “superior orders” as a defense when those orders are illegal. The junior soldiers now charged with abuses at Abu Ghraib should have objected to any orders to abuse prisoners, because they were patently immoral and unlawful. But in reality, that's easier said than done. After all, the orders to interrogate prisoners by coercion had come from the very highest levels of the administration.

They had been filtered through every level of the chain of command without objection. Senior administration lawyers with Ivy League credentials and decades of experience had approved these procedures, including some that were startlingly close to those depicted in the Abu Ghraib photographs, such as the use of stress positions and hoods. It may be unrealistic to expect that a junior enlisted soldier such as England, or even her immediate supervisor, Staff Sgt. Ivan Frederick, would have the knowledge or the temerity to contradict such orders when they were given. The effect of the Bush administration's exhaustively creative research into breaking the rules was virtually to ensure that every player in this tragedy went along and followed orders.

Unintended consequences

Two other decisions by the Bush administration also proved fateful, both of them made long before the Iraq war began. One was the administration's attempt—directed by Secretary of Defense Donald Rumsfeld—to run the Iraq war with fewer soldiers in place than considered military opinion believed necessary. The resulting shortage of troops set the conditions for abuse at the prison. The after-action report by the Army's JAG school specifically blames troop shortages for the chaotic and disorganized detainee operations in Iraq, sharply criticizing the decision to delay the deployment of the 800th Military Police Brigade—the unit responsible for Abu Ghraib—until well after combat had begun. From the moment it touched ground, the 800th was behind the eight ball, and it's not clear the brigade ever got a handle on the detainee mission.

“There was chaos at Abu Ghraib… there was a very low ratio of military police to the number of inmates, which ranged as high as 8,000,” Schlesinger noted in announcing his panels' findings last summer. “At Guantanamo, which is something of a model, the ratio of military police to detainees was one to one. At Abu Ghraib, the ratio of military police was one to 75.” Add in the pressure from the Bush administration to produce intelligence, and take away the legal constraints of the Geneva Conventions, and you can appreciate what a pressure cooker Abu Ghraib became. Even had there been no bad apples in the 372nd MP Company, with which Pfc. England served, abuses were almost inevitable.

The second fateful decision was to rush those troops that were allocated to Operation Iraqi Freedom into battle too quickly. During the first Gulf War, military planners set aside months to build a war machine in the Arabian desert, allowing units to stabilize and train together at length before the start of hostilities—time that was especially valuable to the hundreds of thousands of reservists called up for the war. (Indeed, it's worth noting that, although American soldiers took as prisoners tens of thousands of Iraqis soldiers during the first Gulf War, allegations of abuse were sparse.) But the second Gulf War was launched in a hurry, even before most of the forces assigned to it were in place. Many have pointed out that, had the Bush administration not “rushed to war,” U.N. inspectors might have been able to show that Iraq had no WMD capability; at the very least, the White House would have had time to line up more support from our allies. Less widely understood is that a longer delay would have given military police and civil affairs units—most of which come from the reserves—time to arrive, acclimate, and train longer together, bringing them up to readiness levels approaching those of active duty troops.

The situation in Iraq deteriorated rapidly after the United States took Baghdad, with the result that reserve units had to be called up and immediately thrown into the fight. The 372nd MP Company hit the ground in Kuwait in May 2003, and was immediately sent into Iraq to patrol the town of Al-Hillah with Marines and Iraqi police units. Although its soldiers received pre-deployment training in the states after their February 2003 call-up, they received nothing like the pre-war training of their active-duty brethren in the Third Infantry Division, some of whom spent a year in the Kuwaiti desert before actually crossing into Iraq in March 2003. When the 372nd went into combat, it was not ready for war. Perhaps more importantly, the 372nd MP Company's training records indicates that it barely trained at all on handling prisoners of war, let alone managing a maximum-security prison even though “internment and resettlement” operations are a bread and butter MP mission. The Taguba report found that this unit and its parent headquarters—the 320th MP Battalion and 800th MP Brigade, both reserve units—suffered from chronically poor training, resourcing, and leadership. These problems within the MP units combined with atrocious planning and resourcing decisions in Washington to create a formula for disaster.

Creative tactics

The duty force at Abu Ghraib, then, had ambiguous policy guidance from Washington, too few men, and too little training. What happened next should hardly have been a surprise. Take, for example, the guards' implementation of the interrogation practices authorized by the Pentagon. Interrogation tactics like “sleep deprivation” sound entirely too sterile when taken out of context—after all, who hasn't been deprived of sleep, whether by a newborn baby or a last-minute project at work? What's crucial to understand is how such methods are translated into practice in the field. As Hersh writes:

In May 2004, I interviewed a company captain in a military police unit in Baghdad who told me about an incident the previous fall in which he was approached by a junior military intelligence officer who requested that his M.P.s keep a group of detainees awake around the clock until they began talking. “I said, 'No, we will not do that,'” the captain said. “The M.I. commander comes to me and says, 'What is the problem? We're stressed, and all we are asking you to do is to keep them awake.' I ask, 'How? You've received training on that, but my soldiers don't know how to do it. And when you ask an eighteen-year-old kid to keep someone awake, and he doesn't know how to do it, he's going to get creative.'”

Chain of Command
by Seymour Hersh
Harper Collins, $25.95

What, exactly, does “creative” mean? Consider the iconic image of Abu Ghraib: a hooded Iraqi man standing on an Army rations box with wires extending from his arms in a grotesque pose almost reminiscent of a crucifixion. It turns out that this was among the tactics employed by untrained prison guards and interrogators as a means both of instilling fear and of keeping a detainee awake, in faithful execution of the “sleep deprivation” tactic authorized by the secretary of defense. Even though the wires were actually inert, the detainee was likely told that he would be electrocuted if he moved off the box, which he would do if he fell asleep. And thus, so modestly-named a tactic as sleep deprivation was transformed into something far more sinister. The same tactic could be used in conjunction with the “stress position” technique approved by the Pentagon, according to one former intelligence officer I talked to. A hooded person forced to stand still on a box for hours will quickly lose his sense of equilibrium and orientation. Lower back pain will eventually develop from the strain of remaining upright for such a long time; pain in the legs and feet will follow as blood pools there. Held for several hours without movement, such a position can induce excruciating pain, particularly for detainees not in top physical condition. When the image first surfaced, these officers said they were not surprised by the tactic. It was merely a creative attempt by amateurs to achieve the results desired by their leaders—an unfortunate twist on the old maxim of Gen. George S. Patton: “Never tell people how to do things. Tell them what to do, and they will surprise you with their ingenuity.”

Weighing torture

There are few slopes more slippery than the one from small war crimes to large ones, as evidenced by the incremental movement of U.S. interrogation tactics from “a little bit of smacky face,” as one intelligence officer described the officially-sanctioned tactics at Gitmo to The Wall Street Journal, to the abuses depicted in the Abu Ghraib photographs. For decades, the laws of war have stood as a braking point on this slippery slope, establishing bright-line rules about what is forbidden even in the heat of combat. Generally speaking, absolute rules are the only ones that work well in wartime. Where only vague guidance exists, junior military leaders may exploit ambiguity to employ tactics that fall outside the boundaries of acceptable conduct. In war, there is always some battlefield exigency or necessity which can be invoked as a justification before or after the fact. It's one thing to argue that there was a compelling need for these tactics, and that therefore they were implicitly authorized in certain situations but always tightly controlled; it's quite another to loosen the rules altogether and let junior soldiers take the initiative to do what they think must be done.

If our political leaders decide that Khalid Sheikh Mohammed needs to be immersed in water so that he spills his guts about the next terror plot, I can accept that—and I suspect the rest of the world could, too. But those who take action should also take responsibility for it. Our soldiers need a better legal framework to deal with these situations, one that gives commanders the flexibility to do what must be done while not stepping on our values or hurting our strategic interests in the process.

First and foremost, the framework should maintain existing rules about treating prisoners, because those should govern all but the most extraordinary of cases. Second, when a departure is necessary, we should require authorization from the White House and Pentagon articulating both the scope of the authorization and the justification for doing so. Such authorizations might mirror the kind of court documents required of the Justice Department when it applies for a secret warrant under the Foreign Intelligence Surveillance Act. This will let our soldiers know why they are breaking the rules, and minimize the cognitive dissonance that led to so much confusion at Abu Ghraib about what was allowed and forbidden. Third, the services should actively rely on their lawyers, chaplains and career non-commissioned officers to serve as the legal, moral and institutional checks respectively on this kind of activity. All three of these systems failed at Abu Ghraib. Fourth, to the extent practical, we must add some measure of transparency to detention operations. The military can't publicize exactly what it's doing to interrogate prisoners, because that would destroy the value of these methods, but we should recognize the value of good publicity and let the Red Cross see as much as possible.

Finally, the nation's political leaders must constantly reevaluate these departures from the law, to ensure we are getting something in exchange for our calculated decision to break the law. A measured approach to this problem will ensure that breaches of international law, if they must occur, will take place in an orderly and disciplined manner, allowing soldiers to resume their normal treatment of prisoners immediately afterwards. What's wrong is to loosen the restrictions across the board or abandon them altogether; once discipline is lost, it is nearly impossible to restore.

There's a reason why career military officers are among those who have expressed the greatest revulsion over the Bush administration's cavalier treatment of the laws of war. These officers aren't soft-minded idealists who believe in the rule of law for its own sake. Quite the contrary; three generations of military officers have grown up respecting the Geneva Conventions for extremely practical reasons. When the administration publicly declared in February 2002 that those conventions would not apply to the detainees at Guantanamo Bay, many of America's soldiers worried that this policy would be reciprocated by our nation's enemies, should Americans themselves ever be captured in a future conflict. It is worth noting that Secretary of State Colin Powell, who saw combat in Vietnam and helped run the first Gulf War, strongly opposed this move, as did his chief legal adviser, William Howard Taft IV. The principle of reciprocity has long served as one of the chief mechanisms for compliance with the laws of war. The Bush administration's approach has put future generations of U.S. military personnel in grave risk of mistreatment.

But our overriding of international law has also had much broader implications for U.S. interests. Although America's record in establishing and complying with the laws of war has stood the test of time, the rhetoric of realism and national interest reigned supreme during most of the Cold War; international law was relegated to the back burner. Something changed around the time of the first Gulf War. In his arguments for that war against Iraq, then-President George H.W. Bush invoked the language of international justice. The case for the first Gulf War hinged on international law and the need to maintain the rule of law among nations. Bill Clinton made similar arguments to justify American interventions in Haiti, Bosnia, and, most spectacularly, Kosovo, where principles of international justice were used to trump the principle of national sovereignty in order to justify the NATO air war against Serbia. Because we convinced the world that our interest was to apply international standards of conduct, the United States was able to make the case that the sovereignty of a country could be breached in the service of a larger moral and security goal—a major and salutary watershed in international affairs. Our embrace of those ideals magnified our power and increased the chances that we would succeed, as we did in Kosovo.

The Bush administration, however, has altered course. Few students of international law would have challenged America's near-instant retaliation against al Qaeda's Taliban hosts. But then came the decisions to cast aside the Geneva Conventions and then to invade Iraq without the sanction of the U.N. Security Council. These moves occurred at roughly the same time as the Bush administration's unilateral decision to scrap the Kyoto Protocol, withdraw from the International Criminal Court's Rome Treaty, and obstruct its implementation by negotiating deals to keep U.S. citizens out of its jurisdiction, and abandon the Anti-Ballistic Missile treaty in order to pursue a missile-defense system. All of a sudden, the world's leader in international principles had become, in some sense, the world's scofflaw. To a world accustomed to watching American invocation and support of the rule of law and the import of international institutions like the United Nations, WTO, and NATO, the reversal was startling.

It's true that the administration has garnered some human intelligence through its use of torture. Arguably, some intelligence gathered this way helped lead to the capture of Saddam Hussein in December 2003. But it's unlikely that torture would be a useful tool day-to-day; a vast body of literature on the subject indicates that, on the contrary, coercive interrogations tend to elicit unreliable intelligence more than they do useful information. And whatever gains have come from our use of torture have come at enormous cost—to the historic commitment of this nation to liberal ideals and the rule of law, to the safety of American soldiers, and to the ultimate national security of the nation. In warfare, the United States cannot succeed strategically simply by vanquishing its foes on the battlefield; it must secure the peace as well, which requires the winning of hearts and minds.

Regardless of America's past reputation, it cannot hope to ever win the popular support of a country unless it acts both with just cause and just means. As political theorist Michael Walzer has written, when a nation must prevail in the political and moral dimensions of conflict as well as the strategic and tactical theaters, the pursuit of justice becomes virtually a military necessity. No one can dispute that the United States won a stunning tactical victory over the Iraqi army in April 2003. But the perceived injustices committed by the United States during our subsequent occupation of Iraq may well deliver us a strategic defeat. Al Qaeda confederates, such as the Ansar al-Islam terror network operating inside Iraq, have incorporated the pictures from Abu Ghraib into their recruiting literature. Abu Musab al-Zarqawi's Tawhid and Jihad movement has also benefitted from the Abu Ghraib scandal, citing abuses of Iraqi women there as the justification for the kidnapping and beheading of several Western hostages. It is clear that Abu Ghraib has given Iraqi insurgents—and, potentially, terrorists around the world—a new raison d'etre.

Being seen as the good guys—and more importantly, actually being the good guys—helps to win battles on the ground, too. Those tens of thousands of Iraqis who surrendered during the two Gulf Wars did so because they believed they would be treated better as prisoners by the United States than as soldiers by the Hussein government. But in the wake of Abu Ghraib, more future battles fought by America will have to be fought to the death. Similarly, civilians in the places where we fight can no longer be expected to greet us as liberators. For as long as the memories of Abu Ghraib linger, our soldiers will be greeted with suspicion wherever they go.

The world will forgive—and indeed, secretly applaud—those occasions, such as Kosovo, where we ignore the letter of the law or sidestep international institutions in the service of an obviously greater good. What it will neither understand nor condone is the wholesale abandonment of the law. The Bush administration has cast the debate over the laws of war in all-or-nothing terms—either you can throw out the old laws of war, or do nothing to secure the nation against a terrorist attack. In many ways, this position resembles much of the administration's rhetoric in the war on terror and its bid for reelection: You're either with us or against us, for good or for evil, a supporter of American policy or a supporter of terrorism. But the world is far more complex than that. There was a third path between living with the anachronistic laws of war and rejecting them in favor of expediency. The Bush administration rejected that path, and now, every day, U.S. soldiers and Iraqi citizens are paying the ultimate price for its mistake.

Phillip Carter is a former U.S. Army officer who now writes on national security issues for The Washington Monthly.


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