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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