"And I wouldn't join it. And I understand that in certain capitals around the world that that wasn't a popular move. But it's the right move not to join a foreign court that could -- where our people could be prosecuted." - George W. Bush 09/30/04
One of the many failings of our Potemkin press corps the last few years is that the mainstream press has been conveying little information about the laws of war and how they work and how they potentially apply to issues like facilitating the murder of prisoners or torture like that this has been taking place in Bush's and Rumsfeld's gulag.
Seymour Hersh's Chain of Command: The Road from 9/11 to Abu Ghraib (2004), based largely on work published in the New Yorker, helps fill that gap for us. And I've come across a couple of recent pieces by Phil Carter that are noteworthy in that regard, as well.
One is "The Road to Abu Ghraib" by Phil Carter Washington Monthly Nov 2004, which is an essay-review of Hersh's book. Before I get to some of his excellent points, though, I'll mention that he makes a weird argument in one part of the article, which seems grossly contradictory to the reasoning and good sense of the rest of it. He writes:
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.
Khalid Sheikh Mohammed is a senior Al Qaeda official in American custody somewhere in the gulag. Among the coercive techniques used in his interrogation has been "waterboarding," which is "a euphemism for forcing a prisoner under water until he believes he will drown" (US forces were taught torture techniques by Suzanne Goldenberg Guardian [UK] 05/14/04).
The problem with this argument is that if torture is considered legitimate with some prisoners, in practice it's virtually impossible to prevent it from spreading to much more general usage, as Carter's article describes as having occurred in the last three years in the American military detention system in Abu Ghuraib, Guantanamo and Afghanistan.
It could be here that Carter was trying to make an argument that in a true emergency situation, one of the kind that actually occurs only in the movies, an official might be morally justified in departing from the law and using torture on a subject, but that the system still needs to enforce the law, and the official would be doing so realizing he had to answer for a criminal act. But if that was the point he was trying to make, he did so poorly.
But despite that glaring exception, Carter gives a good summary of the events that led to the widespread usage of torture in the gulag, and in doing so provides some excellent background on the legal considerations involved. The Bush administration, Carter writes, sanctioned "a wholesale abandonment of the law" on treatment of prisoners of war:
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.
Carter's article also gives a good sense of how inadequate training, combined with high-level approval for criminal conduct, could make it very difficult in practice for some soldiers to resist illegal orders. And he does it without either exonerating the low-level perpetrators at Abu Ghuraib or deflecting responsibility from senior officials:
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 [Guantanamo Bay] 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.
And he reminds us that laws protecting prisoners of war are not some frivolous excess of humanitarian soft-heartedness:
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.
Yet another example raising the question of what good has Colin Powell's alleged professionalism and moderation and scruples been, when he goes right on facilitating the misconduct of this administration.
He makes another puzzling statement at the end of the article:
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.
Is it true? He follows up in the same paragraph with:
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.
This is literally the first time I've seen it suggested that any piece of specific information gained by torture in the gulag has been useful in providing actionable intelligence the last three years. Hersh doesn't make that claim in the book under review, and Carter doesn't cite his source for it. In the nature of the thing, it's a vague kind of claim, and it fast leads into sophomore-philosophy-class abstractions. In practice, as he said immediately following that claim,torture is notorious for producing bad information.
And that's not its purpose in practice, either. Its purpose is to terrorize a target population. Many of the prisoners at Abu Ghuraib had been arrested in sweeps by American soldiers who didn't even speak Arabic. Those American prison guards piling naked, hooded men on top of each other and forcing them to masturbate and simulate oral sex and so forth didn't have any idea whether there was the slightest reason to think any of them had actionable intelligence information. They just knew that they had been given permission to exercise their sadistic impulses on the prisoners, and some of them did, as we now know.
Phil Carter also has a blog that provides good information on a regular basis about intelligence-related aspects of foreign policy. This post is a good companion piece to the review referenced above: Another Zany Justice Department Memo Intel Dump blog 10/28/04. It deals with a further instance of government attorneys cooking up excuses for administration officials to break the laws governing treatment of prisoners of war.
This article is from this past May. But in it, Carter explains why Americans could find themselves on trial before the International Criminal Court (ICC) anyway, despite Bush's belief that he's removed that threat from hanging over the heads of his national security team: Do the Right Thing: Keeping the ICC out of Abu Ghraib by Phillip Carter Slate 05/07/04.
But even though the United States is not part of the ICC and Iraq is not a member, we might still find our troops wrangled into ICC jurisdiction by a provision that lets non-ICC member states refer cases to it anyway. Once the Iraqi government takes sovereignty on June 30, it might decide to do just that, especially if the Iraqi people demand international justice for the crimes at Abu Ghraib. The United States will surely lobby the future Iraqi government not to refer charges to the ICC. But once we hand the reins of sovereignty to the Iraqi government, this decision will be theirs to make.
The interim government of Prime Minister Allawi hasn't done that yet. And who knows? Some British government without Tony Blair at its head might decide that the British citizens who claim they were tortured in Guantanamo have credible enough evidence that those responsible should be hauled before that "foreign court" that Bush thinks he's bypassed. Characters like Don Rumsfeld and Dick Cheney (whose office also got involved in formulating torture policy) might want to select their foreign travel destinations carefully when they leave office, or they might find themselves unexpectedly paying a long visit to that "body based in The Hague."
Seems unlikely right now. But then who expected the Red Sox to win the World Series?
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