It Could Never Happen Here

Third Quarter 2004

Abuse of Prisoners and the Rule of Law

Late in 2001 or early in 2002, after the United States had sent its military into Afghanistan, Secretary of Defense Donald Rumsfeld was speaking to reporters. A question was raised about why the military, particularly in the bombing runs, was concerned to protect Afghan noncombatants. Rumsfeld gave two reasons. First, he said, Americans do not like to kill innocent people, and second, it would probably be counterproductive for U.S. forces to indiscriminately harm noncombatants. As I recall, no reporter followed up with a question about the adequacy of this response. For after all, what if the day were to come when Americans did not mind killing innocent people or if the military thought harming them would not prove counterproductive?

What was even more striking about Rumsfeld's response was what he did not say. He could have explained that the reason the military would not target noncombatants in warfare is because that is one of the basic rules of warfare articulated in both the Geneva Conventions on war and in American laws governing military engagement. In other words, noncombatant immunity is a non-negotiable principle, part of the rule of both domestic and international law, which the U.S. has upheld for decades.

Furthermore, without trying the patience of the reporters, Rumsfeld could have added: noncombatant immunity is rooted in the centuries-long just-war tradition, which is the major source of domestic and international law governing warfare. Laws like that arose from an awareness of the terrible dangers of warfare and the need to limit it in order to maintain and restore civilized society. To start killing or harming innocent people is to slide into barbarism, murder, and the violation of human dignity and the rule of law rather than to engage in justifiable defense.

Why did Rumsfeld respond as he did? Does he, perhaps, not know that noncombatant immunity is part of the Geneva Conventions and American law? Did he think the press would not understand such a reference? Or was he already thinking ahead to circumstances in which the U.S. might find it "productive" to ignore international law and American laws of warfare?

Going It Alone

Less than a year after Rumsfeld's response at that press conference, the White House released its new National Security Strategy (NSS, September 2002), the outcome of months of work. One of the last paragraphs in that document reads as follows: the U.S. government "will take the actions necessary to ensure that our efforts to meet our global security commitments and protect Americans are not impaired by the potential for investigations, inquiry, or prosecution by the International Criminal Court (ICC), whose jurisdiction does not extend to Americans and which we do not accept. We will work together with other nations to avoid complications in our military operations and cooperation, through such mechanisms as multilateral and bilateral agreements that will protect U.S. nationals from the ICC. We will implement fully the American Service-members Protection Act, whose provisions are intended to ensure and enhance the protection of U.S. personnel and officials."

The United States, in other words, according to President George W. Bush, will not recognize the jurisdiction of the ICC and perhaps other "complications" of international law and institutions if they interfere with America's ability to prosecute a war or if those laws and institutions would subject American personnel to international criminal prosecution.

Why would the Bush administration be so concerned to keep the U.S. outside the jurisdiction of the ICC and why would Congress pass a law to protect American service personnel from any prosecution by a court outside the United States? One reason, often given, is that since the U.S. provides most of the military personnel for international missions, and since many countries have political reasons to oppose the U.S., American troops need such protection. But could there be other reasons? Why would the U.S. consider it better to be above international law than to be subject to it, as it wants other countries to be? Do Congress and the Bush administration not see a problem of double standards here?

Then, suddenly, in May of this year, the country was awakened to a prisoner abuse scandal in the American-controlled Abu Ghraib prison in Iraq. Bush and Rumsfeld acted as if they were surprised and quickly attributed the problem to a few bad apples lower down in the ranks of prison guards and interrogators. Many members of Congress doubted the president and the defense secretary. The investigations began. More of the truth came out. When reporters pressed Bush on the matter as late as early June, the president insisted that foreigners as well as Americans should take comfort in the fact that the president had acted in accord with the law.

But as columnist Fred Hiatt wrote on June 14 (Washington Post), the president's assurance "cannot comfort us because we have read the leaked Defense Department memorandum arguing (in March 2003) that no law banning torture or regulating interrogation can bind the president when he is operating in his role as commander in chief"

Above the Law?

Commentator Stuart Taylor Jr., who has been broadly supportive of the Bush administration, writes with dismay about that March 6, 2003 report that was written by Pentagon lawyers for Rumsfeld, who wanted to know how far the military could go in interrogating prisoners without being faulted even under American law for mistreating or torturing them. "Most breathtaking," says Taylor, is the following claim made on pages 20-21 of the leaked, 56-page report: "In light of the president's complete authority over the conduct of war,... the prohibition against torture [in the 1994 criminal statute] must be construed as inapplicable to interrogations undertaken pursuant to his commander-in-chief authority" (Taylor, "The Torture Memos: Putting the President Above the Law," National Journal, 6/12/04).

That Pentagon report, says Taylor, was "prepared under the watchful eyes of the White House" and "built on an August 2002 Justice Department memo addressed to White House Counsel Alberto Gonzales, in response to a CIA request for legal protection for interrogators."

What is clear as well as outrageous about these legal opinions is that the mistreatment, even torture, of prisoners in Abu Ghraib prison in Iraq was not the consequence of a "few bad apples" at the bottom of the military ranks, as the president claims, or the distorted ideas of one or two secretive military lawyers who got carried away with themselves. No, says Taylor, these "warped analyses...reflect an attitude deeply entrenched in the Bush White House--including Bush and Dick Cheney as well as Gonzales--that whenever the president invokes national security, he enjoys near-dictatorial powers and is quite literally above the law."

When asked at a congressional hearing whether the methods used on Iraqi prisoners would be considered legitimate if applied to Americans held captive by another country, both Marine Gen. Peter Pace and deputy secretary of defense Paul Wolfowitz answered no. Those techniques, if applied to Americans, would be considered illegal, a violation of the laws of warfare. A Washington Post editorial on June 9 argued that the logic used by lawyers at the Justice Department and the Defense Department in this case is characteristic of "criminal regimes, of dictatorships around the world that sanction torture on grounds of 'national security.' For decades the U.S. government has waged diplomatic campaigns against such outlaw governments... that claim torture is justified when used to combat terrorism."

But aren't we talking here only about the mistreatment of a few exceptional prisoners in Iraq and Afghanistan? No, writes Taylor. "The president and his lawyers have also claimed the powers to seize suspected 'enemy combatants' from the streets of America for indefinite, incommunicado detention and interrogation, without meaningful judicial review or access to lawyers; and to do the same to non-Americans at Guantanamo Bay without answering to any court in the world. These perversions of the law would allow Bush to seize, imprison, and torture anyone in the world, at any time, for any reason that he associates with national security." It was not until the U.S. Supreme Court ruled in favor of some of these prisoners and against the administration on June 28 that the Pentagon began to change course.

All the Way to the Top

We already know that the Red Cross had been issuing warnings about American abuse of prisoners long before the scandal broke into public view in May of this year. The pictures that shocked the nation were by no means the cause of Rumsfeld's awakening to a problem. He and other top officials in the Bush administration were keeping this hidden as much as possible so as not to cause a public stir. Rumsfeld was also later pushed to admit on June 17 that "he had personally approved the detention of several prisoners in Iraq without registering them with the International Committee of the Red Cross," an act that Maj. Gen. Antonio M. Taguba acknowledged is "deceptive" and "contrary to Army doctrine and in violation of international law" (Washington Post editorial 6/21/04). Rumsfeld could not have been ignorant of this. And yet, to this very day, President Bush has neither reprimanded the defense secretary nor fired him, and that means that the president himself has concurred in these "deceptive," contrary-to-law practices.

Military trials have now begun for certain lower level military police and intelligence personnel who participated in the direct abuse and murder of prisoners in Iraq. Who knows where that will lead. What is stunningly clear is that the climate and context for the slighting or violation of international and domestic laws of warfare, leading to American abuse of prisoners, was established right at the top of the Bush administration.

Rumsfeld, Cheney, Attorney General John Ashcroft, and Bush may believe that these actions would have been productive rather than counterproductive in the fight against terrorism. They may have thought that the American people were so angry with terrorists and so fearful of evil rulers like Saddam Hussein that they would not mind if the military targeted noncombatants or abused and tortured a few prisoners, as long as these deeds would help to achieve the greater good of protecting Americans against terrorism. But if this is the kind of thinking that is prevalent at the White House, the Department of Justice, and the Pentagon, and if the Bush administration is not held accountable for these actions, then we are all participating in the degradation of the rule of law, something that is supposed to be a matter of political and legal principle, not an occasional convenience.