"The United States is, for better and, most definitely, for worse, the new Rome', the giant colossus striding the world and claiming to speak on behalf of good against evil". - Sanford Levinson
Slowly, but surely, the rule of law in America is being eroded. For years, the executive branch has attempted to redefine torture in order to circumvent legal restrictions upon its use. Congress also became complicit when it affirmed prior Bush administration actions by way of legislation. The practical impact of these unsettling legal developments was made obvious with the discovery that the United States had abused prisoners at Abu Ghraib prison in Iraq. It was now plain for all to see that the events of September 11, 2001 had led to the seizing of greater powers for the presidency.
This paper will argue that regardless of who is ultimately held responsible for the abuse of prisoners, the revelations have led to a widespread perception of moral bankruptcy which will ultimately prove harmful to national objectives. The Americans, who were initially greeted on the streets of Baghdad as liberators in 2003, have now been shamed on the world stage. America's image would be improved if the administration ceased condoning abusive interrogation.
I. The Road to Abu Ghraib
The events leading to Abu Ghraib were set in motion almost immediately after the 9/11 attacks. On September 18, 2001, Congress passed a resolution granting broad-ranging authority to President George Bush. Relying on the vague wording in that resolution, Bush then issued an executive order titled "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism", and declared that he could now capture alien combatants and try them under a system of military commissions. Significantly, the order stated that: "Given the danger to the safety of the United States and the nature of international terrorism it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts".
In other words, detainees captured with the blessing of the president were to be denied the same procedural protections afforded to accused criminals in the domestic court system. The supposed gravity of the terrorist threat was used to justify this abrogation of commonly accepted rules of law. In the process, an important psychological precedent was set: military subordinates were now on alert that their commander-in-chief thought suspected terrorists did not deserve due process.
The president's order set the stage for an expansion of activities at Guantanamo Bay. As a US-controlled base in Cuba, Guantanamo became a "no-law zone" where the administration would place detainees captured from various locations around the world. The legal black hole status of Guantanamo was solidified by advice contained in internal memos issued by the Justice Department. Former Attorney General Alberto Gonzales, for example, recommended that detainees be labeled "unlawful enemy combatants", which would assist in placing them outside the Geneva Conventions; alleged terrorists would be unable to rely on safeguards provided to prisoners of war. Furthermore, the Department of Defense pursued an expansive reading of presidential powers under the American Constitution, even going so far as to say, "Congress may no more regulate the president's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield". These memos helped establish Guantanamo's extra-legal status, and in the process disguised torture from at least 2001 to 2003.
Such contempt for the spirit of the law helped make Abu Ghraib possible. By encouraging unorthodox legal opinions, the administration set the standard for other American military bases. Harsh interrogation techniques which were once restricted to the most extreme cases began to be applied in a systematic manner. Tactics that were to date only used in the secret network of Cold-war era prisons run by the Central Intelligence Agency were cleared for use by the regular military. There was a failure by the leadership to set clear guidelines for treatment of prisoners.
In the wake of the Abu Ghraib scandal in 2004, the Supreme Court decided to extend some human rights protections to detainees at Guantanamo. The Court heard the first of four cases that were decided against the Bush administration. Cumulatively, these cases held that Guantanamo was not a legal black hole, contrary to claims made by administration lawyers. But the administration was not about to give up that easily.
With the cooperation of Congress, the administration rammed through legislation to reverse the Court's decisions. After the ruling in Rasul that non-citizen detainees had a right to statutory habeas corpus, Congress passed the Detainee Treatment Act of 2005, seeking to narrow rights of appeal. Similarly, after the Court held in Hamdan that the system of military commissions established by the President's executive order was effectively illegal, Congress passed the Military Commissions Act of 2006 attempting to circumvent the ruling. Finally, in 2008, the Court in Boumediene decided section 7 of the Military Commissions Act, which purported to oust habeas corpus, was unconstitutional. As Boumediene involved constitutional (as opposed to statutory) habeas corpus, only a constitutional amendment can reverse the decision. Constitutional amendments require a protracted process and are relatively rare, so for the foreseeable future, the Suspension Clause in the Bill of Rights is now applicable to detainees. Detainees will have an option to challenge their continued detention before a federal judge. This should ensure greater court scrutiny of detainee treatment, but it is telling that Congress and the President were literally forced to this point by the nation's highest court.
The above court decisions are only applicable to Guantanamo, so there remain genuine concerns about the conditions of detainees elsewhere. This is hardly conjecture. In 2004, former Secretary of Defense Donald Rumsfeld was linked to a prisoner kept hidden from the International Red Cross for 8 months. In addition, the US has expanded the program of extraordinary rendition that began under the Clinton administration. Fritz Allhoff observes: "American officials have admitted that the United States has transferred prisoners to the intelligence agencies of Jordan, Egypt, and/or Morocco, all of which are known for using torture as a method of interrogation. Reportedly, some of these prisoners have even been handed over along with lists of questions to which they might know the answers and whose answers would be valuable to the United States".
The attempts to find loopholes in existing anti-torture laws and normalise torture can only be described as a full-frontal assault on traditional notions of due process and human rights. As academic observers it is crucial that we understand how the loosening of protections came about. Ultimately we have to grapple with the novel legal justifications for "enhanced interrogation techniques".
II. Was Abu Ghraib a Scandal?
There are four perspectives we might adopt when analyzing the ways in which Abu Ghraib qualifies as a scandal. First, there is the majority of the American public, who rightly considered Abu Ghraib a human rights scandal. However, two months after the release of the Abu Ghraib images, an ABC News/Washington Post poll found that 35% of Americans felt torture was acceptable in some circumstances. Clearly, the administration had persuaded many that being "tough" on terrorists was the only way to keep the nation safe. Further confirmation comes from the Democratic Party's response to the revelations. Although the leak of the images coincided with the upcoming presidential election, John Kerry, the Democratic Party candidate, never made torture a campaign issue. Perhaps the Democrats were mindful of the fact that after 9/11, many voters had softened their opposition to torture. Or maybe solid opposition never existed in the first place.
This is not to suggest that the majority of the public were not disturbed by the depravity originating from Abu Ghraib. Most were deeply troubled, and the pictures led to a re-opening of the torture debate in American society. But the broader historical point was lost on many: these were not the isolated incidents of a few, but the predictable result of systematic legal obfuscation by the administration.
Second, we might adopt the posture of a cynic. A cynical observer would probably say that Abu Ghraib was not so much a scandal as an expected occurrence. What would have truly been shocking is if it had not occurred at all. Since the CIA's inception in 1947, torture methods have "metastasized like an undetected cancer inside the US intelligence community". Abu Ghraib was merely one of the most visible events in a string of covert abuses dating back half a century. The few bad apples who were punished were not being punished for the abuse per se, but "because the military, and particularly Rumsfeld, [had] been embarrassed by these matters becoming public".
Third, there is the civil libertarian analysis. Informed by this perspective, we might argue that Abu Ghraib confirmed the dangers of abusing legal language. Beginning soon after 9/11, common sense notions of what constitutes torture and what does not were subverted by internal memos written by the Justice Department. Consider the infamous James Bybee memo. According to the authors of that memo, to constitute torture, the associated physical pain must be "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death". By this definition, one could argue that beatings falling short of death would not be torture. Water-boarding, sleep deprivation, stress-positions and other practices that most reasonable people would classify as torture, would escape various prohibitions using the administration's extremely narrow definition.
Finally, from the administration's point of view, the real scandal was not the human rights abuses themselves, but the unfortunate leaking of the images to the media. While allegations of abuse had frequently been aired with regards to prisoners held at other military bases, there was no undeniable photographic evidence accompanying them. The leaked images from Abu Ghraib on the other hand, stirred up anti-Americanism overseas, shaming the military and staining the nation as a whole. This in turn made it more difficult, from the government's standpoint, to adopt the aggressive techniques it believed necessary to gain an informational advantage in the war on terrorism.
Whichever view of the scandal we adopt, it is difficult to avoid the conclusion that Abu Ghraib was a turning point in the torture debate. After Abu Ghraib, the most pertinent question became: to what extent had the scandal brought shame onto the American nation and military?
III. American Shame
On the international front, negative perceptions of the American government are strong. Scientific polls show that anti-American sentiment has risen sharply in recent years. Granted, not all of this can be attributed to discontent over revelations of torture, but nonetheless, it is not without merit to speculate that the scandals have contributed to the radicalisation of some Muslims. There is arguably a degree of "blowback" against American interests as a result of perceptions of ill-treatment by US soldiers.
A survey conducted in 2004 by the Pew Global Attitudes Project found that discontent with America and its policies has "intensified rather than diminished". In the Muslim countries surveyed, anger towards the US was at high levels. Approximately 65% of Pakistanis, 55% of Jordanians and 45% of Moroccans viewed Osama bin Laden favourably. Some 31% of people in Turkey thought suicide attacks against Americans and other Westerners in Iraq are justifiable; overwhelming majorities thought so in Jordan and Morocco. About half of the Pakistanis surveyed thought suicide attacks against Americans in Iraq were justifiable. More recent studies support these findings.
For some, no amount of survey data is sufficient to convince them that anti-Americanism has a solid foundation. "Like most Americans, I just cannot believe [the vitriolic hatred of the United States] because I know how good we are", commented President Bush. Those who hold such a view implicitly assume that individuals in the Arab world dislike the US for the values of its citizens, rather than the policies of its government. In fact, exactly the opposite is the case. Giacomo Chiozza's research suggests that how "good" Americans are, in a general sense, is not the major cause of antipathy towards the US but government policies are. It follows that perceptions of torture are likely to influence whether a person living in the Middle East holds a favourable opinion of America. People residing in Iraq and Afghanistan are most affected by the American government's attitude towards human rights, as they live in a war zone.
A revealing indicator of the backlash against torture is found in the terrorists' propaganda tactics. Reports of torture by the occupiers are frequently used to inspire the jihadists. In one video clip released by Al Qaeda, a man named Abu Muawiyah al-Shamali is shown speaking about a suicide operation he intends to carry out, allegedly in direct response to a letter sent by a female prison detainee named Fatimah. The female detainee's letter is a call to all the holy warriors to rescue the women at Abu Ghraib, who she says are subjected to daily rape, torture and humiliation at the hands of their American guards. Fatimah writes, "Brothers, I tell you again, fear God! Kill us with them so that we might be at peace. Help! Help! Help!". Then Abu Muawiyah is shown with a smile on his face, as he vows to take revenge against those who took away her honour, and displays the explosives that he will use in his planned suicide attack. Such a narrative of humiliation at the hands of the occupiers is a common method used to gain support from the broader Muslim population and recruit suicide bombers.
Prior to the American invasion in 2003, there had never been a single suicide bombing within Iraq. In a comprehensive study that analyses every single suicide attack in the world since 1980, Robert Pape argues that the sudden spike can be explained primarily by discontent over foreign occupation. Al Qaeda depicts suicide bombers as pious martyrs sacrificing themselves in order to thwart the Western occupiers (who are portrayed as savage animals at war with Islam). The terrorists appeal to the masculinity of Muslim men, and exaggerate mistreatment of women by the occupiers.
Although President Bush, in official pronouncements, states one thing, the actions of the American government reveal something else entirely. For instance, when the National Security Strategy of 2002 affirms America's commitment to human rights and proclaims "In the war against global terrorism, we will never forget that we are ultimately fighting for our democratic values and way of life", how is one to reconcile this with torture scandals, which have led to a general perception of moral bankruptcy? Do "democratic values" now include the degrading treatment of prisoners? These are the questions that many affected by America's presence in the Middle East are no doubt asking.
Spy agencies within the US are also asking similar questions, and many have conceded the counterproductive nature of torture. Drafts of a recent National Intelligence Estimate report (the most authoritative documents that the American intelligence community produces) point out that the indefinite detention of prisoners at Guantanamo and the Abu Ghraib prison scandal have stoked the jihad movement. The Defense Science Board Task Force, another government body, came to a similar conclusion. Therefore, even if torture were effective in some cases, it could well be outweighed by the backlash that it inspires. Bin Laden's influence could end up growing significantly, not due to any operational capability, but simply due to the spread of virulent anti-Americanism.
Displaying tact when dealing with different cultures is crucial, as perceived hypocrisy detracts from winning the war of ideas overseas. The administration's careless disregard for the principles enshrined in such founding documents as the US Constitution and the Declaration of Independence could inflict long-term damage upon the credibility of America's government all over the world.
IV. Conclusion
The war against terrorism is being fought on two levels. First, there are the military battles. Then, there are the ideological battles the fight to win over hearts and minds' in the Middle East. In this paper, I have argued that the Bush administration's policy of condoning torture detracts from the latter objective. Even if I am mistaken in the conclusion that the American government employs a systematic policy of abuse as a means of gathering information, the administration should nevertheless do everything in its power to remove the perception that it condones torture. Public opinion polls and the terrorists' own propaganda show that regardless of who is responsible, the battle to persuade Muslims of the nobility of American intentions is set back by human rights scandals.
During times of crisis, there is a tendency for principles to give way to expediency: the great bulk of the populace cast aside their distrust of politicians and bureaucrats, and growth in the size and scope of government is the most frequent result. Often, the measures adopted in the midst of crisis are disproportionate and exaggerate the actual severity of a problem. Characterised in this way, torture is a measure entirely out of proportion with the actual threat. Until cooler heads prevail, the American government will continue to bring shame upon the nation through its aggressive policies.