4 Responses to “Feldman on the Consequences of Moral Failure in Iraq and Elsewhere”

1. ymatt Says:
   May 25th, 2005 at 12:01 pm

   I wouldn’t mind a little excerptation since I don’t have the stupid New Republic subscription to read this…

2. bg Says:
   May 25th, 2005 at 12:55 pm

   Text from New Republic:
   THE LAWS OF A WAR AGAINST EVIL.
   Ugly Americans
   by Noah Feldman

   Post date: 05.25.05
   Issue date: 05.30.05
   The Torture Papers: The Road to Abu Ghraib
   Edited by Karen J. Greenberg and Joshua L. Dratel
   (Cambridge University Press, 1,249 pp., $50)
   Click here to buy this book

   Torture and Truth: America, Abu Ghraib, and the War on Terror
   By Mark Danner
   (New York Review Books, 608 pp., $19.95)
   Click here to buy this book

   I.

   The Canaanite king Adoni-bezek has just a single line of dialogue in the Bible, but it is one not easily forgotten. Defeated by the combined forces of the tribes of Judah and Simeon, he is subjected to the ordeal of having his index fingers and great toes cut off. Adoni-bezek’s philosophical response is that in his day he himself lopped off the fingers and toes of seventy kings: “As I have done, so God hath requited me.” With these last words, the captive king is brought to Jerusalem, where he dies.

   Today prisoners of war are protected by the Geneva Conventions–but the principle of reciprocity articulated in the king’s reflection on the customs of victors still pervades the laws of war. The assumption that all sides might torture or kill prisoners has given way, at least in theory, to the principle that all sides are reciprocally obligated to treat prisoners of war and civilians under occupation humanely. It is fair to say that this norm of international law grew as much from the mutual interests of belligerents in having their own prisoners of war treated humanely as from any deeply held commitment to the dignity of the person. Otherwise it would be almost impossible to explain the anomaly that, according to the rules of war, the enemy may be killed even while he is fleeing, but if captured must be sheltered, fed, and returned to his home when the war is over. The motivation to frame and to follow the rule is surely the reciprocal concern about what might happen to troops captured by the other side, which lends the fuel of self-interest to the fire of moral principle.

   In the wake of September 11, 2001, the principle of reciprocity in the laws of war was dealt a substantial blow. In a series of secret memoranda–some of which have since been leaked or declassified, and collected by Mark Danner and more comprehensively by Karen J. Greenberg and Joshua L. Dratel–government attorneys in the Office of Legal Counsel of the Department of Justice, working closely with the White House, developed a theory of why the Geneva Conventions did not apply to members of Al Qaeda and the Taliban forces whom the United States was already in the process of defeating in Afghanistan. The lawyers advanced a number of creative and often doubtful hypotheses in support of their views, including the suggestion that, since Afghanistan was a failed state, the president could suspend the conventions in a war there. But the core of their theory followed from the accurate observation that the Al Qaeda terrorists (and the Taliban, who harbored them) were not playing by the rules of war, and never would. Al Qaeda was a terrorist organization, rather than a state actor covered by the conventions. Worse, the enemy had broken the model of reciprocal respect for the laws of war. “Al Qaeda members,” argued the lawyers, “… hijacked civilian airliners, took hostages, and killed them; and they themselves do not obey the laws of war concerning the protection of the lives of civilians or the means of legitimate combat.” It therefore made no sense to follow those laws in fighting the terrorists.

   Once it could be argued that the Geneva Conventions did not apply to Al Qaeda and the Taliban, there naturally arose the question of what limits, if any, did apply to American conduct in what the lawyers assumed must be characterized as a war. The United States is a signatory to an international treaty prohibiting torture. In fulfillment of that treaty, Congress passed a statute that defines torture as any act “specifically intended to inflict severe physical or mental pain or suffering,” and criminalizes such torture abroad anywhere, anytime. The treaty and those federal laws applied to all citizens and personnel of the United States; so whatever counted as “torture” would ordinarily be subject to prosecution. Fear of such prosecution might restrain intelligence officers or others from engaging in aggressive interrogation techniques that some in the government thought would be valuable in seeking information from captured terrorists.

   The government lawyers set out to solve the problem of prior American participation in this humane and prudential arrangement. In order to expand the range of coercive tactics that could lawfully be used against suspected terrorists, they pared down the legal definition of torture to the barest minimum. “Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” they wrote. “For purely mental pain or suffering to amount to torture … it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.” Cruel, inhuman, or degrading punishment or treatment that fell short of this definition would not be prohibited by the torture treaty or the U.S. torture statute. According to the official interpretation of the American government, then, the gloves were off, so long as the very circumscribed category now delineated as “torture” was avoided.

   Not content with this newly expansive approach, the government lawyers also suggested two further justifications for American personnel who might cross the line into prohibited torture. They might be able to argue that their actions were dictated by necessity, and so defend themselves against prosecution by arguing that the law excused their actions in the same way that it would excuse a starving hiker who broke into an abandoned cabin looking for food. (In 1999, the Israeli Supreme Court rejected the view that the necessity defense provides a source of authority to torture, although it preserved the possibility that such a defense might be available at trial to an officer charged with human rights abuses.) Alternatively, it could be argued that neither the torture treaty nor American laws could bind the president when he was exercising his constitutional powers as commander-in-chief leading the United States in war. Never mind that it was Congress that both authorized the president to use force against Al Qaeda and also prohibited torture: once war was under way, went the argument, the Constitution put the president above Congress in conducting it.

   These arguments were astonishing. Absent from them was any serious concern about either the morality of the actions being contemplated or their desirability as a matter of policy. Some of the silence may be blamed on lawyerly obtuseness, derived from the mistaken view that moral and practical questions are beyond the province of law and are best left to the client, in this case the president of the United States. But this explanation misses the moral and practical premises that were smuggled into the arguments of the so-called torture memos just described. In fact, both the realities of the immediate post-September 11 environment and the moral theories being developed at the time are necessary to explain the thought world of these memoranda.

   The moral grounding for the position of the government’s lawyers was the paramount value of protecting the United States without being constrained by rules that the enemy had flouted. Practically speaking, had the United States been worried that its citizens might be subjected to torture by other signatories to the torture treaty, it would have been extremely unlikely to reduce the definition of torture so drastically. But no such reciprocal fear existed. Americans captured by Al Qaeda or the Taliban had no hope of avoiding mistreatment because of the treaty’s protection: they would likely have had their heads cut off or worse. And to the extent that other countries might choose to adopt a similarly restrictive definition of torture, the government’s lawyers simply presumed that the overwhelming military might of the United States and the threat of retaliation would scare them out of it.

   Ironically, then, the circumstances after September 11 made reciprocity seem irrelevant along two opposite dimensions. On the one hand, the United States was newly understood to be vulnerable to asymmetrical threats from terrorists who ignored the laws of war and engaged in “a new type of warfare–one not contemplated in 1949 when the [Geneva Convention] was framed.” On the other, in a unipolar world, there was no nation-state with the strength and the willingness to defy the United States by torturing our citizens, even if the United States were to adopt an asymmetrically minimalist definition of torture. In the judgment of then-White House counsel (now attorney general) Alberto Gonzales, “this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” Waiving the Geneva Conventions and loosening the ban on torture did not merely seem justifiable. The lawyers also believed that they, and we, could get away with it.

   II.

   How did the memoranda translate into practice? This question figures centrally in evaluating the treatment, the interrogation, and sometimes the death of prisoners in Afghanistan, Guantánamo, and elsewhere in the world. But it has assumed even greater significance in light of the revelations of the gross violations of the Geneva Conventions, and in some cases of the ban on torture, that were committed by Americans against Iraqis in the Abu Ghraib prison on the outskirts of Baghdad.

   No event since My Lai has so publicly shown American soldiers violating the human dignity of citizens of a foreign country. The humiliation of the Iraqi civilians, not to mention the physical injuries they suffered, including death, are and always will be a national shame for the United States. In the minds of many people, not just in the Arab world, the claims of the United States to moral justification for its invasion and occupation of Iraq were permanently vitiated by what happened in what had been one of Saddam Hussein’s worst prisons. The Iraqis, some said, had traded one oppressor for another.

   In a democracy, one of the consequences of such a horror being revealed is a debate over responsibility. With the government memoranda leaking around the same time as the pictures from Abu Ghraib, it was natural, and it was necessary, to explore the relationship between the government lawyers’ theories and the actions of the military police units in Iraq. That there must be some relationship between the human atrocity in Iraq and the legal atrocity in Washington seemed self-evident to many. Danner, in Torture and Truth: America, Abu Ghraib, and the War on Terror, suggests a direct causal connection between the memoranda and the horror. He introduces his collection with several articles that he wrote for The New York Review of Books while the torture story was breaking; emphasizing military links between Guantánamo and Abu Ghraib, he argues that “there simply was no clear dividing line” between what was legally authorized at Guantánamo but banned in Iraq. Greenberg and Dratel’s volume, The Torture Papers, which at twice the length contains many more primary documents, makes a similar point by implication in its subtitle, “The Road to Abu Ghraib,” even though this book, less political than Danner’s, generally–and wisely–lets the documents speak for themselves. The idea of a link has in particular seemed especially convincing to lawyers, who always want to believe that their quiddities matter beyond the courtroom.

   Although most of those who argue for a direct link are harsh critics of the Bush administration, at whose feet they wish to lay the responsibility, there is also something reassuring in blaming lawyers for what went wrong. If the problem is with the law, after all, then fixing it can prevent another Abu Ghraib. If it lies elsewhere, in policy or politics or philosophy, we may have to work harder to identify both the causes and the potential long-term solutions.

   Neither the Bush administration nor the military has been prepared to acquiesce fully in the claim of a direct connection between the Army’s torturers and the government’s lawyers. The unclassified executive summary of a recent report issued by a commission led by Naval Inspector General Admiral Albert T. Church III (to be included in a forthcoming volume by Greenberg and Dratel) stakes out the position neatly. First, it maintains that several of the most extreme legal arguments in the memoranda were never adopted by the administration as policy. Although Secretary of Defense Donald Rumsfeld did issue an order to the troops stating that Al Qaeda and Taliban detainees were not to be considered prisoners of war under the Geneva Conventions, the president soon supplemented that order with one specifying that they were nonetheless as a matter of policy to be treated in accordance with the Geneva guidelines, “to the extent appropriate and consistent with military necessity.” The Church report assumes that the Geneva Conventions obviously applied in Iraq (in fact the administration has intimated that they would not apply to Al Qaeda in Iraq); accordingly, the Church report implies, the entire legal edifice of the torture memos was legally irrelevant to Abu Ghraib.

   Moreover, the Church report continues, the actual abusive treatment of prisoners in Abu Ghraib fell outside the guidelines for interrogation developed in the memoranda and in a subsequent Defense Department working-group report. (Rumsfeld declined to authorize several of the more extreme measures that the working group proposed, except on an individual basis with his personal permission. How often this occurred is classified and unknown.) In particular, sexual humiliation, dog attacks (as opposed to the use of dogs to inspire fright), and all forms of physical violence were prohibited. Finally, argues the Church report, the soldiers in Iraq were bound by the provisions of the Uniform Code of Military Justice, which certainly prohibited cruel and inhumane treatment falling short of torture. Yet the published memoranda essentially ignored the Code, and so cannot have been understood to authorize the military police in Abu Ghraib to act as they did.

   When it came to assigning blame, the bowdlerized version of the Church report followed earlier military reports, such as the report of March 2004, commissioned by the Army and prepared by Major General Antonio Taguba, which first reviewed the evidence, in blaming the abuses at Abu Ghraib on the combination of an inadequate command structure and the personal initiative of several reservist military police with prior job experience as guards in domestic American prisons. The subtext of this position is to blame the Bush administration, and Rumsfeld in particular, for sending an inadequate military force to Iraq. Under-staffed and undertrained, the military acted in an improvisatory fashion that highlighted the greatest structural weakness of any system based on following commands. Where clear regulations and orders are in place, the U.S. military, including the Reserves, does very well in carrying them out. Where there is little or no guidance, individual soldiers may end up drawing on their civilian experiences.

   Pointing the finger at former civilian prison guards, as all the military reports have done, also has the effect of shifting the responsibility for Abu Ghraib onto America’s own shadowy prison-industrial complex, where abuses occur with a regularity that is rarely discussed or acknowledged. Seen one way, this assignment of responsibility impugns American practices and values. In the aftermath of the revelations, politicians were quick to assert that what happened in Abu Ghraib was not “the American way,” though a closer examination of the role of our prison system might produce the opposite conclusion. Seen from the military’s perspective, however, the suggestion is faintly exculpatory. It suggests that the source of the problem lies not in the military, but in the introduction of civilian methods of incarceration under crisis conditions in Iraq.

   To the Church report’s denial of a connection between the memoranda and Abu Ghraib, two types of answers may be made. One approach accepts the difficulty of finding a smoking gun, but is satisfied with a general association of the memoranda’s thought world and the abuses that took place. The torture memos signaled the Bush administration’s belief that every possible step, including evading or bending the law, should be taken in order to discover information about terrorist attacks. The administration’s famous conflation of the war in Iraq with what its insiders call the GWOT, or global war on terror, makes it likely that in dealing with suspected insurgents in Iraq, military personnel, not to mention the civilian contract interrogators, followed the lead that had been set by the president and secretary of defense and was captured, in snapshot form, in the memoranda. The general who supervised interrogations at Guantánamo visited Iraq in the fall of 2003 and, shocked by the disorganization of Abu Ghraib, proposed that it be “Gitmoized” through the introduction of specific regulations that in fact drew closely on the framework produced by the Defense Department working group. (It is unclear precisely when the Abu Ghraib photographs were taken, but they may well have pre-dated this visit.) On this view, the treatment at Abu Ghraib, intended to “soften up” prisoners so that they would give information, is of a piece with the techniques authorized by the working-group documents, even if it does not fit neatly within their legal categories. Both involved stress positions. Both involved dogs. Sexual humiliation was never explicitly prohibited. The general pattern suffices to prove the point.

   Another answer points to an agency almost entirely unmentioned in the Church report: the CIA, which in military parlance falls under the catchall heading of “OGA,” or “other governmental agencies.” In a careful piece of reasoning that first appeared on the blog “Balkinization,” which is frequented by constitutional advocates and law professors, Martin Lederman, an eight-year veteran of the Office of Legal Counsel who was not privy to the memos when they were written, has argued that the initial memoranda were drafted not with the military in mind, but with the goal of immunizing CIA agents against prosecution for the use of techniques that would otherwise have amounted to torture. The key to Lederman’s argument is that while the government lawyers certainly knew that military personnel would be bound by the Uniform Code of Military Justice, those laws do not restrict the CIA, and the statements of policy that order the military to act as though the Geneva Conventions applied and to treat the detainees humanely do not expressly include the CIA in their ambit. It would follow that the CIA, unlike the military, would be authorized to do anything except violate the U.S. anti-terror statute–which is precisely the statute whose reach the memoranda sought to diminish.

   Further support for Lederman’s position may be gleaned from a stray bullet point that appears at the end of an unsigned document in Greenberg and Dratel’s collection. Recording a conversation among lawyers for various government agencies, it notes that lawyers for the CIA specifically sought clarification from the president for the fact that the policy of applying the Geneva Conventions did not apply to its agents. Ominously, it notes also that lawyers from the Justice and State departments “made no comment.” In his written responses to the Senate during his recent confirmation hearings for the post of attorney general, Gonzales acknowledged that the presidential order directing that prisoners be treated in compliance with the Geneva Conventions did not apply to the CIA or other non-military agencies. This belated acknowledgment provides the best evidence yet that Lederman’s analysis was correct.

   So if the memoranda were aimed at the CIA, then Abu Ghraib may be understood either as a space in which the CIA approach went awry (there were, by all accounts, “OGA” personnel in the prison, though they, too, ought to have been governed by the Geneva Conventions while in Iraq), or as a sideshow that accidentally cast light on the whole question of torture. The really upsetting American actions to be considered would include, on this view, the Guantánamo detentions without hearing, which were subsequently modified by the Supreme Court’s decision to require due process. But, more prominently, they would include also renditions to other nations where intelligence services routinely torture; and the CIA’s use of techniques as extreme as “waterboarding,” in which a prisoner is strapped upside down to a board and immersed in water to simulate drowning. This technique or something like it appears to have been used to interrogate Khalid Shaikh Mohammed, to some effect.

   The problem with this CIA-focused line of analysis, of course, is that so far it rests mostly on informed conjecture. It would be a grave mistake to think that the memoranda contained in these volumes, even supplemented by further documents that may come to light, represent the totality of the relevant government evidence on these questions. Plenty of material certainly remains classified, and it will remain so for the foreseeable future, as perhaps some of it should in light of the continuing terrorist threat. We cannot at present answer responsibly the question of the exact consequences of the memoranda by the administration’s lawyers. The Office of Legal Counsel has issued a new memorandum with a less restrictive and more legally responsible definition of torture. But that memorandum contains a footnote stating that OLC does not believe that the conclusions of the office’s earlier memoranda addressing the treatment of detainees “would be different under the standards set forth in this memorandum.” One possible implication is that at least some government officials have already acted on the basis of those early memos, and OLC does not want to leave their actions legally unprotected. In this sense, at least, the damage to the definition of torture may already have been done.

   III.

   The impossibility of knowing all the consequences of the government memoranda makes it all the more urgent to ask the deeper question of what exactly is wrong with their argument from reciprocity–or, more precisely, from the breakdown of the argument from reciprocity that these documents attempt to enact. Law provides one sort of answer to this question, and the ideology of human rights another. Each, in different ways, challenges the idea that the principle of reciprocity lies behind the duty to comply with the laws of war.

   The response of the American legal community to the memos has in the first instance been that they are bad law, poorly framed by the standards of the craft. Sifting assiduously through the memoranda, refuting one argument after another, lawyers and legal academics have done much to show the flimsiness of the reasoning. Often the targets are easily hit. The law students in my seminar had no trouble spotting inconsistencies in the memos. One federal court decision cited there, for example, found torture to have occurred when a woman was removed from a ship, interrogated, held incommunicado for months, and threatened with death if she tried to escape–yet the same memos were defining torture to permit treatment virtually indistinguishable from this, and indeed far worse. Another sure loser is the casuistic argument that failure to comply with U.N. Security Council resolutions renders a state “failed” and therefore removes it from the protection of the Geneva Conventions. The most frequent justification for war under international law is that a state, like Iraq, has ignored the Security Council’s command. It can hardly be the case that the Geneva Conventions do not apply in an archetypally lawful war.

   More broadly, the core of the legal response to the official memoranda is that the United States is not excused from its legal obligations just because the other side has decided not to play by the rules. Even where the Geneva Conventions do not apply–as, for example, to combatants out of uniform–other legal standards must be considered. These include not only the ban on torture or the constitutional prohibition of treatment that shocks the conscience, but also relevant legal procedures for determining who actually is a terrorist and under what conditions such persons may be detained. In this vein, the Supreme Court has required hearings for the Guantánamo detainees, many of whom have already been released. To much of the legal community, the greatest flaw in the torture memos is that they sought to evade the law by finding categories and spaces where no law applied. In so doing, they resisted and ultimately subverted the rule of law itself.

   Vindication of the rule of law deserves the support of anyone committed to the possibility of legal justice and a constitutional order of limited government. Going outside the law–or above it–ensures a disrespect for institutions and individuals alike, and it comes as no surprise that torture can be a result. But such a criticism of the memoranda is too formalistic, or too general, insofar as it concerns the rule of law as such; and it runs the risk of missing the essentially moral claim on which the memoranda drew, namely that the reason for obeying law is the reciprocal agreement of all sides to be bound, and so the old rules could not apply in a war against the new terrorists. Troubling as this claim might be, it cannot be dismissed out of hand merely by asserting that moral claims cannot justify distortions of legal craft or deviations from the rules.

   Imagine that the scenario was the enforcement of the fugitive slave laws of the antebellum United States. Careful lawyers would be able to argue–many did–that the purported immorality of slavery made no difference to the deployment of legal principles. Meanwhile, morally inspired lawyers would go to great lengths to pressure, to massage, and even to distort accepted legal doctrine to try to avoid returning slaves to their Southern masters. Who would be right as a matter of law? The answer turns on the role that morality plays in the American legal system. That role is immense. Even if one believed that there might exist, somewhere in the world, legal systems that strictly separate law from morals, it is hard to look at the great sweep of American law and conclude that ours is one of them. Our constitutional law, certainly, incorporates principles of moral force.

   So moral considerations must indeed be a part of the legal debate. And once morality is in the conversation, we cannot simply reject the government memoranda for their attack on the rule of law. We need to acknowledge that the imperative of self-preservation is itself a moral value to which the law is sensitive; and we must ask whether we are convinced by the implicit moral theory of the government’s lawyers, which was that the circumstances of the war on terror justified deviation from the bounds of ordinary legal interpretation and practice. To do so we must turn to the human rights arguments deployed against the memoranda, because these arguments rest directly on moral grounds.

   The human rights community offers a powerful moral objection to the claim that the enemy’s non-reciprocity dissolves our duty to obey the law. The claim is that the Geneva Conventions, or U.S. statutes, or the Constitution, are to be respected not because they are conventional legal agreements between parties, but because they embody the universally true and indefeasible value of human dignity. No matter how the enemy may treat you, he is still a human being, and so are you. From those two inexorable facts, from the fact of his human dignity and the fact of your human dignity, flows a duty of biblical–or, if you prefer, Kantian–weight. It is that he, the enemy, must be treated humanely no matter what the consequences. His lack of reciprocity is, quite simply, morally irrelevant. The principle of non-reciprocity invoked by the government’s lawyers represents, say the human rights advocates, a moral mistake, which led to similar moral mistakes at Abu Ghraib.

   The argument from human dignity has not been asserted with sufficient clarity in the public debate about the torture memos and Abu Ghraib. There should be nothing disconcerting to Americans about the claim that all humans are created equal and endowed by their Creator with certain inalienable rights. Surely dignity is to be found within the rubric of life, liberty, and the pursuit of happiness. Some may be uncomfortable with the avowedly religious basis of this American belief, preferring the Kantian substitute; but whichever argument would be more powerful with the American public or the Bush administration itself, the fundamental human right to dignity cannot be gainsaid, except by introducing cost-benefit analysis into the discussion.

   Yet the human dignity argument does not, alas, settle the matter. Its drawback lies in a different quarter, far away from philosophy. The problem is that such an ideal cannot, as a general rule, be expected to do all the work in the real world of war and national interest, especially when lined up against the powerful human impulse to revenge. That is why the laws of war have historically had to depend on reciprocity, rather than the unilateral adoption of wise moral restraints. Moralists, if they are actually to improve the human world, must also be realists; and moral reflection on war must regard war as it really is, in all its brutality and its appeal to the darker impulses. When the French at Agincourt kill the boys, Shakespeare’s Henry V retaliates in kind by killing the French prisoners he has taken, Fluellen’s protestations that both actions are expressly against the laws of war notwithstanding. Henry does not act without compunction, but he does avenge his subjects’ deaths. Vengeance, too, is a form of reciprocity. Against it, a commitment to acting morally no matter what the other side may do is difficult, almost impossible, to sustain.

   IV.

   The limitations of the legal and the human rights arguments against the torture memoranda suggest a third possibility: that the principle of reciprocity does, in fact, have something to teach us about what was wrong with the worldview of the administration, or of its lawyers. Perhaps the memos did not err in raising the question of whether the terrorists’ tactics broke the principle of reciprocity that underlay traditional law-of-war norms. The problem may have been, rather, that the memos gave the wrong answer to this question, mistakenly judging that Al Qaeda’s deviation from the laws of war made it prudent for the United States to circumvent them as well.

   The first error that the memoranda made was in assuming that only the terrorists and the United States were relevant parties in determining whether reciprocity still gave a reason for rulefollowing. In fact, reciprocity is almost always more than bilateral. It need not narrowly mean that I follow the agreement that we have reached on the expectation and hope that you will do the same. Reciprocity extends also to my desire to convince other parties, third parties, that agreements are worth keeping, even when such parties might be able to get away with violating them. Just as important, reciprocity includes the proposition that I have an interest to signal that I am the kind of person or entity who keeps agreements in spirit as well as in letter.

   The rule of law, understood from this perspective of reciprocal interest in keeping to the rules, is not only a good in itself. It is also a tool for promoting a habit of rule-following that serves the interests of stability. No wonder a propertied bourgeoisie always prefers the rule of law, while autocrats and revolutionaries favor the possibility of bending or breaking the rules when it is expedient. If enough people follow the rules, the custom of doing so may harden into a social norm. But if everyone is potentially what Oliver Wendell Holmes Jr. called a “bad man,” constantly weighing the risks of breaking the law against what he can gain from breaking it, the rule of law is unlikely to find much traction, and the costs of enforcing compliance will rise drastically. To make any legal system work, most people most of the time need to follow the law without giving it much thought. Moreover, the most salient actor in the system–the state, typically–will always be the most effective promoter of it. If it breaks the law, then it signals that anything goes. If it follows the law, the habit of obedience is encouraged.

   It was precisely this richer conception of reciprocity that led the United States during the Cold War to champion international treaties and the rule of international law. The United States perceived it to be in our interest to encourage obedience to treaties that we helped to draft; and it was equally in our interest to condemn our enemies for their deviations. The Geneva Conventions themselves reflected American influence and pressure, and of course the United Nations was also conceived as a creature of Roosevelt’s vision of how the United States might lead through a combination of soft influence and hard power. It helped that, during the Cold War, the Soviet bloc existed to provide the threat of someone else capturing our soldiers or torturing our civilians; but the foreign policy realists of the era understood perfectly well that behind the Iron Curtain, legal agreements alone would not necessarily protect our prisoners.

   The disappearance of the Soviet threat helped to set the conditions in which the United States could begin to imagine that it could get away with deviating from international law reciprocity with no significant added cost. But this was a profoundly shortsighted view, fundamentally at odds with the Bush administration’s own stated objective of holding nations accountable for their actions or those of terrorists whom they might be harboring. In a hastily drafted response to the OLC memorandum on applying the Geneva Conventions in Afghanistan, State Department lawyers pointed out that it could be harmful to American soldiers in future wars to declare the Geneva Conventions irrelevant; but even this formulation fell far short of what needed to be said. The central and crucial point should have been that if the United States aimed to demand accountability with international norms, it had better begin by actively and visibly upholding those norms itself. Whatever the merits of unilateralism in foreign policy, unilateralism in law and morals is incoherent and dangerous.

   There is another consideration. In the frenzied days after September 11, when the memoranda were being written, the Bush administration had not yet settled on a policy of combating terror by promoting democracy in the Muslim world. But it should rapidly have become clear that this objective, too, requires special vigilance to the promotion of international legal norms. After all, the purported advantage of democracy from the perspective of the United States lies in the assumption that democracies follow the norms of international good behavior better than monarchies or proletarian dictatorships. Democratization would do the United States no good if new democracies in the Muslim world were to adopt policies of exporting terror against us. The other great appeal of democracy lies in its dependence on the proposition of human equality and universal rights–and that idea, too, can be promoted efficaciously only by a country that respects fundamental rights, including very prominently a right against torture.

   It emerges that in these memoranda, as in a broad range of subsequent detention decisions, the Bush administration erred disastrously by its failure to consider the costs of the world’s perception that it was acting without concern for the reciprocity inherent in a legal order. Had the administration decided to treat the Guantánamo detainees as prisoners of war, Al Qaeda members could still have been tried for war crimes; but the world would not now see Guantánamo as a symbol of American flouting of international humanitarian law. There would also have been no strong legal objection to repatriating them at will, as there is today.

   It is of course possible–though at present unknowable–that under the sort of harsh CIA interrogation that would have been barred by the Geneva Conventions, one or a few Al Qaeda detainees might have disclosed information that saved lives. But a more careful evaluation of who had been brought to Guantánamo, the case-by-case investigations that the Geneva Conventions in fact require for persons whose prisoner-of-war status is unclear, would have spared much, if not all, of the international condemnation that the United States has incurred. What is more, by opening detention facilities to reporters, the United States could have gained enormous leverage in the international press, including in the Arab world.

   The important point is that the United States was not invulnerable to the costs of non-compliance by virtue of the collapse of the Soviet bloc. Quite the contrary. The costs of failing to comply were great in light of the objectives that the United States has sought to pursue since September 11. When it came to international law, detention, and interrogation, the Bush administration failed to understand why reciprocity is valuable, even when the immediate enemy is never going to comply. This was not only moral obtuseness. It was also something worse, for the consequentialist (and all strategists are consequentialists): a profound and damaging error of judgment.

   The costs of the Bush administration’s misunderstanding of reciprocity were still higher at Abu Ghraib, which constituted the greatest single blow thus far to the American policy of democratization in the Middle East. We Americans are alarmingly quick to forgive ourselves our prior bad acts when we have begun to turn the moral corner, but it must be remembered that our track record with respect to democracy in most of the Middle East is nothing short of disastrous. Having declared a policy of democratization, we begin far, far behind the line of scrimmage, penalized by the broadly shared and largely accurate perception that our policy has long favored the stability of dictatorship (and the steady oil flow that comes with it) over the uncertainties of democratic self-governance. Many in the Arab world long ago reached the conclusion that our rhetoric never matches our actual practice when it comes to them. That left hopeful Arab moderates, in Iraq and elsewhere, seeking to reassure the skeptics that this time we meant it. Our duty was to give them evidence to show that they were right.

   For the short term, at least, Abu Ghraib seriously damaged that objective. It was not simply that Arabs were shocked by the horror of what they saw: repulsive and illegal as the abuses were, Arab audiences know that worse things happen in the prisons of autocrats in their countries and beyond. (The wires on that hooded figure were not, after all, attached to electrodes.) The devastating effect of Abu Ghraib was that to those who had always suspected the United States of similar behavior in the past, the ocular proof of what transpired in that prison was confirmation of what they already knew. To the hopeful moderates, the message was simple: we Americans behave as horribly as anybody else when we have absolute power.

   What does this mean for the prospect of a successful democracy in Iraq? For one thing, it means that even if a moderately stable, moderately democratic regime emerges there, the United States will get little or no credit for it. Those images are burned too deep into the Iraqi psyche to be soon forgotten, even though they must compete with the many more recent images of Iraqis dying at the hands of suicide bombers. But the public relations effect of Abu Ghraib is only one part of the story, and not the most important. Far more significant is the actual suffering of actual Iraqis in American custody. The United States bears significant responsibility for terrorism deaths in Iraq to the extent that they result from the fact that we invaded with insufficient troops to keep the peace as required of any occupier as a matter of law and morality. But the sins of Abu Ghraib were committed with our own hands, and our responsibility is correspondingly greater.

   This harm cannot be undone, and it is part of a broader set of harms that are still happening to Iraqis as a result of the way the United States has conducted its invasion and its occupation. We Americans are under a heavy duty to put an end to those harms by producing security in Iraq so that the democratically elected government can actually govern. The clock is ticking. The benefit to Iraqis of a stable government and freedom from Saddam’s yoke will be very great, but it cannot outweigh every possible burden that they could ultimately suffer. The more Iraqis die, the longer insecurity reigns, the harder it will become to justify the invasion on the ground that it left the Iraqi people substantially better off than they would have been under Saddam.

   It is a painful if occasionally obscure truth that the rightness or wrongness of our actions is sometimes decided by their consequences. That is why Aristotle raised the possibility that one could not judge a man entirely happy while he still lived: his children’s fate would bear on how well he had constructed his life. We do not yet know whether the removal of Saddam–not generally, but in the way it concretely occurred–will have been justified. But we need not sit idly by and watch to see how it comes out. We are under a continuing and heavy duty to try to get things right–by following the rules that we have set, providing security and stability where little now exists, and treating others the way we wish to be treated ourselves. Those who believe that democracy can be established by American force in the absence of American moral example are deluding themselves, and Iraq, and us.

   Noah Feldman is a professor at New York University School of Law. His new book, Divided by GOP: America’s Church-State Problem–And What We Should Do About It, will be published by Farrar, Straus & Giroux this summer.

   Click Here For FOUR FREE WEEKS of The New Republic.

3. Robert Says:
   May 27th, 2005 at 6:43 am

   Abbreviate this SHIT !!!!!! Too Much to Read

4. jbc Says:
   May 27th, 2005 at 7:14 am

   Heh.

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