"Abu Ghraib Requires a Political Response"
" Like Father, Like Son"
Abu Ghraib Requires a Political Response
By Bruce Ackerman, Sterling Professor of Law and Political Science
(The following essay was originally published in the September 15, 2004, edition of the Philadelphia Inquirer.)
We are opening a new stage in our collective confrontation with Abu Ghraib. America has taken the lead in the postwar period in holding officials in other countries legally responsible for their abuses of power. It is time to judge ourselves by the same rules we impose upon others.
Consider one of the great recent achievements of American diplomacy: the creation of the war crimes tribunal for Yugoslavia, now sitting in the Hague. Americans are largely responsible for the statute governing these trials. Their governing idea was command responsibility. Any official who "orders" the violation of the Geneva Conventions is guilty of a war crime. While others may also be guilty through failure to exercise oversight, the clearest cases involve those who have "planned, instigated, ordered" or "committed" a crime.
Though much remains obscure, we already know enough to begin to apply these legal principles to Abu Ghraib. According to the Pentagon study led by former Defense Secretary James Schlesinger, Army Lt. Gen. Ricardo Sanchez signed a September 2003 order authorizing techniques that were plainly illegal under the Geneva Conventions. When his superiors at CENTCOM (Central Command) disapproved this command, Sanchez issued a second one that departed from standard policy by explicitly authorizing investigators to control all aspects of the interrogation, including "lighting and heating, as well as food, clothing and shelter given to detainees." The Schlesinger report found that Sanchez' orders "clearly led to confusion," and lawful orders "likely would have had a limiting effect" on the abuses. Evidence from a secret part of a second report, prepared by Maj. Gen. George Fay, has also been leaked. It contains a cable signed by Gen. Sanchez, which includes the following: "Presence of Military Working Dogs: 'Exploit Arab fear of dogs while maintaining security during interrogations.'"
This amounts to a clear breach of command responsibility, and in no metaphorical sense. Former generals of the Yugoslav republics are serving tens of years in prison on the same legal basis. Of course, Gen. Sanchez and his staff should be given an opportunity to rebut these reports, but if the charges are accurate, the very least they should expect is an immediate discharge from the armed services.
The United States has refused to sign the Rome Treaty, creating an international criminal court, whose founding statute contains an identical legal provision. We have claimed that the danger of politically motivated prosecutions is too great, given our global military responsibilities. But if this claim is to be in good faith, we must organize a vigorous domestic response. It is one thing to protect the armed forces from politicized justice; quite another, to make it a haven for suspected war criminals.
The new reports describe a more ambiguous situation further up the chain of command. When Gen. Geoffrey Miller offered his Guant?mo protocols as a model, he noted that "the Geneva Conventions did apply to Iraq." And Gen. Sanchez' superiors in CENTCOM rejected his initial order violating those conventions. Further investigations are clearly necessary, but we should not use them as an excuse for failing to respond now to the unambiguous findings already made in existing Pentagon reports.
We should rely on politics, not law, as the principal way of calling our leaders to account. The law should enter only when commanders personally and concretely involve themselves in clear acts of wrongdoing. Secretary of Defense Donald Rumsfeld is only politically accountable for the prison abuse at Abu Ghraib, but if, as he has publicly acknowledged, he personally violated the Geneva Conventions by ordering that an Iraqi prisoner be kept away from the International Red Cross, that is a very different matter. We do not know enough yet to judge Rumsfeld's culpability. But at least one thing is clear. He should be required to explain, in detail, this apparent violation of command responsibility. He should not be allowed to engage in a standard exercise of political dodge-ball.
Abu Ghraib has put America on trial before the world. More important, it forces us to look at ourselves in the mirror and define the relationship of law to our public life. Unless we act decisively, the present scandal may serve as a prelude to a grim future.
Like Father, Like Son
By Bruce Ackerman, Sterling Professor of Law and Political Science
(This essay was originally published on The American Prospect Online on Sept 14, 2004)
Who was the first president to malign his opponent in a re-nomination speech? Bush Senior.
George H.W. Bush: "Listen to this now, two days after Congress followed my lead [and authorized the first Gulf War], my opponent said this, and I quote directly: 'I guess I would have voted with the majority if it was a close vote. But I agree with the arguments the minority made.' Now sounds to me like his policy can be summed up by a road sign he's probably seen on his bus tour: 'slippery when wet.'"
Compare to George W. Bush, the Younger: "My opponent and his running mate voted against this money for bullets, and fuel, and vehicles, and body armor. When asked to explain his vote, the Senator said, 'I actually did vote for the 87 billion dollars before I voted against it.'"
One more time. The Elder: "Then he said that America was . . . being 'ridiculed' everywhere . . . . Ridiculed? Tell that to the men and women of Desert Storm."
The Younger: "In the midst of war, he has called America's allies, quote, a 'coalition of the coerced and the bribed.' That would be nations like Great Britain, Poland, Italy, Japan, the Netherlands, Denmark, El Salvador, Australia, and others -- allies that deserve the respect of all Americans, not the scorn of a politician."
Perhaps the Bushes' speechwriters are genetically engineered. It's also possible that we are in the presence of a genuine conviction of the Bush family -- that they see themselves as unique men of character in a world of political opportunists.
Bush's attacks on Kerry were mild by comparison with Zell Miller's, but they mark a sharp break with history. For the first 150 years, it was considered unseemly for a nominee even to attend his party's convention, much less give a partisan speech. His operatives, of course, were full of personal invective as they wheeled and dealed their way to the nomination. But the candidate himself stayed modestly at home and received the news, brought to him by a small delegation on his porch, with a few humble words.
Franklin Roosevelt broke the mold, flying from Albany to Chicago to proclaim his New Deal to a cheering convention in 1932. But his speech was strictly policy and vision, without personal attacks on Herbert Hoover. And once he gained the presidency, his restraint set a precedent.
Like George W. Bush, Lyndon Johnson in 1964 and Richard Nixon in 1972 were also re-nominated in time of war, but their re-nomination speeches did not impugn their rivals' personal fitness to serve as commander in chief.
This tradition of rhetorical restraint, stretching over two centuries, was a response to a deeper constitutional dilemma. In contrast to the leaders of most other nations, our president is both the head of state and the leader of government. In his first capacity, he is a symbol of the entire country; in the second, he is the leader of his party. By allowing the candidates to appear above the fray, the 19th-century solution permitted the winner to take his position as head of state despite the pervasiveness of passionate partisanship. Once Franklin Roosevelt broke with old-fashioned notions of republican modesty, he cleared the way for his successors to unleash an escalating cycle of incivility.
Get real, I hear you say: American politics has always been full of personal abuse. But that is precisely why rhetorical restraint by the sitting president is so precious. It has stood as a striking reminder that, even at our most partisan moments, he is something more than a party leader. Some time soon, the president may be obliged to present himself as a spokesman for all Americans. How will he engineer this 180-degree turn?
This is a moment that future historians will long remember. Bush Senior's embrace of the attack-presidency was an act of desperation, suggesting his impending defeat; Bill Clinton returned to the presidential norm in his re-nomination speech of 1996, pledging, "I will not attack them personally, or permit others do it in this party if I can prevent it." If the present effort fails, perhaps our political wizards will conclude that there are better ways to defend the presidency than to degrade it?
Bruce Ackerman, a professor at Yale, is the author of a constitutional history, We the People.