My original headline posed a different question: "Presuming Guilt: Did Bush Set the Stage for Abu Ghraib?" Then came the videotaped beheading of 26-year-old American civilian Nicholas Berg. That ghastly demonstration of our enemies' thirst for American blood may, a hard-line friend suggests, lead many Americans to "see Abu Ghraib as an ugly fraternity hazing." Be that as it may, the whole horrible tableau of news from Iraq wrenched my attention to the question posed by my revised headline.
The two questions are related. A plausible (although unattractive) argument can be made for continuing the apparently systematic use of extremely rough interrogation techniques to "soften up" large numbers of prisoners, without taking much time beforehand to sort out those who are innocent civilians. The argument is that indiscriminate brutality is our best hope of suppressing the insurgency in Iraq, and that suppression in turn is essential to stopping the jihadist barbarians from destroying our civilization.
And when it comes to getting information out of prisoners, the urge to be as brutal as necessary to break them becomes more palatable if we presume they are all enemies, as President Bush has explicitly decreed in the case of those at Guantanamo Bay, among others.
The more comprehensive argument for indiscriminate brutality, as I have heard it, goes something like this:
It's very bad that so many of the Iraqis we expected to greet us as liberators have ended up hating us. But it would be incomparably worse to let them drive us from Iraq in defeat. Such a show of weakness would bring legions of new recruits into the jihadist mass-murder movement. With America reverting to its pre-9/11 defensive crouch, triumphal jihadists would swarm the globe. It would be only a matter of time before they got nuclear bombs, obliterated New York and Washington, and thereby depopulated our other cities, destroyed our economy, and brought our way of life to an apocalyptic end.
The only way to avoid such a chain of events is to make Iraqis and other Arabs fear us more than they hate us. That requires unflinching brutality. We must make an example of Falluja. We must spill as much civilian blood as it takes to get at the insurgents. We must ally with Shiites and Kurds to crush the Sunnis without mercy. When we take prisoners, we must break them—how else to sort out the innocent civilians from the terrorists?—to obtain intelligence. And all this legalistic second-guessing by the media and Congress will only cripple our warriors' fighting spirit.
The post-Iraq nightmare sketched above is all too possible. And if brutalizing thousands of Iraqis really were the best bet for averting apocalypse, the argument for doing so would be strong. At least as strong as President Truman's justification for incinerating Hiroshima, Nagasaki, and some 200,000 of their inhabitants to end World War II.
But the anti-American firestorm over the torture—and the killings, and the alleged rapes—of prisoners at Abu Ghraib and elsewhere shows that in a war that is televised worldwide, and in which the battle for hearts and minds is critical, indiscriminate brutality brings strategic disaster. Short of slaughter on the scale of a Saddam or a Stalin, it will reap more hatred than fear.
None of this is to suggest that either Bush or Defense Secretary Donald Rumsfeld has overtly endorsed indiscriminate brutalization of prisoners. But by speaking and acting in a way that inverts our law's foundational principle—that all prisoners should be presumed innocent until proven guilty—they may have fostered a climate conducive to such brutality.
The Pentagon has authorized the "softening up" of at least some suspected terrorists for interrogation by techniques such as holding them naked in frigid or sweltering cells, depriving them of sleep, forcing them into "stress positions," menacing them with dogs, and employing sensory deprivation and "sensory assault." If such techniques were carefully restricted to interrogations of proven terrorists who may have potentially life-saving information, they would be defensible, both morally and, under a narrow reading of international human-rights law, legally.
But the Bush-Rumsfeld presumption that our prisoners (at least those at Guantanamo) are guilty until proven innocent may have been seen by some as a green light for indiscriminate brutalization of any and all prisoners who might possibly be terrorists. No cause-and-effect connection has been established, and the military's written interrogation rules for Iraq do require high-level authorization for the tougher techniques. But the signals from the commander-in-chief have surely communicated little respect for international law or for the presumption of innocence.
"The only thing I know for certain is that these are bad people." So said Bush last July, in response to a reporter's question about whether the 660 suspected Qaeda and Taliban members then imprisoned at Guantanamo (aka Gitmo) were "getting justice." The "bad people" included three Afghan boys between 13 and 15 years old who have since been released as harmless, after many months in captivity.
Bush's assertion was of a piece with his rationale for classifying all Gitmo detainees as "unlawful combatants"—and thus outside the protections of the 1949 Geneva Conventions—without the impartial tribunals that are required by international law and Army regulations for all detainees who raise any doubt about their status. The military has conducted thousands of such hearings in other wars. It could easily have done the same for the many Gitmo detainees who claimed to be POWs or innocent noncombatants, and thus immune from even mild pressure to provide information.
Bush decreed in January 2002 that no Gitmo prisoner would be allowed to go before a tribunal, because it was clear beyond doubt that every single one of them was an unlawful combatant. This was ludicrous on its face. In the fog of war—against enemies without uniforms who hid among civilians, while dishonest bounty hunters collected rewards for all the "terrorists" they could grab—many of those detained will inevitably turn out to be civilian noncombatants. Indeed, anonymous officials have asserted that, despite supposedly careful screening in Afghanistan, dozens, if not hundreds, of men were sent to Gitmo by mistake. And the Pentagon has released more than 130 Gitmo detainees.
Now consider Iraq. Rumsfeld claims to be honoring the Geneva Conventions there. But the Red Cross's finding of systematic violations is supported by massive evidence. And the military in Iraq has adopted many of the interrogation techniques used at Gitmo. Indeed, last year, the Pentagon famously sent Maj. Gen. Geoffrey Miller to "Gitmo-ize" Abu Ghraib and squeeze more information out of its prisoners. Miller, who was then the commander at Gitmo, now heads our prison system in Iraq.
It's unclear how many of the 43,000 people we have imprisoned in Iraq have been abused or subjected to tough interrogation techniques. It is clear that more than 30,000 of them were eventually classified as harmless enough to be released—in many cases, after harrowing treatment by their American jailers and interrogators, according to media interviews. The Red Cross found that 70 to 90 percent of all prisoners in Iraq "had been arrested by mistake."
The Bush administration has not restricted its inversion of the presumption of innocence to its overseas prison systems. In 2001 and thereafter, Attorney General John Ashcroft repeatedly implied that most, or at least many, of the 762 mostly Middle Eastern men rounded up in the United States in the wake of the September 11 attacks were terrorists or criminals. But as he knew, no evidence connected the vast majority of them to terrorist activities. They were simply caught in an understandably broad net that was thrown after 9/11 to disrupt any planned follow-on attacks. Yet many whose harmlessness could have been quickly established were held for months in punitive and degrading conditions, including being subjected to serious physical abuse. And Ashcroft dismissed complaints by smearing these men—most of whom had committed only minor, noncriminal immigration violations— as "law violators."
The administration has also applied a presumption of "enemy combatant" status to two American citizens, Jose Padilla and Yaser Esam Hamdi, whom it has detained indefinitely in a South Carolina naval brig and subjected to more than a year of incommunicado interrogation. It has urged the Supreme Court to rubber-stamp such detentions without meaningful judicial review of whether the prisoners are in fact enemy combatants—or whether they have been tortured. "Where the government is on a war footing," Deputy Solicitor General Paul Clement told the justices during oral arguments on April 28, "you have to trust the executive."
That same evening, CBS broadcast the first exposé of the torture at Abu Ghraib.