Posted at New Partisan on 07.23.2004 by Laurie Calhoun in International Affairs. Reprinted here by permission of author.
The torture and humiliation inflicted by U.S. soldiers upon their Iraqi prisoners has been widely decried by the international community and the U.S. Administration alike. Although independent groups such as the Red Cross have reported that the type of abuse witnessed at Abu Ghraib has been “systematic” throughout Afghanistan and Iraq, President George W. Bush and his Secretary of Defense Donald Rumsfeld insist that such behavior is restricted to a tiny percentage of all U.S. troops. Because it is precisely the responsibility of the Secretary of Defense to ensure that such misdeeds not occur under his watch, it was somewhat surprising to hear President Bush praising Rumsfeld’s performance as “superb” in direct response to the widespread media coverage provoked by the scandal. Those who call for Rumsfeld’s resignation have pointed out that either he is guilty of implementing policies of torture and humiliation, or he is guilty of negligence for not having prevented U.S. forces from employing criminal procedures, since he is the manager of their conduct. Indeed, the very fact that Rumsfeld should have apologized (on May 7, 2004) for what happened at Abu Ghraib indicates that he himself recognizes his responsibility for the procedures employed by U.S. forces while acting in their capacity as soldiers. However, Rumsfeld does not believe (nor does Bush) that he should suffer any negative consequences for what is manifestly a failure of leadership and, in fact, the imperilment of the very people by whom he is paid. Righteous ire is easy to inspire, and it is the business of the Secretary of Defense to defend, not to endanger the nation.
Setting the question of Rumsfeld’s culpability to one side, many have appealed to historical precedent in rejecting the notion that the implicated soldiers might be absolved for committing immoral and/or illegal acts if they had in fact been ordered to do so by higher ranking officers. Certainly this idea was rejected by the Nuremburg tribunal, and one may not unreasonably suppose that today’s soldiers are equally capable of distinguishing legal from illegal commands and refusing to follow the latter. As military spokesmen pointed out during the heat of the controversy, it does not take an indepth study of legal documents to recognize that what was done to human beings at Abu Ghraib was wrong. But rather than entering into the vexed questions of whether or not the soldiers accused of wrongdoing were acting under order, or whether they should have known the distinction between morally acceptable and unacceptable forms of “softening up”, we should reflect upon the deeper implications of Abu Ghraib. The real lesson of Abu Ghraib is not that a handful of U.S. soldiers are depraved. Rather, the case of Abu Ghraib reveals disturbing truths about the very structure of the military and how war is conducted by the United States today.
The peculiarity of what soldiers are asked to do during wartime can be fully appreciated only from the soldiers’ own perspective. A fighter pilot is ordered to bomb Baghdad, knowing full well that he will kill human beings in the process. He also knows that were he to bomb Boston instead, he would be committing mass murder. But why should the particular coordinates on his compass determine the morality of the bomber’s act? In either case, he is pushing a button to drop a massively destructive bomb upon other people’s property which will culminate in some, perhaps many, of their deaths. There is something equally bizarre about the idea that while intimidation and humiliation are impermissible, it would have been permissible to annihilate the very same Iraqis, had this been done during the “major combat phase” of the war. Bear in mind that not all casualties of war perish immediately, and violent deaths are not usually painless. Many soldiers killed in war suffer enormously for some period of time before they finally die. Accordingly, the guards who engaged in the abuse of prisoners at Abu Ghraib may well have thought to themselves that the people from whom they were attempting to extract information should have been grateful to be alive, since thousands of others were not so fortunate.
The Abu Ghraib case is striking for having not transpired during the commission of a war widely considered to be “just”. In a war universally (or at least internationally) regarded as “just”, the misdeeds at Abu Ghraib would seem simple to dismiss as a tiny aberration in a larger and noble mission. Instead, the events at Abu Ghraib occurred during what many people all over the world continue to regard as the illegal invasion and occupation of a sovereign nation. Critics insist that George W. Bush waged the 2003 war on Iraq in violation of international law, for the 1945 Charter of the United Nations explicitly repudiates the initiation of war during peacetime, drawing a clear distinction between the defensive and the offensive use of force, and maintaining that acts of aggression by one nation against another are unacceptable. In those cases where war is being considered as a means to conflict resolution, the U.N. Security Council decides, in theory, whether and when war is appropriate. For example, in 1991 military action was supported by the United Nations on the grounds that Saddam Hussein had violated international law by invading and occupying Kuwait, to which the international community subsequently reacted defensively in response. Supporters of the 1991 Gulf War insisted that the war had been initiated by Saddam Hussein, when he ordered his troops to invade Kuwait.
Although the U.N. Security Council is considered the ultimate arbiter in matters of war and peace, the U.N. Charter does leave open the possibility of a nation defending itself unilaterally, provided that they are fighting in self-defense. In the end, the decisive interpretation of what constitutes a “threat to the peace, breach of the peace, or act of aggression” derives from either the U.N. Security Council or the leader of a nation. Article 51, Chapter VII states that: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.” By asserting a connection between Saddam Hussein (the tyrannical leader of a secular regime) and Al Qaeda (a fanatical religious faction), the Bush administration suggested that the 2003 Iraq war, too, had been initiated by someone else on September 11, 2001, and that Saddam Hussein, like the Taliban, had collaborated with the executors of that crime.
Given the commonsense distinction between the offensive and the defensive use of force (which is highlighted by cases of legitimate self-defense), many were alarmed in September 2002 when the U.S. Administration issued the National Security Strategy of the United States of America, which flatly states that “…we recognize that our best defense is a good offense…” * This is the assertion of the right to a form of “self-defense” which is roundly rejected within civil society, where suspects are presumed innocent until proven guilty, and people are not considered justified in killing other people because they seem as though they might commit crimes in the future.
Somewhat surprisingly, the U.S. policy of “preemption” or “offensive defense” gained a fair amount of support among members of the security community in the aftermath of 9/11.** The defensive use of containment, multilateral institution-building, and the rule of international law gave way during this period to a rather less-nuanced approach expressed by George W. Bush in his 2004 State of the Union Address: “America will never seek a permission slip to defend the security of our country.” In this view, when the United States decides to violate international law and flout the conventions governing even those multilateral institutions established by the United States itself, this is supposed to constitute not an affront to the rule of law, but a refusal to docilely submit to the will of other nations.
Critics of the United States’ offensive approach to defense equate the “strategy” with unprovoked military action or “naked aggression” (to use the term employed by then President George H. W. Bush in decrying the 1990 invasion of Kuwait claimed to justify the 1991 Gulf War). A straightforward reductio ad absurdum of the current Bush administration’s offensive strategy of defense is that it implies that every war is permitted, provided that the commander regards himself as acting in self-defense. The inclusiveness of this criterion is so vast that even Saddam Hussein’s 1990 invasion of Kuwait would pass the test, for he claimed to be re-appropriating territory that truly belonged to Iraq. Moreover, to assert that a nation may wage war against another nation that may in the future develop weapons that it may in the future deploy, precludes absolutely nothing. For all we know, Costa Rica and the Åland Islands (both currently demilitarized zones) may in the future develop weapons that they may see fit to deploy. Who knows what the future will bring?
Nonetheless, the soldiers executing George W. Bush’s 2003 war on Iraq were expected to obey the orders of their commander-in-chief when he told them to invade. Applying Nuremburg logic here again, one might quite reasonably ask whether these soldiers should not have been aware of the 1945 Charter of the United Nations, which explicitly prohibits the waging of an offensive war against a sovereign nation during peacetime. Far from being an abstruse and recherché legal nicety, the commonsense distinction between offensive and defensive action is limpidly illustrated within society by legitimate cases of self-defense, which never involve trespassing upon other people’s property to harm them in advance of their having committed a crime. Even less do legitimate acts of self-defense involve the slaughter of innocent people in protecting oneself against someone who may, one day, commit a crime. If soldiers are culpable for following illegal orders to “soften up” their prisoners in ways that violate the Geneva Conventions, why should they be any less culpable for following orders to kill in a war illegally waged? If the 2003 war on Iraq was illegal, then the people killed during this war were the victims of crimes no less than were the prisoners tortured at Abu Ghraib. Yet few seem capable of processing this implication. Perhaps it is too disturbing to entertain.
Supporters of the invasion will retort that law and morality sometimes diverge, and that in this case the war was just, though ostensibly prohibited by international law. It is true that not everyone upholds international law as the ultimate arbiter in moral matters—some would be quick to point out that international law has been crafted by the fallible representatives of nations—but one arrives just as swiftly at the conclusion that this war was wrong by appealing to just war theory alone. Those such as Michael Walzer, who appear to regard just war theory as the only refuge from political realism, insist that the jus ad bellum criteria must first be satisfied before a “just war” is waged. No need to indulge in subtle exegesis of the “legitimate authority” or the “proportionality” clauses in this case, for according to just war theory, a justly waged war must be a “last resort,” and the 2003 invasion of Iraq was not a “last resort” by anyone’s estimation. It is extraordinarily difficult to see how the support of the 2003 invasion of Iraq, which not only violated international law but also failed to fulfill the jus ad bellum criteria of just war theory, reveals anything more than the supporter’s own willingness to condone a war simply because it has been waged.
There are of course just war theorists who did support the war or, somewhat surprisingly, even changed their views once the war had been waged. But to modify just war theory to fit a war once waged is every bit as intellectually suspect as was redefining the purpose of the war when it emerged that WMDs were nowhere to be found, as the U.N. weapons inspectors had already reported and the United States’ own David Kay later confirmed. Some may have noticed that references to the idiom of just war theory were nowhere to be heard by the Bush administration in 2002, though it had played an important part of nearly every public address pronounced by then President George H.W. Bush in 1990 as he lobbied to garner domestic and international support for his 1991 Gulf War. The disproportionate invocation of just war theory in these two cases would seem to be grist for the mills of those who regard the theory as a purely rhetorical weapon wielded by leaders when it helps their case for war, and not when it does not.
Critics of just war theory have long maintained that its requirements are easily interpretable as fulfilled by any leader wishing to wage war, and the 2003 war on Iraq is perhaps only the most glaring illustration of this point. When British Premier Tony Blair suggested that Iraq might assemble WMDs ready for deployment in 45 minutes, he came very close to claiming that the war was a necessity, a last resort to prevent nuclear holocaust. For her part, U.S. National Security Advisor Condaleeza Rice observed on September 2, 2002 that “…there will always be some uncertainty about how quickly he [Saddam] can acquire nuclear weapons. But we don’t want the smoking gun to be a mushroom cloud.” Even setting to one side this flagrant use of fear-mongering propaganda, the profound lack of epistemological humility on the part of the Bush administration is everywhere on display: in their execution without trial of suspects (at the very least in Yemen, on November 4, 2002), in their detainment of suspects without legal representation in Guantánamo Bay and elsewhere, and in their waging of a war that contradicted the findings of the U.N. weapons experts charged with assessing the danger of WMDs in Iraq. Rather than acknowledging the import of their mistakes, the administration either claims that the case in question is irrelevant (e.g., the forged documents regarding attempts to purchase uranium in Niger), or false (consider their response to the results of the 9/11 commission report with regard to the alleged connection between bin-Laden and Saddam Hussein).
Historians may realistically observe here that the jus in bello tenets of just war theory emerged as a part of an effort to limit the damage done during war. In this view, wars will be waged, and the jus in bello tenets serve as guidelines to limit the devastation and moral degradation inherent to war. Among other things, jus in bello requires that captured soldiers be respected as human beings. If they survive attempts at their annihilation during the major combat phase of the war, then they must be treated as human beings vested with rights, in accordance with what have been codified as the Geneva Conventions. The damage done by soldiers engaged in war must also be proportional to the military objective which they have been told to achieve. Vittoria and many others have argued that soldiers enjoy “invincible ignorance” for the acts of killing that they commit during a war unjustly waged by their commander-in-chief. But this does not mean that the thousands of innocent people killed in Iraq in 2003 were any less the victims of crimes than would have been the victims of a fighter pilot directed to bomb Boston instead of Baghdad. The thousands of innocent people killed by the order to bomb Baghdad in violation of international law and the jus ad bellum requirements of just war theory were the victims of a criminal war waged by a war criminal.
Accordingly, in terms of its practical political consequences, it emerges that Abu Ghraib is a red herring, diverting the populace’s attention from a question much more widely discussed abroad— what does it mean to have waged an illegal war? The case of Staff Sergeant Camilo Mejia, recently court martialed for desertion, reveals just how incoherent (or worse) the managers of this war appear to be. Mejia went AWOL on grounds of conscientious objection, effectively denying that either the jus ad bellum or jus in bello clauses of just war theory were satisfied by this war. Mejia opposed the “cause” of the war, claiming that it had been waged for oil, and the conduct of the war, claiming that civilians were wantonly slaughtered and prisoners mistreated. But prisoner mistreatment was precisely the basis for the courts-martial of soldiers at Abu Ghraib. It is an irony of no mean proportion that low-level soldiers should be prosecuted both for executing and for not executing a morally dubious war. “Grunts” are called “grunts” for a reason, I suppose.
Even more difficult to reconcile with the facts of torture at Abu Ghraib and the administration’s public repudiation of the practices is that until only recently a proposal was being drafted to extend a July 2000 U.N. Security Council resolution granting immunity to U.S. peacekeepers from prosecution for war crimes. The resolution was renewed last year through June 30, 2004, but will not be renewed again, most likely because of the scandal at Abu Ghraib. The salient point remains, however: the fact that the U.S. should ever have sought such immunity itself suggests that its troops use techniques that either are criminal or would be easy to interpret as criminal. Furthermore, the insistence of Rumsfeld that the Geneva Conventions do not apply to the members of terrorist organizations such as al-Qaeda would seem to imply that the soldiers at Abu Ghraib attempting to extract information from prisoners probably were not acting inconsistently with that policy, for the people most likely to have information about terrorist activities are terrorists themselves, and so any prisoner from whom information was being extracted was, almost by definition, a suspected terrorist. If Rumsfeld and Bush make no distinction between suspects and terrorists (recall the execution of six suspects in Yemen by predator drone on November 4, 2002), why should their troops? And what is the moral of Camila Mejia’s case supposed to be? Apparently that soldiers may, indeed should, act in accordance with their own conscience, but only so long as it coincides with that of their commander-in-chief. In other words, soldiers have an obligation to abide by morality, but they may not refrain from fighting a misguided war illegally waged by their commander-in-chief, though this would seem to be the gravest affront to morality that there could possibly be, resulting as it has in the slaughter of thousands of human beings.
In distinguishing permissible from impermissible action, just war theorists invoke the “Doctrine of Double Effect,” which allows one to evaluate the moral rightness or wrongness of an action by considering the actor’s intention. If a killer targets innocent life directly (either as an end in itself, or as a means to an end intentionally sought), then his act is murder. If, in contrast, a killer physically causes the deaths of innocent people as an unintended side effect of a legitimate military action, then those killings are not murder but “collateral damage”.
The problem with this approach to distinguishing permissible from impermissible killings of innocent people is that it is quite unclear that any soldier, whether ally or enemy, ever kills people with the aim of destroying innocent life. Rather, soldiers typically do what they are told out of a sense of duty and in obedience to authority. As misguided as the soldiers on the enemy side may be, they probably do not have evil intentions and their actions are without any doubt informed by a story told to them by their leader. Even when factional groups wreak havoc upon civilians, they are in all likelihood interpreting their victims as complicitors in the crimes of the government, through their ongoing support of what the faction takes to be the evil regime in power.
Nor does appealing to the Doctrine of Double Effect and the intentions of the actors help in the case at Abu Ghraib, for the beaming smiles upon the faces of the soldiers photographed is the surest possible sign that they were acting in good conscience at the time. Whether they suffered moments of guilt and regret after the fact is irrelevant to the morality of their act in the moment. These soldiers evidently believed either because they were acting under order, or because they believed themselves to be acting in a manner consistent with U.S. policy in Iraq, that they were contributing to a noble cause. Certainly if they thought that what they were doing was “evil”, they would not have posed for photographs. Just as those who bombed Baghdad did not intend to kill thousands of innocent people (though they did), the guards at Abu Ghraib intended only to extract information from their prisoners. In both cases, war supporters may point out, the evil consequences (civilian deaths and prisoner humiliation and suffering) could have been avoided if only Saddam Hussein had obeyed George W. Bush’s orders to leave Iraq. But why in the world should Saddam Hussein have done that?
Recall that on December 14, 2002 the Bush administration issued a “lethal force list” of suspected terrorists whom the CIA had been granted permission by the commander-in-chief to assassinate with impunity. In view of the vague terms of the U.S. administration’s “lethal force list,” Saddam Hussein had every reason in the world to avoid seeking refuge in, say, Yemen. No one appears ever to have doubted the practical rationality and the will to survive of Saddam Hussein. It therefore seemed quite clear at the time that the U.S. administration’s “offer” to permit Saddam Hussein to seek asylum abroad was empty. By making this the single acceptable condition for the avoidance of war, the Bush administration effectively precluded the possibility of stopping the invasion, and then blamed it upon Hussein for refusing to do what would have been patently irrational for him to do.
Yes, as peculiar as it may at first seem, Abu Ghraib is a red-herring, perfectly suited to the U.S. administration, for it focuses our attention not upon jus ad bellum and those responsible for the killing of thousands of innocent people in Iraq in 2003, but jus in bello, and the sorry soldiers sent to risk their lives to fight a deadly war during peacetime. Realistically speaking, should these soldiers have gleaned any other message from their commander’s own example than that “Everything is permitted”?
*The National Security Strategy of the United States of America, September 2002, p. 6. Available online at: http://usinfo.state.gov/topical/pol/terror/secstrat.htm
** See: Ikenberry, G. John. 2002. “America’s Imperial Ambition,” Foreign Affairs, Volume 81, no. 5, pp. 44-60.
Laurie Calhoun holds degrees in chemistry (University of Colorado) and philosophy (Princeton University). Her metaphilosophical critique of analytic philosophy was published in 1997 under the title, Philosophy Unmasked: a skeptic’s critique (a title conferred upon it by the press). Since entering her meta-metaphilosophical period, she has been writing on war and also on films (sometimes both at the same time).