The high non-Reagan moment of last week came when Attorney General John Ashcroft contended with Senator Edward Kennedy on the whole business of torture. Ashcroft was explaining something not terribly complicated, but it led to combat. Ashcroft had said that in denying to the congressional committee copies of the memorandums that had been sent in to advise the president on the matter of permissible conduct in war, he was not invoking executive privilege.
”What are you invoking?” Kennedy asked, causing much mirth and derision.
John Ashcroft is not to be confused with Oliver Wendell Holmes when explaining legal quandaries or dilemmas. But his primary points today were reasonable. They were that in the opinion of some legal analysts, the al Qaeda captives were not entitled to the protections defined by the Geneva Convention. They are not members of an “army,” therefore not “combatants” within the meaning of the Geneva protocols.
Now, all that of course does not instruct us on the moral question: Were we entitled to deal with the prisoners at Abu Ghraib in the way we did? The answer is clearly, No. But that answer carries a lot of freight, because there are people circling the scene who are very anxious to prosecute the United States for war crimes. These people, it is fair to generalize, are less interested in war crimes than in prosecuting the U.S. for committing war crimes. The question of U.S. responsibility is political in its implications.
Arguing in favor of facing the question in the Hague, Jonathan Tepperman of Foreign Affairs magazine reminds us that “legal principles can affect politics. If voters begin to believe that George W. Bush or Donald Rumsfeld is legally responsible for the torture, it could affect the president’s chances in November.” But if we do not agree to come on stage as defendants, we undermine the international case against war crimes.
Mr. Ashcroft didn’t suggest he had authority to dispose of such questions, but he was firm in insisting that memos sent to the president on such issues as this have to be secure from legislative scrutiny, invoking, quite simply, not the executive privilege, but the separation of powers. Without intending to condone such things as happened in Abu Ghraib, a counselor to the president might be asked to opine on what are the permissible standards of interrogation of al Qaeda forces. It is easy to say that those standards should be obvious–they are deduced from the Bible, the Areopagitica, and the Department of Ethics at Harvard.
And a very good case can be made for saying this, but not a case that illuminates questions of legal exposure.
And, incidentally, not necessarily a case that accosts battlefield realities.
The best way to confront the question, How far can you go in interrogatory techniques? is to answer: It isn’t possible categorically to say. At what point does constant exposure to light slide over from deprivation, into torture? Obviously we expect interrogators to be persistent even into invasions of time normally reserved for sleeping. But–when does that clock sound? After 16 hours? 20 hours? 24 hours?
The movement now is to assign responsibility to a military official wearing more than the two stars of Major General George Fay. If you want to bring in lieutenant generals and four-star generals and get answers from them, you have to have a full-blooded warrant from the president, and it is being sought.
The best evidence of the incongruity of Abu Ghraib with American standards is the universal revulsion felt by the American people when those photographs were published. But right now there are only seven soldiers being prosecuted, and the sense of it is that that does not go deeply enough. If what happened was odious, but what happened did so under the auspices of a well-organized military, then you scratch up against the lessons of Nuremberg, which held superiors responsible for misconduct by subordinates. And people are wanting to know what are the relevant jurisdictions, and what tribunals do we have in mind to convoke in order to satisfy ourselves–and the world–that America wants more the merely to punish the people who did it. We need to punish also the people who let it happen.