Dead or alive, it’s a fair bet that Osama bin Laden is in seventh heaven this week. After two years of humiliation and defeat by United States forces around the world, he may soon get his first real victory since September 11–if the Washington scandal machine has its way. That dubious institution, in this incarnation principally made up of politicians, pundits, and policy wonks desperate to undermine George W. Bush’s standing as a war president, is demanding the head of Osama’s nemesis, Secretary of Defense Donald Rumsfeld. One way or the other, they claim, Rumsfeld is responsible for the outrages at the Abu Ghraib prison, and must go. In fact, neither Rumsfeld, nor the administration’s policies, are to blame for those abuses. For the good of the country, the secretary of Defense must stay.
WEAK CASE
Two principal arguments have been advanced to justify Secretary Rumsfeld’s ouster. Both are utterly insufficient. First is the claim that, whether it was his fault or not, Rumsfeld should resign (or be dismissed) because “it happened on his watch.” This line seems to be favored by the more experienced Washington hands (and handlers) who, doubtless, appreciate its simplicity. Even a difficult–or dim–”principal” can stay on this message. It also has some popular appeal, grounded in folk memories of a distant age of Victorian stiff upper lips. Of course, this ridiculous and primitive form of scapegoating hasn’t been practiced in Washington for generations (if ever it actually was), and certainly not by members of the Democratic party, who now seem to favor it so strongly. Indeed, only ten years ago, more than 70 people were burned alive in Waco, Texas, as a direct and proximate result of the Clinton Justice Department’s misjudgments and mistakes. Many of the victims were children. Attorney General Janet Reno, of course, took “full responsibility” for that tragedy, but did not resign. The “watch” argument can, and should, be dismissed as the mindless partisan invective it is.
The second argument is also meritless, although far more insidious. It suggests that the administration’s refusal to grant “unprivileged” or “unlawful” combatants (such as al Qaeda, the Taliban, and the insurgent forces in Iraq) the rights of honorable prisoners of war under the Geneva Conventions, has “dehumanized” them and created an “atmosphere” permitting (or even encouraging) abuses like those at the Abu Ghraib prison. The president’s political opponents have embraced this “bad atmosphere” argument, and are utilizing it as something akin to a pundit’s philosopher’s stone. Clear and acknowledged abuses have been transformed into evidence of action that is supposedly characteristic of the entire American detention system, equally applicable to the treatment of detainees in Iraq, Afghanistan, or Guantanamo Bay. Administration critics are, in fact, using this as an opportunity to advance two of their longstanding goals, both of which are inimical to American national-security interests: according to all captured enemy combatants the privileges traditionally reserved to “lawful” combatants, and even extending to them the right to counsel and a civilian judicial hearing heretofore reserved for criminal defendants.
In fact, the administration’s policy is fully supported by the Geneva Conventions, which distinguish between forces that are, and are not, entitled to POW status. It is also very well grounded in the customary laws of war, which have never accorded captured combatants the rights of criminal defendants simply because they are detained. Combatants without a transparent command structure, who do not wear uniforms, carry their arms openly, or obey the laws of war in their operations, are not entitled to POW treatment–whether or not their actions are sanctioned by a state. Such individuals have been traditionally disadvantaged by the laws of war, including the Geneva Conventions, because they do not distinguish themselves from the civilian population and often purposefully target civilians for attack.
MISPLACED OUTRAGE
Nevertheless, however legally defensible it may be, the Bush administration’s refusal to grant POW status to irregular forces, whether in Afghanistan or Iraq, has outraged the international human rights community, including the International Committee for the Red Cross (ICRC). The American position here is, in fact, directly contrary to a longstanding agenda to secure POW-like treatment for guerrillas and other insurgents in the third world. Initiated during the Cold War, these efforts culminated in the 1977 Protocol I Additional to the Geneva Conventions, which the United States rejected on precisely these grounds–because it would have privileged and advantaged combatants who do not themselves obey the laws and customs of war.
In any case, the “bad atmosphere” argument not only ignores the law, but also is factually untrue. In contrast to other conflicts (where government propaganda purposefully demonized the enemy), from the beginning of the war on terror–and especially as part of the campaign in Iraq–the Bush administration has gone to unprecedented lengths to avoid dehumanizing the foe. The president has stated over and again that the United States has no quarrel with Islam in general, or with the peoples of Afghanistan and Iraq in particular. At Guantanamo Bay, the religious practices of captured al Qaedas and Talibs have been scrupulously respected, including dietary requirements that go well beyond simply ensuring that they eat as well as our own troops. In Iraq–both during the war’s major combat phase and while combating the subsequent insurgency–the United States has followed highly restrictive “rules of engagement,” designed to reduced injuries to civilians, but putting its own personnel at increased risk. It is not too much to say that this has been the first “politically correct” war.
Moreover, there is no evidence whatsoever that these abuses could have been avoided had the administration adopted a more expansive view of the Geneva Conventions, or other international humanitarian law requirements. Indeed, actual experience suggests otherwise. In the early 1990s, for example, soldiers from states that take a very expansive view of humanitarian law, then participating in the United Nations mission to Somalia, engaged in sadistic offenses every bit as despicable as those in Abu Ghraib. In one instance, Canadian soldiers spent an evening amusing themselves by the torture and murder of a captive Somali teenager–and they took photographs. This was not the only abuse (or unlawful killing) ascribed to the unit, which was later disbanded. (A pattern of conduct all the more noteworthy since the Canadian military has largely reinvented itself as a peacekeeping force designed to support U.N. missions.)
In another example, Belgian soldiers were photographed swinging a Somali child over a bonfire. The Belgians were later acquitted because, according to the military courts in Brussels, there was insufficient evidence and “[i]t could not be established that physical violence had been inflicted.” Belgian authorities also investigated the death of a child after two days allegedly locked, by Belgian soldiers, in a metal container without food or water. The fact is, the potential for abuse–including individual “incidents of sadistic, blatant, and wanton criminal abuses” as detailed in General Antonio Taguba’s report on the 800th Military Police Brigade in Iraq–is inherent in virtually every aspect of human endeavor, regardless of the “atmosphere.” Human beings are what they are.
Nor can the abuses be attributed to a lack of training in humanitarian law–which seems to be the excuse chosen by the accused and their lawyers. General Taguba’s report identified a lack of training in Geneva law was one problem with the units serving in the Abu Ghraib prison, and such training certainly could not have hurt matters. However, had every member of these units been required to memorize the Geneva Conventions, it would have made little difference. Those instruments detail a number of technical rights to which prisoners of war are entitled, but their overall requirement is that captives be treated humanely. For all practical purposes, this is the same commonsense standard established by President Bush from the very beginning of the war on terror. If that standard wasn’t clear enough to rule out the use of Iraqi prisoners as so many props in a series of pornographic photographs, home movies, and worse, then there is nothing in the Geneva Conventions that would have taught the Abu Ghraib guards otherwise. The problem here was with individuals, not the system.
Under the customary laws of war, and the Geneva Conventions, the prisoners in Abu Ghraib were entitled to humane treatment. Those who were so shamefully abused obviously did not receive that treatment. The perpetrators disgraced themselves, dishonored their uniforms, and did grave damage to the national interest in time of war. Courts martial may well subject them to criminal sanctions. None of this, however, establishes that guerillas, insurgents, or any other irregular or “unlawful” combatants, should receive the full rights and privileges of honorable prisoners of war, or that any captured combatants should be accorded the rights of criminal defendants unless or until they are actually charged with a crime.
Satisfying the administration’s critics would, in fact, require the United States to fight a ruthless and deadly foe, which itself has deliberately abandoned any effort to comply with the laws of war, under the rules applicable to a domestic police force. This makes it all the more imperative that the actions of a few “bad apples” should not be permitted to discredit policies that are lawful and essential to victory–both in Iraq and in the war on terror. That, however, is what Secretary Rumsfeld’s departure would accomplish. That is why the administration’s critics are demanding his head, and that is why he must stay.
–David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C., office of Baker & Hostetler LLP. They served in the Justice Department during the Reagan and Bush Sr. administrations.