Anything Goes

Rosa Ehrenreich Brooks, a professor at Virginia who has also served as a senior advisor to the State Department on Human Rights policy, connects the dots:

Since Sept. 11, high-level administration spokespeople — including the president — have repeatedly asserted that the executive branch of the U.S. government is free to ignore both the laws of war and the U.S. Constitution, and that executive branch actions are essentially unreviewable by the courts.

It began shortly after Sept. 11, with President Bush's breezy announcement that he wanted Osama bin Laden "dead or alive — either way. It doesn't matter to me." The administration also offered a multimillion-dollar reward for Bin Laden, although such statements and bounties have traditionally been viewed as contrary to the laws of war and U.S. military regulations. Soon after, Bush signed a secret intelligence order permitting the CIA to expand covert actions, which, as one senior U.S. intelligence official put it, gave the agency "the green light to do whatever is necessary. Lethal operations that were unthinkable pre-Sept. 11 are now underway."

In his 2003 State of the Union address, Bush continued to imply that legal niceties were of little importance in the war on terror, commenting that while some Al Qaeda members had been arrested, others had "met a different fate." What kind of fate? "Let's put it this way," he said: "They are no longer a problem to the United States."

Vice President Dick Cheney, Atty. Gen. John Ashcroft and Rumsfeld wasted no time establishing their own tough-guy credentials after 9/11. Rumsfeld insisted that military detainees in Afghanistan "do not have any rights" under the Geneva Convention. At home, Ashcroft asserted that foreign terrorist suspects "do not deserve the protections of the American Constitution." Cheney stuck to the same script, insisting that terrorism suspects "don't deserve" judicial "guarantees and safeguards." Never mind the fact that due-process protections are designed not to give the guilty what they "deserve" but to ensure that the innocent, who may be wrongly accused, get the rights that they deserve.

The Bush administration has been similarly cavalier about the use of torture-like practices against detainees. In 2002, a series of media stories reported that U.S. detainees in Afghanistan were hooded, deprived of food, water, sleep and pain medications, forced to remain in agonizing positions for hours, kept naked, and beaten. The truth of these allegations was tacitly acknowledged by numerous senior national security officials (none willing to be named). As one official said, "If you don't violate someone's human rights some of the time, you probably aren't doing your job. I don't think we want to be promoting a view of zero tolerance on this."

No high-level administration official either denied the reports or publicly promised to investigate. Indeed, their response consisted of little more than winks and nods: As J. Cofer Black, then head of the CIA's Counterterrorist Center, told the House and Senate intelligence committees, "all you need to know [is this]: There was a before 9/11, and there was an after 9/11. After 9/11, the gloves come off."

Over the last year, prisoners released from Guantanamo Bay have alleged they too were subjected to brutal and humiliating detention conditions and interrogations. Maj. Gen. Geoffrey Miller, the former Guantanamo commander recently sent to oversee Iraqi detention facilities, wrote in a report last fall (based apparently on his Guantanamo experiences) that military guards in Iraq should be "enablers for interrogations," actively "engaged in setting the conditions for successful exploitation of the internees." When pressed on how conditions at Abu Ghraib prison would be reformed to prevent further abuses, Miller told reporters, "Trust us. We are doing this right."

"Trust us" has been the sole assurance the Bush administration has offered in the face of concerns about possible abuses. In its response to court cases brought on behalf of detainees at Guantanamo, the administration has insisted that executive branch actions at Guantanamo cannot be reviewed by any U.S. court. When judges on the U.S. 9th Circuit Court of Appeals asked Justice Department lawyers whether the administration position would be the same "even if the claims were that it was engaging in acts of torture or that it was summarily executing the [Guantanamo] detainees," the administration's lawyers said yes.

Similarly, in recent U.S. Supreme Court arguments involving two U.S. citizens being held by the U.S. military as alleged "enemy combatants," the administration insisted that it had the right to designate any citizen an enemy combatant on the basis of secret and unchallengeable evidence and to hold such a person as long as it wanted, without charge or any right to counsel, and with no mechanism for the detainee to challenge detention conditions. (The administration claimed that allowing access to counsel would undermine the "trust and dependency that is essential to effective interrogation.") When asked directly by Justice Ruth Bader Ginsburg whether the administration would acknowledge any judicial check to prevent the use of torture against detainees, Deputy Solicitor Gen. Paul Clement ducked the question. He disparaged "judicial micromanagement" and informed the court that "you have to trust the executive."

There are two related points here. One is about executive power. The other is about the value of respecting international law. The lesson about executive power is simple: Unrestrained power without accountability will lead to abuses. It has happened before in human history. It is happening now. It does not matter how noble people are or how just they believe their cause to be. Power without out accountability leads to corruption. That is why the American Constitution creates checks and balances between separated powers of government and it is why executive action must ultimately be subject to judicial review.

The lesson about international law is slightly different: International legal convenants like the Geneva Conventions help to create a system of mutual restraint that give countries with very different political interests reasons for mutual forbearance. If Country X believes that Country Y is mistreating its prisoners of war and/or killing them, it may have no incentive (other than its sense of morality) to behave any better. The result is a downward spiral of abuse, torture, and death. By agreeing beforehand to minimum standards of decency for the treatment of prisoners of war, signatories can check each other through shaming in the court of world opinion, even if there is no supranational dispute resolution body with the power to enforce the standards. That is precisely what is happening now in the context of Abu Ghraib. America is not (yet at least) being dragged into court for what it has done. But the United States is suffering a public relations disaster around the world that is seriously harming its foreign policy interests.

In this sense, the Geneva Conventions are doing precisely what they should do: act as a focal point that can be used to shame the United States for misbehavior. The lesson, however, is that America should never have let itself get into this situation in the first place. It should have taken the Geneva Conventions seriously from the start. Instead, after 9/11 it decided that "anything goes." Its Iraq policy is now suffering the consequences of that failure.