Dispatches from the Campaign Trail: September-October 2004

Les Todd.

Pictures of Iraqi detainees being physically abused and humiliated by U.S. soldiers in the cellblocks of Abu Ghraib prison shocked and angered us all when first shown last April. They also created a firestorm of criticism abroad that has not yet abated. Our claims of being a nation under the rule of law are greeted with cries of hypocrisy. The resulting damage to our credibility in the international community is, in large measure, irreparable; any healing balm will come not from mere rhetoric alone, but only from our proven actions over the long term.

Was what happened at Abu Ghraib an isolated instance of abuse by a few miscreants or perhaps the unintended result of some larger governmental program or policy? In June, we learned of a series of legal memoranda, emanating principally from the Department of Justice and covering a span of some eighteen months, that advocated a theory under which extremely coercive interrogation tactics, perhaps even extending to what many would consider torture, could be used at the detention facility at Guant·namo Bay, immune from any dictates of domestic and international law.

The memoranda posit the argument that the president's constitutional authority as commander in chief to control the conduct of operations during a war cannot be constricted by any act of Congress, treaty, or principle of customary international law. Therefore, since we are in a war against terrorism, and the interrogation of those captured in this "war" is vital to gaining intelligence to preclude further attacks, the means by which they are interrogated is akin to a battlefield tactic that is solely within the province of the president.

This is breathtaking in its scope and worrisome in its implications. Under the administration's concept of the war on terrorism, the world is the battlefield, and the "war" will go on as long as any terrorist cell exists anywhere with the capability to strike at our national interests, whether at home or abroad.

But this theory, with its clearly stated principle of evasion of domestic and international law, is not widely accepted in legal circles, even among those of a conservative bent. Further, even within the administration, attorneys at the State Department strongly objected to several key points made in the memoranda, as did many uniformed military lawyers who, along with their civilian Department of Defense counterparts, served as part of a Pentagon working group that met in the spring of 2003 to vet specific techniques for possible use at Guant·namo Bay. Many of the objections of these military lawyers, however, were neither heeded by the rest of the group nor contained in the final report sent to and accepted by Secretary Donald Rumsfeld. It is perplexing that civilian decision makers in the Pentagon did not listen to the voices of those most experienced in the nuances of the application of domestic and international law in combat operations.

Whether expressly or by implication, the interrogation techniques designed for use against those supposedly outside the protection of the Geneva Conventions at Guant·namo Bay were somehow "exported" to Southwest Asia and became some of the very ones used against detainees in Iraq, who clearly were under the protection of the conventions. Granted, the abuses at Abu Ghraib undoubtedly exceeded anything authorized by Secretary Rumsfeld. But they were, nonetheless, the indirect product of a counter culture fostered by the memoranda--a counter culture epitomized by a legal regime that had as its principal goal the skirting of the rule of law.

Although one may challenge the memoranda as being technically flawed, as many knowledgeable critics have, the more troubling aspect in all this is the apparent shift in our fundamental national principles--a shift from being a nation that claims itself to be under the rule of law to one that now strives to find ways to avoid it. Some, even including the counsel to the president, have argued that, because we are dealing with terrorists who do not adhere to the laws of war, they should not be treated the same as those who do.

But complying with our obligations under domestic and international law has never been dependent upon reciprocity. To the contrary, whether as a nation or simply as individuals, we have always prided ourselves on submitting to the rule of law because it is the right thing to do, regardless of the actions of others. A firm tenet of the democratic principles that we tout as our hallmark and that we now seek to export to the Muslim world is compliance with what is called for under law and established moral principles, rather than what the exigencies of the moment might suggest. In this instance, if we adopt the notion that the use of torture in interrogation is justified under circumstances of our own construct--the notion set forth in the memoranda--we risk becoming much like those we claim to be our enemies.

More than 130 years ago, Walt Whitman wrote, "Sail, sail thy best, ship of Democracy. Of value is thy freight." If we as a nation expect to continue in our role of world leadership in the difficult times ahead, our heading must remain straight, and our compass true.

Silliman is a professor of the practice of law at Duke Law School and the executive director of Duke's Center on Law, Ethics, and National Security. Before joining the law faculty in 1993, he spent twenty-five years as a uniformed Air Force attorney.