Friday, February 17, 2006

Geoffrey Corn on the New Abu Ghraib Photos

I have solicited the thoughts of Prof. Geoffrey Corn, a law of war expert and former guest blogger at Opinio Juris, on the latest Abu Ghraib photos. Here's his take on the release of the new photos:

On Wednesday, a new batch of Abu Ghraib photographs hit the press. The world is once again reminded of the “shocking and awful” abuse endured by the detainees entrusted to the control of the U.S. Army. While these photos will no doubt reinforce all the negative impressions created by the criminal abuse inflicted on these detainees, they also reinforce two important lessons (which no matter how often learned, seem to just as often be forgotten) about the role of law in war: that respect for the law of war is indelibly linked to maintaining good order and discipline; and that violations of this law can never justify compromising the commitment to subsequent compliance.

The first reality – that compliance with the law of war is linked to a professional and well-disciplined force – is reflected in what I would posit was the reaction of most professional warriors when they viewed these photos: revulsion to the overt manifestation of a total breakdown of discipline. Pity for the victims is no doubt appropriate. But for members of the profession of arms, it is the symbol of arbitrary, immoral, and abusive behavior of American soldiers that is fundamentally inconsistent with what our armed forces are supposed to represent.

The intuitive understanding that the activities of these soldiers reflected a quintessential breakdown of discipline confirms the relationship between the law regulating the conduct of war and a professional and disciplined force. Abu Ghraib must serve as a powerful reminder to all those who serve in uniform – and those who establish policy for them – that in the brutal and dangerous realm of warfare, the law of war provides a barrier between the necessary infliction of harm associated with conflict and the devolution into the unacceptable realm of the infliction of suffering for personal and often perverse reasons. Emphasis of this bright line distinction, particularly during the most brutal phases of an operation, is essential to the preservation of discipline – the “but for” of an effective fighting force.

The second reality is that the breach of the obligation to respect the law of war in no way justifies subsequent non-compliance. Indeed, if this law is to have any meaning, the exact opposite must be the reality. This lesson is much more subtle in relation to the release of these photos, but is also intertwined with the ongoing effort of the ACLU to obtain release of additional Abu Ghraib photos. The ACLU and the Australian television network that released these latest photos share a common purpose: to maintain public interest in the Abu Ghraib story. Many observers applaud these efforts, and are quick to condemn the government for opposing the requested release. However, a review of the photos released Wednesday warrants consideration of a fundamental question: what have we learned from those photos that we did not already know?

If the answer to that question is “a great deal”, then perhaps the continued humiliation of the victims of the abuse is justified. However, if the value lies not in new information, but in simply prolonging the public interest in the story, every observer troubled by the denigration of human dignity that occurred at Abu Ghraib should carefully contemplate whether the benefit truly justifies the cost.

Regardless of how this question is resolved, it does suggest that the ongoing government opposition to release of additional photos might in fact be justified by an effort to mitigate the suffering inflicted on these victims. Reasonable minds can certainly differ on the technical rules related to protecting detainees from public curiosity. (See Corn Declaration, Cummings Declaration, Sassoli Declaration, and Horton Declaration). However, the obligation of the U.S. government and the armed forces to respect the law of war, and more specifically the principle of humane treatment, is in no way modified because of the prior violations that occurred at Abu Ghraib. Instead, ever greater commitment to compliance is the proper response. Therefore, while it is fair to question the cost/benefit analysis associated with opposition to releasing additional photos, there is no justification for condemning government efforts to ensure future compliance with the principle of humane treatment. Characterizing such efforts as an exercise in hypocrisy ignores the complexity of this issue.

What transpired at Abu Ghraib was awful. Soldiers engaged in criminal misconduct, and were properly tried, convicted and punished. Serious questions linger related to the scope of the disciplinary effort, and the causal connection between government policies and the abuse. These questions must be resolved with some legitimate sense of finality and credibility. The prospect of Abu Ghraib being perpetually associated with the type of lingering taint related to the response to the My Lai investigations and prosecutions is unacceptable. It is understandable that proponents of such a resolution believe the continued public interest likely to result form the release of additional photos will contribute to their efforts. The question is at what point do the ends cease justifying the means?


Blogger Charles Gittings said...

With the greatest respect for Prof. Corn, the answer to his closing question is quite simple:

When George W. Bush, Dick Cheney, Alberto Gonzales, Donald Rumsfeld, David Addington, John Yoo, and Paul Clement, et al., have all been prosecuted, convicted, and sentenced for their war crimes.

2/17/2006 10:41 AM  
Blogger Thomas said...

Professor Corn wrote:

“Serious questions linger related to the scope of the disciplinary effort, and the causal connection between government policies and the abuse. These questions must be resolved with some legitimate sense of finality and credibility. The prospect of Abu Ghraib being perpetually associated with the type of lingering taint related to the response to the My Lai investigations and prosecutions is unacceptable. It is understandable that proponents of such a resolution believe the continued public interest likely to result form the release of additional photos will contribute to their efforts. The question is at what point do the ends cease justifying the means?”

In my view certain means are so wrong that they cannot be justified no matter how beneficial the ends they are intended to, or in fact do, produce. Some means are in themselves benign, and require no particular justification. The question Corn closes with suggests that he does not regard the publication of the photos as belonging to either category. If such publication is problematic, but justifiable as a means to bring about a “resol[ution,] with some legitimate sense of finality and credibility,” of the “[s]erious questions [that] linger related to the scope of the disciplinary effort, and the causal connection between government policies and the abuse,”. then the short answer to the question is “not yet.”

A longer answer would be: when reasonable people can be assured that such crimes as the photos depict are no longer US policy and will not be resumed. This would require, at a minimum, a complete investigation, a repudiation by the US of the legal theories concocted to normalize the crimes, and criminal prosecution of top level perpetrators.

An article (below) by Professor Corn, Pentagon Process Subverted? The Lost Battle of Alberto Mora , published at Jurist on Feb. 22, 2006, suggests that we are a long way from any resolution that would dispel the “lingering taint” he rightly considers unacceptable.

[emphasis added]

“This week the public learned of the unsuccessful battle waged by former US Navy General Counsel Alberto Mora within the US Department of Defense legal community against flawed analysis of US law and international legal obligations and consequent detainee interrogation policies exposing prisoners in US custody at Guantanamo and elsewhere to harsh treatment and abuse. The New Yorker article disclosing this battle... reads like a confirmation of the worst fears of many legal experts outside of government.

It chronicles the existence of an objective-oriented legal agenda pursued by a small but powerful circle of politically-connected disciples advocating an interpretation of executive power that knows virtually no limit; the intense concern this agenda triggered among both politically-appointed and career legal experts within the Department of Defense; and the subsequent marginalization of anyone who was audacious enough to challenge these interpretations. Prior to publication of the New Yorker article, there had been numerous “hints” that numerous civilian and uniformed lawyers within the Department had engaged in a valiant but ultimately futile struggle against opinions supporting policies ranging from the creation of the military commissions to interrogation and detention procedures. Mora’s story, however, is a direct and profound illustration of how the customary paradigm of intra and inter agency process has been fundamentally subverted in order to ensure that legal analysis serves the needs of emerging policy.

“Within the government legal community, it is often said that it is better not to know “how the sausage is made.” This reflects the fact that the intra and inter agency dialogue related to complex legal issues is often heated, involving multiple participants who sometimes seem more concerned with protecting their individual Service or Department interests than with the obligation to reach consensus that serves the best interests of the nation. The saying also, however, reflects the equally significant reality that normally this process does in fact produce results that effectively and legitimately serve the larger purpose. Thus, so long as the product “tastes good”, it is sometimes better not to know how it was produced.

“Alberto Mora’s experience within this “sausage making process” illustrates that it is no longer possible to accept on faith that while it may be “ugly”, the process is working effectively. Instead, his experience demonstrates that the process itself - so critical to ensuring an effective and legitimate legal foundation for the policies related to the planning an execution of military operations – has been tainted.

“In short, not only has a small circle of “unlimited executive power” advocates set an agenda that is inconsistent with longstanding legal interpretations related to such operations, but they have also disabled the internal Department of Defense (and by implication the wider Executive Branch) mechanisms intended to ensure broad consensus derived from the contributions of key international and operational legal experts. As a result, instead of meaningful dialogue related to the complex legal issues that implicate both operational and service chains of command, Mora's experience suggests that any dissent from policy-enabling interpretations was summarily dismissed and the proponents marginalized from future participation in the analytical process.


“Alberto Mora’s experience in attempting to break through the intransigence associated with policy-driven legal analysis is indicative of broader failure to leverage the traditionally respected sources of international law authority within DOD. The results have been profoundly discouraging. Most observers were already familiar with the highly suspect analysis that provided the foundation for detention and interrogation policies promulgated by the Executive Branch. Although much of this analysis was discredited by Jack Goldsmith’s reassessments, serious questions remain regarding the lingering taint of these legal opinions.

And apparently the cycle continues. We now learn of an initial rejection by the Secretary of Defense of the proposal to endorse Common Article 3 of the four Geneva Conventions as the touchstone of all detainee operations (although there is no indication this is the final DOD position on this subject). Thus, the distorted process has once again manifested itself in a decision even the most inexperienced military attorney – not to mention the law of war experts within and outside of DOD – would find almost incomprehensible. For literally decades, the proposal apparently so categorically rejected has been the understood standard for US forces. To learn that the intra-agency proposal to confirm this traditional understanding was rejected because it might deprive the Executive of needed flexibility is the consequence of allowing policy to dictate legal opinion, and the marginalization of the traditional process for developing legitimate legal analysis.

“Alberto Mora’s story is both troubling and admirable. He certainly struggled to ensure DOD policies complied with the baseline standards of humane treatment that have been long understood by US forces as non-derogable. It is more troubling, however, to contemplate not only his apparent inability to achieve this goal, but how the process used to develop the policies he fought against required someone in his position to take such extraordinary measures. Perhaps we really may not want to know how the sausage is made. But when, as of late, the sausage is so badly tainted, it's time to take a look at the machine that makes it and assess whether it's in need of repair.

2/22/2006 7:32 PM  
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