No Smoking Gun

NY Times
August 26, 2004

No Smoking Gun
By DAHLIA LITHWICK

It has been four months since the photos from Abu Ghraib came to light, and America still can't decide what to make of them. Yes, they're appalling. But who's to blame? With the release of two new reports this week, we still can't quite connect the torture and abuse to the commander in chief or his defense secretary; we still can't quite find that smoking gun.

Because there's never going to be a smoking gun.

If you're waiting around for evidence of the phone call from Donald Rumsfeld to Pfc. Lynndie England - the one where he orders the "code red," instructing her to pile up a bunch of naked, hooded men and strike a queen-of-the-mountain pose - you'll wait forever. That's not how armies function. Armies depend on the realities of the chain of command and the cha-cha of plausible deniability.

This week's report by the James Schlesinger panel offers the closest thing we'll get to a smoking gun. Connect the dots and it's all there: the sadism at Abu Ghraib stemmed from "confusion." Confusion sounds accidental - like maybe it just blew in off the Atlantic - but the report is clear that this confusion resulted from systemic failures at the highest levels. The report faults ambiguous interrogation mandates, an inadequate postwar plan, poor training and a lack of oversight. It notes that much of this confusion stemmed from the Bush administration's posture that the Geneva Conventions applied only where the president saw fit, and that the definition of "interrogation" was up for grabs at Guantánamo Bay, thus possibly at Abu Ghraib.

Or you can put your ear right up to the horse's mouth, where - even before the Schlesinger report - Mr. Rumsfeld owned the blame. "These events occurred on my watch. As secretary of defense, I am accountable for them and I take full responsibility," he told the Senate Armed Services Committee last May. But we live in an era when such words are intended to signify simultaneous culpability and absolution.

Mr. Schlesinger's insistence that Mr. Rumsfeld not leave office - because his departure would "be a boon to all of America's enemies" - is a pragmatic argument. It doesn't even pretend to be a just one.

You can choose to connect these dots, or cast your vote in November based on whether Colonel Mustard was in a Swift boat with a lead pipe. But Abu Ghraib can't be blamed solely on bad apples anymore. It was the direct consequence of an administration ready to bargain away the rule of law. That started with the suspension of basic prisoner protections, because this was a "new kind of war." It led to the creation of a legal sinkhole on Guantánamo Bay. And it reached its zenith when high officials opined that torture isn't torture unless there's some attendant organ failure.

There is a sad, familiar echo behind the Abu Ghraib prosecutions. This is precisely the approach the administration has used throughout the so-called terror trials here at home. Behind virtually every prosecution of an Al Qaeda member since Sept. 11, there has been an overhyped, overcharged foot soldier taking the fall for his invisible superiors. From the losers making up the so-called Portland Seven to the Virginia "jihad network," all we've achieved in our courts is a lot of pretrial chest thumping by the Justice Department, followed by relatively short sentences for a handful of malcontents who watched training videos or played paintball.

The ranking terrorists we do catch? They disappear into yet more law-free zones for further interrogation. The same intelligence-at-any-price culture that led us to Abu Ghraib keeps the real terrorists from ever being held to account.

Such is the beauty of an army: the little guy can always get tagged as a proxy for the big guy. Does any of this suffice as justice? In the terror trials it must: we convict low-level Al Qaeda members as ringleaders because we can't catch (or won't prosecute) their bosses. It's not just, but it's satisfying. Convicting low-level American soldiers as ringleaders to protect their bosses is neither just nor satisfying. It's just easy.