The Bush Administration and Torture: Who is Responsible for the Abuse at Abu Ghraib?

By Erik Eriksen
Interstate - Journal of International Affairs
2015, Vol. 2014/2015 No. 1 | pg. 1/2 |

Since first becoming public in March 2004,1 the case of the detainee abuse at the Abu Ghraib Prison2 has gained widespread interest and an important place in debates on the Iraq War. At the prison, systematic abuse of detainees, described as ‘sadistic, blatant, and wanton’, was perpetrated by military police guards.3 The guards beat prisoners; intimidated them with unmuzzled dogs; placed hooded detainees in a pyramid; carried out a range of incidents of abuse with sexual themes; and humiliated them in many other degrading ways.4 These actions are widely regarded as unlawful.5 While eleven low-ranking soldiers were found guilty in relation to the abuse,6 the only relatively high-ranking officer to have been charged was Lieutenant Colonel Steven Jordan, second-in-charge of interrogation at Abu Ghraib.7 The only charge he was found guilty of, however, was to have discussed an investigation into the abuse with soldiers.8 This lack of high-ranking convictions can be argued to be highly unfair, given the widespread nature of torture and abuse during War on Terror operations also outside Abu Ghraib.9

This article will argue that the soldiers perpetrating the abuse, their commanding officers and members of the George W. Bush Administration are all morally responsible for the abuse at Abu Ghraib. However, it will also argue that one must look to commanding officers and all the way to the top of the administration to find the individuals that are most blameworthy. In arguing this, the article will refer to a number of historical cases, as well as to moral arguments by a number of scholars.

Firstly, the article will discuss the responsibility of the individual soldiers that carried through the abuse. Here it will argue that all moral agents are responsible for their own actions. It will also argue that claims of not being responsible because of orders from superiors are unacceptable, as anyone who knew, or should have known, that such actions were illegal have a responsibility to disobey orders. Following on from this, the article will discuss the responsibilities of commanding officers. It will argue that those tolerating or encouraging unlawful actions are fully responsible. It will also argue that commanding officer Janis Karpinski is responsible, as she should have attempted to find out and control the abuse, and because of her inability to enforce the ban on torture.

Building on arguments from this section, the article will argue that members of the US government also are responsible. It will argue that Secretary of Defense Donald Rumsfeld was responsible – for the same reasons as the commanding officers who tolerated and encouraged these unlawful orders. It will also argue that President Bush is responsible and blameworthy for playing a central role in a group conspiring to commit war crimes. In the fourth section, arguments in favour of holding the entire American people responsible will be considered, but rejected on the bases that they could not have known when voting Bush into office that he would commit war crimes, and that they cannot be held responsible for the crimes through establishing the US Army.

This article will distinguish between “responsibility” and “blameworthiness”. With certain exceptions, which will be examined, individuals are responsible for what they do.10 For each action, more than one person can be responsible; and, if so, the responsible individuals may all be entirely responsible – that is, each person’s responsibility does not have to be reduced.11 Being “responsible” will also require that one is a moral agent when carrying through an action.12 Further, if information is kept away from a perpetrator with the intention that an action shall be undertaken, then the person keeping the information away is the one that is responsible for the action.13

Similarly, if someone has created policies that they knew, or should have known,14 would lead to general actions like this, they are morally responsible too. One is responsible for the ‘wilful [breach] of a code of conduct...’,15 whether one actually perpetrated it oneself or had someone else do it. Being “responsible” will be taken as meaning morally, not legally, responsible for the action.16 While one generally is responsible for what one does, one is blameworthy only for those actions that are one’s own. Under superior orders, actions can be argued to be not entirely one’s own,17 meaning that also is less to blame.18 Thus, the blame is generally equivalent to the degree to which the actions are one’s own. This means that, while responsibility usually is not reducible, some can be more or less blameworthy than others.

The Prison Guards

As alluded to in the introduction, it is only individual soldiers who have been held responsible for the abuse at Abu Ghraib. The actions at Abu Ghraib have generally been represented as exceptional cases, in which the abuse was perpetrated by a “few bad apples”,19 acting based on their own, entirely rational, choice.20 This, as shall be seen later, is not the case. However, this great focus on the individual officers – who were merely reservists21 – forces this article to examine the responsibilities of individuals acting in what is described as ‘sadistic, blatant, and wanton’ ways.22 This article will discuss the general responsibilities of soldiers, as well as their responsibilities when superior orders require them to abuse. As Walzer argues, all moral agents are responsible for what they do.23 By moral agent, it is meant anyone with an ‘ordinary sense and understanding’,24 who is not acting under duress, which is a threat directed at that particular soldier which is proportional to that at the detainee he is abusing.25

Sergeant Michael Smith, one of the dog handlers at Abu Ghraib, argued that when abusing prisoners with unmuzzled dogs, he was merely following orders.26 This is, however, generally not an accepted excuse for breaking the rules of war: as clearly stated by the presiding judge in the case against Sergeant Hutton, who was standing trial for the My Lai massacre during the Vietnam War, one is obliged to disobey any order that one know is illegal or is ‘manifestly illegal on its face’.27 This means that, even if there are superior orders, one is obliged to disobey, if it is clear that it is illegal. It seems obvious that the actions described above are illegal. It would neither, due to the characteristics of the abuse, be justified to argue that they did not know what would happen,28 or duress, that they were threatened with proportional punishment if they did not carry it through.29

Even if one has been ordered to carry through abuse, ‘there is some ultimate humanity that cannot be broken down...’30 to use Walzer’s words. If one is a ‘reasoning agent’, with an ‘ordinary sense and understanding’,31 one should be able to understand that what one did was illegal. Given the arguments in this section, individuals are responsible for the abuse they have perpetrated. However, as the remainder of the article will show, there are also other actors that are responsible, and perhaps even more blameworthy.

Commanding Officers

There is, much that points towards the fact that what went on at Abu Ghraib was not merely the actions of a “few bad apples”. This kind of abuse was widespread,32 and was still taking place at Abu Ghraib more than a year after the story became known.33 This section will look at the commanding officers. Firstly, it will examine the role of Major General Geoffrey Miller, who directly shaped the policies that resulted in the Abu Ghraib abuse. Following on from this, the responsibility of Karpinski, head of 16 Iraqi detention facilities,34 and the commanding officer directly responsible for Abu Ghraib, will be discussed. When it comes to Karpinski, her seeming lack of knowledge about what was going on will be discussed.

Miller was given the task of spreading Guantánamo Bay-style interrogation methods to prisons in Iraq.35 In this, he said to have argued that the guards should not ‘at any point [allow prisoners to think] that they are more than a dog...’36 Miller denies ever having said this,37 but given his actions as leader at Guantánamo,38 seems plausible. Alongside Miller, Lieutenant General Ricardo Sanchez, US Commander in Iraq, is also responsible, for authorising Miller’s policies.39 Despite the fact that he never laid his hand on any of the Abu Ghraib detainees, why is this article arguing that Miller is responsible? As Walzer argues, commanding officers ‘tolerat[ing] and encourag[ing]’ such actions are fully responsible.40 In the case of Miller, not only did he encourage these actions, he even ordered them. There is also another reason for why Miller, and even more so, Sanchez, must bear responsibility. As Lackey argues in relation to the My Lai massacre, the tactics at that time disregarded civilian life so much that it was ‘bound to happen sooner or later’.41 Similarly, US troops were so disrespectful towards War on Terror detainees that such abuse would happen “sooner or later”. For these reasons, these two men much bear responsibility for the abuse.

However, also those who did not know what was going on are to blame. Karpinski, commander of 16 Iraqi prisons, argued that she did not know what was going on at Abu Ghraib,42 a story doubted by few.43 Then, why is she to blame? The trial against the Japanese General Yamashita during WWII is illustrative. Although he was probably misjudged based on the principles set forward in the trial, the principles are themselves valuable. His sentence was based on the argument that where there ‘are widespread offences, and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible... for the lawless acts of his troops...’44 As Walzer argues, commanders must take ‘appropriate measures’ to enforce the rules of war.45 This must be regarded as especially so in a case like this, where the commander’s focus does not have to be on military tactics at the same time. The commander is thus responsible for widespread abuse if she has not attempted to “discover and control” it; a lack of knowledge is not by itself an acceptable excuse. According to the Abu Ghraib whistleblower, ‘nobody in command cared enough to find out’.46 Assuming that this is true, Karpinski failed in her responsibility, and her resulting inability to enforce the ban on torture means that she is responsible. Nevertheless, she is perhaps not as blameworthy as those who created the policies she failed to discover.

Government Responsibility

The next group of individuals that is responsible for the abuse at Abu Ghraib are members of the US government. Secretary of Defense Rumsfeld and President Bush will function as examples for this argument. Although interpreted as applicable only to “crimes against peace” at the Nuremberg Trials,47 the Nuremberg Charter48 states that those ‘participating in the formulation or execution of a common plan or conspiracy to commit [war crimes] are responsible for all the acts performed by any persons in the execution of such plan’. For this ‘there shall be individual responsibility’;49 government officials are not exceptions.50 What must be noted here is that even conspiring to carry through such an act is unlawful in itself.

Although members of the Bush Administration did not carry through the abuse at Abu Ghraib, it is clear that they have taken part in this conspiracy, and should have known what was going on at Abu Ghraib. Rumsfeld is responsible for two additional reasons, through ordering the kinds of actions seen at Abu Ghraib51 and his command responsibility as the top official of the Department of Defense.52 As can be recalled from the discussion on Miller, commanding officers encouraging abuse are responsible for the violations of the rules of law. Not only did Rumsfeld encourage these violations, he even approved the procedures later taking place at Abu Ghraib.53 Further, as argued in relation to Karpinski, when there is widespread abuse, and the commanding officer does not attempt to “discover and control” these, then he is also responsible. From this, this article can judge that Secretary Rumsfeld is responsible, as well as greatly blameworthy, for the abuse at Abu Ghraib.

However, the one that is most blameworthy is the one “at the top”, the President himself. Bush and his team of advisors consistently did what was in their power to define this kind of abuse as legal.54 For example, in 2002 the administration argued that the “Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment” does not require punishment for ‘cruel, inhuman, or degrading’ treatment and punishment,55 and requiring torture to entail pain or suffering equivalent to that of ‘death, organ failure, or [impairment of bodily function]’ or psychological harm lasting for months or years.56 In sum, it was decided that torture must entail ‘pain that is difficult to endure’ to be defined as such.57 There was a specific aim on the part of the administration to bend and ignore the rules against this kind of treatment, in order to justify its use. This clearly fulfils the requirements of the “conspiracy” clause of the Nuremberg Charter. In this, all those who are taking part in formulating a common plan to commit war crimes, are responsible for all the acts perpetrated by any person in carrying that plan through. It is clear that the President is guilty of this through his attempts to justify the abuse of prisoners.

As Walzer argues, the decision at Nuremberg that those who were part of Adolf Hitler’s inner circle of advisors or played ‘such a major role in the making or execution of policy that their protests and refusals would have had a significant impact’ should also be held responsible58 is a fair argument. This makes individuals such as Assistant Attorney General Jay Bybee, who wrote the memorandum justifying torture,59 among those responsible for the widespread torture. On the other hand, officials such as Secretary of State Colin Powell, who clearly opposed the war but failed to resign,60 can be said to be responsible, but less blameworthy. Building on this argument, two more questions will be discussed. Firstly, the next section will discuss the arguments in favour of holding the entire American people responsible for the abuse at Abu Ghraib. Secondly, the article will argue that those at the top of the system are most blameworthy for the abuse.

The American People?

Can it be argued that the entire American people is responsible for the abuse at Abu Ghraib? Some thinkers in fact believe that entire communities can be blamed when the rules of war are violated.61 Gray, for example, argues that the greater possibility one has for acting, the more responsible one is if one fails to act against the violations.62 This is based on the principle that the people as sovereign is responsible for the government.63 Thus, it is reasonable to ask whether voters knew or should have known64 that the Bush Administration would order the use of torture after his election as president. Let it be assumed that the voters all knew that when electing Bush. Would this make them responsible? One can certainly argue that those who voted for him despite knowing that he would torture Iraqis, or anyone else for that matter, would be responsible for the actions resulting from their votes. However, holding the entire population responsible is more problematic, as many in fact chose other candidates or no candidate at all. Further, it is little evidence that either the people, or the President himself, knew or should have known that the wars or the subsequent abuse would take place. Thus, it would be unreasonable holding the American people, or a large section of it, responsible for the abuse based on this argument.

Then, what about Calley’s argument that the US Army is merely a ‘Frankenstein monster’, created by the ‘people of the United States’?65 The question posed here is whether the “maker” should have known that the “monster” would commit such abuse when getting out of their control. Calley’s argument that the people are responsible for creating the “monster” is unconvincing. There are several reasons for this. Firstly, the Army was created long before anyone living today was born, questioning the argument that it was this people that created it.66 It is also unreasonable to think that the people themselves would be able to disband the Army. Secondly, it is questionable whether the creation of an Army makes a people responsible for its abuses, just like those who support a war are not necessarily responsible for war crimes.67 It can be argued that the American people may have to pay restitutions, but to hold them accountable for the actions is to go too far. Calley’s argument that the American people were responsible is clearly an attempt to affect the decision in the case against him. For these reasons, arguing that the American people are responsible for the abuse at Abu Ghraib is unreasonable.

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