Abu Ghraib.

AuthorAmann, Diane Marie
PositionExecutive power of detention

Seared now into memory is the image of a black-hooded figure standing atop a box. He is naked beneath the black robe that drapes outstretched arms, from which wires run to some unseen source of electricity. (1) Digital scrapbooks of Americans' abuse of this man, and of others at Iraq's Abu Ghraib prison, became public just hours after a government lawyer had assured the Supreme Court that no detainee endured torture at U.S. hands. The image eviscerated that assurance. The man soon became the faceless face of Abu Ghraib; "Abu Ghraib" itself became a catchphrase for the dark underbelly of the United States's detention policy since September 11, 2001. Government reports released in the wake of the disclosure told unsettling truths. Abuses were not due solely to acts by rogues of low military rank, nor were they aberrations at a single prison. Abuses occurred at many anti-terror flashpoints--even at the Executive's showcase center at Guantanamo--and with some sanction from the highest ranks. And though victims were dispersed across the globe, each suffered within the same perverse vacuum: a space,so freed from the constraints of law and decency that abuse became possible, even, perhaps, inevitable.

This Article asks how that space came to be; more precisely, how the U.S. Executive succeeded in maintaining a zone governed almost exclusively by a singular will to extract information from anyone thought to know anything about the enemy. The Article shows that this space was the self-conscious creation of the Executive, which asserted that the country was at war, and that in wartime, courts must bow to a boundless and unreviewable presidential prerogative. Initially, courts opted to defer to much of this argument, and so reinforced the Executive's construct. Then, however, a trilogy of Supreme Court opinions issued in June 2004 appeared to catch the Executive short. (2) Coincident documentation of widespread detainee abuse, combined with the release of internal memoranda that evinced deliberate executive construction of law-free zones of detention, provoked a popular outcry that seemed likely to apply a further brake on the detention policy. In the months that followed, though, little seemed to have changed. One onshore detainee was sent home, (3) but two others remained in legal limbo. (4) A few soldiers were prosecuted for detainee abuse, but generals implicated in government reports were not, and high-ranking civilians won promotion. Trial courts pressed the Supreme Court's order that the Executive accord rudimentary rights to detainees, but the Executive proceeded as if no such order had been given. Contributing to this state of affairs were many factors, not the least of them the stymying effect of the campaign that led to reelection of the President responsible for the policy.

This Article underscores a different, less evident factor. It attributes the persistence of the policy of detention to a lack of vision regarding legal constraints. At the moment terrorists attacked on September 11, there was no absence of law. Norms and doctrines, enforcement regimes, and compliance mechanisms comprised a complex map of laws concerning detention and interrogation. These ranged from the 1949 Geneva Conventions on the laws of war (5) to the common law's habeas corpus guarantee, and were domestic as well as international, recent as well as deeply rooted. Yet key actors--civilian executive officials, judicial officers, and military personnel--went about their work with blinders on. Failing to apprehend the existence and import of multiple sources of pertinent law, they acknowledged no clash among those laws nor any need for the reasoned resolution of such clashes. Persons charged with making, evaluating, and implementing policy thus looked to some laws and ignored others. At times the choice of law seemed driven by little more than institutional default: the executive lawyer tended to privilege presidential power; the Army officer, military regulations and the Geneva Conventions; the judge, the principle of judicial review. Even among the nine Justices, laws deemed pertinent varied considerably, as did the interpretations placed on those laws. Moreover, most of the Justices, like most military personnel, embraced essential pillars of the Executive's construction; for instance, the Executive's designation of disfavored detainees as "enemy combatants" and its insistence that its campaign against terrorism constitutes a "war."

Conflict of laws might have offered a legal framework for analysis; however, this field, grounded in doctrines benefitting the nation-state, proved ill-suited to the task. The same was true of public international law, the field to which conflicts often cedes transnational matters. The result has been regrettable; indeed, to use the Army's own term, "reprehensible." (6) Pervasive failure to comprehend potentially applicable laws enabled the Executive to maintain its zones of detention. It may have led some Justices to deny a citizen protection that otherwise would have inhered under national law. And it left the implementers of executive policy--among them, the military police on guard at Abu Ghraib and the intelligence officers who conducted interrogations at Guantanamo--in a place without law, where inhumane treatment of detainees came to seem acceptable.

  1. TERRORIST ATTACK, EXECUTIVE DETENTION

    Following the terrorist assaults of September 11, 2001, the United States struck back against the Taliban regime that had provided Al Qaeda safe haven in Afghanistan. Thousands were captured, among them Taliban fighters and Al Qaeda operatives, as well as others who said they were noncombatant bystanders. The desire to detain them indefinitely gave rise to the Executive's policy of detention. (7)

    1. Guantanamo

      Exactly four months after the attacks in New York and Washington, a cargo plane delivered the first group of captives, hooded, shackled, and clad in lurid orange jumpsuits, to cages erected inside the military base at Guantanamo Bay, Cuba. Eventually the cages of Camp X-Ray gave way to the cinder-block structures of Camp Delta, as Guantanamo became the premier site at which the U.S. Executive subjected captives to interrogation, without access to family or counsel and with little hope for release. At one point the detainee population approached 700. Detainees reportedly came from dozens of countries. They may have been as young as eleven and--according to the claim of one released detainee--as old as 105. (8) International objections were swift and loud. Critics tended to disregard the many hundreds held at the Bagram prison and elsewhere in Afghanistan, as well as others at the CIA's so-called undisclosed locations. They aimed their attacks at Guantanamo: the fact and terms of detention, they said, conformed neither with U.S. criminal procedure nor with procedures spelled out in the Geneva Conventions. The Executive deflected these complaints, maintaining that detention was essential in the fight against what it described as a new kind of national security threat, a "new paradigm." (9) Thus did Deputy Assistant Attorney General John Yoo explain: "What the Administration is trying to do is create a new legal regime." (10)

      U.S. officials insisted that no court of the United States, let alone any other enforcement mechanism, possessed the power to make them give non-Americans at the offshore base the benefits of the rule of law. The cases of Yaser Esam Hamdi and Jose Padilla, two Americans suspected of terrorist activity, required a slightly different tack: conceding that the reach of the U.S. judiciary might extend to U.S. citizens held extraterritorially, the Executive designated these two "enemy combatants" and sent them to a military brig in South Carolina. Like the Guantanamo captives, Hamdi and Padilla also endured incommunicado detention and unimpeded interrogation.

      Challenges to detention were filed in national and international fora; at first these efforts were unsuccessful. The U.S. Executive rebuffed demands of extranational bodies such as the Inter-American Commission for Human Rights and the U.N. Working Group on Arbitrary Detention. (11) A rare public entreaty by the International Committee for the Red Cross had no effect; nor did that Committee's many private pleas. (12) National courts inside and outside the United States judged themselves without jurisdiction to enjoin the U.S. Executive. (13) Then, nearly two years after the opening of Camp X-Ray, the Supreme Court announced that it would review the federal cases.

    2. Abu Ghraib

      At the April 2004 argument in Hamdi, Justice John Paul Stevens asked Deputy Solicitor General Paul D. Clement: "But do you think there is anything in the law that curtails the method of interrogation that may be employed?" (14) "I think that the United States is signatory to conventions that prohibit torture and that sort of thing," Clement replied. "And the United States is going to honor its treaty obligations," he added; yet he saw no "basis for bringing a private cause of action against the United States." (15) Clement thus reaffirmed the administration's pledge to abide by its obligations under the Convention Against Torture--including prevention of "'acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture'"--even though it did not welcome judicial review of its conduct. (16) Oral arguments ended at lunchtime, and the trilogy of detention cases rested under Supreme Court advisement.

      Hours later, viewers of 60 Minutes II were confronted with a color photograph of a bare-legged man cloaked in black. (17) "Americans did this to an Iraqi prisoner," CBS correspondent Dan Rather declared. The image still on the screen, he continued: "According to the U.S. Army, the man was told to stand on a box, with his head covered, with wires attached to his hands. He was told that if he fell off the box he would be electrocuted. It...

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