The road to Abu Ghraib: the biggest scandal of the Bush administration began at the top.

• Author: Carter, Phillip

A generation from now, historians may look back to April 28, 2004, as the day the United States lost the war in Iraq. On that date, "CBS News" broadcast the first ugly photographs of abuses by American soldiers at Baghdad's Abu Ghraib prison. There were images of a man standing hooded on a box with wires attached to his hands; of guards leering as they forced naked men to simulate sexual acts; of a man led around on a leash by a female soldier; of a dead Iraqi detainee, packed in ice; and more. The pictures had been taken the previous fall by U.S. Army military police soldiers assigned to the prison, but had made it into the hands of Army criminal investigators only months later, when a soldier named Joseph Darby anonymously passed them a CD-ROM full of prison photos. The images aroused worldwide indignation, and illustrated in graphic detail both the lengths to which the United States would go to get intelligence, and the extent to which those efforts had been corrupted by the exigencies of the difficult war in Iraq.

Two days later, The New Yorker published a report on Abu Ghraib by Seymour Hersh. Hersh won a Pulitzer Prize in 1970 for his reporting on the U.S. Army's atrocities in Vietnam; now he had come full circle, documenting the full extent of the abuses at Abu Ghraib and the Army's initial efforts to investigate them. Hersh's reporting--which forms the nucleus of his new book, Chain of Command--helped launch nearly a dozen different criminal investigations into what former vice president Al Gore dubbed "the American Gulag," the extraterritorial chain of prisons and detainment centers, stretching from Guantanamo Bay to Afghanistan, set up by the Bush administration to hold suspected terrorists. More than 300 instances of abuse in those facilities, from November 2001 to as recently as March 2004, have been alleged since then. To date, eight out of 11 investigations have been completed. They have produced thousands of documents, witness interviews, military orders, emails, and PowerPoint briefings, with each one telling a small piece of the story of how America's vaunted all-volunteer professional military lapsed into some of the most unprofessional and despicable conduct of its history. Forty-five soldiers have been recommended for courts-martial, and 23 others for summary discharge. Nearly one year after the first sadistic acts took place, the extent of the abuses remains unknown. But by all indications, the worst revelations are yet to come. In closed-door presentations before Congress, Pentagon officials revealed evidence of crimes ranging from the rape of female detainees to the sexual abuse of minors held at Abu Ghraib.

There is no doubt that the abuses at Abu Ghraib stand as an indelible stain on the honor of the American military. What is less clear is the degree to which the resulting scandal has damaged our national security and undermined our efforts to bring peace to Iraq and win the war against radical terrorism--a war that is as much a fight for the political and moral high ground as it is a shooting war that pits American soldiers against Islamist ones. America suffered a huge defeat the moment those photographs became public. Copies of them are now sold in souks from Marrakesh to Jakarta, vivid illustrations of the worst suspicions of the Arab world: that Americans are corrupt and power-mad, eager to humiliate Muslims and mock their values. The acts they document have helped to energize the insurgency in Iraq, undermining our rule there and magnifying the risks faced by our soldiers each day. If Osama bin Laden had hired a Madison Avenue public relations firm to rally Arabs hearts and minds to his cause, it's hard to imagine that it could have devised a better propaganda campaign.

The damage done by Abu Ghraib might at least have been minimized had the administration pursued a strategy of publicly and sincerely holding accountable those responsible for it. Instead, it has done something close to the opposite. The Bush administration has condemned the abuses as the work of a "few bad apples," while working diligently to get the story off the front pages and out of the presidential campaign. In a meeting with Human Rights Watch executive director Kenneth Roth shortly after the scandal broke, reports Hersh, National Security Adviser Condoleezza Rice argued that the abuses resulted not from the president's policies in the war on terrorism, but from "implementation of policy" by the military. The various committees and commissions investigating the scandal have more or less abetted this line of defense. Discussing the results of the independent investigation into Abu Ghraib he chaired, former defense secretary James R. Schlesinger explained that while "institutional and personal responsibility" for the abuses went all the way to Washington, they were rooted in the sadism and brutality of a few individuals--"Animal House on the night shift," as he put it. While the military's civilian leadership was guilty of "indirect responsibility," Schlesinger told reporters, Donald Rumsfeld's resignation "would be a boon to all of America's enemies."

Go past the executive summaries and press releases, however, and a careful reading of the reports reveals a different story. The devastating scandal of Abu Ghraib wasn't a failure of implementation, as Rice and other administration defenders have admitted. It was a direct--and predictable--consequence of a policy, hatched at the highest levels of the administration, by senior White House officials and lawyers, in the weeks and months after 9/11. Yet the administration has largely managed to escape responsibility for those decisions; a month from election day, almost no one in the press or the political class is talking about what is, without question, the worst scandal to emerge from President Bush's nearly four years in office.

Defenders of the administration have argued, of course, that there is no "smoking gun"--no chain of orders leading directly from Defense Secretary Donald Rumsfeld to Pfc. Lynndie England and her co-conspirators. But that reasoning--now largely accepted within the Beltway--betrays a deliberate indifference to how large organizations such as the military actually' work. In any war, civilian leaders set strategic aims, and it falls to commanders and planners at successively lower levels of command to refine that guidance into executable orders which can be handed down to subordinates. That process works whether the policy in question is a good one or a bad one. President Bush didn't order the April 2003 "thunder run" into Baghdad; he ordered Tommy Franks to win the war and the Third Infantry Division's leaders figured out how to make it happen. Likewise, no order was given to shove light sticks into the rectums of Iraqi prisoners at Abu Ghraib. Nevertheless, the road to the abuses began with flawed administration policies that exalted expediency and necessity over the rule of law, eviscerated the military's institutional constraints on the treatment of prisoners, commenced combat with insufficient planning, preparation and troop strength, and thereby set the conditions for the abuses that would later take place.

But there's a reason why most of the investigations into Abu Ghraib have punted on the essential question of executive responsibility. To judge the administration's decisions to have been wrong, after all, requires us to discern what the right decisions would have been. And to do that, we must put ourselves in their shoes. Given the particular conditions laced by the president and his deputies after 9/11--a war against terrorists, in which the need to extract intelligence via interrogations was intensely pressing, but the limits placed by international law on interrogation techniques were very constricting--did those leaders have better alternatives than the one they chose? The answer is that they did. And we will be living with the consequences of the choices they made for years to come.

Breaking the law

War has always had its own codes and rules, but the modern laws governing armed conflict were developed during the 20th century, when industrialized nations fought large, mechanized, bloody wars of attrition. World Wars I and II--featuring aerial combat, bombing campaigns, chemical and trench warfare, and the slaughter of soldiers and civilians on an unprecedented scale--spurred the four Geneva Conventions of 1949, which laid out basic principles of conduct for civilized nations. These treaties aimed to distinguish between combatants and civilians, and to the extent possible, to minimize the suffering inherent in war. But like their predecessors--the prisoner-of-war treaty signed in Geneva in 1929, the Union Army's Lieber Code of 1863, the 1864 Geneva Convention, and the 1907 Hague Conventions, among others--the Geneva Conventions of '49 were fundamentally backward-looking, reflecting the dominant nature of warfare at the time: large air and land campaigns between states employing relatively symmetrical forces. When the treaties mentioned paramilitaries and non-state guerrillas, they were typically treated as bandits who played only a tangential role in the conduct of warfare. The conventions wholly flailed to anticipate the...