THE University of Toledo Web site's question of the week asked: "Do you think Defense Secretary Donald Rumsfeld should resign or be dismissed in the wake of the Iraqi prison scandal?"
I was reminded of an interview I conducted last year with an eminent Dutch scholar from the University of Amsterdam. This gentleman had spent most of his professional career studying the trials of accused Nazi war criminals in postwar Germany.
I asked him to identify the single most important lesson that his 45-year study of Nazi inhumanity had taught him. Without hesitating, he replied that war crimes flourished in an environment of lawlessness, and that a contempt for law began at the summit of an organization and flowed downward into the attitudes and behaviors of the lower echelons.
"Preserve the rule of law at the top," he advised, "and the rank and file will fall into line. Abandon it, and war crimes are inevitable."
This Dutch scholar's sober reflection was suitable to the genocidal crimes of the Nazi government during World War II. At the Nuremberg trials, the prosecution had proved that, before the German attack on the Soviet Union in June 1941, the Nazi regime had issued two crucial orders to the troops massing for the invasion.
The first denied POW status to political commissars attached to the Red Army, who were to be shot on the spot. The second exempted German soldiers from the jurisdiction of military courts, thus facilitating atrocities on the civilian population. Acting under these directives, the Germans murdered hundreds of thousands of eastern Europeans, most of them noncombatants.
My Dutch scholar's warning seemed to fit: The leadership corps of the Nazi state had released its military units from the rule of law, and the result was wave after wave of atrocity.
On this evidence, high-ranking members of the German army, security service, and government were convicted of violating international law and hanged, a textbook case of tracing criminal liability to the top.
The crimes at Nuremberg were devised by policy-makers within the Nazi state, and thus bear little resemblance to atrocities committed in the heat of battle. The latter, called "atrocities by frenzy," are typically committed by soldiers incited to their carnage by frustration and bitterness. They rarely are ordered by the command structure, but occur as the unauthorized actions of free-lancers, renegades, and berserkers.
Nazi crimes, by contrast, are in a category of war-time criminality; they are "atrocities by policy." The crimes are not driven by the passions unleashed in wartime, but by officially sanctioned methods commended by central leadership.
It occurred to me that an answer to the UT Web site's question about Mr. Rumsfeld could be approached through the distinction between these two kinds of atrocity. In other words, were the actions of U.S. military personnel at Abu Ghraib prison atrocities of frenzy or of policy?
Were they the handiwork of loose cannons and deviants, as the Bush Administration has argued, or were they the predictable result of a general lawlessness communicated to the offenders from the top? To explore this question in depth, we need to go back in time, to the stormy days following the Sept. 11, 2001 attacks.
In November, 2001, Mr. Bush said that any non-U.S. citizen he deemed a terrorist could be tried by a military tribunal rather than a conventional criminal trial. Prosecution in military tribunals could be secret, ordinary rules of evidence did not apply, a finding of guilt beyond a reasonable doubt was unnecessary to convict, and no appellate relief beyond the President was available. Also, the administration reserved the right to detain suspects even if they were acquitted by the tribunal.
The justification offered for curtailing the rights guaranteed to POWs under international law was that terrorists were "illegal combatants." True enough, illegal combatants are not entitled to the same protections under the Geneva Conventions that their legal counterparts enjoy.
Nonetheless, in cases of doubt, the determination of a prisoner's status must, according to the Conventions, be determined by a "competent tribunal," not solely by the President in his discretion.
The administration's policies were put into practice at the Guantanamo Bay military base, where detainees from the Afghan campaign were held incommunicado and without access to counsel, nor charged with a crime. At Guantanamo, too, the administration's characterization of all the detainees as illegal combatants affected their treatment by prison staff. Guantanamo prisoners released in mid-March have reported being beaten, kicked, punched, and flogged with batons. Others claimed they had been shackled for as long as 15 hours.
Recent revelations from Afghanistan and Iraq lend strong support to the former detainees' allegations of systematic abuse. Prisoners released from Bagram Air Base in Kabul reported being kicked and degraded by female prison guards.
Did the offenders at Bagram and Abu Ghraib commit atrocities by frenzy? Secretary Rumsfeld says so. But the perpetrators claim that they were simply following the orders of military intelligence officers, CIA agents, and civilian contractors to "soften up" the detainees for interrogation.
Their assertions are confirmed by an official Army report by Maj. Gen. Antonio Taguba, which found that military guards at Guantanamo Bay were ordered to "set the conditions" for investigations by intelligence personnel. His report indicates that the Guantanamo model was later adopted at Bagram and Abu Ghraib, despite its violation of Army rules prohibiting guards from participating in interrogations.
When we trace the sad genealogy of prisoner abuse from the dungeons of Guantanamo to the detention centers of Afghanistan and Iraq, it becomes clear that the abuse was driven by official policy. And that policy goes straight to the top of U.S. national security, directly to the office of Mr. Rumsfeld.
No smoking gun directly linking Secretary Rumsfeld with the mistreatment of prisoners may even exist. Yet Mr. Rumsfeld was instrumental in creating an atmosphere of lawlessness in the "war on terror" that enabled such mistreatment.
When allegations of prisoner abuse began to surface in December, 2002, Mr. Rumsfeld dismissed them, along with the alarming reports of human rights groups monitoring U.S. military prisons in Afghanistan. Not until overwhelming and irrefutable evidence of abuse appeared in April did he strike a semi-contrite pose; even then, he blamed the atrocities on a handful of renegade soldiers.
By fostering a climate of lawlessness in dealing with foreign prisoners, he has badly tarnished the image of America. He has alienated moderates, enraged our enemies, and dismayed our friends. If he won't resign, he should be dismissed.
Michael Bryant is an assistant professor of criminal justice and history at the University of Toledo who served as a Judge Advocate in the Air Force for four years.
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