In 1998, an article by Colonel Charles J. Dunlap Jr. appeared in the United States Air Force Academy’s Journal of Legal Studies warning that a new form of warfare lay ahead. Because our military resources are so far beyond those of any other country, Dunlap argued, no society can today meet us through symmetrical warfare. Therefore, our 21st-century opponents will stop confronting us with weapons and rules that are the mirror counterparts of our own. They will instead use asymmetrical or “neo-absolutist” forms of warfare, resorting to unconventional weapons and to procedures forbidden by international laws.
What Dunlap meant by “unconventional weapons” is clear: the category would include not only outlawed biological, chemical, and nuclear weapons (the last of which, in the view of the United States, only itself and a small number of other countries are legally permitted to have) but also unexpected weapons such as civilian passenger planes loaded with fuel and flown into towering buildings in densely populated cities.
But the term “neo-absolutism,” as used by Dunlap, applies not just to the use of unconventional weapons but to conduct that violates a sacrosanct set of rules—acts that are categorically prohibited by international law and by the regulations of the United States Air Force, Navy, and Army (along with the military forces of many other nations). For example, though warfare permits many forms of ruse and deception, it never permits the false use of a white flag of truce or a red cross. The white flag and red cross—along with a tiny number of other symbols and rules—are held to be inviolable, and their intentional misuse is regarded by the laws of nations as “perfidy,” and, when employed to injure or kill, “treachery.” A memorable example of such treachery occurred during the spring 2003 invasion of Iraq by the United States, when an Iraqi taxi driver allegedly displayed a white flag at a checkpoint and then, having gained the trust of the guards, exploded a car bomb, killing four American soldiers. 1 Though Iraqi forces were at that moment being attacked by American equipment whose power to injure was in vast excess of anything owned by the Iraqis, media in the United States and around the world rightly paused to express horror and indignation at the deceptive use of a white flag, as they would again pause to express horror a few months later when an Iraqi truck carried explosives into the United Nations headquarters in Baghdad, a site that should have been treated as inviolable by both sides.
Dunlap’s article, which so accurately predicted the coming era of neo-absolutist enemies, was not recommending that the United States reciprocate by itself succumbing to neo-absolutism. Precisely to the contrary, it urged that the U.S. military begin to prepare for asymmetrical warfare (of the kind we would experience three years later on 9/11) so that it could maintain an unswerving conformity to international law while defeating its neo-absolutist opponent. Using the longstanding idiom of “chivalry”—a technical term by which international and military law pay tribute to an overarching framework of civil law that endures even in the midst of war—the article insisted that the United States must continue to be Sir Galahad even when confronted by Genghis Khan.
But has the United States continued to uphold the international prohibitions against treachery and other prohibitions against comparable acts of wrongdoing since 9/11? Or has it, without blinking, crossed over into the region of neo-absolutism? Often applied to monarchs and tyrants, the term “absolutism” has, over the last four centuries, been used in the political context to indicate an executive power that is unconstrained by rules or limits.
The gravest evidence against the United States resides in the now elaborately documented acts of torture at Abu Ghraib and the less fully documented acts of torture at interrogation centers in Bagram, Afghanistan (where one prisoner died of pulmonary embolism, another of a heart attack), in Qaim, Iraq (where an Iraqi general, who voluntarily entered a military camp to inquire about his four sons, died after interrogators beat him, put him head first into a sleeping bag, and sat on his chest), on the British island of Diego Garcia, and at Guantánamo. We also know that the United States has repeatedly sent prisoners to interrogation centers with histories of torture in Syria, Saudi Arabia, Jordan, and Egypt. 2
The willingness of the United States to torture might well absorb our full attention here. But because it is also the form of neo-absolutism about which most people are already acutely aware, I will only briefly review what we know about it.
In its 2005 annual report, Amnesty International called on national bodies to arrange for “a full and independent investigation” of the “use of torture . . . by U.S. officials” and called for the support of the International Criminal Court. Determining the degree of responsibility of government leaders for the events at Abu Ghraib must await such an inquiry; but it is important to recognize what the documentary evidence already makes clear: a stark line of influence from Washington to Guantánamo to Bagram to Abu Ghraib.
We know, first, that President George W. Bush and Secretary of Defense Donald Rumsfeld declared that detainees in Guantánamo were not lawful combatants and therefore not protected by international rules governing prisoners of war. 3
Second, we know that President Bush officially announced that he personally had the power to suspend the Geneva Conventions in Afghanistan. A February 7, 2002, memo from the president to the vice president, secretary of state, secretary of defense, attorney general, CIA director, and chairman of the joint chiefs of staff (among others) stated, “I have the authority under the constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. . . . I reserve the right to exercise this authority in this or future conflicts.” 4
Third, we know that in Iraq, at Abu Ghraib, individual soldiers—men and women from the 800th Military Police Brigade and the 205th Military Intelligence Brigade—took it upon themselves to suspend Geneva rules and torture detainees. The investigative reports of their acts—the Taguba, Fay-Jones, and Schlesinger Reports—take note of the fact that military-intelligence soldiers who had served in Guantánamo and Bagram later served in Abu Ghraib, carrying with them information about the suspendability of the Geneva Conventions. Key practices at Abu Ghraib—stripping prisoners naked and threatening with attack dogs—coincide with practices explicitly authorized by Rumsfeld for Guantánamo detainees in a December 2002 memorandum.
The act of torture is such an extreme trespass against the laws of war that it may seem beside the point to wonder whether any other forms of wrongdoing have been carried out; additional acts cannot make a country that tortures worse than it already is, nor would the absence of additional acts diminish its culpability. Yet it is important to consider these others, and in particular perfidy and treachery, because every act that carries us into neo-absolutist territory blurs our vision, makes the boundary easier to cross, and puts us at ever-accelerating risk of carrying out moral harms (such as the use of nuclear weapons) from which we may not soon recover.
International law and military law identify only a tiny set of actions as treachery; it appears that we have committed—or have come perilously close to committing—each of them. Along with torture, the conduct described below reveals a pattern of indifference to even the most elementary moral and legal norms and a willingness to substitute the unbound dictates of men for the rule of law. A good case can be made that the United States has already violated these norms. But even if there have not been criminal violations, there is a pattern in the conduct I consider here, and that pattern suggests a pervasive unwillingness to take the most fundamental norms seriously as strictures that must not be violated. That indifference and that unwillingness are bound, sooner or later, to carry the country into fatal moral terrain.
Rule 1: White Flag, Red Cross
The misuse of a white flag or red cross is considered an act of perfidy. Perfidy is at its heart a misuse of signs or pieces of language, according to International Law—The Conduct of Armed Conflict and Air Operations, a 1976 pamphlet that is the Air Force’s handbook on the laws of warfare. Yet most of the acceptable stratagems of deceit in warfare also involve an intentional misuse or falsification of language. Article 24 of the Hague Conventions, quoted in the Air Force handbook, Section 8-4, lists many legitimate falsifications of language: it is lawful to “use enemy signals and passwords” and to issue “bogus orders by an enemy commander”; one may “simulate quiet and inactivity” when a large force is gathering or, conversely, “simulate a large force” when only a small force is present. The list of permissible deceptions is vast. Fraud, as Machiavelli long ago realized, is the natural companion of force.
But the fraudulent use of a white flag or a red cross (or the equivalent of the red cross in other cultures—the red crescent or the red lion, for example) is prohibited for three reasons. First, some small pieces of language in war must remain wholly intact, uncompromised, unwavering, undiluted in their meaning. These few insignia are placed hors de combat, or “out of combat”; they constitute a civil structure that remains in place in the international sphere (in the same way that inside a country the military is kept inside a civil frame). These small but sacrosanct pieces of language act as a location from which other true sentences can be spoken: without them, as Morris Greenspan observes in Modern Law of Land Warfare, neither party would “be able to place the slightest credence in the word of the other.”
The second reason points to the future rather than the present, the period of peace rather than war. Unless certain pieces of language remain uncontaminated by war, no international framework of trust remains available for a truce or peace accord. These small pieces of language must be kept intact, then, because they will provide a bridge back to civilization.
The first and second reasons tell us that some pieces of language must carry the guarantee of truthfulness without telling us why these particular pieces of language must do so. This explanation is provided by a third principle, which is hard to formulate. One formulation states that no language can be used that “causes the enemy to refrain from violence he would otherwise surely exercise”; another formulation states that it is a “grave breach . . . when the use invites the confidence of the enemy with the intent to betray confidence.” These descriptions are both still incomplete because acceptable fraud, such as pretending that one’s army is not present by moving quietly forward, is in fact intended to “cause the enemy to refrain from violence he would otherwise surely exercise” and also “invites the confidence of the enemy with the intent to betray confidence.” What is key in cases of treachery is that one party invites its opponents to refrain from injuring others and to refrain from protecting themselves against injury by appealing to the higher frame of language, the hors de combat language, and then, thanks to the opponents’ willingness to honor this higher call, injures them. The Iraqi taxi driver who lured the American soldiers toward him asked them to step away from the ground of combat, to stand with him above the battle, but did so only to maneuver the soldiers into harm’s way.
So severe is the rule protecting the signs of truce and medical care that it cannot be suspended, even for the sake of escape, a circumstance that often permits a relaxation of the rules. For example, it is permissible, for the purpose of escape, to take off one’s uniform and wear civilian clothes, an act impermissible in any other context. 5 In contrast, it is never permissible for uninjured soldiers to travel in an ambulance, whether they are moving forward into battle or trying to escape from it.
The stark prohibition on the false use of the red cross is derived from a logically prior and overarching prohibition: that a Red Cross vehicle or building cannot itself be the target of assault. It is because all participants are obligated to regard the white flag and red cross as inviolable that a secondary obligation arises not to use either sign falsely. As the Air Force manual observes, “The rule prohibiting feigning hors de combat status, such as sickness, distress or death, in order to commit or resume hostilities is only a corollary rule to the principle prohibiting attacks on persons who are hors de combat.”
What, then, are we to make of the joint Army–Navy–Air Force mission to storm al Nasiriyah General Hospital to take back the injured prisoner of war Private Jessica Lynch? The people of the United States were asked by their government to bear collective witness to this mission—to take it, and honor it, as our national war story. If the narrative captivated national attention, it did so in part because the deeds were so fresh, so unheard of—but they were fresh and unheard of because such deeds are not ordinarily performed, and they are not ordinarily performed because to storm a hospital is to be guilty of perfidy: it is a violation of the primary and overarching prohibition from which the perfidy prohibition is derived.
Did anyone present at the planning session for this mission have a handbook of military rules available? Did anyone object to the plan? 6 For the U.S. Special Forces to drive up to the hospital in Nasiriyah in a fleet of ambulances would of course have been a clear act of perfidy. So, too, was it an act of perfidy to arrive at the threshold of the hospital in a fleet of military tanks and helicopters loaded with Navy Seals, Army Rangers, and Air Force pilots, who spilled through the corridors at midnight, breaking down doors and blasting guns. Upon hearing the roar of approaching machinery, the hospital staff, according to their reports, fled to the basement. Inciting members of a medical staff to abandon their posts beside their patients for several hours is a concrete harm, though if they had not abandoned their posts, the United States might now have the slaying of medical personnel and hospital administrators on its hands.
The Navy handbook on the law of naval warfare includes this specific prohibition: “Medical establishments and units, fixed or mobile, and vehicles of wounded and sick or of medical equipment may not be bombarded or attacked.” Of the estimated 3,000 Nasiriyan civilians who by that point in the war had been injured by U.S. armaments, 60 suffering from severed limbs and other severe harms were housed in the hospital. Private Lynch was transferred to this civilian hospital from a military hospital by her Iraqi captors. Among many untrue elements included in the original dissemination of the story was the image of Iraqi soldiers hovering over Jessica Lynch, slapping her to extract information. 7 Both Private Lynch and the physicians and nurses who cared for her deny that any such incident ever took place. The inclusion of these details suggests that the people presenting the story to the American public understood that there is a stringent norm against attacking a hospital and therefore tried to convert the building into something other than a hospital and those hovering near her into brutal interrogators rather than nurses and physicians.
A basic principle governing hospitals in a time of war is Hostes dum vulnerati, fratres, or “enemies while wounded are brothers,” which is generally interpreted to mean that care of injured military forces must be carried out without regard to nationality. 8 This principle was honored at al Nasiriyah General Hospital, where, according to Private Lynch, one of her nurses soothed her body with talc while singing her lullabies. Of her main nurse Lynch said, “I loved her.” Private Lynch credits her caretakers with giving her life: “I’m so thankful to those people, ’cause that’s why I’m alive today,” she told Diane Sawyer in a television interview. I am not suggesting that the medical treatment was in any way remarkable. Though some nurses or doctors may have done more than is necessary, decent medical treatment is required both by the Geneva Conventions and by the Red Cross’s proposals for regulations on the “safeguard of an enemy hors de combat”: “It is forbidden to kill, injure, ill treat or torture an adversary hors de combat. An adversary hors de combat is one who, having laid down his arms, no longer has any means of defense or has surrendered.”
The fact that Private Lynch was receiving humane treatment in a hospital does not mean that her broken legs, arm, and spine could be as successfully mended in Iraq as they might be in an American or European hospital. The rules of war allow an injured enemy soldier to be transferred to medical care among her own countrymen, so long as the transfer can be safely made. The day before the U.S. Special Forces raided the hospital, the Iraqi medical staff—as physicians told the BBC and as Private Lynch told ABC—attempted to transport her to an American hospital; but the ambulance was fired on by American soldiers at a checkpoint and forced to turn around. An assault on an ambulance, like an assault on a hospital, is prohibited by national and international regulations. The U.S. soldiers might have thought that the ambulance was a ruse, though the public record does not document the misuse of ambulances by Iraqi forces in Nasiriyah. 9 At best, these actions can be interpreted as answering illegal acts with illegal acts; at worst, they represent the first step in the descent into neo-absolutism.
Some American newspapers called the episode a story of “smoke and mirrors,” and, to their credit, the media soon collectively sorted through the story, correcting false information (that Private Lynch had gunshot and stab wounds, rather than broken bones from the truck accident during the ambush; that she stood her ground, killing Iraqis and firing until the moment she was taken, rather than, as she describes, putting down her head and her malfunctioning gun and praying). The creation of an accurate record is the work of many people; it has depended most critically on Private Lynch herself, who demonstrates, among many other forms of valor, an unswerving commitment to the truth.
But what have often seemed to be at issue in these continual corrections are distracting questions about forms and degrees of heroism, whether on the part of Private Lynch, or the Special Forces (who, though their mission was filmed as it took place, are prohibited from speaking about it), or the Nasiriyah medical staff. This constant readjustment of details has obscured a basic question: is it now American practice to conduct raids on hospitals? If Fedayeen soldiers stormed an American hospital in the middle of the night wearing blazing searchlights on their helmets, would we consider that action legal? Admirable? If al Jazeera dedicated several weeks to calibrating the exact level of heroism in the raid, would we believe that the Arab media and their audience were asking the right questions? Are U.S. hospitals, Iraqi hospitals, and International Red Cross facilities on the battlefield now legitimate targets?
Defenders of the American assault on the hospital might say that it was a legitimate rescue operation. They might say that the hospital was not itself the intended target; it only happened to be where Private Lynch was. The American forces had no choice about the location of the rescue, and the attack was therefore neither against the law nor demonstrative of an indifference to fundamental standards of law and morality.
This interpretation, however flattering to our self-understanding, is hard to reconcile with the facts. The Iraqis were willing to transfer Private Lynch: they were prevented from doing so by the American attack on the ambulance. Moreover, the American government never expressed any regret about the “need” to attack a hospital in service of a rescue operation: instead, the attack was mythologized and celebrated. A lawyer defending the American mission in a war-crimes trial might win his case. But for American citizens who believe that their country should respect fundamental standards, the assault—and the surrounding attitudes—must be deeply troubling. Even if the American assault did not technically violate these standards, it showed no respect for them.
During the first year of the war, we had the numbers and names of United States soldiers killed in Iraq, but almost no other information about what was happening on the ground. We did not know at that point even the numbers of Iraqi soldiers and civilians killed and injured, let alone the circumstances of their wounding. In the midst of this heartsickening vacuum, we were given one story—a story that, properly understood, reveals our own trespass into—or at a minimum, perilous proximity to—neo-absolutism.
Rule 2: Flying A False Flag
If a country flies a flag that is not its own, the country whose flag it is will surely take offense. The United States has declared it unlawful for a foreign vessel to fly the U.S. flag, and it exacts sanctions against any ship that violates this rule, denying it entry into U.S. ports for three months. During a period of warfare, a neutral country has a special interest in ensuring that its flag not be flown by one of the belligerents, since its use would falsely signal the country’s participation on one side or the other, thus making its neutral population vulnerable to reprisal. 10
But the rules against flying a false flag are not just left up to the special interests and vulnerabilities of particular countries. Chapter 8 of the Air Force handbook is dedicated to “Perfidy and Ruses.” This chapter includes not only the category of falsified medical and truce signs (“The Misuse of Specified Signs, Signals, and Emblems which are Internationally Recognized”) but also a second category: “Misuse of Enemy Flags, Insignia, and Uniform.” Hague regulation 23(f)—the basis of the military prohibition—places the false flag in the same category as the misuse of the red cross and white flag: “It is especially prohibited to make improper use of a flag of truce, or the national flag, or of military insignias and uniform of the enemy, as well as of the distinctive signs of the Geneva Convention.” Once more, these prohibited falsifications are very exceptional cases: almost all words and signscan legally undergo mystification during warfare; enemy flags and uniforms reside in that narrow region of language that cannot by misused without making the user guilty of perfidy.
Before the Abu Ghraib revelations, extended Washington Post and New York Times reports on the alleged American practice of torture in the previous two years indicated that prisoners had been interrogated in rooms where false flags and false national insignia were displayed. Gerald Posner’s book Why America Slept includes an extended description of the U.S. torture of the alleged al Qaeda terrorist Abu Zubayda: it describes the elaborate procedure American interrogators used to disguise themselves and their interrogation room as Saudi Arabian, with the result that the prisoner, believing that he was being questioned by Saudis, revealed his close working relationship with an array of Saudi officials. 11 The CIA (according to Posner) refers to this genre of torture as a false-flag interrogation.
Defenders of the event might say that although the Americans were surely flying a false flag, they were not necessarily flying the enemy’s flag, or, more precisely, that it was only during the torture session that they learned that the flag they were flying may have belonged to an enemy. Defenders might also say that although many legal analysts before World War II endorsed a blanket prohibition on the use of an enemy flag, since World War II the misuse of the flag is prohibited only during combat. 12 Since torture takes place in a legal vacuum, it cannot be said to exist in the space of combat or the space of non-combat. Therefore, none of the Geneva, Hague, or military rules about uniforms, flags, and insignia apply.
These two arguments are obviously false. The stark illegality of torture does indeed place it in a space of moral reprehensibility outside the legal categories of “combat” and “non-combat.” But only the most abject cynic would claim that the zone of the morally reprehensible becomes, by virtue of its illegality, a free zone that is exempt from all other rules and laws. Furthermore, the Bush administration has repeatedly insisted that in a war on terrorism, the battlefield is everywhere: it would be odd for a country that unabashedly designated O’Hare International Airport in Chicago “a battlefield” when José Padilla was arrested to hold that a torture room is not a combat zone and therefore not subject to battlefield rules about false flags.
As the battlefield in the war on terrorism is simultaneously everywhere and nowhere, so our enemies are everyone and no one. If the flag we flew in the Zubayda torture room—the flag of Saudi Arabia—was not an enemy flag, it is because we have no enemy. Fifteen of the 18 hijackers on 9/11 were from Saudi Arabia, so it is hard to see what country would stand ahead of Saudi Arabia in the line of candidates for the designation of “enemy.” Are we to suppose that when the Saudi flag is introduced into an interrogation, it has been placed there as the insignia of an American ally or neutral nation and not that of an opponent or suspected opponent? Is it not placed there because our enemy captive may well perceive it (as Zubayda did) as “friendly”?
The Bush administration has treated 9/11 as a shell game of shifting laws and norms. It could have treated the 9/11 attacks as criminal acts and gone after the perpetrators with criminal laws. 13 Instead it has treated them as acts of war and used a framework of war whose battlefields and enemies are everywhere but whose agents are non-state actors and therefore not eligible for Geneva and Hague protections. If our opponents are non-state actors, criminal law, and not a deformed version of the laws of war, should be used. But shuffling back and forth between two frameworks allows the administration to eliminate all national and international constraints on its increasingly debased power.
The case of Abu Zubayda should not be left behind without pointing out that his treatment violated another elementary rule, beyond the false-flag principle: the requirement that the wounded be treated humanely.
Section 215 of the Army’s manual on the law of land warfare describes the “Protection and Care” due to the “Wounded and Sick”:
They shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions. . . . Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be . . . subjected to torture . . . they shall not be wilfully left without medical assistance and care.
Whether the man being tortured actually was Zubayda was at the time uncertain (the man refused to say who he was), and whether Zubayda in turn was, as U.S. officials believed, a high ranking al Qaeda member was also uncertain (he had not stood trial). What was certain was that the man captured had a gunshot wound and was by virtue of his capture hors de combat. He therefore should have been subject to Hostes dum vulnerati, fratres and should have been cared for without regard for his nationality.
In September 2006, the U.S. Army issued a new handbook on interrogation entitled Human Intelligence Collector Operations. On page after page it forbids torture (invoking international, national, and military law), but it permits questioning that is free of force, even questioning of a captive who is wounded, so long as the “questioning will not delay the administration of medication to reduce pain” or in any other way jeopardize the captive’s medical well-being. In two separate sections it states the prohibition that was violated in the case of Zubayda: “Nor can [the questioner] state, imply, or otherwise give the impression that any type of medical treatment is conditional on the detainee’s cooperation in answering questions.”
Torture rooms and hospital rooms have come to be blurred in America’s wars in Afghanistan and Iraq. Private Lynch was, by her own account and by the account of Nasiriyan physicians, nurses, and hospital administrators, treated in accordance with Section 215 of the Army manual (and not, as Americans were at first permitted to believed, placed in a medical torture room). But the man called Zubayda, suffering from a gunshot wound in the groin, was placed not in a hospital but in a torture room, and his wound was enlisted into the method of extracting information.
A country at war must identify itself by flags, uniforms, and insignia on its planes. A country at war may not during combat fly a false flag. The United States may not fly the flag of Iraq or Saudi Arabia or Afghanistan or Pakistan. But may it continue to fly the flag of the United States? Can a country that breaks international and national rules—the Hague Conventions, the Geneva Conventions, and the regulations of its own Army, Navy, and Air Force—any longer fly the flag of the United States without being in danger of flying a false flag? The United States that most of us are committed to does not torture, does not conduct raids on the enemy’s hospitals, does not shoot at ambulances, does not withhold painkiller from a wounded enemy. Why should the small team of people carrying out such acts be permitted to continue flying our flag?
Rule 3: Wanted, Dead or Alive
On December 14, 2003, Paul Bremer, the American head of the Coalition Provisional Authority (wearing a large tie colored like an American flag, with navy blue at the throat and flaring out into wide red and white stripes), stepped up to the microphone and, referring to the capture of Saddam Hussein, announced, “Ladies and gentlemen, we got him!”
The brief sections on perfidy and treachery in the rules-of-war handbooks of the Air Force, Army, and Navy contain one more regulation, derived from the Hague Conventions, Article 23(b). Here is the way the Air Force handbook formulates it:
This article has been construed as prohibiting assassination, proscription or outlawry of an enemy, or putting a price upon an enemy’s head, as well as offering a reward for any enemy “dead or alive.”
The Army handbook, composed earlier, uses almost identical language to describe the regulation in the section dedicated to “Forbidden Conduct with Respect to Persons.” It is useful to look at the different phrasing used in Greenspan’s Modern Law of Land Warfare:
Under this rule are prohibited acts of assassination, the hiring of assassins, putting a price on an enemy’s head, offering a reward for an enemy “dead or alive,” proscription and outlawry of an enemy . . . Perpetrators of such acts should be tried as war criminals.
The first formal state prohibition of assassination and the promotion of assassination through the announcement of rewards was issued by President Abraham Lincoln in l863, as General Order 100:
The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such international outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation, made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism.
This order influenced the creation of later international prohibitions (which have been incorporated into military law), as well as later American prohibitions in civil law (such as the current Executive Order 12,333). 14
Against the backdrop of the tripartite prohibition (no assassination, no promise of a reward, no posting of “wanted, dead or alive”), it is useful to review the recent actions of President Bush. On September 17, 2001, he announced to the country and the world that Osama bin Laden was “wanted, dead or alive.” In his statement, made at a press conference, he referred to this as a phrase from a Wild West wanted poster, an allusion that has led at least one worried observer to excuse his statement as “a figure of speech.” Nathan Canestáro, a member of the CIA’s 2001 Afghanistan Task Force, writes in a law journal that “Bush’s own suggestion that bin Laden was ‘wanted, dead or alive,’ strays dangerously close to those prohibited means of killing. Were the statement more than a figure of speech, it would constitute outlawry, rendering any resulting deaths as assassination under international law.” But a call to treachery is not diminished by folksy phrasing. 15 Nor does Canestáro appear to have any reason (other than the wish to make Bush immune to the allegation of grave wrongdoing) to believe that the announcement was anything but literal. 16
Soon, as if to reinforce the president’s words, an official reward of $25 million was offered for Osama bin Laden. A later State Department clarification stressed that the reward was for information leading to bin Laden’s capture rather than for his body, dead or alive; but the widely distributed wanted and reward posters did not always include that distinction. An article by Dayna Kaufman in Fordham Law Review catalogues the ongoing forms of posting:
The reward for bin Laden’s capture is broadcast for 135 minutes a day in Afghanistan over the Voice of America radio system in Afghanistan’s two main languages, Pashto and Dari. The length of the broadcast was expanded by thirty minutes to include daily crime alerts that promote the reward offer exclusively. In addition, the faces and other identifying characteristics of the wanted men [bin Laden and his inner circle] were placed on posters, matchbooks, fliers, and newspaper ads distributed around the world and dropped from United States military planes in Afghanistan.
Once more, the legal issues are arguably complicated, this time by questions about Osama bin Laden’s status. Because bin Laden is not a combatant, the laws of war may not apply to him. Here again we see the shell game between criminal law and the laws of war. If bin Laden is a non-state actor, if he is not a lawful combatant, he should be sought using criminal law. 17 Instead he is pursued as a war enemy, but the United States is exempt from following the laws of war because the enemy is not a combatant.
Of course, wanted and reward signs have continued to be posted even when the opponent has unquestionably been a state actor. When President Bush’s attention pivoted from Afghanistan to Iraq, so did his posters. Perhaps in an attempt to sustain the Wild West saloon model, the U.S. military created a deck of cards naming and picturing the 55 most wanted men in Iraq. Unmindful of the Air Force and Army regulations that forbid “putting a price on an enemy’s head, offering a reward,” the Bush administration offered, and paid, $15 million each for Uday and Qusay Hussein, the sons of Saddam Hussein, and $25 million for their father. A reward of $10 million was offered for Saddam Hussein’s Baath Party deputy Ibrahim Izzat al Douri. The reward for Abu Musaab al Zarqawi was initially set at $5 million, then later raised to $10 million, and then still later to $25 million. Lesser amounts have been placed on the heads of other Iraqis. Speaking at a Coalition Provisional Authority briefing, Brigadier General Mark Kimmitt said that they put “specific amounts on specific people,” though the amounts also depend on whether they are national ($1 million), regional ($200,000), or local ($50,000) terrorists. 18
I have focused here only on the second and third elements of the tripartite ban (on assassination, on rewards, and on posting wanted signs), because the phrasing of those two bans is relatively uncontroversial, and the Bush administration’s violation of—or straying near to violation of—the two bans is also relatively straightforward. Strong disagreements, in contrast, surround the question of precisely what national and international law prohibit in the sphere of assassination, and such disagreements therefore also make it difficult to determine how close the Bush administration has come to assassination (in the killing of Uday and Qusay Hussein) or to attempted assassination (on the night before the opening of war in Iraq when the United States, believing Saddam Hussein to be in a specific house, repeatedly bombed it). All sources agree that if a commander in chief or national leader or public figure participates in a battle and is killed in that battle (either intentionally or unintentionally), no act of assassination has occurred. If, however, one side goes behind the line of combat and intentionally kills a political leader on the other side, that act is widely understood to be an act of assassination.
But on this not everyone agrees. Several military analysts argue that the assassination of enemy leaders is legal under international law, that it is not in and of itself treacherous but only becomes so if it is treacherously carried out. This view is expressed by W. Hays Parks (writing in 1989 in Army Lawyer), by Air Force Major Michael N. Schmitt (writing in l992 in the Yale Journal of International Law), and by Major Tyler J. Harder (writing in 2002 in Military Law Review). Although these men are military analysts, their interpretation appears to deviate from the Air Force and Army handbooks’ summaries of Hague regulation 23(b) by inverting the categories. These handbooks list assassination as a prohibited act of treachery (along with reward postings and “wanted, dead or alive” announcements). In other words, assassination is a subcategory of treachery. The two handbooks do not (as we might imagine from reading the cited articles) have a section on assassination that is subdivided into legal forms and illegal, treacherous forms. Parks, Schmitt, and Harder do not believe that there are acceptable and unacceptable “wanted, dead or alive” signs or acceptable and unacceptable “reward” postings, so it is odd that the third prohibited act, which occupies the same grammatical position in the sentence as the other two, is imagined in this way.
A second indication that this dissenting view is mistaken comes from the logical incoherence that it introduces into the relations between the three parts of the tripartite division. A treacherous assassination, in this view, involves “surprise”; it involves harm to someone who has reason to believe you wish him no injury (such as someone who agreed to meet you to discuss an armistice). Major Harder, arguing that only violations of confidence make assassination illegal, argues, “Treachery is a breach of confidence or perfidious act, that is, an attack on an individual who justifiably believes he has nothing to fear from the attacker.” 19 But this view is starkly incompatible with the other two parts of the ban—the prohibition on wanted signs and rewards. What could be more open and unsurprising than a straightforward announcement that a country intends to have an enemy leader killed? A wanted sign or a reward poster constitutes just such an open announcement. Prohibiting assassination only if it entailed a violation of confidence or surprise would utterly contradict the ban on rewards and wanted postings. 20
Even if one were to take the view offered by Harder, Parks, and Schmitt—that no act of intentionally killing political leaders will be deemed assassination unless it involves a betrayal of confidence—the recent actions of the United States in Afghanistan and Iraq do not appear to stand entirely in the clear. 21 Once wanted signs, or their equivalents, have been posted, a political leader will almost certainly go into deep hiding. Who, then, is offered the reward for information leading to that leader’s capture? It cannot be offered to random citizens of the country or passersby or taxi drivers or witnesses in the marketplace (since once a reward is posted, the person will no longer travel on the public highways or walk in the marketplace); it cannot be offered to acquaintances or even to ordinary friends and family members. It is offered only to the one or two closest intimates in whom the leader places so much confidence that he has entrusted them with his hiding. 22
The person who informed the U.S. military where they would find Uday and Qusay Hussein (and who has since collected the $30 million reward) was Nawaf al Zaidan, in whose house the brothers had been staying for the 22 days before he revealed their location. Lists containing Nawaf al Zaidan’s name as well as the names of 48 of his relatives were later posted by Iraqis on the walls of Mosul as targeted for death because, as The Guardian explained, they were seen as having violated the host-guest relation: “Mr. Zaidan betrayed one of the most closely-held principles of tribal law: that a host has an obligation to protect his guests.” While the prohibition on betraying the host-guest bond is indeed a principle of tribal law and may sound ancient to American ears, it must be noted how close it is to the prohibition on treachery in international law, since it involves injuring or killing someone who had reason to place confidence in you. Insofar as rewards and wanted signs are addressed to the hosts in whose care the wanted men have placed themselves, they are addressed to those who—in the eyes of the person in hiding—appear to be holding a white flag. Even if, therefore, we accepted the Harder, Parks, and Schmitt doctrine that assassination is illegal only if it entails a violation of confidence, the United States may even be guilty by this narrow definition.
Where Do We Stand?
Our country tortures. It conducts raids on hospitals. It flies false flags. It makes “wanted, dead or alive” pronouncements. It posts rewards. It attempts (and sometimes carries out) assassinations. International law and military law do not put endless restraints on national actors. The sections on perfidy and treachery in the Air Force, Army, and Navy handbooks are in each case extremely brief—they put only three rules in front of us. Yet we have been unable to remain true to the three, or even two of the three, or even one of the three. We have violated, or have come perilously close to violating, each of them.
What judgments would we make if we altered the location and agent of these acts? Were we to look at al Qaeda’s literature and find there “wanted, dead or alive” postings for Western leaders or Western citizens, would we not regard those papers as documentary proof of neo-absolutism—proof of a complete disregard for international and military law? If a Saudi billionaire offered $30 million to any American who could identify a place in which an American leader or ordinary citizen could be captured or killed, what would we think? Would we say that the offer stays safely in the realm of legal practice because no one’s confidence has been betrayed? Or because the offer only asked for information leading to capture? Would we say that it was just a figure of speech, an imitation of American rhetoric? If our opponents shot at our ambulances or if they raided our hospitals to retrieve their injured soldiers, what would we think?
The Army manual, in Article 503, directly following a passage describing acts deemed “grave breaches” by the Geneva Conventions, quotes the conventions as saying that “No High Contracting Party [that is, a signatory nation] shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article.” How, then, have we come to absolve ourselves of these breaches, or perhaps more to the point, how have we come to believe that no absolution is needed?
From the outset, the U.S. government’s recognition that it might be guilty of wrongdoing has been visible in attempts not to right its conduct but to rewrite the rules. The correspondence between the White House and the Office of Legal Counsel during the winter of 2002—specifically Alberto Gonzales’s January 25 memorandum and John Ashcroft’s February 1 letter, both addressed to President Bush—shows an administration making legal decisions with the goal of making United States officials immune to conviction of war crimes: Gonzales advises Bush to “[adhere] to your determination that [Geneva Convention III on the Treatment of Prisoners of War] does not apply” since that will “guard effectively against . . . misconstruction or misapplication of Section 2441 [the War Crimes Act].” Ashcroft writes, “A determination that the Geneva Convention does not apply will provide the United States with the highest level of legal certainty” so that our actions will be “foreclosed from judicial review.”
The most effective way to make oneself immune to the charge of war crimes is to abstain from committing war crimes. Our alternative procedure might be called “cubing the violation”: violate the rule in practice by carrying out actual harms to human beings, violate the rule in theory by deforming or revising the rule itself, violate the rule in metapractice by taking away from the courts the right to review the violations at levels one and two. The threefold injury to persons, rules, and courts has continued into the fall of 2006. President Bush attempted to write into a new detainee-treatment bill a provision granting immunity to war-crime charges for its CIA counterterrorism officers, a provision Congress rejected. The CIA counterterrorism officers themselves are, according to The Washington Post and The New York Times, buying insurance policies in record numbers that will help cover their court costs should they eventually be tried for their acts during this period. The new detainee-treatment bill, called the Military Commissions Act, was signed into law on October 17, 2006, and permits the executive branch to rewrite the habeas corpus rule, thereby delivering a huge blow to persons and courts: it eliminates from our courts the right to review executive-branch decisions about detainees by prohibiting prisoners from challenging their detention in court.
Often during the past five years it has been the military that has made the best—if ultimately unsuccessful—effort to protect our framework of national and international law: it was Colin Powell who held out the longest against administrative pressure to give false evidence of Iraqi nuclear weapons; it was Specialist Joseph Darby who made the Abu Ghraib photographs available to the world; it was the judge advocates general who continually protested detainee treatment in Guantánamo until the Supreme Court could act; it was Senator John McCain, explicitly on the basis of military experience, who repeatedly repelled President Bush’s attempts to legalize torture.
But this resistance is imperfect and cannot always hold out, as became clear in Colin Powell’s eventual UN testimony on Iraq’s nuclear weapons and in John McCain’s eventual endorsement of the devastating Military Commissions Act. The new Army handbook on interrogation is a third case in point: it frequently reiterates the prohibition on torture and brainwashing, even explicitly listing and forbidding the elements (dogs, nakedness, hoods) that were designated permissible in Secretary Rumsfeld’s December 2002 memorandum on detainee treatment in Guantánamo. But one practice that Rumsfeld permitted in his April 2003 memorandum to the Southern Command—the false-flag interrogation—has made its way into the handbook as an acceptable practice, as have other practices that should not be there. 23
And what if the military does manage to hold the line? What if over time we come to see again and again that our civilian leaders do not obey the law and our military leaders do? And that our civilian leaders do not know how to safeguard the American population and our military leaders do? (Hurricane Katrina is an example: only when the military arrived did rescue begin.) Would this lead to our eventually preferring military over civilian leadership? It is exactly this situation that Charles Dunlap—the writer with whom we began—warns against in an earlier, 1992 article entitled “The Origins of the American Military Coup of 2012,” an article that ought to be as widely read and debated in the civilian world as it has been in the military world.
But let us return to the immediate problem of neo-absolutism. To our earlier question—how have we come to believe that no acknowledgment of wrongdoing is needed?—three others can be added.
First, we know that our terrorist opponents resort to treachery because they cannot match our military force; they must choose between accepting defeat at the outset or else opposing us through asymmetrical warfare. But given our own military prowess, why do we resort to treachery?
Second, if the counterpart to treachery in the realm of weapons is unconventional weapons, why should we believe that our current leaders, willing to countenance torture and treachery, will refrain from using unconventional weapons? Though Iraq has no nuclear weapons, the United States has thousands. If our leaders have been willing to perform actions prohibited by our own military manuals, what will restrain us from performing actions that our military manuals assure us are legal? A version of the following sentence appears in the Air Force, Army, and Navy handbooks on the laws of war:
There is at present no rule of international law expressly prohibiting States from the use of nuclear weapons in warfare. In the absence of express prohibition, the use of such weapons against enemy combatants and other military objectives is permitted. 24
I believe there is every reason to worry that President Bush may use nuclear weapons.
Third, even if we ourselves successfully refrain from neo-absolutist practices, and even if those who oppose us eventually agree to give them up, is the situation that brought neo-absolutism into being at all tolerable? Is it tolerable that some one country in the world should have such uncontested military might that it can force every other country on earth to accept the boundaries that are now in place, the moral definitions that are now in place, the distribution of goods that is now in place? Most of the peace plans that have ever been written have included a provision that allows countries, after trying to settle disagreements peacefully, to go to war. Without this possibility, the world remains frozen in place in a way that arbitrarily advantages the country that at a single point in time became most powerful.
The sphere in which this question continues to be most important is that of nuclear weapons—their steady proliferation abroad and their vast and terrifying numbers on our own submarines and our own ground.
Rule of Law, Misrule of Men
MIT / Cloth / $14.95 / April 2010
1 Though there was a strong reaction to the initial reports of this incident, eventually it became clear that the suicide-bomber taxi driver had not in fact used a white flag.
2 Rendition, like torture, is prohibited by the Geneva Conventions. Article 12 states that a signatory coutry can send prisoners only to other signatory countries; in transferring a prisoner, the first country has not transferred all responsibility.
3 For example, in his January 19, 2002, memorandum to the chairman of the joint chiefs of staff, Rumsfeld states that detainees are "not entitled to prisoner of war status for the purposes of the Geneva Conventions." Later, in his April 16, 2003, memorandum to the commander of the U.S. Southern Command, he reiterates that "the provisions of Geneva are not applicable to unlawful combants."
4 This memorandum and many others are reproduced in two books of documents: Mark Danner, Torture and Teruth: America, Abu Ghraib, and the War on Terror (2004) and Karen J. Greenberg and Joshua L. Dratel, The Torture Papers: The Road to Abu Ghraib (2005).
5 This rule applies to nations with formal militaries and has complicated exceptions for popular uprisings, resistance fighters, and guerilla fighters. During its consideration of "rules applicable in guerilla warfare" in a 1971 conference on international humanitarian law in armed conflict, members of the International Committee of the Red Cross worried about the way the absence of uniforms among these groups may, if they are taken prisoner, unfairly deprive them of prisoner-of-war status; it notes that these groups are still required to "conduct their operations in accordance with laws and customs of war."
6 It is reasonable to suppose that members of the military may well have seen, and voiced aloud their concern about, the trespass of rules. Often the civilian world learns belatedly, or not at all, of military objections to a country's undertakings: only in early March 2004, for example, did the public learn that British military leaders had, a year earlier, objected to invading Iraq without a second UN resolution for fear that they would later be convicted of war crimes. It is also crucial to remember that we would still know nothing of torture at Abu Ghraib were it not for one soldier—Specialist Joseph Darby— who understood (and stood by) the rules.
7 During the weeks immediately following the event, the hospital was referred to, inaccurately, as "Saddam Hussen Hospital."
8 So strong is this non-discrimination rule in the care of the sick that the Red Cross, which at one point had suggested that nurses in Red Cross hospitals be paired by nationality with patients when possible, later rescinded the recommendation.
9 The public record for this time does include a widely reported Iraqi misuse of a white flag: on March 23, 2003, an Iraqi artillery unit near Nasiriyah was said to have displayed a white flag, then fired on and killed nine U.S. Marines. But by the end of the spring, the U.S. military acknowledged that these deaths were instead the result of American fratricide: an A-10 flying over the area misidentified, fired on, and killed the soldiers.
10 For more about these and other examples, see Myres S. McDougal and Florentino P. Feliciano's Laws and Minimum World Public Order (1961) and Robert W. Tucker's The Law of War and Neutrality at Sea (1957).
11 Becaue torture so often produces false information, U.S. officials could not act on the information Zubayda gave them about the Saudi officials without validating it independently; their attempts to validate it failed, and Zubayda's information therefore proved useless.
12 Though the prohibition against using the enemy's flag or uniform is today widely recognized in the United States as applying only to battle, there is at least one post–World War II regulation that asserts a blanket prohibition: Article 39 (2) of the 1977 Geneva Protocol. This blanket prohibition has been rejected by the United States (see Michael Matheson's 1987 essay "The United States Position of the Relation of Customary International Laws to the 1977 Protocols Additional to the Geneva Conventions" in American University Journal of International Law and Policy).
Some of the pre–World War II arguments on behalf of the blanket prohibition continue to have considerable force: one scholar of international law, for example, points out the oddity of limiting the prohibition against using deceptive identifying marks to the very moment when one's actions make one's allegiance entirely evident—when one is firing on the enemy.
Of course, the display of national affiliation during battle not only announces one's intention to do harm but acknowledges responsibility for the injuries that follow. How important this act of acknowledgment is has in recent years become increasingly clear with the appearance of weapons that are decoupled from any human agent (unmanned planes) or that carry no national signature (electromagnetic transmissions that affect the equipment and people without leaving any trace of where the assault originated).
13 In the immediate aftermath of 9/11, this approach was urged by international law experts such as Richard Faulk.
14 Major Tyler J. Harder, writing in the June 2002 issue of Military Law Review, argues that Executive Order 12,333 should be eliminated because it is redundant given Hague 23(b) prohibitions, but he simultaneously argues that it should be eliminated to give the U.S. executive and military more flexibility, thus providing that on some level Executive Order 12,333 is an effective, and needed, second brake on assissination, even if it does repeat international protocols.
15 A parallel instance of folksy Western phrasing appeared in President Bush's 2003 State of the Union address, as Hendrik Hertzberg noted in the February 10, 2003, issue of The New Yorker. After alluding to the arrest of 3,000 suspected al Qaeda terrorists, President Bush said, "And many others have met a different fate. Let's put it this way: they are no longer a problem to the United States and our friends and allies." Hertzberg writes, "You could almost see the president blowing across the upturned barrel of his Colt .45." Hertzberg complains that the sentences are "tasteless," but a problem more grave than taste appears to be involved.
16 Threats against U.S. leaders are treated aggressively no matter how implausible or non-literal. In October 2006, a 14-year-old girl who had temporarily posted on a "MySpace" Website the words "Kill Bush" and a picture of a knife pointing toward the president's outstretched hand was visited by two Secret Service men who came first to her home, then to her school. They removed her from her eighth-grade biology class and questioned her harshly, telling her that she could be sent to juvenile hall.
17 Criminal law allows the posting of rewards and wanted signs, but not "wanted, dead or alive" announcements, since the alleged criminal must undergo a trial.
18 For an account of the January 13, 2006 "attempt to assassinate al Qaeda second-in-command Ayman Zawahiri in Pakistan," using a top-secret program of unmanned Predator drones, see Josh Meyer, "CIA Expands Uses of Drones in Terror War," Los Angeles Times, January 29, 2006. The attempt missed Zawahiri but killed 18 civilians. Among those targeted and killed by predator drones were (according to the Times), the military commander Mohammed Atef in Afghanistan, Qaed Harithi in Yemen, Haitham Yemeni and Abu Hamza Rabia in Pakistan, and "a tall man in flowing robes" on the Pakistan-Afghanistan border who was wrongly thought to be Osama bin Laden. The Rabia killing included his 17-year-old son and the 8-year-old nephew of his landlord; the number of civilian deaths in the other targeting killings is not known.
19 Here Harder appears to have conflated the listing of assassination, rewards, and wanted announcements with the listing of red cross and white flag: it is indeed true to say that in war it is legal to shoot a gun at one's opponent but is treacherous to hold a white flag and shoot a gun aat an opponent. But Harder concludes, using the foregoing as a template, that it must be legal to assassinate but treacherous to assassinate while holding a white flag (or otherwise enlisting the enemy's confidence). Were this an appropriate template, there would not be a need even to introduce the category of assassination, since the prohibition on assassinating while holding a white flagis already covered by the prohibition on the misuse of the white flag.
20 Though I have suggested two grounds that show the incoherence of requiring a violation of confidence to make assassination illegal, this idea has some plausible precedents that Schmitt offers in his richly detailed historical overview.
21 As Schmitt notes, a 1975 congressional investigation of attempted assassinations by the CIA records numerous attempts that certainly involved betrayal of confidence. For example, the Air Force handbook (section 6.6d) says that one cannot injure enemy soldiers (or, needless to say, civilians) by objects enlisting confidence—thier example is putting an explosive in a fountain pen. The CIA attempted to kill Fidel Castro in the early 1960s by placing a lethal toxin in a cigar, placing an explosive device in a rare seashell deep under water (Castro was known to be an expert diver and lover of beautiful shells), and arming a fountain pen with a hypodermic needed so fine that he would not notice the injection.
22 The defense expert William Arkin, interviewed for a February 2004 Discovery Channel documentary on Osama bin Laden, said that rewards offers are addressed to "close friends and associates."
23 Though interrogators are permitted to wear false military uniforms, they are explicitly prohibited from wearing flase Red Cross uniforms: the two forms of false signs that were coupled together in Article 23(f) of the Hague Conventions and the perfidy and treachery sections of the Air Force, Army, and Navy handbooks have therefore, in this new field manual, been decoupled from one another.
24 Section 6.5 of the Air Force handbook continues with a set of cautionary sentences: "The weapons have been the subject of intense international political interest and international regulation because of their potential for mass destruction, the historical fact of their recent development by only a very few powers with the ability to control their development and deployment, and international concern about possible proliferation." The section then lists the international treaties we have signed that may bear on the question of their use.