Thoughts on Abu Ghraib Prison Abuse Photos and the Rule of Law

by Roger Bourke White, Jr., copyright May 2004

I can't think of a better example of the proverb, "The Road to Hell is paved with Good Intentions." than this scandal.

This is also a good illustration of the proverb, "Power corrupts."


When the news about the Prison Abuse Photos from Baghdad's Abu Ghraib prison broke in May 2004, I was as outraged as the next person, but my reason for feeling the outrage may have been slightly different from the average person's. My feeling was, "What kind of 'La-la Land' did these guards think they lived in that they would let such photos be taken?"

The photos I've seen showed guards who were clearly relaxed and confident in their surroundings. They are confident and relaxed in spite of the clearly "outside the envelope" nature of what we are looking at in the photos.

This relaxed confidence of the soldiers implies two things:

What follows in this essay comes from these two premises above....

First, the Prison Photo Scandal was inevitable

The Photo Scandal, or some cousin of it, was inevitable. Why? Because from the beginning the Bush Administration wanted these terrorist-related people outside the legal system. The Administration wanted them outside the legal system because they wanted to do things to these people that were illegal. (If they only wanted to do legal things to these people, then the administration wouldn't have gone to the trouble to get them outside the legal system.) But putting the prisoners outside the legal system also put their handlers (guards and interrogators) outside the legal system, too, and that was sure recipe for abuse. These people had power, and no harsh reality (rule of law) to keep them from becoming delusional.

In retrospect, this is clearly a condition where hypocrisy is going to evolve quickly into delusion because the system is operating for a long time without any external check on it. It's a case of great power in an environment, and that power leading to corruption of the people in that environment.


Welcome to La-La Land -- the phenomenon of moving from hypocrisy to delusion

People will lie. But lying is an uncomfortable state of mind. If a person has to say a lie often enough, the person's mind will change, and start to believe the lie. The person will move from being a hypocrite to being delusional. Once a person becomes delusional on a fact or issue, the brain is comfortable, and it won't change it's way of thinking about the lie until harsh reality forces a reevaluation of the delusion. This phenomenon is the source of the proverb, "Power corrupts." Power corrupts a person's thinking by allowing them to be delusional for a long time, and allowing them to get more and more delusional with time.

A small, but well documented, example of this drift into delusion comes from the examination of what George Bush did on September 11th by the 9-11 Committee. According to a Wall Street Journal article that came out in the spring of 2004 (part of their reporting on the 9-11 Committee work) "President Bush likes to recount that on the morning of September 11, while he was waiting to make an address to a class of school children, he was watching TV and saw the first plane crash into the WTC. He thought [he relates] 'That's one terrible pilot!' It was only after he got news of the second plane that he thought, 'America is under attack!'

The problem with this memory is that no pictures of the first plane crashing into the WTC showed up on TV until late in the afternoon, after the broadcasters got a hold of amateur video footage. "

I believe that by early 2004 Bush believed his anecdotal story to be true. I believe that the first few times he told it, he was being hypocritical, but it was an entertaining story, so he retold it often, and he moved rapidly into delusion on this small point of fact. It was only the "harsh reality" of commissioners and reporters carefully examining the timeline of September 11th, and writing articles such as the one in the Wall Street Journal, that will force Bush to unbelieve this little anecdote (if he ever chooses to do so).

And this is the relation between hypocrisy and delusion: Hypocrisy will turn into delusion, and delusion will be the stable way of thinking until some incident of harsh reality forces the thinker to abandon the delusion.

In the case of our prison guards in these prison photos, they are clearly delusional in thinking that these photos were harmless. The question is: how did they get that delusion?

The Delusion of the Guards: a case of power corrupting

The photos show these guards as clearly being comfortable with their actions. The fact that there are photos is one indication of that, the other is the expressions on their faces, and poses that they have taken.

How could the guards come to believe that they were that right, and that invincible? This is clearly a case of power corrupting. These guards had been away from proper social checks for so long that they were delusional. They had great power over these prisoners, and none of their supervisors were bringing down any harsh reality on them -- not even any serious warnings.

So... Why weren't the guard's supervisors giving some serious warnings?

The Delusion goes up the chain of command

I speculate here.... First, part of the explanation is that the guard's supervisors are living with similar delusions. They may not be delusional about the taking pictures, but they are delusional in thinking that this kind of treatment of prisoners is OK.

Second, the guard's supervisors have been told that these prisoners are being held to extract information from them. And, that they are being held outside of normal civil procedures because they are expected to use interrogation methods that would violate normal civil procedures. For example, they are going to question these people without a lawyer present to defend their rights. The problem is: they are operating in a moral and procedural vacuum -- they don't have civil rights laws to guide and constrain them, and they don't have any other powerful code of conduct, either. So, these supervisors become their own judges of what is right and what is wrong. And, being powerful beings in this little universe, they can become corrupt -- their interpretation of right and wrong can drift quite far before bumping into any harsh reality constraint.

These supervisors have supervisors, and conflicting interests (being-prison-guard interests and being-military-intelligence interests). But the supervisor's supervisors have no more of a guiding moral code than the supervisors.

Third, the War on Terrorism is not going smoothly -- the Iraq Phase of this War was supposed to have been put to bed in a year. There have been many months of rising pressure on the military to get back on schedule, which is putting enormous stress on the military intelligence arm to produce enough terrorists to capture to "put a lid" on this "Iraq security" situation.

What we have here is a heady mix of power and stress without constraint. This is why the photos were inevitable.

The root of this problem goes back to choices made in the early days of the Bush Administration.

Abandonning the Rule of Law to fight "the Dark Side"

Early on in the War on Terrorism, the Bush government made a critical choice: it decided that America's legal system was going to be ineffectual in dealing with the terrorism problem, and that, instead, this was going to be a problem the military would solve. In other words, this was going to be a real, shooting, war, and it would be conducted by soldiers.

Once that choice was made, a whole series of choices cascaded out from it. One was that military intelligence was going to be the backbone organization for discovering who terrorists were. Another was that, since the legal system was going to be ineffectual, it was going to be treated as "part of the problem" rather than "part of the solution", and it was important to keep "interesting people" out of the legal system while military intelligence worked them over.

Three symptoms that this chain of thinking was in place by shortly after 9-11 were:

The Patriot Act said, in effect, Terrorism is something so novel, virulent and dangerous that normal civil liberties can't protect citizens, so we are going to make fighting terrorism an exception to normal legal protections. In the case of Terrorism, we are going to abandon Rule of Law.

The Alternate Choice

The other option open to the Bush administration after the 9-11 Disaster was to view terrorism as primarily a criminal problem rather than primarily a military problem. Had this been the choice, the foot soldier in the war on terrorism would have been the policeman rather than the military soldier, and police work and lawyer work rather than military intelligence would have been the primary tool for finding terrorists. This was the choice taken in Europe, and it was the choice taken in the US prior to the 9-11 Disaster.

If this choice had been taken, the Administration would have worked to make law enforcement work better at discovering and prosecuting terrorists, not the military.

Rule of Law and Rule of Arbitrariness

There are essentially two ways to rule a community. One way is Rule of Law and the other is Rule by Arbitrariness. These are not mutually exclusive, most communities live with a mix of mostly Rule of Law with some Rule of Arbitrariness thrown in on top -- the day-to-day question of how to govern a community is how to balance this mix. The modern democracies have swung the balance to heavily Rule of Law, and prospered for doing so. But there are powerful arguments in favor of both techniques.

Rulers love Rule of Arbitrariness. A ruler tends to believe that if he or she can rule arbitrarily, he or she can change the community's social momentum and social attention on a dime, and move off in some new direction. The advantage of this is quick dealing with new problems that face the community the ruler is ruling.

The downside to Rule of Arbitrariness is that at some point the community finds it hard to support these rapid changes that ruler suggesting. The community gets discouraged, and won't support the ruler wholeheartedly -- they won't "buy into" the ruler's vision. The less the community buys into the ruler's programs, the more enforcement of the programs depends on the leadership's police and military powers. For instance, when citizens start hiding their wealth to avoid the ruler's tax collectors, then the tax collectors have to depend on surveillance, spies and threats to collect taxes. Surveillance, spies and threats are a lot more expensive ways to collect taxes than voluntary community compliance.

The great strength of Rule of Law is that when it's working right the whole community participates in supporting it. This widespread support happens when a large majority of the community sees great benefit in supporting Rule of Law. When it works well when everyone has a vested interest in seeing it work well. In other words, when everyone in the community will support it, and feel empowered to do so. A story from my childhood illustrates this community involvement in supporting Rule of Law. When I was a youngster, age eight or so, I went to a school fund raising fair. One of the booths at the fair was a "Go Fish" booth: when you bought a ticket, you were given a "fishing pole" (a long stick with a string tied to it) and you held the string over far side of a screen that was the "pond." Someone on the far side would tie a small gift to the string, and you would pull back your "catch." Being the experimental youngster that I was, I tried putting my string over the screen again... Much to my delight, I got another catch! I did this about three more times, got bored, took my prizes and wandered off to see more of the fair. When I got home I told my aunt about my catches. Strangely (to my way of thinking), she wasn't nearly as delighted, and she drove me back to the school to give back my extra gifts to the Go Fish booth. I wasn't old enough to feel like I was stealing, so the whole affair was something of mystery to me at the time. But the moral for this story is that my aunt actively supported Rule of Law -- when she heard what I had done, she took action to support Rule of Law.

The downside of Rule of Law is that community values tend to change slowly, and when novel things and concepts come to the community, it may take some time before the community decides how to deal with these novel things and concepts "legally." This is what politicians spend most of their time doing, and this is why e-mail's spam problem hasn't been solved yet.

The other downside to Rule of Law is that it depends heavily on community support. It doesn't work well when the community is divided on issues and when a substantial segment of the community doesn't agree that Rule of Law is protecting them.

Rule of Law... with exceptions

Rule of Law can work well -- modern democracies in developed nations are shining examples of that. But, one constantly tempting alternative to Rule of Law is to transform "vanilla" Rule of Law into "Rule of Law... with exceptions". The hazard to this variant is that when exceptions are made for some people, other people want their own exceptions.

Another example from my younger days: A couple years after I graduated from college, I started up and ran a retail business with the help of my wife of the time. When it came to matters of inventory and accounting, we ran the business "by the book": we clearly distinguished what was store property from what was personal property, we did inventories frequently, and we never carted off store goods as "loans", or whatever. In the three years we ran the business, we had very little problem with theft -- we didn't steal from the business, our employees didn't steal from the business, and even our customers didn't steal from it.

In those same years, an associate of mine also started up a business. His background in business was quite different from mine, and he ran his business quite differently. One of his operating premises was that his business was a direct extension of his personal assets. As a result of this thinking, he would commonly take stuff out of his store and not pay for it. One of the problems he suffered from while running his business was a lot of theft, particularly by his employees. I suspect that his theft problems had two roots: a) his employees saw him routinely making exceptions to the rule that store stuff was store stuff and personal stuff was personal stuff, so they started making the same exceptions. Second, his accounting and inventory procedures had to be loose enough to allow him to do this, and if they were loose enough to allow him to do it, they were loose enough to allow employees to do it, as well.

The moral of this story is that Rule of Law works best when it's vigilantly observed in a "vanilla" form -- simple rules, and those rules applied diligently to all members of the community. It works so well in the vanilla form because the rules are easily observed and the whole community feels equal under the law -- the whole community "buys into the system" and is willing to make some effort to preserve it -- community members are empowered to preserve the system.

But, Rule of Law looses a lot of it's virtue as a lifestyle when it's seen by community members as being Rule of Law plus Exceptions. When Rule of Law plus Exceptions is seen to be the case, everyone in the community becomes uncertain about when Rule of Law applies and when it doesn't -- they are no longer empowered. When this is the case, some members of the community will start making their own exceptions, which aren't ruler-authorized exceptions, and other community members won't call them up on it, because they are either uncertain or cynical.

When the Bush Administration decided that Rule of Law wasn't going to work in hunting down terrorists, they were creating a Rule of Law plus Exceptions environment, and in so doing they were inadvertently sacrificing a lot of community support. The War on Drugs, started in the Carter Era and running to this day, has been a decades-long failure. Why? Because a substantial minority of the community has actively not bought into the government's vision of what illegal drug use is, so there are plenty of havens for lawbreakers -- the community doesn't feel empowered. If the goals and means of the War on Drugs were redefined so that more of the community bought into them, and felt empowered to support them, the drug problem would be vastly diminished.

Military Intelligence versus Community Intelligence

As stated earlier, when the Bush administration decided that the War on Terrorism was a military matter, then military intelligence rather than community intelligence would form the backbone of how the administration was going to find terrorists. What the Bush administration didn't notice in it's rush to "militarize" anti-terrorism is that military intelligence and community intelligence have a lot of incompatibilities.

Community intelligence is most efficient when Rule of Law prevails, military intelligence is most efficient when Rule of Arbitrariness prevails, and this makes the two relatively incompatible -- the more pervasive military intelligence becomes, the more disenfranchised the community will feel.

Here is an example: Suppose we have some terrorists operating in Smallville, the well-known rural suburb of Metropolis. Suppose those terrorists have collected two tons of ammonium nitrate-based fertilizer to make a car bomb, and they have this stored in a garage in Smallville.

The question is: How do the government anti-terrorists find out about this bomb cache?

If Rule of Law is being used to solve this problem, and the community is empowered, then as soon as any one of the terrorist's neighbors sees (or smells) this cache, they will report it to the police, and the police will take action. The plot is uncovered and finished that quickly.

If the military solution is being used, soldiers must either patrol and knock down doors, or they must catch someone who knows about this cache, and military intelligence must convince them to talk about it. This means you need lots of soldiers, lots of military intelligence people, and those military intelligence people must be using "effective interrogation techniques."

And the two systems don't mix well. Effective techniques fall in one of two categories: either you intimidate the person into telling (interrogate them until they "sing"), or you bribe the person into telling (turn them into informants). Either way, the information acquired is likely to be useless in a court of law. This means that 99% of the information acquired by military intelligence techniques is going to be totally useless in the Rule of Law environment. Revealing what is discovered by Military Intelligence techniques will reveal that either proscribed interrogation techniques are being used so the evidence will be thrown out, or that the names of informants must be revealed, and those informants, and other potential informants, will not be happy they cooperated.

(There is an article in the May 10th issue of the Asian Wall Street Journal entitled Global Discord Clouds Terror Probes. The heart of the article is that European police forces have picked up some terrorists, but they will have to release them, uncharged, because they can't get information from US Military Intelligence about these people. The article describes the European police forces as frustrated. Frustrated they may be, but it's unlikely that US Military Intelligence can help these Europeans as much as the Europeans think they can... because of what I mentioned in the previous paragraph -- it's more likely that the Europeans would find the information inadmissible in any legal action, and they would still be frustrated.)

Poorly trained in what? Prisoner treatment or track covering?

The Administration now claims that the soldiers being shown in the photos are an exception to standard practice, and were poorly trained in handling prisoners. What they don't say is what they mean by poorly trained: Do the Administration people mean poorly trained in how to handle the prisoners, or poorly trained in how to cover their tracks when they do this kind of mishandling?

The first reports that I've seen in the media of the investigation made by Major General Antonio M. Taguba have not fingered any supervisors of the people in the photos as doing anything wrong. Pardon me if I seem cynical, but that suggests to me that the military thinks the poor training was in track covering.

Where do we go from here?

The first lesson we must learn from this is that picking the right tool for a task is important. The Bush administration picked the wrong tool. They chose to make the military the principal tool rather than the legal system. (I speculate that they picked the wrong tool because of the personalities of the people in Mr. Bush's administration.)

So, the first step is to redefine the War on Terrorism as primarily a legal problem. This is going to be difficult to do, but it is necessary. This means repealing the Patriot Act and all those other measures policies and procedures that for the last five years have been pulling anti-terrorism outside the legal system.

The second step is breaking the unholy alliance between the media and terrorists. The media has a love/hate relation with the Theater of Terrorism because, as much as the media may despise terrorism, telling the terrorist story as terrorism boosts ratings. Terrorism is a form of advertising, and these days the media does their level best to present this advertising to the public because it sells well. But terrorists, just like business people, are looking at the return on their advertising dollar. If the media did not present terrorist acts as advertising for terrorism causes, terrorists wouldn't advertise that way any more. In practice this would mean that the media could report that some event happened, but they should avoid talking about "why" it happened. The "why" needs to be covered in a different venue.

But, the most important step in winning the War on Terrorism is redefining terrorism so that most of the community can buy into the definition of terrorism and feel empowered to stop it. The goal of this step is to restore a state of "vanilla Rule of Law" -- a state where the vast majority of the community feels they are being justly treated by the laws of the land, where the rules are simple and easy to understand, and where that majority feels that they are vested in those laws, and feels empowered to support them by dealing with lawbreakers through Rule of Law methods.

Just as the War on Drugs of the 70's through 90's was lost at it's first definition in the Carter era, so the War on Terrorism is lost already because it has been defined poorly by Bush's Administration. We need to rethink our definition of terrorism. We need to make that definition compatible with a Rule of Law community.

It is important that we do this. What is at stake is the American way of life as we know it, which is based on high moral standing and Rule of Law.

-- The End --