Key decisions on pathway to hell

There has been a great deal of talk in Western capitals about the need for a new paradigm for national security. President Bush and his advisers have been the leading ideological innovators, claiming that 9/11 has ushered in an era of warfare in which new rules need to be applied.

These two books contain papers that show how this new paradigm is confronting universally accepted human rights standards for the protection of persons detained during and after a conflict.

More provocatively, the documents and memorandums suggest a direct linkage between the acts of brutality and sadism committed in Abu Ghraib and the ideological challenge to universal norms by Bush, his legal counsel and his neoconservative advisers. Mark Danner's book and the volume edited by Karen Greenberg and Joshua Dratel are remarkably similar in orientation. Both are paper trails that lead the reader to the murky formulation of foreign policy. Their power rests, in the first instance, on the inclusion of various documents intended for official eyes only. These reveal bureaucratic contests over the meaning of torture and the level of pain that can be inflicted, and what kind of interrogative techniques are permissible in the context of GWOT (White House speak for the global war on terror). The texts also tell the story of how the US lost its moral compass on the road to Abu Ghraib. The outcry triggered by these grave human rights abuses committed by the US military prompted a number of official investigations, the principal ones being the Taguba report of March 2004 and the Schlesinger report of August 2004. Both publications include unedited versions of these inquiries.

Undergraduate students on politics and international relations courses would learn a great deal from critically evaluating the cycle of disputation, revelation and investigation. Readers will need to brace themselves for an account that is raw and disturbing. Take, for example, this statement by an Iraqi translator: "I always knew the Americans would bring electricity back to Baghdad. I just never thought they'd be shooting it up my ass."

The collections differ in terms of the range of sources. Greenberg and Dratel's The Road to Abu Ghraib contains more official memos and reports.

It also gives more attention to the legal dimensions of the case, reflecting Greenberg's status as an academic at the New York University School of Law and Dratel's profession as a criminal defence lawyer. What it lacks is any sustained commentaries from the editors, leaving the reader largely uninformed about the context that prompted the various documents and the impact these had on policy decisions.

Danner's book is much better in this respect. It opens with reprints of five outstanding essays that he wrote for The New York Review of Books in 2004. If you take them together with Seymour Hersh's articles on the scandal published in The New Yorker , it is tempting to point out that American intellectuals are often far more effective critics of US foreign policy than the array of anti-American voices in Europe and the Middle East.

That said, it was the power of pictures and not the power of words that did most to undermine America's reputation as a force for good in the world. On April 28, 2004, CBS showed images of naked prisoners in poses designed to strip them of their dignity. Torture and Truth reprints the degrading photos of "Hooded Man", "Leashed Man" and the piles of naked and shamed bodies. The official reaction of the Bush administration to the Abu Ghraib scandal was that these incidents were committed by "a few bad apples".

Danner persuasively rejects this view. He argues that earlier interpretations of what was legitimate conduct in the treatment of Taliban and al-Qaeda prisoners made possible the routine torture of detainees in Iraq.

There are three key pieces of evidence. First, memorandums from the President's counsel sought in early 2002 to bypass the 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War. The President's memo of February 7, 2002, reflects the casuistry of his legal advisers. In brief, the President determined that the Geneva Convention did not apply to the conflict with al-Qaeda as it was a non-state actor, and although it did apply in principle to Afghanistan, Taliban captives must be denied prisoner-of-war status because they did not meet the conditions of lawful combat. The question of whether the President's counsel is correct in its reading of the 1907 Hague Convention is open to question, but more clear-cut is the challenge to Article Five of the Geneva Convention on the Treatment of Prisoners, which clearly states that the status of captives is to be decided by a "competent tribunal" and not by presidential decree.

The second link in the chain concerns the authorisation by Donald Rumsfeld, the Secretary of Defence, of stronger interrogation techniques to be used against so-called high-value detainees.

This policy required a controversial interpretation of the Convention against Torture to cover only extreme acts. According to the Bush Administration, torture is committed only when there is both a clear intent and the infliction of lasting pain commensurate with "serious physical injury such as death or organ failure" (United States Department of Justice memorandum, August 1, 2002). The third, connecting the sadism of Abu Ghraib to foreign policy, relates to the deliberate cascading of procedures used in Guantanamo to detention facilities in Iraq. The Schlesinger report alleges that interrogation guidelines used in Iraq and applied to "non-combatants" under controlled conditions in Guantanamo "became far more problematic when they migrated and were not adequately safeguarded".

At the time of the publication of Torture and Truth , the reports triggered by the scandal identified 66 cases of prisoner abuse, including five deaths and 23 more still under investigation. The testimonies of those who had been abused tell a more harrowing story than can be imagined from the photographs. The Torture Papers publishes the statement provided by Detainee No. 150422: "They brought three prisoners handcuffed to each other and they pushed the first one on top of the others to look like they are gay and, when they refused, Grainer beat them up until they put them on top of each other and they took pictures of them." One detainee began to bleed so heavily that the doctor was called. As it turned out, one of the guards insisted on trying his hand at stitching the patient out of a sense of curiosity about such clinical procedures. Would anyone have believed this testimony without photographic evidence of institutionalised prisoner abuse?

When the scandal broke, the reaction of the Commander-in-Chief was one of denial. In response to a direct question from a journalist about whether torture was ever justified, President Bush replied: "We're a nation of law," and that "the instructions went out to our people to adhere to the law".

The documents suggest a very different interpretation. From late 2001 through to the Iraq War, officials from the top of the administration downwards adopted what could best be described as a revisionist approach to the laws of war. For Bush and Rumsfeld to express surprise at what went on in Abu Ghraib bears resemblance to the scene in the film Casablanca where Captain Renault expresses shock that there was gambling going on in Rick's casino while at the same time taking a pile of money from the croupier.

While the official classified documents are rightly subjected to scrutiny and moral censure, the liberal universalism underpinning documents among international non-governmental organisations is not scrutinised by the editors. The April 2004 paper by the Association of the Bar of the City of New York (printed in The Torture Papers ) concludes its lengthy deliberation with the Kantian claim that torture "is never permissible". It would be a brave political leader who stuck to this principle even when there was good evidence linking a suspect to the execution of a future terrorist attack.

The question that is left unanswered is when might it be legitimate to break the Convention Against Torture, and who is to decide?

The Bush Administration has not, so far, succeeded in persuading other states and international public opinion to agree modifications to universally agreed human-rights standards in the treatment of detainees.

Without this acceptance, the US runs the risk that other states will follow suit, further weakening the standard and potentially putting US military personnel at risk. This failure to win the argument is unlikely to bring comfort to the victims of torture caught up in the war on terror. Of greater comfort might be the thought that international criminal law will one day catch up with the President and his counsel. Christopher Hitchens has revealed how awkward life can be for retired leaders who, while in office, knowingly transgressed international rules. Henry Kissinger, he tells us, has to consult his lawyers before setting out on international travel.

Aside from the prospect of having to be selective about their future holiday destinations, what should really worry the drafters of these documents is that they threaten the status of international law.

Tim Dunne is head of politics, Exeter University.