Rules of Engagement
Why military honor matters
Elaine Scarry
8
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 signs can
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. <
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.
Elaine
Scarry is the Walter M. Cabot Professor of Aesthetics
and the General Theory of Value at Harvard University. She is
the author of On Beauty and Being Just and a series of
articles on war and social contract.
Originally published in the November/December
2006 issue of Boston Review.
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