[Rule of Law, Misrule of Men • By Elaine Scarry • MIT Press: A Boston Review Book, 2010 • Xxii + 191 pages]
Elaine Scarry, a distinguished English professor at Harvard, attracted great acclaim early in her academic career for her study The Body in Pain (1985). It is hardly surprising, then, that the use of torture in the Iraq War has attracted her attention.
In Rule of Law, Misrule of Men, her searing indictment of the Bush administration, Scarry argues that the absolute prohibition of torture lies at the basis of the rule of law.
[I]t is crucial for the country to recognize that there is one crime with a legal profile so singular that it can — even standing alone — convey the wholesale contempt for the rule of law displayed by the Bush administration. That crime is the act of torture. The absolute prohibition of torture in national and international law, as [legal philosopher] Jeremy Waldron argued… "epitomizes" the "spirit and genius of our law," the "prohibition draw[s] a line between law and savagery," it requires a "respect for human dignity" even when "law is at its most forceful and its subjects at their most vulnerable." The absolute rule against torture is foundational and minimal; it is the bedrock on which the whole structure of law is erected. (p. 133)
That is very well said. Those, such as Eric Posner and Adrian Vermeule in their Terror in the Balance (Oxford, 2007), who regard freedom and security as goods to be "traded off" against each other, with nothing counting as absolute, will dismiss Scarry; but she is perfectly right.
The fact that American forces engaged in torture, at Abu Ghraib, Guantánamo, and elsewhere is well known; what is perhaps less well-known is that this occurred with the full knowledge and approval of the highest levels of the administration. In one case, that of Mohammed al-Qahtani, a prisoner at Guantánamo, "against whom all legal charges were eventually dropped… President Bush's team was in direct contact with the room in which the physical injury was taking place" (p.135, parentheses removed). In other cases, people have been "rendered" to Egypt, Saudi Arabia, and other countries known to practice torture.
Scarry extends her criticism of torture in an original and enlightening way. Refraining from torture is but one of several essential conventions that, if observed, prevent war from altogether disrupting civilized life. Civilization depends on communication; and while few agree with St. Augustine and Kant that lying is in no circumstances justified, the use of deception needs to be radically restricted.
But does this apply to war? Are not ruses and deceptions standard procedure? That is indeed so; but, as Scarry points out, international law has condemned certain forms of deception in war as "perfidy," holding them to be inimical to the fabric of communication. Among these are "false flag" operations and abuse of the red cross symbol.
[S]ome 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… (p. 66)
America has used false flags in interrogations, e.g., in the case of accused al Qaeda terrorist Abu Zubayda, in an effort to persuade him that Saudi Arabians were questioning him.
Why is abuse of the red-cross symbol forbidden? Scarry notes that this prohibition rests on another prohibition: hospitals cannot be attacked under any circumstances. The United States violated this prohibition as well, in the famous effort to rescue Private Jessica Lynch from Iraqi captivity. It transpires that the assault on the hospital was altogether unnecessary. Lynch had been well treated, and her captors were endeavoring to return her to an American hospital, an effort rudely interrupted by American gunfire.
As if this were not enough, the American forces violated another rule of civilized warfare. These rules strictly forbid assassinations of enemy political leaders; lethal force may be directed only against enemy soldiers. (Scarry notes a dissenting view but argues forcefully that this is unfounded.) America brazenly flouted this rule with its deck of cards depicting members of Saddam Hussein's government. Rewards were offered for the capture of these people, dead or alive, in complete violation of this prohibition.
The depredations of the Bush administration were by no means confined to the enemy. Scarry contends that Bush reversed the proper relation between the people and its government. She maintains that the government should be transparent to the people. Laws result from public deliberation, not the scheming of secret cabals. In contrast, people are entitled to a private sphere immune from the watchful eyes of government. Privacy is a fundamental right, and the Fourth Amendment severely restricts the government's power to search our homes and businesses.
When we say that democracy requires that the people's privacy be ensured, we do not mean that our lives remain secret; we mean instead that we individually control the degree to which, and the people to whom, our inner lives are revealed. (p. 10)
The Patriot Act inverts the Constitutional requirement that people's lives be private and the work of the government officials be public; it instead crafts a set of conditions in which our inner lives become transparent, and the workings of the government become opaque. (pp. 9–10)
The Iraq War did not come about through Congressional decision, as the Constitution mandates. Quite the contrary, Bush launched the attack on his own volition, after a propaganda campaign, based on a false and misleading account of the intelligence available to the administration. That intelligence, in turn, even though it did not support the inferences Bush and his minions drew from it, had been obtained through pressure aimed at securing conclusions given in advance.
The Patriot Act, along with other measures, allows the government drastic powers of surveillance, inconsistent with the Constitution, over Americans. Not only can bank and other records be examined without regard to the limits imposed by the Fourth Amendment, but those from whom such information is demanded cannot, under criminal penalties, disclose these demands to anyone.
In earlier work, Scarry has stressed the ability of the people to act for themselves.1 She returns to that theme here. Many towns and cities have taken matters into their own hands, declaring that they will refuse to cooperate with the Patriot Act. "Despite impediments to resistance, 238 towns, cities, and counties have now created a firewall against executive trespass in their communities" (p. 32; the number comes from an essay that Scarry wrote in September 2004 and is no doubt now greater).
Scarry goes beyond this. She contends that Bush and his leading associates should be criminally prosecuted for their misconduct. Moreover, she holds, in some cases, e.g., infliction of torture, international law requires prosecution. It is not a mere option, to be accepted or rejected on grounds of prudence:
Finally — and for us, most important — the international rules against war crimes and torture do not allow prosecution to be thought of as discretionary; they do not allow an escape based on electoral euphoria or on one's doubts about one's own stamina in fighting injustice. (p. 156)
I do not think that she is correct here. She seems to me dubiously to assimilate international law to domestic law. If a nation violates a treaty, at least one school of thought holds that this terminates the treaty. The treaty, in this view, cannot be treated as ordinary legislation, where someone subject to a law must comply with it whether he wishes to or not. True enough, that is not the prevailing opinion, as the Nuremberg trials and their many successors indicate; but the new view perverts justice. To impose criminal penalties for violations of international law encourages ideological crusades and war to the finish. Those faced with criminal penalties should they lose a war will be reluctant to surrender.2
I should be inclined to think, then, that prosecution along the lines Scarry indicates is a poor idea. Violations of domestic law by the Bush administration are of course another matter; and Scarry has in any case given us in her excellent and provocative book an indictment of recent American policy difficult to answer.
1 See her Who Defended the Country? (2003) on the action of private citizens on the commandeered airplanes involved in the 9-11 attacks.
2 See, e.g., Danilo Zolo, Victor's Justice: From Nuremberg to Baghdad and my review in The Mises Review Fall 2009.