WASHINGTON -- Both inside and outside the military, there is widespread agreement that the soldiers who abused Abu Ghraib prisoners acted illegally and deserve punishment.
The Nuremberg trials after World War II expressly repudiated former Nazi henchmen who said they had merely followed orders.
The Geneva Conventions and subsequent international war-crime laws reject the rationalizations heard from the accused soldiers at Abu Ghraib -- whether from Brig. Gen. Janis Karpinski claiming ignorance of abuse in the prisons she commanded or from military police saying they acted at the direction of intelligence officers.
"If you're in the Army, you know what illegal orders are," said Timothy Lomperis, a St. Louis University political science professor who was a military intelligence officer in Vietnam. "There's lots of training about illegal orders and the Geneva Conventions. I'm sorry, but those MP units know the rules. Just because they're reservists doesn't excuse them."
In the coming weeks, the tougher challenge for military investigators -- and for all Americans forming their own judgments -- will be to decide how far up the chain of command to assign blame and whether the Abu Ghraib abuses are part of a broader, systemic problem.
President Bush has issued apologies and stern condemnation in recent days, but some military and human rights analysts say that he -- along with Vice President Dick Cheney, Defense Secretary Donald Rumsfeld and other top U.S. leaders -- cannot completely escape responsibility for the scandal.
With "bring it on" taunts at enemy "thugs and assassins," their language and interpretation of legal protections for prisoners of war, in some experts' view, helped to create a permissive atmosphere that could foster the kind of abuse that occurred at Abu Ghraib.
"I think the whole attitude toward prisoners created by the administration as a whole does not discourage this sort of behavior," said retired Army Gen. William Odom, a former National Security Agency director who is an analyst with Hudson Institute, a conservative think tank in Washington.
"I'm not saying they caused it, but listen to the rhetoric since Sept. 11th," he said. "The overall attitude created toward al-Qaeda, and toward some of the Iraqis since we've been in Iraq, is not conducive to disciplined interrogations of the kind that are legitimate. It would be easy for local interrogators and MPs to be abusive and to think they were acting in the spirit of U.S. policy."
The inflammatory language that Bush and his senior officials have used to describe the enemy since the Sept. 11, 2001, terrorist attacks, Odom said, is virtually unprecedented in U.S. history.
"You didn't hear President Roosevelt talk like that in World War II," he said. "You didn't hear President Truman talk like that during the Korean War. You didn't hear LBJ or even Richard Nixon talk like that in Vietnam."
Trent Duffy, a Bush spokesman, said Thursday that the president didn't use such language until after the Sept. 11, 2001, attacks. Americans, he said, need to understand the true nature of the terrorists who beheaded Nick Berg and, before that, killed hundreds of innocent people in the Madrid rail bombings and other attacks.
"The president will continue to talk about these thugs and assassins," Duffy said. "He feels strong that we need to call these terrorists what they are."
Recipe for disaster
Beyond the tough talk, some experts say, the Bush administration has bent or ignored international conventions, to which the United States is a signatory, and invented categories that have no basis in law.
"They pay lip service to international law, but you have civilian ideologues in this administration who basically have flouted it," said Robert Goldman, a law professor at American University in Washington. "They believe that all these niceties apply to traditional war, whereas now with the new war on terror we need more leeway."
Long before the shocking photographs from the prison were revealed, many human rights experts say, the administration ignored plenty of warnings about a budding recipe for disaster -- and not just at Abu Ghraib.
In a May 7 letter to Bush, the directors of nine human rights groups criticized him for describing the Abu Ghraib abuses as isolated incidents.
"You have stated in eloquent terms that 'human dignity is non-negotiable,' but you have tolerated a U.S. system of interrogation that is specifically designed to degrade, humiliate and destroy the human dignity of prisoners to obtain information," they wrote.
White House press secretary Scott McClellan last week described the Abu Ghraib abuses as aberrations, and he said the United States is abiding by the Geneva Conventions.
"These are unlawful enemy combatants," he said. "They are people that have been involved in, or sought to carry out, attacks against the American people. And despite that, the president believes that there should be some clear guidelines with the way they are treated. ... But in terms of the prisoners, yes, we are bound by the Geneva Conventions. And in Iraq, we are bound by the Geneva Conventions."
Immediately after the Sept. 11, 2001, attacks, Bush said the country was in a new kind of war in which the old rules didn't apply. Within months, human rights activists were objecting to the treatment of detainees at the U.S. prison in Guantanamo Bay, Cuba. Many were alleged al-Qaeda or Taliban fighters transported from the war in Afghanistan.
When human rights experts complained about such practices as putting hoods on the Guantanamo detainees, denying them access to lawyers and refusing to hold hearings on their status, Rumsfeld said the United States was not bound by Geneva Conventions limits during interrogations and captivity at Guantanamo.
"I do not feel the slightest concern at their treatment," Rumsfeld said. "They are being treated vastly better than they treated anybody else."
Testifying to Congress in September 2002 about interrogation techniques, Cofer Black, then head of the CIA's counterterrorism center, said: "There was a before-9/11 and there was an after-9/11. ... After 9/11, the gloves came off."
Intelligence agents and officials boasted in published reports about how newly implemented rough tactics were producing valuable information about terrorism.
Bush, Rumsfeld, Cheney and others began using other terms to describe war prisoners -- terms such as "battlefield detainees," "enemy combatants" and, more recently, "security detainees."
What the laws say
Once the Iraq war started 14 months ago, the administration, stung by a rare public rebuke by the Red Cross of the treatment of Guantanamo prisoners, said it would follow the Geneva Conventions in detaining enemy prisoners in Iraq. But experts say top administration officials, deliberately or not, continue to blur clear lines when they describe those protections -- even since the Abu Ghraib scandal exploded.
On May 6, for instance, Cheney tried to explain some of the fine points of international law for protecting POWS.
"There are Article 3 and Article 4 of the Geneva Convention that apply in Iraq under different circumstances," Cheney told Fox News. "If you remember in Afghanistan, and the war on terror generally, if you've got somebody who is wearing civilian clothes, killing civilians, not abiding by the laws of war, then you've got a set of circumstances in which you've got unlawful combatants. And those people do not need to be treated under the Geneva Convention."
Article 4, however, applies once a foreign country becomes an occupying force, which the United States has been in Iraq since Saddam Hussein's regime fell in April 2003. Since then, law professor Goldman said, all Iraqi citizens have been under Geneva Conventions protections -- even if they commit war crimes.
The United States has the right to detain and prosecute accused war criminals, but it must follow the rules for humane treatment and due process spelled out in the Geneva Conventions and subsequent humanitarian law, he said.
Roy Gutman, who won a Pulitzer Prize in 1993 for exposing abuse at concentration camps in Bosnia, said the Bush administration further blurred the lines by choosing Gen. Geoffrey Miller, former head of the Guantanamo Bay prison, to run detention facilities in Iraq.
"Here you have the man who's been running Guantanamo for a year and a half and saying his interrogations there have produced marvelous results, and now they move him to Abu Ghraib," said Gutman, editor of a 1999 war crimes encyclopedia. "In other words, Guantanamo is becoming the model."
Indeed, there is early evidence that Miller might have some link to the Abu Ghraib abuses. As the Iraqi insurgency exploded last summer, he traveled to Iraq. After weeks of inspecting prisons there, he reportedly told commanders to "Gitmo-ize" operations in an effort to extract more intelligence from detainees. The worst abuses occurred last fall, soon after Miller's tour, and some accused MPs told military investigators that they had been directed to use tougher methods to "soften up" prisoners and prepare them for interrogations.
Some tactics allowed
It's not as if the Geneva Conventions or other international laws ban all coercive tactics.
Although physical contact or forced sexual behavior are strictly prohibited, according to Lomperis, permitted practices include interrupting sleep, using strobe lights and exposing detainees for limited periods to extreme cold or heat, but only with close medical monitoring.
The Army's FM-34 manual for intelligence interrogation -- published in 1987, the most recent one made public -- notes that "the use of force is a poor technique, as it yields unreliable results." It states: "The use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind is prohibited."
Noting that soldiers from virtually all countries have committed atrocities in many wars, Lomperis said that the handling of enemy prisoners requires the tightest military discipline because it is so subject to abuse. The Abu Ghraib abuses, he said, appear to have resulted from a breakdown in command control.
"Privates and specialists and soldiers are in a climate where they hate the enemy and their buddies are out there killing the enemy, and here we have helpless enemies in cells," Lomperis said. "You'd better be sure that the officers and NCOs [noncommissioned officers] are riding hard on these soldiers so that they don't do what comes naturally."
Lomperis predicts that more horror stories will emerge from other prisons in Iraq, Afghanistan and other fronts in the war on terror.
"If there is this problem at detention centers that have military intelligence units married up with MP units, most of which are drawn from reserves, then I would suspect this has been happening in other places," he said. "It would be very naive to assume that Abu Ghraib is the only place where this combination has produced abuse."