Abu Ghraib

Originally uploaded at SSRN.


This article posits a theoretical framework within which to analyze various aspects of post-September 11 detention policy - including the widespread prisoner abuse that has been documented in the leaks and official releases that began with publication of photos made at Iraq's Abu Ghraib prison. Examined are the actions of civilian executive officials charged with setting policy, of judicial officers who evaluated it, and military personnel who implemented it. Abuse has been attributed to failures of training or planning. The article concentrates on a different failure, the failure of law to keep lawlessness in check. On September 11, law's map was replete with national and international norms and doctrines, enforcement regimes, and compliance mechanisms concerning detention and interrogation. For more than two years thereafter the United States nonetheless maintained spaces within which, it said, executive fiat controlled. Initial judicial hesitancy to intervene was due in part to legal tradition: on account of the prevailing construct of relevant legal disciplines such as conflicts of law and public international law, actors did not see - did not even see a need to see - the myriad laws that ought to have cabined their behavior. The Supreme Court's 2004 detention trilogy signaled a willingness to interpose judicial supervision over policy and practice when appropriate. But that message came too late for persons assigned to hold and interrogate persons labeled "the enemy," under conditions that made abuse possible, even, perhaps, inevitable.