The genuine news is not that U.S. military abuses of detainees in Iraq were so many but that they were so few and remedial responses were so prompt.
Repulsive photographs tend to transfix, distort and inflame judgments. The photos of an unalarming number of Abu Ghraib abuses have cascaded into a hand-wringing national preoccupation akin to self-flagellation. Four major reports into aspects of military police or military intelligence misconduct have been released, and an additional four are pending. But contrary to a swelling mythology, the overwhelming evidence discredits the unfolding insinuation of rampant Abu Ghraib or sister lawlessness.
A predictable incidence of individual wrongdoing in violation of U.S. criminal law or international law occurred as an unanticipated insurgency in Iraq spiraled and detainee numbers ballooned. An Army inquiry found 44 instances of abuse, but only 13 involved the interrogation of detainees or the interrogation process. A tiny fraction of soldiers are being punished, prosecuted or investigated. Rules of interrogation, training and supervision have been revised or clarified. As the Fay investigation concluded in a report last week: "Leaders and Soldiers throughout Operation Iraqi Freedom were confronted with a complex and dangerous environment. Although a clear breakdown in discipline and leadership, the events at Abu Ghraib should not blind us to the noble conduct of the vast majority of our soldiers."
The United States should scale back its resources devoted to dissecting detainee maltreatment and augment its concern over the vastly more troublesome Iraqi thorn: namely, the circumvention of justice by the murderous Iraqi cleric Sheik Muqtada al-Sadr and his Mahdi army myrmidons.
Last Friday, all received amnesty from the Iraqi interim government in exchange for departing Najaf and the Imam Ali Shrine fully armed and dedicated to killing American soldiers and all they are fighting to achieve. Mercy for the major crimes of the enemy coupled with sternness for minor infractions suffered by enemy detainees smacks of the Vietnam obtuseness chronicled in "Catch-22."
The detainee abuses generally found in Iraq do not shock the conscience. They are staples of prisons in the United States that deserve condign punishment but not overkill. The war-zone circumstances of the abuses and acute understaffing at Abu Ghraib also mitigate the misconduct.
The Fay investigation found cases of physical or sexual abuse; improper use of military working dogs; humiliating and degrading treatments; unjustified isolation; failure to safeguard detainees; and, failure to report detainee abuse. In the category of physical abuse, several soldiers reported slapping, kicking, twisting the hands of a handcuffed detainee to cause pain, and poking at an internee's injured knee. Degrading treatments were exemplified by keeping and photographing detainees in a state of undress. Sexual abuse included forced group masturbation, an alleged rape, and an alleged sexual assault of a female detainee.
Customary soldier stresses were compounded at Abu Ghraib. During past wars, detention facilities were located "behind the front lines." In Iraq, the entire country was and remains a battlefield. Abu Ghraib, located near the population center of Baghdad, was thus in a war zone. Five U.S. soldiers died there because of mortar attacks, which were unleashed 55 times in the month of July 2003 alone. On Aug. 16, 2003, five detainees were killed and 67 wounded by mortar fire. A sequel attack on April 20, 2004, killed 22 detainees.
The soothsayers in the White House, the Defense Department, and the intelligence community neglected to plan for a major post-Saddam insurgency in the Pollyannalike belief a peaceful and democratic Iraq could be summoned into being after a putative 4,000 years of dormancy.
Accordingly, detention facilities were sharply short of military police and intelligence when detainees at Abu Ghraib rapidly climbed to 7,000 in October 2003. The guard force was 90, or approximately 1-to-75. In contrast, at Guantanamo Bay in a sea of peace the ratio was approximately 1-to-1. As the Independent Panel to Review DOD Detention Operations recognized, "Abu Ghraib was seriously overcrowded , underresourced, and under continual attack."
Wartime medals celebrate killing and capturing the enemy, not spotless records of compliance with the Geneva Convention or requests from the International Committee of the Red Cross.
In military promotions, a fastidious concern for protecting the health and welfare of detainees earns trivial kudos compared with a muscular desire to crush and to demoralize the enemy, like Gen. William Tecumseh Sherman's march from Atlanta to the sea. Thus, naturally ambitious officers and soldiers were given low career incentives to master and to follow international humanitarian conventions to soften war's horrors.
These contextual facts should make the microscopic number of detainee abuses a source of satisfaction with a stimulus for improvement, not a provocation for self-righteous sermonizing. Since hostilities opened in Afghanistan and Iraq, about 50,000 enemy suspects have been apprehended, accompanied by approximately 300 allegations of abuse.
As of the middle of this month, 155 investigations were completed, and 66 abuse allegations substantiated, an incidence approximating .01 percent. And a third of the 66 transpired at the point of capture or tactical collection where danger and violence peak. Further,as the Independent Panel found, "No approved procedures called for or allowed the kinds of abuse that in fact occurred."
Shouldn't the nation's fixation on Abu Ghraib be shifted to pulverizing the enemy in Iraq to ensure brave U.S. soldiers did not die there in vain?
Bruce Fein is a constitutional lawyer and international consultant at Bruce Fein & Associates and the Lichfield Group.