The road to Abu Ghraib: the biggest scandal of the Bush administration began at the top

Washington Monthly, Nov, 2004 by Phillip Carter

Such was the legal paradigm in place when al Qaeda attacked the nation on September 11, 2001. By the conventional laws of war, al Qaeda was neither a state nor a military; its operatives were neither soldiers nor civilians. Within weeks of the 9/11 attacks, the United States launched its armed response in Afghanistan--and, almost immediately, legal questions emerged which showcased the difficulty of pounding the round problem of al Qaeda into the square hole of existing international law. Unlike a national army, al Qaeda and the Taliban militia wore no conventional uniforms, and often did not operate in conventional units that could be identified or distinguished from the civilians among whom they hid. Most importantly, al Qaeda rejected the very notion of the laws of war, of protecting civilians when at all possible. Indeed, the terrorists' apocalyptic doctrine expressly made civilians--in their view, agents of Western cultural and economic imperialism--legitimate targets.

The inherent nature of stateless terrorism presented the Bush administration with another quandary, this one linked to the desperate need, in the months after 9/11, for reliable intelligence about the shadowy force that had just murdered more than 3,000 Americans. In a conflict between states, captured soldiers rarely possess strategically useful information; they may know about their own unit, or the plans for the next ground offensive, but rarely much more than that. A German corporal, or even a colonel, was unlikely to know much in 1944 about the big picture on the Western Front, let alone plans for V-2 strikes on London. Thus nations at war could, in the past, usually afford to treat prisoners relatively well--because doing so did not require trading away significant intelligence opportunities. The war on terror--an asymmetric war in which small numbers of combatants could inflict catastrophic damage--changed that equation. Unlike states, where the most important intelligence might concern evidence of a nuclear capability or the presence of tanks near the border, the most valuable intelligence about al Qaeda concerned its plans and intentions. Moreover, rank-and-file enemy operatives might well possess such information; were U.S. authorities to capture someone from a terror cell on the eve of its next attack, they couldn't afford simply to store him in a jail cell until the war was over. (Similar conditions obtained once the war in Iraq shifted from a conventional war fought largely between designated combatants to an insurgency fought between American soldiers on the one side, and a hodgepodge of guerrillas and irregulars on the other.)

In military terms, the global war on terror shifted the calculus of intelligence-gathering almost entirely towards human intelligence (HUMINT) of the kind that can only be produced through clandestine infiltration, interrogation, and other means. Satellites, surveillance systems, giant listening devices, and ground-penetrating radar won't alert the CIA and FBI to the next terrorist attack, or tell the U.S. Army where the insurgents have placed explosives on the highway between Fallujah and Baghdad. Yet here, too, the Bush administration had a problem: Over the years, the intelligence community's HUMINT capabilities had atrophied considerably, in favor of "technical" intelligence collection systems like satellites and electronic surveillance. Indeed, where the Middle East was concerned, the CIA, FBI, and military had virtually no HUMINT assets in place before or immediately after 9/11 to provide intelligence about the terror organization that had hit the United States. "At the time of the attacks, it's possible that there wasn't a single such [clandestine] officer operating today inside Islamic fundamentalist circles," Hersh writes in, based on what he says are extensive interviews with current and former officials in the U.S. intelligence community. Writing in the Atlantic in the summer of 2001, former CIA officer Reuel Marc Gerecht summed it up this way: "Operations that include diarrhea as a way of life don't happen." The only way to gather intelligence about global terrorism would be to extract it from the terrorists themselves.