How the Abu Ghraib photos morphed from scandal to law.
In April 2004, Americans awoke to the reality that the U.S. military was brutalizing prisoners at Abu Ghraib. The New Yorker and 60 Minutes II horrified us with the now-iconic images of Satar Jabar standing hooded on a box with wires attached to his hands and his penis, and threatened with electrocution if he fell off. They offered graphic photos of Pfc. Lynndie England dragging a collapsed prisoner on the floor with a leash, soldiers terrorizing prisoners with dogs, and a delighted Charles Graner giving a thumbs-up over the corpse of a man alleged to have been tortured to death at the prison.
At the time, we referred to Abu Ghraib as a "scandal." The images were a searing reproach to virtually any American with a soul and a conscience. With a handful of sick exceptions, people who could agree on nothing else could agree that this was an unacceptable way to treat prisoners—regardless of who they were, what they were accused of, or where they were being held.
But in hindsight, Abu Ghraib wasn't a scandal for the Bush administration. It was a coup. Because when the Senate passes the president's detainee bill today, we will, as a country, have yet more evidence that yesterday's disgrace is today's ordinary, and that—with a little time and a little help from the media—we can normalize almost anything in the span of a few short years. Lord Byron once wrote that "There are some feelings time cannot benumb/ Nor torture shake." He was, evidently, wrong as to both counts.
Look again at the images from Abu Ghraib. Most of those prisoners aren't being sodomized or water-boarded. They are largely being subject to stress positions, sexual humiliation, religious desecration, mock executions, and terrorization with dogs. And make no mistake: These are among the "alternative interrogation tactics" that will, along with sleep deprivation and exposure to extreme temperatures, likely be permitted by CIA interrogators under the new detainee legislation; or, to the extent there is a difference, that is how the president will construe the new law.
So, what happened between April 2004 and September 2006 that has so deadened American outrage? What has made Democratic senators who were prepared to filibuster over a judicial nomination unwilling to do so now, or even to express horror over the brutalization of enemy prisoners? Is it that in the intervening time we have made a hero out of 24's Jack Bauer, a man who tortures so that the rest of us may walk free? Is it that if you see enough "iconic" photos of a man in a hood with electrodes, they lose their ability to turn your stomach? Or is all the legalistic jive talk—the brazen congressional hairsplitting over abuse that results in "severe" vs. "serious" vs. "extreme" pain—numbing us to the reality of what remains unconscionable conduct?
It is all of these things, and also this: The legal "expectation of abuse" has been shaped by the new jurisprudence of abuse. The legal notion of what constitutes a "reasonable expectation of privacy" is often criticized as circular because the test for unreasonable government searches depends on one's subjective expectation of privacy, which is diminished as the government encroaches upon our privacy. So, too, the public notion of what constitutes reasonable abuse is diminished each time the government condones abuse. Thus the images from Abu Ghraib and the torture memos and the new detainee bill don't merely codify the boundaries of acceptable interrogation. They also shape them.
Dahlia Lithwick writes about the courts and the law for Slate.
Illustration by Robert Neubecker.