Whenever governments lose moral authority, as when their police seize evidence in violation of the Constitution, their case for conviction suffers. As the late US Supreme Court justice Louis Brandeis said, government must remain the "omnipresent teacher" of our highest ideals.
In the Abu Ghraib scandal, the army and the Bush administration have hardly been good teachers, and the public and the media have also been complicit. How, then, can the collectively guilty bring charges and single out some suspects as individually guilty?
ILLUSTRATION MOUNTAIN PEOPLE
To be sure, the extent of collective liability for torture and other indecencies invites debate. Should the public's appropriate reaction be guilt or shame? Many have read and seen enough to feel acute shame about being part of a nation that could go to war with righteous rationales and end up replicating, if not aggravating, the abuses of the "rogue state" Americans called their enemy.
Guilt is based, they say, on what we do; shame, on who we are. Neither the vast majority of US soldiers nor Americans as individuals have done anything wrong in Iraq (apart from the invasion itself), and thus might balk at allegations of collective guilt for the atrocities.
Yet in other cases of collective action, we willingly affirm collective guilt and a shared duty to make reparations. This was the widely accepted approach toward German liability for the Holocaust, and there are many who urge the same approach toward America's responsibility for slavery.
Yet shame might be more plausible with regard to US behavior in Iraq. The source of that shame is not any particular act, but simply being part of a nation that could behave so arrogantly as to disregard international law and the UN by invading a country that was not threatening America, and then sending untrained military police to keep prisoners in line by any means they happen to devise.
One way to think about guilt versus shame is to begin with the response that fits our sentiment of responsibility. Guilt represents a debt. The proper response to such a debt is to suffer punishment or to pay reparations to the victims.
Shame invites a retreat from the public eye. If you are ashamed, you do not expose yourself to punishment, nor do you extend your hand in a gesture of repair. When you are ashamed, you cannot bear the critical gaze of others: you hold your head low.
Though US Secretary of Defense Donald Rumsfeld proposed compensation to the victims of abuse at American military hands, it is hard to see this offer as expressing either guilt or shame. The offer seems more like an effort to buy silence.
If compensation were coupled with a finding of high-level American wrongdoing, we would get closer to an act of atonement. In recent weeks, attention has focused on whether Rumsfeld should resign or be fired. It is not clear what this would accomplish in light of the secretary's declaration that he would resign not as an expression of guilt, but only if he can no longer be "effective."
Under these circumstances, one can see why people yearn for international criminal prosecutions of responsible politicians.
For good or for ill, the political power of the US makes it immune to prosecution. Even if the UN Security Council could establish an ad hoc tribunal to try the abuses of American officials in Iraq, this would still address only the guilt of individuals, not the problem of each American's own responsibility for having participated, directly and indirectly, in a culture that generated the torture of prisoners.
Another reason why guilt does not capture our situation is that the collective debt must be owed to some coherent collective entity, such as the Jewish people in the Holocaust. But Iraq has already degenerated into so many rival factions that apart from the abused prisoners, there is no identifiable entity America has wronged and to whom it is indebted.
Peculiarly, President Bush first apologized for the atrocities in the presence of King Abdullah of Jordan, as though the crime had been committed against Jordanian Arabs. The king of Jordan would not have been in a position to forgive even a truly contrite Bush, and therefore he was not the proper audience for the confession.
If guilt is problematic in this context, we are left to struggle with collective shame. The problem is how to respond.
Americans have few choices but to discover a form of modesty appropriate to the country's reduced status in the eyes of the world. One immediate consequence would be to abandon the US attempt to prosecute Saddam Hussein on its own and to invoke an international tribunal.
The longer-range consequence of this new modesty should be for Americans to become enthusiastic supporters not only of the UN but of the International Criminal Court. American shame would be salutary if it led Americans to realize that they live in an interdependent world where nations cannot undertake unilateral military adventures without suffering unexpected disasters.
US President George W. Bush and the complicit American people sought glory in Iraq. What Americans have secured is merely a lasting stain on their reputation as decent and law-abiding people.
George Fletcher is a jurisprudence professor at Columbia University and author of Romantics at War: Glory and Guilt in the Age of Terrorism. Copyright: Project Syndicate
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