SELECTIONS

FROM "Abu Ghraib and the Problem of Evil", in Michael

[....... ]Evil and Responsibility in Abu Ghraib

A transcendent ethic, at least as formulated by Kant in his notion of radical evil (see his Religion Within the
Boundary of Mere Reason), presupposes cate- gories of judgment that are beyond particular situations. As I
understand it, Kant’s notion entails two concepts of the radical: one with the meaning ‘‘root,’’ derived from
the Christian doctrine of inherited sin, which makes us all inherently tempted by evil; the other with the
meaning ‘‘exemplary’’ and ‘‘hyperbolic,’’ as we might say of Hitler that he was the exemplar of radical evil in
the modern world—the limit case, if you will—against which all other evil is to be compared and judged (Pol
Pot, Slobodan Milosˇovicˇ, Idi Amin, Saddam Hussein, etc.).6 A Kantian or transcendent notion of good and evil
informs contemporary rights discourse when it speaks of ‘‘human rights’’ of one sort or another whose
violation must be punished by ‘‘international law.’’ Ethics in this view is supposedly derived a priori (by a
rational human subject, who is seen to be at the heart of ethical judgment), and anyone who challenges its
universality must be ‘‘back- ward.’’ The lesson often drawn from Abu Ghraib, for example, is that we had
‘‘forgotten’’ the American (and by extension universal Geneva) doc- trine of rights by which this country has
conducted itself in war (in spite of the many documented counter-examples when America did not so con-
duct itself in war). In other words, our failing was due to our forgetfulness of the laws, not to the possibility
that our laws need to be questioned.

What is missing in these transcendent views of good and evil is the possibility that ethical conduct is not
simply assured by following an ethi cal code, but that such conduct emerges in a given situation. This is true in
any instance of ethical conduct, but particularly so in cases like Abu Gh- raib, in which unforeseen
circumstances and unique events, as I have ar- gued above, are the rule rather than the exception for security
apparatuses confronting insurgencies. I do not mean to suggest that soldiers go into these situations without
any knowledge of ethical codes, quite the con- trary, for the MPs held to various ethical convictions ranging
from Chris- tianity to the U.S. military code of conduct to prison or correctional codes, none of which condone
the abuses that were committed. Yet it is startling that these were put in abeyance or temporarily forgotten
on the grounds that the evil being faced by counter-insurgents was exceptional (in Kantian terms ‘‘radical’’),
thus seemingly justifying the evil treatment of prisoners as exceptional or even regrettable but necessary and
unavoidable. This was U.S. Vice President Dick Cheney’s reasoning in his expression, ‘‘the dark side’’: to
combat evil requires evil deeds in turn, though supposedly harn- essed to a greater good. I am certainly not
saying that evil does not exist or that the U.S. counter-insurgency in Iraq did not confront evils at the same
time that it was committing them, but what I am saying is that it is not helpful or particularly illuminating to
invoke a transcendent category of evil by which to know and judge them, just as it is not particularly helpful
to invoke a transcendent category of good. The whole point is to understand the singularity or particularity of
both the evil and the good we condemn or espouse. The Bush administration’s invocation of the ‘‘axis of evil’’
is indicative of the problem of thinking about evil in capital letters, or EVIL, that is, as a universal or
transcendent category, however effective a rhetorical tool it might have been. To be sure, there was quite a lot
of evil committed by the Saddam regime, as there is by many another, but the question to ask was: ‘‘How was
it singularly evil?’’ How was it linked to the historical challenges faced by a government trying to rule this par-
ticular country, to a particular totalitarian regime and the cult of personal- ity developed around its leader,
and so forth. To put the point more generally, I am asking whether, as in certain discourses that speak of
‘‘situ- ational truths,’’ we can also speak of ‘‘situational evil’’ or an ‘‘evil of singularity.’’

...

Now let me turn to another theme in my discussion of the problem of evil at Abu Ghraib, that of moral
responsibility. That the MPs at Abu Ghraib did not (and do not) profess moral responsibility is stunningly ap-
parent in the film Standard Operating Procedure (2008, directed by Errol Morris), which is based on their paid
testimonies. Though they express all kinds of other feelings about what they did, remorse or contrition (a
sense of responsibility for what happened inside the prison) is not one of them, and this is even after they
have served prison sentences and can no longer incriminate themselves. Here is an instance where ordinary
language, as used in this volume, fails. They express shame for having let down the honorable tradition of
their military families (Jeremy Sivits), or resent- ment for having become scapegoats for the higher ups who
are ‘‘really responsible’’ for the moral wrongs committed in Abu Ghraib (Ken Davis), or resentment of having
been sexually violated and psychologically manip- ulated by male commanding officers (Lynndie England).
But they do not confess to any moral responsibility for the abuses they committed. Even when Sabrina
Harman entertains that possibility (Gourevitch and Morris 2008: 273), she understands her actions as a
‘‘dereliction of duty’’ (of not following military rules of conduct by reporting what appeared to be crim- inal
acts), not as a lapse of conscience. The question here is not whether MPs like Ken Davis thought what they
were doing in Abu Ghraib in the name of the war on terror was immoral, for some of them clearly did
(Gourevitch and Morris 2008: 104). The question, rather, is to what ex- tent, if any, he and others like him felt
any responsibility for those immoral actions because of not doing anything or not doing enough to stop them.

....

Let us examine the problem of intention more closely, for it is one basis by which guilt can be determined in
the law. Jurisprudence views crimes done with malice and forethought as being heinous. John Yoo, deputy
chief in the Justice Department’s Office of Legal Counsel (2001–3) and one of the architects of the Bush
administration’s policies regarding the use of torture on ‘‘illegal combatants,’’ emphasized that intent was
crucial in determining criminality in war crimes (Mayer 2008: 256). According to this reckoning, the
intentions of the men and women who abused prison- ers in Abu Ghraib were not evil because they never
meant to inflict harm beyond what was ‘‘instrumentally necessary,’’ and there is no prima facie reason to
doubt the assertions about their intentions. This conceit of the kindly intentioned soldier, for example, is
behind the construction of Specialist Sabrina Harman, the woman who took most of the photographs of the
Abu Ghraib abuses: it was said by her comrades in arms that she liter- ally ‘‘couldn’t hurt a fly’’ (her sobriquet
being Mother Theresa) and that she was simply ‘‘the wrong person in the wrong place.’....

Another basis for judging culpability is contingency or circumstance. One of the most pervasive of these in the
twentieth century, with its mas- sive bureaucracies, is the ‘‘cog in the machine’’ argument Adolf Eichmann
adopted in his defense, as analyzed by Arendt in her Eichmann in Jerusalem (1963). A central insight of her
book, one of the most important twentieth- century texts on evil, is that evil can often be ‘‘banal’’ in its face, or
take ordinary forms. Despite his own (and the prosecution’s) representation of his power, Eichmann,
according to Arendt, was such a person, a nonentity. How does one match the enormity of the war crimes
with which he was charged to someone who appears to be merely a cipher?

Intentionality also became relevant to Eichmann’s trial in a big way. His defense claimed that he had never
been a ‘‘Jew hater’’ (indeed, several witnesses testified to the ‘‘civility’’ with which he ordinarily treated the
Jews with whom he came into contact, in contrast to the brutish behavior of many other Nazi officials) and
that he had never willed the murder of human beings. It was circumstance or contingency that was his most
sa- lient defense, in which Eichmann described himself as a selfless bureau- crat, a victim, so to speak, of a
murderous regime, not a culprit. It was the heads of state, the formulators of a heinous policy (e.g., Adolf
Hitler, Reinhardt Heydrich, and Heinrich Himmler), who ought to have been held accountable and punished,
not the hirelings like himself, who were simply ‘‘doing their duty’’ or, like true civil servants, being ‘‘obedient
to the state’s laws.’’

It is tempting to talk about the soldiers in Abu Ghraib as ‘‘cogs in the machine,’’ though, as we have seen,
perhaps a not very well-oiled machine at that, embodying what Arendt called the banality of evil even if they
were not guilty of atrocities of the same scale and viciousness as those committed by Eichmann. The fact that
the C.I.A. obsessed about interro- gation techniques seems to bolster this view. But if Foucault’s model of the
security apparatus is credible, then Abu Ghraib was a nodal point in it, and the description of the soldiers as
mere ciphers in a counter-insurgency machine is less convincing.7 They were supposed to be left to their own
devices, to be given space for improvisation in their treatment of the pris- oners, so long as the desired
intelligence was obtained by the MIs in the next round of abuses. There is willfulness or agency here, not
mere obedi- ence to orders. That is also why Abu Ghraib bears only superficial resem- blance to the sort of
situation Stanley Milgram (1974) created in his famous experiments on obedience to scientific authority. The
soldiers were authorized to improvise, not to follow instructions blindly.

...

Arendt broke with moral reasoning according to intentionality and contin- gency by insisting that there is an
ethic of responsibility—an ethic that had not been worked out very clearly in philosophy or law to date—
under whose rubric judgments of culpability, or sin, have to be judged (Nieman 2002: 277).

In spite of the fact that Eichmann did not present the face of evil in the form one might have expected, Arendt
was nevertheless convinced that he should hang for war crimes (as indeed he did). If the legal basis was not
exactly clear (if not intention or circumstance, then what?), one thing was clear to her: the peculiar form or
presentation of evil in modern, highly bureaucratized, and totalitarian society needs to be recognized and
understood:

When I speak of the banality of evil, I do so only on the strictly factual level, pointing to a phenomenon which stared one
in the face at the trial. Eichmann was not Iago and not Macbeth, and nothing could have been farther from his mind than
to determine with Richard III ‘‘to prove a villain.’’ Except for an ordinary diligence in looking out for his personal
advancement, he had no motives at all. . . . He merely, to put the point colloquially, never realized what he was doing.
(Arendt 1963: 287; emphasis in the original)

If neither intentionality nor contingency, the two bases on which moral judgments of evil have existed in
philosophy, seemed altogether plausible or sufficient to convict Eichmann, then perhaps one was left with the
con- cept of moral responsibility to do so. The philosopher Susan Nieman (2002) argues that Arendt’s way of
formulating the question, in terms of responsibility rather than intentionality or circumstance, is what makes
her text both original in moral philosophy as well as important for under- standing evil in modern society.
That said, a fully worked-out theory of responsibility is not what one finds in Eichmann in Jerusalem. For that
one needs to turn to a later work, Responsibility and Judgment (2003), an anthol- ogy of lectures and essays
written by Arendt toward the end of her life in which she wrestles with the questions of personal
responsibility and moral judgment.

Judgment and Will

A key essay in that volume is ‘‘Personal Responsibility under Dictator- ship,’’ in which there is an important
passage I will cite at length. Arendt asks whether there is any difference between those who fully supported
the Nazi regime and those who, although they did not rise in full rebellion against it, refused to collaborate or
give public support to Nationalist So- cialism, and she answers the question in the affirmative, saying that

the non-participants, called irresponsible by the majority, were the only ones who dared judge by themselves, and they
were capable of doing so not

Abu Ghraib and the Problem of Evil 181

because they disposed of a better system of values or because the old stan- dards of right and wrong were still firmly
planted in their mind and conscience. On the contrary, all our experiences tell us that it was precisely the members of
respectable society, who had not been touched by the intel- lectual and moral upheaval in the early stages of the Nazi
period, who were the first to yield. They simply exchanged one system of values for another. I therefore would suggest
that the non-participants were those whose consciences did not function in this, as it were, automatic way—as though we
dispose of a set of learned or innate rules which we then apply to the particular case as it arises, so that every new
experience or situation is already prejudged and we need only act out whatever we learned or possessed beforehand.
Their criterion, I think, was a different one: they asked themselves to what extent they would still be able to live in peace
with themselves after having committed certain deeds; and they decided that it would be better to do nothing, not
because the world would then be changed for the better, but simply because only on this condition could they go on living
with themselves at all. Hence, they also chose to die when they were forced to participate. To put it crudely, they refused
to murder, not so much because they still held fast to the command ‘‘Thou shalt not kill,’’ but because they were unwilling
to live together with a murderer— themselves. (Arendt 2003: 44)

The passage is interesting not least because it envisions a context in which moral judgment is made without
holding on to preconceived standards, norms, or general rules (‘‘Thou shalt not kill’’) under which the
particular- ities of the case are to be subsumed. In other words, circumstances or events can be
unprecedented and not foreseen in the general rules, even as exceptions. If not by application of a rule to a
case, how, then, is moral judgment possible under such circumstances? Here Arendt evokes a quasi- Socratic
method: one asks oneself, ‘‘Can one live with oneself after having acted in such and such a way?’’ Moral
conduct, in this view, depends on a person conducting a colloquy with herself, a colloquy that depends on a
thinking subject, which Arendt adapts from the Platonic dialogues:

even though I am one, I am not simply one, I have a self and I am related to this self as my own self. This self is by no
means an illusion; it makes itself heard by talking to me—I talk to myself, I am not only aware of myself—and in this
sense, though I am one, I am two-in-one and there can be harmony or disharmony with the self . . . as I am my own partner
when I am thinking, I am my own witness when I am acting. (Arendt 2003: 90)

She goes on to argue that the subject who goes through such a thinking process or act and arrives at moral
judgments becomes a person.

...

Arendt’s notion of the subject accords with Bakhtin’s notion of the ‘‘di- alogical self’’ (Bakhtin 1981; see also
Volosˇinov 1973 [1928]), as well as an older pragmatist notion of the reflexive individual whose attention is
caught by something in the situation that is unexpected or new and who then has to think about that
eventfulness (my term) to determine his or her active relationship to it. The pragmatist philosopher George
Herbert Mead (1964) stressed long ago in his reflexive, interactionist sociology this ability of the individual to
think critically about what he or she thinks is right in a given situation. Such moral conclusions are, however,
always provisional and never infinite or closed. Finally, there is no way to deter- mine in advance which
individuals will act ethically or even evilly in given situations; in the sense that this is ‘‘spontaneous,’’ the
individual, as Kant insisted, is free to choose.

No doubt the possibilities for a process of moral judgment like that I have sketched out are severely curtailed
in a military or warlike situation, where following orders is at a premium, but that is also an argument for
why these situations are morally the most ‘‘dangerous’’ and require the greatest vigilance. It may be argued
that there is no time to think under fire, let alone to think critically or to question and evaluate, but this is
precisely what leaders who formulate evil policies are counting on, so that the obedient civil servant or
soldier will blindly carry out their orders. If heroism under fire may be the exception but hardly a rarity in
war, then why not also critical moral judgment and responsible action in cases of war’s abuses?

Conclusion

In this essay, I have tried to develop, however schematically and provision- ally, a notion of situational evil
and to argue that it is helpful in under- standing Abu Ghraib. This concept contextualizes evil, making us
realize its singularity, as well as its connection to specific events. In spite of efforts by the C.I.A. to routinize
prisoner torture and by the military administra- tion to rationalize the softening up of terror suspects, Abu
Ghraib, by virtue of being part of a security apparatus, always exceeded the rules by which it was supposed to
be ruled. In fact, improvisation and making things up as one went along were a creative response for the
soldiers in such a situation. Knowing what to do that is also what is right is an emer- gent knowledge, a matter
of judgment in regard to particularities and can never be merely a following of ethical rules.
How does one apply practical as well as moral judgment to that which is unexpected and novel? How does
one judge personal responsibility for acts committed in such a situation? I have argued that transcendent
ethical categories, though not entirely irrelevant, are, in fact, not particularly use- ful in such a situation. More
than one system or code is likely to be appli- cable, and conflicts between them rife. Moreover, as we saw in
the Abu Ghraib case, several soldiers sensed or even understood that what they saw happening during the
softening up phase was wrong, by either a religious standard or the army code of conduct, and yet only one in
the end did anything to stop it. The rest voiced no personal responsibility for remain- ing silent or
acquiescent.

Intentionality and contingency, for long the two most prominent crite- ria for determining culpability in
philosophy, are not particularly satisfy- ing for judging the Abu Ghraib abuses. Many of the soldiers did not
intend to do harm; they also were operating within a bureaucratic chain of com- mand. Does this then
exonerate them? We are left with a notion of per- sonal responsibility that depends on a particular kind of
subject (what Arendt calls a person), a thinking and critical subject, who is able to attend to a problematic
situation and make a personal judgment about it. Even that is not enough, for that person has to will to do
what he or she deems right. If we think of ethics on the model of the Austinian performative (‘‘I confess
that . . .’’) or of the Aristotelian notion of techne ̄ (‘‘I am a virtuous citizen’’), the problem of will, which I argue
is fundamental to ethics, may be obscured, though for different reasons, given that the performative re-
quires an intentional as opposed to a willing subject, the notion of techne ̄, educability or discipline. But to do
right and to avoid evil requires more; it requires the will and the courage to do right. Thus, in the end what
is important is not inculcating the person with a particular code of ethics but inculcating him or her
with a particular kind of moral thinking and action.