How Law Rules: Torture, Terror, and the Normative Judgments of Iraqi Judges

Abstract

We present a factorial survey experiment conducted with Iraqi judges during the early military occupation of Iraq. Because U.S. soldiers are immune from prosecution in Iraqi courts, there is no opportunity for these judges to express their views regarding highly publicized torture cases. As legally informed representatives of an occupied nation, however, Iraqi judges arguably have a strong claim to a normative voice on this sensitive subject. We are able to give voice to these judges in this study by using a quasi-experimental method. This method diminishes social desirability bias in judges' responses and allows us to consider a broad range and combination of factors influencing their normative judgments. We examine why and how the U.S. effort to introduce democracy with an indeterminate rule of law produced unintended and inconsistent results in the normative judgments of Iraqi judges. A critical legal perspective anticipates the influences of indeterminacy, power, and fear in our research. More specifically, we anticipated lenient treatment for guards convicted of torture, especially in trouble cases of Coalition soldiers torturing al Qaeda prisoners. However, the results—which include cross-level, judge-case interaction effects—were more varied than theoretically expected. The Iraqi judges responded in disparate and polarized ways. Some judges imposed more severe sentences on Coalition guards convicted of torturing al Qaeda suspects, while others imposed more lenient sentences on the same combination of guards and suspects. The cross-level interactions indicate that the judges who severely sentenced Coalition guards likely feared the contribution of torture tactics to increasing violence in Iraq. The judges who were less fearful of violence were more lenient and accommodating of torture by Coalition forces. The implication is that the less fearful judges were freed by an indeterminate law to advance Coalition goals through lenient punishment of torture. Our analysis suggests that the introduction of democracy and the rule of law in Iraq is a negative case in the international diffusion of American institutions. The results indicate the need for further development of a nuanced critical legal perspective.

Evil doers will face justice in honest and fair Iraq courts.

(Viceroy L. Paul Bremer III, Baghdad, November 2003)

How would Iraqi judges punish U.S. soldiers for torturing terrorists? Since U.S. soldiers are immune from prosecution and punishment in Iraqi courts, there can be no certain answers to this question. Yet as legally informed representatives of an occupied nation, Iraqi judges arguably have a strong claim to a normative voice on this sensitive issue. We are able to give voice to these judges through an experiment conducted during the early military occupation of Iraq. The study was undertaken with Iraqi judges brought to an American-organized and British-subsidized central European research institute. We use a critical legal perspective and an experimental factorial survey design with case vignettes to study sentencing decisions made by 82 Iraqi judges.

A core principle of critical legal theory—that law is indeterminate—plays a central role in the unfolding of our research design. From the mid-1970s to the late 1980s (see Tushnet 2005), critical legal scholars vigorously advanced the thesis that legal doctrine is indeterminate. According to this thesis, the existing body of legal doctrines—statutes, administrative regulations, and court decisions—permit a judge to justify almost any specific outcome he or she wishes in any particular case. In other words, a competent adjudicator can square almost any decision in favor of either side in any given legal dispute (Solum 1987).

Critical legal scholars also maintain the related thesis that legal discourse conceals and reinforces relations of power and domination. Through indeterminacy, the legal system reinforces relations of social and economic domination while retaining the appearance of neutrality and autonomy. Indeterminacy frees legal actors from the apparent constraints imposed by existing rules through the use of “legitimized” legal arguments (see, for example, Kairys 1982). Critical theory therefore does not assume that the indeterminacy of law is simply random, but that resulting legal outcomes are expressions of power, domination, and feared threats to the existing social order that are enabled by the indeterminacy of law.

We examine these premises from critical legal scholarship in the context of international criminal law. Our goal is to elaborate and test these premises empirically. We analyze sentencing decisions imposed by Iraqi judges in case vignettes describing guards convicted of torturing terrorist prisoners. The research design operationalizes the indeterminate effect of torture law by experimentally manipulating the national/military affiliations of the guards in the vignettes, with a particular focus on Coalition soldiers whose power derives from their association with the U.S. military force, and on al Qaeda prisoners whose protected status is undermined by Coalition interpretations of the Geneva Conventions.

Although the results of our experiment are informed by critical legal theory, they are not entirely predicted by this theory. No current theory could have predicted all that has happened in Iraq. Empirical tests of theoretical expectations often reveal nuances and contingencies in the determination of outcomes that are unforeseen. This study offers a cautionary if not contradictory note about the benefits that forced democracy and rule-of-law proponents foresee in the worldwide diffusion of Anglo American legal regimes. Silbey now seems prophetic with regard to Iraq when she observed that “this story of law as a universal, rational, and natural good is too easy” because it does not “acknowledge the pain, sacrifice, struggle with power, that comes with any normative order” (cited in Dezalay & Garth 2002b:321).

Unique Research Opportunity

This research began with an invitation to assess a training program titled Judging in a Democratic Society. This initiative combined the efforts of American and British lawyers to provide instruction in democratic norms and the rule of law to Iraqi judges following the military intervention in Iraq. The invitation offered a valuable opportunity to observe a rule-of-law indoctrination exercise in action: there are few in-depth studies of how local actors adapt to forced efforts by outside agents to impose law reform initiatives into war-torn and unstable settings (Klug 2002). After extensive search, we have been unable to locate any empirical studies of Iraqi judges since the period of the recent occupation by Coalition forces.

The training sessions for Iraqi judges were part of the U.S. State Department's plan to impose legal order in the aftermath of the invasion and ensuing occupation of Iraq. During this time, joined arguments for democracy and rule of law steadily gained priority over the weakening and eventual disappearance of weapons of mass destruction justifications for the war. President George W. Bush (2003) emphasized the linkage of democracy and rule-of-law themes in his November 2003 speech to the National Endowment for Democracy, insisting that “successful societies protect freedom with the consistent and impartial rule of law” (Bush 2003: n.p.). Two years later, in his National Strategy for Victory in Iraq, President Bush reported success along his roadmap to judicial independence. He observed that “hundreds of judges have been trained” and concluded that “as Iraq's political institutions mature, its judicial system has become an independent branch, better able to promote the rule of law” (Bush 2005:16–7). Our case study is focused on the normative frameworks of these judges.

Of course, the Bush administration joining of democracy and rule-of-law themes is not new, and what A. V. Dicey by the end of the nineteenth century called “the rule of law” is now widely regarded as an essential foundation for modern democracy (Walker 1988). An independent judiciary (e.g., embracing the equality norm of “similar cases, similar treatment”) is the symbolic institutional match for electoral democracy (e.g., honoring the equal enfranchisement norm of “one person, one vote”). The Bush administration was faced with the challenge of how to jointly and symbolically impose these ideological pillars of the rule of law.

Rehabilitating the Iraqi judiciary became an important answer. In contrast with the Iraqi military, the Iraqi legal system and the judiciary appointed during the Hussein regime were not subjected to de-Baathification. Instead, to presumably enhance judicial independence from financial corruption, the Coalition Provisional Authority (CPA) increased the salaries of judges from approximately 100 to 1,000 dollars per month. Yet the judges still required what the American bar calls “continuing legal education.” That is, the law and the judges still required reform and re-education. Since the semblance of the latter could be mobilized more quickly than the substance of the former, the idea quickly emerged of what in less professionally conscious circumstances might have been called a “judges' school.”

This research opportunity to observe Iraqi judges followed a post-invasion introductory meeting initiated by American and British lawyers in August 2003 in Baghdad between the leadership of the Iraqi bar and representatives of Coalition countries. Tragically, this meeting ended in the chaos of the August 19 suspected al Qaeda–led bombing of the U.N. headquarters that killed Sergio de Mello, the U.N. High Representative to Iraq, among scores of others. The Coalition team was forced to leave immediately by car for Jordan. The bombing added impetus to a British-based international legal association's proposal to assemble groups of Iraqi judges with American, British, and other international judges and lawyers at a legal training institute located in a more secure setting. A legal institute devoted to such purposes was already in operation in a central European capital, training judges and lawyers from the post-Communist states of eastern and central Europe aspiring to join NATO and the EU.

With the support of the State Department, the institute invited successive groups of Iraqi judges to attend two-week “Judging in a Democratic Society” programs, taught pro bono by U.S. judges and lawyers. Instruction focused on the role of judges in a democratic society, the importance of judicial independence, court and case management, sources of law (with an emphasis on international human rights and humanitarian law), judicial ethics, media and the courts, community outreach, and judicial leadership. We were invited to attend and assess these two-week courses with an evaluation methodology of our choice.

Of course, our invitation was not independent of the goals of the legal institute and its sponsors, who wished to be positively appraised for their contribution to the advancement of democracy and the rule of law in Iraq. The State Department and the organized legal profession expected that an independent and relatively powerful judicial branch could help legitimate the forced regime change and to overcome the violence in Iraq, while the institute hoped that we could positively evaluate their contribution to meeting this need. We use a critical legal perspective to mitigate this potential bias.

A Critical Legal Perspective on Torture and the Rule of Law in Iraq

An immediate problem confronting the CPA was that Iraq follows an inquisitorial civil law rather than an adversarial common-law tradition. Nonetheless, emulating the American legal system, the CPA decided early in 2003 to establish a new central criminal court and courthouse in central Baghdad, modifying Iraq's existing system of provincial courts with a model based on the specialization of the U.S. federal courts in trying significant cases of corruption, violence, and national security. The problem was that at a minimum, as Dezalay and Garth observe, “the results of particular exports of state expertises will depend on the extent to which there are structural homologies in the respective state fields of the importers and exporters” (2002a:14).

Yet Dezalay and Garth and a critical legal perspective further warn that even this prerequisite is too narrow, because the basic indeterminacy of law does not provide the necessary foundations of certain and settled principles that a direct application of this model of law in Iraq would require. Legal indeterminacy is a particularly vexing issue in an occupied Iraq that is plagued by torture and terrorism, if only because the indeterminacy problem is especially prominent in laws regarding violence (Cover 1986) and torture (Waldron 2005).

Indeterminacy in Torture Law

The Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights provide that “no one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Universal Declaration of Human Rights 1948; International Covenant on Civil and Political Rights 1996; see also United Nations 1984). John Choo Yoon, former deputy assistant attorney general in the Office of the Legal Counsel of the U.S. Department of Justice, drafted in August 2002 a consequential memorandum that was subsequently leaked to the media (see Lopez 2005). The memo had been signed by Assistant Attorney General Jay Bybee and addressed to Albert Gonzales, the President's legal counsel (see Torture Memos).Written in the aftermath of 9/11, the memo argued that “torture” in the binding legal statutes refers to those interrogation techniques that inflict pain similar to death or organ failure.

Failing this interpretation, it was argued that the President of the United States nevertheless has constitutional authority to determine which interrogation techniques shall be used as a matter of national necessity and self-defense against further al Qaeda attacks. Moreover, contested designations and distinctions between protected prisoners of war and unlawful enemy combatants added further indeterminacy.

The importance of the Yoo memo is that what might be regarded as a well-understood law—about torture—is explicitly treated as indeterminate. As the short history of the torture memo handily illustrates, in the breach of uncertainty, the government's interpretation often becomes de facto law (Cover 1986). Jack Goldsmith, Yoo's successor at the Office of Legal Counsel (OLC), writes ironically that:

The message of the August 2, 2002, OLC opinion was indeed clear: violent acts aren't necessarily torture; if you do torture, you probably have a defense; and even if you don't have a defense, the torture law doesn't apply if you act under the color of presidential authority. CIA interrogators and their supervisors, under pressure to get information about the next attack, viewed the opinion as a “golden shield,” as one CIA official later called it, that provided enormous comfort. (2007:144)

While a former White House lawyer has suggested that “if you line up 1,000 law professors, only six or seven would sign up to [the torture memo's viewpoint]” (cited in Hatfield 2006:516), nevertheless, a number of well-recognized scholars such as Posner (2004), Ignatieff (2005), and Dershowitz (2002) have argued that there is merit in the reasoning of the Yoo memo.

As the above discussion indicates, Iraqi judges confronted an uncertain legal understanding of the laws of torture. On the one hand, the Articles of the United Nations International Covenant on Civil and Political Rights, which Iraq and the United States both ratified, specifically prohibit the torture of war criminals. Articles 127 and 333 of the Iraqi Penal Code also specifically criminalize the use of torture by any public servant. Yet Yoo's memo undermined the scope and force of the Geneva Conventions and placed the final authority in the hands of the U.S. president to determine what torture means more broadly, and specifically in the context of al Qaeda.

Participants' descriptions of disagreements within the executive branch continue to reveal the indeterminacy of torture law in the Bush administration. Goldsmith (2007), when he served as head of the OLC, which provides guiding opinions to the President, took the highly unusual step of withdrawing Yoo's torture memo—after the Abu Ghraib scandal broke in 2004. Based on interviews with Goldsmith, Rosen writes that:

Goldsmith says he believed at the time, and still does, that “this extreme conclusion” would call into question the constitutionality of the federal laws that limit interrogation, like the War Crimes Act of 1996, which prohibits grave breaches of the Geneva Conventions, and the Uniform Code of Military Justice, which prohibits cruelty and maltreatment. He also found the tone of both opinions “tendentious” rather than cautious and feared that they might be interpreted as an attempt to immunize government officials for genuinely bad acts. (2007:43)

Goldsmith felt so strongly about this issue that he resigned from the OLC simultaneously with his withdrawal of the torture memo.

Yet subsequent opinions by the new head of the OLC, Daniel Levin, seem to reaffirm the interpretations of Yoo's earlier memo. Levin's memo holds that “we have reviewed this Office's prior opinions … and do not believe that any of their conclusions would be different under the standards set forth in this memorandum” (see Torture Memos at end). Thus Yoo maintains that subsequent memos and statutes continue to provide that:

The legal meaning of “torture” is not as all inclusive as some people would like it to be. Legally, we are not required to treat captured terrorists engaged in war against us as if they were suspects held at an American police station … . Unpleasant as it is, our government has a responsibility to do what is reasonably necessary in self-defense. (2006:172)

This view was asserted notwithstanding the decision of the U.S. Supreme Court in the Hamdi case (2004), which held that legal protections of the Geneva Conventions apply to al Qaeda.

Thus the application of torture laws in Iraq during the period of this research, in 2004 and 2005, was highly indeterminate. This indeterminacy has implications for practicing judges in Iraq. We next describe the theoretical grounds for expecting connections between indeterminacy, group power and threat, and criminal punishment.

The Roles of Power and Fear

A critical legal perspective foregrounds the roles of power and fear in shaping these judicial consequences. Dezalay and Garth insist that “it is necessary to study in depth how the law is constructed, the power equilibriums it embodies, and the position of law in the reproduction of power” (2002a:5). Garland (1990) argues that criminal punishment is shaped not only by the amount or severity of the crime, but also by perceptions about the menace of feared and threatening groups. According to critical legal theorists, law is used as an instrument to control groups who pose a threat to the current social order. A common dominant group reaction to the threat posed by less powerful groups involves extralegal violence, including torture. Indeterminacy in the law obscures the line between legal and extralegal forms of punishment—allowing both to be carried out under the cloak of the law. Thus Goldsmith candidly calls the exercise of torture law “an exercise of sheer power” (2007:150).

Garland (2001) further highlights the interconnected roles of power and fear in the crime control policies of the United States and Great Britain, and in ways that are highly relevant to the critical legal perspective on law in Iraq. His thesis is that growing fear and resentment of crime in both the United States and United Kingdom provoked policies that accentuated a punitive “culture of control” focused by those with more power on those with less.

The responses of President George Bush and former Prime Minister Tony Blair to international terrorism can be understood as mirror rote images of their respective domestic crime control policies. The fear-inducing events of 9/11 enhanced the power of the U.S.–U.K. Coalition to wage war as they wished in Iraq. Although Garland (2001) wrote before the attack, his analysis anticipates the punitive discourse that was extended to international terrorism, post-9/11, on both sides of the Atlantic. This discourse focused on logics of retribution, deterrence, and control, which, as a critical legal perspective implies, could be advanced through the malleably indeterminate law of torture (see also Hagan 2005).

The law of torture became a legal vehicle through which the hierarchical power of the Coalition forces could be unleashed in responding to heightened fears by targeting al Qaeda. The implicit logic of the Coalition-led rule of law in the early occupation period was that torture was a necessary tool of retribution and deterrence, as well as the means to extract information through harsh interrogation tactics. If the al Qaeda threat was not contained and controlled immediately, proponents of war and occupation reasoned, terrorism would continue to spread—ultimately producing further 9/11s.

As noted earlier, the export of Anglo American logics to Iraq is built on false homologies and naïve assumptions. The Pentagon belatedly recognized Anglo American and Iraqi differences as a useful excuse and took the Iraqi judiciary to task in a classified June 2006 assessment of their criminal courts. This assessment warned that “Iraq's judiciary is technically independent but unable and unwilling to assert itself” (Moss 2006a:A1).

As we have noted, the theoretical significance of indeterminacy is that here as elsewhere it widened the opening for the influence of power and fear in legal decisionmaking, obscuring the lines between legal and extralegal considerations in sentencing. Using a critical legal perspective, we anticipated that indeterminacy in torture law would facilitate four likely outcomes that we treated as testable hypotheses.

Hypothesis 1: Leniency

We anticipated that the indeterminate interpretation of torture law reflected in the Bush administration memos and the absence of any challenge or critical reaction to it in the institute training program would create a “climate of leniency” in which the Iraqi judges would feel encouraged to impose lenient sentences for guards convicted of torturing prisoners in Iraq. By the beginning of 2002, former Secretary of Defense Donald Rumsfeld publicly opined that “unlawful combatants do not have any rights under the Geneva Convention” (Seelye 2002: n.p.). Similarly, Gonzales had observed that “this new paradigm renders obsolete Geneva's strict limitations” (Gonzales Memo 2002: n.p.).

In spring 2004, the first photographic evidence appeared of U.S. guards torturing detainees at Abu Ghraib prison. This was four months before the first judicial training program. These images were recent memories throughout the training programs, but neither they nor torture law were openly discussed.

Hypothesis 1: We anticipated that the American presence (i.e., both in the program and in Iraq) and the silence about this issue would produce lenience in prescribing sentences for the case vignettes described below. We further expected that this leniency in sentencing guards for torturing terrorists might increase with the fear of a growing threat posed over time by al Qaeda in Iraq.

Hypothesis 2: Trouble Cases

We anticipated that variation nonetheless would occur within the general pattern of lenient sentencing of torture. We expected that the likely source of this differentiation would be variation in the combinations of the affiliations of the guards and prisoners portrayed in the case vignettes described below. We thought judges would likely disagree about the normative seriousness signaled by the relationships implied by membership in different groups. Garland (1990) calls feared and threatening group members “problem populations.” Group membership is a frequent source of what classical anthropologists and legal scholars, such as Llewellyn and Hoebel, have long seen as “trouble cases.” Such cases make the indeterminacy of law more visible. Thus Merry notes that “it is at these moments of trouble that the systems of law that regulate social life are laid bare, raised into the domain of the explicit” (1998:15). This conception of trouble cases is the foundation for an experiment within our factorial survey design. This experiment, described further below, randomly varied whether any information about affiliations of guards and prisoners was included in vignettes.

Hypothesis 2: We anticipated that the troublesome cases involving the torture of al Qaeda terrorists by Coalition guards would lead to increased variability in sentencing.

Hypothesis 3: Disparity

More specifically, we further anticipated that the greatest leniency would be observed in the sentencing of Coalition soldiers. These soldiers were the holders of unique power in Iraq that derived from their Coalition military affiliations. The Coalition soldiers represented the military powers who preemptively invaded Iraq. They had exercised their power in removing Saddam Hussein from office. As noted earlier, the CPA had retained the judges in their positions and increased their earnings. They were now further investing in travel and training of the judges with lawyers and judges from the Coalition partner countries. We reasoned that these factors, in conjunction with the latitude allowed by the indeterminacy and tolerance of the Bush administration interpretation of torture law, would extend a lenient “benefit of the doubt” to Coalition guards convicted of torture. This should perhaps especially be the case when the tortured prisoners were specifically targeting al Qaeda terrorists (i.e., the Bush administration interpretations of torture law focused special attention on al Qaeda, as part of its larger “war on terror”).

Hypothesis 3: Therefore, we expected the greatest leniency to be reserved for Coalition guards carrying out a mandate against al Qaeda prisoners.

Hypothesis 4: Fear and Protection

Our final anticipation was that fear and a concern for protection, as suggested by Garland (2001) and in a critical legal perspective, would drive disparities in the Iraqi judges' reactions to torture cases. Although fear is usually assumed to lead to punitiveness, here there was a choice of target, and we were focused on the use of leniency to facilitate the punitive treatment of the feared terrorists (i.e., the fear is of the death and destruction resulting from terrorism and insurgency, especially by al Qaeda insurgents).

Hypothesis 4: Thus this final hypothesis anticipated a cross-level, judge-case interaction in which the greatest leniency was expected to have resulted from fearful protective judges mildly sentencing Coalition guards who were found guilty of torturing al Qaeda prisoners.

In this way, the Iraqi judges would be following through on the Coalition plan to suppress the feared threat of al Qaeda, using the lenient interpretation allowed by the indeterminacy of torture law to extract information necessary for the protection of the Iraqi public against terrorism.

Studying the Rule of Torture Law in Iraq

Our challenge was to understand the normative judgments of Iraqi judges during the occupation of their country. We used the factorial survey method pioneered by Rossi (1979) and developed with associates (Rossi & Berk 1985; Jasso 2006), which has been called “the methodological gold standard” for the study of social norms in decisionmaking situations (see Sorenson & Taylor 2005:79; Seron et al. 2006:931; also Herzog 2003). This method has been widely applied to a variety of beliefs and normative judgments (Rossi, Sampson, et al. 1974; Sampson & Rossi 1975; Jasso & Rossi 1977; Alves & Rossi 1978; Alves 1982; Nock & Rossi 1978; Rossi & Anderson 1982; Bose & Rossi 1983; Jasso 1988, 1990; Jasso & Opp 1997; Jasso & Webster 1999; Hechter et al. 1999; Jasso 2003), including judgments about crime and punishment (Berk & Rossi 1997; Jacoby & Cullen 1998; Jasso 1998; Rossi, Simpson, et al. 1985). In our application, each Iraqi judge was asked to respond to hypothetical cases or vignettes by assigning “just” prison sentences to prison guards accused of torturing prisoners who were suspected terrorists. Our design is thus in the tradition of Berk and Rossi (1997) and Jacoby and Cullen (1998).

The factorial survey method joins features of surveys and experiments. Vignettes, or scenarios—in this instance describing torture cases—are followed by questions that elicit normative judgments—in this study, about sentence length. The vignettes contain common elements or variables whose categories or values are randomly varied in an experimental fashion. The random assignment allows variables to be examined independently of one another. For example, factorial studies of sentencing norms in criminal cases allow the researcher to assess the independent effects of characteristics of the defendant (e.g., a Coalition soldier) and the victim (e.g., an al Qaeda prisoner) upon judges' punishment (e.g., sentence length) of particular behaviors (e.g., torture). Factorial designs further allow the researcher to examine how characteristics of the respondents (e.g., the fears and protective concerns of Iraqi judges) affect their judgments.

“In other words,” Sorenson and Taylor surmise, “factorial designs allow researchers to examine what goes into the judgments of thoughtful respondents” (2005:79). They note that this cannot be done with direct yes-no questions, even when the questions pose extreme situations, because of the range of factors respondents may bring to bear in responding to even apparently simple situations, and the social desirability bias involved in simplified responses. The factorial survey method overcomes these limitations by systematically widening the range of circumstances or conditions that in practice complicate normative situations and judgments. Seron et al. (2006:931) further note that in punishment contexts a factorial survey design presents both rule-breaking and mitigating evidence, and in this way it is designed to mimic the reasoning that judges actually apply. They speak of this methodology as removing the “veil” that so often obscures official decisionmaking.

In our research, the factorial survey method can be thought of as allowing an estimation of “the equations in the heads” of the judges as they assign “just sentences” to the hypothetical cases. These data and the method allow an exploration of the issue of judicial independence in terms of the influence of legal and extralegal offender and victim characteristics as components of these judgments, the interjudge variability in judgments and their components' characteristics, and the added estimation of characteristics of judges as determinants of their judgments and their components.

We estimate both judge-specific (Tables 2, 3, and 5) and pooled (Table 4) OLS equations in the analyses that follow. The pooled results are corrected for heteroskedasticity due to clustering of cases within judges. The judge-specific equations yield significantly better-fitting models and diminish potential problems resulting from distributional variation in sentencing outcomes. We follow the classic approach in presenting OLS regression estimates that allow us to interpret our results in terms of years of sentence length, but we also estimate median regressions and log-transform sentence models to confirm that our results are robust with regard to distributional variation. The latter results are available on request from authors.

Table 1. Descriptions and Means of Selected Variables in the Analysis

Table 2. Means of Regression Coefficients from Judge-Specific Just-Sentence Equations, November and April Groups

Notes: The regression coefficients are drawn from the judge-specific equations, which include the full set of vignette characteristics; the omitted reference categories are Terrorist Level – Prisoner not a terrorist; Gender – Prison Guard: Male, Prisoner: Male; Command Responsibility – Prison Guard not given command to torture; Group Affiliation – Prison Guard: Coalition Member, Prisoner: Iraqi; Marital Status – Prisoner Guard: Single, Prisoner: Single. The April Group 2 equations also include the nationality/military affiliation variables (described in the text and summarized in Table 3).

Table 3. Summary of Estimated Effects of the Guard-Prisoner Nationality Combination in the Judge-Specific Just-Sentence Equations, April Group 2

Notes: The effect for each guard-prisoner nationality combination represents the prison years added to the sentence. It is obtained in each judge-specific equation by subtracting the smallest coefficient from the associated coefficient (where the coefficient for the left-out category is set to zero in the case of all positive coefficients).

Table 4. Estimates of OLS Pooled Specifications of Just-Sentence Equations, April 2005, Group 2

^a Reference Categories: Terrorist Level – Prisoner not a terrorist; Gender – Prison Guard: Male, Prisoner: Male; Command Responsibility – Prison Guard not given command to torture; Group Affiliation – Prison Guard: Coalition Member, Prisoner: Iraqi; Marital Status – Prison Guard: Single, Prisoner: Single. Standard errors (in parentheses) corrected for heteroskedasticity due to clustering by judge.

^* p<0.05;

^** p<0.01;

^*** p<0.001.

Table 5. Sources of Cross-Individual Variation: Based on OLS Estimates of the Respondent-Specific Just-Sentence Equations

Note: The dependent variables in the three specifications are based on the estimates of the judge-specific equations of the perceived determinants of a just prison sentence; means and other summary characteristics of these estimates are reported in Table 3, and the underlying model (Model 3) is summarized in Table 4. The dependent variable in Specification 1 measures the total effect in just-sentence years of the group affiliation category. It is equivalent to the range between the lowest effect and the largest effect, with the lowest effect set to zero. The dependent variable in Specification 2 was constructed using the variable coal/alq, which measures the effect in just-sentence years of the coal/alq combination. It is equivalent to the range between the lowest coefficient and the coefficient of coal/alq. The dependent variable in Specification 3 was constructed from the estimated coefficients for the group affiliation variable in the respondent-specific equations of the perceived determinants of a just prison sentence reported in Table 3. The standard errors appear in the parentheses.

⁺ p<0.1, one-tailed test

^* p<0.05, one-tailed test

As we noted at the outset, this method cannot represent extant sentencing practices in Iraq, because U.S. soldiers are immune from prosecution in Iraqi courts. Nonetheless, it is relevant to note that the cases we consider could be—and may ultimately be—tried in Iraqi courts. There are a number of recent cases whose fact situations recently have pressed the boundaries of U.S. immunity (“U.S. Wants Iraq to Try American Suspected of Aiding Insurgency,”USA Today, 8 Feb. 2006; Lewis 2006). Future cases are expected to test this boundary in new and numerous ways (see also Moss 2006b). There is abundant international precedent for transfers and prosecutions of American soldiers and citizens to domestic courts. The principle of comity in international law obliges nations to allow the extradition of its own citizens who have committed crimes in host countries. For example, Italian prosecutors recently have sought to prosecute 25 U.S. CIA agents for their involvement in the kidnapping of a militant Egyptian cleric from Milan in 2003 (Fisher 2007).

Yet it is also important to note that such cases are likely atypical, much as Seron and colleagues (2006:927) similarly note with regard to highly publicized domestic cases of police misconduct or brutality. It is in such circumstances, where our knowledge is so limited and atypical, that a factorial survey design can be especially useful. In addition to broadening our social scientific understanding of legal decisionmaking in a little-studied but important kind of international setting, this research can speak to important policy concerns by widening our knowledge of the normative standards of key stakeholders—in this case, members of the Iraqi judiciary.

The Unfolding Design

August 2004

The pilot phase of our research involved an initial meeting with 50 of the highest-ranking Iraqi judges, one of whom was subsequently selected to preside over, and later resigned from, the trial of Saddam Hussein. Our first challenge was to demonstrate that we could successfully administer the factorial surveys with these Iraqi judges who spoke little English. We made mistakes in this pilot phase, including a culturally insensitive decision to use an interpreter to verbally translate the English research instrument. Learning from this experience, we developed a refined instrument that was translated and printed in Arabic for use with following groups. These groups included 82 Iraqi judges who attended subsequent training courses in November 2004 and April 2005; they represented about 10 percent of the approximately 700 judges in Iraq. Three of the only seven women judges in Iraq are included in the sample. Following the pilot phase, judges were selected in Iraq at random to attend the institute.

November 2004

The Arabic translation of the instrument consumed much of our time prior to the next meeting three months later. Yet compared to the events enveloping the judges and their courts in Iraq, our problems were mundane. Several of the judges who took part in institute sessions were subsequently assassinated. Security was a constant concern in the transportation and housing of the judges for the programs. Further security issues emerged when the head of the CPA, Paul Bremer, and the Deputy Secretary of State, Richard Armitage, paid courtesy visits. Media coverage of the issue of torture at Abu Ghraib prison continued from early 2004 throughout the institute programs. The writing, rescinding, and rewriting of memos by Yoo, Goldsmith, and Levin also continued through the period of our research. Just prior to and during the November 2004 program at the institute, Coalition forces mounted a major counteroffensive producing catastrophic loss of life in the city of Falluja. In January 2005, voters in Iraq selected representatives to the Transitional National Assembly to write Iraq's constitution.

Iraq was not yet experiencing the level of sectarian violence that would verge on civil war by late 2006. Nonetheless, Iraq was already the most violent country in the region, not only in terms of war casualties and related terrorist attacks, but also in terms of escalating assassinations, murders, rapes, and property destruction and theft. Felony case dispositions, including torture, were rising rapidly, for example, increasing by 40 percent between November 2003 and November 2004 (Kamp et al. 2005). These background conditions contributed to the face validity of the hypothetical sentencing decisions in our research.

In November 2004, all 43 Iraqi judges attending the institute program were asked to impose hypothetical sentences on prison guards accused of torturing imprisoned suspected terrorists. At this program session, both the prison guard and the prisoner were described in our vignettes as Iraqi. This meant the status of the torturer and terrorist were held constant and, more specifically, that the power and conflict dynamics involved in Coalition forces torturing al Qaeda were excluded from the design.

We return to this crucial design decision below, but already this decision makes clear that the inclusion of variable characteristics of the situations in the vignette template is a key step in the factorial survey method. Each dimension (e.g., length of hospitalization resulting from torture) contains levels or categories. We developed a vignette template based on descriptions of torture situations discussed in human rights reports, the media, and actual military cases. Once illogical or unnecessary levels or categories of variables were eliminated, vignettes were randomly generated as a sequence of events in the order reported in the sample template, including random omission of information. The vignettes varied considerably but were systematic in evaluating how the situational or mitigating dimensions (noted below) affected the judges' responses to the cases, as measured by the question, “What do you believe is a just sentence for this case?” A sample vignette from the November 2004 administration might read (back-translated from Arabic):

The offender, a prison guard, was convicted of ordering the torture of a prisoner in violation of the International Covenant on Civil and Political Rights. At the time of the offense, the state had declared a public emergency because of terrorist activities, including a string of bombings in major cities. The prisoner and guard are from different ethnic groups. The prisoner was also a known low-ranking terrorist. The offending prison guard is female; the prisoner is male. At the time of the offense, the offending prison guard was forty years old; the prisoner was thirty years old. The offending prison guard was married with no children; the prisoner was also married with no children. The prisoner required hospitalization for three weeks as a result of his injuries. Prior to this offense, the offending prison guard had no prior record of misconduct involving prisoners.

Case characteristics were systematically varied in the November 2004 design, as described more fully in Appendix Table A1, and Table 5: the guards' age, gender, command responsibility, family background, and prior record; the prisoners' age, gender, family background, injury, and terrorist involvement; and whether the guard and prisoner were from the same or different ethnic groups.

The judges were each given a packet containing 50 cases and instructions for the sentencing task. The exact instructions given the judges and further details about method are available upon request. As compensation for their involvement in the study, the judges each received a phone card with about $20 in credit for phone calls from the institute to Iraq. This proved to be a powerful inducement, as the judges were anxious about the safety of their families and the institute could not provide phone assistance. The November 2004 administration of the factorial survey design was a success by any professional measure of participation and completion, but there were more important issues of power and fear yet to be addressed.

April 2005

Our decision to make both the prison guard and the prisoner Iraqi in our November 2004 factorial survey made sense as a means of initially holding constant the national status of the torturer and terrorist. Yet this elided the more complicated and provocative power dynamics involved in the now worldwide awareness that Coalition forces were torturing al Qaeda in Iraq. Experimental designs may often sacrifice external for internal validity in this way, but this also had the unintended effect of eclipsing the critical legal reality of the Iraq occupation and insurgency.

A critical perspective obviously cannot obscure issues of hierarchy and inequality of law in this way. Indeed, a major purpose of a critical perspective on law is to expose the operation of hierarchies of power. It made no sense to ignore concerns that were now increasingly expressed, namely that Coalition torture tactics were in themselves inciting violence and could ignite intensified sectarian conflict. After our study, the daily average of inter-ethnic attacks increased 15-fold (see Kamp et al. 2006). At this earlier juncture in the conflict, it was already becoming apparent that we needed to make the exogenous power dynamics of Coalition, al Qaeda, and other national/military affiliations explicit in our design. A critical legal perspective was becoming increasingly salient in our understanding of these events, and we could no longer ignore its obvious implications.

We addressed the issue of external validity in April 2005, when another group of 39 Iraqi judges came to the institute and participated in the study. We modified the design by dividing the judges into two groups of 20 and 19 judges each and conducting an experiment within the vignette design. The first group engaged in the exact same exercise as the earlier November group of judges, with the exception that they were asked to also complete a brief attitudinal survey. The attitudinal survey included Likert-scale items, described in Appendix Table A2, asking the judges the importance they attached to recent issues in Iraq, including assassinations, kidnappings, rapes, property crimes, the election, and police protection. Additional data on civilian deaths in the areas where the judges presided also were coded from a comprehensive analysis of more than 10,000 press and media reports published since March 2003 (see Iraqbodycount.org 2005).

The second group of judges in April was asked to engage in sentencing tasks identical to those of the first group, with the exception that the case characteristics further included the nationality/military group affiliations of the guards and their prisoners—including the Coalition forces and suspected al Qaeda members—as shown in Appendix Table A1, Item 10, and Table 1. This procedurally simple but theoretically salient modification involved inserting into the vignette template a sentence that might read:

The prison guard is a member of the Coalition forces while the offending prisoner is Iraqi.

Phone cards again were provided as compensation to both groups in April.

As noted, we included further items at the end of the April 2005 factorial survey about the fear of criminal attacks and the need for police protection. Recall that legal indeterminacy in the Bush administration's definition of torture widened the opening for decisions based on the influences of power, fear, and protection. The Yoo torture memo expressed an official U.S. government interpretation of the indeterminacy of torture law that it resolved in favor of allowing “harsh” interrogation techniques and asserting their special necessity in response to a fear and perceived need for protection from al Qaeda. The number of foreign fighters in Iraq nearly doubled between November 2004 and November 2006 (Kamp et al. 2006). The indeterminacy of the law of torture gave the Iraqi judges the latitude to respond to the power of the occupying Coalition forces and to fears of al Qaeda with varying degrees of punishment.

We have indicated that lenient punishment of the Coalition forces' torture of al Qaeda is one likely outcome logically anticipated by a critical legal perspective. The danger of such predictions, however, is that they risk exporting implied structural homologies of Anglo American social science to Iraq in much the same flawed way we have already observed in the form of exported Anglo American homologies of law. Our field research clarified and reinforced this lesson.

Methods and Data Collection

As indicated above, the factorial surveys with the Iraqi judges were conducted with one group of 43 judges in November 2004 and two groups of 20 and 19 judges each in April 2005. These groups respectively produced 2,115; 996; and 947 imposed sentences. We first examine mean differences in sentences across the three groups of judges described. Next we consider differences within and between normative judgment equations estimated from the factorial surveys conducted in November and April, before and after the election of the Transitional National Assembly. Finally, we focus in greater detail on the second group of April judges who sentenced cases that included information about the nationality/military group affiliations—including Coalition forces and suspected al Qaeda members—of both the guards accused of torturing and of the imprisoned suspected terrorists. After examining coefficients reflecting substantial sentencing differences in the normative-judgment equations for cases involving salient combinations of guard and terrorist characteristics, we examine the cross-level interaction of judicial fear and concern about protection with salient combinations of the prisoner-guard case characteristics. This last step fully incorporates the multilevel capacities of the factorial survey method.

The Factorial Survey Results

Table 1 presents mean values for four alternative codings of the sentences the judges assigned in the hypothetical cases. The third coding scheme uses plausible life span assumptions in assigning 25 years for a life sentence and 50 years for a death sentence. The initial results in Table 1 indicate that the several coding schemes yield similar results, and we selected the third coding scheme for the remainder of our analysis.

A key early finding in Table 1 is that in contrast with our first hypothesis, the mean sentences—in excess of four years in prison—are not lenient. Thus even though mean sentence length modestly but significantly declined between November 2004 and April 2005 (focusing on the first April group, which participated in the same design as the November group, and regardless of the sentence coding), the overall average sentences were substantial. After the elections and the accompanying upsurge in violence, the mean severity of sentences for the torture of suspected terrorists decreased, with the third sentence coding indicating a decline from 4.51 to 4.01 years. However, these are still long sentences. The Bush administration memo and the presence of the American judges in the institute program apparently did not lead the Iraqi judges to leniently sentence most convicted torturers.

Even more striking are the sharply increased mean sentencing scores by the second group of Iraqi judges in April 2005, again across all codings. These increases are on the order of 50 percent, for example, from 4.01 to 5.95 years. Recall that the only change in the hypothetical cases presented to the second group of judges in April is the inclusion of added information on the nationality/military group affiliations—including Coalition forces and al Qaeda members—of the prison guards and prisoners. When these affiliations of the respective combatant parties are indicated, the Iraqi judges on average become much more severe in their selections of appropriate sentences and therefore would seem to be more committed to strict enforcement of the international rule of law about torture. This abrupt upturn in sentence severity is consistent with our second hypothesis, that torture convictions involving Coalition forces and al Qaeda members represent “trouble cases” for these Iraqi judges.

Table 1 also includes several plausible judge-level sources of variation in sentencing, including the judges' ages, scores on a fear scale, death rates in the judges' jurisdictions, the leadership of their assigned “breakout” discussion group in the program, the importance they attach to the elections in Iraq, and a measure of the importance judges assign to police protection. Incorporating a critical legal perspective on punishment, we included the fear and protection measures as likely sources of severity in sentencing. The judicial fear scale is the sum of the importance the judges assign to the threats posed by assassinations, kidnappings, rapes, and property crimes in recent months in Iraq. These rankings yield a reliable 20-point fear scale (alpha=0.6). The protection scale is based on the judges' responses to a single item asking the importance they attach to the issue of police protection in Iraq. The reported means in Table 1 indicate that the Iraqi judges are both highly fearful and concerned about police protection. In April Groups 1 and 2, the judges score an average of 17 and 17.8 on the 20-point fear scale and between 3.8 and 4.5 on the five-point police protection measure.

Tables 2 and 3 provide an overview of the main effects of the case characteristics on sentencing in the three different groupings of judges (November/April 1 and 2) introduced in Table 1. We ran separate regressions for each of the judges. Tables 2 and 3 summarize the main effects by presenting the average regression coefficients for case characteristics in the judge-specific just-sentence equations for each of the three groupings; the main effects of the nationality/military group affiliation case characteristics newly introduced with the Iraqi April Group 2 judges are presented separately and in greater detail in Table 3.

In Table 2, as in Table 1, distinctive results emerge in April Group 2, and it cannot be overemphasized that assignment to the two April groups was random. Thus although there are apparent differences in the coefficients from the equations for just sentences across the first two groups in Table 2, the coefficients in the first two columns are more similar to one another than they are to the coefficients in the third column representing April Group 2. For example, while guards accused of torturing prisoners who are identified generically as suspected terrorists are indicated in the first two columns as receiving nearly identical lenient sentences compared to undifferentiated suspects (mean b=−1.539 and −1.424), this difference grows and reverses direction in the last column (mean b=2.239). These similarities are not as great across the first two columns in the mean effects for suspects identified more specifically as low- and high-level terrorists, but the effects in the third column with April Group 2 judges are nonetheless again more dissimilar. There are similarities in the first columns and reversals for most of the characteristics in Table 2. These findings of sharp differences when Coalition and al Qaeda affiliations are introduced into the vignettes suggest further support for the second hypothesis, that this information transforms these cases into “trouble cases.”

A final comparison of effects across the three groups is of interest in Table 2 before we focus on the specific nationality/military group affiliations in the second April group in Table 3. This comparison involves the variable indicating whether the accused guard and suspected terrorist are from the same or different ethnic groups. When the guard and prisoner ethnicities differ, the coefficients are negative in all three groups (mean b=−0.825, −1.072, −1.171). The increase in the negative coefficients in April suggests that, if anything, over this time period the judges on average increased their willingness to tolerate cross-group torture. We also explored the interaction of the ethnicity difference variable and the nationality/military group characteristics (to be discussed below), but the results were not statistically significant.

More generally, the data above indicate substantial similarities in the Iraqi judges' imposition of sentences across the November and the first April group—the groups whose vignette design omitted information about Coalition and al Qaeda involvement as guards and prisoners. Yet when these nationality/military affiliations are introduced into the cases for the second April group, the structure of the decisionmaking involving many of the case characteristics changes markedly, often even changing direction. The vignettes have become trouble cases. This difference suggests the importance of the guard-prisoner affiliations introduced into the experimental design in response to the critical legal perspective in April Group 2 and now explored in greater detail in Table 3.

Table 3 considers the relationship between the combinations of nationality/military group affiliations and sentence severity in the second April group of Iraqi judges. It is relevant to note here that Tittle (1994) actually anticipates the significance of an occupying army such as the Coalition forces. In doing this, Tittle warns that “the idea that societal institutions encompass the emotions of the dominant groups or categories is not as simple as it might seem, and spelling out the exact empirical expressions of identification and fear in the social control process is complicated” (1994:43). This is the kind of elaboration in our design that the recognition of trouble cases and a critical legal perspective demands.

Table 3 provides the mean, standard deviation, minimum, and maximum of the regression coefficients for the guard-prisoner combinations of nationality/military affiliations estimated in the judge-specific normative-judgment equations. The third column expresses these coefficients as actual estimated years of just imprisonment by setting the minimum coefficient to zero.

One of the combinations we have highlighted for comparison stands out in terms of the standard deviations of the effects: the largest standard deviation (14.9 years) involves Coalition guards who tortured al Qaeda prisoners. The smallest standard deviation (2.84 years) involves Coalition guards who tortured Iraqi prisoners. The sentencing range for the latter group is about 12 years, while the range for the former group quadruples to 48 years. The sensitivity of the judges to Coalition force involvement in torturing al Qaeda prisoners is underscored when we contrast the standard deviations of those in the Iraqi–Iraqi and Iraqi–al Qaeda combinations, which are the second and third smallest in the table. This is clear evidence of a heightened variability in the judicial response to the torture of al Qaeda prisoners by Coalition guards. It is seemingly the indeterminacy highlighted by the critical legal perspective in the meaning of torture, coupled with the “troublesome” power dynamics of the nationality/military affiliations, that produces this large variability in sentence severity.

Examination of the results of the individual judge-specific equations (not shown, but available on request) that form the foundation for Table 3 further reveals that even though each judge sentenced only 50 hypothetical cases, the Coalition–al Qaeda combination coefficients are significant (at the one-tailed 0.10 level) in 14 of 19 instances. It is of further note that in nine of these instances the coefficients are negative, reflecting sentence leniency, while in five of the instances the coefficients are positive, reflecting sentence severity. This is a further indication that in response to the indeterminacy of torture law, these Iraqi judges sentenced the Coalition–al Qaeda combination in a highly variable and polarized fashion. Nearly half of these judges sentenced this guard-prisoner combination to less than a year in prison, while more than a third sentenced these offenders to more than five years in prison. Thus there is both selective leniency and severity in the sentencing of these trouble cases. There is support here for our third hypothesis of disparity, but it is more complicated than expected, with notable severity as well as leniency, and with results directed very specifically at the combination of Coalition guards and al Qaeda prisoners.

We now explore in further detail the second April 2005 group of Iraqi judges—the group who assessed cases including the nationality/military affiliations of guards and suspects. We carry out two types of analyses designed to pinpoint the effects of judge characteristics. First, we estimate a set of three pooled specifications that include all the ratings for the 19 judges and in which the regressors systematically add judge characteristics to the case characteristics. Second, we estimate a second set of three specifications in which the dependent variables are based on estimates from the judge-specific equations and the regressors are the judge characteristics.

Results of the first set of specifications are reported in Table 4. Specification 1 includes as regressors only the case characteristics. Specification 2 adds six judge characteristics: judge's age (linear and quadratic terms), assignment to discussion group 1, death rate in the judge's city of practice, and the judge's scores on the election, fear, and police protection attitudinal items. Specification 3 adds two interactions, between the coefficient associated with the Coalition-on-al Qaeda guard-prisoner combination and the fear and police protection measures, respectively. The estimates obtained in these three specifications are corrected for heteroskedasticity due to clustering by judge.

The results that are of particular interest in Table 4 involve the fear and protectiveness of the judges and the combined nationality/military group affiliations of the guards and prisoners, as at least partially anticipated by our fourth hypothesis drawn from a critical legal perspective. The omitted comparison group for the models summarized in Table 4 is the scenario in which Coalition guards are accused of torturing suspected Iraqi terrorists. Across the columns of Table 4, we see that in contrast to the omitted comparison grouping, the most severe sentences are imposed on Coalition guards accused of torturing al Qaeda suspected terrorists (b=4.9). Yet these coefficients also have relatively large standard errors and are therefore not statistically significant. On the other hand, the effect for a Coalition guard torturing a Coalition suspect (b=3.2) is significant. This finding is suggestive of the judges' inclination to severely sentence Coalition offenders. However, while the possibility of the latter cases occurring was included in this research because it is theoretically possible, this occurrence is presumably rare and therefore not particularly informative for purposes of this analysis.

We turn back to the Coalition–al Qaeda combination that is of greater interest, and in particular to the likely meaning of the large standard errors of these regression coefficients. Fear and protection are the judge-level sources of variation that a critical legal perspective deems likely to influence the sentencing process. The last columns of Table 4 bring such sources of judicial heterogeneity into the analysis by extending the previous regression equations to include the judges' characteristics introduced earlier. The fear and protection measures speak directly to concerns of the critical perspective that judges respond punitively to threats perceived in their environments. The measures of fear and protection are now centered to reduce consequences of multicollinearity in the creation of interaction terms. Recall that the descriptive statistics reported in Table 1 for these measures indicated that the Iraqi judges in this research are both highly fearful and very concerned about police protection, presumably in response to perceived threats.

As our fourth hypothesis and a critical legal perspective predicts, in the second column of Table 4 we see that the judges' severity in sentencing is significantly increased by scores on the fear scale (b=1.531, p<0.05) as well as by the importance they attach to the issue of police protection (b=5.671, p<0.05). Even more important for our explanatory interests, the final column in Table 4 tests the interacting influence of the judges' fears and protectiveness with the nationality/military group affiliation that is our particular focus of interest: the Coalition guards accused of torturing al Qaeda prisoners. The two interaction terms tested in the last column of Table 4 are both statistically significant: both fear (b=2.530, p<0.05) and the importance attached to police protection (b=4.892, p<0.05) substantially and significantly increase the severity of the sentences given to the combination of Coalition guards accused of torturing suspected al Qaeda terrorists.

The implication of our findings is that judges who most fear crime and most want police protection are normatively most strongly disposed to severely punish Coalition guards for torturing al Qaeda–suspected terrorists. Note further that this finding can help explain the variance displayed in the Iraqi judges' sentencing of this combined grouping. While all the judges in both program sessions rank high on fear and protection, those who are less fearful and protective are the judges most likely to sentence this nationality/military combination more leniently. This offers insight into the observed judicial variance in sentencing severity. That is, the fear and protection measures help explain why some Iraqi judges sentence this Coalition guard–al Qaeda suspect combination more severely, while other judges in this group sentence this combination more leniently.

The roles of judicial fears and protective concerns are expressed visually in the bar graph presented in Figure 1. This figure uses the final equation in Table 4 to estimate the average prison sentences given to Coalition guards for torturing al Qaeda prisoners by the second April group of Iraqi judges who scored lower and higher on the fear and protection scales. Recall that the judges overwhelmingly score high on these measures, so that even judges scoring lower are still fearful and yearning for police protection in Iraq. However, it is the highest-scoring judges (i.e., scoring 20 on the 20-point fear scale and five on the five-point protection scale) who sentence Coalition forces especially severely for torturing al Qaeda prisoners. Judges scoring high on the fear scale and at the mean on protection give on average more than 21-year sentences to these offenders, while judges scoring high on the protection scale and at the mean on fear give on average more than 25-year sentences to these offenders. By contrast, judges who score lower on fear or protection and average on protection and fear respectively give sentences of five and six years in length. However, the most extreme polarization is between judges who score high on both the fear and protection scales and judges who score lower on both these scales. The highest-scoring judges on the combination of fear and protection give Coalition torturers of al Qaeda prisoners average sentences of more than 34 years, while judges scoring lower on both these scales give average sentences to Coalition torturers of al Qaeda prisoners of just over four months. These estimates reveal extreme disparity in the sentencing of Coalition forces for torturing al Qaeda that is strongly linked to the fears and protective concerns of Iraqi judges.

Figure 1. Estimate of Sentences in Years by Levels of Judicial Fear and Concern for Police Protection

Our final set of analyses in Table 5 is designed to further confirm the striking effects of judicial fears and protective concerns on sentencing norms by using three judge-level regression equations. These equations provide a further test of the robustness of the cross-level, judge-case interactions just reported. The dependent variables in the three specifications are the differences between judge-specific slope coefficients. The first of these dependent variables is the difference between the highest and lowest judge-specific slope coefficients. The second dependent variable is the difference between the judge-specific slope coefficients for a Coalition guard who tortures an al Qaeda terrorist and the lowest of the remaining judge-specific slope coefficients. The third of these outcomes is the difference between the judge-specific slope coefficients for the sentence given to a Coalition guard who tortures an al Qaeda terrorist and a Coalition guard who tortures an Iraqi terrorist. The last of these equations is most directly relevant to our theoretical concerns, while the first two equations represent formats that speak more generally to the effects of the judges' reactions to the broader range of nationality/military combinations of guards torturing terrorists.

Note that because of the smaller number of judges (i.e., relative to cases) available at this aggregated level of analysis, the chances of observing statistically significant results are much reduced. Nonetheless, five of the six coefficients representing the impact of the judicial level fear and protection variables on the sentencing of guard-suspect combinations yield statistically significant effects at the 0.05 level in one-tailed tests. All three fear coefficients are statistically significant, and two of the three protection coefficients are also statistically significant. The judge-level models reinforce our confidence in the findings from the case-level models.

The Normative Judgments of Iraqi Judges

Supreme Court Chief Justice John Roberts remarked in his confirmation hearing that “Judges wear black robes because it doesn't matter who they are …. That's not going to shape their decisions” (cited in Rosen 2006:27). This view, of course, is completely at odds with critical traditions of legal thought. Yet this kind of faith in judicial independence has led many Americans to believe that a global institutional diffusion of the democratic rule of law can solve many world problems.

We found little support for the idealized rule-of-law conception of judicial independence in war-torn Iraq, where the open texture of law interacted with characteristics of judges to produce highly variable outcomes in hypothetical sentencing decisions. Drawing on a critical legal perspective, we configured a factorial survey experiment to include consideration of the indeterminacy of torture law, the hierarchical power of Coalition prison guards, and the fear associated with their torture of imprisoned al Qaeda suspects.

The results of our experiment were mixed with regard to our initial four hypotheses. Overall, there was little support for our first hypothesis of a pervasive “climate of leniency” in the punishment of torture. Relatively long sentences were imposed, with average sentences from four to six years. Nonetheless, there was clear support for our second hypothesis of distinct trouble cases that produced wide variation in sentence length. There was also partial support for our third hypothesis, that the sentence disparities would involve lenient punishment for Coalition soldiers convicted of torture. Yet this disparity was more focused than expected—namely, on Coalition guards specifically convicted for torturing al Qaeda prisoners. Furthermore, the disparities went in the direction of both leniency and severity. Finally, there was support for our fourth hypothesis of the driving force of fear of crime and concern about police protection as sources of disparities, but in directions opposite to our expectations. Thus especially intense fear and protective concern led to severe sentencing of the torture of al Qaeda prisoners by Coalition soldiers, while less intense fear was associated with more-lenient sentencing of these Coalition soldiers.

The variability in the sentencing of the hypothetical cases can be understood partly as a response to the indeterminacy of law as reflected in the Bush administration advisory memos on torture, which initially and then less consistently included the assertion of a special presidential power for “harsh interrogation” of al Qaeda prisoners. Variance in the sentencing of Coalition guards who tortured al Qaeda suspects may also have been responsive to uncertainty about the classification of the latter as enemy combatants rather than as prisoners of war, in another contested area of legal indeterminacy. A critical legal assumption of indeterminacy anticipates fluctuation between severity and leniency, which occurs at the cost of certainty and consistency in legal decisionmaking.

Our factorial survey analysis of simulated sentencing decisions by Iraqi judges also supports the critical legal view that judicial behavior often involves a variable and selective response to fear. It is difficult to imagine a more fear-provoking set of structural and contextual forces than those that confronted the pre- and post-Saddam Iraq judiciary. Our data confirmed that these Iraqi judges feared the criminal correlates of their circumstances and yearned for police protection from them.

The hypothetical cases we posed to these judges clearly evoked conflicts and concerns involving sentencing offenders convicted of torturing suspected terrorists representing differing nationality/military combinations of combating parties. As noted, the judges responded with a polarized variability that led some to impose significantly more severe sentences on Coalition guards convicted of torturing al Qaeda prisoners, while others imposed more lenient sentences on these same guards convicted of torturing these same prisoners. The polarized variation in sentencing severity by itself is confirmation of important effects anticipated by a critical legal perspective on the indeterminacy of law. Our findings indicate that while nearly half of the Iraqi judges in our final experimental group sentenced Coalition guards to less than a year in prison for torturing al Qaeda prisoners, more than a third severely sentenced Coalition guards to more than five years in prison in the same kind of cases. Indeed, Iraqi judges who scored high on both fear and concern about police protection assigned sentences of more than 35 years to Coalition torturers of al Qaeda prisoners, while judges scoring lower on both of these scales gave sentences in these same cases of only about four months. We surmise that this extreme variability is at least partially a response to indeterminacy in torture law and the license it gave Coalition forces to harshly interrogate al Qaeda prisoners.

It bears note that the Iraqi judges did not completely abandon conventional sentencing norms. Their sentencing decisions sustained a semblance of formal rational commitment to the rule of law, for example, by responding to the degree of injury and harm indicated by days in the hospital resulting from torture. It is noteworthy that in all three columns of Table 4 presented above, days in the hospital had a persistent impact on sentence severity.

Still, at both the case and judge levels of analysis, we found quantitative empirical evidence that indeterminacy of the law, the hierarchical position of the occupying forces, and variation in fear of crime and a yearning for police protection were sources of selectively severe and lenient sentencing of cases involving Coalition torture of al Qaeda suspects. Greater fear of crime and concern for protection led to more severe sentencing of Coalition forces for torturing al Qaeda suspects, while reduced fears and protective concerns led to lenient sentences. This connotes a greater tolerance for the torture of suspected al Qaeda terrorists and their treatment as unlawful enemy combatants.

Media speculation in earlier phases of the Iraq war suggested that the Coalition torture of al Qaeda suspects created a vengeful motivation for their entry and involvement in the Iraq insurgency. It is also as if the Iraqi judges who severely sentenced Coalition torture of al Qaeda suspects shared the view of a New York Times editorial, namely, that “torture is a terrible way to do the very thing that the administration uses to excuse it—getting accurate information. Centuries of experience show that people will tell their tormentors what they want to hear, whether it's confessing to witchcraft in Salem, … or concocting stories about Iraq and al Qaeda” (“Illegal, Immoral and Pointless,” Unsigned editorial, New York Times, 10 Dec. 2005, p. A28). Coalition torture of the high-ranking al Qaeda leader Ibn al-Shaykh Libi is a frequently cited source of the now recanted and widely discounted claim that prewar Iraqis trained al Qaeda members (Jehl 2005:A1). Furthermore, the Iraqi judges' severe sentencing of Coalition torturers of al Qaeda suspects may have been a reasoned response to their fear that this torture incited growing al Qaeda involvement in Iraq. The fear of al Qaeda may have overcome for these judges concerns about the power of the Coalition forces. The severe sentencing of these Coalition guards for torturing al Qaeda suspected terrorists was also consistent with according these suspects the protection mandated by the Geneva Conventions for lawful prisoners of war.

In a novel sense, the Iraqi judges who sentenced Coalition guards severely for torturing al Qaeda prisoners exercised an unanticipated judicial autonomy from the occupying powers. The attempt to try 25 CIA operatives in Italy for abducting and transporting a suspected terrorist in Egypt illustrates a highly publicized effort to encourage this kind of autonomy from U.S. influence in international settings (Fisher 2007:A7). The Italian prosecutor in this case has lamented tolerance for torture tactics that defy international law by noting that “we don't need to give our enemies any reason for recruiting other members for their organizations” (Fisher 2007:A7). This position can be understood as a plea for judicial autonomy.

On the other hand, the Iraqi judges who sentenced these same cases leniently may have acceded to the power of the Coalition leadership and its apparent view that the way to drive al Qaeda from Iraq was to torture them into leaving and informing on their peers. Even if these judges did not fully condone the torture of al Qaeda, they may have been more accepting of its use by Coalition forces and therefore less inclined to punish these torturers severely. Or they may simply have been more inclined to accommodate the powerful Coalition occupiers in hopes of professional career advancement (see also Dezalay & Garth 2002a). We drew from a critical legal perspective to predict a pervasive leniency in the sentencing of torture cases by Iraqi judges, but our data require a more nuanced and contingent explanation that takes into account alternative kinds of reasoning. In the case of the military occupation of Iraq, it was the less-fearful judges who acceded to the U.S. accommodation of torture tactics.

There was little or no evidence in our findings that the January 2005 election in Iraq influenced sentencing decisions. Neither the occurrence of this election, between the November 2004 and April 2005 courses, nor the importance assigned in the surveys by individual judges to elections, notably influenced sentencing outcomes. Our design also provided a generic consideration of interethnic conflict including a variable indicating whether the torturer and suspected terrorist were from the same or different ethnic groups. The effect of ethnic variation between the torturer and the suspect was actually in the unexpected direction of lenience, although this effect was never statistically significant in Table 4. The ethnicity variable was also nonsignificant in its influence when we interacted it with the Iraqi–Iraqi prisoner–guard combination. However, the sectarian turn in the Iraq war may later have overtaken this aspect of our findings from an earlier phase of the occupation. As we have noted, it is also quite possible that the Coalition torture of al Qaeda suspects contributed to the growth in sectarian violence in Iraq, leading some judges to sentence these suspects severely.

Public attention in Iraq was concentrated during the last days of 2006 on the execution of Saddam Hussein by hanging. There is a theme that ties the Hussein execution to our research: a constitutional override provided the legal indeterminacy that allowed the Iraqi government to hastily conduct its frenzied execution. This execution is at the extreme end of a continuum of severity in the punishment of torture and larger crimes and may in itself become a lasting symbol of retributive justice in Iraq. Yet this unique and extreme case is uninformative about the judicial punishment of torture more broadly. Our study brought the use of torture by occupying Coalition forces into an analysis that revealed both punishment severity and leniency. The selectivity of the lenience we observed is perhaps the most notable finding in this volatile context: the judges who were less fearful of growing violence leniently sentenced Coalition guards for torturing al Qaeda suspects. The implication is that these less-fearful judges were freed by the indeterminacy of law to accommodate the imposed power of a forced democracy with sentences that revealed a tolerance for U.S. torture policies.

The introduction of democracy with rule-of-law ideology in Iraq is has emerged as a negative case in the worldwide diffusion of American institutions (see also Dezalay & Garth 2002b). Further research will be needed to widen the scope conditions beyond our study for a more generically framed critical legal perspective. The most obvious scope conditions of the current case study involve the circumstances of occupied Iraq. It is important to recognize that although Iraq is an extreme case of social and political pressures imposing their influence through the indeterminacy of law, threats to formal rational predictability are common in the rule of law. Using a critical legal perspective framed in more European and Weberian terms, Savelsberg (1992) demonstrates this point in a contemporary American case study. Savelsberg shows that determinate sentencing reforms, operationalized in the United States through the implementation of federal and state sentencing guidelines, have resulted in charging practices that counter guideline goals and reintroduce new forms of substantive rationality that again render sentencing law indeterminate. Legal indeterminacy is a ubiquitous, malleable, and frequently flawed instrument for furthering agendas of democratic reform.