Standard Operating Procedure: A War Story

by Philip Gourevitch and Errol Morris

286pp, Picador, £16.99

Torture Team: Deception, Cruelty and the Compromise of Law

by Philippe Sands

336pp, Allen Lane, £20

The image of a hooded man standing on a box, with electrical wires dangling from his outstretched hands, is seared into our collective memory. It scars the psyche almost as deeply as the image of two skyscrapers collapsing in Manhattan. But pictures sometimes conceal as much as they reveal, as Philip Gourevitch demonstrates in an extraordinary book based on hundreds of hours of interviews compiled by film-maker Errol Morris.

Blinded by arrogance, George W Bush's administration neglected to prepare for the post-invasion occupation of Iraq. The result, Gourevitch explains, was "a grab bag of uncoordinated agendas, with snarled and conflicting lines of authority and accountability, tugged this way and that by opportunistic local allegiances, and hobbled by political calculations that often had less to do with Iraq than with Washington bureaucracy and careerism".

Nowhere was the lack of planning more disastrous than with regard to the thousands of Iraqis taken into custody. Despite being the site of some of Saddam Hussein's worst horrors, Abu Ghraib prison was chosen as the principal detention centre. No thought was given to the possible innocence of the prisoners, their wellbeing or human rights. All that was wanted was information, quickly, at any cost.

A company of undertrained reservists - the 372nd Military Police - was charged with holding the most valuable prisoners. Instead of just guarding and caring for the men, the MPs were instructed by interrogators from "Military Intelligence" (MI) to "soften them up". In the absence of guidance - which would normally have been provided by a lengthy "standard operating procedure" document - aggressive practices that began with sleep deprivation and yelling degenerated into punching, sexual humiliation, brutal stress positions and the use of snarling, biting dogs.

"Other government agencies" also relied on the MPs to prepare the prisoners for questioning. The acronym OGA, usually a euphemism for the CIA, was used expansively at Abu Ghraib to include the FBI and other clandestine agencies. These interrogators were called "ghosts", because their identities were never revealed, while their "ghost prisoners" were never formally documented. When one ghost prisoner was killed by his interrogators, the body was surreptitiously removed from the prison and disappeared.

All the while, intense pressure was being applied from Washington, with secretary of defence Donald Rumsfeld repeatedly phoning the prison. As Gourevitch explains, "the message was produce, produce. Everybody wanted to know: What was the intelligence? Where was the intelligence? So what MI wanted at Abu Ghraib, MI got."

Adding to the pressures, the prison came under almost daily mortar attack, with guards and prisoners wounded or killed. In the midst of a combat zone, in rudimentary living conditions, and charged with more than 200 prisoners each, a small group of amateurish men and women were placed at the cutting edge of the "war on terror" and ordered to deliver. Most perversely, they were encouraged to believe that their actions were helping to save American lives and, therefore, patriotic.

There is no excusing their behaviour. But without the photographs taken by the guards themselves, and later leaked, nobody would have been prosecuted or punished. So why did they take the photographs? It is easy to assume that the grinning, posing soldiers were ignorant of the rules and risks. Gourevitch indicates the contrary. The MPs knew something was seriously wrong; they were taking the photographs, and making sure that their superiors knew they were doing so, in a calculated effort to protect themselves.

Although Gourevitch lets the soldiers speak for themselves, his few analytical forays are invaluable. For example, he explains why the photograph of the hooded prisoner achieved iconic status despite the availability of other pictures depicting even more serious crimes: "Its fascination resides, in large part, in its mystery and inscrutability - in all that is concealed by all that is revealed. It is an image of carnival weirdness; this upright body shrouded from head to foot; those wires; that pose that recalls, of course, the crucifixion; and the peaked hood that carries so many vague and ghoulish associations."

There are moral arguments that are sometimes advanced to justify torture. But the atrocities at Abu Ghraib failed to generate any significant intelligence, while fatally undermining efforts to win hearts and minds. This outcome was entirely predictable. The Geneva conventions exist because generations of soldiers and statesmen realised that humane treatment usually contributes to military and political objectives, not least by prompting grateful prisoners to talk and undermining support for the enemy. Gourevitch reminds us of the order issued by George Washington after the capture of hundreds of Hessian mercenaries: "Let them have no reason to Complain of our Copying the brutal example of the British army in their Treatment of our unfortunate brethren." Treating prisoners well helped the revolutionaries win international support and gave other enemy soldiers more reason to surrender.

And while the US has violated human rights before, it always denied and sought to conceal the violations. What the Bush administration did was different: it either decided that the law did not apply or sought, in Gourevitch's words, to "replace the law with the theory that torture is a phantom crime, defined by an unprovable intention to impose an unattainable level of pain".

Ultimate responsibility rests at the top. The generals and politicians created the conditions in which the crimes took place, and either encouraged or acquiesced in them. Gourevitch is scathing: "It would have been outrageous, of course, if the overseers of America's biggest MI operation in Iraq didn't know what was happening with their most valued prisoners. But the complicity, the blind eye and the cover-up, the buck passing and the butt covering, the self-deception and the cowardice, the indiscipline and the incompetence infested every link in the chain of command that ran from the MI block to the Pentagon and the White House . . ."

Faced with the threat that the photographs might become public, the military sought to cover up the crimes. Once the photographs were leaked, they prosecuted only the low-ranking soldiers who appeared in them. Nobody above the rank of sergeant was ever sent to prison; not a single civilian interrogator was charged. "That's how it worked," Gourevitch explains, "no photo, no crime . . . the exposé became the cover-up." For the soldiers who had sought to protect themselves, the irony was absolute.

The atrocities at Abu Ghraib were inspired by practices elsewhere. In September 2003, Major General Geoffrey Miller, commander of Guantánamo Bay, visited Abu Ghraib and recommended that "the guard force be actively engaged in setting the conditions for successful exploitation of the internees".

How did torture become part of the Guantánamo interrogation regime? Philippe Sands sets out to answer that in a gripping book which examines the role of lawyers in removing the legal barriers to abusive questioning techniques. A lawyer himself, Sands tells the story through a series of interviews that read like cross-examinations of accused perpetrators and witnesses to a crime - which is precisely what they are. Sands obtains access to most of the central players, asks the tough and necessary questions, and coolly draws the conclusion that "severe pain or suffering, whether physical or mental", was deliberately caused. This is the definition of torture under international law, and torturers - and those who order or are otherwise complicit in torture - may be prosecuted in any country regardless of their nationality or the location of the crime.

Before September 11 2001, as a professor at Duke University, I met dozens of lawyers from the US state and defence departments who deeply respected international humanitarian law. At the time, I could not have imagined that the US government would systematically undermine and evade these fundamental rules. But as Sands explains: "September 11 gave rise to a conscious decision to set aside international rules concerning interrogations" that "was motivated by a combination of factors, including fear and ideology and an almost visceral disdain for international obligations". Although much of the ideology and disdain was restricted to a group of neoconservatives around the president, the corrosion of moral standards was more widespread. Both Sands and Gourevitch report that the TV series 24 - whose hero is forgiven for torturing terrorists to protect Americans - influenced the thinking of US decision-makers.

By February 2002, the president had pronounced that the Geneva conventions did not cover individuals believed to be associated with al-Qaeda and the Taliban. The decision was authored and approved by politically appointed lawyers. Unlike the men and women I'd met and admired, the appointees saw their role as interpreting the law to support predetermined policies. As Sands explains, the provision of legal advice aimed at justifying war crimes amounts to a war crime itself. And legal responsibility extends beyond the lawyers to include Rumsfeld, Dick Cheney and Bush.

If we are to redress the wrongs of the Bush era, we need to call those who ordered or encouraged torture to account. Gourevitch and Sands have contributed mightily to that effort. After reading these books, I've little doubt: one day, we'll see the captains of the torture team in court. Michael Byers's War Law: Understanding International Law and Armed Conflict is published by Grove Press.

· Philippe Sands is at the Hay festival (25 May and 1 Jun).