We are opening a new stage in our collective confrontation with Abu Ghraib. America has taken the lead in the postwar period in holding officials in other countries legally responsible for their abuses of power. It is time to judge ourselves by the same rules we impose upon others.

Consider one of the great recent achievements of American diplomacy: the creation of the war crimes tribunal for Yugoslavia, now sitting in the Hague. Americans are largely responsible for the statute governing these trials. Their governing idea was command responsibility. Any official who "orders" the violation of the Geneva Conventions is guilty of a war crime. While others may also be guilty through failure to exercise oversight, the clearest cases involve those who have "planned, instigated, ordered" or "committed" a crime.

Though much remains obscure, we already know enough to begin to apply these legal principles to Abu Ghraib. According to the Pentagon study led by former Defense Secretary James Schlesinger, Army Lt. Gen. Ricardo Sanchez signed a September 2003 order authorizing techniques that were plainly illegal under the Geneva Conventions. When his superiors at CENTCOM (Central Command) disapproved this command, Sanchez issued a second one that departed from standard policy by explicitly authorizing investigators to control all aspects of the interrogation, including "lighting and heating, as well as food, clothing and shelter given to detainees." The Schlesinger report found that Sanchez' orders "clearly led to confusion," and lawful orders "likely would have had a limiting effect" on the abuses. Evidence from a secret part of a second report, prepared by Maj. Gen. George Fay, has also been leaked. It contains a cable signed by Gen. Sanchez, which includes the following: "Presence of Military Working Dogs: 'Exploit Arab fear of dogs while maintaining security during interrogations.' "

This amounts to a clear breach of command responsibility, and in no metaphorical sense. Former generals of the Yugoslav republics are serving tens of years in prison on the same legal basis. Of course, Gen. Sanchez and his staff should be given an opportunity to rebut these reports, but if the charges are accurate, the very least they should expect is an immediate discharge from the armed services.

The United States has refused to sign the Rome Treaty, creating an international criminal court, whose founding statute contains an identical legal provision. We have claimed that the danger of politically motivated prosecutions is too great, given our global military responsibilities. But if this claim is to be in good faith, we must organize a vigorous domestic response. It is one thing to protect the armed forces from politicized justice; quite another, to make it a haven for suspected war criminals.

The new reports describe a more ambiguous situation further up the chain of command. When Gen. Geoffrey Miller offered his Guantánamo protocols as a model, he noted that "the Geneva Conventions did apply to Iraq." And Gen. Sanchez' superiors in CENTCOM rejected his initial order violating those conventions. Further investigations are clearly necessary, but we should not use them as an excuse for failing to respond now to the unambiguous findings already made in existing Pentagon reports.

We should rely on politics, not law, as the principal way of calling our leaders to account. The law should enter only when commanders personally and concretely involve themselves in clear acts of wrongdoing. Secretary of Defense Donald Rumsfeld is only politically accountable for the prison abuse at Abu Ghraib, but if, as he has publicly acknowledged, he personally violated the Geneva Conventions by ordering that an Iraqi prisoner be kept away from the International Red Cross, that is a very different matter. We do not know enough yet to judge Rumsfeld's culpability. But at least one thing is clear. He should be required to explain, in detail, this apparent violation of command responsibility. He should not be allowed to engage in a standard exercise of political dodge-ball.

Abu Ghraib has put America on trial before the world. More important, it forces us to look at ourselves in the mirror and define the relationship of law to our public life. Unless we act decisively, the present scandal may serve as a prelude to a grim future.

Bruce Ackerman is Sterling professor of law and political science at Yale and author of "The Emergency Constitution."

Copyright 1996-2004 Knight Ridder.

###