Iconic images inspire love and hate, and so it is with the photograph of James Blake Miller, the 20-year-old Marine from Appalachia who has been christened “the face of Falluja” by prowar pundits and “The Marlboro Man” by pretty much everyone else. Reprinted in more than a hundred newspapers, the Los Angeles Times photograph shows Miller “after more than twelve hours of nearly nonstop deadly combat” in Falluja, his face coated in war paint, a bloody scratch on his nose, and a freshly lit cigarette hanging from his lips.

Gazing lovingly at Miller, Dan Rather confessed that, “for me, this is personal…. This is a warrior with his eyes on the far horizon, scanning for danger. See it, study it, absorb it. Think about it. Then take a deep breath of pride. And if your eyes don’t dampen, you’re a better man or woman than I.” A few days later, the LA Times declared that its photo had “moved into the realm of the iconic.” In truth, the image just feels iconic because it is so laughably derivative: It’s a straight-up rip-off of the most powerful icon in American advertising (the Marlboro Man), which in turn imitated the brightest star ever created by Hollywood (John Wayne) who was himself channeling America’s most powerful founding myth (the cowboy on the rugged frontier). It’s like a song you feel like you’ve heard a thousand times before–because you have.

But never mind that. For a country that just elected a wannabe Marlboro Man as its President, Miller is an icon, and as if to prove it he has ignited his very own controversy. “Lots of children, particularly boys, play ‘army’ and like to imitate this young man. The clear message of the photo is that the way to relax after a battle is with a cigarette,” wrote Daniel Maloney in a scolding letter to the Houston Chronicle. Linda Ortman made the same point to the editors of the Dallas Morning News: “Are there no photos of nonsmoking soldiers in Iraq?” A reader of the New York Post suggested more politically correct propaganda imagery: “Maybe showing a Marine in a tank, helping another GI or drinking water, would have a more positive impact on your readers.”

Yes, that’s right: Letter-writers from across the nation are united in their outrage–not that the steely-eyed smoking soldier makes mass killing look cool but that the laudable act of mass killing makes the grave crime of smoking look cool. It reminds me of the joke about the Hasidic rabbi who says all sexual positions are acceptable except for one: standing up, “because that could lead to dancing.”

On second thought, perhaps Miller does deserve to be elevated to the status of icon–not of the war in Iraq but of the new era of supercharged American impunity. Because outside US borders, it is, of course, a different Marine who has been awarded the prize as “the face of Falluja”: the soldier captured on tape executing a wounded, unarmed prisoner in a mosque. Runners-up are a photograph of 2-year-old Fallujan in a hospital bed with one of his tiny legs blown off; a dead child lying in the street, clutching the headless body of an adult; and an emergency health clinic blasted to rubble. Inside the United States, these snapshots of a lawless occupation appeared only briefly, if at all. Yet Miller’s icon status has endured, kept alive with human interest stories about fans sending cartons of Marlboros to Falluja, interviews with the Marine’s proud mother and earnest discussions about whether smoking might reduce Miller’s effectiveness as a fighting machine.

Impunity–the perception of being outside the law–has long been the hallmark of the Bush regime. What is alarming is that it appears to have deepened since the election, ushering in what can best be described as an orgy of impunity. In Iraq, US forces and their Iraqi surrogates are assaulting civilian targets and openly attacking doctors, clerics and journalists who have dared to count the bodies. At home, impunity has been made official policy with Bush’s nomination of Alberto Gonzales–the man who personally advised the President in his infamous “torture memo” that the Geneva Conventions are “obsolete”–as Attorney General.

This kind of defiance cannot simply be explained by Bush’s win. There has to be something in how he won, in how the election was fought, that gave this Administration the distinct impression that it had been handed a “get out of the Geneva Conventions free” card. That’s because the Administration was handed precisely such a gift–by John Kerry.

In the name of “electability,” the Kerry campaign gave Bush five months on the campaign trail without ever facing serious questions about violations of international law. Fearing he would be seen as soft on terror and disloyal to US troops, Kerry stayed scandalously silent about Abu Ghraib and Guantánamo Bay. When it became clear that fury would rain down on Falluja as soon as the polls closed, Kerry never spoke out against the plan, or against the illegal bombings of civilian areas that took place throughout the campaign. Even after The Lancet published its landmark study estimating that 100,000 Iraqis had died as a result of the invasion and occupation, Kerry repeated his outrageous (and frankly racist) claim that Americans “have borne 90 percent of the casualties in Iraq.” His unmistakable message: Iraqi deaths don’t count. By buying the highly questionable logic that Americans are incapable of caring about anyone’s lives but their own, the Kerry campaign and its supporters became complicit in the dehumanization of Iraqis, reinforcing the idea that some lives are insufficiently important to risk losing votes over. And it is this morally bankrupt logic, more than the election of any single candidate, that allows these crimes to continue unchecked.

The real-world result of all the “strategic” thinking is the worst of both worlds: It didn’t get Kerry elected and it sent a clear message to the people who were elected that they will pay no political price for committing war crimes. And this is Kerry’s true gift to Bush: not just the presidency, but impunity. You can see it perhaps best of all in the Marlboro Man in Falluja, and the surreal debates that swirl around him. Genuine impunity breeds a kind of delusional decadence, and this is its face: a nation bickering about smoking while Iraq burns.