Almost everyone on the planet except supporters of the Bush administration believe that the U.S. has tortured detainees, both at Abu Ghraib and Guantanamo, all over Iraq and Afghanistan, as well as by deliberately flying them to third countries for torture sessions. Do dead men lie? People are actually dying of this torture. And many of the detainees are innocent people who were in the wrong place at the wrong time and just got swept up. Only someone with their head in the sand all the way up to their (everyone knows the word) could believe otherwise at this point. Whether you believe torture is justified under these circumstances is another debate entirely, of course. A complete report from Human Rights Watch:
It has now been one year since the appearance of the first pictures of U.S. soldiers humiliating and torturing detainees at Abu Ghraib prison in Iraq. Shortly after the photos came out, President George W. Bush vowed that the “wrongdoers will be brought to justice.”
In the intervening months, it has become clear that torture and abuse have taken place not solely at Abu Ghraib but rather in dozens of U.S. detention facilities worldwide, that in many cases the abuse resulted in death or severe trauma, and that a good number of the victims were civilians with no connection to al-Qaeda or terrorism. There is also evidence of abuse at U.S.-controlled “secret locations” abroad and of U.S. authorities sending suspects to third-country dungeons around the world where torture was likely to occur.
To date, however, the only wrongdoers being brought to justice are those at the bottom of the chain-of-command. The evidence demands more. Yet a wall of impunity surrounds the architects of the policies responsible for the larger pattern of abuses.
As this report shows, evidence is mounting that high-ranking U.S. civilian and military leaders — including Secretary of Defense Donald Rumsfeld, former CIA Director George Tenet, Lieutenant General Ricardo Sanchez, formerly the top U.S. commander in Iraq, and Major General Geoffrey Miller, the former commander of the prison camp at Guantánamo Bay, Cuba — made decisions and issued policies that facilitated serious and widespread violations of the law. The circumstances strongly suggest that they either knew or should have known that such violations took place as a result of their actions. There is also mounting data that, when presented with evidence that abuse was in fact taking place, they failed to act to stem the abuse.
The coercive methods approved by senior U.S. officials and widely employed over the last three years include tactics that the United States has repeatedly condemned as barbarity and torture when practiced by others. Even the U.S. Army field manual condemns some of these methods as torture.
Although much relevant evidence remains secret, a series of revelations over the past twelve months, brought together here, already makes a compelling case for a thorough, genuinely independent investigation of what top officials did, what they knew, and how they responded when they became aware of the widespread nature of the abuses.
We know, for example, that the coercive interrogation methods approved by Secretary of Defense Donald Rumsfeld for use on prisoners at Guantánamo — including the use of guard dogs to induce fear in prisoners, “stress” techniques such as forced standing and shackling in painful positions, and removing their clothes — “migrated to Afghanistan and Iraq, where they were neither limited nor safeguarded,” and contributed to the widespread and systematic torture and abuse at U.S. detention centers there. Inquiries established by the U.S. Department of Defense itself have shown as much, though they did not explicitly say so.
We know that some detainees in the “global war on terror” have even been “disappeared” after entering U.S. custody: the U.S. Central Intelligence Agency (CIA) continues to hold al-Qaeda suspects in prolonged incommunicado detention in “secret locations,” reportedly outside the United States, with no notification to their families, no access to the International Committee of the Red Cross (ICRC) or oversight of any sort of their treatment, and in some cases no acknowledgement that they are even being held. It is widely reported that some of these “disappeared detainees” have been tortured through techniques such as “waterboarding,” in which the prisoner’s head is submerged into water or covered with a wet cloth until he believes that he is drowning.
We also know that some 100-150 detainees have been “rendered” by the United States for detention and interrogation by governments in the Middle East such as Syria and Egypt, which, according to the U.S. State Department, practice torture routinely. Such rendition is, again, a violation of U.S. and international law. In an increasing number of cases, there is now credible evidence that rendered detainees have in fact been tortured.
Despite these revelations and findings, the United States has not engaged in a serious process of accountability. Officials have denounced the most egregious abuses, rhetorically reaffirmed the U.S. commitment to uphold the law and respect human rights, and belatedly opened a number of prosecutions for crimes committed against detainees in Afghanistan and Iraq. To date, however, with the exception of one major personally implicated in abuse, only low-ranking soldiers — privates and sergeants — have been called to account.
While there are obviously steep political obstacles in the way of investigating a sitting defense secretary and other high-ranking officials, the nature of crimes is so serious, and mounting evidence of wrongdoing is now so voluminous, that it would be an abdication of responsibility for the United States not to push this to the next level.
The Price of Impunity
Unless those who designed or authorized the illegal policies are held to account, all the protestations of “disgust” at the Abu Ghraib photos by President George W. Bush1 and others will be meaningless. If there is no real accountability for these crimes, for years to come the perpetrators of atrocities around the world will point to the U.S.’s treatment of prisoners to deflect criticism of their own conduct.
Indeed, when a government as dominant and influential as the United States openly defies laws against torture, it virtually invites others to do the same. Washington’s much-needed credibility as a proponent of human rights was damaged by the torture revelations and will be further damaged if torture continues to be followed by complete impunity for the policy-makers.
Torture, unfortunately, can occur anywhere. What matters, and what determines whether torture is a mere aberration or state policy, is how a government responds. Secretary Rumsfeld recognized this when, shortly after the first public revelations, he “[said] to the world: Judge us by our actions. Watch how Americans, watch how a democracy deals with wrongdoing and scandal and the pain of acknowledging and correcting our own mistakes and weaknesses.” 2 Then-Secretary of State Colin Powell recognized this, too, when he told foreign leaders: “Watch America. Watch how we deal with this. Watch how America will do the right thing.”3
Regrettably, however, the United States is not doing the right thing. Rather, it is doing what dictatorships do the world over when their abuses are discovered — loudly proclaiming its respect for human rights while covering up and shifting blame downwards to low-ranking officials and “rogue actors.”
Official Responses to Date
To the extent that officials have addressed the issue of accountability for the pattern of abuse, they have either argued that the military justice system must be given time to run its course, or they have pointed to the many Department of Defense and related investigations that have been undertaken.4
While it is true that the Pentagon established no fewer than seven investigations in the wake of Abu Ghraib, not one has had the independence or the breadth to get to the bottom of the prisoner-abuse issue. All but one involved the military investigating itself, and was focused on only one aspect or another of the treatment of detainees. None took on the task of examining the role of civilian leaders who might have had ultimate authority over detainee treatment policy. None looked at the issue of renditions. The CIA has reportedly also initiated a number of self-investigations, but no details have been made public.
What is more, these investigations effectively defined detainee abuse as any treatment not approved by higher authorities. To the Pentagon’s investigators, treatment that followed approved policies and techniques could not, by definition, have been torture. With this logical sleight of hand, they thus rendered themselves incapable of finding any connections between policies approved by senior officials and acts of abuse in the field. But that does not mean such connections did not exist.
Grounds for Investigation
This report provides a new look at the evidence made public to date about the role played by senior leaders most responsible for setting U.S. interrogation policies, including Secretary Rumsfeld, CIA Director Tenet, Gen. Sanchez, and Gen. Miller. Human Rights Watch expresses no opinion about the ultimate guilt or innocence of these or other officials, particularly because so much evidence has been withheld and so many questions remain unanswered. We also do not purport to offer a comprehensive account of the possible culpability of these men, let alone a legal brief. More evidence is needed for that. What we do conclude, a conclusion that we believe is compelled by the evidence, is that a criminal investigation is warranted with respect to each.
Secretary Rumsfeld may bear legal liability for war crimes and torture by U.S. troops in Afghanistan, Iraq, and Guantánamo under the doctrine of “command responsibility” — the legal principle that holds a superior responsible for crimes committed by his subordinates when he knew or should have known that they were being committed but fails to take reasonable measures to stop them. Having created the conditions for U.S. troops to commit war crimes and torture by sidelining and disparaging the Geneva Conventions, approving interrogation techniques for Guantánamo that violated the Geneva Conventions and the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention against Torture”), and hiding detainees from the ICRC, Secretary Rumsfeld should have been alert to the possibility that troops would commit these crimes.
Indeed, from the early days of the war in Afghanistan, Secretary Rumsfeld must have been on notice through briefings, ICRC reports, human rights reporting, and press accounts that some U.S. troops were committing war crimes and acts of torture. Nevertheless, there is no indication that at any time over a three-year period of mounting evidence of abuse did he exert his authority and warn those under his command that the mistreatment of prisoners must stop. Had he done so, many of the crimes committed by U.S. forces certainly could have been avoided.
Secretary Rumsfeld might also, in addition to command responsibility, bear direct legal liability as the instigator of crimes against detainees if the illegal interrogation techniques that he approved for Guantánamo were actually used to inflict inhumane treatment on detainees there before he rescinded his blanket approval and required that he be consulted before the techniques were used. Similarly, if Secretary Rumsfeld approved a secret program that encouraged physical coercion and sexual humiliation of Iraqi prisoners, as alleged by the journalist Seymour Hersh, Secretary Rumsfeld would bear direct legal liability.
Under George Tenet’s direction, and reportedly with his specific authorization, the CIA is said to have tortured detainees using waterboarding and by withholding medicine. Other tactics reportedly used include feigning suffocation, “stress positions,” light and noise bombardment, sleep deprivation, and making a detainee believe that he was being interrogated by a government known to practice torture. Under Director Tenet’s direction, the CIA also: “disappeared” detainees, holding them in long-term incommunicado detention in secret locations without informing or letting anybody know about their fate or whereabouts; “rendered” detainees to countries in which they were apparently tortured; hid detainees from the ICRC; and transferred detainees out of Iraq for interrogation in violation of the Geneva Conventions.
Lt. Gen. Ricardo Sanchez, the top U.S. commander in Iraq with command responsibility for Abu Ghraib and other detention centers in Iraq, approved illegal interrogation methods — again including the use of guard dogs to frighten prisoners — which were then applied by soldiers at Abu Ghraib. As reports of abuse mounted, Gen. Sanchez failed to intervene to stop soldiers under his direct command from commissioning war crimes and torture. This potentially exposes him to liability under the command responsibility doctrine.
Gen. Geoffrey Miller, as commander at Guantánamo Bay, may bear responsibility for the war crimes and acts of torture and other inhuman treatment of detainees that took place there, particularly since the tightly-controlled nature of that prison camp made it likely that the commander was acutely aware of what his troops were doing.
There is also evidence that other officers may have been complicit in the crimes. For the crimes at Abu Ghraib alone, such individuals include Major General Walter Wojdakowski, Brigadier General Janis Karpinski, Major General Barbara Fast, Colonel Marc Warren, Colonel Stephen Boltz, Colonel Thomas Pappas, and Lieutenant Colonel Stephen L. Jordan. This list is not intended to be exhaustive.
The material compiled in this report is drawn from publicly available evidence including the official inquiries described above, Human Rights Watch’s own field reports, press accounts, and documents declassified by the government or released pursuant to litigation under the Freedom of Information Act (FOIA).
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[1] Thom Shanker and Jacques Steinberg, “Bush Voices ‘Disgust’ at Abuse of Iraqi Prisoners,” The New York Times, May 1, 2004.
[2]Donald Rumsfeld, “Congressional Testimony of Secretary of Defense Donald Rumsfeld,” Hearing of the Senate Armed Services Committee on Mistreatment of Iraqi Prisoners, Federal News Service, May 7, 2004.
[3]“Abuse Scandal ‘Terrible’ for U.S., Powell Concedes,” MSNBC, May 17, 2004 [online], msnbc.msn.com.
[4] On March 29, 2005, Secretary Rumsfeld was asked on National Public Radio (NPR) “whether it’s right or wrong … that no senior military official has been disciplined, fired or prosecuted for the allegations of abuse and torture in Iraq and elsewhere?” The interview continued:
Rumsfeld: I mean I think the fact that the United States has had over nine or ten or eleven different investigations, there have been over 300 investigations or prosecutions, in some cases convictions. Not 300 convictions. But there have been people of varying ranks that have been punished for wrongdoing.
NPR: Mostly lower ranks.
Rumsfeld: The Inspector General of the Army still has the obligation of looking at the people in the more senior ranks and making a judgment and recommendation or not recommendation to his superiors and that process is yet to play out.
(“Secretary Rumsfeld Interview with National Public Radio’s Steve Inskeep for ‘Morning Edition,’” news transcript, U.S. Department of Defense, March 29, 2005 [online], defenselink.mil
Secretary Rumsfeld had a similar exchange on NBC’s “Meet the Press” the previous month:
NBC: Did you think you had done something wrong?
Rumsfeld: No. Obviously the country has to be deeply concerned that people were not treated right. And I was secretary of defense when that happened. And we’ve had eight or 10 investigations. We have had dozens of criminal trials, and people have pled guilty to doing things they shouldn’t do. And obviously you just feel terrible about that. That is not the way our country behaves. And it was a most unfortunate thing that it happened. And I was secretary of Defense [sic].
(“Secretary Rumsfeld Interview with NBC, Meet the Press,” news transcript, U.S. Department of Defense, February 6, 2005 [online], defenselink.mil
Recommendations
Recommendation to the U.S. Attorney General
Appoint a special counsel to investigate any U.S. officials — no matter their rank or position — who participated in, ordered, or had command responsibility for war crimes or torture, or other prohibited ill-treatment against detainees in U.S. custody. The special counsel should have, in accordance with U.S. regulations, full power and resources, and independent authority to exercise all investigative and prosecutorial functions necessary for the completion of the task. He or she should be a lawyer with no current connection to the U.S. government, a reputation for integrity and impartiality, and experience sufficient to ensure that the investigation will be conducted ably.
A special counsel is necessary because the prospect for accountability through ordinary avenues is severely compromised. U.S. Attorney General Alberto Gonzales who, as head of the Department of Justice, sits atop the prosecutorial machinery, was himself deeply involved in the policies leading to these alleged crimes, and thus may not only have a conflict of interest but also he, himself, may have a degree of complicity in those abuses. Similarly, Secretary Rumsfeld sits atop the military justice system, thus all but ruling out accountability though that channel for policies he set in motion. U.S. Department of Justice regulations call for the appointment of a “special counsel” when a conflict exists and the public interest warrants a prosecutor from outside the government.
To allow the special prosecutor to have full authority to investigate and prosecute both federal law and Uniform Code of Military Justice violations, the Secretary of Defense should appoint a consolidated convening authority for all armed services, to cooperate with the appointed civilian special prosecutor.
Recommendation to the U.S. Congress
Create a special commission, along the lines of the 9/11 commission, to investigate the issue of prisoner abuse, including all the issues described above. Such a commission would hold hearings, have full subpoena power, and be empowered to recommend the creation of a special prosecutor to investigate possible criminal offenses, if the Attorney General had not yet named one. A special commission could also compel evidence that the government has continued to conceal, including President Bush’s reported authorization for the CIA to set up secret detention facilities and to “render” suspects to other countries, and details on Secretary Rumsfeld’s role in the chain of events leading to the worst period of abuses at Abu Ghraib.
I. Official Sanction of Crimes against Detainees
On April 28, 2004, the first pictures were broadcast of U.S. soldiers humiliating and torturing detainees at Abu Ghraib prison in Iraq. The pictures have since taken on iconic status: an Iraqi detainee standing on a box draped in a hood and poncho, his arms outstretched with wires attached to his extremities and genitals; a bored-looking female American soldier holding a naked, Iraqi detainee on the floor at the end of a leash; naked, and even dead, Iraqi detainees in a variety of positions with American soldiers laughing and flashing thumbs up.
When the pictures first appeared, the United States government sought to portray the abuse as an isolated incident, the work of a few “bad apples” acting without orders. On May 4, 2004, U.S. Secretary of Defense Donald H. Rumsfeld, in a formulation that would be used over and over again by U.S. officials, described the abuses at Abu Ghraib as “an exceptional, isolated” case. In a nationally televised address on May 24, 2004, President Bush spoke of “disgraceful conduct by a few American troops who dishonored our country and disregarded our values.”
While some of the acts portrayed in the pictures may be attributed to individual or group sadism, the widening record reveals that the only truly exceptional aspect of the horrors at Abu Ghraib was that they were photographed. Abu Ghraib was, in fact, only the tip of the iceberg. Detainees in U.S. custody in Afghanistan had experienced beatings, prolonged sleep and sensory deprivation, forced nakedness and humiliation as early as 2001. Comparable — and, indeed, more extreme — cases of torture and inhuman treatment had been extensively documented by the International Committee of the Red Cross and by journalists at numerous locations in Iraq outside Abu Ghraib. In other parts of the world, detainees in U.S. custody have been “disappeared” or “rendered” to countries where torture is routine.
As became increasingly obvious in the months after the photos came to public light, this pattern of abuse did not result from the acts of individual soldiers who broke the rules. It resulted from decisions made by the Bush administration to bend, ignore, or cast rules aside. Administration policies created the climate for Abu Ghraib and for abuse against detainees worldwide in a number of ways.5
Changing the paradigm
First, in the aftermath of the September 11, 2001 attacks on the United States, the Bush administration determined that winning the war on terror required that the United States circumvent fundamental principles of human rights and humanitarian law.
On September 16, 2001, Vice President Dick Cheney said in a television interview on NBC’s “Meet the Press”:
We also have to work, though, sort of the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.
In prepared testimony to Congress in 2002, Cofer Black, former director of the CIA’s counterterrorist unit, said, “There was a before-9/11 and an after-9/11. After 9/11 the gloves came off.”6
Senior administration lawyers, led by then-White House Counsel, and current Attorney General, Alberto Gonzales, in a series of legal memoranda written in late 2001 and early 2002 helped build the framework for circumventing international law restraints on prisoner interrogation.
In particular, these memos argued that the Geneva Conventions did not apply to detainees from the Afghanistan war. Mr. Gonzales urged the president to declare the Taliban forces in Afghanistan as well as al-Qaeda outside the coverage of the Geneva Conventions. This, he said in a memo dated January 25, 2002, would preserve the U.S.’s “flexibility” in the war against terrorism. Mr. Gonzales wrote that the war against terrorism, “in my judgment renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” Gonzales also warned that U.S. officials involved in harsh interrogation techniques could potentially be prosecuted for war crimes under U.S. law if the Conventions applied.7 Gonzales said that “it was difficult to predict with confidence” how U.S. prosecutors might apply the Geneva Conventions’ strictures against “outrages against personal dignity” and “inhuman treatment” in the future, and argued that declaring that Taliban and al-Qaeda fighters did not have Geneva Convention protections “substantially reduces the threat of domestic criminal prosecution.” Gonzales did convey to President Bush the worries of military leaders that these policies might “undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat and could introduce an element of uncertainty in the status of adversaries.” Those warnings were ignored, but proved justified.
The Gonzales memorandum drew a strong objection the next day from Secretary of State Colin L. Powell. Secretary Powell argued that declaring the conventions inapplicable would “reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.”8
On February 7, 2002, President Bush announced that while the U.S. government would apply the “principles of the Third Geneva Convention” to captured members of the Taliban, it would not consider any of them to be prisoners of war (POWs) because, in the U.S. view, they did not meet the requirements of an armed force under that Convention. As for captured members of al-Qaeda, he said that the U.S. government considered the Geneva Conventions inapplicable but would nonetheless treat the detainees “humanely.”9
These decisions essentially reinterpreted the Geneva Conventions to suit the administration’s purposes. Belligerents captured in the conflict in Afghanistan should have been treated as POWs unless and until a competent tribunal individually determined that they were not eligible for POW status. Taliban soldiers should have been accorded POW status because they openly fought for the armed forces of a state party to the Convention. Al-Qaeda detainees would likely not be accorded POW status but the Conventions and customary law still provide explicit protections to all persons held in an armed conflict, even if they are not entitled to POW status. Even persons who are not entitled to the protections of the 1949 Geneva Conventions are protected by the “fundamental guarantees” described in article 75 of Protocol I of 1977 to the Geneva Conventions. The United States has long considered article 75 to be part of customary international law (a widely supported state practice accepted as law). Article 75 prohibits murder, “torture of all kinds, whether physical or mental,” “corporal punishment,” and “outrages upon personal dignity, in particular humiliating and degrading treatment, … and any form of indecent assault.”10
Approval of Mistreatment and Torture
Second, senior officials approved illegal coercive methods of interrogation.
Army Field Manual 34-52 (“FM 34-52”) on intelligence interrogation has long served as the reference for the types of interrogation techniques considered permissible and effective, in accordance with the Geneva Conventions. As the first detainees were being captured, however, the CIA sought the opinion of the Department of Justice Office of the Legal Counsel (OLC) as to what additional interrogation techniques would be allowable.11
The OLC — in a now-infamous memo prepared by Assistant Attorney General Jay S. Bybee (now a federal appeals court judge) — replied on August 1, 2002 that torturing al-Qaeda detainees in captivity abroad “may be justified,” and that international laws against torture “may be unconstitutional if applied to interrogations” conducted in the war on terrorism. The memo added that the doctrines of “necessity and self-defense could provide justifications that would eliminate any criminal liability” on the part of officials who tortured al-Qaeda detainees. The memo also took an extremely narrow view of which acts might constitute torture. It referred to seven practices that U.S. courts have ruled to constitute torture: severe beatings with truncheons and clubs, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a prisoner to watch the torture of another person. It then advised that “interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law.” The memo asserted that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The memo also suggested that “mental torture” only included acts that resulted in “significant psychological harm of significant duration, e.g., lasting for months or even years.”12
A few months later, in October 2002, the Guantánamo authorities sent a letter to Secretary Rumsfeld requesting permission to employ harsher interrogation techniques on prisoners. The requested techniques were reviewed by Department of Defense General Counsel William J. Haynes, who recommended that Secretary Rumsfeld approve 16 of the requested techniques for use in interrogations at Guantánamo. On December 2, 2002, Secretary Rumsfeld approved this recommended list, which included such techniques as hooding, stress positions, isolation, stripping, deprivation of light, removal of religious items, forced grooming, and use of dogs.13 As described below, these techniques, which violate not only the Geneva Conventions but the laws against torture and other prohibited ill-treatment, later “migrated” to Iraq and Afghanistan where they were regularly applied to detainees.
On January 15, 2003, following criticism from the Navy general counsel, Secretary Rumsfeld rescinded the December 2 guidelines, stating that harsher techniques in those guidelines could be used only with his approval.14 Secretary Rumsfeld then ordered the establishment of a working group to examine which interrogation techniques should be allowed for prisoners in Guantánamo.15 The portions of the working group’s report that have been made available make clear that in reviewing interrogation techniques, they relied heavily on the logic of the president’s February 7, 2002 memo regarding the applicability of the Geneva Conventions to al-Qaeda and Taliban prisoners, as well as the August 1, 2002 OLC memo on evading sanction for interrogation techniques that might be deemed illegal under treaty obligations and U.S. law.16 The results of this study led to Secretary Rumsfeld’s promulgation, on April 16 2003, of a memo outlining techniques that could only be applied to interrogations of “unlawful combatants” held at Guantánamo.17
In addition, the Justice Department and the White House apparently gave the CIA the authority to use additional techniques, such as “waterboarding,” in which the detainee is strapped down, forcibly pushed under water, and made to believe he might drown.18 The president also apparently authorized the CIA to “disappear” certain prisoners, placing leading al-Qaeda suspects in long-term secret incommunicado detention in “undisclosed locations.”19
After the Abu Ghraib photos were made public, the United States repudiated the August 1, 2002 OLC memo and later replaced it with a revised memo.20 In January 2005, however, Attorney General-designate Alberto Gonzales claimed in a written response during his confirmation hearings that CAT’s prohibition on cruel, inhuman or degrading (CID) treatment does not apply to U.S. personnel in the treatment of non-citizens abroad, indicating that no law would prohibit the CIA from engaging in CID treatment when it interrogates non-Americans outside the United States.21
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[5] See Human Rights Watch, “The Road to Abu Ghraib,” A Human Rights Watch Report, June 2004 [online], hrw.org.
[6] Cofer Black, testimony, Hearing before the U.S. House and Senate Intelligence Committees on Pre-9/11 Intelligence Failures, 107th Congress, p. 6 (2002).
[7]Gonzales was referring to prosecution under the War Crimes Act of 1996 (18 U.S.C. Section 2441), which punishes the commission of a war crimes and other serious violations of the laws of war, including torture and humiliating or degrading treatment, by or against a U.S. national, including members of the armed forces.
[8]From Colin L. Powell to Counsel to the President, “Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan,” memorandum, January 26, 2002. The memorandum can be found in Karen J. Greenberg and Joshua L. Dratel, ed., The Torture Papers: The Road to Abu Ghraib (Cambridge: University of Cambridge Press, 2005), p. 122.
[9] President George W. Bush to the Vice President, Secretary of State, Secretary of Defense, Attorney General, Chief of Staff to the President, Director of Central Intelligence, Assistant to the President for National Security Affairs and Chairman of the Joint Chiefs of Staff, memorandum, “Humane Treatment of al Qaeda and Taliban Detainees,” February 7, 2002. The memorandum can be found in Karen J. Greenberg and Joshua L. Dratel, ed., The Torture Papers: The Road to Abu Ghraib (Cambridge: University of Cambridge Press, 2005), p. 134.
[10] See Human Rights Watch, “Summary of International and U.S. Law Prohibiting Torture and
Other Ill-treatment of Persons in Custody,” A Human Rights Watch Backgrounder, May 24, 2004 [online],
hrw.org. This view is shared by the ICRC and other international observers. See, e.g., International Committee of the Red Cross (ICRC), “Geneva Convention on Prisoners of War,” February 9, 2002 [online], icrc.org (“International Humanitarian Law foresees that the members of armed forces as well as militias associated to them which are captured by the adversary in an international armed conflict are protected by the Third Geneva Convention. There are divergent views between the United States and the ICRC on the procedures which apply on how to determine that the persons detained are not entitled to prisoner of war status.”); See also High Commissioner Mary Robinson, “Statement of High Commissioner for Human Rights on Detention of Taliban and Al Qaida Prisoners at US Base in Guantánamo Bay,” January 16, 2002 [online], unhchr.ch (“All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949.”); International Commission of Jurists (ICJ), “Rule of Law Must Be Respected in Relation to Detainees in Guantánamo Bay,” January 17, 2002 [online], icj.org./news.php3?id_article=2612&lang=en; Secretary Rumsfeld dismissed the criticism of President Bush’s decision as “isolated pockets of international hyperventilation” (“High Taliban Official in U.S. Custody,” Associated Press, February 9, 2002).
[11] The Honorable James R. Schlesinger, Hon. Harold Brown, Hon. Tillie K. Fowler, Gen. Charles A. Homer, and Dr. James A. Blackwell, Jr., Final Report of the Independent Panel to Review DoD Detention Operations (“Schlesinger report”), August 2004, pp. 6-7.
[12]Jay S. Bybee to Alberto R. Gonzales, Counsel to the President, memorandum, “Standards for Conduct of Interrogation under 18 U.S.C. Sections 2340-2340A,” August 1, 2002 [online], news.findlaw.com (This memorandum has since been repudiated by the administration).
[13] William J. Haynes II to the Secretary of Defense, memorandum, “Counter-Resistance Techniques,” November 27, 2002.
[14] Schlesinger report, p. 7.
[15] Ibid., p. 8.
[16] “Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations,” U.S. Department of Defense, Center for Defense Information: International Security Law Project, March 6, 2003 [online], cdi.org.
[17] Schlesinger report, p. 8. (The memo no longer authorized stress positions, stripping and the use of dogs. It did allow isolation, removing privileges from detainees, and “attacking or insulting the ego of a detainee.”)
[18] Dana Priest, “CIA Puts Harsh Tactics on Hold,” The Washington Post, June 27, 2004; James Risen, David Johnston and Neil A. Lewis, “Harsh CIA Methods Cited in Top Qaeda Interrogations,” The New York Times, May 13, 2004.
[19]John Barry, Michael Hirsh and Michael Isikoff, “The Roots of Torture,” Newsweek, May 24, 2004 [online], msnbc.msn.com (“According to knowledgeable sources, the president’s directive authorized the CIA to set up a series of secret detention facilities outside the United States, and to question those held in them with unprecedented harshness.”)
[20] Daniel Levin, Acting Assistant Attorney General, to James B Comey, Deputy Attorney General, memorandum, “Legal Standards Applicable under 18 U.S.C. §§ 2340-2340A,” December 30, 2004 [online], usdoj.gov.
[21] Eric Lichtblau, “Gonzales Says Humane-Policy Order Doesn’t Bind C.I.A.,” The New York Times, January 19, 2005, p. A17.
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II. A World of Abuse
As a consequence of these policies, which were approved at least by cabinet-level officials of the U.S. government, the United States has been implicated in crimes against detainees across the world — in Afghanistan, Iraq, Guantánamo Bay, Cuba, and in secret detention centers, as well as in countries to which suspects have been rendered. At least 26 prisoners are said to have died in American custody in Iraq and Afghanistan since 2002 in what Army and Navy investigators have concluded or suspected were acts of criminal homicide.22 Overall, according to a compilation by the Associated Press, at least 108 people have died in U.S. custody in Afghanistan and Iraq.23
What follows is a brief summary of what is now known:
Afghanistan
Nine detainees are now known to have died in U.S. custody in Afghanistan — including four cases already determined by Army investigators to be murder or manslaughter. Former detainees have made scores of other claims of torture and other mistreatment.
In March 2004, prior to the publication of the Abu Ghraib photos, Human Rights Watch released an extensive report documenting cases of U.S. military personnel arbitrarily detaining Afghan civilians, using excessive force during arrests of non-combatants, and mistreating detainees. Detainees held at military bases in 2002 and 2003 described to Human Rights Watch being beaten severely by both guards and interrogators, deprived of sleep for extended periods, and intentionally exposed to extreme cold, as well as other inhumane and degrading treatment.24 In December 2004, Human Rights Watch raised additional concerns about detainee deaths, including one alleged to have occurred as late as September 2004.25 In March 2005, The Washington Post uncovered another death that occurred in CIA custody, noting that the case was under investigation but that the CIA officer implicated had been promoted.26
Guantánamo Bay, Cuba
There is growing evidence that detainees at Guantánamo have suffered torture and other cruel, inhuman, or degrading treatment. Reports by FBI agents who witnessed detainee abuse — including the forcing of chained detainees to sit in their own excrement — have recently emerged, adding to the statements of former detainees describing the use of painful stress positions, extended solitary confinement, use of military dogs to threaten them, threats of torture and death, and prolonged exposure to extremes of heat, cold and noise.27 Videotapes of riot squads subduing suspects reportedly show the guards punching some detainees, tying one to a gurney for questioning and forcing a dozen to strip from the waist down.28 Ex-detainees said they had been subjected to weeks and even months in solitary confinement — which was at times either suffocatingly hot or cold from excessive air conditioning — as punishment for failure to cooperate during interrogations or for violations of prison rules.29
According to press reports in November 2004, the International Committee of the Red Cross told the U.S. government in confidential reports that its treatment of detainees has involved psychological and physical coercion that is “tantamount to torture.”30
Iraq
Harsh and coercive interrogation techniques such as subjecting detainees to painful stress positions and extensive sleep deprivation have been routinely used in detention centers throughout Iraq. A panel appointed by the Secretary of Defense noted 55 substantiated cases of detainee abuse in Iraq, plus twenty instances of detainee deaths still under investigation.31 The earlier investigative report of Maj. Gen. Antonio Taguba found “numerous incidents of sadistic, blatant, and wanton criminal abuses” constituting “systematic and illegal abuse of detainees” at Abu Ghraib.32 Another Pentagon report documented 44 allegations of such war crimes at Abu Ghraib.33 An ICRC report concluded that in military intelligence sections of Abu Ghraib, “methods of physical and psychological coercion used by the interrogators appeared to be part of the standard operating procedures by military intelligence personnel to obtain confessions and extract information.”34
CIA “Disappearances” and Torture
At least eleven al-Qaeda suspects, and most likely many more, have “disappeared” in U.S. custody. The CIA is holding the detainees in undisclosed locations, with no notification to their families, no access to the International Committee of the Red Cross or oversight of any sort of their treatment, and in some cases, no acknowledgement that they are even being held, 35 effectively placing them beyond the protection of the law. One detainee, Khalid Shaikh Muhammed (a presumed architect of the 9/11 attacks), was reportedly subjected to waterboarding. It was also reported that U.S. officials initially withheld painkillers from detainee Abu Zubayda, who was shot during his capture, as an interrogation device.36
“Extraordinary Renditions”
The CIA has regularly transferred detainees to countries in the Middle East, including Egypt and Syria, known to practice torture routinely. There are reportedly 100 to 150 cases of such “extraordinary renditions.”37 In one case, Maher Arar, a Syrian-born Canadian in transit in New York, was detained by U.S. authorities and sent to Syria. He was released without charge from Syrian custody ten months later and has described repeated torture, often with cables and electrical cords.In another case, a U.S. government-leased airplane transported two Egyptian suspects who were blindfolded, hooded, drugged, and diapered by hooded operatives, from Sweden to Egypt. There the two men were held incommunicado for five weeks and have given detailed accounts of the torture they suffered (e.g. electric shocks), including in Cairo’s notorious Tora prison.38 In a third case, Mamdouh Habib, an Egyptian-born Australian in American custody, was transported from Pakistan to Afghanistan to Egypt to Guantánamo Bay. Now back home in Australia, Habib alleges that he was tortured during his six months in Egypt with beatings and electric shocks, and hung from the walls by hooks.39
“Reverse Renditions”
Detainees arrested by foreign authorities in non-combat and non-battlefield situations have been transferred to the United States without basic protections afforded to criminal suspects. `Abd al-Salam `Ali al-Hila, a Yemeni businessman captured in Egypt, for instance, was handed over to U.S. authorities and “disappeared” for more than a year-and-a-half before being sent to Guantánamo Bay Naval Base in Cuba.40 Six Algerians held in Bosnia were transferred to U.S. officials in January 2002 (despite a Bosnian high court order to release them) and were sent to Guantánamo.
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[22] Douglas Jehl and Eric Schmitt, “The Conflict in Iraq: Detainees; U.S. Military Says 26 Inmate Deaths May Be Homicide,” The New York Times, March 16, 2005, p. A1.
[23] “US Detainee Death Toll ‘Hits 108’” BBC News World Edition, March 16, 2005 [online], news.bbc.co.uk.
[24] See Human Rights Watch, “Enduring Freedom: Abuses by U.S. Forces in Afghanistan,” A Human Rights Watch Report, March 2004 [online], hrw.org.
[25] Human Rights Watch to Secretary of Defense Donald Rumsfeld, open letter, December 13, 2004 [online], hrw.org.
[26] Dana Priest, “CIA Avoids Scrutiny of Detainee Treatment; Afghan’s Death Took Two Years to Come to Light,” The Washington Post, March 3, 2005.
[27]See Human Rights Watch, “Guantánamo: Detainee Accounts,” A Human Rights Watch Backgrounder, October 2004 [online], hrw.org; Center for Constitutional Rights, “Composite Statement: Detention in Afghanistan and Guantanamo Bay; Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed,” August 4, 2004 [online], ccr-ny.org.
[28] Paisley Dodds, “Guantánamo Tapes Show Teams Punching, Stripping Prisoners,” Associated Press, February 1, 2005.
[29]See Human Rights Watch, “Guantánamo: Detainee Accounts,” A Human Rights Watch Backgrounder, October 2004 [online], hrw.org; Center for Constitutional Rights, “Composite Statement: Detention in Afghanistan and Guantanamo Bay; Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed,” August 4, 2004 [online], ccr-ny.org.
[30] Neil A. Lewis, “Red Cross Finds Detainee Abuse in Guantánamo,” The New York Times, November 30, 2004, p. A1.
[31] Schlesinger report, pp. 12-13.
[32] Major General Antonio M. Taguba, Article 15-6 Investigation of the 800th Military Police Brigade (“Taguba report”), p. 16.
[33] Major George R. Fay, Article 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade (“Fay report”), p. 7.
[34] ICRC, Report of the International Committee of the Red Cross (ICRC) on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq during Arrest, Internment and Interrogation, February 2004, para. 24. A copy of the report, whose existence was first disclosed by The Wall Street Journal on May 7, 2004, can be found at health-now.org.
[35] See Human Rights Watch, “The United States’ ‘Disappeared’: The CIA’s Long-term ‘Ghost Detainees,’” A Human Rights Watch Briefing Paper, October 2004 [online], hrw.org; The Israeli newspaper Haaretz reported that the detainees are being held in a top-secret interrogation facility in Jordan (Yossi Melman, “CIA Holding Al-Qaida Suspects in Secret Jordanian Lockup,” Haaretz, October 13, 2004).
[36] See Human Rights Watch, “The United States’ ‘Disappeared’: The CIA’s Long-term ‘Ghost Detainees,’” A Human Rights Watch Briefing Paper, October 2004 [online], hrw.org.
[37] Douglas Jehl and David Johnston, “Rule Change Lets C.I.A. Freely Send Suspects Abroad to Jails,” The New York Times, March 6, 2005 (late edition), Section 1, p. 1.
[38] “The Broken Promise,” Kalla Fakta Program, Swedish TV4, May 17, 2004 [English transcript online], hrw.org; Craig Whitlock, “A Secret Deportation of Terror Suspects: 2 Men Reportedly Tortured in Egypt,” The Washington Post, July 25, 2004 (These cases and nine others are compiled from news reports in Association of the Bar of the City of New York and Center for Human Rights and Global Justice, Torture by Proxy: International and Domestic Law Applicable to “Extraordinary Renditions” (New York: ABCNY & NYU School of Law, 2004)).
[39] Raymond Bonner, “Australian’s Long Path in the U.S Antiterrorism Maze,” The New York Times, January 29, 2005 (late edition), p. A4.
[40] Human Rights Watch, “Cairo to Kabul to Guantánamo,” A Human Rights Watch Backgrounder, March 2005 [online], hrw.org.
III. Getting Away with Torture
From the earliest days of the war in Afghanistan and the occupation of Iraq, top U.S. government officials have been aware of allegations of abuse. Yet, until the publication of the Abu Ghraib photographs forced action, many Bush administration officials took at best a “see no evil, hear no evil” approach to all reports of detainee mistreatment, including those described above, while others were ordering or acquiescing in the abuses.
While reports of abuse had already been coming in for a year, it was a seminal article in The Washington Post on December 26, 2002 that provided a wake-up call on U.S. tactics in the “global war on terror.”41 Citing unnamed U.S. officials, it reported that detainees in Afghanistan were subject to “awkward, painful positions and deprived of sleep with a 24-hour bombardment of lights — subject to what are known as ‘stress and duress’ techniques.” The Post also reported being told by U.S. officials that “[t]housands have been arrested and held with U.S. assistance in countries known for brutal treatment of prisoners” and described the rendition of captured al-Qaeda suspects from U.S. custody to other countries where they are tortured or otherwise mistreated. One official was quoted as saying, “We don’t kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them.”42
As Human Rights Watch Executive Director Kenneth Roth noted in releasing a letter to President Bush the next day:
The allegations made by The Washington Post put the United States on notice that acts of torture may be taking place with U.S. participation or complicity. That places a heightened duty on senior Bush administration officials to take preventive steps immediately.43
Human Rights Watch pointed out that “should senior U.S. officials become aware of acts of torture by their subordinates and fail to take immediate and effective steps to end such practices, they would be criminally liable under international law for ‘command responsibility.’”
Yet no action was taken then, nor was any action taken during two more years of mounting allegations of detainee abuse. At no time did President Bush, Secretary Rumsfeld, Director Tenet, or any other senior leader exert his authority and warn that the mistreatment of prisoners must stop. Instead, until the Abu Ghraib pictures were revealed, investigations of deaths in custody and other abuse languished. Soldiers and intelligence personnel accused of crimes, including all cases involving the killing of detainees in Afghanistan and Iraq, escaped judicial punishment.
Even after the Abu Ghraib photos, however, the United States’ reaction has been fundamentally one of damage control rather than a search for truth and accountability. This stands in marked contrast to the high-minded promises made by top U.S. officials in the wake of the revelations.
Secretary Rumsfeld, for instance, told a Congressional hearing on May 7, 2004:
Mr. Chairman, I know you join me today in saying to the world: Judge us by our actions. Watch how Americans, watch how a democracy deals with wrongdoing and scandal and the pain of acknowledging and correcting our own mistakes and weaknesses. And then after they have seen America in action — then ask those who preach resentment and hatred of America if our behavior doesn’t give the lie to the falsehood and slander they speak about our people and way of life. Ask them if the resolve of Americans in crisis and difficulty — and, yes, the heartache of acknowledging the evil in our midst — doesn’t have meaning far beyond their code of hatred.44
In a similar vein, then-Secretary of State Colin Powell said that he told foreign leaders: “Watch America. Watch how we deal with this. Watch how America will do the right thing.”45
But America is not doing the right thing. Rather than rigorously prosecuting those responsible for the policies that resulted in torture, U.S. authorities have shielded them. They have done this in two ways:
By refusing to allow an independent inquiry of prisoner abuse. Instead, the Department of Defense has established a plethora of investigations, all but one in-house, looking down the chain of command at one aspect or another of the treatment of detainees. No investigation had the independence or the breadth to get to the policies at the heart of the prisoner abuse.
By failing to undertake criminal investigations against those leaders who by commission or omission allowed the widespread criminal abuse of detainees to develop and persist. Prosecutions have commenced only against low-level soldiers and contractors. Only one officer higher than the rank of sergeant — a major personally implicated in abuse — has been charged with a crime. No civilian leader at the Pentagon, the CIA or elsewhere in the government has been charged with a crime.
In-house Investigations down the Chain of Command
In the wake of the Abu Ghraib abuses, the Pentagon established no fewer than seven investigations, summarized below.46 Almost all of them involved the military investigating itself. None of the military probes was aimed higher up the chain of command than Gen. Sanchez, the top U.S. soldier in Iraq. None of the investigations had the task of examining the role of the CIA or of civilian authorities.47
After the abuses at Abu Ghraib were reported to the chain of command, but before the photos entered the public domain, Major General Antonio M. Taguba was appointed by General John Abizaid, commander of United States Central Command (CENTCOM), at the request of Gen. Sanchez, commander of the Coalition Joint Task Force Seven (CJTF-7), to investigate the performance of the 800th Military Police (MP) Brigade,48 a portion of the personnel who staffed Abu Ghraib.49 Despite Gen. Taguba’s limited mandate, his findings were nevertheless very important in placing the acts captured on camera, as well as others, in their local context.50
Gen. Taguba reported that “numerous incidents of sadistic, blatant, and wanton criminal abuses” were inflicted on several detainees. The Taguba report described these abuses as “systemic.”51 Gen. Taguba traced the abuses in part to the recommendation of Gen. Miller on a visit from Guantánamo that detention be used as “an enabler for interrogation,” and that “the guard force be actively engaged in setting the condition for the successful exploitation of internees.”52 As a result, according to Gen. Taguba, “interrogators actively requested that MP guards set physical and mental conditions for favorable interrogation of witnesses.… [The] MP Brigade [was] directed to change facility procedures to ‘set the conditions’ for MI [military intelligence] interrogations.” The report also cited the presence of other government agencies (“OGAs”) — typically used, as here, to refer to the CIA without explicitly naming it — in the detention facilities as a factor contributing to the abuses, and first raised the issue of “ghost detainees” kept hidden from the ICRC.53
Lt. Gen. Paul T. Mikolashek, Army Inspector General, was asked to examine Army doctrine, training, and prison procedures throughout the Central Command area of operation in February 2004. After reviewing 94 confirmed cases of detainee abuse in Afghanistan and Iraq, Gen. Mikolashek somehow concluded that the abuses did not result from any policy and were not the fault of senior officers but rather were “unauthorized actions taken by a few individuals.”54 The report’s summary and conclusions blame only low-ranking soldiers for the abuses, even though its text identifies numerous problems that were obviously rooted in decisions made by senior commanders and officials. The inspector general apparently made no effort to investigate actions taken high in the chain of command, or to consider sources of information outside the military. Among the problems identified in the report were:
Troops received “ambiguous guidance from command on the treatment of detainees”;
Established interrogation policies were “not clear and contained ambiguity”;
Commanders in Iraq and Afghanistan approved interrogation techniques that went beyond Army doctrine, based in part on guidelines approved by the Secretary of Defense for use in Guantánamo;
The decision by senior commanders to rely on the Guantánamo guidelines “appears to contradict” the terms of Rumsfeld’s decision, which explicitly stated that the guidelines were applicable only to interrogations at Guantánamo; and
This led to the use of “high risk” interrogation techniques that “left considerable room for misapplication, particularly under high-stress combat conditions.”
The next two reports, the “Final Report of the Independent Panel to Review DoD [Department of Defense] Detention Operations” (“The Schlesinger report”) and the “AR 15-6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade” and “AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade” (jointly, “The Fay/Jones report,”) were released almost simultaneously in late August.
The reports contained important and disturbing information on the torture and mistreatment of prisoners at Abu Ghraib, and to a lesser extent elsewhere in Iraq and in Afghanistan. Yet both reports shied away from the logical conclusion that high-level military and civilian officials should be investigated for their role in the crimes committed at Abu Ghraib and elsewhere
The Fay/Jones inquiry was charged with examining the alleged misconduct of personnel assigned to or attached to the 205th Military Intelligence Brigade, which was in charge of the Abu Ghraib prison. Investigations began in April 2004 with Gen. George R. Fay, deputy chief of staff of the Army intelligence, as chief investigator. Fay, an insurance company executive who had been on active duty for five years, was a contributor to Republican campaigns.55 On June 17, Army Gen. Paul J. Kern, Army Materiel Command, was given oversight responsibility for the investigation, and, at his request, Acting Army Secretary Les Brownlee subsequently announced that Gen. Anthony R. Jones would be brought into the investigation to question Gen. Sanchez.56
Like the Taguba report, and earlier reports, the Fay/Jones report was specific to Abu Ghraib. But it finally put to rest the Bush administration claim that the abuse was the work of a few “bad apples.” The report found that military intelligence officers — not solely military police guards — played a major role in directing and carrying out the abuses at Abu Ghraib. The report listed those abuses in detail — the use of unmuzzled dogs in a “game” of making detainees urinate and defecate in fear, forced participation in group masturbation, stripping detainees of their clothes, and beatings.
The report also made clear that the illegal techniques were not limited to Iraq. “The techniques employed in [Guantánamo] included the use of stress positions, isolation for up to thirty days, removal of clothing and the use of detainees’ phobias (such as the use of dogs). […] From December 2002, interrogators in Afghanistan were removing clothing, isolating people for long periods of time, using stress positions, exploiting fear of dogs and implementing sleep and light deprivation.”57
The generals recommended punishments for the top two military intelligence officers at the prison, Col. Thomas M. Pappas and Lt. Col. Steven L. Jordan, as well as three other intelligence officers, and implicated 29 other military intelligence soldiers in at least 44 cases of abuse. The report found that Gen. Sanchez was not “directly involved” in the abuse, but faulted him and his deputy, Gen. Walter Wojdakowski, for failing “to ensure proper staff oversight of detention and interrogation operations.”58 It criticized Sanchez for his “inconsistent” and “confusing” guidelines on interrogations and said that his orders led interrogators to think that they could use guard dogs on prisoners, which they subsequently did in ways that violated the Geneva Conventions.59 But the reports failed to take the obvious but politically dangerous step of stating plainly that Gen. Sanchez and other commanders were responsible for what happened. “We did not find General Sanchez culpable but we found him responsible for the things that did or did not happen,” Gen. Paul J. Kern, who oversaw the report, told reporters.60
The Schlesinger panel was chosen by Secretary Rumsfeld on May 7, 2004 and included: former Defense Secretary James Schlesinger (Chair); Tillie Fowler, former representative from Florida; retired Air Force Gen. Charles Horner; and Harold Brown, former Secretary of Defense.The panel was asked to review Department of Defense detention operations and to advise the Secretary of Defense on the “cause of the problems and what should be done to fix them.” Issues to be examined included:
force structure, training of regular and reserve personnel, use of contractors, organization, detention policy and procedures, interrogation policy and procedures, the relationship between detention and interrogation, compliance with the Geneva Conventions, relationship with the International Committee of the Red Cross, command relationships, and operational practices.
According to Secretary Rumsfeld, the team was to “examine the pace, the breadth, the thoroughness of the existing investigations and to determine whether additional investigations or studies need to be initiated.” Rumsfeld also noted that “Issues of personal accountability will be resolved through established military justice procedures,” although he would “welcome” any information the panel developed. The panel’s unpaid executive director, James Blackwell, had reportedly done Pentagon consulting as an employee of Science Applications International Corporation of San Diego, the seventh-largest recipient of defense contract awards in fiscal 2002, with $2.1 billion.61
The Schlesinger panel — alone among the probes — interviewed top military and Pentagon officials, but otherwise conducted no independent research.
The Schlesinger panel found that the techniques that Secretary Rumsfeld had put into play “migrated” from Guantánamo to Afghanistan and Iraq. As the report put it, “Law of war policy and decisions germane to [Operation Enduring Freedom] migrated, often quite innocently, into decision matrices for [Operation Iraqi Freedom].”62 In particular, when Gen. Geoffrey Miller, who oversaw the interrogation efforts at the U.S. military base at Guantánamo Bay, Cuba, went to Iraq in order step up the hunt for “actionable intelligence,” he “brought to Iraq the secretary of defense’s policy guidelines for Guantánamo” “as a potential model” which he gave to Gen. Sanchez.63 These techniques formed the basis for the subsequent contradictory policy memos signed by Sanchez that contributed to detainee abuse.64 In addition, the Schlesinger report noted, when on September 14 “Sanchez signed a memorandum authorizing a dozen interrogation techniques beyond” the standard Army practice under the Geneva Conventions, including “five beyond those approved for Guantánamo,” he did so “using reasoning from the President’s Memorandum of February 7, 2002,” which he believed justified “additional, tougher measures.”65
Secretary Schlesinger, in his oral remarks upon releasing the report, regrettably focused on the particular bizarre acts pictured at Abu Ghraib, rather than the context that gave rise to them, speaking of “freelance activities on the part of the night shift,” and describing the situation as “a kind of ‘Animal House.’”66 He later said that the abuses were due to “just pure sadism.”67 In addition, Schlesinger stated, “if hypothetically somebody had suggested these kinds of abuses, the last thing that would have been ordered would be that there be photographic evidence of it.” 68 Schlesinger also suggested his own bias by stating that Rumsfeld’s resignation “would be a boon to all America’s enemies.”
The Schlesinger report talked about management failures when it should have been more forthright about policy failures. Indeed, it seemed to go out of its way not to find any relationship between Secretary Rumsfeld’s approval of interrogation techniques designed to inflict pain and humiliation and the widespread mistreatment and torture of detainees in Iraq, Afghanistan, and Guantánamo.
Vice Adm. Albert T. Church, Navy Inspector General was ordered by Secretary Rumsfeld to investigate prisoner operations and intelligence gathering practices. When initiated in early May 2004, the investigation was limited to activities in Guantánamo Bay and the Naval Consolidated Brig in Charleston, South Carolina. Rumsfeld then widened the scope of the inquiry on May 25 to include prison operations in Iraq and Afghanistan. The report was completed in late 2004, but it was only in March 2005 that an unclassified 21-page executive summary was released,69 and a classified 400-page report was given to the Senate Armed Services Committee.
The Church report was supposed to be the definitive report on the development of interrogation techniques and detainee abuse in the “global war on terror” but the unclassified summary suggests a careful attempt — months after the Schlesinger and Fay/Jones report put the Pentagon on the defensive — to present a version of the facts that would not cause any trouble for the hierarchy. Time and again, the summary goes out of its way to rebut any inference that government policy was to blame, to the point of straining credibility and flatly contradicting the earlier reports. The report concluded that there was “no single, overarching explanation” for the “few” cases in which detainees had not been treated humanely.
Although Secretary Rumsfeld and General Sanchez both approved the use of guard dogs to strike fear in detainees, and although guard dogs were featured prominently in the Abu Ghraib photos, the Church executive summary states that “it is clear that none of the pictured abuses at Abu Ghraib bear any resemblance to approved policies at any level, in any theater.” Indeed, the only mention of dogs in the entire summary is the patently false statement that in Afghanistan and Iraq “interrogators clearly understood that abusive practices and techniques — such as … terrorizing detainees with unmuzzled dogs … — were at all times prohibited.”
Adm. Church told a congressional hearing that it was “not in my charter” to determine individual responsibility because the Schlesinger panel had such a mandate — even though, as noted above, “issues of personal accountability” were specifically excluded from that panel’s remit. Speaking to journalists, Adm. Church added “I don’t think you can hold anyone accountable for a situation that maybe if you had done something different, maybe something would have occurred differently.”
In addition to these probes, there are a number of investigations which are still underway or have been completed but not yet made public:
Brig. Gen. Charles Jacoby: This inquiry was ordered in mid-May 2004 by Lt.-Gen. David Barno, the commander of U.S. forces in Afghanistan, to investigate the conditions at around 20 U.S. jails in Afghanistan, including the main facility at Bagram. Jacoby’s job in Afghanistan was “to ensure internationally accepted standards of handling detainees are being met.” 70 Jacoby’s report was reportedly completed in July 2004, but has yet to be released. According to The Washington Post, the report found a wide range of shortcomings in the military’s handling of prisoners in Afghanistan.71 In February 2005, a U.S. military spokesman said that “The report is still under review and once the review is complete it will be released.”72 Gen. Jacoby refused to meet with Human Rights Watch, even though the organization had conducted some of the only independent investigations of detainee abuses in Afghanistan.
Furlow/Schmidt: On January 5, 2005, following the release of the FBI e-mails relating to detainees treatment at Guantánamo, U.S. Southern Command headquarters appointed Army Brigadier General John Furlow to direct “an internal investigation into recently disclosed allegations by members of the Federal Bureau of Investigation of detainee abuse” at Guantánamo. On February 28, 2005, after criticism that the one-star Furlow would be unable to question senior officers such as Gen. Miller, Air Force Lieutenant General Randall M. Schmidt took over the investigation. Schmidt was directed to complete the investigation by March 31.73
Brig. Gen. Richard P. Formica is heading an inquiry into the detention activities of Special Operations forces. That report has not yet been released.
Central Intelligence Agency inspector general: The CIA’s inspector general is also reportedly conducting a half-dozen inquiries into possible misconduct within the agency involving the detention, interrogation, and rendition of suspected terrorists.74 No details have been made public.
Prosecuting Some Soldiers, Belatedly
Until the publication of the Abu Ghraib photographs forced action, almost all military investigations into deaths and mistreatment in custody were languishing. No one implicated in the abuse of persons in custody in Afghanistan, Iraq or elsewhere, including in the killing of detainees, had been criminally prosecuted. Many personnel appear to have had their cases shelved or have been given inappropriate administrative reprimands, instead of facing criminal prosecution.
In the aftermath of the Abu Ghraib pictures, the United States initiated the prosecution of a number of soldiers and contactors for alleged crimes committed in Iraq (particularly Abu Ghraib)75 and Afghanistan. Pentagon officials told Human Rights Watch in March 2005 that out of 300 investigations initiated into abuse allegations, only 14 persons have been convicted by court-martial. And although 33 additional soldiers have been referred to trial by court-martial, 70 have received only “non-judicial punishments,” such as reprimands, rank reductions, or discharge from the military, though many of the alleged abuse cases involved serious abuses and homicides.76 Earlier, in December 2004, the Pentagon told journalists that 130 American troops had been punished or charged for abuse of prisoners, a figure which apparently includes non-judicial punishments.77
Homicide investigations have been extremely slow. As of February 2005, Army criminal investigators were reported to have conducted 68 detainee death investigations with 79 possible victims.78 Yet only two homicide cases have resulted in recommended courts martial for homicide; one has been postponed and in another, most of the implicated personnel were brought before non-judicial administrative hearings instead of court-martial, and most received only administrative punishments. Many cases involving detainee deaths in Afghanistan in 2002, over two-and-a-half years ago, have gone unresolved. In one case from Afghanistan, it appears that an army captain who “murdered” a detainee was simply discharged from the military, and his case was closed.79
Meanwhile, no criminal investigations appear to have been commenced for abuses committed at Guantánamo Bay, at US-run “secret locations” around the world or in connection with the rendition of persons to third countries where they were likely to be tortured. With respect to CIA abuses, Porter J. Goss, who replaced George Tenet as director of Central Intelligence, told the Senate Intelligence Committee in February 2005 that “a bunch of other cases” were now under review by the CIA’s inspector general. No CIA officers have been charged in relation to alleged mistreatment, with the single exception of a CIA contractor charged in the death of detainee in Afghanistan in 2003.
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[41] Dana Priest and Barton Gellman, “U.S. Decries Abuse but Defends Interrogations: ‘Stress and Duress’ Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities,” The Washington Post, December 26, 2002, p. A1.
[42] Dana Priest and Barton Gellman, “U.S. Decries Abuse but Defends Interrogations,” The Washington Post, December 25, 2002, p. A1.
[43] Human Rights Watch to President George W. Bush, open letter, December 27, 2002 [online], hrw.org.
[44] Donald Rumsfeld, “Testimony of Secretary of Defense Donald H. Rumsfeld before the Senate and House Armed Services Committees,” U.S. Senate Armed Services Committee, May 7, 2004 [online], armed-services.senate.gov.
[45] “Abuse Scandal ‘Terrible’ for U.S., Powell Concedes,” MSNBC, May 17, 2004 [online], msnbc.msn.com.
[46] See Human Rights Watch, “Military Investigations into Treatment of Detainees in U.S. Custody,” A Human Rights Watch Backgrounder, July 16, 2004 [online], hrw.org.
[47] For another critique of these probes, see Human Rights First, “Getting to Ground Truth: Investigating U.S. Abuses in the “War on Terror,” September 2004 [online], humanrightsfirst.org.
[48] Taguba report, p. 6.
[49] Ibid., pp. 12-13.
[50] General Taguba’s confidential findings were first reported by journalist Seymour Hersh the day after the Abu Ghraib photographs were aired on CBS-TV’s “Sixty Minutes II.”
[51]Taguba report, p. 16.
[52] Taguba noted that this was “in conflict with” the recommendations of the Ryder report, a previous review of Iraqi prisons, which stated that the engagement of military police in military interrogations to “actively set the favorable conditions for subsequent interviews runs counter to the smooth operation of a detention facility.”
[53] Taguba report, p. 27.
[54] Lt. Gen. Paul T. Mikolashek, “The Mikolashek Report,” Department of the Army, July 21, 2004. The report can be found in Karen J. Greenberg and Joshua L. Dratel, ed., The Torture Papers: The Road to Abu Ghraib (Cambridge: University of Cambridge Press, 2005), pp. 630-907.
[55] Walter Pincus, “Prison Investigator’s Army Experience Questioned,” The Washington Post, May 26, 2004, p. A18.
[56] A lead investigator was needed who was at least equal in rank to the Sanchez, a three-star general. Fay is a two-star general. Jones technically is senior to Sanchez because he has held his three-star rank slightly longer. According to Scott Horton, chair of the Committee on International Law of the Association of the Bar of the City of New York, who is a critic of the interrogation policies but has spoken directly with soldiers interviewed by Fay, Fay’s draft report to General Sanchez in May 2004 “was such a whitewash on the role of military personnel that it stood no chance of gaining acceptance.” The report, he says, was then “broadly re-written.” Nevertheless, Horton alleges,
As noted to me by senior officers, certain senior figures whose conduct in this affair bears close scrutiny, were explicitly “protected” or “shielded” by withholding information from investigators or by providing security classifications which made such investigations possible. The individuals “shielded,” I was informed, included MG Geoffrey Miller, MG Barbara Fast, COL Marc Warren, COL Steven Bolz, LTG Sanchez and LTG William (“Jerry”) Boykin. In each case, the fact that these individuals possessed information on Rumsfeld’s involvement was essential to the decision to “shield” them.
(Scott Horton, “Expert Report” (“Scott Horton report”), Center for Constitutional Rights, January 31, 2005 [online], ccr-ny.org, paras. 14-15).
[57] Fay report, p. 29.
[58] LTG Anthony R. Jones, Article 15-6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade (“Jones report”), p. 24.
[59]Ibid., p. 4.
[60] Eric Schmitt, “Abuses at Prison Tied to Officers in Intelligence,” The New York Times, August 26, 2004.
[61] Craig Gordon, “Prison Abuse Investigations: Critics Say Scope Too Narrow,” Newsday, June 6, 2004
[62]Schlesinger report, p. 82.
[63] Ibid., p. 37.
[64] Ibid., p. 37.
[65] Ibid., p. 10.
[66] Bradley Graham and Josh White, “Top Pentagon Leaders Faulted in Prison Abuse,”
The Washington Post, August 25, 2004.
[67] The Hon. James R. Schlesinger, Testimony before Senate Armed Services Committee, September 9, 2004, p. 13.
[68] Ibid., p. 28. There was speculation, however, that photographing detainees in situations thought to be especially humiliating in Arab culture might have been part of a deliberate strategy to get detainees to talk to interrogators for fear of having the photos released. See, e.g., Seymour M. Hersh, “The Gray Zone: How a Secret Pentagon Program Came to Abu Ghraib,” The New Yorker, May 24, 2004; “The Pictures: Lynndie England,” CBSNews.com, May 12, 2004; Edward Epstein, “Senators Suspect Higher-ups Directed Abuses at Abu Ghraib: They Query General Who Investigated,” The San Francisco Chronicle, May 12, 2004; “Hardball with Chris Mathews,” MSNBC.com, May 13, 2004 [online], msnbc.msn.com; Robin Cook, “George Bush’s Contempt for International Law Damages Both America and Britain,” The Independent (UK), June 26, 2004; and Eli Lake, “CIA Gets Its Turn in the Hot Seat on Hill,” The New York Sun, May 14, 2004.
[69] “Executive Summary,” U.S. Department of Defense, available to the public since March 2005 [online], defenselink.mil (“Church report’).
[70] “U.S. to Review Afghan Prisons,” Associated Press, May 22, 2004.
[71] R. Jeffrey Smith, “General Cites Problems at U.S. Jails in Afghanistan,” The Washington Post, December 3, 2004.
[72] “U.S. Rejects U.N. Expert’s Afghan Rights Concerns,” Reuters, February 12, 2005.
[73] “Three-Star General Appointed to Lead Investigation,” A US Southern Command News Release, February 28, 2005 [online], southcom.mil.
[74]Douglas Jehl and David Johnston, “Rule Change Lets C.I.A. Freely Send Suspects Abroad,” The New York Times, March 6, 2005.
[75] The Fay/Jones report implicated 31 military intelligence soldiers in the abuse of Iraqi prisoners at Abu Ghraib. The Taguba report listed military police implicated in the abuses at Abu Ghraib. Thus far, however, only seven U.S. army soldiers have been charged and only two convicted and sentenced.
[76] E-mail from Lt. Col. John Skinner, Pentagon spokesperson, to Human Rights Watch researcher, April 8, 2005.
[77] “Pentagon: 130 Troops Punished for Abuse,” USA Today, December 15, 2004.
[78] Douglas Jehl and Eric Schmitt, U.S. Military Says 26 Inmate Deaths May Be Homicide,” The New York Times, March 16, 2005.
[79] Human Rights Watch to Secretary of Defense Donald Rumsfeld, open letter, December 13, 2004 [online], hrw.org; R. Jeffrey Smith, “Army Reprimand Reported in Slaying; Officers Allegedly Killed Afghan in '02,” The Washington Post, December 14, 2004.
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