Getting Away with Torture?
Command Responsibility for the U.S. Abuse of Detainees
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.
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 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.
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
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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.