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 suffocating 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 as 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.
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
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
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
Impunity for the Architects of Illegal Policy
To date, with the exception of one major directly implicated in abuse, only low-ranking soldiers — privates and sergeants have been prosecuted. No officer has been charged in connection with detainee abuse by people under his command. No civilian leader at the Pentagon or the CIA has been investigated.
Commanders and superiors can be held criminally liable if they order, induce, instigate, aid, or abet in the commission of a crime. This is a principle recognized both in U.S. law80 and international law.81
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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],
http://news.bbc.co.uk/2/hi/americas/4355779.stm.
24 See Human Rights Watch, “Enduring Freedom: Abuses by U.S. Forces in Afghanistan,” A Human Rights Watch Report,
March 2004 [online], http://hrw.org/reports/2004/afghanistan0304/.
25 Human Rights Watch to Secretary of Defense Donald Rumsfeld, open letter, December 13, 2004 [online],
http://hrw.org/english/docs/2004/12/10/afghan9838.htm.
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], http://www.hrw.org/backgrounder/usa/gitmo1004/; Center for Constitutional Rights, “Composite Statement:
Detention in Afghanistan and Guantanamo Bay; Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed,” August 4, 2004 [online],
http://www.ccr-ny.org/v2/reports/docs/Gitmo-compositestatementFINAL23july04.pdf.
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], http://www.hrw.org/backgrounder/usa/gitmo1004/; Center for Constitutional Rights, “Composite Statement:
Detention in Afghanistan and Guantanamo Bay; Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed,” August 4, 2004 [online],
http://www.ccr-ny.org/v2/reports/docs/Gitmo-compositestatementFINAL23july04.pdf.
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 http://www.health-now.org/mediafiles/mediafile50.pdf.
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], http://www.hrw.org/backgrounder/usa/us1004/; 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], http://www.hrw.org/backgrounder/usa/us1004/.
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],
http://hrw.org/english/docs/2004/05/17/sweden8620.htm; 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],
http://hrw.org/english/docs/2005/03/28/usint10379.htm.
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.
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],
http://www.humanrightsfirst.org/us_law/PDF/detainees/Getting_to_Ground_Truth_090804.pdf.
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],
http://www.ccr-ny.org/v2/legal/september_11th/docs/ScottHortonGermany013105.pdf, 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.
80 See, e.g., 18 U.S.C. § 2 (“(a) Whoever commits an offense against the United States or aids, counsels, commands,
induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if
directly performed by him or another would be an offense against the United States, is punishable as a principal.”)
81 The Rome statute of the International Criminal Court provides in article 25 that “a person shall be criminally responsible
and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether
as an individual, jointly with another or through another person, regardless of whether that other person is criminally
responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For
the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its
attempted commission, including providing the means for its commission; [etc]”; See also Geneva I, art 49, Geneva II, art.
50; Geneva III, art. 129; Geneva IV, art. 146. (“The High Contracting Parties undertake to enact any legislation necessary
to provide effective penal sanctions for persons committing, or ordering to be committed, … the grave breaches.”
Emphasis added.)