Secretary of Defense Donald Rumsfeld Should be Investigated for War Crimes & Torture
“These events occurred on my watch. As Secretary of Defense I am accountable for them. I take full responsibility.” Donald Rumsfeld90
Secretary Rumsfeld should be investigated for war crimes and torture by US troops in Afghanistan, Iraq, and Guantánamo under the doctrine of “command responsibility.” Secretary Rumsfeld created the conditions for U.S. troops to commit war crimes and torture by sidelining and disparaging the Geneva Conventions, by approving interrogation techniques that violated the Geneva Conventions as well as the Convention against Torture, and by approving the hiding of detainees from the International Committee of the Red Cross. From the earliest days of the war in Afghanistan, Secretary Rumsfeld was on notice through briefings, ICRC reports, human rights reports, and press accounts that U.S. troops were committing war crimes, including acts of torture. However, there is no evidence that he ever exerted his authority and warned that the mistreatment of prisoners must stop. Had he done so, many of the crimes committed by U.S. forces could have been avoided.
An investigation would also determine whether the illegal interrogation techniques that Secretary Rumsfeld approved for Guantánamo were actually used to inflict inhuman treatment on detainees there before he rescinded his approval to use them without requesting his permission. It would also examine whether Secretary Rumsfeld approved a secret program that encouraged physical coercion and sexual humiliation of Iraqi prisoners, as alleged by the journalist Seymour Hersh. If either were true, Secretary Rumsfeld might also, in addition to command responsibility, incur liability as the instigator of crimes against detainees.
Secretary Rumsfeld is the top civilian official in the Pentagon. By law and in fact, he has command authority over all geographic and functional military commands.91
Secretary Rumsfeld created the conditions for U.S. troops to commit war crimes
and torture and thus should have known that crimes were likely to occur.
Secretary Rumsfeld denigrated the Geneva Conventions
Secretary Rumsfeld has been central to the Bush Administration’s effort to redefine and minimize the protections due to prisoners captured in the “global war on terror.” Ignoring the deeply rooted U.S. military practice of applying the Geneva Conventions broadly, Secretary Rumsfeld labeled the first detainees to arrive at Guantánamo from fghanistan on January 11, 2002 as “unlawful combatants,” denying them possible status as POWs. “Unlawful combatants do not have any rights under the Geneva Convention,” Secretary Rumsfeld said,92 overlooking that the Geneva Conventions provide explicit protections to all persons captured in an international armed conflict, even if they are not entitled to POW status. Secretary Rumsfeld signaled a casual approach to U.S. compliance with international law by saying that the government would “for the most part, treat them in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate.”93 On January 27, Secretary Rumsfeld visited Guantánamo and said that the detainees there were not POWs.94
On February 7, 2002, Secretary Rumsfeld questioned the relevance of the Geneva Conventions to current U.S. military operations: “The reality is the set of facts that exist today with the al- Qaeda and the Taliban were not necessarily the set of facts that were considered when the Geneva Convention was fashioned.”95
Even after the Abu Ghraib scandal broke, Secretary Rumsfeld continued to take a loose view of the applicability of the Geneva Conventions. On May 5, 2004, he told a television interviewer that the Geneva Conventions “did not apply precisely” in Iraq but were “basic rules” for handling prisoners.96 Visiting Abu Ghraib prison on May 14, Rumsfeld remarked, “Geneva doesn’t say what you do when you get up in the morning.”
One of the earliest indications of Secretary Rumsfeld’s approach to interrogations came with the capture in Afghanistan of John Walker Lindh, the so-called “American Taliban.” Photos presented by Lindh’s lawyers on April 2, 2002 showed Lindh tripped naked, blindfolded, with plastic cuffs on his wrists, and bound to a stretcher with duct tape.99 According to a motion filed in federal court by Lindh’s attorneys, Lindh was left for days on this gurney in an unheated and unlit metal shipping container, removed from the container only during interrogations.
A group of armed American soldiers allegedly “blindfolded Mr. Lindh, and took several pictures of Mr. Lindh and themselves with Mr. Lindh. In one, the soldiers scrawled ‘shithead’ across Mr. Lindh’s blindfold and posed with him. … Another told Mr. Lindh that he was ‘going to hang’ for his actions and that after he was dead, the soldiers would sell the photographs and give the money to a Christian organization.” Mr. Lindh still had a bullet in his thigh, which was said by a U.S. physician to be “seeping and malodorous.” He was also said to be suffering from hypothermia, malnourishment, and exposure.100 According to the motion, “A Navy physician… recounted that the lead military interrogator in charge of Mr. Lindh’s initial questioning told the physician ‘that sleep deprivation, cold and hunger might be employed’ during Mr. Lindh’s interrogations.”
According to documents examined by the Los Angeles Times, Rumsfeld’s legal counsel instructed military intelligence officers to “take the gloves off” when interrogating Lindh.101 In the early stages of Lindh’s interrogation, his responses were reportedly cabled to Washington hourly.102
In addition, as the Schlesinger report found, Secretary Rumsfeld’s multiple policy changes regarding acceptable interrogation techniques at Guantánamo “contribut[ed] to uncertainties in the field as to which techniques were authorized.”103
Secretary Rumsfeld approved interrogation methods that violated the Geneva Conventions and the Convention against Torture
Secretary Rumsfeld was intimately involved in the minutiae of interrogation techniques for detainees at Guantánamo Bay, Cuba, for whom the U.S. government had announced that POW protections would not apply. On December 2, 2002, responding to a request from officers at Guantánamo, Secretary Rumsfeld authorized a list of techniques for interrogation of prisoners in Guantánamo that was an unprecedented expansion of army doctrine.104 The techniques approved by Rumsfeld included:
“The use of stress positions (like standing) for a maximum of four hours”;
Isolation up to 30 days; “The detainee may also have a hood placed over his head during transportation and questioning”; “Deprivation of light and auditory stimuli”;
“Removal of all comfort items (including religious items)”;
“Forced grooming (shaving of facial hair, etc)”;
“Removal of clothing”; and
“Using detainees’ individual phobias (such as fear of dogs) to induce stress.”105
These methods violate the protections afforded to POWs, the presumptive classification of many of the Guantánamo detainees.106 Depending on how they are used, these methods also likely violate the Geneva Conventions’ prohibition on torture or inhuman treatment of prisoners, regardless of whether the prisoners are entitled to POW protections.107 their use on prisoners would thus constitute a war crime.
After objections from the Navy’s general counsel, Secretary Rumsfeld rescinded his blanket approval of the harsh techniques listed above on January 15, 2003.
Direct responsibility for abuses at Guantánamo?
An investigation could reveal whether any of the illegal tactics Secretary Rumsfeld authorized on December 2, 2002 were then used in the interrogation of prisoners at Guantánamo before his authorization to use them without requesting his permission was rescinded. There is some evidence suggesting that they may have been. In that case, Secretary Rumsfeld could potentially bear direct criminal responsibility, as opposed to command responsibility.
According to the classified sections of the Church report as described by U.S. Senator Carl Levin, Dr. Michael Gelles, the chief psychologist of the Navy Criminal Investigative Service, completed a study of Guantánamo interrogations in December 2002 (when the harsh Rumsfeld-approved techniques were in effect) that included extracts of interrogation logs. Gelles reported to the service director, David Brant, that interrogators were using ''abusive techniques and coercive psychological procedures.” According to Levin, Gelles’ report prompted Brant to argue that if those aggressive practices continued, the Navy would have to ''consider whether to remain" at Guantánamo. At the same time, Alberto J. Mora, the Navy’s general counsel, said that the techniques were ''unlawful and unworthy of the military services,” according to Levin’s account.115
Since most public accounts of abuse at Guantánamo come from released detainees and since the nature of their confinement renders detainees generally unable to specify dates,116 it is difficult to say with precision whether the abusive techniques approved by Secretary Rumsfeld were employed before blanket approval was rescinded.
According to the Department of Defense, some of the more severe techniques — including “inducing stress (use of female interrogator),” and “up to 20 hour interrogations,” but not the use of dogs — were used on Guantánamo detainees in the interim.117 The Church report summary states that:
“[D]uring the course of interrogation operations at GTMO, the Secretary of Defense approved specific interrogation plans for two “high-value” detainees who had resisted interrogation for many months, and who were believed to possess actionable intelligence that could be used to prevent attacks against the United States. Both plans employed several of the counter resistance techniques found in the December 2, 2002 GTMO policy, and both successfully neutralized the two detainees’ resistance training and yielded valuable intelligence. We note, however, that these interrogations were efficiently aggressive that they highlighted the difficult question of precisely defining the boundaries of humane treatment of detainees.”118
Rather than discard the techniques entirely, however, Secretary Rumsfeld ordered that any use of the harsher categories of techniques be approved by him personally, thus suggesting that he continued to consider them legitimate:
Contrary to the attention given to interrogation techniques at Guantánamo, there was no
prescribed interrogation regime for prisoners held in Afghanistan. According to the Church report, the U.S. military command in Afghanistan in January 2003 submitted, as requested, a list of interrogation techniques to the military’s Joint Staff and Central Command. The list included techniques “very similar” to those approved by Secretary Rumsfeld for Guantánamo, but were said by Church to have been arrived at locally. When the command in Afghanistan never heard any complaints, it “interpreted this silence to mean that the techniques …were unobjectionable to higher headquarters, and therefore could be considered approved policy.”122 According to the Church report, in Iraq as well, the Pentagon offered no help to Central Command in Baghdad in developing its interrogation procedures. The report noted that by September 2003, Baghdad headquarters “was left to struggle with these issues on its own in the midst of fighting an insurgency.”123
In both theaters, illegal interrogation methods first approved by Secretary Rumsfeld were, in fact, used. The Schlesinger report found that in Afghanistan, “techniques included removal of clothing, isolating people for long periods of time, use of stress positions, exploiting fear of dogs, and sleep and light deprivation. Interrogators in Iraq, already familiar with some of these ideas, implemented them even prior to any policy guidance from CJTF-7 [the command in Iraq].”124 At Abu Ghraib, of course, the techniques put into play by Secretary Rumsfeld, such as the use of dogs, figured prominently in the war crimes committed against detainees.
A secret access program?
Citing “several past and present American intelligence officials,” journalist Seymour Hersh alleged that Secretary Rumsfeld “authorized the establishment of a highly secret program that was given blanket advance approval to kill or capture and, if possible, interrogate “high value” targets” in the war on terror. This “secret access program,” or SAP, “carried out instant interrogations — using force if necessary — at secret CIA detention centers scattered around the world.” Frustrated by a failure to stem the Insurgency in Iraq, Secretary Rumsfeld reportedly decided to “get tough with those Iraqis in the Army prison system who were suspected of being insurgents” and expanded the SAP to Abu Ghraib. “The commandos were to operate in Iraq as they had in Afghanistan. The male prisoners could be treated roughly, and exposed to sexual humiliation.”125 If Secretary Rumsfeld did in fact approve such a program, he would bear direct liability, as opposed to command responsibility, for war crimes and torture committed by the SAP.
Secretary Rumsfeld approved hiding detainees from the ICRC
Secretary Rumsfeld has publicly admitted that, acting upon a request by George Tenet, then director of the CIA, he ordered an Iraqi national held in Camp Cropper, a high security detention center in Iraq, to be kept off the prison’s rolls and not presented to the International Committee of the Red Cross.126 The prisoner, referred to as “Triple X” and later identified as Hiwa Abdul Rahman Rashul, was reportedly a senior member of Ansar al-Islam, an al-Qaedalinked organization apparently responsible for several attacks in Iraq.127 Rumsfeld also admitted that there have been other cases in which detainees have been held secretly.128
The Third Geneva Convention in article 126 (concerning prisoners of war) and the Fourth Geneva Convention in article 143 (concerning detained civilians) requires the ICRC to have access to all detainees and places of detention. Visits may only be prohibited for “reasons of imperative military necessity” and then only as “an exceptional and temporary measure.”129
Secretary Rumsfeld reportedly initiated pressure on troops at Abu Ghraib to obtain “actionable intelligence”
The severest abuses at Abu Ghraib occurred after U.S forces there were placed under pressure to produce “actionable intelligence” among Iraqi prisoners. Secretary Rumsfeld’s role in that pressure remains to be elucidated.
The Schlesinger panel found that “pressure for additional intelligence and the more aggressive methods sanctioned by the Secretary of Defense memorandum resulted in stronger interrogation techniques. They did contribute to a belief that stronger interrogation methods were needed and appropriate in their treatment of detainees.”130
In August 2003, with American troops facing a growing insurgency in Iraq, and rustration rising over the failure to uncover “weapons of mass destruction” or to capture deposed Iraqi President Saddam Hussein, Maj. Gen. Geoffrey D. Miller, who oversaw the interrogation efforts at the U.S. military base at Guantánamo Bay, Cuba, was sent to Iraq. In the words of Maj. Gen. Taguba, Gen. Miller’s task was to “review current Iraqi Theater ability to rapidly exploit internees for actionable intelligence.”131 As the Schlesinger report noted, Gen Miller brought with him the secretary of defense’s April 16th memo (the final of three memos) outlining Guantánamo interrogation techniques and presented it as a possible model for interrogations in Iraq.132 As Gen. Taguba highlighted and criticized in his report, Gen. Miller recommended that “the guard force be actively engaged in setting the conditions for successful exploitation of the internees.”133
Secretary Rumsfeld’s exact role in Gen. Miller’s mission has not been fully explored, and there is broad speculation that his role has in fact been deliberately obscured. According to one critic, Scott Horton, chair of the Committee on International Law of the Association of the Bar of the City of New York, citing a “senior uniformed officer present at the briefing”134:
At an intelligence briefing conducted in the summer of 2003 in the Pentagon for
the benefit of Rumsfeld, and with the attendance of Cambone, Boykin and other
senior officers, Rumsfeld complained loudly about the quality of the intelligence
which was being gathered from detainees in Iraq. He contrasted it with the intelligence which was being produced from detainees at Guantánamo following
the institution there of new “extreme” interrogation practices. Expressing anger
and frustration over the application of Geneva Convention rules in Iraq,
Rumsfeld gave an oral order to dispatch MG Miller to Iraq to “Gitmoize” the intelligence gathering operations there. Cambone and Boykin were directed to oversee this process.135
Newsweek also reported that it was Secretary Rumsfeld who instigated the trip by Gen. Miller:
While the interrogators at Gitmo were refining their techniques, by the summer
of 2003 the “postwar” insurgency in Iraq was raging. And Rumsfeld was getting
impatient about the poor quality of the intelligence coming out of there. He
wanted to know: Where was Saddam? Where were the WMD? Most
immediately: Why weren’t U.S. troops catching or forestalling the gangs planting improvised explosive devices by the roads? Rumsfeld pointed out that Gitmo was producing good intel. So he directed Steve Cambone, his under secretary for intelligence, to send Gitmo commandant Miller to Iraq to improve what they were doing out there. Cambone in turn dispatched his deputy, Lt. Gen. William (Jerry) Boykin — later to gain notoriety for his harsh comments about Islam — down to Gitmo to talk with Miller and organize the trip.136
Secretary Rumsfeld knew or should have known that soldiers in Afghanistan and Iraq were committing torture and war crimes
Secretary Rumsfeld was personally warned about the abuse of detainees
Throughout the period in question, Secretary Rumsfeld was personally notified about the
mistreatment of detainees:
Journalists raised questions about abuse allegations in Afghanistan during press
conferences with Secretary Rumsfeld in January and February of 2002.150
Officials in Afghan President Hamid Karzai’s government reportedly raised concerns about detainee abuse allegations with Secretary Rumsfeld during his visits to Afghanistan in 2002.151
Secretary of State Colin Powell reportedly raised the issue of detainee abuse frequently in meetings with Rumsfeld and others.152
According to The Washington Post, citing U.S. officials familiar with the discussions, as of August 2003, U.S. Administrator in Iraq L. Paul Bremer pressed the military to improve conditions and later made the issue a regular talking point in discussions with Rumsfeld, Vice President Cheney and national security adviser Condoleezza Rice.”153
There was substantial public information about abuses against detainees
Well before the Abu Ghraib investigation began, Secretary Rumsfeld had access to abundant public information and reports from NGOs that U.S. officials in Afghanistan and Iraq were committing torture and war crimes:
In April 2002, images were released of American John Walker Lindh being held naked and bound by duct tape to a stretcher in Afghanistan.
On April 15, 2002, Amnesty International sent a letter and 61-page “Memorandum to the US Government on the rights of people in US custody in Afghanistan and Guantánamo Bay” to President Bush, with a copy to Secretary Rumsfeld, expressing concerns over the conditions of transfer to Guantánamo, the killing and ill-treatment of detainees in Afghanistan and inadequate investigations into these abuses, interrogations without access to counsel, and transfers to third countries for possible torture.161
Secretary Rumsfeld was asked about the Amnesty report at a press conference, and said that he had not read it.162
On December 26, 2002, The Washington Post reported that detainees at Bagram Airbase, “are sometimes kept standing or kneeling for hours in black hoods or spray-painted goggles…. At times they are held in awkward, painful positions and deprived of sleep with a 24-hour bombardment of lights — subject to what are known as ‘stress and duress’ techniques….”
On December 27, 2002, Human Rights Watch wrote to President Bush (and U.K. Prime Minister Tony Blair) about allegations of torture reported in The Washington Post, asking that the allegations be investigated immediately.
Executive directors of leading human rights groups wrote on January 14, 2003 to Deputy Secretary of Defense Paul Wolfowitz urging, without referring to actual cases, that the administration publicly state that torture in any form or matter would not be tolerated and that the U.S. would not seek intelligence obtained through torture in a third country. The letter also urged the administration to give clear guidelines to U.S. forces. On January 31, the directors wrote to President Bush demanding “unequivocal statements by [Bush] and [his] Cabinet officers that torture in any form or matter will not be tolerated…[and] that any U.S. official found to have used or condoned torture will be held accountable.” The directors also called for “clear written guidance applicable to everyone engaged in the interrogation and rendition of prisoners.” On February 5, 2003, the groups met with Department of Defense General Counsel Haynes to urge the administration to develop clear standards to prevent the mistreatment of detainees.
The New York Times reported on March 4, 2003 that “The United States military has begun a criminal investigation into the death of an Afghan man in American custody in December, a death described as a ‘homicide’ by an American pathologist....Two former prisoners…said the conditions to which they themselves were subjected at the time included standing naked, hooded and shackled, being kept immobile for long periods and being deprived of sleep for days on end.”163
On March 15, 2003, Amnesty International held a news conference in Baghdad to call attention to cases of detainee mistreatment.164
On June 26, 2003, Amnesty International wrote Bremer after interviewing former
detainees to criticize methods that “appear to facilitate cruel, inhuman or degrading treatment.”165
On July 26, 2003, Amnesty International released “Iraq: Memorandum on Concerns Relating to Law and Order,” which details cases of ill-treatment of detainees in Iraq, including Abu Ghraib.166 According to Amnesty, a high-level Amnesty mission to Baghdad (date unclear) met with Coalition Provisional Authority (CPA) officials including: Ambassador John Sawers (UK); Ambassador Macmanway; Lieutenant Colonel Warner, CJTF 7; and Colonel Michael Kelly, Office of Legal Counsel CPA.167
On October 19, 2003, the Associated Press reported that “[e]ight marine reservists face charges ranging from negligent homicide to making false statements in connection with the mistreatment of prisoners of war in Iraq.”168
On December 17, 2003, the Associated Press reported “Marine reservists running a detention facility in Iraq ordered prisoners of war to remain standing for hours until interrogators could question them, according to testimony at a military court hearing.”169
On January 6, 2004, the Associated Press reported, “The U.S. Army discharged three reservists and ordered them to forfeit two months’ salary for abusing prisoners at a detention center in Iraq.”170
On January 12, 2004, Human Rights Watch wrote to Secretary Rumsfeld to express concern about incidents in which U.S. forces stationed in Iraq detained relatives of wanted suspects in order to compel the suspects to surrender, which amounts to hostage-taking, classified as a war crime under the Geneva Conventions.
On January 13, 2004, the press reported that a suspect detained by U.S. forces in Iraq claimed that “he was ordered to stand upright until he collapsed after 13 hours,” and that interrogators “burned his arm with a cigarette.”171
Given the widespread nature of crimes against detainees, Secretary Rumsfeld
should have known of them
The Schlesinger report counted about 300 allegations of prisoner mistreatment in Iraq,
Afghanistan, and Guantánamo, beginning almost immediately after the invasion of Afghanistan
in 2001.172
The widespread nature of the abuses across three countries suggests that the Secretary of Defense should have been aware, through internal channels, that his subordinates were committing crimes.
Secretary Rumsfeld failed to intervene to prevent the commission of war crimes
and torture by soldiers and officers under his command in Afghanistan and Iraq
During the entire period listed above Secretary Rumsfeld failed to intervene to prevent further commission of crimes. Even as he was being personally warned about abuses, even as the press and human rights groups were publicly denouncing abuses, even as the ICRC was complaining, Secretary Rumsfeld apparently never issued specific orders or guidelines to forbid coercive methods of interrogation, other than withdrawing his blanket approval for certain methods at Guantánamo in January 2003. Indeed, as described above, in mid-2003 pressure on interrogators in Iraq to use more aggressive methods of questioning detainees was actually increased.
The documents that were released by the Department of Defense in June 2004, as well as those released more recently in response to a lawsuit by the Center for Constitutional Rights and the American Civil Liberties Union are as telling for what is missing as for the indignities they narrate: to date, there is no evidence that Secretary Rumsfeld (or any other senior leader) exerted his authority as the civilian official in charge of the armed forces and warned that the mistreatment of prisoners must stop. Had he done so, many of the crimes committed by U.S. forces could have been avoided.173
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90 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], http://armedservices.
senate.gov/statemnt/2004/May/Rumsfeld.pdf.
91 “Unless otherwise directed by the President, the chain of command to a unified or specified combatant command runs
— (1) from the President to the Secretary of Defense; and (2) from the Secretary of Defense to the commander of the
combatant command” (10 U.S.C. § 162(b)). For charts and organigrams, see “Chapter 24: National Security Structure and
Strategy,” The Judge Advocate General’s Corps, U.S. Army, [online],
https://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/CLAMOPublic.
nsf/0/1af4860452f962c085256a490049856f/$FILE/Chapter%2024%20-
%20National%20Security%20Structure.htm. As Secretary Rumsfeld himself noted, “I am in the chain of command”
(“Secretary Rumsfeld on ABC’s Today Show with Diane Sawyer,” news transcript, U.S. Department of Defense, May 5,
2004 [online], http://www.defenselink.mil/transcripts/2004/tr20040505-secdef0703.html).
92 Katharine Q. Seeyle, “A Nation Challenged: The Prisoners; First ‘Unlawful Combatants’ Seized in Afghanistan Arrive at
U.S. Base in Cuba,” The New York Times, January 12, 2002, p. A7.
93 “Geneva Convention Doesn’t Cover Detainees,” Reuters, January 11, 2002.
94 “Rumsfeld Visits Camp X-Ray,” CNN, January 27, 2002 [online],
http://transcripts.cnn.com/TRANSCRIPTS/0201/27/sun.09.html.
95 See Jim Garamone, “Geneva Convention Applies to Taliban, Not Al-Qaeda,” DefenseLink News (US Military), American Forces Press Service, February 7, 2002; “Redefining Torture: Did the U.S. Go Too Far in Changing the Rules, or Did It Apply the New Rules to the Wrong People?” Time Magazine, June 21, 2004.
96 Secretary Rumsfeld, “Today,” Interview by Matt Lauer, NBC, news transcript, U.S. Department of Defense, May 5, 2004 [online], http://www.dod.gov/transcripts/2004/tr20040505-secdef1425.html.
99 See “Setback for ‘US Taleban’ Defence,” BBC News, April 1, 2002 [online],
http://news.bbc.co.uk/1/hi/world/americas/1905647.stm.
100 United States of America v. John Philip Walker Lindh, U.S. District Court, E.D. Va., Crim. No. 02-37-A, Proffer of facts
in Support of Defendant’s Motion to Suppress, June 13, 2002 [online], http://www.lindhdefense.info/20020613_FactsSuppSuppress.pdf.
101 Richard A. Serrano, “Prison Interrogators’ Gloves Came off before Abu Ghraib,” Los Angeles Times, June 9, 2004.
102 Ibid. On the eve of a court hearing on his motion to suppress his confession, at which he likely would have testified to
his treatment in Aghanistan, Lindh agreed to plead guilty to lesser charges than those for which he was indicted. As part
of the arrangement Lindh — reportedly at the request of the Department of Defense — agreed to the following statement:
“The defendant agrees that this agreement puts to rest his claims of mistreatment by the United States military, and all
claims of mistreatment are withdrawn. The defendant acknowledges that he was not intentionally mistreated by the U.S.
military.” See Dave Lindorff, “A First Glimpse at Bush’s Torture Show,” Counterpunch, June 5-6, 2004; Dave Lindorff,
“Chertoff and Torture,” The Nation, February 14, 2005.
103 Schlesinger report, p. 14.
104 That doctrine is embodied in Department of the Army Field Manual 34-52: Intelligence Interrogation, which stresses
cooperation as the basis for successful interrogation. It specifically prohibits torture or coercion. The field manual also lists
relevant sections of the Geneva Conventions, including the prohibition against, “subjecting the individual to humiliating or
degrading treatment, implying harm to the individual or his property or implying a deprivation of rights guaranteed under
international law because of failure to cooperate” (Field Manual 34-52: Intelligence Interrogation, U.S. Department of the
Army, September 1992). As the working group on interrogation techniques established by Secretary Rumsfeld pointed
out, “Army interrogation experts view the use of force as an inferior technique that yields information of questionable
quality” (“Working Group Report on Detainee Interrogations on the Global War on Terrorism: Assessment of Legal,
Historical, Policy, and Operational Considerations,” April 4, 2003 [online], http://www.washingtonpost.com/wpsrv/
nation/documents/040403dod.pdf, p. 53).
105 Jerald Phifer to Commander of Joint Task Force 170, memorandum, “Request for Approval of Counter-resistance
Techniques,” October 11, 2002, which was attached to William J. Haynes II to Secretary of Defense, memorandum,
“Counter-resistance Techniques,” November 27, 2002, and approved by Secretary Rumsfeld on December 2, 2002
[online], http://www.washingtonpost.com/wp-srv/nation/documents/dodmemos.pdf, p. 1 Rumsfeld appended a handwritten
note to his authorization of these techniques: “However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?”
106 Article 5 of the Geneva Convention relative to the Treatment of Prisoners of War (1949) states:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the
hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the
protection of the present Convention until such time as their status has been determined by a competent tribunal.
107Article 31 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (Geneva Convention
IV, 1949) prohibits, “physical or moral coercion” against protected persons (i.e. non-POW prisoners), while Article 27
states that such civilian prisoners must “at all times be humanely treated, and shall be protected especially against all acts
of violence or threats thereof and against insults and public curiosity.” Article 17 of the Geneva Convention relative to the
Treatment of Prisoners of War (Geneva Convention III, 1949) states, “No physical or mental torture, nor any other form of
coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who
refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.”
115 “U.S. Senate Armed Services Committee Holds a Hearing on Military Strategy and Operational Requirements for
Combatant Commanders in Review of the Fiscal Year 2006 Defense Authorization Request,” March 15, 2005; Charlie
Savage, “Abuse Led Navy to Consider Pulling Cuba Interrogators,” The Boston Globe, March 16, 2005 [online],
http://www.boston.com/news/nation/washington/articles/2005/03/16/abuse_led_navy_to_consider_pulling_cuba_interroga
tors/.
116 In addition, there are now e-mail accounts from FBI agents released as a result of FOIA litigation. These accounts do
also not specify the dates of the observations contained.
117 “GTMO Interrogation Techniques,” (a one-page summary issued to reporters by Bush aides, listing which specific
techniques were approved and/or used), June 22,2004, as published in Karen J. Greenberg and Joshua L. Dratel, ed.,
The Torture Papers: The Road to Abu Ghraib (Cambridge: University of Cambridge Press, 2005), Appendix A. See also
Josh White, “Methods Used on 2 at Guantánamo,” The Washington Post, June 4, 2004.
118 Church report, p. 10.
119 Donald Rumsfeld to Commander USSOUTHCOM, “Counter-Resistance Techniques,” memorandum, January 15, 2003 [online], www.washingtonpost.com/wp-srv/nation/documents/011503rumsfeld.pdf.
120 Its recommendations echoed arguments put forth by then-Assistant Attorney General Jay S. Bybee detailing ways in
which interrogation techniques could be made more severe without exposing U.S. soldiers or officials to legal liability. The
findings of the working group acknowledge and then ignore the Army’s opinion that cooperation is the most effective way
to obtain intelligence from interrogations. Like the Bybee memo, the working group sought to exploit the distinction
between “torture” and “cruel, inhuman or degrading treatment” in the language of the U.N. Convention against Torture and
Other Cruel, Human or Degrading Treatment or Punishment. The working group also explored the possibility of defenses
(such as necessity and self-defense) that could excuse the use of torture during interrogation. (“Working Group Report on
Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational
Considerations,” Department of Defense, April 4, 2003. A copy of 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. 286-359.)
121 Donald Rumsfeld, Secretary of Defense, to James T. Hill, Commander, U.S. Southern Command, “Counter-Resistance
Techniques in the War on Terrorism,” memorandum, April 16, 2003. 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. 360.
122 Church report, p.7
123 Eric Schmitt, “Prison Abuse Inquiry Says Officials Had Little Oversight,” The New York Times, December 4, 2004.
124 Schlesinger report, p. 68.
125 Seymour Hersh, Chain of Command: The Road from 9/11 to Abu Ghraib (New York: HarperCollins, 2004).
126 “Defense Department Regular Briefing,” U.S. Department of Defense, news transcript, June 17, 2004 [online],
http://www.defenselink.mil/transcripts/2004/tr20040617-secdef0881.html.
127 Secretary Rumsfeld’s order led to a detention of seven months, during which the detainee was interrogated only once.
See Eric Schmitt and Thom Shanker, “Rumsfeld Issued an Order to Hide Detainee in Iraq,” The New York Times, June
17, 2004. See also Thom Shanker, “Rumsfeld Admits He Told Jailers to Keep Detainee in Iraq out of Red Cross View,”
The New York Times, June 17, 2004.
128 “There are instances where that occurs,” Rumsfeld said. “And a request was made to do that and we did” (Josh White,
“Rumsfeld Authorized Secret Detention of Prisoner,” The Washington Post, June 18, 2004).
129 Flowing from the Geneva Convention obligations, DoD regulations carry the duty to disclose details of any person in
custody. The protection is limited not only to those who have been recognized as prisoners of war but applies to any
detainee. Along with the duty of disclosure is the duty to report to Joint Chief of Staffs, Congress of the United States, the
International Committee of Red Cross and other Governmental Agencies.
130 Schlesinger, p. 36.
131 Taguba later decried Miller’s idea of transporting interrogation techniques from Guantánamo to Iraq, noting that there
were major differences between the status of the detainees in the two locations.
132 Schlesinger report, p. 8.
133 Taguba took issue with this proposal, and noted that it would be “in conflict with” the recommendations of the Ryder
report, a previous review Iraqi prisons that 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” (“Abu Ghurayb Prison Investigations: The Taguba report,” GlobalSecurity.org, March 23, 2005 [online],
http://www.globalsecurity.org/intell/world/iraq/abu-ghurayb-prison-investigation.htm).
134 E-mail from Scott Horton to Human Rights Watch, April 5, 2005.
135 Scott Horton report, p. 5. Emphasis added. None of this information appears in the official investigations listed above.
According to Horton, this was part of a conscious effort to shield Rumsfeld. “[T]his simple fact [Rumsfeld’s oral order], well
known to many senior officers involved in the process, is consciously suppressed in all accounts. Instead the Fay/Jones
account states that the visit of MG Miller was requested by CJTF-7, a statement which is technically correct and
consciously misleading” (Ibid).
136 John Barry, Michael Hirsh & Michael Isikoff, “The Roots of Torture,” Newsweek (international edition), May 24, 2004
[online], http://msnbc.msn.com/id/4989481/.
150 See e.g., Press Conference with Secretary of Defense Donald Rumsfeld, the Pentagon, January 22, 2002 (dismissing
claims about mistreatment of detainees captured in Afghanistan as “utter nonsense”); Press Conference with Secretary of
Defense Donald Rumsfeld, the Pentagon, February 12, 2002.
151 Human Rights Watch interviews with Afghan officials, Kabul, September 2002.
152 Peter Slevin and Robin Wright, “Pentagon Was Warned of Abuse Months Ago,” The Washington Post, May 8, 2004, p. A12; Mark Matthews, “Powell: Bush Told of Red Cross Reports,” The Baltimore Sun, May 12, 2004.
153 Peter Slevin and Robin Wright, “Pentagon Was Warned of Abuse Months Ago,” The Washington Post, May 8, 2004, p. A12.
162 “DoD News Briefing - Secretary Rumsfeld and Gen. Myers,” news transcript, U.S. Department of Defense, April 15,
2002 [online], http://www.defenselink.mil/transcripts/2002/t04152002_t0415sd.html. Military justice authority A.P.V.
Rogers, writing about Command Responsibility, has noted that if a commander “is told that a report deals with, say, the
massacre of civilians by troops under his command, he is put under a duty to do something about it. He cannot simply
turn a blind eye to it” (Major General (Retired) A. P. V. Rogers, “Command Responsibility under the Law of War,” [online],
http://lcil.law.cam.ac.uk/lectures/lecture_papers.php).
163 Carlotta Gall, “U.S. Military Investigating Death of Afghan in Custody,” The New York Times, March 4, 2003.
164 Amnesty International, “USA — Chronology of Correspondence and Action,” [online],
http://news.amnesty.org/pages/USchronology3.
165 Peter Slevin and Robin Wright, “Pentagon Was Warned of Abuse Months Ago,” The Washington Post, May 8, 2004.
166 Amnesty International, “Iraq: Memorandum on Concerns Relating to Law and Order,” July 23, 2003 [online],
http://web.amnesty.org/library/Index/ENGMDE141572003.
167 See Amnesty International, “USA — Chronology of Correspondence and Action,” [online],
http://news.amnesty.org/pages/USchronology3.
168 Greg Risling, “Eight California Marine Reservists under Investigation for Death of Iraqi Prisoner-of-War,” Associated
Press, October 19, 2003.
169 “Top Story,” Ventura County Star, December 18, 2003.
170 Diana Elias, “3 Reservists Discharged from Army after Abuse,” Associated Press, January 6, 2004.
171 “Iraqi Detainee Details Mistreatment by US Forces,” The Bulletin’s Frontrunner, January 13, 2004.
