December 14, 2004
The detention system in Afghanistan continues to operate outside the rule of law. The United States continues to hold Afghan detainees in legal limbo and in many cases incommunicado, in violation of U.S. obligations under the laws of armed conflict and applicable Afghan law.
Brad Adams, Executive Director, Asia

Donald Rumsfeld
Secretary of Defense
1000 Defense Pentagon
Washington, DC 20301-1000

Dear Secretary Rumsfeld,

We are writing to you regarding U.S.-administered detention facilities in Afghanistan. We are troubled by new allegations of serious abuse by U.S. military personnel and by the failure of your office to make public the results of investigations into past abuses and take adequate steps to hold abusers accountable. In most cases of which we are aware, the Department of Defense has launched criminal investigations only after particular abuses received media attention. These investigations have proceeded extremely slowly and in excessive secrecy. An internal Pentagon investigation of detention operations in Afghanistan, conducted by Brig. Gen. Charles H. Jacoby, has been completed, but remains classified, unlike similar reports on abuses in Iraq.

Six detainees are now known to have died in U.S. custody in Afghanistan—including four known cases of murder or manslaughter—and former detainees have made scores of other claims of torture and other mistreatment. Some of the cases took place over two years ago. Yet to our knowledge, the U.S. government has conducted only a handful of criminal investigations, and has charged only two people with any crime in these cases.

The government’s failure to hold its personnel accountable for serious abuses has spawned a culture of impunity among some personnel. And as you know, some of the personnel involved in earlier abuses in Afghanistan have now been implicated in later abuses in Iraq.

Over nine months ago, in March 2004, we issued a report, "Enduring Freedom": Abuses by U.S. Forces in Afghanistan, focusing on arrest and detention procedures by U.S. forces in Afghanistan. The report documented cases of U.S. personnel arbitrarily detaining civilians, using excessive force during arrests of non-combatants, and mistreating detainees. Detainees held at military bases in 2002 and 2003 described being beaten severely by guards and interrogators, deprived of sleep for extended periods, and intentionally exposed to extreme cold, as well as other inhumane and degrading treatment.

The report discussed three deaths known at the time to have occurred in U.S. custody: the death of a detainee in Asadabad in June 2003, and the deaths of two detainees at Bagram airbase in December 2002 which were ruled as homicides by U.S. military pathologists.

The detention system in Afghanistan continues to operate outside the rule of law. The United States continues to hold Afghan detainees in legal limbo and in many cases incommunicado, in violation of U.S. obligations under the laws of armed conflict and applicable Afghan law. There are fewer recent complaints about the central detention facility at Bagram air base, where serious abuses had occurred in the past. However, allegations of abuse and arbitrary detention continue to surface at forward operating bases, such as those near Gardez, Khost, Urgon, Ghazni, and Jalalabad.

New Developments
Since the publication of our March report, several new cases of serious abuse have come to light. Through 2004, the Afghan Independent Human Rights Commission (AIHRC), a government-appointed body with a proven track record of credibly reporting on human rights conditions, has received numerous complaints about mistaken arrests, arbitrary detention, and mistreatment and beatings of detainees by U.S. forces. Human Rights Watch’s interviews with former detainees bolster these reports of ongoing abuses.

Human Rights Watch has also learned of additional detainee deaths that were not documented in our March report. We call on you to take action to ensure full accountability for these cases:

• A new case from 2002. Just last week, new evidence emerged of a previously unpublicized alleged murder of an Afghan detainee by four U.S. military personnel in Afghanistan in or before September 2002. This is the earliest known death of a person in U.S. custody in Afghanistan. According to internal Department of Defense documents, recently released to the American Civil Liberties Union as part of a Freedom of Information Act request, the Army Criminal Investigative Command opened an investigation on September 26, 2002—over two years ago—into charges of “Murder,” “Conspiracy,” and “Obstruction of Justice” in conjunction with the case. The document states that “CPT (captain) [name redacted], SFC (Sergeant First Class) [name redacted], SSG (Staff Sergeant [name redacted], and SSG (Staff Sergeant) [name redacted] murdered Mr. [redacted] after detaining him for following their movements in Afghanistan.” To our knowledge, the government has not prosecuted any of the four personnel implicated. The report indicates that the case was “closed” and that a “4833” was received in the case—presumably, a Commander’s Report of Disciplinary or Administrative Action, known as DA Form 4833—which suggests that a final disciplinary or administration action has taken place. Yet we know of no courts martial that have taken place with respect to this “murder.” We call on you to explain what disciplinary or administrative actions were taken by the Department of Defense in this case and the basis for these measures.

• A new case from 2003. Another death in custody was uncovered in September 2004 by researchers with the Crimes of War project, a non-government organization. The findings were later published in the Los Angeles Times (September 21, 2004). Jamal Naseer, a soldier in the U.S.-backed official Afghan Army, was killed in March 2003 after he and seven other soldiers were mistakenly arrested by U.S. forces and taken to a base in Gardez. Their case was investigated by the United Nations office in Gardez, the office of the Attorney General of the Afghan Army, and the Crimes of War project. The investigations showed that U.S. forces severely beat Naseer and the other soldiers while in custody. Numerous witnesses who saw them at the time (including U.N. representatives) described them as having wounds and heavy bruises. The surviving detainees themselves allege that U.S. forces punched them, kicked them, hung them upside down, and hit them with sticks or cables, among other abuses. Some said they were soaked in cold water and forced to lie in snow, and shocked with electricity on their toes. The Army Criminal Investigative Command opened an investigation into this case in May 2004, but to our knowledge it has not reached any results and has not charged any one in connection with the death or the abuses against the seven other soldiers held with Naseer. We request that you publicize the results of this investigation and initiate appropriate prosecutorial and administrative measures against those responsible.

• A new case from 2004. Another detainee died in U.S. custody in September 2004. Sher Mohammad Khan was arrested on September 24, 2004 during a raid on his family’s home near Khost in which his brother, Mohammad Rais Khan, was shot and killed by U.S. forces. Sher Mohammad Khan died sometime later the next day at a U.S. military base. Military officials in Khost told journalists that he had died of a heart attack, and that the Khan family were “bad guys.” As noted above, Khan died within hours of being taken into U.S. custody. Khan’s family has told investigators with AIHRC that the body was bruised when they retrieved it from U.S. forces. We urge you to order a thorough investigation to determine the circumstances of Sher Mohammad Kkan’s death, release the results of his autopsy, and allow representatives of the AIHRC to discuss the case with U.S. investigators.

Earlier Cases
In addition to the three deaths in custody cited above, we remain concerned about the three cases described in our March 2004 report. Two men, Habibullah and Diliwar, died at Bagram air base in December 2002. Another, Abdul Wali, died in June 2003 at the Asadabad airbase.

There appears to have been little progress in these three other cases. A full investigation into the two deaths at Bagram was only launched in March 2003, after the New York Times (March 4, 2003) reported that the deaths had been ruled homicides by Army pathologists. (Lt. Gen. Dan McNeill, who was the commander of U.S. forces in Afghanistan at the time, had ordered an investigation into the two deaths in early 2003, but the investigation did not result in any findings of criminal behavior, and recommended no courts martial.) The investigation by the Criminal Investigative Command dragged on without result for over a year and a half. The U.S. military command in Kabul promised that they would share the results of investigations with the chief U.N. representative in Afghanistan, Lakhdar Brahimi, but to our knowledge never did. Army investigators also told Human Rights Watch repeatedly over 2003 and 2004 that the investigation was “almost finished,” but failed to provide any information about its findings.

The Criminal Investigative Command finally completed a classified report on the deaths in May 2004, recommending that 28 personnel be prosecuted in connection with the deaths. The crimes identified in the report included negligent homicide, maiming, maltreatment, assault consummated by battery, conspiracy, and dereliction of duty. According to the Washington Post, which obtained a copy of the report and cited its findings in an article on December 3, 2004, other abuses discussed in the report include “slamming prisoners into walls, twisting handcuffs to cause pain, kneeing prisoners, forcing a detainee to maintain ‘painful, contorted body positions,’ shackling the detainee’s arms to the ceiling, and forcing water into the mouth of the detainee ‘until he could not breathe.’”

None of these allegations were made available to the public in a timely manner. Only in October 2004 did the Criminal Investigative Command finally announce publicly that it had recommended the 28 persons for prosecution in connection with the deaths at Bagram. Yet even now, the case appears stalled: several of the interrogators named in the report were first recommended for prosecution much earlier, in December 2003, yet remain uncharged. The Criminal Investigative Command to date has charged only one person in connection with the deaths. When Human Rights Watch inquired about the cases last week, Public Affairs Officers refused to offer any further information.

Human Rights Watch has also learned that Capt. Carolyn A. Wood, the head of the interrogation unit at Bagram from July 2002 to December 2003, is not among the 28 recommended for prosecution. According to an internal Department of Defense report by Maj. Gen. George Fay and Lt. Gen. Anthony Jones (the Fay-Jones report), Capt.Wood drew up the harsh interrogation techniques that interrogators later used at Abu Ghraib, techniques which she had previously approved in Afghanistan, according to an Army lawyer who testified before Congress in May 2004. In August, a former Bagram interrogator told a Knight-Ridder journalist that at the time of the two deaths screams and moans could easily be heard from interrogation rooms at Bagram, and that Wood must have been aware of the abuse, as the interrogation rooms were near her office. In any case, by virtue of her position, Capt. Wood should have been aware that abuse was taking place. We are concerned that, as at Abu Ghraib, the U.S. government appears more interested in blaming abuses on low-level personnel than in investigating the role of commanding officers and civilian officials.

As for the case of the June 2003 death of Abdul Wali, in Asadabad, we are troubled that over a year passed before the military took action on the case, and that the government sought an indictment in the case only after the Abu Ghraib photos became public. While a federal court in North Carolina indicted David Passaro, a CIA contractor, in June 2004, Defense Department documents released to the ACLU indicate that the Criminal Investigative Command “reopened” the investigation into the Asadabad death on May 25, 2004, only after the Abu Ghraib scandal surfaced. This suggests that the United States had no intention of prosecuting anyone in the case until after the bad publicity from Abu Ghraib. We are also concerned that Passaro might not be the only person responsible in the death: Afghan witnesses allege that other U.S. personnel were with Passaro during the interrogation period. The CIA generally has not adequately responded to allegations that its personnel have tortured persons captured in Afghanistan.

To our knowledge, the government has not recommended any prosecutions with regard to other allegations of torture and mistreatment. Released detainees held in facilities in Bagram, Kandahar, Jalalabad, Asadabad, Gardez, and Khost have made serious allegations to Human Rights Watch, as well as to U.N. and Afghan officials, about numerous other cases of ill-treatment from December 2001 to the present. We know of no prosecutions initiated in connection with any of these allegations.

We are also concerned about new allegations of serious abuse at U.S. forward operating bases—smaller military posts in remote areas. Released detainees have provided both Human Rights Watch and the AIHRC numerous new complaints in 2004 about the behavior of Special Forces soldiers, who often work alongside CIA personnel and operate at forward bases, sometimes without coordination with Afghan government officials or other U.S. forces on the ground. Reported abuses include beatings, sexual humiliation, and exposure to cold. There appears to be no effective mechanism for monitoring the conditions at remote locations maintained by Special Forces or CIA teams. One Army detective, talking about his difficulties in conducting investigations at the Gardez forward operating base, told the Los Angeles Times (September 21, 2004): “We don’t know what unit was there. There are no records. The reporting system is broke across the board. Units are transferred in and out. There are no SOPs [standard operating procedures] . . . and each unit acts differently. . . . Gardez is the worst facility—it is three or four times as bad as any other base in Afghanistan.”

Inaction and Lack of Transparency
In our March 2004 report, we called on the United States government to, among other things:

• End incommunicado detention practices that facilitate mistreatment.
• Fully and impartially investigate allegations of mistreatment of detainees in detention at all U.S. facilities in Afghanistan and make public the results of those investigations.
• Take disciplinary or criminal action as appropriate against all personnel responsible for mistreating or otherwise violating the rights of detainees.

It is clear that the U.S. government has fulfilled none of these recommendations. The United States continues to detain persons in Afghanistan without any recognized legal process. There is no access to these sites by family members of the detained, legal counsel, or representatives of the Afghan Independent Human Rights Commission. Many detainees, especially those held for long periods at forward operating bases, are never seen by representatives of the International Committee of the Red Cross (ICRC). Three former interrogators who worked in Afghanistan in 2002 and 2003 told a journalist with Knight-Ridder (August 22, 2004) that it was standard operating procedure in 2002 to hide some detainees from the ICRC in Afghanistan, sometimes for several months—a practice that violates the Geneva Conventions. (This practice was also used in Iraq, according to Fay-Jones report , and the Pentagon report by Maj. Gen. Antonio Taguba.)

To date, the government has charged only two people in connection with detainee abuse in Afghanistan, while six deaths and scores of other claims of torture and mistreatment are reported to have occurred. This reveals a large-scale failure of accountability within the military. (By way of comparison, we note the relative speed of prosecutions in the case of two Air Force pilots involved in the friendly-fire death of four Canadian troops near Kandahar in April 2002: both were charged four months after the incident.)

Your office has also failed to publicize the results of investigations into detention sites in Afghanistan. In May 2004, Lt. Gen. David Barno, the chief of military operations in Afghanistan, announced that Brig. Gen. Charles H. Jacoby would conduct an in-depth investigation of U.S. detention sites in Afghanistan, report back to Gen. Barno in June, and that your office would publicize parts of that report. But you have failed to make public the findings of the Jacoby report, which was finished almost six months ago.

In June 2004, we wrote to Gen. Jacoby, soon after he was appointed by Gen. Barno to conduct an investigation into mistreatment allegations in Afghanistan. We offered to brief Gen. Jacoby or his staff. Gen. Jacoby replied in a letter of June 12, 2004 that he would be unable to meet because he was focusing all of his “available time and efforts” towards the investigation. We were disappointed that Gen. Jacoby’s investigation did not include discussions with Human Rights Watch staff, who had written the only public report about U.S. abuses in Afghanistan and were in a unique position to provide information for his investigation. We have also tried to raise detention issues in other meetings with your staff—meetings to discuss other human rights issues in Afghanistan—but have not received adequate feedback or acknowledgement about our concerns.

The Afghan Independent Human Rights Commission has repeatedly requested meetings with the staff of Gen. Barno to discuss their findings and concerns. They have also repeatedly asked Gen. Barno’s office for access to detention sites, but have as yet received no response. U.S. military personnel outside of Kabul, approached by Commission staff seeking to discuss detention cases, have treated the staff rudely—in some cases even threatening them with beatings or arrest. In a recent interview, a senior military official in Kabul told journalist James Rupert (Newsday, November 14, 2004) that the U.S. command in Kabul is not sure if Commission members are “good guys.” The suggestion that the AIHRC is not trustworthy, or that their access to detention sites might be a security treat, is without merit and insulting to AIHRC. The U.S. government has on several occasions pointed to the work of the AIHRC as evidence of progress in Afghanistan. U.S. officials from other departments meet regularly with the AIHRC, and the U.S. government helps to fund its work. We would also point out that, in Iraq, the Iraqi Ministry of Human Rights has access to Abu Ghraib and other U.S.-run detention sites.

The Importance of Accountability
We strongly urge you to immediately correct these problems and take action to restore a sense of accountability among forces deployed in Afghanistan. Under the Geneva Conventions, the United States is obligated to investigate grave breaches, such as willful killings, and prosecute those responsible. Beyond this legal obligation, the United States must restore accountability to prevent future abuse. We note again that some of the interrogators and military police who ended up being implicated in the Abu Ghraib scandal (members of the 519th Military Intelligence Battalion and the 377th Military Police Company) were earlier involved in deaths and abuse in Afghanistan. A senior Army lawyer, Col. Marc Warren, testified in Congress in May of this year that Capt. Carolyn Wood brought interrogation procedures to Iraq that were developed during the 519th Battalion’s service in Afghanistan. This suggests that some of the later abuse in Iraq was preventable. Had the investigation and prosecution of abusive interrogators in Afghanistan in 2002 proceeded in a timely manner, it is possible that the abusive techniques might have been abandoned, and that many of the abuses seen in Iraq could have been avoided. It also suggests that past failures to establish accountability may be leading to further abuses today.

We strongly urge you to take the necessary steps to correct the problems noted above. We request that you:

• Issue a clear policy on interrogation applicable to forces in Afghanistan,
repudiating all methods that violate international, U.S. and Afghan law.
• Order the public release of the Jacoby report.
• Order the U.S. military command in Afghanistan to meet with epresentatives of the Afghan Independent Human Rights Commission to facilitate their access to detention sites and allow them to share their findings and concerns with you.
• Ensure that criminal investigations into abuses and deaths of detainees in Afghanistan include investigations into the relevant actions of senior commanders and Department of Defense officials.
• Ensure that persons recommended for prosecution are brought to justice in a timely and transparent manner.

We would be happy to meet with you or your staff to discuss any of these matters further.

Sincerely,

Brad Adams
Executive Director

Cc: Porter Goss, Director of the Central Intelligence Agency

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