February 17, 2007
The failure to investigate senior US officials for their role in authorizing detainee abuse is not for lack of evidence but for lack of political will. Only an independent prosecutor can mount credible investigations into detainee abuse issues, and Congress should press the administration to appoint one.”
Sam Zarifi, Asia research director at Human Rights Watch

(New York) - The United States has failed to adequately investigate and prosecute numerous cases of detainee abuse by US personnel in Afghanistan, Human Rights Watch said today.

Human Rights Watch welcomed the sentence handed down this week against a CIA contractor convicted in the killing of an Afghan detainee in 2003, but said this was a singular exception to an otherwise poor record of accountability.

On February 13, a US federal court sentenced David Passaro, a CIA contractor found guilty of assault in the beating death of Abdul Wali at a border post on the Pakistan border in June 2003, to eight-and-a-half years in prison. Human Rights Watch called on the US government to provide accountability for several other cases of alleged abuse and killings by US forces in Afghanistan.

“No one should be above the law in Afghanistan,” said Sam Zarifi, Human Rights Watch’s Asia research director. “The United States and its allies have promised to reform the rule of law and the justice system in Afghanistan, but until the US is willing to provide accountability for its own forces, these pledges are not credible.”

Human Rights Watch cited numerous cases of abuse and killings in Afghanistan implicating US military and Central Intelligence Agency (CIA) personnel, in which US authorities have failed to hold perpetrators responsible.

The Passaro case is similar to many other cases of alleged abuse by US soldiers in Afghanistan. According to facts presented at trial, Passaro, a CIA contractor stationed with US military forces at Asadabad airbase, subjected Wali to a “chamber of horrors,” ordering military guards to keep Wali from sleeping and denying him food and water. Witnesses said that Passaro forced Wali to endure over 48 hours of interrogation and beatings, hitting Wali on the shins, elbows and wrists, and kicking Wali in the groin so hard that the blow lifted him off the ground. Witnesses said Wali begged personnel to shoot him, and before he died, was moaning “I’m dying.” Throughout the ordeal, Wali denied any role in the rocket attacks. He died on his fourth day in custody.

Human Rights Watch noted that Passaro could have been charged for torture and homicide, which carry life sentences under federal law. No one else who was present during Wali’s interrogation has been prosecuted or reprimanded.

“One person going to prison is not accountability for widespread abuse,” said Zarifi. “Numerous other US personnel have been implicated in detainee killings in Afghanistan, yet few have been punished – and most of those punished have received only slaps on the wrist.”

Human Rights Watch said the US military had not adequately investigated numerous other cases of abuse implicating military personnel, including several killings of detainees in Afghanistan in 2002 and 2003. Nor has the military sought to prosecute senior officers on the grounds of command responsibility for failing to stop abuses that they knew or should have known were occurring. The failure of accountability in Afghanistan is notable because a military unit involved in interrogations in Afghanistan in 2002 – the Army’s 519th Military Intelligence Battalion – was later sent to Iraq and implicated in infamous abuses that took place at Abu Ghraib prison.

Human Rights Watch also criticized the US Department of Justice for failing to investigate whether civilian leadership in the CIA and military committed crimes by authorizing abusive interrogations in Afghanistan. In an earlier report, Human Rights Watch documented how authorizations for abuse likely spread from Afghanistan to Iraq, after the United States invaded in 2003.

“The failure to investigate senior US officials for their role in authorizing detainee abuse is not for lack of evidence but for lack of political will,” said Zarifi. “Only an independent prosecutor can mount credible investigations into detainee abuse issues, and Congress should press the administration to appoint one.”

The US military continues to operate in Afghanistan without any legal framework, such as a Status of Forces Agreement with the Afghan government, and to detain hundreds of Afghans without any legal process. US forces at a minimum are obligated to treat detainees in accordance with the fundamental guarantees provided by international humanitarian law.

“The Afghan constitution, passed in 2004, does not apply in practice to Afghans held by the United States,” said Zarifi. “US forces in Afghanistan are operating outside the rule of law.”

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Detainee Deaths in Afghanistan:

First Death of a Detainee: September 2002

According to military documents released to the American Civil Liberties Union as part of a Freedom of Information Act request, four US military personnel in Afghanistan killed an Afghan detainee in September 2002, the earliest known death of a person in US custody in Afghanistan. According to the documents, the Army Criminal Investigative Command opened an investigation in September 2002 – over four years ago – into charges of murder, conspiracy, and obstruction of justice in conjunction with the case. One document stated 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.” The government never prosecuted any of the four personnel implicated. Army CID investigation documents detail that investigators found probable cause to recommend charges of murder and conspiracy, dereliction of duty, and a charge of obstruction of justice against the captain. However, commanders ultimately decided not to order a court-martial, and the case was closed. The only action commanders took was to reprimand the captain for destroying evidence. No further action was taken against the four.

Death of a CIA detainee at the “Salt Pit”

In December 2002, a CIA officer working at a facility near Kabul, Afghanistan, referred to as the “Salt Pit,” ordered an Afghan detainee to be stripped naked, dragged around naked on rocky ground, and then restrained overnight, naked, in the cold. The detainee died that night, presumably from hypothermia. An internal CIA investigation into the death resulted in a criminal referral to the Department of Justice, but it does not appear that the Department of Justice ever sought to investigate or bring criminal charges. The officer implicated in the death was reportedly promoted. Department of Justice officials refused to provide Human Rights Watch with any details about whether this case was among detainee abuse cases still being investigated.

Killing of an Allied Afghan Soldier in Gardez in March 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 on September 21, 2004.)

Jamal Naseer, a soldier in the Afghan National Army, was killed in March 2003 after he and seven other soldiers were mistakenly arrested by US 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 National Army, and the Crimes of War project. The investigations showed that US forces severely beat Naseer and the other soldiers while in custody. Numerous witnesses who saw them at the time (including UN representatives) described them as bearing wounds and heavy bruises. The surviving detainees themselves allege that US 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. Over two years later, in early 2007, CID sent recommendations to Special Forces Command in Fort Bragg, North Carolina, that two soldiers be charged with abuse in relation to the death and beatings. On the evening of January 27, 2007 – a Friday night after close of business – Special Operations Command released a statement that two soldiers would receive administrative reprimands, but not face courts-martial.

Case from Gardez in 2004

An Afghan detainee died in US custody in Gardez 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 US forces. Sher Mohammad Khan died sometime later the next day at a US 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 US custody. Khan’s family has told investigators with AIHRC that the body was bruised when they retrieved it from US forces. But later, in January 2005, a US military official said that Khan, before he died, had complained of “being bitten by a snake.” Human Rights Watch is not aware of any criminal investigation into the death.

Two Deaths at Bagram in December 2002

Two detainees died at the US air base at Bagram in December 2002. The two detainees, named Habibullah and Dilawar, died after suffering extensive beatings and mistreatment by military intelligence and military police. The killings were not fully investigated by Army criminal investigators until details of the deaths were reported in the New York Times. Investigators ultimately recommended that at least 27 different personnel, including military police, be criminally charged, both for crimes relating to the deaths and for other abuses of detainees at Bagram that were documented during the investigation. As of February 2007, however, few of the soldiers and officers implicated in connection with the killings have been punished, and none of those convicted were sentenced to more than a few months in prison (the sentences were two months, two-and-a-half months, three months, and five months, respectively).

Two of the military police received particularly light punishments: Willie Brand, who admitted to kicking and striking one of the detainees over 30 times, and who was initially charged with homicide and ultimately found guilty of cruelty and maltreatment, assault, maiming, and making a false official statement – crimes that carried a potential 16-year prison sentence – was only punished with a rank reduction and received an honorable discharge. Selena Salcedo, another soldier directly involved in beating the detainees and found guilty of assault and dereliction of duty, was merely fined $1,000 (payable in four installments of $250) and given a letter of reprimand. Two other guards, though implicated by other soldiers who testified as witnesses, were acquitted.

Although evidence uncovered during the investigation that commanders up the chain of command had authorized harsh interrogation methods at the time of the beatings, no senior officers have even been investigated for criminal liability under the command responsibility doctrine. One officer charged for command failure was charged for dereliction of duty in failing to properly train his troops, and he was acquitted. The military intelligence officer overseeing the interrogations of the detainees who were killed – Captain Carolyn Wood – was not charged with any crime, nor even reprimanded. No other officer has been charged in this case as a principal in the commission of any crime.

Background on the Passaro Case

David Passaro was convicted in August 2006 of assault charges in connection with the killing of Abdul Wali, an Afghan farmer arrested in Asadabad, in Eastern Afghanistan, June 2003, suspected of involvement in rocket attacks on a military post. Passaro, a former CIA contractor, had no experience in military intelligence or interrogations, but took a lead role in interrogating Wali.

According to the prosecution, Wali was subjected to a “chamber of horrors” by Passaro, who ordered guards to keep Wali from sleeping and to limit his access to food and water. According to witnesses, Passaro subjected Wali to over 48 hours of interrogation and beatings, hitting Wali on the shins, elbows and wrists, and kicking Wali in the groin so hard that the blow lifted him off the ground. Witnesses said Wali begged them to shoot him, and before he died, was moaning “I'm dying.” Throughout the ordeal, Wali repeatedly denied any role in the rocket attacks. He died on his fourth day in custody.

Although Passaro could have been charged under federal homicide and torture statutes, prosecutors charged him only with assault charges; he was ultimately convicted of only one felony assault charge and three charges of “simple assault.”

Passaro faced a minimum of 15 months in prison and a maximum of 11-and-a-half years. Federal sentencing guidelines specified a baseline at the minimum of 15 months. During the sentencing hearing on February 13, Judge Terrence Boyle grilled prosecutors about their requests for upward departures from the sentencing guidelines. Prosecutors provided various justifications, noting that Wali was shackled and prone; that the detainee had died; and that the crime had damaged US operations in Afghanistan. In the end, although Judge Boyle questioned their assertions, he made a significant upward departure to 8-and-a-half years, closer to the maximum than the minimum.