April 24, 2005

IV. 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. law[80] and international law.[81]

In addition, the doctrine of "command responsibility" or "superior responsibility" holds that individuals who are in civilian or military authority may under certain circumstances be criminally liable not for their actions, but rather for the crimes of those under their command. As explained in the annex to this report, three elements are needed to establish such liability:

1.There must be a superior-subordinate relationship;

2.The superior must have known or had reason to know that the subordinate was about to commit a crime or had committed a crime; and

3.The superior failed to take necessary and reasonable measures to prevent the crime or to punish the perpetrator.

The crimes discussed below - war crimes and torture - are punished respectively by the War Crimes Act of 1996, 18 U.S.C. § 2441, and the Anti-Torture Act of 1996, 18 U.S.C. § 2340.

The War Crimes Act provides criminal punishment for whomever, inside or outside the United States, commits a war crime, if either the perpetrator or the victim is a member of the U.S. Armed Forces or a national of the United States. A "war crime" is defined as any "grave breach" of the Geneva Conventions or acts which violate common Article 3 of those pacts.[82] "Grave breaches" include "willful killing, torture or inhuman treatment" of prisoners of war (POWs) and of civilians qualified as "protected persons." Common Article 3 prohibits, inter alia, murder, mutilation, cruel treatment and torture, and "outrages upon personal dignity, in particular humiliating and degrading treatment."

The Anti-Torture Act criminalizes acts of torture - including attempts to commit torture and conspiracy to commit an act of torture - occurring outside the United States' territorial jurisdiction regardless of the citizenship of the perpetrator or victim.[83] In the case of torture committed within the United States, as for instance at Guantánamo, prosecution would be possible under several federal statutes, among them the civil rights laws, which bar government employees from using excessive force, and laws against homicide, battery, and the like.[84] Similarly, state criminal laws could be invoked for any abuse taking place within particular states.

The USA Patriot Act expanded U.S. federal criminal jurisdiction to, among other things, U.S. military bases and U.S. government properties abroad. This is the jurisdictional basis for the criminal case against a CIA contractor.

In addition, the Uniform Code of Military Justice (UCMJ),[85] which provides procedures for courts martial, applies to the conduct of all persons serving in the U.S. Armed Forces,[86] including the officers identified below. (These officers are thus potentially subject to the concurrent jurisdiction of civilian courts and the UCMJ.) The UCMJ applies worldwide.[87] It comprises a set of criminal laws, which include many crimes punished under civilian law (e.g., assault, manslaughter, murder, rape, etc.), as well as offenses such as cruelty and maltreatment [88]and dereliction of duty [89](these are separate offenses under 10 U.S.C. §892). In addition, a service member whose conduct is alleged to violate a federal criminal law, such as the Anti-Torture Statute, could be prosecuted under Article 134 of the UCMJ.

Human Rights Watch expresses no opinion about the ultimate guilt or innocence of the four officials listed below, or of any other officials, particularly because so much evidence has been withheld and so many questions remain unanswered, but does believe that a prima facie case exists that warrants the opening of a criminal investigation with respect to each.

Secretary of Defense Donald Rumsfeld

"These events occurred on my watch. As Secretary of Defense I am accountable for them. I take full responsibility."
                                                                        - Donald Rumsfeld[90]

 

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 Afghanistan 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."

Secretary Rumsfeld's belittling of the Geneva Conventions created a climate in which respect for legal norms by U.S. troops may have been loosened. In May 2004, for instance, a member of the 377th Military Police Company told TheNew York Times that the labeling of prisoners in Afghanistan as "enemy combatants" not subject to the Geneva Conventions contributed to their abuse. "We were pretty much told that they were nobodies, that they were just enemy combatants," he said. "I think that giving them the distinction of soldier would have changed our attitudes toward them."[97]

Similarly, speaking of the decision to apply Geneva Convention rules only where this was "appropriate" and "consistent with military necessity," William H. Taft IV, who until recently served as the State Department's top legal adviser said it:

unhinged those responsible for the treatment of the detainees in Guantánamo from the legal guidelines for interrogation of detainees reflected in the Conventions and embodied in the Army field manual for decades. Set adrift in uncharted waters and under pressure from their leaders to develop information on the plans and practices of al Qaeda, it was predictable that those managing the interrogation would eventually go too far[98]

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 stripped 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.

Additionally, Army Field Manual 34-52 cites "forcing an individual to stand, sit, or kneel in abnormal positions for prolonged periods of time" as an example of torture. Mental torture includes "abnormal sleep deprivation," which may or may not have resulted from the authorization of light control and loud music. The field manual also prohibits forms of coercion including threats. Perhaps most importantly, the field manual instructs soldiers, when in doubt, to ask themselves: "If your contemplated actions were perpetrated by the enemy against U.S. POWs, you would believe such actions violate international or U.S. law."[108]

As the U.N.'s Special Rapporteur on Torture made clear in his 2004 report to the U.N. General Assembly, the techniques also violate the prohibitions of the Convention against Torture[109]:

The Special Rapporteur has recently received information on certain methods that have been condoned and used to secure information from suspected terrorists. They notably include holding detainees in painful and/or stressful positions, depriving them of sleep and light for prolonged periods, exposing them to extremes of heat, cold, noise and light, hooding, depriving them of clothing, stripping detainees naked and threatening them with dogs. The jurisprudence of both international and regional human rights mechanisms is unanimous in stating that such methods violate the prohibition of torture and ill-treatment.[110]

Indeed, the United States has denounced as torture these same methods when practiced by other countries, including Burma (being forced to squat or remain in uncomfortable periods for long periods of time), Egypt (stripping and blindfolding of prisoners), Eritrea (tying of hands and feet for extended periods of time), Iran (sleep deprivation and "suspension for long periods in contorted positions"), Iraq (food and water deprivation), Jordan (sleep deprivation and solitary confinement), Pakistan (prolonged isolation and denial of food or sleep), Saudi Arabia (sleep deprivation), Tunisia (food and sleep deprivation), and Turkey (prolonged standing, isolation).[111] In the most recent report covering the use of torture in 2004, the State Department criticized: Egypt for stripping and blindfolding detainees and pouring cold water on them; Tunisia, Iran, and Libya for using sleep deprivation; Libya for threatening chained detainees with dogs; and North Korea for forcing detainees to stand up and sit down to the point of collapse.[112]

Of Secretary Rumsfeld's methods, "fear of dogs…to induce stress" deserves special attention. Threatening a prisoner with torture to make him talk is considered to be a form of torture or cruel, inhuman or degrading treatment.[113] Threatening a prisoner with a ferocious guard dog is no different as a matter of law from pointing a gun at a prisoner's head. And, of course, many of the pictures from Abu Ghraib show unmuzzled dogs being used to intimidate detainees, sometimes while they are cowering, naked. As General Fay noted, "When dogs are used to threaten and terrify detainees, there is a clear violation of applicable laws and regulations."[114]

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 sufficiently 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:

Should you determine that particular techniques in either of these categories are warranted in an individual case, you should forward that request to me. Such a request should include a thorough justification for the use of such techniques.[119]

Also on January 15, 2003, Secretary Rumsfeld ordered the establishment of a working group to consider the legal permissibility of interrogation techniques in the "war on terror." The working group played a significant role in relaxing the definition of torture.[120] Based on the recommendations of this group, Secretary Rumsfeld issued a final interrogation policy for Guantánamo on April 16, 2003. These guidelines, while more restrictive than the December 2002 rules, still allowed techniques that go beyond what the Geneva Conventions permitted for POWs.[121] Indeed, the Secretary's memo itself states in relation to several techniques - including isolation and removing privileges from detainees - that "those nations that believe detainees are subject to POW protections" may find that technique to violate those protections.

The Schlesinger report found that "the augmented techniques [approved by Secretary Rumsfeld] for Guantánamo migrated to Afghanistan and Iraq where they were neither limited nor safeguarded."

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-Qaeda-linked 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 frustration 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]

The record of what orders, if any, Secretary Rumsfeld gave to Gen. Miller is confused. Undersecretary of Defense for Intelligence Stephen A. Cambone, Secretary Rumsfeld's top intelligence aide, testified that Gen. Miller went to Iraq "with my encouragement,"[137] but Gen. Miller testified that he had no conversations with Undersecretary Cambone either before or after his Iraq visit.[138] Col. Thomas Pappas, who commanded the 205th Military Intelligence Brigade at Abu Ghraib, said that Gen. Miller sent a draft report of his findings during his visit to Secretary Rumsfeld,[139] but both Rumsfeld and Cambone denied having seen any instruction that MP's be used for "enabling interrogation."[140]

The interplay between Secretary Rumsfeld and Gen. Miller is critical to determining Secretary Rumsfeld's causal link with the Abu Ghraib abuses (although it does not determine any command responsibility). The questions posed at a congressional hearing by Senator Hillary Clinton to Gen. Taguba remain largely unanswered:

If, indeed, General Miller was sent from Guantánamo to Iraq for the purpose of acquiring more actionable intelligence from detainees, then it is fair to conclude that the actions that are at point here in your report are in some way connected to General Miller's arrival and his specific orders, however they were interpreted, by those MPs and the military intelligence that were involved. … Therefore, I for one don't believe I yet have adequate information from Mr. Cambone and the Defense Department as to exactly what General Miller's orders were, what kind of reports came back up the chain of command as to how he carried out those orders, and the connection between his arrival in the fall of '03 and the intensity of the abuses that occurred afterward. [141]

On September 14, 2003, the top U.S. commander in Iraq, Lt. Gen. Ricardo Sanchez, implemented Gen. Miller's proposals by adopting a policy that brought back into play the techniques which Secretary Rumsfeld had approved in December 2002 for use at Guantánamo. Gen. Sanchez's memo authorized 29 interrogation techniques, including the "presence of military working dog: Exploits Arab fear of dogs while maintaining security during interrogations," and sleep deprivation,[142] both approved by Secretary Rumsfeld for Guantánamo. The memo also authorized techniques to alter the environment of prisoners, such as adjusting temperatures or introducing unpleasant smells, while recognizing that "some nations may view application of this technique in certain circumstances to be inhumane." Yelling, loud music, and light control were also approved "to create fear, disorientate [the] detainee and prolong capture shock."[143]

Between three and five interrogation teams were sent in October from Guantánamo to the American command in Iraq "for use in the interrogation effort" at Abu Ghraib.[144]

Beyond this, the Schlesinger report noted that "senior leaders expressed, forcibly at times, their needs for better intelligence." It also concluded that a number of high-level visits to Abu Ghraib contributed to this pressure, including those by Gen. Miller and "a senior member of the National Security Council Staff."[145] This second visit, focused primarily on intelligence collection,[146] led "some personnel at the facility to conclude, perhaps incorrectly, that even the White House was interested in the intelligence gleaned from their interrogation reports."[147] Lieutenant Colonel Stephen L. Jordan, who served as Chief of the Joint Interrogation Debriefing Center at Abu Ghraib, told Gen. Taguba that he "spent more time running around, being an aide-de-camp … [for] general officers and folks from the White House … than I can shake a stick at."[148] He added, "Sir, I was just told a couple times by Colonel Pappas that some of the reporting was getting read by Rumsfeld, folks out at Langley, some very senior folks…So, I would say it is a true statement sir, that Colonel Pappas was under a lot of pressure to produce, sir, and to produce quality reporting."[149]

Thus, at a time when (as will be shown below) reports of detainee abuse by U.S. troops were mounting, these troops were placed under added pressure to extract intelligence from detainees, and illegal interrogation methods were re-introduced.

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 TheWashington 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]

The Defense Department was warned about the abuse of detainees

The ICRC delivered repeated warnings during the same period. The organization paid 29 visits to 14 detention centers in Iraq, delivering oral and written reports to U.S. officials in Iraq after each visit.[154]

According to the ICRC:

In May 2003, the ICRC sent to the CF [Coalition Forces] a memorandum based on over 200 allegations of ill-treatment of prisoners of war during capture and interrogation at collecting points, battle group stations and temporary holding areas. The allegations were consistent with marks on bodies observed by the medical delegate. The memorandum was handed over to [redacted portion] US Central Command in Doha, State of Qatar.
In early July [2003] the ICRC sent the CF a working paper detailing approximately 50 allegations of ill-treatment in the military intelligence section of Camp Cropper, at Baghdad International Airport. They included a combination of petty and deliberate acts of violence aimed at securing the cooperation of the persons deprived of their liberty with their interrogators; threats (to intern individuals indefinitely, to arrest other family members, to transfer individuals to Guantánamo) against persons deprived of their liberty or against members of their families (in particular wives and daughters); hooding; handcuffing; use of stress positions (kneeling, squatting, standing with arms raised over the head) for three or four hours; taking aim at individuals with rifles, striking them with rifle butts, slaps, punches, prolonged exposure to the sun, and isolation in dark cells. ICRC delegates witnessed marks on the bodies of several persons deprived of their liberty consistent with their allegations …[155]

ICRC President Jakob Kellenberger has confirmed that ICRC officials made "repeated requests" to the U.S.-led occupation authority to correct abuses. He said officials presented "serious concerns" to occupation authorities, reminding them of obligations under the Geneva Conventions and international treaties.[156] 

When, in the midst of the worst abuses at Abu Ghraib, the ICRC complained to Coalition forces, Army officials apparently responded by trying to curtail the ICRC's access.[157]

The Army provost marshal, Maj. Gen. Donald Ryder, investigated U.S.-run prisons in Iraq. His report on the treatment of Iraqi detainees, delivered to Gen. Sanchez, on Nov. 6, 2003, found "potential human rights training and manpower issues system-wide that needed immediate attention."[158]

In December 2003, retired Col. Stuart A. Herrington presented a confidential report that warned of detainee abuse throughout Iraq. Herrington's findings were reportedly passed on by Gen. Sanchez to officials at U.S. Central Command.[159]

Iraq's former human rights minister Abdel Bassat Turki told the British Guardian that he had "informed Mr. Bremer last November and again in December of the rampant abuse in US military prisons." Turki said that he had asked Bremer for permission to visit Abu Ghraib to investigate abuse allegations but was turned down.[160]

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]

Former CIA Director George Tenet

Under George Tenet's direction, and reportedly with his specific authorization, the Central Intelligence Agency (CIA) is said to have tortured detainees through waterboarding and withholding medicine. Other tactics reportedly used by the CIA include feigning suffocation, "stress positions," light and noise bombardment, sleep deprivation, and making detainees believe they were in the hands of governments that routinely torture. Under Director Tenet, the CIA "rendered" detainees to other governments which tortured the detainees. Under Director Tenet's direction, the CIA also put detainees beyond the protection of the law, in secret locations in which they were rendered completely defenseless, with no resource or remedy whatsoever, with no contact with the outside world, and completely at the mercy of their captors. These detainees, in long-term incommunicado detention, have effectively been "disappeared."

George Tenet was the director of central intelligence (DCI) until his resignation in June 2004. As such, he served as head of the Central Intelligence Agency.[174]

Because the CIA has refused to cooperate with any of the probes listed above[175] or to provide information pursuant to a Freedom of Information Act (FOIA) request,[176] the record is less developed with regard to the CIA's and Director Tenet's potential involvement in criminal activity. No findings of the internal CIA probes that have been conducted have been released.

According to the Schlesinger panel, "the CIA was allowed to operate under different rules."[177] The Fay/Jones report into intelligence activities at Abu Ghraib found that "the perception that non-DoD agencies [i.e., the CIA] had different rules regarding interrogation and detention operations was evident."[178] The investigators complained that "The lack of OGA [here, a way of referring to the CIA without mentioning it by name] adherence to the practices and procedures established for accounting for detainees eroded the necessity in the minds of soldiers and civilians for them to follow Army rules."[179] They concluded that "CIA detention and interrogation practices led to a loss of accountability, abuse, reduced interagency cooperation and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib."

The CIA's "different rules" in the "global war on terror" can be traced in part to a secret but now-infamous August 1, 2002 Justice Department memorandum to Alberto Gonzales, then White House Counsel, in response to a CIA request for guidance.[180] The memo said that torturing al-Qaeda detainees in captivity abroad "may be justified" and that international laws against torture "may be unconstitutional if applied to interrogations" conducted in the war on terrorism. The memo added that the doctrines of "necessity and self-defense could provide justifications that would eliminate any criminal liability" on the part of officials who tortured al-Qaeda detainees. The memo also took an extremely narrow view of which acts might constitute torture.

The August 2002 memo was reportedly prepared after a debate within the government about the methods used to interrogate alleged al-Qaeda leader Abu Zubaydah after his capture in April 2002.[181] Reports suggest that CIA interrogation methods were authorized by a still-secret set of rules that were endorsed in August 2002 by the U.S. Justice Department and the White House. These were said to include waterboarding and refusal of pain medication for injuries.[182] Indeed, according to The New York Times:

The methods employed by the CIA are so severe that senior officials of the Federal Bureau of Investigation have directed its agents to stay out of many of the interviews of the high-level detainees, counterterrorism officials said. The F.B.I. officials have advised the bureau's director, Robert S. Mueller III that the interrogation techniques, which would be prohibited in criminal cases, could compromise their agents in future criminal cases, the counterterrorism officials said.[183]

Under Director Tenet, the CIA also developed the widespread practice of using "ghost detainees."

The CIA kept a number of detainees off the books at Abu Ghraib, hiding them from the ICRC. The Fay/Jones report spoke of eight such "ghost" detainees at Abu Ghraib, kept off the prison's roster at the CIA's request. In one of those cases, in November 2003, a detainee brought to the prison by CIA employees but never formally registered with military guards died at the site, and his body was removed after being wrapped in plastic and packed in ice.[184]

In later congressional testimony, General Paul Kern, the senior officer who oversaw the Fay/Jones inquiry, told the Senate Armed Services Committee, "The number [of ghost detainees] is in the dozens, perhaps up to 100." Gen. Fay put the figure at "two dozen or so." Both officers said they could not give a precise number because no records were kept and because the CIA refused to provide information to the investigators.[185] The Church report put the number at 30.[186] Logbooks showed that there were consistently three to ten ghost detainees at Abu Ghraib from mid-October 2003 to January 2004.[187] Some "ghost detainees" at Abu Ghraib were put in disruptive sleep programs and interrogated in shower rooms and stairwells.[188]

In the case of Hiwa Abdul Rahman Rashul, Barry Whitman, Pentagon spokesperson, confirmed that Tenet had specifically asked for the detainee to be hidden "without notification."[189]

Earlier, Maj. Gen. Antonio Taguba sharply criticized this practice of keeping "ghost detainees," correctly saying that "This maneuver was deceptive, contrary to Army Doctrine, and in violation of international law."[190]

The CIA also reportedly transported as many as a dozen non-Iraqi detainees out of Iraq between April 2003 and March 2004. The transfers were apparently authorized by a draft Department of Justice memo dated March 19, 2004. The CIA has not released the detainees' names or nationalities, and it is unclear whether the detainees were handed over to "friendly" governments or kept in secret American-run sites.[191]

Under Director Tenet, the CIA "disappeared" detainees

Under Director Tenet, prisoners have "disappeared" in CIA custody in that they have been detained in undisclosed locations with no access to the ICRC, no oversight of their treatment, no notification to their families, and in many cases, no acknowledgement that they are even being held.[192] Human Rights Watch has pieced together information on eleven such detainees who have "disappeared" in U.S. custody, though there may be more. They are:

  1. Ibn al-Shaikh al-Libi (Libya)
  2. Abu Zubayda, a.k.a. Zubeida, Zain al-`Abidin Muhammad Husain, `Abd al-Hadi al-Wahab (Palestinian)
  3. Omar al-Faruq (Kuwait)
  4. Abu Zubair al-Haili, a.k.a. Fawzi Saad al-`Obaydi (Saudi Arabia)
  5. Ramzi bin al-Shibh (Yemen)
  6. Abd al-Rahim al-Nashiri, a.k.a. Abu Bilal al-Makki, Abdul Rahman Husain al-Nashari, formerly Muhammad Omar al-Harazi (Born in Mecca, Saudi Arabia)
  7. Mustafa al-Hawsawi (Saudi Arabia)
  8. Khalid Shaikh Muhammad, a.k.a. Shaikh Muhammad, Ashraf Ref`at Nabith Henin, Khalid `Abd al-Wadud, Salem `Ali, Fahd bin Abdullah bin Khalid (Kuwait)
  9. Waleed Muhammad bin Attash, a.k.a. Tawfiq ibn Attash, Tawfiq Attash Khallad (Yemen)
  10. Adil al-Jazeeri (Algeria)
  11. Hambali, a.k.a. Riduan Isamuddin (Indonesia) [193]

The CIA has consistently refused to provide information on the fate or the whereabouts of these detainees. For instance, Human Rights Watch has made repeated requests for information on Hambali's location, legal status, and conditions of detention - none of which has been answered.[194] The news media has had no more success, as evidenced by a report on ABC's "Nightline": "As for the details of where they are being held, exactly how they are being treated, and what the US plans to do with them, that is all a secret. When asked why, an official from the CIA explained, that's a secret, too."[195]

The International Committee of the Red Cross has also repeatedly sought information on the detainees. In a March 2004 public statement, it noted:

Beyond Bagram and Guantánamo Bay, the ICRC is increasingly concerned about the fate of an unknown number of people captured as part of the so-called global war on terror and held in undisclosed locations. For the ICRC, obtaining information on these detainees and access to them is an important humanitarian priority and a logical continuation of its current detention work in Bagram and Guantánamo Bay.[196]

In June, Erof Bosisio of the ICRC complained:

We are more and more concerned about the lot of the unknown number of people captured in the context of what we would call "the war against terror" and detained in secret places…We have asked for information on these people and access to them. Until now we have received no response from the Americans.[197]

 

According to The New York Times, "the agency has refused to grant any independent observer or human rights group access to the high-level detainees, who have been held in strict secrecy. Their whereabouts are such closely guarded secrets that one official said he had been told that Mr. Bush had informed the CIA that he did not want to know where they were."[198]

It is not clear what the authority is under U.S. law for holding these suspects under these conditions of clandestinity. In June 2004, the U.S. Supreme Court ruled that the Authorization for Use of Military Force Act, which Congress passed after September 11, 2001, authorizing the president to pursue al-Qaeda and its supporters, gave him the power to detain enemy forces captured in battle. Speaking for the plurality of the court, however, Justice Sandra Day O'Connor said, "Certainly, we agree that indefinite detention for the purposes of interrogation is not authorized."[199] U.S. law considers both "prolonged detention without charges and trial," and "causing the disappearance of persons by the abduction and clandestine detention of those persons" to constitute "gross violations of internationally recognized human rights."[200]

Although "disappearances" as such are not defined and punished under U.S. law, prolonged incommunicado detention itself is inhuman treatment in contravention of both CAT and the Geneva Conventions, and therefore subject to prosecution under the War Crimes Act and the Anti-Torture Statute. The U.N. Commission on Human Rights has noted that "prolonged incommunicado detention … can in itself constitute a form of cruel, inhuman or degrading treatment."[201] Likewise, the U.N. Human Rights Committee found "prolonged incommunicado detention in an unknown location" to be "torture and cruel, inhuman treatment."[202]

Under Director Tenet, and reportedly with his authorization, the CIA has allegedly tortured detainees

Some of the detainees listed above have reportedly been tortured by the CIA. According to The New York Times:

In the case of Khalid Shaikh Mohammed, a high-level detainee who is believed to have helped plan the attacks of Sept. 11, 2001, CIA interrogators used graduated levels of force, including a technique known as "water boarding," in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown.[203]

Waterboarding is a technique reportedly approved by the Department of Justice.[204]  The current director of U.S. central intelligence, Porter Goss, seemed to suggest that the CIA was indeed using waterboarding when he defined it in Senate testimony as "an area of what I will call professional interrogation techniques."[205] Waterboarding, however, is a notorious form of torture that was practiced by the military dictatorships in Latin America in the 1970s and 1980s, where it became known as the "submarino."[206] It has been denounced as a torture method by the U.S. State Department[207] and the U.N. Special Rapporteur on Torture.[208]

It is also reported that U.S. officials initially withheld painkillers from Abu Zubaydah, who was shot during his capture, as an interrogation device.[209] To the extent that this action brought about unnecessary but deliberate additional severe pain or suffering, it would constitute torture.[210] Other tactics used by the CIA, according to TheWashington Post, include "feigning suffocation, 'stress positions,' light and noise bombardment, sleep deprivation, and making captives think they are being interrogated by another government."[211] These techniques can easily amount to torture, particularly when used in a combined manner.[212]

According to The Washington Post:

The interrogation methods were approved by Justice Department and National Security Council lawyers in 2002, briefed to key congressional leaders and required the authorization of CIA Director George J. Tenet for use, according to intelligence officials and other government officials with knowledge of the secret decision-making process.[213]

The CIA has reportedly used torture and other prohibited mistreatment in other detention centers as well. As early as December 2002, The Washington Post reported that in the "forbidden zone" at the U.S.-occupied Bagram Airbase in Afghanistan:

Those who refuse to cooperate inside this secret CIA interrogation center are sometimes kept standing or kneeling for hours, in black hoods or spray-painted goggles, according to intelligence specialists familiar with CIA interrogation methods. 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.[214]

Newsweek reported a clash between the FBI and the CIA during the interrogation in Afghanistan of terror suspect Ibn al-Shaikh al-Libi:

FBI officials brought their plea to retain control over al-Libi's interrogation up to FBI Director Robert Mueller. The CIA station chief in Afghanistan, meanwhile, appealed to the agency's hawkish counterterrorism chief, Cofer Black. He in turn called CIA Director George Tenet, who went to the White House. Al-Libi was handed over to the CIA. "They duct-taped his mouth, cinched him up and sent him to Cairo" for more-fearsome Egyptian interrogations, says the ex-FBI official. "At the airport the CIA case officer goes up to him and says, 'You're going to Cairo, you know. Before you get there I'm going to find your mother and I'm going to f--- her.' So we lost that fight." (A CIA official said he had no comment.)[215]

The Washington Post likewise reported that the capture of al-Libi generated the first real fight over interrogations of the secret detainees: the CIA wanted to threaten his life and family; the FBI objected.[216]

Under Director Tenet, and reportedly with his authorization, the CIA has sent detainees to countries in which they were tortured

 

Even prior to September 11, the CIA was involved in the "extraordinary rendition" of terror suspects to third countries. In a written statement to the 9-11 Commission, Director Tenet stated that:

CIA's policy and objectives statement for the FY 1998 budget submission prepared in early 1997 evidenced a strong determination to go on the offensive against terrorists. The submission outlined our Counterterrorist Center's offensive operations and noted the goal to "render the masterminds, disrupt terrorist infrastructure, infiltrate terrorist groups, and work with foreign partners."[217]

Director Tenet said that the CIA took part in over eighty renditions before September 11, 2001.[218]

Shortly after the September 11 attacks, President Bush reportedly signed a still-classified directive giving the CIA broad authority to transfer terrorist suspects to third countries.[219] Since then, largely under Secretary Tenet, the CIA has reportedly flown 100 to 150 suspects to foreign countries, including many countries in the Middle East known to practice torture routinely.[220] In several cases, detainees rendered into third country custody are known or believed to have been tortured:

  • Maher Arar, a Syrian-born Canadian in transit from a family vacation through John F. Kennedy airport in New York, was detained by U.S. authorities. After holding him for nearly two weeks, U.S. authorities flew him to Jordan, where he was driven across the border and handed over to Syrian authorities, despite his statements to U.S. officials that he would be tortured in Syria and his repeated requests to be sent home to Canada. Mr. Arar was released without charge from Syrian custody ten months later and has described repeated torture, often with cables and electrical cords, during his confinement in a Syrian prison. The United States has refused to cooperate with an official Canadian inquiry into the Arar rendition.[221]
  • In early October 2001, Australian citizen Mamdouh Habib was arrested in Pakistan. Pakistan's interior minister later said that Habib was sent to Egypt on U.S. orders and in U.S. custody.[222] Habib says that while imprisoned in Egypt for six months, he was suspended from hooks on the wall, rammed with an electric cattle prod, forced to stand tip-toe in a water-filled room, and threatened by a German Shepard dog.[223] In 2002, Habib was transferred from Egypt to Bagram Air Force Base, and then to Guantánamo Bay. On January 28, 2005, Habib was sent home from Guantánamo to Sydney, Australia.[224]
  • Two Egyptians, Ahmed Agiza and Mohammed al-Zari, were handed by the Swedish authorities to U.S. operatives at Bromma Airport in Stockholm in December 2001. The operatives hooded, shackled, and drugged them, placed them aboard a U.S. government-leased plane, and transported them to Egypt. There the two men were reportedly tortured, including in Cairo's notorious Tora prison.[225]
  • Italian police are investigating whether American agents illegally seized Milan resident Osama Moustafa Nasr and flew him to Egpyt. Nasr disappeared from Milan on November 16, 2003. Sometime in 2004, he called his wife and friends in Milan and reportedly described being stopped in the street "by western people," forced into a car, and taken to an air force base. From the airbase, Nasr was allegedly flown to Cairo and turned over to secret police. The London Times reported that Nasr "claimed he had been tortured so badly by secret police in Cairo that he had lost hearing in one ear. Italian officers who intercepted the call believe he has since been rearrested."[226]
  • Muhammad Haydar Zammar, a German citizen of Syrian descent[227] was arrested in Morocco in November 2001 and flown to Syria.[228] Moroccan government sources have told reporters that the CIA asked them to arrest Zammar and send him to Syria,[229] and that CIA agents took part in his interrogation sessions in Morocco.[230] Zammar was taken to the same Syrian prison where Maher Arar was held.[231] On July 1, 2002, Time magazine reported:
U.S. officials tell Time that no Americans are in the room with the Syrian who interrogate Zammar. U.S. officials in Damascus submit written questions to the Syrians, who relay Zammar's answers back. State Department officials like the arrangement because it insulates the U.S. government from any torture the Syrians may be applying to Zammar. And some State Department officials suspect that Zammar is being tortured.[232]
  • Muhammad Saad Iqbal Madni, a Pakistani national, was arrested in Jakarta, Indonesia on January 9, 2002. Indonesian officials and diplomats told The Washington Post that this was done at the CIA's request. Several days later, Egypt made a formal request that Indonesia extradite Madni for unspecified, terrorism-related crimes. However, according to "a senior Indonesian government official," "[t]his was a U.S. deal all along…Egypt just provided the formalities." On January 11, the Indonesian officials said, Madni was taken onto a U.S. registered Gulfstream V jet at a military airport, and flown to Egypt.[233] On September 11, 2004, the Times of London reported that despite repeated inquiries by Madni's relatives, "nothing has been seen or heard from" him since he was taken from Jakarta.[234]

The post 9/11 rendition of terror suspects was first reported in The Washington Post in December 2002, which described transfers to countries including Syria, Uzbekistan, Pakistan, Egypt, Jordan, Saudi Arabia, and Morocco, where they were 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."[235] Since then, the New Yorker, the BBC and CBS's"60 Minutes" havedescribed an organized U.S. program of renditions to Egypt of suspects captured in places such as Afghanistan, Albania, Croatia, and Sweden, resulting in many cases of torture and "disappearance."[236]

Director Tenet was certainly aware of the torture involved in these renditions. The Middle Eastern countries to which detainees have been rendered - Egypt, Syria, Pakistan, Jordan, Saudi Arabia, and Morocco - are notorious for their use of torture.[237] The U.S. State Department had the following to say in its 2003 reports about torture in Egypt and Syria, two of the major "extraordinary rendition" destinations:

[Egypt::]  [T]here were numerous, credible reports that security forces tortured and mistreated detainees. …. Principal methods of torture reportedly employed … included victims being: stripped and blindfolded; suspended from a ceiling or doorframe with feet just touching the floor; beaten with fists, whips, metal rods, or other objects; subjected to electrical shocks; and doused with cold water.[238]

[Syria:]  [T]here was credible evidence that security forces continued to use torture. …[Syrian groups and ex-detainees] reported that torture methods included administering electrical shocks; pulling out fingernails; forcing objects into the rectum; beating, sometimes while the victim is suspended from the ceiling; hyper extending the spine; bending the detainees into the frame of a wheel and whipping exposed body parts; and using a chair that bends backwards to asphyxiate the victim or fracture the victim's spine.[239]

Newsweek reported that at a classified briefing for senators not long after September 11, 2001, Tenet was asked whether the United States was planning to seek the transfer of suspected al-Qaeda detainees from governments known for their brutality. Citing Congressional sources, Newsweek reported "that Tenet suggested it might be better sometimes for such suspects to remain in the hands of foreign authorities, who might be able to use more aggressive interrogation methods."[240]

Michael Sheuer, head of the CIA's bin Laden desk, who ran the detainee rendition program, provides evidence that Tenet was very aware of what was happening to detainees, yet nevertheless personally signed off on renditions. Sheuer said he "never a saw a set of operations that was more closely scrutinized by the director of central intelligence, the National Security Council and the Congressional intelligence committees" and that "we told them - again and again and again" that the detainees might be mistreated.[241] According to Sheuer, each individual operation, "I think, …went to either the Director of Central Intelligence or to the Assistant Director of Central Intelligence. So basically the number one and two men in the intelligence community are the ones who signed off."[242]

As noted above, Director Tenet was reportedly involved in wresting from the FBI the terror suspect Ibn al-Shaikh al-Libi so he could be sent to Egypt.

U.S. law, in addition to criminalizing direct acts of torture, provides that "a person who conspires to commit [torture] shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy."[243] Similarly, U.S. law provides for so-called "aiding and abetting" liability:

  1. Whoever commits an offense against the United States or aids, counsels, commands, induces or procures its commission, is punishable as a principal.
  2. 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.[244]

As a general principle of U.S. criminal law, the liability of an accomplice or a conspirator depends upon giving encouragement or assistance with the knowledge that it will promote or facilitate a crime.[245]

In the light of these legal provisions, Director Tenet' role in these renditions should be investigated to determine if it amounted to conspiracy to commit torture and/or to aiding and abetting in the commission of torture.[246]

Director Tenet might argue that the United States obtained "diplomatic assurances" from receiving states such as Syria and Egypt that the detainees would not be tortured. In a recent study of the use of "diplomatic assurances," however, Human Rights Watch concluded:

In contexts where torture is a serious and persistent problem, or there is otherwise reason to believe that particular individuals will be targeted for torture and ill-treatment, diplomatic assurances do not and cannot prevent torture. Sending countries that rely on such assurances are either engaging in wishful thinking or using the assurances as a fig leaf to cover their complicity in torture and their role in the erosion of the international norm against torture.[247]

From the point of view of criminal law, liability would turn on Director Tenet's mental state - his intent that the detainee be tortured or his knowledge or reckless indifference to whether or not torture would result. [248]

In this respect, Human Rights Watch wrote in the study described above:

It defies common sense to presume that a government that routinely flouts its obligations under international law can be trusted to respect those obligations in an isolated case. And indeed, in an increasing number of cases, allegations of torture are emerging after individuals are returned based on such assurances.

As former CIA counterterrorism official Vincent Cannistraro has remarked: "You would have to be deaf, dumb and blind to believe that the Syrians were not going to use torture, even if they were making claims to the contrary."[249]  

Lieutenant General Ricardo Sanchez

"As senior commander in Iraq, I accept responsibility for what happened at Abu Ghraib"
                                                                        - Ricardo Sanchez[250]

Lt. Gen. Sanchez should be investigated for war crimes and torture either as a principal or under the doctrine of "command responsibility." Gen. Sanchez authorized interrogation methods that violate the Geneva Conventions and the Convention against Torture. He knew, or should have known, that torture and war crimes were committed by troops under his direct command, but failed to take effective measures to stop these acts.

Gen. Sanchez promulgated interrogation rules and techniques that violated the Geneva Conventions and the Convention against Torture

Lt. Gen. Sanchez took command of V Corps in Baghdad in April 2003 and went on to become Commander of the Combined and Joint Task Force 7 (CJTF-7). Over the spring and summer of 2003, CJTF-7 was responsible for the detention of combatant and civilian prisoners in Iraq.[251]

Although Gen. Sanchez testified before Congress that compliance with the Geneva Conventions in Iraq "was always the standard,"[252] it has since been revealed that Gen. Sanchez, "despite lacking specific authorization to operate beyond the confines of the Geneva Conventions" (in the words of the Schlesinger report), took it upon himself to declare some prisoners "unlawful combatants."[253]

As noted by the Schlesinger panel, during the early and mid-2003, General Sanchez's troops interrogated detainees at Abu Ghraib and elsewhere relying "on Field Manual 34-52 and on unauthorized techniques that migrated from Afghanistan."[254] Members of the 519th MI Battalion, which had previously been accused in a Criminal Investigation Command homicide investigation of abusive interrogation practices in Afghanistan, were left to devise interrogation rules on their own.[255] In so doing, they were said to have copied rules "almost verbatim" from the "Battlefield Interrogation Team and Facility Policy" of Special Operations Forces/Central Intelligence Agency Joint Task Force 121, a secretive Special Operations Forces/CIA mission seeking former government members in Iraq.[256] That policy reportedly endorsed the use of stress positions during harsh interrogation procedures, the use of dogs, yelling, loud music, light control, isolation, and other procedures used previously in Afghanistan and Iraq.[257]

In mid-August 2003, according to journalist Mark Danner, a captain in military intelligence at Abu Ghraib sent his colleagues an e-mail in which, responding to an earlier request from interrogators, he sought to define "unlawful combatants," distinguishing them from "lawful combatants [who] receive protections of the Geneva Convention and gain combat immunity for their warlike acts." After promising to provide rules of engagement - "that addresses the treatment of enemy combatants, specifically, unprivileged belligerents," the captain asked the interrogators for "input...concerning what their special interrogation knowledge base is and more importantly, what techniques would they feel would be effective techniques." Then, reminding the intelligence people to "provide Interrogation techniques 'wish list' by 17 AUG 03," the captain signed off saying: "The gloves are coming off gentlemen regarding these detainees, Col Boltz[258] has made it clear that we want these individuals broken. Casualties are mounting and we need to start gathering info to help protect our fellow soldiers from any further attacks."[259]

Gen. Miller, who ran the detention operations at Guantánamo Bay, visited Iraq from August to September 2003, and met with Gen. Sanchez and others. Gen. Sanchez recalls that Gen. Miller "left behind a whole series of SOPs that could be used as a start point for CJTF-7 interrogation operations."[260] Gen. Sanchez took into consideration Gen. Miller's "call for strong, command-wide interrogation policies," when he finally formalized the interrogation rules for Iraq in a memorandum dated September 14.[261]

Sanchez's September 14 memo[262] - released only in March 2005 in response to a FDIA lawsuit - approved the use of a number of harsh interrogation techniques, including:

  • "Presence of Military Working Dog: Exploits Arab fear of dogs while maintaining security during interrogations. Dogs will be muzzled and under control of …handler at all times to prevent contact with detainee";
  • "Sleep Management: Detainee provided minimum 4 hours of sleep per 24 hour period, not to exceed 72 continuous hours";
  • "Yelling, Loud Music and Light Control: Used to create fear, disorient detainee and prolong capture shock. Volume controlled to prevent injury";
  • "Stress Positions: Use of physical postures (sitting, standing, kneeling, prode, etc.) for no more than 1 hour per use. Use of technique(s) will not exceed 4 hours and adequate rest between use of each position will be provided"; and
  • "False Flag: Convincing the detainee that individuals from a country other than the United States are interrogating him."

Among the goals Gen. Sanchez thought these techniques would accomplish were "to create fear, disorient detainees and capture shock."

The Schlesinger report found that Gen. Sanchez's September 14 memorandum included "a dozen interrogation techniques beyond [Army] Field Manual 34-52 - five beyond those approved for Guantánamo."[263] As described above in the section on Donald Rumsfeld, these techniques also violate the Geneva Conventions and, depending on their use, can constitute war crimes.

Unreleased portions of the report by Maj. Gen. George R. Fay state that with Gen. Sanchez's September 14 order, national policies and those of Gen. Sanchez "collided, introducing ambiguities and inconsistencies in policy and practice," and that "Policies and practices developed and approved for use on al-Qaeda and Taliban detainees who were not afforded the protection of the Geneva Conventions now applied to detainees who did fall under the Geneva Conventions' protections."[264] The report adds that the memo "established a requirement to obtain LTG Sanchez's approval prior to using certain techniques on EPWs [enemy prisoners of war]." The policy failed to address what, if any, approval authority had to be obtained for using any of the interrogation techniques on civilian internees, who were the bulk of the detainees at that time."[265] In other words, Gen. Sanchez apparently gave Abu Ghraib interrogators the blanket authority to use dogs to threaten detainees - an act that may easily amount to torture or cross the threshold into torture.

Gen. Sanchez appears to have misled Congress in his sworn testimony on this issue. Asked in May 2004, months before the release of his actual memoranda, if he had "ordered or approved the use of sleep deprivation, intimidation by guard dogs, excessive noise and inducing fear," Gen. Sanchez replied: "I never approved any of those measures to be used within the CJTF-7 at any time in the last year." In response to a follow-up question, he repeated, "I have never approved the use of any of those methods within CJTF-7 in the 12-and-a-half months that I've been in Iraq."[266]

At the same time, Gen. Sanchez was apparently relaying the pressure from above for "actionable intelligence." According to one soldier whose testimony is in a declassified attachment to the Fay report:

COL Pappas and (REDACTED) were under intense pressure from LTG Sanchez to provide intelligence reporting...On occasion (REDACTED) and (REDACTED) conducted interrogations themselves. One interrogation occurred at the request of LTG Sanchez in the middle of the night.[267]

These guidelines were used by personnel at Abu Ghraib until October 2003.[268] Gen. Sanchez's September 14 guidelines were criticized by CENTCOM, however, which viewed them as "unacceptably aggressive," resulting in Gen. Sanchez drafting new guidelines on October 12, 2003.[269]

While the September 14 memo did not qualify its approval of dogs for interrogation, the October 12 memo confusingly contained two seemingly contradictory sheets of paper. One sheet, a list of approved techniques, did not include dogs. The second sheet, a list of safeguards, now said, "should military working dogs be present during interrogations, they will be muzzled and under control of handler at all times to ensure safety."[270] This memo, Gen. Fay noted, "confused doctrine and policy even further."[271]

As Gen. Fay pointed out:

Another confusing change involved removing the use of dogs from the list of approaches. The October 12, 2003 policy did not specifically preclude it. In fact, the safeguards section of the policy established the conditions for the use of dogs, should they be present during interrogations: They had to be muzzled and they had to be under the control of a trained handler. Even though it was not listed in the approved techniques section, which meant that it required the LTG Sanchez's approval, its inclusion in the safeguards section is confusing. In fact, the Commander, 205 MI BDE, COL Pappas, believed that he could approve the use of dogs. Dogs as an interrogation tool should have been specifically excluded because the practice was never doctrine. In approving the concept, LTG Sanchez did not adequately consider the distinction between using dogs at the facility to patrol for security and using them as an interrogation tool, and the implications for interrogation policy. Interrogators at Abu Ghraib used both dogs and isolation as interrogation practices. The manner in which they were used on some occasions clearly violated the Geneva Conventions.[272]

Gen. Jones added that "policy memoranda promulgated by the CJTF-7 Commander [Sanchez] led indirectly to some of the non-violent and non-sexual abuses at Abu Ghraib."[273] Jones added that some of these abuses "may have violated international law."

Lt. Gen. Sanchez knew or should have known about torture and war crimes committed by troops under his command

In his Congressional testimony, Gen. Miller was asked to explain how abuse at Abu Ghraib had taken place without the top leadership knowing about it. He replied, "I think there are failures in people doing their duty, there are failures in systems. And we should have known and we should have uncovered it and taken action before it got to the point that it got to. I think there's no doubt about that."[274]

U.S. military personnel under the command of Gen. Sanchez committed numerous war crimes. The Schlesinger report noted 55 substantiated cases of detainee abuse in Iraq, plus 20 instances of detainee deaths still under investigation.[275] The earlier Taguba report had found "numerous incidents of sadistic, blatant, and wanton criminal abuses" that constituted "systematic and illegal abuse of detainees" at Abu Ghraib.[276] The Fay report documents 44 allegations of acts that may amount to war crimes.[277] 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."[278] The ICRC also found that "the use of ill-treatment against persons deprived of their liberty went beyond exceptional cases and might be considered as a practice tolerated by the CF [Coalition Forces]."[279]

Gen. Jones concluded that:

[I]n retrospect, indications and warnings had surfaced at the CJTF-7 level that additional oversight and corrective actions were needed in the handling of detainees…Examples of these indications and warnings include: the investigation of an incident at Camp Cropper,[280] the International Committee of the Red Cross (ICRC) reports on handling of detainees in subordinate units, ICRC reports on Abu Ghraib detainee conditions and treatment, CID investigations and disciplinary actions being taken by commanders, the death of an OGA detainee at Abu Ghraib.[281]

Indeed, Brigadier General Janis Karpinski has said that when CJTF-7 was alerted to prisoner abuse by the ICRC in November 2003, lawyers who answered directly to Sanchez responded by restricting the access of the ICRC.[282] In May 2003, the ICRC sent a memorandum documenting over 200 allegations of ill-treatment. Though Gen. Sanchez has denied seeing it, the memorandum was forwarded to U.S. Central Command in Qatar.[283] Gen. Sanchez also concedes that he spoke numerous times with U.S. Ambassador Paul Bremer during the summer and fall of 2003 about, among other things, issues of "quality of life of prisoners and the conditions that existed."[284]

A confidential report in December 2003 by retired Col. Stuart A. Herrington, which was commissioned by Maj. Gen. Barbara Fast, the top intelligence officer in Iraq, warned of detainee abuse throughout Iraq.[285] The report, which was reportedly seen by Gen. Sanchez, found that members of Task Force 121 - the joint Special Operations and CIA mission searching for weapons of mass destruction and high-value targets - had been abusing detainees throughout Iraq and had been using a secret interrogation facility to hide their activities.

According to the Schlesinger report, "[b]oth the CJTF-7 commander [Gen. Sanchez] and his intelligence officer, CJTF-7 C2 [Major General Walter Wojdakowski], visited the prison [Abu Ghraib] on several occasions."[286] These visits were among those that the report concluded "undoubtedly" contributed to the fact that "pressure was placed on the interrogators to produce 'actionable' intelligence."[287] One soldier in the 800th MP Brigade stated that he believed Brig. Gen. Karpinski spoke to Lt. Gen. Sanchez "every 3 days or so."[288] According to another soldier serving at Abu Ghraib, whose allegation has not been corroborated, Gen. Sanchez was present during some interrogations and was aware of the abuse.[289]

A letter from Col. Pappas to Gen. Sanchez dated November 30, 2003 requested permission to throw tables and chairs while continuously yelling at a detainee, drive the detainee around hooded while interrogating him, threaten him with barking dogs, conduct a strip search while the detainee was hooded, place him in isolation on an adjusted sleep schedule while also using techniques such as loud music and stress positions "in accordance with CJTF-7 IROE."[290] Gen. Sanchez told Congress that he had never seen the letter.[291]

Despite these warnings, Gen. Sanchez seems to have taken no steps to curtail the rampant abuses that were ongoing during his command.

Gen. Jones concluded that "LTG Sanchez…failed to ensure proper staff oversight of detention and interrogation operations"[292] and that "CJTF-7 staff elements reacted inadequately to earlier indications and warnings that problems existed at Abu Ghraib."[293] The Schlesinger report stated that "[w]e believe LTG Sanchez should have taken strong action in November when he realized the extent of the leadership problems at Abu Ghraib. We concur with the Jones findings that LTG Sanchez and MG Wojdakowski failed to ensure proper staff oversight of detention and interrogation operations."[294]

In addition, the Schlesinger panel noted that "the unclear chain of command established by CJTF-7, combined with the poor leadership and lack of supervision, contributed to the atmosphere at Abu Ghraib that allowed the abuses to take place."[295]

Major General Geoffrey Miller

Major General Geoffrey Miller, as commander at the tightly-controlled prison camp at Guantánamo Bay, Cuba, should be investigated for his potential responsibility in the war crimes and acts of torture committed against detainees there.

Gen. Miller was commander of Joint Task Force-Guantánamo (JTF-GTMO) from November 2002 until April 2004, when he became deputy commanding general of detention operations in Iraq, the position he currently holds.

Gen. Miller knew or should have known that troops under his command were committing war crimes and acts of torture against detainees at Guantánamo

As commander of JTF-Guantánamo, Gen. Miller oversaw both military intelligence and military police functions. His mission was "to integrate both the detention and intelligence function to produce actionable intelligence for the nation… operational and strategic intelligence to help the [United States] win the global war on terror."[296] Before Gen. Miller was brought to Guantánamo, his predecessor in charge of detention, Brigadier General Rick Baccus, was reportedly accused by Pentagon officials of interfering with interrogation by "coddling" detainees for addressing them with words such as "peace be with you," and "may God be with you," promising them that they would be "treated humanely," and authorizing placement in the camp of ICRC posters specifying certain rights that prisoners have under the Geneva Conventions.[297] Under Gen. Miller, detention and interrogation functions were brought together for the first time. The Schlesinger panel described the use of interrogation techniques at Guantánamo as "carefully controlled."[298] Church described the "strict command oversight" and "controlled conditions."[299]

Because no independent monitors with the ability to publicly report on conditions have been able to visit Guantánamo, it is difficult to get a complete picture of practices under Gen. Miller. However based on the testimony of people released from Guantánamo, as well as evidence that has been released as a result of litigation, it appears that under Gen. Miller's command, detainees at Guantánamo were frequently subject to torture or other cruel, inhuman or degrading treatment. The ICRC has reportedly described the psychological and sometimes physical coercion on prisoners at Guantánamo as "tantamount to torture."[300] Among tactics that appear to have regularly been in use are prolonged sleep deprivation and shackling prisoners in uncomfortable "stress positions" for many hours.[301]

Released detainees also describe: threats with unmuzzled dogs; forced stripping; being photographed naked; being intentionally subjected to extremes of heat and cold for the purpose of causing suffering; being kept around the clock in filthy cages with no exercise or sanitation; denial of access to necessary medical care; deprivation of adequate food, sleep, communication with family and friends, and of information about their status; and violent beatings.[302]

In one case, military intelligence officials and interrogators told The New York Times that Mohammed al-Kahtani, a Saudi detainee, was put on a plane, blindfolded, and made to believe that he was being flown to the Middle East. After several hours in the air, the plane returned to Guantánamo and al-Kahtani was allegedly put in an isolation cell for several months, hidden from the ICRC, and subjected to harsh interrogations conducted by people he was encouraged to believe were Egyptian security agents. Al-Kahtani was reportedly forcibly given an enema because it was uncomfortable and degrading.[303]

The Times also reported that:

[I]nterviews with former intelligence officers and interrogators provided new details and confirmed earlier accounts of inmates being shackled for hours and left to soil themselves while exposed to blaring music or the insistent meowing of a cat-food commercial. In addition, some may have been forcibly given enemas as punishment.

While all the detainees were threatened with harsh tactics if they did not cooperate, about one in six were eventually subjected to those procedures, one former interrogator estimated. The interrogator said that when new interrogators arrived they were told they had great flexibility in extracting information from detainees because the Geneva Conventions did not apply at the base.[304]

Documents released to the American Civil Liberties Union and the Center for Constitutional Rights following a Freedom of Information Act (FOIA) lawsuit paint a bleak picture of the treatment of Guantánamo detainees under Gen. Miller. In particular, agents of the Federal Bureau of Investigation express their shock at techniques used on detainees. In one e-mail, an FBI agent wrote:

Here is a brief summary of what I observed at GTMO. On a couple of occassions (sic), I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food, or water. Most times they had urinated or defacated (sic) on themselves and had been left there for 18, 24 hours or more. On one occassion (sic), the air conditioning had been turned down so far and the temperature was so cold in the room, that the barefooted detainee was shaking with cold. When I asked the [military police] what was going on, I was told that interrogators from the day prior had ordered this treatment, and the detainee was not to be moved. On another occassion (sic), the A/C had been turned off, making the temperature in the unventilated room probably well over 100 degrees. The detainee was almost unconscious on the floor with a pile of hair next to him. He had apparently been literally pulling his own hair out throughout the night. On another occassion (sic), not only was the temperature unbearably hot, but extremely loud rap music was being played in the room, and had been since the day before, with the detainee chained hand and foot in the fetal position on the tile floor. [305]

Another FBI agent reported seeing a detainee "sitting on the floor of the interview room with an Israeli flag draped around him, loud music being played and a strobe light flashing." In another recently-declassified FBI e-mail, the author writes:

from what cnn reports, gen karpinsky at abu gharib (sic) said that gen miller came to the prison several months ago and told her they wanted to "gitmotize" abu ghraib. i am not sure what this means. however, if this refers to intell gathering as i suspect, it suggests he has continued to support interrogation strategies we not only advised against, but questioned in terms of effectiveness.
yesterday, however, we were surprised to read an article in stars and stripes, in which gen. miller is quoted as saying that he believes in the rapport-building approach. this is not what was saying at gitmo when i was there. [redacted] and i did cart wheels. the battles fought in gitmo while gen. miller he was there are on the record.

Recently-revealed videotapes of so-called "Immediate Reaction Forces" (or "Extreme Reaction Force" (ERF)) reportedly show guards punching some detainees, a guard kneeing a detainee in the head, tying one to a gurney for questioning and forcing a dozen to strip from the waist down. One guard squad was all-female, traumatizing some Muslim prisoners.[306]

Between 2002 and 2004, Gen. Miller met on several occasions with the ICRC, which made him aware of their evolving concerns over the treatment of detainees. In October 2003, the ICRC conducted more than 500 interviews at Guantánamo before meeting with Miller and his top aides. According to defense department documents,[307] the ICRC told Miller of its concern over the lack of a legal system for the detainees, the continued use of steel cages, the "excessive use of isolation" and the lack of repatriation for the detainees. The ICRC felt that the interrogators had "too much control over the basic needs of detainees… the interrogators have total control over the level of isolation in which detainees were kept; the level of comfort items detainees can receive; and the access to basic needs of the detainees." According to the documents, Gen. Miller responded that interrogation techniques were not the ICRC's concern. The ICRC countered that those methods and the lengths of interrogations were coercive and having a "cumulative effect" on the mental health of the detainees.[308]

One of the detainees whom Gen. Miller refused to show to the ICRC as recently as February 2, 2004, was Abdallah Tabarak, a Moroccan citizen and allegedly Osama bin Laden's personal bodyguard. According to a Department of Defense memo, Gen. Miller told the ICRC that "Because of military necessity, the ICRC may not have private talks with him." Tabarak was transferred to Morocco in August 2004. In December 2004, he reportedly said that in Guantánamo, he had been beaten, given forcible injections, and held in a dark cell which left him with eyesight problems.[309]

In June 2004, shortly after Gen. Miller left Guantánamo, the ICRC conducted a full visit and concluded (in the words of The New York Times, which obtained a memorandum based on the ICRC report that quotes from it in detail and lists its major findings):

[I]nvestigators had found a system devised to break the will of the prisoners at Guantánamo… and make them dependent on their interrogators through "humiliating acts, solitary confinement, temperature extremes, use of forced positions." …[T]he methods used were increasingly "more refined and repressive" than what the Red Cross learned about on previous visits. "The construction of such a system, whose stated purpose is the production of intelligence, cannot be considered other than an intentional system of cruel, unusual and degrading treatment and a form of torture." It said that in addition to the exposure to loud and persistent noise and music and to prolonged cold, detainees were subjected to "some beatings."[310]

Thus, there is a mounting body of evidence that acts of torture and war crimes were committed at Guantánamo, and that Gen. Miller, as the commander of the tightly-controlled camp, knew or should have known about these crimes.

Gen. Miller may have proposed interrogation methods for Iraq which were the proximate cause of the torture and war crimes committed at Abu Ghraib

As discussed above, the most severe abuses at Abu Ghraib occurred just after Gen. Miller went to Iraq to advise Gen. Sanchez on the hunt for "actionable intelligence" among Iraqi prisoners.

Gen Janis Karpinski, commander of the 800th Military Police Brigade with authority over the U.S. prison facilities in Iraq, said that Miller "came up there and told me he was going to 'Gitmoize' the detention operation."[311] Miller has denied using this word.[312]

As Gen. Taguba highlighted in his report, Miller recommended that "the guard force be actively engaged in setting the conditions for successful exploitation of the internees." As the Fay report makes clear, Gen. Sanchez "relied heavily on the series of SOPs [standard operating procedures] which MG G. Miller provided to develop not only the structure, but also the interrogation policies for detainee operations."

There is controversy over Gen. Miller's alleged recommendation regarding the use of dogs. According to Col. Thomas Pappas, the top U.S. intelligence officer at Abu Ghraib, Gen. Miller, "said that they used military working dogs at Gitmo [Guantánamo], and that they were effective in setting the atmosphere for which, you know, you could get information" from the prisoners.[313] Pappas said that Gen. Miller said the use of the dogs "with or without a muzzle" was "okay." Gen. Miller is said to deny this.[314] Gen. Fay found that:

Abusing detainees with dogs started almost immediately after the dogs arrived at Abu Ghraib on 20 November 2003. By that date, abuses of detainees was already occurring and the addition of dogs was just one more abuse device. Dog Teams were brought to Abu Ghraib as a result of recommendations from MG G. Miller's assessment team from JTF-GTMO. MG G. Miller recommended dogs as beneficial for detainee custody and control issues, especially in instances where there were large numbers of detainees and few guards to help reduce the risk of detainee demonstrations or acts of violence, as at Abu Ghraib.[315]

Gen Karpinski said that Gen. Miller told her that prisoners "are like dogs, and if you allow them to believe at any point that they are more than a dog then you've lost control of them."[316] Gen. Miller denies this.

Other Generals in Iraq

Because all of the published probes have focused on the event at Abu Ghraib, the public record is more developed than for the other theatres of abuse. Other generals identified in the Pentagon reports who may bear liability for the crimes committed at Abu Ghraib are:

Major General Barbara Fast:  Described in the Jones report as the "senior intelligence officer" on Gen. Sanchez's staff (the "C2" of CJTF-7), Gen. Fast was responsible for "[p]riorities for intelligence collection, analysis and fusion."[317]  The Jones report states that Fast was responsible for designing the new intelligence-gathering "architecture" put in place at Abu Ghraib in late 2003 and was centrally involved in defining intelligence gathering needs at Abu Ghraib.[318] The Fay report states that directions as to interrogation needs from Col. Pappas, who played a central role in the abuse (as discussed in more detail below) were "coming from LTG Sanchez directly as well as from MG Fast, the C2."[319] 

Major General Walter Wojdakowski:  deputy commanding general of Combined Joint Task Force Seven (CJTF-7), (i.e. Sanchez's Deputy). According to the Schlesinger report, Gen. Sanchez "delegated responsibility for detention operations to his Deputy, MG Wojdakowski."[320] Pappas told Taguba that interrogation plans involving the use of dogs, shackling, "making detainees strip down," or similar aggressive measures followed Sanchez's policy, but were often approved by Gen. Wojdakowski.[321] Gen. Wojdakowski was also reportedly aware from meetings with the ICRC in November 2003 of allegations of crimes at Abu Gharib and failed to take action.[322] The Schlesinger report found, among other criticisms, that "Wojdakowski failed to ensure proper staff oversight of detention and interrogation operations."[323]

Brigadier General Janis Karpinski: commander of the 800th Military Police Brigade with authority over the U.S. prison facilities in Iraq. Gen. Taguba noted that "following the abuse of several detainees at Camp Bucca in May 2003, I could find no evidence that BG Karpinski ever directed corrective training for her soldiers or ensured that MP Soldiers throughout Iraq clearly understood the requirements of the Geneva Conventions relating to the treatment of detainees."[324] The Fay report noted that throughout 2003, Gen. Karpinski received ICRC reports regarding abuses at Abu Ghraib.[325] Nevertheless, as noted by the Schlesinger panel, Gen. Karpinski "failed to ensure that soldiers had appropriate SOPs [standard operating procedures] for dealing with detainees."[326] Taguba wrote that "LTG Sanchez also cited the recent detainee abuse at Abu Ghraib (BCCF) as the most recent example of a poor leadership climate that 'permeates the Brigade.'I totally concur with LTG Sanchez' opinion regarding the performance of BG Karpinski and the 800th MP Brigade." The Schlesinger report agreed and found:

that the weak and ineffectual leadership of the Commanding General of the 800th MP Brigade [Karpinski] and the Commanding Officer of the 205th MI Brigade [Pappas] allowed the abuses at Abu Ghraib. There were serious lapses of leadership in both units from junior non-commissioned officers to battalion and brigade levels. The commanders of both brigades either knew, or should have known, abuses were taking place and taken measures to prevent them…The independent panel finds that BG Karpinski's leadership failure helped set the conditions at the prison which led to the abuses, including her failure to establish appropriate standard operating procedures (SOPs) and to ensure the relevant Geneva Conventions protections were afforded prisoners, as well as her failure to take appropriate actions regarding ineffective commanders and staff officers.[327]

Abu Ghraib-based Officers

Gen. Taguba wrote:

I suspect that COL Thomas M. Pappas, LTC. Steve L. Jordan, Mr. Steven Stephanowicz, and Mr. John Israel were either directly or indirectly responsible for the abuses at Abu Ghraib (BCCF) and strongly recommend immediate disciplinary action as described in the preceding paragraphs as well as the initiation of a Procedure 15 Inquiry to determine the full extent of their culpability.[328]

The Fay report found that Col. Pappas, Col. Jordan, Maj. David Price, Maj. Michael Thompson, and Capt. Carolyn Wood, among others, bore individual responsibility for detainee abuse at Abu Ghraib and that their cases should be forwarded to their chains of command for appropriate action. 

The Jones report states that Sanchez used Colonel Marc Warren, the staff judge advocate for CJTF-7 and Gen. Sanchez's senior legal advisor, "to advise him on the limits of authority for interrogation and compliance with the Geneva Conventions for the memos published."[329] Colonel Stephen Boltz, the second-ranking military intelligence officer in Iraq under General Barbara Fast, was centrally involved in administering intelligence gathering efforts in Iraq, including at Abu Ghraib.  The journalist Mark Danner obtained an e-mail sent by an intelligence captain at Abu Ghraib in August 2003 that reads: "The gloves are coming off gentlemen regarding these detainees, Col. Boltz has made it clear that we want these individuals broken."[330]

Some of the individuals named above are looked at here in more detail:

Colonel Thomas Pappas:  commander of the 205th Military Intelligence Brigade with "tactical control" of Abu Ghraib from November 19, 2003 to February 6, 2004. Col. Pappas visited Abu Ghraib regularly, even occasionally staying overnight. As of November 16, 2003, he took up residence at Abu Ghraib.[331] Col. Pappas saw the ICRC report on abuse at Abu Ghraib, and twice refused to allow the ICRC teams access to specified detainees, including one detainee who was "abused by the use of dogs."[332] According to the testimony of Capt. Donald J. Reese, commander of the 372nd Military Police Company, on November 4, 2003, he witnessed a group of intelligence personnel standing around the body of a bloody detainee discussing what to do. Reese said that Pappas, one of those present, said "I'm not going down for this alone." Reese said no medics were called, the detainee's identification was never logged, and the death was covered up.[333] Fay reported that after a female soldier stripped a male detainee as punishment for uncooperative behavior and forced the detainee to walk semi-naked across the camp, Pappas left the issue for Jordan to handle, and his failure to take sterner action sent the wrong message to the troops.[334] The Fay report found that Col. Pappas, inter alia:

Improperly authorized the use of dogs during interrogations. Failed to properly supervise the use of dogs to make sure they were muzzled after he improperly permitted their use. Failed to take appropriate action regarding the ICRC reports of abuse. Failed to take aggressive action against Soldiers who violated the ICRP, the CJTF-7 interrogation and Counter-Resistance Policy and the Geneva Conventions.

Taguba, Jones, and Schlesinger were similarly critical of Pappas.[335]

 

Lieutenant Colonel Stephen L. Jordan:director of the Joint Intelligence and Debriefing Center (JIDC) in Iraq, which included all of the interrogators at Abu Ghraib. According to Capt. Donald J. Reese, commander of the 372nd Military Police Company, "Jordan was very involved in the interrogation process and the day to day activity that occurred."[336] Reese also implicated Col. Jordan in the covering up of the death of a detainee (see above).[337] Col. Jordan also supervised "the first documented incident of abuse with dogs" which became a "chaotic" situation.[338] Fay concluded that:

Jordan is responsible for allowing the chaotic situation, the unauthorized nakedness and resultant humiliation, and the military dog abuses that occurred that night. … The tone and the environment that occurred that night, with the tacit approval of Ltc. Jordan, can be pointed as the causative factor that set the stage for the abuses that followed for days afterward related.[339]

Col. Jordan reportedly told Col. Phillabaum that "it was common practice for some of the detainees to be kept naked in their cells."[340] According to Gen. Fay, Col. Jordan's failure to adequately punish soldiers who walked a semi-nude detainee across the camp "did not send a strong enough message to the rest of the JIDC that abuse would not be tolerated."[341] Col. Jordan also reversed earlier policy to allow the CIA to conduct interrogations without the presence of Army personnel which "eroded the necessity in the minds of Soldiers and civilians for them to follow Army rules."[342] General Fay also concluded that Col. Jordan: "Failed to prevent the unauthorized use of dogs and the humiliation of detainees who were kept naked for no acceptable purpose while he was the senior officer in charge; Failed to accurately and timely relay critical information to his superior officer about the International Committee of the Red Cross report."[343] The Schlesinger report found that leadership problems by Col. Jordan allowed the abuses to occur at Abu Ghraib.[344]

To Human Rights Watch's knowledge, however, no criminal investigations are underway regarding any of the officers or contactors listed above.

[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.)

[82]18 U.S.C. §§ 2401, 2441.

[83] 18 U.S.C. § 2340 A (a). Section 2340(3) defined the "United States" as including "all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501(2) of title 49." The USA Patriot Act broadened the scope of section 7, extending jurisdiction under that section to foreign diplomatic, military and other facilities. The Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 amends section 2340(3) to define the "United States" as "the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States" (H.R.4200, 108th Cong. §1089 (2004)).

[84] The United States reported to the U.N. Committee against Torture that "Where acts constituting torture under the Convention are subject to federal jurisdiction, they fall within the scope of such criminal offences as assault, maiming, murder, manslaughter, attempt to commit murder or manslaughter, or rape. See 18 U.S.C. §§113, 114, 1111, 1113, 2031. Conspiracy to commit these crimes, and being an accessory after the fact, are also crimes. See 18 U.S.C. §§3, 371 and 1117" (U.N. Committee against Torture, "Consideration of Reports Submitted by State Parties under Article 19 of the Convention: Initial Reports of State Parties due in 1995; Addendum; United States of America" (Geneva: United Nations, 2000), CAT/C/28/Add.5, para. 178).

[85]10 U.S.C. §§801-941 (1994 and Supp. IV, 1999).

[86] 10 U.S.C.. §802 (1994). The term "armed forces" is defined in section 101(a)(4) to mean the "Army, Navy, Air Force, Marine Corps, and Coast Guard" (10 U.S.C. §101(a)(4) (1994)). The UCMJ applies to civilians accompanying the armed forces only during a congressionally declared war.

[87] 10 U.S.C. §805.

[88] 10 U.S.C. §893

[89] 10 U.S.C. §892. This offense, which applies to personnel who know of offenses by others and fail to report them, as well as failure to obey orders, has been frequently used against soldiers involved in recent prisoner abuse.

[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://armed-services.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/CLAMO-Public.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.

[97] Douglas Jehl and Andrea Elliott, "The Reach of War: GI Instructors; Cuba Base Sent its Interrogators to Iraqi Prison," The New York Times, May 29, 2004, p. A1.

[98] William H. Taft IV, "Keynote Remarks," The Geneva Convention and the Rules of War in the Post 9-11 and Iraq World, conference, Washington College of Law American University, March 24, 2005. On file with Human Rights Watch.

[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/wp-srv/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.

[107]Article 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."

[108]Field Manual 34-52: Intelligence Interrogation, U.S. Department of the Army, September 1992, pp. 1-9.

[109] The U.N. Committee against Torture, in its consideration of the report of Israel, for example, noted that methods allegedly included: "(1) restraining in very painful conditions, (2) hooding under special conditions, (3) sounding of loud music for prolonged periods, (4) sleep deprivation for prolonged periods, (5) threats, including death threats, (6) violent shaking, and (7) using cold air to chill, and are, in the Committee's view, breaches of article 16 and also constitute torture as defined in article 1 of the Convention. This conclusion is particularly evident where such methods of interrogation are used in combination, which appears to be the standard case" (U.N. Committee against Torture (CAT), "Concluding Observations concerning Israel" (United Nations, Geneva, 1997), A/52/44, para. 257, emphasis added). See also CAT, "Concluding Observations concerning Republic of Korea" (United Nations, Geneva, 1996), A/52/44, para. 56 (severe sleep deprivation constitutes torture); CAT, "Concluding Observations concerning New Zealand" (United Nations, Geneva, 1993), A/48/44, para. 148 (threat of torture constitutes torture). The U.N. Special Rapporteur on Torture has condemned many of these practices, pointing out that while cruel, inhuman or degrading treatment may be subject to different rules than torture under the Convention against Torture and Other Cruel, Human or Degrading Treatment or Punishment (CAT), its prohibition is nonetheless "non-derogable" (absolute at all times) under Article 4 of the ICCPR. See "Interim Report of the Special Rapporteur of the Commission on Human Rights on the Question of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment," (United Nations, Geneva, 2004), A/59/324.

[110] "Interim Report of the Special Rapporteur of the Commission on Human Rights on the Question of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment," (United Nations, Geneva, 2004), A/59/324, para 17.

[111]See Human Rights Watch, "U.S. State Department Criticism of 'Stress and Duress' Interrogation Around the World," A Human Rights Watch Backgrounder, April 2003 [online], http://www.hrw.org/press/2003/04/stressnduress.htm.

[112]Country Reports on Human Rights Practices: 2004, U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, February 28, 2005.

[113] See Field Manual 34-52, Department of Army, 1992, Chapter 1 ("The use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind is prohibited by law and is neither authorized nor condoned by the US Government"). Under 18 U.S.C. §2340(1), torture is defined to include an act specifically intended to inflict severe mental pain or suffering. Section 2340 (2) defines "severe mental pain or suffering" to mean: "the prolonged mental harm caused by or resulting from (A) the intentional infliction or threatened infliction of severe physical pain or suffering; or… (C) the threat of imminent death." According the U.N. Special Rapporteur on Torture,

A number of decisions by human rights monitoring mechanisms have referred to the notion of mental pain or suffering, including suffering through intimidation and threats, as a violation of the prohibition of torture and other forms of ill-treatment. Similarly, international humanitarian law prohibits at any time and any place whatsoever any threats to commit violence to the life, health and physical or mental well-being of persons. It is my opinion that serious and credible threats, including death threats, to the physical integrity of the victim or a third person can amount to cruel, inhuman or degrading treatment or even torture, especially when the victim remains in the hands of law enforcement officials.

("Report of the Special Rapporteur, Sir Nigel Rodley, submitted pursuant to Commission on Human Rights resolution 2001/62," (United Nations, Geneva, 2001), E/CN.4/2002/76, Annex III.) See also Commission on Human Rights resolution 2003/38, "Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment," which states, "intimidation and coercion, as described in article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, including serious and credible threats, as well as death threats, to the physical integrity of the victim or of a third person, can amount to cruel, inhuman or degrading treatment or to torture" (United Nations, Geneva, 2002), E/CN/4/RES/2002/38, emphasis added; In Brazil, for example, the U.N. Special Rapporteur on Torture stated that: "the most common forms of torture were electric shocks, beatings, and threats."

[114]Fay report, p. 68.

[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_interrogators/.

[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/.

[137] Dr. Steve Cambone, "Testimony of Dr. Steve Cambone," Senate Armed Services Committee, Hearing on Treatment of Iraqi Prisoners, May 7, 2004, p. 24.

[138] Major General Geoffrey Miller, "Testimony of Major General Geoffrey Miller," Senate Armed Services Committee, Hearing on Iraq Prisoner Abuse, May 19, 2004, p. 25.

[139] Sworn Statement of Colonel Thomas M. Pappas, Victory Base, Iraq, February 11, 2004.

[140] Senate Armed Services Committee, Hearing on Treatment of Iraqi Prisoners, May 7, 2004. On page 24 of the hearing transcript, Rumsfeld responds to the question "Did you ever see, approve or encourage this policy of enabling for interrogation?" by saying, "I don't recall that that policy came to me for approval." On page 25, Cambone responds to the question "…[W]ere you aware that a specific recommendation was to use military police to enable in the interrogation process?" by saying, "In that precise language, no."

[141]Senator Hillary Clinton, question to General Taguba, Senate Armed Services Committee Testimony, Hearing on Allegations of Mistreatment of Iraqi Prisoners, May 11, 2004 [online], http://www.washingtonpost.com/wp-dyn/articles/A17812-2004May11.html.

[142] Ricardo S. Sanchez, Lieutenant General, to Combined Joint Staff Force Seven, Baghdad, Iraq, and Commander, 205th Military Intelligence Brigade, Baghdad, Iraq, "CJTF-7 Interrogation and Counter-Resistance Policy," memorandum, September 14, 2003 [online], http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=17851&c=206.

[143] Ibid.

[144] Douglas Jehl and Andrea Elliott, "Cuba Base Sent Its Interrogators to Iraqi Prison," The New York Times, May 29, 2004.

[145]This was a reference to a visit by Ms. Frances Fragos Townsend, deputy assistant to the president and deputy national security advisor for combating terrorism. See Blake Morrison and John Diamond, "Pressure at Iraqi Prison Detailed," USA Today, June 18, 2004.

[146] James Schlesinger, "Testimony of James Schlesinger," Senate Armed Services Committee, Hearing on DoD Detention Operations, September 9, 2004, p. 34.

[147] Schlesinger report, pp. 65-66.

[148] Lieutenant Colonel Stephen L. Jordan, AR 15-6 Investigation Interview, February 24, 2004, [online] http://www.aclu.org/torturefoia/released/a53.pdf, p. 96.

[149] Ibid., p. 111.

[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.

[154] Ibid., p. A12.

[155] 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, paras. 33-34.

[156] Peter Slevin and Robin Wright, "Pentagon Was Warned of Abuse Months Ago," The Washington Post, May 8, 2004, p. A12.

[157] Douglas Jehl and Eric Schmitt, "Army Tried to Limit Abu Ghraib Access," The New York Times, May 20, 2004. This pattern continued even after the Abu Ghraib disclosures. In June 2004, DIA Director, Vice Adm. Lowell Jacoby, complained in a letter to Undersecretary for Intelligence Stephen Cambone, that two DIA agents had witnessed special forces in Baghdad beating a prisoner in the face severely enough to require medical attention. When they protested, Jacoby told Cambone, the DIA officers were threatened and their photos of the injuries confiscated.

[158] "Report on Detention and Corrections Operations in Iraq," Office of the Provost Marshal General of the Army, November 5, 2003 [online], http://www.aclu.org/torturefoia/released/18TF.pdf; "Chronology: Early Warnings Missed; A Prison-Abuse Timeline," Los Angeles Times, May 16, 2004.

[159] Josh White, "U.S. Generals in Iraq Were Told of Abuse Early, Inquiry Finds," The Washington Post, December 1, 2004.

[160] Luke Harding, "Bremer Knew, Minister Claims," The Guardian, May 10, 2004.

[161] Amnesty International to the U.S. Government, "Memorandum to the US Government on the Rights of People in US Custody in Afghanistan and Guantánamo Bay," memorandum, April 15, 2002 [online], http://web.amnesty.org/library/Index/ENGAMR510532002.

[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.

[172] In addition, there may be as many as 100 "ghost detainees" kept hidden from the ICRC ("Rumsfeld Defends Pentagon in Abuse Scandal," Associated Press, September 10, 2004).

[173] The Department of Defense has reported that abuses against detainees fell sharply after the Abu Ghraib revelations (Josh White, "Reported Abuse Cases Fell after Abu Ghraib," The Washington Post, March 17, 2005, p. A17). This suggests that attention to proper treatment of detainees can have a salutory effect.

[174]50 U.S.C. §403 (a) (3).

[175] The Fay/Jones and Schlesinger investigations requested documentation from the CIA in vain. See Senate Armed Services Committee Hearing, September 9, 2004, pp. 11, 13, 14; see also Schlesinger report, pp. 6, 70, 87. ("The Panel did not have full access to information involving the role of the Central Intelligence Agency in detention operations…" and could not make any determinations about ghost detainees).  The CIA provided information to the Church inquiry about Iraq only.

[176] In October 2003, the Center for Constitutional Rights, the American Civil Liberties Union and other organizations filed a FOIA request seeking documents pertaining to the torture or abuse of detainees held by the United States. The organizations then went to court to enforce their request. In response to a judge's order, the FBI, Justice Department, and State Department have produced more than 23,000 pages of documents, but the CIA refused to search its files. On February 2, 2005, a federal judge ordered the CIA to process and release those documents.

[177]Schlesinger report, p. 70.

[178]Jones report, p. 6.

[179] Fay report, pp. 44-45.

[180] Jay S. Bybee to Alberto R. Gonzales, Counsel to the President, memorandum, "Standards for Conduct of Interrogation under 18 U.S.C. Sections 2340-2340A," August 1, 2002 [online], http://news.findlaw.com/wp/docs/doj/bybee80102mem.pdf. (This memorandum has since been repudiated by the administration.)

[181] David Johnston and James Risen, "Aides Say Memo Backed Coercion for Qaeda Cases," The New York Times, June 27, 2004.

[182] See Toni Locy and John Diamond, "Memo Lists Acceptable 'Aggressive' Interrogation Methods: Justice Dept. Gave Guidance to CIA," USA Today, June 28, 2004; Dana Priest, "CIA Puts Harsh Tactics on Hold," The Washington Post, June 27, 2004.

[183] James Risen, David Johnston and Neil A. Lewis, "Harsh C.I.A. Methods Cited In Top Qaeda Interrogations," The New York Times, May 13, 2004.

[184] MG George R. Fay, AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade, 2004 [online], http://news.findlaw.com/hdocs/docs/dod/fay82504rpt.pdf, pp. 53-54.

[185]Senate Armed Services Committee, Investigation of the 205th Military Intelligence Brigade at Abu Ghraib Prison, Iraq, September 9, 2004. According to General Kern, "A ghost detainee, by our definition, is a person who has been detained in a U.S. facility and has not been recorded."

[186] Church report, p. 18.

[187] Josh White, "Abu Ghraib Guards Kept a Log of Prison Conditions, Practices," The Washington Post, October 25, 2004.

[188] Ibid.

[189] Charles Aldinger, "Military Hid Prisoner from Red Cross," CommonDreams News Center, July 17, 2004 [online], http://www.commondreams.org/headlines04/0617-04.htm.

[190] Maj. Gen. Antonio M. Taguba, Article 15-6 Investigation of the 800th Military Police Brigade, (an investigative report, on alleged abuses at U.S. military prisons in Abu Ghraib and Camp Bucca, Iraq), para. 33, emphasis added.

[191] Douglas Jehl, "Prisoners: U.S. Action Bars Right of Some Captured in Iraq," The New York Times, October 26, 2004; Dana Priest, "Memo Lets CIA Take Detainees out of Iraq," The Washington Post, October 24, 2004.

[192] "Enforced disappearance," the systematic practice of which can be a crime against humanity, is defined by the Article 7 (2) (1) of the Rome Statute of the International Criminal Court as the

arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

[193] 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/.

[194]Human Rights Watch, "In the Name of Security: Counterterrorism and Human Rights Abuses under Malaysia's Internal Security Act," A Human Rights Watch Report, May 2004 [online], http://www.hrw.org/reports/2004/malaysia0504/.

[195]John McWethy, "Nightline," ABC News, May 13, 2004.

[196] International Committee of the Red Cross, "United States: ICRC President Urges Progress on Detention-Related Issues," March 4, 2004 [online], http://www.icrc.org/Web/Eng/siteeng0.nsf/iwpList74/774F1B35A7E20CC9C1256E1D007741C1.

[197] "Rights Groups Raise Concerns over Secret U.S.-run Prisons in Afghanistan," Agence France Presse, June 19, 2004.

[198] James Risen, David Johnston, and Neil A. Lewis, "Harsh C.I.A. Methods Cited In Top Qaeda Interrogations," The New York Times, May 13, 2004.

[199] Hamdi et al. v. Rumsfeld, Secretary of Defense, et al., No. 03-6696, (2004), 2004 U.S. LEXIS 4761, p. 13.

[200]22 U.S.C. § 2304 (d) (1).

[201] Commission on Human Rights, (United Nations: Geneva, 2004), Resolution 2004/41, emphasis added. See also "ICCPR General Comment 20 (Forty-fourth Session, 1992): Article 7: Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment," A/47/40 (1992) 193, para 6 ("prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7").

[202] El-Megreisi v. Libyan Arab Jamahiriya, Communication No. 440/1990, (United Nations: 1994), CCPR/C/50/D/440/1990. The Inter-American Court on Human Rights has also held that "prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment." Inter-Am. Ct. H. R., Velasquez-Rodriguez case, Judgment of 29 July 1988, Series C, No. 4, para. 156. ( "prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being. Such treatment, therefore, violates Article 5 of the [American] Convention on Human Rights [prohibition against torture etc.].") As noted above, 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." These provisions also require that prisoners be documented, and that their whereabouts be made available to their family and governments.

[203] James Risen, David Johnston, and Neil A. Lewis, "Harsh C.I.A. Methods Cited In Top Qaeda Interrogations," The New York Times, May 13, 2004; Waterboarding may also include "pouring water on a detainee's toweled face to induce the misperception of suffocation" (Church report, p. 5).

[204]See Toni Locy and John Diamond, "Memo Lists Acceptable 'Aggressive' Interrogation Methods: Justice Dept. Gave Guidance to CIA," USA Today, June 28, 2004; Dana Priest, "CIA Puts Harsh Tactics on Hold," The Washington Post, June 27, 2004.

[205]Testimony of Porter Goss, Senate Armed Services Committee, Hearing on Threats to U.S. National Security, March 17, 2005, p. 16. 

[206]The Instanbul Protocol:The Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a prominent set of international guidelines for documentation of torture and its consequences, states:

Near asphyxiation by suffocation is an increasingly common method of torture. It usually leaves no marks and recuperation is rapid. This method of torture was so widely used in Latin America, that its Spanish name "submarino" became part of the human rights vocabulary. Normal respiration might be prevented through methods such as covering the head with plastic bag, closure of the mouth and the nose, pressure or ligature around the neck, or forced aspiration of dusts, cement, hot peppers, etc. This is also known as "dry submarino." Various complications might develop such as petechiae of the skin, nosebleeds, bleeding from the ears, congestion of the face, infections in the mouth and acute and chronic respiratory problems. ….Forcible immersion of the head into water, often contaminated with urine, feces, vomit, or other impurities, may result in near drowning or drowning. Aspiration of the water into the lungs may lead to pneumonia. This form of torture is also called "wet submarino."

(United Nations: Geneva, 1999), E.01.XIV.1.

[207] U.S Department of State Country Reports on Human Rights Practices; Tunisia, 2004 [online], http://www.state.gov/g/drl/rls/hrrpt/2004/41733.htm. ("The forms of torture included: electric shock; confinement to tiny, unlit cells; submersion of the head in water.")

[208] "Torture and other Cruel, Inhuman or Degrading Treatment or Punishment," Report of the Special Rapporteur, Mr. P. Kooijmans, appointed pursuant to Commission on Human Rights res. 1985/33 E/CN.4/1986/15, 19 Feb. 1986, at para. 119 (describing "suffocation by near-drowning in water (sous-marin) and/or excrement").

[209] Dana Priest, "CIA Puts Harsh Tactics on Hold," The Washington Post, June 27, 2004.

[210]See Physicians for Human Rights, Letter to President Bush, March 21, 2003 [online], http://www.phrusa.org/waronterror/letter_032103.html. "As health professionals we are keenly aware that withholding necessary medical care for severe injuries also constitutes torture because it brings about unnecessary but deliberate additional suffering from those injuries." This will, of course, depend on whether there is the intentional infliction of "severe pain or suffering" as required by the Convention against Torture. In Hurtado v. Switzerland, the European Commission on Human Rights unanimously found a violation of the prohibition against inhuman or degrading treatment "because [the detainee] was not given immediate medical treatment" for injuries suffered when he was apprehended (Eur. Ct. H.R., App. No. 17549/90 (January 28, 1994), at para. 12 (noting the Commission's findings)). See also Case of Cantoral-Benavides v. Peru, Judgment of August 18, 2000, Inter-Am. Ct. H.R. (Ser C) No. 69 (2000), See Jama v. U.S. Immigration and Naturalization Service, 22 F. Supp.2d 353, 363 (D.N.J. 1998) (noting inadequate medical treatment as part of the conduct which constituted CID treatment). The Special Rapporteur on Torture has recommended that "Governments and professional medical associations should take strict measures against medical personnel that play a role, direct or indirect, in torture… [T]he withholding of appropriate medical treatment by medical personnel should be subject to sanction." Report of the Special Rapporteur, Sir Nigel Rodley, submitted pursuant to Commission on Human Rights resolution 2001/62, E/CN.4/2003/68, 17 December 2002, Annex 1.

[211] Dana Priest, "CIA Puts Harsh Tactics on Hold: Memo on Methods of Interrogation Had Wide Review," The Washington Post, June 27, 2004.

[212]The U.N. Committee Against Torture, in its consideration of the report of Israel, for example, noted that methods allegedly included: "(1) restraining in very painful conditions, (2) hooding under special conditions, (3) sounding of loud music for prolonged periods, (4) sleep deprivation for prolonged periods, (5) threats, including death threats, (6) violent shaking, and (7) using cold air to chill, and are, in the Committee's view, breaches of article 16 and also constitute torture as defined in article 1 of the Convention. This conclusion is particularly evident where such methods of interrogation are used in combination, which appears to be the standard case" (U.N. Committee against Torture (CAT), "Concluding Observations concerning Israel" (United Nations, Geneva, 1997), A/52/44, para. 257, emphasis added).

[213] Dana Priest, "CIA Puts Harsh Tactics on Hold," The Washington Post, June 27, 2004.

[214] Dana Priest and Barton Gellman, "U.S. Decries Abuse but Defends Interrogations," The Washington Post, December 26, 2002.

[215] Michael Hirsh, John Barry, and Daniel Klaidman, "A Tortured Debate," Newsweek, June 21, 2004, emphasis added.

[216] Dana Priest, "CIA Puts Harsh Tactics on Hold," The Washington Post, June 27, 2004.

[217] Statement by George Tenet, "Counterterrorism Policy: Hearing before the National Commission on Terrorist Attacks upon the United States," March 24, 2004 [online], http://www.9-11commission.gov/archive/hearing8/9-11Commission_Hearing_2004-03-24.htm

[218] Ibid. (It is not clear which transfers were included in this number, but it would appear that this number encompasses both transfers to the United States and those to other states.)

[219] Douglas Jehl and David Johnston, "Rule Change Lets CIA Freely Send Suspects Abroad to Jails," The New York Times, March 6, 2005.

[220] Ibid.

[221] This case and ten others are compiled from news reports in Association of the Bar of the City of New York & 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).

[222] "The Trials of Mamdouh Habib," Dateline SBS, July 7, 2004.

[223]See Declaration of Joseph Margulies, attached to Plaintiff's Application for Temporary Restraining Order, Habib v. Bush, filed November 24, 2004. (D.C. Dist.) (No. 02-CV-1130) According to The New Yorker, "Hossam el Hamalawy said that Egyptian security forces train German shepherds for police work, and that other prisoners have also been threatened with rape by trained dogs, although he knows of no one who has been assaulted this way" (Jane Mayer, "Outsourcing Torture," The New Yorker, February 14, 2005, p. 118). Dr. Hajib Al-Naumi, Qatar's former justice minister, told the Australian television program "Dateline" that according to reports from contacts of his in Egypt, Habib "was in fact tortured. He was interrogated in a way which a human cannot stand up…We were told that he -- they rang the bell that he will die and somebody had to help him" ("The Trials of Mamdouh Habib," Dateline SBS, July 7, 2004).

[224] Raymond Bonner, "Australian's Long Path in U.S. Antiterrorism Maze," The New York Times, January 29, 2005.

[225] "The Broken Promise," Kalla Fakta, Swedish TV4 Program, May 17, 2004 [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.

[226] Stephen Grey, "U.S. Agents "Kidnapped Militant" for Torture in Egypt," The Sunday Times, February 6, 2005.

[227] As in Arar's case, Zammar was technically a dual citizen because Damascus does not allow those born in Syria to renounce their citizenship.

[228]  Peter Finn, "Al Qaeda Recruiter Reportedly Tortured; Ex-Inmate in Syria Cites Others' Accounts," The Washington Post, January 31, 2003.

[229] Douglas Frantz, "War of Secrets: Sharing Information; Learning to Spy with Allies," The New York Times, September 8, 2002; John Crewsdon, "Bid for New Witness Could Slow Plot Trial; Defense Sets Sights on Radical in Syria," The Chicago Tribune, January 29, 2003.

[230]Peter Finn, "Al Qaeda Recruiter Reportedly Tortured; Ex-Inmate in Syria Cites Others' Accounts," The Washington Post, January 31, 2003.

[231] See Amnesty International, "Syria: Syrian German Held Three Years Without Charge in Rat-Infested Syrian 'Tomb,'" October 8, 2004 [online], http://web.amnesty.org/library/Index/ENGMDE240662004

[232] Mitch Frank, "Help From an Unlikely Ally," Time Magazine, July 1, 2002. The Daily Telegraph and The Washington Post have also reported that U.S. agents were telling Syrian interrogators what questions to ask Zammar; David Rennie & Toby Helm, "War on Terrorism: Syrians Reveal Secret Help in al-Qa'eda Hunt," June 20, 2002 ("American agents had been allowed to submit written questions to Zammar and had received a steady flow of information in return"); Glenn Kessler, "U.S.-Syria Relations Not Quite as Cold," The Washington Post, June 20, 2002. ("While U.S. officials have not been able to question Zammar, Americans have submitted questions to the Syrians"); Howard Schneider, "Syria Evolves as Anti-Terror Ally," The Washington Post, July 25, 2002 ("it is unclear whether U.S. officials are being allowed to question [Zammar] in person or merely pose questions through Syrian interrogators").

[233] Rajiv Chandrasekaran and Peter Finn, "U.S. Behind Secret Transfer of Terror Suspects," The Washington Post, March 11, 2002.

[234] Daniel McGory, "Ghost Prisoners Haunt Terrorism Hunt," The London Times, September 11, 2004.

[235] Dana Priest and Barton Gellman, "U.S. Decries Abuse but Defends Interrogations," The Washington Post, December 25, 2002.

[236]Jane Mayer, "Outsourcing Torture: The Secret History of America's 'Extraordinary Rendition' Program," The New Yorker, February 8, 2005; "Transcript of 'File on 4' Rendition," BBC Current Affairs Group, February 8, 2005; "CIA Flying Suspects to Torture?" "A 60 Minutes Special Report," March 6, 2005.

[237] See Human Rights Watch, "State Department Criticism of Torture in Countries to Which Detainees Have Allegedly Been Rendered," A Human Rights Watch Press Release, April 2003 [online], http://hrw.org/press/2003/04/torture.htm.

[238] U.S. Department of State Country Reports on Human Rights Practices: Egypt, February 2004 [online], http://www.state.gov/g/drl/rls/hrrpt/2003/27926.htm.

[239] U.S. Department of State Country Reports on Human Rights Practices: Syria, February 2004 [online],

http://www.state.gov/g/drl/rls/hrrpt/2003/27938.htm. In November 2003, just days after Maher Arar was released from Syrian custody, President Bush declared that the government of Syria had left "a legacy of torture, oppression, misery, and ruin." Remarks by the President George W. Bush on the Occasion of the 20th Anniversary of the National Endowment for Democracy, November 6, 2003 [online], http://www.whitehouse.gov/news/releases/2003/11/20031106-2.html

[240] John Barry, Michael Hirsh & Michael Isikoff, "The Roots of Torture," Newsweek, May 24, 2004,

[241] Michael Scheuer, "A Fine Rendition," The New York Times, March 11, 2005.

[242] "Transcript of 'File on 4' Rendition," BBC Current Affairs Group, February 8, 2005.

[243]18 U.S.C. § 2340A(c), emphasis added.

[244] 18 U.S.C. §2.

[245] Wayne R. Lafave, Criminal Law (3d ed. 2000), § 6.7.

[246] See Association of the Bar of the City of New York & 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), Section VIII.

[247] See Human Rights Watch, "Still at Risk: Diplomatic Assurances No Safeguard against Torture," A Human Rights Watch Report, April 2005 [online], http://hrw.org/reports/2005/eca0405/.

[248] See Wayne R. Lafave, Criminal Law (3d ed. 2000), §6.7 (d). U.S. courts differ on whether liability rests on whether mere "knowing assistance" suffices for criminal liability or whether the defendant must desire the result (that the detainee be tortured).

[249] Shannon McCaffrey, "Canadian Sent to Syria Prison Disputes U.S. Claims against Torture," Knight Ridder, July 28, 2004 [online] http://www.realcities.com/mld/krwashington/9264400.htm. See also Dana Priest, "Man was Deported after Syrian Assurances," The Washington Post, November 20, 2003: "Spokesmen at the Justice Department and the CIA declined to comment on why they believed the Syrian assurances to be credible." The Washington Post quoted an "Arab diplomat, whose country is actively engaged in counterterrorism operations and shares intelligence with the CIA," as saying that it was unrealistic to believe the CIA really wanted to follow up on the assurances. "It would be stupid to keep track of them because then you would know what's going on," he said. "It's really more like 'Don't ask, don't tell" (Dana Priest, "CIA's Assurances on Transferred Suspects Doubted," The Washington Post, March 17, 2005).

[250] Testimony of Lt. Gen Ricardo Sanchez, Senate Armed Services Committee, Hearing on Iraq Prisoner Abuse, May 19, 2004.

[251] Jones report, pp. 9-10.

[252] Testimony of Lt. Gen Ricardo Sanchez, Senate Armed Services Committee, Hearing on Iraq Prisoner Abuse, May 19, 2004, p. 26.

[253] Schlesinger report, p. 83.

[254] Ibid, p. 14.

[255] Fay report, p. 29.

[256] Douglas Jehl and Eric Schmitt, "Army's Report Faults General in Prison Abuse," The New York Times, August 27, 2004.

[257] Ibid.

[258] Col. Steven Boltz, the second-ranking military intelligence officer in Iraq.

[259] Mark Danner, Torture and Truth; America, Abu Ghraib and the War on Terrorism (New York: The New York Review of Books, 2004), p. 33.

[260] Fay report, p. 58.

[261] Schlesinger report, pp. 9-10.

[262] From Lt. Ricardo Sanchez to Commander U.S. Central Command, memorandum, Interrogation and Counter-Resistance Policy, September 14, 2003 [online], http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=17851&c=206.

[263] Schlesinger report, p. 9.

[264] Fay report, pp. 25-26. See Mark Danner, Torture and Truth; America, Abu Ghraib and the War on Terrorism (New York: The New York Review of Books, 2004), p. 461, which includes sections of the Fay report not released to the public.

[265] Fay report, p. 26; Mark Danner, Torture and Truth; America, Abu Ghraib and the War on Terrorism (New York: The New York Review of Books, 2004), p. 462.

[266] Senate Armed Services Committee, Hearing on Allegations of Mistreatment of Iraqi Prisoners, May 19, 2004.

[267] Sworn Statement of E5, A Company, 519th Military Intelligence Battalion, 525th Military Intelligence Brigade, Fort Bragg, June 4, 2004.

[268] Colonel Thomas M. Pappas, "AR 15-6 Investigation Interview," February 9, 2004,  p. 34.

[269]CJTF-7 Interrogation and Counter-Resistance Policy, memorandum, October 12, 2003 [online], http://www.aclu.org/torturefoia/released/a94.pdf.

[270] Ibid.

[271]Fay report, p. 27.

[272] Fay report, p. 28, emphasis added. The Schlesinger report noted that "The Taguba and Jones/Fay investigations identified a number of abuses related to using muzzled and unmuzzled dogs during interrogations." Schlesinger report, p. 77. See also Douglas Jehl and Eric Schmitt, "Army's Report Faults General in Prison Abuse," The New York Times, August 27, 2004.

[273] Jones report, p. 4.

[274] Testimony of Gen. Miller, Senate Armed Services Committee, Hearing on Allegations of Mistreatment of Iraqi Prisoners, May 19, 2004, emphasis added.

[275] Schlesinger report, pp. 12-13.

[276] Taguba report, p. 16.

[277] Fay report, p. 7.

[278] International Committee of the Red Cross, Report 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 [online], http://www.icrc.org/web/eng/siteeng0.nsf/iwpList74/E4EC091842422511C1256EB500636F70 .

[279] Ibid.

[280] In early July 2003, the ICRC presented a paper detailing approximately 50 allegations of ill-treatment in the military intelligence section of Camp Cropper, at Baghdad International Airport.

[281] Jones report, p. 12.

[282]Douglas Jehl and Eric Schmitt, "Army Tried to Limit Abu Ghraib Access," The New York Times, May 20, 2004.

[283] International Committee of the Red Cross, Report 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 [online], http://www.icrc.org/web/eng/siteeng0.nsf/iwpList74/E4EC091842422511C1256EB500636F70.

[284] Testimony of Lt. Gen. Ricardo Sanchez, Senate Armed Services Committee, Hearing on Iraq Prisoner Abuse, May 19, 2004.

[285]Josh White, "U.S. Generals in Iraq Were Told of Abuse Early, Inquiry Finds," The Washington Post, December 1, 2004.

[286] Schlesinger report, p. 65.

[287] Ibid.

[288] First Lieutenant Elvis L. Mabry, "AR 15-6 Investigation Interview," February 15, 2004, p. 3.

[289] Joe Stephens and Josh White, "Prison Visits by General Reported in Hearing; Alleged Presence of Sanchez Cited by Lawyer," The Washington Post, May 23, 2004.                               

[290]Col. Thomas M. Pappas to Commander CJTF-7 LTG Sanchez, "Request for Exception to CJTF-7 Interrogation and Counter Resistance Policy," memorandum, November 30, 2003.

[291] Testimony of Lt. Gen. Ricardo Sanchez, Senate Armed Services Committee, Hearing on Iraq Prisoner Abuse, May 19, 2004, pp. 31-32.

[292] Jones report, p. 24.

[293] Ibid., p. 4.

[294]Schlesinger report, p. 15.

[295] Ibid., p. 45.

[296] Testimony of General Miller, Senate Armed Forces Committee, Hearing on Iraq Prisoner Abuse, May 19, 2004.

[297] See Bill Gertz and Rowan Scarborough, "Inside the Ring," The Washington Times, October 4, 2002; David Rose, Guantánamo (New York, The New Press, 2004), p. 85; "GITMO Camp Commander Relieved," The Washington Post, October 14, 2002.

[298] Schlesinger report, p. 9.

[299] Church report, p. 9.

[300] Neil A. Lewis, "Red Cross Finds Detainee Abuse in Guantánamo," The New York Times, November 30, 2004.

[301] 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, "Report of Former Guantánamo Detainees," August 4, 2004 [online], http://www.ccr-ny.org/v2/reports/docs/Gitmo-compositestatementFINAL23july04.pdf.

[302] Ibid.

[303] Neil A. Lewis, "Fresh details emerge on harsh methods at Guantánamo," The New York Times, January 1, 2005.

[304] Ibid.

[305]American Civil Liberties Union, E-mail from [redacted] to [redacted], August 2, 2004 [online], www.aclu.org/torturefoia/released/FBI_5053_5054.pdf (though this was written in 2004, it was recalling earlier events).

[306] Paisley Dodds, "Guantánamo Tapes Show Teams Punching, Stripping Prisoners," Associated Press, February 1, 2005. In November 2002, just before Miller arrived, U.S. National Guardsman Spc. Sean Baker was allegedly abused by an ERF while posing undercover as a detainee. Baker was told to put on an orange jumpsuit and crawl under a bunk in a cell. According to Baker, the ERF members "grabbed my arms, my legs, twisted me up and unfortunately one of the individuals got up on my back from behind and put pressure down on me while I was facedown. Then he - the same individual - reached around and began to choke me and press my head down against the steel floor. After several seconds, twenty to thirty seconds, it seemed like an eternity because I couldn't breathe, I began to panic…" Baker was evacuated to a hospital in Virginia, and was later sent to an Army hospital for treatment of traumatic brain injury and he has been plagued by seizures ever since. See David Rose, Guantánamo (New York, The New Press, 2004), pp. 72-74.

[307] These documents are collected at "Conditions at Guantánamo Bay: DoD Documents Detail Red Cross Comments on Detainee Treatment and Actions Taken in Response," The Washington Post, June 18, 2004 [online], http://www.washingtonpost.com/wp-srv/nation/documents/gitmomemos.html.

[308]See also Scott Higham, "A Look Behind the 'Wire' at Guantánamo: Defense Memos Raise Questions about Detainee Treatment as Red Cross Sought Changes," The Washington Post, June 13, 2004.

[309]See Amnesty International, "United States of America: Guantánamo - An Icon of Lawlessness," January 6, 2005.

[310]Neil A. Lewis, "Red Cross Finds Detainee Abuse in Guantánamo," The New York Times, November 30, 2004.

[311] Scott Wilson and Sewell Chan, "As Insurgency Grew, So Did Prison Abuse," The Washington Post, May 9, 2004.

[312] Testimony of Gen. Miller, Senate Armed Services Committee, Hearing on Iraq Prison Abuse, May 19, 2004 ("Senator, I did not tell General Karpinski I was going to Gitmo-ize Abu Ghraib. I don't believe I've ever used that term - ever").

[313] Jeffrey R. Smith, "General Is Said to Have Urged Use of Dogs," The Washington Post, May 26, 2004.

[314] Ibid. ("Miller never had a conversation with Colonel Pappas regarding the use of military dogs for interrogation purposes in Iraq. Further, military dogs were never used in interrogations at Guantánamo," said Brig. Gen. Mark Kimmitt, spokesman for U.S. forces in Iraq.)

[315] Fay report, p. 83.

[316]"Iraq Abuse 'Ordered from the Top,'" BBC, June 15, 2004 [online], http://news.bbc.co.uk/1/hi/world/americas/3806713.stm.

[317]Jones report, p. 14.

[318] Ibid., pp. 11, 13.

[319] Fay report, p. 109.

[320] Schlesinger report, p. 45.

[321]Jeffrey R. Smith, "General Is Said to Have Urged Use of Dogs," The Washington Post, May 26, 2004.

[322]Douglas Jehl, "U.S. Rules on Prisoners Seen as a Back and Forth of Mixed Messages to G.I.'s," The New York Times, June 24, 2004. ("[S]everal senior Army officers knew by last November that the Red Cross had complained about problems at the prison, including forced nudity and physical and verbal abuse of prisoners. Among those aware of the concerns were General Sanchez's top deputy, Maj. Gen. Walter Wojdakowski.")

[323] Schlesinger report, p. 25.

[324] Taguba report, p. 24.

[325]Fay report, pp. 65-67.

[326]Schlesinger report, p. 67.

[327] Ibid., p. 43, emphasis added.

[328] Taguba report, p. 42.

[329] Jones report, p. 14.

[330] Mark Danner, Torture and Truth; America, Abu Ghraib and the War on Terrorism (New York: The New York Review of Books, 2004), p. 33.

[331] Fay report, p. 55.

[332] Ibid., pp. 66-67.

[333]See Fay report, p. 53; Jackie Spinner, "MP Captain Tells of Efforts to Hide Details of Detainee's Death," The Washington Post, June 25, 2004.

[334] Fay report, p. 91.

[335] Taguba report, p. 45. See also Jones report pp. 5, 17 and Schlesinger report, p. 15.

[336] Captain Donald J. Reese's sworn statement and interview on January 18, 2004. (Appendix to Taguba report, [online], http://usnews.com/usnews/news/articles/040709/Pappas.pdf.)

[337] See Fay report, p. 53; Jackie Spinner, "MP Captain Tells of Efforts to Hide Details of Detainee's Death," The Washington Post, June 25, 2004.

[338] Fay report, pp. 56, 84.

[339] Ibid., p. 56.

[340] Ibid., p. 65.

[341] Ibid., p. 91.

[342]Ibid., pp. 44-45.

[343] Ibid., p. 121.

[344] Schlesinger report, p. 15.