June 9, 2004

Introduction

Since late April 2004, when the first photographs appeared of U.S. military personnel humiliating, torturing, and otherwise mistreating detainees at Abu Ghraib prison in Iraq, the United States government has repeatedly sought to portray the abuse as an isolated incident, the work of a few "bad apples" acting without orders. On May 4, U.S. Secretary of Defense Donald H. Rumsfeld, in a formulation that would be used over and over again by U.S. officials, described the abuses at Abu Ghraib as "an exceptional, isolated" case. In a nationally televised address on May 24, President George W. Bush spoke of "disgraceful conduct by a few American troops who dishonored our country and disregarded our values."

In fact, the only exceptional aspect of the abuse at Abu Ghraib may have been that it was photographed. Detainees in U.S. custody in Afghanistan have testified that they experienced treatment similar to what happened in Abu Ghraib -- from beatings to prolonged sleep and sensory deprivation to being held naked -- as early as 2002. Comparable -- and, indeed, more extreme -- cases of torture and inhuman treatment have been extensively documented by the International Committee of the Red Cross and by journalists at numerous locations in Iraq outside Abu Ghraib.

This pattern of abuse did not result from the acts of individual soldiers who broke the rules. It resulted from decisions made by the Bush administration to bend, ignore, or cast rules aside. Administration policies created the climate for Abu Ghraib in three fundamental ways.

First, in the aftermath of the September 11 attacks on the United States, the Bush administration seemingly determined that winning the war on terror required that the United States circumvent international law. Senior administration lawyers in a series of internal memos argued over the objections of career military and State Department counsel that the new war against terrorism rendered "obsolete" long-standing legal restrictions on the treatment and interrogation of detainees.

The administration effectively sought to re-write the Geneva Conventions of 1949 to eviscerate many of their most important protections. These include the rights of all detainees in an armed conflict to be free from humiliating and degrading treatment, as well as from torture and other forms of coercive interrogation. The Pentagon and the Justice Department developed the breathtaking legal argument that the president, as commander-in-chief of the armed forces, was not bound by U.S. or international laws prohibiting torture when acting to protect national security, and that such laws might even be unconstitutional if they hampered the war on terror.The United States began to create offshore, off-limits, prisons such as Guantnamo Bay, Cuba, maintained other detainees in "undisclosed locations," and sent terrorism suspects without legal process to countries where information was beaten out of them.

White House legal counsel Alberto Gonzales, while suggesting that the Geneva Conventions be circumvented, did convey to President Bush the worries of military leaders that these policies might "undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat and could introduce an element of uncertainty in the status of adversaries."Those warnings were ignored, but proved justified.In May 2004, a member of the 377th Military Police Company told the New 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."[1]

Second, the United States began to employ coercive methods designed to "soften up" detainees for interrogation. These methods included holding detainees in painful stress positions, depriving them of sleep and light for prolonged periods, exposing them to extremes of heat, cold, noise and light, hooding, and depriving them of all clothing. News reports describe a case where U.S. personnel with official approval tortured a detainee held in an "undisclosed location" by submerging him in water until he believed he would drown. These techniques, familiar to victims of torture in many of the world's most repressive dictatorships, are forbidden by prohibitions against torture and other cruel, inhuman or degrading treatment not only by the Geneva Conventions, but by other international instruments to which the U.S. is a party and by the U.S. military's own long-standing regulations.

It is not yet clear which techniques of ill-treatment or torture were formally approved at which levels of the U.S. government and the degree of severity allowed in their application, or whether they were informally encouraged. What is clear is that they were used systematically both in Afghanistan and then in Iraq, and that they were also used on some scale at Guantnamo. It is also clear that the purpose of these techniques is to inflict pain, suffering and severe humiliation on detainees. Once that purpose was legitimized by military and intelligence officials, it is not surprising that ordinary soldiers came to believe that even more extreme forms of abuse were acceptable. The brazenness with which some soldiers conducted themselves at Abu Ghraib, snapping photographs and flashing the "thumbs-up" sign as they abused prisoners, confirms that they felt they had nothing to hide from their superiors.

Third, until the publication of the Abu Ghraib photographs forced action, Bush administration officials took at best a "see no evil, hear no evil" approach to all reports of detainee mistreatment. From the earliest days of the war in Afghanistan and the occupation of Iraq, the U.S. government has been aware of allegations of abuse. Yet high-level pledges of humane treatment were never implemented with specific orders or guidelines to forbid coercive methods of interrogation. Investigations of deaths in custody languished; soldiers and intelligence personnel accused of abuse, including all cases involving the killing of detainees, escaped judicial punishment. When, in the midst of the worst abuses, the International Committee of the Red Cross complained to Coalition forces, Army officials apparently responded by trying to curtail the ICRC's access.

Concern for the basic rights of persons taken into custody in Afghanistan and Iraq did not factor into the Bush administration's agenda. The administration largely dismissed expressions of concern for their treatment, from both within the government and without. This, too, sent a message to those dealing with detainees in the field about the priorities of those in command.

The severest abuses at Abu Ghraib occurred in the immediate aftermath of a decision by Secretary Rumsfeld to step up the hunt for "actionable intelligence" among Iraqi prisoners. The officer who oversaw intelligence gathering at Guantnamo was brought in to overhaul interrogation practices in Iraq, and teams of interrogators from Guantnamo were sent to Abu Ghraib. The commanding general in Iraq issued orders to "manipulate an internee's emotions and weaknesses." Military police were ordered by military intelligence to "set physical and mental conditions for favorable interrogation of witnesses." The captain who oversaw interrogations at the Afghan detention center where two prisoners died in detention posted "Interrogation Rules of Engagement" at Abu Ghraib, authorizing coercive methods (with prior written approval of the military commander) such as the use of military guard dogs to instill fear that violate the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman Degrading Treatment or Punishment.

Unlike U.S. actions in the global campaign against terrorism, the armed conflict in Iraq was justified in part on bringing democracy and respect for the rule of law to an Iraqi population long-suffering under Saddam Hussein. Abusive treatment used against terrorism suspects after September 11 came to be considered permissible by the United States in an armed conflict to suppress resistance to a military occupation.

The Bush administration apparently believed that the new wars it was fighting could not be won if it was constrained by "old" rules.The disturbing information coming to light points to an official policy of torture and cruel, inhuman or degrading treatment.

The Bush administration has denied having a policy to torture or abuse detainees.Human Rights Watch calls on the administration to demonstrate conclusively that its public disavowal of torture and other mistreatment of detainees in U.S. custody was in fact the policy of the U.S. government, and to make public all relevant government documents.The administration should also detail the steps being taken to ensure that these abusive practices do not continue, and to prosecute vigorously all those responsible for ordering or condoning this abuse.

Ironically, the administration is now finding that it may be losing the war for hearts and minds around the world precisely because it threw those rules out. Rather than advance the war on terror, the widespread prisoner abuse has damaged efforts to build global support for countering terrorism. Indeed, each new photo of an American soldier humiliating an Iraqi could be considered a recruiting poster for al-Qaeda. Policies adopted to make the United States more secure from terrorism have in fact made it more vulnerable.

[1] Douglas Jehl and Andrea Elliott, "Cuba base sent its interrogators to Iraqi prison," New York Times, May 29, 2004.