<<previous  |  index  |  next>>

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. law⁸⁰ 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 ⁸⁸and 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 Rumsfeld⁹⁰

Secretary Rumsfeld should be investigated for war crimes and torture by US troops in Afghanistan, Iraq, and Guantánamo under the doctrine of “command responsibility.” Secretary Rumsfeld created the conditions for U.S. troops to commit war crimes and torture by sidelining and disparaging the Geneva Conventions, by approving interrogation techniques that violated the Geneva Conventions as well as the Convention against Torture, and by approving the hiding of detainees from the International Committee of the Red Cross. From the earliest days of the war in Afghanistan, Secretary Rumsfeld was on notice through briefings, ICRC reports, human rights reports, and press accounts that U.S. troops were committing war crimes, including acts of torture. However, there is no evidence that he ever exerted his authority and warned that the mistreatment of prisoners must stop. Had he done so, many of the crimes committed by U.S. forces could have been avoided.

An investigation would also determine whether the illegal interrogation techniques that Secretary Rumsfeld approved for Guantánamo were actually used to inflict inhuman treatment on detainees there before he rescinded his approval to use them without requesting his permission. It would also examine whether Secretary Rumsfeld approved a secret program that encouraged physical coercion and sexual humiliation of Iraqi prisoners, as alleged by the journalist Seymour Hersh. If either were true, Secretary Rumsfeld might also, in addition to command responsibility, incur liability as the instigator of crimes against detainees.

Secretary Rumsfeld is the top civilian official in the Pentagon. By law and in fact, he has command authority over all geographic and functional military commands.⁹¹

Secretary Rumsfeld created the conditions for U.S. troops to commit war crimes and torture and thus should have known that crimes were likely to occur

Secretary Rumsfeld denigrated the Geneva Conventions

Secretary Rumsfeld has been central to the Bush Administration’s effort to redefine and minimize the protections due to prisoners captured in the “global war on terror.” Ignoring the deeply rooted U.S. military practice of applying the Geneva Conventions broadly, Secretary Rumsfeld labeled the first detainees to arrive at Guantánamo from 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 377^th 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.”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 far⁹⁸

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 Torture¹⁰⁹:

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 16^th 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 205^th 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 The Washington Post, citing U.S. officials familiar with the discussions, as of August 2003, U.S. Administrator in Iraq L. Paul Bremer “pressed the military to improve conditions and later made the issue a regular talking point in discussions with Rumsfeld, Vice President Cheney and national security adviser Condoleezza Rice.”¹⁵³

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 above¹⁷⁵ 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 Department²⁰⁷ 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 The Washington 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 descent²²⁷ 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 Sanchez²⁵⁰

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 519^th 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 Boltz²⁵⁸ 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 memo²⁶² — 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 800^th 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 pri