<<previous  |  index  |  next>>

The Policies behind Abu Ghraib

The abuses of Abu Ghraib did not erupt spontaneously at the lowest levels of the military chain of command.  They were not merely a “management” failure, as the Schlesinger investigation suggested.  They were the direct product of an environment of lawlessness, an environment created by policy decisions taken at the highest levels of the Bush administration, many long before the start of the Iraq war.  They reflect a determination to fight terrorism unconstrained by fundamental principles of international human rights and humanitarian law—even though the United States and governments around the world have committed to respect those principles even in time of war and severe security threats. The Bush administration’s decisions received important support in the United States from a chorus of partisan pundits and academics who, claiming that an unprecedented security threat justified unprecedented measures, were all too eager to abandon the fundamental principles on which their nation had been founded.  Those decisions included:

• The decision not to apply the Geneva Conventions to detainees in U.S. custody at Guantánamo, even though the conventions apply to all people picked up on the battlefield of Afghanistan.  Senior Bush officials vowed that all detainees would be treated “humanely,” but that vow seems never to have been seriously implemented and at times was qualified by a self-created exception for “military necessity.”  Meanwhile, the effective shredding of the Geneva Conventions sent U.S. interrogators the signal that, in the words of one leading counterterrorist official, “the gloves came off.”

• The decision not to clarify for nearly two years that, regardless of the applicability of the Geneva Conventions, all detainees in U.S. custody were protected by the parallel requirements of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Even when, at the urging of human rights groups, a senior Pentagon official belatedly reaffirmed, in June 2003, that the convention prohibited not only torture but also other forms of ill treatment, that announcement was communicated to interrogators, if at all, in a way that had no discernible impact on their behavior. 

• The decision to interpret the prohibition of cruel, inhuman, or degrading treatment narrowly, to permit certain forms of coercive interrogation—that is, certain efforts to ratchet up a suspect’s pain, suffering, and humiliation to make him talk.  Not surprisingly, those methods became more coercive as they “migrated,” in the words of two Pentagon inquiries, from the controlled setting of Guantánamo to the battlefields of Afghanistan and Iraq.

• The decision to hold some suspects—eleven known and probably many more— in unacknowledged incommunicado detention, beyond the reach of even the International Committee of the Red Cross.  Victims of such “disappearances” are at the greatest risk of torture and other mistreatment.  For example, U.S. forces continue to maintain closed detention sites in Afghanistan, where beatings, threats, and sexual humiliation are still reported. Since late 2001, six persons arrested by U.S. forces in Afghanistan have died in custody—one as recently as September 2004.

• The refusal for over two years to prosecute soldiers implicated in the deaths of two suspects in U.S. custody in Afghanistan in December 2002, deaths ruled “homicides” by U.S. Army pathologists. Instead, the interrogators were reportedly sent to Iraq, where some were allegedly involved in more abuse.

• The approval by Defense Secretary Rumsfeld of some interrogation methods for Guantánamo that violated, at the very least, the prohibition of cruel, inhuman, or degrading treatment and possibly the ban on torture.  These techniques included placing detainees in painful stress positions, hooding them, stripping them of their clothes, and scaring them with guard dogs.  That approval was later rescinded, but it contributed to the environment in which America’s legal obligations were seen as dispensable.

• The reported approval by an unidentified senior Bush administration official, and use, of “water boarding”—known as the “submarine” in Latin America—a torture technique in which the victim is made to believe he will drown, and in practice sometimes does.

• The sending of suspects to governments such as Syria, Uzbekistan, and Egypt that practice systematic torture.  Sometimes diplomatic assurances have been sought that the suspects would not be mistreated, but if, as in these cases, the receiving government routinely flouts its legal obligation under the Convention against Torture, it was wrong to expect better compliance with the non-binding word of a diplomat.

• The decision (adopted from the Bush administration’s earliest days) to oppose and undermine the International Criminal Court, in part out of fear that it might compel the United States to prosecute U.S. personnel implicated in war crimes or other comparable offenses that the administration would prefer to ignore.  That signaled a determination to protect U.S. personnel from external accountability for human rights offenses that the U.S. government might authorize.

• The decision by the Justice Department, the Defense Department, and the White House counsel to concoct dubious legal theories to justify torture.  Despite objections from the State Department and professional military attorneys, these government departments, under the direction of politically appointed lawyers, offered such absurd interpretations of the law as that President Bush has “commander-in-chief authority” to order torture.  By that theory, Slobodan Milosevic and Saddam Hussein may as well be given the keys to their jail cells, since they, too, presumably would have had “commander-in-chief authority” to authorize the atrocities they directed.

These policy decisions, taken not by low-level soldiers but by senior officials of the Bush administration, created an “anything goes” atmosphere, an environment in which the ends were assumed to justify the means.  Sometimes the mistreatment of detainees was merely tolerated, other times it was actively encouraged or even ordered.  In those circumstances, when the demand came from on high for “actionable intelligence”— intelligence that would help respond to the steady stream of U.S. casualties at the hands of extraordinarily brutal Iraqi insurgents—it was hardly surprising that interrogators saw no obstacle in the legal prohibition of torture and mistreatment. 

To this day, the Bush administration has failed to repudiate many of these decisions.  It continues to refuse to apply the Geneva Conventions to any of the more than five hundred detainees held at Guantánamo (despite a U.S. court ruling rejecting its position) and to many others detained in Iraq and Afghanistan.  It continues to “disappear” detainees, despite ample proof that these “ghost detainees” are extraordinarily vulnerable to torture.  It refuses to disown the practice of “rendering” suspects to governments that torture.  It continues its vendetta against the International Criminal Court.  It refuses to reject in anything but vague and general terms the many specious arguments for torture contained in the administration lawyers’ notorious “torture memos.”  And it still refuses to disavow all forms of coercive interrogation or to adopt a clear policy forbidding it.  Indeed, it reportedly continued as late as June 2004—long after the Abu Ghraib mistreatment became public—to subject Guantánamo detainees to beatings, prolonged isolation, sexual humiliation, extreme temperatures, and painful stress positioning – practices the International Committee of the Red Cross reportedly called “tantamount to torture.” 

As the Bush administration assembles its cabinet for a second presidential term, President Bush seems to have ruled out even informal accountability.  Secretary of State Colin Powell, the cabinet official who most forcefully opposed the administration’s disavowal of the Geneva Conventions, is leaving.  Defense Secretary Donald Rumsfeld, who ordered abusive interrogation techniques in violation of international law, is staying.  White House Counsel Alberto Gonzales, who sought production of the memos justifying torture and who himself wrote that the fight against terrorism renders “obsolete” and “quaint” the Geneva Conventions’ limitations on interrogation and the treatment of prisoners, has been rewarded with nomination as Attorney General.  As for the broader Bush administration, the November elections seem to have reinforced its traditional disinclination to serious self-examination.  Apparently seeing the election results as a complete vindication, it refuses to admit its role in Abu Ghraib and other interrogation abuses.