From the earliest days of the war in Afghanistan and the occupation of Iraq, top U.S. government officials have been aware of allegations of abuse. Yet, until the publication of the Abu Ghraib photographs forced action, many Bush administration officials took at best a see no evil, hear no evil approach to all reports of detainee mistreatment, including those described above, while others were ordering or acquiescing in the abuses.
While reports of abuse had already been coming in for a year, it was a seminal article in The Washington Post on December 26, 2002 that provided a wake-up call on U.S. tactics in the global war on terror.41 Citing unnamed U.S. officials, it reported that detainees in Afghanistan were subject to awkward, painful positions and deprived of sleep with a 24-hour bombardment of lights subject to what are known as stress and duress techniques. The Post also reported being told by U.S. officials that [t]housands have been arrested and held with U.S. assistance in countries known for brutal treatment of prisoners and described the rendition of captured al-Qaeda suspects from U.S. custody to other countries where they are tortured or otherwise mistreated. One official was quoted as saying, We dont kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them.42
As Human Rights Watch Executive Director Kenneth Roth noted in releasing a letter to President Bush the next day:
The allegations made by The
Washington Post put the United States on notice that acts of torture may be
taking place with U.S. participation or complicity. That places a heightened
duty on senior Bush administration officials to take preventive steps
Human Rights Watch pointed out that should senior U.S. officials become aware of acts of torture by their subordinates and fail to take immediate and effective steps to end such practices, they would be criminally liable under international law for command responsibility.
Yet no action was taken then, nor was any action taken during two more years of mounting allegations of detainee abuse. At no time did President Bush, Secretary Rumsfeld, Director Tenet, or any other senior leader exert his authority and warn that the mistreatment of prisoners must stop. Instead, until the Abu Ghraib pictures were revealed, investigations of deaths in custody and other abuse languished. Soldiers and intelligence personnel accused of crimes, including all cases involving the killing of detainees in Afghanistan and Iraq, escaped judicial punishment.
Even after the Abu Ghraib photos, however, the United States reaction has been fundamentally one of damage control rather than a search for truth and accountability. This stands in marked contrast to the high-minded promises made by top U.S. officials in the wake of the revelations.
Secretary Rumsfeld, for instance, told a Congressional hearing on May 7, 2004:
Mr. Chairman, I know you join me today in saying to the world: Judge us by our actions. Watch how Americans, watch how a democracy deals with wrongdoing and scandal and the pain of acknowledging and correcting our own mistakes and weaknesses. And then after they have seen America in action then ask those who preach resentment and hatred of America if our behavior doesnt give the lie to the falsehood and slander they speak about our people and way of life. Ask them if the resolve of Americans in crisis and difficulty and, yes, the heartache of acknowledging the evil in our midst doesnt have meaning far beyond their code of hatred.44
In a similar vein, then-Secretary of State Colin Powell said that he told foreign leaders: Watch America. Watch how we deal with this. Watch how America will do the right thing.45
But America is not doing the right thing. Rather than rigorously prosecuting those responsible for the policies that resulted in torture, U.S. authorities have shielded them. They have done this in two ways:
In the wake of the Abu Ghraib abuses, the Pentagon established no fewer than seven investigations, summarized below.46 Almost all of them involved the military investigating itself. None of the military probes was aimed higher up the chain of command than Gen. Sanchez, the top U.S. soldier in Iraq. None of the investigations had the task of examining the role of the CIA or of civilian authorities.47
After the abuses at Abu Ghraib were reported to the chain of command, but before the photos entered the public domain, Major General Antonio M. Taguba was appointed by General John Abizaid, commander of United States Central Command (CENTCOM), at the request of Gen. Sanchez, commander of the Coalition Joint Task Force Seven (CJTF-7), to investigate the performance of the 800th Military Police (MP) Brigade,48 a portion of the personnel who staffed Abu Ghraib.49 Despite Gen. Tagubas limited mandate, his findings were nevertheless very important in placing the acts captured on camera, as well as others, in their local context.50
Gen. Taguba reported that numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees. The Taguba report described these abuses as systemic.51 Gen. Taguba traced the abuses in part to the recommendation of Gen. Miller on a visit from Guantánamo that detention be used as an enabler for interrogation, and that the guard force be actively engaged in setting the condition for the successful exploitation of internees.52 As a result, according to Gen. Taguba, interrogators actively requested that MP guards set physical and mental conditions for favorable interrogation of witnesses. [The] MP Brigade [was] directed to change facility procedures to set the conditions for MI [military intelligence] interrogations. The report also cited the presence of other government agencies (OGAs) typically used, as here, to refer to the CIA without explicitly naming it in the detention facilities as a factor contributing to the abuses, and first raised the issue of ghost detainees kept hidden from the ICRC.53
Lt. Gen. Paul T. Mikolashek, Army Inspector General, was asked to examine Army doctrine, training, and prison procedures throughout the Central Command area of operation in February 2004. After reviewing 94 confirmed cases of detainee abuse in Afghanistan and Iraq, Gen. Mikolashek somehow concluded that the abuses did not result from any policy and were not the fault of senior officers but rather were unauthorized actions taken by a few individuals.54 The reports summary and conclusions blame only low-ranking soldiers for the abuses, even though its text identifies numerous problems that were obviously rooted in decisions made by senior commanders and officials. The inspector general apparently made no effort to investigate actions taken high in the chain of command, or to consider sources of information outside the military. Among the problems identified in the report were:
The next two reports, the Final Report of the Independent Panel to Review DoD [Department of Defense] Detention Operations (The Schlesinger report) and the AR 15-6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade and AR 15-6 Investigation of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade (jointly, The Fay/Jones report,) were released almost simultaneously in late August.
The reports contained important and disturbing information on the torture and mistreatment of prisoners at Abu Ghraib, and to a lesser extent elsewhere in Iraq and in Afghanistan. Yet both reports shied away from the logical conclusion that high-level military and civilian officials should be investigated for their role in the crimes committed at Abu Ghraib and elsewhere
The Fay/Jones inquiry was charged with examining the alleged misconduct of personnel assigned to or attached to the 205th Military Intelligence Brigade, which was in charge of the Abu Ghraib prison. Investigations began in April 2004 with Gen. George R. Fay, deputy chief of staff of the Army intelligence, as chief investigator. Fay, an insurance company executive who had been on active duty for five years, was a contributor to Republican campaigns.55 On June 17, Army Gen. Paul J. Kern, Army Materiel Command, was given oversight responsibility for the investigation, and, at his request, Acting Army Secretary Les Brownlee subsequently announced that Gen. Anthony R. Jones would be brought into the investigation to question Gen. Sanchez.56
Like the Taguba report, and earlier reports, the Fay/Jones report was specific to Abu Ghraib. But it finally put to rest the Bush administration claim that the abuse was the work of a few bad apples. The report found that military intelligence officers not solely military police guards played a major role in directing and carrying out the abuses at Abu Ghraib. The report listed those abuses in detail the use of unmuzzled dogs in a game of making detainees urinate and defecate in fear, forced participation in group masturbation, stripping detainees of their clothes, and beatings.
The report also made clear that the illegal techniques were not limited to Iraq. The techniques employed in [Guantánamo] included the use of stress positions, isolation for up to thirty days, removal of clothing and the use of detainees phobias (such as the use of dogs). [ ] From December 2002, interrogators in Afghanistan were removing clothing, isolating people for long periods of time, using stress positions, exploiting fear of dogs and implementing sleep and light deprivation.57
The generals recommended punishments for the top two military intelligence officers at the prison, Col. Thomas M. Pappas and Lt. Col. Steven L. Jordan, as well as three other intelligence officers, and implicated 29 other military intelligence soldiers in at least 44 cases of abuse. The report found that Gen. Sanchez was not directly involved in the abuse, but faulted him and his deputy, Gen. Walter Wojdakowski, for failing to ensure proper staff oversight of detention and interrogation operations.58 It criticized Sanchez for his inconsistent and confusing guidelines on interrogations and said that his orders led interrogators to think that they could use guard dogs on prisoners, which they subsequently did in ways that violated the Geneva Conventions.59 But the reports failed to take the obvious but politically dangerous step of stating plainly that Gen. Sanchez and other commanders were responsible for what happened. We did not find General Sanchez culpable but we found him responsible for the things that did or did not happen, Gen. Paul J. Kern, who oversaw the report, told reporters.60
The Schlesinger panel was chosen by Secretary Rumsfeld on May 7, 2004 and included: former Defense Secretary James Schlesinger (Chair); Tillie Fowler, former representative from Florida; retired Air Force Gen. Charles Horner; and Harold Brown, former Secretary of Defense.The panel was asked to review Department of Defense detention operations and to advise the Secretary of Defense on the cause of the problems and what should be done to fix them. Issues to be examined included:
force structure, training of regular and reserve personnel, use of contractors, organization, detention policy and procedures, interrogation policy and procedures, the relationship between detention and interrogation, compliance with the Geneva Conventions, relationship with the International Committee of the Red Cross, command relationships, and operational practices.
According to Secretary Rumsfeld, the team was to examine the pace, the breadth, the thoroughness of the existing investigations and to determine whether additional investigations or studies need to be initiated. Rumsfeld also noted that Issues of personal accountability will be resolved through established military justice procedures, although he would welcome any information the panel developed. The panels unpaid executive director, James Blackwell, had reportedly done Pentagon consulting as an employee of Science Applications International Corporation of San Diego, the seventh-largest recipient of defense contract awards in fiscal 2002, with $2.1 billion.61
The Schlesinger panel alone among the probes interviewed top military and Pentagon officials, but otherwise conducted no independent research.
The Schlesinger panel found that the techniques that Secretary Rumsfeld had put into play migrated from Guantánamo to Afghanistan and Iraq. As the report put it, Law of war policy and decisions germane to [Operation Enduring Freedom] migrated, often quite innocently, into decision matrices for [Operation Iraqi Freedom].62 In particular, when Gen. Geoffrey Miller, who oversaw the interrogation efforts at the U.S. military base at Guantánamo Bay, Cuba, went to Iraq in order step up the hunt for actionable intelligence, he brought to Iraq the secretary of defenses policy guidelines for Guantánamo as a potential model which he gave to Gen. Sanchez.63 These techniques formed the basis for the subsequent contradictory policy memos signed by Sanchez that contributed to detainee abuse.64 In addition, the Schlesinger report noted, when on September 14 Sanchez signed a memorandum authorizing a dozen interrogation techniques beyond the standard Army practice under the Geneva Conventions, including five beyond those approved for Guantánamo, he did so using reasoning from the Presidents Memorandum of February 7, 2002, which he believed justified additional, tougher measures.65
Secretary Schlesinger, in his oral remarks upon releasing the report, regrettably focused on the particular bizarre acts pictured at Abu Ghraib, rather than the context that gave rise to them, speaking of freelance activities on the part of the night shift, and describing the situation as a kind of Animal House.66 He later said that the abuses were due to just pure sadism.67 In addition, Schlesinger stated, if hypothetically somebody had suggested these kinds of abuses, the last thing that would have been ordered would be that there be photographic evidence of it. 68 Schlesinger also suggested his own bias by stating that Rumsfelds resignation would be a boon to all Americas enemies.
The Schlesinger report talked about management failures when it should have been more forthright about policy failures. Indeed, it seemed to go out of its way not to find any relationship between Secretary Rumsfelds approval of interrogation techniques designed to inflict pain and humiliation and the widespread mistreatment and torture of detainees in Iraq, Afghanistan, and Guantánamo.
Vice Adm. Albert T. Church, Navy Inspector General was ordered by Secretary Rumsfeld to investigate prisoner operations and intelligence gathering practices. When initiated in early May 2004, the investigation was limited to activities in Guantánamo Bay and the Naval Consolidated Brig in Charleston, South Carolina. Rumsfeld then widened the scope of the inquiry on May 25 to include prison operations in Iraq and Afghanistan. The report was completed in late 2004, but it was only in March 2005 that an unclassified 21-page executive summary was released,69 and a classified 400-page report was given to the Senate Armed Services Committee.
The Church report was supposed to be the definitive report on the development of interrogation techniques and detainee abuse in the global war on terror but the unclassified summary suggests a careful attempt months after the Schlesinger and Fay/Jones report put the Pentagon on the defensive to present a version of the facts that would not cause any trouble for the hierarchy. Time and again, the summary goes out of its way to rebut any inference that government policy was to blame, to the point of straining credibility and flatly contradicting the earlier reports. The report concluded that there was no single, overarching explanation for the few cases in which detainees had not been treated humanely.
Although Secretary Rumsfeld and General Sanchez both approved the use of guard dogs to strike fear in detainees, and although guard dogs were featured prominently in the Abu Ghraib photos, the Church executive summary states that it is clear that none of the pictured abuses at Abu Ghraib bear any resemblance to approved policies at any level, in any theater. Indeed, the only mention of dogs in the entire summary is the patently false statement that in Afghanistan and Iraq interrogators clearly understood that abusive practices and techniques such as terrorizing detainees with unmuzzled dogs were at all times prohibited.
Adm. Church told a congressional hearing that it was not in my charter to determine individual responsibility because the Schlesinger panel had such a mandate even though, as noted above, issues of personal accountability were specifically excluded from that panels remit. Speaking to journalists, Adm. Church added I dont think you can hold anyone accountable for a situation that maybe if you had done something different, maybe something would have occurred differently.
In addition to these probes, there are a number of investigations which are still underway or have been completed but not yet made public:
Brig. Gen. Charles Jacoby: This inquiry was ordered in mid-May 2004 by Lt.-Gen. David Barno, the commander of U.S. forces in Afghanistan, to investigate the conditions at around 20 U.S. jails in Afghanistan, including the main facility at Bagram. Jacobys job in Afghanistan was to ensure internationally accepted standards of handling detainees are being met. 70 Jacobys report was reportedly completed in July 2004, but has yet to be released. According to The Washington Post, the report found a wide range of shortcomings in the militarys handling of prisoners in Afghanistan.71 In February 2005, a U.S. military spokesman said that The report is still under review and once the review is complete it will be released.72 Gen. Jacoby refused to meet with Human Rights Watch, even though the organization had conducted some of the only independent investigations of detainee abuses in Afghanistan.
Furlow/Schmidt: On January 5, 2005, following the release of the FBI e-mails relating to detainees treatment at Guantánamo, U.S. Southern Command headquarters appointed Army Brigadier General John Furlow to direct an internal investigation into recently disclosed allegations by members of the Federal Bureau of Investigation of detainee abuse at Guantánamo. On February 28, 2005, after criticism that the one-star Furlow would be unable to question senior officers such as Gen. Miller, Air Force Lieutenant General Randall M. Schmidt took over the investigation. Schmidt was directed to complete the investigation by March 31.73
Brig. Gen. Richard P. Formica is heading an inquiry into the detention activities of Special Operations forces. That report has not yet been released.
Central Intelligence Agency inspector general: The CIAs inspector general is also reportedly conducting a half-dozen inquiries into possible misconduct within the agency involving the detention, interrogation, and rendition of suspected terrorists.74 No details have been made public.
Until the publication of the Abu Ghraib photographs forced action, almost all military investigations into deaths and mistreatment in custody were languishing. No one implicated in the abuse of persons in custody in Afghanistan, Iraq or elsewhere, including in the killing of detainees, had been criminally prosecuted. Many personnel appear to have had their cases shelved or have been given inappropriate administrative reprimands, instead of facing criminal prosecution.
In the aftermath of the Abu Ghraib pictures, the United States initiated the prosecution of a number of soldiers and contactors for alleged crimes committed in Iraq (particularly Abu Ghraib)75 and Afghanistan. Pentagon officials told Human Rights Watch in March 2005 that out of 300 investigations initiated into abuse allegations, only 14 persons have been convicted by court-martial. And although 33 additional soldiers have been referred to trial by court-martial, 70 have received only non-judicial punishments, such as reprimands, rank reductions, or discharge from the military, though many of the alleged abuse cases involved serious abuses and homicides.76 Earlier, in December 2004, the Pentagon told journalists that 130 American troops had been punished or charged for abuse of prisoners, a figure which apparently includes non-judicial punishments.77
Homicide investigations have been extremely slow. As of February 2005, Army criminal investigators were reported to have conducted 68 detainee death investigations with 79 possible victims.78 Yet only two homicide cases have resulted in recommended courts martial for homicide; one has been postponed and in another, most of the implicated personnel were brought before non-judicial administrative hearings instead of court-martial, and most received only administrative punishments. Many cases involving detainee deaths in Afghanistan in 2002, over two-and-a-half years ago, have gone unresolved. In one case from Afghanistan, it appears that an army captain who murdered a detainee was simply discharged from the military, and his case was closed.79
Meanwhile, no criminal investigations appear to have been commenced for abuses committed at Guantánamo Bay, at US-run secret locations around the world or in connection with the rendition of persons to third countries where they were likely to be tortured. With respect to CIA abuses, Porter J. Goss, who replaced George Tenet as director of Central Intelligence, told the Senate Intelligence Committee in February 2005 that a bunch of other cases were now under review by the CIAs inspector general. No CIA officers have been charged in relation to alleged mistreatment, with the single exception of a CIA contractor charged in the death of detainee in Afghanistan in 2003.
 Dana Priest and Barton Gellman, U.S. Decries Abuse but Defends Interrogations: Stress and Duress Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities, The Washington Post, December 26, 2002, p. A1.
 Dana Priest and Barton Gellman, U.S. Decries Abuse but Defends Interrogations, The Washington Post, December 25, 2002, p. A1.
 Human Rights Watch to President George W. Bush, open letter, December 27, 2002 [online], http://www.hrw.org/english/docs/2002/12/27/usint9381_txt.htm.
 Donald Rumsfeld, Testimony of Secretary of Defense Donald H. Rumsfeld before the Senate and House Armed Services Committees, U.S. Senate Armed Services Committee, May 7, 2004 [online], http://armed-services.senate.gov/statemnt/2004/May/Rumsfeld.pdf.
 Abuse Scandal Terrible for U.S., Powell Concedes, MSNBC, May 17, 2004 [online], http://www.msnbc.msn.com/id/4855930/.
 See Human Rights Watch, Military Investigations into Treatment of Detainees in U.S. Custody, A Human Rights Watch Backgrounder, July 16, 2004 [online], http://www.hrw.org/campaigns/torture/investigations.htm.
 For another critique of these probes, see Human Rights First, Getting to Ground Truth: Investigating U.S. Abuses in the War on Terror, September 2004 [online], http://www.humanrightsfirst.org/us_law/PDF/detainees/Getting_to_Ground_Truth_090804.pdf.
 Taguba report, p. 6.
 Ibid., pp. 12-13.
 General Tagubas confidential findings were first reported by journalist Seymour Hersh the day after the Abu Ghraib photographs were aired on CBS-TVs Sixty Minutes II.
Taguba report, p. 16.
 Taguba noted that this was in conflict with the recommendations of the Ryder report, a previous review of Iraqi prisons, which stated that the engagement of military police in military interrogations to actively set the favorable conditions for subsequent interviews runs counter to the smooth operation of a detention facility.
 Taguba report, p. 27.
 Lt. Gen. Paul T. Mikolashek, The Mikolashek Report, Department of the Army, July 21, 2004. The report can be found in Karen J. Greenberg and Joshua L. Dratel, ed., The Torture Papers: The Road to Abu Ghraib (Cambridge: University of Cambridge Press, 2005), pp. 630-907.
 Walter Pincus, Prison Investigators Army Experience Questioned, The Washington Post, May 26, 2004, p. A18.
 A lead investigator was needed who was at least equal in rank to the Sanchez, a three-star general. Fay is a two-star general. Jones technically is senior to Sanchez because he has held his three-star rank slightly longer. According to Scott Horton, chair of the Committee on International Law of the Association of the Bar of the City of New York, who is a critic of the interrogation policies but has spoken directly with soldiers interviewed by Fay, Fays draft report to General Sanchez in May 2004 was such a whitewash on the role of military personnel that it stood no chance of gaining acceptance. The report, he says, was then broadly re-written. Nevertheless, Horton alleges,
As noted to me by senior officers, certain senior figures whose conduct in this affair bears close scrutiny, were explicitly protected or shielded by withholding information from investigators or by providing security classifications which made such investigations possible. The individuals shielded, I was informed, included MG Geoffrey Miller, MG Barbara Fast, COL Marc Warren, COL Steven Bolz, LTG Sanchez and LTG William (Jerry) Boykin. In each case, the fact that these individuals possessed information on Rumsfelds involvement was essential to the decision to shield them.
(Scott Horton, Expert Report (Scott Horton report), Center for Constitutional Rights, January 31, 2005 [online], http://www.ccr-ny.org/v2/legal/september_11th/docs/ScottHortonGermany013105.pdf, paras. 14-15).
 Fay report, p. 29.
 LTG Anthony R. Jones, Article 15-6 Investigation of the Abu Ghraib Prison and 205th Military Intelligence Brigade (Jones report), p. 24.
Ibid., p. 4.
 Eric Schmitt, Abuses at Prison Tied to Officers in Intelligence, The New York Times, August 26, 2004.
 Craig Gordon, Prison Abuse Investigations: Critics Say Scope Too Narrow, Newsday, June 6, 2004
Schlesinger report, p. 82.
 Ibid., p. 37.
 Ibid., p. 37.
 Ibid., p. 10.
 Bradley Graham and Josh White, Top
Pentagon Leaders Faulted in Prison Abuse,
 The Hon. James R. Schlesinger, Testimony before Senate Armed Services Committee, September 9, 2004, p. 13.
 Ibid., p. 28. There was speculation, however, that photographing detainees in situations thought to be especially humiliating in Arab culture might have been part of a deliberate strategy to get detainees to talk to interrogators for fear of having the photos released. See, e.g., Seymour M. Hersh, The Gray Zone: How a Secret Pentagon Program Came to Abu Ghraib, The New Yorker, May 24, 2004; The Pictures: Lynndie England, CBSNews.com, May 12, 2004; Edward Epstein, Senators Suspect Higher-ups Directed Abuses at Abu Ghraib: They Query General Who Investigated, The San Francisco Chronicle, May 12, 2004; Hardball with Chris Mathews, MSNBC.com, May 13, 2004 [online], http://www.msnbc.msn.com/id/4979082/; Robin Cook, George Bushs Contempt for International Law Damages Both America and Britain, The Independent (UK), June 26, 2004; and Eli Lake, CIA Gets Its Turn in the Hot Seat on Hill, The New York Sun, May 14, 2004.
 Executive Summary, U.S. Department of Defense, available to the public since March 2005 [online], http://www.defenselink.mil/news/Mar2005/d20050310exe.pdf (Church report).
 U.S. to Review Afghan Prisons, Associated Press, May 22, 2004.
 R. Jeffrey Smith, General Cites Problems at U.S. Jails in Afghanistan, The Washington Post, December 3, 2004.
 U.S. Rejects U.N. Experts Afghan Rights Concerns, Reuters, February 12, 2005.
 Three-Star General Appointed to Lead Investigation, A US Southern Command News Release, February 28, 2005 [online], http://www.southcom.mil/pa/Media/Releases/PR050228.pdf.
Douglas Jehl and David Johnston, Rule Change Lets C.I.A. Freely Send Suspects Abroad, The New York Times, March 6, 2005.
 The Fay/Jones report implicated 31 military intelligence soldiers in the abuse of Iraqi prisoners at Abu Ghraib. The Taguba report listed military police implicated in the abuses at Abu Ghraib. Thus far, however, only seven U.S. army soldiers have been charged and only two convicted and sentenced.
 E-mail from Lt. Col. John Skinner, Pentagon spokesperson, to Human Rights Watch researcher, April 8, 2005.
 Pentagon: 130 Troops Punished for Abuse, USA Today, December 15, 2004.
 Douglas Jehl and Eric Schmitt, U.S. Military Says 26 Inmate Deaths May Be Homicide, The New York Times, March 16, 2005.
 Human Rights Watch to Secretary of Defense Donald Rumsfeld, open letter, December 13, 2004 [online], http://hrw.org/english/docs/2004/12/10/afghan9838.htm; R. Jeffrey Smith, Army Reprimand Reported in Slaying; Officers Allegedly Killed Afghan in '02, The Washington Post, December 14, 2004.