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V. Conclusion

The abuses alleged in this report can be traced to the Bush administration’s decision to disregard the Geneva Conventions in the armed conflict in Afghanistan.

On February 7, 2002, President George W. Bush announced that the Geneva Conventions concerning the treatment of prisoners did not apply at all to al-Qaeda members or to Taliban soldiers because they did not qualify as members of the armed forces.  He insisted that detainees would nonetheless be treated “humanely.”  Defense Secretary Donald Rumsfeld told journalists that day:  “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 Conventions was fashioned.” 

The accounts presented in this report are further evidence that this decision by the Bush administration was to have a profound influence on the treatment of detained persons in military operations in Iraq as well as in the “global war on terror.”  In short, the refusal to apply the Geneva Conventions to Guantánamo Bay and Afghanistan was to undermine long-standing adherence by the U.S. armed forces to federal law and the laws of armed conflict concerning the proper treatment of prisoners.

Public statements by the Bush administration prior to the February 2002 decision set the tone for effectively rejecting the Geneva Conventions.  After the first detainees arrived at Guantánamo in January 2002, Defense Secretary Rumsfeld declared them all to be unlawful combatants who “do not have any rights” under the Geneva Conventions.  He said that the United States would “for the most part, treat them in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate.”  Later that month, then White House counsel Alberto Gonzales wrote President Bush that the Geneva Conventions provisions on questioning enemy prisoners were “obsolete” and argued, among other things, that rejecting the applicability of the Geneva Conventions “[s]ubstantially reduces the threat of domestic criminal prosecution” of U.S. officials for war crimes.

Then Secretary of State Colin Powell and senior military leaders privately objected to the administration’s position.  Secretary Powell argued that declaring the conventions inapplicable would “reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.”

The administration’s policy opened the door for the since-discredited legal theories put forward by the Justice Department in the infamous “torture memo” of August 2002.  This memo provided contorted rationalizations for the use of clearly unlawful interrogation methods.  The conclusions of these memos were opposed, without success, by senior members of the Judge Advocate General’s office in all four services.  Air Force Major General Jack Reves wrote in a recently released memo from 2003: “[T]he use of the more extreme interrogation techniques simply is not how the U.S. armed forces have operated in recent history. We have taken the legal and moral ‘high-road’ in the conduct of our military operations regardless of how others may operate. Our forces are trained in this legal and moral mindset beginning the day they enter active duty.” 

And Army Major General Thomas Romig wrote that the Justice Department’s view on the laws of war “runs contrary to the historic position taken by the United States Government concerning such laws and, in our opinion, could adversely impact [Pentagon] interests worldwide [including by] putting our service personnel at far greater risk and vitiating many of the POW/detainee safeguards the U.S. has worked hard to establish over the past five decades.”

According to the 2004 Schlesinger Commission report, coercive interrogation methods approved by Defense Secretary Rumsfeld for use on prisoners at Guantánamo — including the use of guard dogs to induce fear in prisoners, stress techniques such as forced standing and shackling in painful positions, and removing their clothes for long periods — “migrated to Afghanistan and Iraq, where they were neither limited nor safeguarded,” and contributed to the widespread and systematic torture and abuse at U.S. detention centers there.

Even after the abuses at Abu Ghraib prison in Iraq became public, Secretary Rumsfeld continued to dismiss the applicability of the Geneva Conventions. On May 5, 2004, he told a journalist the Geneva Conventions “did not apply precisely” in Iraq but were “basic rules” for handling prisoners. Visiting Abu Ghraib on May 14, Rumsfeld remarked, “Geneva doesn’t say what you do when you get up in the morning.” In fact, the U.S. armed forces have devoted considerable energy over the years to making the Geneva Conventions fully operational by military personnel in the field. Various U.S. military operational handbooks and manuals, such as Field Manual 27-10 on the Law of Land Warfare and Field Manual 34-52 on Intelligence Interrogation, provide the means for implementing Geneva Conventions provisions, even where those provisions are vague.

Effectively throwing out military manuals based on the laws of armed conflict was a prescription for the abuse that followed.  Field Manual 34-52 for instance, does not merely restate the requirements of the Geneva Conventions, but it provides useful advice for soldiers to apply the standards in practice.  For instance, the manual states:  “Experience indicates that the use of force is not necessary to gain the cooperation of sources for interrogation. Therefore, the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear.”

Torture and other cruel and inhumane treatment alleged in this report do not fall into the “gray areas” in the law.  Common article 3 to the four Geneva Conventions of 1949, which is accepted as the minimal standard of treatment for persons in custody during any armed conflict, prohibits “at any time and in any place whatsoever, … violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture, [and] outrages upon personal dignity, in particular, humiliating and degrading treatment.”  Further protections can be found in the fundamental guarantees under article 75 of the Protocol I of 1977 to the Geneva Conventions, which is accepted as reflecting customary laws of armed conflict.

Even if the Geneva Conventions were not applicable, various provisions of the U.S. Uniform Code of Military Justice subjects soldiers to court-martial or disciplinary measures for mistreating prisoners.  Applicable UCMJ criminal provisions include article 93 (cruelty and maltreatment), article 128 (assault), and articles 118 and 119 (murder and manslaughter), as well as article 120 (rape and carnal knowledge), article 124 (maiming), and, for officers, article 133 (conduct unbecoming an officer).  Superior officers who order the mistreatment of prisoners or who knew or should have known that such mistreatment was occurring and did not take appropriate measures can be prosecuted as a matter of command responsibility.

The treatment of prisoners alleged here also violates U.S. obligations under international human rights law.  The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” The International Covenant on Civil and Political Rights, which also bans torture and other mistreatment, ensures that the right to be free from torture and other cruel, inhuman or degrading treatment can never be suspended by a state, including during periods of public emergency.

These standards have largely been incorporated into U.S. law that is applicable to members of the armed services.  The War Crimes Act of 1996 (18 U.S.C. § 2441) makes it a criminal offense for U.S. military personnel and U.S. nationals to commit war crimes as specified in the Geneva Conventions. The federal anti-torture statute (18 U.S.C. § 2340A), enacted in 1994, provides for the prosecution of a U.S. national or anyone present in the United States who, while outside the United States, commits or attempts to commit torture.

Human Rights Watch calls for investigations into all allegations of mistreatment of prisoners in U.S. custody.  Appropriate disciplinary or criminal action should be undertaken against all those implicated in torture and other abuse, whatever their rank.  As we have reported elsewhere, there is increasing evidence that high-ranking U.S. civilian and military leaders made decisions and issued policies that facilitated serious and widespread violations of the law. The circumstances strongly suggest that they either knew or should have known that such violations took place as a result of their actions. There is also mounting information that, when presented with evidence that abuse was in fact occurring, they failed to act to stop it.

Human Rights Watch reiterates its call for the appointment of  a special counsel to investigate any U.S. officials — no matter their rank or position — who participated in, ordered, or had command responsibility for war crimes or torture, or other prohibited ill-treatment against detainees in U.S. custody.