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Two years ago, revelations about the abuse of detainees in U.S. custody at Abu Ghraib prison in Iraq shocked people across the world. In response, U.S. government officials condemned the conduct as illegal and assured the world that
perpetrators would be held accountable.
Two years later, it has become clear that the problem of
torture and other abuse by U.S. personnel abroad was far more pervasive than
the Abu Ghraib photos revealedextending to numerous U.S. detention facilities in
Afghanistan, Iraq, and at Guantánamo Bay, and including hundreds of incidents
of abuse. Yet an analysis of alleged abuse cases shows that promises of
transparency, investigation, and appropriate punishment for those responsible
remain unfulfilled. U.S. authorities have failed to investigate many allegations,
or have investigated them inadequately. And numerous personnel implicated in
abuses have not been prosecuted or punished.
In order to collect and analyze allegations of abuse of
detainees in U.S. custody in Afghanistan, Iraq, and at the Guantánamo Bay
detention facility, and to assess what actions, if any, the U.S. government has
taken in response to credible allegations, the Center for Human Rights and
Global Justice at NYU School of Law, Human Rights Watch and Human Rights First
have jointly undertaken a Detainee Abuse and Accountability Project (DAA
Project). The Project tracks abuse allegations and records investigations, disciplinary
measures, or criminal prosecutions that are linked to them. (This briefing
paper does not discuss allegations of torture or abuse at secret U.S. detention facilities in other countries, or allegations of torture following illegal
rendition or other informal transfer to other countries.1)
This briefing paper presents the Projects preliminary
conclusions based on data collected as of April 10, 2006. It also highlights a
number of individual cases that illustrate the following key findings:
Detainee abuse has been widespread. The DAA Project has
documented over 330 cases in which U.S. military and civilian personnel are
credibly alleged to have abused or killed detainees. These cases involve more
than 600 U.S. personnel and over 460 detainees. Allegations have come from U.S. facilities throughout Afghanistan, Iraq and at Guantánamo Bay. (These numbers are conservative
and likely lower than the actual number of credible allegations of abuse. See
box, Methodology and Sources of Information, opposite.)
Only fifty-four military personnela fraction of the more than
600 U.S. personnel implicated in detainee abuse casesare known to have been
convicted by court-martial; forty of these individuals have been sentenced to
Available evidence indicates that U.S. military and civilian
agencies do not appear to have adequately investigated numerous cases of
alleged torture and other mistreatment. Of the hundreds of allegations of abuse
collected by the DAA Project, only about half appear to have been properly
investigated. In numerous cases, military investigators appear to have closed
investigations prematurely or to have delayed their resolution. In many cases,
the military has simply failed to open investigations, even in cases where
credible allegations have been made.
DAA Project researchers found over 400 personnel have been
implicated in cases investigated by military or civilian authorities, but only
about a third of them have faced any kind of disciplinary or criminal action.
And even in cases where U.S. military investigations have substantiated abuse,
military commanders have often chosen to proceed with weaker non-judicial forms
of disciplinary action instead of criminal prosecution.
In cases where courts-martial have convened, only a small number
of convictions have resulted in significant prison time. Many sentences have
been for less than a year, even in cases involving serious abuse. Of the
hundreds of personnel implicated in detainee abuse, only ten people have been
sentenced to a year or more in prison.
No U.S. military officer has been held accountable for criminal
acts committed by subordinates under the doctrine of command responsibility.
That doctrine provides that a superior is responsible for the criminal acts of
subordinates if the superior knew or should have known that the crimes were
being committed and failed to take steps to prevent them or to punish the
perpetrators. Only three officers have been convicted by court-martial for
detainee abuse; in all three instances, they were convicted for abuses in which
they directly participated, not for their responsibility as commanders.
The U.S. Central Intelligence Agency (CIA) has investigated
several cases of abuse involving its personnel, and reportedly referred some
individuals to the Department of Justice for prosecution. But few cases have
been robustly investigated.
The Department of Justice appears to have taken little action in
regard to the approximately twenty civilians, including CIA agents, referred
for criminal prosecution for detainee abuse by the military and the CIA, and
has shown minimal initiative in conducting its own investigations into abuse
cases. The Department of Justice has not indicted a single CIA agent for
abusing detainees; it has indicted only one civilian contractor.
and Sources of Information
The DAA Project
collects data on alleged detainee abuses in Afghanistan, Iraq and at Guantánamo Bay, occurring in the context of U.S. military and intelligence operations.
The data are based primarily on documents released by the U.S. government itself, including tens of thousands of pages of internal government documents
obtained under the Freedom of Information Act (FOIA) by the American Civil
Liberties Union and other non-governmental groups. Additional sources include:
Human Rights Watch and Human Rights First interviews with witnesses and victims
of abuse; the U.S. militarys reports of investigations conducted into alleged
abuse;2 legal documents relating to abuse
investigations and prosecutions (including court filings and transcripts from
proceedings conducted at the Guantánamo Bay detention facility); detainee
accounts recorded by other organizations or by the detainees attorneys;
reports from credible media sources; official U.S. military statements; and
responses from the U.S. military and Department of Justice to questions from
presented in this report are likely an undercount. There are two reasons for
this: First, U.S. military and intelligence agencies maintain a high level of
secrecy with respect to detainee operations, allegations of abuse and ensuing
investigations. Too often, accounts of abuse come to light or are fully
investigated only after media attention is focused on them.3 In many cases, despite repeated
requests, DAA Project researchers were not able to obtain more than the most
basic information about alleged abuses from government agencies.4 Second, the Project has taken a
conservative approach, and included accounts of alleged abuses from
nongovernmental sources only if they are specific, detailed, and coherent. The
Project has not included allegations about systemic detainee abusefor
instance, allegations that a particular military unit or set of soldiers
systematically committed abuses, no matter how well supportedif these
allegations did not include allegations about specific incidents, personnel, or
purposes of the DAA Project, a case is defined as a set of events that took
place at a particular time and location, involving a particular set of alleged
perpetrators and victims. A case may involve a single perpetrator abusing a
single detainee or multiple perpetrators, victims, and acts of abuse.
specific act allegedly committed by a particular person against an individual
detainee (for instance, a military guard beating a detainee) is an act of
abuse for the purposes of this Project. Separate acts by different personnel
against detainees are considered separate acts of abuse (for instance, two
military guards beating up a detainee is two acts of abuse). Project
researchers deemed conduct an act of abuse only if the alleged conduct would
violate provisions of the U.S. Uniform Code of Military Justice (UCMJ),
applicable to U.S. service men and women, or federal criminal statutes,
applicable to both civilians and military personnel.5
Relevant violations of the UCMJ include homicide, assault, cruelty and
maltreatment, and maiming;6
relevant violations of U.S. federal law include homicide, assault, sexual
abuse, and torture.7
(Note: Acts of abuse are not equivalent to the individual criminal charges
that prosecutors could seek under these provisions. Charges in criminal cases
are decided by prosecutors on a case-by-case basis and can include several
counts stemming from a single act.) Project researchers excluded from the count
instances in which military investigations found evidence that justified or
excused physical force, e.g., instances in which guards used arguably justified
levels of force to subdue allegedly violent or unruly detainees.
detainee is defined here as it is by the Armys criminal investigation
command, as any person captured or otherwise detained by an armed force.8
information about secret detention facilities and allegations of torture
occurring in them, see Human Rights First, Ending Secret Detentions, June
2004, retrieved April 17, 2006, at http://www.humanrightsfirst.org/us_law/PDF/EndingSecretDetentions_web.pdf;
Human Rights First, Behind the Wire, March 2005, retrieved April 17, 2006, at
http://www.humanrightsfirst.org/us_law/PDF/behind-the-wire-033005.pdf; Human Rights
Watch The United States Disappeared: The CIAs Long-Term Ghost Detainees,
October 2004, retrieved April 17, 2006, at http://www.hrw.org/backgrounder/usa/us1004/us1004.pdf;
see also Human Rights Watch, List of Ghost Prisoners Possibly in CIA Custody,
November 30, 2005, retrieved April 17, 2006, at http://hrw.org/english/docs/2005/11/30/usdom12109.htm;
and NYU Center for Human Rights and Global Justice, Fate and Whereabouts
Unknown: Detainees in the War on Terror, December 2005, retrieved April 17,
2006, at http://www.nyuhr.org/docs/Whereabouts%20Unknown%20Final.pdf. For an
analysis of the practice and legality of rendition, see NYU Center for Human
Rights and Global Justice & New York City Bar Association, Torture by
Proxy: International and Domestic Law Applicable to Extraordinary Rendition,
October 2004, at http://www.nyuhr.org/docs/TortureByProxy.pdf; NYU Center for
Human Rights and Global Justice, Beyond Guantánamo: Transfers to Torture One
Year After Rasul v. Bush, June 2005, at http://www.nyuhr.org/docs/Beyond%20Guantanamo%20Report%20FINAL.pdf.
See also Human Rights Watch, Still at Risk: Diplomatic Assurances No Safeguard
Against Torture, April 2005, at http://hrw.org/reports/2005/eca0405/eca0405.pdf;
Human Rights Watch, Black Hole: The Fate of Islamists Rendered to Egypt, May 2005, at http://hrw.org/reports/2005/egypt0505/egypt0505.pdf.
For a description of some of the official military investigations conducted and
discussion of their shortcomings, see Human Rights First, Getting to Ground
Truth: Investigating U.S. Abuses in the War on Terror, September 2004, at http://www.humanrightsfirst.org/us_law/PDF/detainees/Getting_to_Ground_Truth_090804.pdf.
See Human Rights First, Commands Responsibility: Detainee Deaths in U.S.
Custody in Iraq and Afghanistan, February 2006, p. 31, at http://www.humanrightsfirst.info/pdf/06221-etn-hrf-dic-rep-web.pdf
[hereinafter Human Rights First, Commands Responsibility] (discussing
the impact of public attention on military investigations of detainee deaths in
U.S. custody). See also New Detainee Deaths Uncovered in Afghanistan, Human
Rights Watch press release and letter to Secretary of Defense Donald Rumsfeld,
December 13, 2004, at http://hrw.org/english/docs/2004/12/13/afghan9837.htm
(information about deaths was updated after media attention to the letter).
Project researchers made numerous letter, telephone, and e-mail inquiries to
military and Department of Justice officials requesting information. In a few
instances, military public affairs officers provided additional information
about specific cases or general information about the militarys record of
investigating and prosecuting abuse. In most other cases, however, Project
researchers were told that information requested is unavailable, or that it can
only be obtained under FOIA. DAA Project Members have filed FOIA requests
connected to several cases reviewed in this report; almost all of these
requests are still pending.
The Uniform Code of Military Justice is codified at Title 10, Chapter 47 of the
U.S. Code (10 U.S.C. § 801 et seq.) [hereinafter UCMJ]. Crimes punishable under
the UCMJ are found in articles 77134 of the UCMJ (10 U.S.C. §§ 877-934). Federal
crimes, applicable to both civilians and military personnel, are codified in Title
18 of the U.S. Code (Crimes and Criminal Procedure).
UCMJ arts. 118-119 (homicide), art. 128 (assault), art. 93 (cruelty and
maltreatment), and art. 124 (maiming).
18 U.S.C. § 1111-1112 (homicide), 18 U.S.C. § 113 (assault), 18 U.S.C. § 109A
(sexual abuse), and 18 U.S.C. § 2340A (torture).
Department of the Army, Criminal Investigative Command (CID), CID Report of
Investigation Initial/Final SSI 0037-04-CID201-54050 (November 16,
2004), pp. 68-69, retrieved April 17, 2006, athttp://www.aclu.org/torturefoia/released/042105/9290_9388.pdf.