Myers, the Chairman of the Joint Chiefs of Staff. This was the day, a milestone on the road to Abu Ghraib , that marked our descent into torture — the day, many would still say, that we lost part of our soul. This is no exaggeration. Depriving prisoners seized in wartime of the protections of the Geneva Conventions was a huge and unprecedented step, and thoroughly alarming.
And yet, despite criticism from Secretary of State Colin Powell , the administration pushed forward remorselessly towards the creation of an America that practiced arbitrary detention and torture. I note that, because Geneva does not apply to our conflict with al-Qaeda, al-Qaeda detainees also do not qualify as prisoners of war. Please donate to our Mid-Year Campaign today.
The War On Terror Encapsulated In One Case
Lewis for a New York Times article in January It is also important to remember that the torture and abuse that Bush unleashed in his memo of February 7, remained US policy for nearly four and half years, until the Supreme Court reminded the president, in Hamden v. Rumseld , on June 29, , that Common Article 3 of the Geneva Conventions apply to all prisoners held by the US, whatever their location theoretically, Common Article 3 was reinstated in the Detainee Treatment Act of , but critics have suggested that that legislation, introduced by John McCain, had numerous loopholes that sidestepped its intended prohibition on the use of torture.
Within three months of Hamdan v. We want a more open and sharing world. All of our original content is published under Creative Commons—allowing and encouraging our articles to be republished freely anywhere. In addition to the traffic and reach our content generates on our site, the multiplying impact of our work is huge and growing as our articles flourish across the Internet and are republished by other large and small online and print outlets around the world. Andy Worthington is a journalist and historian, based in London.
He is the author of The Guantanamo Files: The Stories of the Detainees in America's Illegal Prison , the first book to tell the stories of all the detainees in America's illegal prison. For more information, visit his blog here. Please Help Close. Home Subscribe Donate. About Us Key Staff Testimonials. Search form Search.
Like Obama, CIA nominee Haspel wants to 'look forward' on torture questions
Published on. Wednesday, February 07, Common Dreams. So let's nip this idea that "Bush wasn't so bad" in the bud, shall we? Andy Worthington. The media landscape is changing fast Our news team is changing too as we work hard to bring you the news that matters most. Feel free to republish and share widely. It seems doubtful that cases of the most serious abuses would pass this test.
It is especially unlikely that senior officials who were responsible for authorizing torture will be protected under this calculus, particularly if they were instrumental in pressing for legal cover from the OLC, or if they influenced the drafting of the memoranda that they now claim protect them. For the Justice Department to look primarily into the actions of low-level interrogators would also be a mistake: it would reflect a fundamental misunderstanding of how and why abuses took place.
Over the past several years, more evidence has been placed on the public record regarding the development of illegal detention policies and the torture and ill-treatment of detainees in US custody. In this report, our conclusion, which we believe is compelled by the evidence, is that a criminal investigation is warranted with respect to each of the following: .
President George W. Bush : had the ultimate authority over detainee operations and authorized the CIA secret detention program, which forcibly disappeared individuals in long-term incommunicado detention. He authorized the CIA renditions program, which he knew or should have known would result in torture. And he has publicly admitted that he approved CIA use of torture, specifically the waterboarding of two detainees. Bush never exerted his authority to stop the ill-treatment or punish those responsible.
Vice President Dick Cheney: was the driving force behind the establishment of illegal detention policies and the formulation of legal justifications for those policies. He chaired or attended numerous meetings at which specific CIA operations were discussed, beginning with the waterboarding of detainee Abu Zubaydah in Cheney has publicly admitted that he was aware of the use of waterboarding. Defense Secretary Donald Rumsfeld: approved illegal interrogation methods that facilitated the use of torture and ill-treatment by US military personnel in Afghanistan and Iraq.
Rumsfeld closely followed the interrogation of Guantanamo detainee Mohamed al-Qahtani who was subjected to a six-week regime of coercive interrogation that cumulatively amounted to torture. Rumsfeld never exerted his authority to stop the torture and ill-treatment of detainees even after he became aware of evidence of abuse over a three-year period beginning in early In addition, there should be criminal investigations into the drafting of legal memorandums seeking to justify torture, which were the basis for authorizing the CIA secret detention program.
The US and global public deserve a full and public accounting of the scale of abuses following the September 11 attacks, including why and how they occurred. Prosecutions, which focus on individual criminal liability, would not bring the full range of information to light. An independent, nonpartisan commission , along the lines of the Commission, should therefore be established to examine the actions of the executive branch, the CIA, the military, and Congress, and to make recommendations to ensure that such widespread and systematic abuses are not repeated.
The investigations that the US government has conducted either have been limited in scope—such as looking at violations by military personnel at a particular place in a restricted timeframe—or have lacked independence, with the military investigating itself. Congressional investigations have been limited to looking at a single agency or department. Individuals who planned or participated in the programs have yet to speak on the record.
Many of the key documents relating to the use of abusive techniques remain secret. Many of the proverbial dots remain unconnected. A January 9, draft memo by John Yoo, deputy assistant attorney general in the OLC, advised the Defense Department that the Geneva Conventions did not apply to members of al Qaeda because it was not a state and thus not a party to the conventions.
William H. In a key memo dated January 25, , Gonzales urged the president to declare Taliban forces in Afghanistan and al Qaeda outside the coverage of the Geneva Conventions. Richard Myers, the chairman of the Joint Chiefs of Staff, and other military leaders voiced similar concerns.
All persons detained in connection with an armed conflict, whether or not they are entitled to POW status,  are still legally entitled to basic protections under international law. On September 26, Tenet reportedly briefed Bush and the NSC on CIA renditions operations in which suspects were transferred into the custody of third countries such as Jordan and Egypt for detention and interrogation.
Within weeks, media reports began to surface alleging mistreatment of detainees at Qali Jangi and at the Kandahar base. Allegations of abuse against detainees by US personnel in Afghanistan continued in After news of the sites became public, Bush in September officially acknowledged the existence of the secret CIA sites, saying:. He ordered what he said were the remaining 14 detainees in CIA custody transferred to Guantanamo Bay.
Zubaydah was shot during his arrest and taken to a hospital in Lahore, Pakistan, before being transferred to a secret CIA facility, apparently in Bangkok, Thailand. The memo also took an extremely narrow view of which acts might constitute torture. It referred to seven practices that US courts have ruled constitute torture: severe beatings with truncheons and clubs, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a prisoner to watch the torture of another person.
With these approvals, CIA officials began using more abusive interrogation methods on Zubaydah. Zubaydah, still weak from his wounds, was stripped and placed in a cell without a bunk or blankets. He stood or lay on the bare floor, sometimes with air-conditioning adjusted so that, one official said, Mr. Zubaydah seemed to turn blue.
At other times, the interrogators piped in deafening blasts of music by groups like the Red Hot Chili Peppers. Zubaydah was waterboarded 83 times. In , however, the agency destroyed 90 videotapes of Zubaydah's interrogations, which resulted in a criminal investigation of officials.
In November , Justice Department officials confirmed that no charges would be filed in connection with the destruction of the tapes. As of this writing, Zubaydah remains in Guantanamo. He has not been charged with any offense. The expansion of the CIA program was later discussed and authorized, after the fact, in a meeting at the White House in early As the SSCI narrative states:. The CIA detention and interrogation program appears to have been scaled back temporarily in , after the Abu Ghraib scandal and a critical report by the CIA inspector general that was sent to the White House in May There had been significant controversy within the CIA about the program, leading to an investigation by the CIA Office of Inspector General which took place through and into However, in May , the new OLC head, Stephen Bradbury, issued three memoranda to the CIA embracing many of the earlier arguments in the Bybee memorandum applicable to Abu Zubaydah, and—years after the fact—formally authorizing the expansion of the techniques originally approved in to other detainees.
The secrecy surrounding the rendition program means that no accurate statistics exist. One study found 53 such cases, excluding those sent to Afghanistan or into US custody. Many detainees were returned to CIA custody immediately after intensive periods of abusive interrogation in Jordan. Numerous detainees so rendered are known or believed to have been tortured. The following cases are illustrative:. Indeed, he was tortured during his confinement in a Syrian prison, often with cables and electrical cords.
When Arar sued the US for denying him his civil rights, the Bush administration—and later the Obama administration—successfully argued the case should never be allowed to come to trial for reasons of national security. The operatives stripped them, inserted suppositories into their rectums, dressed them in a diaper and overalls, blindfolded them, and placed a hood over their heads.
They were then placed aboard a US government-leased plane and flown to Egypt. Several days later, Egypt made a formal request that Indonesia extradite Madni for unspecified, terrorism-related crimes. Abusive interrogations by the military appear to have begun in Afghanistan as early as December and continued despite high-profile media accounts, and perhaps encouraged by the sidelining and disparaging of the Geneva Conventions by US officials.
Reports by civilian Federal Bureau of Investigation FBI agents who witnessed detainee abuse by military personnel at Guantanamo—including forcing chained detainees to sit in their own excrement—reinforced accounts by former detainees describing the use of painful stress positions, extended solitary confinement, military dogs to threaten them, threats of torture and death, and prolonged exposure to extremes of heat, cold, and noise.
Many techniques used on detainees by military personnel at Abu Ghraib prison and other Iraqi locations resembled abuse seen earlier in Afghanistan and Guantanamo, including forced standing and exercise, shackling detainees in painful positions or close confinement, extensive long-term sleep deprivation, and exposure to cold.
Abuse spread throughout Iraq from late and into Documented cases included beatings and suffocation,  sexual abuse,  mock executions,  and electro-shock torture. The tactics used in mock SERE interrogations resembled many of the practices used immediately afterwards in Afghanistan and Guantanamo. These included stripping detainees naked for degradation purposes, exploiting cultural or religious taboos, and use of forced standing, exposure to cold, and prolonged sleep deprivation.
A week later, on September 25, , a delegation of senior officials visited Guantanamo to discuss interrogations there. Dunlavey told Philippe Sands that the group discussed the interrogation of Mohamed al-Qahtani, a detainee suspected of direct involvement in the September 11 attacks. Diane Beaver, Gen.
By October 11, , Dunlavey sent a memo and an attached legal opinion by Lt. Beaver to Gen. James Hill of Southern Command requesting authority to use aggressive interrogation techniques. In late October , the documents were sent from Gen. Hill to Gen.
Getting Away with Torture
Richard Meyers, the chairman of the Joint Chiefs of Staff, with recommendations that the secretary of defense authorize the techniques listed. On November 14, , Col. Britt Mallow, a senior commander at the Criminal Investigation Task Force CITF at Guantanamo who had already raised concerns about abusive interrogations with senior Pentagon officials, together with others expressed his legal concerns to Guantanamo commander Gen.
Nevertheless, General Counsel Haynes submitted the techniques to Defense Secretary Rumsfeld for approval in late November , with a one-page cover letter recommending he approve most of the methods—but not waterboarding. Why is standing limited to 4 hours? Those captured or otherwise taken into custody during the international armed conflict in Iraq and Afghanistan should have been presumptively classified as POWs, and afforded the protections due to POWs under the Third Geneva Convention.
The Defense Department investigation chaired by James R. Contrary to the attention given interrogation techniques at Guantanamo, there was no prescribed interrogation regime for prisoners in Afghanistan. According to the review of Defense Department interrogation operations conducted by Vice Adm. Albert T.
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Officials in Afghanistan appear to have begun drawing up a set of policies based both on the techniques they were already utilizing and others they had learned from their trip to Guantanamo. Carolyn Wood, who had helped develop interrogation policies for non-special forces in Afghanistan in late —and who was implicated in the beating deaths of two detainees there in December —was stationed in Iraq and put in command of Abu Ghraib interrogation operations in mid, under the new Combined Joint Task Force 7 CJTF In July , Capt.
The overall military commander for Iraq, Gen. The abusive techniques approved, along with the techniques used by SMU TF units, were among those being used at Abu Ghraib through the beginning of The War Crimes Act of 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 US Armed Forces or a national of the United States. The Military Commissions Act revised the War Crimes Act and limited the definition of war crimes, with retroactive effect.
As a result, humiliating and degrading treatment of detainees in US counterterrorism operations following the September 11 attacks can no longer be charged as war crimes under the statute. However, this does not change liability for murder and torture. The Anti-Torture Act 18 U. Some of the crimes listed above are subject to a statute of limitations. Under federal law, charges for the crimes of assault, kidnapping, and acts against rights must ordinarily be brought within five years of the date of the commission of the offense. For the crime of torture, the statute of limitations is at least eight years,  and arguably does not exist at all.
Homicide, sexual abuse, and war crimes resulting in death are not subject to a limitation period. Conspiracy : In addition to the substantive offenses listed above, there is sufficient evidence to open a criminal investigation into whether senior Bush administration officials engaged in a criminal conspiracy to commit offenses such as torture and war crimes. This conspiracy would include, at a minimum, the top officials listed in this report as well as the lawyers who drafted legal memoranda seeking to justify torture.
A conspiracy to commit a federal crime may fall under the general federal conspiracy statute 18 U. The essential elements required to bring a charge of conspiracy under 18 U. Specific intent is an essential element of criminal conspiracy. In addition, it is not necessary for conspirators to have known or intended for the conspiracy to violate federal law per se.
As the Supreme Court has said:. While conspiracy is subject to a five-year statute of limitations, it is a continuing crime that does not end until the last co-conspirator commits the last overt act of the conspiracy. There is no immunity from prosecution in US courts for the acts described in this report. Senior US officials did not physically commit acts of abuse. However, civilian superiors and military commanders can be held criminally liable as principals if they order, induce, instigate, aid, or abet in the commission of a crime.
This is a principle recognized both in US  and international law. Three elements are needed to establish such liability:. The US armed forces have long recognized the principle of command responsibility. Tomoyuki Yamashita, commander of the Japanese forces in the Philippines in World War II, whose troops committed brutal atrocities against the civilian population and prisoners of war.
General Yamashita, who had lost almost all command, control, and communications over his troops, was nevertheless convicted by the International Military Tribunal in Tokyo based on the doctrine of command responsibility. Michael D.
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Maples in gave testimony that, in his view, waterboarding violated the laws of war. Courts in the US and other tribunals have repeatedly found that waterboarding, or variations of it, constitute torture and is a war crime : . These methods violate the protections afforded to all persons in custody—whether combatants or civilians—under the laws of armed conflict and can amount to torture or inhuman treatment.
For detainees who should be considered POWs or were entitled to a presumption of POW status, mistreatment by these methods would be a grave breach of the Geneva Conventions. Serious violations of the laws of war committed with criminal intent, including grave breaches of the Geneva Conventions, are war crimes. The field manual also prohibits forms of coercion including threats.
The US government has itself 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.
Threatening a prisoner with torture to make him talk is considered to be a form of torture or cruel, inhuman or degrading treatment. And, of course, many of the pictures from Abu Ghraib show unmuzzled dogs being used to intimidate detainees, sometimes while they are cowering, naked. Disappearances violate or threaten to violate a range of rules of international human rights and humanitarian law, including arbitrary deprivation of liberty, torture, and the right to life.
US law places limits on the treatment of detained terrorist suspects. The US Supreme Court ruled in that the Authorization for Use of Military Force, which Congress passed after the September 11, attacks and authorizes presidential action against al Qaeda and allied forces, gave the president power to detain enemy belligerents.
The prolonged, unacknowledged, incommunicado detention of persons in secret CIA facilities constitutes enforced disappearances under international law. Information continues to reach the Working Group on the existence of secret detention centres where terrorist suspects are held in complete isolation from the outside world. In [this situation], people disappear. As is well documented, disappearance is often a precursor to torture and even to extrajudicial execution. The string of legal opinions and memoranda by Bush administration lawyers on detainee issues since September 11, , appear to have been intended to shield US officials from potential liability.
Gonzales then explained to the president that "it is difficult to predict the motives of prosecutors and independent counsels who may in future decide to pursue unwarranted charges based on Section [the War Crimes Act]. Your determination [that the Geneva Conventions do not apply] would create a reasonable basis in law that Section does not apply, which would provide a solid defense to any future prosecution. Bush and others have asserted that they approved the detention and interrogation techniques described above only after legal review by Department of Justice attorneys.
At the same time, due process concerns would seem to bar conviction when a defendant engages in conduct in reasonable reliance on an official interpretation of the law. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. In the context of practices such as waterboarding, prolonged stress positions and long-term incommunicado detention, it stretches credulity to argue that a person of ordinary sense and understanding would not know the practices were illegal.
In addition, there is now substantial evidence that the initiative for abusive interrogation techniques came largely from civilian leaders, and that politically appointed administration lawyers created legal justifications in the face of opposition from career government legal officers.
Avoiding prosecution is literally a theme of the memoranda. Reportedly, the following day, Bush sent his name forward for formal nomination. Chertoff refused to provide such a declination. Under international law, states are obligated to investigate credible allegations of war crimes and serious violations of human rights committed by their nationals and members of their armed forces, or over which they have jurisdiction, and appropriately prosecute those responsible.
War crimes are serious violations of international humanitarian law committed willfully—that is, deliberately or recklessly—and give rise to individual criminal responsibility. The US also has a duty to investigate serious violations of international human rights law and punish the perpetrators. Those seeking a remedy shall have this right determined by competent judicial, administrative, or legislative authorities. And when granted, these remedies shall be enforced by competent authorities. Civilian leaders and commanders may also be prosecuted for war crimes and violations of international human rights law as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.
However, no US federal court, including the Supreme Court, has granted judicial remedy to persons alleging torture or other ill-treatment, including rendition to torture, in post-September 11 cases. Both the Bush and the Obama administrations have argued successfully that such cases should be dismissed under the state secrets privilege in US law. The state secrets privilege allows the head of an executive department to refuse to produce evidence in a court case on the grounds that the evidence is secret information that would harm national security or foreign relations interests if disclosed.
Investigation and referral to prosecution are required for all serious violations of human rights law, but monetary and other forms of compensation can also be provided. One US court has suggested compensation as a way to partially mitigate some of the abuse alleged in this report. Based on the information presented above, Human Rights Watch believes that there is sufficient basis for the US government to order a broad criminal investigation into alleged war crimes and human rights violations committed in connection with the torture and ill-treatment of detainees, the CIA secret detention program, and the rendition of detainees to torture.
Such an investigation would necessarily focus on alleged criminal conduct by the following four senior officials—George W. Human Rights Watch presents evidence now publicly available, but expresses no opinion about the ultimate guilt or innocence of these or other officials. President Bush was commander-in-chief of the US armed forces, and the senior executive officer of the US government, exercising full control over all of its executive agencies, including the CIA. Bush often chaired NSC meetings and was briefed extensively and routinely on all national security matters.
Bush approved coercive interrogation methods, including waterboarding, ordered the CIA secret detention program, and approved the program of unlawful renditions. In addition, even after learning that serious abuses were taking place, Bush never intervened to stop them or seek to prosecute those responsible. Bush acknowledged on several occasions that he approved waterboarding of detainees, including Khalid Sheikh Mohammed and Abu Zubaydah.
He also acknowledged in his memoirs that he approved the waterboarding of Khalid Sheikh Mohammed:. In March , Bush vetoed legislation containing a provision requiring that CIA interrogations comply with the US Army field manual on interrogations, which barred certain interrogation techniques, including waterboarding. On September 17, , President Bush reportedly signed a memorandum, apparently still classified, authorizing the CIA to kill, capture, detain, and interrogate al Qaeda members and others thought to be involved in the September 11 attacks.
It is not known whether Bush approved a separate finding for secret detentions or whether this was covered in the September 17 memo. Bush knew or should have known that many rendered detainees would likely face torture and other ill-treatment, and took no steps to stop the program or punish those responsible. Vice President Cheney played a key role in the formulation of detainee policy. Together with his chief counsel, David Addington, he was the principal political force pressing OLC lawyers to justify the use of coerced interrogation methods.
Cheney has spoken publicly about the entire approval process for CIA interrogation, including his own role, for instance telling the Washington Times :. As described above, Cheney was among the main White House officials briefed on CIA abduction and rendition operations, and he discussed these operations with the president. He advised the president to generally authorize CIA renditions operations and he sought formal authorization from the president, approving particular operations.
Defense Secretary Rumsfeld created the conditions for members of the US armed forces to commit torture and other war crimes by approving interrogation techniques that violated the Geneva Conventions and the Convention against Torture.