IV. The Purpose Behind the Law

Behind the Wire - 19

T

The US global detention practices described above have undermined both the protection of human rights, and the U.S. interest in national security. The United States has failed to meet its obligation to keep registers of all in custody, and to disclose the names of all individuals detained to their families and friends. The United States has also failed to fulfill its obligation under longstanding U.S. policy and law to afford the Red Cross access to all detainees held in the course of armed conflict. And the United States has failed to afford every individual in its custody some recognized legal status - some human rights under law,21

The laws requiring these protections were enacted in part to meet essential policy interests and our failure to adhere to them has jeopardized these interests. The revelations of torture at Abu Ghraib and elsewhere in Iraq and Afghanistan have made clear anew, for example, that unregulated and unmonitored detention and interrogation practices invite torture and abuse. Moreover, as military leaders have emphasized in the wake of these revelations, these abuses put the United States' own forces abroad at greater risk of suffering abuses even more serious than those they already face at the hands of a violent enemy. Perhaps most important to U.S. national security, the secrecy surrounding the U.S. global detention system and the abuses it has produced have also seriously undermined the United States' ability to "win the hearts and minds" of the global community a goal essential to effective intelligence gathering in the short term, and to defeating terrorism over the long term. This

chapter discusses these policy interests that underlie the law on detention.

Current Practice Sets Conditions for Torture & Abuse

The U.S.government and military capitalizes on the dubious status [as sovereign states] of Afghanistan, Diego Garcia, Guantanamo Bay, Iraq and aircraft carriers, to avoid certain legal questions about rough interrogations. Whatever humanitarian pronouncements a state such as ours may make about torture, states don't perform interrogations, individual people do. What's going to stop an impatient soldier, in a supralegal location, from whacking one nameless, dehumanized shopkeeper among many?

Unnamed U.S. Intelligence Officer, as quoted in Newsweek

May 17, 2004

When governments cloak detention in a veil of secrecy, by holding prisoners incommunicado or at undisclosed locations, the democratic system of public accountability cannot function. As former UN Special Rapporteur on Torture Nigel Rodley has written, the more hidden detention practices there are, the more likely that *all legal and moral constraint on official behavior [will be] removed "25

20- The Purpose Behind the Lan

These concerns produced a series of intemational standards governing detention, expressed in the UN Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules) and the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles). In order to maintain public accountability and minimize the chance for abuse, international law requires families to be notified of both arrest and detainee whereabouts. For the same reason, govemments must hold detainees only in publicly recognized detention centers and maintain updated registers of all prisoners By ensuring that state detention practices are subject to public scrutiny, these disclosure requirements constrain state violence and provide basic safeguards for prisoner treatment. Without these protections, the safety and dignity of prisoners are left exclusively to the discretion of the detaining power - circumstances that have repeatedly produced brutal consequences. For instance, during Saddam Hussein's rule of Iraq, secrecy was an essential component of detention practices. Individuals were arbitrarily arrested: tracing their whereabouts was a virtual impossibility. As Amnesty International reported in 1994: "Usually families of the 'disappeared' remain[ed] ignorant of their fate until they [were] either released or confirmed to have been executed. Thus, in the March 1991 uprising after the first Gulf War, "opposition forces broke into prisons and detentions centres" across northern and southern Iraq and released hundreds of prisoners "held in secret underground detention centres with no entrance or exit visible "58

The United States' own recent experiences provide a more apt case in point. U.S. detention officials have used various unlawful interrogation techniques on Iraqi, Afghan, and Guantanamo prisoners, including severe beatings, humiliation, nudity, manipulating detainees' diets, imposing prolonged isolation, military dogs for intimidation, exposure to extreme temperatures, sensory deprivation, and forcing detainees to maintain "stress positions" for prolonged periods. More than 130 U.S. soldiers have been charged or punished in cases involving abuse of prisoners in Iraq, Afghanistan or Guantanamo Bay, with scores of allegations still under investigation The Red Cross reported in June 2004 that detention and interrogation practices at Guantanamo Bay were "tantamount to torture." Through FOIA litigation, the public has gained access to hundreds of documents detailing abuses including

food deprivation, gagging, and sexual abuse from as recently as July 2004. In a number of documented instances, joint task forces comprising different military branches and government agencies have threatened military members who sought to report or document abuses. 21

Policies of secrecy and non-disclosure have also made subsequent investigations into wrong-doing and efforts to hold violators accountable - more difficult. Investigations into reports of abuse and even deaths of detainees in custody have been scattered and insufficient. For example, the New York Times reported on two deaths in US. custody at Bagram Air Force that occurred in December 2002; according to the Times, the Army pathologist's report indicated the cause of death was "homicide," a result of "blunt force injuries to lower extremities complicating coronary artery disease." The U.S. Army Criminal Investigation Command completed its investigations into the deaths almost two years after the deaths occurred. The investigation identified 28 military personnel with possible culpability. As of March 2005, only two U.S. soldiers had been charged for the death of the two men in U.S. custody. And none of the released investigations has examined the role the CIA played in detention operations.

The limits on oversight by the Red Cross also help set conditions for torture and abuse. The Red Cross meets with detainees and monitors general prison conditions, bringing to the attention of senior officials conditions or treatment that violate U.S. legal obligations. The Red Cross specifically alerted military authorities in Iraq to the abusive treatment of detainees, indicating the role military intelligence played in the abuses in Abu Ghraib. This notification led to some of the military's first disciplinary actions regarding detainee treatment. Limiting Red Cross access to detainees increases the likelihood that mistreatment will continue.

Such experiences underscore the urgency of adhering to disclosure requirements regarding detention practices. They also make the reticence of the United States to disclose detainees' whereabouts or numbers particularly disconcerting. By keeping its practices hidden from view, the United States creates conditions ripe for the torture and abuse now in evidence.

Behind the Wire-21

Current Practice

Undermines Protections for Americans Abroad

It is critical to realize that the Red Cross and the Geneva Conventions do not endanger American soldiers, they protect them. Our soldiers enter battle with the knowledge that should they be taken prisoner, there are laws intended to protect them and impartial international observers to inquire after them.

Senator John McCain

Wall Street Journal Commentary June 1, 2004

The United States' official compliance with the Geneva Conventions since World War II has been animated by several powerful concerns that remain equally important in the struggle against terror. First and foremost is the belief that American observance of rule-of-law protections drives our enemies to reciprocate in their treatment of American troops and civilians caught up in conflicts overseas. As the U.S. Senate recognized in ratifying the Conventions:

If the end result [of ratification] is only to ob
tain for Americans caught in the maelstrom
of war a treatment which is 10 percent less
vicious than what they would receive without
these conventions, if only a few score of
lives are preserved because of the efforts at
Geneva, then the patience and laborious
work of all who contributed to that goal will
not have been in vain.

268

Secretary of State John Foster Dulles agreed that American "participation is needed to... enable us to invoke (the Geneva Conventions] for the protection of our nationals And Senator Mike Mansfield added that while American "standards are already high:"

The conventions point the way to other governments. Without any real cost to us. acceptance of the standards provided for prisoners of war, civilians, and wounded and sick will insure improvement of the condition 270 of our own people.

The fundamental self-interest behind ratification of the Geneva Conventions has proven salient in conflicts preceding the "war on terrorism." General Eisenhower, for example, explained that the Western Allies treated German prison

ers in accordance with the principles of international humanitarian law because "the Germans had some thousands of American and British prisoners and I did not want to give Hitler the excuse or justification for treating our prisoners more harshly than he already was doing,

During the Vietnam War, North Vietnam publicly
asserted that all American prisoners of war
were war criminals, and thus not entitled to the
protections of the Geneva Conventions. Still,
the United States applied the Geneva Conven-
tions' principles to all enemy prisoners of war -
both North Vietnamese regulars and Viet Cong
- in part to try to ensure reciprocal benefits for
American captives US military experts
have made clear their belief that American ad-
herence to the Geneva Conventions in Vietnam
saved American lives:

[A]pplying the benefits of the Convention to
those combat captives held in South Viet-
nam did enhance the opportunity for
survival of U S. service members held by
the Viet Cong and North Vietnamese While
the enemy never officially acknowledged the
applicability of the Geneva Convention, and
treatment of American POWs continued to
be brutal, more U.S. troops were surviving
capture. Gone were the days when an
American advisor was beheaded and his
head displayed on a pole by the Viet Cong.
On the contrary, the humane treatment af-
forded Viet Cong and North Vietnamese
Army prisoners exerted constant pressure
on the enemy to reciprocate, and the Ameri-
can POWs who came home in 1973
survived, at least in part, because of
274
[that].

The US government's allegiance to basic intemational law obligations continued during the 1991 Gulf War, in which the U.S. Armed Forces readily afforded full protection under the Geneva Conventions to the more than 86,000 Iraqi prisoners in its custody."

It is in large measure for the Conventions' role in protecting America's own that many former American prisoners of war today support the U.S. government's adherence to the principles of the Geneva Conventions. As Senator (and former prisoner of war) John McCain has explained:

The Geneva Conventions and the Red
Cross were created in response to the stark
recognition of the true horrors of unbounded

Even in the context of the recent violence, Senator McCain reaffirmed this belief that our failure to abide by our own obligations puts our troops in danger abroad: "While our intelligence personnel in Abu Ghraib may have believed that they were protecting U.S. lives by roughing up detainees to extract information, they have had the opposite effect. Their actions have increased the danger to American soldiers, in this conflict and in future wars.""""

Commenting on recent events in the "war on terrorism," former U.S. Ambassador to Vietnam (and former prisoner of war) Pete Peterson agreed, explaining: "There can be no doubt that the Vietnamese while consistently denying any responsibility for carrying out the provisions of the Geneva Accords, nevertheless tended to follow those rules which resulted in many more of us returning home than would have otherwise been the case."""

Current Practice Undermines U.S. Intelligence and Counterinsurgency Efforts

The abuses at Abu Ghraib are unforgiveable not just because they were cruel, but because they set us back. The more a prisoner hates America, the harder he will be to break. The more a population hates America, the less likely its citizens will be to lead us to a suspect.

Chris Mackey (pseudonym). U.S. Army Interrogator in Afghanistan

The interrogators 2004

The Interim Field Manual on mounting a counterinsurgency published by the US Army in October 2004 highlights the detrimental effect of perceived lawlessness on efforts to quell an insurgency: "Those who conduct counterinsurgency operations while intentionally or

negligently breaking the law defeat their own purpose and lose the confidence and respect of the community in which they operate.""" Indeed, few would argue that obtaining intelligence is essential to a successful counterinsurgency operation, and cultivating strong ties in a local population helps secure that intelligence.

Yet the effect of the secrecy and uncertainty surrounding U.S. detention operations has been to deeply undermine these efforts. As Brigadier General Mark Kimmitt, spokesman for the U.S. military in Iraq, acknowledged last May: "The evidence of abuse inside Abu Ghraib has shaken public opinion in Iraq to the point where it may be more difficult than ever to secure cooperation against the insurgency, that winning Over Iraqis before the planned handover of some sovereign powers next month had been made considerably harder by the photos."80 For the thousands who have been held in U.S. custody and then released, for their families and communities, the conduct of detention operations is inconsistent with this security interest. For the detainees themselves, many of whom are eventually released back into the general population, it has been long understood by U.S. courts and psychiatric experts that indefinite detention and prolonged isolation can produce devastating mental and physical health effects. Experience in both criminal punishment and wartime internment over the past two centuries has shown that prolonged solitary confinement can produce confusion, paranoia, and hallucinations, as well as severe agitation and impulsive violence (including suicide) - effects that can be long term. 21 Uncertainty while awaiting punishment, and the mental anxiety that accompanies an indeterminate fate, can be similarly destructive. It was for precisely this reason the effectiveness of indefinite detention in provoking anxiety and psychiatnc instability that the CIA included them among its principal techniques of coercion in now repudiated manuals on interrogation from the 1960s.

Many released detainees claim to continue to suffer from severe psychological symptoms due to their imprisonment." Detainees released from Guantanamo Bay also report debilitating physical conditions, including chronic pain in the knees and back due to treatment while in detention. Released British detainee, Rhuhel Ahmed, suffers from "permanent deterioration of his eyesight."**