"Extraordinary Renditions" The CIA has regularly transferred detainees to countries in the Middle Fast, including Egypt and Syria, known to practice torture routinely. There are reportedly 100 to 150 cases of such “extraordinary renditions.”37 In one case, Maher Arar, a Syrian-born Canadian in transit in New York, was detained by U.S. authorities and sent to Syria. Ile was released without charge from Syrian custody ten months later and has described repeated torture, often with cables and electrical cords. In another case, a U.S. government-leased airplane transported two Egyptian suspects who were blindfolded, hooded, drugged, and diapered by hooded operatives, from Sweden to Egypt. There the two men were held incommunicado for five weeks and have given detailed accounts of the torture they suffered (e.g. electric shocks), including in Cairo's notorious Tora prison.38 In a third case, Mamdouh Habib, an Egyptian-born Australian in American custody, was transported from Pakistan to Afghanistan to Egypt to Guantánamo Bay. Now back home in Australia, Habib alleges that he was tortured during his six months in Egypt with beatings and electric shocks, and hung from the walls by hooks.39 "Reverse Renditions" Detainees arrested by foreign authorities in non-combat and non-battlefield situations have been transferred to the United States without basic protections afforded to criminal suspects. `Abd alSalam 'Ali al-I lila, a Yemeni businessman captured in Egypt, for instance, was handed over to U.S. authorities and “disappeared” for more than a year-and-a-half before being sent to Guantánamo Bay Naval Base in Cuba. Six Algerians held in Bosnia were transferred to U.S. officials in January 2002 (despite a Bosnian high court order to release them) and were sent to Guantánamo. III. Getting Away with Torture 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 37 Douglas Jehl and David Johnston, "Rule Change Lets C.I.A. Freely Send Suspects Abroad to Jails," The New York Times, March 6, 2005 (late edition), Section 1, p. 1. 38 "The Broken Promise." Kalla Fakta Program. Swedish TV4, May 17, 2004 [English transcript online]. http://hrw.org/english/docs/2004/05/17/sweden8620.htm; Craig Whitlock, "A Secret Deportation of Terror Suspects: 2 Men Reportedly Tortured in Egypt," The Washington Post, July 25, 2004 (These cases and nine others are compiled from news reports in Association of the Bar of the City of New York and Center for Human Rights and Global Justice, Torture by Proxy: International and Domestic Law Applicable to "Extraordinary Renditions” (New York: ABCNY & NYU School of Law, 2004)). 30 Raymond Bonner, "Australian's Long Path in the US Antiterrorism Maze," The New York Times, January 29, 2005 (late edition), p A4 * Human Rights Watch, "Cairo to Kabul to Guantánamo," A Human Rights Watch Backgrounder, March 2005 [online], http://hrw.org/english/docs/2005/03/28/usint10379.htm. 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 alQaeda suspects from U.S. custody to other countries where they are tortured or otherwise mistreated. One official was quoted as saying, "We don't 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 The allegations made by The Washington Post put the United States on notice that 43 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. 41 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. 42 Dana Priest and Barton Gellman, "U.S. Decries Abuse but Defends Interrogations," The Washington Post, December 25, 2002, p. A1. 43 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. Fender the Abu Ghraš, photos, however, the United States reaction has been fundamental on Á Sumap cao, izter than a sanch for truth and accountability. This stands in markod contrast to the high-minded promises made by top US officials in the wake of the revelations Secretary Rumsfeld, for invance, roid a Congressional hearing on May 7, 2004. Mr. Charman, I know you toin me today in saying to the world. Judge us by our 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 Amenca 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: By refusing to allow an independent inquiry of prisoner abuse. Instead, the Department of Defense has established a plethora of investigations, all but one in-house, looking down the chain of command at one aspect or another of the treatment of detainees. No investigation had the independence or the breadth to get to the policies at the heart of the prisoner abuse. By failing to undertake criminal investigations against those leaders who by commission or omission allowed the widespread criminal abuse of detainees to develop and persist. Prosecutions have commenced only against low-level soldiers and contractors. Only one officer higher than the rank of sergeant a major personally implicated in abuse — has 44 Donald Rumsfeld "Testimony of Secretary of Defense Donald H. Rumsfeld before the Senate and House Armed Services Committees." US Senate Armed Services Committee, May 7, 2004 [online], http://armedservices senate.gov/statemnt/2004/May/Rumsfeld.pdf. 40 "Abuse Scandal 'Terrible' for U.S., Powell Concedes," MSNBC, May 17, 2004 [online], http://www.msnbc.msn com/id/4855930/ been charged with a crime. No civilian leader at the Pentagon, the CIA or elsewhere in the government has been charged with a crime. In-house Investigations down the Chain of Command 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,18 a portion of the personnel who staffed Abu Ghraib.49 Despite Gen. Taguba's limited mandate, his findings were nevertheless very important in placing the acts captured on camera, as well as others, in their local context.50 "51 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.' 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 40 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 47 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. 48 Taguba report, p. 6. 49 50 Ibid., pp. 12-13. General Taguba's confidential findings were first reported by journalist Seymour Hersh the day after the Abu Ghraib photographs were aired on CBS-TV's "Sixty Minutes II." 51 Taguba report, p. 16. 52 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." 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."51 The report's 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: • Troops received “ambiguous guidance from command on the treatment of detainees"; • Established interrogation policies were "not clear and contained ambiguity"; Commanders in Iraq and Afghanistan approved interrogation techniques that went beyond Army doctrine, based in part on guidelines approved by the Secretary of Defense for use in Guantánamo; The decision by senior commanders to rely on the Guantánamo guidelines “appears to contradict" the terms of Rumsfeld's decision, which explicitly stated that the guidelines were applicable only to interrogations at Guantánamo; and • This led to the use of “high risk” interrogation techniques that “left considerable room for misapplication, particularly under high-stress combat conditions.” 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 53 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 |