A Sourcebook & Study Guide for High School & College Classrooms: TORTURE AND WAR CRIMES: THE U.S. RECORD IN DOCUMENTS
Have U.S. forces violated international law in their treatment of prisoners in Iraq, Afghanistan, & Guantanamo? Has that treatment amounted to torture or war crimes? If so, who should be held responsible? Here, we assemble a wide collection of excerpts from original materials to use as a basis for student exploration.
To the Teacher:
"Torture is wrong because it inflicts unspeakable pain upon the body of a fellow human being who is entirely at our mercy. The tortured person is bound and helpless. The torturer stands over him with his instrumentsÖ.The inequality is total. To abuse or kill a person in such a circumstance is as radical a denial of common humanity at possible. It is repugnant to learn that one's country's military forces are engaging in torture. It is worse to learn that the torture is widespread. It is worse still to learn that the torture was rationalized and sanctioned in long memorandums written by people at the highest level of the governmentÖ.Torture destroys the soul of the torturer even as it destroys the body of his victim. The boundary between humane treatment of prisoners and torture is perhaps the clearest boundary in existence between civilization and barbarism."
—Jonathan Schell, "What Is Wrong with Torture," The Nation, 2/7/05
"Behind the exotic brutality so painstakingly recorded in Abu Ghraib, and the multiple tangled plotlines that will be teased out in the coming weeks and months about responsibility, knowledge, and culpability, lies a simple truth, well known but not yet publicly admitted in Washington: that since the attacks of September 11, 2001, officials of the United States, at various locations around the world, from Bagram in Afghanistan to Guantanamo in Cuba to Abu Ghraib in Iraq, have been torturing prisoners."
—Mark Danner, "The Logic of Torture," New York Review of Books, 6/24/04
Have U.S. forces violated international law in their treatment of prisoners in Iraq, Afghanistan, and Guantanamo? Has that treatment amounted to torture or war crimes? If so, who should be held responsible?
High school or college teachers who are able to address these difficult but important questions in their high school or college classrooms will find a plethora of original source materials to draw from. To help in this process, we have assembled here a sourcebook, a wide collection of excerpts from original materials (including international law, U.S. government statements, and investigatory reports) on the subject. Following the documents are questions for class discussion.
We offer the sourcebook in the conviction that our country's treatment of prisoners is in fact a crucial issue for serious student reading, study, reflection, discussion, and response as citizens.
In the spring of 2004, photographs of torture at Iraq's Abu Ghraib prison were released, causing a roar of public discussion and concern. Since then, revelations of prisoner torture ("abuse" is the common euphemism) continue to trickle in from Pentagon, CIA and FBI investigations and sources. The International Committee of the Red Cross has conducted the only independent investigation of the issue. In addition, after extended legal efforts under the Freedom of Information Act, the American Civil Liberties Union has forced the U.S. government to produce thousands of pages of documents bearing on the torture of American prisonersóand has been releasing them to the public.
Yet despite these mounting revelations of prisoner torture, public concern about the issue seems to have dwindled. Why? Inattention, ignorance, a limited attention span? Sparse coverage by TV, Americans' main news source, which concentrates on the new and filmable? Could the problem be what might be called the "9/11 syndrome," a mental health problem arising from an exaggerated fear of terrorist acts fueled by a constant drumbeat of "the war on terrorism" in official pronouncements and TV banners? A widespread view that in the prosecution of that "war" extraordinary measures, however brutal, are essential or at least defensible?
Human rights organizations such as Amnesty International, Human Rights Watch, and the ACLU have called for an independent, bipartisan panel to determine responsibility for what they consider well-documented acts of torture and war crimes. But neither the Bush administration nor the Republican leadership in Congress nor most Democrats have responded. Instead they appear determined to close their eyes to the grave charge against the United States government: that its highest officials, after 9/11, solicited opinions from government lawyers that opened the gates to torture of prisoners and violations of the country's highest values.
Brig. Gen. Janis Karpinski, the officer in charge of the military police unit at Abu Ghraib, was demoted to colonel for "dereliction of duty." She has complained of being a scapegoat for for higher-ups. Col. Thomas Pappas, commander of the 205th Military Brigade at the same prison, was fined $8,000 and received a written reprimand. Neither officer was charged with a crime.
As of 4/30/05, 130 solders have been punished for "abusing" prisoners (New York Times).To date, no charges have been filed against their immediate superiors or those higher in the chain of command. The results of a high-level Army investigation announced 4/22/05 cleared top Army officers responsible for overseeing prison policies and operations in Iraq. Those exonerated included the top commander in Iraq, Lt. Gen. Ricardo Sanchez, from June 2003 to July 2004.
And yet there is strong evidence that higher ups are involved. Top U.S. officials let it be known through the military chain of command and through its intelligence agencies that it was essential "to rapidly exploit internees for actionable intelligence," according to the Taguba report on prisoner treatment at Abu Ghraib.
The documents collected here are intended to allow students to consider the evidence for themselves, drawing from original source materials. Following a brief introduction, the documents follow, organized under these headings:
1) International agreements bearing on prisoner treatment
2) U.S. government statements and memoranda on prisoner treatment
3) Investigations of prisoner treatment
4) Responses to the investigations from the Bush administration, Congress, and human rights groups
5) Documents relating to prisoner rendition
6) Additional reports on prisoner treatment
7) Report of the UN Committee Against Torture, 5/18/06
8) Final Reflections
TEACHERS, PLEASE NOTE: The documents below (especially in Readings 3, 5, & 6) contain graphic scenes of violence, including sexual violence, and use sexually explicit language.
The major argument supporting "aggressive" interrogation techniques is that they save American lives. Michael Scheuer, an ex-CIA operative, stresses this point, as quoted in the fourth reading. Schell calls torture "barbarism" in the same reading. Others have offered various arguments on the efficacy and morality of prisoner torture. We agree with Schell that torture is simply unacceptable for a country "conceived in liberty and dedicated to the proposition that all men are created equal." But most of the documents presented here say little about the pros and cons. Rather, they offer documentation from numerous sources, on the basis of which teachers and students can address and answer, however tentatively, three major questions:
1. In their treatment of prisoners have American violated international agreements as well as national guidelines and legislation and been responsible for torture and war crimes?
2. If so, to what extent, if any, do their immediate superiors and those higher in the chain of command bear responsibility?
3. What consequences should there be for those responsible for acts of torture and war crimes?
"This is what we know. The real question now, as so often, is not what we know but what we are prepared to do."
— Mark Donner, "The Logic of Torture," The New York Review, 6/24/04
Student Introductory Reading
The scandal over prisoner treatment
On April 28, 2004, photographs displayed on "60 Minutes II" showed hooded, naked Iraqi prisoners piled in a pyramid with two smiling American soldiers behind them; a female soldier pulling on a dog leash attached to a prisoner; a hooded, cloth-draped prisoner standing on a box with arms outstretched and attached to wires. At about the same time The New Yorker magazine published Seymour Hersh's article, "Torture at Abu Ghraib," which included the revelations of a February Army investigation conducted by Major General Antonio Taguba. Taguba described many instances of "sadistic, blatant, and wanton criminal abuses" committed by American military police at the Abu Ghraib prison in Iraq.
The photographs and the Taguba report shocked the country. President Bush called the photographs "disgusting" and condemned the behavior of "a few American troops." But a year earlier, in May 2003, the International Committee of the Red Cross had reported on prisoner mistreatment, some of it "tantamount to torture" to American officials. And in July 2003 a worldwide human rights organization, Amnesty International, reported "allegations of torture and ill-treatment of Iraqi detainees" as well as of Afghan prisoners at U.S. air bases in Afghanistan. It became clear that top American officials had known about prisoner mistreatment for months before Abu Ghraib became a symbol of it and that the mistreatment was widespread.
This is how public knowledge of the prisoner scandal, now entering its second year, began. Since then, a continuing stream of official investigations and reports have revealed more about American misdeeds. But so far only low-level military and CIA personnel have been tried for criminal offenses.
The following materials relate to various aspects of the prisoner scandal that every American should know about. This record does not make for pleasant reading. But it raises important questions about whether the U.S. violated the law and if so, what the consequences should be.
- What do students know about the prisoner scandal?
- Does everyone understand that the scandal dates to events that followed 9/11?
- Do students understand that the charges of abuse relate to prisoners captured after the U.S. attack on Afghanistan in October 2001 and the invasion of Iraq in March 2003?
Before students examine the readings below, ask them to define in their own words "torture" and "war crime." Ask them to keep these definitions in their notebooks for later reference.
Student Reading 1:
Torture and War Crimes Are Illegal
1. Universal Declaration of Human Rights (approved by the General Assembly of the United Nations, 12/10/48)
Article 5: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
The UN Assembly called on all member nations to publicize the text of Article 5 and "to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions."
2. Geneva Conventions
The four Geneva Conventions were created by representatives from the U.S. and other nations in 1949. The third convention covers the treatment of prisoners of war and includes the following:
- Article 13: "Prisoners of war must at all times be humanely treated...prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity."
- Article 17: A prisoner of war is required "to give only his surname, first name and rank, date of birth, and army, regimental, personnel or serial number. No physical or mental torture, nor any other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind."
- This Convention also states: "Should any doubt arise," all fighters are covered by the Geneva Conventions until "a competent tribunal decides they are not." To date, no such tribunal has been created.
3. The Law of Land Warfare, United States Army Field Manual 27-10 (7/18/56)
Section III, 89: "Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited...prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults."
4. UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984; ratified by U.S. Congress, 1994)
Part I, Article 1: "torture means any act by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession."
Article 2: "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."
Article 3: "No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
Article 4: "Each State Party shall ensure that all acts of torture are offenses under its criminal lawÖ.Each State Party shall make these offenses punishable by appropriate penalties which take into account their grave nature."
The Convention calls upon all states to "ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military."
The Convention also declares, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture."
When the U.S. Senate ratified this Convention, it included a reservation under which the United States defined the prohibited "cruel, inhuman or degrading treatment' to mean all treatment prohibited by the Fifth, the Eighth, or Fourteenth Amendment to the U.S. Constitution.
5. U.S. War Crimes Act of 1996: Title 18, Part I, Chapter 118, 2441
"(c) Definition. As used in this section the term 'war crime' means any conduct:
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18, October 1907;." Section II, Chapter I, Article 23 includes "it is especially forbidden to kill or wound treacherously individuals belonging to the hostile nation or army."
For writing and discussion
- Have students compare their own definitions of "torture" and "war crime" with those in the documents they have just read. What similarities and differences to they find?
- Ask students to write a concise paragraph summarizing the key elements in international agreements and Congressional legislation on the treatment of war prisoners and on what constitutes a war crime.
Have students meet in groups of four to read their statements and to select what they regard as the best one for sharing with the class and for further class discussion.
Student Reading 2:
U.S. Government Statements and Memoranda on Prisoner Treatment
Soon after 9/11 and the invasion of Afghanistan in October 2001, White House and Justice Department lawyers began considering how prisoners should be treated. How aggressive could American interrogators be in questioning Taliban and Al Qaeda detainees, especially those suspected of being terrorists? What acts would constitute torture and thus violate the Geneva Conventions? Was the president restricted in what he could direct the military to do in questioning prisoners? The lawyers addressed such questions in legal memoranda written beginning in January 2002 that were released to the public many months later.
Excerpts from these memoranda are below.
1. January 9, 2002. A Justice Department memorandum stated: "Restricting the President's plenary power over military operations (including the treatment of prisoners)" would be "constitutionally dubious." This memo concluded that the Geneva Conventions did not cover non-state organizations like Al Qaeda or with Afghanistan under the Taliban because it was a "'failed state' whose territory "had been largely overrun and held by violence by a militia or faction rather than by a government." (The memo was by Justice Department lawyers John Yoo and Robert Delahunty, addressed to the Defense Department's general counsel, William Haynes II.)
2. January 25, 2002. A memorandum from White House Counsel Alberto Gonzales to President Bush stated: "As you have said, the war against terrorism is a new kind of war. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians." The new situation "renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."
(Gonzales was later appointed by President Bush and approved by the Senate to become the U.S. Attorney General.)
Gonzales said that a key advantage of declaring that Taliban and Al Qaeda fighters do not have Geneva protections is that it "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act. It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [The War Crimes Act]."
3. January 26, 2002. Secretary of State Colin Powell responded to the Gonzales memo. He argued that declaring the Geneva Conventions inapplicable would "reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the laws of war for our troops." He also wrote that it would "undermine public support among critical allies."
4. February 7, 2002. President Bush's memorandum to his National Security team stated that U.S. forces "shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." On this same date the president announced his decision to withhold protection of the Geneva Convention from Al Qaeda and from Taliban fighters in Afghanistan on the grounds that they were "unlawful combatants," a term not found in the Geneva Conventions.
5. February 2002. The White House announced that the U.S. would apply the Geneva Conventions to Afghan prisoners but that they would not be given prisoner-or-war status because they were "unlawful combatants."
6. August 1, 2002. A memorandum from Assistant Attorney General Jay Bybee requested by White House Counsel Alberto Gonzales maintained that causing a person "mental pain" does not always constitute torture.
To be regarded as torture, Bybee wrote, mental pain must be caused by "threats of imminent death; threats of infliction of the kind of pain that would amount to physical torture; infliction of such physical pain as a means of psychological torture physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." To be considered torture, the harm "must cause some lasting, though not necessarily permanent, damage. The development of a mental disorder such as post-traumatic stress disorder, which can last months or even years, or even chronic depression, which also can last for a considerable period of time if untreated, might satisfy the prolonged harm requirement."
The memo reported that at least seven acts have consistently been found to violate the federal torture Victims Protection Act: "1) Severe beatings using instruments such as iron bars, truncheons and clubs; 2) threats of imminent death, such as mock executions; 3) threats of removing extremities; 4) burning, especially burning with cigarettes; 5) electric shocks to genitalia or threats to do so; 6) rape or sexual assault, or injury to an individual's sexual organs, or threatening to do any of these sorts of acts; and 7) forcing the prisoner to watch the torture of others."
However, the memo also states that "As Commander-in-Chief, the president has the constitutional authority to order interrogations of enemy combatants." Any measure that "interferes with the president's direction of such core war matters as the detention and interrogation of enemy combatants would thus be unconstitutional."
(Bybee was subsequently appointed by President Bush to the United States Court of Appeals for the Ninth Circuit.)
7. August 2002. Alberto Gonzales subsequently wrote to the president: The criminal prohibition against torture "does not apply to the President's detention and interrogation of enemy combatants pursuant to his Commander in Chief authority." Therefore, he stated, executive officials cannot be prosecuted for torture if "they were carrying out the President's Commander-in-Chief powers."
8. August 1, 2002. According to the New York Times (June 27, 2004), "An August 2002 memo by the Justice Department that concluded interrogators could use extreme techniques on detainees in the war on terror helped provide an after-the-fact legal basis for harsh procedures used by the CIA on high-level leaders of Al Qaeda, according to current and former government officialsÖ.The full text of the memo was made public by the White House on Tuesday [June 22, 2004]. The memo, which is dated, was a seminal legal document guiding the government's thinking on interrogation. It was disavowed earlier this week by senior legal advisers to the Bush administration who said the memo would be reviewed and revised because it created a false impression that torture could be legally defensible. In repudiating the memo in briefings this week, none of the senior Bush legal advisers whom the White House made available to reporters would discuss who had requested that the memo be prepared, why it had been prepared or how it was applied."
9. December 2002. Defense Secretary Rumsfeld authorized such interrogation techniques at Guantanamo as hooding prisoners, using dogs, forcing prisoners into "stress positions" for long periods, stripping them, shaving them and isolating them. All of these techniques violate the Geneva Conventions, but President Bush had previously declared that the Geneva Conventions did not apply to Al Qaeda. Bush later rescinded those tactics and signed off on a shorter list of 'exceptional techniques,' including 20-hour interrogations, face slapping, stripping detainees to create 'a feeling of helplessness and dependence,' and using dogs to increase anxiety. Another legal review further narrowed the list, and Mr. Rumsfeld issued yet another memo on April 16, 2003. August 24, 2004. The Schlesinger Panel, an independent panel appointed by the Secretary of Defense in August 2004, found that the memos "confused field commanders, who thought that harsh interrogations were allowed."
10. March 6, 2003. A legal memorandum written by a team of Bush administration lawyers stated: "In order to respect the president's inherent constitutional authority to manage a military campaign," the prohibition against torture "must be construed as inapplicable to interrogation undertaken pursuant to his commander-in-chief authority...a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his control," and the use of the adjective "severe" "makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture."
The memo states that if an interrogator "has a good faith belief his actions will not result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture." And an interrogator who uses techniques that cause pain might be immune from prosecution if he "believed at the moment that his act is necessary and designed to avoid greater harm. Any effort by Congress to regulate the interrogation of unlawful combatants [terrorists] would violate the Constitution's sole vesting of the Commander-in Chief authority in the President."
11. August 2003. According to Anthony Lewis in the New York Review of Books (July 15, 2004), Defense Secretary Rumsfeld had his top intelligence aide, Stephen Cambone, transfer General Geoffrey Miller, who was in charge of interrogation at Guantanamo, to Iraq "to improve acquisition of intelligence by questioning detainees."
12. May 22, 2004. An email sent to senior members of the FBI (revealed by Human Rights Watch in December 21, 2004, through a Freedom of Information Act request) "repeatedly referred to an Executive Order that permitted military interrogators in Iraq to place detainees in painful stress positions, impose sensory deprivation through the use of hoods, intimidate them with military dogs and use other coercive methods."
13. June 26, 2004. On United Nations International Day in Support of Victims of Torture, President Bush declared "the United States reaffirms its commitment to the worldwide elimination of torture. America stands against and will not tolerate torture. We will investigate and prosecute all acts of torture and undertake to prevent other cruel and unusual punishment in all territory under our jurisdiction. The United States also remains steadfastly committed to upholding the Geneva Conventions."
14. October 26, 2004. The New York Times reported the following: "A new legal opinion by the Bush administration has concluded or the first time that some non-Iraqi prisoners captured by American forces in Iraq are not entitled to the protection of the Geneva Conventions, administration officials said Monday. The opinion, reached in recent months, establishes an important exception to public assertions by the Bush administration since March 2003 that the Geneva Conventions applied comprehensively to prisoners taken in the conflict in Iraq, the officials said."
15. December 2004. A Defense Department letter to Congress stated: "At the urging of the White House, Congressional leaders scrapped a legislative measure last month that would have imposed new restrictions on the use of extreme interrogation measures by American intelligence officers, Congressional officials say. The Senate had approved the new restrictions, by a 96-to-2 vote (that) would have explicitly extended to intelligence officers a prohibition against torture or inhumane treatment, and would have required the CIA as well as the Pentagon to report to Congress the methods they were using. In a letter to members of Congress, sent in October Condoleezza Rice, the national security adviser, expressed opposition to the measure on the grounds that it 'provides legal protections to foreign prisoners to which they are not now entitled under applicable law and policy.'" (New York Times, 1/13/05)
16. December 30, 2004. A memorandum posted on the website of the Justice Department with no public announcement stated: "Torture is abhorrent both to American law and values and to international norms." Torture can include "severe physical suffering" as well as "severe physical pain." The memorandum also rejects the August 1, 2002 memorandum assertion that torture may be said to occur only if the interrogator meant to cause the harm that resulted.
17. January 7, 2005. Alberto Gonzales made the following statements before the Senate Judiciary Committee during his confirmation hearing to be attorney general.
"This administration does not engage in torture and will not condone torture."
Gonzales said that he was "deeply committed to ensuring that the United States government complies with all of its legal obligations as it fights the war on terror, whether those obligations arise from domestic or international law. These obligations include, of course, honoring the Geneva Conventions whenever they apply."
Regarding the Bybee memorandum of August 1, 2002: "I don't recall today whether or not I was in agreement with all of the analysis." Gonzales said that at the time he did not "have a disagreement with the conclusions then reached by the department."
18. January 2005. In written responses to questions by Judiciary Committee members, Gonzales said (according to a New York Times summary on 1/18/05): "Officers of the Central Intelligence agency and other nonmilitary personnel fall outside the bounds of a 2002 directive issued by President Bush that pledged the humane treatment of prisoners in American custody. These techniques include 'water boarding,' in which interrogators make it appear that the suspect will be drowned. Mr. Gonzales declined to say in his written responses to the committee what interrogation tactics would constitute torture in his view or which ones should be banned."
19. January 18, 2005. Remarks by Condoleezza Rice before the Senate Foreign Relations Committee during her confirmation hearing to be secretary of state,
Senator Christopher Dodd cited instances of forced nudity and simulated drowning as interrogation techniques. He asked Rice "whether or not you consider them to be torture or not." Rice: "Senator, the determination of whether interrogation techniques are consistent with our international obligations and American law are made by the Justice Department. I don't want to comment on any specific interrogation technique."
20. February 28, 2005. The State Department released its annual Human Rights Report. According to the Washington Post ( 3/1/05), the report "criticized countries for a range of interrogation practices it labeled as torture, including sleep deprivation for detainees, confining prisoners in contorted positions, stripping and blindfolding them and threatening them with dogs—methods similar to those approved at times by the Bush administration for use on detainees in U.S. custody. The State Department report also harshly attacked the treatment of prisoners in such countries as Syria and Egypt, where the United States has shipped terrorism suspects under a practice known as 'rendition.' An Australian citizen, for example, has alleged that under Egyptian detention he was hung by his arms from hooks, repeatedly shocked, nearly drowned and brutally beaten. Most of his fingernails were missing when he later arrived at Guantanamo Bay."
1. What is the "new situation" that "renders obsolete" the strict Geneva Convention regulations about questioning prisoner, according to Gonzales? Do you agree with his conclusion? Why or why not?
2. Consider closely the president's directive of February 7, 2002. How do you understand the implications of "to the extent appropriate and consistent with military necessity"?
3. Given your understanding of international agreements and Congressional legislation on treatment of prisoners and war crimes, do you agree with the president's view that Al Qaeda and Taliban fighters should be classified as "unlawful combatants"? Why or why not?
4. For a good portion of 2002 government lawyers researched and then wrote memoranda on the meanings to be given to "torture" and "war crimes" and on the constitutional authority of the president. Why do you suppose they were doing such work? How and why did they conclude that any interference with presidential directives regarding prisoners would be unconstitutional? Do you agree with their findings? Why or why not?
5. How do you explain the Justice Department decision (announced December 30, 2004) that contradicted Bybee's memo of August 1, 2002 discussing torture?
6. Exactly what did Secretary Rumsfeld authorize for American behavior in the treatment of prisoners (document #9, December 2002)? What do you think is the significance of Rumsfeld's sending General Miller from Guantanamo to Iraq (document #11, August 2003) ?
7. Why do you suppose Congress scrapped legislation that would have put curbs on "extreme interrogation" techniques?
8. Evaluate the responses of Gonzales and Rice to questions about prisoner treatment during their confirmation hearings.
9. How do you explain the State Department's condemnation of other nations for practices also used by the U.S.?
10. Student questions?
Student Reading 3:
Investigations of Prisoner Treatment
The Army's Criminal Investigation Division received copies of the Abu Ghraib photographs in January 2004, but even before then the division was aware of allegations of prisoner mistreatment. Investigations by the International Committee of the Red Cross had already taken place and been reported to U.S. authorities, and Amnesty International had reported "allegations of torture and ill-treatment of Iraqi detainees" in July 2003. In February 2004 Major General Antonio Taguba reported on his investigation of the situation at Abu Ghraib. Both the photographs and the Taguba findings became public in April. The Pentagon, FBI and CIA began investigations that are continuing.
1. Reports by the International Committee of the Red Cross (ICRC)
In February 2004, the International Committee of the Red Cross released a report on the "Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq During Arrest, Internment and Interrogation."
After a visit to Abu Ghraib, Red Cross inspectors reported "acts of humiliation such as being made to stand naked against the wall of the cell with arms raised or with women's underwear over the heads for prolonged periods-while being laughed at by guards, including female guards, and sometimes photographed in this position." The report stated also that military intelligence officers had confirmed the ICRC inspectors' impression that those "methods of physical and psychological coercion used by the interrogators appeared to be part of the standard operating procedures by military intelligence personnel to obtain confessions and extract information."
Other methods: "Hooding, used to prevent people from seeing and to disorient them, and also to prevent them from breathing freely. Handcuffing with flexi-cuffs, which were sometimes made so tight and used for such extended periods that they caused skin lesions and other long-term after-effects on the hands [nerve damage], as observed by the ICRC; Beatings with hard objects [including pistols and rifles], slapping, punching, kicking with knees or feet on various parts of the body (legs, sides, lower back, groin); Being paraded naked outside cells in front of other persons deprived of their liberty, and guards, sometimes hooded or women's underwear over the head; Being attached repeatedly over several days with handcuffs to the bars of their cell door in humiliating (i.e. naked or in underwear) and/or uncomfortable position causing physical pain; Exposure while hooded to loud noise or music, prolonged exposure while hooded to the sun over several hours, including during the hottest time of the day when temperatures could reach 122 degrees Fahrenheit or higher; Being forced to remain for prolonged periods in stress positions such as squatting or standing with or without the arms lifted."
"These methods of physical and psychological coercion were used by the military intelligence in a systematic way to gain confessions and extract information or other forms of cooperation from persons who had been arrested in connection with suspected security offenses or deemed to have an 'intelligence value.'"
The authors of the Red Cross report that when they visited the "isolation section" of Abu Ghraib in mid-October 2003, they "directly witnessed and documented a variety of methods used to secure the cooperation" of prisoners, among them "the practice of keeping [prisoners] completely naked in totally empty concrete cells and in total darkness." When the Red Cross delegates "requested an explanation from the authorities the military intelligence officer in charge of the interrogation explained that this practice was 'part of the process.'"
"The ICRC medical delegate examined persons presenting signs of concentration difficulties, memory problems, verbal expression difficulties, incoherent speech, acute anxiety reactions, abnormal behavior and suicidal tendencies. These symptoms appeared to have been caused by the methods and duration of interrogation."
A spokeswoman for the Red Cross said the report had been based on private interviews with prisoners during 29 visits inspectors conducted in 14 places of detention in Iraq. The report also said that as far back as May 2003, the ICRC reported about 200 allegations of abuse to the military and in July complained about 50 allegations of abuse at a detention site, Camp Cropper in Iraq. The report called some of the abuses "tantamount to torture."
According to the Red Cross report, "certain military intelligence officers told the ICRC that in their estimate between 70 percent and 90 percent of the persons deprived of their liberty in Iraq had been arrested by mistake."
On May 17, 2004, the New York Times reported on the Red Cross's findings: "Many of 100 or so Iraqi prisoners categorized by American officials as 'high value detainees' because of the special intelligence they are believed to possess have been held since June 2003 for nearly 23 hours a day in strict solitary confinement in small concrete cells without sunlight, according to a report by the International Committee of the Red Cross" In its report to American officials last October 2003, the Red Cross said: 'The internment of persons in solitary confinement for months at a time in cells devoid of daylight for nearly 23 hours a day is more severe than the forms of internment provided for under the Geneva Conventions. The Bush administration has said it regards the Convention as 'fully applicable' to all prisoners held by the U.S. in Iraq."
On November 30, 2004, the New York Times reported: "The International Committee of the Red Cross has charged in confidential reports to the United States government that the American military has intentionally used psychological and sometimes physical coercion 'tantamount to torture' on prisoners at Guantanamo Bay, Cuba. The team of humanitarian workers, which included experienced medical personnel, also asserted that some doctors and other medical workers at Guantanamo were participating in planning for interrogations, in what the report called 'a flagrant violation of medical ethics.' Doctors and medical personnel conveyed information about prisoners' mental health and vulnerabilities to interrogators, the report said.
"The report of the June  visit said investigators had found a system devised to break the will of the prisoners at Guantanamo and make them wholly dependent on their interrogators through 'humiliating acts, solitary confinement, temperature extremes, use of forced positions.' Investigators said that the methods used were increasingly 'more refined and repressive' than learned about on previous visits. "The construction of such a system, whose stated purpose is the production of intelligence, cannot be considered other than an intentional system of cruel, unusual and degrading treatment and a form of torture.'"
Red Cross president Jakob Kellenberger complained about prison abuses in a mid-January 2004 meeting with Secretary of State Colin Powell, National Security Advisor Condoleezza Rice, and Deputy Defense Secretary Paul Wolfowitz. (New York Times, 5/11/04)
2. U.S. Military Investigations and Reports
a. Army Major General Taguba's Report (released February 2004). Taguba's report about his investigation into allegations of prisoner abuse at Abu Ghraib concluded that between October and December 2003 there were numerous instances of "sadistic, blatant, and wanton criminal abuses" at the prison. The Taguba report said that General Miller's recommendation of a guard force that "sets the conditions for the successful interrogation and exploitation of internees/detainees" violated Army doctrine. The report also stated that the military police had "no training in interrogation" and were told, in the words of Sergeant Javal Davis, to "loosen this guy up for us." "Make sure he has a bad night." "Make sure he gets the treatment."
Examples of prisoner treatment from the Taguba report include: "Breaking chemical lights and pouring the phosphoric liquid on detainees; pouring cold water on naked detainees; beating detainees with a broom handle and a chair; threatening male detainees with rape; allowing a military police guard to stitch the wound of a detainee who was injured after being slammed against the wall in his cell; sodomizing a detainee with a chemical light and perhaps a broom stick, and using military working dogs to frighten and intimidate detainees with threats of attack, and in one instance actually biting a detainee."
The CIA kept some detainees in Abu Ghraib prison off the official rosters. This practice of allowing what Major General Taguba called "ghost detainees" at the prison was "deceptive, contrary to Army Doctrine, and in violation of international law." He concluded that the purpose of this practice was to hide the prisoners from the Red Cross. (New York Times, 5/25/04)
b. Army report (New York Times, 5/26/04). "An Army summary of deaths and mistreatment involving prisoners in American custody in Iraq and Afghanistan shows a widespread pattern of abuse involving more military units than previously known. The cases from Iraq date back to April 15, 2003, a few days after Saddam Hussein's statue was toppled in a Baghdad square, and they extend up to last month, when a prisoner detained by Navy commandos died in a suspected case of homicide blamed on 'blunt force trauma to the torso and positional asphyxia...in many cases among the 37 prisoners who have died in American custody in Iraq and Afghanistan, the Army did not conduct autopsies and says it cannot determine the causes of death."
c. Defense Department account (New York Times, 12/8/04). "Two Defense Department intelligence officials reported observing brutal treatment of Iraqi insurgents captured in Baghdad last June , several weeks after disclosures of abuses at Abu Ghraib prison created a world-wide uproar, according to a memorandum disclosed Tuesday.
d. Schlesinger Panel. The "Independent Panel to Review Department of Defense Detention Operations," headed by James Schlesinger, Defense Secretary under President Nixon, released its report in August 2004.
According to an article about the Schlesinger panel report in the New York Times Book Review (1/23/05): "The abuses were not just the failure of some individuals to follow known standards, and they are more than the failure of a few leaders to enforce proper discipline. There is both institutional and personal responsibility at higher levels." The panel found that Defense Secretary Donald Rumsfeld, Chairman of the Joint Chiefs of Staff Richard Myers and Commander Central Command General John Abizaid should have known about and responded "to the serious limitations of the 800th Military Police Brigade at Abu Ghraib" and recognized the need for more and better-trained military police. The report also concluded that interrogation techniques approved by Rumsfeld for limited use at Guantanamo "migrated to Afghanistan and Iraq, where they were neither limited nor safeguarded."
"The Schlesinger panel has officially conceded, although the president has never publicly acknowledged, that American soldiers have tortured five inmates to death. Twenty-three other deaths that occurred during American custody had not been fully investigated by the time the panel issued its report."
e. Investigation by Major General George Fay and Lieutenant General Anthony Jones of the Abu Ghraib Detention Facility and 205th Military Intelligence Brigade (released in August 2004).
According to the New York Times (8/27/04): "This investigation found that certain individuals committed offenses in violation of international and U.S. law. Leadership responsibility and command responsibility, systemic problems and issues also contributed to the volatile environment in which the abuse occurredÖAt Abu Ghraib, isolation conditions sometimes included being kept naked in very hot or very cold, small rooms, and/or completely darkened rooms, clearly in violation of the Geneva Conventions."
The report included specific examples of prisoner treatment, including:
"In October 2003, Detainee-07, reported alleged multiple incidents of physical abuse while in Abu GhraibÖ.Detainee-07's claims of physical abuse (hitting) started on his first day of arrival. He was left naked in his cell for extended periods, cuffed in his cell in stressful positions ("High cuffed"), left with a bag over his head for extended periods, and denied bedding or blankets. Detainee-07 described being made to 'bark like a dog, being forced to crawl on his stomach while MPs spit and urinated on him, and being struck causing unconsciousness.' On another occasion Detainee-07 was forced to lie down while MPs jumped onto his back and legs. He was beaten with a broom and a chemical light was broken and poured over his body. During this abuse a police stick was used sodomize Detainee-07 and two female MPs were hitting him, throwing a ball at his penis, and taking photographsÖ.Based on the details provided by the detainee and the close correlation to other known MP abuses, it is highly probable Detainee-07's allegations are true."
This report also criticized Army medical staff members "who did not prevent or report abuses and torture." At a Pentagon press conference, General Fay told reporters, "There were a few instances when torture was being used."
A previously classified Annex to the Fay report blamed top Pentagon officials and senior military commanders for creating conditions that led to "acts of brutality and purposeless sadism" at Abu Ghraib. (The annex report was one of several documents released on March 10, 2005 in response to a Freedom of Information Act request by the American Civil Liberties Union.)
Classified parts of the Fay report were critical of Lieutenant General Ricardo Sanchez, the top commander in Iraq at the time. The report stated: "Policies and practices developed and approved for use on Al Qaeda and Taliban detainees who were not afforded the protection of the Geneva Conventions [see President Bush's decision of 2/7/02 in Reading 2] now applied to detainees who did fall under the Geneva Conventions' protections. Dogs as an interrogation tool should have been specifically excluded." It criticizes General Sanchez for not having fully considered "the implications for interrogation policy," and says the manner in which interrogators at Abu Ghraib used both dogs and isolations as interrogation practices "on some occasions clearly violated the Geneva Conventions."
f. Report by naval inspector general Vice Admiral Albert Church (March 2005).
This report was undertaken at the direction of Defense Secretary Rumsfeld, who called for an examination of interrogation techniques at prisons in Guantanamo, Afghanistan, and Iraq.
According to the New York Times (3/10/05): "Admiral Church's report criticizes senior American officials for failing to establish clear interrogation policies for Iraq and Afghanistan, leaving commanders there to develop some practices that were unauthorized, according to the report summary. But the inquiry found that Pentagon officials and senior commanders were not directly responsible for the detainee abuses, and that there was no policy that approved mistreatment of detainees at prisons in Afghanistan, Iraq, and Guantanamo Bay, Cuba."
The Church report also said that "none of the pictured abuses at Abu Ghraib bear any resemblance to approved policies at any level, in any theater."
g. Army Inspector General's Report (released 4/22/05).
Lt. General Richard Sanchez, the chief commander in Iraq from June 2003 to July 2004, and three other top officers overseeing prison policies and operations were cleared of responsibility for the abuse of prisoners. Brigadier General Janis Karpinski, an Army Reserve officer and commander of the military police unit at Abu Ghraib, was earlier relieved of that command and given a written reprimand. Anthony Romero, executive director of the American Civil Liberties Union, responded by stating, "It's just another effort to paper over the scandal."
(New York Times, 4/23/05)
3. FBI Reports
(From a New York Times report, 12/21/04). "FBI memorandums portray abuse of prisoners by American military personnel in Iraq that included detainees' being beaten and choked and having lit cigarettes placed in their ears, according to newly released government documents Beyond providing new details about the nature and extent of abuses, if not the exact times or places, the newly disclosed documents are the latest to show that such activities were known to a wide circle of government officials. The documents were in the latest batch of papers to be released by the government in response to a lawsuit brought by the American Civil Liberties Union and other groups to determine the extent, if any, of American participation in the mistreatment of prisoners. The documents are the most recent in a series of disclosures that have increasingly contradicted the military's statements that harsh treatment of prisoners happened only in limited, isolated cases."
1. Except for the investigations of the Red Cross, all inquiries into the treatment of prisoners have been conducted by the Pentagon or other official agencies of the U.S. government. Human rights organizations have called repeatedly for an independent, bipartisan investigation. But Congress has not responded to this call. Why do you suppose it has not?
2. What are "ghost detainees"? Why might the CIA not want the Red Cross to know about them? What conclusions, if any, do you draw about CIA methods of interrogation?
3. The Schlesinger report (Item #2b) found "There is both institutional and personal responsibility at higher levels." What "institution"? What do you suppose is meant by "higher levels"? To whom, specifically, do you suppose the report refers?
4. What "interrogation techniques" do you think the Schlesinger report refers to as having "migrated to Iraq"? Why do you suppose they "migrated"?
5. Compare the findings of the Church report with those of the Schlesinger and Fay reports. How do you explain the differences?
6. The words "torture" and "violation of the Geneva Conventions" appear in a number of the reports. Would you use these words in assessing what you know of American treatment of prisoners? Why or why not? None of the reports mentions "war crimes"? Would you? Why or why not?
7. Student questions?
Student Reading 4:
Responses to Investigations of Prisoner Treatment from the Bush Administration, Congress, and Human Rights Groups
1. May 4, 2004. Defense Secretary Rumsfeld said that "what has been charged so far is abuse technically different from torture."
2. May 7, 2004. Speaking before the Senate Armed Services Committee, Rumsfeld said: "These events [at Abu Ghraib] occurred on my watch. As secretary of defense, I am accountable for them and I take full responsibility. Watch how Americans, watch how a democracy deals with wrongdoing and with scandal and the pain of acknowledging and correcting our own mistakes and our own weaknesses."
3. May 13, 2004. Defense Secretary Rumsfeld said of the treatment of prisoners at Abu Ghraib: "It doesn't represent American values. We care about the detainees being treated right. We care about soldiers behaving right. We care about command systems working. The justice system of the United States is serious, professional, and it's under way."
4. May 24, 2004. President Bush said the events at Abu Ghraib as involving actions "by a few American troops who disregarded our country and disregarded our values."
5. June 10, 2004. According to a New York Times report of a June 10 news conference: "President Bush said he could not remember whether he had seen secret Pentagon and Justice Department legal opinions that concluded he had broad authority to determine what techniques could be used to interrogate unlawful combatants seized in Afghanistan. But he insisted several times that his only orders were that interrogators must 'conform to U.S. law' and act 'consistent with international treaty obligations.'"
6. March 2005: Porter Goss Testimony before the Senate Armed Services Committee. Under questioning at a hearing before the Senate Armed Services Committee, CIA Director Porter Goss "sought to reassure lawmakers that all interrogations 'at this time' were legal and that no methods now in use constituted torture," reported the New York Times (3/16/05).
"At this time, there are no 'techniques,' if I could say that are being employed that are in any way against the law or would meetówould be considered torture or anything like that," Goss told the committee. Several minutes later he was asked whether he could say same about techniques employed by the agency since the campaign against Al Qaeda expanded in the aftermath of 9/11. Goss responded: "I am not able to tell you that."
Senator John McCain (R-Arizona) asked Goss about the CIA's previously reported use of "waterboarding," in which a prisoner is made to believe that he will drown. Gross replied that the approach fell into "an area of what I will call professional interrogation techniques." Goss defended "professional interrogation" as an important tool in efforts against terrorism, saying that it had resulted in "documented successes" in averting attacks and capturing important suspects. (New York Times, 3/16/05)
1. Senator Carl Levin, Democrat of Michigan, a member of the Armed Services Committee (3/10/05): "So there's been no assessment of accountability of any senior officials, either within or outside the Department of Defense, for policies that may have contributed to abuses of prisoners." Levin said there is a problem when investigators (like Admiral Church) are "in the chain of command of the officials whose policies and actions they are investigating."
2. Senator Mark Dayton, Democrat of Minnesota, Armed Services Committee, 5/19/04): "We've now had fifteen of the highest-level officials involved in this entire operation, from the secretary of defense to the generals in command, and nobody knew that anything was amiss, no one approved anything amiss, nobody did anything amiss. We have a general acceptance of responsibility, but there's no one to blame, except for the people at the very bottom of one prison."
3. Rep. Jane Harman of California, senior Democrat on the House Intelligence Committee (6/8/04), referring to excerpts from one internal Bush administration memo on prisoner treatment, called the administration's views antithetical to American laws and values by arguing that torture may be justified and that the president is above the law in his role as commander-in-chief. This memo is shocking in that it appears to justify torturing prisoners in U.S. control, Harman said.
4. Sen. Joseph Biden, Democrat from Delaware, suggested that American military personnel could be in greater danger of torture because of the U.S. mistreatment (6/8/04). That's why we have these treaties. So when Americans are captured, they are not tortured. Thatís the reason, in case anybody forgets it. Biden noted that his son, Beau, is in training for the Delaware National Guardís judge advocate general office.
Human Rights Groups
1. Human Rights Watch
Through a Freedom of Information Act request, Human Rights Watch acquired an email message sent by the FBI to senior FBI officials. The email repeatedly referred to a presidential Executive Order that permitted military interrogators in Iraq to place detainees in painful stress positions, impose sensory deprivation through the use of hoods, intimidation with military dogs and use other coercive methods.
"U.S. President George W. Bush should fully explain why an FBI document suggests he authorized unlawful interrogation methods," said Kenneth Roth, executive director of Human Rights Watch. "The FBI email is not proof of a presidential order to commit unlawful acts, but it strongly suggests that U.S. interrogators thought they were working with the president's approval, It's no longer enough for Bush issue a simple denial. A real explanation is needed." Human Rights Watch noted that the email "was sent to senior members of the FBI on May 22, 2004, more than a year after the president reportedly disavowed the use of such interrogation methods at Guantanamo Bay. The email makes 11 references to an Executive Order 'signed by President Bush' that authorized these abusive interrogation techniques."
In response to the March 2005 testimony by CIA Director Porter Goss (see Item #8 in Bush administration documents above), Reed Brody, Special Counsel for Human Rights Watch said: "Waterboarding entails forcibly pushing a person's head under water until he believes he will drown. In practice, he often does. Waterboarding can be nothing less than torture in violation of United States and international law. Mr. Goss, by justifying the practice as a form of professional interrogation, renders dubious his broader claim that the CIA is not practicing torture today."
Human Rights Watch issued a report on April 22, 2005 stating that there was
"overwhelming evidence that U.S. mistreatment and torture of Muslim
prisoners took place not merely at Abu Ghraib, but at facilities throughout
Afghanistan and Iraq as well as at Guantanamo and at 'secret locations'
around the world in violation of the Geneva Convention and the laws against
torture." The group called for a special prosecutor to examine the conduct
of Secretary of Defense Donald Rumsfeld and the former director of central
intelligence, George Tenet, in matters related to the abuse of detainees.
Reed Brody, special counsel for Human Rights Watch, said, "This pattern of
abuse across several countries did not result from the acts of individual
soldiers who broke the rules. It resulted from decisions made by senior U.S.
officials to bend, ignore or cast the rules aside." (New York Times,
2. American Civil Liberties Union and Human Rights First
The American Civil Liberties Union and Human Rights First are asking a federal district court in Illinois to rule that Secretary of Defense Donald Rumsfeld violated the U.S. Constitution and international laws prohibiting torture and cruel, inhuman or degrading treatment or punishment. In their complaint the ACLU and Human Rights First charge that along with his subordinates, "Secretary Rumsfeld authorized, ratified and failed to stop the unlawful treatment of detainees in U.S. custody."
The ACLU charges that Secretary Rumsfeld violated the Fifth and Eighth Amendment prohibitions against torture or other cruel, inhuman or degrading treatment as well as his violations of the United Nations Convention Against Torture and the Geneva Conventions. The suit is being filed on behalf of eight individuals who were detainees in Afghanistan or Iraq and who claim to have been tortured and subjected to cruel, inhuman and degrading treatment.
3. United Nations Human Rights Monitor (released 4/22/05)
Cherif Bassiouni, an Egyptian appointed as the UN's human rights monitor for Afghanistan, accused American military forces and contractors in Afghanistan of "engaging in arbitrary arrests and detentions and committing abusive practices, including torture." He also said that detention conditions did not meet Geneva Convention standards. (New York Times, 4/23/05)
1. Do you agree with Secretary Rumsfeld's statement that the treatment of prisoners as of May 2004 was "technically different from torture"?
2. What, exactly, do you think Rumsfeld is referring to in his 5/7/04 statement about personal accountability and "full responsibility"? What would you expect the consequences to be if you admitted to "accountability" and took "full responsibility" for something you had done wrong? Have there been consequences that you know of for Secretary Rumsfeld?
3. What criticisms of the investigative reports do Senators Dayton, Levin make? How justified do you think they are and why? What criticism does Rep. Harman make? Is it justified? Do you agree with Sen. Biden that Bush administration policies, by in his opinion violating treaties on prisoner treatment, may endanger U.S. soldiers who are captured? Do you agree with him that this is why the U.S. should abide by such rules of war?
4. What is the basis for the ACLU suit against Secretary Rumsfeld? What do you think of it and why?
Student Reading 5:
"Extraordinary rendition" is a procedure in which foreign suspects are sent to another country for interrogation. In practice, suspects have been sent to countries with reputations for torturing prisoners.
1. The Case of Maher Arar
Maher Arar, a Canadian engineer who was born in Syria, was arrested at John F. Kennedy Airport on September 26, 2002. Jane Mayer reported the following in her article "Outsourcing Torture" in the New Yorker (February 14 /21, 2005). "He was changing planes; he had been on vacation with his family in Tunisia, and was returning to Canada. Arar was detained because his name had been placed on the United States Watch List of terrorist suspects. He was held for the next thirteen days, as American officials questioned him about possible links to another suspected terrorist. Arar, who was not formally charged, was placed in handcuffs and leg irons by plainclothes officials and transferred to an executive jet.
"The jet landed in Jordan. Arar said he heard the pilots and crew identify themselves in radio communications as members of 'the Special Removal Unit' he was driven to Syria, where interrogators, after a day of threats, 'just began beating on me.' They whipped his hands repeatedly with two-inch-thick electrical cables, and kept him in a windowless underground cell that he likened to a grave. 'Not even animals could withstand it,' he said. Although he initially tried to assert his innocence, he eventually confessed to anything his tormentors wanted him to say. 'You just give up,' he said. 'You become like an animal.'
"A year later, in October 2003, Arar was released without charges the Syrian ambassador in Washington announced that his country had found no links between Arar and terrorism. Arar, it turned out, had been sent to Syria on orders from the U.S. government, under a secretive program known as 'extraordinary rendition.' This program had been devised as a means of extraditing terrorism suspects from one foreign state to another for interrogation and prosecution. Arar is suing the U.S. government for his mistreatment. 'They are outsourcing torture because they know it's illegal,' he said. 'Why, if they have suspicions, don't they question people within the boundary of the law?'"
Asks David Cole in The Nation (3/21/05): "Why would the United States forcibly redirect this man's travels to send him against his will to Syria? If the Justice Department has its way, that question will never be answered. It has invoked a 'state secrets privilege' in the case, claiming that all information relating to why it sent Arar to Syria rather than his home country of Canada is highly classified and cannot be disclosed without endangering the nation's security. If the government prevails on this argument, extraordinary rendition—the practice of transferring suspects to foreign nations for coercive interrogations—will be literally beyond the law."
On February 16, 2006, U.S. District Judge David Trager dismissed Arar's lawsuit. In his opinion the judge wrote that "Arar's claim that he faced a likelihood of torture in Syria is supported by U.S. State Department reports on Syria's human rights practices." But, in ruling against Arar, he stated that the foreign policy and national security issues raised by the government were "compelling" and that such cases were in the jurisdiction of the executive branch, not the legislative or judicial.
Michael Ratner, president of the Center for Constitutional Rights, which filed the suit on Arar's behalf, said: "It's a shocking decision. It's really saying that an individual who is sent overseas for the purpose of being tortured has no claim in a U.S. Court." (Bob Herbert, "The Torturers Win," New York Times, 2/20/06)
On September 18, a Canadian government commission exonerated Maher Arar of any ties to terrorism in a strongly-worded report that criticized both Canada and the U.S. for his rendition to Syria. It faulted Canadian authorities for providing U.S. authorities with inaccurate information about him. But it also provided evidence that the FBI was told that they "had yet to complete a detailed analysis of Mr. Arar [and that] we are unable to indicate links to Al Qaeda."
The head of the commission, Justice Denis O'Connor said: "The American authorities who handled Mr. Arar's case treated Mr. Arar in a most regrettable fashion. They removed him to Syria against his wishes and in the face of his statements that he would be tortured if sent there." He also criticized U.S. authorities for not informing Canada about sending Arar to Syria.
Arar thanked the commission for clearing his name and added, "It is my hope that the U.S. government provides the people with a valid explanation of what happened. What does this do for the credibility of the U.S. government when it talks about protecting human rights?"
"In Washington, Attorney General Alberto Gonzales said he had not read the report, but said, 'We were not responsible for his removal to Syria,' adding, 'I'm not aware that he was tortured.'" (New York Times, 9/20/06)
In a radio interview Arar said, "The facts speak for themselves, you know. The report clearly concluded that I was tortured. And for him to say that he does not know about the case or does not know I was tortured is really outrageous." (New York Times, 9/21/06)
2. Other Renditions
Khaled el-Masri, a Lebanese-born German, was pulled from a bus on the Serbia-Macedonia border in December 2003 and flown to Afghanistan, where he said he was beaten and drugged. He was released five months later without being charged with a crime.
Mamdouh Habib, an Egyptian-born Australian, was arrested in Pakistan several weeks after the 2001 attacks. He was moved to Egypt, Afghanistan and finally Guantanamo.
Reported the New York Times (2/13/05): "Mamdouh Habib still has a bruise on his lower back. He says it is a sign of the beatings he endured in a prison in Egypt. Interrogators there put out cigarettes on his chest, he says, and he lifts his shirt to show the marks. He says he got the dark spot on his forehead when Americans hit his head against the floor at the prison at Guantanamo Bay, Cuba.
"Back home now, [after 40 months in prisons], Mr. Habib alleges that at every step of his detention—from Pakistan, to Egypt, to Afghanistan, to Guantanamo—he endured physical and psychological abuse. The physical abuse, he said, ranged from a kick 'that nearly killed me' to electric shocks administered through a wired helmet. In Afghanistan, he said, female soldiers 'touched me in the private areas' while questioning him. Three or four times, he said, when he was taken to an interrogation room, there were pictures doctored to make it appear that his wife was naked next to Osama bin Laden. He said that during one interrogation session, a woman wearing a skirt said to him, 'You Muslim people don't like to see women,' she said. Then she reached under her skirt, Mr. Habib said, pulling out what he described as a bloody stick. 'She threw the blood in my face,' he said."
3. Additional Documents on Extraordinary Rendition
President Bush. In an interview with the New York Times (1/27/05), President Bush said: "Torture is never acceptable, nor do we hand over people to countries that do torture."
President Bush stated (3/16/05): "In the post-9/11 world, the United States must make sure we protect our people and our friends from attack. That was the charge we have been given. And one way to do so is arrest people and send them back to their country of origin with the promise that they won't be tortured. That's the promise we receive. This country does not believe in torture. We do believe in protecting ourselves. We don't believe in torture."
CIA Director Porter Goss. Goss told Congress that the CIA has "an accountability program to monitor rendered prisoners. But he acknowledged that 'of course once they're out of our control, there's only so much we can do.'" (Washington Post, 3/17/05)
Former CIA Operative Michael Scheuer. Scheuer, quoted in the New York Times (3/11/05), said: "Regarding 'renditions': First, the agency [the CIA] is peculiarly an instrument of the executive branch. Renditions were called for, authorized and legally vetted not just by the National Security Council and the Justice Department, but also by the presidents—both Mr. Clinton and George W. Bush. In my mind these men and women made the right decision—America is better protected because of renditions. Second the rendition program has been a tremendous success. Dozens of senior Qaeda fighters are today behind bars. Third, if mistakes were made they should be corrected, but the CIA officers who followed orders should not be punished. Perfection is never attainable in the fog of war."
House of Representatives. On March 16, 2004, the U.S. House of Representatives overwhelmingly voted to forbid the use of supplemental appropriations that contradict anti-torture statutes. The bill singled out renditions. Representative Robert Markey, Democrat of Massachusetts, who co-authored the bill, said: "Diplomatic assurances not to torture are not credible and the administration knows it."
Washington Post, 3/1/05. "The State Department's annual human rights report released yesterday criticized countries for a range of interrogation practices it labeled as torture, including sleep deprivation for detainees, confining prisoners in contorted positions, stripping and blindfolding them and threatening them with dogs—methods similar to those approved at times by the Bush administration for use on detainees in U.S. custody. The State Department report also harshly attacked the treatment of prisoners in such countries as Syria and Egypt, where the United States has shipped terrorism suspects under a practice known as 'rendition.'"
New York Times, 3/6/05. "The Bush administration's secret program to transfer suspected terrorists to foreign countries for interrogation has been carried out by the Central Intelligence Agency under broad authority that has allowed it to act without case-by-case approval from the White House or the State or Justice Departments, according to current and former government officials. The unusually expansive authority for the CIA to operate independently was provided by the White House under a still-classified directive signed by President Bush within days of the September 11, 2001, attacks at the World Trade Center and the Pentagon, the officials said.
"Former government officials say that since the September 11 attacks, the CIA has flown 100 to 150 suspected terrorists from one foreign country to another, including to Egypt, Syria, Saudi Arabia, Jordan and Pakistan." [All of these countries have very poor human rights records and torture prisoners routinely.]
New York Times, 5/1/05. Although the State Department has declared that "Uzbekistan is an authoritarian state with limited civil rights" and both it and human rights groups have reported that torture in Uzbek jails is commonplace, there is strong evidence that the CIA is sending terror suspects there.
New York Times, 5/12/05. Human Rights Watch said it has documented 63 cases in which Islamic militants were sent to Egypt for interrogation and imprisonment and believes the numbers sent since 9/11 could be as high as 200. The organization's Middle East deputy director said, "Egypt's terrible record of torturing prisoners means that no country should forcibly send a suspect there" and that doing so was banned under international law.
1. What is meant by the term "extraordinary rendition"?
2. What evidence is there that the U.S. practices a policy of rendition?
3. What are the pros and cons of this policy?
4. What is the president's view of it?
5. What is your opinion of it and why?
Student Reading 6:
Additional Documents on Prisoner Abuse & Death
Ever since the public became aware of the Abu Ghraib photographs in late April 2004, there have been many revelations about prisoner abuse and death at U.S. detention centers in Iraq, Afghanistan and Guantanamo Bay, Cuba. Here are some of them.
Other Reports of Abuse
(All reports are from the New York Times, unless otherwise noted.)
5/5/04: Hayder Sabbar Abd, an Iraqi Shiite Muslim, was arrested in June 2003 and ended up several months later in Abu Ghraib. After he and six other men were involved in a jailyard fight, they were hooded. "They beat our heads on the walls and doors." He said his jaw had been broken, badly enough that he still has trouble eating. He thinks he was hit about 50 times during two hours. He was ordered to masturbate and said a female guard "was laughing, and she put her hands over her breasts. Of course, I couldn't do it. I told them that I couldn't, so they beat me in the stomach, and I fell to the ground. The translator said, 'Do it! Do it! It's better than being beaten'. So I put my hand on my penis, just pretending." This was followed by all of the men being piled in a pyramid while photographs were taken. Hayder Sabbar Abd said he was never interrogated and never charged with a crime. He was released in April 2004.
5/13/04: "In the case of Khalid Shaikh Mohammed, a high-level detainee who is believed to have helped plan that attacks of September 11, 2001, CIA interrogators used graduated levels of force, including a technique know as 'water-boarding,' in which a prisoner is strapped down, forcibly pushed under and water and made to believe he might be drowning."
9/10/04: "Army jailers in Iraq, acting at the Central Intelligence Agency's request, kept dozens of detainees at Abu Ghraib prison and other detention facilities off official rosters to hide them from Red Cross inspectors, two senior Army generals said Thursday. 'The number is in the dozens, to perhaps up to 100,' Gen. Paul J. Kern, the senior officer who oversaw the Army inquiry, told the Senate Armed Services Committee. Another investigator, Maj. Gen. George R. Fay, put the figure at 'two dozen or so,' but both officers said the could not give a precise number because no records were kept on most of the CIA detainees."
10/17/04: "Military guards, intelligence agents and others described in interviews with the New York Times a range of procedures [at Guantanamo Bay]. One regular procedure was making uncooperative prisoners strip to their underwear, having them sit in a chair while shackled hand and foot to a bolt in the floor, and forcing them to endure strobe lights and screamingly loud rock and rap music played through two close loudspeakers, while the air-conditioning was turned up to maximum levels. Such sessions could last up to 14 hours without breaks."
12/15/04: A report of an FBI agent who witnessed the condition of detainees is released. It reads: "On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves and had been left there for 18-24 hours or more. On another occasion the A/C had been turned off, making the temperature in the unventilated room probably well over 100 degrees. The detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his hair out throughout the night."
Reports on Deaths of Prisoners in American Custody
- 12/4/02, Bagram, Afghanistan: Autopsy showed blunt force injury to legs; investigation indicated military intelligence and the military police were involved.
- 6/6/03, Nasiriya, Iraq: Death certificate listed cause of death as homicide by strangulation.
- 11/4/03, Abu Ghraib prison, Iraq: Cause of death was a blow to the head and "compromised respiration." Died during an interrogation process by Navy Seals and CIA employees.
- 11/26/03, Al Qaim, Iraq: Detainee, an Iraqi major general, died during interrogation by military intelligence, after having been interrogated by CIA. An autopsy listed the cause of death in part as lack of oxygen due to smothering.
- 4/28/04, Baghdad area, Iraq: Death certificate lists cause as "multiple gunshot wounds with complications." (New York Times, 5/31/04)
- 3/16/05 (reported in New York Times): "At least 26 prisoners have died in American custody in Iraq and Afghanistan since 2002 in what Army and Navy investigators have concluded or suspect were acts of criminal homicide, according to military officials. The number of confirmed or suspected cases is much higher than any accounting the military has previously reported. Only one of the deaths occurred at the Abu Ghraib prison in Iraq, officials said, showing how broadly the most violent abuses extended beyond those prison walls and contradicting early impressions that the wrongdoing was confined to a handful of members of the military police on the prison's night shift."
- 3/12/05 (reported in New York Times): "Two Afghan prisoners who died in American custody in Afghanistan in December 2002 were chained to the ceiling, kicked and beaten by American soldiers in sustained assaults that caused their deaths, according to Army criminal investigative reports that have not yet been made public. The reports [were] obtained by Human Rights Watch. The reports from the Army Criminal Investigation Command, also make clear that the abuse at Bagram (40 miles north of Kabul) went far beyond the two killings.
"American military officials in Afghanistan initially said the deaths of Mr. Habibullah, in an isolation cell on December 4, 2002, and Mr. Dilawar, in another such cell six days later, were from natural causes. Lt. Gen. Daniel K. McNeill, the American commander of allied forces in Afghanistan at the time, denied then that prisoners had been chained to the ceiling or that conditions at Bagram endangered the lives of prisoners. But after an investigation by the New York Times, the Army acknowledged that the deaths were homicides.
"John Sifton, a researcher on Afghanistan for Human Rights Watch, said the documents substantiated the group's own investigations showing that beatings and stress positions were widely used, and that 'far from a few isolated cases, abuse at sites in Afghanistan was common in 2002, the rule more than the exception.'"
Student Reading 7:
Report of the UN Committee Against Torture
(May 18, 2006)
A United Nations committee made up of human rights experts from around the world periodically reviews the actions of the signers of the UN Convention Against Torture. Each signing nation must provide the committee with a report, which the committee considers as part of its review. In 2006, the Bush administration finally delivered its report to the committee, which had been due in November 2001. The U.S. sent a delegation of more than two dozen officials to Geneva in early May to present its legal case to the UN committee. On May 18, the committee issued its review of the U.S.'s report.
The UN committee welcomed the U.S. statement "that all United States officialsÖare prohibited from engaging in torture and are prohibited from engaging in cruel, inhuman or degrading treatment or punishment." It also "noted with satisfaction" a statement that the United States does not transfer persons to countries where it believes "it is more likely than not" that they will be tortured.
But the UN committee specifically rejected major points made in the Bush administration report. It also took issue with statements made by the administration's legal team, which had discussed the report with the committee. The UN committee stated that:
- The Bush administration definition of psychological torture does not adhere to Article 1 of the UN Convention Against Torture. The administration said that psychological torture is limited to "prolonged mental harm." But the Convention defines torture as "any act by which severe pain or suffering whether physical or mental, is intentionally inflicted."
- The Bush administration states that the Convention does not apply during times of armed conflict. But the Convention declares, "No exceptional circumstances whatsoever may be invoked as a justification for torture."
- The Bush administration states that the Convention applies to the U.S. only when it commits torture on U.S. territory. The UN committee states that according to the Convention's Article 2, it "applies in any territory under its jurisdiction."
- The Bush administration states that kidnappings and disappearances of individuals do not constitute torture. The UN committee states that U.S. "involvement in enforced disappearances" does constitute torture.
Additional UN committee criticisms of U.S. conduct:
1. U.S. failure to register all persons detained in territories under its jurisdiction,
"depriving them of a safeguard against torture."
2. U.S. "rendition of suspects, without any judicial procedure, to States where they face a real risk of torture."
3. The U.S. authorization in 2002 of "the use of certain interrogation techniques, which have resulted in the deaths of some detainees." The committee said that the U.S. should eliminate "methods involving sexual humiliation, 'water boarding,' 'short shackling' and "using dogs to induce fear."
4. "Reliable reports" that U.S. military or civilian personnel in Afghanistan and Iraq have committed "acts of torture or cruel, inhuman and degrading treatment or punishment," and "sexual assault," and other mistreatment of women, "including shackling women detainees during childbirth, and "lenient sentences" for those brought to justice.
5. "The difficulties certain victims of abuse have faced in obtaining redress and adequate compensation."
6. U.S. establishment of "secret detention facilities which are not accessible to the International Committee of the Red Cross." The "regrettable" policy of having "no comment" about the existence of such secret detention facilities.
7. Indefinite detentions of persons for long periods of time "without charge" and without other "legal safeguards"at Guantanamo Bay, a "violation of the Convention." The Guantanamo Bay detention center should be closed down, the UN committee said.
8. Inadequacy of "information, education and training provided to [U.S.] law enforcement or military personnel." The committee charged that this training failed to "focus on all provisions of the Convention, [especially] the prohibition of torture and the prevention of cruel, inhuman or degrading treatment."
The committee recommended that the U.S. "enact a federal crime of torture" and "investigate, prosecute and punish" American citizens who are guilty of torturing people overseas or domestically. Finally, the committee asks the U.S. for a report within one year on its recommendations. (The recommendations, however, are not binding.)
John Belling, the U.S. State Department's legal advisor, led the delegation that presented the administration's case to the UN committee. Belling told the New York Times that the UN committee's critical review "obviously causes us to question whether our extensive presentation was worth it. Unfortunately, I think the committee really had essentially written its report beforehand."
The executive director of Human Rights Watch, Kenneth Roth, called the committee's conclusions "a complete repudiation of virtually every legal theory that the Bush administration has offered for its controversial detention and interrogation policies." (5/20/06)
Addition: Report of United Nations Human Rights Committee, 7/28/06
After a two-day hearing on U.S. compliance with the International Covenant on Civil and Political Rights, a 1966 treaty, the UN Human Rights Committee reported:
- The U.S. report to the committee on its compliance with the treaty was seven years overdue.
- The committee objected to the U.S. interpretation that the treaty does not apply to detainees held outside the U.S. or in time of war.
- The committee was concerned that "credible and uncontested information" showed that the U.S. holds detainees secretly for months and years and that the International Committee of the Red Cross (ICRC) is not informed or given access to them and neither are their families. It said that the U.S. "should immediately abolish" all secret detention facilities" and grant "prompt access" to detainees by the ICRC.
- The committee was concerned about detainee treatment, "such as prolonged stress positions and isolation, sensory deprivation, hooding, exposure to cold or heat, sleep and dietary adjustments, 20-hour interrogations, removal of clothing as well as religious itemsÖand exploitation of detainees' individual phobias." It called for "immediate investigations into all allegations of suspicious deaths and torture" and complained about lack of oversight and punishment of those responsible for mistreating and torturing detainees.
- The committee called for the U.S. to allow Guantanamo, Cuba detainees a court review of their treatment and conditions of detention.
A teacher might want to consider forming small groups to consider the following:
The Bush administration submitted a report to the UN Committee Against Torture that was due almost five years before. Consider the report's major points and the committee's response to each. Based on your understanding of the UN Convention Against Torture, do you agree or disagree with the committee's rejection of each major point made by the Bush administration. Why or why not?
Consider the UN committees' additional criticisms of U.S. behavior. Based on your understanding of that behavior, what is your assessment of these criticisms? Examine each criticism. Is it fair? Unfair? Why or why not?
After you have read and discussed the UN committees' report, write a letter to President Bush and/or John Belling expressing your views and the reasons for them. If there is class consensus in its reaction to that report, a student committee could prepare drafts for class approval and the letters sent with the signatures of all class members who agree with it.
Student Reading 8:
"Torture is wrong because it inflicts unspeakable pain upon the body of a fellow human being who is entirely at our mercy. The tortured person is bound and helpless. The torturer stands over him with his instruments. The inequality is total. To abuse or kill a person in such a circumstance is as radical a denial of common humanity at possible. It is repugnant to learn that one's country's military forces are engaging in torture. It is worse to learn that the torture is widespread. It is worse still to learn that the torture was rationalized and sanctioned in long memorandums written by people at the highest level of the governmentÖ.Torture destroys the soul of the torturer even as it destroys the body of his victim. The boundary between humane treatment of prisoners and torture is perhaps the clearest boundary in existence between civilization and barbarism."
— Jonathan Schell, "What Is Wrong with Torture," The Nation, 2/7/05
"Behind the exotic brutality so painstakingly recorded in Abu Ghraib, and the multiple tangled plotlines that will be teased out in the coming weeks and months about responsibility, knowledge, and culpability, lies a simple truth, well known but not yet publicly admitted in Washington: that since the attacks of September 11, 2001, officials of the United States, at various locations around the world, from Bagram in Afghanistan to Guantanamo in Cuba to Abu Ghraib in Iraq, have been torturing prisoners...."
"This is what we know. The real question now, as so often, is not what we know but what we are prepared to do."
— Mark Danner, "The Logic of Torture," New York Review of Books, 6/24/04
1. What conclusions, if any, have you reached about whether or not Americans have tortured prisoners?
2. What conclusions, if any, have you reached about whether or not the tortures of prisoners are the acts of a few?
3. What conclusions, if any, have you reached about whether or not the U.S. has committed war crimes? If so, who should be charged with war crimes?
4. Do you agree with Schell's explanation about what is wrong with torture? Why or why not?
5. Having examined U.S. treatment of prisoners in some depth, students may still have questions. How might they be answered in independent and small-group inquiries?
Consider with students the final Mark Danner quote that concludes the materials. What are students prepared to do?
Is there a class consensus on prisoner treatment? If so, students might draft letters to their representative and their senators. What actions do students want them to take? Why?
Is the class satisfied with the investigations already made or pending? Why or why not? If not, the class might consider efforts to create an independent, bipartisan investigation of prisoner treatment. What might students do to promote such an investigation? Invite brainstorming on the subject. Consider such ideas as the following:
- Prepare a concise report to distribute to students and to parents.
- Work for a PTA meeting on prisoner treatment and the need for an independent investigation.
- Organize a schoolwide assembly on the subject with student and guest speakers.
- Plan and act on a program to involve students in other high schools.
- Continue to gather and report on additional findings about prisoner treatment.
Conduct a campaign to reach representatives and senators to include e-mails and visits to officials' offices.
Mark Danner: markdanner.com. Danner's website offers access to his recent articles and interviews; his book, Torture and Truth: America, Abu Ghraib and the War on Terror covers the subjects dealt with here in great depth and includes much documentation.)
American Civil Liberties Union: aclu.org The ACLU regularly releases additional information on prisoner treatment under the Freedom of Information Act.
Human Rights Watch: hrw.org. The site offers access to HRW's numerous articles on prisoner treatment as well as a timeline of events.
Amnesty International: amnesty.org Amnesty has a major program opposing torture; its website includes detailed information on torture at U.S. detention centers in Afghanistan, Iraq, Guantanamo and elsewhere as well as a manual on the treatment of prisoners)
New York Review of Books (including "Making Torture Legal," Anthony Lewis, 7/15/04)
New York Times
Other sources cited in the text
This sourcebook was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: email@example.com
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