U.S.: Appoint Abu Ghraib Commission

[struggle4progress]

(New York, July 16, 2004) — <snip>

“Two and a half months after the first pictures from Abu Ghraib, only a few low-ranking soldiers have been called to account,” said Kenneth Roth, executive director of Human Rights Watch. “There is growing evidence of a high-level policy of abuse. The world is still watching and waiting to see how the United States deals with these crimes.”

Important issues related to the treatment of detainees in the “war on terror” and in Iraq remain unanswered. These include: why inquiries into deaths in custody in Afghanistan and Iraq were so lackluster and late; why detainees were “rendered” to countries such as Syria, Egypt, and Saudi Arabia where torture is systematic; how the administration justifies holding detainees incommunicado in 'undisclosed locations' in light of the United States’ historical condemnation of forced 'disappearances' in other countries; what interrogation techniques were in fact approved for detainees held in Iraq, Afghanistan, and by the CIA (and whether they differed from those authorized at Guantanamo); and how senior officials square the coercive interrogation they have acknowledged authorizing with treaties barring cruel, inhuman and degrading treatment.

In addition, the administration has failed to answer key questions from members of Congress regarding the stepped-up hunt for “actionable intelligence” among Iraqi prisoners just before the most severe abuses at Abu Ghraib. Who in the Pentagon ordered Maj. Gen. Geoffrey Miller, the former commander at Guantanamo, to Abu Ghraib to overhaul interrogation practices, and with what instructions? What were Gen Miller’s recommendations? What practices were then approved for Abu Ghraib by Lt. Gen. Ricardo S. Sanchez, the senior U.S. military officer in Iraq? Which interrogation practices from Afghanistan were brought to Abu Ghraib? Who in the Pentagon knew of the interrogation practices put in place in Abu Ghraib?

Human Rights Watch called for Congress to create a special commission, along the lines of the 9/11 commission, to investigate the issue of prisoner abuse. Such a commission would hold hearings, have full subpoena power, and be empowered to recommend the creation of a special prosecutor to investigate possible criminal offenses. The commission would examine, among other things, the link between the administration policy discussions and memos and actual practices in Afghanistan, Iraq and Guantanamo.
<snip>

http://hrw.org/english/docs/2004/07/15/usint9077.htm



The Road to Abu Ghraib

<snip>
After the first reports of so-called “stress and duress” tactics against detainees appeared in the Washington Post in December 2002,13 Human Rights Watch called on President Bush to investigate and condemn allegations of torture and other cruel and inhuman treatment.14 In response, Department of Defense General Counsel William J. Haynes II stated that “United States policy condemns torture,” but he did not acknowledge that the United States also had a legal obligation to refrain from cruel, inhuman or degrading treatment. He also failed to address whether the United States was using the “stress and duress” techniques reported in the press.15 In June 2003, Senator Patrick Leahy wrote to National Security Advisor Condoleezza Rice asking if “stress and duress” techniques were being employed and urging the administration to issue a clear statement that cruel, inhuman, or degrading treatment of detainees will not be tolerated. Finally, in June 2003, in response to the Leahy letter, Haynes stated, correctly, that the Convention Against Torture prohibits (at the very least) interrogators overseas from using any technique that would be unconstitutional if employed in the United States.16 There is no evidence, however, that this message was ever conveyed to U.S. commanders in the field.

Rather, at the same time that the administration was publicly rejecting the use of torture or cruel, inhuman, or degrading treatment, it was apparently laying the legal groundwork for the use of just such tactics. The Washington Post hasreported that in August 2002, the Justice Department advised Gonzales, in response to a CIA request for guidance, that torturing al- Qaeda detainees in captivity abroad “may be justified,” and that international laws against torture “may be unconstitutional if applied to interrogations” conducted in the war on terrorism.17 The memo added the doctrines of “necessity and self-defense could provide justifications that would eliminate any criminal liability” on the part of officials who tortured al-Qaeda detainees. The memo also took an extremely narrow view of which acts might constitute torture. It referred to seven practices that U.S. courts have ruled to constitute torture: severe beatings with truncheons and clubs, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a prisoner to watch the torture of another person. It then advised that “interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law.” The memo suggested that “mental torture” only included acts that resulted in “significant psychological harm of significant duration, e.g., lasting for months or even years.”



The legal reasoning of the Justice Department memo re-appeared in an April 2003 memorandum from a working group appointed by Pentagon legal counsel Haynes that was headed by Air Force General Counsel Mary Walker and included senior civilian and uniformed lawyers from each military branch, and which consulted the Justice Department, the Joint Chiefs of Staff, the Defense Intelligence Agency and other intelligence agencies, according to the Wall Street Journal.18 They contended that the president was not bound by the laws banning torture. According to a draft of the classified memo, the lawyers argued that the president had the authority as commander in chief of the armed forces to approve almost any physical or psychological actions during interrogation, up to and including torture, in order to obtain “intelligence vital to the protection of untold thousands of American citizens.” The memo presented a number of legal doctrines, including the principles of “necessity” and “self-defense,” and the inherent powers of the president which could be used to evade the prohibition on torture. The memo advised that the president issue a "presidential directive or other writing" that subordinates charged with torture could use as evidence that their actions were authorized, since authority to set aside the laws in wartime is “inherent in the president.”

The Convention Against Torture provides, however, that “o exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”19 The International Covenant on Civil and Political Rights, which also bans torture and other mistreatment, considers the right to be free from torture and other cruel, inhuman or degrading treatment as nonderogable, meaning that it can never be suspended by a state, including during periods of public emergency.
<snip>

http://hrw.org/reports/2004/usa0604/index.htm

[mhr]

1. Why Appoint A Commission, Rush Said It Was Only Fraternity Hazing

[struggle4progress]

2. This sheds new light on compassionate conservatism! eom