Another report Engelhardt cites is one by Adrian Levy and Cathy Scott-Clark for the British Guardian. “They do what any good reporter should do,” he says. “They attempt to put together the pieces of the jigsaw puzzle, take in the overall picture, and then draw the necessary conclusions.” The conclusions are not encouraging:
Prisoner transports crisscross the country between a proliferating network of detention facilities. In addition to the camps in Gardez, there are thought to be U.S. holding facilities in the cities of Khost, Asadabad and Jalalabad, as well as an official U.S. detention center in Kandahar, where the tough regime has been nicknamed “Camp Slappy” by former prisoners. There are 20 more facilities in outlying U.S. compounds and fire bases that complement a major “collection center” at Bagram air force base …. More than 1,500 prisoners from Afghanistan and many other countries are thought to be held in such jails, although no one knows for sure because the U.S. military declines to comment.1
Their conclusion is speculation, but it may accurately reflect a future as disturbing as the recent past.
What has been glimpsed in Afghanistan is a radical plan to replace Guantánamo Bay. When that detention center was set up in January 2002, it was … beyond the reach of the U.S. Constitution and even the GC. That all changed in July 2004. The U.S. Supreme Court ruled that the federal court in Washington had jurisdiction to hear a case that would decide if the Cuban detentions were in violation of the U.S. Constitution, its laws or treaties …. Guantánamo was [soon] bogged down in domestic lawsuits. It had lost its practicality. So a global prison network built up over the previous three years, beyond the reach of American and European judicial process, immediately began to pick up the slack. The process became explicit … when the Pentagon announced that half of the 540 or so inmates at Guantánamo are to be transferred to prisons in Afghanistan and Saudi Arabia.
Conclusion
At both Guantánamo and Abu Ghraib, the ethical question is really the old one of whether the ends justify the means – in this case, whether, with only limited time to gain information that would save the lives of comrades in the field or to prevent “another September 11,” inhumane treatment during interrogation is justified. Although it does not say so, the Schlesinger panel suggests that in this scenario, treatment that does not cause permanent harm – inflicting pain to “teach a lesson” or when it becomes clear that information will not be divulged – is permitted under a “minimum harm rule” as suggested in the exchanges between the White House, Justice, and the Pentagon.
Such ambiguity begs the question of how and where to draw the line for “minimum” or “allowable” harm beyond which interrogation will not proceed. The psychologies of power, friendship, nationality, and hatred, all of which come into play in interrogations, can best be constrained by clear lines between allowed and prohibited actions. The drawing of those lines should not be left to any single country or be attempted during hostilities when passions can warp judgment. Yet the Schlesinger report implies that this is the prerogative of the U.S. as it admonishes the ICRC to update its thinking to face “new realities.”
The President has repeatedly told the public that, after September 11, 2001, the U.S. confronted a new reality. But there is an even newer reality that the nation faces as a result of the Iraq war and the “post-war” insurgency: the fact that war can bring out the very worst as well as the best. What is most distressing are the growing numbers of U.S. military personnel standing trial not for abuse but for murder.
All of which points to the observation of the great Roman philosopher-general-emperor, Marcus Aurelius, as the solely acceptable rule of conduct: “If it is not right do not do it; if it is not true do not say it.”
1. Scott Horton, currently chairman of the Committee on International Law of the New York branch of the American Bar Association, confirmed to the author in a September 15, 2004, conversation that he met personally with the Service Judge Advocates General (JAGs) who went to see him in May of 2003. At the time he chaired the Association's Human Rights Committee.
2. Among the papers released were only three of the 23 requested by Senators, and none dealt with techniques used by the Central Intelligence Agency (CIA), which is conducting its own internal investigation. The documents made public at that time are:
- a January 22, 2002, memo from Department of Justice (DoJ) Assistant Attorney General Jay Bybee to White House Counsel Alberto Gonzales and Department of Defense (DoD) General Counsel William Haynes. The memo held that Afghanistan was a “failed state” and that this gave the President grounds to “suspend” U.S. obligations to Afghanistan under international treaties – including the GC;
- a February 1, 2002, letter from Attorney General John Ashcroft to President Bush outlining two options justifying the position that the GC did not apply to either Taliban or al-Qaeda fighters in U.S. custody. One option was deemed to offer more conclusive “protection” against interventions by U.S. courts;
- a February 7, 2002, DoJ memo (Bybee) to White House Counsel Gonzales stating that the President could issue a “determination” that captured Taliban were not entitled to prisoner-of-war status;
- a February 7, 2002, memo from the President in which he claims the right to withhold Geneva Convention guarantees from captured Afghan fighters but decides not to apply his decision “at this time”;
- a February 26, 2002, DoJ memo (Bybee) to DoD (Haynes) concerning applicability of constitutional protections in a court of law to prisoners' statements made during interrogation;
- an August 1, 2002, DoJ memo (Bybee) to White House Counsel Gonzales advising that interrogation methods employed against al-Qaeda captives would not contravene the Convention against Torture and were not subject to the jurisdiction of the International Criminal Court;
- an August 1, 2002, DoJ memo (Bybee) to White House Counsel Gonzales asserting that under certain conditions, torture of suspected terrorists could be “legally defended.” (When these documents were made public on June 22, 2004, the Department of Justice disavowed this memo);
- a December 2, 2002, DoD memo (Haynes), approved by Secretary of Defense (SECDEF) Donald Rumsfeld, specifying interrogation methods that could be employed against detainees at Guantánamo Bay;
- a January 15, 2003, DoD memo (Rumsfeld) to the Commander, U.S. Southern Command, rescinding the December 2, 2002 memo's standing approval to employ some interrogation methods at Guantánamo, but permitting special requests to use more coercive techniques for specific prisoners if the request is meticulously justified;
- a January 15, 2003, DoD memo (Rumsfeld) to General Counsel Haynes directing him to assemble a working group to review all policies relating to interrogations;
- a January 17, 2003, DoD memo (Haynes) to the USAF General Counsel appointing her as chairwoman of the working group requested by Rumsfeld;
- an April 4, 2003, DoD report by the working group, including recommendations on what methods to allow;
- an April 16, 2003, DoD memo (Rumsfeld) to Commander, U.S. Southern Command reaffirming interrogation methods approved for routine use at Guantánamo and methods whose use required his specific assent;
- an undated one-page list of interrogation techniques approved and employed at Guantánamo provided to media on June 22, 2004.
All of these documents can be accessed online at http://www.washingtonpost.com/wp-dyn/articles/A62516–2004Jun22.html.
1. In oversimplified terms, “deconstruction” is the process of textual analysis to uncover all possible meanings by re-arranging relationships (e.g., relative importance) among structural elements, and then non-judgmentally, and non-hierarchically, highlighting the differences. (Wags assert that the process theoretically produces unlimited variations and outcomes leading to an infinity of meanings – which is to say the result is meaningless.)
1. Elsewhere, the Justice Department memo is inherently contradictory. On one hand, it contends that an act taken out of the context in which it occurs would be “diff
icult” to brand as torture. Yet it lists objectively (without context) seven techniques that the courts have ruled to be torture regardless of context.
1. Independently but also on January 4, 2005, more than 225 religious leaders voiced “grave concern” about Bush's choice, insisting that the nominee “denounce the use of torture under any circumstances.”
1. This FOIA request resulted in the delivery of 1200 pages of documents, including, according to the Independent, reporting on April 3, 2005, “reports of brutal beatings and sworn statements that soldiers were told to 'beat the f*** out of' prisoners.'” ACLU's FOIA lawsuit was joined by Physicians for Human Rights, Veterans for Common Sense, Veterans for Peace, and the Center for Constitutional Rights. The ACLU and other advocacy groups have obtained over 30,000 pages of documents concerning abuses through a Freedom of Information Act lawsuit, online at www.aclu.org/torturefoia. An update on the status of the lawsuit from the Center for Constitutional Rights noted, in late January 2005, that thousands more pages were to be expected in the following months.
2. AI, Human Dignity Denied: Torture and Accountability in the “War On Terror,” AI Index No. AMR 51/145/2004, October 27, 2004, p. 172. The requested techniques were largely approved (with several of those noted reserved for specific, case-by-case approval) by the DoD memo of December 2, 2002 (vide supra, p. 510, note 2). It is worth pointing out that the Haynes memo said that “all Category III techniques [i.e., those that were reserved for case-by-case approval] may be legally available.”
1. Tim Golden, “In U.S. Report, Brutal Details of 2 Afghan Inmates' Deaths,” New York Times, May 20, 2005, online. Golden points out what he calls a “final horrific detail” of Dilawar's death: “Most of the interrogators had believed Mr. Dilawar was an innocent man who simply drove his taxi past the American base at the wrong time.”
2. Ibid.
1. “America's Shame, Two Years on from 'Mission Accomplished,'” The Independent, May 9, 2005, online.
2. Another noteworthy report regards a Swedish parliamentary investigation into the clandestine transport of two Egyptian terrorist from Sweden to Egypt by the CIA. See Craig Whitlock, “New Swedish Documents Illuminate CIA Action,” Washington Post, May 21, 2005 online.
1. Frank Davies, “Report on Prisoner Abuse Raises Questions of Accounrability,” Knight Ridder, March 10, 2005, online.
1. Ibid.
2. American Bar Association, Report to the House of Delegates, August 9, 2004.
1. See the text of the letter at the website for the Democratic Members of the House Committee on the Judiciary (http://www.house.gov/judiciary_democrats/letters/agspe-cialcounseltortureltr51205.pdf).
1. U.K. Intelligence and Security Committee, The Handling of Detainees by U.K. Intelligence Personnel in Afghanistan, Guantánamo Bay, and Iraq, March 2005, para. 47, quoted by AI, Guantánamo and Beyond: The Continuing Pursuit of Unchecked Executive Power, AI Index No. AMR 51/063/2005, May 13, 2005, p. 90 [vide infra, p. 698, note 1, for URL—Ed.].
2. Golden, loc. cit., and Tim Golden, “Army Faltered in Investigating Detainee Abuse,” New York Times, May 22, 2005, online.
3. Michiko Kakutani, “Following a Paper Trail to the Roots of Torture,” New York Times, February 8, 2005.
1. ” … everyone does not go on to another post,” he said; “… [I]t gets tight at the top. And he is clearly a person in an important position at the present time; has been in the past, and he's a person who would be considered in the future.” See Defense Department Briefing with Secretary of Defense and Gen. Richard Myers, Chairman of the Joint Chiefs of Staff, April 26, 2005 (http://www.defenselink.mil/transcripts/2005/tr20050426-secdef2601.html).
2. Josh White, “Top Army Officers Are Cleared in Abuse Cases,” Washington Post, April 23, 2005, p. A1.
1. Seymour Hersh, Chain of Command: The Road From 9/11 to Abu Ghraib (New York: HarperCollins, 2004), p. 70.
2. American Civil Liberties Union, “ACLU Denounces Internal Army Review of Abuses,” April 23, 2005 (http://www.aclu.org/SafeandFree/SafeandFree.cfm&ID=18098&c=206).
3. White, loc. cit.
4. Ibid.; see also Reuters, “U.S. Officer Blames Superior over Abu Ghraib Abuse,” San Diego Union-Tribune, May 12, 2005, online.
5. Dave Moniz, “Gen. Karpinski Demoted in Prison Scandal,” USA Today, May 5, 2005, online.
1. Ibid.
2. White, loc. cit.
3. Moniz, loc. cit.
4. Peter Grier, “The Image War Over U.S. Detainees,” Christian Science Monitor, June 6, 2005, online.
1. Lisa Burgess, “Colonel in Charge of Interrogators Is Punished in Abu Ghraib Scandal,” Stars and Stripes, May 12, 2005, online.
2. “Patterns of Abuse,” New York Times, May 23, 2005, online.
1. Janis Karpinski, Interview with Leon Worden, The Signal, July 4, 2004, online.
2. Ibid.
3. Ibid.
1. Mary Hall, a former military judge, was quoted in a Christian Science Monitor piece to the effect that the Abu Ghraib courts-martial “are a blunt reminder to even the newest private that they have a duty to just say 'no” (Faye Bowers, “Abu Ghraib's Message for the Rank and File,” May 6, 2005, online). Which raises the question: should have said “no” to what?
2. Phillip Carter, “The Road to Abu Ghraib,” Washington Monthly, November, 2004, online.
3. Ibid.
4. Lt. Gen. Randall Schmidt and Brig. Gen. John Furlow, Final Report, Investigation into FBI Allegations of Detainee Abuse at Guantánamo Bay, Cuba, Detention Facility, April 1, 2005, p. 1.
1. Ibid., p. 20.
2. Associated Press, “Investigators Recommended Disciplining Gitmo Commander,” CNN International, July 13, 2005, online.
3. Ibid.
4. Tim Golden, “Abuse Cases Open Command Issues at Army Prison,” New York Times, August 8, 2005, online; see also Golden, “In U.S. Report,” loc. cit.
1. Bowers, loc. cit.
2. Eric Schmitt, “In New Manual, Army Limits Tactics in Interrogation,” New York Times, April 28, 2005, online.
3. Scott Horton, report to the German Federal Prosecutor, January 28, 2005, online (vide infra, note 48).
4. John Barry, Michael Hirsh, and Michael Isikoff, “The Roots of Torture,” Newsweek, May 24, 2004, online.
5. Jeffrey R. Smith, “Memo Gave Intelligence Bigger Role,” Washington Post, May 21, 2004, p. A17.
6. Andrea F. Siegel, “Prison in Iraq Imported Interrogation Methods, Former Warden Testifies,” Newsday.com, July 28, 2005.
1. Horton, loc. cit.
2. Ibid.
3. Karpinski, loc. cit.
4. Schlesinger, op. cit., p. 9.
5. See the comment made by an Army Staff Sgt. in response to a reprimand he received in November 2003 for failing to properly supervise soldiers conducting detainee operations: “Comments made by senior leaders regarding detainees, such as 'They are not [POWs]. They are terrorists and will be treated as such … ' have caused a great deal of confusion as to the status of the detainees” (quoted by AI, Guantánamo and Beyond, op. cit., p. 29).
1. Golden, “In U.S. Report,” loc. cit., explains how, “with President Bush's final determination in February 2002 that the Conventions did not apply to the conflict with al-Qaeda and that Taliban fighters would not be accorded the rights of prisoners of war, the interrogators believed they 'could deviate slightly from the rules,'” according to a Utah Army reservist, Sgt. James A. Leahy. “There was the Geneva Conventions for enemy prisoners of war, but nothing for terrorists,” Leahy told Army investigators. Golden notes also that senior intelligence officers said that detainees “were to be considered terrorists until proved otherwise.”
2. “The Torture Line,” Boston Globe, May 21, 2005, online. [See also the clear discussion of this point by Gabor Rona in the article on pp. 421–441 of the present volume.—Ed.]
3. Karpinski, loc. cit.
4. Seymour Hersh, “The Grey Zone,” The New Yorker, May 24, 2004, online.
5.
Ibid.
1. Hersh, Chain of Command, p. 52.
2. Hersh, “The Grey Zone,” loc. cit.
3. Alexander Cohen, “The Abu Ghraib Supplementary Documents,” Center for Public Integrity Special Report, October 8, 2004 (http://www.publicintegrity.org/report.aspx?aid=396&sid=100).
4. “Graner Gets Ten Years,” CBS News/Associated Press, January 15, 2005, online.
1. Hersh, “The Grey Zone,” loc. cit.
2. Ibid.
3. Ibid.
4. Hersh, Chain of Command, p. 47.
5. Hersh, “The Grey Zone,” loc. cit.
1. Karpinski, loc. cit.
2. Ibid.
3. Douglas Jehl and Andrea Elliott, “Cuba Base Sent Its Interrogators to Iraqi Prison,” The New York Times, May 29, 2004, online.
4. Karpinski, loc. cit.
1. Ibid.
2. A New York Times report, “Afghan Policies on Questioning Prisoners Taken to Iraq,” by Douglas Jehl and Eric Schmitt, dated May 21, 2004, available online, confirmed that “Colonel Pappas … moved his headquarters to Abu Ghraib in September and was the top Army officer at the prison.”
3. Karpinski, loc. cit.
4. Ibid.
5. Ibid.
1. Cohen, loc. cit.
2. Mark Danner, Torture and Truth; America, Abu Ghraib and the War on Terrorism (New York: The New York Review of Books, 2004), p. 33, quoted by Human Rights Watch, Getting Away with Torture?, April 2005, online.
3. Tom Bowman, “General Faces Abu Ghraib Scrutiny,” Baltimore Sun, July 15, 2004, online.
4. Douglas Jehl and Eric Schmitt, “Afghan Policies on Questioning Prisoners,” loc. cit.; see also the report by Lt. Gen. Anthony R. Jones and Maj. Gen. George R. Fay, Investigation of Intelligence Activities at Abu Ghraib, August 23, 2004, p. 21. Tim Golden also confirms the role of the operations officer leading interrogations at Bagram in Afghanistan, Army Capt. Carolyn A. Wood, in exporting techniques from there to Abu Ghraib, where she was sent in July 2003 after serving at Bagram for a year. See Golden, “In U.S. Report,” loc. cit.
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