On June 18th, the Associated Press reported that UN Secretary General Kofi Annan delivered a letter to members of the UN Security Council urging the opposition to a resolution extending exemption from war crimes prosecution for US military personnel and officials. According to the story, Annan’s letter cited the Abu Ghraib atrocities as a central concern. Annan doubted if the exemption was legal and described passage of such a resolution as an "unfortunate signal" to send "particularly at this time." All signs indicated that the exemption would not be granted. Scrutiny of how the atrocities at Abu Ghraib became, in the words of a confidential January 2004 report by the International Committee of the Red Cross, "a practice tolerated by the CF [coalition forces]" rather than "exceptional" reveals how the Bush administration conducted an American crusade of torture.
Bush called for and received UN exemptions from war crimes prosecutions originally in 2002 and had it renewed in 2003. The Bush administration brought enormous pressure bear on other members of the UN Security Council to obtain this measure. To achieve passage, Bush vetoed a UN peacekeeping mission in Bosnia in 2002 and urged congressional leaders to withhold funding for other UN missions, threatening to continue to block future UN operations. The exemption was extended in July of 2003 despite heavy lobbying by human rights groups to the contrary. It is set to expire at the end of June.
Many critical observers linked the demand for exemption with a perceived systematic "assault" on the International Criminal Court (ICC). President Clinton signed the 1998 Rome Treaty establishing the ICC on his last day in office. Since then Bush "has renounced the Clinton administration's signing of the treaty and has set out to cripple this new institution," Eric Schwartz argued in the Boston Globe in 2002. Bush formally withdrew from the treaty in May of 2002.
Bush claimed that the Rome Treaty, ratified by 94 countries at this point, would lead to frivolous or politically motivated war crimes prosecutions against US military and political officials. Supporters of the treaty say it contains numerous safeguards against this. For example, if a US national is accused of a war crime, that person could be tried in the US and avoid prosecution by the ICC.
Commenting in the Miami Herald, Andrew Reding speculated presciently that Bush’s campaign against the treaty meant "that the White House wishes to reserve the right to support the use of terror against foreign countries when it serves US objectives." Reding noted Haitian terrorists given safe harbor in the US who have since returned to Haiti to lead a coup sponsored by the Bush White House and the Republican Party against the democratically elected Aristide.
Legal expert, Marjorie Cohn, took another view. The war on Iraq itself might be considered a violation of the UN Charter and deemed a "crime of aggression" under the Rome Treaty's provisions. This worries the Bush administration the most, in her view.
It was also widely speculated that the Bush administration was protecting particular individuals such as Henry Kissinger who has been subjected to criminal charges in various countries for his role in the 1973 overthrow of Salvador Allende in Chile.
Because most of this commentary appeared months and years before the release of the photo evidence of the atrocities at Abu Ghraib, the commentators who I surveyed don’t highlight the use of torture. The Bush administration’s desire to use torture is missing as an explanation for the campaign against the treaty despite the fact that numerous human rights organizations have provided documentary and testimonial evidence of prisoner abuse since as early as 2002.
If the prisoner abuse scandal were isolated to a handful of "rogue" individuals, the US could prosecute them and they would avoid an intervention by the ICC, according to the Rome Treaty’s provisions. But as the evidence mounts that top Pentagon, Justice Department, and intelligence officials authorized treatment of prisoners that are direct violations of the Geneva Conventions the chances of the US government handing down indictments are growing slimmer.
In fact, when Democrats on the Senate Judiciary Committee called for a subpoena of all Justice Department documents related to this issue, including "any and all orders, directives, instructions, findings or other writings signed by Bush or on his behalf," the Republican majority on the committee voted the measure down. Senator Patrick Leahy (D-VT) described the vote and the refusal of the Justice Department to hand over documents willingly as a "brazen sign of a cover-up."
Evidence of the mistreatment of prisoners dates back to 2002 to the detention facilities at Guantanamo Bay, Cuba and various sites in Afghanistan. The media made no connection, however, between reports of mistreatment and the policy of defining detainees as outside the relevant provisions of the Geneva Conventions and other international agreements at least not until more recent exposures of the Pentagon, White House, Justice Department, and CIA discussions of such a policy.
A report recently published by Human Rights Watch, "The Road to Abu Ghraib," quoted Defense Secretary Donald Rumsfeld, as early as 2002, after denying that prisoners held at Guantanamo Bay have POW status, as stating, "Unlawful combatants do not have any rights under the Geneva Convention." In an effort to set aside the Geneva Conventions’ provisions for the treatment of prisoners, Rumsfeld glibly remarked that the US military would "for the most part, treat them in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate." But, Rumsfeld was clear that he did not consider the Geneva Conventions relevant.
Rumsfeld’s attitude about detention status wasn’t simply tough rhetoric for suspected terrorists. The claim that prisoners "do not have any rights" was created to justify a new secret expanded list of acceptable methods of interrogation and treatment of prisoners previously regarded as violations of the Geneva and other international human rights conventions. According to the Washington Post, it is known that as early as December 2002, Rumsfeld personally ordered expanded interrogation tactics that violate international conventions of prisoner treatment.
Rumsfeld’s view was supported by the Justice Department, which, in an August 2002 memo to Alberto Gonzales, Bush’s chief legal counsel, indicated its belief that "harsh interrogation" methods might be considered war crimes if the prisoners were held to be fully protected by the Geneva Conventions. In the memo written at the behest of the CIA and the White House, which was first publicized by the Washington Post, one finds Justice Department lawyers quibbling over torture and "rough treatment." Distinctions over the words "extreme pain" and "severe pain" in defining torture are highlighted the latter wouldn’t constitute torture in the view of the Justice Department memo. In the process of producing this argument, Justice Department lawyers created a category of "rough treatment" that, if they could be shown not to have been intended to inflict intense pain or permanent physical or mental harm, were not prosecutable. In other words, "here is a list, Mr. President," they said, "of what we think you ought to be able to get away with."
According to Newsweek, this report was drafted and analyzed, with participation from Pentagon lawyers, at the request of the CIA, which wanted to avoid public recrimination over interrogation methods adopted by the Bush administration. CIA officials sought "written authorization from lawyers and senior policymakers" before implementing techniques that came to be outlined in the Justice/Gonzales memo.
The memo goes even further than simply what kinds of severe treatment it considered to be legal. It advises that US law (including adherence to international treaties) cannot be construed "as infringing on the President’s ultimate authority" to "detain and interrogate" and "determine the interrogation and treatment" of suspects in the "war on terror." The claim is that the interrogation of prisoners is no different than other battlefield decisions relegated to the president, and this puts him above the law on the issue of the treatment of prisoners. Further, executive officials do not have to comply with congressional subpoenas to provide testimony on these issues as that violates the president’s authority to make these decisions. Of greater significance, the Department of Justice "could not bring criminal prosecution on a defendant who had acted pursuant to the exercise of the President’s constitutional power."
The upshot of this memo’s argument is that the president has the power to determine "rough treatment" as long as it is not "extreme," and he has the authority to keep it secret. When Attorney General John Ashcroft testified in early June before the Senate Judiciary Committee on the release of this memo, he seemed to invoke a protection for his silence on these matters based on the memo’s argument. Despite Bush’s own attempt to sidestep media questions about whether he adopted the memo’s argument as policy, it was put into practice in the military prisons in Guantanamo, Afghanistan, and in Iraq. The advice provided by the Justice Department memo was accepted by Rumsfeld later in 2002 and codified by the Department of Defense in March 2003, according to a memo leaked to and published by the Wall Street Journal. If Bush didn’t adopt this torture policy, shouldn’t he be outraged that it was even considered let alone adopted by various cabinet departments? Either administration officials feel free to pursue illegal policies that are not approved by the president, or he is lying when he claims to have opposed prisoner mistreatment.
While the Bush administration scrambles to cover itself, it appears that a small handful of low-level military personnel will pay criminal penalties for having been caught in the act. The immunity from prosecution described in the Justice/Gonzales memo has proven to be a public relations failure, even though Rumsfeld initially attempted to argue to Matt Lauer of NBC’s Today Show that Geneva Conventions’ rules did not apply to Iraq either.
The memos’ implications are that the Bush administration’s stated outrage over the mistreatment of prisoners at Abu Ghraib lacks credibility. After expending all of those resources to create what it called a set of legal detention, treatment, and interrogation methods, why would the Bush administration need to be outraged? Why would it condemn the actions of a few rogue military police at Abu Ghraib as deplorable and contrary to "American values," if they were complying with methods and techniques declared legal by the Department of Justice and the Department of Defense? Why not assert their immunity from prosecution based on their compliance with the president’s Constitutional power to define the treatment of detainees? Clearly the feigned outrage resulted from national and international condemnation and a perceived blow to the administration’s credibility on the whole. Along with hastily thrown together Pentagon "investigations" of atrocities, such self-serving denunciations from the Bush administration are a weak attempt at cover.
As it turns out, Bush himself only publicly denounced the torture policy, just as it became clear in the summer of 2003 to many military and administration officials that the atrocities at Abu Ghraib could not be prevented from going public. According to a confidential International Committee of the Red Cross report dated January 2004, a study of violations at various sites in Iraq covered the period from March 2003 (the start of the war) to November 2003. The results of the study were periodically handed over to the US military forces with recommendations on curbing illegal mistreatments of prisoners. The report states that the ICRC brought their findings "on several occasions orally and in writing" to the military authorities in Iraq. A persistent failure to comply led a frustrated ICRC to regard the mistreatment and torture policy to acceptable to the US military authorities. And despite all of the official quibbling over "extreme," "severe" or "rough" treatment in Washington, the ICRC concluded emphatically that the "practices described in this report are prohibited under International Humanitarian law."
ICRC reported "brutality against protected persons sometimes causing death or serious injury," physical ad psychological coercion during interrogation, prolonged solitary confinement in the dark, excessive use of force, holding prisoners unprotected in fighting zones, and more. The US military investigation of atrocities at Abu Ghraib, compiled in the Taguba Report, looking at incidents between October and December of 2003, noted such acts as: "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."
Other unofficial human rights organizations had a longer history of exposing the administration’s new prisoner treatment and interrogation policies. They held more widely accepted definitions of POW and the protections provided by the Geneva Conventions (and other international frameworks) for POWs and non-POW detainees. Human Rights Watch, for example, took issue with the administration’s claim that detainees held at Guantanamo Bay, most of whom were captured as a result of military action in Afghanistan were not subject to certain portions of the Geneva Conventions governing torture and mistreatment. In "The Road to Abu Ghraib," HRW argued, "Belligerents captured in the conflict in Afghanistan should have been treated as POWs unless and until a competent tribunal individually determined that they were not eligible for POW status."
Al Qaeda suspects not captured as a result of military actions and not afforded POW status still had protections from abuse and should have been afforded some basic rights. "Such protections include," said HRW, "the right to be free from coercive interrogation, to receive a fair trial if charged with a criminal offense, and, in the case of detained civilians, to be able to appeal periodically the security rationale for continued detention." In other words, they had some basic rights afforded to criminal suspects and should have been treated as such.
Amnesty International, in a letter to the Bush administration in March of 2002, agreed with this concept. It pointed out that "international law and standards provide that all persons who are arrested or detained should be informed immediately of the reasons for the detention and notified of their rights, including the right of prompt access to and assistance of a lawyer; the right to communicate and receive visits; the right to inform family members of the detention and place of confinement; and the right of foreign nationals to contact their embassy or an international organization." The US, argued Amnesty, had promised to guarantee these rights when it ratified the International Covenant on Civil and Political Rights (ICCPR) in 1992 and the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, approved by the United Nations General Assembly in 1988.
Amnesty followed this letter one month later with a forceful denunciation of the treatment of detainees at Guantanamo Bay. "International law has been flouted from the outset," wrote Amnesty. "None of the detainees was granted prisoner of war status nor brought before a competent tribunal to determine his status, as required by the Third Geneva Convention. None has been granted access to a court to be able to challenge the lawfulness of his detention…. Detainees have been denied access to legal counsel and their families." Amnesty then forewarned with what turned out to be correct foresight that "When a state …adopts a selective approach to international law and standards, the integrity of those standards is eroded."
Early in 2002, Amnesty focused its attention on prisons in Afghanistan as well. It argued that the US "has considerable influence over the running of detention facilities in Afghanistan and is responsible for the welfare of any prisoners they have handed over to the Afghan authorities." More recently Human Rights First (HRF) exposed the extent to which US military and intelligence officials had helped construct a secret network of detention centers, holding facilities, and prisons throughout Afghanistan. A recent Agence France Press story reports that HRF "claims there are seven undisclosed centres in Afghanistan, including a CIA interrogation facility in the capital, Kabul, known as ‘The Pit.’" Human Rights First reported "the United States was holding suspects in the war on terror in more than two dozen prisons around the world, with the biggest number of secret prisons in Afghanistan." The secrecy of the jails made "inappropriate detention and abuse not only likely, but inevitable." Though the CIA denied much of the HRF’s report, the AFP was able to confirm the existence of several of these prisons through its own sources. According to AFP, the CIA runs 5 secret jails in Kabul alone holding many of the nearly 2,0000 suspects captured in Afghanistan secretly for as much as 2 years.
The combination of all of these revelations provides an alternative picture to what the Bush administration claims are the actions of isolated individuals. In "The Road to Abu Ghraib," Human Rights Watch asserted that "This pattern of abuse did not result from the acts of individual soldiers who broke the rules. It resulted from decisions made by the Bush administration to bend, ignore, or cast rules aside. Administration policies created the climate for Abu Ghraib." Important media outlets arrived at similar conclusions. An editorial in the Washington Post said "we have learned that much of what the guards did – from threatening prisoners with dogs, to stripping them naked, to forcing them to wear women's underwear -- had been practiced at U.S. military prisons elsewhere in the world." Further, this type of treatment was "sanctioned" by Rumsfeld and top military officials.
Rumsfeld "approved" abusive treatment at Guantanamo Bay that he would come to call "grievous and brutal abuse and cruelty" when exposed by the infamous Abu Ghraib photographs, wrote the Post. "Sadly," it opined, "the Bush administration's policy decisions have cast doubt on whether this country accepts this fundamental principle of human rights." The International Herald Tribune argued that torture had "become the practice" despite its ineffectiveness. It also compared the Bush administration’s new policy on interrogation with Nazi Germany. Though these revelations were grounds for impeachment, it didn’t see a Republican-dominated Congress doing the right thing. Further, it concluded that if America chooses to reelect Bush in November, "will have made these practices its own."
Other Articles by Joel Wendland