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I. Official Sanction of Crimes against Detainees

On April 28, 2004, the first pictures were broadcast of U.S. soldiers humiliating and torturing detainees at Abu Ghraib prison in Iraq. The pictures have since taken on iconic status: an Iraqi detainee standing on a box draped in a hood and poncho, his arms outstretched with wires attached to his extremities and genitals; a bored-looking female American soldier holding a naked, Iraqi detainee on the floor at the end of a leash; naked, and even dead, Iraqi detainees in a variety of positions with American soldiers laughing and flashing thumbs up.

When the pictures first appeared, the United States government sought to portray the abuse as an isolated incident, the work of a few “bad apples” acting without orders. On May 4, 2004, U.S. Secretary of Defense Donald H. Rumsfeld, in a formulation that would be used over and over again by U.S. officials, described the abuses at Abu Ghraib as “an exceptional, isolated” case. In a nationally televised address on May 24, 2004, President Bush spoke of “disgraceful conduct by a few American troops who dishonored our country and disregarded our values.”

While some of the acts portrayed in the pictures may be attributed to individual or group sadism, the widening record reveals that the only truly exceptional aspect of the horrors at Abu Ghraib was that they were photographed. Abu Ghraib was, in fact, only the tip of the iceberg. Detainees in U.S. custody in Afghanistan had experienced beatings, prolonged sleep and sensory deprivation, forced nakedness and humiliation as early as 2001. Comparable — and, indeed, more extreme — cases of torture and inhuman treatment had been extensively documented by the International Committee of the Red Cross and by journalists at numerous locations in Iraq outside Abu Ghraib. In other parts of the world, detainees in U.S. custody have been “disappeared” or “rendered” to countries where torture is routine.

As became increasingly obvious in the months after the photos came to public light, 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 and for abuse against detainees worldwide in a number of ways.⁵

Changing the paradigm

First, in the aftermath of the September 11, 2001 attacks on the United States, the Bush administration determined that winning the war on terror required that the United States circumvent fundamental principles of human rights and humanitarian law.

On September 16, 2001, Vice President Dick Cheney said in a television interview on NBC’s “Meet the Press”:

We also have to work, though, sort of the dark side, if you will. We’ve got to spend time in the shadows in the intelligence world. A lot of what needs to be done here will have to be done quietly, without any discussion, using sources and methods that are available to our intelligence agencies, if we’re going to be successful. That’s the world these folks operate in, and so it’s going to be vital for us to use any means at our disposal, basically, to achieve our objective.

In prepared testimony to Congress in 2002, Cofer Black, former director of the CIA’s counterterrorist unit, said, “There was a before-9/11 and an after-9/11. After 9/11 the gloves came off.”⁶

Senior administration lawyers, led by then-White House Counsel, and current Attorney General, Alberto Gonzales, in a series of legal memoranda written in late 2001 and early 2002 helped build the framework for circumventing international law restraints on prisoner interrogation.

In particular, these memos argued that the Geneva Conventions did not apply to detainees from the Afghanistan war. Mr. Gonzales urged the president to declare the Taliban forces in Afghanistan as well as al-Qaeda outside the coverage of the Geneva Conventions. This, he said in a memo dated January 25, 2002, would preserve the U.S.’s “flexibility” in the war against terrorism. Mr. Gonzales wrote that the war against terrorism, “in my judgment renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” Gonzales also warned that U.S. officials involved in harsh interrogation techniques could potentially be prosecuted for war crimes under U.S. law if the Conventions applied.⁷ Gonzales said that “it was difficult to predict with confidence” how U.S. prosecutors might apply the Geneva Conventions’ strictures against “outrages against personal dignity” and “inhuman treatment” in the future, and argued that declaring that Taliban and al-Qaeda fighters did not have Geneva Convention protections “substantially reduces the threat of domestic criminal prosecution.” Gonzales did convey to President Bush the worries of military leaders that these policies might “undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat and could introduce an element of uncertainty in the status of adversaries.” Those warnings were ignored, but proved justified.

The Gonzales memorandum drew a strong objection the next day from Secretary of State Colin L. Powell. Secretary Powell argued that declaring the conventions inapplicable would “reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.”⁸

On February 7, 2002, President Bush announced that while the U.S. government would apply the “principles of the Third Geneva Convention” to captured members of the Taliban, it would not consider any of them to be prisoners of war (POWs) because, in the U.S. view, they did not meet the requirements of an armed force under that Convention. As for captured members of al-Qaeda, he said that the U.S. government considered the Geneva Conventions inapplicable but would nonetheless treat the detainees “humanely.”⁹

These decisions essentially reinterpreted the Geneva Conventions to suit the administration’s purposes. 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. Taliban soldiers should have been accorded POW status because they openly fought for the armed forces of a state party to the Convention. Al-Qaeda detainees would likely not be accorded POW status but the Conventions and customary law still provide explicit protections to all persons held in an armed conflict, even if they are not entitled to POW status. Even persons who are not entitled to the protections of the 1949 Geneva Conventions are protected by the “fundamental guarantees” described in article 75 of Protocol I of 1977 to the Geneva Conventions. The United States has long considered article 75 to be part of customary international law (a widely supported state practice accepted as law). Article 75 prohibits murder, “torture of all kinds, whether physical or mental,” “corporal punishment,” and “outrages upon personal dignity, in particular humiliating and degrading treatment, … and any form of indecent assault.”¹⁰

Approval of Mistreatment and Torture

Second, senior officials approved illegal coercive methods of interrogation.

Army Field Manual 34-52 (“FM 34-52”) on intelligence interrogation has long served as the reference for the types of interrogation techniques considered permissible and effective, in accordance with the Geneva Conventions. As the first detainees were being captured, however, the CIA sought the opinion of the Department of Justice Office of the Legal Counsel (OLC) as to what additional interrogation techniques would be allowable.¹¹

The OLC — in a now-infamous memo prepared by Assistant Attorney General Jay S. Bybee (now a federal appeals court judge) — replied on August 1, 2002 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. The memo added that 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 asserted that “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.” The memo also suggested that “mental torture” only included acts that resulted in “significant psychological harm of significant duration, e.g., lasting for months or even years.”¹²

A few months later, in October 2002, the Guantánamo authorities sent a letter to Secretary Rumsfeld requesting permission to employ harsher interrogation techniques on prisoners. The requested techniques were reviewed by Department of Defense General Counsel William J. Haynes, who recommended that Secretary Rumsfeld approve 16 of the requested techniques for use in interrogations at Guantánamo. On December 2, 2002, Secretary Rumsfeld approved this recommended list, which included such techniques as hooding, stress positions, isolation, stripping, deprivation of light, removal of religious items, forced grooming, and use of dogs.¹³ As described below, these techniques, which violate not only the Geneva Conventions but the laws against torture and other prohibited ill-treatment, later “migrated” to Iraq and Afghanistan where they were regularly applied to detainees.

On January 15, 2003, following criticism from the Navy general counsel, Secretary Rumsfeld rescinded the December 2 guidelines, stating that harsher techniques in those guidelines could be used only with his approval.¹⁴ Secretary Rumsfeld then ordered the establishment of a working group to examine which interrogation techniques should be allowed for prisoners in Guantánamo.¹⁵ The portions of the working group’s report that have been made available make clear that in reviewing interrogation techniques, they relied heavily on the logic of the president’s February 7, 2002 memo regarding the applicability of the Geneva Conventions to al-Qaeda and Taliban prisoners, as well as the August 1, 2002 OLC memo on evading sanction for interrogation techniques that might be deemed illegal under treaty obligations and U.S. law.¹⁶ The results of this study led to Secretary Rumsfeld’s promulgation, on April 16 2003, of a memo outlining techniques that could only be applied to interrogations of “unlawful combatants” held at Guantánamo.¹⁷

In addition, the Justice Department and the White House apparently gave the CIA the authority to use additional techniques, such as “waterboarding,” in which the detainee is strapped down, forcibly pushed under water, and made to believe he might drown.¹⁸ The president also apparently authorized the CIA to “disappear” certain prisoners, placing leading al-Qaeda suspects in long-term secret incommunicado detention in “undisclosed locations.”¹⁹

After the Abu Ghraib photos were made public, the United States repudiated the August 1, 2002 OLC memo and later replaced it with a revised memo.²⁰ In January 2005, however, Attorney General-designate Alberto Gonzales claimed in a written response during his confirmation hearings that CAT’s prohibition on cruel, inhuman or degrading (CID) treatment does not apply to U.S. personnel in the treatment of non-citizens abroad, indicating that no law would prohibit the CIA from engaging in CID treatment when it interrogates non-Americans outside the United States.²¹