Summary

George Tenet asked if he had permission to use enhanced interrogation techniques, including waterboarding, on Khalid Sheikh Mohammed.…

“Damn right,” I said.

—Former President George W. Bush, 2010[1]

There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.

—Maj. Gen. Antonio Taguba, June 2008[2]

Should former US President George W. Bush be investigated for authorizing “waterboarding” and other abuses against detainees that the United States and scores of other countries have long recognized as torture? Should high-ranking US officials who authorized enforced disappearances of detainees and the transfer of others to countries where they were likely to be tortured be held accountable for their actions?

In 2005, Human Rights Watch’s Getting Away with Torture? presented substantial evidence warranting criminal investigations of then-Defense Secretary Donald Rumsfeld and Central Intelligence Agency (CIA) Director George Tenet, as well as Lt. Gen. Ricardo Sanchez, formerly the top US commander in Iraq, and Gen. Geoffrey Miller, former commander of the US military detention facility at Guantanamo Bay, Cuba.

This report builds on our prior work by summarizing information that has since been made public about the role played by US government officials most responsible for setting interrogation and detention policies following the September 11, 2001 attacks on the United States, and analyzes them under US and international law. Based on this evidence, Human Rights Watch believes there is sufficient basis for the US government to order a broad criminal investigation into alleged crimes committed in connection with the torture and ill-treatment of detainees, the CIA secret detention program, and the rendition of detainees to torture. Such an investigation would necessarily focus on alleged criminal conduct by the following four senior officials—former President George W. Bush, Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, and CIA Director George Tenet.

Such an investigation should also include examination of the roles played by National Security Advisor Condoleezza Rice and Attorney General John Ashcroft, as well as the lawyers who crafted the legal “justifications” for torture, including Alberto Gonzales (counsel to the president and later attorney general), Jay Bybee (head of the Justice Department's Office of Legal Counsel (OLC)), John Rizzo (acting CIA general counsel), David Addington (counsel to the vice president), William J. Haynes II (Department of Defense general counsel), and John Yoo (deputy assistant attorney general in the OLC).

Much important information remains secret. For example, many internal government documents on detention and interrogation policies and practices are still classified, and unavailable to the public. According to the American Civil Liberties Union (ACLU), which has secured the release of thousands of documents under the Freedom of Information Act (FOIA), among the dozens of key documents still withheld are the presidential directive of September 2001 authorizing CIA "black sites"—or secret prisons—as well as CIA inspector general records.[3] Moreover, many documents that have ostensibly been released, including the CIA inspector general’s report and Department of Justice and Senate committee reports, contain heavily redacted sections that obscure key events and decisions.

Human Rights Watch believes that many of these documents may contain incriminating information, strengthening the cases for criminal investigation detailed in this report. It also believes there is enough strong evidence from the information made public over the past five years to not only suggest these officials authorized and oversaw widespread and serious violations of US and international law, but that they failed to act to stop mistreatment, or punish those responsible after they became aware of serious abuses. Moreover, while Bush administration officials have claimed that detention and interrogation operations were only authorized after extensive discussion and legal review by Department of Justice attorneys, there is now substantial evidence that civilian leaders requested that politically appointed government lawyers create legal justifications to support abusive interrogation techniques, in the face of opposition from career legal officers.

Thorough, impartial, and genuinely independent investigation is needed into the programs of illegal detention, coerced interrogation, and rendition to torture—and the role of top government officials. Those who authorized, ordered, and oversaw torture and other serious violations of international law, as well as those implicated as a matter of command responsibility, should be investigated and prosecuted if evidence warrants.

Taking such action and addressing the issues raised in this report is crucial to the US’s global standing, and needs to be undertaken if the United States hopes to wipe away the stain of Abu Ghraib and Guantanamo and reaffirm the primacy of the rule of law.

Human Rights Watch expresses no opinion about the ultimate guilt or innocence of any officials under US law, nor does it purport to offer a comprehensive account of the possible culpability of these officials or a legal brief. Rather it presents two main sections: one providing a narrative summarizing Bush administration policies and practices on detention and interrogation, and another detailing the case for individual criminal responsibility of several key administration officials.

The road to the violations detailed here began within days of the September 11, 2001 attacks by al Qaeda on New York and Washington, DC, when the Bush administration began crafting a new set of policies, procedures, and practices for detainees captured in military and counterterrorism operations outside the United States. Many of these violated the laws of war, international human rights law, and US federal criminal law. Moreover, the coercive methods that senior US officials approved include tactics that the US has repeatedly condemned as torture or ill-treatment when practiced by others.

For example, the Bush administration authorized coercive interrogation practices by the CIA and the military that amounted to torture, and instituted an illegal secret CIA detention program in which detainees were held in undisclosed locations without notifying their families, allowing access to the International Committee of the Red Cross, or providing for oversight of their treatment. Detainees were also unlawfully rendered (transferred) to countries such as Syria, Egypt, and Jordan, where they were likely to be tortured. Indeed, many were, including Canadian national Maher Arar who described repeated beatings with cables and electrical cords during the 10 months he was held in Syria, where the US sent him in 2002. Evidence suggests that torture in such cases was not a regrettable consequence of rendition; it may have been the purpose.

At the same time, politically appointed administration lawyers drafted legal memoranda that sought to provide legal cover for administration policies on detention and interrogation.

As a direct result of Bush administration decisions, detainees in US custody were beaten, thrown into walls, forced into small boxes, and waterboarded—subjected to mock executions in which they endured the sensation of drowning. Two alleged senior al Qaeda prisoners, Khalid Sheikh Mohammed and Abu Zubaydah, were waterboarded 183 and 83 times respectively.

Detainees in US-run facilities in Afghanistan, Iraq, and Guantanamo Bay endured prolonged mistreatment, sometimes for weeks and even months. This included painful “stress” positions; prolonged nudity; sleep, food, and water deprivation; exposure to extreme cold or heat; and total darkness with loud music blaring for weeks at a time. Other abuses in Iraq included beatings, near suffocation, sexual abuse, and mock executions. At Guantanamo Bay, some detainees were forced to sit in their own excrement, and some were sexually humiliated by female interrogators. In Afghanistan, prisoners were chained to walls and shackled in a manner that made it impossible to lie down or sleep, with restraints that caused their hands and wrists to swell up or bruise.

These abuses across several continents did not result from the acts of individual soldiers or intelligence agents who broke the rules: they resulted from decisions of senior US leaders to bend, ignore, or cast rules aside. Furthermore, as explained in this report, it is now known that Bush administration officials developed and expanded their initial decisions and authorizations on detainee operations even in the face of internal and external dissent, including warnings that many of their actions violated international and domestic law. And when illegal interrogation techniques on detainees spread broadly beyond what had been explicitly authorized, these officials turned a blind eye, making no effort to stop the practices.

The Price of Impunity

The US government’s disregard for human rights in fighting terrorism in the years following the September 11, 2001 attacks diminished the US’ moral standing, set a negative example for other governments, and undermined US government efforts to reduce anti-American militancy around the world.

In particular, the CIA’s use of torture, enforced disappearance, and secret prisons was illegal, immoral, and counterproductive. These practices tainted the US government’s reputation and standing in combating terrorism, negatively affected foreign intelligence cooperation, and sparked anger and resentment among Muslim communities, whose assistance is crucial to uncovering and preventing future global terrorist threats.

President Barack Obama took important steps toward setting a new course when he abolished secret CIA prisons and banned the use of torture upon taking office in January 2009. But other measures have yet to be taken, such as ending the practice of indefinite detention without trial, closing the military detention facility at Guantanamo Bay and ending rendition of detainees to countries that practice torture. Most crucially, the US commitment to human rights in combating terrorism will remain suspect unless and until the current administration confronts the past. Only by fully and forthrightly dealing with those responsible for systematic violations of human rights after September 11 will the US government be seen to have surmounted them.

Without real accountability for these crimes, those who commit abuses in the name of counterterrorism will point to the US mistreatment of detainees to deflect criticism of their own conduct. Indeed, when a government as dominant and influential as that of the United States openly defies laws prohibiting torture, a bedrock principle of human rights, it virtually invites others to do the same. The US government’s much-needed credibility as a proponent of human rights was damaged by the torture revelations and continues to be damaged by the complete impunity for the policymakers implicated in criminal offenses.

As in countries that have previously come to grips with torture and other serious crimes by national leaders, there are countervailing political pressures within the United States. Commentators assert that any effort to address past abuses would be politically divisive, and might hinder the Obama administration’s ability to achieve pressing policy objectives.

This position ignores the high cost of inaction. Any failure to carry out an investigation into torture will be understood globally as purposeful toleration of illegal activity, and as a way to leave the door open to future abuses.[4] The US cannot convincingly claim to have rejected these egregious human rights violations until they are treated as crimes rather than as “policy options.”

In contrast, the benefits of conducting a credible and impartial criminal investigation are numerous. For example, the US government would send the clearest possible signal that it is committed to repudiating the use of torture. Accountability would boost US moral authority on human rights in counterterrorism in a more concrete and persuasive way than any initiative to date; set a compelling example for governments that the US has criticized for committing human rights abuses and for the populations that suffer from such abuses; and might reveal legal and institutional failings that led to the use of torture, pointing to ways to improve the government’s effectiveness in fighting terrorism. It would also sharply reduce the likelihood of foreign investigations and prosecutions of US officials—which have already begun in Spain—based on the principle of universal jurisdiction, since those prosecutions are generally predicated on the responsible government’s failure to act.

Establishing Accountability

The Bush administration’s response to the revelations of detainee abuse, including the Abu Ghraib abuse scandal, which broke in 2004, was one of damage control rather than a search for truth and accountability. The majority of administration investigations undertaken from 2004 forward lacked the independence or breadth necessary to fully explore the prisoner-abuse issue. Almost all involved the military or CIA investigating itself, and focused on only one element of the treatment of detainees. None looked at the issue of rendition to torture, and none examined the role of civilian leaders who may have had authority over detainee treatment policy.

The US record on criminal accountability for detainee abuse has been abysmal. In 2007, Human Rights Watch collected information on some 350 cases of alleged abuse involving more than 600 US personnel. Despite numerous and systematic abuses, few military personnel had     been punished and not a single CIA official held accountable. The highest-ranking officer prosecuted for the abuse of prisoners was a lieutenant colonel, Steven Jordan, court-martialed in 2006 for his role in the Abu Ghraib scandal, but acquitted in 2007.

When Barack Obama, untainted by the detainee abuse scandal, became president in 2009, the outlook for accountability appeared to improve. As a presidential candidate, Obama spoke of the need for a “thorough investigation” of detainee mistreatment.[5] After his election, he said there should be prosecutions if “somebody has blatantly broken the law,” but suggested otherwise when he expressed his “belief that we need to look forward as opposed to looking backwards.”[6]

On August 24, 2009, as the CIA inspector general's long-suppressed report on interrogation practices was released in heavily redacted form with new revelations about unlawful practices, US Attorney General Eric Holder announced he had appointed Assistant United States Attorney John Durham to conduct “a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.” Holder added, however, that “the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel (OLC) regarding the interrogation of detainees.”[7]

 

Holder’s statement was in line with that made by President Obama when he released a series of Bush-era memos: “In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”[8] These statements themselves follow the Detainee Treatment Act of 2005, which provides a defense to criminal charges if the official,

did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.[9]

The problem is that the legal advice in question—contained in memoranda drafted by the OLC, which provides authoritative legal advice to the president and all executive branch agencies—itself authorized torture and other ill-treatment. It purported to give legal sanction to practices like waterboarding, as well as long-term sleep deprivation, violent slamming of prisoners into walls, forced nudity, and confinement of prisoners into small, dark boxes. Notably, all of the memoranda were later withdrawn by subsequent OLC officials during later periods in the Bush administration.

While US officials who act in good faith reliance upon official statements of the law generally have a defense under US law against criminal prosecution, this does not mean that the Justice Department should embrace the sweeping view that all officials responsible for methods of torture explicitly contemplated under OLC memoranda are protected from criminal investigation. Indeed, for the Justice Department to take such a position would risk validating a legal strategy that seeks to negate criminal liability for wrongdoing by preemptively constructing a legal defense. If such a strategy is seen to have worked, future administrations contemplating illegal actions will also be more likely to employ it.

In assessing the good faith of those who purported to rely on OLC guidance, the Justice Department should critically inquire, on a case-by-case basis, whether a reasonable person at the time these decisions were made would be convinced that such practices were lawful. It seems doubtful that cases of the most serious abuses would pass this test. It is especially unlikely that senior officials who were responsible for authorizing torture will be protected under this calculus, particularly if they were instrumental in pressing for legal cover from the OLC, or if they influenced the drafting of the memoranda that they now claim protect them.

For the Justice Department to look primarily into the actions of low-level interrogators would also be a mistake: it would reflect a fundamental misunderstanding of how and why abuses took place. Whether it was the coercive interrogation methods approved by the Defense Department or the CIA’s secret detention program, these were top-down enterprises that involved senior US officials who were responsible for formulating, authorizing, and supervising abusive practices.

 

Grounds for Investigation

Over the past several years, more evidence has been placed on the public record regarding the development of illegal detention policies and the torture and ill-treatment of detainees in US custody. Thanks in particular to FOIA lawsuits brought by the ACLU and the Center for Constitutional Rights, which have yielded over 100,000 pages of government documents concerning the treatment of detainees, the public record now includes most of a report by the CIA’s inspector general into detention practices, as well as CIA background papers, other government reports, and the infamous "torture memos" that provided the administration’s legal justification for abusive interrogation techniques.[10] An extensive amount of information was also uncovered in an investigation by the Senate Armed Services Committee, which released a report on detainee abuse in 2008 that was declassified in 2009.[11] The Department of Justice inspector general issued a report about FBI involvement in detention abuse in 2008,[12] and the department’s Office of Professional Responsibility issued a report on the role of department lawyers in crafting legal memoranda which justified abusive interrogations.[13] A report by the International Committee of the Red Cross, leaked by an unknown source, also describes the treatment of “high-value” detainees in CIA custody.[14] In addition, former detainees and whistleblowers have come forward to tell their stories, and many of the principals have spoken about their roles. As described in this report, however, there is also much key evidence­—beginning with President Bush’s directive authorizing CIA "black sites"—that remains secret.

In this report, our conclusion, which we believe is compelled by the evidence, is that a criminal investigation is warranted with respect to each of the following:[15]

President George W. Bush: had the ultimate authority over detainee operations and authorized the CIA secret detention program, which forcibly disappeared individuals in long-term incommunicado detention. He authorized the CIA renditions program, which he knew or should have known would result in torture. And he has publicly admitted that he approved CIA use of torture, specifically the waterboarding of two detainees. Bush never exerted his authority to stop the ill-treatment or punish those responsible.

Vice President Dick Cheney: was the driving force behind the establishment of illegal detention policies and the formulation of legal justifications for those policies. He chaired or attended numerous meetings at which specific CIA operations were discussed, beginning with the waterboarding of detainee Abu Zubaydah in 2002. He was a member of the National Security Council (NSC) “Principals Committee,” which approved and later reauthorized the use of waterboarding and other forms of torture and ill-treatment in the CIA interrogation program. Cheney has publicly admitted that he was aware of the use of waterboarding.

Defense Secretary Donald Rumsfeld: approved illegal interrogation methods that facilitated the use of torture and ill-treatment by US military personnel in Afghanistan and Iraq. Rumsfeld closely followed the interrogation of Guantanamo detainee Mohamed al-Qahtani who was subjected to a six-week regime of coercive interrogation that cumulatively amounted to torture. He was a member of the NSC Principals Committee, which approved the use of torture for CIA detainees. Rumsfeld never exerted his authority to stop the torture and ill-treatment of detainees even after he became aware of evidence of abuse over a three-year period beginning in early 2002.

CIA DirectorGeorge Tenet: authorized and oversaw the CIA’s use of waterboarding, near suffocation, stress positions, light and noise bombardment, sleep deprivation, and other forms of torture and ill-treatment. He was a member of the NSC Principals Committee that approved the use of torture in the CIA interrogation program. Under Tenet's direction, the CIA also “disappeared” detainees by holding them in long-term incommunicado detention in secret locations, and rendered (transferred) detainees to countries in which they were likely to be tortured and were tortured.

In addition, there should be criminal investigations into the drafting of legal memorandums seeking to justify torture, which were the basis for authorizing the CIA secret detention program. The government lawyers involved included Alberto Gonzales, counsel to the president and later attorney general; Jay Bybee, assistant attorney general in the Justice Department’s Office of Legal Counsel (OLC); John Rizzo, acting CIA general counsel; David Addington, counsel to the vice president; William J. Haynes II, Defense Department general counsel; and John Yoo, deputy assistant attorney general in OLC.

 

An Independent Nonpartisan Commission

The US and global public deserve a full and public accounting of the scale of abuses following the September 11 attacks, including why and how they occurred. Prosecutions, which focus on individual criminal liability, would not bring the full range of information to light. An independent, nonpartisan commission, along the lines of the 9-11 Commission, should therefore be established to examine the actions of the executive branch, the CIA, the military, and Congress, and to make recommendations to ensure that such widespread and systematic abuses are not repeated.[16]

The investigations that the US government has conducted either have been limited in scope—such as looking at violations by military personnel at a particular place in a restricted timeframe—or have lacked independence, with the military investigating itself. Congressional investigations have been limited to looking at a single agency or department. Individuals who planned or participated in the programs have yet to speak on the record.

Many of the key documents relating to the use of abusive techniques remain secret. Many of the proverbial dots remain unconnected. An independent, nonpartisan commission could provide a fuller picture of the systematic reasons behind the abuses, as well as the human, legal, and political consequences of the government’s unlawful policies.

 

Recommendations

To the US President

• Direct the attorney general to begin a criminal investigation into US government detention practices and interrogation methods since September 11, 2001, including the CIA detention program. The investigation should:
  • examine the role of US officials, no matter their position or rank, who participated in, authorized, ordered, or had command responsibility for torture or ill-treatment and other unlawful detention practices, including enforced disappearance and rendition to torture.

 

To the US Congress

• Create an independent, nonpartisan commission to investigate the mistreatment of detainees in US custody since September 11, 2001, including torture, enforced disappearance, and rendition to torture. Such a commission should:
  • hold hearings, have full subpoena power, compel the production of evidence, and be empowered to recommend the creation of a special prosecutor to investigate possible criminal offenses, if the attorney general has not commenced such an investigation.

To the US Government

• Consistent with its obligations under the Convention against Torture, the US government should ensure that victims of torture obtain redress, which may include providing victims with compensation where warranted outside of the judicial context.

To Foreign Governments

• Unless and until the US government pursues credible criminal investigations of the role of senior officials in the mistreatment of detainees since September 11, 2001, exercise universal jurisdiction or other forms of jurisdiction as provided under international and domestic law to prosecute US officials alleged to be involved in criminal offenses against detainees in violation of international law.

 

I. Background: Official Sanction for Crimes against Detainees

On September 11, 2001, four commercial airliners commandeered by al Qaeda militants crashed into the World Trade Center in New York City and the Pentagon in Washington, DC, killing nearly 3,000 people. Three days after the attacks, President Bush sought and obtained a resolution from Congress authorizing him to use “all necessary and appropriate force” against those responsible for the attacks.[17] Within weeks, the US began military operations against the al Qaeda-backed Taliban government in Afghanistan. Concurrently, senior Bush administration officials publicly endorsed and privately undertook policies in the proclaimed “global war on terror” permitting the US to circumvent its international legal obligations.

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

We also have to work, through, 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.[18]

In prepared testimony to Congress in September 2002, Cofer Black, director of the CIA’s counterterrorism unit, said, “[T]here was ‘before’ 9/11 and ‘after’ 9/11. After 9/11 the gloves come off.”[19]

During a National Security Council “War Cabinet” on September 15, CIA Director George Tenet presented options for covert CIA operations including apprehending terrorism suspects abroad and transferring them to third counties, as well as other operations.[20] Two days later, on September 17, President Bush signed a still‑classified memorandum authorizing the CIA to detain and interrogate suspected al Qaeda members and others believed to be involved in the attacks.[21]

Led by Vice President Cheney’s legal counsel, David Addington, senior administration lawyers—including then-White House counsel, and later attorney general, Alberto Gonzales—drafted a series of legal memoranda to build the legal framework for circumventing international law restraints on the interrogation of prisoners.[22] These memos essentially argued that the Geneva Conventions of 1949, the foundation treaties of war-time conduct, did not apply to individuals detained in connection to the armed conflict in Afghanistan.

A January 9, 2002 draft memo by John Yoo, deputy assistant attorney general in the OLC, advised the Defense Department that the Geneva Conventions did not apply to members of al Qaeda because it was not a state and thus not a party to the conventions. The memo said they also did not apply to the Taliban, as it could not be considered a government because Afghanistan was a “failed state.” The memo also argued that the president could suspend operation of the Geneva Conventions and that customary laws of war did not bind the US because they did not constitute federal law.[23]

William H. Taft, IV, the State Department's legal adviser, warned the argument that the president could suspend the Geneva Conventions was “legally flawed” and the memo’s reasoning was “incorrect as well as incomplete.” The argument that Afghanistan as a “failed state” was no longer a party to the Geneva Conventions was, he said, “contrary to the official position of the United States, the United Nations and all other states that have considered the issue.”[24]

In a key memo dated January 25, 2002, Gonzales urged the president to declare Taliban forces in Afghanistan and al Qaeda outside the coverage of the Geneva Conventions. This, he wrote, would preserve US “flexibility” in the “war against terrorism,” which “in my judgment … renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.” Gonzales also warned that US officials involved in harsh interrogation techniques could potentially be prosecuted for war crimes under US law if the conventions applied.[25]

Gonzales wrote “it was difficult to predict with confidence” how US prosecutors might apply the Geneva Conventions’ strictures against “’outrages against personal dignity’” and “’inhuman treatment.’” He argued that declaring that Taliban and al Qaeda fighters did not have protection afforded by the Geneva Conventions “substantially reduces the threat of domestic criminal prosecution.” Gonzales expressed to President Bush the concern of military leaders that these policies might “undermine US military culture which emphasizes maintaining the highest standards of conduct in combat and could introduce an element of uncertainty in the status of adversaries.”[26] Those concerns were ignored, but proved justified.

Secretary of State Colin Powell met twice with Bush to discuss his concerns about the Yoo memo. Gen. Richard Myers, the chairman of the Joint Chiefs of Staff, and other military leaders voiced similar concerns.[27] Powell argued that declaring the conventions inapplicable would “reverse over a century of US 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.”[28]

In response to the objections of Powell and others, Bush slightly modified the proposed order, but did so in a manner that effectively denied protection to the detainees: on February 7, 2002, Bush announced that while the US government would apply the “principles” of the Geneva Conventions to captured members of the Taliban, it would not consider any of them to be prisoners of war (POWs) because the US did not believe they met the convention’s requirements of an armed force as they had no military hierarchy, did not wear uniforms, did not carry arms openly, and did not conduct operations in accordance with the laws and customs of war. He said the US government considered the Geneva Conventions inapplicable to captured members of al Qaeda, though “as a matter of policy, the United States Armed 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.”[29]

These decisions essentially reinterpreted the Geneva Conventions to suit the administration’s purposes. Most importantly, they downgraded existing international law, which must be followed, to the level of “principles,” which only should be followed. All persons detained in connection with an armed conflict, whether or not they are entitled to POW status,[30] are still legally entitled to basic protections under international law.[31] For instance, the “fundamental guarantees” described in article 75 of Protocol Additional of 1977 to the 1949 Geneva Conventions relating to the Protection of Victims of International Armed Conflicts (Protocol I), which the United States has long considered reflective of customary international law (a widely supported state practice accepted as law), protects all detainees from 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.”[32]

II. Torture of Detainees in US Counterterrorism Operations

The CIA Detention Program

On September 15, 2001, CIA Director George Tenet presented the National Security Council (NSC) with options for covert CIA operations involving the abduction of terrorism suspects abroad.[33] Two days later, on September 17, President Bush signed a directive authorizing the CIA to kill, capture, detain, and interrogate suspected al Qaeda-linked terrorists.[34]

On September 26, Tenet reportedly briefed Bush and the NSC on CIA renditions operations in which suspects were transferred into the custody of third countries such as Jordan and Egypt for detention and interrogation.[35]

Meanwhile, CIA and US military personnel in Afghanistan began to interrogate detainees apprehended there, or in Pakistan and handed over to US forces in Afghanistan. At the Qali Jangi fort in northern Afghanistan, CIA and military Special Forces personnel had begun questioning individuals.[36] Detainees also began arriving at a newly created US base near Kandahar in southern Afghanistan in November 2001 and at the Bagram air base outside Kabul in December 2001. Within weeks, media reports began to surface alleging mistreatment of detainees at Qali Jangi and at the Kandahar base.[37]

Allegations of abuse against detainees by US personnel in Afghanistan continued in 2002. According to US Army documents released in 2004 and 2005, four Special Forces personnel “murdered” an Afghan in custody in August 2002.[38] In September 2002, an unnamed detainee died while in CIA custody near Kabul, reportedly of hypothermia.[39] In December 2002, two detainees at Bagram air base were beaten to death by US military guards detailed to work with military intelligence personnel on interrogations.[40] A December 2008 investigation by the Senate Armed Services Committee showed that many of the abusive techniques being considered for formal approval at Guantanamo in October 2002 were in fact already in use in Afghanistan by that time.[41] A 2004 Department of Defense report by former Secretary of Defense James R. Schlesinger acknowledged that “aggressive” interrogations were underway in Afghanistan from late 2001 through 2002, beyond what was approved in the relevant US army field manual on interrogation.[42]

Secret Detention Sites

Pursuant to President Bush’s September 17, 2001, order, the CIA began to set up secret detention facilities. Although much remains to be learned about the operation of these “black sites,” whose locations have never been acknowledged by the United States, there is strong evidence that the US established secret detention sites for interrogation or transfer in Afghanistan, Guantanamo, Iraq, Lithuania, Morocco, Pakistan, Poland, Romania, and Thailand.[43] The CIA's prisons, which are thought to have held some 100 detainees since 2002,[44] were the site of some of the most egregious human rights violations, many of which are described below.

The International Committee of the Red Cross (ICRC), which interviewed 14 of the former CIA black site detainees after their transfer to Guantanamo, gave the following description of their detention regime:

Throughout the entire period during which they were held in the CIA detention program—which ranged from sixteen months up to almost four and a half years and which, for eleven of the fourteen was over three years—the detainees were kept in continuous solitary confinement and incommunicado detention. They had no knowledge of where they were being held, no contact with persons other than their interrogators or guards. Even their guards were usually masked and, other than the absolute minimum, did not communicate in any way with the detainees. None had any real—let alone regular—contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee. None had any contact with legal representation. The fourteen had no access to news from the outside world, apart from in the later stages of their detention when some of them occasionally received printouts of sports news from the internet and one reported receiving newspapers.

None of the fourteen had any contact with their families, either in written form or through family visits or telephone calls. They were therefore unable to inform their families of their fate. As such, the fourteen had become missing persons. In any context, such a situation, given its prolonged duration, is clearly a cause of extreme distress for both the detainees and families concerned and itself constitutes a form of ill-treatment.

In addition, the detainees were denied access to an independent third party. In order to ensure accountability, there is a need for a procedure of notification to families, and of notification and access to detained persons, under defined modalities, for a third party, such as the ICRC. That this was not practiced, to the knowledge of the ICRC, neither for the fourteen nor for any other detainee who passed through the CIA detention program, is a matter of serious concern.[45]

After news of the sites became public, Bush in September 2006 officially acknowledged the existence of the secret CIA sites, saying:

[A] small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency.... Many specifics of this program, including where these detainees have been held and the details of their confinement, cannot be divulged.[46]

He ordered what he said were the remaining 14 detainees in CIA custody transferred to Guantanamo Bay.[47]

On January 22, 2009, his second full day in office, President Obama issued an executive order to close the CIA’s secret detention program.[48]

The Case of Abu Zubaydah: the First Detainee in the CIA Interrogation Program

In late March 2002, the CIA in Faisalabad, Pakistan, apprehended Zayn al Abidin Muhammad Husayn, more commonly known as Abu Zubaydah. Zubaydah was shot during his arrest and taken to a hospital in Lahore, Pakistan, before being transferred to a secret CIA facility, apparently in Bangkok, Thailand.[49]

Zubaydah was originally believed to be a top al Qaeda operative, and his interrogation became a test case for the CIA’s evolving new role in detention and interrogation under Bush’s September 17, 2001 directive.

A 2009 “Declassified Narrative Describing the Department of Justice Office of Legal Counsel's Opinions on the CIA's Detention and Interrogation Program,” released by the Senate Select Committee on Intelligence in 2009 describes in detail the NSC approval process of the CIA interrogation policy regarding Abu Zubaydah:

CIA records indicate that members of the National Security Council (NSC) and other senior Administration officials were briefed on the CIA’s detention and interrogation program throughout the course of the program. In April 2002, attorneys from the CIA’s Office of General Counsel began discussions with the Legal Adviser to the National Security Council and OLC concerning the CIA’s proposed interrogation plan for Abu Zubaydah and legal restrictions on that interrogation. CIA records indicate that the Legal Adviser to the National Security Council [John Bellinger] briefed the National Security Adviser [Condoleezza Rice], Deputy National Security Adviser [Stephen Hadley], and Counsel to the President [Alberto Gonzales], as well as the Attorney General [John Ashcroft] and the head of the Criminal Division of the Department of Justice [Michael Chertoff].

According to CIA records, because the CIA believed that Abu Zubaydah was withholding imminent threat information during the initial interrogation sessions, attorneys from the CIA's Office of General Counsel [headed by John Rizzo] met with the Attorney General [John Ashcroft], the National Security Adviser [Condoleezza Rice], the Deputy National Security Adviser [Stephen Hadley], the Legal Adviser to the National Security Council [John Bellinger], and the Counsel to the President [Alberto Gonzales], in mid-May 2002 to discuss the possible use of alternative interrogation methods that differed from the traditional methods used by the US military and intelligence community. At this meeting, the CIA proposed particular alternative interrogation methods, including waterboarding.

The CIA's Office of General Counsel subsequently asked OLC to prepare an opinion about the legality of its proposed techniques. To enable OLC to review the legality of the techniques, the CIA provided OLC with written and oral descriptions of the proposed techniques. The CIA also provided OLC with information about any medical and psychological effects of DoD's [Department of Defense] Survival, Evasion, Resistance and Escape (SERE) School, which is a military training program during which military personnel receive counter‑interrogation training.[50]

The SERE techniques had been used by the Defense Department’s Joint Personnel Recovery Agency (JPRA) to train US Special Forces to withstand interrogation methods used by enemies who did not abide by the Geneva Conventions.[51] These SERE techniques were described in a 2008 Senate Armed Services Committee report (“Levin Report” or “SASC Report”) as including:

[S]tripping students of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures. It can also include face and body slaps and until recently…, it included waterboarding.[52]

The CIA and NSC, in essence, were advising that CIA interrogators use techniques modeled on interrogations conducted by past enemies of the US that did not abide by the Geneva Conventions.

In his memoirs, Bush describes approving the waterboarding of Abu Zubaydah:

At my direction, Department of Justice and CIA lawyers conducted a careful legal review. They concluded that the enhanced interrogation program complied with the Constitution and all applicable laws, including those that ban torture.

I took a look at the list of techniques. There were two that I felt went too far, even if they were legal. I directed the CIA not to use them. Another technique was waterboarding, a process of simulated drowning. No doubt the procedure was tough, but medical experts assured the CIA that it did no lasting harm.

…I would have preferred that we get the information another way. But the choice between security and values was real. Had I not authorized waterboarding on senior al Qaeda leaders, I would have had to accept a greater risk that the country would be attacked. In the wake of 9/11, that was a risk I was unwilling to take. My most solemn responsibility as president was to protect the country. I approved the use of the interrogation techniques.[53]

The SSCI Narrative Report continues:

On July 13, 2002, according to CIA records, attorneys from the CIA's Office of General Counsel met with the Legal Adviser to the National Security Council, a Deputy Assistant Attorney General from OLC, the head of the Criminal Division of the Department of Justice, the chief of staff to the Director of the Federal Bureau of Investigation, and the Counsel to the President to provide an overview of the proposed interrogation plan for Abu Zubaydah. On July 17, 2002, according to CIA records, the Director of Central Intelligence (DCI) [George Tenet] met with the National Security Advisor[Condoleezza Rice], who advised that the CIA could proceed with its proposed interrogation of Abu Zubaydah. This advice, which authorized CIA to proceed as a policy matter, was subject to a determination of legality by OLC.

On July 24, 2002, according to CIA records, OLC orally advised the CIA that the Attorney General had concluded that certain proposed interrogation techniques were lawful and, on July 26, that the use of waterboarding was lawful. OLC issued two written opinions and a letter memorializing those conclusions on August 1, 2002.[54]                                       

The two August 1 OLC memos, signed by Assistant Attorney General Jay Bybee and largely written by Deputy Assistant Attorney General John Yoo, included what has become known as the “First Bybee Memo” or “Torture Memo.” It found 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 “circumstances of the current war.” 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.[55]

The memo also took an extremely narrow view of which acts might constitute torture. It referred to seven practices that US courts have ruled 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."[56]

A second Bybee memo, declassified in 2009, addressed the legality of 10 specific interrogation tactics, including waterboarding, against Abu Zubaydah (who was incorrectly described in the memo as “one of the highest ranking members of the al Qaeda terrorist organization”). The opinion described in great detail how the techniques should be used, including placing the detainee “in a cramped confinement box with an insect” as “he appears to have a fear of insects” as well as waterboarding, which the Bybee memo concluded did not constitute torture because it did not result in “prolonged mental harm.”[57]

With these approvals, CIA officials began using more abusive interrogation methods on Zubaydah. According to The New York Times, “At times, Mr. Zubaydah, still weak from his wounds, was stripped and placed in a cell without a bunk or blankets. He stood or lay on the bare floor, sometimes with air-conditioning adjusted so that, one official said, Mr. Zubaydah seemed to turn blue. At other times, the interrogators piped in deafening blasts of music by groups like the Red Hot Chili Peppers.”[58]According to the ICRC report, Zubaydah claimed he was slammed directly against a hard concrete wall. Zubaydah was waterboarded 83 times.[59]

Zubaydah later told the ICRC that while being waterboarded he struggled against the straps, causing pain in his wounds, and that he usually vomited after each “suffocation”:

I was ... put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.

I was then placed again in the tall box. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket with urine tipped over and spilt over me…. I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before.[60]

In 2007, Zubaydah told a tribunal at Guantanamo Bay that much information he provided to interrogators while he was subjected to what he called “torture” were not true.[61]

The CIA videotaped Zubaydah’s interrogations. In 2005, however, the agency destroyed 90 videotapes of Zubaydah's interrogations, which resulted in a criminal investigation of officials. In November 2010, Justice Department officials confirmed that no charges would be filed in connection with the destruction of the tapes.[62]

As of this writing, Zubaydah remains in Guantanamo. He has not been charged with any offense. Although Bush had described Zubaydah as “one of al Qaeda’s top operatives plotting and planning death and destruction on the United States,”[63] in 2009 the Justice Department recognized that Zubaydah did not have “any direct role in or advance knowledge of the terrorist attacks of September 11, 2001.”[64] While there is much debate over the value of the information he provided, the Washington Post concluded that, “not a single significant plot was foiled as a result of Abu Zubaida's tortured confessions according to former senior government officials who closely followed the interrogations.”[65]

 

Growth of the CIA Program

Many of the same interrogation methods used on Zubaydah were later used on other detainees in CIA custody, including Abd al-Rahim al-Naishiri, who was apprehended in the United Arab Emirates in August 2002; Ramzi Bin al Shibh, apprehended in Pakistan in September 2002; Khalid Sheikh Mohammad, apprehended in Pakistan in March 2003; and Riduan Isamuddin, also known as Hambali, apprehended in Bangkok in August 2003.

In February 2008, CIA Director Michael Hayden and OLC head Stephen Bradbury confirmed that waterboarding was used on CIA detainees; Hayden mentioned waterboarding being used on al-Nashiri, Zubaydah, and Khalid Sheikh Mohammed specifically.[66]The ICRC interviewed the 14 “high-value” detainees after they had been moved to Guantanamo and found that three had allegedly been waterboarded, among other unlawful methods.[67]According to its report:

The methods of ill-treatment alleged to have been used include the following:

Suffocation by water poured over a cloth placed over the nose and mouth [waterboarding], alleged by three of the fourteen.

Prolonged stress standing position, naked, held with the arms extended and chained above the head, as alleged by ten of the fourteen, for periods from two or three days continuously, and for up to two or three months intermittently, during which period toilet access was sometimes denied resulting in allegations from four detainees that they had to defecate and urinate over themselves.

Beatings by use of a collar held around the detainee’s neck and used to forcefully bang the head and body against the wall, alleged by six of the fourteen.

Beating and kicking, including slapping, punching, kicking to the body and face, alleged by nine of the fourteen.

Confinement in a box to severely restrict movement alleged in the case of one detainee.

Prolonged nudity alleged by eleven of the fourteen during detention, interrogation and ill-treatment; this enforced nudity lasted for periods ranging from several weeks to several months.

Sleep deprivation was alleged by eleven of the fourteen through days of interrogation, through use of forced stress positions (standing or sitting), cold water and use of repetitive loud noise or music. One detainee was kept sitting on a chair for prolonged periods of time.

Exposure to cold temperature was alleged by most of the fourteen, especially via cold cells and interrogation rooms, and for seven of them, by the use of cold water poured over the body or, as alleged by three of the detainees, held around the body by means of a plastic sheet to create an immersion bath with just the head out of the water.

Prolonged shackling of hands and/or feet was alleged by many of the fourteen.

Threats of ill-treatment to the detainee and/or his family, alleged by nine of the fourteen.

Forced shaving of the head and beard, alleged by two of the fourteen.

Deprivation/restricted provision of solid food from 3 days to 1 month after arrest, alleged by eight of the fourteen.

…each specific method was … in fact applied in combination with other methods, either simultaneously, or in succession.[68]

The CIA inspector general’s report, finally released in heavily redacted form in 2009, details incidents including mock executions, waterboarding, execution threats using an unloaded semi-automatic handgun, smoke inhalation to provoke vomiting, threatening a naked and hooded detainee with a revving power drill, death threats and threats against family members, and pressing on pressure points to provoke repeated fainting.[69]

The expansion of the CIA program was later discussed and authorized, after the fact, in a meeting at the White House in early 2003. As the 2009 SSCI narrative states:

In the spring of 2003, the DCI [George Tenet] asked for a reaffirmation of the policies and practices in the interrogation program. In July 2003, according to CIA records, the NSC Principals met to discuss the interrogation techniques employed in the CIA program. According to CIA records, the DCI [George Tenet] and the CIA’s General Counsel [John Rizzo] attended a meeting with the Vice President [Dick Cheney], the National Security Adviser [Condoleezza Rice], the Attorney General [John Ashcroft], the Acting Assistant Attorney General for the Office of Legal Counsel, [Ed Whelan],[70] a Deputy Assistant Attorney General [possibly John Yoo],the Counsel to the President [Alberto Gonzales], and the Legal Adviser to the National Security Council [John Bellinger] to describe the CIA’s interrogation techniques, including waterboarding. According to CIA records, at the conclusion of that meeting, the Principals reaffirmed that the CIA program was lawful and reflected administration policy [emphasis added].[71]

The report adds that on September 16, 2003, “pursuant to a request from the National Security Adviser [Rice], the Director of Central Intelligence [Tenet] subsequently briefed the Secretary of State [Powell] and the Secretary of Defense [Rumsfeld] on the CIA’s interrogation techniques.”[72]

The CIA detention and interrogation program appears to have been scaled back temporarily in 2004, after the Abu Ghraib scandal and a critical report by the CIA inspector general that was sent to the White House in May 2004.

There had been significant controversy within the CIA about the program, leading to an investigation by the CIA Office of Inspector General which took place through 2003 and into 2004. On May 7, 2004, only a few weeks after news of the abuse of detainees at Abu Ghraib broke, the CIA’s Inspector General John Helgerson, despite being reprimanded by a reportedly furious Vice President Cheney,[73] issued a classified report, a copy of which was sent to the highest levels of the White House, the CIA, and to the committee chairman and vice chairman and senior staff of the Senate Select Committee on Intelligence.[74]

The CIA inspector general’s report appears to have caused considerable anxiety within the White House. According to the SSCI narrative, CIA General Counsel John Rizzo attended a meeting in May 2004 with Alberto Gonzales, David Addington, John Bellinger, and several “senior Department of Justice officials” to discuss the CIA’s program and the Inspector General’s report.[75] The new OLC head, Jack Goldsmith, apparently also raised concerns with the legal analysis in earlier OLC memos, and in June 2004 Goldsmith withdrew the OLC’s unclassified August 1, 2002 opinion on the federal torture statute.[76] For reasons that are unclear, the OLC did not withdraw the classified August 1, 2002 opinion on the Zubaydah interrogation.

However, in May 2005, the new OLC head, Stephen Bradbury, issued three memoranda to the CIA embracing many of the earlier arguments in the Bybee memorandum applicable to Abu Zubaydah, and—years after the fact—formally authorizing the expansion of the techniques originally approved in 2002 to other detainees.[77] The Bradbury memoranda were declassified in 2009 along with the Second Bybee Memo.

After the Bradbury memoranda were approved, the NSC Principals Committee met on May 31, 2005. The Principals Committee, now chaired by Stephen Hadley and including Alberto Gonzales, Condoleezza Rice, and David Addington, among others, “approved” all of the techniques discussed in the May 2005 memoranda, presumably recommending to the president that he reauthorize the program, which he did.[78]

President Bush revealed the existence of the CIA detention and interrogation program a year later, in a public speech at the White House on September 6, 2006, acknowledging that suspects had been held “secretly” “outside the United States.” “[A] reason the terrorists have not succeeded,” he stated while introducing his justifications for the CIA program, “is because our government has changed its policies and given our military, intelligence and law enforcement personnel the tools they need to fight this enemy and protect our people and preserve our freedoms.”[79] Bush reauthorized the program in July 2007.[80]

The CIA Rendition Program

The CIA has regularly transferred detainees to countries known to routinely practice torture, a practice often referred to as “extraordinary rendition.”

While the US practice of rendering terrorist suspects abroad predates the September 11 attacks, the CIA’s rendition practices changed after they occurred. Rather than returning people to their home or third countries to face “justice” (albeit justice that often included torture and grossly unfair trials), the CIA began handing people over to their home or third countries, apparently to facilitate abusive interrogations.[81]

The secrecy surrounding the rendition program means that no accurate statistics exist. One study found 53 such cases, excluding those sent to Afghanistan or into US custody.[82] One such country, Jordan, was notorious for torturing security detainees, which would have been well known to US officials at the time of the transfers. Many detainees were returned to CIA custody immediately after intensive periods of abusive interrogation in Jordan.

Numerous detainees so rendered are known or believed to have been tortured. The following cases are illustrative:

Maher Arar, a Syrian-born Canadian national in transit from a family vacation through John F. Kennedy Airport in New York City was detained by US authorities acting on incorrect information from the Royal Canadian Mounted Police.[83] After holding him incommunicado for nearly two weeks, US authorities flew him to Jordan, where he was driven across the border and handed over to Syrian authorities, despite his statements to US officials that he would be tortured if sent there. Indeed, he was tortured during his confinement in a Syrian prison, often with cables and electrical cords.[84] Following an extensive investigation by the Canadian government, which cleared Arar of all terror connections, Canada offered him a formal apology and compensation of 10.5 million Canadian dollars (US$10.75 million) plus legal fees for providing the unsubstantiated information to US officials.[85] In contrast, the Bush administration refused to assist the Canadian inquiry and disregarded Canadian Prime Minister Stephen Harper’s request that the US acknowledge its inappropriate conduct. When Arar sued the US for denying him his civil rights, the Bush administration—and later the Obama administration—successfully argued the case should never be allowed to come to trial for reasons of national security.[86]

In early October 2001, Australian citizen Mamdouh Habib was arrested in Pakistan. Pakistan’s interior minister later said that Habib was sent to Egypt on US orders and in US custody.[87] Habib says that while detained in Egypt for six months, he was suspended from hooks on the wall, rammed with an electric cattle prod, forced to stand on tiptoe in a water-filled room, and threatened by a German shepherd dog.[88] In 2002, Habib was transferred from Egypt to Bagram air base in Afghanistan, then to Guantanamo Bay. On January 28, 2005, Habib was sent home from Guantanamo to Sydney, Australia.[89] In 2010, Habib sued the Australian government, claiming Australian officials were complicit in his false imprisonment and assault in Pakistan, Egypt, and Guantanamo.[90] In January 2011, the Australian government paid Habib an undisclosed amount to absolve it of legal liability in the case.[91]

In December 2001, Swedish authorities handed two Egyptians, Ahmed Agiza and Mohammed al-Zari, to CIA operatives at Bromma Airport in Stockholm. The operatives stripped them, inserted suppositories into their rectums, dressed them in a diaper and overalls, blindfolded them, and placed a hood over their heads. They were then placed aboard a US government-leased plane and flown to Egypt.[92] There the two men were reportedly regularly subjected to electric shocks and other mistreatment, including in Cairo’s notorious Tora prison.[93]

On November 16, 2003, Osama Moustafa Nasr—also known as “Abu Omar”—went missing in Milan. Sometime in 2004, he phoned his wife and friends in Milan and reportedly described being stopped in the street “by Western people,” forced into a car, and taken to an air force base.[94] From the airbase, Nasr was flown to Cairo via Germany and turned over to Egypt's secret police, the State Security Intelligence, at Tora prison.[95] There, Nasr alleged being tortured with electric shocks, beatings, rape threats, and genital abuse.[96] The UK’s Sunday Times reported that Nasr “claimed he had been tortured so badly by secret police in Cairo that he had lost hearing in one ear.”[97] In February 2007, after four years of detention, Nasr was released by an Egyptian court, which found that his detention was “unfounded.”[98] Following a subsequent police investigation and indictment, on November 4, 2009, a judge in Milan convicted, in absentia, 22 CIA agents, a US Air Force colonel, and two Italian secret agents for the kidnapping—the first and only convictions anywhere in the world against people involved in the CIA’s extraordinary renditions program.[99] The convictions were confirmed on appeal, and the sentences increased. Each received a sentence of between seven and nine years’ imprisonment, and were ordered to pay €1 million (US$1.44 million) to Nasr and €500,000 (US$720,469) to Nasr's wife.[100] The Italian government has, to date, refused the prosecutor’s request to seek extradition of the US agents.[101]

In November 2001, Muhammad Haydar Zammar, a German citizen of Syrian descent,[102] was arrested in Morocco and flown to Syria.[103] Moroccan government sources have told reporters that the CIA asked them to arrest Zammar and send him to Syria,[104] and that CIA agents took part in his interrogation sessions in Morocco.[105] Zammar was taken to the same Syrian prison where Maher Arar was held.[106] On July 1, 2002, TimeMagazine reported:

US officials tell Time that no Americans are in the room with the Syrian who interrogate Zammar. US officials in Damascus submit written questions to the Syrians, who relay Zammar’s answers back. State Department officials like the arrangement because it insulates the US government from any torture the Syrians may be applying to Zammar. And some State Department officials suspect that Zammar is being tortured.[107]

Muhammad Saad Iqbal Madni, a Pakistani national, was arrested in Jakarta, Indonesia on January 9, 2002. Indonesian officials and diplomats told The Washington Post this was done at the CIA’s request. Several days later, Egypt made a formal request that Indonesia extradite Madni for unspecified, terrorism-related crimes. However, according to “a senior Indonesian government official … [t]his was a US deal all along.… Egypt just provided the formalities.”[108] On January 11, the Indonesian officials said, Madni was taken onto a US registered Gulfstream V jet at a military airport, and flown to Egypt for interrogation.[109]The New York Times reported that “Iqbal said he had been beaten, tightly shackled, covered with a hood and given drugs, subjected to electric shocks and, because he denied knowing Bin Laden, deprived of sleep for six months”; in his own words, “[t]hey make me blind and stand up for whole days.”[110] On September 11, 2004, the Times of London reported that despite repeated inquiries by Madni’s relatives, “nothing has been seen or heard from” him since he was taken from Jakarta.[111] However, he was later transferred to Bagram air base in Afghanistan,[112] and from there to Guantanamo Bay.[113] He later stated that he had attempted suicide.[114] He was ultimately repatriated in August 2008, after spending more than six years in US custody. At that time, he was reported to have difficulty walking, his left ear was infected and was operated on by a Pakistani surgeon, he was receiving physical therapy for back problems, and he was “dependent on a cocktail of antibiotics and antidepressants.”[115]

Coercive Interrogations by the Military

The NSC’s approval of coercive interrogation techniques by the CIA in 2002 set the stage for approval of similar unlawful methods for military interrogators at Guantanamo Bay, Afghanistan, and Iraq.

Abuses by Military Interrogators in Afghanistan, Guantanamo, and Iraq

Abusive interrogations by the military appear to have begun in Afghanistan as early as December 2001 and continued despite high-profile media accounts, and perhaps encouraged by the sidelining and disparaging of the Geneva Conventions by US officials.

Reports by civilian Federal Bureau of Investigation (FBI) agents who witnessed detainee abuse by military personnel at Guantanamo—including forcing chained detainees to sit in their own excrement—reinforced accounts by former detainees describing the use of painful stress positions, extended solitary confinement, military dogs to threaten them, threats of torture and death, and prolonged exposure to extremes of heat, cold, and noise.[116] Videotapes of military riot squads subduing suspects reportedly show the guards punching some detainees, tying one to a gurney for questioning and forcing a dozen to strip from the waist down.[117] Former detainees said they were subjected to weeks and even months in solitary confinement—which was at times either suffocatingly hot, or cold from excessive air conditioning—as punishment for not cooperating in interrogations or for violating prison rules.[118]

Many techniques used on detainees by military personnel at Abu Ghraib prison and other Iraqi locations resembled abuse seen earlier in Afghanistan and Guantanamo, including forced standing and exercise, shackling detainees in painful positions or close confinement, extensive long-term sleep deprivation, and exposure to cold.[119]

Abuse spread throughout Iraq from late 2003 and into 2004. Documented cases included beatings and suffocation,[120] sexual abuse,[121] mock executions,[122] and electro-shock torture.[123] Human Rights Watch reported in 2006 on serious abuses by military Special Mission Unit Task Force units in Iraq, including allegations of beatings, exposure to extreme cold or heat, threats of death, sleep deprivation, various forms of psychological torture or mistreatment, painful stress positions, and in one instance, giving a prisoner urine to drink.[124] These abuses received considerable internal military attention and media coverage from 2004 to 2006.[125]

Approving Illegal Techniques for Military Interrogation

While the Bush administration sought to portray the decision to allow the military to use aggressive interrogation methods as originating from Guantanamo,[126] reconstructions of the events, including those provided in a book by lawyer Philippe Sands, indicate the decision came from above, from Defense Secretary Rumsfeld, Defense General Counsel Haynes, Vice President Cheney’s legal counsel David Addington, and White House Counsel Alberto Gonzales, among others.[127]

The Office of the Secretary of Defense began in December 2001 to inquire about Joint Personnel Recovery Agency’s aggressive SERE techniques.[128] Not long after, JPRA personnel provided: training materials to Guantanamo interrogators in February 2002;[129] training to DIA personnel deploying to Afghanistan and Guantanamo in March 2002; at least one written “Draft Exploitation Plan” for possible dissemination to various military and intelligence-gathering agencies in April 2002;[130] and written materials and advice on the use of SERE mock interrogation techniques to psychologists working with interrogators in Guantanamo in June and July 2002.

The tactics used in mock SERE interrogations resembled many of the practices used immediately afterwards in Afghanistan and Guantanamo. These included stripping detainees naked for degradation purposes, exploiting cultural or religious taboos, and use of forced standing, exposure to cold, and prolonged sleep deprivation.

In July 2002, as the Bybee memos were being drafted to permit abusive techniques on Abu Zubaydah, Defense Deputy General Counsel Richard Shiffrin, on behalf of General Counsel Haynes, requested SERE instructor lesson plans, a list of the mock interrogation techniques used in SERE training, and a memorandum describing the “long-term psychological effects” of SERE training on students, and in particular the effects of waterboarding, a document which was also given to the CIA and OLC when they were drafting the August 1, 2002 Abu Zubaydah memorandum.[131] The SASC Report explains:

The list of SERE techniques included such methods as sensory deprivation, sleep disruption, stress positions, waterboarding, and slapping.… Mr. Shiffrin, the DoD Deputy General Counsel for Intelligence, confirmed that a purpose of the request was to “reverse engineer” the techniques.[132]

In mid-September 2002, JPRA staff trained Guantanamo personnel, using abusive techniques used in SERE schools.[133]

A week later, on September 25, 2002, a delegation of senior officials visited Guantanamo to discuss interrogations there.[134] The group included Defense General Counsel Haynes, CIA General Counsel Rizzo, Chief of the Criminal Division of the Department of Justice Michael Chertoff, the Vice President’s counsel Addington (“the guy in charge” according to the military lawyer present),[135] and Gonzales, counsel to the president. According to the SASC Report, Guantanamo commander Maj. Gen. Michael Dunlavey briefed the group on a number of issues including “policy constraints” affecting interrogations. Gen. Dunlavey told Philippe Sands that the group discussed the interrogation of Mohamed al-Qahtani, a detainee suspected of direct involvement in the September 11 attacks. “They wanted to know what we were doing to get to this guy … and Addington was interested in how we were managing it.” Lt. Col. Diane Beaver, Gen. Dunlavey’s senior counsel, confirmed Dunlavey’s account, telling Sands the group had essentially delivered the message to do “whatever needed to be done.”[136]

By October 11, 2002, Dunlavey sent a memo and an attached legal opinion by Lt. Col. Beaver to Gen. James Hill of Southern Command requesting authority to use aggressive interrogation techniques.[137] They included techniques aimed at humiliation and sensory deprivation including use of stress positions, forced standing, isolation for up to 30 days, deprivation of light and sound, 20-hour interrogations, removal of religious items, removal of clothing, forcible grooming such as the shaving of facial hair, and exploiting individual phobias such as fear of dogs. A higher category of techniques included the use of “mild, non-injurious physical contact,” described as grabbing, poking, and light pushing; use of scenarios designed to convince the detainee that death or severely painful consequences were imminent for him or his family; exposure to cold weather or water; and, notably, waterboarding.

In late October 2002, the documents were sent from Gen. Hill to Gen. Richard Meyers, the chairman of the Joint Chiefs of Staff, with recommendations that the secretary of defense authorize the techniques listed.

On November 14, 2002, Col. Britt Mallow, a senior commander at the Criminal Investigation Task Force (CITF) at Guantanamo who had already raised concerns about abusive interrogations with senior Pentagon officials, together with others expressed his legal concerns to Guantanamo commander Gen. Geoffrey Miller and Defense General Counsel Haynes.[138]

One FBI agent, Jim Clemente, an attorney and former prosecutor, warned that the proposed interrogation plans violated the federal torture statute and that interrogations could lead to prosecution,[139] concerns that were shared with FBI Director Robert Mueller, and senior attorneys in the Defense Department’s General Counsel’s office.[140] At the same time, the FBI reported already ongoing abuses to the Defense Department General Counsel’s office.[141]

Nevertheless, General Counsel Haynes submitted the techniques to Defense Secretary Rumsfeld for approval in late November 2002, with a one-page cover letter recommending he approve most of the methods—but not waterboarding.[142] Rumsfeld approved the recommended techniques, including:

“The use of stress positions (like standing) for a maximum of four hours”;

“Use of the isolation facility for up to 30 days”;

“The detainee may also have a hood placed over his head during transportation and questioning”;

“Deprivation of light and auditory stimuli”;

“Removal of all comfort items (including religious items)”;

“Forced grooming (shaving of facial hair, etc)”;

“Removal of clothing”; and

“Using detainees’ individual phobias (such as fear of dogs) to induce stress.”[143]

Rumsfeld appended a handwritten note to his authorization of these techniques: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?”[144]

Those captured or otherwise taken into custody during the international armed conflict in Iraq and Afghanistan should have been presumptively classified as POWs, and afforded the protections due to POWs under the Third Geneva Convention.[145] In any case, the coercive interrogation methods used were in violation of the protections afforded to all detainees under article 3 common to the four Geneva Conventions of 1949 (Common Article 3) and other prohibitions on inhuman treatment found in customary international law.[146] And individuals responsible for carrying out or ordering torture or other inhuman treatment of detainees, whether or not they have POW status, may be prosecuted for war crimes.

Within weeks, JPRA SERE school personnel were again training Guantanamo interrogators.[147] But controversy continued to brew after Rumsfeld’s order.

Navy General Counsel Alberto Mora took his concerns to the secretary of the Navy, Gordon England, and with England’s approval spoke with Defense’s Haynes three times to warn him about the potential criminal liability associated with the al-Qahtani interrogation and Rumsfeld’s December 2, 2002 memorandum. Mora’s concerns were also put before Deputy Secretary of Defense Paul Wolfowitz, Jane Dalton, the general counsel to the Joint Chiefs, and Rumsfeld himself.[148] On January 9, 2003, Mora warned Haynes that the “interrogation policies could threaten Secretary Rumsfeld’s tenure and could even damage the presidency.”[149] Mora also left a memorandum with Haynes written by Navy JAG Corps Commander Stephen Gallotta, stating that some of the techniques authorized by Rumsfeld in his December 2, 2002 order, taken alone and especially when taken together, could amount to torture; that some constituted assault; and that most of the techniques, absent lawful purpose, were “per se unlawful.”[150]

On January 15, 2003, Mora sent Haynes a draft memo that he planned to sign concluding that the techniques were illegal and triggered criminal liability, and stated that he would sign the document, unless Rumsfeld’s December 2, 2002 authorization was rescinded. Haynes told Mora that he raised Mora’s concern with Rumsfeld, and that Rumsfeld in fact rescinded his December 2, 2002 authorization that same day, January 15, 2003, and created a “working group review” of the interrogation policy.[151] After the OLC provided a draft legal interpretation and a March 2003 memorandum reusing many of the arguments in the 2002 memoranda for the CIA, Rumsfeld issued a new memorandum on April 16, 2003, which, while more restrictive than the December 2002 rules, still allowed techniques that went beyond what the Geneva Conventions permitted for POWs or detained civilians.[152] Indeed, the defense secretary's memo itself states in relation to several techniques—including isolation and removing privileges from detainees—that “those nations that believe detainees are subject to POW protections” may find the techniques violate those protections.

Despite Rumsfeld’s January 15, 2003 rescission of authority the SASC report implies that, “[Rumsfeld’s] initial approval six weeks earlier continued to influence interrogation policies.”.[153]

Migration of the Approved Techniques

The Defense Department investigation chaired by James R. Schlesinger found that “the augmented techniques [approved by Rumsfeld] for Guantanamo migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.”[154]

Contrary to the attention given interrogation techniques at Guantanamo, there was no prescribed interrogation regime for prisoners in Afghanistan. According to the review of Defense Department interrogation operations conducted by Vice Adm. Albert T. Church, III, the US military command in Afghanistan in January 2003 submitted, as requested, a list of interrogation techniques to the military's Joint Staff and Central Command.[155] The list included techniques “ similar” to those approved by Rumsfeld for Guantanamo, but were said by Church to have been reached locally. When the command in Afghanistan didn’t hear complaints, it “interpreted this silence to mean that the techniques … were unobjectionable to higher headquarters, and therefore could be considered approved policy.”[156]

A 2006 Defense Department Inspector General report on detainee abuse explained how the techniques put in place in late 2002 and re-crafted in early 2003 “cross-fertilized” with abuses occurring in Afghanistan and migrated to Iraq.[157] The 2008 SASC Report details how Special Mission Unit Task Force (SMU TF) officials from Afghanistan visited Guantanamo in late 2002, compared notes on techniques from JPRA, and started drawing up a more formal list of techniques to be specifically authorized. Officials in Afghanistan appear to have begun drawing up a set of policies based both on the techniques they were already utilizing and others they had learned from their trip to Guantanamo.

A large portion of the SMU TF policies were based on Rumsfeld’s December 2, 2002 authorization of techniques for Guantanamo, and the overarching legal reasoning contained in President Bush’s February 7, 2002 decision to reject the application of the Geneva Conventions to al Qaeda and Taliban detainees—even though the detainees in Iraq were a different and distinct set of combatants. Curiously, the techniques from Rumsfeld’s December 2002 Guantanamo authorization appear in January 2003 SMU TF policy documents even though the original authorization was rescinded.

The abuses involving the SMU TF in Iraq, discussed above, appeared to be based on SMU TF policies from Afghanistan.[158] The 2006 Defense Department inspector general’s report and 2008 SASC report specifically found that the SMU TF in Iraq had based its first interrogation policies on the “Standard Operating Procedure”(SOP) used by SMU TF in Afghanistan.[159]

Other military intelligence personnel in Iraq also based their interrogation policies on the Afghanistan-Iraq SMU TF policies. Capt. Carolyn Wood, who had helped develop interrogation policies for non-special forces in Afghanistan in late 2002—and who was implicated in the beating deaths of two detainees there in December 2002—was stationed in Iraq and put in command of Abu Ghraib interrogation operations in mid-2003, under the new Combined Joint Task Force 7 (CJTF-7). In July 2003, Capt. Wood drafted a proposed interrogation policy, based on the Afghanistan and Iraq SMU TF guidelines, including proposed use of sleep deprivation and “’vary comfort positions’ (sitting, standing, kneeling, prone); presence of military working dogs; 20-hour interrogations; isolation, and yelling, loud music, and light control.”[160] Wood admitted that, even when she began, interrogators were already using “stress positions” on detainees.[161] CJTF-7 appears to have also sought input from other intelligence personnel for a “wish list” of interrogation techniques.[162] On August 27, 2003, Wood resubmitted her list of techniques, adding “sensory deprivation” to the list.[163]

The overall military commander for Iraq, Gen. Ricardo Sanchez, approved Wood’s proposed policy, which was promulgated on September 14, 2003. The abusive techniques approved, along with the techniques used by SMU TF units, were among those being used at Abu Ghraib through the beginning of 2004.[164]

III. Individual Criminal Responsibility

The Illegality of the Underlying Abuses

The acts and abuses discussed in this report violate various provisions of US federal law, including the Crimes and Criminal Procedure Statute, Chapter 18 of the US Code (U.S.C.), which prohibits: torture (section 2340A(a)); assault (section 113); sexual abuse (sections 2241-2246); kidnapping (section 1201); homicide (sections 1111-1112 and section 2332); acts against rights (for example, sections 241-242, prohibiting conspiracies to deprive persons of their legal rights); war crimes (section 2441); conspiracy and solicitation of violent crimes (sections 371 and 373); and conspiracy to commit torture (section 2340A(c)).

The War Crimes Act of 1996 provides criminal punishment for whomever, inside or outside the United States, commits a war crime, if either the perpetrator or the victim is a member of the US Armed Forces or a national of the United States. A “war crime” is defined as any “grave breach” of the 1949 Geneva Conventions or acts that violate Common Article 3 of the four Geneva Conventions. “Grave breaches” include “willful killing, torture or inhuman treatment” of prisoners of war and of civilians qualified as “protected persons.” Common Article 3 prohibits murder, mutilation, cruel treatment and torture, and “outrages upon personal dignity, in particular humiliating and degrading treatment.”[165]

The 2006 Military Commissions Act revised the War Crimes Act and limited the definition of war crimes, with retroactive effect. As a result, humiliating and degrading treatment of detainees in US counterterrorism operations following the September 11 attacks can no longer be charged as war crimes under the statute. However, this does not change liability for murder and torture.

The Anti-Torture Act (18 U.S.C. section 2340A) provides criminal penalties for acts of torture—including attempts to commit torture and conspiracy to commit an act of torture—occurring outside the territorial jurisdiction of the United States regardless of the citizenship of the perpetrator or victim.[166]

The Anti-Torture Act defines torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”[167]

Some of the crimes listed above are subject to a statute of limitations. Under federal law, charges for the crimes of assault, kidnapping, and acts against rights must ordinarily be brought within five years of the date of the commission of the offense.[168] Where evidence of a crime is located in another country, which may be the case for some or all of the possible crimes described above, the limitations period may be extended for an additional three years, meaning eight years from the time the crime was committed.[169]

For the crime of torture, the statute of limitations is at least eight years,[170] and arguably does not exist at all.[171]

Homicide, sexual abuse, and war crimes resulting in death are not subject to a limitation period.

Conspiracy: In addition to the substantive offenses listed above, there is sufficient evidence to open a criminal investigation into whether senior Bush administration officials engaged in a criminal conspiracy to commit offenses such as torture and war crimes. This conspiracy would include, at a minimum, the top officials listed in this report as well as the lawyers who drafted legal memoranda seeking to justify torture.

A conspiracy to commit a federal crime may fall under the general federal conspiracy statute (18 U.S.C. section 371),[172] as well as specific statutes for particular substantive offenses, the most relevant of which would be conspiracy to commit torture (18 U.S.C. section 2340A(c)).[173]

The essential elements required to bring a charge of conspiracy under 18 U.S.C. section 371 include:

(i) An agreement of two or more persons (ii) to knowingly and voluntarily commit a federal crime, with (iii) knowledge of the essential objectives of the conspiracy, (iv) interdependence amongst the conspirators, and (v) an “overt act” committed in furtherance of the conspiracy.[174]

Among the “overt acts” in furtherance of the conspiracy, in addition to the mistreatment itself, would be the preparation and adoption of the various legal memos, Executive Orders, and formal and informal approvals.[175]

Specific intent is an essential element of criminal conspiracy.[176] It is necessary to demonstrate that the conspirator intended to agree to commit elements of the underlying offense.[177] While some officials might argue that authorization of their conduct by the Justice Department's Office of Legal Counsel negates the specific intent requirement, that argument would almost certainly fail if prosecutors could demonstrate that the OLC’s own work was itself an act within the conspiracy or if, as explained below, those officials were instrumental in pressing for legal cover from the OLC or influenced the drafting of the memoranda that they now claim protects them. In addition, it is not necessary for conspirators to have known or intended for the conspiracy to violate federal law per se. As the Supreme Court has said:

The general conspiracy statute, 18 U.S.C. s.371 offers no textual support for the proposition that to be guilty of conspiracy a defendant in effect must have known that his conduct violated federal law. The statute makes it unlawful simply to “conspire . . . to commit any offense against the United States.” A natural reading of these words would be that since one can violate a criminal statute simply by engaging in the forbidden conduct, a conspiracy to commit that offense is nothing more than an agreement to engage in the prohibited conduct.[178]

While conspiracy is subject to a five-year statute of limitations, it is a continuing crime that does not end until the last co-conspirator commits the last overt act of the conspiracy.[179]

At a minimum, President Bush’s reauthorization of the CIA detention program in July 2007[180] would be considered an overt act, pushing the statute of limitations to July 2012. There is no immunity from prosecution in US courts for the acts described in this report.[181]

Forms of Liability

Senior US officials did not physically commit acts of abuse. However, civilian superiors and military commanders can be held criminally liable as principals if they order, induce, instigate, aid, or abet in the commission of a crime. This is a principle recognized both in US[182] and international law.[183]

In addition, the doctrine of “command responsibility” or “superior responsibility” holds that individuals who are in civilian or military authority may under certain circumstances be criminally liable for the crimes of those under their command or authority. Three elements are needed to establish such liability:

1)       There must be a superior-subordinate relationship;

2)      The superior must have known or had reason to know that the subordinate was about to commit a crime or had committed a crime; and

3)      The superior failed to take necessary and reasonable measures to prevent the crime or to punish the perpetrator.

The US armed forces have long recognized the principle of command responsibility.[184]The first and most significant US case involving “command responsibility” was that of Gen. Tomoyuki Yamashita, commander of the Japanese forces in the Philippines in World War II, whose troops committed brutal atrocities against the civilian population and prisoners of war. General Yamashita, who had lost almost all command, control, and communications over his troops, was nevertheless convicted by the International Military Tribunal in Tokyo based on the doctrine of command responsibility. The US Supreme Court affirmed the decision, holding that Yamashita was, by virtue of his position as commander of the Japanese forces in the Philippines, under an “affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population.”[185]

Waterboarding is Torture

“Waterboarding” is a relatively recent name for a form of water torture that dates at least to the Spanish Inquisition, when it was called the tormenta de toca.[186] It has been used by some of the cruelest dictatorships in modern times, including the Khmer Rouge in Cambodia and became known as the “submarino” when it was practiced by the military dictatorships in Latin America in the 1970s and 1980s.[187] While often referred to as “simulated drowning,” experts have taken issue with this label as failing to convey the genuine harm done to the victim who actually is drowning.[188] As approved for CIA use, it was designed to produce “the perception of ‘suffocation and incipient panic.’”[189] In April 2006, more than 100 US law professors stated in a letter to Attorney General Alberto Gonzalez that waterboarding is torture, and is a criminal felony punishable under the US federal criminal code.[190] As director of the US Defense Intelligence Agency, Lt. Gen. Michael D. Maples in 2008 gave testimony that, in his view, waterboarding violated the laws of war.[191] Waterboarding has been denounced as a torture method by the US State Department,[192] the UN High Commissioner for Human Rights,[193] the Committee against Torture,[194] the UN special rapporteur on torture,[195] and the UN special rapporteur on protecting human rights while countering terrorism,[196] among others.

Courts in the US and other tribunals have repeatedly found that waterboarding, or variations of it, constitute torture and is a war crime:[197]

• Following revelations by a congressional inquiry that US forces were engaging in water torture known as “the water cure” in its occupation of the Philippines in the early 1900s, several US officers were court-martialed, and one—Maj. Edwin Glenn—was suspended from command for a month and fined for authorizing the practice.[198]
• Several US military commissions in the World War II Pacific Theater found that variants of waterboarding constituted torture, including in United States v. Sawada, the prosecution of the Japanese officers responsible for the torture of the Doolittle raiders.[199]
• The International Military Tribunal for the Far East, convened by US Gen. Douglas MacArthur in 1946, condemned and found that the widespread use of waterboarding variants by the Japanese military constituted torture. It issued severe sentences to both those who administered and those who ordered it.[200]
• In 1968, a front page article in The Washington Post featuring a picture of a US soldier supervising the administration of water torture on a North Vietnamese soldier reportedly led to a court-martial.[201]
• In a class action lawsuit by over 10,000 Filipino plaintiffs against the Ferdinand Marcos government in the Philippines, a US federal district court in 1995 found that water torture was among the various human rights violations committed.[202]
• In 1983, a federal court found that water torture was criminal conduct under US law, when Sheriff James Parker of San Jacinto County, Texas, and three deputies were convicted by a jury for engaging in the practice. Each received substantial prison sentences. On appeal, the judge held that the sheriff had allowed law enforcement to fall into “the hands of a bunch of thugs. The operation down there would embarrass the dictator of a country.”[203]
• President Obama and Attorney General Eric Holder have both stated that waterboarding is torture.[204]
• Several Bush administration officials, such as Director of National Intelligence Mike McConnell and Homeland Security Department Secretary Tom Ridge, have also publicly recognized that waterboarding is torture.[205]

 

Interrogation Techniques that Secretary Rumsfeld Authorized Constitute Torture and Ill-Treatment

In December 2002, Defense Secretary Rumsfeld authorized a number of interrogation and detention techniques, including stress positions, hooding during questioning, deprivation of light and auditory stimuli, and use of “detainees’ individual phobias (such as fear of dogs) to induce stress.”[206]

These methods violate the protections afforded to all persons in custody—whether combatants or civilians—under the laws of armed conflict and can amount to torture or inhuman treatment. For detainees who should be considered POWs or were entitled to a presumption of POW status, mistreatment by these methods would be a grave breach of the Geneva Conventions. Serious violations of the laws of war committed with criminal intent, including grave breaches of the Geneva Conventions, are war crimes.

The Army Field Manual on intelligence interrogation in effect when Rumsfeld authorized the various interrogation methods, FM 34-52, cites as an example of torture “forcing an individual to stand, sit, or kneel in abnormal positions for prolonged periods of time.” Mental torture includes “abnormal sleep deprivation,” which may or may not have resulted from the authorization of light control and loud music. The field manual also prohibits forms of coercion including threats. Perhaps most importantly, the field manual instructs soldiers, when in doubt, to ask themselves: “If your contemplated actions were perpetrated by the enemy against US POWs, you would believe such actions violate international or US law.”[207]

The UN Committee Against Torture has considered techniques such as these to constitute torture.[208] It specifically called on the US to “rescind any interrogation technique, including methods involving sexual humiliation, ‘waterboarding,’ ‘short shackling,’ and using dogs to induce fear, that constitute torture or cruel, inhuman or degrading treatment or punishment, in all places of detention under its de facto effective control, in order to comply with its obligations under the Convention.”[209]

In his 2004 report to the UN General Assembly, the UN special rapporteur on torture specified that such interrogation techniques violated the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:

The Special Rapporteur has recently received information on certain methods that have been condoned and used to secure information from suspected terrorists. They notably include holding detainees in painful and/or stressful positions, depriving them of sleep and light for prolonged periods, exposing them to extremes of heat, cold, noise and light, hooding, depriving them of clothing, stripping detainees naked and threatening them with dogs. The jurisprudence of both international and regional human rights mechanisms is unanimous in stating that such methods violate the prohibition of torture and ill-treatment.[210]

The US government has itself denounced as torture these same methods when practiced by other countries, including Burma (being forced to squat or remain in uncomfortable periods for long periods of time), Egypt (stripping and blindfolding of prisoners), Eritrea (tying of hands and feet for extended periods of time), Iran (sleep deprivation and suspension for long periods in contorted positions), Iraq (food and water deprivation), Jordan (sleep deprivation and solitary confinement), Pakistan (prolonged isolation and denial of food or sleep), Saudi Arabia (sleep deprivation), Tunisia (food and sleep deprivation), and Turkey (prolonged standing, isolation).[211] The State Department human rights reports also criticized Egypt for stripping and blindfolding detainees and pouring cold water on them; Tunisia, Iran, and Libya for using sleep deprivation; Libya for threatening chained detainees with dogs; and North Korea for forcing detainees to stand up and sit down to the point of collapse.[212]

Of Rumsfeld’s methods, “fear of dogs … to induce stress” deserves special attention. Threatening a prisoner with torture to make him talk is considered to be a form of torture or cruel, inhuman or degrading treatment.[213] Threatening a prisoner with a ferocious guard dog is no different as a matter of law from pointing a gun at a prisoner’s head. And, of course, many of the pictures from Abu Ghraib show unmuzzled dogs being used to intimidate detainees, sometimes while they are cowering, naked. As General Fay noted in his report on Abu Ghraib “When dogs are used to threaten and terrify detainees, there is a clear violation of applicable laws and regulations.”[214]

CIA Secret Detention Program Constituted Enforced Disappearances and Ill-Treatment

The CIA’s secret detention program, entailing prolonged incommunicado detention without trial, violated international legal prohibitions against enforced disappearances. Disappearances violate or threaten to violate a range of rules of international human rights and humanitarian law, including arbitrary deprivation of liberty, torture, and the right to life.

US law places limits on the treatment of detained terrorist suspects. The US Supreme Court ruled in 2004 that the Authorization for Use of Military Force, which Congress passed after the September 11, 2001 attacks and authorizes presidential action against al Qaeda and allied forces, gave the president power to detain enemy belligerents. However, Justice Sandra Day O’Connor, speaking for the plurality of the court, said, “Certainly, we agree that indefinite detention for the purposes of interrogation is not authorized.”[215]

US foreign relations law has long recognized that “prolonged detention without charges and trial,” and “causing the disappearance of persons by the abduction and clandestine detention of those persons” constitute “gross violations of internationally recognized human rights.”[216]

The prolonged, unacknowledged, incommunicado detention of persons in secret CIA facilities constitutes enforced disappearances under international law. The International Convention for the Protection of All Persons from Enforced Disappearance (“Convention against Enforced Disappearance”) defines an enforced disappearance as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”[217]

The Convention against Enforced Disappearance states that “No one shall be held in secret detention”[218] The UN Declaration on the Protection of All Persons from Enforced Disappearances, which was adopted by the UN General Assembly in 1992, provides that all detainees shall be held in an officially recognized place of detention, and that accurate information on detainees and their place of detention shall be made promptly available to family members, counsel, and any others having a legitimate interest in the information.[219]

The UN General Assembly and UN Commission on Human Rights have both declared that “detention in secret places” can “facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment” and that it can “in itself constitute a form of such treatment.”[220] The UN Working Group on Enforced or Involuntary Disappearances has decried “’extraordinary rendition’ [that] has been used to transport terrorist suspects to other states for aggressive interrogation. Information continues to reach the Working Group on the existence of secret detention centres where terrorist suspects are held in complete isolation from the outside world. In [this situation], people disappear. As is well documented, disappearance is often a precursor to torture and even to extrajudicial execution.”[221]

With respect to the laws of armed conflict, the 25th International Conference of the Red Cross in 1986 condemned “any act leading to the forced or involuntary disappearance of individuals or groups of individuals.”[222] The 27th International Conference of the Red Cross and Red Crescent, in its Plan of Action for 2000-2003, requested that all parties to an armed conflict take effective measures to ensure that “strict orders are given to prevent all serious violations of international humanitarian law, including … enforced disappearances.”[223]

A confidential report of the International Committee of the Red Cross (ICRC) that was leaked to media in 2010 stated that the secret detention regime used by the CIA “itself constitutes a form of ill-treatment.”[224] The ICRC found that the circumstances in which the detainees were held by the CIA “amounted to … enforced disappearance.”[225]

OLC Legal Guidance Does Not Immunize Officials for Torture and Disappearances

The string of legal opinions and memoranda by Bush administration lawyers on detainee issues since September 11, 2001, appear to have been intended to shield US officials from potential liability. These opinions were largely written by the Department of Justice’s Office of Legal Counsel. Pursuant to DOJ regulations, the OLC is tasked with “preparing the formal opinions of the Attorney General; rendering informal opinions and legal advice to the various agencies of the Government; and assisting the Attorney General in the performance of his functions as legal adviser to the President…”[226]

In the January 25, 2002 draft memorandum for President Bush, White House counsel Alberto Gonzales advised against application of the Geneva Conventions to al Qaeda and Taliban detainees, stating that a “positive” reason for denying Geneva Convention protections to these detainees was to “[s]ubstantially reduce[] the threat of domestic criminal prosecution under the War Crimes Act.” 

Gonzales then explained to the president that "it is difficult to predict the motives of prosecutors and independent counsels who may in future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]. Your determination [that the Geneva Conventions do not apply] would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution."[227]

Bush and others have asserted that they approved the detention and interrogation techniques described above only after legal review by Department of Justice attorneys. For instance, in a television interview after he left office, Bush explained his approval of waterboarding: “We had legal opinions that enabled us to do it.”[228]

International law does not provide for “mistake of law” or “government authority” defenses to the crime of torture.[229]

Under US law, an accused cannot generally invoke an “advice-of-counsel” defense.[230] As Judge Richard Posner has noted, “If unreasonable advice of counsel could automatically excuse criminal behavior, criminals would have a straight and sure path to immunity.”[231]

At the same time, due process concerns would seem to bar conviction when a defendant engages in conduct in reasonable reliance on an official interpretation of the law. The Model Penal Code provides that belief that one’s conduct is lawful is a defense when the defendant “acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in … an official interpretation of the public officer or body charged by law with responsibility for the interpretation ... of the law defining the offense.”[232]

There is thus an exception to the mistake of law doctrine “in circumstances where the mistake results from the defendant's reasonable reliance upon an official—but mistaken or later overruled—statement of the law. … [T]he doctrine may in some circumstances protect a defendant's reasonable reliance on official advisory opinions, such as an Attorney General's opinion.[233]

Under section 1004(a) of the Detainee Treatment Act of 2005, written after the Abu Ghraib revelations and the release of the torture memos, officials prosecuted as a result of detention and interrogation operations may raise as a defense that they: “did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.”[234]

Under these statutes and precedents, then, the question of whether reliance on OLC guidance was “reasonable” and in “good faith” will depend on the facts, including the nature of the acts and of course whether potential defendants were involved in the preparation of the guidance.[235]

As the American Journal of International Law editorialized:

[T]hese memoranda cannot in themselves insulate or immunize persons engaging or complicit in torture or war crimes from international or domestic criminal responsibility for their conduct. It is well settled that advice of counsel—the "My lawyer said it was OK" defense—cannot serve as an excuse for violating the law, especially in cases where legal advice is deliberately sought and given for the very purpose of providing such an excuse.[236]

In the context of practices such as waterboarding, prolonged stress positions and long-term incommunicado detention, it stretches credulity to argue that a person of ordinary sense and understanding would not know the practices were illegal.

In addition, there is now substantial evidence that the initiative for abusive interrogation techniques came largely from civilian leaders, and that politically appointed administration lawyers created legal justifications in the face of opposition from career government legal officers. As political commentator Anthony Lewis has written, “[t]he memos read like the advice of a mob lawyer to a mafia don on how to skirt the law and stay out of prison. Avoiding prosecution is literally a theme of the memoranda.”[237] Journalist Jane Mayer concluded in her book The Dark Side that Bush and Cheney “turned the Justice Department Office of Legal Counsel into a political instrument.”[238] One unnamed former administration official, described as a “conservative lawyer,” told Mayer: “They didn’t care if the opinions would withstand scrutiny. They just wanted to check a box saying, ‘OLC says it’s legal.’ They wanted lawyers who would tell them that whatever they wanted to do was okay.”[239] Indeed, after two OLC heads—Jack Goldsmith and then Dan Levin—had given Bush and Cheney difficulty over the torture issue, Steven Bradbury in 2005 was given the OLC job “on probation” until he completed his opinion that gave waterboarding legal approval. Reportedly, the following day, Bush sent his name forward for formal nomination.[240]

Shortly before leaving office, Cheney acknowledged that, “[w]e spent a great deal of time and effort getting legal advice, legal opinion out of the Office of Legal Counsel, which is where you go for those kinds of opinions, from the Department of Justice as to where the red lines were out there in terms of this you can do, this you can't do.”[241]

Moreover, the record now shows that even before administration officials requested OLC opinions on interrogation techniques, the CIA approached the chief of the Department of Justice Criminal Division, Michael Chertoff, to request an “advance declination” of prosecution for acts associated with the interrogation of detainees—a binding notice from the criminal division of the Justice Department that it would not prosecute officials involved in interrogations. Chertoff refused to provide such a declination.[242]

The Justice Department’s Office of Professional Responsibility (OPR), which investigated the conduct of Assistant Attorney General Jay Bybee and Deputy Assistant Attorney General John Yoo in drafting the August 2002 memoranda, found that Yoo “committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice.” Bybee, it said, acted in “reckless disregard” of his obligations to provide independent legal analysis.[243]

Yoo had briefed White House counsel Gonzales several times on the August 1, 2002 memorandum during its drafting, as well as Attorney General Ashcroft, Cheney’s counsel David Addington, Defense Department counsel William Haynes, CIA counsel John Rizzo, and NSC legal advisor John Bellinger.[244] Bellinger, who became the State Department's legal adviser in 2007, told OPR that he concluded that Yoo was “under pretty significant pressure” to determine that the interrogation program was legal.[245] According to the OPR report, Justice Department attorney Patrick Philbin said that when he raised concerns about a section of the memo claiming sweeping presidential power to decide what is legal, Yoo told him, “They want it in there,” later explaining that the CIA may have suggested it, a claim that then-acting CIA General Counsel John Rizzo denied.[246]

Jack Goldsmith, who headed OLC from 2003 to 2004, told OLC that Yoo’s August 2002 memo was “riddled with error” and a “one sided effort to eliminate any hurdles posed by the torture law.”[247]

The same pressure may have been exerted in 2005 for the re-approval memos issued by Steven Bradbury, when head of the OLC Bellinger told OPR that Bradbury's conclusions were “so contrary to the commonly held understanding of the treaty [Convention against Torture] that ... the memorandum had been ‘written backwards’ to accommodate a desired result.”[248] Daniel Levin, who as acting head of the OLC drafted the memos that replaced Yoo's, reported that the White House “pressed” him to reiterate the office's legal support for the CIA's interrogation methods.[249] Deputy Attorney General James Comey wrote in a 2005 email that Attorney General Gonzales told him he had been pressured by Cheney to produce opinions that would rebut congressional concerns about the CIA program:

At a meeting last Friday with Pat [Philbin], the AG [Gonzales], and Steve Bradbury [the new head of the OLC, under whom Philbin served].… I expressed my concern, saying the analysis was flawed and that I had grave reservations about the second opinion. The AG [Gonzales] explained that he was under great pressure from the Vice President to complete both memos, and that the President had even raised it last week, apparently at the VP’s request and the AG had promised they would be ready early this week.

… Patrick had previously reported that Steve [Bradbury] was getting constant similar pressure from Harriet Miers [White House Counsel] and David Addington to produce the opinions.[250]

Duty to Investigate and Provide Redress

Under international law, states are obligated to investigate credible allegations of war crimes and serious violations of human rights committed by their nationals and members of their armed forces, or over which they have jurisdiction, and appropriately prosecute those responsible.[251]

War crimes are serious violations of international humanitarian law committed willfully—that is, deliberately or recklessly—and give rise to individual criminal responsibility.[252] Individuals may be held criminally responsible for directly committing war crimes or for war crimes committed pursuant to their orders.[253] They may also be held criminally liable for attempting to commit war crimes, as well as planning, instigating, assisting, facilitating, and aiding or abetting them.[254]

The US also has a duty to investigate serious violations of international human rights law and punish the perpetrators.[255] As a state party to the International Covenant on Civil and Political Rights (ICCPR), the US has an obligation to ensure that any person whose rights are violated “shall have an effective remedy” when the violation has been committed by government officials or agents. Those seeking a remedy shall have this right determined by competent judicial, administrative, or legislative authorities. And when granted, these remedies shall be enforced by competent authorities.[256]

Civilian leaders and commanders may also be prosecuted for war crimes and violations of international human rights law as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.[257]

However, no US federal court, including the Supreme Court, has granted judicial remedy to persons alleging torture or other ill-treatment, including rendition to torture, in post-September 11 cases. Both the Bush and the Obama administrations have argued successfully that such cases should be dismissed under the state secrets privilege in US law. The state secrets privilege allows the head of an executive department to refuse to produce evidence in a court case on the grounds that the evidence is secret information that would harm national security or foreign relations interests if disclosed.[258] In the past, the state secrets privilege has been recognized by courts as allowing the executive to argue that distinct pieces of evidence should be barred from disclosure, while permitting a case to proceed.[259] However, courts examining allegations of Bush administration abuse have relied upon a far broader interpretation of the privilege, not to bar specific evidence, but instead to require a dismissal at the very beginning stages of a case.[260] In other cases alleging torture or other ill-treatment, government attorneys have successfully argued that claims are preempted under federal law or trigger various forms of immunity.[261] The courts, in accepting these various legal defenses, including the state secrets privilege, have refused to even examine, let alone rule on, the merits of victims’ claims.

Investigation and referral to prosecution are required for all serious violations of human rights law, but monetary and other forms of compensation can also be provided.[262] The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (“Convention against Torture”), to which the US is also party, requires that a victim of torture “obtains redress and has an enforceable right to fair and adequate compensation,” including rehabilitation, and compensation to dependents when a victim is deceased.[263]

One US court has suggested compensation as a way to partially mitigate some of the abuse alleged in this report.[264] In suggesting the US government look into other options to remedy plaintiffs’ claims that they had been tortured after rendition by the United States, the 9th Circuit Court of Appeals noted that other governments such as the United Kingdom have made similar commitments.[265] It also noted the authority of Congress to investigate alleged wrongdoing and restrain excesses of the executive branch.[266]

The Four Key Leaders

Based on the information presented above, Human Rights Watch believes that there is sufficient basis for the US government to order a broad criminal investigation into alleged war crimes and human rights violations committed in connection with the torture and ill-treatment of detainees, the CIA secret detention program, and the rendition of detainees to torture. Such an investigation would necessarily focus on alleged criminal conduct by the following four senior officials—George W. Bush, Dick Cheney, Donald Rumsfeld, and George Tenet—among others. Human Rights Watch presents evidence now publicly available, but expresses no opinion about the ultimate guilt or innocence of these or other officials.

President George W. Bush

President Bush was commander-in-chief of the US armed forces, and the senior executive officer of the US government, exercising full control over all of its executive agencies, including the CIA. Bush often chaired NSC meetings and was briefed extensively and routinely on all national security matters.

Bush approved coercive interrogation methods, including waterboarding, ordered the CIA secret detention program, and approved the program of unlawful renditions. In addition, even after learning that serious abuses were taking place, Bush never intervened to stop them or seek to prosecute those responsible.

Bush approved waterboarding and other illegal interrogation methods

Bush acknowledged on several occasions that he approved waterboarding of detainees, including Khalid Sheikh Mohammed and Abu Zubaydah.

The first acknowledgment came on April 11, 2008, in an interview with Martha Raddatz of ABC News:

Raddatz: "ABC News reported this week that your senior national security officials all got together and approved -- including Vice President Cheney -- all got together and approved enhanced interrogation methods, including waterboarding, for detainees." …. Bush: "Yes." Raddatz: "You have no problem with that?"

Bush: "No. I mean, as a matter of fact, I told the country we did that. And I also told them [national security officials] it was legal. We had legal opinions that enabled us to do it. And, no, I didn't have any problem at all trying to find out what Khalid Sheikh Mohammed knew.

…..And, yes, I'm aware our national security team met on this issue. And I approved. I don't know what's new about that; I'm not so sure what's so startling about that."[267]

In his memoirs, Bush wrote that when the CIA proposed techniques including waterboarding against Abu Zubaydah,

“I took a look at the list of techniques. There were two that I felt went too far, even if they were legal. I directed the CIA not to use them. Another technique was waterboarding, a process of simulated drowning. No doubt the procedure was tough […] I would have preferred that we get the information another way. But the choice between security and values was real. Had I not authorized waterboarding on senior al Qaeda leaders, I would have had to accept a greater risk I was unwilling to take.

“I approved the use of the interrogation techniques.”[268]

He also acknowledged in his memoirs that he approved the waterboarding of Khalid Sheikh Mohammed:

George Tenet asked if he had permission to use enhanced interrogation techniques, including waterboarding, on Khalid Sheikh Mohammed.…

“Damn right,” I said.[269]

On May 19, 2009, Cheney corroborated this account to Bob Schieffer of CBS’s Face the Nation:

SCHIEFFER: How much did President Bush know specifically about the methods that were being used? We know that you—and you have said—that you approved this...

CHENEY: Right.

SCHIEFFER: …. somewhere down the line. Did President Bush know everything you knew?

CHENEY: I certainly, yes, have every reason to believe he knew—he knew a great deal about the program. He basically authorized it. I mean, this was a presidential-level decision. And the decision went to the president. He signed off on it.[270]

In March 2008, Bush vetoed legislation containing a provision requiring that CIA interrogations comply with the US Army field manual on interrogations, which barred certain interrogation techniques, including waterboarding. Bush explained that the legislation would “take away one of the most valuable tools in the war on terror—the CIA program to detain and question key terrorist leaders and operatives.” “Limiting the CIA's interrogation methods to those in the Army Field Manual,” he said, would be dangerous because the manual is publicly available and easily accessible.”[271]

Bush ordered CIA secret detention program and approved renditions program

On September 17, 2001, President Bush reportedly signed a memorandum, apparently still classified, authorizing the CIA to kill, capture, detain, and interrogate al Qaeda members and others thought to be involved in the September 11 attacks. It is not known whether Bush approved a separate finding for secret detentions or whether this was covered in the September 17 memo.[272]

In his memoir, Bush explained that the decision was taken to move Abu Zubaydah to “a secure location in another country where the Agency [CIA] would have total control over his environment.”[273] In his speech of September 6, 2006, acknowledging the CIA detention program, Bush recognized that suspects had been held “secretly” “outside the United States.”[274]

 As described above, Bush was present at the NSC meeting on September 26, 2001, when CIA Director Tenet described the CIA renditions program, asking, according to Bob Woodward, “At what point are we going to feel comfortable talking about these things?”[275]

Bush knew or should have known that many rendered detainees would likely face torture and other ill-treatment, and took no steps to stop the program or punish those responsible. In November 2003, just days after Canadian national Maher Arar was released from Syrian custody, Bush declared that the government of Syria had left “a legacy of torture, oppression, misery, and ruin.”[276]

Vice President Dick Cheney

Vice President Cheney played a key role in the formulation of detainee policy. Cheney “loomed over everything,” one former CIA official told Jane Mayer.[277] He was a member of the NSC “Principals Committee,” which approved interrogation policies. Together with his chief counsel, David Addington, he was the principal political force pressing OLC lawyers to justify the use of coerced interrogation methods.[278]

Cheney has spoken publicly about the entire approval process for CIA interrogation, including his own role, for instance telling the Washington Times:

I signed off on it; others did, as well, too. I wasn’t the ultimate authority, obviously. As the Vice President, I don’t run anything. But I was in the loop. I thought that it was absolutely the right thing to do.[279]

Cheney approved CIA renditions program

As described above, Cheney was among the main White House officials briefed on CIA abduction and rendition operations, and he discussed these operations with the president. Cheney, along with National Security Advisor Condoleezza Rice, also chaired NSC meetings at which CIA rendition operations were discussed. He advised the president to generally authorize CIA renditions operations and he sought formal authorization from the president, approving particular operations. Vice President Cheney knew or should have known that renditions would lead to torture.

Cheney approved waterboarding and other illegal interrogation methods

As one of the key chairs of NSC meetings, Cheney authorized the CIA detention program. In a July 2003 meeting of NSC Principals, Cheney and other principals “reaffirmed that the CIA program was lawful and reflected administration policy.”[280] This included waterboarding.

In October 2006, Cheney defended the use of waterboarding as a "no-brainer," agreeing with a radio host’s assertion that “a dunk in water” may yield valuable intelligence from terrorism suspects.[281] In August 2009, Cheney stated:

I knew about the waterboarding. Not specifically in any one particular case, but as a general policy that we had approved.[282] 

Defense Secretary Donald Rumsfeld

Defense Secretary Rumsfeld created the conditions for members of the US armed forces to commit torture and other war crimes by approving interrogation techniques that violated the Geneva Conventions and the Convention against Torture.

Rumsfeld made numerous statements indicating that the US was not bound to treat detainees in accordance with international law. While not in itself a criminal offense, it helped create the conditions in the armed forces that facilitated such abuses. It also made clear that he was unlikely to take action against military personnel that did not conform to international legal requirements.

Rumsfeld labeled the first detainees to arrive at Guantanamo from Afghanistan on January 11, 2002, as “unlawful combatants,” denying them possible status as POWs. “Unlawful combatants do not have any rights under the Geneva Convention [sic],” he said,[283] ignoring that the conventions provide explicit protections to all persons detained in an international armed conflict, including those not entitled to POW status. He rejected formal US legal compliance with international law by saying that the government would “for the most part, treat them in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate.”[284] After the Abu Ghraib scandal broke, he told an interviewer in May 2004 that the Geneva Conventions “did not apply precisely” in Iraq but were “basic rules” for handling prisoners.[285]

Rumsfeld’s attitude toward the laws of armed conflict created a climate in which respect for legal norms by US troops may have been loosened. In May 2004, for instance, a member of the 377th Military Police Company told The New York Times that the labeling of prisoners in Afghanistan as “enemy combatants” not subject to the Geneva Conventions contributed to their abuse. “We were pretty much told that they were nobodies, that they were just enemy combatants,” he said. “I think that giving them the distinction of soldier would have changed our attitudes toward them.”[286]

Similarly, speaking of the decision to apply the Geneva Conventions only where this was “appropriate” and “consistent with military necessity,” State Department legal advisor William H. Taft, IV, said this

unhinged those responsible for the treatment of the detainees in Guantanamo from the legal guidelines for interrogation of detainees reflected in the Conventions and embodied in the Army field manual for decades. Set adrift in uncharted waters and under pressure from their leaders to develop information on the plans and practices of al Qaeda, it was predictable that those managing the interrogation would eventually go too far.[287]

Rumsfeld approved coercive interrogation methods, including those that amounted to torture. As described below, he also closely monitored the abusive interrogation of Mohammad al-Qahtani in 2002 and perhaps that of John Walker Lindh, the so-called “American Taliban,” in late 2001.

From the earliest days of the war in Afghanistan, Rumsfeld was on notice through briefings, ICRC reports, reports by human rights organizations, and media accounts that members of the US armed forces were conducting coercive interrogations, including torture. However, there is no evidence that he ever exerted his authority to stop the torture and ill-treatment of detainees or take action against those responsible.

Rumsfeld approved coercive interrogation methods that violated international law

Rumsfeld was intimately involved in the minutiae of interrogation techniques for detainees at Guantanamo Bay, Cuba. As described above, on December 2, 2002, he authorized a list of techniques for interrogation of prisoners in Guantanamo that was an unprecedented expansion of US military doctrine.[288] These included: “stress positions (like standing) for a maximum of four hours”; “isolation ….up to 30 days; hooding during questioning”; “Deprivation of light and auditory stimuli”; “Removal of all comfort items (including religious items)”; “Forced grooming (shaving of facial hair, etc)”; “Removal of clothing”; and “Using detainees’ individual phobias (such as fear of dogs) to induce stress.”[289]

As described above, depending on how they are used, these methods likely violate the prohibition on torture or inhuman treatment of prisoners under the laws of armed conflict, regardless of whether the prisoners are entitled to POW status, and those responsible for their use could be liable for war crimes.

After objections from the Navy’s general counsel, Rumsfeld temporarily rescinded his blanket approval of the coercive techniques listed above on January 15, 2003. Rather than discard the techniques entirely, however, he ordered that he personally approve any use of the harsher categories of techniques, thus suggesting that he continued to view them as legitimate. He stated in a memo that: “Should you determine that particular techniques in either of these categories are warranted in an individual case, you should forward that request to me. Such a request should include a thorough justification for the use of such techniques.”[290]

Rumsfeld issued a final interrogation policy for Guantanamo on April 16, 2003. These guidelines, while more restrictive than the December 2002 rules, still allowed techniques that go beyond what the Geneva Conventions permit for POWs.[291] Indeed, Rumsfeld’s memo itself states in relation to several techniques—including isolation and removing privileges from detainees—that “those nations that believe detainees are subject to POW protections” may find that technique to violate those protections.[292]

In 2004, the Schlesinger report found that “the augmented techniques [approved by Rumsfeld] for Guantanamo migrated to Afghanistan and Iraq where they were neither limited nor safeguarded.”[293]

As described above, coercive interrogation methods first approved by Rumsfeld were used in Guantanamo, Iraq, and Afghanistan. The Schlesinger report found that in Afghanistan, “techniques included removal of clothing, isolating people for long periods of time, use of stress positions, exploiting fear of dogs, and sleep and light deprivation. Interrogators in Iraq, already familiar with some of these ideas, implemented them even prior to any policy guidance from CJTF-7 [the command in Iraq].”[294] At Abu Ghraib, of course, the techniques that Rumsfeld himself put into play, such as use of dogs, figured prominently in the war crimes committed against detainees.

The SASC concluded that “Secretary of Defense Donald Rumsfeld's authorization of interrogation techniques at Guantanamo Bay was a direct cause of detainee abuse there.”[295]

Rumsfeld monitored the coercive interrogation of Mohammad al-Qahtani and perhaps that of John Walker Lindh

In late 2002, Rumsfeld took direct interest in the interrogation of Saudi detainee Mohammad al-Qahtani, suspected of being the intended “20th hijacker” in the September 11 attacks had immigration officers not turned him away at Orlando airport. The December 2, 2002 memo approving the use of stress positions, isolation, hooding, and the use of dogs was directly connected to the interrogation of al-Qahtani,[296] whom Rumsfeld deemed to be “a very bad person, a person who clearly had information about attacks against the United States.”[297]

Even before the December 2, 2002 memo, Guantanamo commander, Maj. Gen. Geoffrey Miller, received a “VOCO,” or a vocal command, on November 23, 2002, to allow the aggressive interrogation of al-Qahtani to begin. While no one in the chain of command can now seem to remember who issued the VOCO, it was apparently assumed by officers in the chain of command that Rumsfeld issued it.[298] And even before the VOCO, when an FBI agent objected to the treatment of al-Qahtani, he was told that “the Secretary” had approved it.[299]

According to Department of Army Inspector General Lt. Gen. Randall M. Schmidt, Rumsfeld spoke weekly with General Miller about the progress of the interrogation, which employed weeks of sleep deprivation, stress positions, and sexual humiliation.[300]

Al-Qahtani’s interrogation log[301] reveals that he was subjected to a regime of physical and mental mistreatment from November 2002 to early January 2003, which intensified after Rumsfeld’s order.[302] For six weeks, al-Qahtani was intentionally deprived of sleep, forced into painful stress positions, threatened with snarling dogs, forced to perform tricks on a dog leash, and subjected to forced exercises, forced standing, and sexual and other physical humiliation. Interrogators made him stand nude, told him to bark like a dog and growl, and hung pictures of scantily clad women around his neck. After refusing water, al-Qahtani was forced to accept an intravenous drip for hydration and, on several occasions, was denied trips to a latrine causing him to urinate on himself at least twice. On one occasion was forced to undergo an enema.[303]

According to Newsweek, a senior FBI counterterrorism official wrote to the Defense Department complaining of “highly aggressive interrogation techniques" at Guantanamo and singling out the treatment of al-Qahtani in September and October 2002—even before the log begins—saying a dog was used "in an aggressive manner to intimidate Detainee #63.” The FBI letter said al-Qahtani had been “subjected to intense isolation for over three months” and “was evidencing behavior consistent with extreme psychological trauma (talking to non existent people, reporting hearing voices, crouching in a cell covered with a sheet for hours on end).”[304]

Al-Qahtani’s interrogation log reveals that he was suffering serious medical conditions, including irregular blood pressure and heartbeat. At one point in the interrogation, being subjected to extended sleep deprivation, his heart rate dropped to a dangerously low level of 35 beats per minute.[305] Department of Army Inspector General Lt. Gen. Randall M. Schmidt, who had gone to Guantanamo and seen al-Qahtani, just as he was “coming out of this thing,” said that “he looks like hell.… He has got black coals for eyes.”[306]

According to Gitanjali Gutierrez, an attorney with the Center for Constitutional Rights who represented al-Qahtani after his torture, his weight dropped from approximately 160 to just over 100 pounds in about four months.[307]

David Becker, a senior intelligence officer at Guantanamo involved in crafting the interrogation plan for al-Qahtani, said that Guantanamo commander Gen. Michael Dunlavey, until his departure in December 2002, was directly supervising the military intelligence team carrying out al-Qahtani’s interrogation and received regular telephone calls from Rumsfeld’s deputy, Paul Wolfowitz, about it and other interrogations.[308]

The SASC Report also refers to regular calls from Wolfowitz to Dunlavey’s successor, General Miller, and states that Wolfowitz’s office occasionally called about particular detainees.[309]

General Schmidt, who along with Brig. Gen. John Furlow investigated detainee abuse at Guantanamo,[310] told the army inspector general in 2005 that it was clear to him that there was a direct communication link between Rumsfeld and his office in Washington to General Dunlavey and later General Miller, and from there directly to interrogators.[311] Schmidt placed Miller squarely between Rumsfeld and the interrogators, describing Miller as the person to be the translator between the “SECDEF’s [Rumsfeld’s] guidance because he communicated with the Secretary of Defense, the COCOM [commander of SOUTHCOM] and daily with his—with his interrogator/detention folks.”[312] Schmidt said Miller “was executing what he thought was the Secretary’s intent and only he would have been the right guy at that level to know into the action—the application of the technique, and only he would have been the one who should know how it was being applied.[313]

Schmidt also portrayed the al-Qahtani interrogation as wholly contingent on Rumsfeld’s approval: “The special interrogation plan … ended because the SECDEF [Rumsfeld] rescinded his guidance from the policy level and then it shot right down to the JTF, [to] the interrogation level.”[314]

Schmidt continued:

When the Secretary of Defense is personally involved in the interrogation of one person, and the entire General Counsel system of all the Departments of the Military and the Office of General Counsel and Secretary of Defense—and the Secretary of Defense is personally being briefed on this …

And I just find it hard to believe, as does anybody, that when the Secretary of Defense has that kind of interest to where he’s talking weekly with the JTF Commander and the COCOM, but the JTF Commander too, personally—and General Dunlavey said he didn’t even go to the SOUTHCOM, he went directly to the Office of [Secretary of] Defense. He dealt with him. He was the Secretary of Defense’s person personally on this JTF; and he almost did nothing with … SOUTHCOM. He almost ignored them. When General Miller came in, he understood the chain of command and he went through SOUTHCOM to the Secretary of Defense but there was still a direct connection.[315]

Then-SOUTHCOM commander Gen. James T. Hill also confirmed that Rumsfeld and his office regularly spoke with, and were being directly briefed by, General Miller on the al-Qahtani interrogation.[316] General Hill also stated that Miller often observed the interrogation sessions. He also stated that Rumsfeld himself called him in at some point in mid-January 2003 about the al-Qahtani interrogation. According to Hill, Rumsfeld asked about the status of the interrogation, concerned because of the impending actions of Adm. Alberto Mora, described above. (This was a few days before the interrogation was stopped because of ongoing controversy.) Hill said that he would call Miller, and then call Rumsfeld back:

So I called General Miller. We discussed the ongoing interrogations. General Miller said to me I’ve personally been looking at it…. We think we’re right on the verge of making a breakthrough. We ought to continue it.

I called the Secretary [Rumsfeld] back and said, my best recommendation to you is what the people on the ground say that there is valuable intelligence. We’re just about to get there. We’re not doing anything wrong. We’re taking care of business. We got him under hospital—you know, doctor’s care. He’s gaining weight. He’s not under any duress. We think we’re going to get this. The Secretary said fine.[317]

In fact, the techniques being used on al-Qahtani were illegal, and Rumsfeld had been warned that they were illegal. By this point in January 2003, Admiral Mora and other military lawyers had alerted Rumsfeld that the techniques he had authorized in his December 2, 2002 order, which were at that time being used on al-Qahtani, could trigger criminal liability.[318]

Ultimately, the convening authority for the Guantanamo military commissions, the top Defense Department official overseeing prosecutions at Guantanamo, military judge Susan J. Crawford, who had served as an Army general counsel and inspector general of the Department of Defense, reached the conclusion that al-Qahtani had been tortured, and could not be prosecuted because of the mistreatment he suffered. “We tortured Qahtani,” Crawford told Bob Woodward: “His treatment met the legal definition of torture. And that’s why I did not refer the case [for prosecution].”[319]

Even before his authorization of coercive interrogation methods and the al-Qahtani case, Rumsfeld appears to have provided oversight or was at least aware of the coercive interrogation of John Walker Lindh, the so-called “American Taliban,” who was captured in Afghanistan in 2001. Photos presented by Lindh’s lawyers show Lindh after his capture on November 25, 2001, stripped naked, blindfolded, with plastic cuffs on his wrists, and bound to a stretcher with duct tape.[320] According to a motion filed in federal court, Lindh was left for days on this gurney in an unheated and unlit metal shipping container from which he was only removed during interrogations.

For over three weeks after his capture, Lindh still had a bullet in his thigh, which was said by a US physician to be “seeping and malodorous.”[321] He was also said to be suffering from hypothermia, malnourishment, and exposure.[322] According to the motion, “A Navy physician … recounted that the lead military interrogator in charge of Mr. Lindh’s initial questioning told the physician ‘that sleep deprivation, cold and hunger might be employed’ during Mr. Lindh’s interrogations.”

According to documents examined by the Los Angeles Times, Rumsfeld’s legal counsel instructed military intelligence officers to “take the gloves off” when interrogating Lindh.[323] In the early stages of Lindh’s interrogation, his responses were reportedly cabled to Washington hourly.[324] Rumsfeld argued, in a January 2002 memo to Department of Defense General Counsel, Jim Haynes, that Lindh should be sent to Guantanamo instead of facing a civilian trial. At one point Rumsfeld remarked, “I don’t really care what happens to Walker at this stage.”[325]

Rumsfeld knew or should have known that US forces in Afghanistan and Iraq were committing torture and other coercive interrogation methods and failed to act to stop the mistreatment

Rumsfeld appears to be responsible as a matter of command responsibility for the widespread use of torture and ill-treatment by US military personnel in Afghanistan and Iraq. He was personally notified beginning in early 2002 about the mistreatment of detainees by Secretary of State Colin Powell,[326] US Administrator in Iraq L. Paul Bremer,[327] Afghan government officials,[328] and journalists.[329] The ICRC repeatedly warned him during the same period,[330] as did the Army provost marshal, Maj. Gen. Donald Ryder,[331] and retired Col. Stuart A. Herrington in internal reports.[332] In addition, there was substantial public information about abuses against detainees, including images of John Walker Lindh being held naked and bound by duct tape to a stretcher in Afghanistan, leading articles in the Washington Post and the New York Times”[333] and reports from Human Rights Watch and other nongovernmental organizations. The sheer number and widespread nature of abuses against detainees across three countries should have in any event put Rumsfeld on notice through internal channels.[334]

Yet Rumsfeld failed to intervene to prevent further commission of crimes. Even as he was being publicly and personally warned about abuses, he apparently never issued specific orders or guidelines to forbid coercive methods of interrogation, other than withdrawing his blanket approval for certain methods at Guantanamo in January 2003. Indeed, as described above, in mid-2003 pressure on interrogators in Iraq to use more aggressive methods of questioning detainees was actually increased. Had Rumsfeld exerted his authority as the civilian official in charge of the armed forces and used his position and authority to bring the mistreatment of prisoners to a stop, many violations of international law that US forces committed could have been avoided.[335]

CIA Director George Tenet

From late 2001 and until his resignation in 2004, CIA Director George Tenet established and oversaw the CIA’s secret detention program. Under his direction, the CIA abducted and rendered persons to countries known to torture detainees; tortured and ill-treated detainees; and forcibly disappeared detainees in secret locations, often with no acknowledgement of their detention and with no oversight of their treatment.

As Tenet reportedly told a closed-door international meeting of top intelligence officials on March 10, 2002, in New Zealand:

Gentlemen, we are at war.… As for the CIA, I can tell you this. There is nothing we won’t do, nothing we won’t try, and no country we won’t deal with to achieve our goals, to stop the enemy. The shackles, my friends, have to be taken off.[336]

Tenet authorized and oversaw CIA abductions and renditions to torture

Tenet directly oversaw the CIA rendition program, which led to the torture and ill-treatment of detainees abroad. During NSC meetings in 2001, Tenet presented options for covert CIA rendition operations, implemented orders to use renditions, and briefed the president and NSC on renditions operations. Tenet knew or should have known that detainees transferred to foreign countries faced a high risk of torture. The Middle Eastern countries to which detainees were rendered—Egypt, Syria, Pakistan, Jordan, Saudi Arabia, and Morocco—were notorious for their use of torture.

Tenet designed and oversaw the CIA renditions program. According to an account by Bob Woodward, at an NSC meeting on September 26, 2001:

Tenet turned to some of the secret operations. The CIA had been able to work some renditions abroad—capturing or snatching suspected terrorists in other countries. Various foreign intelligence services were either cooperating or were being bought off to take suspected terrorists into custody.[337]

Michael Scheuer, head of the CIA’s bin Laden desk, who ran the detainee rendition program, said he “never a saw a set of operations that was more closely scrutinized by the director of central intelligence, the National Security Council and the Congressional intelligence committees.” [338] According to Scheuer, each individual operation, “I think … went to either the Director of Central Intelligence or to the Assistant Director of Central Intelligence. So basically the number one and two men in the intelligence community are the ones who signed off.”[339]

Newsweek reported a clash between the FBI and the CIA during the interrogation in Afghanistan of suspect Ibn al-Shaikh al-Libi:

FBI officials brought their plea to retain control over al-Libi’s interrogation up to FBI Director Robert Mueller. The CIA station chief in Afghanistan, meanwhile, appealed to the agency’s hawkish counterterrorism chief, Cofer Black. He in turn called CIA Director George Tenet (emphasis added), who went to the White House. Al-Libi was handed over to the CIA. “They duct-taped his mouth, cinched him up and sent him to Cairo” for more-fearsome Egyptian interrogations, says the ex-FBI official. “At the airport the CIA case officer goes up to him and says, ‘You’re going to Cairo, you know. Before you get there I’m going to find your mother and I’m going to f--- her.’ So we lost that fight.” (A CIA official said he had no comment.)[340]

With regard to al-Libi, Tenet wrote in his memoirs, however, that:

We believed that al-Libi was withholding critical threat information at the time, so we transferred him to a third country for further debriefing. Allegations were made that we did so knowing that he would be tortured, but this is false.[341]

Tenet knew or should have known that the rendered detainees would be tortured

Citing congressional sources, Newsweek reported that at a classified briefing for senators not long after the September 11 attacks, Tenet was asked whether the US was planning to seek the transfer of suspected al Qaeda detainees from governments known for their brutality. Newsweek reported that “Tenet suggested it might be better sometimes for such suspects to remain in the hands of foreign authorities, who might be able to use more aggressive interrogation methods.”[342]

At the March 2002 New Zealand meeting described above, Tenet’s head of covert operations, James Pavitt, reportedly said, “We’re going to be working with intelligence agencies that are utterly unhesitant in what they will do to get captives to talk.”[343]

The rendition of terror suspects following the September 11 attacks was first reported in The Washington Post in December 2002, which described transfers to countries including Syria, Uzbekistan, Pakistan, Egypt, Jordan, Saudi Arabia, and Morocco, where they are believed to have been tortured or otherwise ill-treated. One official was quoted as saying, “We don’t kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them.”[344] After that, the New Yorker, theBBC, and CBS’s 60 Minutes described an organized US program of renditions to Egypt of suspects captured in places such as Afghanistan, Albania, Croatia, and Sweden, resulting in many cases of torture and enforced disappearance.[345]

Tenet was undoubtedly aware of the torture involved in these renditions even before the early media reports. The Middle Eastern countries to which detainees were transferred—Egypt, Syria, Pakistan, Jordan, Saudi Arabia, and Morocco—are known to use torture.[346] The US State Department had the following to say in its 2003 reports about torture in Egypt and Syria, two of the major rendition destinations. In Egypt:

[T]here were numerous, credible reports that security forces tortured and mistreated detainees.… Principal methods of torture reportedly employed … included victims being: stripped and blindfolded; suspended from a ceiling or doorframe with feet just touching the floor; beaten with fists, whips, metal rods, or other objects; subjected to electrical shocks; and doused with cold water.[347]

In Syria:

[T]here was credible evidence that security forces continued to use torture.… [Syrian groups and ex-detainees] reported that torture methods included administering electrical shocks; pulling out fingernails; forcing objects into the rectum; beating, sometimes while the victim is suspended from the ceiling; hyper extending the spine; bending the detainees into the frame of a wheel and whipping exposed body parts; and using a chair that bends backwards to asphyxiate the victim or fracture the victim’s spine.[348]

CIA officer Michael Scheuer confirmed that “we told them [higher level and non-CIA staff] — again and again and again” that the detainees might be mistreated.

Former CIA counterterrorism official Vincent Cannistraro has remarked: “You would have to be deaf, dumb and blind to believe that the Syrians were not going to use torture, even if they were making claims to the contrary.”[349]

Tenet oversaw the CIA’s secret detention program

Under Tenet, the CIA organized a program in which terrorism suspects were detained in undisclosed locations, with no access to the ICRC, no oversight of their treatment, no notification to their families, and in many cases, no acknowledgement that they were even being held. As described above, prolonged incommunicado detention in an unreported location constitutes an enforced disappearance and may violate many basic human rights, including the right to be free from torture and other ill-treatment.

Tenet authorized and oversaw the CIA’s torture and otherwise coercive interrogation of detainees

The CIA interrogation program included acts that amounted to torture, ill-treatment, sexual abuse, among other offenses. As described above, Tenet proposed and sought approvals from the president on a general level, and the NSC on a specific level, for an interrogation program for “high-level” detainees.

In particular, under Tenet, the CIA waterboarded at least three detainees.

According to The Washington Post:

The interrogation methods were approved by Justice Department and National Security Council lawyers in 2002, briefed to key congressional leaders and required the authorization of CIA Director George J. Tenet for use, [emphasis added] according to intelligence officials and other government officials with knowledge of the secret decision-making process.[350]

According to one “deeply involved former Agency officer” quoted by Jane Mayer, “[e]very single plan was drawn up by interrogators, and then submitted for approval to the highest possible level, meaning the director of the CIA. Any change in the plan–even if an extra day of a certain treatment was added–was signed off on by the Director.”[351]

Tenet participated in a NSC meeting in July 2003 in which the NSC Principals “reaffirmed that the CIA program was lawful and reflected administration policy.”[352] This included waterboarding.

Other Officials

National Security Advisor Condoleezza Rice, Secretary of State Colin Powell, and Attorney General John Ashcroft were also members of the “Principals Committee,” which discussed and approved specific details of how the CIA would interrogate high-value terrorism suspects. Their roles should therefore also be investigated.

A criminal investigation into the systematic use of torture and ill-treatment after September 11, 2001, should include an examination of the roles played by the lawyers who crafted the legal “justifications” for torture, including Alberto Gonzales (counsel to the president and later attorney general) Jay Bybee (head of the OLC), John Rizzo (acting CIA general counsel), David Addington (counsel to the vice president), William J. Haynes, II, (Department of Defense general counsel), and John Yoo (deputy assistant attorney general in the OLC).       

Appendix: Foreign State Proceedings Regarding US Detainee Mistreatment

The US failure to conduct criminal investigations into the role and responsibility of high-ranking civilian and military officials for alleged crimes against detainees has opened the door for national judicial systems in foreign states to pursue investigations and, if warranted, prosecutions under the doctrines of “universal jurisdiction” and “passive personality” jurisdiction.

Normally, jurisdiction over a crime depends on a link between the prosecuting state and the crime itself. This link is most often territorial but is sometimes based on the nationality of the victim or perpetrator or on harm to a state interest. Universal jurisdiction reflects the principle of international law that every state has an interest in bringing to justice the perpetrators of particular crimes of international concern, no matter where the crime was committed, and regardless of nationalities.[353] In some cases, by treaty or customary international law, states in whose territory alleged perpetrators are found have an obligation to prosecute the offender if they do not extradite him. This obligation is known as aut dedere aut judicare—“extradite or prosecute.”[354]

War crimes and torture are among the crimes subject by treaty to the “extradite or prosecute” requirement. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment—ratified by the United States and 146 other countries[355]—provides that “[t]he State Party in the territory under whose jurisdiction a person alleged to have committed [torture] is found shall, ... if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.”[356]

Each of the four Geneva Conventions of 1949, which the United States and virtually every country have ratified, prescribe that “[e]ach High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.” “Grave breaches” of the Geneva Conventions and its first Additional Protocol include willful killing; torture or inhuman treatment; willfully causing great suffering, or serious injury to body or health; and willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial.[357]

Universal jurisdiction is a crucial tool by which victims of grave international crimes can obtain redress. It acts as a “safety net” when the state with the most direct jurisdiction over the crimes is unable or unwilling to conduct an effective investigation and trial, and when international courts, including the International Criminal Court, either do not have jurisdiction or would not take up a specific case.

The most well-known case of universal jurisdiction was perhaps that of former Chilean dictator Augusto Pinochet who was arrested in London in October 1998 on a warrant from a Spanish judge charging him with torture and other human rights crimes committed in Chile during his seventeen-year rule.[358] Pinochet challenged his arrest on the ground that he was entitled to immunity as a former head of state, but the Appellate Committee of the House of Lords rejected the challenge.[359]

In the past two decades, more and more states, especially in Western Europe,[360] have been willing to use their universal jurisdiction laws in practice. Cases successfully brought to trial have principally involved low and mid-level perpetrators with regards to crimes committed during the genocide in Rwanda, the wars in the Balkans, crimes committed during the dictatorships in Argentina and Chile, wars in Afghanistan and West Africa, and systematic torture in Mauritania, DR Congo, and Tunisia, among others. The United States national judicial system used the principle of universal jurisdiction to prosecute “Chuckie” Taylor (the son of the former Liberian dictator Charles Taylor) for torture committed in Liberia.[361]

In addition to universal jurisdiction, many countries give their courts competence to punish a crime committed abroad against one of their nationals (the “passive nationality” or “passive personality” basis of jurisdiction). Individuals of dozens of nationalities have been detained by the United States since September 11, 2011, thus possibly investing the national courts of these individuals with passive personality jurisdiction over torture and war crimes committed by US nationals.

Most countries, though not all, condition the opening of an investigation for crimes committed abroad, when there is no other link to the forum, on the presence of the accused in their territory. In cases of jurisdiction based on the victim’s nationality (the “passive nationality” basis of jurisdiction), however, many states, such as France and Italy, allow the opening of investigation even if the accused is absent.[362]

As it became clear that the US was not pursuing investigations into the role and responsibility of senior government officials linked to torture and the secret detention and rendition programs, several cases were filed abroad, one of which is ongoing.

Germany: Complaints against Rumsfeld and others

Two criminal complaints have been filed in Germany to date against Rumsfeld and others.

Complaint while Rumsfeld was in office

Four Iraqis allegedly tortured at Abu Ghraib filed a criminal complaint in November 2004 with the German Federal Prosecutor’s Office in Karlsruhe, Germany, under the universal jurisdiction doctrine as incorporated in the German Code of Crimes against International Law.[363] Officials named in the complaint included Rumsfeld, Alberto Gonzales, George Tenet, Undersecretary of Defense Stephen Cambone, and several senior US military officers.[364]

The plaintiffs were represented by the Center for Constitutional Rights (CCR) and the European Center for Constitutional and Human Rights (ECCHR), which argued that Germany was “a court of last resort,” as it was “clear that the US government is not willing to open an investigation into these allegations against these officials.”[365]

Germany is one of the few states which do not require the presence of the accused on its territory to begin an investigation for war crimes, crimes against humanity, and genocide under the universal jurisdiction principle (i.e. when there is no other link with Germany). In the absence of the alleged perpetrator, however, article 153 of the German criminal procedure code gives broad discretion to the federal prosecutor as to whether to open an investigation.

Following the complaint, it was reported that Rumsfeld would skip the annual Munich Conference on Security Policy, at which he was traditionally a key speaker. The US embassy in Berlin said it was in “discussions with the Germans about the case and have expressed concern because it would set a precedent for those who want to pursue politicized prosecutions.”[366] When questioned about the case at a Pentagon press conference on February 3, 2005, Rumsfeld hinted that he might not attend the Munich conference, stating “[w]hether I end up there, we’ll soon know. It will be a week, and we’ll find out.”[367]

On February 10, a few days before the Munich conference, German Prosecutor General Kay Nehm dismissed the complaint on the ground the US would investigate the matter in its own country. Nehm stated:

[T]here are no indications that the authorities and courts of the United States of America are refraining, or would refrain, from penal measures as regards the violations described in the complaint. Thus several proceedings have already been conducted against participants, even against members of the 800th Military Police Brigade [the unit implicated in abuse at Abu Ghraib].[368]

The decision did not discuss whether Rumsfeld, then secretary of defense, enjoyed immunity. The next day, Rumsfeld announced that he would attend the Munich conference.[369]

The plaintiffs filed a request to review the decision with the prosecutor as well as with the court. The Higher Regional Court (Oberlandesgericht) in Stuttgart declared the application for review inadmissible on September 13, 2005.[370]

Complaint following Rumsfeld’s resignation

In November 2006, several days after Rumsfeld resigned as defense secretary, CCR and ECCHR filed another criminal complaint with the German federal prosecutor on behalf of Guantanamo detainee Mohammed al-Qahtani, whose treatment is described in this report, and11 Iraqis who alleged they had been tortured.[371] The complaint alleged that Rumsfeld and several government attorneys[372] committed war crimes by justifying, ordering, and implementing abusive interrogation techniques in Iraq, Afghanistan, and Guantanamo.[373]

On April 5, 2007, the prosecutor general at the Federal Court of Justice announced she would not proceed with an investigation.[374] She found there were insufficient links with Germany and that any investigation would likely result in a “purely symbolic prosecution” that would not justify the resources that would go into “complicated but ultimately unsuccessful investigations.”[375]

A petition seeking review of the prosecutor's decision was dismissed by the appeals court, which stated that “the question can remain open whether the acts charged were sufficiently prosecuted by other states.”[376]

France: Complaint against Rumsfeld

On October 25, 2007, when Rumsfeld was on a visit to France after his retirement, the International Federation for Human Rights (FIDH), ECCHR, CCR, and the French League for Human Rights filed a criminal complaint against Rumsfeld with the Paris district prosecutor.The complaint alleged that Rumsfeld had direct and command responsibility for torture in US-run detention facilities in Iraq, Afghanistan, and Guantanamo.[377]

The Paris district prosecutor, Jean-Claude Marin, dismissed the complaint on November 16, 2007, without addressing the torture allegations.[378] The prosecutor found that Rumsfeld was not amenable to prosecution, based on the immunity conferred by his former function as defense secretary.[379]

The Paris prosecutor dismissed a subsequent request for consideration.[380] The prosecutor decided that the acts of torture alleged could not “be dissociated” from Rumsfeld’s official functions and therefore attracted state immunity.[381] This decision ignored contrary international precedents, including the Nuremberg judgment and the Pinochet cases, by suggesting that torture and war crimes can be part of the legitimate functions of a government official.[382]

Spain: Investigations of US officials

Two complaints implicating US officials have been filed in Spain. One has been temporarily suspended while the other remains in progress.

The “Bush Six”

In March 2009, a complaint against six former Bush administration lawyers referred to as the “Bush Six”—Alberto Gonzales, David Addington, William Haynes, John Yoo, Jay Bybee, and Douglas Feith—was filed by the Association for the Dignity of Spanish Prisoners.[383] The complaint alleges that as a result of the legal advice these men provided, the US government committed torture and violations of the Geneva Conventions.[384]

The case was admitted on March 28, 2009, by Spanish Investigative Magistrate Baltasar Garzón, who had issued the 1998 warrant in the Pinochet case, but was then reassigned to Judge Eloy Velasco on April 28, 2009.[385] In accordance with Spanish law, which provides that Spanish courts have “subsidiary jurisdiction,” Judge Velasco on May 4, 2009, requested confirmation from the US of whether an investigation into the allegations was being conducted and, according to the US embassy in Madrid, offered to transfer the investigation to the US under a Mutual Legal Assistance Treaty.[386] After Judge Velasco set a deadline for the US to respond,[387]the US finally answered on March 1, 2011, saying that it had completed several prosecutions (of lower-ranking officials), that “there exists no basis for the criminal prosecution of Yoo or Bybee,” and that Assistant US Attorney Durham was continuing his investigation.[388] Judge Velasco then ordered the case to be "temporarily stayed," and transferred it to the US Department of Justice "for it to be continued, urging it [the DOJ] to indicate at the appropriate time the measures finally taken by virtue of this transfer of procedure."[389] The complainants have appealed that decision.[390]

Investigation into Torture by US officials

In April 2009, Judge Garzón accepted another complaint filed by civil parties and initiated a criminal investigation into the alleged abuse of four Guantanamo detainees with ties to Spain, citing possible violations of the Spanish Penal Code and other Spanish legislation, the Third and Fourth Geneva Conventions, the Convention against Torture, and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.[391]

In May 2009, Judge Garzón issued requests to the US and the UK for confirmation as to whether any investigations were currently pending into the individual cases of the four plaintiffs.[392] Neither country has responded.[393]

On January 27, 2010, Garzón decided that jurisdiction over the complaints existed, and that the complaints could proceed.[394] This was, in part, because one alleged victim was a Spanish citizen, another a Spanish resident, and because Spain had previously issued extradition requests for the other two. However, Judge Garzón also found that jurisdiction existed even in the absence of these links, because the alleged crimes were violations of the Geneva Conventions, the Convention against Torture, the ICCPR, and were crimes against humanity.[395] Garzón has since been suspended from office in relation to his investigation of crimes committed during the Franco era[396] and Judge Pablo Ruz is now handling the case.

On January 7, 2011, the CCR and ECCHR requested that Maj. Gen. Miller be subpoenaed to explain his role in the alleged torture of four of these detainees.[397]

The investigation is ongoing at the time of this writing.

Diplomatic Intervention by the United States

In 2009, Spain weakened its universal jurisdiction laws after several countries whose leaders were subject to complaints, including the US, expressed diplomatic concerns.[398] The amendments generally require some connection with Spain for jurisdiction to arise.[399] Since the cases described above affect four Spanish citizens and residents who had been detained at Guantanamo, the amendments did not halt the cases.

Recently released diplomatic cables reveal that US officials privately and repeatedly attempted to influence Spanish prosecutors and government officials to curtail the investigations and to have them taken away from Judge Garzón,[400] considered by the US to have an “anti‑American streak.”[401]

This pressure continues under the Obama administration. In March 2009, the US Embassy told the Spanish Foreign Ministry and Justice Ministry it considered the case “a very serious matter” and asked to be kept informed of developments.[402] In April, the US chargé d’affaires accompanied US Senator Judd Gregg to the Foreign Ministry to express concern.[403] The next day, the Spanish prosecutor told the embassy that he would seek a review of whether Spain had jurisdiction. The following day, the chargé went with Senator Mel Martinez to see the acting foreign minister, where the chargé “underscored that the prosecutions … would have an enormous impact on the bilateral relationship.”[404]

In a May 2009 meeting between two State Department lawyers and Spanish prosecutor Javier Zaragoza, Zaragoza reportedly shared with the US lawyers plans to embarrass Garzón into dropping the case. He confirmed that Spain would suspend its proceedings if the US investigated the matters.[405]

In contrast, in a contemporaneous briefing a US State Department spokesperson stated that “I'm not aware of any contact with the Spanish Foreign Ministry on this. It's a matter in the Spanish courts, as I'm given to understand. I don't have a comment for you on it at this time. The Obama administration's position on the matters that are under discussion, I think are quite clear.”[406]

The cables also reveal US concern in relation to a separate investigation by Spanish judges into the use of a Spanish airport for secret CIA flights reportedly carrying detainees.[407] US officials were worried, following revelations of coordination between German and Spanish prosecutors, that this would “complicate our efforts to manage this case at a discreet government‑to‑government level.”[408]

Acknowledgments and Methodology

This report was written by Reed Brody, counsel and spokesperson for Human Rights Watch, based on archival and legal research. Sections of the report were researched and drafted by John Sifton, consultant. The report was edited by Andrea Prasow, senior counterterrorism counsel; James Ross, legal and policy director; and Danielle Haas, senior editor. Alison Parker, director, US program; Géraldine Mattioli-Zeltner, international justice programadvocacy director;and Laura Pitter, counterterrorism counsel, provided specialist review. Joanne Mariner, formerly terrorism and counterterrorism director, reviewed earlier versions of the report. Senior Associate Kate Wies contributed to production of the report. Interns Jeremy Shirm, Gunwant Gill and Mathilde Le Maout provided additional research assistance.