Well Beyond Abu Ghraib: Expert Testimony on the Effects of US Torture Policy

Over three and a half years, I had occasion to travel to Guantanamo Bay; meet with Iraqi and Afghan nationals who had been victims of gross abuse in US detention facilities there; consult with military service-members and medical experts whose work had been touched by these events; and review hundreds upon hundreds of pages of government documents detailing our treatment of the many thousands of detainees who have passed through US custody since 2002. Based on this work, it became clear to me that the US record of detainee treatment fell far short of what our laws require and what our security interests demand.

Well beyond the few highly publicized incidents of torture at Abu Ghraib, as of 2006 there had been more than 330 cases in which US military and civilian personnel were credibly alleged to have abused or killed detainees (this, according to a study based almost entirely on the US government's own documentation by New York University, Human Rights First, and Human Rights Watch issued in April 2006). These cases involved more than 600 US personnel and more than 460 detainees held at US facilities in Afghanistan, Iraq and Guantanamo Bay. They included some 100-plus detainees who died in US custody, including 34 whose deaths the Defense Department reported as homicides. At least eight of these detainees were, by any definition of the term, tortured to death.

It also became clear to me that these patterns were not merely the results of accidents or misconduct by a few wrong-doers. Rather, senior civilian legal and policy guidance was one of the key factors that led to the record of abuse just described. In addition to the testimony this Committee has already received on the role of direct authorization for abusive interrogation, I based my conclusion on several findings in particular, which I describe here.

First, as one of the many Pentagon investigations conducted into the issue concluded in 2004, and as the numbers just discussed confirm, the problem of detainee abuse was systemic in nature.

Second, the pattern of abuse we documented followed a series of broad legal decisions to change what had been for decades settled US law. This law had unambiguously provided that detention operations in situations of armed conflict were controlled by the Geneva Conventions, including Common Article 3 of those treaties affording all detainees a right to basic humane treatment. The administration's 2002 legal interpretation to the contrary, as the Supreme Court later made clear in Hamdan v. Rumsfeld, was wrong as a matter of law. It was also disastrous as a matter of policy. In suspending application of Common Article 3, the administration offered no comprehensive or even consistent set of rules to replace those it had summarily rejected, producing rampant confusion and ultimately gross abuse by front-line, inexperienced troops. Although young troops and commanders moved seamlessly from Afghanistan to Guantanamo Bay to Iraq (as a result of shifting troop deployments), the operative detention and interrogation orders in each theater differed. The orders differed further within each detention center depending on the month, the agency affiliation of the interrogator, and the legal status assigned to an individual prisoner. These policies and orders, and the confusion they engendered, unquestionably played a role in facilitating abuse.

Finally, it is now clear that gross acts of detainee abuse continued long after senior Pentagon offices, including that of Defense Secretary Rumsfeld, knew it was happening. And yet no meaningful action was taken to stop it. By February 2004, the Pentagon had seen extensive press accounts, NGO reports, FBI memoranda, Army criminal investigations, and even the report of Army Major General Antonio Taguba detailing detainee torture and abuse -- yet essentially no investigative progress had been made by 2004 in some of the most serious cases, including the interrogation-related homicides of detainees in US custody. On the contrary, shortly after the Taguba Report was leaked to the press in early May 2004, the office of then Under Secretary of Defense for Policy Douglas Feith reportedly sent an urgent e-mail around the Pentagon, warning officials not to read the report. The e-mail warned that the leak was being investigated for "criminal prosecution" and that no-one should mention the Taguba Report to anyone, including family members. This is not the response of an administration that takes human rights -- or law enforcement -- seriously. For far too long, the message from Defense leadership was that violators could break US and international law against cruel treatment with impunity.