Newly released US government documents, detailing how Bush administration officials punched legalistic holes in the Geneva Conventions' protections of war captives, stand in stark contrast to the outrage some of the same officials expressed in the first week of the Iraq war when Iraqi TV interviewed several captured American soldiers.
"If there is somebody captured," President George W. Bush told reporters on March 23, 2003, "I expect those people to be treated humanely. If not, the people who mistreat the prisoners will be treated as war criminals."
Then, Defense Secretary Donald Rumsfeld, President George W. Bush, and other administration officials orchestrated a chorus of outrage, citing those TV scenes as proof of the Iraq's government contempt for international law in general and the Geneva Conventions in particular.
"It is a blatant violation of the Geneva Convention to humiliate and abuse prisoners of war or to harm them in any way. As President Bush said yesterday, those who harm POWs will be found and punished as war criminals," Pentagon spokeswoman Victoria Clarke said on March 24, 2003.
That same day, Deputy Defense Secretary Paul Wolfowitz told the BBC that "the Geneva Convention is very clear on the rules for treating prisoners.. They're not supposed to be tortured or abused; they're not supposed to be intimidated; they're not supposed to be made public displays of humiliation or insult, and we're going to be in a position to hold those Iraqi officials who are mistreating our prisoners accountable, and they've got to stop."
At a March 25, 2003, press briefing about progress in the US-led invasion, Secretary Rumsfeld said, "This war is an act of self-defense, to be sure, but it is also an act of humanity.... In recent days, the world has witnessed further evidence of their [Iraqi] brutality and their disregard for the laws of war. Their treatment of coalition POWs is a violation of the Geneva Conventions."
The US news media also assisted in this one-sided indictment by uncritically reporting the administration's complaints while staying silent on the fact that, just days earlier, American TV had run scenes of captured Iraqi soldiers, some forced to kneel down at gunpoint to be patted down by US soldiers.
This behavior of the US news media during the early phase of the Iraq war fit with its lack of skepticism in the months leading up to the March 19, 2003, invasion as Bush administration officials spoon-fed the press false intelligence alleging secret Iraqi WMD stockpiles and covert links to al-Qaeda terrorists responsible for the 9/11 attacks.
So, perhaps it should have come as no surprise when the US news media treated the TV footage of American POWs as further evidence that Iraq was run by a lawless regime with no respect for the rules of war. [For a contemporaneous account of the POW issue, see Consortiumnews.com's "International Law a la Carte."]
In retrospect - now with much more of the documentary record available - the disparity between the administration's outrage toward the Iraqis for showing the video and the abuse inflicted by the US government on captives from the Iraq and Afghan wars is stunning.
Declassified documents reveal that the Bush administration concocted legal theories to justify sidestepping the Geneva Conventions when it came to prisoners incarcerated at Guantanamo Bay, at secret CIA prisons, and at various locations in Iraq, including Abu Ghraib, where shocking photos were leaked of sexual and physical abuse in 2004.
Indeed, while US government officials were preaching to Iraqis about the rules of war, the Bush administration was seven months into a secret interrogation program that authorized CIA interrogators to question Afghan and al-Qaeda detainees using brutal methods.
The techniques included painful "stress positions," forced nudity in cold conditions and the simulated drowning of waterboarding, practices that human rights organizations say violated Geneva and anti-torture laws.
The Bush administration also ordered the CIA to engage in "extraordinary renditions," which involved kidnapping terror suspects and shipping them to countries that are known to practice torture.
If held to the same standards that the Bush administration demanded of the Iraqi military, US officials implicated in these policies would be guilty of violating the Geneva Conventions, said Claire Tixeire, a human rights attorney with the Center for Constitutional Rights in New York.
"They clearly knew that the laws of war were supposed to apply to prisoners apprehended by the United States in Afghanistan and Iraq, but they found every legal loophole to find ways it didn't apply to the US side," Tixeire said in an interview.
Tixeire, whose organization is defending some of the prisoners at Guantanamo Bay, said that while US officials may have had a point in accusing the Iraqi military of violating the Geneva Conventions over the TV interviews, the way the US treated Iraqi captives was much worse.
"It's clear to me these actions came down from the very top," Tixeire said. "Denying prisoners of war humane treatment is the greatest breach of the Geneva Convention. It's a war crime. They put US troops at risk for being treated inhumanely if they were captured."
When asked recently about the past statements about Iraqi violations of the Geneva Conventions, representatives for Clarke, Wolfowitz and Rumsfeld said the now-former officials would not comment for this story.
The actions of the Bush administration also flouted the 1984 "Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment," which was approved by 145 nations, including the United States. It declares that:
"No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."
Moreover, the convention says individuals who resort to torture cannot defend their actions by saying they were acting on orders from superiors and it mandates that torturers be prosecuted wherever they are found.
The United States signed the Convention Against Torture in 1988 under President Ronald Reagan, who hailed it as "a significant step" in preventing torture, which he called "an abhorrent practice unfortunately still prevalent in the world today."
In a May 20, 1988, message to the US Senate, Reagan noted that "the core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called 'universal jurisdiction.'"
According to that provision, "each state party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution."
It was this Convention, ratified by the Senate in 1994, that Bush administration officials sought to bypass with legal memos, many drafted by John Yoo of the Justice Department's Office of Legal Counsel.
The administration memos argued that the Geneva Conventions did not apply to detainees in the "war on terror" and that President Bush's commander in chief powers allowed him to ignore laws in the interest of protecting the nation.
The record now shows that during the same week in March 2003 - when Rumsfeld was publicly berating Iraq for violating the Geneva Conventions by broadcasting footage of American POWs - he was engaged in drafting a top-secret plan that would give military interrogators at Guantanamo wide latitude to use harsher techniques to obtain information from prisoners.
Rumsfeld signed off on the plan on April 2, 2003, according to documents declassified and turned over to the American Civil Liberties Union last month in response to a Freedom of Information Act lawsuit.
Though some of the more extreme techniques were dropped as the list was winnowed down to 24 from 35, the final set of interrogation methods Rumsfeld approved still included tactics for isolating and demeaning a detainee, known as "pride and ego down."
Such degrading tactics would appear to contravene the Geneva Conventions, which bars abusive or demeaning treatment of captives.
Reports of Abuse
Weeks after the Iraq invasion, human rights groups started receiving information about the abuse of dozens of Iraqi prisoners at Camp Cropper, Camp Bucca and Abu Ghraib, and the deaths of two prisoners, one of whom died of a crushed larynx, and the other with a hard blow to the head.
Amnesty International sent a letter to the head of the US occupation, Paul Bremer, on June 26, 2003, raising concerns about abuses during house searches, treatment during arrest and detention, people being forced to lie face down on the ground, use of hoods or blind folds, exposure to sun and heat for hours, limited amount of water supplied and lack of proper washing and toilet facilities.
One month later, Amnesty International released a report, "Iraq: memorandum on concerns relating to law and order," warning of allegations of torture and abuse in US prisons, including Abu Ghraib.
"Regrettably, testimonies from recently released detainees held at Camp Cropper and Abu Ghraib Prison do not suggest that conditions of detention have improved," the report said.
There are "a number of reports of cases of detainees who have died in custody, mostly as a result of shooting by members of the Coalition forces." A Saudi national "alleged that he was subjected to beatings and electric shocks."
Photographs backing up these allegations would surface a year later in two investigative news reports, one by Seymour Hersh of The New Yorker and the other by "60 Minutes II," which detailed the systematic abuse of Iraqi prisoners at Abu Ghraib.
Months before the worldwide condemnation of the treatment of the Abu Ghraib prisoners, Rumsfeld sent Maj. Gen. Geoffrey D. Miller to Baghdad from Guantanamo Bay to "hit back at the [Iraqi] insurgents ... through unorthodox means," according to a May 10, 2004, front-page story in the Washington Post.
"He came up there and told me he was going to 'Gitmoize' the detention operation," turning it into a hub of interrogation, said Brig. Gen. Janis L. Karpinski, then commander of the military prison system in Iraq, according to the Post.
Hersh wrote in The New Yorker's May 24, 2004, issue that "the roots of the Abu Ghraib prison scandal lie not in the criminal inclinations of a few Army reservists but in a decision, approved last year  by Secretary of Defense Donald Rumsfeld, to expand a highly secret operation, which had been focused on the hunt for Al Qaeda, to the interrogation of prisoners in Iraq....
"The solution, endorsed by Rumsfeld and carried out by Stephen Cambone, was to get tough with those Iraqis in the Army prison system who were suspected of being insurgents.... Rumsfeld and Cambone went a step further, [bringing] unconventional methods to Abu Ghraib.... The male prisoners could be treated roughly, and exposed to sexual humiliation."
Amrit Singh, a staff attorney at the ACLU's Immigrant Rights Project and the co-author of "Administration of Torture," added that Rumsfeld and other top Bush administration officials by "holding up the Geneva Convention and saying it did not apply to some prisoners have tarnished the image of the US throughout the world."
Even after the programs governing interrogations were exposed, Rumsfeld made sure that a loophole in a new Defense Department (DoD) policy issued in November 2005, which barred torture and called for the "humane" treatment of detainees, gave him and his deputy the authority to override it.
"Intelligence interrogations will be conducted in accordance with applicable law, this directive and implementing plans, policies, orders, directives, and doctrine developed by DoD components and approved by USD (I), unless otherwise authorized, in writing, by the secretary of defense or deputy secretary of defense," the policy says. "USD (I)" refers to the undersecretary of defense for intelligence.
It would take months and years - as documents from Bush's first term were gradually released to the public - to reveal the extent of the Bush administration's hypocrisy.
For instance, it's now known that the International Committee of the Red Cross (ICRC) began an investigation of US war crimes in Iraq from the first days of the invasion, interviewing Iraqis captives from March to November 2003.
On January 15, 2004, ICRC president Jakob Kellenberger expressed his concern to Secretary of State Colin Powell about the Bush administration's attitude regarding international law, specifically an op-ed by then-State Department legal adviser William Taft IV in The Financial Times four days earlier.
In that op-ed, Taft wrote that there was no law that required the US to afford due process to foreigners captured in the "war on terror."
"American treatment of detainees held at Guantanamo Bay in Cuba is fully consistent with international law and with centuries-old norms for treating individuals captured in wartime," Taft wrote. "We are engaged in a war."
It's unclear what Kellenberger cited in Taft's column, because the recently released minutes of the meeting were heavily redacted. But the conversation segued into Powell asking Kellenberger "where in addition to Afghanistan, did ICRC have problems with notification and access to detainees?"
Powell is quoted as saying "we are confident of our legal position [referring to legal adviser Taft's op-ed], but we also know the world is watching us."
The next month, the ICRC gave Bush administration officials a confidential report, which found that US occupation forces in Iraq often arrested Iraqis without good reason and subjected them to abuse and humiliation that sometimes was "tantamount to torture" in violation of the Geneva Conventions.
Some excessive violence, including the use of live ammunition against detainees, had led to seven deaths, the ICRC report said.
"According to the allegations collected by the ICRC, ill-treatment during interrogation was not systematic, except with regard to persons arrested in connection with suspected security offences or deemed to have an 'intelligence' value," the report said.
"In these cases, persons deprived of their liberty under supervision of the Military Intelligence were at high risk of being subjected to a variety of harsh treatments ranging from insults, threats and humiliations to both physical and psychological coercion, which in some cases was tantamount to torture, in order to force cooperation with their interrogators."
One of the recipients of the ICRC confidential report was Lt. Gen. Ricardo Sanchez, the senior US military officer in Iraq, an ICRC official said later. Sanchez had instituted a "dozen interrogation methods beyond" the Army's standard interrogation techniques that comply with the Geneva Conventions, according to a 2004 report by a panel headed by former Defense Secretary James Schlesinger.
Sanchez said he based his decision on "the President's Memorandum" justifying "additional, tougher measures" against detainees, the Schlesinger report said. The memorandum Sanchez was referring to was an order that Bush signed on February 7, 2002, excluding "war on terror" suspects from Geneva Conventions' protections.
As the ICRC gathered more information about the Bush administration's detention policies, it began to make some of its concerns public. On March 1, 2004, for instance, Gabor Rona, the ICRC's legal adviser, wrote an op-ed, also in The Financial Times, that took issue with the Bush administration's posture on the Geneva Conventions.
"The US is proceeding with plans to subject prisoners to military commission trials, citing the Geneva Convention provision that prisoners of war be tried by military courts. How can it do so while maintaining that no detainees are entitled to PoW status?" Rona wrote.
"That aside, the US risks throwing into the military-trial pot people whose alleged crimes have no connection with armed conflict, as understood in international humanitarian law. Such people can and should face trial, but not by military courts."
Taft responded with an angry letter to Kellenberger on March 16, 2004.
"Your staff states categorically that detainees are entitled to an individualized procedure to challenge the basis of their detention," Taft wrote. "No citation or support is provided for this assertion. There is, in fact, no such entitlement in the 1949 Geneva Conventions.
"However, the implication in the article is that the Geneva Conventions do provide such entitlement. This again has the unfortunate effect of misleading the public."
The Abu Ghraib Scandal
The behind-the-scenes dispute over detainee treatment went public in another way in April 2004 when photos were leaked showing US prison guards at Abu Ghraib forcing naked Iraqi detainees into sexual positions, intimidating detainees with attacks dogs, committing other abuses, and posing with the corpse of an Iraqi who had died in custody.
After a public scandal erupted, President Bush blamed the Abu Ghraib abuses on low-level prison guards.
"I shared a deep disgust that those prisoners were treated the way they were treated," Bush said. "Their treatment does not reflect the nature of the American people."
However, Bush's finger-pointing at a few "bad apples" was soon contradicted when the contents of the February 2004 ICRC report were leaked to The Wall Street Journal in May 2004. The ICRC findings made clear that the Abu Ghraib abuses were not an isolated case.
Nevertheless, 11 enlisted soldiers, who were guards at Abu Ghraib, were convicted in courts-martial. Cpl. Charles Graner Jr. received the harshest sentence - 10 years in prison - while Lynndie England, a 22-year-old single mother, who was photographed holding an Iraqi on a leash and pointing at a detainee's penis, was sentenced to three years in prison.
Superior officers were cleared of wrongdoing or received mild reprimands.
But the February 2004 ICRC report on Iraq took on added meaning with the recent disclosure of another ICRC report, dated February 14, 2007. Based on interviews that the ICRC finally arranged with 14 "high-value" detainees held at secret CIA prisons, the report concluded those prisoners had been subjected to similar humiliating and abusive treatment, including forced nudity and stress positions, as well as the drowning sensation of waterboarding.
The ICRC concluded that the treatment "constituted torture," a finding that has legal weight because the ICRC is responsible for ensuring compliance with the Geneva Conventions and supervising the treatment of prisoners of war.
Taken together, the two reports suggest that the Bush administration adopted a policy of torture against "high-value" detainees captured in 2002 and that the policy spread to Iraq in 2003 when US forces were grappling with a rising Iraqi insurgency against the American occupation.
In December 2008, a Senate Armed Services Committee report reached a similar conclusion, tracing the US abuse of detainees at Guantanamo Bay and later Abu Ghraib to President Bush's February 7, 2002, action memorandum that excluded "war on terror" suspects from Geneva Conventions' protections.
The report said Bush's memo opened the door to "considering aggressive techniques," which were then developed with the complicity of then-Defense Secretary Rumsfeld, Bush's National Security Adviser Condoleezza Rice, and other senior officials.
The public record - as it now exists - also makes clear that the Bush administration had a selective view of international law. When it worked to American advantage - as when Iraqis videotaped captured US soldiers in March 2003 - Bush and his aides saw the rules as binding, but not when the laws of war constrained their own behavior.
In other words, international law applied to the other guy, but not to George W. Bush. He surely didn't mean to implicate himself when he declared "the people who mistreat the prisoners will be treated as war criminals."