Should the U.S. government officials most responsible for setting interrogation and detention policies following the Sept. 11, 2001 attacks be investigated, and if warranted prosecuted, under United States and international law?
In a new comprehensive 107-page report entitled "Getting Away with Torture: The Bush Administration and Mistreatment of Detainees," Human Rights Watch (HRW) concludes that "there is sufficient basis for the U.S. 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" focusing on alleged criminal conduct by "former President George W. Bush, Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, and CIA Director George Tenet."
HRW also recommends investigating former National Security Advisor Condoleezza Rice, Attorney General John Ashcroft, 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).
HRW found that "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, although Bush administration officials have claimed that detention and interrogation operations were only authorized after extensive discussion and legal review by Department of Justice attorneys, HRW concludes that "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."
Although HRW expressed no opinion about the ultimate guilt or innocence of any officials under U.S. law, the report provides a narrative summarizing Bush administration policies and practices on detention and interrogation, and details the case for individual criminal responsibility of several key administration officials.
The report documents how 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 transferred to countries such as Syria, Egypt, and Jordan, where they were likely to be tortured.
We now know that as a direct result of Bush administration decisions, detainees in U.S. custody were beaten, thrown into walls, forced into small boxes, and waterboarded, an ancient method of torture where victims are subjected to mock executions in which they endured the sensation of drowning. Two alleged senior al-Qaida prisoners, Khalid Sheikh Mohammed and Abu Zubaydah, were waterboarded 183 and 83 times respectively.
The report documents how detainees in U.S.-run facilities in Afghanistan, Iraq, and Guantanamo Bay endured prolonged mistreatment, sometimes for weeks and even months, including "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." In Iraq, the abuses included "beatings, near suffocation, sexual abuse, and mock executions;" at Guantanamo Bay, "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."
The report makes clear 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."
HRW also points out that the CIA's use of torture, enforced disappearance, and secret prisons was counterproductive and "tainted the U.S. 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."
To date, President Barack Obama has failed to heed the call to initiate a full and fair investigation of these allegations. As a presidential candidate, Obama spoke of the need for a "thorough investigation" of detainee mistreatment. After his election, he said there should be prosecutions if "somebody has blatantly broken the law," but later backed off and said "we need to look forward as opposed to looking backwards."
HRW points out that "without real accountability for these crimes, those who commit abuses in the name of counterterrorism will point to the U.S. mistreatment of detainees to deflect criticism of their own conduct" and that "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 U.S. 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."
The report responds to the claim that any effort to address past abuses would be politically divisive, and might hinder the Obama administration's ability to achieve pressing policy objectives. "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. The U.S. cannot convincingly claim to have rejected these egregious human rights violations until they are treated as crimes rather than as 'policy options.'"
But the benefits of conducting a credible and impartial criminal investigation are numerous. The U.S. government "would send the clearest possible signal that it is committed to repudiating the use of torture," which "would boost U.S. 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 U.S. 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."
Today, substantial evidence has been placed on the public record regarding illegal detention policies and the torture and ill-treatment of detainees in US custody. FOIA lawsuits brought by the ACLU and the Center for Constitutional Rights have yielded over 100,000 pages of government documents. Extensive information was also uncovered in an investigation by the Senate Armed Services Committee. The Department of Justice inspector general issued a report about FBI involvement in detention abuse in 2008, 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. A report by the International Committee of the Red Cross also describes the treatment of “high-value” detainees in CIA custody. In addition, former detainees and whistleblowers have come forward to tell their stories, and many of the principals have spoken about their roles.
Based on compelling evidence, HRW believes criminal investigations of the following individuals are warranted:
President George W. Bush "authorized the CIA renditions program, which he knew or should have known would result in torture," "has publicly admitted that he approved CIA use of torture, specifically the waterboarding of two detainees," and "never exerted his authority to stop the ill-treatment or punish those responsible."
Vice President Dick Cheney "chaired or attended numerous meetings at which specific CIA operations were discussed, beginning with the waterboarding of detainee Abu Zubaydah in 2002," "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" and "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," "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," "was a member of the NSC Principals Committee, which approved the use of torture for CIA detainees," and "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 Director George 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," "was a member of the NSC Principals Committee," and under his direction, "the CIA also 'disappeared' detainees by holding them in long-term incommunicado detention in secret locations, and rendered detainees to countries in which they were likely to be tortured and were tortured."
In addition, HRW concludes there should be criminal investigations of the government lawyers who wrote legal memoranda seeking to justify torture, which were the basis for authorizing the CIA secret detention program, including Alberto Gonzales, Jay Bybee, John Rizzo, David Addington, William J. Haynes II, and John Yoo.
Will President Obama and Attorney General Eric Holder take the Human Rights Watch report seriously? Will they fulfill U.S. obligations under the Convention Against Torture to investigate these documented allegations of torture? Or will they look the other way, becoming accomplices after-the-fact and risking the condemnation of history.
A version of this article was published in the Los Angeles Daily Journal on July 28, 2011.