"Command Responsibility" ,Torture and Impeachment

The phrase is "cognitive dissonance" - or maybe it's "cover-up".

Documents obtained through the ACLU lawsuit show that Iraqi citizens, themselves known to be innocent of any crimes, were held hostage by US forces in Abu Graib prison in an attempt to pressure relatives suspected of involvement in the insurgency to turn themselves in - a clear violation of international law. Other documents show that an officer at US Army Headquarters in Baghdad, Captain William Ponce, sent an email circular to interrogators in Iraq. In that message, he asked interrogation staff what techniques they thought would be more effective at "breaking" Iraqi detainees. "The gloves are coming off," Ponce wrote, "we want these individuals broken." Responses included "wish lists" of torture techniques such as "closed-fist strikes," hitting detainees with phone books, low-voltage electrical torture and the use of stress positions to induce muscle fatigue.

The UN's top human rights investigator in Afghanistan has been forced out under American pressure just days after he presented a report criticising the US military for detaining suspects without trial and holding them in secret prisons. The UN eliminated Mr Bassiouni's job last week after Washington had pressed for his mandate to be changed so that it would no longer cover the US military.

His report, based on a year spent travelling around Afghanistan interviewing Afghans and delivered just days earlier, estimated that around 1,000 Afghans had been detained and accused US troops of breaking into homes, arresting residents and abusing them.

The military's own investigation has cleared Lt. Gen. Ricardo Sanchez and his top deputies of any wrongdoing in the face of overwhelming evidence of a culture that encouraged and condoned torture and wrongful imprisonment throughout the military. The investigation was conducted by a Lt. General, although investigations against an officer where criminal charges might be brought are usually made by someone of senior rank. "An Army Reserve one-star general has been reprimanded, and the outcome of seven other senior Army officer cases could not be learned Friday."

The Washington Post reports that:

"Human Rights Watch called on U.S. Attorney General Alberto R. Gonzales to appoint a special prosecutor to investigate the roles of all U.S. officials "who participated in, ordered, or had command responsibility for war crimes or torture."

Human Rights Watch also asked Congress to launch an independent and bipartisan probe -- similar to that of the 9/11 commission -- to investigate the roles of senior leaders in abuse, including President Bush, Defense Secretary Donald H. Rumsfeld and former CIA director George J. Tenet."

Like that's ever going to happen. (/cynicism)

The concept that is important in law here is "command responsibility" - for a Commander in Chief or a Secretary of Defence the "I had no knowledge" defense doesn't work, standards are and should be higher than they are for the ordinary politico. This whole horrific scandal, supported by literally thousands of pages of documents that the Pentagon had to be sued for before they would release them, is an impeachment affair and Bush's advisors know it even if the Democrats haven't caught on yet.

One of my rightwing colleagues once said he would refuse to stand by or vote for Bush ever again if allegations of systematic torture, condoned from the very top and down through the chain of command, were ever substantiated. I wonder if he is ready to stand by that promise yet?

UPDATE 26th April

It is very much worth your while to read the whole Human Rights Watch document outlining the cause for criminal proceedings against Donald Rumsfield, George Tenet, Lt. General Sanchez and Maj. General Miller. The section on Donald Rumsfield's complicity in, knowledge of and responsibility for torture and abuse is particularly compelling.

On December 2, 2002, responding to a request from officers at Guantánamo, Secretary Rumsfeld authorized a list of techniques for interrogation of prisoners in Guantánamo that was an unprecedented expansion of army doctrine. The techniques approved by Rumsfeld included:

“The use of stress positions (like standing) for a maximum of four hours”;
Isolation 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.”105


These methods violate the protections afforded to POWs, the presumptive classification of many of the Guantánamo detainees. Depending on how they are used, these methods also likely violate the Geneva Conventions’ prohibition on torture or inhuman treatment of prisoners, regardless of whether the prisoners are entitled to POW protections. Their use on prisoners would thus constitute a war crime.

Additionally, Army Field Manual 34-52 cites “forcing an individual to stand, sit, or kneel in abnormal positions for prolonged periods of time” as an example of torture. 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 U.S. POWs, you would believe such actions violate international or U.S. law.”

As the U.N.’s Special Rapporteur on Torture made clear in his 2004 report to the U.N. General Assembly, the techniques also violate the prohibitions of the Convention against Torture:

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.

Indeed, the United States has 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).111 In the most recent report covering the use of torture in 2004, the State Department 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.

Human Rights Watch points out that Rumsfield et al are not just culpable under the terms of the Geneva Convention or the Convention agianst Torture. Due to the doctrine of "command responsibility", which "holds that individuals who are in civilian or military authority may under certain circumstances be criminally liable not for their actions, but rather for the crimes of those under their command", Rumsfield and others could be charged and prosecuted under US law - namely the War Crimes Act of of 1996, 18 U.S.C. § 2441, and the Anti-Torture Act of 1996, 18 U.S.C. § 2340.

The War Crimes Act 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 U.S. Armed Forces or a national of the United States. A “war crime” is defined as any “grave breach” of the Geneva Conventions or acts which violate common Article 3 of those pacts. “Grave breaches” include “willful killing, torture or inhuman treatment” of prisoners of war (POWs) and of civilians qualified as “protected persons.” Common Article 3 prohibits, inter alia, murder, mutilation, cruel treatment and torture, and “outrages upon personal dignity, in particular humiliating and degrading treatment.”

The Anti-Torture Act criminalizes acts of torture — including attempts to commit torture and conspiracy to commit an act of torture — occurring outside the United States’ territorial jurisdiction regardless of the citizenship of the perpetrator or victim. In the case of torture committed within the United States, as for instance at Guantánamo, prosecution would be possible under several federal statutes, among them the civil rights laws, which bar government employees from using excessive force, and laws against homicide, battery, and the like. Similarly, state criminal laws could be invoked for any abuse taking place within particular states.


Compelling stuff. Human Rights Watch call for the Attorney General to appoint a special counsel to investigate any U.S. officials — no matter their rank or position — who participated in, ordered, or had command responsibility for war crimes or torture, or other prohibited ill-treatment against detainees in U.S. custody. They also ask Congress to create a special commission to investigate.

Sceptical as I am that either of these things is likely to happen, I agree with HRW that they should.

So should you.