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Who
is Responsible?
May
11, 2004
By Jack Rabbit
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 In
light of the revelations of abuse of Iraqi detainees by American
soldiers and civilians at the Abu Ghraib prison in Iraq, many
have called for the resignation or firing of Donald Rumsfeld
and others. The outrage has been bi-partisan and should be.
No matter how one felt about the wisdom and morality of invading
Iraq, the barbarism that took place in Abu Ghraib cannot be
defended. This is an affair that brings dishonor and disgrace
to Americans.
To merely call for the resignation or firing of the Defense
Secretary misses the point. He is responsible, but not simply
because he failed to oversee the problem or inform either
Congress or the President in a timely manner. The buck no
more stops with Donald Rumsfeld than it stops with Lynndie
England.
The scandal at Abu Ghraib prison is deeper than one prison
in Iraq. To dismiss this as nothing more than a "few bad apples"
acting like drunken pledges at a frat house party insults
anybody's intelligence. Major General Anotonio Taguba's report
on Abu Ghraib cites "systemic" abuse of detainees and faults
several field-grade officers, including a Brigadier General,
along with several senior NCOs and some civilian contractors
(called OGAs or employees of Other US Government Agencies
in the report) for flagrant violations of army regulations
and the Third Geneva Convention regarding the treatment of
prisoners of war and other detainees.
Abuse of Power
General Taguba is right to fault these people. In a hierarchical
organization where high level commanders direct subordinates
to carry out orders, the commander is responsible for the
discipline of the subordinate. It goes hand-in-hand with the
notion that the subordinate is responsible for carrying out
the order.
What happened in Abu Ghraib was an abuse of power. This was
not "abuse of power" in the same sense that Nixon abused his
power to make life miserable for political enemies; this is
more primitive. This is the kind of abuse of power a rapist
has over his victim.
Presumably, there was a method to this madness. SPC Sabrina
Harman of the 372d MP Company, who faces a court martial for
her part in the abuse of the detainees, told General Taguba's
investigators, naming two other enlisted members who are under
scrutiny: "MI [Military Intelligence] wanted to get them to
talk. It is Grainer and Frederick's job to do things for MI
and OGA to get these people to talk." The Taguba Report's
summation of the testimony of SGT Javal Davis, also of the
372d, is revealing:
I witnessed prisoners in the MI hold section, wing 1A being
made to do various things that I would question morally.
In Wing 1A we were told that they had different rules and
different SOP for treatment. I never saw a set of rules
or SOP for that section just word of mouth. The Soldier
in charge of 1A was Corporal Granier. He stated that the
Agents and MI Soldiers would ask him to do things, but nothing
was ever in writing he would complain (sic).
When asked why the rules in 1A/1B were different than the
rest of the wings, SGT Davis stated:
The rest of the wings are regular prisoners and
1A/B are Military Intelligence (MI) holds.
When asked why he did not inform his chain of command about
this abuse, SGT Davis stated:
Because I assumed that if they were doing things out of
the ordinary or outside the guidelines, someone would have
said something. Also the wing belongs to MI and it appeared
MI personnel approved of the abuse.
SGT Davis also stated that he had heard MI insinuate to the
guards to abuse the inmates. When asked what MI said he stated:
"Loosen this guy up for us." Make sure he has
a bad night." "Make sure he gets the treatment."
He claimed these comments were made to CPL Granier and SSG
Frederick. Finally, SGT Davis stated that (sic):
The MI staffs to my understanding have been giving
Granier compliments on the way he has been handling the MI
holds. Example being statements like, "Good job, they're breaking
down real fast. They answer every question. They're giving
out good information, Finally, and Keep up the good work."
Stuff like that.
The purpose of this behavior toward detainees was to "loosen
them up" in order to make them talk. This is a clear violation
of international law. Article 3 of the Third Geneva Convention
(1949), of which the United States is a party, states:
In the case of armed conflict not of an international
character occurring in the territory of one of the High Contracting
Parties, each Party to the conflict shall be bound to apply,
as a minimum, the following provisions: (1) Persons taking
no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors
de combat by sickness, wounds, detention, or any other cause,
shall in all circumstances be treated humanely, without any
adverse distinction founded on race, colour, religion or faith,
sex, birth or wealth, or any other similar criteria. To this
end the following acts are and shall remain prohibited at
any time and in any place whatsoever with respect to the above-mentioned
persons:
a.. (a) violence to life and person, in particular murder
of all kinds, mutilation, cruel treatment and torture;
b.. (b) taking of hostages;
c.. (c) outrages upon personal dignity, in particular,
humiliating and degrading treatment;
d.. (d) the passing of sentences and the carrying out of
executions without previous judgment pronounced by a regularly
constituted court affording all the judicial guarantees
which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and
cared for.
Moreover, the 1984 Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment states:
For the purposes of this Convention, the term "torture"
means any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person
has committed or is suspected of having committed, or intimidating
or coercing him or a third person, or for any reason based
on discrimination of any kind, when such pain or suffering
is inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting
in an official capacity. It does not include pain or suffering
arising only from, inherent in or incidental to lawful sanctions.
Among the practices that General Taguba found at Abu Ghraib
are:
• Punching, slapping, and kicking detainees; jumping
on their naked feet;
• Videotaping and photographing naked male and female
detainees;
• Forcibly arranging detainees in various sexually explicit
positions for photographing;
• Forcing detainees to remove their clothing and keeping
them naked for several days at a time;
• Forcing naked male detainees to wear women's underwear;
• Forcing groups of male detainees to masturbate themselves
while being photographed and videotaped;
• Arranging naked male detainees in a pile and then jumping
on them;
• Positioning a naked detainee on an MRE Box, with a
sandbag on his head, and attaching wires to his fingers, toes,
and penis to simulate electric torture;
• Writing "I am a Rapest" (sic) on the leg of a detainee
alleged to have forcibly raped a 15-year old fellow detainee,
and then photographing him naked;
• Placing a dog chain or strap around a naked detainee's
neck and having a female soldier pose for a picture;
• A male MP guard having sex with a female detainee;
• Using military working dogs (without muzzles) to intimidate
and frighten detainees, and in at least one case biting and
severely injuring a detainee;
• Taking photographs of dead Iraqi detainees.
That the behavior exhibited in photographs seen throughout
the world and described in the Taguba Report is a violation
of the Third Geneva Convention and the Convention against
Torture cannot be doubted. These are not merely abuses; this
is torture. These are not frat house pranks; these are war
crimes and crimes against humanity.
General Taguba's report makes clear that the responsibility
for these crimes does not end with those lower-ranking enlisted
personnel seen torturing detainees in photographs. Yet the
Taguba Report is confined to the crimes at Abu Ghraib, when
the problem goes well beyond that. The problem goes directly
to Rumsfeld's boss.
Bush's Responsibility
The Bush administration has expressed contempt for international
law and conventions since before the September 11 attacks.
The doctrine to which the administration subscribes holds
that the US may define for itself its own interests without
regard to the rest of the world. The abrogation of the Kyoto
agreement on climate change was the first outrage of this
nature by the Bush administration and was by no means the
last. In addition to climate control, this administration
has also scrapped long standing nuclear test ban arrangements
and opposed a Comprehensive Nuclear Test Ban Treaty. On December
14, 2001, Mr. Bush withdrew the United States from the Anti-Ballistic
Missile Treaty, ending a decades-old and still-functioning
system of arms control.
The field of international humanitarian law also ran afoul
of the Bush style of unilateralism. Not only did the Bush
administration refuse to sign on to the Rome Statute for the
International Criminal Court, but contemptuously "unsigned"
the treaty. Long before Bush assumed power, the US right wing
claimed that it would be wrong for international courts to
try American soldiers accused of war crimes. It would seem
that their position was simply that if an American did it,
then it is not a war crime.
These right wing critics of international law further argue
that violations of humanitarian law can and should be tried
in US courts. This argument seems strange. It says on the
one hand that the United States need not recognize international
conventions against war crimes, yet on the other that the
US will police itself when violations of the conventions that
are not recognized take place.
This also ignores the fact that under the Rome Statute,
the International Criminal Court (ICC) will not become involved
unless the offending nation is unable of unwilling to pursue
prosecution of the suspected criminals. As it should, the
US would have the first opportunity to bring its own wrongdoers
to justice.
What will the US do? Is it sufficient to court martial some
enlisted personnel, reprimand some officers and fire some
civilian contractors for the abuses of Abu Ghraib? Would it
be sufficient to dismiss Mr. Rumsfeld from his post? No, the
problem goes beyond that.
It is Mr. Bush himself who is responsible for the crimes
at Abu Ghraib. The circumvention of international humanitarian
law is Bush administration policy. He is responsible whether
he directly ordered any particular case of abuse at that prison
or even whether he knew about it in January, as Mr. Rumsfeld
said, or while watching 60 Minutes, as Mr. Bush said, or knew
all along, which no one suggests. The crimes at Abu Ghraib
are the result of the peculiar detention system established
by Mr. Bush and his subordinates in the wake of the war on
terror.
The centerpiece of the detention system is the prison camp
at the US Naval Base at Guantanamo Bay, Cuba. A feature of
the detention system is that it is, in the words of separate
statements by Human Rights Watch and the International Committee
for the Red Cross, "a legal black hole." This administration
claims that the detention center is beyond the reach of the
jurisdiction of any court. The detainees at the facility are
presumed to be terrorists; no review of their cases can occur
except by the good graces of this administration itself. The
administration further asserts that all detainees at Guantanamo
are "unlawful combatants" with no rights as prisoners of war.
Again, because the administration claims that no US or international
court has any jurisdiction over inmates at Guantanamo, their
status cannot be reviewed by anyone outside the Bush administration.
This arrangement contradicts the Third Geneva Convention,
under which a detainee is to be treated as a prisoner of war
until a competent tribunal rules otherwise (Article 5). Since
the administration's rules preclude judicial review of any
detainee's status, no detainee has ever been had a review
by any competent tribunal and so could not be ruled anything
but a prisoner of war.
Moreover, the catch-all phrase under international law for
those who are not prisoners of war is not "unlawful combatants,"
a term which is not found in any recognized body of international
law, but rather "protected persons." The rights of protected
persons are spelled out in the Fourth Geneva Convention; the
rights of protected persons under the authority of a hostile
power are little different than those prisoners of war. Even
assuming that the detainees at Guantanamo are not prisoners
of war, their rights under international law are being violated
systematically and willfully by Mr. Bush and his subordinates.
The Bush administration has instituted a system of military
commissions to try the prisoners at Guantanamo. The trials
are not public and their proceedings may be secret. The defendant
may only be represented by an attorney who is approved by
the government; in effect, the prosecution has veto power
over the defense counsel. There shall be no jury; a two-thirds
vote from commission members is sufficient for conviction
or the imposition of a sentence, including death. The only
appeal is to the President or the Secretary of Defense.
It is at best problematic to propose that this system of
military commissions meets the requirements of the Third Geneva
Convention, which states "In no circumstances whatever shall
a prisoner of war be tried by a court of any kind which does
not offer the essential guarantees of independence and impartiality
as generally recognized, and, in particular, the procedure
of which does not afford the accused the rights and means
of defence provided for in Article 105." Article 105 permits
that the trial be held in-camera for the interest of state
security, but that the Detaining Power (the United States
in this case) shall advise the Protecting Power of this decision.
The Protecting Power in this case is usually the Red Cross.
The Pentagon has restricted the access of human rights groups
who wish to monitor the proceedings, although the Red Cross
will get seats.
The conditions under which prisoners are kept at Guantanamo
are the subject of some international concern. Few outsiders
have seen the camp and reported on it. Those who have, condemn
it. Prisoners are housed in small cages with little protection
from the elements. Human Rights Watch called the conditions
"a scandal" long before Abu Ghraib made headlines. A British
jurist looking into the situation at one of the Guantanamo
camps called the conditions one of "utter lawlessness."
The detention camp at Guantanamo Bay was set up to circumvent
international law. Mr. Bush cannot claim to know nothing about
it or to not be responsible for it. He signed the executive
orders authorizing this circumvention of international law.
But the problems do not stop at Guantanamo. Detainees in
other locations have also come in for inhumane treatment.
In December 2002, two prisoners in US custody at the military
base in Bagram, Afghanistan, died. A military coroner ruled
that the deaths were homicides resulting from a "blunt force
trauma." Irene Khan, Secretary General of Amnesty International,
outlined in an open letter to Mr. Bush dated May 7 other examples
of torture at Bagram and at the US Air Base at Khandahar.
In addition, Khan claims to have been in contact with a person
who has worked in Guantanamo who relays tales of inmates who
are beaten and tortured at Bagram and Khandahar and then sent
to Guantanamo for further mistreatment.
Outsourcing Torture
A greater problem with the use of torture in the war on terror
is outsourcing. The most infamous case of US outsourcing of
torture is that of Maher Arar, a Canadian citizen born in
Syria. US officials took Arar into custody when he stopped
in New York on his way back to Canada from Tunisia in September
2002, claiming that he had associations with al Qaida. He
was transferred to Jordan and then to Syria; neither state
is known to have a stellar human rights record. Arar alleges
that for the following ten months, he was tortured by Syrian
authorities. According to Human Rights Watch, Arar protested
being turned over to the Syrians, fearing he would be tortured.
Arar also alleges that the US government is well aware of
Syria's practice of torture. Arar has good reason to make
this allegation - the State Department explicitly mentions
the use of torture in its report on human rights conditions
in Syria.
As a result of the Arar affair, the Canadian government
issued in October 2002 a warning to Canadians of Middle Eastern
origin to avoid traveling in the United States. The message
of such a warning is discomforting: the US under Bush is a
regime that will violate the rights of a particular cultural
group because others of that group carried out the September
11 attacks.
Sending the Wrong Signals
If the Bush administration wants to send signals that this
situation at Abu Ghraib is just some sort of mistake, then
it is sending the wrong ones. First, they have sent to clean
up the wrongdoing at Abu Ghraib none other than General Geoffrey
Miller, fresh from his command at Guantanamo Bay. In light
of the alleged violations of human rights at Guantanamo, this
seems a bit like trying to clear up some irregularities in
the accounting department by putting a suspected embezzler
in charge.
Second, Mr. Bush has appointed and the US Senate has confirmed
John Negroponte as US ambassador to Iraq. It is widely regarded
that as US ambassador to Iraq Mr. Negroponte will act as the
colonial governor, replacing Paul Bremer. Mr. Negroponte's
current post is as ambassador to the United Nations, where
he was instrumental in promoting the prevarications that Mr.
Bush used to justify the invasion of Iraq. However, what makes
Mr. Negroponte's appointment as ambassador to Iraq even more
curious is his history as a facilitator of human rights violations
when he served as ambassador to Honduras during the Reagan
years.
No one in the Bush administration apparently had any problem
with violating human rights in the war against terrorism until
the incidents were not just widely reported but photographed
and televised. The initial response was to attempt to isolate
the affair to one facility and to "a few rotten apples." When
that didn't work, Mr. Rumsfeld was prepared to take it upon
himself to call it a personal failure for not properly overseeing
his subordinates, although they are several times removed
from him, and not informing the proper people in a timely
manner.
That doesn't work, either. Two days before Mr. Rumsfeld
appeared before Congress, the Washington Post called
for Rumsfeld's removal. Said the Post in an editorial:
Beginning more than two years ago, Mr. Rumsfeld
decided to overturn decades of previous practice by the U.S.
military in its handling of detainees in foreign countries.
His Pentagon ruled that the United States would no longer
be bound by the Geneva Conventions; that Army regulations
on the interrogation of prisoners would not be observed; and
that many detainees would be held incommunicado and without
any independent mechanism of review. Abuses will take place
in any prison system. But Mr. Rumsfeld's decisions helped
create a lawless regime in which prisoners in both Iraq and
Afghanistan have been humiliated, beaten, tortured and murdered
- and in which, until recently, no one has been held accountable.
What the Post didn't say is that Mr. Rumsfeld could
not have done any of that without the active support of the
man who appointed him Secretary of Defense. It is only right
that if Rumsfeld goes, so must Bush.
The real problem is that Mr. Bush and his top aides believe
something is to be gained from violating the human rights
of people taken into custody in anything that is related to
the war on terror or in what they simply want the world to
believe is part of the war on terror. They designed a legal
system that would circumvent what little control an international
jurist would have over these affairs. These are war crimes
and crimes against humanity. Mr. Bush and his top aides must
be brought to account for their misdeeds.
If Mr. Bush's supporters, so contemptuous of international
law and international institutions, really believe that the
US should be trusted to police itself and try its own war
criminals, let them prove it. Let them introduce the impeachment
resolution against Mr. Bush. Let them lead the fight to remove
him from office in the senate. Let the senior statesmen of
the Republican Party call for a replacement candidate. Let
one of their own prosecute Mr. Bush and his aides in federal
court.
Or do they not believe that torturing a prisoner of war
or a protected person in an occupied country is a crime? Or
do they just not believe that signing executive orders that
establish an unaccountable system that contradicts modern
concepts of justice is a crime? If that is the case, then
we should not expect them to right these wrongs.
The American people in November must remove the immunity
that these law breakers enjoy. We must turn our backs on them
else the world should turn its back on us. We must defeat
Bush and defeat him soundly.
Only by removing George W. Bush from office, followed by
the indictment and trial of Mr. Bush and his aides for violations
of international humanitarian law, will we convince the world
that the American people do not stand for war crimes and that
this will not happen again.
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