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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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