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An earlier military investigation, the Fay report, found that the sort of techniques authorized by Secretary Rumsfeld for use at Guantánamo were being used in Afghanistan where interrogators were “removing clothing, isolating people for long periods of time, using stress positions, exploiting fear of dogs and implementing sleep and light deprivation". The regional director of the Afghan Independent Human Rights Commission in Gardez. Afghanistan, told Amnesty International on 23 March 2005 that his office has recorded some 80 complaints of abuse by US forces in the single province of Paktika over the past two years, ranging from destruction and confiscation of property to "inhuman" treatment of detainees." He said that detainees taken to US-controlled facilities have alleged that they were subjected to sleep deprivation, food deprivation, strip searching and stripping, as well as to interrogations while blindfolded. The Church report said that such techniques had been "developed independently by interrogators in Afghanistan in the context of a broad reading of FM 34-52 [the US Army Field Manual on intelligence interrogation]". If by "broad reading", the Church review means a reading that tolerated techniques which violate international standards including techniques reportedly described by the Navy's General Counsel as "unlawful and unworthy of the military services" - then it should have said so. In which case it should also have said that Secretary Rumsfeld authorized abusive techniques for use at Guantanamo.

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Instead, the Church investigation said that “issues of senior official accountability were addressed by the Independent Panel to Review DoD Detention Operations [the Schlesinger Panell, also appointed by Secretary Rumsfeld. In fact, the Schlesinger Panel had generally evaded this question. One of the panel members, former Secretary of Defense Harold Brown suggested that in the case of high-level administration officials, punishment of was not an option and that the matter of their accountability rested with the electorate at election time. Presumably then, under his reasoning, the re-election of President Bush in late 2004, and the latter's retention of Donald Rumsfeld as Secretary of Defense, not to mention the promotion of White House Counsel Alberto Gonzales to the post of Attorney General, is enough to wipe the slate clean in terms of administration accountability. Amnesty International is shocked that such a theory was again put forward on 29 April 2005 by an official Pentagon spokesperson when he said: "I suppose there's people that will always feel that more can be done. I will remind people - and the Secretary [of Defense] has spoken about this publicly; there's no reason to not repeat – that he offered to resign over the matter

358

354 Nationwide in the past 18 months, the Commission is reported to have logged more than 800 allegations of abuses committed by US troops. One huge US jail'. Guardian Weekend (UK), 19 March 2005.

355 US Navy officials were reported to be outraged at the “abusive techniques" being used at Guantánamo in late 2002 that they threatened to withdraw navy interrogators from operations at the base. The Navy's General Counsel, Alberto Mora is reported to have described the techniques as "unlawful and unworthy of the military services".Abuse outraged navy at Guantánamo Bay. The Boston Globe, 17 March 2005. Senator Carl Levin was reported as saying that the events were recorded in the main classified Church report.

356 See USA: Human dignity denied, note 17, supra.

357

"To take the highest level, take the level of the Secretary of Defense, I don't think that you can punish somebody. demand resignation, on the basis of some action. an individual action, by somebody far down the chain. I think at that level the decision has to be made on the basis of broad performance. And indeed at the very highest level, it's made at election time... The Secretary of Defense has to decide whether he's lost confidence in his under-secretaries or his assistant secretaries on the basis of their performance. And the electorate has to decide on the basis of its confidence at election time". Oral testimony to the Senate Armed Services Committee, 9 September 2004.

358 See USA: Open letter to US Senators as they prepare to vote on the nomination of Alberto Gonzales for Attorney General. Al Index: AMR 51/031/2005, 1 February 2005, http://web_amnesty.org/library/Index/ENGAMR510312005.

USA Guantanamo and beyond - The continuing pursuit of unchecked executive power

[Abu Ghraib]. The President didn't accept that offer, and then subsequent to that, there was was an election. And the American people had the full weight of everything that happened in the last four years and decided to rehire the President for this job. That's not bad when it comes to whether or not somebody at the very top was accountable. "3"

Earlier comments attributed to John C. Yoo, one of the Deputy Assistant Attorney's General in the US Justice Department who drafted a number of the now infamous memorandums on detention and interrogation policies in 2001 and 2002, carried the same message. According to the New Yorker magazinc, he said that President Bush's re-election, and Alberto Gonzales' confirmation as Attorney General, was "proof that the debate is over. The issue is dying out. The public has had its referendum”. 3 "It's hard to know what is most outrageous about those comments", editorialized the New York Times, calling for a full independent commission of inquiry: "that Mr Yoo actually believes Americans voted for torturing prisoners or that an official at the heart of this appalling mess feels secure enough to say that

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The Chairman of the Schlesinger Panel, James Schlesinger, suggested that the resignation of the Secretary of Defense "would be a boon to all of America's enemies" and that "his conduct with regard to [the issue of interrogation policy] has been exemplary” 362 Yet in December 2002 Secretary Rumsfeld authorized stripping. isolation, hooding, stress positions, sensory deprivation, and the use of dogs in interrogations. In similar vein, in September 2003, modelled on the Guantánamo policy, Lieutenant General Ricardo Sanchez, the commanding officer in Iraq, authorized as an interrogation technique "the presence of military working dogs" to exploit "Arab fear of dogs". Yet on 26 April 2005, the Chairman of the Joint Chiefs of Staff, General Richard Myers, noted that the Army Inspector General had cleared Lieutenant General Sanchez of any wrongdoing in relation to the abuses of detainees in Iraq, and General Myers reiterated that Lt. Gen. Sanchez "did a terrific job... he's a very attractive officer.'

forces. 365

-364

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The use of dogs in interrogations, at least, is now seen as unacceptable by the armed According to reports. a revised version of the 1992 military interrogation field manual (FM 34-52), which was already in final draft form in June 2004, will expressly prohibit this and other practices such as stress positions, stripping and sleep deprivation. Although it would only govern interrogations by Department of Defense personnel, and not, for example, those conducted by the CIA, it will reportedly prohibit other government

359 Principal Deputy Assistant Secretary of Defense for Public Affairs, Larry Di Rita, Defense Department Regular Briefing. 29 April 2005.

360 Outsourcing torture. By Janc Mayer. The New Yorker, 14 February 2005.

361 Time for an accounting. New York Times, 19 February 2005.

362 Press conference with members of the Independent Panel to Review Department of Defense Detention Operations (Schlesinger Panel). Department of Defense News Transcript, 24 August 2004. The other panel members, retired General Charles Horner and former member of Congress, Tillie Fowler, agreed. This was consistent with the position Tillie Fowler had taken in an interview before the panel had begun its work, in which she had made it clear that Secretary Rumsfeld was not to be the focus of their review. Referring to the Abu Ghraib revelations, she was quoted as saying: “The Secretary is an honest, decent, honourable man, who'd never condone this type of activity. This was not a tone set by the Secretary." Wide gaps seen in US inquiries on prison abuse. New York Times. 6 June 2004.

363 CJTF-7 Interrogation and counter-resistance policy. Memorandum for Commander, US Central Command, 14 September 2003.

364 Defense Department Briefing with Secretary Rumsfeld and General Myers. News Transcript. 26 April 2005.

365

Army improving procedures for handling detainees. American Forces Information Service. 24 February 2005. See also Transcript of Detainee Operations Update, US Army, 24 February 2005.

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agencies including the CIA from holding unregistered detainees (so-called "ghost detainees") at DoD-controlled facilities. If such practices are to be considered abusive now, why have Secretary Rumsfeld and others not been called to account for authorizing them during the “war on terror"? In fact, even the 1992 version of FM 34-52 lists the use of stress positions "forcing an individual to stand, sit, or kneel in abnormal positions for prolonged periods of time" - as an example of physical torture. It also lists "abnormal sleep deprivation" as an example of mental torture. No US personnel, civilian or military. have been brought to account either for authorizing or committing such techniques of torture or ill-treatment in the "war on terror".

Maintaining the official line that any abuses by US forces in the “war on terror” have been on the margins. Secretary Rumsfeld continues to insist that “not a single one of the investigations that have been conducted" have described abuses as "systemic or systematic". Even this assertion is inaccurate. For example, previously secret documents of an army investigation of a US detention facility in Mosul, Iraq, concluded that the detainees there were being:

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“systematically and intentionally mistreated (heavy metal music, bullhorn, hit with water bottles, forced to perform repetitive physical exercises until they could not stand, having cold water thrown on them, deprived of sleep, and roughly grabbed off the floor when they could no longer stand. The detainees had sand bags on their heads with "IED" [improvised explosive device] written on them, the infantry soldiers stated they felt this was done to make them angry at the detainees, and it had exactly this effect."

Like the Schlesinger Panel, with whom it worked hand-in-glove"368, the Church review was not critical of any interrogation techniques per se. Thus the Schlesinger Panel reported uncritically that "interrogation techniques intended only for Guantanamo came to be used in Afghanistan and Iraq. Techniques employed at Guantanamo included the use of stress positions, isolation for up to 30 days and removal of clothing. In Afghanistan techniques included removal of clothing, isolating people for long periods of time, use of stress positions, exploiting fear of dogs, and sleep and light deprivation." It seems that a tendency not to characterize such techniques as abusive runs deep. This is illustrated by recent information that has come to light from the ACLU Freedom of Information lawsuit. In documentation released in December 2004, for example, a US Navy officer described a process by which Iraqi detainees classified as prisoners of war would be taken to an empty swimming pool, handcuffed, shackled and hooded, and left kneeling for up to 24 hours. Despite providing this description, the officer stated that he "never saw any instances of physical abuse" of the detainees.

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The closest the Church Report summary came to concern about interrogation techniques was noting that interrogations of two "high-value" detainees using techniques approved by Secretary Rumsfeld in December 2002 were sufficiently aggressive that they highlighted the difficult question of precisely defining the boundaries of humane treatment of

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Army, in manual, limiting tactics in interrogation. New York Times, 28 April 2005. The new manual. being produced by the US Army Intelligence Center (USAIC), is reported to be titled "FM 222.3 Human Intelligence Collector Operations", and was reported to be in Final Draft form in June 2004. USAIC fields two new intelligence manuals. Military Intelligence Professional Bulletin, AprilJune 2004

367 Defense Department Briefing, 29 March 2005.

368 Department of Defense transcript of briefing on interrogation operations and interrogation techniques. 10 March 2005.

369 Navy Corpsman described pressure to "keep his mouth shut”. ACLU news release. 14 December

2004.

USA Guantánamo and beyond - The continuing pursuit of unchecked executive power

detainees". In this regard, the Church investigation struck a similar tone to James Schlesinger. who had claimed that "in the conditions of today, aggressive interrogation would seem essential", and "what constitutes humane treatment' lies in the eye of the beholder" 370 The Church summary said that the need for intelligence in the post-9/11 world, and our enemy`s ability to resist interrogation, have caused our senior policy makers and military commanders to reevaluate traditional US interrogation methods and search for new and more effective interrogation techniques." The summary said that this search had been conducted within the confines of our armed forces obligation to treat detainees humanely." This flies in the face of what we now know was discussed within the administration on how US agents could avoid criminal responsibility for torture and ill-treatment.

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Also like the Schlesinger Panel, the Church Report concluded that “the vast majority of detainees" had been treated humanely. "In those few instances where they weren't, said Vice-Admiral Church, "it's been investigated". Such conclusions smack of complacency and suggest a lack of independence from the executive's position that disregards international law and standards and suggests that a few aberrant soldiers displaying “un-American values" have been responsible for abuses. Even without the scores of allegations of torture and illtreatment by US forces made in the “war on terror", for example, the conditions of detention have been cruel, inhuman or degrading for hundreds if not thousands of detainees, held in virtually incommunicado indefinite detention without charge or trial or access to lawyers, relatives or the courts. The right to be treated with humanity and with respect for the inherent dignity for the human person has been systematically denied.

International concern continues, both over the lack of a comprehensive independent investigation and the fact that policies and practices that facilitate torture and ill-treatment remain in place. In a joint statement on 5 February 2005 on the USA's "war on terror" detentions, for example, six UN experts stressed "the need to objectively assess the allegations of torture, and other cruel, inhuman or degrading treatment or punishment, particularly in relation to methods of interrogation of detainees."

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A former UN Special Rapporteur on torture (2002-2004), Professor Theo van Boven, has stated on the question of the USA's involvement in torture and ill-treatment in the “war on terror" that "what we know is only the tip of an iceberg"," What we do know is that treaties, including the Geneva Conventions, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights (ICCPR), all of which have been ratified by the USA, have been selectively disregarded and systematically violated.

The ICCPR, for example, prohibits torture and other cruel, inhuman or degrading treatment or punishment (Article 7), as well as the arbitrary deprivation of life (Article 6), arbitrary detention (Article 9), and discrimination, including on the basis of nationality (Article 2). It also guarantees the right to judicial review of the lawfulness of one`s detention (Article 9), fair trial (Article 14), and the right of any detainee to be treated with humanity and with respect for the inherent dignity of the human person (Article 10).

As noted, the Human Rights Committee has stressed that the rights enshrined in the ICCPR apply to everyone "within the power and effective control" of the State Party and that

370

Written statement of James Schlesinger to the Senate Armed Services Committee, 9 September 2004.

371 Department of Defense transcript of briefing on interrogation operations and interrogation techniques. 10 March 2005.

372 UN rights experts raise 'serious concerns' over detainees at US naval base. UN News Centre, 4 February 2005.

373 Torture: The dirty business. Dispatches, Channel 4 TV (UK), 1 March 2005.