With respect to Secretary Rumsfeld, the probe could examine whether any of the illegal coercive interrogation methods approved by Secretary Rumsfeld for use on detainees at Guantánamo between December 2, 2002 and January 15, 2003 were actually used on Guantánamo detainees during that period. It could determine whether Secretary Rumsfeld was actually aware that troops were committing torture and war crimes in Afghanistan, Iraq, and Guantánamo. It could determine, once and for all, what orders, if any, did Secretary Rumsfeld give to Gen. Miller before his mission to Iraq. It could examine the allegations by Seymour Hersh that Secretary Rumsfeld authorized a "secret access program" to treat prisoners roughly and expose them to sexual humiliation. With respect to the CIA and Director Tenet, an independent investigation could examine whether the CIA, as reported, subjected Khalid Shaikh Mohammed to waterboarding or withheld painkillers from Abu Zubaydah, or subjected them or other detainees to other forms of torture, and whether that treatment was approved by Director Tenet or other senior officials. It could also examine the policy of "extraordinary renditions” and determine Director Tenet's role, if any, in the rendition of suspects to countries such as Syria and Egypt where they were tortured. With respect to Gen. Sanchez, the inquiry should establish if and when he became personally aware of the abuses committed under his command and whether, as alleged, he personally witnessed detainee abuse yet did not act to end the abuse. With respect to Guantánamo and Gen. Miller, a probe should investigate the treatment of prisoners at the base, and whether Gen. Miller was aware of the tactics alleged in this report and whether he approved them. An investigation could also establish whether Gen. Miller proposed the use in Iraq of guard dogs during the interrogation of detainees, and whether his recommendations were a proximate cause of the crimes committed at Abu Ghraib. VII. An Independent Commission In addition, Congress should create a special commission, along the lines of the National 358 The National Commission on Terrorist Attacks Upon the United States (also known as the 9-11 Commission) was an independent, bipartisan commission created by congressional legislation and the signature of President George W. Bush in late 2002. to prepare an account of the circumstances surrounding the September 11, 2001 terrorist attacks, including preparedness for and the immediate response to the attacks. Its report is available at http://www.9-11commission.gov/ to recommend the creation of a special prosecutor to investigate possible criminal offenses, if the Attorney General had not yet named one. An independent commission could compel evidence that the government has continued to conceal, including directives reportedly signed by President Bush in late 2001 which have not been public and which are said to authorize the CIA to establish secret detention facilities and to transfer detainees to the custody of foreign nations,359 and the still-secret August 2002 Justice Department guidance to the CIA on permissible interrogation techniques which reportedly authorized the use of waterboarding. 360 The commission could also examine Secretary Rumsfeld's role in the chain of events leading to the worst period of abuses at Abu Ghraib. Unless a special counsel or an independent commission are named, and those who designed or authorized the illegal policies are held to account, all the protestations of “disgust” at the Abu Ghraib photos by President George W. Bush and others will be meaningless. If there is no real accountability for these crimes, for years to come, the perpetrators of atrocities around the world will point to the U.S.'s treatment of prisoners to deflect criticism of their own conduct. Indeed, when a government as dominant and influential as the United States openly defies laws against. torture, it virtually invites others to do the same. Washington's much-needed credibility as a proponent of human rights, damaged by the torture revelations, will be further damaged if the torture is followed by the substantial impunity that has prevailed until now. 369 Douglas Jehl and David Johnston, "Rule Change Lets C.I.A. Freely Send Suspects Abroad to Jails," The New York Times, March 6, 2005; John Barry, Michael Hirsh & Michael Isikoff, "The Roots of Torture," Newsweek, May 24, 2004 [online], http://msnbc.msn.com/id/4989422/site/newsweek/. 360 See Toni Locy and John Diamond, "Memo Lists Acceptable 'Aggressive' Interrogation Methods: Justice Dept. Gave Guidance to CIA, USA Today, June 28, 2004; Dana Priest, "CIA Puts Harsh Tactics on Hold," The Washington Post, June 27, 2004. Annex - A Note on Command Responsibility The first and most significant U.S. case involving “command responsibility” was that of General Tomoyuki Yamashita, commander of the Japanese forces in the Philippines in World War II, whose troops committed brutal atrocities against the civilian population and prisoners of war. Gen. Yamashita, who had lost almost all command, control, and communications over his troops, was nevertheless convicted by the International Military Tribunal in Tokyo based on the doctrine of command responsibility. The U.S. Supreme Court affirmed the decision, holding that General Yamashita was, by virtue of his position as commander of the Japanese forces in the Philippines, under an “affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population.”361 General Yamashita was executed by hanging. International and U.S. authorities have since set forth three elements to establishing liability for criminal acts pursuant to the doctrine of command responsibility: 1. There must be a superior-subordinate relationship. 2. The superior must have known or had reason to know that the subordinate was about to commit a crime or had committed a crime. 3. The superior failed to take necessary and reasonable measures to prevent the crime or to punish the perpetrator." 362 US Army Field Manual 27-10, Section 501 states: In some cases, military commanders may be responsible for war crimes 361 In Re Yamashita 327, U.S. 1, 16 (1946). 362 In Re Yamashita: The Prosecutor v. Delalic et al. (Celebici Case), Case No. IT-96-21-T, ICTY TC, November 16, 1998 [online], http://www.un.org/icty/celebici/trialc2/jugement/main.htm. More recently, several decisions under the Torture Victim Protection Act of 1991 (28 U.S.C.S. § 1350) have applied the doctrine of command responsibility. See Hilao v. Estate of Ferdinand Marcos, 103.F.3d 767, 777-78 (9th Cir. 1996); Kadic v Karadzic, 70 F.3d 232, 239, 242 (2d Cir. 1995). Paul v Avril, 901 F.Supp. 330.335 (S.D.Fla 1994); Xuncax v. Gramajo, 886 F.Supp. 162, 171-172 (D.Mass. 1995). In Ford v. Garcia, 289 F.3d 1283 (11th Cir. Fla. 2002), for example, family members of victims of atrocities committed by members of the Salvadorian National Guard, filed a case in a Florida federal court against a general and the former minister of defense. The judge directed that the two generals could be held responsible for the crimes of their subordinates if the defendants were in "effective command" and if they "knew or should have known" that persons under their effective command were committing such crimes in question have been committed in pursuance of an order of the commander Similarly, the U.S. Department of Defense draft instructions for guidance to military commissions states: "A person is criminally liable for a completed substantive offense if that person commits the offense, aids or abets the commission of the offense, solicits commission of the offense, or is otherwise responsible due to command responsibility," and provides the following elements: 1. The accused had command and control, or effective authority and control, over one or more subordinates; 2. One or more of the accused's subordinates committed, attempted to commit, conspired to commit, solicited to commit, or aided or abetted the commission of one or more substantive offenses triable by military commission; 3. The accused either knew or should have known that the subordinate or subordinates were committing, attempting to commit, conspiring to commit, soliciting, or aiding and abetting such offense or offenses, [and] 4. The accused failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of the offense or offenses.363 The rule under customary international law is the same. According to an authoritative study by the ICRC, that rule is: Commanders and other superiors are criminally responsible for war crimes 383 Department of Defense, "Military Commission Instruction No. 2, Crimes and Elements for Trials by Military Commission," April 30, 2003 [online], http://www.defense link.mil/news/May2003/d20030430milcominstno2.pdf. 364 Henckaerts and Doswald-Beck, Customary International Humanitarian Law, 2005, Superior-subordinate relationship A superior-subordinate relationship is clearest when there are formal rules, for example when legislation or a military chain of command specify the existence of a relationship. However, even in the absence of formal rules, a superior can have actual and effective control.365 Thus, civilian and political superiors, as well as those in military command, may be held liable under this doctrine. 366 In establishing whether a superior-subordinate relationship exists, case law has found the following questions useful: What are the powers of influence of the alleged superior?367 What capacity does the superior have to issue orders?368 Does analysis of the distribution of tasks within any relationship demonstrate a superior-subordinate relationship?369 The superior's knowledge A superior may be held liable under the command responsibility doctrine where he or she either knew, had reason to know, or should have known that crimes were being committed by his/her subordinates.370 According to A. P. V. Rogers, one of the foremost authorities on the laws of war, there are three ways of proving knowledge: 1. that he actually knew (admission or documentary or witness evidence), or 2. that he must have known (evidence of notoriety), or 3. that he ought to have known (serious nature of offence plus evidence of a dereliction of dury on the part of the commander or of his being put on notice),371 305 Sadaiche case, cited in 15 Law Reports, at 175. Which held that "superior means superior in capacity and powers to force a certain act. It does not mean superiority only in rank," 306 The Prosecutor v. Delalic et al. (Celebici Case), Case No. IT-96-21-T, ICTY TC, November 16, 1998. See also Article 28 of Statute of the International Criminal Court: 367 With respect to superior and subordinate relationships not described in paragraph (a) [military chain of command], a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (1) The superior either knew, or consciously disregarded information which clearly indicated, that the (ii) The crimes concerned activities that were within the effective responsibility and control of the superior, and United States v. von Weizsaecker, 14 Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 (1952). 370 In Re Yamashita 327 U.S. 1. See also Article 86 of Geneva Conventions Protocol I. |