"There is no such thing as a little bit of torture." -- Alfred W. McCoy, author "A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror"
Last night, literally by accident, I watched the new HBO Documentary Ghosts of Abu Ghraib. Although I've followed this issue and story for years now, I was still stunned at how this film completely deconstructs the Administration's talking points on what occured on their watch at the Abu Ghraib Prison.
Taking the issue step by step they show how rather than being a few bad apples playing "Animal House" on the Night Shift the events of the Summer of 2003 were part of a concerted effort to marginalize the Geneva Conventions and redefine torture which began in the White House, went through the Pentagon and Gitmo and eventually led to the pictures that have left a permanent scar on our nation's honor and credibility.
"These photographs from Abu Ghraib have come to define the United States," says Scott Horton, chairman, Committee on International Law, NYC Bar Association. "The U.S., which was viewed as certainly one of the principal advocates of human rights and...the dignity of human beings in the world, suddenly is viewed as a principle expositor of torture."
The film begins with scenes from the 50's documentary "Obedience" which depicts a test of just how far people will are willing to mistreat someone as long as an authority figure is present prodding them on to go further and further. In this test the subjects where asked to question a unseen - but heard - man behind a screen, who in fact was an actor. When the actor answered the question incorrectly the subjects were directed to give him electric shocks of ever increasing intensity.
Even though the unseen man would cry out and eventually scream in pain the vast majority of subjects would follow the direction of authority and eventually administer shocks which would have been lethal.
This is the context by which this film frame the events of Abu Ghraib, but first let me layout the legal issues, which I have frequently discussed on this topic.
Under the Geneva Conventions all forms of "torture and outrages upon human dignity" have been prohibited by it's signatories since 1949. The U.S. is a Geneva signatory. The film interviews former DOJ attorney John Yoo who attempts to explain how during the early days of the WOT™ a debate raged as to whether or not the Geneva applied to non-soldiers unaffiliated to any nation state such as al-Qaeda. (They also argued that the Taliban were similarly unaligned with any nation although at that point in time the Taliban were the current government of Afghanistan. Since the Taliban were formed far more recently than 1949 - it is fair to point out that they are not signatories of Geneva)
Still this belies the fact that Geneva applies to the conduct of it's signatory members, not the conduct of non-signatories. In other words it applies to the U.S. and our conduct regardless of who we might encounter during a conflict.
Geneva Article 2
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.
It doesn't matter that al-Qaeda doesn't follow the "rules of war" - we're still supposed to.
Under U.S Law (18 USC 2441 aka The War Crimes Act) any grave breaches of Geneva by civilian personnel are considered War Crimes, punishable by 5 years in prison and even the death penalty.
Similar penalties are included for 18 USC 2340, the prohibition against torture under U.S. Law.
Geneva states that.
Prisoners of war must be humanely treated at all times. Any unlawful act which causes death or seriously endangers the health of a prisoner of war is a grave breach of the Geneva Conventions. In particular, prisoners must not be subject to physical mutilation, biological experiments, violence, intimidation, insults, and public curiosity. (Convention III, Art. 13)
In addition military personnel are prohibited from cruelty and the Maltreatment of Prisoners under the Military Uniform Code of Justice.
Although this was not mentioned by the film, a memo written by Alberto Gonzales (PDF) is where the firewall between legal conduct and war crimes began to crumble.
In that memo Gonzales argued that...
"It is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441 [the War Crimes Act]," Gonzales wrote. The best way to guard against such "unwarranted charges," the White House lawyer concluded, would be for President Bush to stick to his decision--then being strongly challenged by Secretary of State Powell-- to exempt the treatment of captured Al Qaeda and Taliban fighters from Geneva convention provisions.
"Your determination would create a reasonable basis in law that (the War Crimes Act) does not apply which would provide a solid defense to any future prosecution," Gonzales wrote.
So contrary to the claims that al-Qaeda and the Taliban were declared to be not covered by Geneva because they were non-Contracting parties - even though this doesn't matter under Geneva - the truth is that they were excluded by president Bush to prevent members of his administration from being prosecuted for War Crimes!
Gonzales recommendation led to this declaration(Pdf) by President Bush which claimed that Geneva did not applied to a brand new category called "Enemy Combatants".
Gonzales later requested the Bybee Memo (Pdf) from the Department of Justice's Office of Legal Council - which included John Yoo. This memo redefined what torture was (under 2340) into such as narrow state that literally any act of cruelty which didn't immediately result on death would not be covered by either Geneva or the War Crimes Act.
We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent to intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.
Issued on the same day as the Bybee Memo, DOJ attorney John Yoo wrote his own memo arguing that interrogation techniques used on al Qaeda detainees would not violate a 1984 international treaty prohibiting torture.
Once the Bybee and Yoo memos were written, the Pentagon began to follow suit on it's new definitions. In a December 2002 memo(Pdf) Secretary of Defense Rumsfeld authorized the use of "stress positions," hooding, 20-hour interrogations, removal of clothing, exploiting phobias to induce stress (e.g., fear of dogs), prolonged isolation, sensory deprivation, and forced grooming.
In the memo he added a hand-written note that argued..
"I stand for 8-10 hours a day, why is standing limited to 4 hours?"
Rumseld uses a "standing desk" in his office - so is indeed on his feet for 8-10 hours, however there is a major difference between standing freely where you can shift, stretch and move constantly and being held immobile in one position for hours. The fact beign held in such a position for hours while being deprived of sleep can lead to renal failure and death - similar to that which was shown in the autopsy report of a detainee held at Bagram AFB in Afghanistan in 2002.
A similar murder occured in 2003 at the hands of British Soldiers These soldiers were eventually charged with War Crimes violations, but not those at Gitmo or Abu Ghraib.
Rumsfeld later reconsidered some of these techniques after establishing a working group to analyze the situation.
April 16, 2003
Rumsfeld approves 24 of the recommended techniques for use at Guantanamo, including dietary and environmental manipulation, sleep adjustment, false flag and isolation.
Not long after these memos were written, Lt. Gen Geoffrey Miller was assigned to take over interrogations at Guantanemo Bay using the new guidelines from Rumsfeld. The JAG's complained. The FBI complained - but it didn't matter. These techniques had began to provide "results", which were sorely lacking and desperately needed in Iraq.
So Miller was then exported to Abu Ghraib in order to "Gitmo-ize" it. A month later Lt. Gen Ricardo Sanchez, the overall commander in the Iraq theater, implemented new Rumsfeldian guidelines for the handling of detainees.
From the ACLU.
[Sanchez] authorizes the use of 29 interrogation techniques for use in Iraq, including the use of dogs, stress positions, sensory deprivation, loud music and light control, based on Rumsfeld’s April 16 techniques and suggestions from captain of military unit formerly in Afghanistan.
These techniques were later modified and limited in October of 2003 by Gen Sanchez.
The film depicts that most of the detainees held at Abu Ghraib were housed in tent cities. But a few, about 1000, were housed in what they called The Hard Site which included fairly standard looking cell blocks. The blocks were broken into various tiers. Tier 1A housed males who had been linked, or thought to have been linked to al-Qaeda and the Saddam regime. Tier 1B housed women and children - in some cases the threat of mistreating captured relatives were used to extort information from detainees.
Control of Tier 1A/1B was shifted from Brigadier General Janice Karpinski, who was in charge of all MPs in Iraq including those running the Abu Ghraib prison complex, to General Miller upon his arrival. As this shift occured the MPs at the Hard site were removed from their own standard command structure and placed under the command of Military Intelligence.
The Chain of Command had been deliberately broken.
Besides legal scholars and John Yoo, the film interviews most of the Military Police and Military Intelligence personnel who worked in Tier 1A/1B of the Hard Site, with the exception of the two most famous MPs - Lyndee England and her boyfriend Corporal Charles.
Still, even without those two persons, the picture painted by the others of how Abu Ghraib deteriorated after the arrival of Gen Miller is stark. Military Intelligence would advise the MP's when they were planning to interrogate a particular detainee and tell them...
This guy needs to have bad night tonight.
The intention was to ensure that they wouldn't be able to sleep using loudspeakers, noise and/or lights to keep them awake all night the day before an interogation session - where in many cases it appears they were severely beaten in a cedar building outside the Hard Site. What occured on Tier 1B/1B was just to "Soften them Up" prior to the real interroations.
Often MI personnel would walk through the Tier without any rank insignia. MPs would take commands from them not knowing if they were an officer or not - but in many cases MPs such as Charles Graner actually outranked the MI that they were taking orders from (This I discovered when Paula Zhan interviewed one of the Abu Ghraib MI's, shortly after the original story broke. One whom I'm pretty sure is also featured in the film. His first name is Israel.) The situation created perfect plausible deniability - "How could I command a superior to do anything?"
It was a firewall between the MPs who handled the "softening up" and higher ranking officers such as Miller who were actually in charge.
The MPs describe how the shifting directions from command left them in a "grey area" of uncertainty as to what was and was not allowed. All cards were on the table, and there were no practical limits.
As one of the Abu Ghraib MPs says in the film, "That place turned me into a monster." Another remarks, "It's easy to sit back in America or in different countries and say, 'Oh, I would have never done that,' but, until you've been there, let's be realistic: You don't know what you would have done."
The Detainees in Tier 1A were kept naked most of the time, this was done to keep them feeling vulnerable but also to humiliate them due to the prescense of female MPs who were sometimes asked by Military Intelligence to repeatedly shower a detainee while remaining within sight and ridicule them. Also much of their treatment was deliberately homoerotic, and considering the homophobia in the Islamic culture (the punishment for being gay in many Islamic states is summary beheading) this was effectively Tim Hardaway's Worse Nightmare
Internees must be provided with adequate clothing, footwear, and underwear. (Convention IV, Art. 90)
Several of the MPs describe how Abu Ghraib is one of the most frequently attacked targets within all of Iraq. Mortars often landed within the tent city area, killing detainees.
Internees must not be housed in areas exposed to dangers of war. (Convention IV, Art. 83)
One female MP (I think he name is Sabrina - but I need to check) described how she would write on various detainees, for example they were told that one prisoner had been arrested for rape - so she wrote the word "Rapist" on his leg.
Identification by tattooing or imprinting signs or markings on the body is prohibited, and internees must not be subjected to prolonged standing and roll-calls, punishment drill, military drill and maneuvers, or reduction in food rations. (Convention IV, Art. 100)
The photos shown and video shown in the film of the abuse at Abu Ghraib are completely uncensored and extremely graphic (far moreso than the samples I've used here from the web) There is a sequence detailing how two detainees are caught raping a third - all three are dragged out into the hallway naked and handcuffed together by Cpl. Graner in a simulated sexual position. They're ordered to crawl back and forth from one end of the hallway to the other and stay low enough that their genitals drag on the floor.
The same female MP who had written "Rapist" on one detainees leg described how she was "always taking pictures" - it's just something she did. And she was usually smiling in them, regardless of what was happening. After being among naked groaning men for weeks and months, you grow numb to it all. It becomes "just a job". The suffering becomes background noise. "It's war" she said.
In the midst of this abuse and after most of the photos had already been taken, Military Intelligence (who were at the very least witnesses to everything) recommended Graner as NCOIC of Tier 1A for a commendation - which was approved.
This entire series of events would have never seen the light of day if Spc. Joseph Darby (who wasn't stationed at Tier 1A and is interviewed in the flim) hadn't asked Graner for some pics to take back home. "Hey Graner, you're always taking pictures". Graner gave him two CDs, the first contained scenic shots from around Babylon and included the Tower of Babel and other historic landmarks, the second had shots of the abuse of detainees. Darby handed the disc over the Army investigators.
"If there were no photographs, there would be no Abu Ghraib," said Javal Davis, an MP stationed at Abu Ghraib, who was later court-martialed.
One former detainee from the tent city tearfully tells the story of how his father, after being beaten during an interrogation session begins to have shortness of breath. As his condition worsens he desperately begs the guards to let him see a doctor but is repeated told go "Go Away" and even warned that he'll be shot if he comes back.
After his father grows feverish, he does go back and is again rebuffed only to return to his father who not long afterwards "dropped his head, sighed, and died" in his arms.
Internees must have access to adequate medical care. (Convention IV, Art. 91)
Besides the cedar interrogation shack, there were times when interrogations and torture took place on Tier 1A. Blankets were used to cover up what was happening from view - but everyone on the Tier could hear it.
As one former detainee described it...
We listened to one man scream, and scream until we heard his soul crack. Later we learned that this was Manadel al-Jamadi
CIA claimed that al-Jamadi had died as the result of heart failure, but our favorite photo taking, smiling female MP (not Lyndee England) found the body (which had been packed in ice so they could sneak it out he next day with an IV hooked to it so he would look alive) and managed to get a shot. Corporal Graner took the picture.
She had no idea, according to her filmed interview, that al-Jamadi had been beated and murdered the previous day. In her pictures which can be better seen here - it's clear that al-Jamadi is bleeding from places that he shouldn't be - if he'd just suffered a "heart attack".
al-Jamadi was the only photo documented murder to take place in Abu Ghraib and was ruled a homocide - but instead of persuing the CIA and Navy Seals who had killed him, they went after the MPs who took the pictures.
Graner was sentenced to ten years for his role in the abuse. England three years. Most of the other MP received a few months. The Military Intelligence and CIA guys who ordered some of the abuse to "soften up" interrogation targets were not charged.
General Karpinski (who wasn't even in command of Tier 1A/1B) was demoted in rank and forced to retire as a Colonel.
General Geoffrey Miller received a medal in the Pentagon's Hall of Heroes.
Secretary of Defense Donald Rumsfeld was honored with a fanfare and a parade when he retired last year.
Jay Bybee is now a sitting judge.
Alberto Gonzales remains our Attorney General and George W. Bush remains President.
Their complicity in the murder of Manadel al-Jamadi, as well as at least 30 other detainees who have died in custody in Iraq, Gitmo and Afghanistan as a result of abusive interrogation and neglect - has not been resolved.
Since the revelations at Abu Ghraib, as well as the Secret CIA Prison, the 109th Congress passed the Military Commissions Act which revoked Habeas Corpus for "Enemy Combatants" and effectively re-wrote the War Crimes Act (USC 2441) to comport with Bybee.
The DC Court of appeals has upheld the Constitutionality of the MCA.