By William Fisher
A major human rights advocacy group is charging that of the 98 detainees who have died in U.S. custody in Iraq and Afghanistan since August 2002, 34 are suspected or confirmed homicides, another 11 suggest that death was a result of physical abuse or harsh conditions, but only 12 deaths have resulted in punishment of any kind for any U.S. official.
In close to half the deaths surveyed in a new report by Human Rights First, the cause of death remains officially undetermined or unannounced. Overall, eight people in U.S. custody were tortured to death.
The report, entitled “Command’s Responsibility”. says that of the 34 homicide cases so far identified by the military, investigators recommended criminal charges in fewer than two thirds, and charges were actually brought (based on decisions made by command) in less than half.
While the CIA has been implicated in several deaths, no CIA agent has faced a criminal charge, the report says, adding, “Among the worst cases -- detainees tortured to death – only half have resulted in punishment and the harshest sentence for anyone involved in a torture-related death has been five months in jail.”
Among the report’s other findings: Commanders have failed to report deaths of detainees in the custody of their command, reported the deaths only after a period of days and sometimes weeks, or actively interfered in efforts to pursue investigations; investigators have failed to interview key witnesses, collect useable evidence, or maintain evidence that could be used for any subsequent prosecution; record keeping has been inadequate, further undermining chances for effective investigation or appropriate prosecution; overlapping criminal and administrative investigations have compromised chances for accountability; overbroad classification of information and other investigation restrictions have left CIA and Special Forces essentially immune from accountability; agencies have failed to disclose critical information, including the cause or circumstance of death, in close to half the cases examined; effective punishment has been too little and too late.
Charging that there is an “accountability gap”, HRF says closing it will require “a zero-tolerance approach to commanders who fail to take steps to provide clear guidance, and who allow unlawful conduct to persist on their watch.”
The report recommends that the President, as Commander-in-Chief, “move immediately to fully implement the ban on cruel, inhuman and degrading treatment (known as the McCain Amendment) passed overwhelmingly by the U.S. Congress and signed into law on December 30, 2005”.
It also demands that “the President, the U.S. military, and relevant intelligence agencies should take immediate steps to make clear that all acts of torture and abuse are taken seriously – not from the moment a crime becomes public, but from the moment the United States sends troops and agents into the field”.
Congress, the report suggests, “should at long last establish an independent, bipartisan commission to review the scope of U.S. detention and interrogation operations worldwide in the ‘war on terror’. Such a commission could investigate and identify the systemic causes of failures that lead to torture, abuse, and wrongful death, and chart a detailed and specific path going forward to make sure those mistakes never happen again. The proposal for a commission has been endorsed by a wide range of distinguished Americans from Republican and Democratic members of Congress to former presidents to leaders in the U.S. military. Human Rights First urges Congress to act without further delay.”
In response to a question from IPS, Deborah Pearlstein, Director of HRF’s U.S. Law and Security Program, said the Pentagon’s detention policies have repeatedly been criticized by military lawyers and health officials, but their objections have largely been ignored.
Most recently, it was revealed that one of the Pentagon's top civilian lawyers repeatedly challenged the Bush administration's policy on the coercive interrogation of terror suspects, arguing that such practices violated the law, verged on torture and could ultimately expose senior officials to prosecution.
Mora's campaign underscores how contrary views were often brushed aside in administration debates on the subject.
"Even if one wanted to authorize the U.S. military to conduct coercive
interrogations, as was the case in Guantánamo, how could one do so without
profoundly altering its core values and character?" Mr. Mora asked the
Pentagon's chief lawyer, William J. Haynes II, in a 22-page memorandum.
The Pentagon has declined to comment on specific assertions in Mr. Mora's memorandum.
"Detainee operations and interrogation policies have been scrutinized under a microscope, from all different angles," a spokesperson said. "It was found that it was not a Department of Defense policy to encourage or condone torture."
The HRF report notes that “It is difficult to assess the systemic adequacy of punishment when so few have been punished, and when the deliberations of juries and commanders are largely unknown. Nonetheless, two patterns clearly emerge and are documented in Command’s Responsibility: (1) because of investigative and evidentiary failures, accountability for wrongdoing has been limited at best, and almost non-existent for command; and (2) commanders have played a key role in undermining chances for full accountability.”
It adds, “In dozens of cases documented in the report, grossly inadequate reporting, investigation, and follow-through have left no one at all responsible for homicides and other unexplained deaths. Commanders have failed both to provide troops clear guidance, and to take crimes seriously by insisting on vigorous investigations. And command responsibility itself – the law that requires commanders to be held liable for the unlawful acts of their subordinates about which they knew or should have known – has been all but forgotten.”
Which reminds me that “Command Responsibility” ought to begin with the Commander-in-Chief.