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The Significance of HRW’s New Call to Prosecute Bush Administration Officials for Torture

5:01 pm in Military, Terrorism, Torture by Jeff Kaye

Human Rights Watch (HRW) released a new report Tuesday. As they stated in the press release announcing the 107-page report, “Getting Away with Torture: The Bush Administration and Mistreatment of Detainees” (HTML, PDF), there is “overwhelming evidence of torture by the Bush administration.” As a result, President Barack Obama is obliged “to order a criminal investigation into allegations of detainee abuse authorized by former President George W. Bush and other senior officials.”

In particular, HRW singled out “four key leaders” in the torture program. Besides former President George W. Bush, the report indicts former Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, and CIA Director George Tenet. But others remain possible targets of investigation and prosecution. According to the report:

Such an investigation should also include examination of the roles played by National Security Advisor Condoleezza Rice and Attorney General John Ashcroft, as well as the lawyers who crafted the legal “justifications” for torture, including Alberto Gonzales (counsel to the president and later attorney general), Jay Bybee (head of the Justice Department’s Office of Legal Counsel (OLC)), John Rizzo (acting CIA general counsel), David Addington (counsel to the vice president), William J. Haynes II (Department of Defense general counsel), and John Yoo (deputy assistant attorney general in the OLC).

But the key passage in the HRW report concerns the backing for international prosecutions, under the principle in international law of “universal jurisdiction,” which was used back in 1998 by Spanish Judge Baltasar Garzón to indict former Chilean dictator Augusto Pinochet for genocide and murder.

Unless and until the US government pursues credible criminal investigations of the role of senior officials in the mistreatment of detainees since September 11, 2001, exercise universal jurisdiction or other forms of jurisdiction as provided under international and domestic law to prosecute US officials alleged to be involved in criminal offenses against detainees in violation of international law. [emphasis added]

Indeed, in an important section of the report, HRW details the failures and successes of pursuing such international prosecutions in the face of U.S. prosecutors’ failure to act and investigate or indict high administration officials for war crimes. This is even more important when one considers that the Obama administration has clearly stated its intention to not investigate or prosecute such crimes, going after a handful of lower-level interrogators for crimes not covered by the Bush administration’s so-called “legal” approvals for torture provided by the infamous Yoo/Bybee/Levin/Bradbury memos issued by the Office of Legal Counsel.

Nor has Congress shown even a smidgen of appetite for pursuing further accountability: not one Congressman or Senator has stepped forward as yet to endorse HRW’s new call. Instead, they demonstrated their obsequiousness by approving Obama’s nomination of General David Petraeus as new CIA director 94-0, despite the fact that Petraeus has been implicated in the organization of counter-terror death squads in Iraq, and was in charge of training Iraqi security forces who repeatedly were documented as engaging in widespread torture. It was during Petraeus’s tenure as chief of such training for the coalition forces, that the U.S. implemented the notorious Fragmentary Order (FRAGO) 242, which commanded U.S. forces not to intervene in cases of Iraqi governmental torture should they come across such it (which they often did). No one during Petraeus’s testimony in his nomination hearings even questioned him about this.

Why this report now?

I asked Andrea Prasow, a senior counsel at Human Rights Watch, why this report was issued now, noting that some on the left had already questioned the timing of HRW’s action.

“Because it really needed to be done,” Prasow explained. She noted the recent admissions by former President Bush and Vice President Cheney that they had approved waterboarding. Furthermore, “following the killing of [Osama] Bin Laden, we saw the immediate response by some that torture and the enhanced interrogation techniques led to the capture of Bin Laden. And it became a part of normal debate about torture. It shows how fragile is the current commitment not to torture.”

Prasow also noted the recent closure of the Durham investigation, which resulted in the decision to criminally investigate the deaths of two detainees in CIA custody, while 99 other cases referred to his office were closed. I asked her whether she felt, as I do, that the announcement of the two investigations were meant to forestall attempts by European (especially Spanish) prosecutors to pursue “universal jurisdiction” prosecutions of U.S. officials for torture.

“I don’t see how there’s a defensible justification that the investigations Durham announced can do that,” Prasow said. “It’s pretty clear that there should be an investigation into the deaths of these detainees,” she added, “but it’s so clear the investigation is very limited. The scope of the investigation is the most important part. Even if Durham had investigated the 100 or so cases that exceeded the legal authorities, it wouldn’t be sufficient. What about the people who wrote the legal memos? Who told them to write the memos?” she said, emphasizing the fact that Durham’s investigation was limited by Obama and Attorney General Eric Holder to only CIA crimes, and only those that supposedly exceeded the criteria for “enhanced interrogation” laid out in a number of administration legal memos. The torture, Prasow noted, was “throughout the military” as well, including “hundreds or thousands” tortured at sites in Iraq, Afghanistan and Guantanamo.

Prasow noted that the Obama administration has made it policy to block attempts by torture victims to get compensation for torture, asserting a policy of protecting “state secrets” to shut down court cases. “But there are other ways of providing redress,” she said, adding that “providing redress is part of international laws.” The HRW report itself states, “Consistent with its obligations under the Convention against Torture, the US government should ensure that victims of torture obtain redress, which may include providing victims with compensation where warranted outside of the judicial context.”

The new HRW report comes on the heels of a controversy roiling around a proposed United Kingdom governmental inquiry into torture. A number of British human rights and legal agencies have said they would boycott the UK proceedings as a “whitewash.” As Andy Worthington put it the other day:

As a result of pandering to the Americans’ wishes, the terms of reference are “so restrictive,” as the Guardian described it, that JUSTICE, the UK section of the International Commission of Jurists, warned that the inquiry “was likely to fail to comply with UK and international laws governing investigations into torture.” Eric Metcalfe, JUSTICE’s director of human rights policy, said that the rules “mean that the inquiry is unlikely to get to the truth behind the allegations and, even if it does, we may never know for sure. However diligent and committed Sir Peter [Gibson] and his team may be, the government has given itself the final word on what can be made public.”

Andrea Prasow echoed Metcalfe’s fears, saying HRW had “some concerns about how much information [in the UK inquiry] was going to be kept secret. I think transparency, making it as public as possible, is most important.”

The fight for transparency also makes HRW’s call for prosecutions of high government officials, along with “an independent, nonpartisan commission, along the lines of the 9-11 Commission, [that] should be established to examine the actions of the executive branch, the CIA, the military, and Congress, with regard to Bush administration policies and practices that led to detainee abuse,” very timely. In a column the other day at Secrecy News — Pentagon Tightens Grip on Unclassified Information — Steven Aftergood reported on a Department of Defense proposed new rule regarding classification. While the Obama administration is supposedly on record for greater governmental transparency, the new rule imposes “new safeguard requirements on ‘prior designations indicating controlled access and dissemination (e.g., For Official Use Only, Sensitive But Unclassified, Limited Distribution, Proprietary, Originator Controlled, Law Enforcement Sensitive).’”

According to Aftergood, “By ‘grandfathering’ those old, obsolete markings in a new regulation for defense contractors, the DoD rule would effectively reactivate them and qualify them for continued protection under the new Controlled Unclassified Information (CUI) regime, thereby defeating the new policy.” Even worse (if possible), “the proposed rule says that any unclassified information that has not been specifically approved for public release must be safeguarded. It establishes secrecy, not openness, as the presumptive status and default mode for most unclassified information.”

Much of what we know about the Bush-era torture program is due to the work of the ACLU and Center for Constitutional Rights, who have used the Freedom of Information Act to gather hundreds of documents, if not thousands, that document the paper trail surrounding the crimes of the Bush administration. Reporters and investigators like Jane Mayer, Philippe Sands, Alfred McCoy, and Jason Leopold have also contributed much to our understanding of what occurred during the Bush years. The work of investigators going back years demonstrates that U.S. research into and propagation of torture around the world goes back decades.

The Senate Armed Services Committee has also produced an impressive, if still partially redacted, investigation (large PDF) into detainee abuse by the Department of Defense. Their report, for instance, concluded regarding torture at Guantanamo that “Secretary of Defense Donald Rumsfeld’s authorization of interrogation techniques at Guantanamo Bay was a direct cause of detainee abuse there.”

When one puts together the accelerated emphasis on “state secrets”; the Obama political program of “not looking back” in regards to U.S. war crimes (while supposedly pursuing accountability for torture and war crimes committed by other countries); the political passivity, if not cowardice of Congress; the fact that Obama “has not been transparent on the rendition issue, not even saying what its policy is,” according to Andrea Prasow; and finally the lies and propaganda spewed forth by the former Administration’s key figures and their proxies, one can only agree with HRW that enough is enough. The time for investigations and prosecutions into torture and rendition is now.

And if they won’t listen in Washington, D.C., perhaps they will in Madrid. Or some other intrepid prosecutor in — who knows? — Brazil or Argentina or Chile will pay back America, as a matter of poetic but also real justice for the crimes endured by their societies when the U.S. helped organize torture and terror in their countries only a generation ago. There were no U.S. investigations into actions of government figures then, and now we are faced with another set of atrocities produced by our own government. If we do not act now, what will our children face?

NY Times Tale of US Soldier Intervention Against Torture is a Lie

12:31 am in Uncategorized by Jeff Kaye

Much more is certain to be written and reported from the 400,000 or so documents from the Iraq War released today by Wikileaks. The government is putting forth its own spin, claiming damage to U.S. security and troops, while the press has its own version of spin. One example comes from the New York Times, who along with the UK Guardian, Der Spiegel, and Le Monde, are releasing all or some of the documents, often with fancy and very interesting interactive graphs and databases.

Last July, I noted that the New York Times had listed the total number of individuals on a secret U.S. commando “capture/kill list” as "about 70," while the European press reported the more accurate number of 2,058.

Well the Times is up to its old tricks, and it is an object lesson in not believing what you read, and the necessity to review the original documents yourself.

An October 22 story, Detainees Fared Worse in Iraqi Hands, Logs Say, by Sabrina Tavernise and Andrew W. Lehren, details some of what the Times found in a review of the Wikileaks documents concerning abuse by Iraqi forces. Buried in the article is the lede, i.e., that the U.S. had a deliberate policy of ignoring wide-spread torture by their Iraqi allies (or puppet government, take your pick). At first, Tavernise and Lehren write that the "abuse cases… seemed to have been ignored, with the equivalent of an institutional shrug…" But five paragraphs into the story we learn that the indifferent "shrug" was really a deliberate policy, as it’s revealed there is a "report dated May 16, 2005, saying that if ‘if US forces were not involved in the detainee abuse, no further investigation will be conducted until directed by HHQ.’”

This is the now notorious FRAGO-242 (FRAGO being short for fragmentary order). According to the UK Guardian, it was issued in June 2004, not May 2005, as the New York Times article implies. So far as I can tell from the various news stories, this policy begun during the Bush years is still in effect. It certainly was as late as 2009, well into the administration of President Barack Obama.

According to the UK Guardian:

Frago 242 appears to have been issued as part of the wider political effort to pass the management of security from the coalition to Iraqi hands. In effect, it means that the regime has been forced to change its political constitution but allowed to retain its use of torture….

With no effective constraint, the logs show, the use of violence has remained embedded in the everyday practice of Iraqi security, with recurrent incidents up to last December. Most often, the abuse is a standard operating procedure in search of a confession, whether true or false. One of the leaked logs has a detainee being beaten with chains, cables and fists and then confessing to involvement in killing six people because "the torture was too much for him to handle".

But the particular New York Times article in question here has a more egregious example of spin than burying the lede. In the following paragraph, an American soldier’s witnessing of torture is reported as if the soldier intervened to stop it. In fact, the very documentary evidence the New York Times links to demonstrates the exact opposite.

Here is the relevant quote from the article (emphasis added):

In August 2006, an American sergeant in Ramadi heard whipping noises in a military police station and walked in on an Iraqi lieutenant using an electrical cable to slash the bottom of a detainee’s feet. The American stopped him, but later he found the same Iraqi officer whipping a detainee’s back.

Here’s the document this paragraph links to — note, you will not find any evidence of the soldier stopping any torture. A report is made, no investigation is initiated, and the prisoner and his torturer are said to remain at the Ramadi jail. The case is closed five days later.

*ALLEGED DETAINEE ABUSE BY IRAQI POLICE IN RAMADI ON 17 AUG 2006
SUSPECTED DETAINEE ABUSE RPTD AT 171100D AUG 06

1. DESCRIPTION OF INCIDENT/SUSPECTED VIOLATION (WHO REPORTED INCIDENT AND WHAT HAPPENED):

SGT –––––, 300TH MILITARY POLICE COMPANY, REPORTED IRAQI POLICE COMMITTING DETAINEE ABUSE AT AN IRAQI POLICE STATION IN RAMADI. SGT ––––– WITNESSED 1LT –––– WHIP A DETAINEE ACROSS HIS BACK WITH A PR-24 STRAIGHT SIDE HANDLED BATON AND 1LT –––– KICKING A SECOND DETAINEE. THAT NIGHT SGT ––––– HEARD WHIPPING NOISES WALKING THROUGH THE HALLWAY, AND OPENED A DOOR TO FIND 1LT –––– WITH A 4 GAUGE ELECTRICAL CABLE, WHIPPING THE BOTTOM OF A DETAINEE*S FEET. LATER THAT NIGHT, SGT ––––– CAUGHT 1LT –––– WHIPPING A DETAINEE ACROSS HIS BACK WITH AN ELECTRICAL CABLE. SGT ––––– DOCUMENTED EACH EVENT ON A SWORN STATEMENT FORM AND REPORTED THE INCIDENTS.

2. LOCATION (GRID COORDINATES OR OTHER REFERENCE): 38S LB 37142 99770

3. TIME OF OCCURRENCE AND TIME OF DISCOVERY: REPORTED 17 1100 AUG 06

4. WHO CAUSED (IF KNOWN) OR IDENTITY OF FRIENDLY AND ENEMY UNITS OPERATING IN THE IMMEDIATE AREA (IF KNOWN):

IRAQI POLICE FROM THE AL HURYIA IRAQI POLICE STATION

5. NAME OF WITNESSES (W/UNIT OR ADDRESS): SGT –––– ––––– –––––, 300TH MP COMPANY, MP PIT TEAM

6. UNIT POINT OF CONTACT: CPT –––– – –––– AT DNVT 551-2044 OR ––––.––––@–––––.ARMY.SMIL.MIL

7. EVIDENCE GATHERED AND ITS DISPOSITION: SWORN STATEMENTS AND PICTURES ARE ATTACHED

8. WEAPONS/EQUIPMENT INVOLVED: 4 GAUGE ELECTICAL CABLE, PR-24 BATON

9. DESCRIPTION OF DAMAGE OR INJURIES TO GOVERNMENT/CIVILIAN PROPERTY AND PERSONNEL: CIRCULAR WHIP MARKS, BLEEDING ON BACK, DARK RED BRUISING ON BACK

10. CURRENT LOCATION OF SUSPECTS AND VICTIMS (JAIL, HOSPITAL, AT SCENE, ETC.) BOTH ARE STILL AT AL HURYIA POLICE STATION

11. HOW IS THE SITE BEING SECURED? N/A

12. INVESTIGATING OFFICER. STATUS OF INVESTIGATION: NO INVESTIGATION INITIATED AT THIS POINT.

CLOSED: 22 AUG 2006

The American sergeant documents each incident of torture, but there is no evidence of any other intervention.

I suppose the authors may have been unaware of what they wrote. The savagery and butchery may have made them unconsciously prettify the picture, and project fictional heroism by the American soldier. But the truth is ugly, and can’t be covered up. That’s the beauty of having actual documents, and we owe a great debt of gratitude to Wikileaks and the anonymous leaker(s) for bringing us the truth.

No doubt there were cases where U.S. military personnel intervened to stop torture, but even in the documents I’ve seen thus far, plenty of victims are left in control of their captors. The news reports seem to emphasize the wide-spread nature of the crimes.

Among whatever other truths are to be revealed, one truth stands out, and the UK Guardian headline is clear in its reporting: Iraq war logs: secret files show how US ignored torture. The truth. Both under the administration of George W. Bush and Barack Obama, the United States forces in Iraq countenanced the use of torture on a massive scale by its allies in the Iraq government. They did not publicize what was happening, and to this day, they say this policy is acceptable.

The stories of the torture are horrific, as are the murders, the deaths of tens of thousands of non-combatants. And the casualty figures cannot themselves be trusted, as the U.S., for instance, reports no civilian casualty figures for the attack on Fallujah.

This is a country without a moral compass. War crimes on a massive scale, and a populace too afraid, too inured, too ignorant or self-satisfied to do anything about it. A terrible reckoning is coming, but it will not be from Al Qaeda, or from terrorists, or from God. It will be when the people of this country wake up and throw the rotten murderers and torturers and their apologists out of power.

Through its wide-ranging acceptance and tolerance of torture, the U.S. destroys its own integrity. I await the outrage or lack of it in coming days, but I won’t hold my breath. The country has been made stupid by its addiction to elections funded by the wealthy, elections that only perpetuate the same evil powers, and offer little if any real choice to the voting public.

By claiming these documents will aid the enemy, the U.S. rulers only reveal their own guilt. It is not tactics and procedures they fear will be released, but an image of their own crimes.

UPDATE: Since first writing this diary, more material related to U.S. complicity in wide-spread and systematic torture by the Iraqi government is coming to light, as well as information about other war crimes. One of especial interest is a video at UK Guardian, which also has an interview with New York Times correspondent Peter Maass, who was allowed time with Iraq’s notorious special commandos, Wolf Brigade. Maass puts Gen. Petraeus special adviser, James Steele, a “retired United States Army colonel who also helped develop the special police as a member of General Petraeus’s team”, in the same room as himself when both heard an Iraqi being tortured in another room.

A January 2007 article by Dahr Jamail noted the connections between Steele and his old El Salvador counterinsurgency boss, John Negroponte, who was U.S. ambassador to Iraq in 2004-2005. Negroponte then was U.S. ambassador as FRAGO 242 was put into operation.

It is Negroponte who oversaw the implementation of the “Salvador Option” in Iraq, as it was referred to in Newsweek in January 2005.

Under the “Salvador Option,” Negroponte had assistance from his colleague from his days in Central America during the 1980′s, Ret. Col James Steele. Steele, whose title in Baghdad was Counselor for Iraqi Security Forces supervised the selection and training of members of the Badr Organization and Mehdi Army, the two largest Shi’ite militias in Iraq, in order to target the leadership and support networks of a primarily Sunni resistance.

Planned or not, these death squads promptly spiraled out of control to become the leading cause of death in Iraq. Intentional or not, the scores of tortured, mutilated bodies which turn up on the streets of Baghdad each day are generated by the death squads whose impetus was John Negroponte. And it is this U.S.-backed sectarian violence which largely led to the hell-disaster that Iraq is today.

Of course, Jamail didn’t know of FRAGO 242, but the implication of his article have been borne out with a vengeance, as the U.S. appears to have organized and unleashed torture and death squads in Iraq, much as they did in Latin America over the decades, in Chile, Paraguay, Brazil, El Salvador, Guatemala, Argentina, etc.

As for Steele, his presence in Iraq told ominously of the real U.S. mission there. As a 1988 article in The Nation explained, “as head of the U.S. Military Group at El Salvador’s Ilopango Air Base, [Steele] was a critical operative in the contra resupply outfit run by Oliver North and Richard Secord. Steele made sure the Enterprise’s planes could come and go from Ilopango.” According to a 2005 New York Times Magazine piece by Maass, Steele was close to Iraqi General Adnan Thabit, leader of the Special Police Commandos. One of the latter’s projects was a TV show broadcast over the U.S.-financed Al Iraqiya television station — “Terrorism in the Grip of Justice” — which broadcast insurgents’ confessions, which appear to have been largely induced by torture.

The very first thing anyone who considers themselves progressive in this country must do is hold the current administration responsible for what is happening right now, end the FRAGO 242 policy, and begin the immediate withdrawal of all U.S. forces from Iraq and Afghanistan. The “don’t look back” policy of Obama must be renounced, and a movement for accountability and social justice began in this country. Otherwise, the torturers are waiting to take over. They already have control of much of the military.

Time is short.

My thanks to the brave folks at Wikileaks. With some luck, there will be enough time, but not unless we give up illusions in washed-up U.S. politicians who have no intent on changing the course of Empire, an empire built on terror, murder, and torture.