Abu Ghraib

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Detainee Cases, argued 28 April 2004, decided 28 June 2004. Hamdi etal. v. Rumsfeld (2004), 124 S.Ct. 2633 (2004), decided by vote of 6 to 3, O'Connor for plurality, Souter and Ginsburg concurring in part and dissenting in part, Scalia, Stevens, and Thomas in dissent; Rasul etal. v. Bush (2004), decided by vote of 6 to 3, Stevens for the Court, Kennedy concurring, Scalia, Rehnquist, and Thomas in dissent; Rumsfeld v. Padilla (2004), decided by vote of 5 to 4, Rehnquist for the Court, Kennedy and O'Connor concurring, Stevens, Souter, Ginsburg, and Breyer in dissent.

In three separate cases brought by individuals held in custody by the U.S. government, the Supreme Court provided the most definitive statement yet of what powers are afforded to the president to hold so‐called enemy combatants. On 11 September 2001, the al Qaeda terrorist network hijacked four commercial airliners with the goal of steering them into prominent American targets, including the World Trade Center towers in New York City and the Pentagon in Washington, D.C. Nearly three thousand people were killed in those attacks. One week later, Congress passed a resolution entitled “Authorization for Use of Military Force” (AUMF). The AUMF vested the president with the authority to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks” or “harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” In one of the more controversial applications of this policy, U.S. government officials indefinitely detained many individuals captured during military operations waged in Afghanistan and Iraq. Numerous others were seized within the United States itself as part of the Bush administration's ongoing “war on terrorism.”

The government refused to label many of these detainees as either “Prisoners of War” (which would entitle them to various protections granted under the Geneva Convention, including the right to be returned to their home countries at the conclusion of hostilities) or as ordinary criminal defendants (which would entitle them to the full panoply of procedural protections listed in the Bill of Rights). Instead, the government identified the detainees as “enemy combatants,” a classification accorded to those alleged to be “part of or supporting forces hostile to the United States or coalition partners.” Two U.S. citizens (Yaser Esam Hamdi and Jose Padilla), two Australians, and twelve Kuwaitis filed three separate lawsuits against the U.S. government challenging their detentions as violations of due process. Specifically, they complained that as “enemy combatants” they had never been formally charged with wrongdoing, permitted to consult counsel, or been provided with access to courts and other tribunals.

The most significant of the three cases, Hamdi v. Rumsfeld, considered whether the U.S. military could indefinitely detain an American citizen who had been arrested while allegedly fighting for the Taliban in Afghanistan in 2001. Because Hamdi was captured in an enemy combat zone, the military offered no factual inquiry or evidentiary hearing allowing him to rebut the government's assertions about his activities. In Hamdi, executive authority was upheld in one respect: A majority of Supreme Court justices conceded that Congress, through passage of the AUMF, had indeed authorized the president as commander‐in‐chief to detain U.S. citizens as “enemy combatants.” Such action taken by the federal government was not unprecedented: the justices specifically referenced the Nazi saboteurs case, Ex Parte Quirin (1942), where the purpose of such detentions had been to prevent the captured individuals (including at least one U.S. citizen) from returning to the field of battle and taking up arms once again. Any such detention of enemy combatants could be considered an “important incident of war.”

Still, six of the nine justices voted to vacate the lower court judgment that Hamdi could be held without a more “searching review” of the facts underlying his detention. Writing for a plurality of four justices, Sandra Day O'Connor argued that neither the AUMF nor the Constitution authorizes indefinite or perpetual detention for purposes of interrogation without some form of judicial review. According to O'Connor: “[A] state of war is not a blank check when it comes to the rights of the Nation's citizens.” Hamdi was thus entitled to receive notice of the factual basis for his classification, as well as a fair opportunity to rebut the government's factual assertions before a neutral decision maker.

The other two detainee cases raised more technical legal issues concerning enemy combatant lawsuits. In Rasul, fourteen foreign nationals held at the United States military base at Guantanamo Bay, Cuba, similarly challenged their detentions as unconstitutional. The U.S. government had argued that U.S. courts lacked jurisdiction to consider such challenges because the foreign nationals had been captured abroad and were being maintained in military custody outside the United States. In his opinion for the Court, Justice John Paul Stevens ruled that because the United States exercises complete jurisdiction and control over the Guantanamo Base, aliens held at the base were, just like American citizens, entitled to invoke federal court jurisdiction over their claims. In Padilla, an American citizen held as an “enemy combatant” at a navy brig in Charleston, South Carolina, challenged his detention by filing suit in New York City, where he had originally been brought as a material witness concerning the 11 September attacks. Declining to reach the merits of Padilla's claim, the Court held that Padilla would have to resubmit his petition for relief in the federal district court of South Carolina, where he was being detained.

Only the first post–11 September terrorism cases to reach the Supreme Court, the first three detainee cases left many questions unanswered. In particular, no five justices could agree as to precisely what sort of legal process Hamdi and the other enemy combatants should receive. Unable to secure a majority in Hamdi for her suggestions that the presumption of innocence and normal hearsay rules be suspended, Justice O'Connor's opinion necessarily left it up to the district court to fashion “a fact‐finding process that is both prudent and incremental.” Even more significantly, while revelations about the harsh treatment and abuse of some prisoners at the Abu Ghraib prison in Iraq had already reached the Court at the time the detainee cases were decided, challenges to the legality of such measures would await judgment at a future time.

David A. Yalof

Abu Ghraib or Abu Ghurayb , infamous prison located in the town of Abu Ghraib, c.20 mi (32 km) W of Baghdad, Iraq. Built by British contractors in the 1960s, it occupies c.280 acres (113 hectares) and is comprised of five separate compounds. During Saddam Hussein 's regime, Abu Ghraib was believed to house thousands of political and other prisoners, many of whom were tortured and executed there.

After U.S. forces captured the prison during the 2003 invasion of Iraq, it was placed under the command of Brig. Gen. Janis Karpinski, who led the 800th Military Police Brigade, and in Aug., 2003, was reopened and used to hold criminals and later those suspected of terrorist activities. In September military intelligence officers assumed control of parts of the facility, and the following month Col. Thomas Pappas, head of the 205th Military Intelligence Brigade, assumed command of the prison. In Oct., 2003, International Red Cross inspectors detected "serious violations" of human rights at Abu Ghraib, and the Army's provost marshal reported grave problems there and at other prisons. As early as April and May, however, the Red Cross and United Nations had raised concerns about the treatment of Iraqi prisoners by U.S. forces.

In the wake of the events of Sept. 11, 2001 (see 9/11 , U.S. President George W. Bush stated (2002) that the Geneva Conventions would not apply to terrorist detainees, who were deemed "unlawful combatants" instead of prisoners of war ; he also insisted that they would be treated humanely. However, the government sanctioned the use of "enhanced interrogation techniques" on real and suspected members of the Taliban and Al Qaeda held at Guantánamo Bay, Cuba, including such methods as waterboarding (designed to induce a feeling of drowning), which the U.S. military had long considered a war crime. These techniques seem to have been adapted for use at Abu Ghraib, where the military police were encouraged by intelligence officers to "loosen up" suspects prior to interrogation.

In Jan., 2004, reports by soldiers of abuse at Abu Ghraib led to an Army investigation headed by Maj. Gen. Antonio Taguba, who detailed widespread abuses there in a Mar., 2004, report. Investigations of Abu Ghraib and other Iraqi detention facilities were also conducted and reported by the International Red Cross in Feb., 2004. Beginning in April, reports in the U.S. media explicitly revealed to the public the extent of the physical and sexual abuse of Abu Ghraib detainees, many of whom were civilians who had not been charged; photographs showed the abused, mostly naked Iraqis, some of whom were accompanied by smiling U.S. soldiers. A worldwide outcry followed the release of the photos, and many believe they increased support for the insurgents in Iraq. Later, videotapes of various abuses were also discovered; those and other photographs not seen by the public were described as showing cruel, sadistic, and inhuman acts, including rape, sodomy, and murder.

An Aug., 2004, Pentagon report from a panel chaired by James Schlesinger reported "deviant behavior and a failure of military leadership and discipline" at Abu Ghraib. Subsequently, Karpinski was demoted, Pappas reprimanded and fined, and 11 soldiers convicted of crimes. Only one officer, a reserve lieutenant colonel who had commanded the prison's interrogation center, faced court martial, but he was eventually cleared of all charges. The U.S. Defense Dept. rewrote its handbook on interrogation to ban many of the so-called enhanced techniques that had been sanctioned for use in Afghanistan and Guantánamo Bay, but a 2007 executive order by President Bush continued to permit the CIA to use harsh methods in its interrogation of terror suspects. Abu Ghraib was closed as a U.S. military prison in 2006; the Iraqi government reopened it as the Baghdad Central Prison in 2009.

Bibliography: See M. Danner, Torture and Truth: America, Abu Ghraib, and the War on Terror (2004); S. Strasser, ed., The Abu Ghraib Investigations (2004); K. J. Greenberg, J. L. Dratel, and A. Lewis, The Torture Papers: The Road to Abu Ghraib (2005); J. Jaffer and A. Sing, Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond (2007); P. Gourevich and E. Morris, Standard Operating Procedure (2008); studies by S. M. Hersh (2004), D. Levi Strauss and C. Stein (2004), and T. McKelvey (2007); R. Kennedy, dir., Ghosts of Abu Ghraib (documentary film, 2007), E. Morris, dir., Standard Operating Procedure (documentary film, 2008).