Bad Apples—or Bad Policy

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Chapter Four
Bad Apples—or Bad Policy?

In the days after the Abu Ghraib scandal broke, it was widely believed that the abuses were limited to one particular prison outside Baghdad and were caused by a few rogue soldiers, commonly referred to as a few "bad apples."59 However, as time passed, it became apparent that abuses had occurred at other U.S. detention facilities elsewhere in the world. It seemed that a changed official policy toward suspected terrorists was one cause of the scandal. New and tougher interrogation techniques intended for use on suspected terrorists came to be used on ordinary Iraqi citizens instead. The use of these techniques elsewhere made it difficult to claim that Abu Ghraib was an aberration. Another important cause of the scandal was a chaotic and unclear prison environment in which soldiers were unsure who was giving orders and supervisors were either unaware of soldiers' activity or negligent in seeing that the rules were followed.

A Handful of Troublemakers

During the immediate aftermath of Abu Ghraib, Bush administration officials claimed that the abuses were limited to one prison and were not representative of U.S. policy. In hearings before Congress both General Richard Myers, chairman of the Joint Chiefs of Staff, and his boss Defense Secretary Donald Rumsfeld apologized for what they repeatedly called "the actions of a few"60 rogue MPs and the military intelligence personnel who spurred them on to commit abuses.

Meanwhile, a senior White House aide told reporters for Time magazine that the abuses were unrelated to interrogations at all. Instead, he asserted, it was the work of a few undisciplined MPs egged on by a ringleader who enjoyed abusing helpless Iraqis."It was the night shift,"61 the aide claimed. Brigadier General Mark Kimmitt was asked what he would say to the people of Iraq. "This is wrong. This is reprehensible," he replied."But this is not representative of the 150,000 soldiers that are over here."62

Those who believed the abuses were the work of an isolated few were pleased when the Pentagon's inspector general concluded on July 22, 2004, after a study of ninety-four documented cases of prison abuse, that all were aberrations. That prompted statements of relief by some members of Congress."This senator never doubted for a minute," said Senator Jim Talent of Missouri, "that no senior leader in the United States Army or in the government would tolerate inhumanity or cruelty to prisoners."63 Talent's opinion was shared by millions of Americans who did not think that the kinds of acts seen at Abu Ghraib would ever be explicitly sanctioned by senior military commanders.

Defending Rumsfeld

Following the uproar over the exposure of the Abu Ghraib scandal, many Americans called for Donald Rumsfeld's resignation as secretary of defense. Others, however, said that he was doing a good job. Among Rumsfeld's supporters was Congressman Duncan Hunter, chairman of the House Armed Services Committee:

"Donald Rumsfeld is doing a good job. As Chairman of the House Armed Services Committee, I have found Secretary Rumsfeld to be an effective manager of our military forces in the war on terrorism.

Whether he is an effective leader of our military department, not his friendships on Capitol Hill, should and must be the basis on which he is judged. . . . The abuses at Abu Ghraib prison, which have resulted in six military personnel being recommended for courts-martial are, in isolation, serious. However, the proposition that Secretary Rumsfeld should drop his focus on the wars in Iraq and Afghanistan and devote all his time to Congressional and media hand-holding, is not acceptable....

Secretary Rumsfeld's military commander in Iraq, General Sanchez, immediately initiated an investigation on January 16, 2004, and announced that investigation to the world media at the same time. The investigation resulted, to-date, with three persons being recommended to the U.S. Army Court Martial Convening Authority for general courts-martial. Simply put, the wheels of Army justice are moving and as the nation knows, will move much quicker than the domestic justice system....

Even Rumsfeld's enemies must concede that the Secretary's strong point is his effectiveness in the war theaters. In war that should be the only thing. We are at war: we need Secretary Rumsfeld."

The Torture Memos—Changing the Rules

However, as the scandal was further investigated, it appeared to be much more complicated than originally thought. Indeed, the abuses at Abu Ghraib seemed to be connected to a general change in policy regarding the treatment of detainees in the war on terror. This suspicion arose when legal documents relating to the war on terror were released by the White House in June 2004. Written by Justice Department lawyers, the documents indicated that the use of techniques that bordered on torture had been considered for use by people at the highest levels of the U.S. government. The media dubbed the documents as the "torture memos"64 because they appeared to show a government actively searching for ways around the provisions of the Geneva Conventions.

The process seemed to have begun in February 2002 when Bush signed an order declaring that he had the power to suspend the Geneva Conventions when dealing with terrorists. Then, in August 2002, the Justice Department advised White House counsel Alberto Gonzales that torturing terrorism suspects might be legal. Finally, another memo in March 2003 found that "President Bush was not bound by either an international treaty prohibiting torture or by a federal anti-torture law."65 In essence, the president's lawyers were claiming that in his wartime role as commander in chief the president could ignore laws against torture as he saw fit. These memos sharply departed from former U.S. policy, which stressed the importance of complying with international laws against torture.

Taught to Torture?

On May 24, 2004, Newsweek magazine published a special report on the root causes of the abuses of the prison scandal. The article noted that the scenes from Abu Ghraib were unlikely to have been the work of rogue soldiers:

"Indeed, the single most iconic image to come out of the abuse scandal—that of a hooded man standing naked on a box, arms outspread, with wires dangling from his fingers, toes and penis—may do a lot to undercut the administration's case that this was the work of a few criminal MPs. That's because the practice shown in that photo is an arcane torture method known only to veterans of the interrogation trade. 'Was that something that [an MP] dreamed up by herself? Think again,' says Darius Rejali, an expert on the use of torture by democracies. 'That's a standard torture. It's called "the Vietnam."But it's not common knowledge. Ordinary American soldiers did this, but someone taught them.'

Who might have taught them? Almost certainly it was their superiors up the line. Some of the images from Abu Ghraib, like those of naked prisoners terrified by attack dogs or humiliated before grinning female guards, actually portray 'stress and duress' techniques officially approved at the highest levels of the government for use against terrorist suspects."

Changing the definition of torture greatly expanded the tactics available to interrogators. It was claimed, for example, that inflicting moderate or fleeting pain was not necessarily torture and therefore broke no laws. The author of one memo, Assistant Attorney General Jay S. Bybee, argued that although such actions, while possibly cruel or inhuman, were not really torture. As long as the pain inflicted was of lesser intensity than the pain accompanying serious physical injury or even death, it did not count as torture. In addition, he claimed that inflicting mental pain or suffering—like pressing a gun to a prisoner's head and threatening to pull the trigger—would qualify as torture only if it resulted in psychological harm that lasted months or years.

In 2002 and 2003 lawyers for the State Department, as well as military lawyers, expressed concerns that memos like Bybee's signalled a drastic and unwise policy change. The criticism of William H. Taft IV, legal adviser for the State Department, was blunt. In a letter to the Justice Department he argued that the Justice Department's advice to the president was deeply flawed and "contrary to the official position of theUnited States, the United Nations, and all other states that have considered the issue."66 Military lawyers opposed the change in policy because it did not provide clear guidance on acceptable tactics."Once you start telling people it's okay to break the law," said one,"there's no telling where they might stop."67 Secretary of State Colin Powell, a former soldier who had seen combat in Vietnam, was also skeptical. He sharply disagreed with the notion that the United States could disregard the provisions of the Geneva Conventions under any circumstances.

"Why Is Standing Limited to Four Hours?"

The threat of terrorist attacks on innocent Americans, however, was deemed too serious to fully heed such concerns. Therefore, in late 2002 Rumsfeld approved a list of aggressive interrogation techniques that could be used at the detention facility in Guantánamo Bay. These included stripping prisoners, intimidating them with dogs, subjecting them to twenty-hour interrogations, and forcing them to remain in stressful positions. In one memo an official proposed limiting to four hours the length of time detainees could be forced to stand in one position. A note scrawled in the margin by Rumsfeld shows that he took an active interest in how the techniques were applied. "I stand for 8–10 hours a day," he wrote. "Why is standing limited to four hours?"68 After these techniques were found to be legal in March 2003, Secretary Rumsfeld then approved a final list of twenty-four interrogation techniques to be used on terrorist suspects at Guantánamo. The methods Rumsfeld authorized included limiting prisoners' food, denying them clothing, subjecting them to body cavity searches, and keeping them awake for as long as ninety-six hours.

According to newspaper reports, those techniques were likely put to use by the CIA in Afghanistan and Guantánamo Bay shortly after they were approved. A December 2002 article on terrorist suspects in Afghanistan in the Washington Post shows how detainees there were treated:

Those who refuse to cooperate inside this secret CIA interrogation center are sometimes kept standing or kneeling for hours, in black hoods or spray-painted goggles, according to intelligence specialists familiar with CIA interrogation methods. At times they are held in awkward, painful positions and deprived of sleep with a 24-hour bombardment of lights—subject to what are known as stress and duress techniques.69

The line between torture and interrogation, the Post noted, had already begun to blur. While official policy publicly denounced the use of torture, each of the national security officials interviewed for the article defended the use of violence against captives as just and necessary. An official who supervised the capture and transfer of accused terrorists summarized the prevailing attitude."If you don't violate someone's human rights some of the time," he said,"you probably aren't doing your job."70

Treatment during the first few hours of captivity, intended to instill fear and anxiety, could be particularly brutal:

According to Americans with direct knowledge . . . captives are often "softened up by MPs and U.S. Army Special Forces troops who beat them up and confine them in tiny rooms. The alleged terrorists are commonly blindfolded and thrown into walls, bound in painful positions, subjected to loud noises and deprived of sleep. The tone of intimidation and fear is the beginning, they said, of a process of piercing a prisoner's resistance.71

The Reuters Incident

In January 2004 three employees of Reuters, an international news agency based in London, were arrested by American soldiers near Fallujah—even though they had no weapons and carried press badges. They were eventually released, but as Greg Mitchell noted in Editor and Publisher, they were subjected to days of physical and sexual abuse while confined. Their treatment—as well as the use of badges—suggests an organized system of abuse that applied to other prisons beside Abu Ghraib:

"Bags were alternately placed on their heads and taken off again. Deafening music was played on loudspeakers directly into their ears and they were told to dance around the room. Sometimes when they were doing this, soldiers would shine very bright [flashlights] into their eyes and hit them with the [flashlights]. They were told to lie on the floor and wiggle their backsides in the air to the music....

Soldiers would whisper in their ears, 'One, two, three . . .' and then shout something loudly right beside their ear. All of this went on all night.... [One of the Reuters' employees named] Ahmad said he collapsed by morning. [Another named] Sattar said he collapsed after Ahmad and began vomiting....

Ahmad said he was forced to insert a finger into his anus and lick it. He was also forced to lick and chew a shoe. For some of the interrogation, tissue paper was placed in his mouth and he had difficulty breathing and speaking....

Ahmad and Sattar both said that they were given badges with the letter C on them. They did not know what the badges meant but whenever they were being taken from one place to another in the base, if any soldier saw their badge they would stop to slap them or hurl abuse."

From Guantánamo to Abu Ghraib

As the Abu Ghraib scandal was further investigated, it seemed likely that the rough techniques approved for interrogators to use on terrorists at Guantánamo had found their way to Iraq. Indeed, many of the interrogation techniques used by guards at Abu Ghraib bore a striking resemblance to those that had been used elsewhere. Hooding prisoners and stripping them naked, for example, had been done frequently at Guantánamo and in Afghanistan. The use of dogs to intimidate detainees had also been used at both places and were clearly part of the interrogation process at Abu Ghraib.

Military dog handlers like Sergeant Michael Smith and Sergeant Santos Cardona testified that they were called to Abu Ghraib frequently in December 2003 and January 2004. Normally, the dogs searched for hidden drugs, explosives, and weapons. Their presence at Abu Ghraib, however, was requested by military intelligence officers—one of whom told investigators that intimidating prisoners with unmuzzled dogs had been recommended by a two-star general.

The idea that the dog handlers were operating on their own did not seem plausible. Colonel Thomas Pappas, commander of the 205th Military Intelligence Brigade, said that when General Geoffrey Miller visited in the fall of 2003 he spoke admiringly of what could be accomplished with dogs. Said Pappas,"It was a technique I had personally discussed with General Miller when he was here. He said that they used military working dogs at Gitmo [Guantánamo] and that they were effective in setting the atmosphere for which, you know, you could get information."72 Miller, however, denied that he talked with Pappas about using guard dogs for interrogation or that dogs were used for interrogations at Guantánamo.

Regardless of who authorized the use of dogs, there is no doubt that the policy encouraged sadistic impulses by some. Specialist John Harold Ketzer, a military intelligence interrogator, testified that on January 13, 2004, he saw a dog team corner two male prisoners against a wall. One prisoner was hiding behind the other and screaming."When I asked what was going on in the cell," Ketzer recalled,"the handler stated that he was just scaring them, and that he and another of the handlers was having a contest to see how many detainees they could get to urinate on themselves."73

"Ghosts" by the Dozens

There were other questionable practices that looked less like the whims of depraved soldiers and more like official policy that had gone terribly wrong. One such practice involved hiding prisoners' identities and whereabouts from the Red Cross—such prisoners are called "ghost detainees"74 because no one knows their whereabouts. Hiding prisoners from the Red Cross is a violation of the Geneva Conventions since that organization's job is to monitor the treatment of all detainees. When governments secretly imprison people, prisoners can be abused without the Red Cross finding out. If the prisoner dies, the government can simply claim that it never saw the individual. Major General Taguba, who conducted one of the first investigations at Abu Ghraib, found ghost detainees there and at other prisons in Iraq. He condemned the practice as deceptive, contrary to army doctrine, and a clear violation of international law.

The International Committee of the Red Cross had suspected the United States was hiding detainees in prisons all over the world. One clue was that terror suspects reported as captured by the FBI did not turn up on prisoner lists. Meanwhile, the United States refused Red Cross demands to provide complete lists of the prisoners it was holding or to allow visits to all its prisons. Security concerns were usually given as the reason: The United States did not want terrorists to find out where or if their comrades were being held.

During the summer of 2004 the number of confirmed ghost detainees began climbing. Rumsfeld admitted in June that he had ordered a prisoner be hidden from the Red Cross. He said he did so at the request of the CIA. Although the prisoner had not been held at Abu Ghraib, the incident illustrated the involvement of high-level administration officials in prisoner handling. In the months following Rumsfeld's admission, the Defense Department conceded that it had found eight other hidden detainees.

Then, in September, General Paul Kern, who conducted an army investigation of the 205th Military Intelligence Brigade, told the Senate Armed Services Committee that the number of ghost detainees may have been as high as one hundred. It was difficult to know the exact number because the CIA did not cooperate with the investigation. Critics of the theory that Abu Ghraib was caused by a few rogue soldiers note that moving ghost detainees from place to place underneath the noses of superiors was not something low-ranking soldiers could do. Higher-ranking officers must have been involved.

Suspicious Deaths

In addition to ghost detainess, the number of detainees that had died during their incarceration was suspiciously high. By the summer of 2004 at least thirty-seven prisoners had died while in U.S. custody. The fact that only two deaths could be connected to Abu Ghraib was particularly troubling because it suggested the problem went beyond just one prison. Of the thirty-seven confirmed deaths, at least ten were acknowledged as homicides by the Defense Department. Tellingly, all but one of the homicides occurred during or after an interrogation.

For example, after Major General Hamed Mowhoush, former chief of Iraqi air defenses, died in a detention facility north of Baghdad in 2003, the Defense Department released a statement reporting that he had died of natural causes—even though the autopsy report found that he had died from "asphyxia due to smothering and chest compression."75 When the Denver Post investigated, they learned that two soldiers had wrapped the general tightly inside a sleeping bag and then sat on his chest while covering his nose and mouth. Only after the Colorado paper published its charges did the Defense Department begin an investigation.

Degradation by Design?

Another indication that the abuse of prisoners at Abu Ghraib was not a lone occurrence was the character of the abuses. They systematically violated so many norms of Arab culture that it seemed unlikely to be a coincidence. For example, Gary Myers, a defense attorney for one of the MPs accused of the abuses, wondered whether a group of young reservists from rural Virginia could have come up with the idea that the best way to embarrass Arabs and get them to talk was to have them walk around in the nude. A pamphlet given to Marine Corps troops being sent to Iraq, for example, clearly outlined behaviors that are offensive in Arab cultures. Among the "do's and don'ts" listed were these guidelines:

Do not shame or humiliate a man in public. Shaming a man will cause him and his family to be anti-Coalition.

Shame is given by placing hoods over a detainee's head. Avoid this practice.

Placing a detainee on the ground or putting a foot on him implies you are God. This is one of the worst things we can do.

The most important qualifier for all shame is a third party to witness the act. If you must do something likely to cause shame, remove the person from the view of others.76

Yet the guards' behavior at Abu Ghraib turned these guidelines upside down. Everything—especially the forced nudity, sexual games, and the public humiliation of groups of prisoners—seemed designed to produce the maximum humiliation. And the lack of effort to hide their activities led some observers to believe that the MPs thought they had the approval of their superiors. As Hersh put it, "The 372nds' [the 372nd Military Police company] abuse of prisoners seemed almost routine—a fact of Army life that the soldiers felt no need to hide."77

Official Findings: Confusion and Lack of Oversight

In late August the findings of two long-awaited investigations into the Abu Ghraib scandal were announced. As it turned out, neither report limited responsibility to a few rogue soldiers. However, although they did find ample evidence of poor leadership and unclear or conflicting goals, they did not find evidence of an official army policy that explicitly condoned torture.

The first report detailed an army investigation headed by Major General George Fay and two other generals. Fay's findings extended responsibility beyond the handful of military police and intelligence personnel previously implicated. The Fay report cited forty-four separate instances of abuses involving nearly fifty people. Although some observers considered the involvement of that many soldiers firm evidence of widespread mistreatment, others pointed out that in an army numbering tens of thousands, it was not that great a number.

Speaking with reporters at the Pentagon, General Paul J. Kern, one of the three generals heading the Fay report, seemed to agree with that viewpoint."We found that the pictures you have seen, as revolting as they are, were not the result of any doctrine, training or policy failures, but violations of the law and misconduct. We've learned that there were leaders at Abu Ghraib who knew about this conduct, knew better, and did nothing. Some soldiers behaved improperly because they were confused by their experiences and direction."78

The other investigation, headed by former defense secretary James Schlesinger, found even more evidence of mistreatment. The Schlesinger panel received about three hundred reports of serious abuses and confirmed sixty-six of them before announcing their findings. Some of the brutality seems to have involved guards amusing themselves—those incidents could have been the work of just a few rogue soldiers. But at least a third of the confirmed abuses took place during interrogations. In those instances the guards were acting at the request of military intelligence officers, weakening the idea that the abuses were independent acts.

Both Schlesinger and Fay criticized the chaos caused by an unclear command structure. They particularly noted the confusion caused by differing interrogation policies. There were at least three separate interrogation policies in operation at Abu Ghraib—those cited in army field manuals, those used by interrogators who came to Iraq from Afghanistan, and a third set modeled after techniques used at Guantánamo Bay. The situation was further complicated by the presence of CIA officers and civilians with unclear authority who nevertheless suggested ways to "soften up" detainees.

The Fay report concluded that the CIA's harsh detention and interrogation practices poisoned the atmosphere at Abu Ghraib. The CIA's abuse of prisoners encouraged military personnel to deviate from accepted practices. When MPs and military intelligence officers saw CIA officials mistreating prisoners with impunity, some began to do the same themselves. The report also described how the behavior spread. As the report stated, "What started as nakedness and humiliation, stress and physical training (exercise), carried over into sexual and physical assaults by a small group of morally corrupt and unsupervised soldiers and civilians."79 The report also criticized the CIA for not cooperating with investigators. Because the CIA denied access to its documents and personnel, a full accounting of what really happened at Abu Ghraib may never be made.

Higher-Ups Faulted

But sections of the report not released publicly (but dug up by the New York Times) were critical of the top commander in Iraq, General Ricardo S. Sanchez. In the fall of 2003 Sanchez changed the rules for interrogations three times in thirty days. The resulting confusion contributed to numerous violations of the Geneva Conventions. Another part of the report found that harsh practices previously used in questioning al Qaeda and Taliban detainees in Afghanistan and Guantánamo were unlawfully transferred to Iraq.

In assessing responsibility for Abu Ghraib, the Schlesinger panel pointed further up the chain of command. It chastised the Defense Department's most senior civilian and military leaders for setting the stage for abuses. They were accused of issuing unclear orders, planning poorly, and responding slowly to reports of problems.

Testimony by the officer who oversaw interrogations at Abu Ghraib also suggested that senior officials shared some of the blame. According to Lieutenant Colonel Steven Jordan, officials in Washington were intensely interested in the interrogations at Abu Ghraib. Jordan claimed that his boss, Colonel Thomas Pappas, told him more than once that their intelligence reports were being read by Defense Secretary Rumsfeld and by officials at CIA headquarters. Jordan's word may not be completely trustworthy—General Taguba believed that Jordan had lied to his investigators on several occasions. Still, the main thrust of Jordan's statement matches recollections of other officers who reported intense interest from higher-ups.

Although the Schlesinger panel did not mention Rumsfeld by name, it implies that he bore considerable responsibility—for not providing enough troops and for not clarifying policies. It noted that when General Karpinski asked for more troops to help her overstretched forces at Abu Ghraib, that request was denied. Instead, she was told to "wear her stars"80 (that is, act like a general) and solve the problem by herself. Both the Fay and Schlesinger reports strongly suggest that the problems at Abu Ghraib were the result of leadership failures and a policy spinning out of control.

"A Simple Truth"

Although neither report said so specifically, both supported the conclusion reached by award-winning reporter, Mark Danner. A staff writer for the New Yorker and professor of journalism at the University of California at Berkeley, Danner wrote:

Behind the exotic brutality so painstakingly recorded at Abu Ghraib, and the multiple tangled plotlines that will be teased out in the coming weeks and months . . . lies a simple truth, well known but not yet publicly admitted in Washington: that since the attacks of September 11, 2001, officials of the United States at various locations around the world, from Bagram in Afghanistan to Guantánamo in Cuba to Abu Ghraib in Iraq, have been torturing prisoners.81

After September 11, the military's long-time commitment to the Geneva Conventions eroded under an aggressive plan to deal with terrorism. Harsh interrogation techniques used by the CIA in Afghanistan began to be used by the military as well—first at Guantánamo Bay and then in Iraq. Pressure to do something about a rising insurgency led to the same tactics being used against Iraqi citizens without connections to terrorism. An article in USA Today may best sum up the scandal's causes: "There's no evidence of a high-level order to engage broadly in torture. Just the opposite. But neither can the problem be blamed on a few bad actors. At the very least, it suggests indifference and conflicting goals at the highest levels that encouraged the abusers."82

Of the hundreds of thousands of American soldiers who served in Iraq, only a relative handful abused Iraqi prisoners. Although those who did so were held accountable, both senior military and civilian leaders share blame for failing to set clear guidelines on how prisoners should be treated.