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Foxes in the henhouse
By Ashraf Fahim

NEW YORK - It would be comforting to believe that Private Lynndie England's appearance in a military court last week was the first step toward justice in the Abu Ghraib prisoner-torture scandal. Photos of the diminutive England grinning in front of naked, prostrate Iraqis, one of whom she held by a dog leash, made her a focus for the worldwide outrage that followed the release in April of graphic images depicting torture, sexual humiliation and perhaps murder by US soldiers in Iraq.

But England's lawyer, who has asked to call senior Bush administration officials as witnesses, is not alone in believing culpability goes a lot higher up the food chain than his client and the other five Military Police personnel (MPs) still facing charges. A trove of documents has come to light over the past few months suggesting as much, and the body of evidence is now such that veteran investigative journalist Seymour Hersh, who broke much of the story in May, recently accused senior administration officials, including President George W Bush and Vice President Dick Cheney, of "war crimes".

Those voices demanding full accountability are sailing into the prevailing winds, however. With the November presidential elections nearing and congressional hearings suspended for the summer recess, and, perhaps most important, the well of new images running dry, the sense of urgency that first greeted the revelations has dissipated.

The evidence mounts
It's easy to forget the jolt to the US body politic the scandal generated just three months ago. As the images spilled forth, cataloguing the dark underbelly of the war in Iraq and the "war on terror", all of the administration's grandiloquent rhetoric of freedom and democracy suddenly came under fire. And when Secretary of Defense Donald Rumsfeld was hauled before the Senate Armed Services Committee on May 7, glassy-eyed and for once unable to conjure his trademark obfuscations, a reckoning seemed imminent. In a rush of blood, one commentator called it "the biggest tsunami since the Iran Contra affair, maybe since Watergate".

But the administration has outrun the storm clouds by withholding or delaying the release of key documents, such as Red Cross reports and classified annexes of Major-General Antonio Taguba's report on Abu Ghraib that allege "systemic" abuse, and by clinging to its "few bad apples" theory, even as evidence to the contrary proliferates. And it's had the report of the army inspector general, Lieutenant-General Paul Mikolashek, released on July 22 (the day before Congress recessed), to support its case. Despite revealing a much higher number of abuses than previously known - 94, with 20 deaths in custody - the report blames "unauthorized actions taken by a few individuals".

A wealth of declassified government memos and witness testimony contradicts Mikolashek, however. Taken together they indicate that, if the administration did not directly order torture, it certainly sought to obscure its definition and encourage US personnel in Iraq, Afghanistan and elsewhere to believe that gathering intelligence was more important that the manner of its extraction.

Stephen Watt, an international human-rights fellow at the Center for Constitutional Rights (CCR) in New York, told Asia Times Online the administration contemplated the use of torture from the very beginning of its "war on terror". "Quite clearly the use of torturous and inhumane treatments was on the table. And in fact Donald Rumsfeld sanctioned at one point the use of techniques that would be tantamount to torture," he said. "So they clearly sent a signal down to the lower ranks, the people that actually perpetrated these heinous acts, that ... it was open day."

CCR is currently involved in the cases of three young British Muslims who claim to have been tortured in US custody in Guantanamo Bay, Cuba. The violent beatings and sexual humiliation they say they endured are consistent with the abuses at Abu Ghraib, supporting the contention of Hersh and others that the pattern of abuse "migrated" from the "war on terror" to Iraq.

Hersh has made very specific claims in that regard, writing that a highly classified Department of Defense (DoD) "special-access program" (SAP) was set up after September 11, 2001, to expedite the assassination or arrest and interrogation of terrorism suspects. US operatives were given free rein to use torture and sexual humiliation (which was assumed to be a culturally specific technique). Rumsfeld's decision to extend the SAP into Iraq to break the insurgency in early autumn 2003 led directly to Abu Ghraib, Hersh contends.

Irrespective of the SAP, the public record makes clear that early in the "war on terror" the Bush administration sought to give itself considerable latitude in the treatment of detainees. A first step in this process was Bush's decision not to afford captives from Afghanistan the protection of the Geneva Conventions. In a February 2002 memo, Bush did call for their "humane" treatment, but only "consistent with military necessity" - an enormous loophole. He also said he accepted Attorney General John Ashcroft's advice that he had the authority to suspend the conventions "in this or future conflicts".

The Department of Justice advised the president in an August 2002 memo that he was not bound by international conventions or US laws prohibiting torture. And the memo said "the ban on torture is limited only to the most extreme forms of physical or mental harm", which produce, for example, "death or organ failure". This may have been the definition Bush had in mind when, on July 23, he categorically denied having ever ordered "torture".

However intentionally opaque the president's role, it now seems clear that his secretary of defense authorized torture. An order Rumsfeld signed in December 2002 authorizes US interrogators to use "stress positions", to strip and hood detainees, to intimidate them with dogs, and to force them to stand for long periods - "I stand for eight to 10 hours a day. Why is standing only limited to four hours?" he noted on a memo written by a subordinate. Rumsfeld rescinded his order in mid-January 2003, but new guidelines more consistent with the Geneva Conventions were not issued until April.

Rumsfeld's deputies were deeply involved in executing the interrogation policy - most importantly Under Secretary of Defense for Intelligence Stephen Cambone and his military assistant, Lieutenant-General William G (Jerry) Boykin - who is best known for disparaging comments he has made about Islam. Also central was Under Secretary of Defense Douglas Feith, who had responsibility for setting policy on prisoners in Iraq.

Much of the abuse in the "war on terror" and Iraq seems to have flowed in Major-General Geoffrey Miller's wake. Miller was in charge of Guantanamo when the worst offenses are alleged there, and traveled to Iraq last August to brief interrogators on the methods being employed in Cuba. The worst violations in Iraq happened in the months following that trip. Command of all military prisons in Iraq was handed to Miller in April, just as the scandal erupted.

One of the key questions in the Abu Ghraib scandal is whether senior officials instructed MPs at the prison to "soften up" detainees for interrogation, as the MPs claim. Classified annexes to the Taguba report, revealed on July 28 by Rolling Stone magazine, show that Miller recommended that MPs be "actively engaged in setting the conditions for successful exploitation of the internees". Colonel Thomas Pappas, commander of a military intelligence brigade at Abu Ghraib, told Taguba that Miller advised him that using dogs was an effective method of doing so. The abuses were a "specific result" of Miller's recommendations, said Pappas.

The precise interrogation guidelines for the Iraq theater were approved by General Ricardo Sanchez, the senior US commander in Iraq until he was reassigned in June. With Miller's counsel, Sanchez issued interrogation rules of engagement (IROE) in autumn 2003. Those rules permitted sleep deprivation for 72 hours, the use of "stress positions" for 45 minutes, subjecting detainees to temperature extremes, imposing diets of bread and water, and the use of dogs. The Washington Post has also reported allegations by a US soldier charged in the scandal that Sanchez sat in on interrogations that involved torture.

Little is known of the role of the Central Intelligence Agency or its former director, George Tenet, in the abuses in Abu Ghraib. But together with a number of private contractors, they have handled much of the interrogating in Iraq, Afghanistan and elsewhere.

Command responsibility
Watt of CCR said that under the principal of "command responsibility", well established in US and international law, senior officials are culpable for abuses, whether or not they ordered them directly. "That responsibility adheres to the individual at the top, regardless of whether he knew the specifics of what were going on," he said. "So, under that principle, Bush and senior officials within the Department of Defense and the Department of Justice could very well be found liable for the acts of the individual officers themselves."

Even the seemingly less egregious methods that were permitted, such as sleep deprivation and the use of "stress positions", are deemed torture in international law. So it's unsurprising that senior officials denied sanctioning them in their congressional testimony - and may thus have committed perjury. Rumsfeld, for example, denied any of the abuses were condoned by the DoD or local unit regulations, and Sanchez said he never authorized the harsher methods in the IROE.

The only senior official to have been disciplined is Brigadier-General Janice Karpinski, the overall commander of Abu Ghraib when the offenses occurred, who was suspended in May. Karpinski has denied any knowledge of the abuses - though one Iraqi has claimed to have seen her in the room while he was being tortured, "watching and laughing". Karpinski claimed on August 3 that the White House and Pentagon knew what was happening and intentionally kept her out of the loop.

Among those who have yet to be charged are Pappas, Colonel Steven Jordan - the director of intelligence at the prison - and two private contractors, Stephen Stephanowicz and John Israel of CACI International, who were named by Taguba as the individuals most likely to be "directly or indirectly" culpable. They may yet see their day in court, but the prospect of those who actually crafted and supervised the interrogation policy facing justice looks less probable. The simple fact that Miller retains his post suggests the administration isn't holding its breath.

Torture and impunity
Few expect the six official DoD investigations still under way to differ drastically from the Mikolashek report in their conclusions. The committee that will collate their findings is, after all, composed of members of the Defense Policy Board, the semi-official DoD advisory panel once headed by neo-conservative kingpin, Richard Perle.

Watt said, therefore, that a genuinely independent investigation needs to be set up. "You can't have foxes investigating slaughters in henhouses, and that's precisely what's happened here," he said. "The outcome of an independent investigation, I think you will find, would be that persons at the very top are responsible for the acts that we saw at Abu Ghraib, certainly for setting the conditions under which they occurred. And they should be prosecuted in federal court."

It's still conceivable that when Congress returns next month, the Senate Armed Services Committee will take up that mantle. But there were already signs before the recess that its will was ebbing. By June votes on how to proceed were going down party lines. And the committee chairman, Republican Senator John Warner, said on July 15 he won't hold substantial hearings until all the current investigations are complete. That could delay proceedings until after the November election. So, for the present, it appears impunity is the order of the day.

Ashraf Fahim is a freelance writer on Middle Eastern affairs based in New York and London.

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Aug 13, 2004



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