AMR 51/146/2004 October 27, 2004


The image of New York's Twin Towers struck by hijacked airliners on 11 September 2001 has become an icon of a crime against humanity. It is tragic that the response to the atrocities of that day has resulted in its own iconography of torture, cruelty and degradation. A photograph of a naked young man captured in Afghanistan, blindfolded, handcuffed and shackled, and bound with duct tape to a stretcher. Pictures of hooded detainees strapped to the floor of military aircraft for transfer from Afghanistan to the other side of the world. Photographs of caged detainees in the United States (US) Naval Base in Cuba, kneeling before soldiers, shackled, handcuffed, masked and blindfolded. Television images of orange-clad shackled detainees shuffling to interrogations, or being wheeled there on mobile stretchers. A hooded Iraqi detainee sitting on the sand, surrounded by barbed wire, clutching his four-year-old son.(2) And the photos from Abu Ghraib – a detainee, hooded, balanced on a box, arms outstretched, wires dangling from his hands with electric torture threatened; a naked man cowering in terror against the bars of a cell as soldiers threaten him with snarling dogs; and soldiers smiling, apparently confident of their impunity, over detainees forced into sexually humiliating poses. The United States of America (USA), and the world, will be haunted by these and other images for years to come, icons of a government's failure to put human rights at its heart.

The struggle against torture and ill-treatment by agents of the state requires absolute commitment and constant vigilance. It requires stringent adherence to safeguards. It demands a policy of zero tolerance. The US government has manifestly failed in this regard. At best, it set the conditions for torture and cruel, inhuman or degrading treatment by lowering safeguards and failing to respond adequately to allegations of abuse raised by Amnesty International and others from early in the "war on terror". At worst, it has authorized interrogation techniques which flouted the country's international obligation to reject torture and ill-treatment under any circumstances and at all times.

The US administration has said that it is "strongly committed" to working with non-governmental organizations "to improve compliance with international human rights standards."(3) President George W. Bush has recently said that the USA "support[s] the work of non-governmental organizations to end torture and assist the victims".(4) With this in mind, Amnesty International seeks to provide a framework in this report by which there can be a full accounting for any torture or cruel, inhuman or degrading treatment by US agents, and to prevent future violations of international law and standards.

Part One gives an overview, describing how the US administration has fallen into an historically familiar pattern of abuse to respond to the "new paradigm" it says has been set by the atrocities of 11 September 2001. The war mentality the government has adopted has not been matched with a commitment to the laws of war, and it has discarded fundamental human rights principles along the way. While there are undoubtedly complex challenges and threats in the current situation, the simple fact is that the USA has stepped onto a well-trodden path of violating basic rights in the name of national security or "military necessity".

Throughout history, torture has often occurred against those considered as "the other", and a second section of Part One traces the thread of dehumanization of detainees in US custody from Afghanistan to Abu Ghraib. A third section in Part One outlines the unequivocal and non-derogable international legal prohibition on torture and cruel, inhuman and degrading treatment. The final section stresses that respect for human rights is the route to security, as the US government itself claims, not the obstacle to security, as appears to be the administration's true belief if its detention and interrogation policies are the yardstick.

Part Two is entitled Agenda for Action, and begins with a reiteration of Amnesty International's call for a full commission of inquiry into all US "war on terror" detention and interrogation practices and policies. While the organization welcomes the recent official investigations that have taken place, it believes that a more comprehensive and genuinely independent inquiry is needed to ensure full accountability and non-repetition of abuse. This commission of experts must have all the necessary powers to carry out such an investigation.

The remainder of Part Two is structured around Amnesty International's 12-point Program for the Prevention of Torture by Agents of the State. The organization has been working against torture for more than three decades. In addition to its daily efforts against this most tenacious and pervasive of human rights violations, it has conducted three worldwide campaigns for the abolition of torture, launched in 1972, 1984 and 2000. The 12-Point Program that forms the basis of this report was adopted for the most recent of these campaigns and reflects Amnesty International's key findings on how best to prevent torture.

Under each of the 12 Points, Amnesty International illustrates how the USA has failed to meet basic human rights safeguards, thus opening the door to torture and ill-treatment. Detailed recommendations are given under each Point, with the compilation of more than 60 recommendations provided at the end of the report.

Point 1 of the 12-Point Program is "Condemn Torture". In other words, the highest authorities of every country should demonstrate their total opposition to torture and other cruel, inhuman or degrading treatment or punishment. They should condemn torture and ill-treatment unreservedly whenever they occur. They should make clear to all members of the police, military and other security forces that torture and ill-treatment will never be tolerated.

The report recalls the US administration's repeated claims that it is committed to what it calls the "non-negotiable demands of human dignity", and that it is leading the global struggle against torture. A government's condemnation of torture and other ill-treatment must mean what it says, however. The US administration's condemnation has been paper thin, as shown by the series of government memorandums that have come into the public domain since the Abu Ghraib scandal broke. These documents suggest that far from ensuring that the "war on terror" would be conducted without resort to human rights violations, the administration was discussing ways in which its agents might avoid the international prohibition on torture and cruel, inhuman or degrading treatment. During this time, the government's voice was notable by its absence in the public debate in the USA since 11 September 2001 about whether torture is ever an acceptable response to "terrorism". Such silence may also betray a less than absolute opposition to torture and ill-treatment.

In June 2004, in one of several statements by senior United Nations (UN) officials responding to the US "torture memos", Secretary General Kofi Annan emphasized the absolute prohibition on torture and other cruel, inhuman or degrading treatment. He stressed that the prohibition is binding on all states, "in all territories under their jurisdiction or control", and in times of war as well as peace. He added: "Nor is torture permissible when it is called something else. Euphemisms cannot be used to bypass legal obligations."(5)

There is a tendency, not least amongst the US military, to euphemize aspects of war and violence. Killed and maimed civilians become "collateral damage"; torture and cruel, inhuman or degrading treatment become "stress and duress" techniques; and "disappeared" prisoners become "ghost detainees". Euphemizing human rights violations threatens to promote tolerance of them. In similar vein, there has been a noticeable reluctance among senior members of the US administration to call what happened in Abu Ghraib torture, preferring the term "abuse". Members of an administration that has discussed how to push the boundaries of acceptable interrogation techniques and of how agents could avoid criminal liability for torture might display a particular reticence to call torture by its name.

This reticence, however, is also symptomatic of a tendency by the USA – notwithstanding its pivotal role in the adoption of the Universal Declaration of Human Rights and subsequent international human rights instruments – to reject for itself the standards it so often says it expects of others. The human rights violations which the US government has been so reluctant to call torture when committed by its own agents are annually described as such by the State Department when they occur in other countries. While the State Department reports are positive contributions to the global struggle for human rights, double standards have greatly undermined the credibility of the USA's global discourse on human rights.

The USA's "war on terror" policies show that the prohibition against torture and ill-treatment is not "non-negotiable" as far as the administration is concerned. This is what must change. If a government genuinely opposes torture and ill-treatment, it must act accordingly. From this simple proposition, all 11 other points of the 12-point Program for the Prevention of Torture by Agents of the State follow.

Impunity allows torture and ill-treatment to thrive. All allegations must be thoroughly investigated, including all deaths in custody (Point 6). Perpetrators of such human rights violations must be brought to justice, preferably in ordinary civilian courts rather than military tribunals as an emerging international consensus now recognizes (Point 7). At the same time, the necessary safeguards must be put and kept in place to prevent any recurrence of torture and ill-treatment. Secret detention must end immediately (Point 3). So too must the use of incommunicado detention, with lawyers, doctors, relatives, and independent monitors granted immediate and continuing access to and information about detainees, and with detainees brought before a judicial authority as soon as possible after arrest (Point 2). There must be a clear delineation between powers of interrogation and detention, with detention conditions fully meeting international standards. Vulnerable detainees, including children and women, should receive particular protections demanded by international law (Point 4). Coerced statements must not be admitted in any trials. Military commissions set up to try "war on terror" detainees, with the power to admit such statements, must be abandoned (Point 8).

Any victims of torture or ill-treatment are entitled to reparations, including compensation for the families of anyone who died as a result of such treatment in custody (Point 10). Training of anyone who comes into contact with detainees is essential, and must include relevant cultural awareness education as well as training in the international prohibition of torture and ill-treatment (Point 9). The numerous conditions the USA attached to its ratifications of international treaties prohibiting torture and other cruel, inhuman or degrading treatment should be withdrawn. It should ratify those treaties and protocols it has not yet ratified (Point 11). In accordance with international human rights law, international security cooperation must rule out the transfer of detainees in conditions or to places where they are at risk of torture or other cruel, inhuman or degrading treatment or punishment (Point 12). US laws must be amended, or reinterpreted, to reflect fully the absolute prohibition on torture and ill-treatment in international law and allow no loopholes, in peacetime, in war, and in the "war on terror," or for anyone, from the foot soldier to the President (Point 5).

On 11 September 2001, President Bush said that "America was targeted for attack because we're the brightest beacon for freedom and opportunity in the world. And no one will keep that light from shining."(6) Three years later, the catalogue of human rights violations alleged or known to have been committed by US agents in the "war on terror" tells a different story. Amnesty International urges the US government to adopt a fundamental change in direction and to ensure that all its policies and practices fully comply with international law. The core message of this report is that the prevention of torture and cruel, inhuman or degrading treatment is primarily a matter of political will.

A brief chronology 11 September 2001 – four US commercial airliners are hijacked. Two are crashed into the World Trade Center in New York, one into the Pentagon and one into a field in Pennsylvania. Almost 3,000 people are killed in this crime against humanity. 7 October 2001 – the USA leads military action against the Taleban government and members of the al-Qa'ida network in Afghanistan. 10/11 January 2002 – the first detainees are transferred from Afghanistan to the US Naval Base in Guantánamo Bay, Cuba, in conditions that amount to cruel, inhuman or degrading treatment. 7 February 2002 – the White House announces its decision that the Geneva Conventions do not apply to al-Qa'ida suspects captured in Afghanistan, and that neither they nor Taleban members would be eligible for prisoner of war status. June 2002 – Hamid Karzai appointed as President of interim Afghanistan administration. US forces continue to carry out military operations and detentions in Afghanistan to this day. 20 March 2003 – US-led Coalition forces attack Iraq. On 1 May 2003, President Bush announces that the main combat operations in Iraq are over. A major insurgency against the occupation develops. 28 April 2004 – photographs of torture and ill-treatment of Iraqi detainees by US soldiers in Abu Ghraib prison outside Baghdad are broadcast by CBS News and subsequently around the world. 22 June 2004 – the US administration releases several previously secret memorandums discussing "war on terror" detention and interrogation options "to set the record straight" following leaks. 28 June 2004 – the US Supreme Court rules that the US courts have jurisdiction over the Guantánamo detainees, hundreds of whom have already been held for more than two years without any judicial review, charge, trial or access to legal counsel or relatives. 2001-2004 – The US military has taken more than 50,000 people into custody during its military operations in Afghanistan and Iraq. In Afghanistan, the US has operated some 25 detention facilities, and in Iraq another 17. More than 750 people have been held in Guantánamo. The Pentagon states that 202 have been released or transferred, leaving "approximately 549" in the base by 22 September 2004. An unknown number of detainees have been held in undisclosed locations by the USA or transferred to the custody of other countries.

I. A familiar path to torture
The torture and ill-treatment of Iraqi detainees by US agents in Abu Ghraib prison was – due to a failure of human rights leadership at the highest levels of government – sadly predictable.

"It is a recurring theme in history", said a senior United Kingdom (UK) judge in a criticism of US "war on terror" detentions, "that in times of war, armed conflict, or perceived national danger, even liberal democracies adopt measures infringing human rights in ways that are wholly disproportionate to the crisis".(7) Certainly, a glimpse at the history of torture in the 20th century was enough to ring alarm bells following the crime against humanity that was committed in the USA on 11 September 2001. The situation contained some classic ingredients that would demand principled leadership if human rights were not to suffer in the wake of such an atrocity. In the mix was an elusive, ill-defined and demonized enemy; shortcomings in intelligence-gathering; an official interpretation of the situation as new, unique and requiring special measures; and an apocalyptic picture painted by government of a stark moral choice between "good and evil" faced by society and wider "civilization".

Amnesty International wrote to President Bush on 25 September 2001 reiterating its condemnation of the appalling crime of two weeks earlier and its support for efforts to bring the perpetrators to justice in accordance with international human rights standards. The organization urged the President to lead his government "to take every necessary human rights precaution in the pursuit of justice, rather than revenge, for the victims of this terrible crime."(8) The organization regrets that part of the USA's response to the atrocities has been to allow another chapter in the history of torture and cruel, inhuman and degrading treatment to open. Earlier chapters in this history would have been instructive.(9)

In the late 1960s, for example, the Brazilian state faced social unrest as well as violence from small urban guerrilla groups. In the government's view, both economic development and national security were under threat. The authorities took a number of draconian measures, none of which was open to judicial review. The one that had the most direct bearing on the practice of torture was the suspension of the right of habeas corpus for anyone charged with crimes against national security.(10) From 1968 to 1973, widespread torture became a feature of the government's campaign against "permanent subversion". On the other side of the continent, the coup in Chile on 11 September 1973 was followed by gross human rights violations. The Centrál Nacional de Informaciones (CNI) was the agency most frequently cited as responsible for torture. People detained by, or handed over to, the CNI for interrogation were usually taken to secret detention centres where they could be held incommunicado for up to 20 days. It was during this period that torture was used to obtain information, "confessions", or collaboration. Torture thrives on secrecy.

Also in 1973, faced with a security problem in Northern Ireland, the British government passed emergency legislation. Not only did this relax the rules of evidence for the admissibility of confessions, it also allowed the police to hold those suspected of politically motivated crimes incommunicado for up to three days, raised to seven the following year. In 1976 and 1977 there was a marked increase in allegations of torture and ill-treatment, just as the government was pressing the police for confessions to use in court. A significant factor in the rapid decline in police standards was the failure of government ministers and senior police officers to intervene with interrogators, directly and forcefully, to make it clear that assault and illegal coercion would not be tolerated. The security forces may also have taken the extension of powers granted to them at the expense of the rights of detainees as a signal that the government authorities would tolerate violence towards and coercion of detainees. Torture rears its head when the legal barriers against it are lowered.

From 1987, torture in Israel was effectively legalized. This was made possible because the government and the judiciary, along with much of Israeli society, accepted that the methods of physical and psychological pressure used by the security services were a legitimate means to combat "terrorism". Palestinians, Lebanese and other non-Israeli nationals were seen as "acceptable" victims of torture – and the methods were seen as "acceptable". Torture feeds on discrimination and fear.

Thus the US administration can be seen to have fallen into a familiar pattern since 11 September 2001. Although President Bush said that "this new paradigm – ushered in not by us, but by terrorists – requires new thinking in the law of war," whatever "new thinking" has been done within the administration, the result has been old abuses.(11) They include the denial of habeas corpus; the use of incommunicado and secret detention; a pattern of official commentary on the presumed guilt of detainees; the sanctioning of harsh interrogation techniques in the pursuit of "intelligence"; the blurring of the lines between powers of detention and interrogation; the setting up of military commissions which could admit coerced evidence; and a selective approach to international human rights and humanitarian law obligations. All contributed to conditions ripe for torture and ill-treatment.

The photographs of torture and ill-treatment of detainees in Abu Ghraib prison did not come out of the blue, but followed numerous allegations of abuse in Afghanistan and Guantánamo Bay raised with the US authorities over the previous two years by the International Committee of the Red Cross (ICRC), Amnesty International and others. When it suited the US government's aims in its build up to the invasion of Iraq, the administration cited Amnesty International's reports on torture in that country.(12) When the alleged abuse involved US agents, its response was denial and disregard for the organization's concerns.

In April 2002, Amnesty International wrote to the administration about allegations of ill-treatment of people in US custody in Afghanistan. It never received a reply to its questions and concerns.(13) Ten months before the Abu Ghraib revelations, the organization raised cases of alleged abuses in Iraq by US forces, including the case of Khreisan Khalis Aballey. This 39-year-old man was arrested by the US military at his home in Iraq on 30 April 2003 with his elderly father. According to the allegations, during his interrogation he was made to stand or kneel facing a wall for a week, hooded, and handcuffed tightly with plastic strips. At the same time a bright light was placed next to his hood and distorted music was playing the whole time. During all this period he was deprived of sleep, though he may have been unconscious for some periods. He reported that at one time a US soldier stamped on his foot and as a result one of his toenails was torn off. When, after seven days he was told he was to be released and told he could sit, he said that his leg was the size of a football. He continued to be held for two more days, apparently to allow his health to improve, and was released on 9 May 2003. His father, who was released at the same time, was held in the cell beside his son, where he could hear his son's voice and his screams. Amnesty International did not receive a response to its concerns on this and other cases.(14)

According to the Fay report, one of the military investigations into Abu Ghraib, when the ICRC made allegations of torture or cruel, inhuman or degrading treatment by US forces in 2003 and 2004, "their allegations were not believed, nor were they adequately investigated".(15) Impunity is the friend of torture.

A war mentality without commitment to the laws of war
Prior to 11 September 2001, the USA had "dealt with [terrorist] attacks as primarily a law enforcement matter".(16) This approach changed after the atrocities of that day. President Bush has said he decided that "we were going to war" the moment he heard that airliners had been crashed into the World Trade Center,(17) and early that afternoon he opened a video teleconference meeting with his principal advisers with the words "we're at war".(18) He has characterized the ensuing "war on terror" as a "monumental struggle of good versus evil".(19) The President has maintained this tone, including in speeches to military audiences in his role as Commander-in-Chief.(20)

A war mentality is dangerous for human rights when a government extends the war framework to cover areas that should appropriately be addressed by law enforcement measures, and even then claims that existing laws of war do not cover this "new paradigm". Amnesty International does not believe that the so-called "war on terror" mandates a new legal framework. The territories and the circumstances in which the confrontation with al-Qa'ida or others actually takes place determine the applicable legal regime, within the existing framework of international human rights and humanitarian law. The US administration's refusal to recognize this has fed its willingness to countenance the ill-treatment of detainees in the "war on terror".(21)

The global "war on terror" is described by US officials as a conflict of indeterminate but great length.(22) It is a "war" the end of which will presumably be determined, as has the fate of so many detainees, by executive decision. There will be no single event to signal its conclusion. President Bush declared one victory achieved on 1 May 2003 when, on the deck of an aircraft carrier off the coast of California, he announced that major combat operations in Iraq were over.(23) However, as the military itself has since pointed out, the US forces on the ground in Iraq "rapidly realized that the war had not ended. They were in a counter-insurgency operation with a complex, adaptive enemy that opposed the rule of law and ignored the Geneva Conventions".(24)

It is tragic that in the "war on terror", the USA has itself undermined the rule of law. Its selective disregard for the Geneva Conventions and international human rights law has contributed to torture and ill-treatment. The presidential decision that none of the detainees captured in the international armed conflict in Afghanistan would be eligible for prisoner of war status, and not to bring any such detainee before a "competent tribunal" to determine status as required by Article 5 of the Third Geneva Convention, contradicted the US Army's own doctrine.(25) The ICRC – the most authoritative body on the provisions of the Geneva Conventions – disagreed with the presidential decision.(26)

The decision to reject the applicability of the Geneva Conventions was in line with the many public messages sent by the administration that the "war on terror" would be waged according to new rules and that those captured during this global "war" could be treated differently. Detainees have even been categorized differently, only adding to the risk that they would be perceived by their guards or interrogators as deserving less than basic protections. Those taken into US custody have been variously classified, beyond previous US military doctrine, as "Enemy Combatant", "Under-privileged Enemy Combatant", "Security Internee", "Criminal Detainee", "Person Under US Forces Control", and "Low Level Enemy Combatant".(27) As the UN Special Rapporteur on torture recently pointed out, however, "although the status of detainees may remain unclear, there is no uncertainty as to the international obligations, standards and protections that apply to them, the prohibition of torture being applicable to all individuals without exception and discrimination, regardless of their legal status."(28) The ICRC stated in September 2004 that, based on its "decades of experience in visiting places of detention in vastly different, rapidly changing environments", the organization's consistent finding is that "only by determining and adhering to a clearly established legal framework does one prevent arbitrariness and abuse".(29)

The panel appointed in May 2004 by Secretary of Defense Donald Rumsfeld to review the Pentagon's detention operations (the Schlesinger Panel) pointed out that there was "a failure to plan for a major insurgency" in Iraq and "improvisation was the order of the day".(30) The Schlesinger and military inquiries have stressed that there was a serious under-resourcing of detention operations in Iraq which contributed to abuses. According to Schlesinger, in October 2003 Abu Ghraib, the largest of the US detention facilities in Iraq, had a detainee population of up to 7,000 and a guard force of about 90 personnel. A Schlesinger Panel member has said that the "extreme lack of resources [and] the policy failure at all levels to assure a clear and stable set of rules for treatment and interrogation further opened the door to abuse", adding that this situation was "compounded by inadequate training." (31) Clear policy and effective training become especially crucial at moments of high emotion and high pressure, which can be predicted to be part of any war – as soldiers react to their fellow colleagues being killed or wounded, and interrogators are put under pressure to gain intelligence about the enemy. There is surely responsibility at the highest levels of government – where the decision to go to war is taken – when there is a failure to plan for detention operations, or to ensure an appropriate response to evidence of torture by its troops.

The immediate response of President Bush and other officials to the torture photographs was to claim that the problem was restricted to Abu Ghraib and a few wayward soldiers. On 22 June 2004, after the leaking of earlier government memorandums relating to "war on terror" detention and interrogation options suggesting that torture and ill-treatment had been anticipated, the administration took the step of declassifying selected documents to "set the record straight". At a press briefing, the White House Counsel explained how after 11 September 2001, the US administration had had to ask questions such as "What is the legal status of individuals caught in this battle? How will they be treated? To what extent can those detained be questioned to attain information concerning possible future terrorist attacks? What are the rules?" He continued: "As we debated these questions, the President made clear that he was prepared to protect and defend the United States and its citizens, and he would do so vigorously, but as the documents we are releasing today show, that he would do so in a manner consistent with our nation's values and applicable law, including our treaty obligations..."(32) It was the same White House Counsel who two and a half years earlier had drafted a memorandum to President Bush suggesting that determining that the Geneva Conventions did not apply to those captured in Afghanistan would free up US interrogators and make their prosecution for war crimes less likely. (33) That memorandum was not one released by the administration. Indeed, at the 22 June press conference, the White House Counsel made clear that the administration's release of its documents "should not be viewed as setting any kind of precedent". It has kept to this line. Of 23 additional documents requested by the Senate Judiciary Committee, only four had been provided by the administration by 13 October 2004.(34)

If one were to single out one sentence from one of the declassified memorandums that calls into question the administration's stated commitment to its international legal obligations, it might be the following: "Of course, our values as a Nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment" (emphasis added).

No detainee can fall outside the prohibition on torture or cruel, inhuman or degrading treatment. To suggest otherwise, as this line does, points to a serious gap in a government's understanding of international law and indicates that it views fundamental human rights as privileges that can be granted, and therefore taken away, by the state. The sentence in question – repeated aloud by the White House Counsel at the June 2004 press briefing with no apparent recognition of the disturbing message contained in it – was in a memorandum signed by President Bush on 7 February 2002, classified as secret for 10 years, and distributed to the main office-holders in his administration.(35) According to the White House Counsel, this document is the "most important" of those released by the administration.

The White House, which maintains that the USA is "steadfastly committed to upholding the Geneva Conventions",(36) has "categorically reject[ed] any connection" between the decision to reject the application of the Geneva Conventions to detainees in Afghanistan and Guantánamo and the torture committed in Abu Ghraib prison in Iraq.(37) Yet its selective disregard for the Geneva Conventions has been part of a policy which has at best sown confusion about interrogation rules among its armed forces, and at worst given a green light to torture or other cruel, inhuman or degrading treatment. Official investigations have concluded that versions of interrogation techniques developed for use against detainees in Afghanistan and Guantánamo, unprotected by the Geneva Conventions, later emerged in Iraq, where the Conventions were held by the US Government to apply.

It is clear that the decision to reject the protections of the Geneva Conventions in the "war on terror" outside Iraq has infected official thinking in the USA. Following the publication of the Schlesinger report, for example, the ICRC pointed out that it contained "a number of inaccurate assertions, conclusions and recommendations" on the role of the ICRC and about the laws of armed conflict. (38) For example, the Schlesinger Panel suggests that the Fourth Geneva Convention is "not sufficiently robust and adequate" for the detention of "terrorist" suspects, reminiscent of the memorandum drafted by the White House Counsel for President Bush in January 2002 which characterized provisions of the Geneva Conventions as "quaint", "undefined" and "obsolete".(39) Secretary of Defense Rumsfeld echoed this more recently when he said "Some will say, well… in my view it is mental torture to do something that is inconvenient in a certain way for a detainee. Like standing up for a long period or some other thing that someone else might say is not in any way abusive or harmful. And there's no way to get everybody to agree to all that because when Geneva was prepared and agreed upon, it didn't go to that level of detail."(40)

In response to the findings of Secretary Rumsfeld's appointees on the Schlesinger Panel, the ICRC pointed out that the Fourth Geneva Convention allows internment for imperative security reasons, as well as prosecution, and does not prohibit interrogation. What it does prohibit – a prohibition apparently seen as an obstacle by the US administration – is inhumane treatment. The ICRC added that "the Panel's suggestion that because Geneva Convention IV would not be 'sufficiently robust' it could be waived by decision of individual State parties is a dangerous premise. To accept this argument would mean creating an exception that risks undermining all the humanitarian protections of the law."

Echoing President Bush's central premise in the "war on terror" – that this is a "new paradigm" that "requires new thinking in the law of war" – the Schlesinger Panel recommended that: The ICRC responded that the organization indeed "continues to initiate or participate in debates about how the Geneva Conventions can best be applied in contemporary situations of armed conflict". It continued: In similar vein, the most recent version (1992) of the US Army Intelligence Interrogation Field Manual (FM 34-52) states: The Schlesinger Panel noted that the Legal Advisor to the Chairman of the Joint Chiefs of Staff and "many service lawyers" had been among those who, in late 2001 and early 2002, had been concerned that rejecting the Geneva Conventions would "undermine the United States military culture which is based on a strict adherence to the law of war".(42) Their fears, it seems, have been realized.

Old arguments to justify torture: the concept of 'necessity'
In its first major report on torture three decades ago, Amnesty International wrote: "Those who consciously justify torture…rely essentially on the philosophic argument of a lesser evil for a greater good. They reinforce this with an appeal to the doctrine of necessity – the existential situation forces them to make a choice between two evils… The usual justification posits a situation where the 'good' people and the 'good' values are being threatened by persons who do not respect 'the rules of the game', but use ruthless, barbaric, and illegal means to achieve their 'evil' ends."(43)

The concept of "necessity" in relation to torture or ill-treatment has been raised in different ways by the US administration in the context of the "war on terror". Having taken the decision not to apply the Geneva Conventions to those held in Afghanistan and Guantánamo Bay – people whom he has described as "bad people" who "don't share the same values we share"(44) – President Bush sought to dispel concern about the treatment of detainees by saying that they would be treated "in a manner consistent with the principles of Geneva".(45) This has always been qualified, however, with a loophole for torture, namely the phrase "to the extent appropriate and consistent with military necessity".(46)

The legal concept of military necessity cannot lawfully be used to override the prohibition on torture. What happens, however, if a government willing to violate this principle perceives "military necessity" to require the torture or ill-treatment of a detainee, especially if it believes that there can be some detainees who "are not legally entitled to [humane] treatment"? One such detainee would appear to be Saudi national Mohammed al-Kahtani, held without charge or trial in Guantánamo on suspicion of being involved in the 11 September 2001 conspiracy and considered to be resistant to standard interrogation methods. An interrogation plan was approved for Mohammed al-Kahtani – described by Secretary Rumsfeld as "a very bad person"(47) – which "outlines the military necessity for doing this [harsh interrogation]".(48) This followed a request made on 11 October 2002 by military intelligence at Guantánamo for approval of techniques that went beyond normal army doctrine. Techniques including stress positions, sensory deprivation, hooding, stripping, and the use of dogs to inspire fear, were requested and were approved by Secretary Rumsfeld in December 2002 "as a matter of policy". Blanket approval was not given for other requested techniques such as death threats, exposure to cold weather or water, and inducing the perception of suffocation, but the Pentagon's General Counsel suggested that these were "legally available" and, according to a 15 January 2003 memorandum from Secretary Rumsfeld could be requested on a case-by-case basis, presumably if "military necessity" was considered to demand such techniques. (49) A 16 April 2003 memorandum signed by Secretary Rumsfeld, which is believed to remain in force, appears to allow for the possibility of these and any "additional interrogation techniques" to be requested on a case-by-case basis.(50)

The authorities have invoked "military necessity" to prevent the ICRC from meeting with certain detainees held in Guantánamo. In February 2002, following President Bush's decision to reject the application of the Geneva Conventions to those held in Guantánamo, the White House gave assurances that the ICRC would be able to visit all detainees in private.(51) According to leaked military documents, however, at a meeting with the Guantánamo authorities in October 2003, the ICRC raised the cases of four detainees who it had been unable to visit. It was informed by the camp commander that three of them were "off limits… due to military necessity".(52) Four months later, in a meeting on 2 February 2004, the ICRC was informed that it could still not see one of the detainees "because of military necessity".(53)

Under Article 143 of the Fourth Geneva Convention, ICRC visits to civilian internees may be denied "for reasons of imperative military necessity", but "only as an exceptional and temporary measure". In Iraq in January 2004, the US authorities invoked "military necessity" when they refused to grant the ICRC access to eight detainees held in Abu Ghraib. According to the Fay report, one of the eight detainees, a Syrian national, was at that time held in a tiny dark cell without windows, toilet or bedding. The use of "extended solitary confinement in dark and extremely small" cells was one of the torture techniques used under the government of Saddam Hussein that the USA cited in its build up to the invasion of Iraq.(54)

The inhumane treatment of this Syrian detainee, facilitated by the invocation of "military necessity", was not limited to solitary confinement in appalling conditions. Around 18 December 2003, he was abused and threatened with dogs. According to the military, there is a photograph of him kneeling on the floor with his hands tied behind his back, while an unmuzzled dog is snarling a few feet from his face. During an ICRC visit in mid-March 2004, the organization's delegates were again denied access to him, and eight other detainees, on the grounds of "military necessity". In January and March 2004, the ICRC questioned the "exceptional and temporary" nature of the denial of access. By the time of its March visit, the Syrian detainee had been under incommunicado interrogation for four months.(55)

Another variation on the concept of "necessity" in relation to torture arose in the now declassified government communications – including in an August 2002 Justice Department memorandum to the White House, and again in an April 2003 Pentagon report on "war on terror" interrogations. (56) Both contend that US agents accused of torture might evade criminal liability by arguing the defence of "necessity". For example, they state that "any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing [a terrorist] attack". This crude "lesser evil" approach echoes the moral argument behind the "torture warrant" system proposed by Harvard law professor Alan Dershowitz – the idea that judges could approve torture for use against detainees believed to have information about future terrorist attacks, part of a public debate that the administration has failed to challenge (see Point 1.4).

The administration's previously secret memorandums discussed ways that US agents might escape criminal liability if accused of torture and explicitly argued that the President, as Commander-in-Chief of the armed forces, could authorize torture. In suggesting very narrow definitions of torture and that US agents could also get away with employing cruel, inhuman and degrading interrogation techniques, the memorandums took a deeply regressive approach to international standards, even as the administration continued to portray itself in public as leading the global struggle against torture. Its approach represents an attack on fundamental values enshrined in international law developed over the past half century or more. It directly contravenes the position of the international community of nations that: The administration claimed that the declassified documents "were circulated among lawyers and some Washington policymakers only", as if that makes their contents acceptable, and that they "never made it to the hands of soldiers in the field, nor to the President". (58) However, the administration's lack of a clear and consistent message that the international prohibition on torture and cruel, inhuman or degrading treatment would be strictly respected at all times and under all circumstances, opened the door to abuse.

Moreover, General Paul Kern, who oversaw the Fay investigation, has said that the debate on interrogation policies within official circles "found its way into the hard drives of the computers that we found in [Abu Ghraib] prison". He pointed out that "those policies were being debated while we were asking soldiers to conduct interrogations. And so they were seeking to find the limits of their authority." At the same time, the same soldiers were under pressure to produce intelligence. "We need to be crisp and clear in our delivery of orders to these people", the General concluded, "so that they know what the rules are".(59)

The White House Counsel said that President Bush "has given no order or directive that would immunize from prosecution anyone engaged in conduct that constitutes torture. All interrogation techniques actually authorized have been carefully vetted, are lawful, and do not constitute torture".(60) Yet the administration has sanctioned interrogation techniques that, even if each of them did not amount to torture in themselves, have done so in combination, and in any event constituted cruel, inhuman or degrading treatment equally prohibited under international human rights and humanitarian law. By their action as well as inaction, the government set a climate in which torture was more likely to occur. Even today's limited knowledge of the role of the administration suggests, at the very least, a significant degree of executive "acquiescence" – to use the language of Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UN Convention against Torture) – in the torture and ill-treatment that has been alleged.

The memorandums have caused deep international concern, with senior UN officials seeing the need to reiterate the absolute prohibition on torture and ill-treatment. Referring to the US administration's documents, the UN High Commissioner for Human Rights has stressed: "There can be no doubt that the prohibition against torture and cruel, inhuman or degrading treatment or punishment is non-derogable under international law…Yet we find, remarkably, that questions continue to be raised about this clear dictate of international law, including at high levels of government".(61) The UN Special Rapporteur on torture has written: Not just a few 'bad apples'
By September 2004, four months after the Abu Ghraib photographs came to light, the administration's theory that the problem was restricted to Abu Ghraib and a few aberrant soldiers had been debunked. Indeed, on 8 September 2004, eight retired US generals and admirals wrote to President Bush noting that "no fewer than a hundred criminal, military, and administrative inquiries have been launched into apparently improper or unlawful US practices related on detention and interrogation. Given the range of individuals and locations involved in these reports, it is simply no longer possible to view these allegations as a few instances of an isolated problem".(63) A day after this letter, the Senate Armed Services Committee was told that there might have been as many as 100 "disappearances" in US custody in Iraq, prisoners hidden from the ICRC at the behest of the Central Intelligence Agency (CIA).(64) At least one of these detainees died in custody, one of numerous deaths in US detention facilities in Iraq and Afghanistan since the "war on terror" began. The death in US custody in Gardez in Afghanistan in March 2003 of a young Afghan soldier, 18-year-old Jamal Naseer, allegedly after he and seven other detainees were tortured over a two-week period, has only come to light in recent weeks and raises further questions about the real extent of the abuses and the adequacy of official investigations into them (see Point 6.2).

On 25 August 2004, the Fay report revealed that 54 military intelligence, military police, medical personnel and civilian contractors had "some degree of responsibility or complicity in the abuses that occurred at Abu Ghraib", including seven soldiers already charged. (65) It found "failures of leadership…, failures to follow our own policy, doctrine and regulations", as well as confusion over which interrogation techniques were allowed in which theatre of operation.(66) On 24 August, the Chairman of the Schlesinger Panel, former Secretary of Defense James Schlesinger, had revealed that there had been approximately 300 recorded cases of alleged abuse in Afghanistan, Guantánamo and Iraq, "many of them beyond Abu Ghraib. So the abuses were not limited to a few individuals".(67) Another of the Schlesinger Panel members, former Secretary of Defense Harold Brown, has suggested that a degree of responsibility for "failure to provide adequate resources to support the custodial and intelligence requirements throughout the theater, and for the confusion about permissible interrogation techniques extend[s] all the way up the chain of command to include the Joint Chiefs of Staff and the Office of the Secretary of Defense". (68)

The Schlesinger Panel, however, was not critical of the interrogation techniques per se, just of the failure to prevent their transfer from Afghanistan and Guantánamo to Iraq. Chairman Schlesinger claimed: "In the conditions of today, aggressive interrogation would seem essential", and "what constitutes 'humane treatment' lies in the eye of the beholder".(69) Any tolerance for abusive techniques on the part of the investigative body with the widest remit of the reviews conducted since the Abu Ghraib scandal, and the one promoted by the government as the most independent of these investigations, is cause for serious concern.

It was also clear that on the question of accountability the Schlesinger Panel took a limited view. Former Secretary of Defense Harold Brown has suggested that in the case of high-level administration officials, punishment was not an option and that the matter of their accountability rests with the electorate at election time.(70) James Schlesinger suggested that the resignation of the Secretary of Defense "would be a boon to all of America's enemies" and that "his conduct with regard to [the issue of interrogation policy] has been exemplary".(71) The other panel members, retired General Charles Horner and former member of Congress, Tillie Fowler, agreed. This was consistent with the position Tillie Fowler had taken in an interview before the panel had begun its work, in which she had made it clear that Secretary Rumsfeld was not to be the focus of their review. Referring to the Abu Ghraib revelations, she was quoted as saying: "The Secretary is an honest, decent, honourable man, who'd never condone this type of activity. This was not a tone set by the Secretary."(72) Yet in December 2002 Secretary Rumsfeld authorized stripping, isolation, hooding, stress positions, sensory deprivation, and the use of dogs in interrogations. In November 2003, he in effect authorized a "disappearance" by ordering military officials in Iraq to keep a detainee off any prison register (see Point 3.1). In international human rights terms, his conduct, and that of the administration as a whole, has been far from exemplary. Indeed, he and the administration have authorized human rights violations.

II. Human dignity denied: torture or ill-treatment of the 'other'
Moazzam Begg, a dual UK/Pakistan national, was abducted in January 2002 from Pakistan by US agents and taken to the US air force base in Bagram in Afghanistan where he claims to have been subjected to "pernicious threats of torture, actual vindictive torture and death threats – amongst other coercively employed interrogation techniques". He has alleged that he was interrogated "in an environment of generated fear, resonant with terrifying screams of fellow detainees facing similar methods. In this atmosphere of severe antipathy towards detainees was the compounded use of racially and religiously prejudicial taunts."(74)

On 7 October 2003, an Iraqi man, Amin Sa'id al-Sheikh, was arrested in Baghdad and taken to Abu Ghraib prison. The sworn statement he gave on 16 January 2004 to military investigators looking into allegations of abuse suggests that anti-Muslim sentiment was still running high among at least some US military personnel: Throughout history, torture has often occurred against those considered as the "other". The UN Committee against Torture has stated that "discrimination of any kind can create a climate in which torture and ill-treatment of the 'other' group subjected to intolerance and discriminatory treatment can more easily be accepted."(76) Even in regular internment facilities in Iraq, the ICRC noted a "widespread attitude of contempt" on the part of the US guards towards detainees. (77) The UN High Commissioner for Human Rights has reported that detainees in Iraq have even been humiliated upon release: "Among the examples given were that prisoners were released in the middle of the night, handcuffed, with Mickey Mouse drawn on their shirt…".(78)

Torture involves the dehumanization of the victim, the severing of all bonds of human sympathy between the torturer and the tortured. This process of dehumanization is made easier if the victim is from a despised social, political, religious or ethnic group. Discrimination paves the way for torture and ill-treatment by allowing the victim to be seen not as human but as an object, who can, therefore, be treated inhumanely.

Anti-Muslim sentiment increased in the USA in the wake of the atrocities of 11 September 2001. Amnesty International welcomed President Bush's early statements calling for citizens to respect Muslim and Middle Eastern members of their communities(79), but is concerned that the same message – that any form of retaliatory injustices would not be tolerated – does not appear to have been forcefully and directly transmitted to US law enforcement and military agencies. In November 2001, Amnesty International wrote to the US government raising allegations that immigration detainees arrested in the USA after 11 September were being subjected to more punitive conditions than before in some facilities, and that people of Muslim or Middle Eastern origin were being treated more harshly than other inmates. Reports included detainees being placed in solitary confinement and denied exercise; being required to wear full restraints, including leg-irons, during visits; being denied contact visits with families; being given an inadequate diet; and being denied personal possessions and copies of books in Arabic, including the Koran.(80) The subsequent Justice Department investigation confirmed such allegations, including of racial abuse of detainees.(81)

In its November 2001 memorandum, Amnesty International urged the US Government to stay fully committed to upholding principles of non-discrimination in the current challenging climate. It urged that "all precautions are taken to ensure that people are not arrested or detained or otherwise treated unfairly on grounds of their ethnic origin, race or religion."(82) The organization believes that the authorities have failed in this regard as they have taken the "war on terror" outside the US mainland. The absence of appropriate cultural training was part of the problem. The Fay report into Abu Ghraib found that "guard and interrogation personnel were not adequately trained or experienced and were certainly not well versed in the cultural understanding of the detainees".(83) Intelligence officers going to Guantánamo apparently had no cultural awareness training until at least a year after the detentions began.(84) One of Major General Antonio Taguba's recommendations following his investigation of US abuses in Iraq was that there should be an immediate deployment to Iraq of a mobile training team whose expertise should include "Arab cultural awareness".(85)

Colonel Henry Nelson, a US Air Force psychiatrist assigned to assist the Taguba investigation, concluded that among the factors contributing to the abuse was that soldiers sent to Iraq were immersed in Islamic culture for the first time and that "there is an association of Muslims with terrorism".(86) The US administration has played its part in this dangerous perception. The constant refrain of senior administration officials, including President Bush in his role as Commander-in-Chief of the armed forces, labelling detainees who have neither been charged with nor convicted of any offence as "terrorists", "killers", "dangerous", "the worst of a very bad lot", and "bad people", and holding them outside the protection of the law, always risked encouraging abuse.(87)

From Afghanistan to Abu Ghraib, via Guantánamo
Allegations of abuse by US forces in Afghanistan have been persistent. The Fay report confirmed that from December 2002 (there are also allegations of abuse from before then), "[US] interrogators in Afghanistan were removing clothing, isolating people for long periods of time, using stress positions, exploiting fear of dogs and implementing sleep and light deprivation."(88) The Schlesinger Panel noted that Special Operations Forces in Afghanistan had been implicated in "a range of abuses… similar in scope and magnitude to those found among conventional forces".(89) Amnesty International and others have raised allegations of abuse in Afghanistan with the US authorities, with little or no response.

Abdullah's arrest along with 33 others took place at 3am in a compound near Kandahar in Afghanistan on 18 March 2002. He told Amnesty International in October 2002 after his release that US forces broke down all the doors and took everybody outside. The detainees had their hands zip-tied behind their backs and were taken to Kandahar air base, where they were forced to lie on the gravel for several hours, their hands cuffed, now with metal handcuffs, behind their backs. Abdullah said that during this time he was kicked in the ribs and that he and all his fellow detainees were hooded and searched by dogs. They were subjected to forced shaving. He said that he was shaved of his entire facial and body hair by a woman. He was then put in a cage, under a tent, with about 14 others, including a boy of about 15. Some in the cage refused to eat because they did not want to have to use the toilet, a portable pot in the corner. Abdullah said that during interrogation, he was handcuffed, shackled and hooded, and that a female interrogator pulled and pushed him. He said that the cultural violations were the most traumatizing aspects of the treatment.

Two years later, an elderly Afghan man was arrested in his village by US marines in June 2004 and detained for three days. Noor Mohammad Lala alleged: Amnesty International has been told by the Afghanistan Independent Human Rights Commission of another elderly man who approached them after his release from US custody in 2004. At first he said that he was too ashamed to talk about it, but he later revealed that along with other detainees he had been stripped naked and kept in a container.

One of eight Afghan soldiers arrested by US Special Forces on 1 March 2003 has said that he and his fellow detainees were treated "like animals" when taken to the US base in Gardez. An investigation by the Crimes of War Project has revealed allegations by the detainees that they were subjected to torture and ill-treatment during their 17 days in custody, including repeated beatings, electric shocks and immersion in cold water. They were hooded and shackled during interrogations. One of the detainees, Jamal Naseer, died in custody (see Point 6.2).(91) Another Afghan national, Syed Nabi Siddiqi, has said that he was ill-treated during his 22-day detention in US custody in Gardez, Afghanistan, in July 2003. He says that he was blindfolded, kicked and beaten, and had his clothes removed: After Gardez, Syed Nabi Siddiqi said that he was flown to the US air base in Kandahar, where the ill-treatment continued, including when the soldiers "brought dogs close to us, they were biting at us". In a witness statement in 2004, former detainee Tarek Dergoul recalled his detention in Kandahar: Tarek Dergoul states that he was again stripped and given another full body search on arrival in Guantánamo, despite the fact that since leaving Kandahar he had been handcuffed, shackled and blindfolded the entire time. Swedish national Mehdi Ghezali has told Amnesty International that he and his fellow detainees were stripped, shaved of their facial and head hair and photographed before being transferred to Guantánamo. He says that they were also stripped and photographed on arrival in the naval base. He, like others, has described a punitive regime in Guantánamo that has shown little respect for human dignity. For example: Souvenir T-shirts, available for soldiers to purchase in the Navy Exchange shopping mall in Guantánamo perpetuate a view of "war on terror" detainees as less than human. One depicts a rat in a turban, orange jumpsuit and shackles, with the words Guantanamo Bay: Taliban Lodge around it. Another depicts six shackled rats in orange jumpsuits, surrounded by the caption Al Qaeda six-pack – Guantanamo Bay, Cuba, Home of the sand rat. Such "humour" takes on a different meaning when set against the experiences of real detainees. In a poem sent from his cell in Guantánamo to his brother in Kabul, Wazir Mohammed wrote, "I'm in a cage like an animal; No-one's asked me am I human or not".(95) Fellow detainee Sayed Abbasin told Amnesty International after his release in 2003 that the Guantánamo prison camp was "like a zoo". French detainee Nizar Sassi wrote of Guantánamo to his family: "If you want a definition of this place – you don't have the right to have rights".(96) The administration's position that the Guantánamo detainees – all foreign nationals – should be denied any opportunity to challenge the lawfulness of their detention led a US Supreme Court Justice to point out that US law at the Naval Base "even protect[s] the Cuban iguana".(97)

The first detainees to be taken to Guantánamo were not told where they were, and apparently thought they were "being taken to be shot", a situation exacerbated by the reddish colour of their jumpsuits, which "in their culture…is a sign that someone is about to be put to death".(98) The camp authorities considered whether to "continue not to tell them what is going on and keep them scared. ICRC says that they are very scared".(99) The authorities only agreed to consider telling the detainees where they were "after the first round of interrogations", an early sign of a blurring between detention conditions and interrogation techniques (see Point 4.1).(100)

In Iraq, foreign detainees were given wristbands marked "terrorist".(101) An Iraqi detainee has recalled how the US soldiers "used to beat up a prisoner who was from Syria and strip him all night. We heard him screaming all night".(102) It is not known if this was the Syrian national who was kept incommunicado "in a totally darkened cell measuring about 2 meters long and less than a meter across, devoid of any window, latrine or water tap, or bedding." On the door of the cell was the inscription "the Gollum" and a picture of this character from the film Lord of the Rings. (103) Other detainees were also reportedly given names of fictional non-human characters. According to a US Army reservist at Abu Ghraib, for example, there was a detainee with a deformed hand whom the US guards called "The Claw" and another with bulging eyes who was called "Froggy".(104) A US military lawyer later raised his concern about the use of nicknames chalked on cell doors by military guards in Abu Ghraib. He said that he was not aware of the torture and ill-treatment going on in the prison at the time he witnessed this nicknaming and so "I didn't recognize [its] significance".(105)

In Iraq, the allegations of abuse have not been restricted to Abu Ghraib. For example, three Iraqi nationals working for Reuters news agency have alleged that they were subjected to torture and cruel, inhuman or degrading treatment by US soldiers while held in military detention near Fallujah (see also Point 6.1). The three, Salem Ureibi, Ahmad Muhammad Hussein al-Badrani and Sattar Jabar al-Badrani, say they were held for three days in January 2004 and subjected to humiliation, religious taunts, sleep deprivation, hooding, kicking and beating, stress positions, loud music, forced physical exercises, and threats of transfer to Guantánamo.(106) The UN High Commissioner for Human Rights has cited reports by Iraqis that during house searches by Coalition forces in Iraq, the conduct of soldiers has been "considered humiliating, for example, when they send women outside the house in their nightgowns, or when they show disrespect for the Koran, throwing it on the floor or tearing it apart."(108) Local civilians have made similar complaints of cultural disrespect by US forces in Afghanistan.

Released detainees have described how, in the first weeks of the Guantánamo detentions from early January 2002, there was little official tolerance for the practice of Islam.(109) This was apparently improved under ICRC intervention.(110) The first commander of the Guantánamo prison camp was Brigadier General Rick Baccus. There was said to be tension between him and intelligence officials because he was seen as "soft" on the detainees by eventually distributing copies of the Koran, adjusting meal times for Ramadan, and allowing the ICRC to put up posters on the Geneva Conventions.(111) He has since been quoted as saying: "I was mislabelled as someone who coddled detainees. In fact, what we were doing was our mission professionally".(112) He was relieved of his post in October 2002, and Secretary Rumsfeld reportedly gave military intelligence control of the Guantánamo detainee operations, including the guards.(113) Major General Geoffrey Miller was appointed as commander of Guantánamo detentions and assumed command on 4 November 2002.(114) According to three released detainees, the regime changed around this time: Released Swedish detainee Mehdi Ghezali has described to Amnesty International the pain of "short shackling" in interrogations: "There was a ring attached to the floor. They chained your hands and feet to this ring. You had to sit chained with your arms between your legs from underneath. In this way, they could let you sit for hours". He has described harsh interrogations, including the manipulation of air conditioning to make interrogation rooms very cold or very hot. He said that during interrogations rap and heavy metal music was played loud, or sometimes loud un-tuned radio noise, which was "very unpleasant". (116) A recent report in the New York Times, based on interviews with people who have worked in Guantánamo, adds weight to such detainee allegations. It describes the debilitating effect on detainees of the alleged use of short-shackling, stripping, loud music, strobe lighting and temperature manipulation in prolonged interrogations.(117)

According to the military, the ICRC had "a serious concern with the treatment of the Koran" by military guards in Guantánamo, particularly in August 2003. Twenty detainees had told the ICRC that they had been forcibly shaved as punishment for "disturbances" that followed alleged disrespect towards the Koran. Major General Miller denied that the Koran had been deliberately disrespected or that anyone had been shaved as punishment.(118)

After some nine months of running the detention operation in Guantánamo, Major General Miller visited Iraq from 31 August to 9 September 2003 with a team of current and former Guantánamo personnel. His remit was to make recommendations on how to run the USA's detention operations in Iraq with a view to obtaining intelligence to counter the growing insurgency to the US-led occupation.(119) A central recommendation of his subsequent report was that the US authorities in Iraq should "[d]edicate and train a detention guard force subordinate to [military intelligence] that sets the conditions for the successful interrogation and exploitation of the internees/detainees" (see Point 4.1). The report asserted that "a significant improvement in actionable intelligence will be realized within thirty days".(120)

Brigadier General Janis Karpinski, who was in charge of Abu Ghraib prison before being suspended from duty after the torture evidence became public, has claimed that Major General Miller told her of his intention to "Gitmo-ize the confinement operation" in Iraq:(121) Soon after Major General Miller's mission to Iraq, the ICRC found a regime in Abu Ghraib in which some detainees were being made "to earn" their right to humane treatment. The organization reported that during a visit to the prison in mid-October 2003 it witnessed the US practice of keeping detainees "completely naked in totally empty concrete cells and in total darkness". The organization reported that it was told by a military intelligence officer that this was "part of the process" – a process which the ICRC said "appeared to be a give-and-take policy whereby persons deprived of their liberty were 'drip-fed' with new items (clothing, bedding, hygiene articles, lit cell, etc.) in exchange for their 'co-operation'."(123)

Interrogation techniques with a discriminatory resonance
On 2 December 2002, a month after Major General Miller had begun his posting at Guantánamo Bay, Secretary Rumsfeld approved a number of interrogation techniques for use at the Naval Base, including hooding, sensory deprivation, isolation and stress positions.(124) Some of the techniques – such as forced shaving of facial and head hair, stripping, the use of dogs to inspire fear – although potentially humiliating, painful or frightening for anyone, can have particular resonance for Muslim detainees.(125)

After six weeks, Secretary Rumsfeld rescinded his authorization that such techniques could be used at the discretion of the Guantánamo authorities. In April 2003, he signed another memorandum, authorizing techniques which included isolation, environmental manipulation, and sleep adjustment. However, Secretary Rumsfeld reserved the right to authorize personally any "additional interrogation techniques". Attached to the memorandum were guidelines formulated by the Pentagon Working Group and which included the reference, "it is important that interrogators be provided reasonable latitude to vary techniques depending on the detainee's culture…", a dangerous instruction if any religious intolerance, racism, or xenophobia was present within the military.

Removal of religious items
Secretary Rumsfeld approved the removal of religious items as an interrogation technique. On this question, the legal advice he received was that if these were US citizens, the removal of such materials would raise questions of constitutionality, but "such is not the case with [these] detainees", all foreign nationals.(126) The USA acknowledges that the use of this interrogation technique, known as "incentive or removal", may cause international tension because of disagreement over the USA's labelling of detainees as "enemy combatants" unprotected by provisions of the Geneva Conventions. The military authorities note of this technique, approved again by Secretary Rumsfeld in April 2003, that: "Other nations that believe that detainees are entitled to POW protections may consider that provision and retention of religious items (e.g., the Koran) are protected under international law".(127)

The US government itself criticizes such practices in other countries. For example in its human rights report on Syria in 2004, under the section on torture and other cruel, inhuman or degrading treatment, the US State Department noted: "Some former detainees reported that the Government prohibited reading materials, even the Koran, for political prisoners."(128) The US Army interrogation training manual, FM 34-52, lists various examples of mental torture. It includes: "Threatening or implying that other rights guaranteed by the [Geneva Conventions] will not be provided unless cooperation is forthcoming".

Use of dogs
The Fay report found that "interrogations at Abu Ghraib were also influenced by several documents that spoke of exploiting the Arab fear of dogs".(129) Major General George Fay has referred to a set of photographs from the prison depicting military intelligence personnel "encouraging" military police guards to "use the dogs to soften up a particular detainee who was a high-value detainee".(130)

The use of dogs to "induce stress" was one of the interrogation techniques authorized by Secretary Rumsfeld in December 2002 for use in Guantánamo Bay, and their use has been alleged in Afghanistan, and later in Iraq. The Fay report found that: According to Colonel Thomas Pappas, who was in charge of interrogations at Abu Ghraib from 19 November 2003, Major General Miller told him that military working dogs were used at Guantánamo and that they were effective in setting the atmosphere for interrogations.(131) Major General Miller has denied this, claiming that he only said that dogs help to provide a controlled atmosphere in a detention facility.(132) What is beyond doubt is that the use of dogs "to induce stress" during interrogations in Guantánamo has been authorised by Secretary for Defence Rumsfeld. It seems that the technique may still be used if he personally authorizes it in any particular case. It is one of the techniques listed in the final report of the Pentagon Working Group, which recommended its use in "strategic interrogation facilities", including Guantánamo (see Point 1.2).

Interviewed for the Taguba investigation, a soldier from the 229th Military Police Company deployed to Abu Ghraib prison in Iraq recalled an incident involving a military intelligence (MI) officer and a military dog (K-9) handler: The Taguba report found that the "intentional abuse of detainees" in Abu Ghraib included "using military working dogs (without muzzles) to intimidate and frighten detainees, and in at least one case biting and severely injuring a detainee". On 16 January 2004, Amin Sa'id al-Sheikh, an Abu Ghraib detainee told military investigators that sometimes guards "hang me to the door allowing the dogs to bite me". (134) Another detainee, Ballendia, has said that he was taken from his cell during the night and sent into a hallway handcuffed: "They sent the dogs towards me. I was scared… The bite from the first dog caused me to have 12 stitches from the doctor of my left leg as a result I lost a lot of blood." (135) Another Iraqi detainee in Abu Ghraib recalled to military investigators: "I saw also in Room #5 they brought the dogs. [Guard X] brought the dogs and they bit [the detainee] in the right and left leg. He was from Iran and they started beating him up in the main hallway of the prison". (136) The Fay report found allegations of a competition between two military dog-handlers to see if they could make detainees defecate out of fear of the dogs. One of the handlers allegedly revealed that they had already made some detainees urinate, "so they appeared to be raising the competition", according to the Fay report.

Use of female interrogators
Released Swedish detainee Mehdi Ghezali has alleged to Amnesty International that women were used to "degrade us and our faith".(137) Amnesty International has received other allegations that detainees in the Naval Base have been subjected to sexual humiliation targeted at their Muslim sensitivities. For example, a non-detainee source recently told the organization that during Ramadan in 2002, female military personnel attempted to sexually arouse detainees. In one case, it is alleged, the detainee broke down in distress when he was returned to his cell and prayed for forgiveness for having had sexual feelings.(138) In another case, it is alleged, a Yemeni detainee was subjected to sexual insults during interrogation, including repeated and graphic questions about whether his first sexual experience had been with a male relative. According to three UK detainees released from Guantánamo: The Pentagon has acknowledged that, at least between December 2002 and January 2003, female interrogators were used in Guantánamo to "induce stress" in the male Muslim detainees.(140) However, according to the authorities, "the only incident of misbehaviour by an interrogator [at Guantánamo] was a female interrogator who went into the room to interrogate a detainee, took off her uniform blouse, had her T-shirt on, sat on the detainee's lap as part of her interrogation technique, and began to run her hands through his hair… She was suspended from duties for 30 days". (141)

In May 2004, in response to a question about the fact that the use of female guards can offend the religious or cultural sensitivities of male Muslim detainees, Porter Goss, then a member of the House of Representatives, reportedly responded: "My basic reaction to that was, 'Gee, you're breaking my heart, and maybe next time you start shooting at Americans, or blowing up Americans, you want to think about that'." Porter Goss also reportedly claimed that there "was no calculated effort" to have female military personnel in Guantánamo, contradicting the Pentagon's admission.(142) In August 2004, President Bush nominated Porter Goss to be the new Director of the CIA (following George Tenet's resignation). The Senate confirmed the nomination, and Porter Goss was sworn in as CIA Director on 24 September 2004.

Forced nudity
Another of the interrogation techniques Secretary Rumsfeld approved in December 2002 for use in Guantánamo was "removal of clothing". The legal advice which he received before this authorization was that stripping was permissible "so long as it is not done to punish or to cause harm, as there is a legitimate governmental objective to obtain information".(143) Forced stripping for the sake of "obtaining information" clearly constitutes at least degrading treatment, which is prohibited in all circumstances under international law. The Fay report into Abu Ghraib noted that "removal of clothing for both [military intelligence] and [military police] objectives was authorized, approved, and employed in Afghanistan and GTMO." (144)

While forced nudity of detainees is far from being a new technique, and can be humiliating to any detainee of any nationality or culture, it can be particularly shaming in Muslim culture. Two men who were in Bagram air base in 2002 before being transferred to Guantánamo alleged that they were forced to strip naked in the presence of female soldiers during medical examinations and showers. One of them, Parkhudin, who has alleged that his hands were chained to the ceiling for eight of the 10 days he spent in isolation in Bagram, said that the other acts of torture or ill-treatment "don't matter, but we are very angry about this (stripping)".(145) Another released prisoner said that female soldiers had watched male prisoners taking showers and undergoing intimate body searches at Bagram air base: "We don't know if it's medical or if they were very proud of themselves. But if it was medical, why were they taking our clothes off in front of the women? We are Afghans, not Americans."(146) Another Afghan man said after his release from US custody in Afghanistan on 19 April 2004 that he was photographed nude in detention: "I'm 50 years old, and no one has ever taken my clothes. It was a very hard moment for me. It was death for me".(147)

The Fay investigation found that in Abu Ghraib, "removal of clothing was employed routinely and with the belief that it was not abuse".(148) It found that "male detainees were naked in the presence of female Soldiers. Many of the Soldiers who witnessed the nakedness were told that this was an accepted practice. Under the circumstances, however, the nakedness was clearly degrading and humiliating." Military intelligence interrogators, the report said, "started directing nakedness at Abu Ghraib as early as 16 September 2003 to humiliate and break down detainees. MPs would also sometimes discipline detainees by taking away clothing and putting detainees in cells naked."

The Taguba report notes that the abuse of prisoners was not just committed by military police guards, but also by members of military intelligence. The report referred to the specific example that "on 24 November 2003, SPC Luciana Spencer, 205th MI Brigade, sought to degrade a detainee by having him strip and returned to cell naked". One of the women soldiers charged in the Abu Ghraib crimes has explained her role: "Because I was a female and in the Muslim culture it's very embarrassing or humiliating to be naked in front of another female, especially if it's an American." (149) Another woman soldier has recalled that she was asked by a plainclothes US official in Abu Ghraib to be present when a male detainee was in the shower because "he'll feel more humiliated if there's a female present".(150)

The Fay report emphasized the link between what happened in Abu Ghraib and the operations in Afghanistan, Guantánamo and the wider "global war on terror" (GWOT): If the use of nudity contributed to an escalating dehumanization of detainees in Iraq, there is no reason to think that the same has not been the case elsewhere in the "war on terror".

From stripping to sexual assault
Forced nudity used to degrade and humiliate can easily be a prelude to more severe or wider torture or ill-treatment. On 17 January 2004 in Iraq, Mustafa, an Abu Ghraib detainee, told military investigators that he was stripped and kept naked for seven days, during which time the guards "were bringing a group of people to watch me naked." He alleged that another detainee was stripped and "they put wire up his ass and they started taking pictures of him".(152) On 20 January 2004, another Abu Ghraib detainee, Haidar, told investigators that he had been stripped, hooded, ordered to masturbate in front of a female US soldier, and piled up with five other naked detainees. He said that the soldiers were: Haidar was released without charge or trial in mid-April 2004. He recalled the torture and humiliation he said he had undergone. He said that when "the interpreter told us to strip. We told him: 'You are Egyptian, and you are a Muslim. You know that as Muslims we can't do that.' When we refused to take off our clothes, they beat us and tore our clothes off with a blade." The Pentagon Working Group report of April 2003 states that removal of clothing as an interrogation technique means: "Potential removal of all clothing; removal to be done by military police if not agreed to by the subject. Creating a feeling of helplessness and dependence".(154) In May 2004, Haidar said that the shame of what happened to him in custody is so deep that he felt that he could not move back to his old neighbourhood. (155)

The Taguba report found that the "sadistic, blatant and wanton criminal abuse" of detainees in Abu Ghraib included "forcing groups of male detainees to masturbate themselves while being photographed and videotaped; videotaping and photographing naked male and female detainees; writing 'I am a Rapest' (sic) on the leg of a detainee alleged to have forcibly raped a 15-year-old fellow detainee, and then photographing him naked; forcibly arranging detainees in various sexually explicit positions for photographing; forcing naked male detainees to wear women's underwear; a male MP guard having sex with a female detainee; and arranging naked male detainees in a pile and then jumping on them".(156)

The Fay report found, in Abu Ghraib, "an alleged rape committed by a US translator and observed by a female Soldier, and the alleged sexual assault of an unknown female".(157) An Abu Ghraib detainee has alleged that a fellow Iraqi detainee was sodomized with a phosphoric light, and that a child detainee was raped. There is reported to be a videotape, apparently made by US personnel, of Iraqi guards raping young boys.(158)

A male Abu Ghraib detainee made a statement on 21 January 2004 which included the following allegations: The Schlesinger report concluded that the torture and ill-treatment depicted in the Abu Ghraib photographs were the result of "freelance activities" on the part of a few personnel on the "night shift" at the prison.(160) At the same time, however, both the Schlesinger Panel and the Fay investigation found more widespread abuses not caught on film, and various prisoner statements indicate that the cruelty cut across shifts. For example Abu Ghraib detainee Nori gave a sworn statement to military investigators on 17 January 2004. His (translated) allegations included the following: Similarly, fellow detainee Thaar said that he was held in solitary confinement "for 67 days of suffering and little to eat".(162) On 18 January 2004, Abu Ghraib detainee Kasim gave military investigators a statement in which he recalled that: In August 2003, Secretary Rumsfeld allegedly approved the expansion of a secret operation – a "special-access program" (SAP) – originally for use against alleged al-Qa'ida detainees detained in the "war on terror", to prisoners incarcerated in Iraq in the growing insurgency there. The secret tactics, it is stated, allowed for sexual humiliation and physical coercion as interrogation tactics.(164) The Department of Defense issued a general denial of the detailed allegations, characterizing the report in which they first appeared as "outlandish, conspiratorial, and filled with error and anonymous conjecture".(165) The CIA also issued a three-sentence denial, saying that the allegations were "fundamentally wrong" and that there "was no DoD/CIA program to abuse and humiliate Iraqi prisoners".(166) Seymour Hersh, who reported the allegations, is standing by them.(167) He has alleged that the SAP is still active.(168)

The Fay report also concluded that "no policy, directive or doctrine directly or indirectly caused violent or sexual abuse." However, it also found that "the existence of confusing and inconsistent interrogation technique policies", including those for use in Afghanistan and Guantánamo, "contributed to the belief that additional interrogation techniques were condoned in order to gain intelligence". It found that "what started as nakedness and humiliation, stress and physical training (exercise)" – stripping and stress positions, for example, were techniques approved by the administration in Afghanistan and Guantánamo – "carried over into sexual and physical assaults by a small group of morally corrupt and unsupervised Soldiers and civilians".(169) Contrary to what it stated, therefore, the Fay report found at least an indirect link between policy and abuse.

Moreover, three months before Seymour Hersh's original allegations were made, the ICRC in Iraq complained to the US authorities. According to its leaked February 2004 report: The ICRC wrote that detainees suspected of security offences or deemed to have an intelligence value were at "high risk of being subjected to a variety of harsh treatments ranging from insults, threats and humiliations to both physical and psychological coercion, which in some cases was tantamount to torture". The techniques found by the ICRC included acts of physical force and sexual humiliation.(170) Asked whether he agreed with the ICRC's conclusion that "coercive practices such as holding prisoners naked for extended periods of time" were used "in a systematic way as part of the military intelligence process at Abu Ghraib", Major General Antonio Taguba replied that he did.(171)

In his May 2004 report, Seymour Hersh alleged that "the notion that Arabs are particularly vulnerable to sexual humiliation became a talking point among pro-war Washington conservatives in the months before the March, 2003 invasion of Iraq." (172) It is said that a book frequently cited in support of this notion was The Arab Mind by Raphael Patai, which includes a chapter on "The realm of sex".(173) On homosexuality in Arab culture, Patai wrote: "acceptance of the role of the passive homosexual is considered extremely degrading and shameful because it casts the man or youth into a submissive, feminine role", and on masturbation, "whoever masturbates… evinces [proves] his inability to perform the active sex act, and thus exposes himself to contempt".(174) A 2001 edition of the book contains a foreword by the director of Middle East Studies at the US Army John F. Kennedy Special Warfare Center and School at Fort Bragg, North Carolina, who states: "At the institution where I teach military affairs, 'The Arab Mind' forms the basis of my cultural instruction… Over the past 12 years I have also briefed hundreds of military teams being deployed to the Middle East." (175) The JFK Special Warfare Center is responsible for the Army's special operations training and doctrine.

The right to be treated with humanity
Respect for human dignity and freedom from discrimination are at the heart of international human rights and humanitarian law. For example, the "fundamental guarantees" of Article 75 of Additional Protocol 1 to the Geneva Conventions, recognized by the USA as reflecting customary international law, prohibit torture, indecent assault, and humiliating or degrading treatment of any kind, discrimination of any kind, including on the basis of colour, race, nationality and religion.(176) Article 75 expressly applies to military or civilian agents. Article 10.1 of the International Covenant on Civil and Political Rights (ICCPR) stipulates that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person". According to the Human Rights Committee, this requirement is "a fundamental and universally applicable rule" and "a norm of general international law not subject to derogation". According to the Committee: The USA has repeatedly declared its commitment to human dignity. Indeed, the National Security Strategy mentions this phrase no less than seven times in its 31 pages, and devotes an entire chapter to promising that the USA will "stand firmly for the non-negotiable demands of human dignity". In all three of his State of the Union addresses, as well as in his inaugural speech, President Bush asserted that the USA was founded upon and is dedicated to the cause of human dignity. It was a theme of his speech to the UN General Assembly on 21 September 2004. In a statement three months earlier to mark the UN International Day in Support of Victims of Torture, the President said that the "non-negotiable demands of human dignity must be protected without reference to race, gender, creed, or nationality. Freedom from torture is an inalienable human right, and we are committed to building a world where human rights are respected and protected by the rule of law."(178) The USA's detention and interrogation policies in the "war on terror" have left such words ringing hollow.

III. Coercive interrogations and international law
Do the interrogation techniques suggested by the administration's declassified documents, or those actually approved and practiced by the USA in Guantánamo Bay, Afghanistan, Iraq and elsewhere constitute torture or cruel, inhuman or degrading treatment (ill-treatment) under international law? In fact, it does not matter whether particular practices are described as torture on the one hand or cruel, inhuman or degrading treatment on the other. All forms of torture and ill-treatment are strictly and equally prohibited in all circumstances. For instance, the International Covenant on Civil and Political Rights (ICCPR) prohibits both torture and ill-treatment even "[i]n time of public emergency which threatens the life of the nation."(180)

International humanitarian law, which covers international and non-international armed conflict, similarly prohibits not only torture but also any other ill-treatment. Thus, for instance, according to the Third Geneva Convention, The Fourth Geneva Convention, which regulates the treatment of civilians under occupation or otherwise under the power of a party to a conflict similarly provides that "No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties." (182)

Similarly stringent provisions apply to non-international armed conflicts. Article 3 common to all four Geneva Conventions and relating to armed conflicts not of an international character provides the following: This prohibition exists "without distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria". In its August 2004 report on the attacks of 11 September 2001, the bi-partisan National Commission on Terrorist Attacks Upon the United States (also known as the 9-11 Commission) recommended that: The International Court of Justice has determined that the rules in common Article 3 "constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court's opinion, reflect what the Court in 1949 called 'elementary considerations of humanity'".(185) The International Criminal Tribunal for the former Yugoslavia (ICTY) reiterated that determination, adding that common Article 3 is "applicable to armed conflicts in general" (emphasis added). (186)

The duty of a state – any state – regarding its treatment of detainees – any detainees – under international law may be summed up in one short sentence: "They shall at all times be humanely treated".(187) It is here that the international community has created, through treaty and custom, an obligation that states can never renounce, and a line that must never be crossed.(188) The ICTY has emphasized that, Nor is "humane treatment" or its corollary, the prohibition of torture and cruel, inhuman or degrading treatment or punishment, a vague notion open to all kind of interpretations, as the US administration's legal memorandums suggest. Some elements of humane treatment are spelt out in the treaties themselves. These include conditions of detention that "shall in no case be prejudicial to their health," "minimum cubic space," proper "bedding and blankets," "conditions of food and hygiene which will be sufficient to keep them in good health," "respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs," protection "against all acts of violence or threats thereof and against insults and public curiosity", and more.

In addition, UN bodies have adopted a series of instruments over the past half century specifying in detail the conditions under which detainees and prisoners must be held. These include the Standard Minimum Rules for the Treatment of Prisoners,(190) the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,(191) and the Basic Principles for the Treatment of Prisoners.(192) UN and regional human rights monitoring bodies and courts have further clarified the contents of this legal requirement.

Not a single one of these treaties, instruments, human rights monitoring bodies, regional human rights courts, commissions and other international or regional bodies has ever condoned either acts of torture or any form of cruel, inhuman or degrading treatment or punishment in any circumstances.

Some US officials may contend that some of the interrogation methods outlined in the various government memorandums, or used in practice by US agents, if applied in isolation, for a short period or in mild form, may not cause "severe pain or suffering, whether physical or mental" as provided in most international definitions of torture. However, there is no doubt that interrogation methods such as "Using detainees individual phobias (such as fear of dogs) to induce stress," "Removal of clothing" or "The use of stress positions" constitute, at the very least, cruel, inhuman or degrading treatment and violate the right to be treated with humanity and with respect for the inherent dignity of the human person. Such interrogation methods cannot in any way be construed as "humane treatment" of detainees or as the absence of "any… form of coercion" as strictly and absolutely required by international law.

Curiously, the orders by Secretary for Defense Rumsfeld approving these and similarly humiliating or painful interrogation methods (whether as a matter of policy or "only" in individual cases subject to his approval) included also the instruction to "continue the humane treatment of detainees."(193) This indicates that the administration's non-legal notion of "humane treatment" has little to do with the international legal requirement of humane treatment and, unlike the latter, provides little or no safeguards against physical and mental abuse of detainees. The US administration has explicitly stated that it does not consider itself bound by any international legal requirements regarding its treatment of "terrorist" suspects (see Point 5).

Torture and ill-treatment as international crimes
Both torture and other forms of ill-treatment that are prohibited at all times and in all circumstances, such as "inhuman treatment" "cruel treatment" and "wilfully causing great suffering or serious injury to body or health," are "grave breaches" of the Geneva Conventions, that is, universally punishable crimes.(194) Similarly, they have been deemed war crimes and crimes against humanity under all ad hoc international criminal tribunals established so far. None of these tribunals has, to date, accepted any justifications for torture or other ill-treatment in any circumstances or found that torturing or otherwise ill-treating certain persons is not a crime. Torture and other ill-treatment are also war crimes and crimes against humanity under the Rome Statute of the International Criminal Court.(195)

International law not only allows states to bring to justice in their own courts persons suspected of having committed international crimes such as torture and ill-treatment, but in certain, notable instances requires them to do so. This is true even where the suspects are neither nationals nor residents of the state concerned, and the crime did not take place in its territory. Thus each of the 192 state parties to the Geneva Conventions, including the USA, is required to search for persons suspected of grave breaches and do one of the following: (1) bring such persons before its own courts, (2) extradite such persons to any state party willing to do so or (3) surrender such persons to an international criminal court with jurisdiction to try persons for these crimes. A similar duty exists under the UN Convention against Torture. In addition, states may exercise this principle – universal jurisdiction – as a matter of customary international law.

International crimes apply to those physically committing them, but also to those who order that they be committed, and to the superiors – both military and civilian – of perpetrators who tolerate or fail to act reasonably to prevent or repress the criminal acts. A Trial Chamber of the ICTY held that: "[t]he criminal responsibility of commanders for the unlawful conduct of their subordinates is a very well settled norm of customary and conventional international law."(196) This principle has been equally recognized in various judicial decisions since the Second World War, including cases decided by US judges, for example: in the cases of Yamashita,(197) Von Leeb (German High Command Case)(198) and List (Hostages Case),(199) as well as by further jurisprudence of the ICTY.

Criminal liability is not limited to soldiers – any "superior" is responsible for international crimes committed during activities that were within his or her "effective responsibility and control."(200) Nor does international law accept any limits as to how high the rank of civilian superiors who may be prosecuted is. The Rome Statute, While the USA has rejected the ICC Statute (see Point 11.6), the statutes of both the ICTY and the International Criminal Tribunal for Rwanda, which the USA strongly supported, contain provisions with exactly the same effect.(202)

In the context of the USA's use of civilian interrogators, it is also important to note that international law provides that, in certain circumstances, even a crime committed by a single private individual – when he or she has acted as a de facto organ of the state – may generate individual criminal responsibility for the military commanders and those who effectively act as military commanders. The Appeals Chamber of the ICTY stated: IV. Human rights: the route to security, not the obstacle to it
The USA and other countries face serious security threats, including those posed by groups determined to pursue their fight by abusing fundamental human rights without restraint. Governments have a duty to protect people's rights from such threats. In so doing, however, governments must not lose sight of other human rights and of their obligation to respect them. The UN High Commissioner for Human Rights has said: To flout the rule of law, to torture, to humiliate, is to undermine long-term security, even if there are perceived gains along the way. The brother of then Guantánamo detainee Wazir Mohammed told Amnesty International in Kabul in July 2003 that the USA's treatment of the prisoners "makes the reputation of the US bad amongst the people of Afghanistan". One of the alleged victims of the Abu Ghraib torture, asked after his release about the effect of his experience on his view of the occupation of Iraq, responded: "What would you do if I occupied your country, tortured people and violated all the laws of your country? Would you resist?"(206) In similar vein, a woman allegedly subjected to torture and cruel, inhuman and degrading treatment in US custody in Iraq has said that her ordeal has made her "hate [the Americans]".(207) The USA's tactics against the insurgency in Iraq drew the following response from a young Iraqi man in Fallujah: "For Fallujans it is a shame to have foreigners break down their doors. It is a shame for them to have foreigners stop and search their women. It is a shame for the foreigners to put a bag over their heads, to make a man lie on the ground with your shoe on his neck. This is a great shame, you understand? …The Americans provoke the people. They don't respect the people."(208)

The US government itself has said that "states which demonstrate a high degree of respect for human rights are likeliest to contribute to international security and well-being".(209) In his address to the UN General Assembly on 21 September 2004, President Bush said that "the security of our world is found in the advancing rights of mankind".(210) The USA's National Strategy for Combating Terrorism stresses that creating a world in which principles based on human dignity, including the rule of law, "are embraced as standards, not exceptions, will be the best antidote to the spread of terrorism".(211)

The USA was one of the prime movers behind the adoption in 1948 of the Universal Declaration of Human Rights (UDHR). This visionary document, from which today's body of international human rights law and standards has developed, emerged in response to a time in which "disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind". It recognizes that respect for "the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." The USA claims to remain committed to the principles of the Universal Declaration: Article 5 of the UDHR states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Fifty-four years after that unequivocal statement was adopted by the international community, a memorandum was written in the US Justice Department advising on ways precisely to undermine this prohibition. The April 2003 report of the Pentagon Working Group noted that the UDHR "is not itself binding or enforceable against the United States". A legal memorandum recommending approval of interrogation techniques that the UN Committee against Torture has said violate the prohibition on torture or cruel, inhuman or degrading treatment, noted that this prohibition is contained in the Universal Declaration but added that "although international declarations may provide evidence of customary international law (which is considered binding on all nations even without a treaty), they are not enforceable by themselves". (213)

Yet, in his address to the UN General Assembly on 21 September 2004, President Bush proclaimed his country's commitment to the UDHR, adding that the rights enshrined in it "are advancing across the world" despite the belief of "the enemies of human rights" that the Universal Declaration and "every charter of liberty ever written are lies to be burned and destroyed and forgotten". In the past three years the US administration has itself discarded or eroded central tenets of the Universal Declaration and other international instruments.

For his own address to the UN General Assembly on 21 September 2004, the UN Secretary General chose the rule of law for his subject. Citing examples of gross human rights abuses by state and non-state actors from Uganda to Russia, from Israel to Palestine, and from Sudan to Iraq – including the torture of Iraqi prisoners by US forces – Kofi Annan said: An independent commission of inquiry is called for
Amnesty International welcomes the official investigations and reviews that the US authorities have initiated and conducted – indeed the findings of such investigations are cited throughout this report. The information that has been made public has provided a wealth of information, insight and analysis.

Nevertheless, the organization believes that more is needed if full accountability is to be achieved and seen to be achieved – not least because none of the investigations has been comprehensive in scope and all have ultimately lacked genuine independence, most consisting of the military reviewing itself. It is clear that none has had the independence or reach necessary to adequately investigate the role of the Secretary of Defense or agencies, departments or individual office-holders outside the Pentagon, for example the Justice Department or the White House. The activities of the CIA and "other government agencies" in the "war on terror" remain shrouded in secrecy, and require a light to be shone on them by an independent inquiry.

In spite of the official reviews that have been initiated, there remain many unanswered questions about policies and practices still in operation. An investigation entirely independent of government, and with a willingness to take full cognizance of international law and standards, is needed. It must have the power to investigate the highest echelons of government. It must adopt more than just a "lessons-learned" approach, namely one that fully rejects impunity and facilitates full accountability.

The UN Special Rapporteur on torture has stated: "Independent entities are essential for investigating and prosecuting crimes committed by those responsible for law enforcement".(215) The Human Rights Committee has regularly criticized states parties to the International Covenant on Civil and Political Rights for inadequate investigations and called on them to set up independent bodies to investigate complaints of torture, ill-treatment and other abuses committed by agents of the state. (216) The same is true of the Committee against Torture. (217)

The "review" that has particularly been promoted as "independent" by the administration was conducted by the panel of four members appointed on 7 May 2004 by Secretary of Defense Rumsfeld to provide him with advice on the Department's detainee operations.(218) The Schlesinger Panel issued their report on 24 August 2004. The panel said that it had reviewed the following "completed investigations":
· Joint Staff External Review of Intelligence Operations at Guantanamo Bay, Cuba. 28 September 2002. This was a report by Brigadier General John Custer, acting commander of the US Army Intelligence Center at Fort Huachuca, following a visit to Guantánamo. One outcome of his visit was a new course at Fort Huachuca to train officers assigned to Guantánamo "on how to extract intelligence from Al Qaeda detainees". (219) The course began in late January 2003, more than a year after the first detainees arrived at Guantánamo. The Custer report was not made public.
· Army Provost Marshal General assessment of detention and correction operations in Iraq (Ryder report). This was a report, dated 5 November 2003, conducted by Major General Donald J. Ryder. Not made public, but leaked.
· Joint Task Force Guantánamo assistance visit to Iraq to assess intelligence operations. This was the report, dated 5 September 2003, produced by the then commander of Guantánamo Bay detentions, Major General Geoffrey Miller following his visit to Iraq in August and September 2003. Not made public, recently leaked.
· Administrative Investigation under Army Regulation 15-6 (AR 15-6) regarding Abu Ghraib. This is the administrative investigation of the 800th Military Police Brigade conducted by Major General Antonio Taguba, completed in late February 2004. This report was not intended for public release, but part of it was leaked to the media. The Taguba investigation did not interview any military personnel above the rank of brigade commander.
· Army Inspector General assessment of doctrine and training for detention operations. An "inspection" of US detainee operations in Afghanistan and Iraq, ordered on 10 February 2004, and conducted by Lieutenant General Paul Mikolashek. His report, dated 21 July 2004, described the abuses as "aberrations" committed by "a few individuals". Partially made public.
· The Fay investigation of activities of military personnel at Abu Ghraib and related LTG Jones investigation under the direction of General Kern. This review was initiated in April 2004 with Major General George Fay, deputy to the head of military intelligence, as the investigating officer. On 16 June 2004, General Paul Kern, Commanding General, US Army Materiel Command, was named as the "appointing authority" for the review, because Lieutenant General Ricardo Sanchez, head of US forces in Iraq, had excluded himself.(220) At General Kern's request, Lieutenant General Anthony Jones, Deputy Commanding General, US Army Training and Doctrine Command, was assigned responsibility for completing the review, with General Fay remaining on the review team.(221) The Fay report was issued on 25 August 2004. Parts remain classified. It found that abuses went beyond "the few", and implicated intelligence officials. It stressed that the "primary causes" of the "abuse" at Abu Ghraib was "misconduct (ranging from inhumane to sadistic) by a small group of morally corrupt soldiers and civilians, a lack of discipline on the part of the leaders and Soldiers of the 205th Military Intelligence Brigade, and a failure or lack of leadership by multiple echelons within CJTF-7".
· Naval Inspector General's review of detention procedures at Guantanamo Bay, Cuba, and the Naval Consolidated Brig, Charleston, South Carolina. Vice Admiral Albert Church was directed in early May 2004 by Secretary Rumsfeld to conduct this review. On 12 May, Vice Admiral Church emphasized that this was a short review and neither an inspection nor an investigation. He described the review as a "snapshot of current existing conditions" which had found "no evidence of current abuse".(222) Not made public.
· Naval Inspector General's review of Department of Defense worldwide interrogation operations. Again, conducted by Vice Admiral Albert Church. Not completed by 19 October 2004.
· Special inspection of detainee operations and facilities in the Combined Forces Command-Afghanistan. 26 June 2004. Led by Brigadier General Chuck Jacoby, described as "a top-to-bottom review of all of our detention facilities" in Afghanistan "to make sure we're in complete compliance with our own standards".(223) The Schlesinger Panel reported that the Jacoby review of Special Operations Forces detention operations "found a range of abuses and causes similar in scope and magnitude to those found among conventional forces". It has not yet been made public. On 19 October 2004, the Commander of US forces in Afghanistan said that the report was "in a review process" in Washington, DC, and that when it was released, he would provide a media briefing on "the unclassified aspects of it".(224)
· Administrative investigation of alleged detainee abuse by the Combined Joint Special Operations Task Force – Arabian Peninsula. Conducted by Brigadier General Richard Formica into allegations of detainee abuse by Special Operations Forces in Iraq. However, the Schlesinger Panel said that it had not reviewed this "assessment". By 13 October 2004, the report had not been made public, and US Central Command was unable to provide Amnesty International with a date when it would be released.
· Army Reserve Command Inspector General assessment of training and Reserve units regarding military intelligence and military police. Beginning in March 2004, conducted by Colonel Beverly Ertman. Due for release in December 2004.

Notably, the CIA is absent from this list. The CIA did not cooperate with either the Schlesinger or Fay investigators, stating that it was carrying out its own investigation of the agency (see Point 3.2).

Some of the Schlesinger Panel's findings have been noted in the first part of this report. However, one of the Schlesinger report's core conclusions was that: The report did not refer to the suffering of the detainees who were subjected to torture or other cruel, inhuman or degrading treatment, or to the distress of their families.

The UN Principles for the investigation of torture and other cruel, inhuman or degrading treatment, adopted by the General Assembly in 2000, state that where the "established investigative procedures are inadequate because of insufficient expertise or suspected bias, or because of the apparent existence of a pattern of abuse or for other substantial reasons, States shall ensure that investigations are undertaken through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognized impartiality, competence and independence as individuals. In particular, they shall be independent of any suspected perpetrators and the institutions or agencies they may serve. The commission shall have the authority to obtain all information necessary to the inquiry…".(225) The UN principles covering the investigation of deaths in custody state the same thing.(226)

Since 19 May 2004, Amnesty International has been calling for an impartial and independent commission of inquiry to be set up by the US Congress to conduct a thorough investigation into the USA's "war on terror" detention policies and practices worldwide.(227) Such a commission, composed of credible experts, could be appointed by Congress, but must be independent of government. It should have the necessary powers to be able to fully investigate all US "war on terror" detention policies, practices and facilities around the world, including in relation to the CIA and other agencies, and including in relation to all secret transfers ("renditions") of detainees between countries in which the USA has been involved (see Point 12). The commission should have subpoena powers, and unrestricted access to all classified information and to all agencies and levels of government. To ensure its effectiveness and the appearance of impartiality in the eyes of the world, the inquiry should seek the advice of international experts such as the UN Special Rapporteur on torture. Its findings should be made public.

As the UN Principles require, there are numerous reasons that call for such an approach. They include:
· A perceived or actual failure of previous investigations (see Point 6);
· Allegations suggesting a pattern of torture or cruel, inhuman or degrading treatment;
· Previously secret documents suggesting that at the highest levels of government there has been an official willingness to countenance torture if "military necessity" required it, as well as to authorize interrogation techniques that violate the prohibition on torture and other cruel, inhuman or degrading treatment. The resistance of the administration to releasing all such documents;
· The highest office-holder in government is also Commander-in-Chief of the Armed Forces, a power which has been used to justify the government's detention policies, the response to the crimes of 11 September 2001 having been framed in terms of "war". A Supreme Court Justice has seen fit to offer a reminder, in the face of the executive's detention policies, that "the President is not Commander-in-Chief of the country, only of the military".(228) In this context, the commission of inquiry must be independent of the Pentagon and the rest of the "war" administration;
· Government officials, including the President and Secretary of Defense, have been perceived to prejudge the outcome of military investigations already initiated. The same office-holders throughout the "war on terror" have shown a disregard for the rights of detainees, including the presumption of innocence. There is enough reason to believe that they would disregard the right of detainees to have allegations of torture or ill-treatment properly investigated and those responsible brought to justice;
· The investigation must be entirely free from the influence of party politics;(229)
· The military authorities have stated that "there is no agreed-upon definition of abuse among all legal, investigating and oversight agencies" in the USA;(230)
· Any investigation must respect and comply with international standards. As a state party to the UN Convention against Torture the US is obliged to conduct "prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction" (Article 12, emphasis added). The US government in general has shown itself to be reluctant to apply international human rights law and standards to its own conduct, and remains ideologically opposed to the International Criminal Court. The members of any commission of inquiry should be prepared to apply the UN principles for the investigation of torture, and other international standards.

When the commission of inquiry concludes that conduct may have amounted to crimes under national or international law, the information gathered should be referred to the appropriate national authorities with a view to possible prosecution.

Any official who ordered, authorized, condoned or committed torture or cruel, inhuman or degrading treatment should be brought to justice as required by international law. As a matter of principle, across all countries, Amnesty International takes the position that justice is best served by prosecuting war crimes, crimes against humanity, and other grave violations of international law, such as torture, in independent and impartial civilian courts. There is a growing international consensus on this view (see Point 7).

Full accountability, covering the whole "war on terror", of persons at all levels of the chain of command, including officials in the administration, officers in the armed forces, CIA personnel and private contractors, with no hint of scapegoating of low-level soldiers and reservist officers, is crucial. The highest authorities of every country should demonstrate their total opposition to torture. They should condemn torture unreservedly whenever it occurs. They should make clear to all members of the police, military and other security forces that torture will never be tolerated.

1.1 Words undone by deeds
The USA ratified the UN Convention against Torture in October 1994. Five years later, in its initial report to the Committee against Torture, the US Government stressed that: In November 2001, Amnesty International reminded the US Government of this statement and warned that "any withdrawal from such a clear affirmation of US policy in this area would send a grave signal to the international community about the USA's commitment to the respect and promotion of human rights. Any acceptance of torture in the United States risks eroding respect for the rule of law elsewhere. Furthermore, were the US Government to sanction even 'moderate physical pressure' on even a few detainees, it would almost inevitably lead to an expanded use, as Amnesty International has found in more than 40 years of documenting the use of torture."(233)

The USA's stated opposition to torture and ill-treatment has continued in public. On 26 June 2003, President Bush called on "all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment."(234) On the eve of President Bush's proclamation against torture, the General Counsel of the Department of Defense wrote to a US Senator concerned about allegations of torture and cruel, inhuman or degrading treatment against "war on terror" detainees. The Pentagon letter said that "we can assure you that it is the policy of the United States to comply with all of its legal obligations in its treatment of detainees, and in particular with legal obligations prohibiting torture. Its obligations include conducting interrogations in a manner that is consistent with the Convention against Torture".(235)

Taken at face value, these assurances might appear to meet the first point of Amnesty International's 12-Point program – that the highest officials of a country should make clear their opposition to torture and other cruel, inhuman or degrading treatment. Words alone can never be enough, however. Officials at all levels of government must demonstrate their total opposition to torture by what they do as well as what they say. The struggle against torture and ill-treatment by agents of the state requires absolute commitment and constant vigilance. It requires stringent adherence to safeguards. It demands a policy of zero tolerance.

This US administration has manifestly failed in this regard. Indeed the Pentagon's General Counsel gave his assurances just six months after Secretary of Defense Rumsfeld approved, for use at Guantánamo, a number of interrogation techniques which violated the USA's obligations under the UN Convention against Torture, and variations of which emerged not long afterwards in Abu Ghraib prison in occupied Iraq. The techniques included stress positions, sensory deprivation, isolation, hooding, stripping and the use of dogs to inspire fear. Similarly, President Bush's June 2003 proclamation of the USA's commitment to the eradication of torture came a matter of weeks after a Pentagon Working Group had produced a report, classified "secret" by the Secretary Rumsfeld until 2013, contending that as Commander-in-Chief of the armed forces the President was not bound by US and international law prohibiting torture and suggesting legal defences against criminal liability for any officials accused of torture.(236)

In July 2004, Guantánamo detainee Moazzam Begg wrote that he had been held in solitary confinement since 8 February 2003 – by October 2004 he had been in isolation for approximately 600 days.(237) He has been held in a reportedly windowless cell under 24-hour video surveillance. His isolation began almost a year to the day after the White House gave assurances that, despite President Bush's decision not to apply the Geneva Conventions to the Guantánamo detainees, they would "not be subjected to physical or mental abuse or cruel treatment".(238) The US administration's assurances must be treated with some scepticism.

1.2 The condemnation is paper thin – The 'torture memos'
It now seems that the US administration rejected provisions of the Geneva Conventions because it believed that the USA's treaty obligations might tie the hands of its interrogators. As the Geneva Conventions do not prohibit the interrogation of detainees, it would appear that the administration envisaged treatment that would potentially violate the prohibition on torture and ill-treatment. The ICRC itself has taken issue with the Schlesinger Panel's recent assertion that "If we were to follow the ICRC's interpretations, interrogation operations would not be allowed".(240) The organization responded: Nevertheless, two and a half years earlier, in a memorandum to President Bush, the White House Counsel advised that adherence to the Geneva Conventions would restrict the interrogation methods used by the USA in this "new kind of war" which "renders obsolete Geneva's strict limitations on questioning of enemy prisoners". The memorandum counselled that this "new type of warfare… requires a new approach to our actions towards captured terrorists".(242) Not applying the Geneva Conventions to certain prisoners, the memorandum said, "substantially reduces the threat of domestic criminal prosecution [of US agents] under the War Crimes Act".(243) He suggested that some of the language of the Geneva Conventions is "undefined", giving the example of the prohibition on "outrages upon personal dignity" and "inhuman treatment".(244) Given this, the memorandum continued, "it is difficult to predict with confidence what actions might be deemed to constitute violations".(245)

Although the memorandum stated that the USA would continue to treat detainees in accordance with international standards, it clearly anticipated that harsher treatment would occur. Subsequent official comments support this view. A Pentagon official tellingly said in May 2004, for example, that "it's very different" treating detainees who are not subject to the Geneva Conventions to those who are.(246) Equally telling was Secretary Rumsfeld's (incorrect), assertion that official investigations into Abu Ghraib had not found "any abuse that was related to interrogations". He added that "The Iraq situation was always subject to the Geneva Convention. The President announced that, I announced it… Any abuse that took place was inconsistent with that."(247) His comment would appear to betray a view that interrogations of prisoners not protected by the Geneva Conventions can be abusive. This is somewhat reminiscent of President Bush's position, stated in his previously secret memorandum of 7 February 2002, suggesting that there can be detainees "who are not legally entitled to [humane] treatment".(248)

The White House Counsel's advice to President Bush was echoed by the US Attorney General, John Ashcroft. In a letter to the President, dated 1 February 2002, he wrote: "[A] Presidential determination against treaty applicability would provide the highest assurance that no court could subsequently entertain charges that American military officers, intelligence officials, or law enforcement officials violated Geneva Convention rules relating to field conduct, detention conduct or interrogation of detainees. The War Crimes Act of 1996 makes violation of parts of the Geneva Convention a crime in the United States".(249)

The theory that presidential power can be used to override treaty and national laws is a theme that runs through government communications following the attacks of 11 September 2001. A Justice Department memorandum, dated 22 January 2002 and made public by the government on 22 June 2004, concluded that "customary international law does not bind the President or the US Armed Forces in their decisions concerning the detention conditions of al Qaeda and Taliban prisoners".(250) The memorandum proposed "justified deviations from the Geneva Convention requirements". It pointed out that "some very well may argue that detention conditions [at Guantánamo] currently depart from Geneva III requirements". However, it suggested that "some deviations would not amount to a treaty violation" because, inter alia, they could be justified under the self-defence argument and "no treaty can override a nation's inherent right to self-defense".

In fact, international humanitarian law applies exactly when "nations" are exercising their right to self-defence. Its essence is encapsulated in a provision of a 1907 treaty which now reflects customary international law: "The right of belligerents to adopt means of injuring the enemy is not unlimited."(251)

Any rejection of this principle is an invitation to lawless wars. At the very least, Guantánamo detainees have been subjected to violations of their right to be treated with respect for their human dignity – transferred from Afghanistan and elsewhere in conditions of sensory deprivation and excessive restraint and held in some cases in small cells for more than two years without any legal process.

An influential memorandum disowned today
Another memorandum to the White House, dated 1 August 2002, also deserves scrutiny.(252) Written at the Justice Department reportedly in response to a CIA request for legal protections for its agents (see Point 3), the memorandum drew, inter alia, the following three erroneous conclusions: (1) that interrogators could cause a great deal of pain before crossing the threshold to torture. Specifically, it suggested that torture would only occur if the pain caused rose to the level "that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions"; (2) that even though US law makes it a criminal offence for anyone in an official position to commit or attempt to commit torture against a detainee outside the USA, and even though the USA has ratified treaties prohibiting torture, the US President's authority as Commander-in-Chief could override these laws – in other words if the President authorized torture, the agent who carried it out could not be prosecuted by the Justice Department.(253) Any attempt by Congress to interfere would be unconstitutional;(254) and (3) that, even if interrogators were prosecuted for torture, there were defences available to them by which they could escape criminal liability. "We conclude", the memorandum said, "that, under the current circumstances, necessity or self-defense may justify interrogation methods that might [amount to torture]".(255)

Almost two years after the August 2002 memorandum was produced and soon after it had been leaked to the media in June 2004, the administration attempted to distance itself from its contents, saying that parts of it would be rewritten.(256) Yet the memorandum had reportedly been vetted by numerous officials, including lawyers at the National Security Council, the White House, the Vice-President's office, as well as the Justice Department.(257) In 2003, its author, Jay S. Bybee, had been confirmed by the Senate as a federal judge after being nominated by President Bush to that position.(258) In hearings before the Senate Judiciary Committee in February 2003, nominee Bybee had declined to discuss any legal advice he had given to the administration, citing his obligation to maintain confidentiality.

As well as distancing itself from the August 2002 memorandum, the administration claims that the declassified documents "were circulated among lawyers and some Washington policymakers only" and "never made it to the hands of soldiers in the field, nor to the President".(259) This raises several questions. Firstly, given that the US administration has repeatedly justified its detention and interrogation policies as legitimate under the President's powers as Commander-in-Chief of the Armed Forces, the President should be expected to have known about the various memorandums written about his government's "war" policies on these issues. Secondly, the administration's belated distancing from the August 2002 memorandum should be set against the fact that other memorandums which have come into the public domain clearly formed the basis for government policy, for example President Bush's decision to reject the applicability of the Geneva Conventions and the choice of Guantánamo Bay as a location to keep detainees out of the reach of the judiciary.(260)

Thirdly, despite being the subject of official public disdain in June 2004, much of the August 2002 memorandum is repeated in the April 2003 final report of the Pentagon's Working Group on Detainee Interrogations in the Global War on Terrorism. For example, the latter states that, "[i]n order to respect the President's inherent constitutional authority to manage a military campaign, [the US law prohibiting torture]…must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority." Echoing the August 2002 memorandum, and its interpretation of the USA's reservation to Article 1.1 of the UN Convention against Torture (see Points 5.2 and 11.2), the report states that: In a recent lecture, Professor Sir Nigel Rodley, formerly the UN Special Rapporteur on torture and currently a member of the Human Rights Committee, commented on this approach: The Pentagon Working Group report has not been disowned, and its recommendations were adopted by Secretary for Defense Rumsfeld, whose memorandum of 16 April 2003 does not rule out any interrogation method, as long as he authorizes it personally on a case-by-case basis.(264)

Fourthly, some of the contents of the August 2002 memorandum reflect what has happened on the ground. Noting that the UN Convention against Torture "reserves criminal penalties and the stigma attached to those penalties for torture alone", the memorandum emphasised that there is a "significant range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment fail to rise to the level of torture". Citing past abuses in Northern Ireland and Israel, and taking a highly regressive view of international standards and decisions (see Point 11.4), the memorandum said that these techniques include forced sitting, crouching and standing in painful positions, hooding, excessive tightening of handcuffs, subjection to noise, sleep deprivation and deprivation of food and drink. These techniques have all been alleged in the "war on terror", including in combination.(265)

In its August 2004 report, the Schlesinger Panel noted the Justice Department's memorandum. One of the Panel members left whether the document had influenced events on the ground as an open question. Whether the Department's position had "further contributed to an atmosphere of permissiveness in the field", he said, was "difficult to assess".(266)

The Guantánamo memos
Among the dozen "Category I" and "Category II" techniques Secretary Rumsfeld authorized in December 2002, "as a matter of policy" for discretionary use at Guantánamo were the use of 20-hour interrogations, stress positions, isolation, sensory deprivation, using detainees' individual phobias (such as fear of dogs), hooding, "dietary adjustment", removal of clothing, forced shaving, removal of all "comfort items", and the use of "mild, non-injurious physical contact".(267) He has said that these techniques "were not torture", while making no mention on whether he thought they constitute cruel, inhuman or degrading treatment and equally prohibited under international law.(268)

In May 2004, a month before Secretary Rumsfeld's December 2002 memorandum was declassified by the administration, two former Guantánamo detainees wrote to the Senate Armed Services Committee: Meanwhile, the sort of techniques authorized by Secretary Rumsfeld for use at Guantánamo were being used in Afghanistan where interrogators were "removing clothing, isolating people for long periods of time, using stress positions, exploiting fear of dogs and implementing sleep and light deprivation."(270)

Including "mild, non-injurious physical contact", four so-called "Category III" techniques (in italics below) had been requested in October 2002 for use in Guantánamo against "the most uncooperative detainees".(271) The request noted that such techniques were used by "other US government agencies", a phrase usually used by the military to mean the CIA. The legal advice offered on these four Category III techniques struck a tone reminiscent of the August 2002 Justice Department memorandum:
· "The use of scenarios designed to convince the detainee that death or severely painful consequences are imminent is not illegal [because] there is a compelling governmental interest and it is not done intentionally to cause prolonged harm. However, caution should be utilized with this technique because the torture statute specifically mentions making death threats as an example of inflicting mental pain and suffering." No advice was offered on how this contradiction was to be resolved.
· "Exposure to cold weather or water is permissible with appropriate medical monitoring".
· "The use of a wet towel to induce the misperception of suffocation would also be permissible if not done with the specific intent to cause prolonged mental harm, and absent medical evidence that it would. Caution should be exercised with this method, as foreign courts have already advised about the potential mental harm that this method may cause."
· "The use of mild non-injurious physical contact with the detainee, such as pushing and poking, will technically constitute an assault under Article 128 [of the Uniform Code of Military Justice]".(272)

Despite making these limited caveats, the military lawyer recommended that all four Category III techniques be approved. Major General Michael Dunlavey, commander at Guantánamo (until Major General Miller assumed command on 4 November 2002) then forwarded the request, with his recommendation also that it be approved, to General James T. Hill, Commander, US Southern Command. Commander Hill wrote to the Chairman of the Joint Chiefs of Staff asking for Pentagon and Justice Department lawyers to review the Category III techniques. The Department of Defense's General Counsel wrote that "while all Category III techniques may be legally available, we believe that, as a matter of policy, a blanket approval of Category III techniques is not warranted at this time".(273) Amnesty International is seriously concerned that the chief lawyer for the Pentagon should consider that these techniques might be legal. This once again suggests an administration either ignorant or contemptuous of international law and standards. In June 2004, the General Counsel suggested that interrogation techniques such as stress positions and prolonged isolation did not violate the USA's international obligations per se, it was just a question of proper application: "Certainly, any one technique improperly applied could, you know, produce all sorts of undesirable consequences, including perhaps torture. But we – the United States is not permitted to go near that".(274)

Secretary Rumsfeld himself has apparently been willing to countenance such techniques. On 15 January 2003, he rescinded his 2 December 2002 authorization, saying that any use of the techniques should be approved by him on a case-by-case basis, including any technique in either Category II or III.(275) He set up a working group within the Department of Defense, chaired by the General Counsel of the Department of the Air Force, Mary Walker, "to assess the legal, policy, and operational issues relating to the interrogations of detainees held by the US Armed Forces in the war on terrorism".(276) The working group issued its report on 4 April 2003, and it was classified as secret for 10 years by Secretary Rumsfeld. A March 2003 draft of the report was leaked to the press after the allegations of abuse at Abu Ghraib became public, and subsequently the final version was made public by the administration at its press briefing on 22 June 2004 (see page 11).

The Pentagon Working Group report
The Working Group report lists 35 interrogation techniques. It recommended that the first 26 be "approved for use with unlawful combatants outside the United States". Eighteen of these appear in the most recent (September 1992) edition of the US Army's Field Manual on Intelligence Interrogation (FM 34-52).(277) The remainder thus go beyond standard US army interrogation doctrine. One comes from the May 1987 version of FM 34-52.(278) The remaining seven of the first 26 techniques are:
20) Hooding;
21) Mild physical contact;
22) Dietary manipulation;
23) Environmental manipulation (e.g. adjusting temperature);
24) Sleep adjustment; (279)
25) False flag (convincing the detainee that interrogators are from country other than the USA – see possible case example, Walid al-Qadasi, page 100);
26) Threaten to transfer to a 3rd country (where subject is likely to fear he would be tortured or killed).(280)

The Working Group recommends that the remaining nine of the 35 techniques it lists in the report "be approved for use with unlawful combatants outside the United States", but with "specific limitations". The restrictions include that the interrogations be conducted at "strategic interrogation facilities", including Guantánamo; that the detainee is believed to have "critical intelligence"; that the detainee has been medically cleared for subjection to such techniques; and that the interrogators are specifically trained to use these methods. The nine techniques are:
27) Isolation;
28) Use of prolonged interrogations (e.g. 20 hours in a single day);
29) Forced grooming;
30) Prolonged standing;(281)
31) Sleep deprivation (not to exceed four days in succession);(282)
32) Physical training;
33) Face or stomach slap;
34) Removal of clothing;
35) Increasing anxiety by use of aversions (e.g. simple presence of dog).

The Pentagon Working Group also recommended that a procedure be established for requesting approval of any interrogation techniques additional to these 35.

On 16 April 2003, Secretary Rumsfeld authorized 24 of the techniques for use at Guantánamo Bay (1-19; 22-25; and 27 above). Additional techniques were not ruled out, but would have to be requested on a case-by-case basis. There is evidence which suggests that techniques such as stress positions and prolonged interrogations, authorized by Secretary Rumsfeld in December 2002, were continuing beyond the revocation of that authorization, and were being combined with techniques he authorized in April 2003, such as environmental manipulation. If accurate, these allegations would indicate that the Secretary of Defense was indeed approving such additional techniques on a case-by-case basis unless this authorization scheme was being bypassed.

For example, Parkhudin, an Afghan farmer who was detained at Guantánamo from February 2003 to March 2004, said that he had been shackled with a short chain during interrogation and that he had been questioned for up to 20 hours in uncomfortable positions, adding that "they made me stand in front of an air conditioner. The wind was very cold".(283) Released Swedish detainee Mehdi Ghezali told Amnesty International that he was subjected to sleep deprivation in April 2004, three months before he was released: A recent report in the New York Times, based on non-detainee sources, adds further evidence: A technique that is listed by the Pentagon Working Group, but was not authorized by Secretary Rumsfeld in either his December 2002 or April 2003 memorandum, is "threatening to transfer to a 3rd country that subject is likely to fear would subject him to torture and death".(286) Former Guantánamo detainee Tarek Dergoul, for example, has alleged that this happened to him. His testimony also brings to mind the emphasis that the Pentagon Working Group report placed on the importance of interrogators being "provided reasonable latitude to vary techniques depending on the detainee's culture", and its additional note that "techniques are usually used in combination": The Afghanistan, Iraq and other unreleased memos
There are an unknown number of government documents that have not been released by the authorities, as well as an unknown number of decisions not put on paper.(288) For example, on 24 January 2003, the Commander of Joint Task Force-180 in Afghanistan forwarded to the Pentagon Working Group a list of interrogation techniques being used in Afghanistan.(289) Among the techniques listed was the use of nudity against detainees. The CJTF-180 memorandum "highlighted that deprivation of clothing had not historically been included in battlefield interrogations.(290) However, it went on to recommend clothing removal as an effective technique that could potentially raise objections as being degrading or inhumane, but for which no specific written legal prohibition existed."(291) As already noted, the Fay report into Abu Ghraib concluded that interrogators with experience in Afghanistan and Guantánamo, redeployed to Iraq, "simply carried forward the use of nudity into the Iraqi theater of operations" and that this "likely contributed to an escalating 'de-humanization' of the detainees and set the stage for additional and more severe abuses to occur."(292)

The Fay report's finding that interrogation techniques were "imported" (or, in the Schlesinger Panel's words, that they "migrated") to Iraq from Afghanistan and Guantánamo contrast to earlier Pentagon assurances that no interrogation techniques were "exported to Iraq" from the wider "war on terror".(293)

According to the Schlesinger review, the techniques listed in the CJTF-180 document of 24 January 2003 "were included in a Special Operations Forces (SOF) Standard Operating Procedures document published in February 2003". In Iraq, interrogation guidelines were initially drafted that were "a near copy of the Standard Operating Procedure (sic) created by SOF".(294) The officer who drafted these guidelines was Captain Carolyn A. Wood, officer in charge of the 519th Military Intelligence Battalion from Fort Bragg, North Carolina. The 519th military intelligence unit had served in Afghanistan and had "assisted in interrogations in support of SOF and was fully aware of their interrogation techniques".(295) Prior to its deployment to Iraq in August 2003, Captain Wood's unit "allegedly conducted the abusive interrogation practices in Bagram resulting in a Criminal Investigation Command (CID) homicide investigation."(296) Two detainees had died in Bagram in December 2002, showing signs of "blunt force" injuries (see Point 6.2).

In addition to Major General Miller's recommendations following his visit to Iraq from Guantánamo (see page 29), Colonel Marc Warren, the main US military lawyer in Iraq (Staff Judge Advocate), used the final report of the Pentagon Working Group in developing interrogation policy there. The Commander of the US forces in Iraq, Lieutenant General Ricardo Sanchez, signed a memorandum on 14 September 2003 "which contained elements of the approved Guantanamo policy and elements of the SOF policy" from Afghanistan. (297) It included the use of dogs, stress positions, sensory deprivation, yelling, loud music, light control, and sleep management as interrogation techniques.(298) The Schlesinger report pointed out that this meant that detainees in Iraq, where the US had decided to apply the Geneva Conventions, would be subject to interrogation policies developed for use against those not so protected – further evidence that the decision by President Bush to deny Geneva Conventions protection to detainees in Afghanistan and Guantánamo was taken to allow interrogators to adopt harsh techniques, as suggested by the White House Counsel's January 2002 memorandum to President Bush.(299) The 14 September 2003 memorandum has not been made public by the administration.

The 14 September 2003 memorandum was subsequently replaced by a memorandum signed by General Sanchez on 12 October 2003. On 16 October 2003, Captain Wood of the 519th Military Intelligence Battalion posted a list of interrogation techniques – entitled "interrogation rules of engagement" – on the wall of the Joint Interrogation and Debriefing Center at Abu Ghraib prison "as an aid for interrogators" and which "graphically portray[ed] the 12 October 2003 policy".(300) Confronted with this list of interrogation techniques during questioning in May 2004 by a Senate committee, Secretary Rumsfeld indicated that the Pentagon had approved such methods.(301)

The 12 October 2003 policy recently came into the public domain in the form of a Memorandum for Record, dated 27 January 2004.(302) This lists a number of interrogation techniques with blanket approval for use against "all detainees regardless of status".(303) It then lists techniques that could be used with the approval of General Sanchez. The policy stresses that this is "not an all-inclusive list", and adds, somewhat redundantly, that "at no time will detainees be treated inhumanely nor maliciously humiliated" (see also page 44):
· Change of scenery down;
· Dietary manipulation (minimum bread and water, monitored by medics);
· Environmental manipulation (i.e. reducing [air conditioning] in summer, lower heat in winter);
· Sleep adjustment;
· Isolation (for longer than 30 days);
· Presence of working dogs;
· Sleep management (for 72-hour time period maximum; monitored by medics);
· Sensory deprivation (for 72-hour time period maximum; monitored by medics);
· Stress positions (no one position for longer than 45 minutes, within a 4-hour time period).

The 12 October 2003 memorandum included text lifted from the Pentagon Working Group report, including: "interrogation approaches are designed to manipulate an internee's emotions and weaknesses…in close cooperation with the detaining units", and: "it is important that interrogators be provided reasonable latitude to vary approaches depending on the security internee's cultural background". Like the Pentagon Working Group report, the memorandum noted that interrogation techniques "are usually used in combination".(304) According to the Fay report, the 12 October memorandum, On 30 November 2003, Colonel Pappas, commander of the 205th Military Intelligence Battalion which was handling the interrogations of detainees at Abu Ghraib, requested authorization for the harsher methods against a Syrian detainee who was proving resistant to interrogation. The Colonel's memorandum described the interrogation plan, which would begin with "Fear up Harsh", one of the techniques that could be used against any detainee without authorization: Amnesty International understands that the Syrian detainee in question was the detainee who was kept in prolonged incommunicado in solitary confinement in appalling conditions, without access to the ICRC (see page 16), on grounds of "military necessity" invoked by Colonel Pappas and Colonel Marc Warren.(307)

WORDS	ACTIONS
Interrogation techniques listed by Pentagon Working Group, April 2003 (not exhaustive). Notes "techniques are usually used in combination".	Interrogation techniques, used "in a systematic way" against security detainees in Iraq, found by International Committee of the Red Cross and listed in report in February 2004 (not exhaustive).
Hooding Prolonged interrogations Environmental manipulation	Hooding, sometimes used in conjunction with beatings. Hooding could last for periods from a few hours to up to two to four consecutive days; Exposure while hooded to loud noise or music, prolonged exposure while hooded to the sun at the hottest time of day;
Mild physical contact Face slap / Stomach slap	Beatings with hard objects, slapping, punching, kicking;
Fear up harsh Threat of transfer	Threats (of ill-treatment, reprisals against family members, imminent execution or transfer to Guantánamo);
Removal of clothing Isolation Sleep deprivation Dietary manipulation Prolonged standing	Being stripped naked for several days while held in solitary confinement in an empty and completely dark cell; Being held in solitary confinement, combined with threats, insufficient sleep, food or water deprivation, minimal access to showers, denial of access to open air; Being forced to remain for prolonged periods in stress positions; Acts of humiliation such as being made to stand naked, with arms raised or with women's underwear over the head, for prolonged periods…

Major General Miller, who in March 2004 was appointed to the post of Deputy Commander of Detainee Operations in Iraq, has stated that "the basics of the Geneva Convention – shelter, medical care, food – are never used as a manipulative tool."(308) Yet, the 12 October 2003 policy signed by Lieutenant General Sanchez, authorized interrogators to assume control over the "lighting, heating and configuration of the interrogation room, as well as the food, clothing, and shelter given to the security detainee" (as in the now outdated 1987 FM 34-52, see footnote 278). The Fay report noted that abuses such as "exposure to cold and heat or denial of food and water", including "detainees being left naked in their cells during severe cold weather without blankets", occurred at Abu Ghraib. It found that some of these abuses were directed by military intelligence and some were committed solely by military police guards.(309)

The "torture memos" that have come into the public domain show that the government failed in its international obligation to "keep under systematic review interrogation rules, instructions, methods and practices" with a view to preventing any cases of torture or cruel, inhuman or degrading treatment, as Articles 11 and 16 of the UN Convention against Torture require. Instead the administration discussed how to avoid Geneva Convention protections, how to push the legal limits on torture and have its agents avoid criminal liability, and sanctioned the use of interrogation techniques which violated the international prohibition on torture and cruel, inhuman or degrading treatment. This clearly contradicted the government's assurances that it was committed to all its legal obligations prohibiting torture. In so doing, the administration failed to meet Point 1 of Amnesty International's 12-Point program against torture, that the highest authorities of every country should make clear to all members of the police, military and other security forces that torture and cruel, inhuman or degrading treatment will never be tolerated.

1.3 'Un-American' activities?
From early on in the "war on terror", the White House issued assurances that "as Americans, the way we treat people is a reflection of America's values…, based upon the dignity of every individual."(311) This has become a standard response. In 2003, asked to respond to allegations that detainees had been ill-treated in Bagram air base in Afghanistan, the military spokesman there said: "I think you would have to agree, America, and for the most part the other countries involved in this coalition, don't have a reputation for treating individuals in an inhumane way. It's not part of our culture."(312) Asked about allegations of ill-treatment of Guantánamo detainees, President Bush responded: "We don't torture people in America. And people who make that claim just don't know anything about our country".(313) Around that time, acts of torture against Iraqi detainees were being filmed by US personnel in Abu Ghraib prison. Once the photographs were made public numerous officials claimed that what they depicted was an affront to "American values".(314) Secretary of Defense Rumsfeld told members of Congress that what happened in Abu Ghraib was "un-American".(315)

At best, such responses suggest a degree of complacency and a misunderstanding of the roots of torture. Torture is a human phenomenon, not an indigenous or cultural one. History shows that it can occur whenever safeguards against it are absent, regardless of the culture or nationality of the interrogators or jailers. In the "war on terror" the US administration has removed or lowered such safeguards, and failed to respond to evidence that torture and ill-treatment were the result.

Familiarity breeds contempt
The common refrain about "un-American" conduct or conduct inconsistent with "American values" should also be set against the USA's domestic human rights record, including its resort to judicial killing; its practice of holding detainees in long-term isolation in super-maximum security facilities; its excessive and cruel use of restraints against detainees; its failure adequately to confront racism in the criminal justice system; and its selective approach to international human rights law. This reluctance towards international standards has manifested itself in numerous ways. For example:
· The UN Committee against Torture has criticized the USA's domestic use of remote-controlled electro-shock stun belts, restraint chairs and "excessively harsh" conditions in super-maximum security prisons. The US government has ignored the Committee's concerns. In the "war on terror", excessive and cruel use of restraints has been routine.(316)In May 2004, the US authorities opened Camp Five at Guantánamo Bay. This appears to have been modelled on the super-max prisons on the US mainland. Detainees are held in solitary confinement for up to 24 hours a day in concrete cells and are under 24-hour video surveillance.

It is noteworthy, with this in mind, that among the first six soldiers charged in connection with the Abu Ghraib torture were two men who in their civilian life had been prison guards, one with the Virginia Department of Corrections, and one in a notorious maximum security prison housing Pennsylvania's death row.(317) The Taguba report found that the military police guards' lack of training in detentions meant that they "relied heavily on individuals… who had civilian corrections experience, including many who worked as prison guards or corrections officials in their civilian jobs". Two of the soldiers allegedly involved in abuses in June 2003 at Camp Whitehorse, a US detention facility in Iraq, were corrections officers in civilian life.(318) According to prosecutors at a subsequent court-martial, one of them had allegedly told other soldiers that abusive treatment maintains prisoner discipline.(319)

It is also noteworthy, when considering the claims of "un-American" conduct, that early on in the "war on terror" the US Secretary of Defense ascribed a normality to the clearly harsh conditions to which detainees were being subjected. Faced with concern about the conditions of detainee transfers from Afghanistan to Guantánamo and asked whether "hooding…, shaving, chaining, perhaps even tranquillizing some of these people is violating their civil rights", Secretary Rumsfeld responded that "it simply isn't… all one has to do is look at television any day of the week, and you can see that when prisoners are being moved between locations, they're frequently restrained in some way with handcuffs or some sort of restraints".(320)

On other occasions, Secretary Rumsfeld has displayed an attitude of disregard for international standards relating to the treatment of detainees. "To be in an eight-by-eight [feet] cell in beautiful, sunny Guantánamo Bay, Cuba", he suggested in January 2002 "is not inhumane treatment".(321) Three months later, detainees were transferred to smaller cells in which many of them have been held without charge or trial for more than two years. In December 2002, Secretary Rumsfeld approved additional interrogation techniques for use at Guantánamo, including isolation, sensory deprivation, use of 20-hour interrogations, hooding, removal of clothing, use of dogs to instil fear, and stress positions for a maximum of four hours. On this latter technique, he handwrote at the bottom of the memorandum, "I stand for 8-10 hours a day. Why is standing limited to 4 hours?"(322) He has repeated this, to his apparent amusement, in at least one media interview.(323) Amnesty International considers that, given his position, Secretary Rumsfeld's public comments on detentions have frequently been inappropriate and inconsistent with international human rights law and standards, the promotion of which is purportedly a central pillar of his country's foreign policy.

"Notwithstanding the isolated pockets of international hyperventilation", stated Secretary Rumsfeld soon after the first transfers to Guantánamo Bay, "we do not treat detainees in any manner other than a manner that is humane."(324) This is not how those at the receiving end of this treatment perceived it. Released detainees have spoken of the degrading conditions of the transfers. One detainee, Sayed Abbasin, has described it as the "worst day of my life": "I arrived tied and gagged; it was the act of an animal to treat a human being like that".(325) Another, Wazir Mohammed, recalled to Amnesty International how he and his fellow detainees were treated "like cargo not people". He refused to go into detail of the indignities that occurred during the 22-hour flight to Guantánamo from Afghanistan. Amnesty International has been told that detainees were forced to defecate and urinate where they sat.

History repeats itself
The history of US practices is also informative when considering this administration's claims that what happened at Abu Ghraib was "un-American". Amnesty International's 1973 Report on Torture noted that a large number of the detainees brought in for interrogation in South Vietnamese detention facilities during the war in Vietnam were detained under the USA's Phoenix Program, devised in the late 1960s for "rooting out the Vietcong 'infrastructure'". Several ex-US Army intelligence operators had testified to the extensive use of torture and murder of suspects under the Program. The 1973 Amnesty International report also noted frequent reports that the USA had financed and organized anti-subversive training courses in Panama. Much more has been revealed since then. For example, the US training institution, the School of the Americas (SOA), became notorious for training and educating Latin American military personnel who went on to commit human rights violations in their own countries. In the 1980s and early 1990s, the SOA used manuals that advocated torture, extortion, kidnapping and execution. No one was ever held accountable for the development and use of these manuals.(326)

Amnesty International's 1973 Report on Torture also noted allegations that US personnel had been present at torture sessions in Latin American countries. Again, more evidence has emerged since. Dr Juan Romagoza was detained in El Salvador in late 1980 and early 1981. He says that he was kicked and beaten, kept naked and blindfolded, hung by his hands, sexually assaulted and subjected to electric shock torture. He claims that during his torture, US advisers were present, "asking questions and laughing".(327) Sister Dianna Ortiz, a nun and US citizen who was abducted and tortured in Guatemala in 1989, has alleged that her torture was only stopped when a man with a North American accent, whom she believes was a US agent, was called in by her torturers and recognized her from media reports.(328)

The USA has also had a long reach in the "war on terror", and not only in relation to secret transfers (see Point 12). For example:
· In Saudi Arabia, agents of the Federal Bureau of Investigation are reported to have either interrogated or been present at the interrogation of Ahmed Abu 'Ali, arrested in June 2003. They are alleged to have threatened him with transfer to Guantánamo Bay or with a trial in Saudi Arabia where he would have no legal assistance, public hearing, or appeal to a higher tribunal.(329)
· In August 2004, UN Independent Expert on Afghanistan, Professor M. Cherif Bassiouni, raised allegations that US pressure was behind the continued illegal detention in Afghan government custody of hundreds of detainees in Pul-e-Charkhi prison in Afghanistan. He described the conditions in which the detainees were held as violating "every standard of human rights".(330)

Declassified CIA interrogation training manuals from the 1960s and 1980s describe "coercive techniques" that mirror the "stress and duress" techniques sanctioned in the "war on terror".(331) For example, the Human Resource Exploitation training manual of 1983 states the subject should be "immediately blindfolded and handcuffed" upon arrest and "isolation, both physical and psychological must be maintained from the moment of apprehension". The subject should remain blindfolded and handcuffed, the manual asserts, during "the entire processing" of the detainee after arrival at the detention facility. After this the "subject is completely stripped and told to take a shower. Blindfold remains in place while showering and guard watches throughout". Hooding, stripping, isolation and the cruel and excessive use of handcuffs and shackles have all been used against detainees in US custody during the "war on terror".

The 1983 CIA manual instructs that: The practice of shock arrests has emerged in US operations in Afghanistan and Iraq. In its February 2004 report on its concerns about abuses by Coalition forces in Iraq, the ICRC stated that it had found a "consistent pattern" of "brutality" at the time of arrest. Sheik Abdul Sattar, a 71-year-old man, was arrested on 25 April 2004. According to reports, he was watching television in the early hours of the morning when US soldiers entered his house. Sheik Abdul Sattar, a frail man, was pushed to the ground, had a bag put over his head and his hands tightly cuffed behind him, and was dragged along the ground, suffering bruises and a twisted ankle.(332)

A US soldier told the Fay investigation into Abu Ghraib that he had been asked by a civilian contract interrogator for ideas to get detainees to talk. The soldier "related several stories about the use of dogs as an inducement, suggesting [the contractor] talk to the [military police guards] about the possibilities." The soldier also suggested that the contractor could photograph detainees being ill-treated so he could use the pictures to frighten other detainees. He added that detainees are most susceptible during the initial hours after capture: "Control of the source's environment", states the CIA's Kubark Counterintelligence Interrogation manual of July 1963, "permits the interrogator to determine his diet, sleep pattern, and other fundamentals. Manipulating these into irregularities, so that the subject becomes disorientated, is very likely to create feelings of fear and helplessness". It concludes that "the principal coercive techniques are arrest, detention, the deprivation of sensory stimuli, threats and fear, debility, pain, heightened suggestibility and hypnosis, and drugs". The 1983 manual, drawing heavily on its 1963 predecessor, discusses "coercive techniques" under the headings of "debility (physical weakness)", "dependency" and "dread (intense fear and anxiety)".(334) The manual offers the interrogator a checklist, including: "Is solitary confinement to be used? Does the place of confinement permit the elimination of sensory stimuli? Are threats to be used? Are coercive techniques to be used?" These CIA manuals are officially no longer policy, but two decades on, similar questions have been answered in the affirmative during the "war on terror".

What has without doubt been authorized are the detention conditions in Guantánamo Bay. Under the heading "cell block planning", the CIA's 1983 training manual instructs that "cells should be about 3 metres long and 2 metres wide". In Camp Delta in Guantánamo Bay, where hundreds of detainees have been kept virtually incommunicado for over two years, the cells are even smaller (approximately 2 metres by 2.45 metres). The manual continues: "window should be set high in the wall with the capability of blocking out light (this allows the 'questioner' to be able to disrupt the subject's sense of time, day and night)"; "heat, air and light should be externally controlled". In Camp Echo, in Guantánamo, where detainees awaiting trial by military commission have been held in solitary confinement for months and months on end, the cells they were put into are reportedly windowless.

In May 2004, Amnesty International raised allegations that a Chinese government delegation had visited Guantánamo in September 2002 and participated in interrogations of Chinese ethnic Uighur detainees held there. It is alleged that during this time, the detainees were subjected to intimidation and threats, and to interrogation techniques such as environmental (temperature) manipulation, forced sitting for many hours, and sleep deprivation, some of which is alleged to have been on the instruction of the Chinese delegation.(335) Asked about these allegations, Army General James T. Hill would only confirm that various government delegations "have come and they have talked to their detainees", but stated that "we don't talk about what countries come" to Guantánamo. He said that foreign government delegations talk to their nationals "following our rules and under our direct supervision".(336)

Given the allegations of released detainees and the contents of government documents now in the public domain, General Hill's response raises the question: what do US officials mean when they refer to "our rules" of interrogation?

Upon declassification, the CIA's 1983 Human Resource Exploitation manual was hand-edited to alter passages on "coercive techniques". The apparently hasty hand-editing betrays a recognition by officialdom that torture and cruel, inhuman and degrading treatment are wrong. For example, the sentence "While we do not stress the use of coercive techniques, we do want to make you aware of them and the proper way to use them", was changed to "While we deplore the use of coercive techniques, we do want to make you aware of them so that you may avoid them." Similarly "coercive techniques always require prior HQs approval" became "coercive techniques constitute an impropriety and violate policy."

1.4 Slippery slope: Undermining public morality
On 13 May 2004, at a hearing before the US Senate Armed Services Committee, the following exchange took place between Senator Jack Reed and Deputy Secretary of Defense Paul Wolfowitz: Members of an administration that has discussed how to push the boundaries of acceptable interrogation techniques and of how agents could avoid criminal liability for torture might display a reticence to call torture by its name. Official equivocation over the question of torture and ill-treatment may betray a willingness to tolerate unacceptable conduct on the spectrum of torture and other cruel, inhuman or degrading treatment.

As of October 2004, Amnesty International was not aware of President Bush or any official in his cabinet referring to what happened in Abu Ghraib as torture or a war crime, preferring the term "abuse".(337) In his statement on 26 June 2004 reaffirming the USA's "commitment to the worldwide elimination of torture", President Bush referred to "the abuse of detainees at Abu Ghraib".(338) The following day, Secretary Rumsfeld said that "everything we know thus far suggests that what was taking place in the photographs was abuse".(339)At a Pentagon briefing on 4 May 2004, in one of several statements apparently downplaying the allegations, he stated that his "impression is that what has been charged so far is abuse, which I believe technically is different from torture".

The reports of the various reviews and investigations into detention operations have maintained this position. On 24 August 2004, John Schlesinger, Chairperson of the Secretary Rumsfeld-appointed Independent Panel to review Department of Defense detention operations, said that "there is a problem in defining torture. We did not find cases of torture, however".(340) The following day, Major General George Fay admitted in a press conference what had not been put in writing in his report on Abu Ghraib. Asked whether any of what the investigation had found in Abu Ghraib amounted to torture, he replied: On the question of torture, Secretary Rumsfeld has suggested that "headline writers and people dramatize things".(342) This is apparently standard Pentagon thinking. The final report of the Working Group on Detainee Interrogations in the Global War on Terrorism, completed a year before the Abu Ghraib revelations, contains the following conclusion: "Should information regarding the use of more aggressive techniques than have been used traditionally by US forces become public, it is likely to be exaggerated or distorted in the US and international media accounts". The report recommended the preparation of a "press plan" to anticipate and address potential public inquiries and misunderstandings regarding appropriate interrogation techniques."(343)

In June 2004, an ABC News/Washington Post opinion poll reportedly found that 35 per cent of the US population felt torture was acceptable in some circumstances.(344) In an opinion poll conducted in the USA in May, only a third of those polled said that they would define what happened in Abu Ghraib prison as torture.(345) Would they describe such treatment as torture if it was happening closer to home rather than to distant foreign nationals long demonized by US leaders, or indeed if those same leaders would describe it as such? One well-known radio commentator, Rush Limbaugh, who has an audience of over 20 million, characterized the torture at Abu Ghraib as soldiers "having a good time" and needing "to blow some steam off".(346) He has noted that "the closer you get to 9/11 the more everybody was willing to speak out about [the need for torture in the 'war on terror'], but now 9/11 is in the past and we're doing this in Iraq. And look, we all know what war is… and we are in a war for our way of life, and so that's why I say just keep all this in perspective".(347)

Rush Limbaugh was referring to the public debate that there has been in the USA since 11 September 2001 on whether torture can be acceptable in the "war on terror". A government fully and unswervingly committed to the eradication of torture would have participated directly and continuously in this debate in order to make clear that torture and cruel, inhuman or degrading treatment must never be tolerated and that the country's military and law enforcement agencies would live by that principle at this and any other time.(348) Instead, while making general statements against torture, aimed mainly at an international audience, the administration was secretly discussing and authorizing interrogation techniques that were unacceptable under international standards.

A country steps on to a slippery slope when it begins to chip away at the prohibition on torture and cruel, inhuman or degrading treatment. In its first major report on torture 30 years ago, Amnesty International wrote: The USA claims to have reserved its harsh interrogation techniques for what it calls a few "high-value" detainees – that is, those detainees considered to be in possession of immediately usable intelligence. For example, the Pentagon has claimed that Secretary Rumsfeld's December 2002 approval for use at Guantánamo of interrogation techniques including stress positions, sensory deprivation, isolation, hooding, stripping and the use of dogs to inspire fear stemmed from the need for "additional techniques… for use against high-value detainees", including Saudi national Mohamed al-Kahtani, suspected of being involved in the 11 September 2001 conspiracy (see page 15).(350) Asked about this in June 2004, Secretary Rumsfeld stated that the techniques "were not used, I'm told, on anyone one other than Kahtani. We may find out that's not correct at some point in the future".(351)

According to what released prisoners have alleged, this discovery has already occurred. Their evidence suggests that torture and ill-treatment by US personnel has not been limited to "high value" detainees. (352) In any event, international law prohibits torture or ill-treatment regardless of the "value" it would allegedly produce.

An official version of the 'torture warrant'
The administration's explanation that it was approving techniques in limited circumstances against a small number of detainees is reminiscent of the concept of the judicial "torture warrant" that has been promoted during the "war on terror" by Harvard law professor Alan Dershowitz. According to Professor Dershowitz, torture by US agents happens anyway, so to have it out in the open, it should be authorized by a judge when circumstances call for it: "Thus we would not be winking an eye of quiet approval at torture while publicly condemning it".(353) He has said that "an application for a torture warrant would have to be based on the absolute need to obtain immediate information in order to save lives coupled with probable cause that the suspect had such information and is unwilling to reveal it".(354) Of course, were such a policy adopted by any country, let alone one as influential as the USA, others would surely follow and the international consensus against torture would be broken.(355)

Amnesty International is also troubled by a letter to Congress signed by some 450 US law professors and other academics six weeks after publication of the Abu Ghraib photographs, suggesting that "any decision to adopt a coercive interrogation policy… should be made within the strict confines of a democratic process".(356) Yet the same letter states, correctly, that the Third and Fourth Geneva Conventions prohibit any "physical or moral coercion" of prisoners of war or civilian detainees to obtain information, in addition to other provisions in international human rights and humanitarian law prohibiting torture and cruel, inhuman or degrading treatment. "Democracy" should surely not be used to justify any measures that strip individuals, however few, of basic rights, or to destroy an international legal consensus, built over centuries, around such rights.

Professor Dershowitz has said of his proposal for torture warrants against security detainees: "If someone asked me to draft the statute, I would say, 'Try buying them off, then use threats, then truth serum, and then if you came to a last recourse, non-lethal pain, a sterilized needle under the nail to produce excruciating pain'. You would need a judge signing off on that. By making it open, we wouldn't be able to hide behind the hypocrisy".(357) Hypocrisy there has been, at the highest levels of government. But rather than a judge signing off on torture, the Secretary of Defense and others have signed off on interrogation techniques that violate the prohibition on torture and other cruel, inhuman or degrading treatment (see, for example, Pappas interrogation plan, page 71).
Rather than confront the Dershowitz proposal with a clear and categorical putdown, the administration has engaged in its own version of it. For example, echoing the proposal, the Pentagon Working Group report states: "If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaida terrorist network."(358)

The slippery slope of brutalization
Amnesty International's 1973 torture report, referring to the conflict in Vietnam, suggested that "an administration defending itself against what it or its major ally construes to be an insurrectionary movement may regrettably find it hard to resist the expedient of torture in its efforts to crush its elusive opponent". It also stated that "the brutalizing effects of the Vietnam War have become so entrenched that some of the time the use of torture during interrogation is no longer even motivated by a desire to gather 'intelligence'." The slippery slope from limited authorization of torture to a wider tolerance of such methods is a part of the landscape of this human rights violation.

A former US marine, now a military analyst with the mainstream Fox TV News Channel, has reportedly said that he tortured a Vietcong prisoner during the Vietnam War by attaching electrodes to his genitals and threatening electrocution.(359) Lieutenant Colonel William Cowan claimed that the torture "worked like a charm", making the prisoner talk. Lt. Col. Cowan has also suggested that torture should be used against high-ranking al-Qa'ida suspects: "If it's Abu Zubaydah, you start out being tough – physical pain and emotional pain. You're putting him under physical duress outside the bounds of what the United Nations accepts."(360) Government agents are already alleged to have done so (see Point 3.2).

Some of the torture and cruel, inhuman or degrading treatment in Abu Ghraib was apparently carried out as punishment or for the sadistic amusement of guards. (361) As already noted, the Fay report found that authorized techniques such as nudity and physical stress were followed by violent physical and sexual assaults by some personnel. The Schlesinger report noted that one of the soldiers involved in the Abu Ghraib torture and ill-treatment said that it had been committed "just for the fun of it". During the Taguba investigation, a soldier assigned to Abu Ghraib stated: On 17 January 2004, an Abu Ghraib detainee, Abd Alwhab, gave military investigators a statement in which he alleged that he was subjected to brutal punishment: Punitive brutality has also been alleged in Guantánamo: Support for such allegations has come from an unusual source. On 24 January 2003, an orange jump-suited individual was reportedly choked and beaten at Guantánamo Bay, and has suffered a brain injury as a result. His name is Sean Baker. He was not a detainee, but a US military guard who had volunteered to pose as an uncooperative detainee in a training exercise. However, the five-man team sent in to extract him from his cell was not told it was an exercise. He says that they slammed him to the floor, put him in a painful chokehold, and pounded his head at least three times against the steel floor. He was treated in a number of military hospitals, and a military evaluation referred to his "service-connected disability" and traumatic brain injury received as a result of his "playing role of detainee…during training exercise".(365)

The pursuit of intelligence at all costs
Despite such evidence of a degree of punitive or sadistic brutality, much of the torture and cruel, inhuman or degrading treatment allegedly carried out by US forces in Afghanistan, Guantánamo and Iraq appears to have been for intelligence-gathering purposes, to "soften up" detainees prior to or during interrogation (see Point 4.1).

The authorities claim that they have obtained substantial intelligence from interrogations. For example, the Schlesinger Panel stated that the interrogation of detainees has "yielded significant amounts of actionable intelligence", adding that much of the information in the 9/11 Commission Report on the attacks of 11 September 2001 "came from interrogation of detainees at Guantanamo and elsewhere".(366) The Schlesinger Panel, however, failed to qualify this in the way in which the 9/11 Commission had. The latter pointed out that the information could be unreliable.(367) Neither the Commission nor the Schlesinger Panel, however, referred to, let alone publicly protested, the fact that some of the information may have been extracted under torture or other cruel, inhuman or degrading treatment of individuals held in secret locations (see Point 3.2).

The most recent version (1992) of the US Army Intelligence Interrogation Field Manual (FM 34-52) is instructive in this regard. It states: There have also been reports that the "success" of this interrogation policy has been far more limited than the government claims. There is evidence of widespread arbitrary arrests conducted on the basis of poor intelligence. For example, the Afghanistan Independent Human Rights Commission has recently told Amnesty International that the US forces in Afghanistan appear to remain susceptible to manipulation by local tribal affiliations and interests in detaining people on the basis of false or malicious intelligence. US military intelligence officers told the ICRC that "in their estimate between 70 per cent and 90 per cent of the persons deprived of their liberty in Iraq had been arrested by mistake".(368) In similar vein, "dozens of high-level military, intelligence and law-enforcement officials in the United States, Europe and the Middle East said that contrary to the repeated assertions of senior administration officials, none of the detainees at the United States Naval Base at Guantánamo Bay ranked as leaders or senior operatives of Al Qaeda".(369)

Effective intelligence-gathering is a long-term task, not something that should be beaten or coerced out of a selection of people a government broadly defines as the enemy. A former intelligence officer familiar with the Guantánamo intelligence regime has said: "The quality of the screening, the quality of the interrogations and the quality of the analysis were all very poor. Efforts were made to improve things, but after decades of neglect of human intelligence skills, it can't be fixed in a few years."(370)

In the end, however, the absolute prohibition of torture and cruel, inhuman or degrading treatment in international law rests firmly on moral grounds. It is about what sort of society we aim to build. Ariel Dorfman's country, Chile, suffered gross human rights violations on and following 11 September 1973, the day of the coup that brought Augusto Pinochet to power. Dorfman has written: President Bush has said that "the United States will continue to take seriously the need to question terrorists who have information that can save lives. But we will not compromise the rule of law or the values and principles that make us strong. Torture is wrong no matter where it occurs, and the United States will continue to lead the fight to eliminate it everywhere."(372) Amnesty International believes that the USA has failed to live up to these words in the "war on terror".

A government's condemnation of torture and other cruel, inhuman and degrading treatment must mean what it says. If it genuinely opposes torture and ill-treatment, it must act accordingly. From this simple proposition, all 11 other points of Amnesty International's 12-Point Program for the Prevention of Torture by Agents of the State follow.

1.5 Recommendations under Point 1
The US authorities should:

• Provide a genuine, unequivocal and continuing public commitment to oppose torture and cruel, inhuman or degrading treatment under any circumstances, regardless of where it takes place, and take every possible measure to ensure that all agencies of government and US allies fully comply with this prohibition;
• Review all government policies and procedures relating to detention and interrogation to ensure that they adhere strictly to international human rights and humanitarian law and standards, and publicly disown those which do not;
• Make clear to all members of the military and all other government agencies, as well as US allies, that torture or cruel, inhuman or degrading treatment will not be tolerated under any circumstances;
• Commit to a program of public education on the international prohibition of torture and ill-treatment, including challenging any public discourse that seeks to promote tolerance of torture or cruel, inhuman or degrading treatment.
  

2.1 Incommunicado detention facilitates torture
On 28 May 2004, Amnesty International issued an urgent appeal on behalf of Mohammad Jassem 'Abd al-'Issawi, a 43-year-old Iraqi civil engineer believed to be in detention in the High Security section of Abu Ghraib prison. He was reportedly kicked and punched by the US soldiers who arrested him on 17 December 2003. Since then, he had not had access to his family, to legal counsel, or to the ICRC.(374)

The US military has taken more than 50,000 people into custody during its military operations in Afghanistan and Iraq. In Afghanistan, the US has operated approximately 25 detention facilities, and in Iraq another 17.(375) It has held people in Guantánamo and in undisclosed locations. Lawyers, relatives, and human rights organizations have systematically been denied access to detainees. While the ICRC has had access to some detainees, this cannot be considered enough under the circumstances (see Point 4). For example, the ICRC has had access to detainees held in the US air base in Bagram in Afghanistan, but not immediately after their arrest.(376) In Afghanistan, the ICRC has only had access to Bagram and Kandahar and none of the numerous "forward collection points", more remote US temporary holding facilities in other locations. In both Afghanistan and Iraq, detainees have been held at such facilities for far longer than the 12-24 hours allowed under army doctrine. Some detainees have been held for one or two months at "forward collection points".(377) Hundreds of detainees have been held incommunicado without charge or trial between ICRC visits to Guantánamo Bay.

Because of its urgency as a safeguard against torture, Amnesty International and international law and standards hold that relatives, lawyers and independent doctors should have access to detainees without delay and regularly thereafter. Access by others such as representatives of human rights organizations and (in armed conflicts and other applicable situations) the ICRC is also of great importance.

The UN Commission on Human Rights has stated that "prolonged incommunicado detention may facilitate the perpetration of torture and can in itself constitute a form of cruel, inhuman or degrading treatment or even torture".(378) The Human Rights Committee has stated that provisions should be made against the use of incommunicado detention, and the Committee against Torture has called for its elimination.(379) The Special Rapporteur on torture, recognizing that "torture is most frequently practised during incommunicado detention", has also called for such detention to be made illegal.(380)

2.2 Access to legal counsel
One of the first prisoners of the USA in its "war on terror" overseas was John Walker Lindh, a US citizen captured in Afghanistan. His alleged treatment – stripping, blindfolding, threats, cruel use of restraints, use of humiliating photography(381), and denial of access to legal counsel or relatives – echoes what would happen two years later in Iraq. Furthermore, it is alleged that the General Counsel of the Department of Defense authorized John Lindh's interrogator to "take the gloves off" during his interrogation.(382)

John Lindh was taken into US custody on 1 December 2001 in Afghanistan. Interrogated repeatedly in incommunicado detention, he repeatedly asked for a lawyer. (383) Finally, he alleged, "to escape the torture of his current circumstances", he agreed to answer the interrogator's questions. From 3 December, a lawyer retained by John Lindh's family following news of his arrest had requested the US authorities to stop any further interrogation, "[e]specially if there is any intent to use it in any subsequent legal proceedings"(384) (see also Point 8.1). Moreover, communications to Lindh from his family informing him that they had retained the lawyer were allegedly not relayed to him.

On 14 December 2001, he was transferred to the USS Peleliu, where he received medical treatment. Lindh's parents wrote to him repeatedly following his arrest, including via the ICRC, but he was not allowed to receive any communications until approximately 6 January, more than a month after he had been transferred from Afghan to US custody. Just over seven months after being taken into US custody, John Walker Lindh agreed in US federal court to plead guilty to carrying a weapon while serving with the Taleban, and was sentenced to 20 years in prison. As part of the plea arrangement, he withdrew his allegations of torture and ill-treatment by the US military. If he breaks the terms of his plea agreement, "the United States may prosecute the defendant to the full extent of the law".

The Human Rights Committee has stated that detained persons should have "immediate access to counsel and contact with their families".(385) The Committee against Torture has recommended "unrestricted access to counsel immediately after arrest".(386) The Special Rapporteur on torture has stated: "In exceptional circumstances, under which it is contended that prompt contact with a detainee's lawyer might raise genuine security concerns and where restriction of such contact is judicially approved, it should at least be possible to allow a meeting with an independent lawyer".(387)

Even when access to legal counsel is arguably impractical in battlefield situations, military lawyers can still be made available to monitor interrogations as a safeguard against torture or ill-treatment. In the first Gulf War, military lawyers were reportedly present in every US detention facility, and could monitor any interrogation from behind a one-way mirror and intervene if misconduct occurred. Neither the interrogator nor the detainee knew if any particular session was to be monitored in this way.(388) However, according to senior military lawyers, this practice has been curtailed by the current administration.(389)

2.3 Access to doctors
Amnesty International believes that detainees should have access to independent doctors as soon as possible after arrest. Doctors must in no way participate in any torture or ill-treatment, and must expose any such treatment of which they become aware.

International standards require detainees and prisoners to be given or offered a medical examination as promptly as possible after they have been taken into custody.(391) They also call for medical personnel to advise on basic prison conditions, such as food, light, ventilation and hygiene.(392) The evolution of international standards relating to the medical care of detainees and prisoners has also been paralleled by the elaboration of ethical principles for health professionals in their relations with detainees. In particular, principles adopted by the UN General Assembly in 1982 state: The same safeguards also state that it is a contravention of medical ethics for health personnel to apply their knowledge and skills in order to assist in the interrogation of detainees "in a manner that may adversely affect" their physical or mental health. They must not certify or participate in the certification of the fitness of detainees for "any form of treatment or punishment that may adversely affect their physical or mental health". Also they must not participate in any procedure for restraining a detainee except under strictly medical criteria as being necessary for safety reasons and harmless to the detainee's physical or mental health. There "may be no derogation from the foregoing principles on any grounds whatsoever, including public emergency".(394)
· According to a leaked military document, the ICRC raised allegations in a meeting with the Guantánamo authorities in October 2003 that interrogators at the base had had access to the medical files of detainees, that the files were "being used by interrogators to gain information in developing an interrogation plan", and "that there is a link between the interrogation team and the medical team". Major General Miller, the camp commander, rejected the allegations.(395)
· The 12 October 2003 interrogation policy in Iraq listed "dietary manipulation", "sleep management", and "sensory deprivation", as techniques that could be authorized as long as they were "monitored by medics" (see page 70-71);
In the "war on terror", sleep deprivation, stress positions, hooding, stripping, and the cruel use of restraints are among the practices employed against detainees. Hakkim Shah, a 32-year-old Afghan farmer was reportedly subjected to torture and ill-treatment in the US air base in Bagram. He said that he was held naked for 16 days in an upstairs room in the facility, hooded, shackled, and forced to stand by being secured to the ceiling. After 10 days, his legs reportedly became so swollen that the shackles cut off the blood supply and he could no longer stand. According to the allegations, doctors eventually removed the shackles and he was allowed to sit.(396)

The final report of the Pentagon Working Group suggests the potentially institutionalized involvement of medical personnel in interrogation techniques that violate international standards: "The use of exceptional interrogation techniques should be limited to… when the detainee is medically and operationally evaluated as suitable."(397)Drawing on this, a 12 October 2003 US interrogation policy in Iraq noted that stress positions, dietary manipulation and sleep management could be used as interrogation techniques if "monitored by medics" (see page 70). The assumption that doctors will participate in torture or cruel, inhuman or degrading treatment, which defies the age-old ethical requirement that doctors act only with their patient's health and well-being in mind, was also apparent in a military memorandum requesting approval for various interrogation techniques at Guantánamo Bay in late 2002. One of the techniques requested was "exposure to cold weather or water (with appropriate medical monitoring)" – [emphasis added].(398) The request passed various levels of authority, including the General Counsel to the Secretary of Defense who suggested that it was legally available although not warranted on a blanket basis at that time.(399)

The totality of the conditions at Guantánamo Bay have had a seriously adverse effect on the psychological health of many of the detainees held there, according to the ICRC, the only independent organization to have had access to the detainees. Relevant professional and ethical standards make clear that the mental health professionals at the prison camp should raise the detention conditions and their effects on prisoners with the authorities. Amnesty International is not aware that they have done so, and points out that they are not independent – instead, like the detaining force, they are employed by the military. The Department of Defense has disclosed that there have been over 30 suicide attempts among the detainees. It has been reported that a decrease in the rate of suicide attempts is the result of the military psychiatrists reclassifying such attempts as "manipulative self-injurious behaviour", and that the total of suicide attempts under the old classification is now over 70.(400)

The final report of the Pentagon Working Group on "war on terror" interrogations states that US legislation criminalizing torture committed outside the USA "does not preclude any and all use of drugs". The withholding of health care and the use of forcible injections without the detainee knowing what he is being injected with has been alleged.
· Abu Zubaydah, who had been shot in the groin during his arrest, was allegedly denied painkillers to obtain his cooperation during interrogation (see Point 3.2).
· Alif Khan told Amnesty International in July 2003 that he had been given two injections, one in each arm, for his transfer from Afghanistan to Guantánamo. He said that he did not know what they were, but referred to experiencing "a kind of unconsciousness". Former Guantánamo detainee Mehdi Ghezali told Amnesty International in July 2004 that "even if prisoners didn't want any injections they were forced to receive them. Certain prisoners were beaten before they were injected."

The torture at Abu Ghraib was reported to US army investigators by a soldier, not a doctor. The Fay report found that medical personnel "may have been aware of detainee abuse at Abu Ghraib and failed to report it". The report called for an inquiry into this specific issue. Reported incidents implicating medical personnel include:
· "After they brought six people and they beat them up until they dropped to the floor and one of them his nose was cut and the blood was running from his nose and he was screaming but no one was responding and all this beating from [Guard X] and [Guard Y] and another man, whom I don't know the name. The doctor came to stitch the nose and [Guard X] asked the doctor to learn how to stitch and it's true, the guard learned how to stitch. He took the string and needle and he sat down to finish the stitching…."(401)
· "One of the prisoners was bleeding from a cut he got over his eye. Then they called the doctor who came and fixed him. After that they started beating him again..."(402)
· A military guard at Abu Ghraib wrote home about a death in custody in November 2003. He wrote that the day after his death, "the medics came and put his body on a stretcher, placed a fake [intravenous drip] in his arm and took him away".(403)

2.4 Access to relatives
Amnesty International issued a worldwide appeal in July 2004 for Sattam Hameed Farhan al-Ga'ood who had been arrested at his home in Baghdad by US soldiers on 19 April 2003.(404) He had not been seen for over a year, and although his family had received a number of messages via the ICRC to indicate that he was in detention, his whereabouts were not specified and remained unknown. His case was simply referred to as HVD, thought to mean "high-value detainee". The US authorities would appear, however, to place a low value on his right and the right of his family to be informed of his whereabouts and the reason for his arrest.

In its February 2004 report, the ICRC described the distress that family members in Iraq have suffered due to the systematic failure of the Coalition forces to provide information on the whereabouts of detainees. The arresting authorities "rarely informed the arrestee or his family where he was being taken and for how long, resulting in the de facto 'disappearance' of the arrestee for weeks or even months until contact was finally made". The ICRC continued: The suffering of relatives of the "disappeared" (see Point 3) has been found by the UN Human Rights Committee to amount to torture or cruel, inhuman and degrading treatment. (405) Similar cruelty is inflicted on the relatives of people held in indefinite incommunicado detention where the authorities fail to take steps to promptly inform the family of their loved one's arrest and whereabouts.

The family of Jamal Mar'i say that he left his native Yemen in 2001 to go to Pakistan to find work and pursue further studies. On 10 April 2004, his brother recalled: "Jamal set himself up in Karachi, Pakistan. While there, Jamal called and wrote to us regularly. It never felt as if he was very far away." Some time after 11 September 2001, a friend told the family that he had received a call from his son who was also in Karachi and knew Jamal. He said that he thought Jamal had been arrested in Karachi by US agents. Jamal's brother continued: The US authorities have shown little sympathy for the plight of families of detainees, spreading a level of distress and resentment in the community. (407)

2.5 Access to the courts
Central to the USA's "war on terror" detention policy has been to keep the detainees away from the courts. The administration chose Guantánamo precisely because it believed that "a district court cannot properly entertain an application for a writ of habeas corpus by an enemy alien detained at Guantánamo Bay Naval Base, Cuba," although it recognized that the issue was not "definitely resolved" in law.(409) It is clear that the US administration has seen its own judiciary, as well as international law, as an unwanted check on its activities.

A key safeguard against torture is for prisoners or others acting on their behalf to be able to invoke the power of the courts to challenge the legality of the detention and otherwise ensure the prisoner's safety. It can also serve as a safeguard against "disappearances" by asking the courts to locate a person who has "disappeared" (see Point 3).

In April 2004, arguing that the courts should be kept out of the administration's "war on terror" detentions, the government assured the US Supreme Court of its commitment to humane treatment. At oral arguments in the case of Yaser Esam Hamdi, a US citizen designated as an "enemy combatant" and held in indefinite incommunicado detention without charge or trial since December 2001, Justice Stevens asked: "Do you think there is anything in the law that curtails the method of interrogation that may be employed?" The government responded that "the United States is signatory to conventions that prohibit torture and that sort of thing. And the United States is going to honour its treaty obligations".(410) The official memorandums that have come into the public domain belie the government's assurances that it is committed to upholding international law and standards.

In the case of another US "enemy combatant", José Padilla, the four dissenting Justices made their feelings clear about unfettered executive power: "Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber".(411) During oral arguments in José Padilla's case, one of the four, Justice Ginsburg had asked the government: "So what is it that would be a check on torture? ... Suppose the executive says mild torture we think will get this information... Some systems do that to get information." The government replied: "Well, our executive doesn't…"(412) This answer was inaccurate. The administration has approved interrogation techniques which violate the prohibition on torture or cruel, inhuman or degrading treatment.

Finding that the US courts have jurisdiction over detainees in Guantánamo, the Supreme Court in June 2004 noted that "executive imprisonment has been considered oppressive and lawless" for almost eight centuries in English law.(413) The administration's response to this ruling has been inadequate, however. By mid-October 2004, more than three months after the decision, not a single Guantánamo detainee had appeared in court. Of the 68 detainees who had so far filed appeals for access to the US courts, only a small number had spoken to their lawyers.(414) Rather than facilitating judicial review, the administration has hastened a system of "Combatant Status Review Tribunals", administrative review bodies that determine, including on secret evidence and without legal counsel for the detainees, whether the latter are "enemy combatants" and should remain in detention.(415) The Pentagon has also said that it "believes the decision does not cover detainees held in other parts of the world".(416)

2.6 Recommendations under Point 2
The US authorities should:

• End the practice of incommunicado detention;
• Grant the International Committee of the Red Cross full access to all detainees according to the organization's mandate;
• Grant all detainees access to legal counsel, relatives, independent doctors, and to consular representatives, without delay and regularly thereafter;
• In battlefield situations, ensure where possible that interrogations are observed by at least one military lawyer with full knowledge of international law and standards as they pertain to the treatment of detainees;
• Grant all detainees access to the courts to be able to challenge the lawfulness of their detention. Presume detainees captured on the battlefield during international conflicts to be prisoners of war unless and until a competent tribunal determines otherwise;
• Reject any measures that narrow or curtail the effect or scope of the Rasul v. Bush ruling on the right to judicial review of detainees held in Guantánamo or elsewhere, and facilitate detainees' access to legal counsel for the purpose of judicial review.
  

In some countries torture takes place in secret locations, often after the victims are made to "disappear". Governments should ensure that prisoners are held only in officially recognized places of detention and that accurate information about their arrest and whereabouts is made available immediately to relatives, lawyers and the courts. Effective judicial remedies should be available at all times to enable relatives and lawyers to find out immediately where a prisoner is held and under what authority and to ensure the prisoner's safety.

3.1 Secrecy nurtures torture and "disappearance"
On 13 April 2004 in Yemen, Walid Muhammad Shahir Muhammad al-Qadasi spoke with Amnesty International in a cell in the Political Security Prison in Sana'a. He had recently been returned from detention in Guantánamo Bay. He recalled how he had been arrested in Iran in late 2001 and detained there for about three months before being handed over with other detained foreign nationals to the authorities in Afghanistan who in turn handed them over to the custody of the US. There they were kept in a prison in Kabul. Walid al-Qadasi said that the prisoners were only fed once a day and that loud music was used as "torture". He said that one of his fellow detainees went insane.

Walid al-Qadasi was eventually transferred to Bagram, where he faced a month of interrogation. Then his head was shaved, he was blindfolded, made to wear ear muffs and mouth mask, handcuffed, shackled, loaded on to a plane and flown out to Guantánamo. There, he said he was held in solitary confinement for the first month of what would become a two-year detention in the Naval Base. He said he was drugged for his transfer back to Yemen in April 2004.

Walid al-Qadasi's allegations depict a detention regime that violates many human rights standards – secret transfer and detention, no access to legal counsel, relatives or to a court, and cruel prison conditions and torturous treatment. As a former Commissioner of the US Immigration and Naturalization Service, James Ziglar, said in 2003: "The more secret government is, the more likely you're going to have abuses – there's no question about it".(418)

In October 2003, the American Civil Liberties Union and other US organizations filed a Freedom of Information Act (FOIA) request seeking information on the treatment and interrogation of detainees in US custody, and the transfer of detainees to countries known to use torture. Eleven months later, US District Judge Alvin Hellerstein noted that the government had, "with small exception", produced no information. He wrote that "[m]erely raising national security concerns cannot justify unlimited delay", and that the "glacial pace" of the government's response "shows an indifference to the commands of FOIA, and fails to afford accountability of government that the act requires." Judge Hellerstein stated: "No one is above the law: not the executive, not the Congress, and not the judiciary." He ordered the government to produce or identify all the relevant documents by 15 October 2004. (419)
Secrecy surrounding detentions is dangerous for the prisoner, distressing for relatives, and detrimental to the rule of law. Secrecy has been an overarching characteristic of the US administration's detention policy in the "war on terror". Even at acknowledged US detention locations, such as Guantánamo Bay, Bagram air base, and Abu Ghraib, the US has not made public the identities or precise numbers of people whom it has held and is holding there. This denial of information has increased the suffering of relatives and obstructed efforts to ensure the humane treatment of the detainees.

The US authorities have pursued an approach of giving only approximate numbers of detainees being held at Guantánamo.(420) This lack of precision raises the possibility that individual detainees could be moved to and from the Naval Base, or between different US agencies, without any public knowledge of such transfers, as they would not be reflected in the approximate numbers of detainees announced by the Pentagon.

On 24 November 2003, the Department of Defense announced that 20 unidentified detainees had been released from Guantánamo three days earlier and "approximately 20" more, also unidentified, had been transferred to the base two days after that, leaving "approximately 660" detainees in custody in Guantánamo.(421) On 15 March 2004, the Department announced that there were "approximately 610" detainees in the base, that is, 50 fewer than four months earlier. (422) Between the two announcements, however, the Pentagon had disclosed the release or transfer to other countries of only 43 Guantánamo detainees – 26 Afghan and Pakistan nationals(423); three child detainees (believed to be Afghan nationals)(424); a Spanish national(425); a Danish national(426); seven Russian nationals(427); and five British nationals(428). In other words, "approximately" seven detainees were unaccounted for in the official announcements of releases and transfers from the base.

The UN Special Rapporteur on torture has said: "It should not be possible for persons to be handed over from one police or security agency to another police or security agency without a judicial order. Where this happens, the officials responsible for the transfers should be held accountable under the criminal law".(429)

Over two and half years after detentions began in Guantánamo, a chief spokesperson for the Pentagon was unable to answer why the administration had not released the identities of those held in the Naval Base, saying "I do not know why we haven't done more to announce names".(430) A US military spokesperson suggested that the reason for continuing secrecy about detainees held in Afghanistan was to protect their right to privacy under the Geneva Conventions, another illustration of a government's self-serving approach to international law.(431) In August 2004, the UN Independent Expert on Afghanistan, Professor M. Cherif Bassiouni, said that the US was holding 300 to 400 people at Kandahar and Bagram air bases.(432) Except for visits by the ICRC – to the extent that they have been allowed – the detainees are held incommunicado. He said: "The lack of giving an opportunity for people to go and see these facilities is a lack of transparency that raises serious concerns about the legality of detention as well as the condition of those detentions."(433) Since mid-2003 many detainees have been held for longer periods in Bagram than was happening earlier in the US military operations in Afghanistan. In some cases detainees have been held for more than a year.(434)

In a statement for the Taguba investigation, a Colonel in the Judge Advocate General's Corps (i.e. a military lawyer), was asked about the activities in Abu Ghraib prison of "other government agencies" (OGA), a phrase used by the US military usually to mean the CIA. He recalled one particular case of three Saudi nationals – medical personnel working for the Coalition – who were taken into custody by the CIA and put in Abu Ghraib under false names(435): The phenomenon of so-called "ghost detainees" was revealed in Major General Antonio Taguba's leaked report. He wrote that "on at least one occasion", military guards at Abu Ghraib held six to eight such detainees. The detainees were moved around the facility to hide them from the ICRC, a manoeuvre which Taguba said was "deceptive, contrary to Army Doctrine, and in violation of international law." The Fay report into Abu Ghraib found cases of eight "ghost detainees", but concluded that it could not determine the real number, or who was responsible.(437) On 9 September 2004, General Paul Kern, who oversaw the Fay investigation, said that the real number of "ghost detainees" was much higher than the eight found – "the number is in the dozens, to perhaps up to 100".(438) Major General George Fay also said that he believed "it's probably in the dozens".(439)

Lieutenant Colonel Stephen Jordan, formerly director of the Abu Ghraib intelligence facility, has stated that "other government agencies" hid detainees in order that they could be moved out of the prison quickly, for example to Guantánamo.(440) In November 2003, Secretary of Defense Rumsfeld, acting on the request of the CIA's then director George Tenet, ordered military officials in Iraq to keep a detainee off any prison register.(441) In June 2004, Secretary Rumsfeld stated that "the decision was made that it would be appropriate not to [register the detainee] for a period."(442) He was asked why the ICRC had not been told of the detainee, and whether there were other such prisoners being detained without the knowledge of the ICRC. Secretary Rumsfeld responded that "there are instances where that occurs".(443) In June 2004, after seven months, the unidentified detainee had still not been registered with the ICRC. Secretary Rumsfeld stated that the detainee was not a "ghost detainee". Asked how this case was different from what the Taguba report described as "ghost detainees", Secretary Rumsfeld replied: "It is just different, that's all." However, he failed to explain how this case differed from those of other "ghost detainees", who under international standards are cases of enforced disappearance of persons due to the official failure to clarify their fate and whereabouts.

Secretary Rumsfeld was not questioned by the Fay investigation about this case, which concerned a detainee sometimes known as Triple-X, and reportedly held at the Camp Cropper detention facility.(444) However, General Paul Kern, who oversaw the Fay inquiry, said that "there are enough unknown questions about the 'ghost detainees' and what agreements were made with whom" for further investigation to be required.(445) For example, whether all such detainees were eventually transferred to military custody is unknown. At least one detainee, a Syrian national, was reportedly taken out of Iraq and held on a US Navy ship before being returned to Abu Ghraib in late 2003.(446) However, the USA has not yet conducted and made public the further investigation recognized as necessary by General Kern.

Secret detention is prohibited under international human rights standards. Principle 6 of the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions states that "governments shall ensure that persons deprived of their liberty are held in officially recognized places of custody, and that accurate information on their custody and whereabouts, including transfers, is made promptly available to their relatives and lawyers or other persons of confidence." (447) The Human Rights Committee, in an authoritative statement on the prohibition on torture and cruel, inhuman and degrading treatment, has stated that "to guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention… to be kept in registers readily available and accessible to those concerned, including relatives and friends".(448) The UN Special Rapporteur on torture has also said that "the maintenance of secret places of detention should be abolished under law. It should be a punishable offence for any official to hold a person in a secret and/or unofficial place of detention."(449) The Special Rapporteur reiterated this in August 2004.(450)

Amnesty International considers that the secret and unacknowledged detentions of the "ghost detainees" in Iraq, as revealed by the Taguba report, amount to "disappearances". As described in the following section, the organization also considers that other detainees held in undisclosed locations in the "war on terror", detained either under US control or in the custody of other countries with the USA's knowledge and acquiescence, or under US interrogation, have effectively been made to "disappear". The acknowledgement of their detentions has been at best limited and at worst non-existent, and their fate and whereabouts remain wholly unknown.

The UN Declaration on the Protection of All Persons from Enforced Disappearance, adopted by consensus by the community of nations, including the USA, states that "disappearances" occur when: Article 1 of the UN Declaration states that "any act of enforced disappearance is an offence to human dignity", which The UN Declaration states that: "All acts of enforced disappearance shall be offences under the criminal law punishable by appropriate penalties which shall take into account their extreme seriousness" (Article 4). Furthermore: "No order or instruction of any public authority, civilian, military or other, may be invoked to justify an enforced disappearance. Any person receiving such an order or instruction shall have the right and duty not to obey it" (Article 6). It makes clear that "disappearances" cannot be justified under any circumstances whatsoever, including "a threat of war, a state of war, internal political instability or any other public emergency" (Article 7). Article 10 states that: "Any person deprived of liberty shall be held in an officially recognized place of detention" and "be brought before a judicial authority promptly after detention". Article 10 further states that: "Accurate information on the detention of such persons and their place or places of detention, including transfers, shall be made promptly available to their family members, their counsel or to any other person having a legitimate interest in the information" (emphasis added).

Enforced disappearances have been recognized as crimes under international law since the judgment of the Nuremberg Tribunal in 1946.(452) International instruments adopted since that date have reiterated that enforced disappearances are crimes under international law.(453)

3.2 Secret detentions and 'other government agencies'
Since the 1970s, Amnesty International has documented how the use of "disappearances" in countries around the world leaves detainees vulnerable to other grave human rights violations including torture and extrajudicial execution.(455) A quarter of a century later, in the "war on terror", the US Central Intelligence Agency or "other government agencies" are alleged to have been responsible for holding an unknown number of "disappeared" – "ghost detainees" in US parlance – unregistered and unacknowledged prisoners hidden from the ICRC and from their relatives. Torture is alleged to have been used against detainees held in secret.

President Bush's memorandum of 7 February 2002 stating that the USA would treat detainees in the "war on terror" humanely, even "those who are not legally entitled to it", included the Director of the CIA as one of its recipients. It stated that "as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely".(456) This assurance did not include the CIA and other agencies and it omitted any reference to persons "rendered" to states that use torture in interrogation (see Point 12.1). The CIA is an independent agency responsible to the President through its Director and accountable to the country through Congress. The President has the authority to direct the CIA to conduct covert operations.

In his account of the US administration's response to the atrocities of 11 September 2001, Bob Woodward of the Washington Post describes a meeting of top US officials in Camp David on the weekend of 15 and 16 September 2001.(457) At the meeting, the then Director of the CIA, George Tenet, reportedly requested that "exceptional authorities" be granted to his agency: "This was a request for a broad intelligence order permitting the CIA to conduct covert operations... The CIA needed new, robust authority to operate without restraint".(458) Woodward continues: On the afternoon of 17 September 2001, according to Woodward's account, President Bush signed the Memorandum of Notification authorizing all the measures that the CIA Director had proposed two days earlier at the administration's Camp David meeting of the war cabinet.(461) It has since been reported that President Bush authorized the CIA to set up secret detention facilities outside the USA and to use harsh interrogation techniques.(462) The US government then reportedly negotiated "status of forces agreements" with foreign governments to give immunity to US agents and private contractors in the secret facilities.(463) Another report quotes a former US intelligence official as saying that "there was a debate after 9/11 about how to make people disappear", with the reported result being secret agreements allowing the CIA to use facilities outside the USA unhindered by external scrutiny.(464)

A year after the Camp David meeting, one of its attendees, the former chief of the CIA's Counterterrorist Center, Cofer Black, conjured the spectre of torture and ill-treatment when the only detail he would give of the "very highly classified area" of "operational flexibility" was that "there was before 9/11 and after 9/11" and that "after 9/11 the gloves come off."(465) Three months after that statement, evidence emerged that the CIA was employing interrogation methods – so-called "stress and duress" techniques – which violated the prohibition on torture and ill-treatment, in secret detention facilities, and transferring detainees to the custody of countries with poor human rights records (see Point 12.1). A Washington Post report at this time alleged that the CIA was using hooding, sleep deprivation and forcing detainees to stand or kneel for hours in a secret facility in Bagram air base to which the ICRC had not had access. (466) The report quoted an official who had supervised the capture and transfer of detainees: "If you don't violate someone's human rights some of the time, you probably aren't doing your job. I don't think we want to be promoting a view of zero tolerance on this. That was the whole problem for a long time with the CIA."

In June 2003, the CIA's General Counsel, Scott Muller, gave assurances that although the CIA "does not comment on operational activities or practices…, in its various activities around the world the CIA remains subject to the requirements of US law."(467) As already noted, however, the interpretation of US law by administration lawyers in the wake of 11 September 2001 is a matter for serious concern. Scott Muller's assurances must now be viewed in the light of these memorandums. Indeed, the Fay report into Abu Ghraib found that the CIA operated outside the rule of law and encouraged military personnel to do the same (see below).

A CIA request for legal protections for its interrogators reportedly lay behind the now notorious memorandum on torture, dated 1 August 2002, written in the Justice Department and sent to the White House. (468) It was reportedly written following discussions within the government about the legality of methods used by the CIA to interrogate Abu Zubaydah, an alleged leading member of al-Qa'ida arrested in Pakistan on 28 March 2002 and taken into US custody. He was reported to have been taken to a secret CIA interrogation facility in Thailand.(469) He had been shot in the groin during his arrest, and it is alleged that painkillers were used "selectively" to obtain his cooperation during interrogation.(470) The August 2002 memorandum includes the suggestion that the US prohibition on torture "does not preclude any and all use of drugs", a line repeated in the final report of the Pentagon Working Group in April 2003. As already noted, the memorandum concluded that interrogators could cause a great deal of pain before crossing the threshold to torture; that in any case the US President's authority as Commander-in-Chief could override the prohibition on torture; and that even if interrogators were prosecuted for torture, there were defences available to them by which they could escape criminal liability.

Allegations of torture and other cruel, inhuman or degrading treatment that were made before this and other government memorandums came to light today take on a new resonance. For example, in March 2003, the New York Times quoted a "Western intelligence official" as describing the treatment in Bagram air base of Omar al-Faruq, an alleged senior al-Qa'ida operative, as "not quite torture, but about as close as you can get". The official reported that over a three-month period, Omar al-Faruq was "fed very little, while being subjected to sleep and light deprivation, prolonged isolation and room temperatures that varied from 100 degrees [38 degrees centigrade] to 10 degrees [minus 12 degrees centigrade]".(471) It is not known where Omar al-Faruq, a Kuwaiti national, is now held.

Detainees kept in secret locations are those considered to have high intelligence value. In this respect "high value" also suggests "high risk" – of torture or ill-treatment made possible by the secrecy of the detention (itself a form of ill-treatment). Other "high value" al-Qa'ida suspects have been taken into US custody since the capture of Abu Zubaydah and, like him, reportedly held under CIA control in secret locations outside US territory. Their whereabouts are so secret that President Bush is said to have informed the CIA that he did not want to know where the detainees are being held.(472)

There have been reports that secret US facilities are located in Jordan, Diego Garcia, Pakistan, Egypt, Thailand, and Afghanistan. For example, there is reported to be a CIA facility in Kabul in the former Ariana hotel, and one known as "The Pit", also in Kabul. Khaled El Masri recently told Amnesty International that he was detained in Kabul in early 2004 (see also Point 12.1). He alleged that other detainees told him of a nearby detention facility in which there were around 200 detainees, most of whom "belonged" to the Afghan authorities, but about 10 of whom "belonged" to the US and would be moved whenever the ICRC visited. Such reports of secret detention facilities are by definition not yet confirmed and the allegations have been denied or ignored by the authorities.(473) At the time of writing, Amnesty International had not received a response to a letter it wrote in August 2004 to the Acting Director of the CIA raising Khaled El Masri's allegations. (474) The organization is concerned that, if these allegations are correct, the detainees have been "disappeared".

Citing "international intelligence sources", an Israeli newspaper has alleged that at least 11 of the most senior alleged members of al-Qa'ida in custody, including Abu Zubaydah, Riduan Isamuddin (see page 184), Khalid Sheikh Mohammed (see below) and Ramzi bin al-Shibh, are being held in a secret CIA facility in Jordan.(475) There, the newspapers states, CIA interrogators can apply interrogation methods banned under US law in a country whose close relationship with the USA makes leaked information about the detainees less likely. The government of Jordan has "categorically denied" the allegations, as it has done previously.(476) There is evidence that Maher Arar, a Canadian/Syrian national who was deported from the USA in October 2002, may have been held in a CIA facility in Jordan before being transferred to Syria where he was allegedly subjected to severe torture (see Point 12.1).(477)

"Disappearances"
Some individuals allegedly held in unknown locations may have been held for as long as three years. It is not known whether they are alive or dead, whether they are held in a US facility in Afghanistan, in Guantánamo, or in a facility in another country, under US or non-US control, or on a ship off Diego Garcia or elsewhere. This refusal or failure to acknowledge in whose custody they are currently detained or clarify the whereabouts of the detainees, leaving them outside the protection of the law for a prolonged period, places them squarely within the scope of the UN Declaration on the Protection of All Persons from Enforced Disappearance (see page 106).(478)

The 9/11 Commission Report on the 11 September 2001 attacks revealed that it had been "authorized to identify by name only ten detainees whose custody has been confirmed officially by the US government."(479) It did not say when this confirmation occurred, or whether the detainees were or had been in direct US custody or where they were or had been held. Nor did it say whether any of the detainees had at any point been transferred between the USA and other countries.

For example, of one of the 10 detainees, Abd al Rahim al Nashiri, the 9/11 Commission Report states only that "Nashiri's November 2002 capture in the United Arab Emirates finally ended his career as a terrorist". The Commission explained that its access to information on the detainees had been "limited to the review of intelligence reports based on communications received from the locations where the actual interrogations take place".(480) It was allowed no further input or access on the grounds that it would "disrupt the sensitive interrogation process". These minimal details clearly do not suffice to establish:
· whether the 10 prisoners were held by the US authorities (rather than by other countries) and, if so, under which authorities they were held, and when they were first in US custody;
· whether they are still in US custody and, if so, where they are held and under what conditions; if not, what happened to them after they ceased to be in US custody.

Concerned persons, including relatives and human rights monitors, are left in the dark about the whereabouts, fate, and well-being of the detainees.

As in the case of the "disappeared" in US custody in Iraq, the ICRC has been denied access to or information about detainees kept in undisclosed locations. Indeed, the organization has not even been told where such locations are. In January 2004 it issued a press release in which it stated: In May 2004, the ICRC revealed that it has "repeatedly appealed to the American authorities for access to people detained in undisclosed locations".(482) By late July 2004, the US authorities were continuing to deny access to the ICRC.(483) This remained the case as of 19 October 2004.

Those not included in the 9/11 Commission's list of 10 detainees, but who are believed to be or to have been in US custody at unknown locations include: Ibn al-Shaikh al-Libi, a Libyan national taken into custody in Afghanistan in January 2002; Omar al-Faruq, arrested in Indonesia on 5 June 2002 (see above); Sayf al-Islam al-Masri, arrested in early October 2002 in Georgia; and Muhammad Mansur Jabara, dual national of Kuwait and Canada, arrested in Oman in March 2002 and reportedly transferred to the USA, possibly via Canada. In December 2002, Amnesty International wrote to the US government for clarification on the whereabouts and legal status of these individuals.(484) The organization has never had a reply. It has also never had a reply to its request for clarification on the whereabouts of Yemeni national Jamil Qasim Saeed Mohammed, reportedly transferred from Pakistan custody to US custody three years ago (see Point 12.1).

Other detainees whose whereabouts are unknown include Adil Al-Jazeeri, an Algerian national, who was reportedly handed over by Pakistan to US authorities in July 2003 after being held incommunicado for a month and allegedly subjected to "tough questioning". He was flown out of Peshawar to an undisclosed location, possibly Bagram, for US interrogation.(485) Amnesty International has had no clarification from the authorities as a result of its urgent appeal on the case.(486)

Abu Zubair al-Haili, a Saudi national, was arrested in Morocco in June 2002 by the authorities there. A US official was reported as saying that Zubair al-Haili had "a wealth of information", to which the USA would have access.(487) It is not clear if al-Haili has ever been transferred to US custody. Another detainee, Saudi national Mustafa al-Hawsawi, was reportedly arrested in Pakistan on 1 March 2003 and subsequently flown to an undisclosed location in US custody.

Torture alleged
One of the 10 detainees whose detention has been "confirmed" via the 9/11 Commission Report is Khalid Sheikh Mohammed, arrested in Pakistan along with Mustafa al-Hawsawi. At that time, asked about how Khalid Sheikh Mohammed would be treated during interrogation, the White House spokesman replied that "the standard for any type of interrogation of somebody in American custody is to be humane and to follow all international laws and accords dealing with this type subject. That is precisely what has been happening, and exactly what will happen."(488) Since then, it has been alleged that the CIA subjected Khalid Sheikh Mohammed to a torture technique known as "water boarding" in which the prisoner is forcibly pushed under water to the point that he believes he will drown.(489) According to current and former counterterrorism officials, this and other techniques were reportedly authorized under a set of secret rules for the interrogation of high-level al-Qa'ida detainees endorsed by the Justice Department and the CIA early in the "war on terror".(490)

A Pentagon spokesperson has said of the alleged use of "water boarding" that "it is not a technique that's part of this approval, and based upon everything I know, that is an absolute false report."(491) Nevertheless, "asphyxiations" of detainees by US soldiers have been alleged in Iraq,(492) and the technique of "water-boarding" is similar to an interrogation method that was requested for use at Guantánamo in late 2002. A memorandum, dated 11 October 2002, requested approval of four "Category III" techniques for use against "the most uncooperative detainees" held in Guantánamo.(493) One of the techniques requested was "use of wet towel and dripping water to induce the misperception of suffocation". The request noted that such techniques were used by "other US government agencies" (e.g. the CIA).

In late June 2004, it was reported that the CIA had suspended the use of its "enhanced interrogation techniques", such as feigning suffocation, stress positions, light and noise bombardment, and sleep deprivation. One former CIA official was quoted as saying: "The whole thing has stopped until we sort out whether we are sure we're on legal ground".(494) It is shocking that any such legal review is considered necessary for techniques that so flagrantly flout international law and standards prohibiting torture and ill-treatment.

Shrouded in secrecy
The CIA's activities in the "war on terror" remain shrouded in secrecy. In June 2004, the White House Counsel refused to "get into questions related to the CIA".(495) Two months later, the Schlesinger review into Pentagon detention policies found that: The Schlesinger Panel revealed that it had not had "full access to information involving the role of the Central Intelligence Agency in detention operations; this is an area the Panel believes needs further investigation and review." The Panel's chairman, John Schlesinger, acknowledged at the press conference to release the report on 24 August 2004 that his investigators had only "had partial access to the CIA…We did not have a sharing".

The following day, the Fay report into Abu Ghraib was released. It reserved particular criticism for the CIA, noting that the agency's "detention and interrogation practices led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib". (497) It found that the CIA had held a number of "ghost detainees". At least one of them – Manadel al-Jamadi (see Point 6) – had died in custody. It found that CIA personnel had used aliases, and detained people under false names. It found that the CIA officers had generally operated outside the military's rules and procedures, citing an instance where a CIA officer had loaded his gun during an interrogation. General Fay told the Senate Armed Services Committee that the CIA had refused to provide the information he requested for his investigation.(498)

3.3 Recommendations under Point 3
The US authorities should:

• Clarify the fate and whereabouts of those detainees reported to be or to have been in US custody or under US interrogation in the custody of other countries, to whom no outside body including the International Committee of the Red Cross are known to have access, and provide assurances of their well-being. These detainees include but are not limited to those named in the 9/11 Commission Report and in this Amnesty International report as having been in custody at some time in undisclosed locations;
• End immediately the practice of secret detention wherever it is occurring, and under whichever agency. Hold detainees only in officially recognized places of detention;
• Not collude with other governments in the practice of "disappearances" or secret detentions, and expose such abuses where the USA becomes aware of them;
• Maintain an accurate and detailed register of all detainees at every detention facility operated by the US, in accordance with international law and standards. This register should be updated on a daily basis, and made available for inspection by, at a minimum, the International Committee of the Red Cross, and the detainees' relatives and lawyers or other persons of confidence;
• Make public and regularly update the precise numbers of detainees in US custody specifying the agency under which each person is held, their identity, their nationality and arrest date, and place of detention;
• Either charge and bring to trial, in full accordance with international law and standards and without recourse to the death penalty, all detainees held in US custody in undisclosed locations, or else release them;
• Comply without delay with Freedom of Information Act requests, and related court orders, aimed at clarifying the fate and whereabouts of such detainees;
• Make public and revoke any measures or directives that have been authorized by the President or any other official that could be interpreted as authorizing "disappearances", torture or cruel, inhuman or degrading treatment, or extrajudicial executions.
  

All prisoners should be immediately informed of their rights. These include the right to lodge complaints about their treatment and to have a judge rule without delay on the lawfulness of their detention. Judges should investigate any evidence of torture and order release if the detention is unlawful. A lawyer should be present during interrogations. Governments should ensure that conditions of detention conform to international standards for the treatment of prisoners and take into account the needs of members of particularly vulnerable groups. The authorities responsible for detention should be separate from those in charge of interrogation. There should be regular, independent, unannounced and unrestricted visits of inspection to all places of detention

4.1 Keeping powers of interrogation and detention apart
After receiving a briefing on the report produced by his appointees on the Schlesinger Panel, Secretary of Defense Rumsfeld said: "I think the interesting thing about the Schlesinger Panel is their conclusion that, in fact, the abuses seem not to have anything to do with interrogation at all…".(500) In fact, the Schlesinger report's first paragraph contains the sentence: "[W]e do know that some of the egregious abuses at Abu Ghraib which were not photographed did occur during interrogation sessions and that abuses during interrogation sessions occurred elsewhere." The day after the Fay report into Abu Ghraib was issued, Secretary Rumsfeld said that: "I have seen nothing yet that suggests that there was any abuse that was related to interrogations. So all of the press and all of the television, thus far, that tries to link the abuse that took place to interrogation techniques in Iraq has not yet been demonstrated – quite the contrary." Later in the same press conference, Secretary Rumsfeld said that he had been advised that the Fay report had found "two or three instances where a detainee in Iraq…who should not have been abused during an interrogation process, but was abused". (501)

An administration that has adopted a selective disregard for the Geneva Conventions and international human rights law in order to give free rein to its interrogators, and authorized interrogation techniques that flout international standards, is likely to want to downplay any evidence that its policies have led to torture. Secretary Rumsfeld appears to have taken a selective view of the investigations so far conducted, promoting evidence that fitted the administration's earlier claims that this was a problem restricted to a few aberrant soldiers, and ignoring evidence to the contrary.

There is much evidence that what happened in Abu Ghraib and elsewhere has been intelligence-driven. While the Fay report claims that the worst of the sexual and physical torture depicted in the Abu Ghraib photographs were the actions of a "small group of morally corrupt and unsupervised soldiers and civilians", it also points to wider abuses and suggests that even the abuses depicted in the photographs could be linked to a climate set by the pursuit of intelligence. It is this pursuit that has driven the USA's "war on terror" detention policies as a whole, from Afghanistan to Guantánamo to undisclosed locations. The lifting of a basic safeguard – the separation of the powers of interrogation and detention – is a thread that runs from Afghanistan to Abu Ghraib.

In letters and emails written before he was charged in the Abu Ghraib abuses, Staff Sergeant Ivan Frederick wrote: The Taguba report cited numerous examples of how guards were allegedly used to soften up detainees. One guard recalled "how her job was to keep detainees awake". She said that Military Intelligence [MI] "wanted to get them to talk. It is [the guards'] job to do things for MI and OGA [other government agencies, e.g. CIA] to get these people to talk." Another guard recalled that intelligence officials had said things like "loosen this guy up for us"; "make sure he has a bad night"; "make sure he gets the treatment". Asked how interrogators broke new detainees, a military police guard replied: "detainees were brought in subjected to sleep deprivation, cold showers every 30 minutes, cuffed and forced to stand for long periods of time and PT [physical training], i.e. push-ups, side straddle hops, etc."(503) A military intelligence soldier told the Taguba investigation: The Fay report found that "although self-serving", the claims of military guards that they were acting at the direction of intelligence officials "do have some basis in fact… The climate created at Abu Ghraib provided the opportunity for such abuse to occur." Part of this climate was that "the delineation of responsibilities seems to have been blurred when military police soldiers, untrained in interrogation operations, were used to enable interrogations. Problems arose in the following areas: use of dogs in interrogations, sleep deprivation as an interrogation technique and use of isolation as an interrogation technique."(505)

Far from the "two or three cases" referred to by Secretary Rumsfeld in his 26 August press conference, the Fay report found 16 incidents in which abuse by guards "was, or was alleged to have been, requested, encouraged, condoned, or solicited" by military intelligence personnel. This included the use of isolation with sensory deprivation, removal of clothing and humiliation, the use of dogs to instil fear, and physical abuse. In 11 cases, military intelligence officers were found to have actually directed the torture or ill-treatment. In addition, the report found that military intelligence personnel "were also found not to have fully comported with established interrogation procedures and applicable laws and regulations". Poorly defined and shifting interrogation policies were also a problem, and "as a result, interrogation activities sometimes crossed into abusive activity". (506)

In Iraq, the blurring between intelligence and detention roles appears not to have been restricted to Abu Ghraib. In its February 2004 report, the ICRC noted that ill-treatment, sometimes "tantamount to torture", was systematic when the detainee was suspected of involvement in a security offence or deemed to have "intelligence" value and held in detention supervised by military intelligence. Guards from Camp Whitehorse near Nasiriya testified at a military hearing in May 2004 that they had been instructed by intelligence officials to use a technique known as 50/10, in which detainees were required to stand for 50 minutes out of every hour until the arrival of interrogators as much as eight hours later. A military investigator concluded that someone from military intelligence "must have directed or strongly suggested" that guards use the tactic.(507) An interrogator in the case also reportedly made pre-trial statements saying that sleep deprivation was useful in maintaining the "shock of capture".(508) This echoes the language of a memorandum, signed by the commanding officer in Iraq, Lieutenant General Sanchez, on 14 September 2003 (see Point 1.2). Sent to interrogators, this document reportedly sanctioned the use of isolation, and "sleep management", as well as "yelling, loud music, and light control… to create fear, disorient detainees and capture shock".(509)

In Afghanistan, the USA adopted a "template whereby military police actively set the favourable conditions for subsequent interviews" – presumably meaning that guards in some way were meant to "soften up" detainees prior to their interrogation.(510) The Fay report referred to the US practice in Afghanistan of "removing clothing, isolating people for long periods of time, using stress positions, exploiting fear of dogs and implementing sleep and light deprivation."(511)

There are numerous examples from Afghanistan. In May 2003 in Kabul, former detainee Sayed Abbasin recalled to Amnesty International how in the US air base at Bagram he had been held in handcuffs and shackles for the first week, kept under 24-hour lighting and woken by guards when trying to sleep, not given enough food, not allowed to talk to or look at other detainees, and forced to stand and kneel for hours. During this time he was interrogated six or seven times. He recalled his transfer to Kandahar air base – blindfolded, a black bag over his head and taped around his neck, his hands and legs tied. He said the handling was so rough, he would not have been surprised if someone would have died. In Kandahar, again the detainees were not allowed to look at the soldiers' faces. If they did, they were made to kneel for an hour. If they looked twice, they were made to kneel for two hours. He says he was interrogated five or six times in Kandahar, before being transferred to Guantánamo Bay.

In late 2002, at the time that Major General Geoffrey Miller took over as commander of Guantánamo, Secretary of Defense Donald Rumsfeld reportedly gave military intelligence control of the detainee operations at the base, including the guards.(512) In August and September 2003, Major General Miller went to Iraq to advise on how to obtain better intelligence from US detentions there. His report stated that it was "essential that the guard force be actively engaged in setting the conditions for successful exploitation of the internees". He made a number of recommendations to this end, "the vast majority of which were implemented following the visit".(513) His recommendations were based on his experience in Guantánamo, a detention regime of which he has said "we're enormously proud… to be able to set that kind of environment where we were focussed on gaining the maximum amount of intelligence".(514)

For its part, Amnesty International believes that the totality of the detention conditions – harsh, isolating and indefinite – faced by the majority of detainees held there has amounted to cruel, inhuman or degrading treatment in violation of international law. Between January 2002 and June 2004, when the US Supreme Court moved to begin to restore the rule of law to Guantánamo, hundreds of detainees were held virtually incommunicado in small cells with limited opportunity to exercise, no access to television, radio, or newspapers, no access to the courts, their families or lawyers, subjected to repeated interrogations, with no indication of when, if ever, they would be released or made subject to some form of legal process. The ICRC has long since said that it has witnessed a serious deterioration in the mental health of a large number of the detainees because of the indefinite nature of their detention. It has apparently driven numerous inmates to the point of suicide. Shah Mohammed, a 20-year-old Pakistani man who spent more than a year in Guantánamo, recalled how he had attempted suicide more than once: "I tried four times, because I was disgusted with my life. It is against Islam to commit suicide, but it was very difficult to live there. A lot of people did it."(515)

On 14 June 2004, Secretary Rumsfeld said that "a person being held in, for the sake of argument, Guantánamo, who does not know how long they will be held, some people would characterize that as the uncertainty of not knowing when they might be tried or released as a form of mental torture. Therefore, that word gets used by some people in a way that is fair from their standpoint, but doesn't fit a dictionary definition of the word that one would normally accept."(516) He did not explain what he would consider the "dictionary definition" of cruel, inhuman or degrading treatment to encapsulate. According to international standards, this term "should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental."(517) Regarding administrative detention of Palestinians by the Israeli army (under six-month orders, renewable indefinitely), the UN Committee against Torture stated that "the Committee continues to be concerned that administrative detention does not conform with article 16 of the Convention [prohibiting cruel, inhuman or degrading treatment]."(518)

The separation of the authorities responsible for detention and those responsible for interrogation is an important safeguard against torture or cruel, inhuman or degrading treatment. The UN Committee against Torture has said that it "expects that the detention and interrogation functions will be separated."(519) The UN Special Rapporteur on torture has stated that the period that detainees are held "in facilities under the control of their interrogators or investigators… should not exceed a period of 48 hours. They should accordingly be transferred to a pre-trial facility under a different authority at once, after which no further unsupervised contact with the interrogators or investigators should be permitted."(520)

4.2 Isolation as an interrogation technique
In occupied Iraq, the ICRC reported the USA's systematic resort to keeping detainees "completely naked in totally empty concrete cells and in total darkness, allegedly for several consecutive days." A US military intelligence official told the ICRC delegates that this practice was "part of the process" – a process which the ICRC said "appeared to be a give-and-take policy whereby persons deprived of their liberty were 'drip-fed' with new items (clothing, bedding, hygiene articles, lit cell, etc.) in exchange for their 'co-operation'." (522) The Fay report on Abu Ghraib found indications of "the routine use of total isolation and light deprivation."

Isolation is one of the interrogation techniques authorized by Secretary of Defense Rumsfeld in his December 2002 and April 2003 memorandums.(523) According to leaked Department of Defense documents, one of the concerns that the ICRC raised with the US authorities at Guantánamo was the "excessive isolation" of detainees in punishment cells for refusing to provide information in interrogations. According to the Department's leaked notes of a meeting between the ICRC and the Guantánamo authorities in October 2003, the ICRC was concerned that there had been no improvement on this issue. The official notes of the meeting state: According to the official record of the meeting, Major General Miller, the Guantánamo Commander, responded that the detainees "are enemy combatants picked up on the field of battle in Afghanistan. There is no issue with interrogation methods. The focus of ICRC should be the level of humane detention being upheld not the interrogation methods. JTF GTMO [Joint Task Force Guantánamo] treats all detainees humanely."(525)

Sayed Abbasin recalled to Amnesty International in May 2003 being put in an isolation cell without blankets for five days as punishment for exercising in his cell.(526) In an interview for Amnesty International in August 2003, former Guantánamo detainee Muhammad Naim Farooq said that he had witnessed two cases of suicide attempts, one by a fellow Afghan detainee, and one by an Iranian. He said that both were "punished with solitary confinement, without any clothes. I could not see for how long". Released Swedish detainee Mehdi Ghezali has said that after six months of cooperating in interrogations, he decided to remain silent: "I was punished with isolation and was brought to a special block where prisoners were kept solely to be isolated… There was a very strong light in these cells, too. In these cells there were small windows, but you couldn't see anything through them".(527) He says that the first time he was put in isolation, it was for five weeks, but that some detainees were isolated for up to four months.

Solitary confinement can be cruel, unnecessary and damaging to the physical and mental health of a prisoner. International standards increasingly favour its restriction or elimination.(528) In his August 2004 report to the UN General Assembly, the UN Special Rapporteur on torture reiterated that solitary confinement can in itself "constitute a violation of the right to be free from torture".(529)

In July 2004, Guantánamo detainee Moazzam Begg wrote that he had been held in solitary confinement since 8 February 2003, which means that by October 2004 he had been in isolation for approximately 600 days.(530) In July 2003, he was one of six foreign nationals made subject to the Military Order that President Bush signed on 13 November 2001.(531) Under the Order, the six could be held in indefinite detention without charge or trial, but at the same time they became eligible for trial by military commission. They were subsequently removed to a separate part of the detention facility in Guantánamo Bay known as Camp Echo, where they were held in solitary confinement in reportedly windowless cells, with 24-hour video surveillance. According to a leaked Pentagon document, in a meeting with the Guantánamo authorities in October 2003, the ICRC expressed shock "to see that Camp Echo had expanded", and belief that the facility was "extremely harsh and has very strict interrogations".(532)

Another of the six men named under the Military Order in July 2003, Salim Ahmed Hamdan, a Yemeni national, was moved to Camp Echo in December 2003, and was reportedly still there in October 2004. Dr Daryl Matthews, a forensic psychiatrist, testified in late March 2004 that: Deliberate treatment having these effects on a detainee clearly violates international law. If Dr Matthews' prognosis were to materialise, Salim Ahmed Hamdan's treatment could qualify as torture even under the narrow definition suggested in the August 2002 Justice Department memorandum. The latter suggests that to qualify as torture, "the acts giving rise to the harm must cause some lasting, though not necessarily permanent, damage…[T]he development of a mental disorder such as post-traumatic stress disorder, which can last months or even years, or even chronic depression, which also can last for a considerable period of time if untreated, might satisfy the prolonged harm requirement [to constitute torture under US law]". To be criminally liable for torture, the memorandum suggests, the perpetrator must "specifically intend to cause prolonged mental harm". Dr Matthews' declaration was signed in March 2004. The ICRC had, even before Salim Hamdan was put isolation, made clear its concern about psychological deterioration among the Guantánamo detainees. The authorities cannot claim ignorance.

In July 2004, released Guantánamo detainee Mehdi Ghezali told Amnesty International that he was moved to Camp Echo for the last week of his detention. He said that he was watched over all the time by a camera, in a cell that was permanently lit.(534) He said that he was not allowed to leave the cell once for the entire week. He was interrogated during the week and told to sign a document which he refused. On the day of his release, he was again ordered by the US to sign the document – and Swedish diplomats advised him to do so or he would not be released. The document stated that he agreed never to join al-Qa'ida or the Taleban. He felt that by signing it he had been coerced into an admission of such an association.

In its leaked February 2004 report on Coalition abuses in Iraq, the ICRC stated: The ICRC pointed out that such use of solitary confinement contravened the Third and Fourth Geneva Conventions and recommended that the authorities "set up an internment regime which ensures respect for the psychological integrity and human dignity of the persons deprived of their liberty".

In 2000, the UN Committee against Torture criticized the "excessively harsh regime of the 'super-maximum' prisons" in the USA.(535) Four years later, in May 2004, the US authorities opened "Camp Five" at Guantánamo Bay. This appears to have been modelled on the "super-maximum" security prisons on the US mainland. Detainees are held in solitary confinement for up to 24 hours a day in concrete cells and are under 24-hour video surveillance. Camp Five is reported to have a capacity for a detainee population of 100.

4.3 Specific protection for women and child detainees
Children, women and men are all alleged to have been subjected to torture or other cruel, inhuman or degrading treatment by US agents in the "war on terror". International legal standards contain specific provisions for the case of women and children taken into custody.

Child detainees
Children should be separated from adult detainees unless it is considered not in the child's best interest to do so.(537) In October 2002, an adult detainee Abdullah recalled to Amnesty International his arrest and alleged ill-treatment by US forces in Afghanistan the previous March when he was held for four days. He says that when he was taken to Kandahar air base, he was put in a cage, under a tent, with about 14 others, including a boy of about 15 years old. The Taguba report into the torture and ill-treatment in Abu Ghraib refers to the alleged rape of a 15-year-old detainee by an adult detainee in the prison.

The conditions of detention and treatment of children have caused serious concern. Seventeen-year-old Akhtar Mohammed, for example, stated that US soldiers kept him in solitary confinement in a shipping container for eight days following his arrest with others in Uruzgan province in Afghanistan in January 2002.(538) Mohammed Ismail Agha was aged 13 when he was taken into US custody in Afghanistan in late 2002 and held in Bagram air base for six weeks. He was nevertheless considered to be a "threat to US security" and was subsequently held in US custody without charge or trial for more than a year, including at Guantánamo Bay. He has alleged that he was held in solitary confinement in Bagram and subjected to sleep deprivation and stress positions: "They were interrogating me every day and in the first three or four days giving just a little food, and giving punishment". He said he was forced to sit on his haunches for three or four hours at a time, even when he wanted to sleep.(539) He said: Mohammed Ismail Agha was released back to Afghanistan from Guantánamo in late January 2004 with two other child detainees. Article 3 of the Convention on the Rights of the Child states: "In all actions concerning children… the best interests of the child shall be a primary consideration". Alongside Somalia (which has not functioned as a state for over a decade), the USA is the only country in the world not to have joined this Convention. As a signatory, however, it is bound to respect its provisions.(541) The Pentagon made clear that the decision for the releases was not concerned with the best interests of the children but only with the perceived best interests of the USA. The releases came about after determination that "the juvenile detainees no longer posed a threat to our nation, that they have no further intelligence value and that they are not going to be tried by the US government for any crimes."(542) The Pentagon did not, however, offer an explanation about how three children between the ages of 13 and 15 had been considered to be such a threat to the USA that it felt justified in violating international safeguards on the treatment of children. (543)

In July 2004, the ICRC reported that it "believes that the US continues to detain two juveniles i.e. detainees under 18 years of age at Guantánamo Bay".(544) The ICRC has stated that it "does not consider Guantánamo Bay an appropriate place to detain juveniles." Amnesty International agrees and has repeatedly written to the authorities on this matter, urging their release or fair trial in accordance with international standards.

International law and standards recognize the particular vulnerability of children and require, among other things, that children should be detained only as a last resort and for the shortest time possible. The definition of a "child", according to most international legal standards, is anyone under the age of 18. In communications with Amnesty International on the subject of child detainees in Guantánamo, the USA has only referred to those children under 16 years old.

Canadian national Omar Khadr, who was reported to be 15 years old at the time of his arrest in Afghanistan and was transferred in late 2002 from there to Guantánamo, was still held in Camp Delta without access to legal counsel or his family two and a half years later.(545) Article 40 of the Convention on the Rights of the Child states that "every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action". Article 37(b) of the Convention stresses that "the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a last resort and for the shortest appropriate period of time". Amnesty International is therefore disturbed by the Pentagon's position that: "Age is not a determining factor in detention". (546)

There have also been allegations of torture or ill-treatment of children taken into US custody in Iraq.(547) The Fay report found that on 19 September 2003, a 17-year-old Syrian detainee was interrogated in Abu Ghraib. He was naked, and was covering his genital area with an empty food bag. He was ordered to raise his hands, causing him to drop the bag and exposing himself to the interrogation team, including two females. The Fay investigation considered that this act of humiliation violated the Geneva Conventions. It found that the interrogators had used the teenager's nudity as an interrogation technique – with the incentive of having his clothing returned if he cooperated – as well as using stress positions.(548)

On 18 January 2004, an Abu Ghraib detainee, Kasim, told military investigators that he saw a guard raping "a kid, his age would be about 15-18 years. The kid was hurting very bad… And the female soldier was taking pictures".(549) Another Abu Ghraib detainee, Thaar, gave military investigators a statement, in which he said: Dogs have been used against children. The Fay report found that on or around 8 January 2004, a leashed but unmuzzled dog was allowed into a cell holding two juvenile detainees "and 'go nuts on the kids', barking and scaring them. The juveniles were screaming and the smaller one tried to hide behind [the other]. [The soldier] allowed the dog to get within about one foot [0.3m] of the juveniles."(551) Huda Hafez Ahmad has alleged that when she was held in Abu Ghraib she "saw one of the guards allow his dog to bite a 14-year-old boy on the leg. The boy's name was Adil".(552)

Women detainees
Huda Hafez Ahmad, a 39-year old woman, was taken into US custody when she went to look for her sister, Nahla, who had been detained. The two women were not seen by a lawyer for more than six months.(553) Huda Ahmad has made serious allegations that she was subjected to torture and ill-treatment. She has said that in late 2003 she was arrested when she went to the US base in the al-A'dhamiya neighbourhood of Baghdad. She said that she was handcuffed and blindfolded after her arrest and left in a cold room with only a wooden chair where she was left overnight. She alleged that she was hit in the face, and was made to stand for 12 hours with her face against a wall. She alleged that she was put in a minibus in the military compound with 18 other detainees and subjected to loud music and sleep deprivation for the next three days. On 4 January 2004, she was transferred to Abu Ghraib, where she said she was held in a cell on her own for several months. She said that on 24 February 2004, she was put into a one-metre-square cell and doused in cold water as punishment for giving an elderly woman detainee some food.(554)

Huda Alazawi said that neither she nor the other women detainees held at that time at Abu Ghraib were sexually assaulted by US personnel. Allegations of ill-treatment or torture of women detainees have been published in the media and by human rights organizations. Some women detainees in Iraq have spoken after their release to Amnesty International under condition of anonymity. Their accounts included being beaten, threatened with rape, humiliating treatment and long periods of solitary confinement.

There have been reports of sexual abuse, possibly including rape. Among the "intentional abuse of detainees by military police [MP] personnel" found by the Taguba report was "a male MP guard having sex with a female detainee", as well as "videotaping and photographing naked male and female detainees". Military investigators found that "the female detainees were made to pose for soldiers taking pictures and on one occasion one female was instructed to expose her breasts for a soldier to take her picture".(555)

Female prisoners should be separated from male prisoners and should only be attended and supervised by female guards. (556) There should be no contact between male guards and female prisoners without the presence of a female guard. Three US military personnel received non-judicial punishment for their role in the assault of a female detainee on 7 October 2003. The Fay report on Abu Ghraib relates that: Amnesty International believes that the rape of a prisoner by a prison, security or military official always constitutes torture. Other sexual abuse of prisoners by such officials always constitutes torture or ill-treatment.(558) Such torture or inhumane treatment would also constitute war crimes. This was born out in the ad hoc Tribunals for former Yugoslavia and Rwanda. In the cases of Akayesu(559) and Celebici,(560) rape was identified specifically as an act of torture when it takes place at the instigation of a public official, and in the case of Furundzija,(561) when it takes place during interrogation. In the case of Kunarac, Kovac and Vukovic, (562) the defendants were convicted of rape as a crime against humanity and rape as a crime under international customary law. The Tribunals convicted men of acts such as sexual enslavement, forced nudity and sexual humiliation – in addition to rape and sexual assault – thus recognizing such acts as serious international crimes.

Inter-prisoner sexual violence may also constitute torture or ill-treatment if the authorities have failed to ensure compliance with rules such as those requiring the separation of male or female prisoners or otherwise failed to take appropriate action.

4.4 Independent inspection: ICRC, UN and human rights monitors
The vast majority of the USA's "war on terror" detainees have been held incommunicado except for visits by the ICRC. The ICRC has been visiting people detained in connection with armed conflicts since 1915 during World War I. The organization's practice of visiting prisoners of war was codified in the Geneva Conventions of 1949. When refusing permission for Amnesty International to visit the detainees, the US authorities have emphasised that they have granted the ICRC such access. The ICRC does not normally publish its findings, but makes confidential recommendations to the government in question.

The ICRC does not have a permanent presence at the US detention facilities to which it has access. For example, it visited the Guantánamo prison camp 18 times in the first 29 months of detentions there (to June 2004). Detainees are thus held entirely incommunicado between ICRC visits. If ICRC delegates visit a detention facility, for example, every two weeks, and even if they were to meet all detainees, a detainee could be held for up to this length of time and released without having had any contact with the outside world.

From late 2001 to mid-2003, many detainees were held in the US air base in Bagram in Afghanistan for relatively short periods prior to their transfer to Guantánamo Bay or release. In any case, the ICRC does not have access to the detainees immediately after arrest.(564) The ICRC had access to the detention facility at the Kandahar air base from December 2001 until its closure in June 2002. The organization requested and was granted renewed access to the facility in June 2004 after discovering that detentions had resumed there. (565) It is not known how many detainees were held at Kandahar between June 2002 and June 2004, when the ICRC was not visiting. Afghan national Syed Nabi Siddiqi has alleged that he was ill-treated at the base at that time (see page 25). The ICRC has not had access to some 20 other US holding facilities in Afghanistan, including at Gardez where Syed Nabi Siddiqi says he was initially held, and where eight Afghan soldiers were allegedly tortured by US Army Special Forces during their two-week detention in March 2003. The alleged torture included beatings, immersion in cold water, and electric shocks. One of the detainees, 18-year-old Jamal Naseer, died in custody (see Point 6.2).(566)

Two Afghan men, Dilawar and Mullah Habibullah, died in Bagram air base in December 2002. Both had been held entirely incommunicado. Neither had been seen by the ICRC. Afghan national Wazir Mohammed told Amnesty International in Kabul in February 2004 that during his nearly two months in US custody in Bagram and Kandahar air bases in mid-2002, he never saw anyone from the ICRC. He has alleged that he was subjected to sleep deprivation as well as being forced to crawl on his knees from his cell to his interrogation. He was then held for 18 months in Guantánamo Bay. He said that during that time he saw an ICRC delegate once – on his first day in detention in Cuba.

As already noted, US personnel have hidden detainees from the ICRC, or refused the organization access to detainees on the grounds of "military necessity" in highly questionable circumstances (see pages 14-16). There are other examples of a disturbing attitude to the ICRC on the part of the US authorities:
· A senior US Army officer reportedly said that military officials responded to a November 2003 ICRC report on abuses in Abu Ghraib by proposing that its inspectors should make appointments before visiting, in order that they did not interrupt interrogations.(567) Brigadier General Janis Karpinski, formerly in charge of Abu Ghraib prison, told the Taguba investigation that a military intelligence official had told her: "The reason we don't want the ICRC to go in there anymore is because it interrupts the isolation process", and techniques including sleep deprivation.(568)

· Saddam Salah Abood Al-Rawi has alleged that he was held in solitary confinement for three months in Abu Ghraib to late March 2004, after being tortured and ill-treated during an 18-day interrogation prior to that. According to what he told the Office of the UN High Commissioner for Human Rights: "At the time of a Red Cross visit to the Abu Ghraib prison in January 2004, he was warned that if he said anything to the Red Cross visitor which the prison guards did not like, he would not live to regret it. He stated that when he was interviewed by the Red Cross visitor, he did not dare to say anything about the treatment he had suffered."(569)

· The ICRC itself has raised the case of an Iraqi detainee interrogated in the vicinity of Camp Cropper, who "alleged he had been hooded and cuffed with flexi-cuffs, threatened to be tortured or killed, urinated on, kicked in the head, lower back and groin, force-fed a baseball which was tied into the mouth using a scarf and deprived of sleep for four consecutive days. Interrogators would allegedly take turns ill-treating him. When he said he would complain to the ICRC he was allegedly beaten more."(570)

In addition to the ICRC, other independent experts should be granted access to detainees. On 25 June 2004, a meeting of United Nations experts issued a joint statement in light of "a number of recent developments that have seriously alarmed the international community with regard to the status, conditions of detention and treatment of prisoners in specific places of detention". They expressed their "unanimous desire" that the Special Rapporteur on the Independence of Judges and Lawyers, the Chairperson-Rapporteur of the Working Group on Arbitrary Detention, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, "visit, together, and at the earliest possible date, those persons arrested, detained or tried on grounds of alleged terrorism or other violations, in Iraq, Afghanistan, the Guantánamo Bay military base and elsewhere, with a view to ascertain… that international human rights standards are properly upheld with regard to these persons".(571) More than three months later, the US government had not authorized the visits.

4.5 Recommendations under Point 4
The US authorities should:

• Immediately inform anyone taken into US custody of his or her rights, including the right not to be subjected to any form of torture or cruel, inhuman or degrading treatment or punishment; their right to challenge the lawfulness of their detention in a court of law; their right to access to relatives and legal counsel, and their consular rights if a foreign national;
• Ensure at all times a clear delineation between powers of detention and interrogation;
• Keep under systematic review interrogation rules, instructions, methods and practices, as well as arrangements for the custody and treatment of anyone in US custody, with a view to preventing any cases of torture or cruel, inhuman or degrading treatment;
• Ensure that conditions of detention strictly comply with international law and standards;
• Prohibit the use of isolation, hooding, stripping, dogs, stress positions, sensory deprivation, feigned suffocation, death threats, use of cold water or weather, sleep deprivation and any other forms of torture, or cruel, inhuman or degrading treatment as interrogation techniques;
• Bring to trial in accordance with international fair trial standards all detainees held in Guantánamo, or release them;
• Ensure compliance with all aspects of international law and standards relating to child detainees;
• Ensure compliance with all international law and standards relating to women detainees;
• Invite all relevant human rights monitoring mechanisms, especially the UN Special Rapporteur on Torture, the Committee against Torture, the Working Group on Enforced or Involuntary Disappearances (1980) and the Working Group on Arbitrary detention to visit all places of detention, and grant them unlimited access to these places and to detainees;
• In addition to the ICRC, grant access to national and international human rights organizations, including Amnesty International, to all places of detention and all detainees, regardless of where they are held.
  

Governments should adopt laws for the prohibition and prevention of torture incorporating the main elements of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) and other relevant international standards. All judicial and administrative corporal punishments should be abolished. The prohibition of torture and the essential safeguards for its prevention must not be suspended under any circumstances, including states of war or other public emergency.

5.1 Putting the President above the law, detainees below the law
Any person detained by states anywhere in the world should be protected by the following layers of law:
· Domestic law: This should include provisions reflecting the state's international legal obligations to respect rules of human rights and humanitarian law treaties to which it is party. In the case in point, US laws should reflect the absolute prohibition on torture and other ill-treatment extant in both these strands of law.
· International treaties: In the case of the USA, these treaties include the ICCPR, the UN Convention against Torture and the four Geneva Conventions, all of which, as noted, prohibit torture and ill-treatment absolutely.
· Relevant rules of customary international law: These rules comprise international rules derived from state practice and regarded as legal obligations (opinio juris). Such rules are generally binding on all states, regardless of whether or not they are party to treaties codifying these rules. It is universally agreed that the prohibition on torture and other ill-treatment is, indeed, part of customary international law. The widespread ratification of treaty provisions containing these prohibitions, together with the nearly universal prohibition in constitutions and national laws around the world, is evidence of such a customary international law rule.(573)

In addition, the prohibition is recognized as a peremptory norm of international law (jus cogens), for example by the UN Human Rights Committee(574), the ICTY(575), and the American Law Institute.(576)

As outlined below, in the "war on terror", the US administration has sought to strip "terrorist" suspects detained by its forces abroad of every single one of these protections, placing detainees in effect beyond the reach, or protection, of the law, with the exception of military law which the President may in effect also ignore.

Domestic law: The Pentagon Working Group report of April 2003 makes the administration's position clear that "the United States Constitution does not protect those individuals who are not United States citizens and who are outside the sovereign territory of the United States." Keeping foreign detainees held abroad from the protection of the US judiciary has been a central tenet of the administration's "war on terror" policy. This was only rejected on 28 June 2004 by the US Supreme Court's Rasul v. Bush decision finding that the US courts had jurisdiction over the Guantánamo detainees. Even then, the administration has sought to curtail the impact of the ruling (see page 99).

The Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, signed by President Bush on 13 November 2001, expressly states that anyone named under it will not be able to "seek any remedy" in any court in the USA or anywhere else in the world, thereby ruling out access to judicial redress for any human rights violation that may have occurred during arrest, detention, interrogation or prosecution. It also makes anyone named under it eligible for trial under the "exclusive jurisdiction" of military commissions.

International treaty law: In his central policy memorandum of 7 February 2002 President Bush set out his country's view of the status of "al Qaeda and Taliban" detainees. The President determined, inter alia, the following:
· That "none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world";
· That "common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees";
· That, "because Geneva does not apply to our conflict with al Qaeda, al Qaeda detainees also do not qualify as prisoners of war".(577)

To this may be added the administration's consistent position that human rights treaties do not apply to detainees outside US territory. As it claimed in the Rasul case, "by its own terms, the ICCPR is inapplicable to conduct by the United States outside its sovereign territory."(578)

Customary international law: In a remarkable rejection of a long history of US jurisprudence confirming that international law is part of the law of the USA(579), a Department of Justice memorandum, submitted to the White House in preparation for the President's February 2002 memorandum, and which the latter seems to accept in its entirety, concludes, inter alia, that, "customary international law has no binding legal effect on either the President or the military".(580)

With both national and international legal protections discarded, would "terrorist" detainees enjoy, in the USA's view, any legal protection, international or otherwise? In this regard, the President's memorandum of February 2002 is instructive: By this statement, it is clear that:
· There are detainees who in the USA's view "are not legally entitled" to be treated humanely.
· The USA would nevertheless assert that it would treat those detainees "humanely."

However, three crucial problems arise here:
· The "humane" treatment would be pursued "as a matter of policy" rather than as a matter of the state's international legal obligations.(581)
· The USA's pledge to treat those detainees "in a manner consistent with the principles of Geneva," would only be "to the extent appropriate and consistent with military necessity." Although the Geneva Conventions in particular, and international humanitarian law in general, permit military necessity to play a role in deciding whether certain acts (such as destruction or appropriation of property) are legal, it prohibits other acts, such as targeting civilians and ill-treating detainees and prisoners, in all circumstances, regardless of whether or not they could be, or are perceived as being, militarily beneficial. The USA thus downgraded the right to be free from torture and ill-treatment from a fundamental, absolute right to one subjugated to considerations of military advantage.
· The Geneva Conventions certainly contain a "principle" of humane treatment, but the President ordered that the "Geneva principles" only be applied subject to "military necessity." The USA would provide its own version of "humane treatment", replacing a well-defined, binding legal rule with a vague, ill-defined, non-legal notion subject to the whims of military commanders and politicians.

This position has not remained on the level of hypothetical statements. It was followed by an official policy combining a declaratory commitment to "humane treatment" with actual interrogation methods which are patently inhumane. Thus in his memorandum of January 2003,(582) Secretary of Defense Rumsfeld ordered that "[I]n all interrogations, you should continue the humane treatment of detainees, regardless of the type of interrogation technique employed." Among such "humane" techniques, which had been approved by Secretary Rumsfeld previously, and under the present memorandum may still be used, albeit "only" with Secretary Rumsfeld's prior approval, are:(583)
· "The use of stress positions (like standing) for a maximum of four hours";
· "Use of the isolation facility for up to 30 days";
· "Deprivation of light and auditory stimuli";
· Use of "a hood placed over his head during transportation and questioning";
· "Removal of clothing";
· "Using detainees individual phobias (such as fear of dogs) to induce stress";
· "Use of mild, non-injurious physical contact such as grabbing, poking in the chest with a finger and light pushing".
There is no explicit limitation on combining some or all of these methods.

Green light for torture: Under US law a wartime President can order torture
At the heart of this disregard for international law lies the notion, explained and justified in detail by the 1 August 2002 Justice Department memorandum to the White House and the Pentagon Working Group report of April 2003, that, Having argued in flagrant contradiction to international law, that torture is limited to acts that would cause pain "associated with… death, organ failure, or serious impairment of body functions"; that for death threats to be torturous the threat must be of "imminent death";(585) that cruel, inhuman or degrading treatment or punishment should be viewed as applying to only punishments; and that certain (in effect all) human rights and humanitarian law treaties do not apply to the "war on terror" generally and to "terrorist" detainees in particular, the memorandum and the Pentagon Working Group report claim, in effect, that none of this matters: the President is authorized by the US Constitution to order absolutely anything he wishes in his capacity as Commander-in-Chief of the armed forces, as no laws, either international or national, can touch him.(586)

This is reflected in the Secretary for Defense's instructions regarding "interrogation techniques." While later memorandums have limited the scope of "techniques" which military interrogators may use routinely, the Secretary for Defense has left an opening for unspecified and unlimited "additional interrogation techniques". In a memorandum to the Commander of US Southern Command, Secretary Rumsfeld wrote: Throughout the "war on terror", the US administration has repeatedly stated that it is committed to the rule of law as one of the "non-negotiable demands of human dignity". This is clearly far from the case if it believes that there is no legal limit to what the President can instruct the armed forces to do, including blatant violations of international law.

5.2 Domestic legislation to comply with international law
On 15 May 2000, the Committee against Torture issued its findings on the Initial Report of the USA on its implementation of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee was concerned by the failure of the USA "to enact a federal crime of torture in terms consistent with article 1 of the Convention". It recommended that the USA should enact such a law as well as withdraw its reservations, interpretations and understandings relating to the Convention (see Point 11).

Article 4 of the UN Convention against Torture states: "Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture." Article 5 requires the USA to ensure that its laws cover crimes committed by its nationals wherever committed or by anyone present in US territory whom the USA does not extradite.

The US government has not made torture a distinct crime under federal law, except with regard to acts committed outside US territory. This latter law, 18 U.S.C. § 2340, makes it a criminal offence for any person acting in an official capacity "outside the United States" to commit or attempt to commit torture. The law was enacted in 1994 in order to meet the requirements of Article 5 of the UN Convention against Torture. The statute defines torture "in a manner compatible with the United States reservations to the Convention",(589) that is, arguably narrower than the definition contained in Article 1 of the Convention (see Point 11.2).(590) It was the potential narrowness of this definition which the August 2002 memorandum from the Justice Department attempted to accentuate when advising that US agents could use harsh interrogation methods without fear of being prosecuted for torture. For example: The UN Special Rapporteur on torture has taken issue with this. In his August 2004 report he stressed that "the definition contained in the Convention cannot be altered by events or in accordance with the will or interest of States." He additionally stressed that "the prohibition applies equally to torture and to cruel, inhuman or degrading treatment or punishment".(592)

The Schlesinger Panel also took an apparently narrow definition of torture. Releasing the panel's report on 24 August 2004, Chairman John Schlesinger said that "there is a problem in defining torture. We did not find cases of torture, however".(593) In the actual report, the panel suggested a definition of torture as "any treatment that causes permanent harm". This reflects the language in the USA's reservation to the UN Convention against Torture and in 18 U.S.C. § 2340 which refers to "prolonged mental harm". Indeed, the Schlesinger report appears to take an even narrower view than the August 2002 Justice Department memorandum. The latter pointed to the "prolonged mental harm" clause, in arguing that the "acts giving rise to the harm must cause some lasting, though not necessarily permanent, damage". As already noted, the Pentagon Working Group report of April 2003 adopted a narrow interpretation of torture, advising that even if the agent accused of torture knew that severe pain would result from his actions, "if causing such harm [was] not his objective, he lacks the requisite specific intent [to be guilty of torture]."

The Working Group also advised that 18 U.S.C. § 2340 "does not apply to the conduct of US personnel at GTMO [Guantánamo]". To keep the detainees away from the judiciary, the administration for two years argued that the Naval Base was outside the jurisdiction of the US courts because Cuba had ultimate sovereignty over the territory. Now the Working Group report was holding that as far as the Torture Statute was concerned, the Guantánamo Naval Base fell within the USA and therefore members of the US military, civilian employees or contractor employees could not be prosecuted under 18 U.S.C. § 2340. The USA PATRIOT Act extended US criminal jurisdiction over certain crimes committed at US facilities abroad, thereby excluding them from the reach of 18 U.S.C. § 2340 (by reducing the area defined as "outside the United States" under that law). This appears recently to have been at least partially remedied (see Point 7.1).

The USA must ensure that its criminalization of torture covers all the conduct prohibited by the USA's international obligations and is applicable to all its detention centres wherever they are. Furthermore, given the argument presented in various US government memorandums that the President's Commander-in-Chief powers could override the prohibition on torture, in order to be consistent with the UN Convention against Torture, the USA must ensure that its law must not allow any exceptional circumstances whatsoever to be invoked as justification for torture (Article 2.2).

It follows from this that any special measures giving any state agents immunity from prosecution for torture must be revoked. The law must also not allow an order from a superior officer or a public authority to be invoked as a justification for torture (Article 2.3).

5.3 Recommendations under Point 5
The US authorities should:

• Enact a federal crime of torture, as called for by the Committee against Torture, that also defines the infliction of cruel, inhuman or degrading treatment as a crime, wherever it occurs;
• Amend the Uniform Code of Military Justice to criminalize expressly the crime of torture, as well as a crime of infliction of cruel, inhuman or degrading treatment or punishment, wherever it occurs, in line with the Convention against Torture and other international standards;
• Ensure that all legislation criminalizing torture defines torture at least as broadly as the UN Convention against Torture;
• Ensure that legislation criminalizing torture and the infliction of cruel, inhuman or degrading treatment covers all persons, regardless of official status or nationality, wherever this conduct occurred, and that it does not allow any exceptional circumstances whatsoever to be invoked as justification for such conduct, or allow the authorization of torture or ill-treatment by any superior officer or public official, including the President.
  

All complaints and reports of torture should be promptly, impartially and effectively investigated by a body independent of the alleged perpetrators. The methods and findings of such investigations should be made public. Officials suspected of committing torture should be suspended from active duty during the investigation. Complainants, witnesses and others at risk should be protected from intimidation and reprisals.

6.1 Investigative record does not inspire confidence
As a State Party to the UN Convention against Torture, the USA "must ensure that its competent authorities proceed to a prompt and impartial investigation", wherever there is "reasonable ground to believe" that an act of torture or cruel, inhuman or degrading treatment has been committed "in any territory under its jurisdiction" (Articles 12 and 16). In addition, anyone who alleges that he or she has been subjected to torture or cruel, inhuman or degrading treatment or punishment "has the right to complain to, and to have his case promptly and impartially examined by, [the State party's] competent authorities" (Articles 13 and 16). According to the Committee against Torture, such an investigation must be made "whatever the origin of the suspicion", which can include information provided by non-governmental organizations.(595) Similarly, the Geneva Conventions require that allegations of torture or inhuman treatment be investigated and those responsible brought to justice.(596)

Early in the "war on terror", on the night of 23/24 January 2002, US Special Forces in Uruzgan province in Afghanistan took 27 villagers into custody. All 27 were released on 6 February 2002 after two weeks in detention once it was determined that they were villagers mistakenly identified by US forces as Taleban or al-Qa'ida members. It is alleged that at the scene of the raid the villagers had their hands and feet tied, were blindfolded and hooded, and flown to the US base at Kandahar. Having arrived at the base the prisoners were allegedly beaten, kicked and punched by soldiers, made to lie on their stomachs with their hands tied behind their backs and their legs chained, whereupon soldiers walked across their backs.

US Central Command's executive summary of the investigation into the case said that "none of the detainees were mistreated or unnecessarily abused." Secretary Rumsfeld asserted that "investigation" was not the right term to describe what was being conducted into the Uruzgan raid – as it implied "more formality or a disciplinary action" – but suggested it was aimed more at "what kind of lessons might be learned".(597) His assertion should be assessed against international principles which state that the purposes of effective investigation and documentation of torture and other cruel, inhuman or degrading treatment includes: (a) clarification of the facts and establishment and acknowledgement of individual and State responsibility for victims and their families; (b) identification of measures needed to prevent recurrence; and (c) facilitation of prosecution and/or, as appropriate disciplinary sanctions.(598)

Asked to clarify whether he meant that there would be no disciplinary action against any military personnel involved in the raid and its aftermath, the Secretary of Defence replied: "Why would there be? I can't imagine why there would be any." This was despite stating that he did not know if the Central Command investigation had been completed. In April 2002, Amnesty International raised its concerns with the US authorities about this case and the inadequacy of the official investigation into it. (599) It has never received a reply or a copy of the full investigation report as requested. Similarly, Amnesty International received no reply on the case of alleged ill-treatment of 34 Afghans taken into custody during a raid on a compound near Kandahar in the early hours of 18 March 2002 (see page 23).

Since then, there have been allegations of torture or ill-treatment used against detainees in US custody in Afghanistan, Guantánamo Bay, Iraq, and undisclosed locations. (600) There have been further indications of inadequate investigations.

After a US helicopter was shot down in Iraq in early January 2004, the US military said that "enemy personnel posing as media" had been taken into custody and "were now being questioned".(601) Four days later, a military spokesperson said that "we determined through questioning these individuals that they were probably at the wrong place at the wrong time".(602) Reuters news agency took testimony from three of its employees, Salem Ureibi, Ahmad Muhammad Hussein al-Badrani and Sattar Jabar al-Badrani, who alleged that they had been beaten and subjected to sleep deprivation, stress positions, hooding, and sexual and religious humiliation in US military custody near Fallujah.
Reuters called for a full investigation into its employees' allegations. On 27 January 2004, the company wrote to the US authorities noting that three weeks had passed since the detentions and repeated its call for a full investigation. The letter states: "It has become clear that the military either does not yet appreciate the significance of the matters we have raised or – even worse – fully understands their seriousness but is deliberately attempting to downplay them or ignore them". On 29 January, Reuters received an unclassified executive summary of the military investigation, which stated that the "detainees were purposefully and carefully put under stress, to include sleep deprivation, in order to facilitate interrogation; they were not tortured". The news agency described the investigation as "woefully inadequate" and demanded a more thorough inquiry, noting that the military had relied only on the accounts of soldiers and had not interviewed the detainees themselves. Following the revelations in late April 2004 of the torture and ill-treatment of detainees in Abu Ghraib, Reuters called for their employees' allegations to be "reviewed thoroughly, objectively and with a new view towards their veracity". The company was provided with a letter, dated 5 March 2004, from the commander of US forces in Iraq, Lieutenant General Ricardo Sanchez, stating that the investigation, clearing military personnel of any misconduct, was thorough and objective and its conclusions sound. The three men, who had not been interviewed by the military as part of its investigation, decided to make their allegations public in mid-May 2004.(604) In mid-October 2004, the Pentagon revealed that it was reviewing whether to re-open the case.(605)

Broader reviews initiated in 2004 have raised further questions about the adequacy of the official response to the allegations of torture and ill-treatment of detainees. One such review was conducted by the Army Inspector General, Lieutenant General Paul Mikolashek, initiated in February 2004. It was "not an investigation of any specific incidents or units, but rather a comprehensive review of how the Army conducts detainee operations in Afghanistan and Iraq".(606) It did not include operations at Guantánamo Bay, or of the Defense Intelligence Agency or the CIA. During a Senate Armed Services Committee hearing on 19 May 2004, two months before completion of the report, Army General John Abizaid, the top commander at US Central Command, testified that "I specifically asked the IG of the Army, did he believe that there was a pattern of abuse of prisoners in the Central Command area of operation, and he looked at both Afghanistan and Iraq, and he said no". Referring to Abu Ghraib, General Abizaid added that "I believe that we have isolated incidents that have taken place". This mirrored the position taken by senior members of the administration, including President Bush and Defense Secretary Rumsfeld, following broadcast of the Abu Ghraib torture photographs. On 21 July 2004, Lieutenant General Mikolashek issued his report which maintained the focus of blame on a small number of low-ranking personnel.(607)

The Department of Defense has insisted that the Abu Ghraib torture came to light as a sign of effective self-policing by the military.(608) The Department and the wider administration had failed, however, adequately to investigate earlier evidence of torture and ill-treatment in Afghanistan, Guantánamo and Iraq, raised by organizations including the ICRC and Amnesty International. In late April 2004, CBS News broadcast the now infamous Abu Ghraib photographs and the New Yorker magazine published Torture at Abu Ghraib by journalist Seymour Hersh. After Hersh published a book on the subject in September 2004, the Pentagon responded that "detainee operations in Afghanistan, Iraq, and elsewhere have been examined extensively – both within the Department of Defense and by an independent panel led by former Secretary of Defense Jim Schlesinger. The US military itself – not Mr Hersh or any other reporter – first publicized the facts of the abuses at Abu Ghraib in January 2004, four months before Mr Hersh 'broke' the story".(609)

The Pentagon's claim that the military "first publicized the facts" is a reference to a four-line press release issued on 16 January 2004 by US Central Command in Florida which stated that an "investigation has been initiated into reported incidents of detainee abuse at a Coalition Forces detention facility." It gave no more detail, suggesting that "release of specific information concerning the incidents could hinder the investigation".(610) However, it was only after some of the Abu Ghraib photographs, the ICRC's February 2004 confidential report into abuses by Coalition forces, and details of the administrative investigation of Major General Antonio Taguba (the Taguba report) were leaked to the press that the authorities began to display an increased responsiveness and initiated a number of wider policy reviews, including the Schlesinger inquiry.

6.2 Investigating deaths in custody
Among the abuses committed by US personnel in Abu Ghraib found by the Taguba investigation were incidents of military police "taking photographs of dead Iraqi detainees". Also in Iraq, the ICRC's February 2004 report on abuses by Coalition forces said that the organization had collected "allegations of deaths as a result of harsh internment conditions, ill-treatment, lack of medical attention, or the combination thereof…"

As with the allegations of torture and ill-treatment by US agents in general, this issue is not limited to Abu Ghraib or to Iraq. An Afghan detainee reportedly died of hypothermia in a CIA facility in Kabul in 2002 after Afghan guards soaked him in water and left him overnight shackled to a wall. Abdul Wahid, an Afghan civilian, died on 6 November 2003 in a US Forward Operating Base at Gereshk in Helmand Province as a result of "multiple blunt force injuries". He had been in custody for 48 hours before his death. His body was reportedly given back to his family two months after his death. Other detainees have died in US custody in Afghanistan (see below).

On 21 May 2004, the Department of Defense revealed that the Army Criminal Investigation Command was currently conducting 33 investigations of death in custody cases, 30 of which involved deaths inside facilities.(612) Nine of these 30 cases were the subject of ongoing military investigations of military personnel. Eight of these nine cases involve deaths "classified by medical authorities as homicides, which involve suspected assaults of detainees either before or during interrogation sessions that may have led to the detainee's death".(613) Of these nine cases, three were in Afghanistan and six in Iraq (including two in Abu Ghraib). A 10th case categorized as a homicide had been closed by the military and "turned over to another government agency".

The recently discovered death of an 18-year-old Afghan army recruit in the US base in Gardez in Afghanistan in March 2003 has raised additional concern about whether all deaths in custody have been revealed. Local Afghan officials were allegedly pressured to cover up the death, which has only come to light as a result of a non-governmental investigation.(614) Jamal Naseer's body, said to be covered in bruises, was allegedly turned over to local police with no documentation of his death and no autopsy conducted. A US investigation was not initiated until 18 months later. Jamal Naseer had reportedly been arrested with seven other Afghan soldiers on 1 March 2003 by US Special Forces (see page 24).

At its 21 May 2004 briefing, the Department of Defense released 23 death certificates – three of prisoners who had died in US custody in Afghanistan, and 20 who had died in Iraq. There appears to have been a sudden haste in the completion of these certificates. Twenty of them had only been completed, with the required second signature, in the 10 days before the Pentagon released them. Some of the victims had been dead for months.

In Iraq, Dilar Dababa died in a classified interrogation facility in Baghdad on 13 June 2003, and his death certificate was signed on 14 May 2004. He died of "closed head injury with a cortical brain contusion and subdural hematoma." According to Pentagon documents obtained by the Denver Post, while in custody he "was subjected to both physical and psychological stress". He was handcuffed to a chair and the chair secured to a pipe in the room because he was allegedly combative and an escape risk.(615)

Also in Iraq, Abdul Jaleel died in US custody in the Forward Operating Rifles Base in Al Asad on 9 January 2004, five days after being taken into custody. His death certificate, which found cause of death to be "blunt force injuries and asphyxia", was signed on 13 May 2004. Internal Pentagon documents reveal that in the initial part of his detention he had been put in isolation and shackled to a pipe that ran along the ceiling. During questioning he was allegedly beaten and kicked in the stomach and ribs. Later, because he was allegedly uncooperative and disruptive, his hands were shackled to the top of his cell door, and he was gagged. He died in this position.(616)

Three of the death certificates released by the Pentagon were of deaths of Afghan nationals in US custody in Afghanistan. One was of Dilawar, who died in the US air base in Bagram on 10 December 2002 from "blunt force injuries to lower extremities complicating coronary artery disease". His death certificate was signed on 20 May 2004. He was one of two Afghan men – the other being Mullah Habibullah (named on the death certificate as "Ullah, Habib" – to have died from blunt force injuries in Bagram in December 2002. Mullah Habibullah was allegedly beaten by a US soldier while in restraints. Dilawar was allegedly subjected to prolonged forced standing, while shackled and with his hands chained above his shoulders. Both men were beaten by "multiple soldiers", mainly on the legs possibly so that fewer wounds would be visible.(617)

Manadel al-Jamadi died in Abu Ghraib on 4 November 2003 from "blunt force injuries complicated by compromised respiration". His death certificate was signed on 13 May 2004. According to the Fay report, Manadel al-Jamadi had resisted arrest, and was struck on the head with a gun-butt by a member of a Navy Seal unit "to subdue him". He was brought into Abu Ghraib by CIA officers without being registered. His head was covered with an empty sandbag and guards were ordered not to remove it when they took him to a shower room that was being used for interrogation. Less than an hour later, he collapsed and died. An autopsy revealed that he had died of a blood clot in the head, likely as a result of injuries sustained upon arrest.

The death of Major General 'Abd Hamad Mawhoush in US custody in Al Qaim detention facility in northwest Baghdad illustrates possible shortcomings of military investigations into deaths in custody.

· According to the death certificate 'Abd Hamad Mawhoush died on 26 November 2003. The cause of death was given as "asphyxia due to smothering and chest compression". The "mode of death" was recorded as "homicide". The death certificate was finally signed on 12 May 2004 and made public on 21 May 2004.
· On 27 November 2003, the military issued a press release saying that 'Abd Mawhoush had "died this morning during an interview with US forces". Already, therefore, there was a discrepancy in the date of death.
· There was a greater discrepancy in the cause of death. The military news release was titled: "Iraqi General Dies of Natural Causes". It claimed that the prisoner had "said he didn't feel well and subsequently lost consciousness" and died despite efforts to resuscitate him. The military said that the death is "currently under investigation".
· Amnesty International wrote to the US authorities on 3 December 2003 calling for the investigation to be prompt, thorough, impartial and independent, and for its findings to be made public. To this date, the organization has never had a reply to its letter.
· According to Department of Defense documents obtained by the Denver Post newspaper, 'Abd Hamad Mawhoush had turned himself in to the US authorities in November. After two weeks in custody, "two soldiers with the 66th Military Intelligence Company slid a sleeping bag over his body, except for his feet, and began questioning him as they rolled him repeatedly from his back to his stomach… Then one of the soldiers, an interrogator, sat on Mawhoush's chest and placed his hands over the prisoner's mouth". It was during this interrogation that the prisoner "became non-responsive". According to the Pentagon documents, the two soldiers received reprimands and were barred from further interrogations.(618)
· On 21 May 2004, a Pentagon spokesperson said that the military investigation into 'Abd Mawhoush's death was one of the nine that was "ongoing". Four soldiers were subsequently reported to have been charged with murder and were facing possible courts-martial at the time of writing.(619)

Another of the death certificates released by the Pentagon on 21 May 2004 concerned 52-year-old Nagem Sadun Hatab who was detained at Camp Whitehorse detention facility near Nasiriya. He died on 6 June 2003, three days after his arrest, as a result of "strangulation". The death certificate added that he had been "found unresponsive in outside isolation". According to the report of a military investigation, obtained by the Los Angeles Times, on 4 June Nagem Hatab had been hit and kicked in the chest by US soldiers. On 5 June, the prisoner was reported to be lethargic, not eating and drinking very little, and possibly having difficulty breathing. He had diarrhoea and was covered in faeces. The camp commander ordered that he be stripped and taken outside the cellblock. According to the military investigation, he was left "naked outside in the sun and heat for the rest of the day and into the night. Shortly after midnight, Mr Hatab was found dead." An autopsy found that he had suffered seven broken or cracked ribs and a broken hyoid bone (the bone at the base of the tongue). However, the military investigator found that no tests could be carried out on Nagem Hatab's bodily fluids because they were mishandled and destroyed.(620) This meant that no murder or manslaughter charges could be brought as the exact cause of death could not be determined.(621)

There remain many questions around such cases, including those of at least 14 people whose death certificates were not released by the Pentagon on 21 May 2004. One such case is that of Mohammed Munim al-Izmerly, a prominent Iraqi scientist taken into US custody on 25 April 2003. He was taken, handcuffed and hooded, to an unknown location. He was held for the next nine months, possibly at the "high value detainees" section at Baghdad International Airport where the ICRC's February 2004 report found conditions of solitary confinement that violated the Geneva Conventions. On 11 January 2004, Dr al-Izmerly's family was allowed to visit him for the first time, having been taken there blindfolded and driven around in loops so that they would not know his location. On his wrist they saw a plastic band with the now well-known photograph of Saddam Hussein at the point of his capture. On 17 February 2004, the family received the news from the ICRC that 65-year-old Mohammed al-Izmerly was dead. He had died over two weeks earlier on 31 January 2004. The family commissioned their own autopsy which concluded that he had died from blunt force injury to the back of the head.(622)

Abdul Wali died in a US base near Asadabad in Kunar Province in Afghanistan on 21 June 2003. On 17 June 2004, the Justice Department announced the charging of a CIA contractor with assaulting Abdul Wali during interrogations on 19 and 20 June 2003 (see Point 7). Justice Department officials reportedly stated that he had been charged with assault rather than murder because no autopsy had been performed on Abdul Wali to establish the cause of death.

The absence of autopsies of people who have died in custody has been a cause for serious concern. At its 21 May 2004 briefing, when the Department of Defense revealed that the Army Criminal Investigation Command was investigating 33 investigations of death in custody cases, it reported that 15 of the cases involved people who were found to have died from "natural" or "undetermined" causes. In five of these 15 cases, autopsies had not been conducted. According to internal Pentagon documents obtained by the Denver Post, the five include an Abu Ghraib detainee who was taken to medical personnel "gasping for air" and a detainee in a detention facility in Mosul who was found "unresponsive by guards conducting routine wake-up calls." In both cases, the documents state that the "investigation was closed".(623) In such circumstances, it cannot be said that a proper investigation has occurred. Indeed the Pentagon official admitted at the briefing that "a case-by-case determination would need to be performed as to whether the proper judgment was applied" in not conducting an autopsy.

The UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions state that investigations of deaths in custody must include an adequate autopsy, conducted by experts able to function impartially and independently from anyone or any agency associated with a possible perpetrator.

In June 2004, after the Denver Post had obtained the internal Pentagon documents showing that autopsies had not been conducted in all cases, the Department of Defense issued new guidance on the procedures for investigation into deaths in military custody. The Pentagon stated that the new procedures were "part of a series of efforts to strengthen policies and eliminate procedural weaknesses that have come to light as a result of the deplorable events at Abu Ghraib".(624) The procedures leave the decision as to whether an autopsy will be performed to the Office of the Armed Forces Medical Examiner (AFME), although "it is presumed that an autopsy shall be performed, unless an alternative determination is made by the [AFME]".(625) The new procedures do not cover other government agencies such as the CIA.

International standards require that all deaths in custody be investigated by a judicial or other competent authority to determine the cause of death.(626) The purpose of the investigation "shall be to determine the cause, manner and time of death, the person responsible, and any pattern or practice which may have brought about that death".(627) Governments shall ensure that anyone identified by the investigation as having participated in the death is brought to justice. International humanitarian law similarly obliges states to investigate into all suspicious cases of death.(628)

The UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment requires states parties, of which the USA is one, to investigate all allegations of torture and cruel, inhuman or degrading treatment or punishment. Article 12 states: "Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction." Article 14 states that "in the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation."

The Geneva Conventions prohibit torture and ill-treatment. Article 147 of the Fourth Geneva Convention and Article 130 of the Third Geneva Convention list the following acts as grave breaches, that is, war crimes, if committed against persons protected by the respective Convention: wilful killing, torture or inhuman treatment and wilfully causing great suffering or serious injury to body or health. Article 146 of the Fourth Geneva Convention and Article 129 of the Third Geneva Convention require each state party "to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts".

The cases of deaths in US custody during the "war on terror" provide more evidence of a widespread problem of torture and ill-treatment, including denial of medical care. Investigations have been slow, autopsies and documentation have been less than stringently applied and officials have been quick to suggest natural causes. Progress in investigations and prosecutions appears to have been more a result of an increased responsiveness following the Abu Ghraib scandal than an inherent willingness to bring swift, transparent and firm action to bear in such cases. The US government has been accused of not taking seriously the killing of civilians in the wider war – for example, by not keeping a count of such deaths. This attitude appears to have infected the official approach to deaths in custody as well.

6.3 Recommendations under Point 6
US Congress should:

• Establish an independent commission of inquiry into all aspects of the USA's "war on terror" detention and interrogation policies and practices. Such a commission should consist of credible independent experts, have international expert input, and have subpoena powers and access to all levels of government, all agencies, and all documents whether classified or unclassified (see page 49).
  

The US authorities should:

• Ensure that all allegations of torture or cruel, inhuman or degrading treatment involving US personnel, whether members of the armed forces, other government agencies, medical personnel, private contractors or interpreters, are subject to prompt, thorough, independent and impartial civilian investigation in strict conformity with international law and standards concerning investigations of human rights violations;
• Ensure that such investigations include cases in which the USA previously had custody of the detainee, but transferred him or her to the custody of another country, or to other forces within the same country, subsequent to which allegations of torture or ill-treatment were made;
• Ensure that the investigative approach at a minimum complies with the UN Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
• Ensure that the investigation of deaths in custody at a minimum comply with the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, including the provision for adequate autopsies in all such cases;
• In view of evidence that certain persons held in US custody have been subjected to "disappearance", the US authorities should initiate prompt, thorough and impartial investigations into the allegations by a competent and independent state authority, as provided under Article 13 of the UN Declaration on the Protection of All Persons from Enforced Disappearance.
  

Those responsible for torture must be brought to justice. This principle should apply wherever alleged torturers happen to be, whatever their nationality or position, regardless of where the crime was committed and the nationality of the victims, and no matter how much time has elapsed since the commission of the crime. Governments must exercise universal jurisdiction over alleged torturers or extradite them, and cooperate with each other in such criminal proceedings. Trials must be fair. An order from a superior officer must never be accepted as a justification for torture.

7.1 No impunity: from contractors to commander-in-chief
One of the shocking aspects of the Abu Ghraib torture photographs is the apparent sense of impunity being enjoyed by military guards who appear in them. Such was this sense of impunity that a photo of naked detainees piled up together was reportedly being used as a screen saver on one of the computers at the prison.(630) Impunity allows torture and ill-treatment to flourish.

As already noted in Point 1.2, a discussion of impunity is a theme that appears in various government memorandums that have come into the public domain. For example, the August 2002 memorandum to the White House from the Justice Department suggested possible defences for agents accused of torture and took the position that there was a wide array of interrogation techniques that while qualifying as cruel, inhuman or degrading treatment would not rise to the level of torture and thus not qualify for prosecution under the US torture law 18 U.S.C. § 2340 (see below). The administration must publicly disown these documents and reject the notion that there can be any justification or impunity at any level, be it military or civilian, for torture or other cruel, inhuman or degrading treatment.

Need for civilian investigations and prosecutions
On 10 September 2004, seeking to demonstrate the adequacy of the official investigative and prosecutorial response to allegations of abuse by US forces, of which the Schlesinger Panel stated that there had been about 300 cases, the Pentagon reported that 45 military personnel had been referred to courts-martial, 23 soldiers had been administratively separated (a non-punitive release from service), and 12 had been referred for General Officer Letters of Reprimand (a type of written warning).(631)

As a matter of principle, across all countries, Amnesty International takes the position that justice is best served by prosecuting war crimes, crimes against humanity, and other grave violations of international law, such as torture, in independent and impartial civilian courts. Although a military justice system may be well-suited for trying armed forces personnel for purely military offences, such as insubordination or being drunk on duty, this is not the case for serious human rights violations.

In his July 2002 report to the Sub-Commission on the Promotion and Protection of Human Rights, the UN Special Rapporteur on the administration of justice through military tribunals noted a "growing consensus on the need to exclude serious human rights violations committed by members of the armed forces (or the police) from the jurisdiction of military tribunals".(632) He added that more and more countries are adopting legislation to this end.

The UN Special Rapporteur on the independence of judges and lawyers has noted that, "in regard to the use of military tribunals to try civilians, international law is developing a consensus as to the need to restrict drastically, or even prohibit, that practice".(633) The Working Group on Arbitrary Detention has said that insofar as military justice continues, it should not try civilians or military personnel whose victims include civilians.(634)

The Inter-American Commission on Human Rights has taken the position that military personnel accused of human rights violations be tried in ordinary civilian courts. (635) The UN Special Rapporteur on extrajudicial, summary or arbitrary executions has expressed concern about "trials of members of the security forces before military courts where, it is alleged, they evade punishment because of an ill-conceived esprit de corps, which generally results in impunity".(636) International law and standards specifically prohibit trials in military or special courts of members of the security forces or other officials accused of participating in "disappearances". (637)

In a June 2004 report, the current Special Rapporteur on the administration of justice through military tribunals laid out a set of principles on this issue. Principle 3 states: A military commander's ability to prevent prosecutions
The Army Criminal Investigation Command, responsible for investigations into abuses by the military, is described by the Pentagon as an "independent investigative agency" whose agents "do not work for commanders in the field".(639) However, it is the commanders in the field who decide whether to pursue judicial or disciplinary action, or to do nothing. For example, military investigations have implicated 28 soldiers in the deaths of two Afghan detainees, Dilawar and Mullah Habibullah, in Bagram air base in December 2002 (see Point 6.2). Army investigators recently submitted a report of their findings, and from that point the decision on what action to pursue rested with the soldiers' commanders.(640) By 19 October 2004, charges had only been brought against a reserve soldier, Sergeant James Boland, of the 377th Military Police Company. He was charged with assault, maltreatment and dereliction of duty.

Cases in which commanders decided not to order a criminal judicial action include:
· An Iraqi detainee died at the Packhorse US forward operating base on 11 September 2003 when he was shot for throwing rocks. The US soldier faced a court-martial for using excessive force, but reportedly asked, and was allowed by his commander, to leave the army with demotion.(641)
· Lieutenant Colonel Allen West was facing the possibility of a court-martial and 11 years in prison for allegedly watching four of the soldiers under his command beat information out of Iraqi detainee Yahya Hamudy in August 2003 at a US military base in Taji, north of Baghdad. Lt. Col. West then allegedly threatened to kill the detainee, taking him outside, putting him on the ground, and firing his gun. His commanding officer chose administrative action rather than a court-martial and Lt. Col. West was fined.(642)

Prosecutions under the Uniform Code of Military Justice
The USA's Uniform Code of Military Justice (UCMJ) is applicable to US troops worldwide, and can also be used to prosecute certain civilians "in time of war… serving with or accompanying an armed force in the field".(643) However, this will not cover civilian contractors who have no military status in peacetime.(644) It may also not cover CIA personnel even if they are accompanying the armed forces.(645) The fact that a person is eligible for trial by court-martial (a military criminal trial court) under the UCMJ does not make him or her ineligible for trial in the ordinary US courts.

While the UCMJ does not expressly criminalize "torture", there are several offences recognized under it which can be used to punish acts of torture or ill-treatment. (646) They include "cruelty", "maltreatment", "assault", as well as manslaughter or murder in cases in which the alleged ill-treatment resulted in death. Thus, Staff Sergeant Ivan Frederick, accused of subjecting detainees in Abu Ghraib to sexual humiliation, jumping and stomping on detainees, and making a hooded detainee stand on a box with wires attached to his hands and to believe that he would be electrocuted if he fell off the box, was and could not be charged with "torture" under the UCMJ. At the time of writing, he was reported to be planning to plead guilty to four counts of assault, maltreating a detainee, committing an indecent act and dereliction of duty in a plea bargain in which eight other counts would be dropped.(647)

Amnesty International believes that greater protection would exist were the UCMJ to be amended expressly to outlaw torture. This would send a clear message at all levels that acts falling within the definition of Article 1 of the UN Convention against Torture will not be tolerated or prosecuted under the guise of a lesser offence, and would serve to strengthen the deterrence as well as the punishment of such crimes.

The appearance of leniency
Article 4(2) of the UN Convention against Torture requires states to make torture, attempted torture, and complicity or participation in torture "punishable by appropriate penalties which take into account their grave nature". In light of this, concerns can be raised about a number of cases of torture and other violations where punishments do not appear to have been commensurate to the offence.

· In August 2004, Private Edward Richmond was sentenced to three years in prison, convicted by a court-martial of the voluntary manslaughter of Muhamad Husain Kadir, an Iraqi civilian, on 28 February 2004. The soldier reportedly shot the unarmed detainee, who was handcuffed, in the back of the head. It was alleged that Private Richmond had earlier said that he wanted to kill an Iraqi. He was charged with premeditated murder, which carries a potential life sentence, but the court-martial panel of military soldiers and officers reduced the charge to voluntary manslaughter, which carries a maximum prison term of 15 years. The court-martial returned a sentence of three years, and the defendant was awarded 47 days of time served, even though he was not held in confinement before the trial.(648) His alleged response to the sentence was "I was going to be in the army for three more years anyway".(649)
· In contrast, in a court-martial in Iraq in September 2003, Sergeant Oscar Nelson was sentenced to seven years in prison for the involuntary manslaughter of a fellow US soldier in May 2003. Nelson was accused of driving recklessly in a military vehicle when it overturned, killing Specialist Nathaniel Caldwell.(650)
· In mid-2003, two sergeants with the 84th Engineering Company reportedly ordered soldiers to subject electric shocks to Iraqi "intruders" accused of trespassing at the military camp. According to an investigative report obtained by the Denver Post, the detainees were stripped, beaten and shocked with a "blasting device". After a court-martial in February 2004 one of the sergeants was fined two thirds of one month's pay and banned from going to the internet café for 30 days. The other sergeant received a fine and rank reduction.(651)
· In another case, a sergeant told his subordinates to "rough up" two Iraqi detainees. He had apparently given similar orders before. The Sergeant received a reduction in rank and a punitive censure. Two of his subordinates received terms of confinement of 30 days and 45 days respectively.(652)
· Privates Andrew Sting and Jeremiah Trefney pleaded guilty to charges of, inter alia, assault, cruelty and maltreatment in a case in which an Iraqi detainee was subjected to electric shocks for being disruptive on 13 April 2004 in a US temporary detention facility in Mahmudiya, south of Baghdad. They were sentenced to one year in prison and eight months in prison respectively, reduction in rank and a bad conduct discharge.(653)
· In contrast, on 3 June 2004 a court-martial sentenced Sergeant Abdullah William Webster to 14 months in prison for refusing to participate in the war on Iraq on the basis of his religious beliefs.(654)

Provisions permitting Justice Department prosecutions
The US Justice Department can prosecute civilian contractors, CIA agents or military personnel for certain war crimes and torture committed outside the USA.(655) The various laws under which US soldiers and officials could be tried may require amendment to bring them into line with the UN Convention against Torture, and to ensure that they criminalize torture fully and wherever it occurs (see Point 5 and its recommendations). They include:
· The War Crimes Act. This law, 18 U.S.C. § 2441, criminalizes certain war crimes committed inside or outside the USA by anyone who is a member of the armed forces or is a US national. Under the Act, a war crime includes conduct defined as a grave breach of the Geneva Conventions, or constituting a violation of common Article 3 of the Conventions. The latter prohibits, inter alia, cruel treatment, torture, and outrages upon personal dignity, in particular humiliating and degrading treatment.
· The Torture Statute. This law, 18 U.S.C. § 2340, makes it a criminal offence for any US national acting in an official capacity "outside the United States" to commit or attempt to commit torture. The law was enacted in 1994. Anyone who conspires to commit the acts prohibited under the statute can be subject to the same penalties as the actual perpetrator. This law, however, defines torture in an arguably narrower way than the UN Convention against Torture (see Point 5).(656)
· The Military Extraterritorial Jurisdiction Act (MEJA) of 2000. This law, 18 U.S.C. § 3261 criminalizes conduct committed by "members of the Armed Forces and by persons employed by or accompanying the Armed Forces outside the United States" that would be punishable by more than one year's imprisonment if engaged in within the USA. The text of MEJA (18 U.S.C. § 3267(1)(A)) was recently amended to define the term "employed by the Armed Forces outside the United States" to include civilian employees, contractors, or employees of contractors, not only of the Department of Defense, but also of "any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas". MEJA remains largely untested as by mid-September 2004, four years after it was enacted, the "implementing regulations" required to fully implement the law had not been passed.

Justice Department initiates prosecution
In June 2004, the US Justice Department charged a civilian contractor with assaulting an Afghan detainee, 28-year-old Abdul Wali, in a US military base near Asadabad in Kunar Province in Afghanistan a year earlier. Abdul Wali had handed himself into the US military voluntarily. It is alleged that David Passaro, a contractor working with the CIA, assisted in the interrogation. According to the indictment, David Passaro "beat Abdul Wali, using his hands and feet, and a large flashlight", during interrogations on 19 and 20 June 2003.(657) Abdul Wali died in custody on 21 June 2003. It is not clear why it took a year to bring charges in the case, and it seems that no murder charges were brought because an autopsy was not conducted. Amnesty International never received a reply to a letter it wrote on 23 June 2003 calling for a full investigation into the case and for anyone found responsible to be brought to justice.

The Justice Department said that it could prosecute David Passaro thanks to the USA PATRIOT Act, Section 804 of which provides jurisdiction over crimes committed by US nationals in military facilities in other countries.(658) In announcing the charges against David Passaro on 17 June 2004, Attorney General John Ashcroft said that it "would have been more difficult to investigate and prosecute" the case without the PATRIOT Act. However, the PATRIOT Act meant that at that time Passaro could not be charged with torture under 18 U.S.C. § 2340 (see note 656), and the remainder of federal law does not expressly criminalize torture (see Point 5). The Justice Department refused to provide further clarification, sought by Amnesty International in repeated requests, on why prosecution was not pursued under the War Crimes Act. In February 2002, Attorney General Ashcroft had advised President Bush that not applying the Geneva Conventions to the Afghanistan situation would "provide the highest assurance" against future prosecutions under the War Crimes Act of "American military officers, intelligence officials, or law enforcement officials" (see page 58).

In order to prevent arbitrariness – with, for example, civilian contractors charged with similar or the same crimes as military personnel, but tried in different jurisdictions – and to avoid any perception of inappropriate military justice leniency or lack of impartiality, Amnesty International believes that all those personnel, civilian or military, of low rank or high, should be tried in the ordinary civilian courts. Any trials must conform fully to international standards for fair trial, and the death penalty – which could be available under the UCMJ, the War Crimes Act and the Torture Statute in cases of torture or ill-treatment resulting in death – must not be imposed.

7.2 Recommendations under Point 7
The US authorities should:

• Publicly reject all arguments, including those contained in classified or unclassified government documents, promoting impunity for anyone suspected of torture and cruel, inhuman or degrading treatment, including the ordering of such acts;
• Bring to trial all individuals – whether they be members of the administration, the armed forces, intelligence services and other government agencies, medical personnel, private contractors or interpreters – against whom there is evidence of having authorized, condoned or committed torture or other cruel, inhuman or degrading treatment;
• Any person alleged to have perpetrated an act of "disappearance" should, when the facts disclosed by an official investigation so warrant, be brought before the competent civil authorities for prosecution and trial, in accordance with Article 14 of the UN Declaration on the Protection of All Persons from Enforced Disappearance;
• Ensure that all trials for alleged perpetrators comply with international fair trial standards, and do not result in imposition of the death penalty.
  

Governments should ensure that statements and other evidence obtained through torture may not be invoked in any proceedings, except against a person accused of torture.

8.1 The fruit of a poisonous tree
Under Article 15 of the UN Convention against Torture, any statement made as a result of torture is inadmissible in evidence in "any proceedings", except in proceedings against the alleged perpetrator of the torture. Other international standards exclude not only any statements extracted under torture, but also those elicited as a result of other cruel, inhuman or degrading treatment or punishment.(660) The Committee against Torture has stated that "the existence, in procedural legislation, of detailed provisions on the inadmissibility of unlawfully obtained confessions and other tainted evidence" is one of the essential means in preventing torture.(661) The Human Rights Committee, in its interpretation of the International Covenant on Civil and Political Rights (ICCPR), has stated that the "law must prohibit the use or admissibility in judicial proceeding of statements or confessions obtained through torture or other prohibited treatment", i.e., including the cruel, inhuman or degrading treatment prohibited by Article 7 of the ICCPR.(662) This applies not only to statements made by the accused, but also to statements made by any witness. Prosecutors must reject any evidence that they believe has been coerced.(663) The UN Special Rapporteur on torture has recommended that, on the question of the admissibility of statements or confessions, "the burden of proof should be on the State to demonstrate the absence of coercion."(664) The Geneva Conventions also prohibit the use of confessions or other information extracted by "moral or physical coercion".(665)

The Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, which President Bush signed on 13 November 2001, allows for foreign detainees named under it to be brought to trial by military commissions, executive bodies, not impartial or independent courts.(666) The rules for the military commissions do not expressly exclude statements extracted under torture or other coercive methods.

By October 2004, 15 foreign nationals had been made subject to the Military Order and four had been charged in preparation for trial by military commission. The first six were moved to solitary confinement in Camp Echo some time after they were made subject to the Order in July 2003. Held in windowless cells for months, there has been serious concern for their well being and susceptibility to making coerced statements. Moazzam Begg, one of the first six named under the Military Order, has said that he has been held in solitary confinement in Guantánamo Bay, including in Camp Echo, since February 2003, following a year in US custody in Bagram air base in Afghanistan. He has said that "any documents presented to me by US law enforcement agents were signed and initialled under duress".(667)

Amnesty International is concerned that any guilty pleas or detainee testimony brought before the military commissions could be the result of the coercive nature of the conditions in which detainees have long been held without any legal process, whether in US custody in Afghanistan or Guantánamo generally, Camp Echo or Camp Five (see Point 4) specifically, or in undisclosed locations elsewhere in the world, as well as unlawful interrogation techniques used against them. According to a declaration by Dr Daryl Matthews, a forensic psychiatrist who visited Guantánamo in 2003 at the invitation of the Pentagon, Salim Ahmed Hamdan, isolated for months in Camp Echo, said that he "considered confessing falsely to ameliorate his situation".(668)

The military commissions, designed to secure convictions on lower standards of evidence, will have the power to admit coerced evidence. A February 2002 memorandum from the Justice Department to the Pentagon, made public by the administration on 22 June 2004, states that "incriminating statements may be admitted in proceedings before military commissions even if the interrogating officers do not abide by the requirements of Miranda(669) [the US Supreme Court decision stipulating the rights of suspects and conduct of interrogators]".(670) The memorandum describes the military commissions as "entirely creatures of the President's authority as Commander in Chief… and are part and parcel of the conduct of a military campaign".

US nationals cannot be made subject to the Military Order. Thus John Walker Lindh, a US citizen captured in Afghanistan, was not brought under its provisions but before the ordinary civilian courts (see Point 2.2). In the event, he reached a plea arrangement, as part of which he dropped his allegations of torture and ill-treatment. However, it is clear that the administration believed that its incommunicado interrogation of Lindh would not necessarily have jeopardized the admissibility of any statements extracted from him. The February 2002 Justice Department memorandum to the Pentagon advised that it was not unethical for John Walker Lindh to have been interrogated incommunicado by Department of Defense lawyers even if they knew he was represented by another attorney. It suggested that an executive order from the President allowing such interrogations would, in any event, fall under the "President's authority as Commander in Chief to take necessary and appropriate measures to acquire information about enemy forces". The memorandum asserted that even if the government had acted unethically in questioning Lindh in the way that it had, "it would not follow that the evidence obtained in that questioning would be inadmissible at trial".

The memorandum concluded that statements extracted from interrogations conducted for intelligence-gathering, rather than prosecutorial purposes, would "likely be admissible" in trial in a normal US court even if the person interrogated had not been advised of his or her rights before questioning. Interrogations under these circumstances that were conducted for a mixture of intelligence-gathering and prosecutorial purposes, the memorandum suggested, might be admissible depending on the facts of the specific case in question.

Two former Guantánamo detainees wrote in May 2004 recalling: "After three months in solitary confinement under harsh conditions and repeated interrogations, we finally agreed to confess [to being present at a meeting with Osama bin Laden]. Last September an agent from MI5 [British secret service] came to Guantánamo with documentary evidence that proved we could not have been in Afghanistan at the time... In the end we could prove our alibis, but we worry about people from countries where records are not as available."(671)

8.2 Recommendations under Point 8
The US authorities should:

• Ensure that no statement coerced as a result of torture or other cruel, inhuman or degrading treatment, including long-term indefinite detention without charge or trial, or any other information or evidence obtained directly or indirectly as the result of torture or cruel, inhuman or degrading treatment, regardless of who was responsible for such acts, is admitted as evidence against any defendant, except the perpetrator of the human rights violation in question;
• Revoke the Military Order on the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, and abandon trials by military commission;
• Expose and reject any use of coerced evidence obtained by other governments from people held in their own or US custody;
• Refrain from transferring any coerced evidence for the use of other governments.
  

It should be made clear during the training of all officials involved in the custody, interrogation or medical care of prisoners that torture is a criminal act. Officials should be instructed that they have the right and duty to refuse to obey any order to torture.

9.1 Training has been found wanting
Article 7 of the International Covenant on Civil and Political Rights prohibits torture or other cruel, inhuman or degrading treatment or punishment. In its general comment on this Article, the Human Rights Committee has stated that: "Enforcement personnel, medical personnel, police officers and any other persons involved in the custody or treatment of any individual subjected to any form of arrest, detention or imprisonment must receive appropriate instruction and training."(672) Articles 10 and 16 of the UN Convention against Torture similarly require states to ensure that education and information regarding the prohibition of torture and cruel, inhuman or degrading treatment are "fully included" in the training of any state agent who may be involved in the custody, interrogation or treatment of any detainee or prisoner.

There have been numerous indications of inadequacies in the training of US personnel involved with detainees. There were shortcomings identified in training in interrogation and detention policies and procedures, as well as in cultural awareness (see page 22). Despite the Army Inspector General's finding in July 2004 that abuses by US personnel in Afghanistan and Iraq were "aberrations", the issue of training was a prominent feature in his report, with the word "training" appearing 589 times.(673) Among his findings were:
· "Interrogations were conducted...in some forward locations, by leaders and Soldiers with no training in military interrogation tactics, techniques and procedures";
· "To satisfy the need to acquire intelligence as soon as possible following capture, some officers and non-commissioned officers (NCOs) with no training in interrogation techniques began conducting their own interrogation sessions…"
· "The medical personnel interviewed stated that they did not receive any specific training in detainee operations".
· "To offset the shortage of interrogators, contractors were employed, however, 35% (11 of 31) of contract interrogators lacked formal training in military interrogation policies and techniques".

In November 2003, the Army Provost Marshal General's report on US detention operations in Iraq found that: "The 800th MP (I/R) [Internment/Resettlement] Brigade units did not receive corrections specific training during their mobilization period".(674) Major General Taguba repeatedly cited inadequate training in his report on US detentions in Iraq. Among his findings were:
· "Soldiers were poorly prepared and untrained to conduct I/R operations…throughout their mission";
· "Several interviewees insisted that the MP and MI Soldiers at Abu Ghraib (BCCF) received regular training on the basics of detainee operations; however, they have been unable to produce any verifying documentation, sign-in rosters, or soldiers who can recall the content of this training";

One of four US Marines charged in the abuse of an Iraqi prisoner on 13 April 2004 in a temporary facility in Mahmudiya, south of Baghdad, has said that his unit was unprepared for detention duties: "We didn't get good training".(675) Similarly, the running of another temporary facility in Iraq, Camp Whitehorse, near Nasiriya, was assigned to a reserve Marine unit whose personnel were not trained in detentions. A military investigation into abuses in the facility noted that the Major assigned to run the facility in late May 2003, who was subsequently charged in the death of a detainee, had received no training in the handling of prisoners, the management of a detention facility or the Geneva Conventions.(676) A US Army Reserve Specialist assigned to Abu Ghraib prison is reported to have said that in two years with the reserves, "she never heard the words 'Geneva Conventions', nor did she receive more than a few days of training on how to guard enemy prisoners of war".(677)

The Fay report into the torture and ill-treatment in Abu Ghraib found shortcomings in military training – mentioning the word 193 times in its 143 pages. It noted evidence that "little, if any, training on Geneva Conventions was presented to contractor employees". It suggested that "prior to deployment, all contractor linguists or interrogators should receive training in the Geneva Conventions standards for the treatment of detainees/prisoners." Amnesty International welcomes this recommendation, as such training is necessary, but it must be coupled with official respect at all levels of government for the Geneva Conventions. As has already been noted, the administration's decision to reject the applicability of the Geneva Conventions to the "war on terror" detainees ended up causing confusion among interrogators in Iraq and contributing to the torture and ill-treatment.

The Fay report suggests that part of the problem was that "army training at [Fort Huachuca army intelligence center] never included training on interrogation techniques using sleep adjustment, isolation, segregation, environmental adjustment, dietary manipulation, the use of military working dogs, or the removal of clothing." Nor should it. Such practices should be prohibited, not built into training programs.

9.2 Recommendations under Point 9
The US authorities should:

• Ensure that all personnel involved in detention and interrogation, including all members of the armed forces or other government agencies, private contractors, medical personnel and interpreters, receive full training, with input from international experts, on the international prohibition of torture and other cruel, inhuman or degrading treatment or punishment, and their obligation to expose it;
• Ensure that all members of the armed forces and members of other government agencies, including the CIA, private contractors, medical personnel and interpreters, receive full training in the scope and meaning of the Geneva Conventions and their Additional Protocols, as well as international human rights law and standards, with input from international experts;
• Ensure that full training be similarly provided on international human rights law and standards regarding the treatment of persons deprived of their liberty, including the prohibition on "disappearances", with input from international experts;
• Ensure that all military and other agency personnel, as well as medical personnel and private contractors, receive cultural awareness training appropriate to whatever theatre of operation they may be deployed into.
  

Victims of torture and their dependants should be entitled to obtain prompt reparation from the state including restitution, fair and adequate financial compensation and appropriate medical care and rehabilitation.

10.1 Reparation means more than just money
Article 14 of the UN Convention against Torture states: "Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation." Similarly, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the United Nations General Assembly in 1975, states that: "Where it is proved that an act of torture or other cruel, inhuman or degrading treatment or punishment has been committed by or at the instigation of a public official, the victim shall be afforded redress and compensation in accordance with national law".(679)

The Alien Tort Claims Act allows non-US nationals to file lawsuits for civil damages for acts of torture occurring outside the USA.(680) The Torture Victims Protection Act allows both foreign nationals and US citizens to claim damages against any individual who engages in torture or extrajudicial killing under "actual or apparent authority" of any government.

The UN Special Rapporteur on torture has emphasized that As emphasized by the draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, the issue of reparation should focus not only on monetary compensation, but consider restitution, satisfaction, guarantees of non-repetition, and rehabilitation.(682) Restitution might include restoration of liberty, legal rights, social status, family life and citizenship, return to one's place of residence, restoration of employment and return of property. A contributor to satisfaction, for example, may be an official apology and acceptance of responsibility.

Rehabilitation is an important form of reparation. The development of techniques and facilities for the care and treatment of torture survivors has been an important achievement of recent decades. There are undoubtedly people who have suffered physical and psychological sequelae as a result of their time in US custody during the "war on terror". Some, as noted, have died. In its February 2004 report on Iraq, the ICRC described the case of a detainee who had been kept in isolation and "was unresponsive to verbal and painful stimuli. His heart rate was 120 beats per minute and his respiratory rate 18 per minute. He was diagnosed as suffering from somatoform (mental) disorder, specifically a conversion disorder, most likely due to the ill-treatment he was subjected to during interrogation." The ICRC also reported that its medical personnel had examined detainees "presenting signs of concentration difficulties, memory problems, verbal expression difficulties, incoherent speech, acute anxiety reactions, abnormal behaviour and suicidal tendencies. These symptoms appeared to have been caused by the methods and duration of interrogation." An ICRC medical examination of another detainee alleged to have been subjected to torture and ill-treatment "revealed haematoma in the lower back, blood in urine, sensory loss in the right hand due to tight handcuffing with flexi-cuffs, and a broken rib."

Amnesty International has spoken to former Guantánamo detainees who have said that they suffer physical and psychological after-effects of their time in US custody. In February 2004, nearly a year after he was released from Guantánamo, Afghan national Sayed Abbasin was still suffering from eyesight and knee problems that he said were the result of his time in custody. He had told Amnesty International that he had been forced to kneel for hours and was subjected to sleep deprivation in US custody in Afghanistan. In May 2003, another released Afghan, Mohammad Taher, told Amnesty International that he had suffered mentally from his detention and that he was having difficulty remembering things. More than two months after his release from Guantánamo, UK national Tarek Dergoul said that he was suffering from "nightmares, flashbacks, migraines, depression and memory loss".(683) Swedish national Mehdi Ghezali, a former Guantánamo detainee, told Amnesty International in July 2004 that parts of his right foot are completely "dead" as a result of tight shackling. He said that he was suffering nightmares after his two and a half years in captivity.

Those who have been subjected to arbitrary arrest also have a right to compensation. Article 9.5 of the International Covenant on Civil and Political Rights, which the USA ratified in 1992, states: "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation". There are undoubtedly many people who have been subjected to unlawful arrest by the USA in the "war on terror".

10.2 Recommendations under Point 10
The US authorities should:

• Ensure that anyone who has suffered torture or ill-treatment while in US custody has access to, and the means to obtain, full reparation including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, wherever they may reside;
• Ensure that all those who have been subject to unlawful arrest by the USA receive full compensation.
  

11.1 Playing fast and loose with international law
Amnesty International has long been critical of the USA's pick-and-choose approach to international law and standards. This is a country that has been slow to commit itself to human rights treaties and has attached unprecedented conditions to those it has ratified.

This approach has been evident in the "war on terror". In the various government communications that have come into the public domain, a clear picture emerges of an administration that views international law and standards as obstacles to be overcome rather than obligations to be met. The worst that can happen, these documents suggest, is some diplomatic tension. Thus, for example, the Pentagon Working Group Report on Detainee Interrogations in the Global War on Terrorism provides a "discussion of international law that, although not binding on the United States, could be cited to [sic] by other countries to support the proposition that the interrogation techniques used by the US contravene international legal standards".(685) Similarly, an August 2002 memorandum from the Justice Department to the White House noted that "although decisions by foreign or international bodies are in no way binding authority on the United States, they provide guidance about how other nations will likely react to our interpretation [of the Convention against Torture]".(686)

When any state, let alone a country as powerful as the USA, insists on its right to adopt a selective approach to international law and standards, their integrity is eroded. Why should any other state not then claim for itself the prerogative to adhere to only those portions of international law which suit its purposes?

11.2 UN Convention against Torture
The USA's 1994 ratification of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment came with various "reservations, declarations and understandings" attached. The effect of these conditions was to limit the application of the treaty by ensuring that it offered no greater protection than already existed under US law. In 2000, having considered the USA's initial report, the Committee against Torture, the expert body established by the treaty to oversee its implementation, called on the USA to "withdraw its reservations, interpretations and understandings relating to the Convention".(688) Four years later, the USA has not taken this action. Instead, government officials have cited those same ratification conditions to advise that harsh interrogation techniques could be authorized with impunity.

In May 2004, the Committee against Torture revealed that it had written to the USA to ask it to present its second now long overdue periodic report by 1 October 2004.(689) The Committee's letter drew the US government's attention "in particular to article 2.1 of the Convention [against Torture], according to which each State party should take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction". The Committee stated that the report should include updated information concerning the situation of places of detention in Iraq up to the time of the submission of the report.(690) The USA has not responded to the request and no report has been filed. The USA's second periodic report to the Human Rights Committee under the ICCPR was due on 7 September 1998, and its third report was due on 7 September 2003. The USA has filed neither.

The USA attached an understanding of what is meant by torture to its ratification of the UN Convention against Torture.(691) It is a definition that is arguably narrower than that contained in Article 1.1 of the Convention.(692)

A memorandum from the US Justice Department to the Pentagon, dated 1 August 2002, emphasised the narrowness of the US definition of torture in advising that there was broad scope for US agents to engage in harsh interrogation tactics in the "war on terror". It pointed out that both the Reagan and first Bush administrations, in their moves to ratify the Convention, "consistently emphasise[d] the extraordinary or extreme acts required to constitute torture".(693) The same approach was indicated in a letter from the Justice Department to the White House, also dated 1 August 2002. The letter stated that the US "understanding" on torture "accomplished two things": The USA also lodged a condition to Article 16 of the UN Convention against Torture. Article 16 states: "Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

To this Article, the USA attached the following "understanding": "the United States considers itself bound by the obligation under article 16 to prevent 'cruel, inhuman or degrading treatment or punishment', only in so far as the term 'cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States."

The August 2002 Justice Department memorandum emphasized that the USA's ratification history in relation to the Convention "confirm[s] our view that the treaty… prohibits only the worst forms of cruel, inhuman or degrading treatment or punishment". In October 2002, a military lawyer recommended the approval of interrogation techniques, requested for use at Guantánamo, including stress positions, isolation, sensory deprivation, hooding, 20-hour interrogations, stripping, forced grooming, use of dogs to inspire fear, exposure to cold water or weather, death threats and use of wet towel and dripping water to induce the misperception of suffocation. In doing so, she noted the USA's reservation to Article 16 of the UN Convention against Torture, and concluded: "The United States is only prohibited from committing those acts that would otherwise be prohibited under the United States Constitutional Amendment against cruel and unusual punishment." She added that the "United States ratified the treaty with the understanding that the convention would not be self-executing, that is, that it would not create a private cause of action in US Courts." (695)

This memorandum was written two years after the Committee against Torture urged the USA to withdraw all its conditions to the ratification of the treaty, including the reservation to Article 16, which it stated was "in violation of the Convention [and] the effect of which is to limit the application of the Convention".(696)

Article 16 also states that: "In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment." Thus, under Article 10, the state must ensure that all its agents are educated and informed about the prohibition on cruel, inhuman or degrading treatment. Article 11 requires the state to keep under systematic review interrogation rules, instructions, methods and practices with a view to preventing any cases of cruel, inhuman or degrading treatment. Under Article 12, the state must ensure prompt and impartial investigation of all allegations of cruel, inhuman or degrading treatment of detainees in any territory under its jurisdiction.

It is quite clear from the various communications that have come into the public domain that far from meeting this obligation, the US administration actively undermined it.

11.3 Geneva Conventions
The US administration's selective approach to the Geneva Conventions has been part of a policy which has sown confusion about interrogation rules among the US armed forces, and given a green light to torture and other cruel, inhuman or degrading treatment or punishment (see pages 9-14). Official investigations have concluded that versions of interrogation techniques developed for use against detainees in Afghanistan and Guantánamo, who by presidential decree became unprotected by the Geneva Conventions, later emerged in Iraq, where the conventions were held by the US government to apply.

Former Secretary of Defense Harold Brown, one of the four members of the Schlesinger Panel, has said that "the underlying context for abuses [in Iraq] was framed by two judgments that were made before combat operations began".(698) One was a failure to plan for detention operations as the possibility of a major insurgency was not foreseen. The second was the decision to reject the Geneva Conventions for those held in Afghanistan and Guantánamo, "which allowed interrogation methods beyond those long customary under Army Field Manual 34-52". Following Secretary Rumsfeld's approval of beyond-doctrine interrogation techniques for use in Guantánamo, "various versions of expanded lists migrated unauthorized to Afghanistan, and to Iraq where the Geneva Conventions continued to apply. That migration of rules (and of personnel) led to confusion about what interrogation practices were authorized and to several changes in directions to interrogators. I believe that was a contributing factor in the abuse of detainees."(699) The Schlesinger Panel as a whole concluded that the "existence of confusing and inconsistent interrogation techniques contributed to the belief that additional interrogation techniques were condoned".

The USA ratified the four Geneva Conventions in 1955. It has signed, but did not ratify, Additional Protocol I to the Geneva Conventions. The USA has recognized the "fundamental guarantees" of Article 75 of Additional Protocol I as reflecting customary international law.(700) In a 22 January 2002 memorandum, the Justice Department advised the White House and the Pentagon that the Geneva Conventions would not apply to "the detention conditions of al Qaeda prisoners… We also conclude that customary international law has no binding legal effect on either the President or the military…"(701)

The White House Counsel advised that the President should reject the notion that the USA's selective approach to the Geneva Conventions would put US soldiers at risk, adding that "we can still bring war crimes charges against anyone who mistreats US personnel". Alberto Gonzales has also said that the President's decision "is not controversial within the Executive Branch".(702) There had been controversy, however. The Legal Adviser at the Department of State wrote to the White House Counsel: Indeed, the Schlesinger report noted that the Legal Advisor to the Chairman of the Joint Chiefs of Staff and "many service lawyers" were among those who had been concerned that rejecting provisions of the Geneva Conventions would "undermine the United States military culture which is based on a strict adherence to the law of war".(704)

The approach to the Geneva Conventions taken by the US administration in the "war on terror" has flown in the face of, for example, Department of Defense [DoD] directive No. 5100.77 of 9 December 1998.(705) This states that: "It is DoD policy to ensure that: The law of war obligations of the United States are observed and enforced by the DoD Components.(706) An effective program to prevent violations of the law of war is implemented by the DoD Components. All reportable incidents committed by or against US or enemy persons are promptly reported, thoroughly investigated, and, where appropriate, remedied by corrective action."(707)

11.4 Ignoring or misusing international expert opinion Many of what the August 2002 Justice Department memorandum described as "the wide array of acts that constitute cruel, inhuman or degrading treatment or punishment, but do not amount to torture" – if one were to adopt "an aggressive interpretation of what amounts to torture, leaving that label to be applied only to where extreme circumstances exist" – are listed in the April 2003 final report of the Pentagon Working Group, and have been alleged in Afghanistan, Guantánamo and Iraq.
The August 2002 memorandum cited two court decisions outside the USA to support its apparent endorsement of interrogation techniques since used in the "war on terror". One was a 1978 decision by the European Court of Human Rights finding that although five techniques applied together during the interrogation of prisoners held under emergency legislation in Northern Ireland "undoubtedly amounted to inhuman or degrading treatment… they did not occasion suffering of the particular intensity and cruelty implied by the word torture". (709) The Justice Department's memorandum failed to note that the European Commission on Human Rights had earlier found that the techniques had amounted to torture.(710) The memorandum also ignored that in a subsequent decision, 20 years later, the European Court of Human Rights stated that "certain acts which were classified in the past as 'inhuman and degrading treatment' as opposed to 'torture' could be classified differently in future… the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies."(711)

The second decision cited by the Justice Department memorandum in support of techniques which it said fell short of torture was one handed down by the Supreme Court of Israel in 1999.(712) The case involved interrogation techniques used by that country's General Security Service and included shaking, being forced to sit or stand in a painful position, being forced to squat on the tips of the toes; excessive tightening of handcuffs; hooding; and the playing of extremely loud music; and sleep deprivation. The US Justice Department memorandum said that "while the Israeli Supreme Court concluded that these acts amounted to cruel and inhuman treatment, the court did not expressly find that they amounted to torture". The memorandum is misleading. The Israel court had avoided the question altogether, neither concluding that the techniques amount to torture nor that they did not, nor yet that they did or did not constitute "cruel and inhuman treatment." The Court said that "a reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment of the subject and free of any degrading handling whatsoever… Human dignity includes the dignity of the suspect being interrogated." Nevertheless, the Supreme Court of Israel allowed in effect for torture and cruel, inhuman and degrading treatment to be used in "ticking bomb" cases, and determined that the "defence of necessity" would be available to torturers in such cases, a theme which some of the US memorandums picked up, but which both the Committee against Torture(713) and the Human Rights Committee(714) firmly rejected.

The Justice Department memorandum also failed to note that the Committee against Torture has given its opinion on the interrogation techniques used in Israel. The Committee said that the techniques included: "(1) restraining in very painful conditions, (2) hooding under special conditions, (3) sounding of loud music for prolonged periods, (4) sleep deprivation for prolonged periods, (5) threats, including death threats, (6) violent shaking, and (7) using cold air to chill, and are, in the Committee's view, breaches of article 16 and also constitute torture as defined in article 1 of the Convention. This conclusion is particularly evident where such methods of interrogation are used in combination, which appears to be the standard case".(715) The Pentagon Working Group report on interrogations in the "war on terror" also noted that "techniques are usually used in combination".

The thinking shown in the August 2002 memorandum was displayed two months later when a military lawyer recommended approval of interrogation techniques requested for use at Guantánamo. She noted that the "British authorities developed practices of interrogation such as forcing detainees to stand for long hours, placing black hoods over their heads, holding the detainees prior to interrogation in a room with continuing loud music, and depriving them of sleep, food and water". She noted that the European Court had found that such techniques had not amounted to torture, and herself went on to recommend approval of techniques including stress positions, stripping, hooding, isolation, sensory deprivation, use of dogs to inspire fear, "the use of scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family", "exposure to cold weather or water", and the "use of a wet towel and dripping water to induce the misperception of suffocation".(716)

Hooding
The US authorities have chosen to ignore various decisions and recommendations of international bodies and experts. For example, the USA has routinely used hooding or blindfolding of detainees, both during transportation and interrogation. Secretary of Defense Rumsfeld authorized hooding as an interrogation technique in Guantánamo. Yet the UN Committee against Torture has said that blindfolding during interrogation "should be expressly prohibited".(717) The UN Special Rapporteur on torture has stated: "The practice of blindfolding and hooding often makes the prosecution of torture virtually impossible, as victims are rendered incapable of identifying their torturers. Thus, blindfolding or hooding should be forbidden."(718) An Iraqi detainee in Abu Ghraib, Kasim, said on 18 January 2004 to investigators: "The transfer from Camp B to the Isolation was full of beatings, but the bags were over our heads, so we couldn't see their faces". Another Abu Ghraib detainee told investigators that a US soldier "started beating me, him, and five other American police. I could see their feet only, from under the bag".(719)

In its February 2004 report, the ICRC found allegations of systematic abuses, some of them "tantamount to torture". It noted that the USA's practice of hooding was "used to prevent people from seeing and to disorient them, and also to prevent them from breathing freely. One or sometimes two bags, sometimes with an elastic blindfold over the eyes which, when slipped down, further impeded proper breathing. Hooding was sometimes used in conjunction with beatings thus increasing anxiety as to when blows would come. The practice of hooding also allowed the interrogators to remain anonymous and thus to act with impunity." In Camp Umm Qasr and its predecessor Camp Bucca, the ICRC found that hooding was "part of standard intimidation techniques used by military intelligence personnel to frighten inmates into cooperating".

The UK authorities – the government whose past practices the US administration's memorandums cited in justifying, inter alia, the use of hooding – have suggested that hooding during interrogation violates the Geneva Conventions: "Interviews of detainees conducted or observed by UK intelligence personnel have, with the following exception, been conducted in a manner consistent with the principles laid down in the Geneva Convention. In June 2003, two [censored] interviewed an Iraqi detainee [censored] at [censored]. The detainee was brought in hooded and shackled by the US military, and remained so during the one-hour interview. The [censored] understood these measures to be for security purposes, and did not report it at the time since they were not then aware that hooding was unacceptable."(720) In addition, the UK authorities have also told Amnesty International that: · Physical punishment of any sort (beatings etc.);
· The use of stress privation;
· Intentional sleep deprivation;
· Withdrawal of food, water or medical help;
· Degrading treatment (sexual embarrassment, religious taunting, etc.);
· The use of 'white noise';
· Torture methods such as thumb screws etc".(721)

Except for the latter technique, all these methods have allegedly been used by US agents during the "war on terror".

11.5 Optional Protocol to the UN Convention against Torture
In 2002, the USA attempted to block the adoption of the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Protocol will establish a system of both regular visits to places of detention by an international body of experts, and sustained regular visits conducted by national visiting bodies.

The vast majority of states from Africa, Asia, Europe and Latin America, gave their support to the Optional Protocol. It was adopted by 104 votes in favour and only eight against. A proposal by the USA that would have effectively denied many developing countries the opportunity to join this initiative was defeated. The USA and Japan had sought to make states which ratify the Optional Protocol solely responsible for the costs of the instrument, rendering effective torture prevention a privilege only for wealthy states. The proposal was contrary to the long-standing practice of funding all human rights mechanisms from the UN regular budget.

The Optional Protocol was formally adopted at the UN General Assembly on 18 December 2002. It was opened for signature from 4 February 2003. As of 1 October 2004, 29 states had signed the Protocol and four had become states parties.(722) The USA has neither signed nor acceded to the Protocol. It should do so, and show its commitment to eradicating torture and cruel, inhuman or degrading treatment or punishment from any facilities under its jurisdiction and control, as well as facilitate the operation of mechanisms which the international community believes would be effecting in bringing about such eradication.

11.6 International Criminal Court
The USA is opposed to the International Criminal Court. Although President Clinton signed the Rome Statute of the ICC just before he left office, the Bush administration has made it clear that it will not ratify it and therefore does not consider itself bound under international law not to undermine its object and purpose.(724)

The US Justice Department reminded the White House in August 2002 that "[a]lthough President Clinton signed the Rome Statute, the United States has withdrawn its signature from the agreement… effectively terminating it. The United States, therefore, cannot be bound by the provisions of the ICC Treaty nor can US nationals be subject to ICC prosecution." The memorandum advised that, even if the ICC "could in some way act upon the United States and its citizens, interrogation of an al Qaeda operative could not constitute a crime under the Rome Statute." The memorandum argued that "[e]ven if certain interrogation methods being contemplated amounted to torture", the ICC would not have jurisdiction because the crimes would not amount to crimes against humanity and would not constitute war crimes because President Bush "has appropriately determined that al Qaeda members are… not entitled to the protections of any of the Geneva Conventions." The memorandum concluded that although the USA's "war on terror" interrogations "cannot fall within the jurisdiction of the ICC… it would be impossible to control the actions of a rogue prosecutor or judge…We cannot predict the political actions of international institutions".(725)
Even as the USA has waged its "war on terror", it has been pressurizing governments around the world to enter into impunity agreements which commit them not to surrender to the ICC any US nationals accused of genocide, crimes against humanity or war crimes. The April 2003 final report of the Pentagon Working Group on Detainee Interrogations in the Global War on Terrorism advises that some states with whom the USA has not entered into such agreements may "perceive certain interrogation techniques to constitute torture or inhuman treatment". Such states, the Working Group says, "may attempt to use the Rome Statute to prosecute individuals found in their territory responsible for such interrogations. In such cases, the US Government will reject as illegitimate any attempt by the ICC, or a state on its behalf, to assert the jurisdiction of the Rome Statute over US nationals without the prior express consent of the United States".(726)

11.7 Recommendations under Point 11
The US authorities should:

• Make a public commitment to fully adhere to international human rights and humanitarian law and standards – treaties, other instruments, and customary law – and respect the decisions and recommendations of international and regional human rights bodies;
• Make a public commitment to fully adhere to the Geneva Conventions, and to respecting the advice and recommendations of the International Committee of the Red Cross;
• Ratify Additional Protocols I and II to the Geneva Conventions;
• Withdraw all conditions attached to the USA's ratification of the UN Convention against Torture;
• Provide the USA's overdue second report to the Committee against Torture, as requested by the Committee;
• Withdraw all limiting conditions attached to the USA's ratification of the International Covenant on Civil and Political Rights;
• Provide the USA's overdue reports to the Human Rights Committee;
• Ratify the Optional Protocol to the UN Convention against Torture;
• Ratify the UN Convention on the Rights of the Child;
• Ratify the American Convention on Human Rights;
• Ratify the Inter-American Convention on Forced Disappearance of Persons without any reservations and implement it by making enforced disappearances a crime under US law over which US courts have jurisdiction wherever committed by anyone.
• Ratify the Rome Statute of the International Criminal Court.
  

12.1 International security cooperation or outsourcing torture?
Governments have a duty to protect the safety of the public, to investigate crime and to bring those responsible to justice. Amnesty International recognizes that governments will need to cooperate to this end where the threats or crimes in question cross national boundaries. Human rights and respect for international law must be at the centre of the search for justice and security, however.

Recent evidence that the USA is not exercising its international human rights responsibilities to oppose and expose torture came from the former UK ambassador to Uzbekistan. The ambassador had protested to the UK Foreign Office about torture in Uzbekistan and that information obtained under torture was being passed by the Uzbek authorities to the USA, specifically the Central Intelligence Agency, and thence to the UK. In a leaked UK Foreign Office report, Ambassador Craig Murray reportedly stated: "Tortured dupes are forced to sign confessions showing what the Uzbek government wants the US and UK to believe – that they and we are fighting the same war against terror… This is morally, legally and practically wrong".(728) The ambassador was subsequently dismissed from his post.

Also of deep concern is that the USA has instigated or involved itself in transfers of detainees between itself and other countries that bypass human rights protections and the rule of law. The USA refers to these transfers as "renditions".(729) The UN Special Rapporteur on torture has recently expressed serious concern about such transfers.(730)

Article 3 of the UN Convention against Torture states that no State Party shall expel, return or extradite a person to another State where there are "substantial grounds for believing that he would be in danger of being subjected to torture". The USA conditioned its ratification of the Convention on the understanding that, under Article 3, the phrase "substantial grounds" means "if it is more likely than not" that someone would be tortured. This unilateral interpretation of Article 3 places a higher burden of proof on the individual seeking protection than is intended under the treaty. This is clear from the general comment by the Committee against Torture which states that, in assessing whether a claim meets the test under Article 3, the risk of torture must go "beyond mere theory or suspicion" but "does not have to meet the test of being highly probable" (emphasis added). (731)

Three years after the Committee against Torture asked the US government to remove all its conditions to its ratification of the Convention, in June 2003, the government made it clear that it was maintaining its position on Article 3. Faced with concern over transfers of detainees to other countries, the authorities gave assurances that: As with the guarantees given by this administration about its commitment to the humane treatment of detainees in the "war on terror", even this qualified assurance must be treated with some scepticism. For there is mounting evidence of US involvement in numerous transfers between itself and other countries which raise serious human rights concerns relating to the prohibition on arbitrary detention, the right to a fair trial, and the right to be protected from torture and cruel, inhuman or degrading treatment. From early in the "war on terror" there have been allegations of secret transfers of detainees. In March 2002, for example, it was alleged that "dozens of people" had been transferred by the USA to countries where they could be interrogated. In some cases, it was alleged that US intelligence agents remained closely involved in the interrogation.(733) In April 2002, it was reported that "Egyptian and Jordanian jails recently received scores of Arab prisoners affiliated with the al-Qa'ida organization after the United States had decided to transfer them from Afghanistan".(734)

Cases involving secret transfers of detainees to or from US custody include:
· Maher Arar, a Canadian/Syrian national, was transferred from US custody to Syria via Jordan in October 2002. He was allegedly subjected to severe torture in Syria and held for months in cruel, inhuman and degrading conditions.(735)
· Yemeni national Jamil Qasim Saeed Mohammed was reportedly handed over to US custody by Pakistan agents on 26 October 2001 and flown out of Karachi International Airport in secret aboard a US Gulfstream jet. He was reportedly taken to Jordan. His current whereabouts are unknown. Amnesty International has never received a response to its requests to the US authorities for information on the case.(736)
· Moazzam Begg was seized by Pakistan and US agents from his flat in Islamabad in Pakistan on 31 January 2002 and taken away in the boot of a car. Despite a habeas corpus appeal pending in a Pakistan court, he was transferred to US custody in Bagram air base in Afghanistan, and from there to Guantánamo Bay where he remains. In a letter sent from Guantánamo, dated 12 July 2004 and copied to Amnesty International, Moazzam Begg alleges that in Afghanistan he was "physically abused, and degradingly stripped by force, then paraded in front of several cameras toted by US personnel". He writes that he was denied natural light and fresh food for a year in Bagram before being transferred to Guantánamo where he was subsequently held in indefinite solitary confinement.(737)
· In June 2003, five men – Turkish nationals Ibrahim Habaci and Arif Ulusam, Saudi national Faha al Bahli, Sudanese national Mahmud Sardar Issa, and Khalifa Abdi Hassan of Kenya – were arrested and held incommunicado at an undisclosed location in Malawi. Shortly after a court ordered that they should be brought before it, they were secretly transferred out of the country. Although the USA denied involvement in the arrests, an official of the Malawian government wrote to Amnesty International that "the arrests were not done by the Malawi Police but by the National Intelligence Bureau and the USA Secret Agents who controlled the whole operation. From the time the arrests were made, the welfare of the detainees, their abode and itinerary for departure were no longer in the hands of the Malawian authorities… In Malawi we do not know where these people are but they are in hands of the Americans who took them out of the country using a chartered aircraft. They should now be going through investigations at a location only known by the USA." At the end of July, it was reported that the five had been taken to Zimbabwe and held there for a month before being sent to Sudan where they were released, apparently after no evidence was found linking them to al-Qa'ida. (738)
· Riduan Isamuddin, also known as Hambali, an Indonesian national, was arrested on 11 August 2003 in Thailand. The US authorities subsequently confirmed that he was in their custody, but refused to say where.(739) Amnesty International has received no clarification from the US authorities on the case following th