LEADING BY EXAMPLE:
Investigating and Prosecuting Those
Responsible for the Torture of
Detainees at Abu Ghraib Prison
and Elsewhere

Prepared By

!

June 26, 2004

" #

“The United States is committed to the worldwide
elimination of torture and we are leading the fight
by example. I call 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 cruel and unusual punishment.”
- President George W. Bush, June 26, 2003.

“The values of this country are such that torture is
not a part of our soul and our being.”
- President George W. Bush, June 22, 2004.

“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.”
- President George W. Bush, in a White
House memo signed by him on February 7,
2002.

World Organization for Human Rights USA
Executive Summary of
LEADING BY EXAMPLE:
Investigating and Prosecuting Those Responsible for the Torture
of Detainees at Abu Ghraib Prison and Elsewhere
In recognition of the International Day in Support of Victims of Torture on June 26th, the World
Organization for Human Rights USA is issuing this report demonstrating the need for the criminal
investigation and prosecution of high-level U.S. officials who may be responsible for the policy of
encouraging the use of torture for the interrogation of suspected terrorists in Iraq, Afghanistan, and elsewhere.
This report provides a non-exhaustive list of officials who appear to be implicated in the abuses, explains
international and domestic laws that have been violated, and identifies a number of specific enforcement
actions that must be taken to bring the perpetrators to justice.
Recent reports indicate that high-level Justice and Defense Department officials provided written
approval of policies authorizing the use of torture to obtain information from detainees and that some detainees
were held in secret to facilitate these interrogations. These actions constitute the “smoking gun” demonstrating
that the abuses at Abu Ghraib and elsewhere are not the isolated acts of a few, but rather are part of a systemic
and officially sanctioned policy of condoning, justifying, and encouraging the use of torture.
The torture that has taken place violates a number of domestic laws and international standards, some
of which call for the application of criminal penalties for violations. Most notable among these is the statute
adopted by the U.S. Congress to implement the Convention Against Torture by holding torturers criminally
accountable for their abuses. The following enforcement steps must be taken immediately to fulfill the United
States’ obligations under both domestic and international law to prevent torture and to punish those implicated
as having committed torture or having encouraged its use. Our organization will be filing complaints and
submissions seeking to initiate each of these actions:
1. Initiate a full criminal investigation leading
to the prosecution of ALL those involved in
torture of detainees not just the lower-level,
immediate perpetrators. This can be done by:
a. The Attorney General appointing a
Special Attorney to conduct an
independent criminal investigation and
prosecution, since high-level Justice and
Defense Department officials have been
implicated; or
b. Congress should pass a law to establish
an Independent Counsel whose authority
extends solely to investigate and prosecute
violations of domestic and international
law in the prisoner abuse scandal, should
it become clear that the Attorney General
cannot or will not conduct an impartial
and objective investigation.
2. The Chief Prosecutor of the International
Criminal Court (ICC) should begin an
investigation of torture committed by United
States personnel in Afghanistan.
3. The United Nations Security Council should
defeat the renewal of UN Resolution 1487,
which seeks to exonerate United States
citizens from possible war crimes prosecutions
for violations committed in Iraq.
4. The Inter-American Commission for
Human Rights should request that the

5.

6.

7.

8.

i

United States take precautionary measures
to prevent further abuses, ensuring that no
one in U.S. custody is subjected to torture.
The United Nations Commission on Human
Rights’ Special Rapporteurs on Torture
and on Extrajudicial, Summary or
Arbitrary Executions should investigate
and issue a report on the abuses that have
taken place, and the United States should
cooperate fully with these investigations.
Pursuant to Article 149 of the Fourth
Geneva Convention, a Commission of
Inquiry should be established to investigate
abuses of detainees connected with the Iraq
and Afghanistan conflicts.
The Human Rights Committee established
by the International Covenant on Civil and
Political Rights (ICCPR) should request
that the United States submit a full report
on the torture of detainees as part of its report
on compliance under the ICCPR, which
currently is more than five years overdue.
The United States should provide a
comprehensive report on the torture of
detainees to the United Nations Committee
Against Torture, in connection with that
Committee’s responsibility to monitor
compliance under the Convention Against
Torture.

Table of Contents
Executive Summary .................................................................................................................i
I.

Introduction...................................................................................................................1

II.

Brief Overview of the Evidence that Torture Has Occurred and that Higher-Level
Officials May Well Be Implicated................................................................................2
A. Iraq ....................................................................................................................3
B. Other Locations.................................................................................................4
C. Rendition to Torture..........................................................................................5

III.

Non-Exhaustive List of Key Officials Who May Be Implicated..................................5

IV.

Violations of Domestic and International Laws and Standards....................................12
A. Violations of International Standards ...............................................................12
B. Violations of Domestic Laws............................................................................13

V.

Steps that Must Be Taken to Enforce the Prohibition Against Torture ........................15

ii

LEADING BY EXAMPLE:
Investigating and Prosecuting Those Responsible for the Torture of Detainees
at Abu Ghraib Prison and Elsewhere
“The United States is committed to the worldwide elimination of torture and we
are leading the fight by example.”
- President George W. Bush, June 26, 2003.
I.

Introduction

June 26th is the date that has been designated by the United Nations as the International
Day in Support of Victims of Torture, the day set aside to bring international attention and
support to those subjected to one of the most serious forms of human rights abuse. It is aimed at
bringing to an end the practice of torture, and bringing torturers to justice. There can be no more
appropriate time to call for more complete and effective action by the United States government
to investigate and criminally prosecute all those responsible for acts of torture committed by U.S.
military and civilian personnel against suspected terrorists in Afghanistan, Iraq, Guantanamo
Bay, and elsewhere.
The human rights community certainly applauds initial efforts that are being made by
U.S. military authorities to criminally prosecute many of the individual, lower-level soldiers who
were immediately engaged in committing acts of torture in Abu Ghraib prison in Iraq. The
authorities, however, have thus far not made similar efforts with regard to examining the
potential involvement of higher level military and civilian officials whose actions and policies
may have facilitated, authorized, condoned, or otherwise made the torture that has taken place
possible. It is essential, if the United States is to regain credibility as a leading defender of
human rights compliance worldwide, and if we are to assure the proper treatment of our own
citizens and military personnel stationed abroad, that we take more definitive action to prosecute
those ultimately responsible for any torture violations that may have taken place.
Nor should the focus of our efforts to bring to justice those who have committed acts of
torture and to prevent the recurrence of those acts be limited to the problem of the abuse
detainees at Abu Ghraib prison in Iraq. It must cover, as well, abuses associated with the
treatment of detainees in Afghanistan, in Guantanamo Bay, and here in the U.S., in connection
with a series of related policies and actions aimed at preventing terrorism. This includes the
practice of “rendition to torture,” that is, sending suspected terrorists to third countries for
interrogation using harsh techniques that might not be tolerated in the U.S.
For many years, the United States has been a leading advocate calling attention to torture
and other major human rights abuses by other governments. We must apply the same standard to
ourselves, and do a more thorough job than has been done thus far to prevent and punish torture
as a method of intimidation and punishment, whether it is carried out by guards at U.S. military
facilities, their military and civilian supervisors, or higher-level officials who condoned or
authorized these actions as a means of combating terrorism.
The prohibition against torture is absolute under the international Convention Against
Torture (CAT) and under our own country’s laws implementing that treaty. It applies to all acts
imposing severe pain and suffering regardless of the reason it takes place. Under these domestic
and international laws, there is no justifiable excuse for torture, including the prevention of
1

terrorism. Nor does the President of the United States, nor any other official or governmental
institution, have the authority to override the prohibition against torture and authorize its use for
reasons of national security or other emergencies, as high-level U.S. government officials at the
Department of Justice and the Department of Defense have apparently suggested and advised.
There are a number of very concrete steps that must be taken consistent with the
obligation of the U.S. under the Geneva Conventions, the Convention Against Torture, and U.S.
laws passed by Congress to implement these international standards. This report outlines briefly
evidence of torture on the part of U.S. government officials that has come to light thus far,
provides a non-exhaustive list of officials who appear to be implicated in the abuses, explains
international and domestic laws that have been violated, and identifies the specific enforcement
actions that must be taken to bring the perpetrators to justice and fulfill our legal obligations
under both domestic and international law.
There is no doubt that terrorism is unlawful and must be prevented and punished. As a
democratic nation, the U.S. effort to combat terrorism must be done in a way that is consistent
with the rule of law and the basic principles of human rights. Defending our humanity and
standards of justice requires upholding the prohibition against torture and holding those who
violate this principle accountable.
One year ago, on June 26, 2003, in commemoration of Torture Victims’ Day, President
George W. Bush stated: “The United States is committed to the worldwide elimination of torture
and we are leading the fight by example. I call 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 cruel and unusual punishment.” If we are to lead by
example and fulfill our obligations under domestic and international law as President Bush
suggested, the United States must remain true to its word and criminally investigate and
prosecute all those implicated in torture, including a number of high-level officials who thus far
have enjoyed impunity from prosecution because of the government’s insistence that only a few
“bad apples” were at fault.
II.

Brief Overview of the Evidence that Torture Has Occurred and that Higher-Level
Officials May Well Be Implicated

Evidence has been coming to light on a regular and increasingly frequent basis that
torture and other abusive treatment of detainees have been taking place under U.S. authority in a
number of locations and contexts, not just in Abu Ghraib prison in Iraq. This has included, for
example, the treatment of detainees in Camp X-Ray in Guantanamo Bay, Cuba, in other
detention facilities in Afghanistan and Iraq, and even here in the U.S. in connection with the
practice of “rendition to torture,” that is, sending suspected terrorists to third countries, such as
Syria, where they can be interrogated using techniques not permitted or tolerated in our own
prisons. These abuses are closely tied to new revelations that government officials authorized
the maintenance of secret detention facilities, and the holding of some detainees without
revealing their capture. These are important indicators that the problems at Abu Ghraib were not
simply isolated abuses committed by a few military police officers assigned to detention duty,
but part of a more general policy authorizing or encouraging the use of torture as a means of
interrogation that was established or promoted at the highest levels of our government.

2

A. Iraq
The situation in Iraq is indicative of how the policy and practice of torture of detainees
has been carried out in many locations. Since the beginning of the war in Iraq, the United States
has held civilian and military detainees in custody based on suspected terrorist ties. As demands
for intelligence, as well as resistance to the American occupation increased, increased evidence
of abuse of prisoners in U.S. custody came to light. Techniques of abuse that were used in a
systemic way to obtain information include: hooding, placing detainees in stress positions for
extended periods of time, stripping detainees naked, holding them in darkness, forcing them to
wear women’s underwear, sleep, food, and water deprivation, prolonged exposure to sun,
physically assaulting detainees, forcibly arranging detainees in sexually explicit positions for
photographing, simulation of electronic torture, threat of execution, sexual abuse, and other
forms of torture and humiliating and degrading treatment.1 Several detainees are reported to
have died as a result of these practices.2
As early as May 2003, high level officials received reports of these abuses from the
International Committee of the Red Cross.3 Also during 2003, the press, human rights groups,
and even a small unit of interrogators at Abu Ghraib brought abuses to the attention of higherlevel officials.4 Nothing was done to stop or prevent the abuse from occurring until one year
later, when shocking pictures of abuse were disseminated around the world. As recently as May
of this year, the Red Cross reported that outstanding issues of abuse had not been remedied and
called for further relief.5
Reports and memoranda by the Department of Defense, Department of Justice, and White
House Counsel have recently come to light containing suggestions that torture may be justified in
order to obtain information from suspected terrorists, and that the President or those acting under
his authority are not bound by domestic and international law prohibiting torture in these
instances. An August 1, 2002, Justice Department memo, for example, concludes that “under
the circumstances of the current war against Al-Qaeda and its allies, application of Section
2340A (the Convention Against Torture) to interrogations undertaken pursuant to the President’s
powers as Commander-in-Chief may be unconstitutional,” since the prohibition against torture
would conflict with military orders issued by the President exercising his military authority.6 An
April 2003 Defense Department report echoes the same argument, asserting that “in order to
respect the President’s inherent authority to manage a military campaign … [the prohibition
1

“Report of the International Committee of the Red Cross on the treatment by the Coalition Forces of Prisoners of
War and other Protected Persons by the Geneva Conventions in Iraq during arrest, internment and interrogation,”
February 2004; Maj. Gen. Antonio M. Taguba, “Article 15-6 Investigation of the 800th Military Police Brigade”
(“Taguba Report”), March 3, 2004.
2
Steven Lee Myers and Eric Schmitt, “Abuse Inquiries Seen as Leaving Significant Gaps,” New York Times, June 6,
2004; David Johnston and Neil A. Lewis, “U.S. Examines Role of CIA and Employees in Iraq Deaths,” New York
Times, May 6, 2004.
3
Neil A. Lewis, “Red Cross Found Abuses at Abu Ghraib Last Year,” New York Times, May 11, 2004.
4
“Chronology,” Washington Post, June 2004; Warren Hoge, “U.N. Rights Chief Says Prison Abuse May Be War
Crime,” New York Times, June 5, 2004; Andrea Elliot, “Unit Says It Gave Earlier Warning of Abuse in Iraq,” New
York Times, June 14, 2004; Human Rights Watch, “Timeline of Detainee Abuse Allegations and Responses,” May
2004.
5
“ICRC Still Concerned on Iraq Jail,” BBC News Online, May 19, 2004.
6
Dana Priest and R. Jeffrey Smith, “Memo Offered Justification for Use of Torture,” Washington Post, June 8,
2004; Memorandum from the U.S. Department of Justice Office of Legal Counsel, “Standards of Conduct for
Interrogation under 18 U.S.C. §§ 2340-2340A,” August 1, 2002.

3

against torture] must be construed as inapplicable to interrogations undertaken pursuant to his
Commander-in-Chief authority.”7 Both the Justice Department memo and Defense Department
report make the argument that torture “may be justified” on grounds of self-defense, necessity, or
extenuating circumstances related to threats of terrorism. It was not until June 22, 2004, that a
retraction of these policies was issued by the President. These types of excuses or justifications
for torture have been raised by persecutors for decades and roundly rejected by the international
community, including the U.S.
The memos also would apply a different and far more narrow definition to what
constitutes torture than the one spelled out in the Convention Against Torture (CAT) and U.S.
laws implementing CAT. The memos suggest that only the most extreme forms of injury, such
that would cause “organ failure, impairment of a bodily function, or even death,” or where “the
pain is difficult for the subject to endure,” would constitute torture, and that anything falling
short of that would not be prohibited. They also suggest that only acts resulting in “significant
psychological harm of significant duration, e.g. lasting for months or even years” would
constitute mental torture.
These memos provide further evidence that the Bush administration created an
environment where torture was encouraged and facilitated at the highest levels, and that the
prisoner abuses are not isolated instances. Higher level officials must be held accountable for
seeking to hold U.S. officials and acts of torture above the law, attempting to “redefine” torture
to permit abuses prohibited under both international and domestic law, creating an environment
encouraging abuse and impunity, and setting the practice of torture in motion.
B. Other Locations
The problems associated with the treatment of detainees in Iraq are typical of the types of
abuses reported in other locations and situations where detainees are being held, such as
Afghanistan and Guantanamo Bay. In Afghanistan, for example, instances of such abuses as
shackling, beatings, sleep deprivation, and humiliating and degrading treatment have been
reported at Bagram Airbase and elsewhere.8 At least 40 detainee deaths in Afghanistan and Iraq
have been reported, some of which resulted from these practices.9 Some of these deaths have
implicated the same military intelligence unit that oversaw interrogations at Abu Ghraib in Iraq.
Afghanistan also is the location where many of the detainees transferred to Guantanamo Bay,
Cuba, were captured. January 2002 memoranda from the Justice Department and the White
House Counsel argued that the Geneva Conventions did not apply to the detainees from the war
in Afghanistan.10 Though they later backpedaled on this position, it signaled a more general
policy of attempting to limit legal protections for detainees so as to justify more stressful
interrogations.
7

Jess Bravin, “Pentagon Report Set Framework for Use of Torture,” Wall Street Journal, June 7, 2004; Dana Priest
and R. Jeffrey Smith, “Memo Offered Justification for Use of Torture,” Washington Post, June 8, 2004; Neil A.
Lewis and Eric Schmitt, “Lawyers Decided Ban on Torture Didn’t Bind Bush,” New York Times, June 8, 2004;
“Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal,
Historical, Policy, and Operational Considerations,” Draft March 6, 2003.
8
Human Rights Watch, “Enduring Freedom,” Vol. 16, No. 3(C), March 2004.
9
Steven Lee Myers and Eric Schmitt, “Abuse Inquiries Seen as Leaving Significant Gaps,” New York Times, June 6,
2004; David Johnston and Neil A. Lewis, “US Examines Role of CIA and Employees in Iraq Deaths,” New York
Times, May 6, 2004.
10
“Documents Build a Case for Working Outside the Laws in Interrogations,” New York Times, June 9, 2004.

4

In Guantanamo Bay similar abuses have been reported. Little information is available
concerning the over 700 detainees in Guantanamo. The Bush Administration at one point
declared that Guantanamo detainees were not protected by the Geneva Conventions by virtue of
their alleged “unlawful enemy combatant” status. Detention in Guantanamo has been reported to
entail beatings, isolation, shackling in “stress positions,” other forms of degrading treatment,
little or no access to counsel or communications with family, and no opportunity to contest the
designation of detainees as “unlawful enemy combatants,” and their indefinite detention.11
Though a few Guantanamo detainees have been formally charged with military crimes, hundreds
remain behind bars with no formal charges or proceedings against them.
C. Rendition to Torture
A key tactic in the war on terror is the use of “extraordinary renditions,” or “rendition to
torture,” the sending of individuals suspected of terrorist ties for interrogation to countries that
are well known to practice torture. Since September 11th, the U.S. allegedly has transferred
hundreds of detainees to countries like Syria, Egypt, Morocco, Jordan, and Saudi Arabia, all
criticized for their human rights records by the U.S. State Department.12 The case of Maher Arar
exemplifies the problem. Mr. Arar is a dual Canadian and Syrian citizen who was living in
Canada as a computer professional. He was arrested as a suspected terrorist by U.S. immigration
authorities at an airport in New York en route from a trip from the Middle East to his home in
Canada. The U.S. sent him to Syria via Jordan, where he was tortured for ten months before his
release.13 This policy contravenes the Convention Against Torture (Article 3) prohibiting under
any circumstances the sending of persons to states where they may face torture. There are reports
of a Justice Department memo that explicitly said charges of torture could be avoided if the
detainee was transferred from U.S. custody to another country for purposes of interrogation
using torture techniques.14 U.S. officials have claimed that they received assurances from the
third countries in question that the transferred detainees would not be tortured. But common
sense suggests that such assurances were meaningless given the well-established reputations of
the countries selected for these renditions, based on the U.S. government’s own evaluations.
III.

Non-Exhaustive List of Key Officials Who May Be Implicated

The following high-level U.S. officials may have been involved in the process of
authorizing or encouraging the use of torture to facilitate the interrogation of detainees who were
suspected of involvement in terrorism. While most of the information accumulated thus far may
not provide definitive proof of involvement in torture to a degree that would satisfy the “beyond
a reasonable doubt” standard required for a criminal prosecution, it certainly is sufficient to
justify and require a more comprehensive investigation of the facts to determine whether and to
what extent these named officials may be implicated.

11

Human Rights Watch, “The Road to Abu Ghraib,” June 2004.
Stephen Grey, “America’s Secret Gulags,” Mail on Sunday (London), May 16, 2004.
13
“His Year in Hell,” CBSNews.com, January 21, 2004 Stephen Grey, “America’s Secret Gulags,” Mail on Sunday
(London), May 16, 2004.
14
“Documents Build a Case for Working Outside the Laws in Interrogations,” New York Times, June 9, 2004.
12

5

Some of the key evidence suggesting how each of these officials may have been
involved, and how they may have contributed to the practice of torture, is described in the
following listing, as an indication of why further investigation is required.
1.

•
•

•

•

•

•

•
2.

•

Donald Rumsfeld, Secretary of Defense:
Approved secret Pentagon interrogation project authorizing the use of force for
interrogation of Al-Qaeda operatives that was used against detainees in Iraq.
Seymour M. Hersh, “The Gray Zone,” The New Yorker, June 8, 2004.
Approved methods for Guantanamo interrogations, including the use of dogs to
intimidate prisoners in January 2002. Jess Bravin and Greg Jaffe, “Rumsfeld
Approved Methods for Guantanamo Interrogations,” Wall Street Journal, June 10,
2004; R. Jeffrey Smith and Josh White, “General Granted Latitude at Prison,”
Washington Post, June 12, 2004.
Approved orders sending General Miller from Guantanamo Bay to Iraq to
institute harsher interrogation techniques, which included the use of dogs,
shackling, and forcing detainees to strip. R. Jeffrey Smith, “General is Said to
Have Urged Use of Dogs,” Washington Post, May 26, 2004.
Approved the use of harsher interrogation techniques in Iraq in 2003 to obtain
information from detainees. Some techniques deviated from the Army’s standard
interrogation methods and amounted to torture. Jess Bravin, “Pentagon Report
Set Framework for Use of Torture,” Wall Street Journal, June 7, 2004; David
Johnston and Tim Golden, “Rumsfeld and Aide Backed Harsh Tactics, Article
Says,” New York Times, May 16, 2004.
Ordered the establishment of the Interrogation Working Group that issued an
April 2003 memo concluding that the prohibition against torture did not apply to
interrogations undertaken pursuant to the President’s military orders as
Commander-in-Chief. Jess Bravin, “Pentagon Report Set Framework for Use of
Torture,” Wall Street Journal, June 7, 2004; Dana Priest and R. Jeffrey Smith,
“Memo Offered Justification for Use of Torture,” Washington Post, June 8, 2004;
Neil A. Lewis and Eric Schmitt, “Lawyers Decided Ban on Torture Didn’t Bind
Bush,” New York Times, June 8, 2004.
Ordered military officials in Iraq, in November 2003, to withhold a detainee’s
name from the prison rolls in order to prevent the International Committee of the
Red Cross from monitoring his treatment, in violation of international law.
Additionally, prisoners reportedly are being held in at least a dozen facilities
which operate in secret, hidden from Red Cross monitoring. Eric Schmitt and
Tom Shanker, “Rumsfeld Issued an Order to Hide Detainee in Iraq,” New York
Times, June 17, 2004; “Rumsfeld, at Tenet’s Request, Secretly Held Suspect in
Iraq,” Wall Street Journal, June 17, 2004; Human Rights First, “Ending Secret
Detentions,” June 2004.
Command-responsible for abuses committed in Iraq, Afghanistan, and elsewhere.
Stephen Cambone, Under-Secretary of Defense for Intelligence:
Controlled secret Pentagon interrogation project, which was used in Afghanistan
and later expanded into Iraq, authorizing intelligence officers to carry out more

6

•

•

•
3.

•

•

•

•

•

•

aggressive interrogation techniques outside the chain of command. Seymour M.
Hersh, “The Gray Zone,” The New Yorker, June 8, 2004.
Approved the use of harsher interrogation techniques in Iraq in 2003, some which
deviated from the Army’s standard interrogation methods and amounted to torture
to obtain information from detainees. Jess Bravin, “Pentagon Report Set
Framework for Use of Torture,” Wall Street Journal, June 7, 2004; David
Johnston and Tim Golden, “Rumsfeld and Aide Backed Harsh Tactics,” New York
Times, May 16, 2004.
Approved order sending General Miller from Guantanamo to Iraq to institute
harsher interrogation techniques, which included the use of dogs, shackling, and
forcing detainees to strip. R. Jeffrey Smith, “General is Said to Have Urged Use
of Dogs,” Washington Post, May 26, 2004.
Command-responsible for abuses committed in Iraq, Afghanistan, and elsewhere.
Lieutenant General Ricardo Sanchez, Commander in Iraq:
Received and approved General Miller'
s recommendations to bring more
aggressive Guantanamo Bay interrogation techniques to Iraq, including use of
military dogs, temperature extremes, reversed sleep patterns, sensory deprivation,
stress positions, shackling, forcing detainees to strip, and manipulation of diets.
Seymour M. Hersh, “The Gray Zone,” The New Yorker, June 8, 2004; R. Jeffrey
Smith and Josh White, “General Granted Latitude at Prison,” Washington Post,
June 12, 2004; R. Jeffrey Smith, “General is Said to Have Urged Use of Dogs,”
Washington Post, May 26, 2004.
Allegedly present during some interrogations and/or incidents of prisoner abuse.
Scott Higham, Joe Stephens, and Josh White, “Prison Visits by General Reported
in Hearing: Alleged Presence of Sanchez Cited by Lawyer,” Washington Post,
May 23, 2004.
Assigned formal command of Abu Ghraib in November 2003 to the 205th Military
Intelligence Brigade, under Colonel Thomas M. Pappas, a unit that had been
responsible for prisoner abuse. Douglas Jehl and Eric Schmitt, “In Abuse, A
Portrayal of Ill-Prepared, Overwhelmed G.I.’s,” New York Times, May 9, 2004.
Signed an October 12, 2003, memo calling for intelligence officials at Abu Ghraib
to work more closely with military police to “manipulate an internee’s emotions
and weaknesses.” The memo explicitly called for interrogators to assume control
over the “lighting, heating … food, clothing, and shelter” of those questioned. R.
Jeffrey Smith, “Memo Gave Intelligence Bigger Role; Increased Pressure Sought
on Prisoners,” Washington Post, May 21, 2004.
Directed the Combined Joint Task Force-7, which approved the September 10,
2003, memo “Interrogation and Counter-Resistance Policy” that permitted the use
of yelling, loud music, a reduction of heat in winter and air conditioning in
summer, and “stress positions” for as long as 45 minutes every four hours. R.
Jeffrey Smith and Josh White, “General Granted Latitude at Prison,” Washington
Post, June 12, 2004.
Signed a September 14, 2003, memo, allowing for the use of dogs during
interrogations without special approval. R. Jeffrey Smith, “General is Said to
Have Urged Use of Dogs,” Washington Post, May 26, 2004.
7

•
4.

Command-responsible for abuses committed in Iraq.

Col. Thomas Pappas, Head of Military Intelligence at Abu Ghraib:
• Cited in the Taguba report as responsible for detainee abuses. Allegedly
personally approved use of sleep deprivation tactics and the use of unmuzzled
dogs to intimidate detainees. He approved interrogation plans involving the use
of dogs, shackling, and forcing detainees to strip. “Iraq Jail Contractor
Contradicts Generals,” Associated Press, June 15, 2004; Josh White and Scott
Higham, “Use of Dogs to Scare Prisoners was Authorized,” Washington Post,
June 11, 2004. R. Jeffrey Smith, “General is Said to Have Urged Use of Dogs,”
Washington Post, May 26, 2004.

5.
•

•
•
•
6.
•
•

•

Major General Geoffrey Miller, deputy commanding general for detention
operations in Iraq and former commander in charge of Guantanamo Bay:
Briefed Iraq detention officers on the use of more aggressive Guantanamo
interrogation methods, with the goal of “rapidly exploit[ing] internees for
actionable intelligence.” Allegedly discussed the use of dogs to frighten detainees
and facilitate interrogations with the senior military intelligence official at Abu
Ghraib. Seymour M. Hersh, “The Gray Zone,” The New Yorker, June 8, 2004;
Maj. Gen. Antonio M. Taguba, “Article 15-6 Investigation of the 800th Military
Police Brigade” (“Taguba Report”), March 3, 2004; R. Jeffrey Smith, “General is
Said to Have Urged Use of Dogs,” Washington Post, May 26, 2004; Douglas Jehl
and Eric Schmitt, “In Abuse, A Portrayal of Ill-Prepared, Overwhelmed G.I.’s,”
New York Times, May 9, 2004.
According to the Taguba Report, General Miller recommended that the guards at
Abu Ghraib and other facilities “be actively engaged in setting the conditions for
successful exploitation of the internees.” “Taguba Report,” March 3, 2004.
Allegedly told Gen. Janis Karpinski, who was in charge of Abu Ghraib, that
detainees should be treated like dogs. “Abu Ghraib General Says Told Prisoners
‘Like Dogs,’” Reuters, June 15, 2004.
Command-responsible for abuses committed in Iraq and Guantanamo Bay.
Brig. Gen. Janis Karpinski, formerly in charge of the 800th Military Police
Brigade, in charge of Abu Ghraib Prison and other detention facilities in
Iraq:
Her leadership failures and lack of adequate supervision led to the abuses at Abu
Ghraib, making her directly responsible for them as supervising officer. “Taguba
Report,” March 3, 2004.
Signed a December 24, 2003 letter to the International Committee of the Red
Cross justifying the abuse of detainees as a “military necessity” to obtain
intelligence. “Documents Build a Case for Working Outside the Laws in
Interrogations,” New York Times, June 9, 2004.
Allegedly reviewed and approved reports by a small unit of interrogators at Abu
Ghraib describing abuse of prisoners at Abu Ghraib between November 2003 and
January 2004. Andrea Elliott, “Unit Says It Gave Earlier Warning of Abuse in
Iraq,” New York Times, June 14, 2004.
8

•
7.
•

8.

•
•

•

•

•

•
•

Command-responsible for abuses committed in Abu Ghraib prison and other
detention facilities under her command.
Capt. Carolyn A. Wood, supervisor of interrogation units at Bagram and
Abu Ghraib:
Allegedly helped to bring more aggressive interrogation procedures developed in
Afghanistan to Iraq. Douglas Jehl and David Rohde, “Afghan Deaths Linked to
Unit at Iraq Prison,” New York Times, May 24, 2004.
John Ashcroft, Attorney General:
Responsible for a series of Justice Department memos that encouraged the
Defense Department to circumvent domestic and international law and facilitate
acts of torture.
An August 1, 2002, Justice Department memo advised the White House that
torture “may be justified,” and that international laws prohibiting torture “may be
unconstitutional if applied to interrogations” conducted in the war on terrorism.
The memo was signed by Assistant Attorney General Jay S. Bybee. Dana Priest
and R. Jeffrey Smith, “Memo Offered Justification for Use of Torture,”
Washington Post, June 8, 2004; Memorandum from the U.S. Department of
Justice Office of Legal Counsel, “Standards of Conduct for Interrogation under 18
U.S.C. §§ 2340-2340A,” August 1, 2002.
A January 22, 2002, Justice Department memo suggested that American officials
could not be charged with war crimes regarding the detention and interrogation of
prisoners. The memo said that Geneva Convention protections did not apply to
detainees from the Afghanistan war. Neil A. Lewis and Eric Schmitt, “Lawyers
Decided Ban on Torture Didn’t Bind Bush,” New York Times, June 8, 2004.
A January 9, 2002, Justice Department memo suggested how U.S. officials could
be kept from being charged with war crimes violations of the Geneva
Conventions. The memo entitled “Application of Treaties and Laws to al Qaeda
and Taliban Detainees,” was written by John C. Yoo and Robert J. Delahunty,
Justice Department lawyers at the time. Neil A. Lewis, “Justice Memos
Explained How to Skip Prisoner Rights,” New York Times, May 21, 2004;
Memorandum from U.S. Department of Justice Office of Legal Counsel,
“Application of Treaties and Laws to al Qaeda and Taliban Detainees,” January 9,
2002.
The New York Times also reported the existence of another Justice Department
memo that explicitly said charges of torture could be avoided if the detainee had
been transferred to another country from American custody. This set the basis for
the practice of “rendition to torture.” Neil A. Lewis, “Justice Memos Explained
How to Skip Prisoner Rights,” New York Times, May 21, 2004.
Oversaw the senior Justice Department officials who approved the rendition of
Canadian citizen Maher Arar to torture in Syria. Dana Priest, “Top Justice Aide
Approved Sending Suspect to Syria,” Washington Post, November 19, 2003.
The April 2003 Defense Department report on interrogation methods, suggesting
that the President was not bound by prohibitions against torture, relied heavily on
August 1, 2002, and January 22, 2002, Justice Department memos containing
9

similar conclusions. Dana Priest and R. Jeffrey Smith, “Memo Offered
Justification for Use of Torture,” Washington Post, June 8, 2004; Neil A. Lewis
and Eric Schmitt, “Lawyers Decided Ban on Torture Didn’t Bind Bush,” New
York Times, June 8, 2004.
9.

10.

Alberto Gonzales, White House Chief Legal Counsel:
Issued a January 25, 2002, memo to President Bush urging the Bush
administration to declare captives in Afghanistan exempt from the protections of
the Geneva Conventions in order to pre-empt war crimes charges and justify the
denial of rights and more extreme forms of interrogation. This memorandum
provided a presumed legal basis for the abuses in Guantanamo and Afghanistan,
and, through General Miller'
s advice and actions, in Iraq. Memorandum from
Alberto R. Gonzales, “Decision Re Application of the Geneva Convention on
Prisoners of War to the Conflict with Al Qaeda and the Taliban,” January 25,
2002.
• Allegedly participated in meetings with Defense Department General Counsel
William Haynes and David Addington, Vice President Dick Cheney’s counsel, to
discuss the acceptability of specific interrogation techniques. They declared
acceptable such techniques as “water-boarding,” which leads detainees to feel
they are drowning, and threatening to bring in interrogators from other nations.
Michael Hirsch, John Barry, and Daniel Klaidman, “A Tortured Debate,”
Newsweek, June 21, 2004.
•

•

•

11.

Dick Cheney, Vice President:
Through his representatives, facilitated the creation of an environment where
torture was permissive and encouraged. His counsel, David Addington, allegedly
participated in meetings with Defense Department General Counsel William
Haynes and Alberto Gonzales to discuss the acceptability of specific interrogation
techniques. They declared acceptable such techniques as “water-boarding,” and
other forms of severe pain and suffering constituting torture. Michael Hirsch,
John Barry, and Daniel Klaidman, “A Tortured Debate,” Newsweek, June 21,
2004. Mr. Addington also was involved in the deliberations to prepare an April
2003 Defense Department memo to Mr. Rumsfeld, which concluded that the
prohibition against torture did not apply to interrogations undertaken pursuant to
the Commander-in-Chief’s military authority. Neil A. Lewis and Eric Schmitt,
“Lawyers Decided Ban on Torture Didn’t Bind Bush,” New York Times, June 8,
2004.
Information collected from prisoners at Abu Ghraib allegedly was requested by
“White House Staff,” resulting in the use of harsher torture techniques. The
requested information concerned “any anti-coalition issues, foreign fighters, and
terrorist issues.” R. Jeffrey Smith, “Soldier Described White House Interest,”
Washington Post, June 9, 2004.

George J. Tenet, former Director of the Central Intelligence Agency
• Supervised CIA employees who were directly involved in the interrogation and
abuse of detainees in Iraq and Afghanistan and had knowledge of the abuses

10

•

•

•

•

•

•

taking place. The Department of Justice is investigating the involvement of CIA
officers and CIA contract employees in three deaths of detainees, and has indicted
one CIA contractor for the death of a detainee in Afghanistan. “Many Abuse
Inquiries Under Way,” BBC News Online, May 6, 2004; David Johnston and Neil
A. Lewis, “U.S. Examines Role of CIA and Employees in Iraq Deaths,” New York
Times, May 6, 2004; Richard A. Oppel Jr. and Ariel Hart, “Contractor Indicted in
Afghan Detainee’s Beating,” New York Times, June 18, 2004.
Responsible for conditions at the CIA interrogation center at Bagram air base in
Afghanistan, where detainees were “kept standing or kneeling for hours in black
hoods or spray-painted goggles… [and] held in awkward, painful positions and
deprived of sleep with a 24-hour bombardment of lights—subject to what are
known as ‘stress and duress’ techniques.” Dana Priest and Barton Gellman, “U.S.
Decries Abuse but Defends Interrogations; '
Stress and Duress'Tactics Used on
Terrorism Suspects Held in Secret Overseas Facilities,” Washington Post,
December 26, 2002.
The CIA prompted the Justice Department to write the August 1, 2002, memo,
which advised the White House that torture “may be justified,” and that
international laws prohibiting torture “may be unconstitutional if applied to
interrogations” conducted in the war on terrorism. Michael Hirsch, John Barry,
and Daniel Klaidman, “A Tortured Debate,” Newsweek, June 21, 2004; Dana
Priest and R. Jeffrey Smith, “Memo Offered Justification for Use of Torture,”
Washington Post, June 8, 2004; Memorandum from the U.S. Department of
Justice Office of Legal Counsel, “Standards of Conduct for Interrogation under 18
U.S.C. §§ 2340-2340A,” August 1, 2002.
Responsible for CIA lawyers who asked for an explicit authorization that Geneva
Convention prohibitions did not apply to its operatives, according to a February 2,
2002, memo. Neil A. Lewis and Eric Schmitt, “Lawyers Decided Ban on Torture
Didn’t Bind Bush,” New York Times, June 8, 2004.
Determined with Defense Secretary Rumsfeld, in November 2003, that an Iraqi
detainee be held off the prison rolls in order to prevent the International
Committee of the Red Cross from monitoring his treatment, in violation of
international law. Additionally, prisoners reportedly are being held in at least a
dozen facilities which operate in secret, hidden from Red Cross monitoring. The
ostensible reason for this and other “secret detentions” is to allow for nonmonitored interrogations that potentially involved abuse. Eric Schmitt and Tom
Shanker, “Rumsfeld Issued an Order to Hide Detainee in Iraq,” New York Times,
June 17, 2004; “Rumsfeld, at Tenet’s Request, Secretly Held Suspect in Iraq,”
Wall Street Journal, June 17, 2004; Human Rights First, “Ending Secret
Detentions,” June 2004.
Responsible for operations of the CIA’s own detention centers, separate from the
Pentagon’s official detention facilities such as Guantanamo and Abu Ghraib and
not subject to the Red Cross and other monitoring efforts. Dana Priest and Joe
Stephens, “Secret World of U.S. Interrogation,” Washington Post, May 11, 2004.
Responsible for the policy of transporting hundreds of suspects captured in
different parts of the world to foreign intelligence services for harsher
interrogations and detention in the jails of Egypt, Syria, Morocco, and Uzbekistan
11

•
12.

13.

IV.

•

where extreme methods such as electric shock and drugs can be used on suspects
who have no access to lawyers. Dana Priest and Joe Stephens, “Secret World of
U.S. Interrogation,” Washington Post, May 11, 2004; Stephen Grey, “America'
s
Secret Gulags,” Mail on Sunday (London), May 16 2004. “His Year in Hell,”
CBSnews.com, January 20, 2004.
Command-responsible for abuses committed in Iraq, Afghanistan, and elsewhere.
CACI International Inc.:
As a private contractor authorized to help conduct interrogations, their employees
directly participated in the interrogation process and may have encouraged,
participated in, or known about the abuse of prisoners in Iraq.

TITAN Corporation:
• As a private contractor authorized to help conduct interrogations, their employees
directly participated in the interrogation process and may have encouraged,
participated in, or known about the abuse of prisoners in Iraq.

Violations of Domestic and International Laws and Standards:

There are a number of domestic and international laws and instruments that prohibit
torture and other types of human rights violations, that may have been violated in the course of
the abuses listed above. It is important to have an understanding of these standards, and how
they relate to the alleged abuses taking place in Iraq, Afghanistan, and elsewhere, in order to
make a fair and considered assessment of whether and to what extent these laws were violated,
and whether criminal culpability should attach to any violations that may have occurred.
A. International Standards
The principal international standards that apply to the circumstances involving the abuse
of detainees are the following:
1. The U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment of Punishment (Convention Against Torture or CAT) establishes an
absolute prohibition against torture, providing that torture cannot be justified
under any circumstances or for any reason, not even by a state of war, public
emergency, or superior orders. (Article 2) It defines torture as “any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person” through government action or acquiescence regardless of the reason that
the abuse was inflicted. (Article 1) CAT also prohibits “cruel, inhuman or
degrading treatment or punishment which do not amount to torture,” and
absolutely prohibits sending a person to a situation of torture. (Articles 16 and 3)
2. The Geneva Conventions provide detainees captured in an armed conflict the
right to be free from torture, humiliating and degrading treatment, and coercive
interrogation, and require that any person who is in the custody of a party to an

12

armed conflict be treated humanely, whether they qualify as prisoners of war or
are considered “unlawful enemy combatants.” These provisions of the Geneva
Conventions apply to the armed conflicts in Iraq and Afghanistan. In addition,
the Geneva Conventions require that any question regarding the status of a
detainee in an armed conflict must be determined by a “competent tribunal.”
3. The Statute of the International Criminal Court (Rome Treaty) establishes
criminal penalties for torture as a crime against humanity. While the U.S. is not
yet a party to the treaty on the ICC, our citizens are subject to its provisions for
actions committed in countries that have ratified the treaty, such as Afghanistan.
Similar provisions are included in the statutes of other international tribunals
(such as the ones for the former Yugoslavia and Rwanda) established to prosecute
war crimes and crimes against humanity in the context of particular war zones.
4. International Covenant on Civil and Political Rights (ICCPR) states, “No one
shall be subjected to torture or cruel, inhuman or degrading treatment or
punishment.” (Article 7) The ICCPR provides that this right is non-derogable
and cannot be suspended under any circumstances, even in times of national
emergency. (Article 4)
B. Violations of Domestic Laws
Torture violates a number of domestic laws, some of which attach criminal penalties to
violations.
1. Criminal Provisions of the Convention Against Torture (18 U.S.C. § 2340A) –
The torture of prisoners in Iraq, Afghanistan, and elsewhere would constitute a
violation of the criminal provisions adopted by Congress to implement the United
States’ obligations under the Convention Against Torture. These criminal
provisions impose criminal liability of up to 20 years imprisonment (increased to
a term of more than 20 years or life imprisonment if the act of torture results in
death), and/or a monetary fine, for anyone who commits, attempts to commit, or
conspires to commit torture outside the United States. U.S. officials here in the
U.S. who authorized or knew of such acts and condoned them or failed to prevent
them could be held subject to these criminal penalties under the CAT
implementing statute on the theory that their acts, while taking place in the U.S.,
contributed to acts of torture taking place abroad, or were part of a conspiracy
aimed at such violations.
2. U.S. War Crimes Act of 1996 (18 U.S.C. § 2441) – Any U.S. national or member
of the Armed Forces who commits a war crime is criminally liable under the War
Crimes Act, and can be punished by fine, imprisonment, or the death penalty.
The Act defines war crimes as violations or grave breaches of international
conventions, including the Geneva Conventions. The War Crimes Act applies
specifically to acts involving violence to life and the physical well-being and

13

integrity of a victim, including murder, mutilation, cruel treatment, torture, and
humiliating and degrading treatment.
3. U.S. Law Prohibiting Rendition to Torture – The rendition of detainees in U.S.
custody to countries where they are likely to be tortured violates Article 3 of the
Convention Against Torture and its implementing legislation. The rendition to
torture of detainees explicitly contravenes Public Law 105-277 § 2242, which
states “it shall be the policy of the United States not to expel, extradite, or
otherwise effect the involuntary return of any person to a country in which there
are substantial grounds for believing the person would be in danger of being
subjected to torture,” and comparable implementing regulations, 8 CFR § 208.1618 and 8 CFR § 1208.16-18. The participation of U.S. officials in the policy of
rendition to torture constitutes conspiracy to torture someone abroad, which is
prohibited by Article 4 of CAT and the criminal provisions at 18 U.S.C. §
2340A(c).
4. Uniform Code of Military Justice (UCMJ) – Higher-level military officers
responsible for abuses in Iraq, Afghanistan, Guantanamo Bay, and elsewhere may
have violated the UCMJ, including its provisions against maiming, assault,
murder, manslaughter, and conspiracy. They would be subject to criminal
prosecution before military Courts Martial, as would the lower-level members of
the military who directly took part in acts of torture.
5. Military Extraterritorial Jurisdiction Act (MEJA) – Private contractors who were
involved in acts of torture are in violation of MEJA. MEJA applies to those who,
while employed by or accompanying the Armed Forced outside the U.S., engage
in conduct that would constitute an offense punishable by more than one year’s
imprisonment if it had been committed within U.S. territory. The Department of
Defense has not yet issued implementing regulations under this Act, but this
deficiency may not preclude criminal prosecutions under the Act itself.
6. The USA PATRIOT Act of 2001 – The PATRIOT Act provides jurisdiction over
crimes committed by any U.S. national on lands, buildings, or facilities
designated for use by the United States government, such as detention centers in
Afghanistan and Iraq. (Sect. 804 of the Act; codified as 18 U.S.C. § 7(9).) Any
U.S. national responsible for abuses in Afghanistan and Iraq may therefore be
held criminally accountable for assault (18 U.S.C.S. § 113(a)), maiming (18
U.S.C.S. § 114), murder (18 U.S.C.S. § 1111), manslaughter (18 U.S.C.S. §
1112), and other crimes, even though they were committed abroad and might
otherwise be outside the reach of federal court jurisdiction on that basis.
7. Federal Conspiracy Laws – Actions taking place within the United States
designed to perpetrate crimes taking place outside the U.S. may violate U.S.
conspiracy laws, including conspiracy to commit assault, maiming, murder, and
manslaughter. Those who conspire to violate these provisions are deemed subject
to the jurisdiction of U.S. courts even if the main crimes themselves were carried

14

out abroad. (18 U.S.C. § 371) The criminal code also punishes those who aid,
command, and counsel the violations as principals. (18 U.S.C. § 2) These
provisions provide another bases for holding U.S. officials criminally responsible
even if the result of their actions produced crimes committed abroad.
V.

Steps that Must Be Taken to Enforce the Prohibition Against Torture

Based on the above review of international standards relevant to the abuse of detainees,
especially those establishing criminal liability for violations, and given the evidence indicating
an increasing likelihood that violations may well have taken place, there are a number of
enforcement actions that appear to be justified and that should be taken immediately. A detailed
list of these methods for securing an end to the violations, and for initiating suitable remedial
action, including the criminal investigation and prosecution of all those involved in the abuses, is
provided below.
First and foremost among these necessary and suggested steps is the initiation of a
comprehensive criminal investigation, and subsequent criminal prosecution, of all those,
however high their position and level of authority, who may have been involved in authorizing,
encouraging, or facilitating the use of torture against detainees, or who were aware of these
practices and failed to take action to prevent them from taking place. Only in this way, by
applying these standards to ourselves as well as others, can our government re-establish this
country’s commitment to strict observance of human rights, and regain its credibility in the
international community.
The government’s position that a few lower-level individuals were responsible for the
abuses, and that torture never was approved or authorized from above is not consistent with the
evidence being uncovered, or with our country’s obligations under domestic and international
law that makes every government official, irrespective of their position, subject to the prohibition
against torture and to the penalties attached to violations. Under the doctrine of command
responsibility, higher-level officials must be held accountable for war crimes committed by their
subordinates, even if they did not order them, if the subordinates were under their effective
control and the officers knew or should have known about the crimes and did nothing to stop
them. This doctrine is well-established in international law and is accepted in domestic courts.15
Nor can higher-level officials be shielded by immunity claims. Contrary to the claims of
the Attorney General’s Office of Legal Counsel, the Defense Department, and the President’s
Counsel, no one is immune from charges that they have been involved in acts of torture, and no
one, including the President, can override the prohibition against torture in U.S. and international
law, whatever the justification. A recently revealed Defense Department memo argued that the
Executive Branch was beyond the reach of criminal laws and international treaties when it acted
pursuant to the President’s Commander in Chief powers. The memo also put forward two
defenses: a necessity defense, that any crimes committed were necessary to prevent other more
15

Rome Statute of the International Criminal Court, 52d Sess., Annex II, U.N. Doc. A/CONF.183/9 (1988), art. 28
[hereinafter ICC Statute ]; Statute of the International Criminal Tribunal for the Former Yugoslavia, (1993), art.
7(3) [hereinafter ICTY Statute ]; International Criminal Tribunal for Rwanda, Art. 6(3) [hereinafter ICTR
Statute ]; The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T (2000); Special Court for Sierra Leone, Art.
6(3) [hereinafter SCSL Statute ]; Romagoza et al v. Garcia and Vides Casanova, No. 99-8364 (S.D.Fla. July 31,
2002); Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002).

15

serious harms, and self-defense, claiming that the acts were necessary to the self-defense of the
United States and its armed forces. These arguments, in essence, call for complete impunity for
Executive action abroad related to anti-terrorism efforts. It is a well-established principle of
international law, from the Nuremberg trials to the Rome Statute of the International Criminal
Court, that even heads of state cannot be relieved of criminal responsibility for the most serious
crimes against humanity.16 Moreover, the prohibition against torture in the Convention Against
Torture and its implementing laws is absolute. There can never be an excuse or defense for acts
of torture.
Unless these enforcement and remedial actions are promptly initiated, and fully and fairly
carried out, it will be difficult for the United States to maintain its position as a standard-bearer
for human rights compliance on a world-wide basis.
1. Initiate a full criminal investigation leading to the prosecution of ALL those
implicated, not just the lower-level, immediate perpetrators, in abuses in Iraq,
Afghanistan, Guantanamo, and elsewhere. This can be done by:
a. The Attorney General appointing a Special Attorney to conduct an
independent criminal investigation and prosecution. (Pursuant to 28 U.S.C.
§§ 515, 543.) The Attorney General must appoint a Special Attorney to carry
out the investigation and prosecutions, because officials in the Department of
Justice, including the Attorney General, may be implicated in allegations of
abuse and are unable to conduct a fair and impartial investigation of
themselves. The Special Attorney should have expertise in human rights and
international law.
b. Congress should pass a law to establish the Office of an Independent Counsel
specifically to investigate and prosecute violations of domestic and
international law in the prisoner abuse scandal. It is necessary for Congress to
establish an Independent Counsel because high-level officials in the
Department of Justice and the Department of Defense are themselves
implicated in allegations of prisoner abuse and are incapable of conducting an
impartial and objective investigation of themselves. Appointment of a Special
Attorney by the Attorney General is unlikely to take place, and even if a
Special Attorney is appointed, he or she would be subject to supervision
and/or termination by the Attorney General and/or the President. Congress
should consider adoption of an Independent Counsel statute along the lines of
28 U.S.C. §§ 591-599, but limited to the sole purpose of dealing with the
prisoner abuse issue.
2. The Chief Prosecutor of the International Criminal Court (ICC), Mr. Luis
Moreno-Ocampo, should begin investigations for crimes committed by the United
States in Afghanistan, pursuant to his power in Article 15(1) of the Rome Statute.
Violations may have occurred of Art. 7 (crimes against humanity, including
16

Nuremberg, Art. 7, 8; Genocide Convention, Art. 4(a); ICC Statute, Art. 27 (expressly prohibits making
distinctions on the basis of official capacity); ICTY Statute, Art. 7(a); ICTR Statute, Art. 6; SCSL Statute, Art. 6;
Regina v. Bartle, ex parte Pinochet, [1999] 2 W.L.R. 827, [1999] 38 I.L.M. 581 (1999) (U.K. House of Lords).

16

torture) and Art. 8 (war crimes). Because Afghanistan is a party to the ICC, even
though the United States is not, U.S. citizens can be prosecuted by the ICC for
crimes committed in Afghanistan. Although the United States has an impunity
agreement with Afghanistan, which attempts to render citizens of the United
States immune from liability arising from ICC prosecutions, this agreement may
not be valid to the extent that it seeks to immunize actions that constitute jus
cogens violations of international law. The Prosecutor can pursue investigation
and possible prosecution because the United States appears to be “unwilling or
unable genuinely to carry out the investigation and prosecution” of higher-level
officials itself. (Art. 17(1)(a).) There also is a serious question of whether the
U.S. government can “independently or impartially” investigate violations in
which they implicated. This leaves room, under Art. 17(2)(c), for the Prosecutor
to begin an independent investigation.
3. The United Nations Security Council should defeat the renewal of UN Resolution
1487, which seeks to exonerate the United States citizens from possible war
crimes prosecutions for violations committed in Iraq. The Resolution, adopted on
June 12, 2003, is due to be renewed by July 1, 2004. Even if it is renewed, there
is some question whether the Resolution can grant United States citizens
immunity for these types of international crimes.
4. The Inter-American Commission for Human Rights should request that the United
States take precautionary measures to enjoin further acts of torture of detainees in
order to prevent irreparable harm to persons and to ensure that no one in U.S.
custody is subjected to torture. Pursuant to its authority under Art. 25(1) of its
Rules of Civil Procedure, the Inter-American Commission, in serious and urgent
cases such as this, can on its own initiative request that the State party concerned
prevent irreparable harm from taking place.
5. The United Nations Commission on Human Rights’ Special Rapporteur on
Torture and Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions should investigate and issue a report on abuses of prisoners in U.S.
custody in Iraq, Afghanistan, and elsewhere. UN Special Rapporteur on
Extrajudicial Killings, Asma Jahangir, wrote a letter to the U.S. Ambassador to
the UN in Geneva, expressing concern over reports of deaths in custody as a
result of torture. As of May 2004, she had already written to the U.S.
Ambassador three times about this, and asked for detailed information about the
deaths. The United States should cooperate fully with these investigations.
6. Pursuant to Article 149 of the Fourth Geneva Convention, a Special Commission
of Inquiry should be established to investigate U.S. violations of the Geneva
Conventions. Article 149 states: “At the request of a Party to the conflict, an
enquiry shall be instituted, in a manner to be decided between the interested
Parties, concerning any alleged violation of the Convention. If agreement has not
been reached concerning the procedure for the enquiry, the Parties should agree
on the choice of an umpire who will decide upon the procedure to be followed.

17

Once the violation has been established, the Parties to the conflict shall put an end
to it and shall repress it with the least possible delay.”
7. The Human Rights Committee established by the International Covenant on Civil
and Political Rights (ICCPR), to which the United States is a signatory, should
request that the United States submit a full report on the torture of detainees as
part of its report on compliance under the ICCPR, which currently is more than
five years overdue.
8. The United States should provide a comprehensive report to the United Nations
Committee Against Torture, indicating how recent detainee abuses relate to
Convention Against Torture standards, in connection with that Committee’s
responsibility to monitor compliance under the Convention Against Torture.

18

About the World Organization for Human Rights USA
The World Organization for Human Rights USA (formerly the World Organization Against
Torture USA) is a human rights non-profit organization dedicated to the prevention of torture
and other major human rights abuses. The World Organization for Human Rights USA is an
independent, affiliated national member of the International World Organization Against Torture
and SOS Torture Networks. The tools we use to accomplish our mission include: monitoring
U.S. policies and practices; issuing reports and submitting them to international agencies
supervising compliance by the U.S. with human rights standards; filing lawsuits and friend of the
court legal briefs in the U.S. and other courts in cases designed to obtain restitution for survivors
of torture, to hold major human rights abusers responsible for their acts, and to bring public and
international attention to the most serious violations; and serving as an information clearinghouse
and legal support group to assist survivors of abuse and advocates working on these issues.
Acknowledgments
This report was written by Morton Sklar, Guilherme Roschke, and Sheku Sheikholeslami.

This report is available online at
www.woatusa.org, www.criminalaccountability.org and www.humanrightsusa.org
For more information about the report contact us at:
202.296.5702 or woatusa@woatusa.org

World Organization for Human Rights USA
1725 K Street NW, Suite 610
Washington, DC 20006
Phone: (202) 296-5702
Fax: (202) 296-5704
Email: woatusa@woatusa.org
Websites: www.woatusa.org, www.criminalaccountability.org and www.humanrightsusa.org