Global Policy Forum

Virginie Ladisch

Six weeks after the death of two Afghan prisoners in US custody at Bagram air base in Afghanistan was announced, the United States has still not answered the disturbing questions raised about the interrogation methods used on detainees in the campaign against terrorism.

According to information released by the Department of Defense in early March, military pathologists classed the mode of death of the two prisoners as "homicide". A death certificate dated December 13 states that a prisoner known as Dilawar, aged 22, died of "blunt force injuries to lower extremities complication coronary artery disease." The other prisoner, Mullah Habibullah, 30, is said to have died on December 3 of "blunt force injury" in addition to a blood clot. The US Army has launched a criminal investigation into these deaths but has yet to make any arrests, suspensions, or changes to routines inside the detention center in Bagram.

When asked earlier this month if there had been any changes in the policy or modus operandi at Bagram, Lieutenant Colonel Judy DeSantis at Central Command in Florida replied, "Currently I am not aware of any changes. Until the investigation is over everything continues as normal." Lieutenant Commander Nick Balice also at Central Command told the Crimes of War Project that he expected the investigation to be completed "soon" but said he could not discuss a specific date.

The United States is a party to international humanitarian laws and customary laws that prohibit torture. Torture is specifically prohibited in armed conflict, whether international or internal, against soldiers who have laid down their arms, civilians, or even common criminals. As defined in Additional Protocol I, Article 75 of the Geneva Conventions, "murder; torture of all kinds, whether physical or mental; corporal punishment; and mutilation…are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents." Furthermore, using force to obtain information is specifically prohibited in Article 31 of the Fourth Geneva Convention which states that: "No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties."

Protection against torture is also recognized as a human right during times of peace under the 1984 United Nations Convention Against Torture, and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The United States ratified this convention in October 1994. At the presentation of the US Initial Report to the UN Committee Against Torture in September 1999, Harold Hongju Koh - then Assistant Secretary of State for Democracy, Human Rights and Labor - reinforced the government's commitment to prevent torture in stating, "Torture is [now] prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. In every instance, torture is a criminal offense. No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification for torture."

Nevertheless, since September 11 there are suggestions that US policy regarding the use of force against detainees may be changing. According to a US official supervising the capture of suspected terrorists, as quoted in the Washington Post, "If you don't violate someone's human rights some of the time, you probably aren't doing your job." Referring to an al-Qaeda leader in US custody, anther US official was quoted in the New York Times as saying: "Keep in mind that this is a guy who was not only the mastermind of 9/11, but was also actively involved in plotting future and ongoing terrorist operations. This is a guy who potentially has information about planned terrorist operations that could save American lives. Everyone would understand the wisdom of finding out whatever information we can from him." The use of September 11 as an exception was echoed in a statement made by Cofer Black, former head of CIA Counterterrorist Center, who said: "There was a before 9/11, and there was an after 9/11. After 9/11 the gloves come off."

"Torture Lite"?

A widely-noted article in the Washington Post in December alleged that US agents at the CIA detention center at Bagram use interrogation techniques known as "stress and duress" tactics or "torture lite". According to the article, prisoners are sometimes kept standing or kneeling for hours in black hoods or spray-painted goggles, or held in awkward, painful positions and deprived of sleep with a 24-hour bombardment of lights. Government officials, speaking on condition of anonymity, acknowledged that interrogators deprive some captives of sleep, a technique ambiguous under international law.

The arrest of the senior al-Qaeda operative Khalid Sheikh Mohammed in March has led to suggestions that he might be harshly interrogated to encourage him to reveal details of any current or future operations that he might have knowledge of. A former member of US navy intelligence said that "torture lite" - sleep deprivation, and placing prisoners in awkward or painful positions for hours at a time - would probably be used.

"Torture lite" is still torture. The United Nations High Commissioner for Human Rights has ruled that sleep deprivation "may in some cases constitute torture." The United States itself has also declared sleep deprivation to be a form of torture, as exemplified in the 2001 U.S. State Department report on Turkey, Israel, and Jordan that lists sleep deprivation among alleged torture techniques.

There is no exception in the conventions against torture for a war on terrorism. "Torture is always prohibited under any circumstances," said Kenneth Roth, executive director of Human Rights Watch. "U.S. officials who take part in torture, authorize it, or even close their eyes to it, can be prosecuted by courts anywhere in the world." The 1984 Convention for the Prevention of Torture, ratified by the US in 1994, clearly states that: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may by invoked as a justification of torture."

Exporting Prisoners

Some US intelligence agents have claimed, speaking off the record, that they do not themselves use torture but that they do send prisoners to countries such as Egypt, Morocco, and Jordan with security services known to use torture during interrogations.

According to one official, involved in rendering captives into foreign hands, quoted in the Washington Post, "We don't kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them." Sending prisoners to other countries to be tortured does not absolve the US of responsibility. Under the Geneva Conventions and the 1984 Convention against Torture it is illegal to ask another party to torture prisoners and it is illegal for the US to use information gathered as a result of torture.

Senator John D. Rockefeller IV of West Virginia, the ranking Democrat on the Senate Intelligence Committees, has suggested that he would consider turning over Mr. Mohammed to countries without restrictions against torture. "I wouldn't rule it out," Rockefeller told CNN. "I wouldn't take anything off the table where he is concerned, because this is the man who has killed hundreds and hundreds of Americans over the last 10 years."

Regardless of what Mr. Mohammed is guilty of, the US is legally prohibited from using torture. As Harold Hongju Koh told the New York Times, "If the United States is turning people over to people who might torture them, that is a violation of our obligation under the torture convention, which prevents us from returning people to conditions of torture."

The Pentagon's Response

In a letter to Human Rights Watch on April 2, the senior lawyer at the Department of Defense, William Haynes, stated, "US policy condemns and prohibits torture. When questioning enemy combatants, US personnel are required to follow this policy and applicable laws prohibiting torture." Haynes also said that, when detainees were transferred to other countries, "US government instructions are to seek and obtain appropriate assurances that such enemy combatants are not tortured."

Kenneth Roth, Executive Director of Human Rights Watch, said the government's statement was "totally inadequate," since it did not address charges that US agents were using cruel or inhuman treatment, or practicing "stress and duress" techniques.

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