The Bush Administration's Stunning
by Jason Leopold
www.truthout.org/, April 20, 2009
Newly released US government documents,
detailing how Bush administration officials punched legalistic
holes in the Geneva Conventions' protections of war captives,
stand in stark contrast to the outrage some of the same officials
expressed in the first week of the Iraq war when Iraqi TV interviewed
several captured American soldiers.
"If there is somebody captured,"
President George W. Bush told reporters on March 23, 2003, "I
expect those people to be treated humanely. If not, the people
who mistreat the prisoners will be treated as war criminals."
Then, Defense Secretary Donald Rumsfeld,
President George W. Bush, and other administration officials orchestrated
a chorus of outrage, citing those TV scenes as proof of the Iraq's
government contempt for international law in general and the Geneva
Conventions in particular.
"It is a blatant violation of the
Geneva Convention to humiliate and abuse prisoners of war or to
harm them in any way. As President Bush said yesterday, those
who harm POWs will be found and punished as war criminals,"
Pentagon spokeswoman Victoria Clarke said on March 24, 2003.
That same day, Deputy Defense Secretary
Paul Wolfowitz told the BBC that "the Geneva Convention is
very clear on the rules for treating prisoners.. They're not supposed
to be tortured or abused; they're not supposed to be intimidated;
they're not supposed to be made public displays of humiliation
or insult, and we're going to be in a position to hold those Iraqi
officials who are mistreating our prisoners accountable, and they've
got to stop."
At a March 25, 2003, press briefing about
progress in the US-led invasion, Secretary Rumsfeld said, "This
war is an act of self-defense, to be sure, but it is also an act
of humanity.... In recent days, the world has witnessed further
evidence of their [Iraqi] brutality and their disregard for the
laws of war. Their treatment of coalition POWs is a violation
of the Geneva Conventions."
The US news media also assisted in this
one-sided indictment by uncritically reporting the administration's
complaints while staying silent on the fact that, just days earlier,
American TV had run scenes of captured Iraqi soldiers, some forced
to kneel down at gunpoint to be patted down by US soldiers.
This behavior of the US news media during
the early phase of the Iraq war fit with its lack of skepticism
in the months leading up to the March 19, 2003, invasion as Bush
administration officials spoon-fed the press false intelligence
alleging secret Iraqi WMD stockpiles and covert links to al-Qaeda
terrorists responsible for the 9/11 attacks.
So, perhaps it should have come as no
surprise when the US news media treated the TV footage of American
POWs as further evidence that Iraq was run by a lawless regime
with no respect for the rules of war. [For a contemporaneous account
of the POW issue, see Consortiumnews.com's "International
Law a la Carte."]
In retrospect - now with much more of
the documentary record available - the disparity between the administration's
outrage toward the Iraqis for showing the video and the abuse
inflicted by the US government on captives from the Iraq and Afghan
wars is stunning.
Declassified documents reveal that the
Bush administration concocted legal theories to justify sidestepping
the Geneva Conventions when it came to prisoners incarcerated
at Guantanamo Bay, at secret CIA prisons, and at various locations
in Iraq, including Abu Ghraib, where shocking photos were leaked
of sexual and physical abuse in 2004.
Indeed, while US government officials
were preaching to Iraqis about the rules of war, the Bush administration
was seven months into a secret interrogation program that authorized
CIA interrogators to question Afghan and al-Qaeda detainees using
The techniques included painful "stress
positions," forced nudity in cold conditions and the simulated
drowning of waterboarding, practices that human rights organizations
say violated Geneva and anti-torture laws.
The Bush administration also ordered the
CIA to engage in "extraordinary renditions," which involved
kidnapping terror suspects and shipping them to countries that
are known to practice torture.
If held to the same standards that the
Bush administration demanded of the Iraqi military, US officials
implicated in these policies would be guilty of violating the
Geneva Conventions, said Claire Tixeire, a human rights attorney
with the Center for Constitutional Rights in New York.
"They clearly knew that the laws
of war were supposed to apply to prisoners apprehended by the
United States in Afghanistan and Iraq, but they found every legal
loophole to find ways it didn't apply to the US side," Tixeire
said in an interview.
Tixeire, whose organization is defending
some of the prisoners at Guantanamo Bay, said that while US officials
may have had a point in accusing the Iraqi military of violating
the Geneva Conventions over the TV interviews, the way the US
treated Iraqi captives was much worse.
"It's clear to me these actions came
down from the very top," Tixeire said. "Denying prisoners
of war humane treatment is the greatest breach of the Geneva Convention.
It's a war crime. They put US troops at risk for being treated
inhumanely if they were captured."
When asked recently about the past statements
about Iraqi violations of the Geneva Conventions, representatives
for Clarke, Wolfowitz and Rumsfeld said the now-former officials
would not comment for this story.
The actions of the Bush administration
also flouted the 1984 "Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment," which
was approved by 145 nations, including the United States. It declares
"No exceptional circumstances whatsoever,
whether a state of war or a threat of war, internal political
instability or any other public emergency, may be invoked as a
justification of torture."
Moreover, the convention says individuals
who resort to torture cannot defend their actions by saying they
were acting on orders from superiors and it mandates that torturers
be prosecuted wherever they are found.
The United States signed the Convention
Against Torture in 1988 under President Ronald Reagan, who hailed
it as "a significant step" in preventing torture, which
he called "an abhorrent practice unfortunately still prevalent
in the world today."
In a May 20, 1988, message to the US Senate,
Reagan noted that "the core provisions of the Convention
establish a regime for international cooperation in the criminal
prosecution of torturers relying on so-called 'universal jurisdiction.'"
According to that provision, "each
state party is required either to prosecute torturers who are
found in its territory or to extradite them to other countries
It was this Convention, ratified by the
Senate in 1994, that Bush administration officials sought to bypass
with legal memos, many drafted by John Yoo of the Justice Department's
Office of Legal Counsel.
The administration memos argued that the
Geneva Conventions did not apply to detainees in the "war
on terror" and that President Bush's commander in chief powers
allowed him to ignore laws in the interest of protecting the nation.
The record now shows that during the same
week in March 2003 - when Rumsfeld was publicly berating Iraq
for violating the Geneva Conventions by broadcasting footage of
American POWs - he was engaged in drafting a top-secret plan that
would give military interrogators at Guantanamo wide latitude
to use harsher techniques to obtain information from prisoners.
Rumsfeld signed off on the plan on April
2, 2003, according to documents declassified and turned over to
the American Civil Liberties Union last month in response to a
Freedom of Information Act lawsuit.
Though some of the more extreme techniques
were dropped as the list was winnowed down to 24 from 35, the
final set of interrogation methods Rumsfeld approved still included
tactics for isolating and demeaning a detainee, known as "pride
and ego down."
Such degrading tactics would appear to
contravene the Geneva Conventions, which bars abusive or demeaning
treatment of captives.
Reports of Abuse
Weeks after the Iraq invasion, human rights
groups started receiving information about the abuse of dozens
of Iraqi prisoners at Camp Cropper, Camp Bucca and Abu Ghraib,
and the deaths of two prisoners, one of whom died of a crushed
larynx, and the other with a hard blow to the head.
Amnesty International sent a letter to
the head of the US occupation, Paul Bremer, on June 26, 2003,
raising concerns about abuses during house searches, treatment
during arrest and detention, people being forced to lie face down
on the ground, use of hoods or blind folds, exposure to sun and
heat for hours, limited amount of water supplied and lack of proper
washing and toilet facilities.
One month later, Amnesty International
released a report, "Iraq: memorandum on concerns relating
to law and order," warning of allegations of torture and
abuse in US prisons, including Abu Ghraib.
"Regrettably, testimonies from recently
released detainees held at Camp Cropper and Abu Ghraib Prison
do not suggest that conditions of detention have improved,"
the report said.
There are "a number of reports of
cases of detainees who have died in custody, mostly as a result
of shooting by members of the Coalition forces." A Saudi
national "alleged that he was subjected to beatings and electric
Photographs backing up these allegations
would surface a year later in two investigative news reports,
one by Seymour Hersh of The New Yorker and the other by "60
Minutes II," which detailed the systematic abuse of Iraqi
prisoners at Abu Ghraib.
Months before the worldwide condemnation
of the treatment of the Abu Ghraib prisoners, Rumsfeld sent Maj.
Gen. Geoffrey D. Miller to Baghdad from Guantanamo Bay to "hit
back at the [Iraqi] insurgents ... through unorthodox means,"
according to a May 10, 2004, front-page story in the Washington
"He came up there and told me he
was going to 'Gitmoize' the detention operation," turning
it into a hub of interrogation, said Brig. Gen. Janis L. Karpinski,
then commander of the military prison system in Iraq, according
to the Post.
Hersh wrote in The New Yorker's May 24,
2004, issue that "the roots of the Abu Ghraib prison scandal
lie not in the criminal inclinations of a few Army reservists
but in a decision, approved last year  by Secretary of Defense
Donald Rumsfeld, to expand a highly secret operation, which had
been focused on the hunt for Al Qaeda, to the interrogation of
prisoners in Iraq....
"The solution, endorsed by Rumsfeld
and carried out by Stephen Cambone, was to get tough with those
Iraqis in the Army prison system who were suspected of being insurgents....
Rumsfeld and Cambone went a step further, [bringing] unconventional
methods to Abu Ghraib.... The male prisoners could be treated
roughly, and exposed to sexual humiliation."
Amrit Singh, a staff attorney at the ACLU's
Immigrant Rights Project and the co-author of "Administration
of Torture," added that Rumsfeld and other top Bush administration
officials by "holding up the Geneva Convention and saying
it did not apply to some prisoners have tarnished the image of
the US throughout the world."
Even after the programs governing interrogations
were exposed, Rumsfeld made sure that a loophole in a new Defense
Department (DoD) policy issued in November 2005, which barred
torture and called for the "humane" treatment of detainees,
gave him and his deputy the authority to override it.
"Intelligence interrogations will
be conducted in accordance with applicable law, this directive
and implementing plans, policies, orders, directives, and doctrine
developed by DoD components and approved by USD (I), unless otherwise
authorized, in writing, by the secretary of defense or deputy
secretary of defense," the policy says. "USD (I)"
refers to the undersecretary of defense for intelligence.
It would take months and years - as documents
from Bush's first term were gradually released to the public -
to reveal the extent of the Bush administration's hypocrisy.
For instance, it's now known that the
International Committee of the Red Cross (ICRC) began an investigation
of US war crimes in Iraq from the first days of the invasion,
interviewing Iraqis captives from March to November 2003.
On January 15, 2004, ICRC president Jakob
Kellenberger expressed his concern to Secretary of State Colin
Powell about the Bush administration's attitude regarding international
law, specifically an op-ed by then-State Department legal adviser
William Taft IV in The Financial Times four days earlier.
In that op-ed, Taft wrote that there was
no law that required the US to afford due process to foreigners
captured in the "war on terror."
"American treatment of detainees
held at Guantanamo Bay in Cuba is fully consistent with international
law and with centuries-old norms for treating individuals captured
in wartime," Taft wrote. "We are engaged in a war."
It's unclear what Kellenberger cited in
Taft's column, because the recently released minutes of the meeting
were heavily redacted. But the conversation segued into Powell
asking Kellenberger "where in addition to Afghanistan, did
ICRC have problems with notification and access to detainees?"
Powell is quoted as saying "we are
confident of our legal position [referring to legal adviser Taft's
op-ed], but we also know the world is watching us."
The next month, the ICRC gave Bush administration
officials a confidential report, which found that US occupation
forces in Iraq often arrested Iraqis without good reason and subjected
them to abuse and humiliation that sometimes was "tantamount
to torture" in violation of the Geneva Conventions.
Some excessive violence, including the
use of live ammunition against detainees, had led to seven deaths,
the ICRC report said.
"According to the allegations collected
by the ICRC, ill-treatment during interrogation was not systematic,
except with regard to persons arrested in connection with suspected
security offences or deemed to have an 'intelligence' value,"
the report said.
"In these cases, persons deprived
of their liberty under supervision of the Military Intelligence
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, in order to force cooperation with their interrogators."
One of the recipients of the ICRC confidential
report was Lt. Gen. Ricardo Sanchez, the senior US military officer
in Iraq, an ICRC official said later. Sanchez had instituted a
"dozen interrogation methods beyond" the Army's standard
interrogation techniques that comply with the Geneva Conventions,
according to a 2004 report by a panel headed by former Defense
Secretary James Schlesinger.
Sanchez said he based his decision on
"the President's Memorandum" justifying "additional,
tougher measures" against detainees, the Schlesinger report
said. The memorandum Sanchez was referring to was an order that
Bush signed on February 7, 2002, excluding "war on terror"
suspects from Geneva Conventions' protections.
As the ICRC gathered more information
about the Bush administration's detention policies, it began to
make some of its concerns public. On March 1, 2004, for instance,
Gabor Rona, the ICRC's legal adviser, wrote an op-ed, also in
The Financial Times, that took issue with the Bush administration's
posture on the Geneva Conventions.
"The US is proceeding with plans
to subject prisoners to military commission trials, citing the
Geneva Convention provision that prisoners of war be tried by
military courts. How can it do so while maintaining that no detainees
are entitled to PoW status?" Rona wrote.
"That aside, the US risks throwing
into the military-trial pot people whose alleged crimes have no
connection with armed conflict, as understood in international
humanitarian law. Such people can and should face trial, but not
by military courts."
Taft responded with an angry letter to
Kellenberger on March 16, 2004.
"Your staff states categorically
that detainees are entitled to an individualized procedure to
challenge the basis of their detention," Taft wrote. "No
citation or support is provided for this assertion. There is,
in fact, no such entitlement in the 1949 Geneva Conventions.
"However, the implication in the
article is that the Geneva Conventions do provide such entitlement.
This again has the unfortunate effect of misleading the public."
The Abu Ghraib Scandal
The behind-the-scenes dispute over detainee
treatment went public in another way in April 2004 when photos
were leaked showing US prison guards at Abu Ghraib forcing naked
Iraqi detainees into sexual positions, intimidating detainees
with attacks dogs, committing other abuses, and posing with the
corpse of an Iraqi who had died in custody.
After a public scandal erupted, President
Bush blamed the Abu Ghraib abuses on low-level prison guards.
"I shared a deep disgust that those
prisoners were treated the way they were treated," Bush said.
"Their treatment does not reflect the nature of the American
However, Bush's finger-pointing at a few
"bad apples" was soon contradicted when the contents
of the February 2004 ICRC report were leaked to The Wall Street
Journal in May 2004. The ICRC findings made clear that the Abu
Ghraib abuses were not an isolated case.
Nevertheless, 11 enlisted soldiers, who
were guards at Abu Ghraib, were convicted in courts-martial. Cpl.
Charles Graner Jr. received the harshest sentence - 10 years in
prison - while Lynndie England, a 22-year-old single mother, who
was photographed holding an Iraqi on a leash and pointing at a
detainee's penis, was sentenced to three years in prison.
Superior officers were cleared of wrongdoing
or received mild reprimands.
But the February 2004 ICRC report on Iraq
took on added meaning with the recent disclosure of another ICRC
report, dated February 14, 2007. Based on interviews that the
ICRC finally arranged with 14 "high-value" detainees
held at secret CIA prisons, the report concluded those prisoners
had been subjected to similar humiliating and abusive treatment,
including forced nudity and stress positions, as well as the drowning
sensation of waterboarding.
The ICRC concluded that the treatment
"constituted torture," a finding that has legal weight
because the ICRC is responsible for ensuring compliance with the
Geneva Conventions and supervising the treatment of prisoners
Taken together, the two reports suggest
that the Bush administration adopted a policy of torture against
"high-value" detainees captured in 2002 and that the
policy spread to Iraq in 2003 when US forces were grappling with
a rising Iraqi insurgency against the American occupation.
In December 2008, a Senate Armed Services
Committee report reached a similar conclusion, tracing the US
abuse of detainees at Guantanamo Bay and later Abu Ghraib to President
Bush's February 7, 2002, action memorandum that excluded "war
on terror" suspects from Geneva Conventions' protections.
The report said Bush's memo opened the
door to "considering aggressive techniques," which were
then developed with the complicity of then-Defense Secretary Rumsfeld,
Bush's National Security Adviser Condoleezza Rice, and other senior
The public record - as it now exists -
also makes clear that the Bush administration had a selective
view of international law. When it worked to American advantage
- as when Iraqis videotaped captured US soldiers in March 2003
- Bush and his aides saw the rules as binding, but not when the
laws of war constrained their own behavior.
In other words, international law applied
to the other guy, but not to George W. Bush. He surely didn't
mean to implicate himself when he declared "the people who
mistreat the prisoners will be treated as war criminals."
International War Cirmes