Death in US Custody
By William Fisher
Sunday 26 February 2006
A major human rights advocacy group is charging that of the 98
detainees who have died in US custody in Iraq and Afghanistan since
August 2002, 34 are suspected or confirmed homicides, another 11
suggest that death was a result of physical abuse or harsh conditions,
but only 12 deaths have resulted in punishment of any kind for any US
In close to half the deaths surveyed in a new report by Human
Rights First, the cause of death remains officially undetermined or
unannounced. Overall, eight people in US custody were tortured to death.
The report, entitled "Command's Responsibility," says that of the
34 homicide cases so far identified by the military, investigators
recommended criminal charges in fewer than two thirds, and charges
were actually brought (based on decisions made by command) in less
While the CIA has been implicated in several deaths, no CIA agent
has faced a criminal charge the report says, adding, "Among the worst
cases - detainees tortured to death - only half have resulted in
punishment and the harshest sentence for anyone involved in a
torture-related death has been five months in jail."
Among the report's other findings: Commanders have failed to
report deaths of detainees in the custody of their command, reported
the deaths only after a period of days and sometimes weeks, or
actively interfered in efforts to pursue investigations; investigators
have failed to interview key witnesses, collect useable evidence, or
maintain evidence that could be used for any subsequent prosecution;
record keeping has been inadequate, further undermining chances for
effective investigation or appropriate prosecution; overlapping
criminal and administrative investigations have compromised chances
for accountability; over-broad classification of information and other
investigation restrictions have left CIA and Special Forces
essentially immune from accountability; agencies have failed to
disclose critical information, including the cause or circumstance of
death, in close to half the cases examined; effective punishment has
been too little and too late.
Charging that there is an "accountability gap," HRF says closing
it will require "a zero-tolerance approach to commanders who fail to
take steps to provide clear guidance, and who allow unlawful conduct
to persist on their watch."
The report recommends that the president, as Commander-in-Chief,
"move immediately to fully implement the ban on cruel, inhuman and
degrading treatment (known as the McCain Amendment) passed
overwhelmingly by the US Congress and signed into law on December 30,
It also demands that "the president, the US military, and relevant
intelligence agencies should take immediate steps to make clear that
all acts of torture and abuse are taken seriously - not from the
moment a crime becomes public, but from the moment the United States
sends troops and agents into the field."
Congress, the report suggests, "should at long last establish an
independent, bipartisan commission to review the scope of US detention
and interrogation operations worldwide in the 'war on terror.' Such a
commission could investigate and identify the systemic causes of
failures that lead to torture, abuse and wrongful death, and chart a
detailed and specific path going forward to make sure those mistakes
never happen again. The proposal for a commission has been endorsed by
a wide range of distinguished Americans, from Republican and
Democratic members of Congress, to former presidents and leaders in
the US military. Human Rights First urges Congress to act without
Deborah Pearlstein, Director of HRF's US Law and Security Program,
said the Pentagon's detention policies have repeatedly been criticized
by military lawyers and health officials, but their objections have
largely been ignored.
Most recently, it was revealed that one of the Pentagon's top
civilian lawyers repeatedly challenged the Bush Administration's
policy on the coercive interrogation of terror suspects, arguing that
such practices violated the law, verged on torture and could
ultimately expose senior officials to prosecution.
Mora's campaign underscores how contrary views were often brushed
aside in administration debates on the subject.
"Even if one wanted to authorize the US military to conduct coercive
interrogations, as was the case in Guantánamo, how could one do so
without profoundly altering its core values and character?" Mr. Mora
asked the Pentagon's chief lawyer, William J. Haynes II, in a 22-page
The Pentagon has declined to comment on specific assertions in Mr.
"Detainee operations and interrogation policies have been
scrutinized under a microscope, from all different angles," a
spokesperson said. "It was found that it was not a Department of
Defense policy to encourage or condone torture."
The HRF report notes that: "It is difficult to assess the systemic
adequacy of punishment when so few have been punished, and when the
deliberations of juries and commanders are largely unknown.
Nonetheless, two patterns clearly emerge and are documented in
Command's Responsibility: (1) because of investigative and evidentiary
failures, accountability for wrongdoing has been limited at best, and
almost non-existent for command; and (2) commanders have played a key
role in undermining chances for full accountability."
It adds, "In dozens of cases documented in the report, grossly
inadequate reporting, investigation, and follow-through have left no
one at all responsible for homicides and other unexplained deaths.
Commanders have failed both to provide troops clear guidance, and to
take crimes seriously by insisting on vigorous investigations. And
command responsibility itself - the law that requires commanders to be
held liable for the unlawful acts of their subordinates about which
they knew or should have known - has been all but forgotten."
Which reminds me that "Command Responsibility" is supposed to
begin with the Commander-in-Chief.
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