Bush Regime Above the Law?

Trying to quell the growing firestorm last week, Defense Secretary Donald Rumsfeld told reporters, "My impression is that what has been charged thus far is abuse, which I believe, technically, is different from torture." Rumsfeld said he hadn't had a chance to finish reading Army Major General Antonio Taguba's report, which was completed two and a half months ago.

Torture at Abu Ghraib

Rumsfeld apparently hadn't gotten to the part of the report that described the "sodomizing of a detainee with a chemical light and perhaps a broomstick," as well as "positioning a naked detainee on a box with a sandbag on his head, and attaching wires to his fingers, toes and penis to simulate electric torture," and "using military working dogs (without muzzles) ... biting and severely injuring a detainee."

This conduct does amount to torture under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which occurs when a public official or one acting in an official capacity intentionally inflicts, instigates or consents to the infliction of severe pain or suffering on a person for the purpose of obtaining information or a confession. Torture is never permitted, even in times of war.

Evidently Rumsfeld also hasn't had time to read this treaty, which the United States has ratified and thus is part of the law of the land under our Constitution.

When Rumsfeld parsed his technical distinction between abuse and torture, he probably hadn't yet seen the videotapes, which purportedly show U.S. soldiers having [presumably nonconsensual] sex with an Iraqi woman prisoner, troops nearly beating a prisoner to death, and rapes of young boys by Iraqi guards at Abu Ghraib prison. These would also qualify as torture.

Torture is a crime under federal law. When a U.S. national conspires, attempts, or commits torture outside of the United States, he can be sentenced to 20 years in prison. If his victim dies, the perpetrator can receive life in prison or the death penalty.

Other acts chronicled in the Taguba report, such as forcing groups of male detainees to masturbate themselves while being filmed, and holding a naked detainee by a dog chain or strap around his neck, would, at a minimum, amount to inhuman treatment. While testifying before the Senate Armed Services Committee on Friday, Rumsfeld admitted that some of the photographs that hadn't been made public depicted "sadistic, cruel and inhuman" behavior.

Many of the findings in the Taguba report are confirmed in the newly released report of the International Committee of the Red Cross, which also found systemic abuse of security detainees at Abu Ghraib. Shockingly, the Red Cross reports that 70 to 90 percent of detainees in Iraq were arrested by mistake. The Red Cross characterized some of the interrogation tactics as "tantamount to torture."

Torture and Inhuman Treatment are War Crimes

Both torture and inhuman treatment are considered war crimes under the Geneva Convention, another treaty the United States has ratified. The War Crimes Act of 1996 provides that military or civilian U.S. nationals could receive life in prison, or the death penalty if a victim dies. There is evidence that at least one Iraqi died while being interrogated at Abu Ghraib.

These atrocities are not, as the Bush administration would like us to believe, confined to the Abu Ghraib prison or even to Iraq. According to the Taguba report, Major General Geoffrey D. Miller, the Commander at the Guantanamo prison, was sent to Iraq late last year "to review current Iraqi Theater ability to rapidly exploit internees for actionable intelligence." Miller used Guantanamo interrogation procedures as baselines.

A prisoner released from Guantanamo told Amnesty International that the interrogations there "were like torture." Australian lawyer Richard Bourke reported on ABC Radio that one of the Guantanamo detainees "had described being taken out and tied to a post and having rubber bullets fired at them. They were being made to kneel cruciform in the sun until they collapsed."

Torture has also been used in Afghanistan. In December 2002, the documentary "Massacre in Afghanistan" was broadcast on German television. An Afghan soldier recounted being ordered by an American commander to fire shots into the closed containers which transported prisoners. Some died from suffocation; others were dumped in the desert, shot and left to be eaten by dogs, as 30 to 40 American soldiers watched.

A week after the documentary aired, the Washington Post reported that "stress and duress" tactics were used on prisoners interrogated at the U.S.-occupied Bagram air base in Afghanistan. The U.S. military admitted that two prisoners were victims of homicide.

Rumsfeld Pans Geneva

When Rumsfeld decided the Third Geneva Convention didn't apply to the prisoners at Guantanamo or Afghanistan, after unilaterally declaring they weren't prisoners of war, he sent an implicit message to future American interrogators in Iraq that detainees need not be treated humanely.

Rumsfeld presumably overlooked the Fourth Geneva Convention, which protects civilians in time of war. It prohibits the use of physical or moral coercion to obtain information from them.

War Crimes Up the Chain of Command

Only seven U.S. soldiers have been charged with crimes at Abu Ghraib under the Uniform Code of Military Justice. None of the military or civilian (i.e., mercenary) personnel has yet been charged with war crimes under U.S. civilian law.

The influential Army Times implicates both Gen. Richard Myers, chairman of the joint Chiefs, and Rumsfeld in the Iraqi prison scandal. It states that the responsibility "extends all the way up the chain of command to the highest reaches of the military hierarchy and its civilian leadership."

In its report, the Red Cross described physical and psychological coercion by interrogators which "appeared to be part of the standard operating procedures used by military intelligence personnel." The myriad photographs confirm that the perpetrators felt they had nothing to hide from their superiors.

Even though Taguba and Stephen A. Cambone, undersecretary of defense for intelligence, disagree about whether military intelligence or military police were in charge of interrogations at the Abu Ghraib prison, the well-established doctrine of command responsibility supports criminal liability for those who knew or should have known of the misconduct, yet failed to stop or prevent it.

Rumsfeld's involvement in setting policy for Guantanamo Bay is instructive here. Twenty of the most egregious interrogation techniques used at Guantanamo, which Human Rights Watch describes as "cruel and inhumane," were "approved at the highest levels of the Pentagon and the Justice Department," including Rumsfeld, according to the Washington Post.

In the words of the Army Times, "This was not just a failure of leadership at the local command level. This was a failure that ran straight to the top. Accountability here is essential - even if it means relieving top leaders from duty in a time of war."

Policymakers must be held accountable. All those in the chain of command should be investigated, and war crimes prosecutions initiated of the responsible military and civilian personnel.

Donald Rumsfeld should not only be relieved of his duties as Secretary of Defense. He must also be investigated for war crimes.