The abuse of prisoners at the American detention facility at Abu Ghraib during the Iraq War provoked a number of legal and ethical debates. The George W. Bush administration argued that the Geneva Convention’s protocols on the treatment of prisoners of war (POWs) did not apply to the detainees at Abu Ghraib, a legal argument that came under harsh scrutiny. The administration did not go so far as to condone some of the clearly degrading or inhumane treatment suffered by Iraqi prisoners, but it did stand by interrogation techniques that were widely considered to be torture. The role of torture as an acceptable expedient was revisited in public discourse, and the traditionally assigned culpability of superior officers in regard to the misdeeds of those under their command was highlighted by military investigations and resulting legal actions.
Operation Iraqi Freedom was intended, among other reasons, to put an end to years of human rights abuses under Iraqi dictator Saddam Hussein. These included torture, the use of deadly chemical weapons, extrajudicial executions, forced disappearance, rape, and extermination. In March 2003, a U.S.-led military coalition began its forcible regime change. The next month Baghdad fell, and on May 1, 2003, President George W. Bush gave his “Mission Accomplished” speech aboard the USS Abraham Lincoln. The war, however, was far from over, and the unlawful acts at the U.S. detention facility at Abu Ghraib would tarnish the image of honorable American soldiers and the reputation of the United States as a defender of human rights.
The treatment of detainees is governed by different legal instruments and standards depending upon the circumstances surrounding the detention. During times of international armed conflict, lawful enemy combatants may be held as prisoners of war. More problematic is the status of “unlawful” enemy combatants, which includes spies, terrorists, and ordinary criminals who participate in armed conflict as unauthorized belligerents. Regardless of the technical status of the detainees, they may lawfully be subjected to interrogation by the party into whose hands they have fallen.
The Abu Ghraib prison, which is now known as the Central Baghdad prison, is located in the city of Abu Ghraib. It was once used under Saddam Hussein’s regime to hold political dissidents and enemies of the state. Many detainees were tortured or murdered there, and others became victims of a crime known under international humanitarian law as forced disappearance. During Operation Iraqi Freedom, U.S. forces held at the Abu Ghraib facility civilian internees, who were subsequently subclassified as criminal detainees, security internees, or those with a military intelligence (MI) hold. The facility was under the control of the U.S. Army and its military police (MP). The principal unit responsible for undertaking interrogations was U.S. Army MI and included contract civilian interrogators. In special cases, interrogations were carried out by other government agencies (OGAs) from the U.S. intelligence community. Two general categories of unlawful conduct can be described as having taken place at the prison. The first was the humiliating, degrading, and inhumane treatment of the detainees by MPs. The second involved torture and other cruel and degrading treatment in connection with interrogations. All of the proscribed acts constituted crimes under international law, military law, and U.S. federal law.
One of the first images of abuse to emerge from Abu Ghraib was that of a female U.S. Army MP from West Virginia holding a dog leash attached to a collar around the neck of a prone, naked, male Iraqi detainee. Another photograph showed a hooded detainee attached to what appeared to be electrical wires. These were just a hint of the mistreatment that took place behind the walls of the prison at Abu Ghraib where detainees were raped, sodomized, tortured, and killed. The International Committee for the Red Cross (ICRC) examined the premises and subsequently voiced its concerns over the treatment of the detainees. The commanding officer at the detention facility, an army reserve MP, initially claimed that the detainees were being treated humanely and under living conditions that were far better than that to which they had been accustomed. The prison chief later attributed the abuses to the fact that she did not have control over the civilian interrogators. Nevertheless, the U.S. Army, with the approval of the president, demoted the commanding officer of the Abu Ghraib prison.
The U.S. Army Criminal Investigation Command (CID) took the lead in conducting criminal investigations of the alleged crimes perpetrated by the military police and other service personnel. Ultimately a relatively small number of low-ranking enlisted MPs and MI interrogators were court-martialed, convicted, and sentenced for their acts. Only one officer was court-martialed, but in the end he received only an administrative reprimand for disobeying an order not to discuss the investigation. This lack of accountability for the acts and omissions of senior officers occurred in spite of the internationally recognized legal doctrine of command responsibility. Under this doctrine, superior officers who knew or should have known that unlawful acts were about to take place, taking place, or occurred, and thereafter failed to prevent, stop, or punish the offenders are culpable of individual criminal responsibility. The Uniform Code of Military Justice also contains a number of criminal provisions that are applicable to superior officers under such circumstances.
The U.S. Army and the Department of Defense (DOD) also undertook a number of administrative inquiries, which pointed to myriad reasons for what they viewed to be unacceptable conduct. These included understaffing in the prison, overcrowding of prisoners, and the contracting of non-DOD agencies with different operational policies. They noted that MP guards and MI interrogators had little to no recent or relevant training, and added that the experience of interrogators, whether contractor or military, was such that they were not prepared for nontraditional warfare interrogations. It was further noted that a state of confusion existed that led many soldiers working in the prison simply not to know what was and what was not allowed. Another factor that contributed to the abuse at Abu Ghraib was the unauthorized adoption of techniques that had been used at Guantanamo Bay (GITMO), where exceptional interrogation methods had been approved for use with terrorists and other violent enemy combatants, including stripping the detainees naked and the use of military working dogs to instill fear.
The responses from the U.S. government in regard to Abu Ghraib varied depending upon who was making the statement. By and large, most representatives of the government expressed shock at the conduct they saw as being that of a few people. But at least one member of Congress was quite open in expressing his view that the United States should not concern itself with such acts, which paled in comparison to the horrific events of 9/11. Others claimed that the Geneva Conventions of 1949, which went into effect following World War II, did not apply. This was so, it was said, because the detainees were not considered lawful combatants, which would have entitled them to the benefit of the privileges associated with the classification of prisoner of war (POW). However, this position ignored or overlooked the fact that the Fourth Convention protects civilians, and Article 3(CA 3), which is common to all four conventions, essentially applies to all detainees.
The strongest support for ensuring the relevant applications of the Geneva Conventions came from the U.S. military itself. Indeed, military investigations revealed the fact that all detainees at Abu Ghraib were indeed civilians and accordingly entitled to protection. From legal and ethical perspectives, one of the major contributing factors to be considered and discussed in relation to the abuses at Abu Ghraib prison is the legal advice provided by the U.S. Department of Justice (DOJ) to the White House and the Department of Defense. It is unclear why DOD general counsel sought legal advice on the laws of war from DOJ, but what followed has been described as both unethical and unlawful.
Several memoranda from different DOJ lawyers were written that have since been referred to as the “torture memos,” and in relation to which, there are different interpretations as to their purpose. The authors and their supporters took the position that the memos simply contain legal advice given to their clients based upon their legitimate interpretations of relevant laws. Critics asserted that these memoranda were written for the purpose of informing the recipients and their agents how to avoid criminal responsibility for future acts, including torture and other serious crimes. In one memo, for example, it was implied that if the president did not declare a particular class of detainees to be POWs, then the law that makes the mistreatment of POWs unlawful would be rendered moot in relation to that group. In another example it was suggested that the U.S. government ignore an appellate decision of an international criminal tribunal that was established by the United Nations Security Council. Such positions should be analyzed in light of the code of ethics for lawyers, which prohibit an attorney from providing counsel or assistance to a client in connection with conduct that the lawyer knows or believes to be unlawful. This is said to be true even in cases where there is some support for an argument that the conduct is legal. Ultimately, individual service members-whether privates or generals—are not legally compelled to follow an unlawful order. If they do, it is well established that the defense of “superior orders” will provide little to no help, particularly in cases where the act in question is blatantly or manifestly unlawful.
- Danner, Mark. Torture and Truth: America, Abu Ghraib, and the War on Terror. New York: New York Review of Books, 2004.
- Graveline, Christopher and Clemens, Michael. The Secrets of Abu Ghraib Revealed: American Soldiers on Trial. Washington, DC: Potomac Books, 2010.
- Levinson, Sanford, ed. Torture: A Collection. New York: Oxford University Press, 2006.
- Strasser, Steven. The Abu Ghraib Investigations: The Official Independent Panel and Pentagon Reports on the Shocking Prisoner Abuse in Iraq. Jackson, NY: Public Affairs, 2004.
- Taguba, Antonio. The Taguba Report on Treatment of Abu Ghraib Prisoners in Iraq. New York: Cosimo Reports, 2004.
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