May 5, 2004

Torturing Hearts and Minds

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U.S. soldiers who fought in Vietnam were trained to think of the North Vietnamese as “gooks.” The objectification of the non-white enemy made it more palatable to kill and abuse them. American troops and mercenaries in Iraq likewise objectified their Iraqi prisoners when they sexually abused and sadistically humiliated them in the Abu Ghraib prison near Baghdad. One U.S. official, who told the Los Angeles Times that 50-100 Iraqis died in U.S. custody last year, said, “There was a mentality that the people we’re in charge of are not humans.”

Graphic photographs, which the Defense Department finally allowed CBS to release after two weeks of keeping them under wraps, depict Americans posing, laughing, pointing or giving the thumbs-up to the mistreatment of nude Iraqis. But although the Bush administration claims these are isolated incidents, they were just the tip of the iceberg.

An Army report found “systemic and illegal abuse,” including “numerous incidents of sadistic, blatant and wanton criminal abuses.” It lists numerous examples of physical and sexual abuse, including “sodomizing a detainee with a chemical light and perhaps a broomstick,” and “positioning a naked detainee on a box with a sandbag on his head, and attaching wires to his fingers, toes and penis to stimulate electric torture.”

These actions are not only offensive to human dignity; they violate the Geneva Convention, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The United States has ratified both of these treaties, which makes them part of the Supreme Law of the U.S. under the Constitution.

Six American soldiers have been charged with crimes under the Uniform Code of Military Justice. The charges include indecent acts, ordering detainees to publicly masturbate, maltreatment, non-physical abuse, piling inmates into nude pyramids and taking pictures of them nude, battery, shoving and stepping on detainees, dereliction of duty, and ordering detainees to strike each other.

The Third Geneva Convention requires that prisoners of war be treated humanely. They must be protected from violence, intimidation, insults and public curiosity. Their honor must be respected. Even if the Iraqis were not considered prisoners of war, they could not be subjected to physical or moral coercion to obtain information from them, under the Fourth Geneva Convention, which protects civilians in time of war. Torture and inhuman treatment constitute grave breaches of the Geneva Conventions, which are considered war crimes.

These six soldiers will not face prosecution for war crimes in the International Criminal Court, however. The court’s statute is premised on the principle of complementarity. This means that if the alleged perpetrator’s country of origin prosecutes him or her, the international court would not have jurisdiction. The U.S. military is preferring charges against the soldiers, which might satisfy that requirement. Additionally George W. Bush has denounced the International Criminal Court, presumably to insulate American soldiers and leaders from just this type of war crimes prosecution.

The Convention Against Torture prohibits the intentional infliction of severe pain or suffering for the purpose of obtaining information or a confession, when inflicted, instigated or consented to by a public official or one acting in an official capacity. No exceptional circumstances, including a state of war, will justify the use of torture.

The tortured Iraqi prisoners would have a cause of action in U.S. courts under the War Crimes Act of 1996, which provides for life imprisonment for members of U.S. armed forces or U.S. nationals who commit war crimes. The Act carries the death penalty when the victim dies. There is evidence that at least one Iraqi died while being interrogated at Abu Ghraib prison.

Army Reserve Staff Sgt. Chip Frederick, one of those charged, intimated that force was used during interrogations of Iraqi prisoners. He wrote, “We help getting them to talk with the way we handle them … We’ve had a very high rate with our style of getting them to break. They usually end up breaking within hours.”

Frederick claims he never had the opportunity to read the Geneva Convention, which prohibits the infliction of physical or mental torture, or any other form of coercion, on prisoners of war to secure information from them. Military intelligence officers, wrote Frederick, “encouraged us, and told us, ‘great job,’ that they were now getting positive results and information.” Frederick claims he questioned the harsh treatment of Iraqis, but “the answer I got was this is how military intelligence wants it done.” Yet Frederick referred to Iraqi men as “animals,” according to a witness in an April military court hearing in Iraq.

Frederick will not likely prevail by arguing that he was just following orders, which Lt. William Calley claimed unsuccessfully in his murder trial. Calley was prosecuted for his part in the My Lai Massacre during the Vietnam War, where hundreds of unarmed old men, women and children were killed by American soldiers. He was convicted of premeditated murder. Calley’s superior officers, however, were never charged. Many think Calley was scapegoated to save senior officers from prosecution. But he was paroled after serving only three years of his life sentence.

None of the U.S. commanding officers at the Iraqi prison has yet been prosecuted. Brig. Gen. Janis Karpinski of the Army Reserve, who was in charge of the soldiers photographed abusing the Iraqi prisoners, denies any knowledge of the mistreatment.

The well-established doctrine of command responsibility, enshrined in both the Nuremberg Tribunal and the International Criminal Court’s statute, as well as in U.S. military law, provides criminal liability for commanders whose underlings commit war crimes. Even if the superior officer did not personally carry out the criminal acts, she would be liable if she knew or should have known of the conduct, yet failed to take reasonable measures to prevent or repress the criminal behavior.

Karpinski acknowledges that she “probably should have been more aggressive” about visiting the cellblock in question. Military intelligence officers had encouraged Karpinski not to visit, and excluded the International Committee of the Red Cross from the cellblock where the atrocities occurred. Karpinski’s lawyer claims that Karpinski is being made a scapegoat for military intelligence officers. But if Karpinski were criminally charged, a military jury might find she should have known something untoward was happening when military intelligence went to great lengths to deny her access to a cellblock under her command.

Indeed, the Army report “found particularly disturbing” Karpinski’s “complete unwillingness to either understand or accept that many of the problems inherent in the 800th M.P. Brigade were caused or exacerbated by poor leadership and the refusal of her command to both establish and enforce basic standards and principles among its soldiers.”

The report also noted that one civilian interrogator who was a contractor [i.e., mercenary], “clearly knew his instructions” to the military police constituted physical abuse. Unfortunately, our military law has no jurisdiction over the 15,000-20,000 mercenaries serving in Iraq, one of whom allegedly raped a young male prisoner. Another Iraqi prisoner reported, “they covered all the doors with sheets. I heard the screaming … and the female soldier was taking pictures” during the alleged rape.

The treatment of Iraqi prisoners resembles the treatment of prisoners being held by the American military at Guantanamo Bay, Cuba. Thousands of Iraqis have been incarcerated for months on suspicion of being an “imperative threat to security.” More than 600 men and boys have been held for two years at Guantanamo with no criminal charges against them.

Some prisoners released from Guantanamo reported interrogations “like torture,” the use of drugs “that made us senseless,” being tied to a post and having rubber bullets fired at them, and being made to kneel cruciform in the sun until they collapsed. Retired federal Judge John G. Gibbons, representing those still held at Guantanamo, told the Supreme Court two weeks ago that Guantanamo is a “lawless enclave” – much like the Abu Ghraib prison in Iraq.

Parallels between Guantanamo and Abu Ghraib are not coincidental. Karpinski reported that a team of military intelligence officers from the Guantanamo prison arrived at Abu Ghraib a month before the photographed abuses. “Their main and specific mission,” she said, “was to get the interrogators – give them new techniques to get more information from detainees.”

The Ninth U.S. Circuit Court of Appeals, which said last year that the Guantanamo prisoners are entitled to challenge their detention in U.S. courts, was concerned at the government’s assertion that the prisoners should have no judicial recourse even if they were claiming the government subjected them to acts of torture or summary execution. “To our knowledge,” the Ninth Circuit wrote, “prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition.”

As increasing numbers of people continue to die in the occupied territory of Iraq, outrage in the Arab world is growing. State Department spokesman Richard Boucher, however, “was not too concerned” about whether the allegations of torture at Abu Ghraib prison undermined U.S. credibility and standing with the Arab countries.

The utter disdain the Bush administration has shown for the human rights of its prisoners and the rule of law belies Bush’s claims that he stands for human dignity and freedom. The U.S. government aimed to win the “hearts and minds” of the Vietnamese people as it rained bombs down on them. It will be no more successful at winning the hearts of minds of the Iraqis, as it bombards Fallujah to avenge the deaths of four mercenaries, and its troops and mercenaries torture Iraqi prisoners.