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Command’sResponsibilityDetainee Deaths in U.S. Custody in Iraq and AfghanistanWritten by Hina Shamsi and Edited by Deborah PearlsteinFebruary 2006
Table of ContentsI. Introduction................................................................ 1II. Homicides: Death by Torture, Abuse or Force ......... 5Twelve Individual Cases Profiled.................... 6III. Death by Officially Unknown, “Natural”or Other Causes .................................................... 21Nine Individual Cases Profiled...................... 21IV. Failures in Investigation ........................................ 29V. Failure of Accountability......................................... 35VI. The Path Ahead .................................................... 41VII. Appendices .......................................................... 43VIII. Endnotes.......................................................... 103
A Human Rights First Report
About UsHuman Rights First is a leading human rights advocacy organiza-tion based in New York City and Washington, DC. Since 1978, wehave worked in the United States and abroad to create a secureand humane world – advancing justice, human dignity, andrespect for the rule of law. All of our activities are supported byprivate contributions. We accept no government funds.
AcknowledgementsThis report was written by Hina Shamsi and edited byDeborah Pearlstein.Others who contributed to the report are Maureen Byrnes,Avi Cover, Miriam Datskovsky, Ken Hurwitz, Allison Johnson,Priti Patel, Michael Posner, and Lauren Smith. Michael Russomade substantial contributions at all stages of research andreport-writing.Human Rights First would like to thank the many former militaryofficers and other experts who generously provided insights onaspects of the report.Human Rights First gratefully acknowledges the generous supportof the following: Anonymous (2); Arca Foundation; The AtlanticPhilanthropies; The David Berg Foundation; Joan K. Davidson(The J.M. Kaplan Fund); Charles Lawrence Keith and Clara MillerFoundation; The Elysium Foundation; FJC – A Foundation of DonorAdvised Funds; Florence Baker Martineau Foundation;Ford Foundation; The Arthur Helton Fellowship; Herb BlockFoundation; JEHT Foundation; John D. & Catherine T. MacArthurFoundation; John Merck Fund; The Kaplen Foundation; MerlinFoundation; Open Society Institute; The Overbrook Foundation;Puget Sound Fund of Tides Foundation; Rhodebeck CharitableTrust; The Paul D. Schurgot Foundation, Inc.; TAUPO CommunityFund of Tides Foundation; The Oak Foundation.Cover design: Sarah GrahamCover photo: Mark Wilson/Getty Images
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Command’s Responsibility documents a dozen brutal deaths as the resultof the most horrific treatment. One such incident would be an isolatedtransgression; two would be a serious problem; a dozen of them is policy.The law of military justice has long recognized that military leaders areheld responsible for the conduct of their troops. Yet this report alsodocuments that no civilian official or officer above the rank of majorresponsible for interrogation and detention practices has been charged inconnection with the torture or abuse-related death of a detainee in U.S.custody. And the highest punishment for anyone handed down in the caseof a torture-related death has been five months in jail. This is notaccountability as we know it in the United States.John D. HutsonRear Admiral (Ret.), JAGC, USN
The torture and death catalogued in excruciating detail by this importantHuman Rights First report did not happen spontaneously. They are theconsequence of a shocking breakdown of command discipline on the partof the Army’s Officer Corps. It is very clear that cruel treatment ofdetainees became a common Army practice because generals andcolonels and majors allowed it to occur, even encouraged it. What isunquestionably broken is the fundamental principle of commandaccountability, and that starts at the very top. The Army exists, not just towin America’s wars, but to defend America’s values. The policy andpractice of torture without accountability has jeopardized both.David R. IrvineBrig. Gen. (Ret.) USA
Command’s Responsibility — 1
I. IntroductionDo I believe that [abuse] may have hurt us in winning the hearts and minds of Muslims aroundthe world? Yes, and I do regret that. But one of the ways we address that is to show the worldthat we don’t just talk about Geneva, we enforce Geneva . . . . [T]hat’s why you have these mili-tary court-martials; that’s why you have these administrative penalties imposed upon thoseresponsible because we want to find out what happened so it doesn’t happen again. And ifsomeone has done something wrong, they’re going to be held accountable.U.S. Attorney General Alberto GonzalesConfirmation Hearings before the Senate Judiciary CommitteeJanuary 6, 2005
Basically [an August 30, 2003 memo] said that as far as they [senior commanders] knew therewere no ROE [Rules of Engagement] for interrogations. They were still struggling with the defi-nition for a detainee. It also said that commanders were tired of us taking casualties and they[told interrogators they] wanted the gloves to come off . . . . Other than a memo saying that theywere to be considered “unprivileged combatants” we received no guidance from them [on thestatus of detainees].Chief Warrant Officer Lewis WelshoferTestifying during his Court Martial for Death of Iraqi General Abed Hamed MowhoushJanuary 19, 2006
Since August 2002, nearly 100 detainees have diedwhile in the hands of U.S. officials in the global “war onterror.” According to the U.S. military’s own classifica-tions, 34 of these cases are suspected or confirmedhomicides; Human Rights First has identified another11 in which the facts suggest death as a result ofphysical abuse or harsh conditions of detention. Inclose to half the deaths Human Rights First surveyed,the cause of death remains officially undetermined orunannounced. Overall, eight people in U.S. custodywere tortured to death.Despite these numbers, four years since the first knowndeath in U.S. custody, only 12 detainee deaths haveresulted in punishment of any kind for any U.S. official.Of the 34 homicide cases so far identified by themilitary, investigators recommended criminal charges in
fewer than two thirds, and charges were actuallybrought (based on decisions made by command) inless than half. While the CIA has been implicated inseveral deaths, not one CIA agent has faced a criminalcharge. Crucially, among the worst cases in this list –those of detainees tortured to death – only half haveresulted in punishment; the steepest sentence foranyone involved in a torture-related death: five monthsin jail.It is difficult to assess the systemic adequacy ofpunishment when so few have been punished, andwhen the deliberations of juries and commanders arelargely unknown. Nonetheless, two patterns clearlyemerge: (1) because of investigative and evidentiaryfailures, accountability for wrongdoing has been limitedat best, and almost non-existent for command; and (2)
A Human Rights First Report
2 — I. Introduction
commanders have played a key role in underminingchances for full accountability. In dozens of casesdocumented here, grossly inadequate reporting,investigation, and follow-through have left no one at allresponsible for homicides and other unexplaineddeaths. Commanders have failed both to provide troopsclear guidance, and to take crimes seriously byinsisting on vigorous investigations. And commandresponsibility itself – the law that requires commandersto be held liable for the unlawful acts of their subordi-nates about which they knew or should have known –has been all but forgotten.The failure to deal adequately with these cases hasopened a serious accountability gap for the U.S.military and intelligence community, and has produceda credibility gap for the United States – betweenpolicies the leadership says it respects on paper, andbehavior it actually allows in practice. As long as theaccountability gap exists, there will be little incentive formilitary command to correct bad behavior, or for civilianleadership to adopt policies that follow the law. As longas that gap exists, the problem of torture and abuse willremain.This report examines how cases of deaths in custodyhave been handled. It is about how and why this“accountability gap” between U.S. policy and practicehas come to exist. And it is about why ensuring thatofficials up and down the chain of command bearresponsibility for detainee mistreatment should be a toppriority for the United States.
The Cases to DateThe cases behind these numbers have names andfaces. This report describes more than 20 cases indetail, to illustrate both the failures in investigation andin accountability. Among the cases is that of Manadelal-Jamadi, whose death became public during the AbuGhraib prisoner-abuse scandal when photographsdepicting prison guards giving the thumbs-up over hisbody were released; to date, no U.S. military orintelligence official has been punished criminally inconnection with Jamadi’s death.The cases also include that of Abed Hamed Mow-housh, a former Iraqi general beaten over days by U.S.Army, CIA and other non-military forces, stuffed into asleeping bag, wrapped with electrical cord, andsuffocated to death. In the recently concluded trial of alow-level military officer charged in Mowhoush’s death,the officer received a written reprimand, a fine, and 60days with his movements limited to his work, home,and church.And they include cases like that of Nagem SadoonHatab, in which investigative failures have madeaccountability impossible. Hatab, a 52-year-old Iraqi,was killed while in U.S. custody at a holding campclose to Nasiriyah. Although a U.S. Army medicalexaminer found that Hatab had died of strangulation,the evidence that would have been required to secureaccountability for his death – Hatab’s body – wasrendered unusable in court. Hatab’s internal organswere left exposed on an airport tarmac for hours; in theblistering Baghdad heat, the organs were destroyed;the throat bone that would have supported the Armymedical examiner’s findings of strangulation was neverfound.Although policing crimes in wartime is always challeng-ing, government investigations into deaths in custodysince 2002 have been unacceptable. The casesdiscussed in this report include incidents where deathswent unreported, witnesses were never interviewed,evidence was lost or mishandled, and record-keepingwas scattershot. They also include investigations thatwere cut short as a result of decisions by commanders– who are given the authority to decide whether and towhat extent to pursue an investigation – to rely onincomplete inquiries, or to discharge a suspect beforean investigation can be completed. Given the extent ofthe non-reporting, under-reporting, and lax recordkeeping to date, it is likely that the statistics reportedhere, if anything, under-count the number of deaths.
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Command’s Responsibility — 3
Among our key findings:•Commanders have failed to report deaths ofdetainees in the custody of their command, re-ported the deaths only after a period of days andsometimes weeks, or actively interfered in efforts topursue investigations;Investigators have failed to interview key wit-nesses, collect useable evidence, or maintainevidence that could be used for any subsequentprosecution;Record keeping has been inadequate, furtherundermining chances for effective investigation orappropriate prosecution;Overlapping criminal and administrative investiga-tions have compromised chances foraccountability;Overbroad classification of information and otherinvestigation restrictions have left CIA and SpecialForces essentially immune from accountability;Agencies have failed to disclose critical informa-tion, including the cause or circumstance of death,in close to half the cases examined;Effective punishment has been too little andtoo late.
Closing the Accountability GapThe military has taken some steps toward correctingthe failings identified here. Under public pressurefollowing the release of the Abu Ghraib photographs in2004, the Army reopened over a dozen investigationsinto deaths in custody and conducted multiple investi-gation reviews; many of these identified serious flaws.The Defense Department also “clarified” some existingrules, reminding commanders that they were requiredto report “immediately” the death of a detainee toservice criminal investigators, and barring release of abody without written authorization from the relevantinvestigation agency or the Armed Forces MedicalExaminer. It also made the performance of an autopsythe norm, with exceptions made only by the ArmedForces Medical Examiner. And the Defense Depart-ment says that it is now providing pre-deploymenttraining on the Geneva Conventions and rules ofengagement to all new units to be stationed in Iraq andresponsible for guarding and processing detainees.But these reforms are only first steps. They have notaddressed systemic flaws in the investigation ofdetainee deaths, or in the prosecution and punishmentof those responsible for wrongdoing. Most important,they have not addressed the role of those leaders whohave emerged as a pivotal part of the problem –military and civilian command. Commanders are theonly line between troops in the field who need clear,usable rules, and policy-makers who have providedbroad instructions since 2002 that have been at worstunlawful and at best unclear. Under today’s militaryjustice system, commanders also have broad discretionto insist that investigations into wrongdoing be pursued,and that charges, when appropriate, be brought. Andcommanders have a historic, legal, and ethical duty totake responsibility for the acts of their subordinates. Asthe U.S. Supreme Court has recognized since WorldWar II, commanders are responsible for the acts oftheir subordinates if they knew or should have knownunlawful activity was underway, and yet did nothing tocorrect or stop it. That doctrine of command responsi-bility has yet to be invoked in a single prosecutionarising out of the “war on terror.”Closing this accountability gap will require, at aminimum, a zero-tolerance approach to commanderswho fail to take steps to provide clear guidance, andwho allow unlawful conduct to persist on their watch.Zero tolerance includes at least this:
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A Human Rights First Report
4 — I. Introduction
First, the President, as Commander-in-Chief,should move immediately to fully implement theban on cruel, inhuman and degrading treatmentpassed overwhelmingly by the U.S. Congressand signed into law on December 30, 2005.Fullimplementation requires that the President clarify hiscommitment to abide by the ban (which was called intoquestion by the President’s statement signing the billinto law). It also requires the President to instruct allrelevant military and intelligence agencies involved indetention and interrogation operations to review andrevise internal rules and legal guidance to make surethey are in line with the statutory mandate.
Finally, Congress should at long last establishan independent, bipartisan commission toreview the scope of U.S. detention and interroga-tion operations worldwide in the “war on terror.”Such a commission could investigate and identify thesystemic causes of failures that lead to torture, abuse,and wrongful death, and chart a detailed and specificpath going forward to make sure those mistakes neverhappen again. The proposal for a commission hasbeen endorsed by a wide range of distinguishedAmericans from Republican and Democratic membersof Congress to former presidents to leaders in the U.S.military. We urge Congress to act without further delay.
Second, the President, the U.S. military, andrelevant intelligence agencies should takeimmediate steps to make clear that all acts oftorture and abuse are taken seriously – not fromthe moment a crime becomes public, but fromthe moment the United States sends troops andagents into the field.The President should issueregular reminders to command that abuse will not betolerated, and commanders should regularly givetroops the same, serious message. Relevant agenciesshould welcome independent oversight – by Congressand the American people – by establishing a central-ized, up-to-date, and publicly available collection ofinformation about the status of investigations andprosecutions in torture and abuse cases (including trialtranscripts, documents, and evidence presented), andall incidents of abuse. And the Defense and JusticeDepartments should move forward promptly with long-pending actions against those involved in cases ofwrongful detainee death or abuse.
This reportunderscores what a growing number ofAmericans have come to understand. As a distinguishedgroup of retired generals and admirals put it in aSeptember 2004 letter to the President: “Understanding whathas gone wrong and what can be done to avoid systemicfailure in the future is essential not only to ensure that thosewho may be responsible are held accountable for any wrong-doing, but also to ensure that the effectiveness of the U.S.military and intelligence operations isnot compromised by an atmosphere of permissiveness,ambiguity, or confusion. This is fundamentally acommand responsibility.” It is the responsibility ofAmerican leadership.
Third, the U.S. military should make good on theobligation of command responsibility by devel-oping, in consultation with congressional,military justice, human rights, and other advi-sors, a public plan for holding all those whoengage in wrongdoing accountable.Such a planmight include the implementation of a single, high-levelconvening authority across the service branches forallegations of detainee torture and abuse. Such aconvening authority would review and make decisionsabout whom to hold responsible; bring uniformity,certainty, and more independent oversight to theprocess of discipline and punishment; and makepunishing commanders themselves more likely.
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II. Homicides: Death by Torture, Abuse or ForceAn American soldier told us of our father’s death. He said: “Your father died during the interro-gation.” So we thought maybe it was high blood pressure under personal stress. This wouldhappen in American detention centers. People would die of high blood pressure. But afterwardsthe people who were imprisoned, detained with him said: “No. They would torture him and theyassigned American soldiers to him especially for the torture. He died during the torture.” . . .Honestly, my mother, after the case, after they brought my father dead, she entered a state wecan say a coma or like a coma. She withdrew from life.Hossam Mowoush (in translation)Son of Iraqi Maj. Gen. Abed Hamed Mowhoush,1Killed in U.S. Custody November 26, 2003
Of the close to 100 deaths in U.S. custody in the global“war on terror,”2at least a third were victims of homi-cide at the hands of one or more of their captors.3Atleast eight men, and as many as 12, were tortured todeath.4The homicides also include deaths that themilitary initially classified as due to “natural causes,”and deaths that the military continues to classify as“justified.” This chapter briefly reviews the facts of someof these worst cases, and the consequences – or not –for those involved.
Definition of a DetaineeIn this report, we include any death of a detainee under effectiveU.S. control as a “death in custody.” We adopt the definition of“detainee” used by the U.S. Army Criminal Investigative Command(CID) – the Army’s agency for investigating crimes committed bysoldiers – “any person captured or otherwise detained by an armedforce.”5For the purposes of this report, we do not include peoplekilled in the course of combat or as a result of injuries sustainedduring combat, or persons shot at checkpoints when it is allegedthat they disobeyed orders to stop their vehicle. We do includeprisoners in U.S. military detention centers, as well as those whohave been killed while being interrogated in their homes, or shot atthe point of their capture, after surrendering to U.S. troops. Once aperson has been captured, the U.S. military or intelligence agencyassumes control over him, and can restrain him against his will. It isunder these circumstances that American law and values are mostacutely tested.
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6 — II. Homicides: Death by Torture, Abuse or Force
PROFILE: HOMICIDESo then the interrogator came that used to interrogate [me] in the Baghdadi jail. . . . He told me:“We are going to let you see your father.” Of course this was a point of relief. [Mohammed wastaken by U.S. forces to the facility where his father was held, the “Blacksmith Hotel.”]. . . . Theytook me to my father’s room. He was under very tight security. I looked in and I saw him. Helooked completely drained and distraught and the impacts or signs of the torture were clear onhim. His clothes were old and torn. He was really upset. When I first saw him I was over-whelmed and had a breakdown. I started crying and I embraced him and I told him: “Don’tworry. I am brave. I am going to be able to handle these circumstances like you taught me.” Atthis instant the interrogator stormed in. He grabbed me and I tried to remain seated . . . . So hethreatened my father that if he didn’t speak he would turn me over to the men who interrogatedmy father and do to me what they did to him or he would have me killed in an execution opera-tion . . . . So they took me to him and they said: “This is your son, we are going to execute him ifyou don’t confess.” My father didn’t confess. One of them pulled me to a place where my fathercouldn’t see. He pulled his gun, he took it out of the place where it was kept and he shot a fireinto the sky. And he hit me a hit so that I would cry out. So, this moment there was at the placewhere I was, blood, I mean drops of blood. They [then] took [me] to the side and they broughtmy father and said: “This is your son’s blood. We killed him. So, it is better for you to confesslest this happen to the rest of your sons.” My father, when he saw the blood, he must havethought that I had been killed. At this moment, he fell to the ground.Mohammed Mowoush (in translation), describing hislast sight of his father, Iraqi Maj. Gen. Abed Hamed6Mowhoush. Killed in U.S. Custody November 26, 2003
Abed Hamed MowhoushAbed Hamed Mowhoush turned himself over to U.S.forces in Iraq on November 10, 2003,7about a monthbefore U.S. forces captured ousted Iraqi leaderSaddam Hussein, and at a time when pressure onArmy intelligence to produce information was at itsheight. At Forward Operating Base (“FOB”) Tiger,where Mowhoush appeared, the U.S. Army had set upa base camp and prison operations earlier in the year;the facility was near the town of Al Qaim at the westernedge of Anbar province, about a mile from the Syrianborder.8By mid-October 2003, FOB Tiger was staffedwith about 1,000 soldiers from the 1st Squadron of the3rd Armored Cavalry Regiment (“ACR”), based in FortCarson, Colorado Springs, Colorado.9Their missionincluded the detention and interrogation of capturedprisoners, a mission that took on added importance thatNovember, as U.S. forces picked up Iraqi menand boys in the region in an effort to quell a risinginsurgency.According to ChiefWarrant OfficerLewis Welshofer,who was deployedto Iraq in March2003 as part of themilitary intelligencecompany of the 3rdMajor General Abed Hamed10ACR, guidelinesMowhoush with a grandsonon how to conductprisoner interrogations at FOB Tiger were sparse.11Welshofer described a captain’s memo he had receivedin late August 2003, which stated that there were nospecific rules of engagement for interrogations in Iraq,and that U.S. Army Central Command officials were stillstruggling with the basic definition of a “detainee.”12Although specific rules were hard to come by, com-mand was clear that intelligence to date wasinadequate and, as Welshofer put it: “[t]hey werelooking for ideas outside the box.”13In the meantime,captured detainees were to be considered “unprivileged
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Command’s Responsibility — 7
combatants”14– a status that the Bush Administrationhad separately suggested meant detainees were not tobe afforded the protections of the Geneva Conven-tions.15Welshofer understood this guidance to includedetainees like Mowhoush,16a former uniformed MajorGeneral in the Iraqi Army,17and a soldier whom in pastconflicts the United States would have consideredpresumptively under Geneva protections.18Soon after, a September 10, 2003 memo from Lt. Gen.Ricardo S. Sanchez, then U.S. Army Commander ofthe Coalition Joint Task Force in Iraq, underscored withnew specificity the confusion over the applicability ofGeneva protections in Iraq.19Even as he recognizedthat other countries might view certain practices asinconsistent with the Geneva Conventions, GeneralSanchez authorized such harsh interrogation tech-niques as sleep and environmental manipulation, theuse of aggressive dogs, and the use of stress posi-tions.20Welshofer testified later that the meaning of“stress positions” had never been explained in his Armytraining back in the States;21Welshofer was left largelyto his own devices to fill in the meaning of the term.According to Welshofer, the Sanchez memo (disclosedpublicly for the first time in January 2006) was the onlyguidance on permissible interrogation techniques inIraq he ever received.22
Still unsatisfied with Mowhoush’s answers in interroga-tion, Welshofer’s unit brought Mowhoush with themwhen they moved a few days later from FOB Tiger to aconverted railroad station called the Blacksmith Hotel.28The “Hotel” was a makeshift facility, set up to handle aninflux of Iraqi prisoners anticipated from sweepsintended to stop the growing insurgency.29There, onNovember 24, Welshofer called in interrogationreinforcements.30According to military documents andtrial testimony, Welshofer engaged CIA and possiblyArmy Special Forces personnel – together with a“Scorpion” team of Iraqi paramilitary forces on the CIApayroll – to ratchet up the pressure.31Three separatesoldiers eventually recounted what they saw andheard.32The new team beat Mowhoush with sledge-hammer handles;33as one soldier testified, eight to tenof the non-military forces “interrogate[d] Mowhoush and‘beat the crap’ out of him.”34Specialist Jerry Loper, aguard at the Blacksmith Hotel, was standing outside theinterrogation room the night of November 24 whensome of the beatings were going on, and describedhearing the thudding sound of Mowhoush being hit. “Itwasn’t like they were hitting a wall,” said Loper, “[t]herewere loud screams.”35After Mowhoush’s death, anArmy autopsy revealed the effects of the beatings:Mowhoush had “massive” bruising and five brokenribs.36The next day, Welshofer interrogated Mowhoush again,this time on the roof of the interrogation building. Here,in the absence of any more specific instructions forinterrogation techniques, Welshofer reached backbeyond his basic training in the Army, to his ownservice as a trainer at a military school in Hawaii whereU.S. service members are coached on what they mightface if there were to fall into enemy hands.37Themilitary’s “SERE” courses (standing for Survival,Evasion, Resistance, Escape) were based on studiesof North Korean and Vietnamese efforts to breakAmerican prisoners; the courses aimed to subjecttrainees to the brutal detention conditions they wouldhave faced at the hands of the United States’ formerenemies.38Among other things, the courses put troopsthrough prolonged isolation, sleep deprivation, andpainful body positions; studies of the effects on troopssubjected to these techniques showed most sufferingfrom overwhelming stress, despair, and intenseanxiety, and some from hallucinations and delusions aswell.39Internal FBI memos and press reports havepointed to SERE training as the basis for some of theharshest techniques authorized for use on detainees bythe Pentagon in 2002 and 2003.40When Welshofer wasasked during his court martial whether anyone told him
The InterrogationsBy the time Mowhoush, 57, arrived at FOB Tiger inmid-November, his four sons had been in U.S. custodyfor approximately 11 days, held in a prison outsideBaghdad.23According to one of them, Hossam, U.S.forces made clear to the sons in the course of interro-gations that they had been arrested for the purpose ofmaking sure General Mowhoush turned himself in.24According to the son, Mowhoush arrived at the baseexpecting that he would be able to set his sons free.25But Mowhoush’s sons remained in detention; one ofthem would later play a part in U.S. efforts to extractfrom their father what information they could.Chief Welshofer was among the first interrogatorsMowhoush would see. According to Welshofer, hisinterrogation of Mowhoush on the day of Mowhoush’sarrival on November 10 was limited to direct questions– a two-hour affair that passed with little of conse-quence.26By the end of that week, though, Welshoferhad begun to take a different approach. Welshofer tookMowhoush, his hands bound, before an audience offellow detainees and slapped him – an attempt,according to Welshofer, to show Mowhoush who was incharge.27
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8 — II. Homicides: Death by Torture, Abuse or Force
that SERE techniques were not to be used in Iraq,Welshofer was unequivocal: “No sir.”41With these techniques in his interrogator’s mind,Mowhoush’s next session included having his handsbound, being struck repeatedly on the back of his arms,in the painful spot near the humerus, and being dousedwith water42– all these, according to Welshofer andothers who later testified, drawn from the lessons oftechniques learned in SERE.43Later that evening, ChiefWelshofer arranged for a short meeting betweenMowhoush and his youngest son, Mohammed, then 15years old; Welshofer hoped the meeting would compelMowhoush to convey more useful information.44Helater described Mowhoush as being moved to tearsupon seeing his son.45According to Mohammedthough, the meeting was more than a conversation; ininterviews with Human Rights First, Mohammedexplained that U.S. personnel made Mowhoush believehis son would be executed if he did not speak to theirsatisfaction, and soldiers fired a bullet into the groundnear Mohammed’s head within earshot but just beyondthe eyesight of Mowhoush.46Mohammed reports thiswas the last time he saw his father alive.47By November 26, Welshofer was ready to try yetanother technique – stuffing his subject into a sleepingbag until Mowhoush was prepared to respond.48Welshofer had already proposed the sleeping bagtechnique to his Company Commander, Major JessicaVoss, who authorized its use.49Much later, trialtestimony would make clear that the technique hadbeen used on at least 12 detainees.50It provedcatastrophically ineffective in Mowhoush’s case. Duringhis final interrogation, Mowhoush was shoved head-firstinto the sleeping bag, wrapped with electrical cord, androlled from his stomach to his back. Welshofer sat onMowhoush’s chest and blocked his nose and mouth.51At one point, according to Loper, Mowhoush started toclinch and kick his legs, “almost like he was beingelectrocuted.”52It was at this point Mowhoush gave out,dying (according to the autopsy report) of asphyxia dueto smothering and chest compression.53The day after his death, the U.S. military issued a pressrelease stating that Mowhoush had died of naturalcauses.54
Taking AccountDespite the brutality of Mowhoush’s death, and thelikely involvement of officials from the CIA, only oneindividual, Chief Welshofer, has faced court martial forhis actions. Over the course of a 6-day trial in Colo-rado, more than two years after Mowhoush’s finalinterrogation, a 6-member Army jury heard testimonythat civilian leaders in the Administration had instructedthat Geneva Convention protections against cruel andinhuman treatment would not apply in this conflict; thatthe U.S. commanding general in Iraq, General San-chez, had authorized “stress positions” ininterrogation55; and that, according to Welshofer and hisown commanding officer, Major Voss, stuffing adetainee in a sleeping bag was widely understood tofall within that general authorization.56Jurors also heardtestimony, some closed to the public, of the involve-ment of the CIA and Special Forces, as well as of theIraqi paramilitary group, the “Scorpions.”57Secret Armydocuments had long noted this involvement: “[T]hecircumstances surrounding the death are furthercomplicated due to Mowhoush being interrogated andreportedly beaten by members of a Special Forcesteam and other government agency (OGA) employeestwo days earlier.”58And jurors heard Welshofer’s owntearful testimony – that he was trying to be a loyalsoldier, and trying to do his job.59Although he was originally charged with murder,Welshofer was convicted of lesser charges: negligenthomicide and negligent dereliction of duty.60Thatconviction carried a possible sentence of more thanthree years in prison, but Welshofer received a farmore lenient sentence from the Army jury: a writtenreprimand, a $6,000 fine, and 60 days with movementrestricted to his home, base, and church.61The others implicated in Mowhoush’s death have facedless. Chief Warrant Officer Jefferson Williams andSpecialist Jerry Loper, who were present duringMowhoush’s interrogation, were originally charged withmurder, but the charges were later dropped. Inexchange for testimony against Welshofer, Williams willreceive administrative (not criminal) punishment, andLoper will be tried in a summary proceeding rather thana full court martial.62Another soldier, Sgt. 1st ClassWilliam Sommer, had his murder charge dropped aswell and may receive nonjudicial punishment.63Nocharges have been brought (nor are charges expectedto be brought according to law enforcement andintelligence officials) against CIA personnel, andSpecial Forces Command determined (without publicexplanation) that none of their personnel were guilty ofwrongdoing.64Major Voss, the officer who commanded
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the Military Intelligence unit responsible for interrogat-ing Mowhoush, was reprimanded for her failure toprovide adequate supervision, but she was not chargedin the death.65The commander of the 3rd ACR from2002-2004 (including the period of Mowhoush’s death)was Colonel David A. Teeples.66At a preliminaryhearing in Welshofer’s case, Teeples testified to his
belief that the sleeping bag technique was approvedand effective;67Teeples was reportedly “reluctant” topress charges against Welshofer, despite the view ofmilitary lawyers that Welshofer should be prosecuted.68Teeples does not appear to have been disciplined inconnection with Mowhoush’s death.
Special Forces & the CIAThe involvement of special military forces and members of other governmental agencies in the interrogation and detention of detaineeshas raised serious concerns regarding proper investigative procedures and accountability. The Army’s CID has jurisdiction over crimescommitted by all U.S. Army personnel; CID’s Field Investigative Units are trained to conduct investigations that implicate classified activi-ties,69and individual detachments have investigated deaths in which Special Forces personnel played a part.70Yet it appears thatalternative investigative procedures have sometimes been used where Special Forces were involved. For example, in one case involvingthe 2ndBattalion of the 5thSpecial Forces Group, commanders conducted their own investigation and failed to inform CID of the death.71When CID did learn of the incident, it simply reviewed and approved the pre-existing inquiry – an inquiry that itself remains classified.72Brigadier General Richard Formica completed an investigation into allegations of detainee abuse in Iraq by Special Forces personnel, butthe Army has also classified the resulting report, refusing to release even a summary of its findings.73Deaths in which the CIA has been implicated (alone or jointly with Army Special Forces or Navy SEALS) have presented additionalproblems.74Such deaths are required to be investigated by the CIA Inspector General and, if cause exists, referred to the Department ofJustice for prosecution.75Yet while five of the deaths in custody analyzed by Human Rights First appear to involve the CIA,76only acontract worker associated with the CIA has to date faced criminal charges for his role in the death of detainees. Further, the CIA hassought to keep closed the courts-martial of Army personnel where CIA officers may be implicated,77and has in military autopsies classifiedthe circumstances of the death.78These efforts have encumbered the investigation and prosecution of both CIA officials and militarypersonnel.79Thus, for example, in the military trial of Navy SEAL Lt. Andrew Ledford, charged in connection with the death of detaineeManadel al-Jamadi, CIA representatives protested questions regarding the position of al-Jamadi’s body when he died, and the role ofwater in al-Jamadi’s interrogation; questions by defense lawyers were often prohibited as a result.80Finally, press reports suggest, theDepartment of Justice is unlikely to bring criminal charges against CIA employees for cases involving the death, torture, or other abuse ofdetainees, including the deaths of al-Jamadi and General Abed Hamed Mowhoush and a detainee whose name has not been made publicand who died of hypothermia at a CIA-run detention center in Afghanistan.81The Department of Justice has not made the reasons for itsdecisions known.Reports of internal efforts at the CIA to address detainee abuse by agents are less than encouraging. After completing a review in spring2004 of CIA detention and interrogation procedures in Afghanistan and Iraq, the CIA Inspector General made 10 recommendations forchanges, including more safeguards against abuse, to CIA Director Porter Goss.82Eight of the 10 have been “accepted,”83but thechanges did not apparently prevent consideration of a proposal for handling deaths of detainees in CIA custody. According to theWash-ington Post:“One proposal circulating among mid-level officers calls for rushing in a CIA pathologist to perform an autopsy and thenquickly burning the body.”84
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PROFILE: HOMICIDE
Abdul JameelLieutenant Colonel Abdul Jameel, a former officer inthe Iraqi army, was detained at a Forward OperatingBase near Al Asad, Iraq, and died there on January 9,2004.85He was 47 years old.86According to Pentagon documents obtained by theDenver Post,Jameel had been kept in isolation with hisarms chained to a pipe in the ceiling.87During aninterrogation by Army Special Forces soldiers, heallegedly lunged and grabbed the shirt of one soldierand was then beaten.88Three days later, Jameelescaped from his cell, but was recaptured.89During asubsequent interrogation session, Jameel refused hisinterrogators’ orders to stay quiet, and was put in a“stress position”: he was tied by his hands to the top ofhis cell door, then gagged.90Within five minutes, hewas dead.91A “senior Army legal official” admitted thatJameel had been “lifted to his feet by a baton held tohis throat,” causing a throat injury that “contributed” tohis death.92According to an autopsy conducted by the U.S. ArmedForces Medical Examiner’s Office and reviewed byHuman Rights First, Jameel’s death was a homicidecaused by “Blunt Force Injuries and Asphyxia”93– alack of oxygen.94The autopsy found “[t]he severe bluntforce injuries, the hanging position, and the obstructionof the oral cavity with a gag contributed to [his] death.”95The autopsy detailed evidence of additional abuseJameel suffered: a fractured and bleeding throat, morethan a dozen fractured ribs, internal bleeding, andnumerous lacerations and contusions all over hisbody.96Among the findings of the Army’s criminal investigatorswas that Jameel “was shackled to the top of a door-frame with a gag in his mouth at the time he lostconsciousness and became pulseless.”97Criminalinvestigators found probable cause to recommendprosecution of 11 soldiers – including members of the3rd Armored Cavalry Regiment (the same Regimentinvolved in the death of Iraqi Major General Mow-housh), as well as the Special Forces personnel – forcharges including negligent homicide, assault, andlying to investigators.98The investigation into Jameel’sdeath also examined CIA involvement.99The ArmySpecial Forces Command declined to follow therecommendations, and investigation findings of anyCIA involvement have not been publicly released.100Upon reviewing the case, Army commanders decidedthat the soldiers’ actions were at all points a lawfulresponse to Jameel’s “misconduct.”101The reasons forthe commanders’ decisions are unclear. The sameperson, Colonel David A. Teeples, was commander ofthe 3rd Armored Cavalry at the time of Jameel’s deathand also that of Iraqi Major General Abed Mowoush.102Because the killing was found to be justified, nodisciplinary action was taken.103
PROFILE: HOMICIDE
Fashad MohammedThe Armed Forces Medical Examiner’s report onautopsy number ME 04-309 reads: “This approximately27 year-old male civilian, presumed Iraqi national, diedin US custody approximately 72 hours after beingapprehended. By report, physical force was requiredduring his initial apprehension during a raid. During hisconfinement, he was hooded, sleep deprived, andsubjected to hot and cold environmental conditions,including the use of cold water on his body andhood.”104Although the autopsy described “multipleminor injuries, abrasions and contusions” and “bluntforce trauma and positional asphyxia,”105it found boththe cause of death and manner of death “undeter-mined.”106The autopsy, which was not conducted until threeweeks after Mohammed’s death,107is a drier version ofaccounts pieced together in subsequent inquiries.
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Mohammed was apparently apprehended by membersof Navy SEAL Team 7, which was operating with theCIA, in northern Iraq on or about April 2, 2004.108TheSEALS then brought Mohammed to an Army baseoutside Mosul.109The Navy SEALS who interrogatedMohammed subjected him to hooding, sleep depriva-tion, and exposure to extreme temperatures—allmethods that deviate from the techniques described inthe Army Field Manual on Intelligence Interrogation FM34-52, but that were approved by the Secretary ofDefense for use at Guantanamo,110and later authorizedin part by Lt. Gen. Ricardo S. Sanchez for use in Iraq.111A Pentagon official relates that after an interrogation,the SEALS let Mohammed sleep. He never woke up.112
We know very little about Mohammed’s last hours andthe military has released even less information about itsinvestigation into his death and charges broughtagainst those responsible. The most recent pressreports indicate that as many as three Navy SEALSwere charged with abusing Mohammed; chargesincluded assault with intent to cause death and seriousbodily harm, assault with a dangerous weapon,maltreatment of detainees, obstruction of justice, anddereliction of duty. Murder or manslaughter chargeswere not brought, reportedly because of lack ofevidence.113Human Rights First asked the Departmentof Defense on January 26, 2006 for an update on thestatus and outcome of any prosecutions in Moham-med’s case; as of February 10, 2006 we had receivedno response.
PROFILE: HOMICIDEAsphyxia is what he died from – as in a crucifixion.Dr. Michael Baden, Chief Forensic Pathologist, New YorkState Police, giving his opinion of the cause of Manadel114al-Jamadi’s death
Manadel al-JamadiAccording to press accounts, Manadel al-Jamadi, anIraqi citizen of unknown age, was captured and torturedto death in Abu Ghraib by Navy SEALS and CIApersonnel working closely together; he died onNovember 4, 2003.115The SEAL and CIA team thatcaptured al-Jamadi took turns punching, kicking andstriking him with their rifles after he was detained in asmall area in the Navy camp at Baghdad InternationalAirport known as the “Romper Room.”116A CIA securityguard later told CIA investigators that after al-Jamadiwas stripped and doused with water a CIA interrogatorthreatened him, saying: “I’m going to barbecue you ifyou don’t tell me the information.”117A Navy SEALreported that the CIA interrogator leaned into al-Jamadi’s chest with his forearm, and found a pressurepoint, causing al-Jamadi to moan in pain.118A govern-ment report states that another CIA security guard“recalled al-Jamadi saying, ‘I’m dying. I’m dying,’translated by the interpreter, to which the interrogatorreplied, ‘I don’t care,’ and, ‘You’ll be wishing you weredying.’”119When al-Jamadi was taken to Abu Ghraib, he was notentered on the prison rolls – he was a “ghost” de-tainee.120The intelligence agents took him to theshower room where,military policetestified, a non-covertCIA interrogator(identified as MarkSwanner byThe NewYorker)ordered themto shackle al-Jamadito a window about fivefeet from the floor, inCharles Graner next tothe corpse ofa posture known asManadel al-Jamadithe “Palestinianhanging,” making itimpossible for him to kneel or sit without hanging fromhis arms in pain.121Less than one hour later, Swannersummoned guards to re-position al-Jamadi, claimingthe detainee was not cooperating.122When the guardsarrived they found al-Jamadi’s corpse, hooded with asandbag and with his arms handcuffed behind his backand still shackled to the window – which was nowabove his head.123According to one of the guards,blood gushed from al-Jamadi’s mouth as the guardsreleased him and his arms were almost coming out oftheir sockets.124A CIA supervisor requested that al-
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12 — II. Homicides: Death by Torture, Abuse or Force
Jamadi’s body be held overnight and stated that hewould call Washington about the incident.125The nextmorning the “body was removed from Abu Ghraib on alitter, to make it appear as if he were only ill, so as notto draw the attention of the Iraqi guards and detain-ees.”126Al-Jamadi’s death became public during theAbu Ghraib prisoner-abuse scandal, after photographsof prison guards giving the thumbs-up over his bodywere released.127U.S. forces did not release al-Jamadi’s body to theInternational Committee of the Red Cross (“ICRC”) untilFebruary 11, 2004, more than three months after hisdeath.128The ICRC delivered the body to Baghdad’smortuary the same day, but one expert from Baghdad’smain forensic medico-legal institute said that therefrigeration of al-Jamadi’s body for that period made itdifficult for the Iraqis to establish the real cause ofdeath by autopsy.129An autopsy conducted by the U.S.military five days after al-Jamadi’s death had found thatthe cause of death was “Blunt Force Injuries Compli-cated by Compromised Respiration.”130The autopsyreport noted al-Jamadi had six broken ribs and agunshot wound to the spleen.131A medical examinerwho later examined the autopsy report at the request ofa lawyer for one of the SEALS and was informed of al-Jamadi’s shackling position gave the opinion that thelikely cause of his death was the hanging position,rather than beatings inflicted prior to his arrival at AbuGhraib.132According to Dr. Michael Baden, New YorkState police chief forensic pathologist, “asphyxia iswhat he died from – as in a crucifixion.”133Dr. EdmundDonahue, the president of the American Academy ofForensic Scientists, who reviewed the autopsy at therequest of National Public Radio, gave a similaropinion, saying: “When you combine [the hanging
position] with having a hood over your head and havingthe broken ribs, it’s fairly clear that this death wascaused by asphyxia because he couldn’t breatheproperly.”134During a later court martial proceeding, one Navy SEALtestified that he and his fellow SEALS were not trainedto deal with Iraqi prisoners.135Although Navy lawyerstestified they trained the SEALS to treat detaineeshumanely, one SEAL stated: “The briefing I rememberis that these [prisoners] did not fall under the GenevaConvention because they were not enemy combat-ants.”136Of the 10 Navy personnel – 9 SEALS and one sailor –accused by Navy prosecutors of being involved in al-Jamadi’s death,137nine were given nonjudicial punish-ment.138In contrast to a general court martial, which is acriminal felony conviction, nonjudicial or administrativepunishment is usually imposed by an accused’scommanding officer for minor disciplinary offenses, anddoes not include significant jail time.139The only personformally prosecuted in the case was Navy SEALLieutenant Andrew K. Ledford, the commander of theSEAL platoon, who was charged with dereliction ofduty, assault, making a false statement to investigators,and conduct unbecoming an officer.140At court-martial,Ledford was acquitted of all charges.141The decisionwhether to prosecute CIA personnel for possiblewrongdoing is pending,142but government officials haveindicated that charges are unlikely to be brought.143Theinterrogator, Mark Swanner, continues to work for theCIA.144To date, no U.S. official has been punishedcriminally in connection with al-Jamadi’s death. HumanRights First asked the Department of Defense onJanuary 26, 2006 the status of the al-Jamadi case; asof February 10, we had received no response.
PROFILE: HOMICIDE
Nagem Sadoon HatabNagem Sadoon Hatab, a 52-year-old Iraqi, was killed inU.S. custody at a Marine-run temporary holding campclose to Nasiriyah.145Soon after his arrival at the campin June 2003, a number of Marines beat Hatab,146including allegedly “karate-kicking” him while he stoodhandcuffed and hooded.147A day later, Hatab report-edly developed severe diarrhea, and was covered infeces.148Once U.S. forces discovered his condition,Hatab was stripped and examined by a medic, whothought that Hatab might be faking sickness.149At thebase commander’s order, a clerk with no training inhandling prisoners dragged Hatab by his neck to anoutdoor holding area, to make room for a new pris-oner.150The clerk later testified to the ease with which he wasable to drag the prisoner: Hatab’s body, covered bysweat and his own feces, slid over the sand.151Hatabwas then left on the ground, uncovered and exposed inthe heat of the sun. He was found dead sometime after
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Command’s Responsibility — 13
midnight.152A U.S. Army medical examiner’s autopsy ofHatab found that he had died of strangulation – a victimof homicide.153The autopsy also found that six ofHatab’s ribs were broken and his back, buttocks, legsand knees covered with bruises.154The guards at the detention center to which Hatab hadbeen brought were ill-prepared for their duty at best.The previous commander of the facility, Major WilliamVickers, would later testify that none of the approxi-mately 30 Marines at the camp had been trained to runa jail before their assignment: “Not then or evenafter.”155Most were reservists and according to MajorVickers’ testimony, the Marines, members of the 2ndBattalion, 25thMarine Regiment, were assigned to theguard role after Army and other Marine units refusedit.156The base commander at the time, Major ClarkePaulus, had been in that position for a week beforeHatab’s death, and had spent only a day observing theprison operations before taking command.157Hispredecessor, Major Vickers, added that the camp hadoriginally been designated a temporary holding facility,where Marines would interrogate prisoners for a day ortwo before their release or transfer.158Instead, prison-ers were kept for longer, resulting in overcrowding anda strain on guards.159The treatment of Hatab’s body did not improve after hisdeath. A Navy surgeon, Dr. Ray Santos, testified thatwhen Hatab’s body arrived at the morgue: “It keptslipping from my hands so I did drop it several times.”160The U.S. Army Medical Examiner, Colonel KathleenIngwersen, who performed the autopsy, reportedlyacknowledged that Hatab’s body had undergonedecomposition because it was stored in an unrefriger-ated drawer before the autopsy.161In fact, testimony ata later court martial indicated that a container ofHatab’s internal organs was left exposed on an airporttarmac for hours; in the blistering Iraqi heat, the organswere destroyed.162Hatab’s ribcage and part of hislarynx were later found in medical labs in Washington,D.C. and Germany, due to what the Medical Examiner,Colonel Ingwersen, described as a “miscommunication”with her assistant.163Hatab’s hyoid bone – a U-shapedthroat bone located at the base of the tongue164– wasnever found,165and Colonel Ingwersen testified that shecouldn’t recall whether she removed the bone from thebody during the autopsy or not.166The bone was a keypiece of evidence, because it supported the ArmyMedical Examiner’s finding that Hatab died of strangu-lation.167
Although eight Marines were initially charged in thecase, only two were actually court-martialed.168MajorPaulus, who ordered Hatab dragged by his neck andpermitted him to lie untreated in the sun, was originallycharged with a number of offenses, including negligenthomicide, while Sergeant Gary P. Pittman was chargedwith five counts of assault for beating prisoners(including Hatab) and two counts of dereliction ofduty.169Neither was sentenced to any prison time,however, in part because of the lax handling of themedical evidence.170The judge in the court martialproceedings, Colonel Robert Chester, ruled that theautopsy findings and other medical evidence –evidence which was also Hatab’s remains – could notbe considered, because it had been lost or destroyedand thus could not be examined by the defense.171Thejudge’s decision eliminated the possibility that prosecu-tors could win conviction on the most serious chargesthey had brought. In addition, at Sergeant Pittman’scourt martial, prosecutors acknowledged that themilitary had either lost or destroyed photos of Hatabbeing interrogated in the days before his death.172As a result, prosecutors were unable to win convictionon any charges relating to culpability for Hatab’s death:Paulus was convicted of dereliction of duty andmaltreatment for ordering a subordinate to drag Hatabby the neck, and for allowing Hatab to remain unmoni-tored in the sun.173Sergeant Pittman was acquitted ofabusing Hatab, though he was sentenced for assaultingother detainees.174Charges against Lance CorporalChristian Hernandez (who dragged Hatab by the neck),including negligent homicide, were dropped, and thecases against the other Marines similarly did notproceed to trial.175One Marine, William Roy, accepted areduction in rank from a lance corporal to a private firstclass in exchange for his testimony. But because thedemotion was a non-judicial punishment, and the basisfor it is not public, the precise contours of his culpabilityremain unclear.176
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PROFILE: HOMICIDE
Abdul WaliOn June 18, 2003, Abdul Wali turned himself in tosoldiers at an Army firebase in Asadabad, Afghanistan,after he learned they were looking for him.177The son ofthe governor of the province where the base is locatedaccompanied Wali and initially acted as his interpreterduring interrogation.178According to this interpreter, theU.S. interrogator was so aggressive in questioning Walithat the interpreter left in disgust.179Three days later, onJune 21, Wali was dead.180The man who interrogated Abdul Wali was not asoldier; David Passaro was a former Army Ranger whohad been hired as a civilian contractor by the CIA.181Reportedly convinced that Wali had information aboutweapons that would be used to attack U.S. personnel,Passaro questioned Wali on June 19 and 20.182At eachof these sessions, the U.S. government alleges,Passaro beat Wali, both with his hands and with aflashlight.183According to prosecutors, Passaro kickedWali in the groin “on at least one occasion.”184Wali,who apparently suffered from poor health, did notsurvive to see a third such interrogation.185Army criminal investigators looked into Wali’s death,found that no Army personnel were implicated andreferred the case to the Department of Justice forpossible prosecution of Passaro.186In June 2004, afederal grand jury in the Eastern District of NorthCarolina indicted Passaro on four counts of assault.187As of February 2006, the case against Passaro wasmoving toward trial, with the government and defenseengaged in arguments about the defenses that wouldbe allowed, and which witnesses would testify in theproceedings.188According to his lawyer, Passaro’sposition at trial will be that abusive questioningtechniques were not criminal because they wereconsistent with authorized interrogation policies, andthat his actions were legally justified under a series ofExecutive Branch memos that appear to permitaggressive interrogation techniques.189No one has been charged with murder or manslaughterin connection with Wali’s death. Human Rights Firstasked the Department of Defense on January 26, 2006for any update on the status of Wali’s case; as ofFebruary 10, 2006 we had received no response.
PROFILE: HOMICIDE
HabibullahHabibullah died on the night of December 3, 2002,because of abuses inflicted upon him by U.S. soldiersat the Bagram detention facility in Afghanistan.190Habibullah was captured by an Afghan warlord and,according to detailed reporting by theNew York Times,was brought to the Bagram detention facility on the lastday of November, 2002.191Members of the 377thMilitary Police Company at that facility reportedlysubjected detainees held at the base to peronealstrikes –a knee strike aimed at a cluster of nerves onthe side of the thigh, meant to quickly disable anescaping or resistant prisoner.192One soldier stated thathe gave Habibullah five peroneal strikes for being“noncompliant and combative.”193Immediately upon his arrival, Habibullah was placed inan isolation cell and shackled to the ceiling by hiswrists.194During one interrogation, an interrogatorallowed him to sit on the floor because his knees wouldnot bend enough for him to sit on a chair; as Habibullahcoughed up phlegm, soldiers laughed at his distress.195One day later, Habibullah was found hanging from theceiling and unresponsive.196One soldier thought that hefelt the almost-incapacitated prisoner spit on him; thesoldier yelled and began beating Habibullah while hewas still chained to the ceiling.197The next time anyonechecked on Habibullah, he was dead.198The U.S.-conducted autopsy found that Habibullah haddied of an embolism – a blood clot, almost certainly theproduct of the repeated beatings, had traveled through
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his bloodstream and clogged the arteries leading to hislungs;199the autopsy determined the manner of death tobe homicide.200The Army Criminal InvestigationCommand looked into the death, and initially recom-mended closing the case.201According to criminalinvestigators’ findings it was impossible to determinewho was responsible for Habibullah’s injuries becauseso many were involved.202Investigators also failed tomaintain critical evidence in the case. A sample ofHabibullah’s blood was kept in the butter dish ofinvestigators’ office refrigerator until the office wasclosed.203Press interest in Habibullah’s death—and that ofDilawar, another detainee who died a week later at thesame facility—sparked renewed progress in thecriminal investigation, resulting in charges against thesoldiers allegedly responsible.204In October 2004,almost two years after Habibullah’s death, criminalinvestigators recommended that charges be broughtagainst 27 soldiers for their roles in the death ofDilawar and against 15 of the same soldiers for thedeath of Habibullah, including “two captains, themilitary intelligence officer in charge of the interrogationgroup, and the reservist commander of the militarypolice guards.”205The recommended charges rangedfrom dereliction of duty to involuntary manslaughter.206The soldiers included members of the 377thMilitaryPolice Company and interrogators from the 519thMilitary Intelligence Battalion.207To date, less than half of the soldiers against whomcharges were recommended –12 out of 27– have
actually been prosecuted for their roles in the deaths ofHabibullah and Dilawar.208Eleven cases have beenconcluded.209Apart from demotions and some dis-charges, only four of these individuals were givensentences that included confinement, and the sen-tences ranged from 60 days to five months.210InJanuary 2006, after a pre-trial inquiry, the Armydropped its criminal case against the only officercharged (with lying to investigators and dereliction ofduties) in connection with the deaths, Military PoliceCaptain Christopher M. Beiring.211Lieutenant Colonel Thomas J. Berg, the Army judgewho oversaw the pretrial inquiry, criticized the prosecu-tion for not presenting sufficient evidence to supporttheir charges against him.212Berg added that themilitary policy company had not been adequatelytrained before deployment for its mission at the Bagramdetention facility:213“Little of the training focused on theactual mission that the 377th [Military Police Company]anticipated that it would assume upon arrival in theater. . . . Much of the 377th’s training was described as‘notional’ in that soldiers were asked to imagine orpretend that they had the proper equipment for trainingexercises.”214As of January 2006, the trial of SergeantAlan J. Driver is pending.215Notably, no soldier has yetbeen charged with murder or voluntary manslaughterfor either of the deaths of Habibullah or Dilawar.216
PROFILE: HOMICIDE
DilawarDilawar was the second detainee killed in a week at theBagram detention facility in Afghanistan.217A 22-year-old Afghan citizen whose case similarly became thefocus ofNew York Timesinvestigative reports, Dilawarwas driving his taxi past U.S. Camp Salerno when hewas stopped and his car searched by a local Afghancommander working with the Americans.218Dilawar wasthen taken into custody as a suspect in a rocketattack.219The commander of the Afghan soldiers waslater suspected of having launched the attackhimself.220Dilawar was brought to the Bagram detention facility onDecember 5, 2002.221The 122-pound taxi driver waslabeled a “noncompliant” detainee by U.S. soldiers, andwas subjected to the samekind of peroneal strikes thateventually contributed to thedeath of Habibullah.222During one of the beatingsby soldiers, Dilawar cried“Allah” when he was hit.223According to a U.S. soldier,U.S. military personnel foundthese cries funny and hitDilawar repeatedly to hearhim cry out.224Over a 24-hour period, one soldierestimated that Dilawar was
Dilawar
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16 — II. Homicides: Death by Torture, Abuse or Force
struck over 100 times by soldiers.225According to an interpreter, during his fourth interroga-tion session on December 8, Dilawar was unable tocomply with commands to keep his hands above hishead, leading one soldier to push his hands back up.226During the same interrogation, two interrogatorsshoved Dilawar against a wall when he was unable tosit in a “chair” position against the walls because of theinjuries to his legs.227At the end of the interrogation,one of the soldiers ordered Dilawar to be chained to theceiling.228During his final interrogation session onDecember 10, Dilawar could not obey the orders theinterrogators gave him to stand in stress positions andkneel.229Dilawar died that day.230The official autopsy, conducted three days after hisdeath, showed that Dilawar’s legs had suffered“extensive muscle breakdown and grossly visiblenecrosis with focal crumbling of the tissue.”231Thedamage was “nearly circumferential,” from below theskin down to the bone. The manner of death was foundto be homicide.232Despite this conclusion, the militaryinitially said that Dilawar had died of natural causes.233Criminal investigation into his death, and that ofHabibullah had been at a “virtual standstill,”234and only
accelerated after theNew York Timesreported in newdetail how both men died in U.S. custody.235Therenewed investigation also cast into stark relief theflaws in the original investigative efforts: agents had notinterviewed the commanders of the soldiers responsi-ble for the deaths, failed to interview an interrogatorwho had witnessed most of Dilawar’s questioningduring his detention, and mishandled critical evi-dence.236It was only during the subsequentinvestigation – and at the individual initiative of at leastone soldier – that investigators finally took state-ments.237The statements revealed that witnesses whohad previously been overlooked had crucial informa-tion, including an eyewitness account of an interrogatorapparently choking Dilawar by pulling on his hood, andthat “most [soldiers at the base] were convinced that[Dilawar] was innocent.”238The status of prosecutions of the soldiers responsiblefor Dilawar’s death is described above.
PROFILE: HOMICIDE
Sajid Kadhim Bori al-BawiSajid Kadhim Bori al-Bawi, an Iraqi actor, was shot andkilled in his home in Baghdad early in the morning ofMay 17, 2004.239According to his family, U.S. and Iraqisoldiers raided the house by crashing through the gatein a Humvee.240Al-Bawi’s brother, uncle, and nephewwere bound and held on their knees and the womenand children were kept in the living room while he wasinterrogated in a bedroom.241While they were waiting,the family heard shots ring out.242The troops left anhour after they arrived.243According to the family, thetroops took with them a robed and hooded man, andtold the family that they were arresting al-Bawi.244Butwhen the family went into the room where he had beenquestioned, they found al-Bawi’s corpse, stuffed behinda refrigerator and hidden under a mattress.245He hadbeen shot five times: in the leg, throat, armpit, andchest.246An administrative investigation247into al-Bawi’s deathfound the shooting to be justified.248The militaryreported in its initial public statements about theshooting that al-Bawi hadgrabbed a U.S. soldier’spistol, switched the safetyoff, and the soldier thenfired five shots in self-defense.249But themilitary’s statementsbecame the subject ofdispute. An Iraqi medicalexaminer who examinedthe body found that theshots had been fired fromtwo different directions; al-Bawi’s family reported thatSajid Kadhim Bori al-Bawi’sthey found two kinds ofson holds a portraitof his fathercasings in the room where250he died. Army criminalinvestigators only began their investigation a monthafter al-Bawi’s death, when an investigation wasrequested by the military’s Detainee Assessment TaskForce, based on aWashington Postarticle detailing al-
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Bawi’s family’s allegations.251Despite the contradictionsbetween the findings of the administrative investigationand allegations by al-Bawi’s family and the medicalexaminer,252the criminal investigating agent spent ascant four hours reviewing the findings of the adminis-trative investigation, did not attempt any independentverification, and then forwarded the case for closure.253News reports detailing the family’s allegations wereincluded in the file, but the only change the criminalinvestigator made to the initial probe was to correct thespelling of al-Bawi’s name.254The criminal proberestated the conclusion that the killing was justified andrecommended no charges be brought.255The lack of any independent investigation into al-Bawi’sfamily’s allegations – or any investigation beyond a
review of the administrative findings – is troubling. At aminimum, there is a disconnect between the adminis-trative finding that one soldier fired all the shots withone weapon,256and the family’s allegations that al-Bawiwas shot from two directions with two different calibersof bullet.257Al-Bawi’s family reportedly was offered $1,500 incompensation by military officials, conditioned on theiragreeing that the United States has no responsibility foral-Bawi’s death.258The family has refused the money.259
PROFILE: HOMICIDE
Obeed Hethere RadadObeed Hethere Radad was shot to death on Septem-ber 11, 2003, in his detention cell in an Americanforward operating base in Tikrit, Iraq.260Both criminaland administrative investigations were conducted intohis death.261The soldier accused of the shooting,Specialist Juba Martino-Poole, stated during theadministrative investigation that he had shot Radadwithout giving any verbal warning because Radad was“fiddling” with his hand restraints and standing close tothe wire at the entrance to his cell.262The administrative investigation found “sufficient causeto believe” Martino-Poole violated the Army’s use offorce policy and the base’s particular directives on theuse of deadly force with which Radad could becharged; the administrative investigation recommendeda criminal investigation be initiated to determineoffenses.263But the investigation also determined thatthere was inadequate clarity on the use of weaponsand force with regard to detainee operations at thebase, and noted in particular the lack of any writtenstandard operating procedures.264The investigationalso criticized the location of weapons within thedetention facilities, and the insufficient numbers ofguards assigned to guard detainees.265A military lawyerwho later reviewed the administrative investigationfound it legally insufficient, apparently because it failedto determine what, if any, briefing on the use of forceguards received.266Army criminal investigators were only notified of thedeath after the administrative investigation con-cluded.267And before the criminal investigation wasover, Martino-Poole had sought a military discharge inlieu of a court martial for manslaughter.268Martino-Poole’s commander, Major General Raymond T.Odierno, approved the request for discharge withoutwaiting for criminal investigative agents to concludetheir investigation and forward their findings.269A littlemore than a week later, criminal investigators foundprobable cause to charge Martino-Poole with murder.270The Radad case was reviewed along with all detaineedeaths in custody after the revelations at Abu Ghraib,and the reviewer noted flaws in both the criminal andthe administrative investigations, but decided againstreopening the criminal investigation because “furtherinvestigation would not change the outcome.”271Martino-Poole later accused his commanders ofwanting to avoid disclosure of the lax security practicesat the base – practices that would likely have come tolight in a court martial proceeding.272
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PROFILE: HOMICIDE
Mohammed SayariMohammed Sayari was in the custody of members ofthe U.S. Army Special Forces when he was killed nearan Army firebase on August 28, 2002 in Lwara,Afghanistan.273According to Army investigative recordsreviewed by Human Rights First, an Army staffsergeant from the 519thMilitary Intelligence Battalionwho was supporting the Special Forces team wasdispatched to the site of the shooting of a “suspectedaggressor” on a road just outside the firebase, to takephotographs documenting the scene.274When hearrived, the members of the Special Forces unit told thesergeant they had stopped Sayari’s truck because hehad been following them.275The soldiers ordered thepassengers traveling in Sayari’s truck to leave the areaand then, they said, they disarmed Sayari.276Accordingto their later testimony, the soldiers neglected torestrain Sayari’s hands, and left his AK-47 weapon tenfeet from him.277When a soldier turned away for amoment, they said, Sayari lunged for the rifle andmanaged to point it at the Special Forces soldiersbefore they shot him in self-defense.278Sayari’s body was fingerprinted and turned over to hisfamily.279The Military Intelligence sergeant (whosename is redacted in the records Human Rights Firstreviewed) then instructed other military personnel totransfer DNA evidence taken at the scene and otherphotographs to the Bagram Collection Point.280OnSeptember 24, 2002 the captain of the Special Forcesgroup that shot Sayari told the sergeant that a memberof the Staff Judge Advocate General’s Corps would becoming as part of the administrative investigation totake statements from Special Forces soldiers involvedin the shooting.281The captain then asked the sergeantfor the photographs he had taken.282After reviewing thephotographs, the Special Forces captain told thesergeant to include only certain of the photographs inthe investigation and ordered him to delete all the othercrime-scene photographs.283The administrativeinvestigation would eventually find Sayari’s shooting tobe justified.284The following day, the sergeant contacted criminalinvestigators to report “a possible war crime.”285According to one criminal investigation agent’s report,the sergeant had not reported his concerns to criminalauthorities earlier because he had waited to see theresults of the administrative investigation and he hadfeared for his safety while working with the SpecialForces team.286The sergeant told the agents thatseveral details at the scene made him question theveracity of the Special Forces soldiers’ story. He saidthat Sayari had been shot five or more times – in thetorso and head – but all the entry wounds appeared tobe in the back of the body, which made it unlikely thathe had been facing the soldiers and pointing his rifle atthem when he was shot.287One of Sayari’s sleeves hadbrain matter on it, suggesting that his hands were on orover his head when he was shot.288When the sergeantfirst arrived, he had noticed that Sayari’s corpse stillclutched a set of prayer beads in the right hand, whichwas inconsistent with the Special Forces soldiers’report that he had picked up and pointed an assaultrifle at them.289Among the photos that the SpecialForces captain instructed the sergeant to delete wasone showing Sayari’s right hand clenched around theprayer beads and another depicting bullet holes inSayari’s back.290The AK-47 could not be found.291Criminal investigators eventually found probable causeto recommend charges of conspiracy and murderagainst the four members of the Special Forces unit;they also recommended dereliction of duty chargesagainst three of them, and a charge of obstruction ofjustice against the captain.292Finally, they recom-mended that a fifth person, a chief warrant officer, becharged as an accessory after the fact.293After consultation with their legal advisors, however,commanders decided not to pursue any of the recom-mended charges in a court martial.294To date, the onlyaction commanders have taken in response to thecriminal investigators’ recommendations is to repri-mand the captain for destroying evidence.295Thecaptain was disciplined – he had inarguably destroyedevidence – but received only a letter of reprimand.296Nofurther action was taken against the soldiers.297Thecommanders who declined to report Sayari’s death –and who later declined to prosecute the soldiersinvolved – received similar leniency; they have receivedno disciplinary action for their conduct. Human RightsFirst asked the Department of Defense on January 20and 26, 2006 for an update on the status of Sayari’scase; as of February 10, 2006, we had received noresponse.
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PROFILE: HOMICIDE
Zaidoun HassounZaidoun Hassoun, (also known as Zaydoon Fadhil), a19-year-old Iraqi civilian, and his cousin Marwan werearrested by members of the 1st Battalion, 8th InfantryRegiment, 3rd Brigade, 4th Infantry Division in January2004 on the streets of Samarra, in Iraq, at or around an11 p.m. curfew time.298Army Lieutenant Jack Savillethen ordered his platoon to take the two Iraqis to a 10-foot-high bridge over the Tigris River and force the twoto jump.299Three soldiers, Sergeant (“Sgt.”) AlexisRincon, Specialist Terry Bowman and Sgt. ReggieMartinez, complied with the order.300Saville and StaffSgt. Tracy Perkins had earlier that night stated that“someone was going to get wet tonight” and “someoneis going for a swim.”301Marwan surfaced and swam tothe shore.302Zaidoun, who had proposed to his fiancéethree weeks previously and planned on starting a familyonce he graduated from high school, did not.303According to his cousin, he was sucked into the currentnear an open dam gate and was unable to escape.304Criminal charges initially filed against Saville allegedthat he had also pushed another Iraqi into the Tigris inBalad the previous month.305The platoon’s three immediate commanders, Lt. Col.Nathan Sassaman, the battalion commander, CaptainMatthew Cunningham, a company commander, andMajor Robert Gwinner, the deputy battalion com-mander, did not report the incident to criminalinvestigators, based on the assumption that there wasno proof Hassoun had drowned.306Sgt. Irene Cintron, a criminal investigative agentassigned to the case, suspected, however, “that thewhole chain of command was lying to [her].”307Duringthe criminal investigation into Hassoun’s death, agentsadministered a polygraph test to a member of thesquad that allegedly pushed him into the river.308Thesoldier told agents that his chain of command hadordered him to deny soldiers had forced Hassoun intothe river, and not to cooperate with criminal investiga-tors.309After the criminal investigation was underway,Lt. Col. Sassaman, the battalion commander, informedMajor General Raymond Odierno, the commander ofthe Fourth Infantry Division, of the truth; soldiers had infact forced Hassoun to jump into the Tigris.310Accordingto the official investigative report, which Human RightsFirst reviewed, the officer who conducted a subsequentArticle 32 hearing—analogous to a grand jury proceed-ing311– also found the commanders had “coach[ed]”their soldiers on what to sayto the investigating agents.312The three commanders – Lt.Col. Sassaman, CaptainCunningham, and MajorGwinner – obtained grantsof immunity from prose-cution, and admitted at thesoldiers’ trial that theallegations were true.313Zaidoun HassounThe commanders testifiedthat they thought theinvestigation into Hassoun’s death was the result of “apersonal vendetta” between Sassaman and the brigadecommander, motivated by personal antipathy andjealousy.314They also maintained their belief thatHassoun had not actually drowned as a justification fortheir refusal to cooperate with investigators; Cunning-ham protested that “[they] were not covering upanything that injured anybody.”315Saville plead guilty toa reduced charge of assault and received 45 days inprison and Perkins was convicted of the same chargeand sentenced to six months.316Two other soldiers,Sergeant Reggie Martinez (originally charged withinvoluntary manslaughter) and Sergeant Terry Bowman(originally charged with assault), received non-judicialpunishment.317The three commanders receivedreprimands for obstruction of justice but were notrelieved of their command.318
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Command’s Responsibility — 21
III. Death by Officially Unknown, “Natural”or Other CausesThe autopsy findings in this 27-year-old man seem insufficient to explain his death. The fact thatthey seem to have found pulmonary edema, water in the lungs, is very unusual in a man of thisage without heart disease. The available information is insufficient to explain his death. A full in-vestigation report that describes the circumstances preceding his death and the manner inwhich the body was found shortly before any attempt at resuscitation is needed to explain thecause of death and to rule out a homicide which seems more likely than not in a 27-year-oldman who suddenly died in captivity.Dr. Steven MilesProfessor and Bioethicist, University of Minnesota Medical School on autopsy of319Fashad Mohamed, died in U.S. custody, April 5, 2004
For close to half of the deaths Human Rights First hasanalyzed – 48 out of 98 – the cause of death remainsofficially undetermined or unannounced.320The militaryclassified another 15 deaths as due to natural causesand one as accidental. But a significant number of all ofthese deaths occurred under suspicious circumstancesand may more appropriately be considered homicidesthemselves; 17% of the deaths in which the officialcause of death is unknown or due to natural causeseither followed severe injuries consistent with, oroccurred in circumstances suggesting, physical abuseor harsh conditions of detention.321This chapter brieflyreviews the facts of some of these cases and theconsequences – or not – for those involved. Given thepassage of time since each of these deaths, and flawsin the investigations that have already taken place, it isnow unlikely that the facts of their deaths will ever beknown. If there has been wrongdoing, no one will bepunished.
P R O F I L E : U N D E T E R M I N ED C A U S E[Bringing in an Iraqi physician to treatdetainees] would decrease the perception ofour involvement or cover-up in events similarto this.Department of the Army, 101st Airborne Division,Administrative Investigation into the Death of Abu322Malik Kenami
Abu Malik KenamiAbu Malik Kenami (also referred to as Abdureda LaftaAbdul Kareem), a 44-year-old Iraqi man, died onDecember 9, 2003, in a U.S. detention facility in Mosul,Iraq.323According to the findings of an administrativeinvestigation, Kenami had arrived at the facility fourdays earlier, and according to the soldiers whointerrogated him upon his arrival, he said he did notsuffer from any pre-existing medical conditions.324Onthe night of December 8, Kenami allegedly talked outloud in the presence of guards, and tried to look out
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22 — III. Death by Officially Unkown, “Natural” or Other Causes
from underneath his hood to see what was happen-ing.325That earned him what had become a standardform of punishment: “up and downs” – an exercise inwhich detainees were made to stand up, then sit down,over and over again for periods of up to twentyminutes.326Kenami had been subjected repeatedly to “up anddowns” during his detention, but this night turned out tobe different.327Following the forced workout, soldiersflexicuffed Kenami’s hands behind his back andcovered his head with a sandbag hood.328Kenami wasthen ordered to lie down among other detainees in hisovercrowded cell; built for 30 prisoners, it housed 66.329When a guard attempted to rouse the prisoners in themorning, Kenami, still bound and hooded, was dead.330The Army’s initial criminal investigation into Kenami’sdeath could not determine the cause of death becauseno autopsy was ever conducted.331It was only fivemonths later, after the revelations from Abu Ghraib,that the Army reviewed this case and it became clearhow troubling the original criminal investigation hadbeen.332In the words of the military police forensicscience officer who reviewed the initial criminalinvestigation: “it was weak in Thoroughness andTimeliness.”333In addition to the lack of an autopsy, thereview determined that important interviews were notconducted of the interrogators, medics, or detaineespresent at the scene of the death, and that key detailswere omitted from the report.334The file “[did] notmention the presence, or lack of, signs of a struggle, orof blood or body fluids,” “the crime scene sketch… [did]not document where guard personnel found thedeceased,” and “records of medical treatment of thedeceased were not collected and reviewed.”335TheArmy’s administrative investigation had recommendedthat an Iraqi physician be brought in to treat thedetainees, noting that among other benefits, “[i]t would[also] decrease the perception of our involvement orcover-up in events like these.”336According to military records made public to date, thecause of Kenami’s death remains officially undeter-mined.337But there could be a more troublingconclusion. Dr. Steven Miles is a professor andbioethicist at the University of Minnesota MedicalSchool, who has reviewed the Army’s records relatedto Kenami’s death. Kenami’s body “had bloodshoteyes, lacerations on his wrists from the plastic ties,unexplained bruises on his abdomen and a freshbruised laceration on the back of his head,” Milesexplains, expressing particular concern that “Armyinvestigators noted that the body did not have defen-sive bruises on his arms, an odd notation given that a
man cannot raise bound arms in defense.”338Based onhis analysis, Dr. Miles found: “It is likely that Mr.Kenami suffocated because of how he was restrained,hooded and positioned. Positional asphyxia looks justlike death by a natural heart attack except for thosetelltale bloodshot, [conjunctival hemorrhage] eyes.”339Human Rights First asked the Department of Defenseon January 20 and 26, 2006 for comments on Dr. Miles’findings; as of February 10, 2006, we had received noresponse.The Army has taken no punitive or disciplinary action inthe case.340
PROFILE: UNKNOWN CAUSE
Dilar DababaDilar Dababa, an approximately 45-year-old Iraqicivilian detainee, died on June 13, 2003 at CampCropper, after being subjected to what press accountsof unreleased Army investigation records describe as“physical and psychological stress” and restraint in achair during interrogation.341Military investigationdocuments cite an autopsy finding that Dababa diedfrom a “hard, fast blow to the head.”342The ArmedForces Medical Examiner’s autopsy report on DilarDababa does not use the same language, but statesthat “[p]hysical force was required to subdue thedetainee, and during the restraining process, hisforehead hit the ground.”343Twelve hours later, he wasdead.344The medical examiner’s autopsy lists the cause ofDababa’s death as a “Closed Head Injury with aCortical Brain Contusion and Subdural Hematoma.”345The autopsy describes a litany of injuries in technicaldetail, and makes clear that Dababa was subjected tophysical violence.346Dababa’s body was covered withat least 22 bruises,347and at least 50 abrasions.348Hishead and neck suffering the most significant abuse,resulting in hemorrhaging throughout his brain.349Healso had a fractured rib.350A military official stated inMay 2004 that Army criminal investigators were lookinginto Dababa’s death, but there has been no documen-tation of any charges being brought against thoseresponsible for the death.351The military has notpublicly provided an official cause of death. HumanRights First asked the Department of Defense onJanuary 20 and 26, 2006 for the status of any investi-gation or prosecution in Dababa’s case; as of February10, 2006 we had received no response.
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P R O F I L E : U N D E T E R M I N ED C A U S E
P R O F I L E : N A T U R A L C A U SE
Hadi Abdul Hussain Hassonal-Zubaidy (Hasson)All that is known about Hadi Abdul Hussain Hasson al-Zubaidy (Hasson) is his name, his identification numberand the fact that he died in Iraq, at Camp Bucca, sometime between April and September 2003.352His deathwent officially unnoticed until nearly a year after ithappened,353when Army investigators conducted areview of all detainee deaths following the public AbuGhraib scandal.354Despite later attempts to determinewhat happened to Hasson – including when and howhe died – investigators were only able to determine thatHasson had been treated on board a U.S. Navyhospital ship.355In the end, investigators closed the Hasson casewithout being able to determine whether his death wasdue to natural causes or homicide.356The investigators’report notes that inadequate record-keeping made itimpossible for them to learn anything more: “All effortsdisclosed there as [sic] virtually no documentation inreference to Mr. HASSON’s manner, cause, orcircumstances of death.”357A U.S. Mortuary Affairsofficer told an investigator that “the documentation ondeceased Detainees was very limited . . . the majorityof the time prior to earlier this year [2004], when theMortuary received the remains of a deceased Detaineethey would only know that the deceased was adetainee, and would not have any other info on theremains, so they would have a list of the remains asunknown John Doe.”358
Nasef IbrahimNasef Ibrahim was 63 at thetime of his death of what aninitial autopsy report called“atherosclerotic cardiovasculardisease.” He died at AbuGhraib in January 2004 – adeath the Army attributes tonatural causes.359Armycriminal investigators on theNasef Ibrahimcase attended the autopsy andinterviewed a number ofsoldiers who stated that Ibrahim’s son, detained withhim, brought his collapse to the attention of prisonguards.360After the special agent in charge determinedthat pursuing the case further would be of little value,and that remaining leads were not significant, thecriminal investigation was closed.361The case was re-examined on May 19, 2004, as part ofthe Army’s review of detainee death and abuse casesfollowing the revelations from Abu Ghraib. This time,the Army found several grounds for criticism. The initialinvestigation had not included a visit to the scene of thedeath, interviews of the witnesses who found the victim,or any “effort … to interview the alleged … son of thevictim who [was] reportedly at the prison at the time ofdeath.”362Ibrahim’s son, who was with him when hedied, says that his father’s death came only after hisfather suffered extensive abuse.363The son alleges thatthe abuses Ibrahim suffered included being beaten,menaced by dogs, repeatedly doused with cold waterduring the height of winter, being left naked outside fordays and deprived of food to the point of fainting, andleft on his stomach with hands tied above his head forhours.364The May 2004 Army review indicated that “[t]heinvestigation has not yet received the final autopsyreport.”365The May review asked that a “supplementalROI”—an additional report of investigation—besubmitted as soon as the final autopsy was received.366Government documents to date regarding the investi-gation reviewed by Human Rights First do not indicatewhether this request was ever acted upon, or if therewas any further action taken. Human Rights First askedthe Department of Defense on January 20 and 26,2006 for the status of the investigation and anyprosecution in Ibrahim’s case; as of February 10, 2006,we had received no response.
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P R O F I L E : N A T U R A L C A U SE
P R O F I L E : U N D E T E R M I N ED C A U S E
Abed Mohammed NajemEvidentiary failures pervaded the investigation into thedeath of Abed Mohammed Najem, who died at AbuGhraib in August 2003.367According to accounts in anoriginal criminal investigation, Najem began a hungerstrike on August 6 (during the hottest part of the Iraqiyear) and refused food, water, and even his diabetesmedication;368on August 8, Najem took a double doseof his prescription, which appears to have precipitateda fatal heart attack.369The official criminal investigationfound Najem died of “natural causes.”370But the truecause of death may never be known. Investigators’later review of the original criminal investigation foundthat there had been no crime scene examination; nointerviews of anyone who was with Najem at the time ofhis death; no interview of an Iraqi medical professionallisted in the original investigation as having pertinentinformation; no medical records or interviews tosubstantiate claims that Najem had a preexistingcondition; and no copies of autopsy reports.371
Mohammad Munim al-IzmerlyMohammad Munim al-Izmerly, a 65-year-old Iraqichemist, was detained at the Camp Cropper facility,where high-value detainees were kept, in April 2003;his family was allowed to visit him once.378Within a fewweeks of their visit in January 2004, al-Izmerly wasdead.379The only autopsy ever performed on the bodywas conducted by the Director of Baghdad Hospital’sDepartment of Forensics, Dr. Faik Amin Baker, at therequest of al-Izmerly’s family.380Dr. Baker found that al-Izmerly died from a “sudden hit to the back of hishead,” and that the cause of the death was blunttrauma.381According to Dr. Baker, al-Izmerly “died froma massive blow to the head.”382U.S. forces retained al-Izmerly’s body for 17 days afterhis death, and did not inform Army criminal investiga-tors that al-Izmerly had died in U.S. custody until afterhis body was released.383Al-Izmerly’s family onlylearned of his death after U.S. forces delivered his bodyto an Iraqi hospital, accompanied by a death certificatestating that al-Izmerly had died of a “sudden brainstemcompression”; the certificate had no explanation of thecompression’s cause.384An initial, inconclusiveinvestigation into the case only appears to have beenreopened after press accounts of al-Izmerly’s death.385The Army’s Criminal Investigation Command recordshave not been publicly released, but according topublished reports, the records list al-Izmerly’s death asof “undetermined cause” – because the body wasreleased and no U.S. autopsy was performed.386Al-Izmerly’s family reportedly filed a wrongful deathclaim for $10,000, but the Army dismissed it, saying thefamily had presented no evidence of wrongdoing byU.S. personnel.387The re-opened investigation into al-Izmerly’s death remains pending; to date, no chargeshave been brought.388Human Rights First asked theDepartment of Defense on January 20 and 26, 2006the status of the investigation and any prosecution inal-Izmerly’s case; as of February 10, we had receivedno response.
PROFILE: UNKNOWN CAUSE
Jassim Al-ObodiThe evidence collected in the investigation into thedeath of Jassim Al-Obodi on August 3, 2003 isfragmentary.372Al-Obodi, a 38-year-old Iraqi male,collapsed in Camp Cropper in Iraq, and criminalinvestigation interviews of other detainees indicate hehad “not been feeling well” earlier in the day.373But nomedical records were collected, and no autopsyincluded in the file; the investigating agent was told thatan autopsy would be conducted in the United States,but he apparently failed to request the results.374Whenthe agent’s supervisor reviewed the file four monthslater and noticed the omission, the investigatorattempted to collect the evidence he had missed, butperhaps due to the delay, could not locate any medicalrecords, the autopsy report, or even a death certifi-cate.375The investigation results state that it “failed toprove the cause or manner of death”; among otherthings, investigators could not determine if an autopsyhad been done or even to whom the body had beenreleased.376In a note in the file, the supervisor warnedthe agent not to “get so focused on your opinion thatyou want to do a stat and close this [sic] keep you frombeing thorough.”377
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Death by Heart Attacks or Other Natural CausesMany prisoners suffered “natural” deaths from heart attacks or atherosclerotic cardiovascular disease. None of the forensic investigation ofthese “heart attacks” explores the possibility that these men died of stress-induced heart attacks. Threats, beatings, fear, police interroga-tion, and arrests are known to cause “homicide by heart attack” or life-threatening heart failure. People with pre-existing heart disease,dehydration, hyperthermia, or exhaustion are especially susceptible.Dr. Steven Miles, Professor and Bioethicist, University of Minnesota Medical School389The military’s classification of a number of deaths as “natural” gives Human Rights First cause for concern. Of the nearly 100 deathsHuman Rights First reviewed, official records indicate more than a fifth involved instances in which heart attack or heart disease wasdetermined to be part or all of the cause of death.390A number of the victims were surprisingly young: the youngest detainee alleged tohave died from heart disease is 25; those apparently dead from heart attacks also include men aged 30, 31, and 43.In part, concern about the accuracy of the “natural causes” label comes from the Army’s track record of having publicly labeled torture-related deaths “natural,” only to have to revise that assessment when case facts came to light. This was the pattern in the cases, dis-cussed above, of Iraqi Major General Mowhoush, and Afghan detainees Habibullah and Dilawar.Another reason for concern was identified in the recent testimony of Maj. Michael Smith, U.S. Army Forensic Pathologist, on Jan. 19,2006, during the trial of a junior officer for Mowhoush’s death: “The forensic pathologist, who does not gather information on the circum-stances of a death, will invariably miss homicides and suicides. It is incumbent on the pathologist to look at the circumstances of a death.Otherwise, a homicide or a suicide may appear like a natural death. ”Additional concern about the accuracy of deaths deemed “natural causes” flows from the inadequacy of investigations into many of thesedeaths. Army investigators themselves criticized the investigation into the death of one of these men: a subsequent Army review of theoriginal investigation into the death of Abed Najem, who allegedly died due to heart disease complicated by diabetes, found the investiga-tion “operationally insufficient and administratively insufficient.”391The reviewers noted that “[t]hough U.S. Army medical personnel allegedthe victim had a preexisting medical condition aggravated by a self imposed hunger strike, the investigation did not obtain any medicalrecords or conduct interviews to substantiate the information.”392Other findings of detainee deaths by “natural causes” have been rejected as outright impossible by surviving families. An Army criminalinvestigation attributed the death of Nasef Jasem Ibrahim to a compression of the heart often associated with heart attacks.393Armyinvestigators closed the case finding “[f]urther investigation would be little or no value.”394But Ibrahim’s son, who was with Ibrahim indetention, was not interviewed as part of the investigation into Ibrahim’s death.395The family has since alleged in a lawsuit that Ibrahimdied as a result of abusive detention conditions.396Finally, medical personnel told have told military investigators of confusion about the proper standard of care to apply to detainees.According to the Army Inspector General: “Coalition Provisional Authority treatment policy… reportedly dictated that U.S. medical carewas only available to detainees to prevent loss of life, limb, or eyesight,” which conflicted with the governing Army regulation.397The ArmySurgeon General found “the use of different classifications for detained personnel (Enemy Prisoner of War (EPW), detainees, RetainedPersonnel (RP), Civilian Internees (CI)) that, under Department of Defense (DoD) and Department of the Army (DA) guidance, receivedifferent levels care.”398Similar confusion over novel detainee classifications detached from the Geneva Conventions was a contributingfactor in incidents of detainee abuse.
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PROFILE: UNKNOWN CAUSE
PROFILE: UNKOWN CAUSE
Sher Mohammed KhanThe circumstances of SherMohammed Khan’s deathremain unclear despite anArmy criminal investigation.An Afghan citizen, Khan wasarrested on September 24,2004, in his home in the villageof Lakan, Khost province,Afghanistan.399Khan wassubsequently taken tothe nearby Salerno Firebase,Sher Mohammed Khanwhich doubled as a temporarydetention facility for U.S.forces, and placed in a holding cell. The next evening,the U.S. military says that he complained to guards thata snake had entered his cell and bitten him; medicalpersonnel examined him, but could find no punctures inthe skin, and no action was taken, though a medic wasdetailed to check on Khan throughout that night. Duringone such check, the medic found that Khan hadstopped breathing.400Immediately after Khan’s death, Army officials informedthe governor of Khost province that a man in U.S.custody had died of a heart attack, an explanation onwhich Department of Defense officials continued toinsist publicly until January 2005, when details of thesnake-bite story were reported in the press.401Adding tothe uncertainty, Khan’s family has said that his bodywas bruised when they picked it up from the Salernobase,402and alleges that he appeared to have beenbeaten in custody.403In January 2005, more than three months after Khan’sdeath, the commander of the U.S. troops who detainedKhan said that he had not yet received a final autopsyreport.404An Army criminal investigation has reportedlyfound “no signs of abuse or trauma” on Khan’s body;yet neither details of the investigation nor a deathcertificate listing the official cause of death has beenreleased.405No disciplinary action has been taken.406Human Rights First asked the Department of Defenseon January 20 and 26, 2006 the status of the investiga-tion and any prosecution in Khan’s case; as ofFebruary 10, we had received no response.
Jamal NaseerJamal Naseer was an 18-year-old Afghan soldier whodied in the custody of U.S.Special Forces soldiers inMarch 2003.407An investiga-tion into his case, begunsome nine months after hisdeath, had been closed dueto a lack of leads.408It wasreopened when aLosJamal NaseerAngeles Timesjournalistinvestigated the caseindependently, and wrote a feature-length article aboutNaseer’s death, alleging that Naseer had been tortured,and that the Afghan government had conducted adetailed investigation into the death.409According to these accounts, Naseer was arrested byU.S. forces as a result of a complicated series of feudsbetween the local governor, a warlord, and localmilitary commanders.410The governor labeled Naseer’sentire unit as Taliban agents, and U.S. forces, acting onthe tip, arrested the detachment and imprisoned themin a forward operating base near Gardez – a basenamed in claims by a number of former detaineesinterviewed by Human Rights First who have describedsuffering torture and serious abuse.411Details of whatwas done to Naseer are scarce, but seven Afghansoldiers detained with him attest to an extended periodof interrogation and abuse.412According to the soldiers,they were questioned about their relationship with AlQaeda; when they denied any involvement, they weresubjected to severe abuse, including beatings with fistsand cables – sometimes while suspended upside-down(allegations that again echo those of other Afghandetainees held by U.S. forces in Gardez).413They wereimmersed in cold water and exposed to the winterweather, sometimes being forced to lie in the snow.414Some say they were electrocuted.415On a particularlycold day in March, Naseer collapsed and died.416After Naseer’s death, U.S. commanders allegedly reliedon local authorities to transfer the body to his familyrather than doing so themselves.417Afghan policeentered a local hospital and ordered an ambulance togo to the U.S. base to get Naseer’s body; according toa doctor, no driver could be found, and the policebegan to beat the “frightened” medical personnel withtheir rifle butts.418Neither U.S. personnel nor the localdoctors performed an autopsy; according to a hospital
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administrator, “none of the [local] doctors wanted tolook into the cause of death because they were afraidthat they would be beaten again by the police.”419Itappears that the only contact any U.S. military person-nel had with Naseer’s family was when an officerapologized to Naseer’s brother – who had beendetained with Naseer – while the brother was still heldat the Gardez facility.420The Army initiated a criminal investigation based on atip about the incident, but later determined the tip was“unfounded,” because investigators were unable to findany documentation confirming the death or identifyingwitnesses.421Record-keeping remained a problem evenafter theLos Angeles Timesjournalist uncovered manypreviously unknown details – including the existence ofa hundred-page investigation into Naseer’s deathlaunched by Afghan military prosecutors, whichcontained the names of and interviews with severalwitnesses.422Army criminal investigators reportedlycould not even determine which Special Forces unithad been assigned to the firebase at which Naseerdied: according to one criminal investigator, “[t]here areno records. The reporting system is broke across theboard.”423The criminal investigation remains ongoing;no charges have been announced.424Human RightsFirst asked the Department of Defense on January 20and 26, 2006 the status of the investigation and anyprosecution in Naseer’s case; as of February 10, wehad received no response.
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IV. Failures in Investigation[T]he President has been pretty clear on that, that while we have to do . . . what is necessary todefend the country against terrorists attacks and to win the war on terror, the President hasbeen very clear that we’re going to do that in a way that is consistent with our values. And thatis why he’s been very clear that the United States will not torture. The United States will conductits activities in compliance with law and international obligations . . . . And to the extent peopledo not meet up, measure up to those principles, there will be accountability and responsibility.National Security Advisor Stephen Hadley425Remarks at Press Briefing, November 2, 2005
There is an old Army aphorism: the unit does what the commander checks . . . . If rigorous ad-herence to humane treatment had been deemed important, someone wearing stars would haverequired a thorough, impartial investigation of every death of a detainee.Brigadier General David R. Irvine, U.S. Army (Ret.)Interview with Human Rights First, October 14, 2005
When conducted according to the military’s own rules,the U.S. Armed Forces’ procedures for investigating thedeaths of detainees can effectively uncover theunderlying facts through interviews and evidencegathering, and determine whether to seek accountabil-ity. But the handling of death cases to date showsinternal government mechanisms to secure account-ability were badly dysfunctional during a time whentorture and abuse in U.S. custody was at its worst.426Commanders failed to convey that detainee deathswere to be taken seriously.427Detainee death investiga-tions were fundamentally flawed, and often did notmeet the Army’s own regulations. The result has beena pattern of impunity for the worst violations, withpunishment for bad behavior too little and too late, and
a still incomplete picture of what really went wrong.This chapter highlights the major investigative failuresin the range of cases involving detainee deaths in U.S.custody.428
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How An Investigation Should WorkMilitary regulations require that the death of a detainee in the custody of the U.S. Armed Forces must be investigated by the criminalinvestigation command of the service that held the detainee.429The Army may conduct two types of investigations in a case involving adetainee death. The first is the mandatory criminal investigation by the Army Criminal Investigation Division.430The criminal investigation isgoverned by a detailed set of regulations,431including rules on how evidence must be gathered and maintained: victims and eyewitnessesshould be interviewed within 24 hours of the event, evidence collected within a single duty day,432and requests for lab-work and coordinationwith other branches or agencies should be sent out within five duty days.433Army commanders in the field also have the discretion to order anadministrative investigation governed by its own set of regulations.434An administrative investigation may be conducted before, during, orafter, any other investigation, including a criminal one.435Thus, while a criminal investigation is absolutely required into any death incustody,436it is not uncommon to see an administrative investigation into that death also. The rules of evidence applicable to trials or othercourt proceedings generally do not apply to administrative investigations. The Army’s Judge Advocate General Corps provides legal oversightand advice on both criminal and administrative investigations.437Military commanders have the discretion to determine whether and how anoffender should be charged after an investigation, criminal or administrative, has taken place.438Commanders’ options include taking noaction, initiating non-judicial action (which can range from counseling to a reprimand to correctional custody to discharge),439and referring thecase for court martial.440Punishment by court martial can, depending on the crime, include punitive discharges and confinement, including incertain types of murder cases, life imprisonment or death.441
No Evidence for the ProsecutionI would have directed the death of any detainee to be thoroughly investigated. Any poor medicalcare should have been thoroughly investigated. The absence of autopsies, body parts, and evi-dence is really just astonishing.Brigadier General Stephen N. Xenakis, U.S. Army (Ret.)442Former Commanding General of the Southeast Regional Army Medical Command
Accountability for detainee deaths caused by criminalmisconduct is impossible if evidence is never collected,or not catalogued, stored, or maintained following itscollection. For these reasons, the Army’s Manual onLegal Guidance to Commanders emphasizes: “[t]hemost difficult form of evidence to collect and preserveis also the most important – testimonial evidence.”443Ifevidence is missing or mishandled, it becomes uselessin any subsequent judicial proceeding.444Of criticalimportance is the autopsy, which was not required untilafter the revelations of Abu Ghraib, when the DefenseDepartment clarified policies for handling detaineedeaths.445Yet in case after case, before and after the Abu Ghraibphotos were released in 2004, Army criminal investiga-tors did not interview those most likely to havewitnessed a death, or the events leading up to it.Physical evidence was not collected, and evidence thatwas collected was at times grossly mishandled.Autopsies were not conducted, and bodies themselveswere treated carelessly. In some of these cases, theomissions were not crucial; where agents have
interviewed half a dozen bystanders, any remainingsimilarly situated witnesses are unlikely to add muchnew information.446But in others, deaths that appear tohave been caused by abusive detention or interroga-tion practices were not fully investigated, and chargescould not be brought.Human Rights First found 16 cases in which investiga-tors appear to have failed to collect useable evidenceand/or did not maintain evidence; flaws ranged from afailure to adequately examine a crime scene to thefailure to properly collect and maintain a decedent’sbody organs, or weapons used.447The result of manyof these failures: no accountability for U.S. forcesresponsible for the deaths.The case of Nagem Sadoon Hatab, detailed above, isillustrative. Because of a series of errors, the medicalevidence necessary to substantiate the prosecutors’case for death by strangulation was destroyed ormissing: Hatab’s body was allowed to partially decom-pose before autopsy; some of his organs weredestroyed in heat; body parts were stored on different
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continents;448and a neck bone was never found. Partlyas a result of these errors, six of the soldiers initiallycharged in his death were never court-martialed, andothers had their charges reduced or were acquitted.449In another case, criminal investigators were unable todetermine the cause of Abu Malik Kenami’s deathbecause no autopsy was performed; Kenami died afterhe was cuffed and hooded in a crowded cell.450Criminal investigators also failed to interview keywitnesses, including detainees, other interrogators andmedics who treated Kenami.451As a consequence, noone has been held accountable.In more than a dozen cases, Human Rights First alsofound a failure to interview key witnesses, ranging fromother detainees who witnessed the death, to militarypersonnel with possible knowledge of the circum-stances of the death.452For example, in the case ofNasef Ibrahim, the failure to interview the decedent’sson, who was with his father at his death,453meant thatinvestigators never learned that abusive detentionpractices may have contributed to the death. Theinvestigation into the death of Abed Mohammed Najemwas similarly scant; a subsequent Army review itselfcriticized the original investigators’ failure to interviewwitnesses to a death allegedly due to hunger strike.454
tions.”461Once an investigation is completed, thecommander must review the case and, in consultationwith military lawyers, determine what disciplinaryaction to take.462While a criminal investigation isongoing, a commander may not take actions that couldaffect or pre-empt the investigation, in order to allow itto reach an unbiased result.463Indeed: “Commandersare prohibited from interfering with the investigations orimpeding the use of investigative techniques.”464
The Impact of Public AttentionAfter the prolonged public exposure of the Abu Ghraib torturescandal, the Army’s Criminal Investigation Division Headquar-ters initiated an operational review of all detainee abuse anddeath cases, in Iraq and Afghanistan, which were then on file.465Army criminal investigators assessed the quality of the investiga-tion report based on the file; they did not conduct anindependent investigation. The reviewers’ findings were ap-pended to the investigation reports, some of which have beenpublicly released. Of the 42 criminal or administrative investiga-tions into the detainee deaths Human Rights First reviewed,seven include notes from this operational review.466Armyreviewers found two of the original investigations to be ade-quate, but identified flaws in the others.467The reviewers alsofound eight investigations to be incomplete because autopsyreports had not been included in the original investigationreports.468It was only after these files were reviewed in May2004 that autopsy reports were sent for eight deaths that hadoccurred as far back as August of 2003.469In July 2004, investi-gators at the Army Criminal Investigation Division headquartersalso reviewed rosters of prison deaths, and discovered whatappeared to be four previously unreported deaths.470Theyopened investigations into at least two of these deaths, one ofwhich had occurred in 2003471and the other in April 2004.472Too often these reviews have come only after public exposure ofa death. The fact that the subsequent reviews have repeatedlyshown circumstances worse than those originally found raisesserious questions about the quality of investigative practicewhen the cameras are not focused squarely upon investigations.And they raise questions about the validity of the investigationsinto more than 60 deaths that are still listed as of unknownnature or of natural causes. These questions underscore theimportance of building in more robust, independent checks ofprisoner abuse and death.
No Reporting, Underreporting,and Delayed Reporting of Deathsin CustodyApart from being a regulatory requirement, it iscommon sense that an investigation into an allegedcrime should begin as soon as possible after itsdiscovery. Delay in reporting can reduce the eviden-tiary value of both physical evidence and witnessstatements.455The Army’s own Legal Guide forCommanders explains: “As time passes, witnessesmay forget, develop a biased view of the facts, hesitateto give statements, or become difficult to find. Thescene of the incident may also change, perhaps due torepairing damaged property or moving evidence.”456For this reason, Army regulations require commandersto report the deaths of detainees in their custody within24 hours of the incident.457The standards governing command behavior inresponse to a death in custody are particularlystringent. Commanders are required to report criminalincidents458and cooperate in any ensuing investiga-tion;459they may release “accurate and timely”information to the public,460but may not releaseinformation “concerning ongoing [criminal] investiga-
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Yet the possibility of accountability in at least 17 casesexamined by Human Rights First was compromisedfrom the beginning as a result of delays in reporting adeath, failure to report a death at all, and in one case,commanders’ deliberate attempt to conceal the deathof a detainee.473Delays in reporting of incidents ofdeaths in custody were neither isolated nor limited to ahandful of cases. An Army tally of criminal investiga-tions into prisoner abuse as of November 2004suggests that as many as 17 detainee deaths were notreported through proper channels. (The Army’s tally isheavily redacted, but based on dates of deaths, eightof the Army’s cases overlap with those Human RightsFirst identified).474Our examples include:•The death of an unnamed Afghan, killed whilebeing questioned by Army Special Forces in Janu-ary 2003, was not reported to criminalinvestigators at all. Instead, the “[b]asic allegation[was] discovered during the conduct of anotherCID investigation” and an investigation wasopened only in September 2004,475over one and ahalf years after the death occurred.The death of Hamza Byaty in Iraq on August 7,2003 was not reported until over two weeks after itoccurred.476Army criminal investigators had diffi-culty finding witnesses,477and perhaps as a resultof this delay, the autopsy could only find that hehad died of an “undetermined atraumatic cause.”478Army criminal investigators were not informed ofIraqi detainee Mohammed al-Izmerly’s death until17 days after it occurred on January 31, 2004. Bythat time, the body had been released to al-Izmerly’s family and Army investigators could notconduct an autopsy.479Four deaths that occurred during riots at AbuGhraib prison in Iraq on November 24, 2003 werenot reported to Army criminal investigators untilDecember 2, 2003. As a result, investigators werenot able to examine the body of one of the victims,which had already been taken away from theprison.480Hadi Abdul Hussain Hasson al-Zubaidy (Hasson)died in at Camp Bucca in Iraq in the middle of2003, but Army investigators did not learn of Has-son’s death until a year after it occurred.481Theresulting investigation could not determine a causeof death or any other information about circum-stances.
Criminal InvestigationsThe Army’s CID is the sole agency responsible for investigat-ing felony crimes that involve Army personnel and that carry amaximum punishment of one or more years of confinement.482CID agents—approximately 2000 soldiers and civilians and900 special agents483— are deployed worldwide and areconcentrated in combat zones.484For every investigation, CIDagents are required to maintain detailed records of theirinvestigation plans and the outcomes of any investigation.485The final investigation report includes the findings of theagents,486pending leads,487chronological summaries of theinvestigative proceedings,488and any other relevant docu-ments (such as medical reports or crime lab results).489Draftsare reviewed by a Special Agent in Charge490and, oncecompleted, the official report is forwarded to the local JAGunit for legal review, including whether the facts warrantprosecution and the charges that may be brought.491After thelegal review, the final report is forwarded to CID Headquartersat Fort Belvoir, Virginia,492where the case is reviewed againto determine if it merits further investigation or if it may beclosed.493Based on the report of the investigating CID agent,the commander of the soldier’s unit will consult with thecommander’s assigned JAG officer to decide whether or notto follow the recommendations. The decision to press chargesis at the discretion of the unit’s commanders.494
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Overlapping InvestigationsThe effectiveness of internal investigations was alsoundermined in a number of instances by careless useof the Army’s multiple-investigative-avenues structure– one in which commanders have the option to requestboth administrative and criminal investigations thatmay run on parallel tracks. In some instances, anadministrative investigation may be an effective meansof conducting an investigation into wrongdoing. MajorGeneral Antonio Taguba’s investigation into thedetention and internment operations of the 800thMilitary Police Brigade in the context of the Abu Ghraibabuse scandal, for example, is a model of an adminis-trative investigation conducted with objectivity andthoroughness.495But review of the individual deaths that were subjectsof both criminal and administrative investigationsindicates that the existence of both investigativeprocedures, each with their own reporting and eviden-tiary standards, has sometimes functioned to reduceaccountability for unlawful acts.496In one case, asubsequent criminal investigator simply served to
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“rubber stamp” a prior administrative investigation.497Inat least one other case, administrative investigatorsfailed to observe the standards of evidence collectionrequired in criminal investigations and, as a result, thepossibility of prosecution for what turned out to be acriminal offense was limited.498The “rubber stamp” problem is in part structural: undera policy memorandum issued on April 3, 2002, Armycriminal investigators were authorized to decide that anadministrative investigation into allegations of feloniesor war crimes committed against detainees wasadequate and close the case without independentinvestigation.499An example of the problem is the investigation into thedeath of Sajid Kadhim Bori al-Bawi, the Iraqi actor whowas shot and killed in his Baghdad home. Theadministrative investigation found the shooting to bejustified; it concluded that al-Bawi had grabbed at aU.S. soldier’s rifle, switched the safety off, and that thesoldier then fired his pistol five times in self-defense.500Public statements about the killing made by the militarywere consistent with these findings.501But subsequentarticles in theWashington Postand theBoston Globedetailed the family’s allegations of wrongdoing by U.S.forces.502These articles were in the criminal investiga-tion file;503despite this, the criminal investigating agentspent an hour and a half reviewing the administrativeinvestigation, and did not attempt any independentverification before requesting approval from his unit’sStaff Judge Advocate to close the case.504The criminalinvestigators concurred in the administrative investiga-tion’s finding that the killing was in self-defense.505Another example is the criminal investigation reportinto the shooting death of an Iraqi detainee at CampCropper, Akel Abedal Hussein Jabar; the criminalinvestigation report also references an attachedadministrative investigation into the detainee’s death.506Jabar, an Iraqi detainee, was ostensibly killed during ariot. The file contains an “Outstanding Leads Work-sheet,” which lists 17 items for follow-up, includingsuch basic investigation tasks as completing the crimescene examination, sending evidence to a lab forforensic evaluation, interviews of soldiers and detaineewitnesses to the death, collection of the weapon andshell casings used to shoot Jabar, and conduct of anautopsy.507None of the leads was followed and thecriminal investigating agent, the Special Agent inCharge, and the Staff Judge Advocate concluded theadministrative investigation adequately supported afinding of justifiable homicide.508
Administrative InvestigationsAdministrative investigations, or so-called “Army Regulation15-6 investigations,” are standard procedures for administra-tive fact-finding in the Army509and “may be used as a generalguide for investigations”510into anything from a series ofbroken air-conditioners, to a missing soldier, to a death incustody.511At its inception, the appointing commanderdesignates whether the administrative investigation will beformal or informal,512and assigns an investigating officer whoneed not be a professional investigator or lawyer.513Proce-dural guidelines and documentation standards depend onwhether an investigation is formal (more stringent require-ments; require proceedings to be documented) or informal(not required to meet specific guidelines; no documentation ofproceedings required).514On completion, the report of anadministrative investigation must be submitted to the appoint-ing commander’s JAG officer for legal review,515thenprovided to the appointing commander, who determines whataction, if any, should be brought.516In making that determina-tion, the appointing commander is “neither bound nor limitedby the findings or recommendations of an investigation.”517Administrative investigations can only be used to investigatean incident or individual within the appointing commander’schain of command, in other words, the investigator cannotinvestigate wrongdoing at the level of, or higher than, thecommander who initiated the investigation.518
Inadequate Record KeepingOne of the fundamental tenets of the laws of war isthat full and adequate records regarding the captureand treatment of detainees must be kept;519a host ofDepartment of Defense and Army regulations codifythis requirement.520Yet in more than a dozen cases,these regulations were not followed, and investigationsinto most of these detainee deaths appear to havebeen undermined as a result.521The Army’s medical record-keeping was particularlypoor, with detainees’ medical records often leftincomplete or entirely missing. Thus, although Armyinvestigations found that fourteen detainees died ofnatural causes because of pre-existing conditions,522atleast five case files do not include records document-ing these conditions.523In some instances, this appearsto have been an administrative oversight by criminalinvestigators who may not have requested records.524In others, however, there were simply no medicalrecords to be found. For example, although it waspolicy at Iraq’s Camp Warhorse that a record of a
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detainee’s intake medical screening be attached to hisdetainee file, the officer who investigated HassanAhmed’s death found that there was “no documenta-tion of a medical screening . . . in his file.”525This wasalso certainly the case in the deaths of at least two“ghost” detainees526killed in American custody –prisoners whose names were unlawfully kept off theprison’s rolls in an effort to keep the InternationalCommittee of the Red Cross from knowing aboutthem.527It was also at times a matter of policy. Forexample, until mid-August 2004, at Camp Warhorse,no records had been kept of “sick call” treatment givento detainees.528The administrative officer who investi-gated the death of an unidentified detainee at thatfacility recommended that “[a]ll medical informationand encounters… [be] documented,” because suchrecord keeping was “standard of care throughout theworld.”529For criminal investigators, the absence of medicalrecords can be pivotal. Inadequate records kept in thecases of Hadi Abdul Hussain Hasson al-Zubaidy andJassim Al-Obodi made determining the cause of deathimpossible.530Without basic records, there was nobasis in either of these cases to determine or substan-tiate the cause of death, let alone seek anyaccountability for it.
Medical RecordsThe Army Surgeon General’s April 2005 Report on DetaineeMedical Operations in Iraq, Afghanistan, and Cuba found“wide variability in medical records generation at level I and II[non-hospital] facilities. In some cases, no records weregenerated . . . . In others cases, care was documented onField Medical Cards . . . only.”531Further, “[m]edical care,including screenings, at or near the time of interrogation, wasneither consistently documented nor consistently included indetainee medical records.”532Notable among omissions fromdetainees’ records, medical personnel “did not consistentlynor uniformly document [actual or suspected detainee] abusein the medical record,” and the Surgeon General’s investigat-ing team “discovered no DoD, Army, or theater policiesrequiring that actual or suspected abuse be documented in adetainee’s medical records.”533Even if those policies existed,they may not have been followed because “less than 3% ofmedical personnel surveyed from the AC [active component]and 7% from the RC [reserve component] . . . reportedreceiving training on detainee medical records.”534
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V. Failure of AccountabilityCommand is a sacred trust. The legal and moral responsibilities of commanders exceed thoseof any other leader of similar position or authority. . . .Our society and the institution look tocommanders to make sure that missions succeed, that people receive the proper training andcare, that values survive. On the one hand, the nation grants commanders special authority tobe good stewards of its most precious resources: freedom and people. On the other hand,those citizens serving in the Army also trust their commanders to lead them well.U.S. Department of the Army Field Manual on Leadership 22-100
There are surprisingly few detainee death cases inwhich anyone has been identified as responsible; thereare fewer still in which someone accused of wrongdo-ing has been punished. Of the 34 homicide casessurveyed in this report,535investigators recommendedcriminal charges in fewer than two thirds,536andcharges were actually brought in less than half.537In theend, we know of only 12 detainee deaths that haveresulted in punishment of any kind for any individual.538The punishments in eight of the 12 cases appearstrikingly lenient.539Critically, only half of the cases ofdetainees tortured to death have resulted in punish-ment; the steepest sentence for anyone implicated in atorture-related death has been five months in jail.540While it is difficult to assess the systemic adequacy ofpunishment when the deliberations of juries andcommanders remain largely unknown, two things areclear: (1) command has played a key role in undermin-ing chances for full accountability, and (2) investigativeand evidentiary failures have limited accountability upand down the chain of command.
The Role of CommandCommand failures to provide clear guidance and lawfulinstruction on interrogation and detention rules appearto have played a role in limiting accountability, espe-cially in cases involving torture. Punishments fortorture-related deaths have been much less severethan punishments meted out for homicides involving,for example, a wrongful shooting. In part, evidence ofcommand’s responsibility in the torture cases may havecaused military juries or judges to award lenientsentences or accept lesser pleas for lower rankingtroops; if troops received guidance that appeared tojustify (or turn a blind eye to) harsh or torturoustreatment, or if they received no guidance, it couldseem unfair to hold them solely or fully accountable fora death.Indeed, inadequate or unlawful guidance has beenraised as an issue in at least four detainees’ deaths.541For example:•In court martial proceedings against Chief WarrantOfficer Lewis Welshofer, for the murder of Iraqidetainee General Abed Hamed Mowhoush, Wel-shofer claimed that he was “not at all” trained forthe interrogation of captured detainees.542He un-derstood he was authorized to force Mowhoush
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into a sleeping bag based in part on a memoran-dum from General Ricardo Sanchez, the highest-ranking military official in Iraq at the time.543In thatmemorandum, General Sanchez authorized harshinterrogation techniques, including sleep and envi-ronmental manipulation, the use of aggressivedogs, and stress positions – even as Sanchez ac-knowledged that other countries might view thesetechniques as inconsistent with the Geneva Con-ventions.544That memorandum was the only in-theater guidance Welshofer testified he received.545The use of the sleeping bag technique was alsoauthorized by Welshofer’s Company Commander,Major Jessica Voss.546Welshofer was charged withmurder but found guilty of negligent homicide, forwhich he received a reprimand, a $6,000 fine, andconfinement to his home, base, or place of worshipfor 60 days.547Voss was not criminally charged.•Lieutenant Colonel Thomas J. Berg, the Armyjudge who oversaw a pretrial inquiry in the death oftwo Afghan detainees Dilawar and Habibullah,noted that the Military Police Company responsiblefor detainees at the Bagram detention facility hadnot been adequately trained before deployment forits mission; Berg recommended that charges bedropped against the accused officer, CaptainChristopher M. Beiring.548An administrative investigation into the death ofIraqi Obeed Hethere Radad, shot to death in hisdetention cell by Army Specialist Juba Martino-Poole, found that Martino-Poole violated theArmy’s use of force policy.549The investigation alsofound that there were no written standard operatingprocedures and that there was inadequate clarityon the use of force with regard to detainee opera-tions at the base.550Martino-Poole was dischargedby his commander before a criminal investigationcould be completed; the investigation ultimatelyfound probable cause to charge him with murder.551
Of all Deaths, Only 12 Have Resulted in PunishmentPunishment& DefensePeople charged with anyoffense related to thesedeaths556
Deaths involvingtorture (four)55428557
Deathsnot involvingtorture (eight)55525558
People who receivedany kind of punishmentHighest rank punishedfor a deathConvictions with jail timeDefendants asserting atcourt-martial their lack oftraining or that actionswere authorized as adefense.Highest punishment
20559Major56145636565
15560Major56265641566
5 months in prisonand a bad-conductdischarge567
Reprimand569
25 yearsin prison568Reprimand570
Lowest punishment
•
Who was charged?Officers chargedOfficers punishedEnlisted personnelchargedEnlisted personnelpunishedCivilian contractorschargedCivilian contractorspunished
Deaths involvingtorture65715573
215751557715790 (trial pending)
Deaths notinvolving torture95726574
16576957800
Authorization and training are also at issue in casesimplicating the CIA. Recently, the judge in a federalcriminal case against CIA contractor David Passaroruled that Passaro can present evidence that he wasfollowing orders in his interrogation of Abdul Wali, anAfghan detainee.552The government alleges that in thetwo days before Wali died, Passaro beat Wali with hisfists and a flashlight.553As of February 2006, the case isproceeding toward trial.
In addition to the failure to provide clear guidance,commanders have in some cases exercised theirdiscretion to lessen the punishment subordinates aregiven following investigations in which troops are foundresponsible for wrongdoing.•In the case of Mohammed Sayari, an Afghanallegedly shot to death by U.S. Special Forces,criminal investigators found probable cause to rec-ommend charges of conspiracy and murder
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against four members of the Special Forces unitand dereliction of duty charges against three of thefour.580Among these, investigators recommended acaptain be charged with murder, conspiracy, dere-liction of duty, and obstruction of justice (likelybecause the captain ordered a subordinate to de-stroy evidence).581Criminal investigators alsorecommended that a fifth, a chief warrant officer,be charged as an accessory after the fact.582Yetthe commander of the 2/3 Special Forces Group,based in Fort Bragg, decided not to pursue any ofthe recommended charges in a court martial.583Instead, the captain was given only received a writ-ten reprimand for destruction of evidence; chargesagainst other Special Forces soldiers weredropped.584The reasoning behind the commander’sdecisions is unknown.•After their subordinates ordered two Iraqis to jumpinto the Tigris River, resulting in the death of one,Zaidoun Hassoun, three Army commanders failedto inform criminal investigators of the incident.585The commanders – Lt. Col. Nathan Sassaman, thebattalion commander, Captain Matthew Cunning-ham, a company commander, and Major RobertGwinner, the deputy battalion commander – alleg-edly ordered subordinates to deny the incidentoccurred, to resist cooperation with criminal inves-tigators,586and they “coach[ed]” their soldiers onwhat to say to investigators.587The three later ob-tained grants of immunity from prosecution, andadmitted at their subordinates’ trial that their sub-ordinates had forced Hassoun to jump into theTigris.588Sassaman, Cunningham and Gwinnerreceived reprimands for obstruction of justice butwere not relieved of their command.589Four of theirsubordinates were charged in connection withHassoun’s death, two were acquitted of man-slaughter but received punishment for assault,590and two others received non-judicial punishment,details of which have not been disclosed.591Thehighest punishment any of the four junior soldiersreceived was six months imprisonment, reductionin rank, and a fine of $2,004.592By the time criminal investigators completed theirwork and found cause to charge Army SpecialistJuba Martino-Poole with murder in the death ofIraqi Obeed Hethere Radad, Martino-Poole’s com-mander, Major General Raymond T. Odierno, hadalready given Martino-Poole a discharge.593Martino-Poole did not, therefore, have to face thepossible harsher punishment of a criminal proceed-ing. The reasons for Major General Odierno’sdecision are unknown.
Perhaps most significant, commanders themselvescontinue to escape accountability almost entirely.Again, this has been particularly striking in torture-related deaths, where command guidance and policyhave been directly implicated; in these cases, enlistedpersonnel have been punished at a rate three timesgreater than those in command.Both U.S. and international law provide that command-ers are responsible for the acts of their subordinates;this law of command responsibility was discussed indetail by the U.S. Supreme Court since in a landmarkcase following World War II.594Commanders are liablefor the acts of their subordinates in the chain ofcommand if commanders: (1) exercised effectivecontrol over those subordinates; (2) knew or hadreason to know of their subordinates’ unlawful conduct;and (3) despite that knowledge, failed to take reason-able and necessary measures to prevent theirsubordinates’ conduct.595Despite this longstanding rule, no civilian official orofficer above the rank of major responsible for interro-gation and detention policies or practices has beencharged in connection with any death of a detainee inU.S. custody, including the deaths of detainees bytorture or abuse. Consider these examples.•Only 28% of the individuals charged in connectionwith a death in custody and 31% of those who re-ceived any kind of punishment are officers; themajority of those charged and punished are non-commissioned personnel.The highest ranking officer to be held responsiblefor detainee death is a Major: Major Clarke Pauluswas convicted of dereliction of duty and maltreat-ment for ordering a subordinate to drag Iraqidetainee Hatab by the neck, and for allowing Hatabto remain unmonitored for hours in the blazing Iraqisun; he was discharged but received no prisontime.596Major Jessica Voss received a reprimandfor her failure to provide adequate supervision inthe death of Iraqi General Mowhoush; she was notcharged in the death.597Lt. Col. Nathan Sassaman, Captain MatthewCunningham, and Major Robert Gwinner, the threecommanders who attempted to cover up Iraqi de-tainee Hassoun’s death and who instructed theirsubordinates not to cooperate with investigators,were not punished in connection with the death.They received only reprimands for obstruction ofjustice.598
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Captain Carolyn Wood was the commander incharge of the 519th Military Intelligence Battalion,members of which were involved in the killing ofAfghan detainees Habibullah and Dilawar. Withinweeks of those killings, Wood was awarded thefirst of two Bronze Star medals for “exceptionallymeritorious service.”599She was subsequently as-signed to the Army’s Intelligence Center in FortHuachuca, Arizona.600Human Rights First soughtto verify whether Captain Wood was an instructorfor new interrogators but was told by a Fort Hua-chuca representative that the information could notbe disclosed.601No action has been taken to discipline or otherwisehold accountable Colonel David A. Teeples, com-mander of the 3rd Armored Cavalry, on whosewatch two senior members of the Iraqi military,General Mowhoush and Lieutenant ColonelJameel, died of abuse.602Lt. Gen. Ricardo S. Sanchez, U.S. Army Com-mander of the Coalition Joint Task Force in Iraq in2003 and 2004, who authorized the use of sleepand environmental manipulation, aggressive dogs,and stress positions against detainees,603was pro-moted to head the Army’s V Corps in Europe.604Chief Warrant Officer Welshofer pointed to one ofSanchez’s memoranda as a basis for his belief thathe could use a sleeping bag technique that lead tothe death of Iraqi General Mowhoush.605GeneralSanchez recently indicated plans to retire early.606In 2005, three members of the 82nd AirborneDivision came forward to describe abuse of detain-ees by members of their Division in bothAfghanistan and Iraq; they specifically describedsystematic and recurrent torture and other abuse ofIraqi detainees from September 2003 to April 2004,during their deployment.607Major General CharlesH. Swannack, Commander of the 82ndAirborne,has not been held accountable for the acts of hissubordinates.608
Failures of Investigation and EvidenceAs the case stories reviewed in this report make clear,repeated failures to adequately investigate, document,or pursue cases in the face of allegations of wrongdo-ing or abuse have been central contributing factors increating the accountability gap. While a few non-torture-related homicides have resulted in stiff sen-tences,609more have led to no punishment at all, or tosentences that seem strikingly lenient compared to theseverity of the offense.Examples of cases in which investigative failures or alack of action have undermined accountability include:•In the death of Hatab, key evidence (the detainee’sbody) was destroyed, and partly as a result,charges of negligent homicide against a soldiercould not be supported and were reduced to as-sault and battery.610In a prosecution against an officer for the deaths ofHabibullah and Dilawar, the hearing officer in anarticle 32 proceeding (analogous to a grand juryproceeding) criticized the prosecution in part for notpresenting sufficient evidence to support theircharges before recommending that the case bedismissed.611Mohammad Munim al-Izmerly, a 65-year-old Iraqichemist who died in January 2004, was found bythe Director of Baghdad Hospital’s Department ofForensics, Dr. Faik Amin Baker, to have “died froma massive blow to the head”612The investigationinto al-Izmerly’s death was re-opened after pressattention, and, two years since his death, remainspending.613The Army autopsy of the death of Dilar Dababa,reviewed by Human Rights First, describes a num-ber of injuries in detail, indicating he was therecipient of numerous beatings.614Dababa’s bodywas covered with at least 22 bruises,615and at least50 abrasions,616with his head and neck sufferingthe most significant harm, resulting in hemorrhag-ing throughout his brain.617Dababa died in June2003. Since then, there has been no documenta-tion of the outcome of the investigation into hisdeath or of charges being brought against thoseresponsible.618Fashad Mohammed died in April 2004.619Accord-ing to the Army Medical Examiner’s autopsy report,“he was hooded, sleep deprived, and subjected tohot and cold environmental conditions, includingthe use of cold water on his body and hood.”620Thereport found multiple abrasions and contusions,621
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and although the cause of death was listed as un-determined, the report explicitly did not rule outasphyxia “from various means” as a possible con-tributing factor.622It does not appear that anymurder or manslaughter charges were brought asa result of Mohammed’s death. Although threeNavy SEALS have been charged with assault andother lesser charges, the status of the charges hasnot been publicly disclosed.623In addition to highlighting other systemic defects,investigative and evidentiary lapses themselves raiseconcerns about command’s failure to police the rulesgoverning how crimes should be investigated andevidence maintained. At all stages in the investigationof deaths or other abuses, from investigation to (ifjustified) prosecution and punishment, command hassignificant work to do – work that to date has gone toooften undone.
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VI. The Path AheadI was part of a three-man Army JAG officer team sent by the Judge Advocate General's Schoolin Charlottesville, at the time of the Vietnam War, to lecture on our obligations under the Ge-neva Conventions. The interest shown in Geneva’s requirements by our toughest fighters, andtheir perceptive questions, was a revelation to me. That is because they wanted to know thatthey were doing the right thing. I am sure that our fighting men and women still do . . . . If we donot yet understand what has been lost by disregarding these rules, at least it is beginning topermeate the collective understanding that by failing to live up to them we are placing our ownpeople in constant danger of retaliation. At the same time, of course, we are helping a deter-mined enemy to recruit more volunteers against us.William S. Shepard, U.S. Army Reserve, Judge Advocate General’s Corps (Ret.)Interview with Human Rights First, November 9, 2005
Addressing the accountability gap documented in thisreport is critical both in the interest of justice and alsoas a matter of national security for the United States.The fear and suspicion that abusive interrogation anddetention practices have engendered among Muslimpopulations have undermined U.S. efforts to gatherintelligence, and to fight virulent insurgencies nowunderway. The persistent lack of clarity on the rulesgoverning detainee interrogation and detention hasexposed front-line soldiers to needless risk, andincreased the threat of harm for all U.S. officialsoverseas. And the secrecy that still permeates thesystem – including information about investigations,prosecutions, and steps toward accountability – raisesthe likelihood that torture and abuse will continue.Human Rights First urges the United States to developand implement a zero-tolerance policy for commanderswho fail to provide clear guidance to their subordinates,and who allow unlawful conduct to persist on theirwatch. The key elements of such a policy include thefollowing.•The President should move immediately to fullyimplement the ban on cruel, inhuman and degrad-ing treatment passed overwhelmingly by the U.S.
Congress and signed into law on December 30,2005. Full implementation requires first and fore-most that the President clarify his commitment toabide by the ban.•The President should instruct all relevant militaryand intelligence agencies involved in detention andinterrogation operations to review and revise inter-nal rules and legal guidance to make sure they arein line with the McCain statutory mandate and ex-isting constitutional and treaty obligations. ThePresident should issue regular reminders to com-mand that abuse will not be tolerated, andcommanders should regularly give troops thesame, serious message.The Defense Department, CIA and other relevantagencies should evaluate and update training forall U.S. officials engaged in human intelligence anddetention operations to ensure they have a fullpractical understanding of the implications of thebans on torture and cruel, inhuman or degradingtreatment – and the consequences of violating it.Personnel in each of the military and intelligenceagencies charged with investigating crimes by U.S.soldiers and agents must also receive regular, high
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quality training, so that when commanders do orderinvestigations those processes are thorough andcomplete.•The Defense Department, CIA and other relevantagencies should take steps to welcome independ-ent oversight – by Congress and civil society – byimmediately disclosing with specificity the status ofall investigations into, and prosecution of casesconcerning, detainee deaths, torture and abuse.Going forward, these agencies should establish acentralized, up-to-date, and publicly available col-lection of information about the status ofinvestigations and prosecutions (including trialtranscripts, documents, and evidence presented),and all incidents of abuse.The Departments of Defense and Justice shouldmove forward promptly with long-pending actionsagainst those involved in cases of wrongful de-tainee death or abuse, and state the basis ofdecisions not to prosecute.The U.S. military should make good on theobligation of command responsibility by develop-ing, in consultation with congressional, militaryjustice, human rights, and other advisors, a publicplan for holdingallthose who engage in wrongdo-ing accountable. Such a plan could include theimplementation of a single, high-level conveningauthority across the branches of the military forallegations of detainee torture and abuse. Theconvening authority would: review and make deci-sions about whom to hold responsible; take criticaldecisions about whether and when to chargetroops with crimes out of the hands of individualcommanders in the field; bring uniformity, certainty,and more independent oversight to the process ofdiscipline and punishment; and make the punish-ment of commanders themselves more likely. Anaccountability plan might also include, for example,an increase in the maximum allowable punish-ments for maltreatment, dereliction of duty, andother offenses under the Uniform Code of MilitaryJustice that are applicable in cases of abuse.
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Congress should implement a check on officerpromotions – such as those put in place for theNavy following the Tailhook scandal – by requiringthat each branch of the military certify, for any offi-cer whose promotion requires Senate confirmation,that the officer was not involved in any case of de-tainee death, torture or abuse.Congress should at long last establish an inde-pendent, bipartisan commission to review thescope of U.S. detention and interrogation opera-tions worldwide in the “war on terror.” Such acommission could investigate and identify the sys-temic causes of failures that lead to torture, abuse,and wrongful death, and chart a detailed and spe-cific path of recommendations going forward tomake sure those mistakes never happen again.
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The “accountability gap” documented in this report isabout more than just a failure to correct past mistakes.It is about how the United States is conducting deten-tion and interrogation operations today, and whetherofficials up and down the chain of command – and inevery U.S. agency – recognize and answer for theconsequences that come with breaking the law. TheUnited States will not be successful at ending tortureand abuse until it has an established system designedto prevent abuse before it happens, punish it when itdoes, and deter any who might think it is possible to getaway with abuse.
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VII. AppendicesAppendix AThe NumbersVisual breakdown of Human Rights First’s findings.http://www.humanrightsfirst.info/pdf/06217-etn-app-a-hrf-dic.pdf
Appendix CGeneral Sanchez authorizes harsh interrogationtechniques, including stress positionsOn September 10, 2003, a memo from Lt. Gen. Ricardo S.Sanchez, then U.S. Army Commander of the Coalition Joint TaskForce in Iraq, authorized such harsh interrogation techniques assleep and environmental manipulation, the use of aggressive dogs,and the use of stress positions. The memo, discussed for the firsttime as evidence in the January 2006 trial of a Chief WarrantOfficer accused of involvement in a detainee’s murder, is atAppendix C. It underscores both the confusion in the military overthe applicability of Geneva Convention protections in Iraq andcommanders’ recognition that techniques could violate law:General Sanchez authorized harsh techniques even as herecognized that other countries might view them as inconsis-tent with the Geneva Conventions.http://www.humanrightsfirst.info/pdf/06124-etn-sep-10-sanchez-memo.pdf
Appendix BSecretary Rumsfeld authorizes coerciveinterrogation techniquesOn December 2, 2002, Secretary of Defense Donald Rumsfeldpersonally approved a list of interrogation techniques for use ondetainees at Guantanamo. Many of these techniques were notconsistent with international and U.S. law and contrary to theestablished rules and military standards governing detention andinterrogation as set forth in Army Field Manual 34-52. Theyincluded the use of “stress positions,” 20-hour interrogations, theremoval of clothing, the use of dogs, isolation, and sensorydeprivation. Although approved for Guantanamo, the techniqueswere later used by subordinates in Afghanistan and Iraq. Some ofthe techniques were later rescinded, and Secretary Rumsfeldpersonally approved a new list in April 2003, which still includeddietary manipulation, sensory deprivation and “false flag” (leadingdetainees to believe that they have been transferred to a countrythat permits torture). He also made clear that harsher techniquescould be used with his personal authorization. Appendix B containsthe December 2, 2002 authorization and list of techniques.Thehandwritten notation by Secretary Rumsfeld, on the first page,reads: “However, I stand for 8-10 hours a day. Why is standinglimited to 4 hours?”http://www.humanrightsfirst.org/us_law/etn/pdf/dod-memos-120202.pdf
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Appendix DJunior officer claims use of “sleeping bag technique”that caused detainee death was authorized stresspositionHuman Rights First’s analysis of deaths in U.S. custody includesthe case of Iraqi Major General Abed Hamed Mowhoush, whosuffocated to death after two soldiers forced him inside a sleepingbag, wrapped him in an electric cord, sat on him, and blocked hisairways. Chief Warrant Officer Lewis Welshofer faced a murdercharge at court martial. At an initial stage in the investigation, ChiefWelshofer was given a letter of reprimand by his commandingofficer, General Charles H. Swannack, commander of the 82ndAirborne Division. Both in a written rebuttal to Swannack’sreprimand and as part of his defense at court martial, ChiefWelshofer argued that he understood “the sleeping bag technique”was authorized by General Sanchez’s September 10, 2003 memo,which specifically authorized the use of stress positions. ChiefWelshofer was found guilty of negligent homicide and negligentdereliction of duty, and received punishment of a reprimand, a$6,000 fine, and movement restricted to his home, base, and placeof worship. Appendix D contains Chief Welshofer’s rebuttal to hisreprimand.The handwritten notation at the top, from hissuperior officer, General Swannack, reads: “Death was fromasphyxiation! I expect better adherence to standardsin the future!”http://www.humanrightsfirst.info/pdf/mem-dic021104.pdf
Appendix ERecord keeping failure means cause of deathmay never be knownAmong the investigation flaws identified in Human Rights First’sreview of deaths in U.S. custody are military investigators’ belatedefforts to find out what happened to some detainees whose deathswere never reported and whose cases simply slipped through thecracks. Hadi Abdul Hussain Hasson al-Zubaidy (Hasson) is one ofthose cases. Appendix E is an extract from the Army’s October2004 investigation report into Mr. Hasson’s death. As it describes,the Army’s eventual efforts to find out what happened to Mr.Hasson went nowhere because U.S. record-keeping aboutdetainees was so poor. According to a U.S. Mortuary Affairs officer:“the documentation on deceased Detainees was verylimited . . . the majority of the time prior to earlier this year[2004], when the Mortuary received the remains of a deceasedDetainee they would only know that the deceased was adetainee, and would not have any other info on the remains, sothey would have a list of the remains as unknown John Doe.”http://www.humanrightsfirst.info/pdf/06216-etn-dic-app-e.pdf
Appendix FArmy recommendation to lessen perceptionof cover upAbu Malik Kenami died after he was subjected to extreme exercise– made to stand up, then sit down, over and over again – thencuffed, hooded and returned to a crowded cell. The investigationinto his death is an example of other flaws Human Rights Firstidentified: investigators failed to conduct interviews of criticalwitnesses and did not gather and maintain physical evidence. TheArmy’s own subsequent review of the investigation into Mr.Kenami’s death found “it was weak in Thoroughness and Timeli-ness.” Appendix F contains two excerpts from the Kenamiinvestigation records. The first is the Army’s review of the initialcriminal investigation, and lists that investigation’s inadequacies.The second is anexcerpt from the Army’s administrativeinvestigation, which recommends that an Iraqi physician bebrought in to treat detainees because, among other benefits,“[i]t would [also] decrease the perception of our involvementor cover-up in events like these.”http://www.humanrightsfirst.info/pdf/06216-etn-dic-app-f.pdf
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Appendix GNo criminal investigation: shooting death of allegedlyelderly and disabled manAmong the deaths for which the official cause is unknown but whichHuman Rights First identifies as a possible homicide is an unnamedman, killed in Balad, Iraq, on January 3, 2004. The only publicly-available record of his death is in Appendix F, in which his family’sclaim for compensation is considered by U.S. forces – and denied.Human Rights First found no indication that the man’s death wascriminally investigated and has requested that information from theDepartment of Defense. According to Appendix G, U.S. forcesallege that the man, whom they describe as a suspected insurgent,reached for a pistol while detained during a raid on his home. Onthe second page of Appendix G is what the Army documentdescribes as a “verbatim transcription” of the man’s family’s claims.The family asserted that their father was shot without cause andattach medical records to support their assertion thatthe father“was [a] physically disabled retired old man, walking onlythrough the aid of crutches due [to] peripheral neuropathy andmuscular atrophy caused by long standing disease of DiabetesMellitus and hypertension . . .”http://www.humanrightsfirst.info/pdf/06216-etn-dic-app-g.pdf
Appendix HList of Human Rights First Freedom of Information ActRequestsLists the Freedom of Information Act requests Human Rights Firsthas filed in connection with deaths in U.S. custody.
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Appendix A – G (pages 47 – 98) are available online and in the printed version.
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Appendix HHuman Rights First’s Freedom of Information Act Requests Relating to Deaths in Custody1.June 11, 2004, Request to the U.S. Army CrimeRecords Center [CID] for all records and reports ofcriminal investigations by the Army Criminal Inves-tigation Command of possible misconduct againstdetainees in Iraq and Afghanistan since January2002.June 11, 2004, Request to the Central IntelligenceAgency for all records concerning investigations bythe Office of the Inspector General of the CentralIntelligence Agency of deaths of three detainees inIraq and Afghanistan in 2003 – Manadel al-Jamadi,Abid Hamid Mowhoush, and Abdul Wali.June 18, 2004, Request to the Department ofJustice for all records concerning the Departmentof Justice’s criminal investigation of alleged homi-cide of a detainee in Iraq or Afghanistan by acontractor employed by the Central IntelligenceAgency.July 20, 2005, Request to the U.S. Army CrimeRecords Center [CID] for all records relating to theArmy Criminal Investigation Command (CID) inves-tigation into the death of Sher Mohammed Khan.July 21, 2005, Request to the U.S. Army CrimeRecords Center [CID] for all records relating to anArmy Criminal Investigation Command (CID) inves-tigation with sequence number 0011-04-CID469-79630 (drowning death of Zaidoun Hassoun).July 21, 2005, Request to NCIS Headquarters forall documents related to the Naval Criminal Inves-tigative Service (NCIS) investigation into the deathof Nagem Sadoon Hatab.July 21, 2005, Request to the 5th Special ForcesGroup for all documents related to the Com-mander’s Inquiry conducted, pursuant to AR 15-6,into the death of Sajid Kadhim Bori al-Bawi on May17th, 2004, in Baghdad, Iraq.8.July 21, 2005, Request to the U.S. Army MedicalCommand for all medical records pertaining to thecare of Sher Mohammed Khan, including his au-topsy.July 21, 2005, Request to the 4thInfantry Divisionfor all records relating to the Commander’s Inquiryconducted pursuant to AR 15-6 to investigate theshooting death of Obeed Hethere Radad.
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10. July 22, 2005, Request to NCIS Headquarters forall documents relating to the Naval Criminal Inves-tigative Service (NCIS) investigation into thedeaths of Hamaady Kareem and Tahah AhmeadHanjil.11. July 22, 2005, Request to the U.S. Army CrimeRecords Center [CID] for all records relating to anArmy Criminal Investigation Command (CID) inves-tigation into the death of Lt. Col. Abdul Jameel.12. July 22, 2005, Request to Marine Corps BaseCamp Lejeune for investigation reports and sup-porting or otherwise related materials for allcommander’s inquiries commenced on or afterJanuary 1, 2002 within the 2nd Battalion of the 2ndMarine Regiment regarding incidents occurringoutside the territorial United States and involvingbodily injury or death.13. July 22, 2005, Request to Marine Corps BaseCamp Pendleton for investigation reports and sup-porting or otherwise related materials for allcommander’s inquiries investigations commencedon or after January 1, 2002 within the 3rd Battalionof the 1st Marine Regiment regarding incidents
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occurring outside the territorial United States andinvolving bodily injury or death.14. July 22, 2005, Request to the 301stMilitary Policefor investigation reports and supporting or other-wise related materials for all Army Regulation 15-6investigations commenced on or after January 1,2002 within the 301st Military Police regarding inci-dents occurring outside the territorial United Statesand involving bodily injury or death.15. July 22, 2005, Request to the 5th Special ForcesGroup for investigation reports and supporting orotherwise related materials for all Army Regulation15-6 investigations commenced on or after January1, 2002 within 5th Special Forces Group regardingincidents occurring outside the territorial UnitedStates and involving bodily injury or death.16. July 22, 2005, Request to the 4thInfantry Divisionfor investigation reports and supporting or other-wise related materials for all Army Regulation 15-6investigations commenced on or after January 1,2002 within the 1/8th Infantry Battalion of the 3rdBrigade of the 4th Infantry Division regarding inci-dents occurring outside the territorial United Statesand involving bodily injury or death.17. July 22, 2005, Request to the 4thInfantry Divisionfor investigation reports and supporting or other-wise related materials for all Army Regulation 15-6investigations commenced on or after January 1,2002 within the 4th Forward Support Battalion ofthe 4th Infantry Division regarding incidents occur-ring outside the territorial United States andinvolving bodily injury or death.18. July 22, 2005, Request to Marine Corps BaseCamp Lejeune for investigation reports and sup-porting or otherwise related materials for allcommander’s inquiries commenced on or afterJanuary 1, 2002 within the 2nd Regiment CombatTeam of the 2nd Marine Expeditionary Brigaderegarding incidents occurring outside the territorialUnited States and involving bodily injury or death.19. July 22, 2005, Request to the XVIII Airborne Corpsfor investigation reports and supporting or other-wise related materials for all Army Regulation 15-6investigations commenced on or after January 1,2002 within the 7th Special Forces Group regard-ing incidents occurring outside the territorial UnitedStates and involving bodily injury or death.20. July 22, 2005, Request to the 3rd Armored CavalryRegiment for investigation reports and supportingor otherwise related materials for all Army Regula-
tion 15-6 investigations commenced on or afterJanuary 1, 2002 within the 3rd Armored CavalryRegiment regarding incidents occurring outside theterritorial United States and involving bodily injuryor death.21. July 22, 2005, Request to the 1st Cavalry Divisionfor investigation reports and supporting or other-wise related materials for all Army Regulation 15-6investigations commenced on or after January 1,2002 within the 1st Battalion of the 41st InfantryRegiment of the 1st Cavalry Division regardingincidents occurring outside the territorial UnitedStates and involving bodily injury or death.22. July 22, 2005, Request to the XVIII Airborne Corpsfor investigation reports and supporting or other-wise related materials for all Army Regulation 15-6investigations commenced on or after January 1,2002 within the 519th Military Intelligence Battalionregarding incidents occurring outside the territorialUnited States and involving bodily injury or death.23. July 22, 2005, Request to the 20th Special ForcesGroup for investigation reports and supporting orotherwise related materials for all Army Regulation15-6 investigations commenced on or after January1, 2002 within the 20th Special Forces Group re-garding incidents occurring outside the territorialUnited States and involving bodily injury or death.24. July 25, 2005, Request to NCIS Headquarters forall records relating to a Naval Criminal InvestigativeService (NCIS) investigation into the death ofManadel al-Jamadi.25. July 25, 2005, Request to the U.S. Army CrimeRecords Center [CID] for all records relating to anArmy Criminal Investigation Command (CID) inves-tigation into the death of Manadel al-Jamadi.26. July 26, 2005, Request to the U.S. Army CrimeRecords Center [CID] for all records relating to anArmy Criminal Investigation Command (CID) inves-tigation with sequence number 0174-04-CID259,an investigation into a death which occurred at anunknown location, probably in Iraq or Afghanistan,on September 13th, 2003.27. July 27, 2005, Request to the U.S. Army CrimeRecords Center [CID] for all records relating to anArmy Criminal Investigation Command (CID) inves-tigation with sequence number 0233-04-CID789,an investigation into the possible death of a de-tainee at Abu Ghraib, Iraq, in June of 2004, as theresult of a blood transfusion of the wrong type.
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28. July 28, 2005, Request to the U.S. Army CrimeRecords Center [CID] for all records relating to anArmy Criminal Investigation Command (CID) inves-tigation with sequence number 0537-04-CID034,an investigation into a death which occurred at anunknown location, probably in Iraq or Afghanistan,on December 1st, 2003.29. August 1, 2005, Request to the U.S. Army CrimeRecords Center [CID] for all records relating to anArmy Criminal Investigation Command (CID) inves-tigation into the killing of Naser Ismail.30. August 2, 2005, Request to the U.S. Army CrimeRecords Center [CID] for all records relating to anArmy Criminal Investigation Command (CID) inves-tigation into the killing of Jamal Naseer.31. August 3, 2005, Request to the U.S. Army CrimeRecords Center [CID] for all records relating to anArmy Criminal Investigation Command (CID) inves-tigation with sequence number 0239-04-CID259,an investigation into a death which occurred atCamp Bucca, Iraq, on an unknown date.
32. August 5, 2005, Request to the U.S. Army CrimeRecords Center [CID] for all records relating to anArmy Criminal Investigation Command (CID) inves-tigation with sequence number 0326-04-CID056,an investigation into a death which occurred at anunknown location, probably in Iraq or Afghanistan,on an unknown date.33. August 8, 2005, Request to the U.S. Army CrimeRecords Center [CID] for all records relating to anArmy Criminal Investigation Command (CID) inves-tigation with sequence number 0035-03-CID259-61144, an investigation into the death of an IraqiArmy Private.34. August 10, 2005, Request to the Department ofDefense for all records relating to the detention,treatment, and transfer of Hadi Abdul HussainHasson al-Zubaidy, an Iraqi citizen, treated aboardthe USNS Comfort in 2003.
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VIII. Endnotes1
Human Rights First Telephone Interview with Hossam Mowhoush, son of Iraqi Maj. Gen. Abed Hamed Mowhoush (Sept. 22, 2005)(transcription on file with Human Rights First).
The total number of deaths in custody analyzed by Human Rights First is 98.Seeresearch compilation on file with Human Rights First,based on documents released under the Freedom of Information Act, press reports, and Human Rights First interviews (“DIC Table”).Unless otherwise specified, supporting citations in footnotes to a detainee’s last name refer to the entries concerning that detainee’s deathin the DIC Table, which is available upon request from Human Rights First. The DIC Table is organized chronologically by date of death.In a number of instances, the name of a detainee is not known, although the date and location of death is; such detainees have beensequentially numbered (Unknown 1, Unknown 2, etc.), based on date of death and are referred to in this Report by the sequential number.This Report focuses on deaths that implicate interrogation or detention policy or practice and Human Rights First includes in its count of 98deaths any death caused by one or more members of the U.S. Armed Forces or other official U.S. governmental agency while the personwas under U.S. control, including a death at a detainee’s home, a death during an alleged escape attempt, and death at the point ofcapture but after a person’s surrender. The 98 deaths also include ten deaths about which only minimal information, such as name or adate of death is publicly available, and for which there is no publicly available information on cause or circumstances of death. For thepurposes of this Report, Human Rights First has not included in its analysis deaths in situations where U.S. custody is open to question(including deaths allegedly caused at check-point stops where circumstances of the stop or surrender are unclear), or deaths allegedlycaused at a later point in time by injuries sustained during combat (including alleged “mercy” killings).The total number of deaths Human Rights First counts is 141; this number includes 38 detainees who died when their detention facilitieswere struck by mortar attacks, and five deaths of detainees killed in U.S. custody by other detainees. While these latter 43 deaths are ofconcern – and appear to be in part a reflection of poor operational decisions, noted by former Defense Secretary James Schlesinger, tohouse detainees in areas of active danger – they were not a function of interrogation or detention policy or practice.SeeFINAL REPORTOF THE INDEP. PANEL TO REVIEW DOD DETENTION OPERATIONS, Aug. 2004, at 63, 77.We use the same definition of “homicide” as the Army’s Criminal Investigation Division: “Death resulting from the intentional (explicit orimplied) or grossly reckless behavior of another person or persons.” As the Army itself points out, this definition is different from murder,which, like manslaughter, is a legal term that requires a judge or jury to find that the intent behind the death had a degree of malicious-ness. Dep’t of the Army, Criminal Investigation Division,Frequently Asked Questions,http://www.cid.army.mil/faqs.htm (accessed Feb. 3,2006) (citing to Title 18, U.S. Code definition of “Murder” as “the unlawful killing of a human being with malice aforethought.”).SeeDICTable: There are 20 homicides in which investigators found unjustified homicide or in which there were prosecutions for a death and 14that investigators found justifiable. The 20 unjustified homicides are: Sayari (criminal investigators found probable cause for conspiracy tomurder); Dilawar and Habibullah (probable cause for crimes ranging from involuntary manslaughter to lying to investigators); Unknown 2(murder charge); Hatab (charges initially brought included voluntary manslaughter; commanders later dropped the charge), Wali (federalcriminal assault charges in connection with death); Radad (criminal investigators found probable cause for murder); F. Mohammed(prosecutors brought charges including assault with intent to cause death); al-Jamadi (pathologist ruled case a homicide; court martial forassault and battery); Mowhoush (court martial brought on murder charge); Hassoun (two soldiers charged with manslaughter, one othercharged with involuntary manslaughter); Ismail (soldier charged with murder, but acquitted); Jameel (criminal investigators recommendedcharges including negligent homicide); Kadir (manslaughter conviction); Kareem and Hanjil (criminal investigators recommended, andcommanders considered but ultimately dropped, murder charges); Unknowns 18 and 19 (two soldiers court-martialed for murders,received 25 and 5 years in jail, respectively); T. Ahmed (soldier guilty of murder); Unknown 22 (soldier charged with murder). The 14deaths found by the military to be justified homicides are: al-Haddii; Jabar; A. Hassan; Unknown 7; Sayar; Salman; Shalaan; Thawin; Amir;Farhan; K. Mahmood; al-Bawi; Ghafar and Habib.43
2
See18 U.S.C. §2340 (1998) (“‘torture’ means an act committed by a person acting under the color of law specifically intended to inflictsevere physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within hiscustody or physical control”).SeeDIC Table: The detainees tortured to death are: Habibullah; Dilawar; Naseer; Abdul Wali; Unknown 1(detainee killed at the “Salt Pit” facility in Afghanistan); al-Jamadi; Mowhoush; and, Jameel. In addition, the publicly-available evidence andcircumstances surrounding the deaths of Dababa, F. Mohammed, Hatab and al-Izmerly raise concerns that they may also have beensubjected to torture.
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Dep’t of the Army, CID,CID Report of Investigation – Initial/Final SSI – 0037-04-CID201-54050(Nov. 16, 2004),available athttp://www.aclu.org/torturefoia/released/042105/9290_9388.pdf, at 68-69 (accessed Feb. 3, 2006). Throughout this Report, page numbercitations for PDF files of records released by the military and other government agencies refer to the physical number of pages in the filesand may not correspond to agency-assigned page number stamps.Human Rights First Telephone Interview with Mohammed Mowhoush, son of Iraqi Major General Abed Hamed Mowhoush (Nov. 9, 2005)(transcription on file with Human Rights First).786
Josh White,Documents Tell of Brutal Improvisation by GIs,WASH. POST, Aug. 3, 2005, at A1 [hereinafter White,Brutal Improvisation].
Monte Morin and Alissa Rubin,Abuse Suspected in Iraqi General’s Death,L.A. TIMES, May 23, 2004, at A9; GlobalSecurity.org, IraqFacilities, FOB Tiger, Al Qaim,available athttp://www.globalsecurity.org/military/world/iraq/al-qaim.htm (accessed Feb. 3, 2006).9
GlobalSecurity.org, Iraq Facilities, FOB Tiger, Al Qaim,available athttp://www.globalsecurity.org/military/world/iraq/al-qaim.htm(accessed Feb. 3, 2006).
10
Human Rights First notes from observation of Welshofer court martial, Day Four, Jan. 20, 2006,available athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006); Eric Schmitt,Army Interrogator IsConvicted of Negligent Homicide in 2003 Death of Iraqi General,N.Y. TIMES, Jan. 23, 2006, at A16.Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with HumanRights First), excerptsavailable athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006).12131411
Id.Id.;Josh White,U.S. Army Officer Convicted in Death Of Iraqi Detainee,WASH. POST, Jan. 23, 2006, at A2.
Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with HumanRights First), excerptsavailable athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006).While the Administration had issued guidance stating that the Geneva Conventions would apply in Iraq (Department of Defense NewsRelease, Briefing on Geneva Convention, EPW’s and War Crimes, (Apr. 7, 2003),available at,http://www.defenselink.mil/transcripts/2003/t04072003_t407genv.html (accessed Feb. 3, 2006)), this guidance conflicted with other publicstatements. Secretary of Defense Donald Rumsfeld said, “technically unlawful combatants do not have any rights under the GenevaConventions.” Dep’t of Defense News Briefing, Secretary of Defense Donald Rumsfeld and Joint Chiefs of Staff Chairman GeneralRichard Myers (Jan. 11, 2002),available athttp://www.defenselink.mil/transcripts/2002/t01112002_t0111sd.html (accessed Feb. 3, 2005);See alsoHuman Rights First, ENDINGSECRETDETENTIONS, (June 2004) at 11–12,available athttp://www.humanrightsfirst.org/us_law/PDF/EndingSecretDetentions_web.pdf (accessed Feb. 3, 2005) (describing changes in designa-tions for detainees in Iraq). It also conflicted with how detainees were classified and held throughout Iraq in practice. Dep’t of the Army,The Inspector General, DETAINEEOPERATIONSINSPECTION(July 21, 2004) at 76,available athttp://www.humanrightsfirst.org/us_law/PDF/abuse/mikolashekdetaineereport.pdf (accessed Feb. 3, 2006).; MAJ. GEN. GEORGER. FAY, AR15-6 INVESTIGATION OFINTELLIGENCEACTIVITIES ATABUGHRAIB, Aug. 2004, at 11-12,available athttp://www4.army.mil/ocpa/reports/ar15-6/AR15-6.pdf (accessed Feb. 3, 2006) [hereinafterFAY REPORT]. (“In addition to EPWs [enemy prisoners of war] and compliant, non-hostile CIs [civilian internees], units in OEF [Operation Enduring Freedom] and OIF [Operation Iraqi Freedom] were confronted withcapturing … other classifications of detainees, such as non-state combatants and non-compliant CIs,”);see also,Douglas Jehl & NeilLewis,U.S. Said to Hold More Foreigners in Iraq Fighting,N.Y. TIMES, Jan. 8, 2006, at A1.Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with HumanRights First), excerptsavailable athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006).171615
Michael Howard,Ex-Iraqi general dies in US custody,THE GUARDIAN, Nov. 28, 2003,available athttp://www.guardian.co.uk/Iraq/Story/0,2763,1094984,00.html (accessed Feb. 7, 2006).Geneva Convention (III) Relative to the Treatment of Prisoners of War, Geneva, August 12, 1949, 75 U.N.T.S. 135, art. 4 (“[p]risoners ofwar are persons who fall into enemy hands and belong to one of the following categories: “(1) Members of the armed forces of a party tothe conflict, as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias andmembers of other volunteer corps, including those of organized resistance movements, belonging to a party to the conflict and operatingin or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organizedresistance movements, fulfill the following conditions: (a) They are commanded by a person responsible for his subordinates (b) Theyhave a fixed distinctive sign recognizable at a distance; (c) They carry arms openly; and (d) They conduct their operations in accordancewith the laws and customs of war”);see also,Memorandum from Colin Powell for the President on the Applicability of the GenevaConvention to the Conflict in Afghanistan (Jan. 26, 2002),available athttp://www.humanrightsfirst.org/us_law/etn/gonzales/memos_dir/memo_20020126_Powell_WH%20.pdf (accessed Feb. 3, 2006).1918
Memorandum from General Ricardo Sanchez to Combined Joint Task Force Seven and the Commander, 205 Intelligence Brigade(Sept. 10, 2003),available athttp://www.humanrightsfirst.info/pdf/06124-etn-sep-10-sanchez-memo.pdf (accessed Feb. 3, 2006).Id.
th
2021
Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with HumanRights First), excerptsavailablehttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006).222324
Id.White,Brutal Improvisation, supranote 7.
Human Rights First Telephone Interview with Hossam Mowhoush, son of Iraqi Maj. Gen. Abed Hamed Mowhoush (Oct. 10, 2005)(transcription on file with Human Rights First).Id.
2526
Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with HumanRights First), excerptsavailable athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006m.asp (accessed Feb. 3, 2006).
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27
Human Rights First notes from observation of Welshofer court martial, Day Four, Jan. 20, 2006,available athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006m.asp (accessed Feb. 3, 2006).282930
White,Brutal Improvisation, supranote 7.White,Brutal Improvisation, supranote 7.
White,Brutal Improvisation, supranote 7; Human Rights First notes from observation of Welshofer court martial, Welshofer In His OwnWords, Jan. 20, 2006 (on file with Human Rights First), excerptsavailable athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006m.asp (accessed Feb. 3, 2006).
White,Brutal Improvisation, supranote 7; Arthur Kane,Guardsman: CIA Beat Iraqis with Hammer Handles,DENVERPOST, July 27,2005, at A9; Arthur Kane,Iraqi General Beaten Two Days Before Death,DENVERPOST, Apr. 5, 2005, at A1; Human Rights First notesfrom observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with Human Rights First), excerptsavailable athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006m.asp (accessed Feb. 3, 2006).The three soldiers were Sergeant Gerold Pratt (see Matthew D. LaPlante,Utah G.I. Exposed Abuses at Prison,SALTLAKETRIB., July31, 2005, at A1; Human Rights First notes from observation of Welshofer court martial, In Their Own Words, Jan. 19, 2006,available athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-011906d.asp (accessed Jan. 31, 2006)), Chief Warrant Officer JeffersonWilliams (see Josh White,U.S. Army Officer Convicted in Death Of Iraqi Detainee,WASH. POST, Jan. 23, 2006, at A02; Human RightsFirst notes from observation of Welshofer court martial, In Their Own Words, Jan. 19, 2006,excerpts available athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-011906d.asp (accessed Jan. 31, 2006)), and Specialist Jerry Loper (see JoshWhite, U.S.Army Officer Convicted in Death Of Iraqi Detainee,WASH. POST, Jan. 23, 2006, at A2; Human Rights First notes fromobservation of Welshofer court martial, Day Four, Jan. 20, 2006,available athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006m.asp (accessed Feb. 3, 2006)).3332
31
Arthur Kane,Guardsman: CIA Beat Iraqis with Hammer Handles,DENVERPOST, July 27, 2005, at A9; Arthur Kane,Iraqi General BeatenTwo Days Before Death,DENVERPOST, Apr. 5, 2005, at A1.
34
Human Rights First notes from observation of Welshofer court martial, Day Two, Jan. 18, 2006,available athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-011806.asp (accessed Feb. 3, 2006).35
Human Rights First notes from observation of Welshofer court martial, Day Four, Jan. 20, 2006,available athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006m.asp (accessed Feb. 3, 2006).36
Office of the Armed Forces Med. Exam’r,Autopsy Examination Report, Autopsy No. ME03-571(Dec. 18, 2003) [Autopsy, Mowhoush],available athttp://www.aclu.org/torturefoia/released/041905/m001_203.pdf, at 93-100 (accessed Feb. 3, 2006) [hereinafter Autopsy,Mowhoush]; Arthur Kane,Iraqi General Beaten 2 Days Before Death,DENVERPOST, Apr. 5, 2005, at A1.
Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with HumanRights First), excerptsavailable athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006).3839
37
M. Gregg Bloche and Jonathan H. Marks,Doing Unto Others as They Did Unto Us,N.Y. TIMES, Nov. 14, 2005, at A21.
Jane Mayer,The Experiment: The military trains people to withstand interrogation. Are those methods being misused at Guantanamo?,THENEWYORKER, July 11, 2005,available athttp://www.newyorker.com/fact/content/articles/050711fa_fact4 (accessed Feb. 7, 2006); M.Gregg Bloche and Jonathan H. Marks,Doing Unto Others as They Did Unto Us,N.Y. TIMES, Nov. 14, 2005, at A21.
See, e.g.,Jane Mayer,The Experiment: The military trains people to withstand interrogation. Are those methods being misused atGuantanamo?,THENEWYORKER, July 11, 2005,available athttp://www.newyorker.com/fact/content/articles/050711fa_fact4 (accessedndFeb. 7, 2006);see alsoMemorandum for Commander 82 ABN DIV, re: CW3 Welshofer, Lewis E. Rebuttal to General Letter ofReprimand (Feb. 11, 2004), at 2,available athttp://www.lchr.org/pdf/mem-dic021104.pdf (accessed Feb. 3, 2006);see alsoMemoran-dum, Dep’t of Defense, JTF GTMO “SERE” Interrogation SOP DTD (Dec. 10, 2002),available athttp://www.aclu.org/projects/foiasearch/pdf/DOD045202.pdf (accessed Feb. 3, 2006).41
40
Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with HumanRights First), excerptsavailable athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006).Id.
4243
Id.;Human Rights First notes from observation of Welshofer court martial, In Their Own Words, Jan. 19, 2006,available athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-011906d.as (accessed Feb. 3, 2006).44
Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with HumanRights First), excerptsavailable athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006).Id.
4546
Human Rights First Telephone Interview with Mohammed Mowhoush, son of Iraqi Maj. Gen. Abed Hamed Mowhoush (Nov. 9 and Nov.14, 2005) (transcription on file with Human Rights First).Id.
4748
White,Brutal Improvisation, supranote 7; Human Rights First notes from observation of Welshofer court martial, Welshofer In His OwnWords, Jan. 20, 2006, (on file with Human Rights First), excerptsavailable athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-nd012006d.asp (accessed Feb. 3, 2006); Memorandum for Commander 82 ABN DIV, re: CW3 Welshofer, Lewis E. Rebuttal to GeneralLetter of Reprimand (Feb. 11, 2004),available athttp://www.lchr.org/pdf/mem-dic021104.pdf (accessed Feb. 3, 2006).Josh White,U.S. Army Officer Convicted in Death Of Iraqi Detainee,WASH. POST, Jan. 23, 2006, at A2; Human Rights First notes fromobservation of Welshofer court martial, In Their Own Words, Jan. 19, 2006,available athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-011906d.as (accessed Feb. 3, 2006).5049
Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with HumanRights First), excerptsavailable athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006).
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106—VIII. Endnotes
White,Brutal Improvisation, supranote 7; Arthur Kane,Iraqi General Beaten Two Days Before Death,DENVERPOST, Apr. 5, 2005, atA1; Matthew D. LaPlante,Utah G.I. Exposed Abuses at Prison,SALTLAKETRIB., July 31, 2005, at A1; Human Rights First notes fromobservation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with Human Rights First), excerptsavailable athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006). .52
51
Human Rights First notes from observation of Welshofer court martial, Day Four, Jan. 20, 2006,available athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006m.asp (accessed Feb. 3, 2006).5354
Autopsy, Mowhoush,supranote 36, at 93–100.
Press Release, Multi-National Force, Iraq, Combined Joint Task Force 7, Iraqi General Dies of Natural Causes, No. 31127a (Nov. 27,2003). The release has since been removed from military websites, but an archived copy is available athttp://web.archive.org/web/20041128154754/http://www.cjtf7.army.mil/media-information/november2003/031127a.htm (accessed Feb. 3,2006).Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with HumanRights First), excerptsavailable athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006); ErinEmery,Carson Soldier Takes the Stand,DENVERPOST, Jan. 20, 2006,available athttp://www.denverpost.com/news/ci_3419775.5655
SeeHuman Rights First notes from observation of Welshofer court martial, In Their Own Words, Jan. 19, 2006,available athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-011906d.asp (accessed Feb. 3, 2006); Nicholas Riccardi,Interrogator Convictedin Iraqi’s Death,L.A. TIMES, Jan. 22, 2006,available athttp://www.latimes.com/news/printedition/la-na-interrogate22jan22,1,81943.story(accessed Feb. 3, 2006); Josh White,U.S. Army Officer Convicted in Death Of Iraqi Detainee,WASH. POST, Jan. 23, 2006, at A2.57
Human Rights First notes from observation of Welshofer court martial, Day Three, Jan. 19, 2006,available athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-011906m.asp (accessed Feb. 3, 2006); Josh White,U.S. Army OfficerConvicted in Death Of Iraqi Detainee,WASH. POST, Jan. 23, 2006, at A2.5859
White,Brutal Improvisation, supranote 7 (quoting Army memo dated May 10, 2004).
Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with HumanRights First), excerptsavailable athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006).
Nicholas Riccardi,Interrogator Convicted in Iraqi’s Death,L.A. TIMES, Jan. 22, 2006,available athttp://www.latimes.com/news/printedition/la-na-interrogate22jan22,1,81943.story (accessed Feb. 3, 2006); Erin Emery,Carson GIConvicted in Death of Detainee,DENVERPOST, Jan. 21, 2006,available athttp://www.denverpost.com/search/ci_3426219 (accessed Feb.3, 2006).Jon Sarche,Jury Orders Reprimand, No Jail for Soldier,ASSOC, PRESS, Jan. 24, 2006,available athttp://www.washingtonpost.com/wp-dyn/content/article/2006/01/24/AR2006012400177.html (accessed Jan. 27, 2006); Josh White,Army Interrogator Reprimanded in Iraqi’sDeath,WASH. POST, Jan. 24, 2006, at A2.626361
60
Dick Foster,Army Drops Murder Charges,ROCKYMOUNTAINNEWS, Jan. 13, 2006, at 17A.
Arthur Kane,Lesser Charges Urged in Death of Iraqi,DENVERPOST, May 11, 2005, at B3; Dick Foster,Army Drops Murder Charges,ROCKYMOUNTAINNEWS, Jan. 13, 2006, at 17A.
Douglas Jehl and Tim Golden,C.I.A. Is Likely to Avoid Charges in Most Prisoner Deaths,N.Y. TIMES, Oct. 23, 2005, at A6; PressRelease, Army Criminal Investigation Command, Army Criminal Investigators Outline 27 Confirmed or Suspected Detainee Homicides forOperation Enduring Freedom, Operation Iraqi Freedom, (Mar. 25, 2005),available athttp://www.cid.army.mil/Documents/OIF-OEF%20Homicides.pdf, at 2 (accessed Feb. 8, 2006) [hereinafter Criminal Investigators Outline 27 Homicides].Lawyers: Army Backed Interrogation Methods,ASSOC. PRESS, Apr. 1, 2005,available athttp://www.newsmax.com/archives/articles/2005/3/31/205753.shtml (accessed Feb. 3, 2006); Arthur Kane and Miles Moffeit,U.S. GeneralBacked Lightest Penalty in Interrogation Death,DENVERPOST, May 10, 2005, at A6.6665
64
Dep’t of the Army, Blood and Steel: The History, Customs, and Traditions of the 3d Armored Cavalry Regiment (2002), at. 35, 73,available athttp://www.carson.army.mil/UNITS/3RD%20ACR/main%20pages/3d%20ACR%20History.pdf (accessed Feb. 12, 2006).Josh White,Documents Tell of Brutal Improvisation by GIs,WASH. POST, Aug. 3, 2005, at A1.Miles Moffeit and Arthur Kane,Army charges 4 in death,DENVERPOST, Oct. 5, 2004, at A1.
676869
Dep’t of the Army, Criminal Investigative Division, CID’s Mission – In Depth, http://www.cid.army.mil/mission2.htm (accessed Feb. 3,2006).Criminal Investigators Outline 27 Homicides,supranote 64 at 7.
7071
See, e.g.,Dep’t of the Army, CID,CID Report of Investigation-Corrected/Initial/Final/SSI-0171-04-CID259-80223-/5H6(Aug. 7, 2004)[Criminal Investigation, al-Bawi],available athttp://www.aclu.org/torturefoia/released/4894_4927.pdf, at 2, 5, 16 (accessed Feb. 3, 2006)[hereinafter Criminal Investigation, al-Bawi].72
Criminal Investigation, al-Bawi,supranote 71, at 2, 8. “(S)” next to the listing of the administrative investigation denotes it as “secret.”SeeDefense Security Service Internet Web Site, Security Related Acronyms, Abbreviations, And Basic Security Forms, (Mar. 2001), at 9,http://www.dss.mil/training/acro.pdf (accessed Feb. 3, 2006).U.S. Dep’t of State, Second Periodic Report of the United States of America to the Committee Against Torture, Annex I, Part Two,III(B)(2) (May 6, 2005),available athttp://www.state.gov/g/drl/rls/45738.htm (accessed Feb. 3, 2006).7473
SeeDIC Table: The eight cases of deaths in which the involvement of the CIA, Special Forces and/or Navy SEALS is alleged are:Unknown 1 (detainee killed at “Salt Pit” facility in Afghanistan in Nov. 2002) (CIA), Unknown 2 (detainee killed in Wazi village, Afghanistanbetween Jan. 1 and Jan. 13, 2003) (Special Forces), Abdul Wali (CIA), al-Jamadi (CIA and Navy SEALS), Mowhoush (CIA and SpecialForces), Jameel (Special Forces/CIA), Fashad Mohamed (Navy SEALS), Jameel Naseer (Special Forces).Exec. Order No. 12333 §1.7, U.S. Intelligence Activities, 46 Fed. Reg. 59941, 59945 (Dec. 4, 1981).
75
A Human Rights First Report
Command’s Responsibility — 107
76777879
SeeDIC Table: These are the deaths of Unknown 1, Wali, al-Jamadi, Mowhoush, and Jameel.White,Brutal Improvisation, supranote 7.White,Brutal Improvisation, supranote 7.
Transcript fromUnited States v. CW2 Williams, Sgt. 1st Class Sommer and Spc. Loper,Article 32 investigation, at 14-16 (in theprosecution arising from the death of Mowhoush, ability to produce a verbatim transcript of trial proceedings complicated by requirementfor keeping certain information secret) (Dec. 2, 2004); White,Brutal Improvisation, supranote 7 (“Determining the details of [Mowhoush’s]demise has been difficult because the circumstances are listed as ‘classified’ on his official autopsy, court records have been censored tohide the CIA’s involvement in his questioning, and reporters have been removed from a Fort Carson courtroom when testimony relating tothe CIA has surfaced.”); Jane Mayer,A Deadly Interrogation,THENEWYORKER, Nov. 14, 2005, at 44 [hereinafter Mayer,A DeadlyInterrogation](regarding death of al-Jamadi, CIA officials protested questions asked by lawyers in court-martial; individual CIA personnelmight have destroyed evidence; an apparent refusal to inform pathologists as to circumstances of a detainee’s death might have led to anincorrect finding); Andrea Weigl,Passaro Says Assault Charges Political,NEWS& OBSERVER, Oct. 20, 2005, at B1 (in prosecution of CIAcontractor in connection with the Wali death, evidence provided to defendant was severely censored, reducing his ability to mount “anadequate defense”).Mayer,A Deadly Interrogation, supranote 79.Douglas Jehl and Tim Golden,CIA Is Likely to Avoid Charges in Most Prisoner Deaths,N.Y. TIMES, Oct. 23, 2005, at A6.Dana Priest,CIA Avoids Scrutiny of Detainee Treatment,WASH. POST, Mar. 3, 2005, at A1.Douglas Jehl,Report Warned CIA about Interrogations,N.Y. TIMES, Nov. 9, 2005, at A1.Dana Priest,Covert CIA Program Withstands New Furor,WASH. POST, Dec. 30, 2005, at A1.
808182838485
Criminal Investigators Outline 27 Homicides,supranote 64, at 7; Douglas Jehl,Pentagon Will Not Try 17 GIs Implicated in Prisoners’Deaths,N.Y. TIMES, Mar. 26, 2005, at A1;Intel GIs to be Charged in Death,ASSOC. PRESS, June 24, 2004,available athttp://www.cbsnews.com/stories/2004/06/25/iraq/main626121.shtml (accessed Feb. 3, 2006). Jameel’s last name is sometimes given as“Jaleel.”86
Office of the Armed Forces Med. Exam’r,Final Autopsy Report, Autopsy No. ME04-14(Apr. 30, 2004) [Autopsy, Jameel],available athttp://www.aclu.org/torturefoia/released/041905/m001_203.pdf, at 108 (accessed Feb. 3, 2006) [hereinafter Autopsy, Jameel].87888990919293949596979899
Miles Moffeit,Brutal Interrogation in Iraq,DENVERPOST, May 19, 2004, at A1.Id.Id.Id.Id.Douglas Jehl,Pentagon Will Not Try 17 GIs Implicated in Prisoners’ Deaths,N.Y. TIMES, Mar. 26, 2005, at A1.Autopsy, Jameel,supranote 86, at 108.MedLine Plus: Medical Dictionary, http://www.nlm.nih.gov/medlineplus/mplusdictionary.html (accessed Feb. 3, 2006).Autopsy, Jameel,supranote 86, at 114.Autopsy, Jameel,supranote 86, at 108-114.Autopsy, Jameel,supranote 86, at 114.Criminal Investigators Outline 27 Homicides,supranote 64, at 7.
Arthur Kane and Miles Moffeit,Memos: Abuse rife in Iraq Interrogation techniques banned at Guantanamo,DENVERPOST, June 27,2004, at A25.
Criminal Investigators Outline 27 Homicides,supranote 64, at 7; Douglas Jehl,Pentagon Will Not Try 17 GIs Implicated in Prisoners’Deaths,N.Y. TIMES, Mar. 26, 2005, at A1.Criminal Investigators Outline 27 Homicides,supranote 64, at 7; Douglas Jehl,Pentagon Will Not Try 17 GIs Implicated in Prisoners’Deaths,N.Y. TIMES, Mar. 26, 2005, at A1.102103101
100
SeeMowhoush case profile,supratext accompanying note 66.
Criminal Investigators Outline 27 Homicides,supranote 64, at 7; Douglas Jehl,Pentagon Will Not Try 17 GIs Implicated in Prisoners’Deaths,N.Y. TIMES, Mar. 26, 2005, at A1.Office of the Armed Forces Med. Exam’r,Final Autopsy Report, Autopsy No.: ME 04-309(Nov. 22, 2004) [Autopsy, F. Mohammed],available athttp://www.defenselink.mil/pubs/foi/detainees/army_previous_releases/eighth_release/, at 96 [hereinafter Autopsy, F.Mohammed].105106107104
Autopsy, F. Mohammed,supranote 104, at 96; Criminal Investigators Outline 27 Homicides,supranote 64, at 3-4.Autopsy, F. Mohammed,supranote 104, at 96.
Office of the Armed Forces Med. Exam’r,Preliminary Autopsy Report ME 04-309(June 23, 2004),available athttp://www.aclu.org/torturefoia/released/041905/m001_203.pdf, at 133 (accessed Feb. 7, 2006) [Preliminary Autopsy, F. Mohammed].108109110
Josh White,3 More Navy SEALs Face Abuse Charges,WASH.POST, Sept. 25, 2004, at A16.Eric Schmitt,Navy Charges 3 Commandos With Beating of Prisoners,N.Y. TIMES, Sept. 24, 2004, at A7.
SeeApp. A, Memorandum from William J. Haynes, II, Action Memo: Counter-Resistance Techniques (Nov. 27, 2002) (approved bySecretary of Defense Rumsfeld on Dec. 2, 2002, with hand-written notation: “However, I stand for 8-10 hours a day. Why is standing
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108—VIII. Endnotes
limited to 4 hours?”). Haynes’ memo attaches a memo from General James Hill (Oct. 25, 2002); a memo from Maj. Gen. Michael Dunlavey(Oct. 11, 2002), a memo (legal review) by Lt. Col. Diane Beaver (Oct. 11, 2002) and a Request for Approval for Counter-ResistanceStrategies from Lt. Col. Jerald Phifer (Oct. 11, 2002);see alsoMemorandum from Donald Rumsfeld to Commander, US SouthernCommand, Counter-Resistance Techniques in the War on Terrorism (Apr. 16, 2003),available athttp://www.humanrightsfirst.org/us_law/etn/gonzales/memos_dir/mem_20030416_Rum_IntTec.pdf (accessed Feb. 7, 2006).Memorandum from Ricardo S. Sanchez to Commander, U.S. Central Command (Sept. 14, 2003) (attaching Combined Joint TaskForce-7 interrogation policy),available athttp://www.humanrightsfirst.org/us_law/etn/pdf/sanc-%20memo-091403.pdf (accessed Feb. 7,2006).112113114115111
Josh White,3 More Navy SEALS Face Abuse Charges,WASH. POST, Sept. 25, 2004, at A16.Eric Schmitt,Navy Charges 3 Commandos With Beating of Prisoners,N.Y. TIMES, Sept. 24, 2004, at A7.Mayer,A Deadly Interrogation, supranote 79.
Mayer,A Deadly Interrogation, supranote 79; David S. Cloud,Navy Officer Found Not Guilty in Death of an Iraqi Prisoner,N.Y. TIMES,May 28, 2005 at A6; Office of the Armed Forces Med. Exam’r,Final Autopsy Report, Autopsy No. ME03-504(Jan. 9, 2004) [Autopsy, al-Jamadi],available athttp://www.aclu.org/torturefoia/released/041905/m001_203.pdf, at 85 (accessed Feb. 3, 2006) [hereinafter Autopsy,al-Jamadi].Mayer,A Deadly Interrogation, supranote 79; Seth Hettena,Navy SEAL: CIA Roughed Up Iraqi Prisoner,ASSOC. PRESS, Nov. 1, 2004,available athttp://www.phillyburbs.com/pb-dyn/news/1-11012004-393371.html (accessed Feb. 3, 2006).John McChesney,All Things Considered: The Death of an Iraqi Prisoner(National Public Radio broadcast, Oct. 27, 2005) [hereinafterMcChesney,Death of an Iraqi Prisoner].118119120117116
McChesney,Death of an Iraqi Prisoner, supranote 117.McChesney,Death of an Iraqi Prisoner, supranote 117.
Sworn Statement of Col. Thomas Pappas, May 14, 2004,available athttp://www.aclu.org/torturefoia/released/030905/DOD616_653.pdf, at 15 (accessed Feb. 3, 2006);FAY REPORT, supranote 15, at 53 – 55,75 – 76;see alsoMayer,A Deadly Interrogation, supranote 79.Mayer,A Deadly Interrogation, supranote 79; Seth Hettena,Iraqi Died While Hung From Wrists,ASSOC. PRESS, Feb. 17, 2005,available athttp://www.commondreams.org/headlines05/0217-09.htm (accessed Feb. 3, 2006) [hereinafter Hettena,Hung From Wrists].But seeMcChesney,Death of an Iraqi Prisoner, supranote 117 (reporting that one of the MP guards maintains that there was enoughslack to allow al-Jamadi to kneel).122123121
Mayer,A Deadly Interrogation, supranote 79; Hettena,Hung From Wrists, supranote 121.
Mayer,A Deadly Interrogation, supranote 79; McChesney,Death of an Iraqi Prisoner, supranote 117; Hettena,Hung From Wrists,supra note 121.Mayer,A Deadly Interrogation, supranote 79; McChesney,Death of an Iraqi Prisoner, supranote 117; Hettena,Hung From Wrists,supranote 121.125126127128129130131132133134135124
FAY REPORT,FAY REPORT,
supranote 15, at 76.supranote 15, at 53.
Mayer,A Deadly Interrogation, supranote 79; Hettena,Hung From Wrists, supranote 121.Luke Harding,How Abu Ghraib Torture Victim Faces Final Indignity: An Unmarked Grave,THEGUARDIAN, June 1, 2004, at 4.Id.Autopsy, al-Jamadi,supranote 115, at 85.Autopsy, al-Jamadi,supranote 115, at 86Mayer,A Deadly Interrogation, supranote 79Id.McChesney,Death of an Iraqi Prisoner, supranote 117.
T.R. Reid,Trial Starts in Abu Ghraib Death; Navy SEAL Faces Charges; CIA Agents Not Named in Case,WASH. POST, May 25, 2005,at A2.136137
Tony Perry,SEALs Instructed to Treat Prisoners Well,L.A. TIMES, May 26, 2005, at A29.
Hettena,Hung From Wrists, supranote 121; David S. Cloud,SEAL Officer Hears Charges in Court Martial in Iraqi’s Death,N.Y. TIMES,May 25, 2005, at A8.
Douglas Jehl and Tim Golden,CIA is Likely to Avoid Charges in Most Prisoner Deaths,N.Y. TIMES, Oct. 23, 2005, at A6; Hettena,Hung From Wrists, supranote 121; David S. Cloud,SEAL Officer Hears Charges in Court Martial in Iraqi’s Death,N.Y. TIMES, May 25,2005, at A8.SeeDep’t of Defense,Victim and Witness Assistance,Military Justice Overview, http://www.defenselink.mil/vwac/military.html(accessed Feb. 3, 2006); U.S. Navy Judge Advocate General,NonJudicial Punishment,http://www.jag.navy.mil/html/NLSOGlakesNonjudicial_punishment.htm (accessed Feb. 3, 2006); Military.com,Benefits and Resources,Legal Matters, NonJudicial Punishment,http://www.military.com/Resources/ResourcesContent/0,13964,30901--1,00.html (accessed Feb.3, 2006).David S. Cloud,Navy Officer Retracts Confession in Death of Iraqi Prisoner,N.Y. TIMES, May 27, 2005, at A18; Tony Perry,NavyLieutenant Denies Assaulting Iraqi Prisoner,L.A. TIMES, May 27, 2005, at A31.140139
138
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141
David S. Cloud,Navy Officer Found Not Guilty in Death of an Iraqi Prisoner,N.Y. TIMES, May 28, 2005, at A6; Seth Hettena,NavySEAL Acquitted of Abusing Iraqi Prisoner who Later Died,ASSOC. PRESS, May 28, 2005,available athttp://abcnews.go.com/US/wireStory?id=798587 (accessed Feb. 3, 2006).142
David S. Cloud,Navy Officer Found Not Guilty in Death of an Iraqi Prisoner,N.Y. TIMES, May 28, 2005, at A6; Seth Hettena,NavySEAL Acquitted of Abusing Iraqi Prisoner who Later Died,ASSOC. PRESS, May 28, 2005,available athttp://abcnews.go.com/US/wireStory?id=798587 (accessed Feb. 3, 2006).143144145146
Douglas Jehl and Tim Golden,CIA is Likely to Avoid Charges in Most Prisoner Deaths,N.Y. TIMES, Oct. 23, 2005, at A6.Mayer,A Deadly Interrogation, supranote 79.Alex Roth,Marine Guilty in Death of Iraqi,SANDIEGOUNION-TRIB., Nov. 11, 2004 at B1.
Office of the Armed Forces Med. Exam’r,Final Autopsy Report, Autopsy No. A03-51(Oct. 22, 2003) [Autopsy, Hatab],available athttp://www.aclu.org/torturefoia/released/041905/m001_203.pdf, at 37 (accessed Feb. 3, 2006) [hereinafter Autopsy, Hatab]; Alex Roth,Marine Guilty in Death of Iraqi,SANDIEGOUNION-TRIB., Nov. 11, 2004 at B1.Alex Roth,Trial Starts for Marine in Iraqi’s Jail Death; Prosecutor Paints Reservist as Rogue,SANDIEGOUNION-TRIB., Aug. 25, 2004 atNC-1; Alex Roth,Iraqi Prisoner Called Thug for Hussein,SANDIEGOUNION-TRIB., Aug. 27, 2004 at NC-1. One of the accused deniedduring his court martial proceedings that he had abused Hatab or any other detainee. Alex Roth,Never Abused Iraqi Prisoners, MarineSays At Court-Martial,SANDIEGOUNION-TRIB., Sept. 2, 2004 at NC-1.148147
Deborah Hastings,The Death of Iraqi Prisoner No. 0310337,ASSOC. PRESS, July 31, 2004,available athttp://www.dailytimes.com.pk/default.asp?page=story_2-8-2004_pg7_40 (accessed Feb. 3, 2006); David Hasemyer,Marine Says He wasOrdered to Grab Prisoner’s Neck,SANDIEGOUNION-TRIB., Nov. 4, 2004, at B2.Philip Sherwell and Colin Freeman,Iraqi Prisoner ‘was beaten, kicked, and left to die by Marines,’TELEGRAPH, May 23, 2004, at 24;Jeff McDonald,Behavior of Detainee Who Died Is at Issue; Was Iraqi Ill or Just Belligerent,SANDIEGOUNION-TRIB., Nov. 5. 2004, at NC-1.Alex Roth,Marine Guilty In Death of Iraqi,SANDIEGOUNION-TRIB., Nov. 11, 2004, at B1; David Hasemyer,Marine Says He wasOrdered to Grab Prisoner’s Neck,SANDIEGOUNION-TRIB., Nov. 4, 2004, at B2.151152150149
David Hasemyer,Marine Says He was Ordered to Grab Prisoner’s Neck,SANDIEGOUNION-TRIB., Nov. 4, 2004, at B2.
Autopsy, Hatab,supranote 146, at 37 (Hatab pronounced dead at 12:30 a.m.); David Hasemyer,Marine Says He was Ordered to GrabPrisoner’s Neck,SANDIEGOUNION-TRIB., Nov. 4, 2004, at B2; Alex Roth,Marine Guilty in Death of Iraqi,SANDIEGOUNION-TRIB., Nov. 11,2004, at B1.Seth Hettena,Court Martial Begins in Iraq Prison Death,ASSOC. PRESS, Nov. 2, 2004,available athttp://msnbc.msn.com/id/6394480/(accessed Feb. 3, 2006). Three medical experts retained by the different defendants in subsequent courts-martial disputed this finding.Alex Roth,Heart Failure Caused Death of Prisoner, Witness Says; Defense Expert Testifies at Marine’s Court-Martial;SANDIEGOUNION-TRIB., Sept. 1, 2004, at NC-1. One expert gave the opinion that Hatab likely died of natural causes, probably heart failure.Id.Two expertsstated that he likely died of asthma or pneumonia.Id.According to one of the experts, it was hard to pinpoint the cause of death becauseHatab’s body was left for four days in extreme heat before the autopsy.Id.Alex Roth,Trial starts for Marine in Iraqi’s Jail Death; Prosecutor Paints Reservist as Rogue,SANDIEGOUNION-TRIB., Aug. 25, 2004, atNC-1 (quoting prosecutor in court martial of one of the Marines charged in connection with Hatab’s death).David Hasemyer,Marine Says He was Ordered to Grab Prisoner’s Neck,SANDIEGOUNION-TRIB., Nov. 4, 2004, at B2 (quoting MajorWilliam Vickers).156157158159160155154153
Id.Id.Id.Id..
Alex Roth,Heart Failure Caused Death of Prisoner, Witness Says; Defense Expert Testifies at Marine’s Court-Martial,SANDIEGOUNION-TRIB., Sept. 1, 2004, at NC-1 (describing pathologist’s testimony).161162
Id.
Seth Hettena,Military Loses Key Evidence in Iraqi Death,ASSOC. PRESS, Sept. 9, 2004,available athttp://68.166.163.242/cgi-bin/readart.cgi?ArtNum=65771 (accessed Feb. 3, 2006).
163
Seth Hettena,Army Pathologist Concedes Errors in Prisoner-Abuse Case,Assoc. Press, Oct. 14, 2004, available athttp://www.usatoday.com/news/nation/2004-10-14-errors-abuse_x.htm (accessed Feb. 3, 2006) (rib cage found at Armed Forces Instituteof Pathology, Washington D.C.; part of larynx found at Landstuhl military base in Germany).164165
Dep’t of the Army, Field Manual 19-20, Law Enforcement Investigations (Nov. 1985), at 200.
Seth Hettena,Court Martial Begins in Iraq Prison Death,ASSOC. PRESS, Nov. 2, 2004,available athttp://msnbc.msn.com/id/6394480/(accessed Feb. 3, 2006).Alex Roth,Iraqi’s Body May Be Dug Up Again in Abuse Case,SANDIEGOUNION-TRIB., Oct. 15, 2004, at B3.
166167
Autopsy, Hatab, supra note 146, at 37; Seth Hettena,Army Pathologist Concedes Errors in Prisoner-Abuse Case,Assoc. Press, Oct.14, 2004, available at http://www.usatoday.com/news/nation/2004-10-14-errors-abuse_x.htm (accessed Feb. 3, 2006).168169
Alex Roth,Marines Involved in Iraqi Abuse Frustrated After Their Convictions,SANDIEGOUNION-TRIB., Dec. 13, 2004, at A1.Jonathan Heller,8 Marine Reservists Charged in Beating Death of Iraqi POW,SANDIEGOUNION-TRIB., Oct. 19, 2003, at A2.
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110—VIII. Endnotes
Seth Hettena,Court Martial Begins in Iraq Prison Death,ASSOC. PRESS, Nov. 2, 2004available athttp://msnbc.msn.com/id/6394480/(accessed Feb. 3, 2006) (“most of the Marines had their cases dismissed in large part because of the breakdown in forensic evidence thathas marred the case”); Alex Roth,Reservist Convicted of Assault on Inmates; Sergeant Acquitted in Iraqi’s Death at Camp,SANDIEGOUNION-TRIB., Sept. 3, 2004, at A1.Seth Hettena,Court Martial Begins in Iraq Prison Death,ASSOC. PRESS, Nov. 2, 2004,available athttp://msnbc.msn.com/id/6394480/(accessed Feb. 3, 2006); Jeff McDonald,Behavior of Detainee Who Died Is at Issue; Was Iraqi Ill or Just Belligerent,SANDIEGOUNION-TRIB., Nov. 5. 2004, at NC-1.Alex Roth,Reservist’s Court Martial Postponed; Defense in Iraqi Death Gets More Prep Time,SANDIEGOUNION-TRIB., July 29, 2004,at NC-1.Gidget Fuentes,Major Convicted, Avoids Jail Time in Abuse Trial,MARINECORPSTIMES, Nov. 22, 2004, at 11; Alex Roth,Marine Guiltyin Death of Iraqi,SANDIEGOUNION-TRIB., Nov. 11, 2004, at B1.174173172171
170
Alex Roth,Judge Postpones a Court-Martial, Rips Prosecutors,SANDIEGOUNION-TRIB. Sept. 10, 2004, at B1; Tony Perry,MarineSentenced for Beating Iraqi Captives,L.A. TIMES, Sept. 4, 2004, at B8.
Katie Thomas,Marines on Trial,N.Y. NEWSDAY, Aug. 30, 2004, at A4; John J. Lumpkin,Details about deaths of prisoners in U.S.custody in Iraq, Afghanistan,ASSOC. PRESS, May 8, 2004,available athttp://www.signonsandiego.com/news/world/iraq/20040508-1007-theprisonersdeaths.html (accessed Feb. 7, 2006); Jonathan Heller,8 Marine Reservists Charged in Beating Death of Iraqi POW,SANDIEGOUNION-TRIB., Oct. 19, 2003, at A2..176
175
Gidget Fuentes,Major Convicted, Avoids Jail Time in Abuse Trial,MARINECORPSTIMES, Nov. 22, 2004, at 11; Robert Jablon,Witness:Marines Hit Iraq Inmate Who Died,ASSOC. PRESS, Aug. 26, 2004,available athttp://www.prisonplanet.com/articles/august2004/260804marineshit.htm (accessed Feb. 7, 2006).177
R. Jeffrey Smith,Interrogator Says U.S. Approved Handling of Detainee who Died,WASH. POST, Apr. 13, 2005, at A7; Susan Schmidtand Dana Priest,Civilian Charged in Beating Death of Afghan Detainee,WASH. POST, June 18, 2004, at A1.
Doubt Cast Over Defense Claim in Afghan Abuse,ASSOC. PRESS, June 20, 2004,available athttp://www.msnbc.msn.com/id/5234259/(accessed Feb. 3, 2006); Susan Schmidt and Dana Priest,Civilian Charged in Beating Death of Afghan Detainee,WASH. POST, June 18,2004, at A1.Doubt Cast Over Defense Claim in Afghan Abuse,ASSOC. PRESS, June 20, 2004,available athttp://www.msnbc.msn.com/id/5234259/(accessed Feb. 3, 2006).180181179
178
Id.;R. Jeffrey Smith,Interrogator Says U.S. Approved Handling of Detainee who Died,WASH. POST, Apr. 13, 2005, at A7.
U.S. Indicts CIA Contractor in Afghanistan Prison Death,CNN, June 22, 2004,available athttp://www.cnn.com/2004/LAW/06/17/afghan.indictment/ (accessed Feb. 3, 2006); Andrea Weigl,Room Designed to Keep Secrets,NEWSANDOBSERVER, Mar. 29, 2005, at B1.182183
R. Jeffrey Smith,Interrogator Says U.S. Approved Handling of Detainee who Died,WASH. POST, Apr. 13, 2005, at A7.
Indictment of David Passaro,U.S. v. Passaro,No. 5:04-CR-211-1, June 17, 2004,available athttp://news.findlaw.com/hdocs/docs/torture/uspassaro61704ind.html (accessed Feb. 3, 2006); R. Jeffrey Smith,Interrogator Says U.S.Approved Handling of Detainee who Died,WASH. POST, Apr. 13, 2005, at A7.184185
Andrea Weigl,Trial’s Weight Hinges on Ruling,NEWS ANDOBSERVER, Dec. 16, 2005, at B1.
Doubt Cast Over Defense Claim in Afghan Abuse,ASSOC. PRESS, June 20, 2004,available athttp://www.msnbc.msn.com/id/5234259/(accessed Feb. 7, 2006).186187
Criminal Investigators Outline 27 Homicides,supranote 64, at 3.
Indictment of David Passaro,U.S. v. Passaro,No. 5:04-CR-211-1, June 17, 2004,available athttp://news.findlaw.com/hdocs/docs/torture/uspassaro61704ind.html (accessed Feb. 3, 2006).188189
See U.S. v. Passaro,No. 04 CR 211-1, E.D.N.C., Order, Dec. 30, 2005.
R. Jeffrey Smith,Interrogator Says U.S. Approved Handling of Detainee who Died,WASH. POST, Apr. 13, 2005, at A7; Andrea Weigl,Trial’s Weight Hinges on Ruling,NEWS ANDOBSERVER, Dec. 16, 2005, at B1.
190
Tim Golden,In U.S. Report, Brutal Details Of 2 Afghan Inmates’ Deaths,N.Y. TIMES, May 20, 2005, at A1 [hereinafter Golden,BrutalDetails Of 2 Afghan Inmates’ Deaths].Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.
191192
Tim Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190; Tim Golden,Abuse Cases Open Command Issues at AfghanPrison,N.Y. TIMES, Aug. 8, 2005, at A1.193194195196197198199
Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.
Office of the Armed Forces Med. Exam’r,Final Report of Postmortem Examination,(Dec. 6-8, 2002) [Autopsy, Habibullah],available athttp://www.aclu.org/torturefoia/released/041905/m001_203.pdf at 19-28 [hereinafter Autopsy, Habibullah].200
Autopsy, Habibullah,supranote 199, at19-28.
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201202203204205
Tim Golden,Army Faltered in Investigating Detainee Abuse,N.Y. Times, May 22, 2005, at A1.Id.Id.Id.
Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190; Tim Golden,Abuse Cases Open Command Issues at AfghanPrison,N.Y. TIMES, Aug. 8, 2005, at A1.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Tim Golden,Case Dropped Against U.S. Officer in Beating Deaths of Afghan Inmates,Jan. 8, 2006, N.Y. TIMES, at A13.
206207208
SeeDIC Table: They are Private First Class (“Pfc.”) Willie Brand (assault, maiming, maltreatment, false statement), Specialist (“Spc.”)Brian Cammack (assault, two counts of false statement), Spc. Glendale Walls (dereliction, assault), Sergeant (“Sgt.”) Anthony Morden(assault, two counts of dereliction), Sgt. Selena Salcedo (dereliction, assault), Sgt. Joshua Claus (maltreatment, assault), Sgt. ChristopherGreatorex (assault, maltreatment, false statement), Sgt. Darin Broady (assault, maltreatment, false statement), Sgt. James Boland(maltreatment, dereliction, assault), Sgt. Alan Driver (assault, maltreatment), Staff Sergeant (“Staff Sgt.”) Brian Doyle (dereliction,maltreatment), and Captain (“Capt.”) Christopher Beiring (dereliction, false statement).
SeeDIC Table: Pfc. Brand (convicted, demoted to Private (“Pvt.”)), Spc. Cammack (pled guilty, 3 months confinement, demoted toPvt., bad-conduct discharge), Spc. Walls (pled guilty, 2 months confinement, demoted to Pvt., bad-conduct discharge), Sgt. Morden (pledguilty, 75 days confinement, demoted to Pvt., bad-conduct discharge), Sgt. Salcedo (pled guilty, fined $1,000, demoted to Spc. orCorporal, reprimanded), Sgt. Claus (pled guilty, 5 months confinement, demoted to Pvt., bad-conduct discharge), Sgt. Greatorex(acquitted, faces administrative reprimand), Sgt. Broady (acquitted), Sgt. Boland (charges dropped, reprimanded for dereliction); Staff Sgt.Doyle (acquitted in connection with Habibullah’s death); Capt. Beiring (charges dropped, reprimanded).210211212213214
209
Id.Tim Golden,Case Dropped Against U.S. Officer in Beating Deaths of Afghan Inmates,N.Y. TIMES, Jan. 8, 2006, at A13.Id.Id.
Rowan Scarborough,Senior Prison Officer Cleared,WASH. TIMES, Dec. 23, 2005,available athttp://www.washingtontimes.com/national/20051223-121235-3444r.htm (accessed Feb. 13, 2006).215
A Look at the Soldiers Charged in the Afghanistan Abuse Investigation,ASSOC. PRESS, Oct. 5, 2005,available athttp://www.kxan.com/Global/story.asp?S=3942230 (accessed Feb. 3, 2006); Tim Golden,Case Dropped Against U.S. Officer in BeatingDeaths of Afghan Inmates,N.Y. TIMES, Jan. 8, 2006, at A13.216
A Look at the Soldiers Charged in the Afghanistan Abuse Investigation,ASSOC. PRESS, Oct. 5, 2005,available athttp://www.kxan.com/Global/story.asp?S=3942230 (accessed Feb. 3, 2006);see alsoDIC Table. A charge of involuntary manslaughterwas initially brought against Pfc. Brand, but it was dropped before trial. Tim Golden,Abuse Cases Open Command Issues at Army Prison,N.Y. TIMES, Aug. 8, 2005, at A1.217218219220221222223224225226227228229230231
Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.
Office of the Armed Forces Med. Exam’r,Autopsy Examination Report, A0295(Dec. 13, 2002) [Autopsy, Dilawar],available athttp://www.aclu.org/torturefoia/released/041905/m001_203.pdf at 29-36 [hereinafter Autopsy, Dilawar].232233234235236237
Autopsy, Dilawar,supranote 231, at 29-36.Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190.Tim Golden,Army Faltered in Investigating Detainee Abuse,N.Y. TIMES, May 22, 2005, at A1.Id.;Carlotta Gall,U.S. Military Investigating Death of Afghan in Custody,N.Y. TIMES, Mar. 4, 2003, at A14.Tim Golden,Army Faltered on Investigating Detainee Abuse,N.Y. TIMES, May 22, 2005, at A1.
Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190; Tim Golden,Army Faltered on Investigating Detainee Abuse,N.Y.TIMES, May 22, 2005, at A1.
A Human Rights First Report
112—VIII. Endnotes
238
Golden,Brutal Details Of 2 Afghan Inmates’ Deaths, supranote 190; Tim Golden,Army Faltered on Investigating Detainee Abuse,N.Y.TIMES, May 22, 2005, at A1.Dep’t of the Army, CID,CID Report of Investigation-Corrected/Initial/Final/SSI-0171-04-CID259-80223-/5H6(Aug. 7, 2004) [CriminalInvestigation, al-Bawi],available athttp://www.aclu.org/torturefoia/released/4894_4927.pdf, at 1 (accessed Feb. 3, 2006) [hereinafterCriminal Investigation, al-Bawi]; Jackie Spinner,Family Seeks Justice in Case Of Iraqi Slain by U.S. Troops,WASH. POST, June 15, 2004,at A13.240239
Jackie Spinner,Family Seeks Justice in Case Of Iraqi Slain by U.S. Troops,WASH. POST, June 15, 2004, at A13; Liz Sly,Family ProdsMilitary on Iraqi’s Death,CHI. TRIB., July 6, 2004, at 4.Thanassis Cambanis,Shooting Death Angers Iraqi Family,BOSTONGLOBE, June 21, 2004, at A1.Id.
241242243
Jackie Spinner,Family Seeks Justice in Case Of Iraqi Slain by U.S. Troops,WASH. POST, June 15, 2004, at A13; Thanassis Cambanis,Shooting Death Angers Iraqi Family,BOSTONGLOBE, June 21, 2004, at A1.Jackie Spinner,Family Seeks Justice in Case Of Iraqi Slain by U.S. Troops,WASH. POST, June 15, 2004, at A13; Thanassis Cambanis,Shooting Death Angers Iraqi Family,BOSTONGLOBE, June 21, 2004, at A1.Thanassis Cambanis,Shooting Death Angers Iraqi Family,BOSTONGLOBE, June 21, 2004, at A1; Liz Sly,Family Prods Military onIraqi’s death,CHI. TRIB., July 6, 2004, at 4.
244
245
246
Jackie Spinner,Family Seeks Justice in Case Of Iraqi Slain by U.S. Troops,WASH. POST, June 15, 2004, at A13; Thanassis Cambanis,Shooting Death Angers Iraqi Family,BOSTONGLOBE, June 21, 2004, at A1.For a description of administrative investigations,see infrap. 33.Criminal Investigation, al-Bawi,supranote 239, at 5.Liz Sly,Family Prods Military on Iraqi’s Death,CHI. TRIB., July 6, 2004, at 4 (quoting portions of military’s statements).Id.;Thanassis Cambanis,Shooting Death Angers Iraqi Family,BOSTONGLOBE, June 21, 2004, at A1.Criminal Investigation, al-Bawi,supranote 239, at 16.
247248249250251252
The Army’s subsequent criminal investigation into al-Bawi’s death also found that it was a rifle, not a pistol, that al-Bawi allegedly triedto grab from a soldier. Criminal Investigation, al-Bawi,supranote 239, at 1.Criminal Investigation, al-Bawi,supranote 239, at 5.Criminal Investigation, al-Bawi,supranote 239, at 33.Criminal Investigation, al-Bawi,supranote 239, at 1.
253254255256
Criminal Investigation, al-Bawi,supranote 239, at 5;see alsoLiz Sly,Family Prods Military on Iraqi’s Death,CHI. TRIB., July 6, 2004, at4 (military statement alleging that all shots fired by one soldier).257258259260
Liz Sly,Family Prods Military on Iraqi’s Death,CHI. TRIB., July 6, 2004, at 4.Id.Id.
Dep’t of the Army, CID,CID Report of Investigation – Final (C) – 0149-03-CID469-60209-5H1A(Nov. 23, 2003) [Criminal Investigation,Radad],available athttp://www.aclu.org/torturefoia/released/DOA_1053_1082.pdf, at 2, 15 (accessed Feb. 3, 2006) [hereinafter CriminalInvestigation, Radad].261262263
Criminal Investigation, Radad,supranote 260, at 2.Criminal Investigation, Radad,supranote 260, at 15.
Dep’t of the Army,Informal Investigation of Shooting of Obeed Hethere Radad(Sept. 13, 2003),available athttp://www.aclu.org/projects/foiasearch/pdf/DOD044873.pdf at 23 (accessed Feb. 3, 2006) [hereinafter Administrative Investigation,Radad].264265266
Administrative Investigation, Radad,supranote 263, at 22.Administrative Investigation, Radad,supranote 263, at 22.th
Memorandum for Commander, 4 Infantry Division (Mechanized), FOB Ironhorse, Tikrit, Iraq, AR 15-5 Investigation – Legal Review,Obeed Hethere Radad (Sept. 14, 2003), at 1 (on file with Human Rights First).
267
Criminal Investigation, Radad,supranote 260, at 2-3 (incident reported on September 15; administrative investigation dated Septem-ber 14 attached).Memorandum from Spec. Juba Martino-Poole to Commander, 4 Infantry Division, Request for Discharge in Lieu of Trial by CourtMartial (Oct. 16, 2003),available athttp://www.aclu.org/torturefoia/released/041905/6768_7065.pdf, at 45-46 (accessed Feb. 3, 2006).th
268
269
Criminal Investigation, Radad,supranote 260, at 2; Memorandum from Maj. Gen. Raymond T. Odierno for Commander, 502dPersonnel Service Battalion, Request for Discharge in Lieu of Trial by Court-Martial,available athttp://www.aclu.org/torturefoia/released/041905/6768_7065.pdf, at 53 (accessed Feb. 3, 2006).270271272
Criminal Investigation, Radad,supranote 260, at 2.Criminal Investigation, Radad,supranote 260, at 29.Miles Moffeit and Arthur Kane,Iraq GIs Allowed to Avoid Trial,DENVERPOST, Aug. 22, 2004, at A1.
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Dep’t of the Army, CID,CID Report of Investigation – Final – 0114-02-CID369-23525 -5H1A,Part 1 (May 23, 2003) [Criminal Investiga-tion, Sayari],available athttp://www.aclu.org/torturefoia/released/745_814.pdf, at 11-12, 27 (accessed Feb. 3, 2006) [hereinafter CriminalInvestigation, Sayari].274275276277
273
Criminal Investigation, Sayari,supranote 273, at 11-12, 27.Criminal Investigation, Sayari,supranote 273, at 27-28.Criminal Investigation, Sayari,supranote 273, at 28.
Criminal Investigation, Sayari,supranote 273, at 38-46. The criminal investigators found probable cause to charge three members ofthe squad with the crime of Dereliction of Duty for their failure to abide by standard operating procedures for detaining captives. CriminalInvestigation, Sayari,supranote 273, at 12.Criminal Investigation, Sayari,supranote 273, at 28.Criminal Investigation, Sayari,supranote 273, at 28.Criminal Investigation, Sayari,supranote 273, at 28.Criminal Investigation, Sayari,supranote 273, at 28.Criminal Investigation, Sayari,supranote 273, at 28.
278279280281282283
Criminal Investigation, Sayari,supranote 273, at 27-28, 65-66. The sergeant complied, although the photos were not lost because hehad previously made another copy. Criminal Investigation, Sayari,supranote 273, at 64.284285286
Criminal Investigation, Sayari,supranote 273, at 19.Criminal Investigation, Sayari,supranote 273, at 19, 28.
Dep’t of the Army, CID,CID Report of Investigation – Final – 0114-02-CID369-23525 -5H1A,Part 4 (May 23, 2003) [Criminal Investiga-tion, Sayari, Part 4],available athttp://www.aclu.org/torturefoia/released/908_963.pdf, at 16 (accessed Feb. 3, 2006) [hereinafter CriminalInvestigation, Sayari, Part 4].287288289290291292293294295
Criminal Investigation, Sayari,supranote 273, at 27, 31, 64;see alsoCriminal Investigation, Sayari, Part 4,supranote 286, at 15.Criminal Investigation, Sayari,supranote 273, at 27, 31, 64;see alsoCriminal Investigation, Sayari, Part 4,supranote 286, at 15.Criminal Investigation, Sayari,supranote 273, at 27;see alsoCriminal Investigation, Sayari, Part 4,supranote 286, at 15.Criminal Investigation, Sayari,supranote 273, at 27-28, 65-66.Criminal Investigation, Sayari,supranote 273, at 29.Criminal Investigation, Sayari,supranote 273, at 11.Criminal Investigation, Sayari,supranote 273, at 11.Criminal Investigation, Sayari,supranote 273, at 1-10.
Criminal Investigation, Sayari,supranote 273, at 1-10;Army: Soldiers Shouldn’t be Charged,ASSOC. PRESS, Jan. 24, 2005,availableathttp://www.msnbc.msn.com/id/6863659/ (accessed Feb. 3, 2006).296
Criminal Investigation, Sayari,supranote 273, at 1;Army: Soldiers Shouldn’t be Charged,ASSOC. PRESS, Jan. 24, 2005,available athttp://www.msnbc.msn.com/id/6863659/ (accessed Feb. 3, 2006).297298
Criminal Investigation, Sayari,supranote 273, at 1-10.
Dexter Filkins,The Fall of the Warrior King,N.Y. TIMESMAG., Oct. 23, 2005, at 52 [hereinafter Filkins,Warrior King];Hamza Hendawi,Iraqi: U.S. Soldiers Laughed at Drowning,ASSOC. PRESS, July 6, 2004,available athttp://www.chinadaily.com.cn/english/doc/2004-07/07/content_346293.htm (accessed Feb. 3, 2006).Filkins, Warrior King, supra note 298; U.S. Soldier Goes on Trial for Allegedly Drowning Iraqi Civilian, Xinhua General News Service,Jan. 5, 2005 available at http://english.people.com.cn/200501/05/eng20050105_169731.html(accessed Feb. 7, 2006).Filkins,Warrior King, supranote 298.
299
300301
Information Paper on Samarra Bridge Incident, July 15, 2004,available athttp://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 47 (accessed Feb. 3, 2006).302
Hamza Hendawi,Iraqi: U.S. Soldiers Laughed at Drowning,ASSOC. PRESS, July 6, 2004,available athttp://www.chinadaily.com.cn/english/doc/2004-07/07/content_346293.htm (accessed Feb. 3, 2006); Filkins,Warrior King, supranote 298.303
Hamza Hendawi,Iraqi: U.S. Soldiers Laughed at Drowning,ASSOC. PRESS, July 6, 2004,available athttp://www.chinadaily.com.cn/english/doc/2004-07/07/content_346293.htm (accessed Feb. 3, 2006).304305
Id.;Filkins,Warrior King, supranote 298.
G.I. Gets 45 Days for Assault of Iraqis,ASSOC. PRESS, Mar. 15, 2005,available athttp://www.msnbc.msn.com/id/7200520/ (accessedFeb. 3, 2006).See also,Charge Sheet,available athttp://action.aclu.org/torturefoia/released/063005/11950_12130PartB.pdf , at 80-81(accessed Feb. 3, 2006).306
Filkins,Warrior King, supranote 298;Cover-up of Iraq Bridge Incident Admitted,ASSOC. PRESS, July 30, 2004,available athttp://www.msnbc.msn.com/id/5560805/ (accessed Feb. 3, 2006).307308
Filkins,Warrior King, supranote 298.
Information Paper on Samarra Bridge Incident, July 15, 2004,available athttp://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 47 (accessed Feb. 3, 2006).309
Id.
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114—VIII. Endnotes
310311
Filkins,Warrior King, supranote 298.
U.S. Navy Judge Advocate General’s Corps, Article 32 Investigations,http://www.jag.navy.mil/html/NLSOGlakesArticle_32_investigations.htm (accessed Feb. 3, 2006) (“grand jury indictment is expresslyinapplicable to the Armed Forces. In its absence, Article 32 of the Uniform Code of Military Justice … requires a thorough and impartialinvestigation of charges”).312
Investigating Officer’s Report of Charges Under Article 32, Aug. 19, 2004,available athttp://action.aclu.org/torturefoia/released/063005/11950_12130PartB.pdf, at 99-100 (accessed Feb. 3, 2006).Cover-up of Iraq Bridge Incident Admitted,ASSOC. PRESS, July 30, 2004,available athttp://www.msnbc.msn.com/id/5560805/(accessed Feb. 3, 2006).314315313
Id.; see alsoFilkins,Warrior King, supranote 298.
Cover-up of Iraq Bridge Incident Admitted,ASSOC. PRESS, July 30, 2004,available athttp://www.msnbc.msn.com/id/5560805/(accessed Feb. 3, 2006).316
Filkins,Warrior King, supranote 298; Suzanne Goldenberg,45 Days Jail for U.S. Officer Who Had Cousins Thrown Into Tigris,THEGUARDIAN, Mar. 16, 2005, at Home Pages 2.317
Dick Foster,Case Against 4 GI’s Waning; 2 Won’t Face Charges in Alleged Drowning,ROCKYMOUNTAINNEWS, Sept. 9, 2004, at 6A;Dick Foster,Soldier: Iraqis Told to Jump; Several Issues Cloud Army’s Case Against GIs in Drowning,ROCKYMOUNTAINNEWS, July 29,2004, at 4A; Dick Foster,Fort Carson Soldiers May Use Drug Defense in Courts-Martial,ROCKYMOUNTAINNEWS, July 28, 2004, at 5A.
318
Filkins,Warrior King, supranote 298; Information Paper on Samarra Bridge Incident, July 15, 2004,available athttp://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 47 (accessed Feb. 3, 2006).Human Rights First Email Interview with Dr. Steven Miles, Professor, University of Minnesota Medical School (Nov. 4, 2005) (transcrip-tion on file with Human Rights First); for date of death,seeEric Schmitt,Navy Charges 3 Commandos with Beating of Prisoners,N.Y.TIMES, Sept. 25, 2004, at A7.320319
SeeDIC Table: The military officially ruled five deaths as due to undetermined causes after investigation (Hasson, al-Obodi, Kenami, F.Mahmood, and F. Najem). Forty-three other deaths have either not been investigated, or the results of any investigation have not beenpublicly announced or are unclear (Unknown 1, Naseer, el-Gashame, Dababa, Unknown 3, Unknown 4, Unknown 5, Unknown 6,Unknown 8, Unknown 9, Unknown 10, Unknown 11, Unknown 12, Unknown 13, Unknown 14, Unknown 15, al-Izmerly, Unknown 16,Unknown 17, Sher Mohammed Khan, Mohammed Nahar, Unknown 20, Unknown 21, Unknown 23, Unknown 24, Unknown 25, Unknown26, Unknown 27, Unknown 28, Unknown 29, Sumaidaie, Unknown 30, Unknown 31, Unknown 32, Unknown 33, Unknown 34, Unknown35, Unknown 36, Unknown 37, Unknown 38, Hamza al-Zubaidi, Unknown 39, Unknown 40).
SeeDIC Table: Unknown 1 (died in November 2002 in Afghanistan “Salt Pit” prison of hypothermia after being chained to the floor andleft without blankets; official cause of death not released); Naseer (allegedly tortured to death by Army Special Forces soldiers in Mar.2003; official investigation findings not released); al-Sumaidae (unarmed 21-year-old student allegedly killed in cold blood in June 2005 byMarine during a search of his home; case referred to Navy criminal investigators 10 days after death); Dababa (June 2003 autopsyindicates body covered by bruises and at least 50 abrasions, with head and neck suffering the most significant abuses, resulting inhemorrhaging throughout his brain; official cause of death not announced); Kenami (death after detainee subjected to extreme exercise,cuffed, hooded and left in overcrowded cell; cause officially undetermined); al-Izmerly (chief of forensics at Baghdad Hospital foundJanuary 2004 death was due to “massive blow” to head; investigation pending); Unknown 15 (U.S. forces allege male shot during homeraid while reaching for a pistol; family alleges he was a physically disabled old man and reportedly provides medical records indicating aspinal condition or degeneration; no criminal investigation or any other action appears to have been initiated); Nasef Ibrahim (military ruleddeath due to natural causes; son, with him at the time, filed lawsuit alleging death from abuse); Khan (military initially stated death due toheart attack, until press reports of snakebite; family alleges abuse; no medical or other investigation records released since death inSeptember 2004); A. Najem (military ruled death from natural causes after hunger strike, but no medical records or interviews in support);Zaid (U.S.-conducted autopsy stated accidental death from heat stroke; army official stated possibility that Zaid was not given enoughwater or proper care). Human Rights First asked the Department of Defense on January 20 and 26, 2006 the status of the investigationsand any prosecutions in the following cases for which, as of February 10, we had received no response: Naseer; al-Sumaidae; Dababa;Kenami [sought comment on medical expert finding that death caused by suffocation]; al-Izmerly; Ibrahim; Khan; Zaid.322
321
Dep’t of the Army,AR 15-6 Investigation Into the Death of Abu Malik Kenami(Dec. 28, 2003),available athttp://www.aclu.org/torturefoia/released/032505/1281_1380.pdf, at 2, (accessed Feb. 3, 2006) [hereinafter Administrative Investigation,Kenami].Dep’t of the Army, CID,CID Report of Investigation – Final – 0140-03-CID389-61697-5H9B(Jan. 1, 2004) [Criminal Investigation,Kenami],available athttp://www.aclu.org/torturefoia/released/DOA_1206_1234.pdf, at 1 (accessed Feb. 3, 2006) [hereinafter CriminalInvestigation, Kenami].324325326327328329330331332323
Administrative Investigation, Kenami,supranote 322, at 1.Administrative Investigation, Kenami,supranote 322, at 16; Criminal Investigation, Kenami,supranote 323, at 5 – 6.Administrative Investigation, Kenami,supranote 322, at 4, 16; Criminal Investigation, Kenami,supranote 323, at 19, 26.Administrative Investigation, Kenami,supranote 322, at 4-5.Administrative Investigation, Kenami,supranote 322, at 4-5; Criminal Investigation, Kenami,supranote 323, at 5-6, 11.Administrative Investigation, Kenami,supranote 322, at 5.Administrative Investigation, Kenami,supranote 322, at 5-6.Criminal Investigation, Kenami,supranote 323, at 2.Criminal Investigation, Kenami,supranote 323, at 13.
A Human Rights First Report
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333334335336
Criminal Investigation, Kenami,supranote 323, at 13.Criminal Investigation, Kenami,supranote 323, at 13.Criminal Investigation, Kenami,supranote 323, at 13.
Dep’t Administrative Investigation, Kenami,supranote 322, at 1, 2. The administrative investigation made a number of recommenda-tions: 1) that a physical exam be conducted on all detainees, preferably by an Iraqi physician; 2) that facilities be provided for remoteaudio/video monitoring of the detainee area by an Arabic speaker; 3) that autopsy facilities be created at Mosul.Criminal Investigation, Kenami,supranote 323, at
337338
1.
STEVEN MILES,OATH BETRAYED:MILITARY MEDICINE AND THE WAR ON TERROR, (forthcoming 2006) (Homicides Chapter, at 15, manuscripton file with Human Rights First).
339340341
Id.Criminal Investigation, Kenami,supranote 323, at 1.
Miles Moffeit,Brutal Interrogation in Iraq,DENVERPOST, May 19, 2004, at A1 (quoting military investigative report); Office of the ArmedForces Med. Exam’r,Autopsy Examination Report, Autopsy No. ME03-273(May 11, 2004) [Autopsy, Dababa],available athttp://www.aclu.org/torturefoia/released/041905/m001_203.pdf, at 56 (accessed Feb. 3, 2006) [hereinafter Autopsy, Dababa];New Probesof Prison Deaths,ASSOC. PRESS, June 30, 2004,available athttp://www.cbsnews.com/stories/2004/07/02/iraq/main627244.shtml(accessed Feb. 3, 2006); Spreadsheet of Military Investigations, (Nov. 5, 2004),available athttp://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 12 (accessed Feb. 3, 2006) (reporting two detainee deaths on June 13,2003, one at Camp Cropper, the other at Camp Vigilant, a compound at Abu Ghraib. The death at Abu Ghraib is that of Alla Hassan,seeDep’t of the Army, CID,Report of Investigation – Final/SSI – 0145-04-CID146-71444-5H9C2 / 5H6 / 5Y3(Oct. 26, 2004) [CriminalInvestigation, Hassan],available athttp://www.aclu.org/torturefoia/released/4193_4332.pdf (accessed Feb. 3, 2006).342343344345346347348349350351
Miles Moffeit,Brutal Interrogation in Iraq,DENVERPOST, May 19, 2004, at A1.Autopsy, Dababa,supranote 341, at 56.Autopsy, Dababa,supranote 341, at 56.Autopsy, Dababa,supranote 341, at 56.Autopsy, Dababa,supranote 341, at 58-61.Autopsy, Dababa,supranote 341, at.58-61.Autopsy, Dababa,supranote 341, at 58-61.Autopsy, Dababa,supranote 341, at 59.Autopsy, Dababa,supranote 341, at 60.
John Lumpkin,9 Prisoner Deaths in Iraq, Afghanistan Probed as Homicides,ASSOC. PRESS, May 23, 2004,available athttp://www.news-star.com/stories/052304/New_31.shtml (accessed Feb. 3, 2006).Dep’t of the Army, CID,CID Report of Investigation – Final/SSI – 0237-04-CID259-80273-5H9B(Oct. 18, 2004) [Criminal Investigation,Hasson],available athttp://www.aclu.org/torturefoia/released/4153_4192.pdf , at 2 (accessed Feb. 3, 2006) [hereinafter CriminalInvestigation, Hasson].353354355352
Criminal Investigation, Hasson,supranote 352, at 1-2.Criminal Investigation, Hasson,supranote 352, at 6.
Investigators contacted the current and former Detainee Operations officers for the camp, the U.S. field hospital staff, officials at aBritish hospital, and requested searches of Military Police, Military Intelligence, and medical databases. Criminal Investigation, Hasson,supranote 352, at 4, 8..356357358359
See generally,Criminal Investigation, Hasson,supranote 352.Criminal Investigation, Hasson,supranote 352, at 1-2.Criminal Investigation, Hasson,supranote 352, at 19.
Dep’t of the Army, CID,CID Report of Investigation Final Supplemental /SSI Report -0007-04-CID259-80133-5H9A(Aug. 23, 2004)[Criminal Investigation, Ibrahim],available athttp://www.aclu.org/torturefoia/released/DOA_1443_1479.pdf, at 1 (accessed Feb. 7, 2006)[hereinafter Criminal Investigation, Ibrahim].360361362363
Criminal Investigation, Ibrahim,supranote 359, at 7 – 8.Criminal Investigation, Ibrahim,supranote 359, at 4.Criminal Investigation, Ibrahim,supranote 359, at 9.
Third Amended Complaint,Saleh v. Titan Corp.,No. 1:05-CV-1165 (U.S. District Court for the District of Columbia, filed Sept. 12,2005), ��135-139.See alsoTom Squitieri,Documents Give Different Explanation for Inmate’s Death,USA TODAY, June 28, 2004, at 2A.Third Amended Complaint,Saleh v. Titan Corp.,No. 1:05-CV-1165 (U.S. District Court for the District of Columbia, filed Sept. 12,2005), ��135-139.See alsoTom Squitieri,Documents Give Different Explanation for Inmate’s Death,USA TODAY, June 28, 2004, at 2A.365366367368364
Criminal Investigation, Ibrahim,supranote 359, at 9.Criminal Investigation, Ibrahim,supranote 359, at 9.Criminal Investigation, Najem,supranote 391.Criminal Investigation, Najem,supranote 391.
A Human Rights First Report
116—VIII. Endnotes
369370371372
Criminal Investigation, Najem,supranote 391.Criminal Investigation, Najem,supranote 391, at 4.Criminal Investigation, Najem,supranote 391.
Dep’t of the Army, CID,CID Report of Investigation-Final(C)- 0025-03-CID919-63733,at 41-43 (Feb. 4, 2004) [Criminal Investigation,al-Obodi],available athttp://www.aclu.org/torturefoia/released/DOA_1727_1780.pdf (accessed Feb. 7, 2006) [hereinafter CriminalInvestigation, al-Obodi].373374375376377378
Criminal Investigation, al-Obodi,supranote 372, at 7.Criminal Investigation, al-Obodi,supranote 372, at 41-43.Criminal Investigation, al-Obodi,supranote 372, at 35-36.Criminal Investigation, al-Obodi,supranote 372, at 1.Criminal Investigation, al-Obodi,supranote 372, at 48.
Charles Hanley,Heat on U.S. Over Iraqi Weapons Scientists,ASSOC. PRESS, July 21, 2005; Sinan Salaheddin,Family of Iraqi ScientistWelcomes Probe,ASSOC. PRESS, Mar. 27, 2005,available athttp://www.armytimes.com/story.php?f=1-292925-745460.php (accessedFeb. 3, 2006) [hereinafter Salaheddin,Family Welcomes Probe];Luke Harding,I Will Always Hate You People,THEGUARDIAN, May 24,2004, at Home Pages 1.Salaheddin,Family Welcomes Probe, supranote 378; Luke Harding,I Will Always Hate You People,THEGUARDIAN, May 24, 2004, atHome Pages 1.380381382383379
Luke Harding,I Will Always Hate You People,THEGUARDIAN, May 24, 2004, at Home Pages 1.Id.Id.;Salaheddin,Family Welcomes Probe, supranote 378.
Salaheddin,Family Welcomes Probe, supranote 378; Charles Hanley,Heat on U.S. Over Iraqi Weapons Scientists,ASSOC. PRESS,July 21, 2005.Luke Harding,Family’s Fury at Mystery Death,THEGUARDIAN, May 24, 2004, at Home Pages 1; Salaheddin,Family Welcomes Probe,supranote 378.
384
385
Salaheddin,Family Welcomes Probe, supranote 378 (“Now the Army’s Criminal Investigation Command in Washington, after aninquiry by The Associated Press, says it has reopened an investigation into what it calls a previously closed case.”); Charles Hanley,Heaton U.S. Over Iraqi Weapons Scientists,ASSOC. PRESS, July 21, 2005.Salaheddin,Family Welcomes Probe, supranote 378; Charles Hanley,Heat on U.S. Over Iraqi Weapons Scientists,ASSOC. PRESS,July 21, 2005.Salaheddin,Family Welcomes Probe, supranote 378.Charles Hanley,Experts Urge Release of Iraq Scientists,ASSOC. PRESS, July 17, 2005.STEVEN MILES,OATH BETRAYED:MILITARY MEDICINE AND THE WAR ON TERROR,
386
387388389
(forthcoming 2006) (Homicides Chapter, at 15, manuscript
on file with Human Rights First).390
SeeDIC Table: Deaths likely caused by heart attack: Mahmood (age unknown, death certificate reportedly identified cardiac arrest, butcause of death officially undetermined); Mohammed Hamza al-Zubaidi (age 67, death reportedly by heart attack but no investigativefindings); Unknown 3 (age 60; administrative investigation discussed but didn’t rule on heart attack as cause); Unknown 17 (age unknown;death reportedly by heart attack but investigative findings unknown); Unknown 23 (age 31; death reportedly by heart attack but investiga-tive findings unknown); Unknown 29 (age 30 reportedly by heart attack but investigative findings unknown); Unknown 33 (age 65,reportedly by heart attack but investigative findings unknown); Unknown 36 (age 43; reportedly by heart attack but investigative findingsunknown); Unknown 38 (age 65 reportedly by heart attack but no investigative findings); Unknown 11 (age unknown; death reportedly byheart attack, but investigative findings unknown).Deaths likely caused by heart disease: A. Najem (age approx. 50; death from heart disease; criminal investigation found death fromnatural causes); Mihdy (age unknown; death from arteriosclerotic cardiovascular disease; criminal investigation found death from naturalcauses); Spah (age approx. 50; death from arteriosclerotic cardiovascular disease after hunger strike; criminal investigation found deathfrom natural causes); Taleb (age approx. 40; death from arteriosclerotic cardiovascular disease; criminal investigation found death fromnatural causes); Ibrahim (age 63, death from atherosclerotic cardiovascular disease; criminal investigation determined further investigationwould be of little value); al-Hussen (age 25; death from myocarditis; criminal investigation found death from natural causes); Ahmed (age61; death from atherosclerotic cardiovascular disease; criminal investigation found death from natural causes); Abbas (age 55; death fromatherosclerotic cardiovascular disease; criminal investigation found probable death from the disease); Altia (age: approx. 65; atheroscle-rotic cardiovascular disease; criminal investigation found death from natural causes); al-Razak (age 52; atherosclerotic cardiovasculardisease; criminal investigation found death from natural causes); Unknown 35 (age 60; heart failure after surgery; investigative findingsunknown or not available).Of these 21 deaths, military investigators determined: eight were due to natural causes; the probable cause in one was heart disease; inone the cause is officially undetermined; in one investigators found further investigation would not be helpful. Of the remaining 11 deaths,official investigative findings are not known or not publicly available.
Dep’t of the Army, CID,Report of Investigation-Final Supplemental- 0136-03-CID259-61187-5H9A(June 4, 2004) [Criminal Investiga-tion, Najem],available athttp://www.aclu.org/torturefoia/released/24TF.pdf, at 1, 34 (accessed Feb. 3, 2006) [hereinafter CriminalInvestigation, Najem].392393
391
Criminal Investigation, Najem,supranote 391, at 34.Criminal Investigation, Ibrahim,supranote 359, at 1, 3.
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394395396
Criminal Investigation, Ibrahim,supranote 359, at 4.Criminal Investigation, Ibrahim,supranote 359, at 29.
Third Amended Complaint,Saleh v. Titan Corp.,No. 1:05-CV-1165 (U.S. District Court for the District of Columbia, filed Sept. 12,2005), ��135-139.See alsoTom Squitieri,Documents Give Different Explanation for Inmate’s Death,USA TODAY, June 28, 2004, at 2A(reporting allegation that Ibrahim had been doused with cold water over three days; he then became ill and died three days later).397
Dep’t of the Army, the Inspector General, DETAINEEOPERATIONSINSPECTION(July 21, 2004), at 76,available athttp://www.humanrightsfirst.org/us_law/PDF/abuse/mikolashekdetaineereport.pdf (accessed Feb. 3, 2006).398399
Id.at 1-3.
Rights Group Puts Rumsfeld on Spot over Afghan Deaths,REUTERS, Dec. 14, 2004,available athttp://www.commondreams.org/headlines04/1214-02.htm (accessed Feb. 7, 2006).400
Afghan who died in U.S. custody complained of snake bite, American commander says,ASSOC. PRESS, Jan. 3, 2005,available athttp://www.fox23news.com/news/world/story.aspx?content_id=B22E7E94-260B-4D5A-9AE5-D194D5F59C4F (accessed Feb. 7, 2006).U.S. Investigates 8 Afghan Prison Deaths,ASSOC. PRESS, Dec. 13, 2004;Rights Group Puts Rumsfeld on Spot over Afghan Deaths,REUTERS, Dec. 14, 2004,available athttp://www.commondreams.org/headlines04/1214-02.htm (accessed Feb. 7, 2006);Afghan who diedin U.S. custody complained of snake bite, American commander says,ASSOC. PRESS, Jan. 3, 2005,available athttp://www.fox23news.com/news/world/story.aspx?content_id=B22E7E94-260B-4D5A-9AE5-D194D5F59C4F (accessed Feb. 7, 2006).402401
Afghan who died in U.S. custody complained of snake bite, American commander says,ASSOC. PRESS, Jan. 3, 2005,available athttp://www.fox23news.com/news/world/story.aspx?content_id=B22E7E94-260B-4D5A-9AE5-D194D5F59C4F (accessed Feb. 7, 2006).403
R. Jeffrey Smith,Army Reprimand Reported in Slaying,WASH. POST, Dec. 14, 2004, at A24; Letter from Human Rights Watch toSecretary Rumsfeld (Dec. 13, 2004),available athttp://hrw.org/english/docs/2004/12/10/afghan9838_txt.htm (accessed Feb. 7, 2006).
404
Afghan Who Died in U.S. Custody Complained of Snake Bite, American Commander Says,ASSOC. PRESS, Jan. 3, 2005,available athttp://www.fox23news.com/news/world/story.aspx?content_id=B22E7E94-260B-4D5A-9AE5-D194D5F59C4F (accessed Feb. 7, 2006).Id.; U.S. Army Acknowledges Eight Deaths in Military Custody in Afghanistan,AGENCEFRANCE-PRESSE, Dec. 14, 2004,available athttp://www.keepmedia.com/pubs/AFP/2004/12/13/682161 (accessed Feb. 7, 2006); Human Rights First submitted a Freedom ofInformation Act request for the criminal investigation into Khan’s death to the Crime Records Center on July 25, 2005, and a request to theArmy Medical Command for Khan’s final autopsy report on July 21, 2005. The autopsy request was denied on Oct. 31, 2005 based onprivacy grounds, while the criminal investigation request remains pending as of February 2006.406405
Afghan Who Died in U.S. Custody Complained of Snake Bite, American Commander Says,ASSOC. PRESS, Jan. 3, 2005,available athttp://www.fox23news.com/news/world/story.aspx?content_id=B22E7E94-260B-4D5A-9AE5-D194D5F59C4F (accessed Feb. 7, 2006);Adrian Levy and Cathy Scott-Clark,‘One Huge U.S Jail’,THEGUARDIAN, Mar. 19, 2005,available athttp://www.guardian.co.uk/afghanistan/story/0,1284,1440836,00.html (accessed Feb. 3, 2006).407408409410411
Craig Pyes and Mark Mazzetti,U.S. Probing Alleged Abuse of Afghans,L.A. TIMES, Sept. 21, 2004, at A1.Id.Id.Id.
Id.;Craig Pyes,A Torture Killing by U.S. forces in Afghanistan,Crimes of War Project, Sept. 20, 2004,available athttp://www.crimesofwar.org/special/afghan/news-tortureafghan.html (accessed Feb. 3, 2006);see alsoAmended Complaint,Ali, et al., v.Rumsfeld, et al.No. 05-CV-1377 (D.D.C., filed Jan. 5, 2006), ��172-188.412
Craig Pyes,A Torture Killing by U.S. forces in Afghanistan,Crimes of War Project, 9/20/04,available athttp://www.crimesofwar.org/special/afghan/news-tortureafghan.html (accessed Feb. 3, 2006).413414
Id.; see alsoAmended Complaint,Ali, et al., v. Rumsfeld, et al.No. 05-CV-1377 (D.D.C., filed Jan. 5, 2006), �174.
Craig Pyes,A Torture Killing by U.S. forces in Afghanistan,Crimes of War Project, 9/20/04,available athttp://www.crimesofwar.org/special/afghan/news-tortureafghan.html (accessed Feb. 3, 2006).415416417
Id.Craig Pyes and Mark Mazzetti,U.S. Probing Alleged Abuse of Afghans,L.A. TIMES, Sept. 21, 2004, at A1.
Craig Pyes for the Crimes of War Project,A Torture Killing by U.S. Forces in Afghanistan,Sept. 20, 2004,available athttp://www.crimesofwar.org/special/afghan/news-tortureafghan.html (accessed Feb. 3, 2006).418419420421422423424425
Id.Id.Id.Id.Id.Id.Id.
Press Briefing with National Security Advisor Stephen Hadley, Office of the Press Secretary (Nov. 2, 2005),available athttp://www.whitehouse.gov/news/releases/2005/11/20051102-10.html (accessed Feb. 3, 2006).426
See, e.g.,Criminal Investigation, Radad,supranote 260, at 29 (investigation was “not completely thorough (i.e. [failure to collect] theweapon [allegedly used in the killing] for fingerprint analysis)”); Dep’t of the Army, CID,CID Report of Investigation – 3D Final Supplemen-
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tal - 0013-04-CID789-83982(Aug. 24, 2004),available athttp://www.aclu.org/torturefoia/released/DOA_1480_1541.pdf, at 55 (accessedFeb. 7, 2006) (review “disclosed the investigation was weak in the areas of thoroughness and documentation” because,inter alia,“thephotographs … were not taken consistent with the requirements or protocols of a homicide investigation,” the decision not to request anautopsy “should [have been] explained somewhere in the report,” and “agents should have conducted a thorough investigation ofdetainee’s remains.”); Criminal Investigation, Ibrahim,supranote 359, at 29 (“investigation did not conduct a crime scene examination …did not conduct interviews of those witnesses who found the victim … no effort [was] made to interview the alleged brother and son of thevictim.”); Dep’t of the Army, CID,CID Report of Investigation – Final – 0140-03-CID389-61697-5H9B(Jan. 1, 2004) [Criminal Investigation,Kareem],available athttp://www.aclu.org/torturefoia/released/DOA_1206_1234.pdf, (accessed Feb. 3, 2006) (investigation “was weak inThoroughness and Timeliness … no documentation … explaining the lack of an autopsy … [n]o interrogators were interviewed … [the file]does not mention the presence, or lack of, signs of a struggle, or of blood or body fluids.”).The term “commander” is a functional one, used by the U.S. Armed Forces to refer to a variety of top officers: brigades, battalions,regiments, and companies all have commanding officers, and each exercises broad discretion over the soldiers in their command.SeeArmy Regulation 600-20, Army Command Policy, §1-5, (Feb. 1, 2006),available athttp://www.army.mil/usapa/epubs/pdf/r600_20.pdf at 7-8 (accessed Feb. 8, 2006) (“[t]he key elements of command are authority and responsibility…. The commander is responsible forestablishing leadership climate of the unit and developing disciplined and cohesive units…. The commanding officer… assigns appropriateduties [to soldiers].”). Army regulations regularly use the blanket term to set out broad policy directives.See, e.g.Army Regulation 360-1,The Army Public Affairs Program, §1-5, Oct. 15, 2000 (assigning responsibilities to “[a]ll commanders,” “Major Army Commandercommanders,” “installation commanders,” and “local commanders.”). In the context of the death investigations discussed here, “com-mander” refers to officer-rank personnel with authority over subordinate enlisted soldiers and, as applicable, over other officers.SeeDIC Table: The findings in this chapter are based on a review of the administrative and criminal investigation records of 41 deaths;the records of any investigations into the remaining 57 deaths in custody have not been made publicly available. Of these 41 deaths forwhich military investigation records have been publicly released, 32 are records of Army criminal investigations, covering 37 deaths.These records cover the deaths of: Kenami, Spah, al-Obodi, Abbas, Kadir, Sayari, Zaid, Byaty, Taleb, A. Najem, Mihdy, al-Haddii, al-Juwadi, H. Ahmed, Basim, F. Mahmood, Amir, [Salman, Shalaan, Sayar, Thawin], al-Bawi, Fadil, Altia, Ibrahim, Abdullah, [K. Mahmood,Farhan], Jabar, al-Hussen, al-Razak, Hasson, A. Hassan, F. Najem, [Habib, Ghafar], Radad (square brackets denote multiple deathscovered in a single investigation). The Army has also publicly released nine administrative investigations (described below). For six of theadministrative investigations (which cover nine deaths, Radad, Kenami, H. Ahmed, [Salman, Shalaan, Sayar, Thawin], Jabar, A. Hassan)criminal investigation records were also released. For another three administrative investigations, each covering a single death (Unknown3, Unknown 4 and Unknown 5), no corresponding criminal investigation records have been released. Only one Navy criminal investigation,into the death of Hemdan Haby Heshfan el-Gashame, has been publicly released. No details of investigations into CIA involvement in anyof the deaths have been released.Depending on the service, investigations may be conducted by the Army Criminal Investigation Division (CID), the Naval CriminalInvestigative Service (NCIS), or the Air Force Office of Special Investigations.See, respectively,Army Regulation 195-1, Army CriminalInvestigation Program (Aug. 12, 1974),available athttp://www.army.mil/usapa/epubs/pdf/r195_1.pdf (accessed Feb. 8, 2006); SECNAVInstruction 5520.3B, Criminal and Security Investigations and Related Activities Within the Dep’t of the Navy (Jan. 4, 1993),available athttp://neds.daps.dla.mil/Directives/5520b3.pdf (accessed Feb. 8, 2006); Army Regulation 195-7/AFR 124-19, Criminal InvestigativeSupport to the Army and Air Force Exchange Service (AAFES) (Apr. 25, 1986),available athttp://www.army.mil/usapa/epubs/pdf/r195_7.pdf (accessed Feb. 8, 2006).430429428427
The Army’s Criminal Investigation Division is required to investigate any death in which a member of the Armed Forces is involved,including both U.S. soldiers and their prisoners or detainees, as prescribed in Army Regulation 195-2, Criminal Investigation Activities,Appendix B (Oct. 30, 1985),available athttp://www.army.mil/usapa/epubs/pdf/r195_2.pdf (accessed Feb. 8, 2006).
Two series of military regulations detail the investigative procedures that Army CID must follow: Army Regulation Series 195, which ispublicly available (see Official Dep’t of the Army Administrative Publications, 195 Series Collection,available athttp://www.army.mil/usapa/epubs/195_Series_Collection_1.html (accessed Feb. 8, 2006); and CID Regulation Series 195, which is notpublicly available. Human Rights First attempted to obtain copies of the CID Regulation series both from CID Headquarters and from theDepartment of Defense. According to the Department of Defense Public Affairs Office, the CID Regulation Series 195 is “a non-releasabledocument and is protected under a law enforcement exemption.” Email from Maj. Wayne Marotto, Public Affairs Staff Officer, Dep’t of theArmy, to Human Rights First, Feb. 10, 2006 (on file with Human Rights First).A single duty day is the equivalent of a single business day in the Army.See, e.g.,Dep’t of the Army, 121 Signal Battalion, PolicyMemorandum 15 (June 24, 2003),available athttp://www.1id.army.mil/1ID/Units/121sig/Policy_Letters/121%20Bn%20Policy%2015-%20Battalion%20Rhythm.pdf (accessed Feb. 8, 2006).See, e.g.,Dep’t of the Army, CID,CID Report of Investigation – Initial/SSI - 0040-04-CID469-79638-5H1A,(Apr. 30, 2004) [CriminalInvestigation, Kadir],available athttp://www.aclu.org/torturefoia/released/5399_5486.pdf at 49 (accessed Feb. 8, 2006) [hereinafterCriminal Investigation, Kadir].434433432st
431
Army Regulation 15-6, Procedure for Investigating Officers and Board of Officers (Sept. 30, 1996),available athttp://www.usma.edu/EO/regspubs/r15_6.pdf (accessed Feb. 8, 2006) [hereinafter AR 15-6].435436
AR 15-6,supranote 434, at § 1-4(d).
Army Regulation 195-2, Criminal Investigation Activities, Appendix B (Oct. 30, 1985),available athttp://www.army.mil/usapa/epubs/pdf/r195_2.pdf (accessed Feb. 8, 2006). (CID is required to investigate the death of anyone in which theArmed Forces were involved, including both soldiers and detainees, as prescribed in Appendix B.).Each Army command unit is assigned a Staff Judge Advocate office, which is required to provide legal services to the command. Dep’tof the Army, Field Manual 27-100, Legal Support to Operations, 2.1.7 (Mar. 1, 2000),available athttp://www.globalsecurity.org/military/library/policy/army/fm/27-100/index.html (accessed Feb. 3, 2006).438437
See, e.g.,Staff Judge Advocate of the Commandant of the Marine Corps , Military Justice Fact Sheets, Reporting Crime and FirstStages of Investigation in the Military, http://sja.hqmc.usmc.mil/JAM/MJFACTSHTS.htm (accessed Feb. 3, 2006) (“[t]o help commanders
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decide how to resolve charges, commanders must make a “preliminary inquiry” into any allegations against a member of the commandunder military procedural Rules for Courts-Martial (R.C.M.) found in the Manual for Courts-Martial….The commander can conduct thisinquiry himself, appoint someone else in his command to do it, or, as happens in very serious cases, request assistance from civilian ormilitary criminal investigative agencies….When the commander finishes the preliminary inquiry, he must make a decision on how toresolve the case. Unlike civilian communities, where a district attorney decides whether or not to “press” charges, in the military, com-manders make that decision.”)See, e.g., id.(“The commander could decide that no action at all is warranted. Or he could take administrative action, such as anadmonition or reprimand, or making an adverse comment in performance evaluations, or seeking discharge of the member from theservice. The commander also possesses nonjudicial punishment authority under the procedures of Article 15, UCMJ. The commandermay also determine that criminal charges are appropriate. The “preferral” of charges, similar to “swearing out a complaint” in civilianjurisdictions, initiates the court martial process”).See, e.g., id.There are three different levels of court martial – summary, special and general – with general court martial, the military’shighest level trial court, used for the most serious offenses, including charges of murder or manslaughter.SeeUniform Code of MilitaryJustice, Subchapter IV: Court Martial Jurisdiction, § 816, Art. 816,available athttp://www.au.af.mil/au/awc/awcgate/ucmj.htm#SUBCHAPTER%20IV.%20COURT-MARTIAL%20JURISDICTION (accessed Feb. 3.2006); Military.com, Benefits and Legal Matters, Legal Matters: Courts-Martial,http://www.military.com/Resources/ResourcesContent/0,13964,30902--1,00.html (accessed Feb. 3, 2006). Manual for Courts-martial,United States (2005 Edition),available athttp://www.au.af.mil/au/awc/awcgate/law/mcm.pdf (accessed Feb. 3, 2006).SeeUniform Code of Military Justice, Subchapter VIII: Sentences, § 858a, Art. 58,available athttp://www.au.af.mil/au/awc/awcgate/ucmj.htm#SUBCHAPTER%20IV.%20COURT-MARTIAL%20JURISDICTION (accessed Feb. 3.2006); Uniform Code of Military Justice, Subchapter VIII: Sentences, § 852, Art. 52(2),available athttp://www.au.af.mil/au/awc/awcgate/ucmj.htm#SUBCHAPTER%20IV.%20COURT-MARTIAL%20JURISDICTION (accessed Feb. 3.2006) (“[n]o person may be sentenced by life imprisonment or to confinement for more than ten years, except by the concurrence of three-fourths of the members at the time the vote is taken”). Manual for Courts-martial, United States (2005 Edition), Rule 1003,available athttp://www.au.af.mil/au/awc/awcgate/law/mcm.pdf (accessed Feb. 3, 2006), at 173 – 177.Human Rights First Telephone Interview with Brigadier General Stephen N. Xenakis, USA (Ret.), Former Commanding General of theSoutheast Regional Army Medical Command (Nov. 10, 2005) (notes on file with Human Rights First).Dep’t of the Army, Field Manual 27-1, Legal Guide for Commanders, Chapter 8 (Jan. 13, 1992), availableathttp://www.globalsecurity.org/military/library/policy/army/fm/27-1/Ch8.htm (accessed Feb. 3, 2006). The same is true for physicalevidence. As the Army Field Manual for Law Enforcement Investigations states, “physical evidence is one of [an investigator’s] mostvaluable investigative assets.” Dep’t of the Army, Field Manual 19-20, Law Enforcement Investigations (Nov. 25, 1985),available athttps://134.11.61.26/CD7/Publications/DA/FM/FM%2019-20%2019851125.pdf, at 9 (accessed Feb. 3, 2006);see alsoDep’t of the Army,Field Manual 19-20, Law Enforcement Investigations, (Nov. 25, 1985), at 10 (“[t]o achieve the maximum benefit from physical evidence,you must be not only skilled in its collection, but careful in your handling of it to preserve it for laboratory examination and/or for presenta-tion in court. You must retain the item’s evidential integrity bykeeping the item as nearly as possible in its original condition.”)(emphasis inoriginal).444443442441440439
Recognizing these dangers, Army Regulation 195-5 sets out 28 pages of detailed procedures on the proper handling and storage ofphysical evidence. Army Regulation 195-5, Evidence Procedures (Aug. 28, 1992).
Memorandum from the Secretary of Defense for Secretaries of the Military Departments, Procedures for Investigation into Deaths ofDetainees in the Custody of the Armed Forces of the United States (June 9, 2004),available athttp://www.aclu.org/torturefoia/released/navy3797.3798.pdf (accessed Feb. 3, 2006).Dep’t of Army, CID,CID Report of Investigation – Corrected Final – (C) 0264-03-CID259-61231/5H6(Aug. 7, 2004) [Criminal Investiga-tion, Salman, Shalaan, Sayar, and Thawin],available athttp://www.aclu.org/torturefoia/released/DOA_1902_1950.pdf at 29 (accessedFeb. 8, 2006) [hereinafter Criminal Investigation, Salman, Shalaan, Sayar, and Thawin] (reporting that “due to the daily operations at theAbu Ghraib Prison, every soldier in the incident could not be located and/or were on duty”),but see id.,at 2-3 (listing as attachmentsaround ten sworn statements as well as canvass interviews);see alsoDep’t of the Army, CID,CID Report of Investigation – FinalSupplemental - 0004-04-CID789-83980-5H6-5Y3,(July 22, 2004) [Criminal Investigation, Amir],available athttp://www.aclu.org/torturefoia/released/DOA_2156_2205.pdf, at 16–18 (accessed Feb. 8, 2006) (noting difficulty interviewing detaineewitness to a riot shooting death, but agents spoke to medical personnel, the shooters, and numerous other witnesses).447446
445
SeeDIC Table: Habibullah (victim’s blood stored in the butter dish of investigating agents’ refrigerator, records and logs lost during thecourse of investigation), Dilawar (records lost during the course of the investigation); Hatab (medical evidence lost and destroyed due tolax handling); Jabar (no evidence collected from scene, including weapon and shells); al-Obodi (no fingerprints of deceased taken); A.Najem (no crime scene examination, no photographs); Radad (investigators did not collect weapon used in the killing); Kenami (crimescene examination incomplete); Ibrahim (no crime scene investigation conducted); Amir (crime scene investigation not conducted); Farhanand K. Mahmood (no crime scene examination conducted, photographs of victim and scene inadequate, no death certificates collected);al-Bawi (criminal investigator failed to collect any evidence supporting the conclusions of a prior investigation); F. Mahmood (no crimescene exam conducted); Ghafar and Habib (no crime scene investigation conducted).
448
Seth Hettena,Army Pathologist Concedes Errors in Prisoner-Abuse Case,Assoc. Press, Oct. 14, 2004, available athttp://www.usatoday.com/news/nation/2004-10-14-errors-abuse_x.htm (accessed Feb. 3, 2006) (rib cage found at Armed Forces Instituteof Pathology, Washington D.C.; part of larynx found at Landstuhl military base in Germany).449450451
Alex Roth,Marines involved in Iraqi abuse frustrated after their convictionsTHESANDIEGOUNION-TRIB., Dec. 13, 2004, at A1.Criminal Investigation, Kenami,supranote 323, at 2.Criminal Investigation, Kenami,supranote 323, at 13.
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SeeDIC Table: Habibullah (investigators failed to interview commanders and guards in original investigation); Dilawar (investigatorsfailed to interview commanders and guards in original investigation, as well as an interrogator who later came forward to describe abuse);Jabar (7 interview-related leads remained open when case was closed); Hussain (witnesses, including other detainees, were notinterviewed); Byaty (medics who tended to detainee not interviewed); Najem (no interviews with any witnesses to the death, nor with anIraqi who had provided medical care to the detainee); Unknown 4 (no interviews of other detainees); Zaid (medical personnel notinterviewed); Kenami (no interviews conducted with interrogators, doctor who filled out death certificate, one medic, guards, or otherdetainees); Ibrahim (no interviews with witnesses present at death, including son of detainee who later alleged detainee was abused);Abdullah (no interviews of other detainee witnesses); F. Mahmood (some medical personnel not interviewed); al-Bawi (no interviews ofany person conducted); Fadil (no interview of possible medical witness).453454455
452
Criminal Investigation, Ibrahim,supranote 359, at 7, 23-25, 29.Criminal Investigation, Najem,supranote 391, at 34.
See, e.g.,Dep’t of the Army, Field Manual 19-20, Law Enforcement Investigations (Nov. 1985),available athttps://134.11.61.26/CD7/Publications/DA/FM/FM%2019-20%2019851125.pdf, at 174 (evidentiary value of some medical evidence maybe reduced by delayed examination), 176 (physical evidence may be destroyed if not secured promptly), 243 (delaying interviews allowssuspects to coordinate their testimony and destroy evidence) (accessed Feb. 3, 2006).456
SeeDep’t of Army, Field Manual 27-1, Legal Guide for Commanders, Chapter 8 (Jan. 13, 1992), availableathttp://www.globalsecurity.org/military/library/policy/army/fm/27-1/ ) (accessed Feb. 3, 2006).Army Regulation 190-40, Serious Incident Report (Jun. 15, 2005),available athttp://www.usapa.army.mil/pdffiles/r190_40.pdf(accessed Feb. 8, 2006). Appendix C-1(g) lists “all prisoner deaths” as Category-2 Reportable Serious Incidents, Section 3-2(b) mandatesthe same 24-hour reporting period, and Section 3-5(a) also includes the Army’s Criminal Investigation Command (CID) as an addressee ofthe report. The revised version of this regulation, issued June 15, 2005, contains identical requirements (section 2-3(g) lists “all prisonerdeaths” as Category-2 Reportable Serious Incidents; 3-2(b) requires that Category-2 incidents be reported within 24 hours; 3-5(a) requiresthat all Serious Incident Reports be sent to CID);see alsoMemorandum from the Secretary of Defense for Secretaries of the MilitaryDepartments, Procedures for Investigation into Deaths of Detainees in the Custody of the Armed Forces of the United States (June 9,2004),available athttp://www.aclu.org/torturefoia/released/navy3797.3798.pdf (accessed Feb. 3, 2006) (the June 7, 2004 memorandummodifies an Army CID Regulation that is not publicly available; it is not, therefore, clear what was the prior requirement of this specificregulation); Dep’t of the Army, CID,CID Report of Investigation – Initial/Final SSI – 0037-04-CID201-54050(Nov. 16, 2004),available athttp://www.aclu.org/torturefoia/released/042105/9290_9388.pdf, at 68-69 (accessed Feb. 3, 2006); United States Marine Corps, MilitaryPolice in Support of the MAGTF [Marine Air-Ground Task Force], MCWP 3-34. §1,5-4 (“[u]pon receiving information concerning allegedwar crimes committed by Marines, commanders must immediately notify the nearest CID field office.”).Army Regulation 95-1, Army Criminal Investigation Program, §3(b) (Aug. 12, 1974) (commanders “will insure that known or suspectedcriminal activity is reported to the military police and, when appropriate, to CID for investigation.”).459460461462458457
Army Regulation 195-2, Criminal Investigation Activities, §1-4(d) (Oct. 30, 1985).Army Regulation 190-45, Law Enforcement Reporting, §3-1(a) (Jun. 6, 2005).Army Regulation 360-1, The Army Public Affairs Program, §5-45, (Oct. 15, 2000).
Army Regulation 600-20, Army Command Policy, §5-8(1)(a) (July 15, 1999) (after a report of investigation has been forwarded to acommander, “the case will be disposed of at the lowest level having authority consistent with the gravity of the case.”).
463
SeeDep’t of Army Field Manual 27-1, Legal Guide for Commanders, Chapter 3 (Jan. 13, 1992), availableathttp://www.globalsecurity.org/military/library/policy/army/fm/27-1/ ) (accessed Feb. 3, 2006) (“Investigators must always remain impartial. Aone-sided investigation may result in an injustice to the accused and an embarrassment to the command”); United States Marine Corps,Military Police in Support of the MAGTF [Marine Air-Ground Task Force], MCWP 3-34.1, §5-4 (Oct. 13, 2000) (“Commanders areprohibited from interfering with the investigations or impeding the use of investigative techniques.”)464
United States Marine Corps, Military Police in Support of the MAGTF [Marine Air-Ground Task Force], MCWP 3-34.1, §5-4 (Oct. 13,2000).SeeCriminal Investigation, Radad,supranote 260, at 28.See supranote 428 for details of the number of military criminal and administrative investigation records released.
465466467
See, e.g.,Radad (review found that failure to collect evidence jeopardized any possible prosecution), Criminal Investigation, Radad,supranote 260, at 28–29); Taleb (review found that autopsy report had not been received, Dep’t of the Army, CID,Report of Investigation– Final Supplemental – 0147-03-CID259-61195-5H9A(June 3, 2004) [Criminal Investigation, Taleb],available athttp://www.aclu.org/torturefoia/released/23TFa.pdf, at 5 (accessed Feb. 3, 2006) [hereinafter Criminal Investigation, Taleb]); Abed Najem(review found that “the investigation was operationally insufficient and was administratively insufficient” due to lack of interviews andrecords, Criminal Investigation, Najem,supranote 391, at 34).468
Seecriminal investigation reports for: Ibrahim (Criminal Investigation, Ibrahim,supranote 359; Abdullah (Dep’t of the Army, CID,CIDReport of Investigation- Corrected Final (C)/SSI- 0036-04-CID259-80151(Aug. 20, 2004) [Criminal Investigation, Abdullah]available athttp://www.aclu.org/torturefoia/released/DOA_1872_1901.pdf, at 1-2, 6-7 (accessed Feb. 8, 2006) [hereinafter Criminal Investigation,Abdullah]); Byaty (Criminal Investigation Byatysupranote 476); Mihdy (Dep’t of the Army, CID,CID Report of Investigation FinalSupplemental – 0239-03-CID259-61189-5H9A,(Jun. 4, 2004) [Criminal Investigation, Mihdy]available athttp://www.aclu.org/torturefoia/released/DOA_1542_1582.pdf (accessed Feb. 8, 2006) [hereinafter Criminal Investigation, Mihdy]); Najem(Criminal Investigation, Najem,supranote 391);Taleb (Criminal Investigation, Taleb,supranote 467); Zaid (Dep’t of the Army CID,CIDReport of Investigation–Initial/Final C/SSI – 0168-04-CID899-81718-5H8,(May 31, 2004) [Criminal Investigation, Zaid]available athttp://www.aclu.org/torturefoia/released/DOA_2206_2216.pdf (accessed Feb. 8, 2006)); al-Hussen (Dep’t of the Army CID,CID Report ofInvestigation – Final Supplemental 0012-04-CID259-80136-5H9A,(Sept. 3, 2004) [Criminal Investigation, al-Hussen]available athttp://www.aclu.org/torturefoia/released/DOA_1837_1871.pdf (accessed Feb. 8, 2006) [hereinafter Criminal Investigation, al-Hussen]).
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469470
The earliest death in this group was that of Byaty, which occurred on August 7, 2003. Criminal Investigation, Byatyinfranote 476, at 1.
Dep’t of the Army, CID to Commander, Request for Investigation 0370-04-CID001, (Sept. 7, 2004) (“A review of unclassified militaryintelligence files revealed a spreadsheet titled ‘PMO Detainee Not in Camp Roster’ which documented eight detainee deaths, four ofwhich were previously documented under a CID Report of Investigation.”). Army CID was not the only agency to initiate such a review inMay 2004. When the Abu Ghraib abuses became public, the FBI sent a request to all of its agents who had served in Guantanamo Bay forinformation related to prisoner abuses.SeeE-mail from Steven C. McGraw to multiple redacted recipients, Subject GTMO (July 7, 2004,02:10 PM EST)available athttp://www.aclu.org/torturefoia/released/FBI_3944_3947.pdf (accessed Feb. 3, 2006). Several previouslyunreported incidents – later substantiated by an official Pentagon investigation – came to light as a result. Dep’t of the Army,ArmyRegulation 15-6: Final Report: Investigation Into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba, Detention Facility,(Jun. 9,2005)available athttp://www.defenselink.mil/news/Jul2005/d20050714report.pdf, at 2 (accessed Feb. 3, 2006).471472
Criminal Investigation, Hasson,supranote 352, at 2.
Dep’t of the Army, CID,CID Report of Investigation – Final/SSI – 0236-04-CID259-80272-5H9B,(Aug. 3, 2004) [Criminal Investigation,Mashnadane]available athttp://www.aclu.org/torturefoia/released/5000_5014.pdf (accessed Feb. 8, 2006). CID agents later found thatMashnadane’s death had previously been investigated. This was a death caused by mortar attack, so although it is included in our totalcount of deaths in U.S. custody, it is not included in the sample analyzed in the DIC Table.See supranote 1.SeeDIC Table: Sayari (death not reported to criminal investigators by Special Forces commanders; criminal investigation began onlyafter sergeant reported possible war crime to investigators); Unknown 2 (case does not appear to have been reported; came to lightduring the course of another criminal investigation 20 months after the death); Jabar (allegedly shot and killed during escape attempt;death not reported by commanders and investigation did not begin until a year later); Hassan (shooting of detainee during prison riot notreported; investigation not begun until 13 months after death); Byaty (investigation does not appear to have begun until nine months afterdeath; reason unknown); Naseer (allegedly tortured to death by Special Forces; initial criminal investigation opened nine months afterdeath, closed for lack of leads, reopened a year and a half after death); Hasson (death not reported; criminal investigation opened oneyear after death of detainee for whom no records but name, identification number and location of death were known); Radad (death notreported to criminal investigators until after administrative investigation); Unknown 6 (criminal investigation appears only to have opened10 months after death, following ICRC report of death); al-Izmerly (criminal investigators not informed of death of high-value detainee untilafter body had been released, precluding a U.S. autopsy); Hassoun (commanders attempted to conceal detainee’s death by drowning);Unknown 15 (death of man military claims was shot when he reached for a pistol does not appear to have been criminally investigated;family claims the man was elderly and disabled); al-Bawi (death does not appear to have been reported to criminal investigators; onlyadministrative investigation originally conducted); Salman, Sayar, Shalaan, Thawin (deaths during prison riot not reported to criminalinvestigators for at least a week by which time body of one decedent had been taken away and could not be examined).Among documents produced by the military in response to FOIA litigation is a spreadsheet dated November 5, 2004, listing cases ofalleged abuse and deaths under investigation. The spreadsheet contains a “Rpt. by” column, in which the entries for 17 of the deathsinclude “Taguba report,” “AFIP [Armed Forces Institute of Pathology],” and “ICRC [International Committee of the Red Cross] Report” – i.e.entities other than the unit commanders who are obligated to report deaths to criminal investigators. Spreadsheet of Military Investigations(dated Nov. 5, 2004),available athttp://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 11-21 (accessed Feb. 7, 2006).475476474473
Criminal Investigators Outline 27 Homicides,supranote 64, at 5.
Dep’t of the Army, CID,CID Report of Investigation – Initial/Final C/SSI – 0167-04-CID899-81717(May 31, 2004) [Criminal Investiga-tion, Byaty],available athttp://www.aclu.org/torturefoia/released/535_544.pdf, at 5 (accessed Feb. 3, 2006) [hereinafter CriminalInvestigation, Byaty].477478
Criminal Investigation Byatysupranote 476, at 29, 48.
Office of the Armed Forces Med. Exam’r,Autopsy Examination Report, ME03-385,(Sept. 29, 2003) [Autopsy, Byaty],available athttp://www.aclu.org/torturefoia/released/041905/m001_203.pdf, at 77 (accessed Feb. 3, 2006).479480481482
Salaheddin,Family Welcomes Probe, supranote 378.Criminal Investigation, Salman, Shalaan, Sayar, and Thawin,supranote 446, at 10.Criminal Investigation, Hasson,supranote 352, at 1-2.
Army Regulation 195-2, Criminal Investigation Activities, § 1-5a (Oct. 30, 1985),available athttp://www.army.mil/usapa/epubs/pdf/r195_2.pdf (accessed Feb. 8, 2006); Dep’t of the Army, Field Manual 19-10, Military Police Law andOrder Operations, Ch 14: MPI and USACIDC (Sept. 30, 1987),available athttp://www.globalsecurity.org/military/library/policy/army/fm/19-10/index.html (accessed Feb. 8, 2006).483
Dep’t of the Army, CID, General Questions About CID, How many people are in CID?, http://www.cid.army.mil/faqs.htm#faq2(accessed Feb. 8, 2006).
Dep’t of the Army, CID, General Questions About CID, What is CID’s mission?, http://www.cid.army.mil/faqs.htm#faq1 (accessed Feb.8, 2006).See, e.g.,Criminal Investigation, Radad,supranote 260, at 23. Throughout the investigative process, the investigating agents draw updrafts of what will be, at the completion of the investigation, a final Report of Investigation. A Report of Investigation is defined as “anofficial written record of all pertinent information and facts obtained in a criminal investigation.” Army Regulation 195-2, Criminal Investiga-tion Activities (Oct. 30, 1985),available athttp://www.army.mil/usapa/epubs/pdf/r195_2.pdf (accessed Feb. 8, 2006).486487485
484
See, e.g.,Criminal Investigation, Radad,supranote 260, at 2.
See, e.g.,Dep’t of the Army, CID,CID Report of Investigation-Final Supplemental/SSI- 0071-04-CID065-62019(Sept. 2, 2004)[Criminal Investigation, Jabar],available athttp://www.aclu.org/torturefoia/released/DOA_1121_1144.pdf, at 12 (accessed Jan. 30, 2006)[hereinafter Criminal Investigation, Jabar].488
See, e.g.,Criminal Investigation, Radad,supranote 260, at 12.
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489490491492
Criminal Investigation, Sayari,supranote 273, at 12–17.See, e.g.,Criminal Investigation, Radad,supranote 260, at 22.See, e.g.,Criminal Investigation, Salman, Shalaan, Sayar, and Thawin,supranote 446, at 8 – 9.
See, e.g.,Dep’t of the Army, CID,CID Report of Investigation-Final Supplemental- 0016-04-CID789-83983,(July 22, 2004) [CriminalInvestigation, F. Mahmood],available athttp://www.aclu.org/torturefoia/released/DOA_1181_1205.pdf, at 2 (accessed Feb. 3, 2006)[hereinafter Criminal Investigation, F. Mahmood].493494
See, e.g.,Criminal Investigation, F. Mahmood,supranote 492, at 24.
Criminal Investigators Outline 27 Homicides,supranote 64, at 1 (“it is important to note that CID does not charge persons with a crime,that is the responsibility of the appropriate commanders and their legal staffs”) (emphasis in original).Maj. Gen. Antonio Taguba, AR 15-6, INVESTIGATION OF THE800 MILITARYPOLICEBRIGADE, Feb. 2004,available athttp://www.humanrightsfirst.org/us_law/800th_MP_Brigade_MASTER14_Mar_04-dc.pdf (accessed Feb. 3, 2006) [hereinafterTAGUBAREPORT].496495TH
See supranote 428 for details of the number of military criminal and administrative investigation records released. Based on referencesin the 32 publicly-released criminal investigation reports, press accounts, and reports of administrative investigations that have beenpublicly released, Human Rights First has identified 12 cases of overlap, covering 15 detainee deaths.SeeDIC Table: The deaths arethose of Kenami, H. Ahmed, Sayar, Salman, Shalaan, Thawin , Jabar, A. Hassan, Radad, Kadir, Sayari, al-Bawi, Mowhoush, Dilawar, andHabibullah. Based on a review of the publicly released investigation reports, administrative and criminal investigations were concurrent inthree cases: Mowhoush, Kenami and Hassan Ahmed.Criminal Investigation, al-Bawi,supranote 71, at 5.Criminal Investigation, Radad,supranote 260, at 29.
497498499
Dep’t of the Army, CID,CIDReport of Investigation – Initial/Final SSI-0037-04-CID201-54050,(Nov. 16, 2004),available athttp://www.aclu.org/torturefoia/released/042105/9290_9388.pdf, at 70 (accessed Feb. 3, 2006) (stipulating that if “an AR 15-6 investigationor equivalent” was conducted “prior to notifying CID of an allegation … the supporting CID element will obtain a copy of and review theinquiry to determine if it thoroughly and fairly investigated the incident(s) … if further investigative efforts are deemed appropriate, thesupporting CID element will initiate an ROI to continue the investigation.”).500501
Criminal Investigation, al-Bawi,supranote 71, at 5.
Thanassis Cambanis,Shooting Death Angers Iraqi Family,BOSTONGLOBE, June 21, 2004, at A1; Liz Sly,Family Prods Military onIraqi’s Death,CHI. TRIB., July 5, 2004, at 4.Jackie Spinner,Family Seeks Justice in Case of Iraqi Slain by U.S. Troops,WASH. POST, June 15, 2004, at A13; Thanassis Cambanis,Shooting Death Angers Iraqi Family,BOSTONGLOBE, June 21, 2004, at A1..503504505506502
Criminal Investigation, al-Bawi,supranote 71, at 21 – 28.Criminal Investigation, al-Bawi,supranote 71, at 8.Criminal Investigation, al-Bawi,supranote 71, at 1.
Criminal Investigation, Jabar,supranote 487, at 5. The administrative investigation report was released independent of the criminalinvestigation report, as one of the annexes to the report of Major General Taguba. TAGUBAREPORT,supranote 495.507508509510511512513514515516517518519
Criminal Investigation, Jabar,supranote 487, at 12.Criminal Investigation, Jabar,supranote 487, at 2, 14.AR 15-6,supranote 434, at 1-4a.AR 15-6,supranote 434, at 1-1.AR 15-6,supranote 434, at 2-1a(3).AR 15-6,supranote 434, at 1-4b, 2-1b.AR 15-6,supranote 434, at 2-1c..AR 15-6,supranote 434, at 5.AR 15-6,supranote 434, at 2-3.AR 15-6,supranote 434, at 2-3b.AR 15-6,supranote 434, at 2-3a..AR 15-6,supranote 434, at 2-1a.
See, e.g.,Geneva Convention (III) Relative to the Treatment of Prisoners of War, Geneva, August 12, 1949, 75 U.N.T.S. 135, arts. 70(requiring prisoners of war be allowed to send a card to their families with details of their capture and health), 122 (requiring states to setup an information bureau to gather and transmit information on the identity, health, and death of all prisoners of war) ,available athttp://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68 (accessed Feb. 3, 2006);Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Geneva, August 12, 1949, 75 U.N.T.S. 287, arts.106 (requiring civilian internees be allowed to send a card to their families with details of their capture and health), 136, 138 (requiringstates to set up an information bureau to gather and transmit information on the identity, health, and death of civilian internees),availableathttp://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6756482d86146898c125641e004aa3c5 (accessed Feb. 3, 2006).See, e.g.,Dep’t of Defense, Directive No. 2310.1, Dep’t of Defense Program for Enemy Prisoners of War and Other Detainees, D.2(Aug. 18, 1994),available athttp://www.fas.org/irp/doddir/dod/d2310_01.htm (accessed Feb. 3, 2006) (“[t]he Secretary of the Army [shall]… [d]evelop and provide policy and planning guidance for the treatment, care, accountability, legal status, and administrative procedures520
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to be followed about [detainees, and] ensure that a national-level information center exists that can fully serve to account for all personswho pass through the care, custody, and control of the U.S. Military Services”);see alsoArmy Regulation 190-8, Enemy Prisoners of War,Retained Personnel, Civilian Internees, and Other Detainees, 1-7 (Oct. 1, 1997),available athttp://www.usapa.army.mil/pdffiles/r190_8.pdf (accessed Feb. 3, 2006) (requiring that information on detainees be collected and stored,including “[c]apturing unit,” “[c]ircumstances of capture,” and “personal data [on]… state of health, and changes to this data”); ArmyRegulation 40-66, Medical Record Administration and Health Care Documentation, 1-4(h) (July 20, 2004),available athttp://www.army.mil/usapa/epubs/pdf/r40_66.pdf (accessed Feb. 3, 2006) (“[h]ealth-care providers will promptly and correctly record allpatient observations, treatment, and care”).SeeDIC Table: Unknown 1 (“ghost” detainee was not on any agency’s registry of prisoners; death was kept secret for two years priorto investigation); al-Jamadi (“ghost” detainee kept off prison records; body not released to ICRC until three months after his death); Naseer(lack of documentation of death, witnesses or even unit assigned to facility where death occurred stymied criminal investigation) , al-Haddii(two-month delay in criminal investigation into death because file was misplaced), Jabar (investigation into death failed to follow up on 17outstanding leads, including interviews of relevant witnesses, crime scene examination and an autopsy; death was determined to bejustifiable homicide), Unknown 3 (failure to do medical screening of detainee and lack of documentation prevented definitive determinationof cause of death), Unknown 4 (cause of death could not be determined because of inadequate medical reporting and record keeping),Unknown 5 (determination of cause of death difficult to determine because of lack of medical monitoring of detainee), Taleb (cause ofdeath undetermined due to lack of autopsy results until nine months after death when autopsy report was received), Kenami (cause ofdeath could not be determined, in part, because of what the review characterized , as a criminal investigation “weak in thoroughness andtimeliness” and faulted it for lack of autopsy; lack of interviews of pertinent witnesses, and a failure to collect records of medical treatment);al-Hussen (no medical records attached to investigation), H. Ahmed (failure to read medical intake records and to conduct witnessinterviews), Amir (investigation into death was reopened because of failure to obtain death certificate; few records regarding custody existbecause of lack of clarity over whether detainee was in U.S. or Iraqi custody) ; al-Obodi (cause of death could not be determined becauseof failure to collect medical records including autopsy); al-Zubaidy (cause of death could not be determined because of almost nodocumentation, resulting in his death’s going unreported for almost a year).Criminal Investigation, Abdullah,supranote 468, at 1-2, 6-7 (reporting detainee Abdullah died of a perforated ulcer); Abbas, Dep’t ofthe Army, CID,CID Report of Investigation- Final (C)- 0050-04-CID259-80155(Mar. 16, 2004) [Criminal Investigation, Abbas],available athttp://www.aclu.org/torturefoia/released/DOA_2097_2155.pdf, at 1, 6-7, 22 (accessed Feb. 8, 2006) (reporting detainee Abbas, who hadsuffered a number of heart attacks, died of cardiac arrest); Criminal Investigation, al-Obodi,supranote 372, at 1-2, 7-8 (reporting detaineeal-Obodi “appeared extremely ill” and complained of feeling unwell prior to his death of an apparent heart attack); Basim, Dep’t of theArmy, CID,CID Report of Investigation-Final Supplemental- 0014-03-CID919-63732(July 21, 2004) [Criminal Investigation, Basim]available athttp://www.aclu.org/torturefoia/released/DOA_2060_2096.pdf, at 1, 6 (accessed Feb. 8, 2006) (reporting detainee Basim wasdiagnosed with tuberculosis a day before his death); Criminal Investigation, Najem,supranote 391, at 1, 15 (reporting detainee AbedNajem died of heart attack arising from diabetes); Criminal Investigation, Mihdy,supranote 468, at 1, 11 (June 4, 2004) (reportingdetainee Mihdy died of an apparent heart attack after telling medics that he had a prior heart condition); Criminal Investigation, al-Hussen,supranote 468, at 1, 26 (reporting detainee al-Hussen had been in medical hold when he died of myocarditis); Ahmed, Dep’t of the Army,CID,CID Report of Investigation-Final Supplemental- 0025-04-CID469-79635,(July 14, 2004) [Criminal Investigation, Ahmed], at 1, 6(reporting detainee Ahmed had been ill for “a couple” of days before his heart-attack death)andDep’t of the Army,AR 15-6 Investigationof the Death Detainee [sic] # [redacted],p. 5 (Mar. 2, 2004) (detainee Ahmed suffered from diabetes, anemia, and kidney failure); CriminalInvestigation, F. Mahmood,supranote 492, at 1, 12 (reporting detainee Mahmood died about 20 days after complaining of chest pains);al-Juwadi, Dep’t of the Army, CID,CID Report of Investigation-Final/SSI- 0032-04-CID789-83985,(June 30, 2004) [Criminal Investigation,al-Juwadi]available athttp://www.aclu.org/torturefoia/released/DOA_2222_2248.pdf, at 1, 3-4 (accessed Feb. 8, 2006) [hereinafterCriminal Investigation, al-Juwadi] (reporting detainee al-Juwadi, who had a history of high blood pressure and diabetes, died of a heartattack); Altia, Dep’t of the Army, CID,CID Report of Investigation-Final Supplemental- 0040-04-CID789-83990,(Aug. 14, 2004) [CriminalInvestigation, Altia]available athttp://www.aclu.org/torturefoia/released/DOA_2578_2595.pdf, at 1, 5 (accessed Feb. 8, 2006) (reportingdetainee Altia, who had a prior history of diabetes, died of a heart attack two days after complaining of chest pains); al-Razak, Dep’t of theArmy, CID,CID Report of Investigation-Final/SSI- 0059-04-CID789-83991(Oct. 15, 2004) [Criminal Investigation, al-Razak],available athttp://www.aclu.org/torturefoia/released/021605/6022_6039.pdf, at 1, 3 (accessed Feb. 8, 2006) (reporting detainee Abd al-Razak, whohad had previous heart problems, died of a heart attack several days after returning to the prison from a hospital); Unknown 3, Dep’t of theArmy,15-6 Investigation [Into Death of an Unknown Detainee](July 26, 2003) [Administrative Investigation, Unknown 3],available athttp://www.aclu.org/torturefoia/released/041905/6233_6312.pdf, at 5, (accessed Feb. 3, 2006). (noting unidentified detainee (listed in DICTable as Unknown 3) was diagnosed with diabetes, angina, and coronary artery disease 20 days before his death); Unknown 4, Dep’t ofthe Army,Informal Investigation of Death of Iraqi Detainee [redacted](Aug. 24, 2003) [Administrative Investigation, Unknown 4],availableathttp://www.aclu.org/torturefoia/released/041905/6233_6312.pdf, at 3-4, (accessed Feb. 3, 2006) [hereinafter Administrative Investiga-tion, Unknown 4] (noting unidentified detainee (listed in DIC Table as Unknown 4) complained to medics of various ailments the daybefore his death).523522521
Criminal Investigation, al-Obodi,supranote 372, at 2-3, 35-36 (no medical records or autopsy found for al-Obodi); Criminal Investiga-tion, Najem,supranote 391, at 1-2, 10, 13 (no records confirming that Abed Najem had diabetes); Criminal Investigation, Mihdy,supranote 468, at 1-2, 8-9, 11, 16 (no medical records for Mihdy attached); Criminal Investigation, al-Hussen,supranote 468, at 1-4, 18 (nomedical records for al-Hussen attached because attempts to locate them were unsuccessful); Administrative Investigation, Unknown 4,supranote 522, at 3- (records of intake screening, sick call, and treatment could not be found for unnamed detainee (listed in DIC Tableas Unknown 4)).
See, e.g.,Criminal Investigation, al-Obodi,supranote 372, at 1, 43-44 (CID informed immediately after detainee death, but results ofautopsy not requested for eight months due to apparent administrative neglect).525526
524
Criminal Investigation, al-Juwadi,supranote 522.th
SeeTAGUBAREPORT,supranote 495, at 26-27 (stating the “320 MP Battalion … held a handful of ‘ghost detainees’ … that theymoved around within the facility to hide them from a visiting International Committee of the Red Cross (ICRC) survey team. This maneuver
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was deceptive, contrary to Army Doctrine, and in violation of international law”);see alsoDep’t of Defense, Directive No. 2310.1, Dep’t ofDefense Program for Enemy Prisoners of War and Other Detainees D.2.d (Aug. 18, 1994),available athttp://www.fas.org/irp/doddir/dod/d2310_01.htm (accessed Feb. 3, 2006); U.N. Hum. Rts. Comm., General Comment No. 20, ReplacesthGeneral Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment (Art. 7), 44 Sess., at � 11 (1992), U.N. Doc.HRI/GEN/1/Rev.7 at 150 (2004),available athttp://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/ca12c3a4ea8d6c53c1256d500056e56f/$FILE/G0441302.pdf(accessed Feb. 3, 2006).The two are Manadel al-Jamadi and the “Salt Pit” detainee.SeeEric Schmitt,4 Navy Commandos are Charged in Abuse,N.Y. TIMES,Sept. 4, 2004, at A6; Seth Hettena,Reports Detail Abu Ghraib Prison Death,ASSOC. PRESS, Feb. 17, 2005; Dana Priest,CIA AvoidsScrutiny of Detainee Treatment,WASH. POST, Mar. 3, 2005, at A1.528527
Dep’t of the Army,AR 15-6 Investigation – Detainee Death at 2d BCT Detainment Facility(Sept. 7, 2004),available athttp://www.aclu.org/torturefoia/released/041905/6233_6312.pdf , at 52 (accessed Feb. 3, 2006).529530
Id. at54.SeeDIC Table Unknown 4.
See supranotes 352-358 and accompanying text (case of Hasson) andsupranotes 372-377 and accompanying text (case of al-Obodi).Dep’t of the Army, Office of the Surgeon General, Army, ASSESSMENT OFDETAINEEMEDICALOPERATIONS FOROEF, GTMO,ANDOIF, at9 (1 – 4) (Apr. 13, 2005),available athttp://www.globalsecurity.org/military/library/report/2005/detmedopsrpt_13apr2005.pdf (accessedFeb. 3, 2006).532533534535531
Id.Id.at 83 (15–1).Id.at 36 (6–1).
As described above,supranote 3, these cases include 20 homicides that military investigators found to be unjustified or in whichprosecutions were brought. They also include 14 cases in which investigators found the homicide to be justified. We include in our counthomicides that investigators found justified because the classification of many of these deaths as justifiable is open to question. Forexample, in the death of al-Bawi, a criminal investigator only gave an administrative investigation finding of justified homicide a cursoryreview, without independent investigation, despite allegations by al-Bawi’s family and an Iraqi medical examiner that called findings intoquestion.See supranotes 247-255 and accompanying text. Another four of the deaths investigators classified as justified are those ofSalman, Sayar, Shalaan and Thawin, killed during the same prison riot by U.S. guards. The ICRC has criticized the military for use ofexcessive force in the riot that lead to those deaths. International Committee of the Red Cross, REPORT OF THEINTERNATIONALCOMMITTEEOF THEREDCROSS(ICRC)ON THETREATMENT BY THECOALITIONFORCES OFPRISONERS OFWAR ANDOTHERPROTECTEDPERSONS BY THEGENEVACONVENTIONS INIRAQ DURINGARRESTINTERNMENT ANDINTERROGATION, Feb. 2004, at 20, �46,available athttp://www.humanrightsfirst.org/iraq/ICRC_Report.pdf (accessed Feb. 8, 2006). The ICRC’s criticism is supported by the military’s ownfindings.SeeTAGUBA REPORT,supranote 495, at 28-29 (finding that the riot was in protest of living conditions. Although use of deadlyforce was found to be authorized, contributing factors were “lack of comprehensive training of guards, poor or non-existent [standardoperating procedures]… no rehearsals or ongoing training, the mix of less than lethal rounds with lethal rounds in weapons . . . [Rules ofEngagement] not posted and not understood, overcrowding . . . poor communication between the command and Soldiers”) (referencingDep’t of the Army,15-6 Investigation on Riot and Shootings at Abu Ghurayb on (24 November 2003),Taguba Report Annex 8,availableathttp://www.defenselink.mil/pubs/foi/detainees/taguba/ANNEX_008_15-6_INVESTIGATION_24_NOV_2003.pdf (accessed Feb. 3,2006)).536
SeeDIC Table: Criminal charges were recommended against U.S. personnel for the deaths of Sayari, Habibullah, Dilawar, Unknown 2,Hatab, Wali, Radad, Jamadi, Mowhoush, Hassoun, F. Mohammed, Ismail, Jameel, Kadir, Kareem, Hanjil, Unknown 18, Unknown 19, T.Ahmed, and Unknown 22.SeeDIC Table: Most cases involve multiple accused; in relation to any particular detainee death, proceedings against some individualsmay be complete while others remain pending. Criminal charges have been brought in 14 cases: Habibullah, Dilawar, Hatab, Wali,Mowhoush, Jamadi, Hassoun, Kadir, Unknown 18, Unknown 19, Ismail, T. Ahmed, Unknown 22 and F. Mohammed. In another case, thatof Unknown 2, killed while being questioned in a village in Afghanistan by Army Special Forces in January 2003, criminal charges wererecommended but Human Rights First has been unable to determine whether they were eventually brought. Criminal Investigators Outline27 Homicides,supranote 64, at 5. Criminal proceedings have not proceeded to completion in at least ten cases. Charges were recom-mended but no individual was ever punished for the deaths of Jameel, Kareem, and Hanjil because, in each of these cases, commandersdecided not to proceed with either criminal or administrative punishment. There has been no public explanation of the reduction in chargesin the Kareem or Hanjil cases, and a Human Rights First Freedom of Information Act request for case documents remains pending. In twocases (Sayari and Radad) criminal charges were recommended but commanders declined to bring them and punished the suspectsadministratively instead. Trials for some of the individuals charged in the deaths of Habibullah, Dilawar, and Wali are pending as of thiswriting. Finally, while the CIA has reportedly referred the cases of Mowhoush and al-Jamadi to the Department of Justice for possibleprosecution, no further action has yet been taken. The status of the cases of Unknown 2 and Unknown 22 remains uncertain. HumanRights First sought from the Department of Defense on January 20 and 26, 2006 an update on the cases of Unknown 2 and 22; as ofFebruary 10, we had received no response.
537
SeeDIC Table: The twelve cases resulting in punishment of any kind are: Sayari (administrative reprimand against one soldier fordestruction of evidence), Habibullah and Dilawar (punishments include convictions and guilty pleas at court martial and administrativepunishments), Hatab (criminal and administrative punishment), Radad (administrative punishment), al-Jamadi (administrative punish-ment), Mowhoush (criminal and administrative punishment), Hassoun (criminal and administrative punishment), Kadir (criminalpunishment), Unknown 18 (criminal punishment), Unknown 19 (criminal punishment), and T. Ahmed (criminal punishment).539
538
SeeDIC Table: In eight out of twelve cases, punishments were disproportionately lenient: Sayari (commanders reduced charge againstone accused to written reprimand, no action taken against four others); Dilawar and Habibullah (Three soldiers were charged with
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offenses relating only to Habibullah; all three were acquitted of all charges. Two were charged with offenses relating only to Dilawar; bothpled guilty and were sentenced to 5 months and 75 days in prison, respectively, among other punishments. Seven were charged withoffenses relating to both detainees; two soldiers had their charges dismissed before being court-martialed and were reprimanded, onewas convicted of assault and reduced in rank, three pled guilty – one received 3 months in prison and a second received 2 months,among other punishments, while the third was fined and reprimanded with no prison time – and the trial of one remains pending.); Hatab(charges against one accused were reduced to assault and battery, dereliction of duty, and maltreatment, and upon conviction on thelatter two counts the punishment was discharge; another received nonjudicial punishment (reduction in rank) as part of plea agreement fortestimony; another was acquitted of charges at court-martial, and the charges against all other accused were dismissed); Radad(commander authorized administrative discharge of only soldier accused; criminal investigators later found probable cause for murder);Hassoun (two soldiers acquitted of manslaughter (though convicted of other charges and given prison sentences of six months and 45days), three commanders who had instructed subordinates not to cooperate with investigators received reprimands, two other soldiersreceived non-judicial punishment); Kadir (single accused charged with unpremeditated murder instead convicted of voluntary manslaugh-ter and sentenced to three years in prison); Mowhoush (accused charged with murder convicted of negligent homicide and negligentdereliction of duty, fined $6,000, 60 days restricted duty, reprimanded).Of the eight deaths Human Rights First considers as involving torture, only four cases have resulted in any kind of punishment.SeeDIC Table: These are in the deaths of: Habibullah, Dilawar, Jamadi and Mowhoush. The most punishment in any of these cases to date is5 months imprisonment and a bad conduct discharge for an Army Sergeant, for the death of Dilawar.Dilawar (ArmyReservist Sentenced to 75 Days in Prison,ASSOC. PRESS, Aug. 31, 2005,available athttp://abclocal.go.com/ktrk/story?section=state&id=3399051 (accessed Feb. 3, 2006, 2005); Alicia Caldwell,Cincinnati Soldier FoundGuilty in Death of Detainee,ASSOC. PRESS, Aug. 18, 2005,available athttp://news.cincypost.com/apps/pbcs.dll/article?AID=/20050818/NEWS01/508180382 (accessed Feb. 3, 2006)); Habibullah, (ArmyReservist Sentenced to 75 Days in Prison,ASSOC. PRESS, Aug. 31, 2005,available athttp://abclocal.go.com/ktrk/story?section=state&id=3399051 (accessed Feb. 3, 2006, 2005); Alicia Caldwell,Cincinnati Soldier FoundGuilty in Death of Detainee,ASSOC. PRESS, Aug. 18, 2005,available athttp://news.cincypost.com/apps/pbcs.dll/article?AID=/20050818/NEWS01/508180382 (accessed Feb. 3, 2006); Hatab (David Hasemyer,Marine Says He Was Ordered to Grab Iraqi Prisoner's Neck,SANDIEGOUNION-TRIB., Nov. 4, 2004, at B2; Tony Perry,Marine Convictedof Assault,L.A. TIMES, Sept. 3, 2004, at B1); Mowhoush (Nicholas Riccardi,Mild Penalties in Military Abuse Cases,L.A. TIMES, Jan. 25,2006,available athttp://www.latimes.com/news/printedition/asection/la-na-abuse25jan25,1,6318208.story (accessed Feb. 3, 2006); JonSarche,Jury Orders Reprimand, No Jail for Soldier,ASSOC. PRESS, Jan. 24, 2006,available athttp://www.washingtonpost.com/wp-dyn/content/article/2006/01/24/AR2006012400177.html (accessed Feb. 3, 2006); Nicholas Riccardi,Interrogator Convicted in Iraqi'sDeath,L.A. TIMES, Jan. 22, 2006,available athttp://www.latimes.com/news/printedition/la-na-interrogate22jan22,1,81943.story (accessedFeb. 3, 2006); Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006,excerptsavailable athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006)).Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006, excerptsavailableathttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006).543544542541540
Id.th
Memorandum from General Ricardo Sanchez to Combined Joint Task Force Seven and the Commander, 205 Intelligence Brigade(Sept. 10, 2003),available athttp://www.humanrightsfirst.info/pdf/06124-etn-sep-10-sanchez-memo.pdf (accessed Feb. 3, 2006).545
Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006, excerptsavailableathttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006).
546
Josh White,U.S. Army Officer Convicted in Death Of Iraqi Detainee,WASH. POST, Jan. 23, 2006, at A2; Human Rights First notes fromobservation of Welshofer court martial, In Their Own Words, Jan. 19, 2006,available athttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-011906d.as (accessed Feb. 3, 2006).547
Jon Sarche,Army Officer Found Guilty In Iraqi’s Death,ASSOC. PRESS, Jan. 22, 2006,available athttp://www.msnbc.msn.com/id/10950946/ (accessed Feb. 8, 2006).548549550551
Tim Golden,Case Dropped Against U.S. Officer in Beating Deaths of Afghan Inmates,N.Y. TIMES, Jan. 8, 2006, at A13.Administrative Investigation, Radad,supranote 263, at 23.Administrative Investigation, Radad,supranote 263, at 22.
Criminal Investigation, Radad,supranote 260, at 2; Memorandum from Maj. Gen. Raymond T. Odierno for Commander, 502dPersonnel Service Battalion,Request for Discharge in Lieu of Trial by Court-Martial, available atOperative in Abuse Case Can Blame Orders,ASSOC.PRESS, Feb. 3, 2006,available athttp://www.washingtonpost.com/wp-dyn/content/article/2006/02/03/AR2006020302197.html, (accessed Feb. 6, 2006).Id.Of the eight deaths Human Rights First considers as involving torture, only four cases have resulted in any kind of punishment. Theseare for the deaths of: Habibullah, Dilawar, Jamadi and Mowhoush.These are the deaths by homicide of: Sayari, Hatab, Radad, Hassoun, Kadir, Unknown 18, Unknown 19, T. Ahmed.This includes both criminal and administrative charges.
http://www.aclu.org/torturefoia/released/041905/6768_7065.pdf, at 53 (accessed Feb. 3, 2006).accessed Feb. 3, 2006.552
553554
555556557
Death of Habibullah (Sgt. Greatorex, Sgt. Broady, Staff Sgt. Doyle charged,supranote 208); death of Dilawar (Sgt. Claus, Sgt. Mordencharged,supranote 208); deaths of both Habibullah and Dilawar (Sgt. Salcedo, Sgt. Boland, Spc. Cammack, Pfc. Brand, Capt. Beiring,Sgt. Driver, Spc. Walls charged,supranote 208); death of Wali (Passaro charged,supratext accompanying note 187); death of Jamadi(Lt. Ledford, 9 unnamed other Navy Personnel charged,supratext accompanying note 137); death of Mowhoush (Chief Warrant Officer
A Human Rights First Report
126—VIII. Endnotes
Welshofer charged,supratext accompanying note 60, Chief Warrant Officer Jefferson Williams charged,supratext accompanying note62, Sgt. 1st Class Sommer charged,supratext accompanying note 63, Spc. Loper charged,supratext accompanying note 62, Maj. Vosscharged,supratext accompanying note 65).Death of Sayari (Captain, name unknown, charged,supratext accompanying note 192); death of Hatab (Maj. Paulus, Sgt. Pittmancharged,supratext accompanying note 169, Lance Cpl. Roy, Maj. Vickers, charged,seeDIC Table, Lance Cpl. Hernandez charged,supratext accompanying note 175, Sgt. Rodriguez-Martinez, Lance Cpl. Mikholap, Lance Cpl. Rodney charged,seeDIC Table); death ofRadad (Spc. Martino-Poole charged,supratext accompanying note 270); death of Hassoun (Lt. Saville charged,supratext accompanyingnote 305, Staff Sgt. Perkins charged,supratext accompanying note 316, Lt. Col. Sassaman, Maj. Gwinner, Capt. Cunningham charged,seeDIC Table, Sgt. Martinez, Sgt. Bowman charged,supratext accompanying note 317); death of Ismail (Staff Sgt. Werst charged,seestDIC Table); death of Kadir (Pfc. Richmond charged,seeDIC Table); deaths of Kareem and Hanjil (1 Lt. Pantano charged,seeDICTable); death of Unknown 18 (Sgt. Michael Williams charged,infranote 609, 2nd Lt. Anderson charged,seeDIC Table); death ofUnknown 19 (Sgt. Michael Williams charged,infranote 609, Spc. May charged,seeDIC Table); death of T. Ahmed (Sgt. 1st Class Diazcharged,seeDIC Table); death of Unknown 22 (Sergeant, name unknown, charged,seeDIC Table).559558
Death of Dilawar (Sgt. Claus, Sgt. Morden,supranote 209); deaths of Habibullah and Dilawar (Sgt. Salcedo, Sgt. Boland, Spc.Cammack, Pfc. Brand, Capt. Beiring, Spc. Walls,supra,note 209); death of al-Jamadi (9 unnamed Navy personnel other than Lt. Ledfordsupra,text accompanying note 138); death of Mowhoush (Chief Warrant Officer Welshofer,supratext accompanying note 61, ChiefWarrant Officer Jefferson Williams,supratext accompanying note 62, Maj. Voss,supratext accompanying note 65).
560
Death of Sayari (Captain, name unknown,supratext accompanying note 296); death of Hatab (Maj. Paulus,supratext accompanyingnote 173, Lance Cpl. Roy,seeDIC Table); death of Radad (Spc. Martino-Poole,supratext accompanying note 269); death of Hassoun(Lt. Saville, Staff Sgt. Perkins,supratext accompanying note 316, Lt. Col. Sassaman, Maj. Gwinner, Capt. Cunningham,infratextaccompanying note 589, Sgt. Martinez, Sgt. Bowman,supratext accompanying note 317); death of Kadir (Pfc. Richmond,seeDIC Table);death of Unknown 18 (Sgt. Michael Williams,infranote 606); death of Unknown 19 (Sgt. Michael Williams,infranote 609, Spc. May,seeDIC Table); death of T. Ahmed (Diaz,seeDIC Table).Death of Mowhoush (Maj. Voss,supratext accompanying note 65).Death of Hatab (Maj. Paulus,supratext accompanying note 169).
561562563
Death of Dilawar (Sgt. Claus,supranote 209, Sgt. Morden,supranote 209); deaths of Habibullah and Dilawar (Spc. Cammack,supranote 209, Spc. Walls,supranote 209).
Death of Hassoun (Lt. Saville,supratext accompanying note 316, Staff Sgt. Perkins,supratext accompanying note 316); death ofKadir (Pfc. Richmond,seeDIC Table), deaths of Unknown 18 and Unknown 19 (Spc. Williams,infranote 609, Sgt. May,seeDIC Table),stT. Ahmed (Sgt. 1 Class Diaz,seeDIC Table).Death of Dilawar (Sgt. Morden,seeDIC Table); deaths of Habibullah and Dilawar (Sgt. Salcedo,seeDIC Table, Spc. Cammack,seeDIC Table, Pfc. Brand,seeDIC Table, Spc. Walls,seeDIC Table); death of Mowhoush (Welshofer,supratext accompanying notes 10-22,55-56, 542-547).566567568569565
564
Death of Hatab (Maj. Paulus,seeDIC Table).Death of Dilawar (Sgt. Claus,supranote 209).Deaths of Unknowns 18 and 19 (Sgt. Michael Williams,infranote 609).
Deaths of Dilawar and Habibullah (Capt. Beiring,supranote 209, Sgt. Boland,supranote 210); death of Mowhoush (Maj. Voss,infratext accompanying note 594).
570
Death of Sayari (Captain, name unknown,supranote 538); death of Hassoun (Lt. Col. Sassaman,infra,text accompanying note 589,Maj. Gwinner,infratext accompanying note 589, Capt. Cunningham,supratext accompanying note 318).
This number includes both criminal and administrative charges. Deaths of Habibullah and Dilawar (Capt. Beiring,supratext accompa-nying notes 211 and 548); death of al-Jamadi (Lt. Ledford,supratext accompanying note 80, one other SEAL Lieutenant,seeDIC Table);death of Mowhoush (Chief Warrant Officer Welshofer,supratext accompanying note 60, Chief Warrant Officer Jefferson Williams,supratext accompanying note 62, Maj. Voss,*supratext accompanying note 65). *Denotes administrative charge only.This number includes both criminal and administrative charges. Death of Sayari (Captain, name unknown,*supratext accompanyingnote 293); death of Hatab (Maj. Paulus,supratext accompanying note 169, Maj. Vickers,seeDIC Table); death of Hassoun (Lt. Saville,supratext accompanying note 305, Lt. Col. Sassaman,*infratext accompanying note 589, Maj. Gwinner,*infratext accompanying notest589, Capt. Cunningham,*infratext accompanying note 589); deaths of Kareem and Hanjil (1 Lt. Pantano,seeDIC Table); death ofUnknown 18 (2nd Lt. Anderson,seeDIC Table). *Denotes administrative charge only.This number includes both criminal and administrative punishments. Deaths of Habibullah and Dilawar (Capt. Beiring,*seeDIC Table);death of al-Jamadi (SEAL Lieutenant other than Lt. Ledford,*seeDIC Table); death of Mowhoush (Chief Warrant Officer Welshofer,supratext accompanying note 60, Chief Warrant Officer Jefferson Williams,*supratext accompanying note 62, Voss,*supratext accompanyingnote 65). *Denotes administrative punishment only.574573572
571
This number includes both criminal and administrative punishments. Death of Sayari (Captain, name unknown,*supratext accompany-ing note 295); death of Hatab (Maj. Paulus,supratext accompanying note 173); death of Hassoun (Lt. Saville,supratext accompanyingnote 316, Lt. Col. Sassaman,*infratext accompanying note 589, Maj. Gwinner,*infratext accompanying note 589, Capt. Cunningham,*infratext accompanying note 589). *Denotes administrative punishment only
This number includes both criminal and administrative charges. Death of Habibullah (Sgt. Greatorex,supranote 208, Sgt. Broady,supranote 208, Staff Sgt. Doyle,supranote 208); death of Dilawar (Sgt. Claus,supranote 208, Sgt. Morden,supranote 208); deaths ofHabibullah and Dilawar (Sgt. Salcedo,supranote 208, Sgt. Boland,supranote 208, Spc. Cammack,supranote 208, Pfc. Brand,supranote 208, Sgt. Driver,supranote 208, Spc. Walls,supranote 208); death of al-Jamadi (eight unnamed enlisted Navy personnel,supratextaccompanying notes 138-140); death of Mowhoush (Sgt. 1st Class Sommer,supranote 62, Spc. Loper,supranote 62).
575
A Human Rights First Report
Command’s Responsibility — 127
576
This number includes both criminal and administrative charges. Death of Hatab (Sgt. Pittman,supratext accompanying note 169,Lance Cpl. Roy,supratext accompanying note 176, Lance Cpl. Hernandez,supratext accompanying note 175, Sgt. Rodriguez-Martinez,seeDIC Table, Lance Cpl. Mikholap,seeDIC Table, Lance Cpl. Rodney,seeDIC Table); death of Radad (Spc. Martino-Poole,supratextaccompanying note 270); death of Hassoun (Staff Sgt. Perkins,supratext accompanying note 316, Sgt. Martinez,supratext accompany-ing note 317, Sgt. Bowman,supratext accompanying note 317); death of Ismail (Staff Sgt. Werst,seeDIC Table); death of Kadir (Pfc.Richmond,seeDIC Table); death of Unknown 18 (Sgt. Michael Williams,infranote 609); death of Unknown 19 (Sgt. Michael Williams,infranote 609, Spc. May,seeDIC Table); death of T. Ahmed (Sgt. 1st Class Diaz,seeDIC Table); death of Unknown 22 (Sergeant, nameunknown,seeDIC Table).This number includes both criminal and administrative punishments. Death of Dilawar (Sgt. Claus,supranote 209, Sgt. Morden,supranote 209); deaths of Habibullah and Dilawar (Sgt. Salcedo,supranote 209, Sgt. Boland,*supranote 209, Spc. Cammack,supranote 209,Pfc. Brand,supranote 209, Spc. Walls,supranote 209); death of al-Jamadi (eight unnamed enlisted Navy personnel,*supratextaccompanying notes 138-140). *Denotes administrative punishment only
577
578
This number includes both criminal and administrative punishments. Death of Hatab (Lance Cpl. Roy,*supratext accompanying note176); death of Radad (SPC. Martino-Poole,supratext accompanying note 551); death of Hassoun (Staff Sgt. Perkins,supratextaccompanying note 316, Sgt. Martinez,*supratext accompanying note 317, Sgt. Bowman,*supratext accompanying note 317); death ofKadir (Pfc. Richmond,seeDIC Table); death of Unknown 18 (Sgt. Michael Williams,infranote 609), death of Unknown 19 (Sgt. MichaelstWilliams,infranote 609, Spc. May,seeDIC Table); death of T. Ahmed (Sgt. 1 Class Diaz,seeDIC Table). *Denotes administrativepunishment onlyDeath of Wali (Passaro,supratext accompanying note 187).Criminal Investigation, Sayari,supranote 273, at 11.Criminal Investigation, Sayari,supranote 273, at 11.Criminal Investigation, Sayari,supranote 273, at 11.Criminal Investigation, Sayari,supranote 273, at 1-10.
579580581582583584
Criminal Investigation, Sayari,supranote 273, at 1;Army: Soldiers Shouldn't be Charged,ASSOC. PRESS, Jan. 24, 2005,available athttp://www.msnbc.msn.com/id/6863659/ (accessed Feb. 3, 2006).585
Filkins,Warrior King, supranote 298;Cover-up of Iraq Bridge Incident Admitted,ASSOC. PRESS, July 30, 2004,available athttp://www.msnbc.msn.com/id/5560805/ (accessed Feb. 3, 2006).586
Information Paper on Samarra Bridge Incident, July 15, 2004,available athttp://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 47 (accessed Feb. 3, 2006).587
Investigating Officer's Report of Charges Under Article 32, Aug. 19, 2004,available athttp://action.aclu.org/torturefoia/released/063005/11950_12130PartB.pdf, at 99-100 (accessed Feb. 3, 2006).588
Cover-up of Iraq Bridge Incident Admitted,ASSOC. PRESS, July 30, 2004,available athttp://www.msnbc.msn.com/id/5560805/(accessed Feb. 3, 2006).
589
Filkins,Warrior King, supranote 298; Information Paper on Samarra Bridge Incident, July 15, 2004,available athttp://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 47 (accessed Feb. 3, 2006).Filkins,Warrior King, supranote 298; Suzanne Goldenberg,45 Days Jail for U.S. Officer Who Had Cousins Thrown Into Tigris,GUARDIAN, Mar. 16, 2005, at Home Pages 2.Filkins,Warrior King, supranote 298;Several Issues Cloud Army’s Case Against GIs in Drowning,July 29, 2004, at 4A; Dick Foster,Fort Carson Soldiers May Use Drug Defense in Courts-Martial,Rocky Mountain News, ROCKYMOUNTAINNEWS, at 5A;Charges DroppedAgainst U.S. Soldier in Iraqi Man's Death,ASSOC. PRESS, Sept. 7, 2004,available athttp://www.foxnews.com/story/0,2933,131717,00.html(accessed Feb. 8, 2006).592593591590
Criminal Investigators Outline 27 Homicides,supranote 64, at 5; Filkins,Warrior King, supranote 298.
Criminal Investigation, Radad,supranote 260, at 2 (accessed Feb. 3, 2006); Memorandum from Maj. Gen. Raymond T. Odierno forCommander, 502d Personnel Service Battalion, Request for Discharge in Lieu of Trial by Court-Martial,available atIn re Yamashita,327 U.S. 1 (1946).
http://www.aclu.org/torturefoia/released/041905/6768_7065.pdf, at 53 (accessed Feb. 3, 2006).594595
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International ArmedConflicts (Protocol I), 1977, 1125 U.N.T.S. 3 art. 86 (not ratified by United States),available athttp://www.unhchr.ch/html/menu3/b/93.htm(accessed Feb. 8, 2006) (“knew, or had information which should have enabled them to conclude in the circumstances at the time”); Dep’tof the Army, Field Manual 27-10, The Law of Land Warfare, Chapter 8, § 2, art. 501 (“if he has actual knowledge, or should haveknowledge, through reports received by him or through other means”); Statute of the International Criminal Tribunal for the formerYugoslavia (ICTY) (1993), art. 7(3),available athttp://www.un.org/icty/basic/statut/statute.htm (accessed Feb. 8, 2006) (“knew or hadreason to know”); Statute of the International Criminal Tribunal for Rwanda (ICTR), art. 6(3) (“knew or had reason to know”).Gidget Fuentes,Major Convicted, Avoids Jail Time in Abuse Trial,MARINECORPSTIMES, Nov. 22, 2004, at 11; Alex Roth,Marine Guiltyin Death of Iraqi,SANDIEGOUNION-TRIB., Nov. 11, 2004, at B1.Lawyers: Army Backed Interrogation Methods,ASSOC. PRESS, Apr. 1, 2005,available athttp://www.newsmax.com/archives/articles/2005/3/31/205753.shtml (accessed Feb. 3, 2006); Arthur Kane and Miles Moffeit,U.S. GeneralBacked Lightest Penalty in Interrogation Death,DENVERPOST, May 10, 2005, at A6.598597596
Filkins,Warrior King, supranote 298; Information Paper on Samarra Bridge Incident, July 15, 2004,available athttp://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 47 (accessed Feb. 3, 2006).
A Human Rights First Report
128—VIII. Endnotes
599
Elise Ackerman,Interrogators Linked to Prior Prison Abuse; Afghanistan-Iraq Pattern Cited; Army’s Covering Up, Critics Say,DETROITFREEPRESS, Aug. 23, 2004.Elise Ackerman,Only 2 Low-Ranking Reservists Face Punishment in Detainees’ Deaths,KNIGHTRIDDER, Mar. 8, 2005,available athttp://www.commondreams.org/headlines05/0308-02.htm (accessed Feb. 9, 2006);Several With Ties to Prison Abuse Linked to Fort,ARIZ. DAILYSTAR, July 31, 2005available athttp://www.dailystar.com/dailystar/news/86554.php (accessed Feb. 8, 2006).601602603600
Human Rights First Telephone Conversation with Fort Huachuca representative (Feb. 9, 2006) (notes on file with Human Rights First).SeeMowhoush case study,suprapp. 6-11 and Jameel case study,suprapp. 12-13.th
Memorandum from General Ricardo Sanchez to Combined Joint Task Force Seven and the Commander, 205 Intelligence Brigade(Sept. 10, 2003),available athttp://www.humanrightsfirst.info/pdf/06124-etn-sep-10-sanchez-memo.pdf (accessed Feb. 3, 2006).See alsoMemorandum from General Ricardo Sanchez to the Commander, U.S. Central Command (Sept. 14, 2003),available athttp://www.humanrightsfirst.org/us_law/etn/pdf/sanc-%20memo-091403.pdf (accessed Feb. 7, 2006); Memorandum from General RicardothSanchez to Combined Joint Task Force Seven and the Commander, 205 Intelligence Brigade (Oct. 12, 2003),available athttp://www.aclu.org/FilesPDFs/october%20sanchez%20memo.pdf (accessed Feb. 7, 2006).604
SeeCnn.com Specials, Forces: U.S & Coalition/Commanders, Gen. Ricardo S. Sanchez,http://www.cnn.com/SPECIALS/2003/iraq/forces/commanders/us.command/index.html (accessed Feb. 8, 2006).Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with HumanRights First), excerptsavailablehttp://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006).606607605
Eric Schmitt,Career of General in Charge During Abu Ghraib May End,N.Y. Times, Jan. 5, 2006, at A3.
Human Rights Watch, LEADERSHIPFAILURE: FIRSTHANDACCOUNTS OFTORTURE OFIRAQIDETAINEES BY THEU.S. ARMY’S82NDAIRBORNEDIVISION(Sept. 2005),available athttp://hrw.org/reports/2005/us0905/ (accessed Feb. 13, 2006).608
Dep’t of Defense, News Release, 82nd Airborne Division Commanding General's Briefing from Iraq (Mar. 10, 2004),available athttp://www.defenselink.mil/transcripts/2004/tr20040310-1281.html (accessed Feb. 13, 2006).Sergeant Michael Williams was court-martialed for his involvement in the deaths of two detainees, shot during house searches, andreceived a life sentence (later reduced to 25 years). Williams agreed to testify against an officer in related proceedings as part of the pleadeal; he later admitted he had falsely implicated the officer in order to get the lesser sentence. Gina Cavallaro,Witnesses Defend AccusedLieutenant,ARMYTIMES, Nov. 17, 2005,available athttp://www.armytimes.com/story.php?f=1-292925-1307022.php (accessed Feb. 7,2006); Michael Sangiacomo,Soldier Will Fight New Murder Charges,CLEVELANDPLAINDEALER, Oct. 18, 2005; John Milburn,Fort RileyOfficer Faces Hearing on Murder Charges,ASSOC. PRESS, Nov. 16, 2005,available athttp://www.armytimes.com/story.php?f=1-292925-1304495.php (accessed Feb. 3, 2006); John Milburn,Hearing for Accused Fort Riley Officer Concludes with Drama,ASSOC. PRESS, Nov.17, 2005,available athttp://www.signonsandiego.com/news/military/20051117-2252-fortriley-officercharged.html (accessed Feb. 3, 2006).Rick Rogers,Main Charge is Reduced in Court-Martial,SANDIEGOUNION-TRIB., Nov, 6, 2004, at NC-1;Court Martial Begins in IraqPrison Death,ASSOC. PRESS, Nov. 2, 2004,available athttp://msnbc.msn.com/id/6394480/ (accessed Feb. 3, 2006).611612610609
Tim Golden,Case Dropped Against U.S. Officer in Beating Deaths of Afghan Inmates,N.Y. TIMES, Jan. 8, 2006, at A13.
Luke Harding,I Will Always Hate You People,THEGUARDIAN, May 24, 2004, at Home Pages 1; Salaheddin,Family Welcomes Probe,supranote 378.
Salaheddin,Family Welcomes Probe, supranote 378; Charles J. Hanley,Experts Urge Release of Iraq Scientists,ASSOC. PRESS, July17, 2005,available athttp://www.phillyburbs.com/pb-dyn/news/93-07172005-515623.html (accessed Feb. 3, 2006).614615616617618
613
Autopsy, Dababa,supranote 341, at 56-64.Autopsy, Dababa,supranote 341, at 58-61.Autopsy, Dababa,supranote 341, at 58-61.
, Autopsy, Dababa,supranote 341, at 59.
John Lumpkin,9 Prisoner Deaths in Iraq, Afghanistan Probed as Homicides,ASSOC. PRESS, May 22, 2004,available athttp://www.usatoday.com/news/world/iraq/2004-05-23-death-probe_x.htm (accessed Feb. 8, 2006).619620621622623
Autopsy, F. Mohammed,supranote 104, at 96.Autopsy, F. Mohammed,supranote 104, at 96.Autopsy, F. Mohammed,supranote 104, at 99-100.Autopsy, Dababa,supranote 341, at 105.Josh White,3 More Navy SEALs Face Abuse Charges,WASH. POST, Sept. 25, 2004, at A16.
A Human Rights First Report
