Not Above the Law: U.S. Special Operations in the War on Terror

The killing and torture of detainees by U.S. forces in Gardez that has been uncovered by the Crimes of War Project's investigation is the latest in a chain of incidents that make up one of the darkest chapters of the American war on terrorism. Already, charges have been announced in the cases of three other Afghans who were killed by U.S. forces: two who died after interrogation at Bagram air base in December 2002, and one who was allegedly beaten to death by a C.I.A. contractor in June 2003. Two further suspected killings by American troops in Afghanistan have also been reported.

Many people believe that the roots of these deaths - and the torture and abuse of dozens of other prisoners - can be traced back to decisions made in Washington DC in the months immediately following September 11, 2001. A group of administration officials argued that the fight against al-Qaeda could not be pursued using conventional military means, and abiding by the conventional laws of war. On January 25, 2002, White House Counsel Alberto Gonzales wrote in a memo to the President that the need "to quickly obtain information from captured terrorists...renders obsolete Geneva's strict limitations on questioning of enemy prisoners." Not long afterward, the White House issued a statement saying that the Geneva Conventions were not applicable to the U.S. war against al-Qaeda.

The legal merits of the administration's arguments remain deeply contested. But there seems little doubt that the message coming out of Washington was that against an enemy like al-Qaeda, traditional niceties did not apply. Stories soon began to emerge about the use of so-called "stress and duress" techniques - sometimes dubbed "torture lite" - against al-Qaeda suspects in detention: forcing people to stand in uncomfortable positions for long periods, exposing them to cold, using bright lights and noise to disrupt sleep patterns, and so on. The Geneva Conventions forbid any kind of coercion to obtain information from enemy combatants or civilians who have been captured. By saying that the Conventions didn't apply, the U.S. military believed it had the leeway to use such measures.

But it seems the measures that some officials wanted to use went beyond mere "coercion." In his recent book, "Chain of Command," Seymour Hersh reports that in late 2001 or early 2002, Defense Secretary Donald Rumsfeld received the go-ahead to set up a special access program - recruiting teams of Special Forces operatives to secretly kill or seize and interrogate al-Qaeda suspects around the world. Something similar was evidently being put into practice at the CIA. Cofer Black, who was head of the CIA's Counter-Terrorist Center until May 2002, later told a Congressional committee that "there was before 9/11 and after 9/11. After 9/11 the gloves came off."

One indication of the direction of this secret campaign came in the now-infamous "torture memo" written by Jay Bybee of the Justice Department on August 1, 2002. This was a document specifically written at the request of the CIA, seemingly designed to provide legal cover for agents to engage in acts that approached or even constituted torture. The memo was necessary because of an inconvenient but undeniable truth: even when the Geneva Conventions don't apply, both U.S. and international law clearly forbids the use of torture or inhuman treatment or the killing of detainees who don't pose an immediate threat.

In international law, restrictions can be found in the customary law of armed conflict, which U.S. officials have repeatedly accepted to apply to all military operations conducted by American forces. One provision that is generally agreed to apply as customary law is Article 75 of the 1st Additional Protocol to the Geneva Conventions of 1977. It forbids "violence to the life, health, or physical or mental well-being" of detainees, specifically including murder, torture, or humiliating and degrading treatment. In addition, the United States is a signatory to the Torture Convention of 1984, which forbids torture (defined as the inflicting of "severe pain or suffering, whether physical or mental" for purposes including obtaining information) as well as "cruel, inhuman and degrading treatment or punishment."

U.S. law similarly prevents murder, manslaughter and assault - whether as part of the Uniform Code of Military Justice (which covers members of the armed forces) or the ordinary criminal code (for CIA agents and private contractors). For instance, Article 118 of the UCMJ forbids murder; Article 119 forbids manslaughter; Article 128 forbids assault.

The Bybee memo (and a similar, later memo by a Defense Department working group) uses a succession of arguments to get around these points. For instance, it argues that the President can override domestic law if he believes it is necessary for national security, and that agents acting on this finding can claim a defense of "superior orders." It also points out that customary international law is not "legally enforceable" in the United States, and proposes a new definition of torture that requires it cause pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Few of these arguments have won any support from any credible lawyer since the memos containing them were leaked to the press. On June 22, 2004 the Justice Department announced that it rejected the arguments in the Bybee memo as "overbroad and irrelevant" and said it would launch a review of its official position on interrogation.

It would be broadly agreed that there can be no legal justification for the actions uncovered in the Crimes of War Project's investigation. Indeed, the U.S. government has taken legal action against other American agents who are suspected of causing the death of Afghan detainees in U.S. custody. The U.S. Army announced recently that it had charged Sgt. James Boland with assault and other crimes in connection with the death of two Afghan men named Dilawar and Mullah Habibullah at Bagram in December 2002. According to news reports, investigators have recommended that up to two dozen other Americans should be charged in connection with these deaths with crimes including, in some instances, negligent homicide. Earlier, the Justice Department announced that it had indicted a CIA contract employee named David Passaro for killing an Afghan prisoner, Abdul Wali, in June 2003.

Moreover, the U.S. military is believed to have launched investigations into at least two other deaths in American custody in Afghanistan. And in July, a military spokesman announced a new probe into another potential case of abuse in the country. Major Jon Siepmann told reporters that the investigation was being carried out by the Naval Criminal Investigation Service - suggesting that it involved either Marines or Navy SEALs (a part of the Special Forces).

One potentially significant fact about the Gardez incident is that - as far as is known - there is no Status of Forces Agreement between the United States and Afghanistan. These agreements normally give a legal framework to the presence of one country's troops in another country's territory when the two countries are not at war. (For instance, they often require that any alleged criminal offenses be prosecuted in the soldier's own country, not by the host country in which the crime was committed.) It would be hard to maintain that the United States and Afghanistan were at war in March 2003, nine months after the pro-U.S. Hamid Karzai had been installed as President with broad international backing. In the absence of a Status of Forces Agreement, U.S. soldiers would be criminally liable under Afghan law for killing or torturing an Afghan national. The suggestion by Afghan military prosecutors that those responsible for the Gardez killing and torture be prosecuted in Afghanistan is legally credible, though politically unlikely.

Much of the commentary on prisoner abuse by U.S. forces has revolved around the different legal regimes that were set in place to cover the interrogation of suspects in regular detention centers. Donald Rumsfeld authorized the use of unconventional measures at Guantanamo, and some of these were later exported to Abu Ghraib in Iraq. But the worst abuses appear to have taken place in much more temporary or secret locations - frontline firebases or CIA interrogation cells, where there was no oversight, no visits by the International Committee of the Red Cross, and no official record of detention.

In the wake of the revelations from Abu Ghraib, there have been a series of investigations into prisoner abuse in Iraq (where the Geneva Conventions did apply), Afghanistan, and elsewhere. The most recent one - into detention operations in Afghanistan - was conducted by Brig. Gen. Charles Jacoby. It has been handed in to the Army hierarchy, but not yet released to the public.

One recent report dealing with detention in both Afghanistan and Iraq - by Army Inspector General Paul Mikolashek - found that there were no "systemic failures" that led to the abuse of prisoners. The more cases that emerge like the one in Gardez, the more that conclusion seems open to question.