c. (U) The “sleep adjustment” technique was used by MI as soon as the Tier 1A block opened. This was another source of confusion and misunderstanding between MPs and MI which contributed to an environment that allowed detainee abuse, as well as its perpetuation for as long as it continued. Sleep adjustment was brought with the 519 MI BN from Afghanistan. It is also a method used at GTMO. (See paragraph 3.b.(5)). At Abu Ghraib, however, the MPs were not trained, nor informed as to how they actually should do the sleep adjustment. The MPs were just told to keep a detainee awake for a time specified by the interrogator. The MPs used their own judgment as to how to keep them awake. Those techniques included taking the detainees out of their cells, stripping them and giving them cold showers. CPT Wood stated she did not know this was going on and thought the detainees were being kept awake by the MPs banging on the cell doors, yelling, and playing loud music. When one MI Soldier inquired about water being thrown on a naked detainee he was told that it was an MP discipline technique. Again, who was allowed to do what and how exactly they were to do it was totally unclear. Neither of the communities (MI and MP) knew what the other could and could not do. (Reference Annex B, Appendix 1, WOOD, JOYNER)

d. (U) This investigation found no evidence of confusion regarding actual physical abuse, such as hitting, kicking, slapping, punching, and foot stomping. Everyone we spoke to knew it was prohibited conduct except for one Soldier. (Reference Annex B, Appendix 1, SOLDIER- 29). Physical discomfort from exposure to cold and heat or denial of food and water is not as clear-cut and can become physical or moral coercion at the extreme. Such abuse did occur at Abu Ghraib, such as detainees being left naked in their cells during severe cold weather without blankets. In Tier 1A some of the excesses regarding physical discomfort were being done as directed by MI and some were being done by MPs for reasons not related to interrogation. (See paragraph 5.e.-h.)

e. (U) The physical and sexual abuses of detainees at Abu Ghraib are by far the most serious. The abuses spanned from direct physical assault, such as delivering head blows rendering detainees unconscious, to sexual posing and forced participation in group masturbation. At the extremes were the death of a detainee in OGA custody, an alleged rape committed by a US translator and observed by a female Soldier, and the alleged sexual assault of an unknown female.

(3) (U) Humiliating and Degrading Treatments. Actions that are intended to degrade or humiliate a detainee are prohibited by GC IV, Army policy and the UCMJ. The following are examples of such behavior that occurred at Abu Ghraib, which violate applicable laws and regulations.

(4) (U) Nakedness. Numerous statements, as well as the ICRC report, discuss the seemingly common practice of keeping detainees in a state of undress. A number of statements indicate that clothing was taken away as a punishment for either not cooperating with interrogators or with MPs. In addition, male internees were naked in the presence of female Soldiers. Many of the Soldiers who witnessed the nakedness were told that this was an accepted practice. Under the circumstances, however, the nakedness was clearly degrading and humiliating.

(5) (U) Photographs. A multitude of photographs show detainees in various states of undress, often in degrading positions.

(6) (U) Simulated Sexual Positions. A number of Soldiers describe incidents where detainees were placed in simulated sexual positions with other internees. Many of these incidents were also photographed.
 

3.2 Military Intelligence section, "Abu Ghraib Correctional Facility"

27. In mid-October 2003, the ICRC visited persons deprived of their liberty undergoing interrogation by military intelligence officers in Unit 1A, the "isolation section" of "Abu Ghraib" Correctional Facility. Most of these persons deprived of their liberty had been arrested in early October. During the visit, ICRC delegates directly witnessed and documented a variety of methods used to secure the cooperation of the persons deprived of their liberty with their interrogators. In particular they witnessed the practice of keeping persons deprived of their liberty completely naked in totally empty concrete cells and in total darkness, allegedly for several consecutive days. Upon witnessing such cases, the ICRC interrupted its visits and requested an explanation from the authorities. The military intelligence officer in charge of the interrogation explained that this practice was "part of the process". The process appeared to be a given-and-take policy whereby persons deprived of their liberty were "drip-fed" with new items (clothing, bedding, hygiene articles, lit cell, etc.) in exchange for their "cooperation". The ICRC also visited other person deprived of their liberty held in total darkness, others in dimly lit cells who had been allowed to dress following periods during which they had been held naked. Several had been given women's underwear to wear under their jumpsuit (men's underwear was not distributed), which they felt to be humiliating.

The ICRC documented other forms of ill-treatment, usually combined with those described above, including threats, insults, verbal violence, sleep deprivation caused by the playing of loud music or constant light in cells devoid of windows, tight handcuffing with flexi-cuffs causing lesions and wounds around the wrists. Punishment included being made to walk in the corridors handcuffed and naked, or with women's underwear on the head, or being handcuffed either dressed or naked to the bed bars or cell door. Some persons deprived of their liberty presented physical marks and psychological symptoms, which were compatible with these allegations. The ICRC medical delegate examine persons deprived of their liberty presenting signs of concentration difficulties, memory problems, verbal expression difficulties, incoherent speech, acute anxiety reactions, abnormal behavior and suicidal tendencies. These symptoms appeared to have been caused by the methods and duration of interrogation. One person held in isolation that ICRC examined, was unresponsive to verbal and painful stimuli. His heart rate was 120 beats per minute and his respiratory rate 18 per minute. He was diagnosed as suffering from somatoform (mental) disorder, specifically a conversion disorder, most likely due to the ill-treatment he was subjected to during interrogation.

The abuse of detainees in U.S. custody cannot simply be attributed to the actions of “a few bad apples” acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.

VI. UNLAWFUL TACTICS USED DURING THE BUSH ADMINISTRATION

Among specific interrogation tactics used on detained persons and authorized by President Bush and/or Secretary Rumsfeld, Secretary Rice, Attorney General Ashcroft, and several others within the Bush Administration that manifestly and unavoidably constitute torture are water-boarding or a related inducement of suffocation, use of dogs to create intense fear, threatening to kill the detainee or family members,  and the cold cell or a related inducement of hypothermia. With respect to these and other unlawful interrogation tactics authorized by the Bush Administration, the Committee Against Torture declared in 2006 that the United States

should rescind any interrogation technique, including methods involving sexual humiliation, ‘water boarding,’ ‘short shackling’ [e.g., shackling a detainee to a hook in the floor], and using dogs to induce fear, that constitute torture, cruel, inhuman or degrading treatment or punishment, in all places of detention under its de facto effective control, in order to comply with its obligations under the Convention.

Although the intentional use of sexual violence and rape as tactics are recognizably torture, some forms of sexual humiliation that were authorized and used might not have constituted severe pain or suffering. Nonetheless, they can be manifestly inhumane or degrading and, therefore, equally unlawful. Previously, the Committee condemned the following tactics as either torture or cruel, inhuman or degrading treatment proscribed by the Convention: (1) restraining in very painful conditions, (2) hooding under special conditions, (3) sounding of loud music for prolonged periods, (4) sleep deprivation for prolonged periods, (5) threats, including death threats, (6) violent shaking, and (7) using cold air to chill.

Many of these illegal tactics, including water-boarding and the “cold cell,” were addressed and expressly and/or tacitly approved during several meetings of the National Security Council’s Principals Committee in the White House during 2002 and 2003 that were attended by Dick Cheney, his lawyer David Addington, Condoleezza Rice, Donald Rumsfeld, George Tenet, John Ashcroft, and others who facilitated their approval and use, including John Yoo.With a typical smug defiance, Cheney admitted that “he was directly involved in approving severe interrogation methods . . . including . . . ‘waterboarding’” and that he was “involved in helping get the process cleared.” With respect to the configurative contributions of his team, President Bush was quoted as stating “yes, I’m aware our national security team met on this issue. And I approved.”

The photographs from Abu Ghraib show that detainees in Iraq have been deprived of CAT's protections against both torture and cruel, inhuman and degrading treatment that also amounts to cruel and inhuman treatment under the U.S. Constitution and of the standard of treatment established for the military under the UCMJ ...

Other International Legal Standards which Bind the United States

While there is a dearth of U.S. case law applying CAT’s prohibition against torture and cruel, inhuman or degrading treatment in the interrogation context, there is a wealth of international law sources which offer guidance in interpreting CAT. Some of these international legal standards are, without question, binding on the U.S., such as: the International Covenant on Civil and Political Rights (the “ICCPR”), [15] the law of jus cogens and customary international law. Another international legal instrument which has been ratified by the U.S. and is relevant to the interrogation practices being examined by this Report is the Inter-American Declaration on the Rights and Duties of Man. [16] Other sources, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, [17] also provide guidance.

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THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS [118]

Relevant Legal Standards

Like CAT, the ICCPR expressly prohibits both torture and CID. Specifically, Article 7 of the ICCPR provides: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” [119] However, the ICCPR goes further than CAT in its non-derogability provision, expressly stating that neither torture nor CID treatment can be justified by exceptional circumstances such as war, internal political stability or other public emergencies. (See ICCPR, Art. 4). Article 10 also provides that: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

The Human Rights Committee, established under Article 28, adjudicates complaints filed by individuals or states parties alleging violations of the ICCPR. The Committee has found the following conduct to violate Article 7’s prohibition against cruel, inhuman or degrading treatment or punishment: threatening a victim with torture, prolonged solitary confinement and incommunicado detention, and repeated beatings. [120] Moreover, the Human Rights Committee has specifically criticized interrogation procedures such as handcuffing, hooding, shaking and sleep deprivation as violations of Article 7 in any circumstances. [121]

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ORGANIZATION OF AMERICAN STATES' INSTRUMENTS

Relevant Legal Standards

The U.S. is a member of the Organization of American States (the “OAS”). Article XXV of The American Declaration of the Rights and Duties of Man (the “American Declaration”), which was adopted by the Ninth International Conference of the OAS in 1948, provides:

Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody. ...

With respect to the treatment of detainees, the Inter-American Commission on Human Rights (the “Inter-American Commission”) – which represents all member countries of the OAS and was established under Chapter VII of the American Convention – has determined that, “when the State holds a person in detention and under its exclusive control, it becomes the guarantor of that person’s safety and rights.” [129] In this regard, the Commission has found the following practices to be violations of Article 5 of the American Convention: threats to summon family members and pressure them to “talk”; threats to kill detainees; blindfolding detainees and forcing them to run around; “prolonged isolation and deprivation of communication”; solitary confinement; confining detainees in small cells with other prisoners; keeping detainees in cells that are damp and/or without adequate ventilation; keeping detainees in cells without beds; forcing detainees to sleep on the floor or on newspaper; depriving detainees of necessary hygiene facilities; beatings with rifles; and kicks in various parts of the body, especially in the stomach. [130] ...

On March 12, 2002, in response to a petition challenging detentions at Guantánamo Bay coordinated by the Center for Constitutional Rights, [142] the Inter-American Commission adopted precautionary measures addressed to the United States concerning the Guantánamo detainees. [143] Specifically, the Commission asked the U.S. “to take the urgent measures necessary to have the legal status of the detainees at Guantánamo Bay determined by a competent tribunal.” [144] In so doing, the Inter-American Commission explained:

[W]here persons find themselves within the authority and control of a state and where a circumstance of armed conflict may be involved, their fundamental rights may be determined in part by reference to international humanitarian law as well as international human rights law. Where it may be considered that the protections of international humanitarian law do not apply, however, such persons remain the beneficiaries at least of the non-derogable protections under international human rights law. In short, no person under the authority and control of a state, regardless of his or her circumstances, is devoid of legal protection for his or her fundamental and non-derogable human rights. [145]

With regard to the Guantánamo Bay detainees in particular, the Inter-American Commission observed that: “[T]he information available suggests that the detainees remain entirely at the unfettered discretion of the United States government. Absent clarification of the legal status of the detainees, the Commission considers that the rights and protections to which they may be entitled under international or domestic law cannot be said to be the subject of effective legal protection by the State.” [146] The Inter-American Commission further noted that, regardless of the legal status of the Guantánamo Bay detainees, their legal protections “may in no case fall below the minimal standards of non-derogable rights.” [147] Thereafter, the Commission issued a renewed request to the U.S. government for precautionary measures, stating that new factual allegations regarding torture or other ill-treatment of detainees “raise questions concerning the extent to which the United States’ policies and practices in detaining and interrogating persons in connection with its anti-terrorist initiatives clearly and absolutely prohibit treatment that may amount to torture or may otherwise be cruel, inhuman or degrading as defined under international norms.” [148]

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U.S. ratification of the ICCPR and CAT are clear pronouncements that we condemn the practice of torture and CID treatment and that we consider ourselves legally bound to prohibit such conduct. Indeed, in 1999, the United States issued a report to the U.N. Committee Against Torture categorically affirming that:

Every act constituting torture under the Convention constitutes a criminal offense under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as justification for torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstance (for example, during a “state of public emergency”) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. [156]

Furthermore, the United States has enacted the Torture Victim Protection Act, [157] has imposed civil liability for acts of torture regardless of where such acts take place, [158] and has enacted the Torture Victims Relief Act, providing for monetary assistance for torture victims. [159] As previously discussed, not only does the U.S. Constitution prohibit cruel and unusual punishment or treatment by state officials (including under the military justice system), but almost all of the U.S. State constitutions have similar prohibitions. [160] Finally, a number of federal judicial proceedings have recognized that the right to be free from torture as well as cruel, inhuman or degrading treatment or punishment is a norm of customary international law. [161]

In the State Department Country Reports On Human Rights Practices, for example, the United States has expressly characterized the following types of conduct – some of which are allegedly occurring at U.S. detention centers – as “torture” or “other abuse”: tying detainees in painful positions; forcing detainees to stand for long periods of time; incommunicado detention; depriving detainees of sleep; dousing naked detainees with cold water; denial of access to medical attention; interrogation techniques designed to intimidate or disorient; subjecting a detainee to loud music; forcing a detainee to squat or to assume “stressful, uncomfortable or painful” positions for “prolonged periods of time”; long periods of imprisonment in darkened rooms; verbal threats; and instilling detainees with the false belief that they are to be killed. [162] The following types of conduct have been defined as cruel, inhuman or degrading treatment: stripping; confinement in severely overcrowded cells; beating; imprisonment in small containers; and threats against family members of detainees. [163]

SHOULD EXCEPTIONS BE MADE FOR THE “WAR ON TERROR”?: THE EXPERIENCE OF OTHER JURISDICTIONS

Notwithstanding the clear legal prohibitions against the use of torture and cruel, inhuman or degrading treatment in U.S. and international law, we considered whether, in a post-September 11 world, the threat posed by terrorists to the United States could ever justify the use of prohibited interrogation practices. We sought to answer the question of whether there are any circumstances in which torture and CID treatment in the interrogation of detainees should be permitted.

For additional guidance in answering these questions, we looked to the experiences of Northern Ireland and Israel, other places where the struggle between fighting terrorism and upholding the rule of law has been waged. Both the European Court of Human Rights and the Israeli Supreme Court have confronted the contradictory demands of national security and human rights against the backdrop of terrorism. The legal debate that infuses these courts’ seminal decisions on the use of torture and CID treatment in the interrogation of terrorist suspects offers guidance to the United States in interpreting CAT. These courts have ruled that there are no exceptions to the prohibition against torture and CID treatment. Their rulings express the conviction that the torture and CID treatment of detainees – even when those detainees are suspected terrorists – cannot be justified. ...

The most important of these decisions is The Republic of Ireland. [166] The Republic of Ireland case was decided in a legal and political environment conditioned by several years of terrorism in Northern Ireland perpetrated by members of the Irish Republican Army (IRA) and Loyalist groups. By March 1975, over 1,100 people had been killed, over 11,500 injured and £140 million worth of property destroyed. [167] To combat a campaign of violence being carried out by the IRA, in 1971, the Northern Ireland Government introduced regulations providing authorities with extrajudicial powers, including arrest for interrogation purposes and internment. [168]

The Republic of Ireland Decision is a landmark legal discussion of whether specific interrogation practices committed by British security forces against IRA detainees constituted torture or inhuman or degrading treatment. The impetus for the ECHR’s decision was the Republic of Ireland’s application before the European Commission of Human Rights alleging, among other things, that various interrogation practices – including specific practices referred to as the “five techniques” – amounted to torture and inhuman or degrading treatment, in contravention of Article 3 of the European Convention. [169] The “five techniques” – described by the ECHR as methods of “disorientation” or “sensory deprivation” – include a number of practices allegedly being used today by U.S. interrogators:

• Wall-standing: Forcing a detainee to remain spread-eagled against a wall with his fingers placed high above his head against the wall, his legs spread apart and his feet positioned such that he must stand on his toes with the weight of his body resting on his fingers;

• Hooding: Keeping a dark bag over a detainee’s head at all times, except during interrogation;

• Subjection to noise: Holding a detainee in a room where there is a continuous loud and hissing noise;

• Deprivation of sleep; and

• Deprivation of food and drink. [170]

The European Commission of Human Rights unanimously found that the “five techniques” constituted torture ...