The Obfuscation Report

Human Rights First Releases First Comprehensive Report on Detainee Deaths in U.S. Custody

Groundbreaking Study Documents Lack of Accountability and Command Failure Despite Homicides, Torture, Harsh Conditions of Detention

NEW YORK – FEB. 22 – Human Rights First’s new report, “Command's Responsibility: Deaths in U.S. Custody in Iraq and Afghanistan,” provides the first comprehensive accounting of the U.S. government’s handling of the nearly 100 cases of detainees who have died in U.S. custody since 2002.

“Looking closely at these cases, we found time and again badly flawed investigations, and a lack of command responsibility for what’s gone wrong – especially in cases where victims were tortured to death. The result across the board has been to create a culture of impunity, where no one, especially not command, is held fully accountable for detainee deaths,” said Deborah Pearlstein, Director of the U.S. Law and Security Program at Human Rights First. “If the United States is serious about preventing torture going forward, there must be accountability up and down the chain of command.”

Failure of Accountability

Despite the high number of homicides and unexplained deaths, only 12 detainee deaths to date have resulted in any kind of punishment for any U.S. official, military or civilian. The report finds that often the more serious the case – particularly those involving people tortured to death – the less severe the punishment; the highest sentence in a torture-related death is five months in prison.

“Our report finds that there is a gap between policies leadership says it respects on paper, and behavior it actually tolerates in practice. That’s not a way to stop torture from occurring, and it’s not a winning strategy in the fight against terror,” said Pearlstein.

According to the report, too often “[c]ommanders have failed both to provide troops clear guidance, and to take crimes seriously by insisting on vigorous investigations. And command responsibility itself – the law that requires commanders to be held liable for the unlawful acts of their subordinates about which they knew or should have known – has been all but forgotten.”

Among the key findings of the report:

* Commanders have failed to report deaths of detainees in the custody of their command, reported the deaths only after a period of days and sometimes weeks, or actively interfered in efforts to pursue investigations;

* Investigators have failed to interview key witnesses, collect useable evidence, or maintain evidence that could be used for any subsequent prosecution;

* Record keeping has been inadequate, further undermining chances for effective investigation or appropriate prosecution;

* Overlapping criminal and administrative investigations have compromised chances for accountability;

* Overly broad classification of information and other investigation restrictions have left CIA and Special Forces essentially immune from accountability;

* Agencies have failed to disclose critical information, including the cause or circumstance of death, in close to half the cases examined;

* Effective punishment has often been too little and too late.

Zero-Tolerance Policy for Command

The report urges the U.S. government to adopt a zero-tolerance policy for commanders who fail to take the issue of deaths in custody seriously. Specifically, Human Rights First recommends:

* The President, as Commander-in-Chief, should move immediately to fully implement the ban on cruel, inhuman and degrading treatment passed overwhelmingly by the U.S. Congress and signed into law on December 30, 2005;

* The U.S. military should make good on the obligation of command responsibility by developing, in consultation with congressional, military justice, human rights, and other advisors, a public plan for holding all those who engage in wrongdoing accountable;

* The President, the U.S. military, and relevant intelligence agencies should take immediate steps to make clear that all acts of torture and abuse are taken seriously – not from the moment a crime becomes public, but from the moment the United States sends troops and agents into the field;

* Congress should at long last establish an independent, bipartisan commission to review the scope of U.S. detention and interrogation operations worldwide in the “war on terror.”

The Cases

To illustrate both the failures in investigation and in accountability, “Command’s Responsibility” describes more than 20 cases in detail. Among the cases is that of Manadel al-Jamadi, whose death became public during the Abu Ghraib prisoner-abuse scandal when photographs depicting prison guards giving the thumbs-up over his body were released; to date, no U.S. military or intelligence official has been punished criminally in connection with Jamadi’s death.

The cases also include that of Abed Hamed Mowhoush, a former Iraqi general beaten by U.S. Army, CIA and other non-military forces, stuffed into a sleeping bag, wrapped with electrical cord, and suffocated to death. In the recently concluded trial of a low-level military officer charged in Mowhoush’s death, the officer received a written reprimand, a fine, and 60 days with his movements limited to his work, home, and church.

And they include cases like that of Nagem Sadoon Hatab, in which investigative failures have made accountability impossible. Hatab was killed while in U.S. custody at a camp close to Nasiriyah. Although a U.S. Army medical examiner found that Hatab had died of strangulation, the evidence that would have been required to secure accountability for his death – Hatab’s body – was rendered unusable in court. Hatab’s internal organs were left exposed on an airport tarmac for hours and the organs were destroyed; the throat bone that would have supported the Army medical examiner’s findings of strangulation was never found.

“Death is a given in wartime,” Pearlstein said. “But this isn’t about death in the heat of battle; this is about how we treat those already at the mercy of U.S. forces. It’s about who is responsible for the policy and practice of the United States.”

The report concludes: “As long as the accountability gap exists, there will be little incentive for military command to correct bad behavior, or for civilian leadership to adopt policies that follow the law. As long as that gap exists, the problem of torture and abuse will remain.”

A look at some of the numbers in “Command’s Responsibility:”

98 detainee deaths in U.S. custody.

45 suspected or confirmed homicides. Thirty-four deaths were homicides under the U.S. military’s definition; Human Rights First found 11 additional cases where the facts suggest death as a result of physical abuse or harsh conditions of detention.

In 48 cases – close to half of all the cases – the cause of death remains officially undetermined or unannounced.

Certainly 8, as many as 12, people were tortured to death.

Only 12 deaths have resulted in any kind of punishment.

The highest punishment for a torture-related death: 5 months confinement.