- The Washington Times - Wednesday, April 26, 2006

The military has nearly completed investigating and trying hundreds of soldiers accused of mistreating detainees in the war on terror, yet it is still not clear how many prisoners were actually tortured as various human rights groups have claimed.

Torture is not a black-and-white issue. What is torture to the American Civil Liberties Union was permitted interrogation techniques to investigators questioning “enemy combatants” at the military’s detention facility at Guantanamo Bay, Cuba.

There is no official government count of torture cases and the U.S. Army, which has processed more than 56,000 prisoners since the war began and is holding about 15,000 detainees in Afghanistan, Iraq and Guantanamo Bay, declined to estimate a number at the request of The Washington Times.

“We’re the most investigated army in history and we are investigating ourselves and we take allegations of detainee abuse seriously,” said Maj. Wayne Marotto, an Army spokesman at the Pentagon.

“The Army does not tolerate detainee abuse,” said Maj. Marotto. “Army policy requires that all detainees are treated humanely. … The Army does not determine what conduct reaches ‘the level of torture.’ Instead, soldiers’ misconduct is evaluated through the military’s criminal statute.”

The Army has conducted more than 600 criminal investigations resulting in charges against 251 soldiers who went before courts-martial or faced administrative punishment. It says three courts-martial remain, plus a smattering of administrative cases of which 174 have already been concluded.

Human rights groups such as the liberal ACLU are not as shy about using the term “torture.” The group filed a lawsuit against Defense Secretary Donald H. Rumsfeld last year that repeatedly accuses him of condoning torture. The suit says soldiers “tore out detainees’ toenails, administered electric shocks [and] beat detainees with hard objects.”

Maj. Marotto told The Times that the Army investigated complaints from the eight Iraqis and Afghans named by the ACLU as plaintiffs and concluded the charges were unfounded.

William Schulz, director of Amnesty International USA who has contributed money to Democratic candidates, has called Mr. Rumsfeld and other senior administration officials “architects of torture.”

Former Defense Secretary James Schlesinger, who headed a special Pentagon review, said his staff met with the International Committee of the Red Cross. Its representatives contended that mixing interrogation and detention operations “has become psychological torture,” he said.

Maj. Marotto says the human rights groups “throw around the word ‘torture’ freely.

“There are basic philosophical differences on both sides,” he said.

Charles Gittins, a defense attorney who is representing Charles A. Graner Jr., the Army Reserve soldier whose guard shift committed the much-photographed abuses at Abu Ghraib prison in Iraq, said he does not consider as torture what his client’s men did to inmates. Photos showed the guards forcing detainees into humiliating positions. Army reports told of beatings.

Graner, a former corporal, was convicted at court-martial and sentenced to 10 years in prison — the stiffest sentence handed out to any of the 251 implicated soldiers, even those tied to detainee deaths.

“I don’t think any of the military police engaged in torture,” Mr. Gittins said. “I think whatever mistreatment of detainees occurred was suggested by senior officers and military intelligence personnel. They softened up prisoners for military intelligence interrogation just as they had been instructed to do.”

Hina Shamsi, a senior counsel at Human Rights First, which has joined the ACLU in its Rumsfeld suit, said that “a beating on its own, it may not meet the definition of torture.”

She said her group commenced a joint project to compile data on the number of detainees abused and will release a report soon. She said the number of those abused is “in the hundreds. We don’t have an exact number right now.”

The Pentagon says that none of the 10 Guantanamo detainees now slated for military commission trials was tortured.

“The evidence we will seek to introduce in the 10 cases currently referred to trial was derived in ways that do not, in my opinion, come close to torture,” Air Force Col. Morris Davis, the military’s chief Guantanamo prosecutor, told The Times in a statement.

“I recognize that reasonable minds can differ on what constitutes torture and I expect the defense to vigorously challenge any evidence they believe came about as a result of crossing the threshold.”

Definition of torture

Bans on torture are contained in the Army’s field manual, U.S. law and international treaties.

The Geneva Conventions, which enforce humane treatment of prisoners of war, contain a somewhat nebulous definition. It states: “No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.”

The U.N. convention against torture, for which the U.S. is a signatory, has a clearer definition. “Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession” or as punishment or coercion “with the consent or acquiescence of a public official.”

The U.S. criminal code bans torture and defines it as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering upon another person within his custody or physical control.”

The Army’s Field Manual, which is being amended on detainee treatment regulations, states, “The use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind is prohibited by law and is neither authorized nor condoned by the U.S. Government.”

Last year, Congress wrote, and President Bush signed, the Detainee Treatment Act. It defined torture as “cruel, unusual, and inhumane treatment.”

Clearly, torture did occur during the handling of nearly 60,000 suspected al Qaeda, Taliban and Saddam Hussein loyalists. In one of the most horrendous incidents, two suspected Taliban detainees in Bagram, Afghanistan, were beaten over a prolonged period and died in custody. A prisoner at Abu Ghraib was killed while in CIA custody.

The Army says it has conducted 21 criminal investigations into 22 detainee deaths, either because the death was caused by mistreatment or because there was misconduct surrounding the incident such as obstruction of justice. In the 22 deaths, 11 were caused by shootings, nine from blunt force traumas, one from drowning and one from asphyxiation.

In four investigations, two involved Navy personnel, while the other two were referred to the U.S. Justice Department and Britain.

Of the 17 U.S. Army investigations, there were 24 courts-martial and six non-judicial punishments.

Ms. Shamsi’s group came up with higher numbers. She said there were 34 detainee homicides resulting from “grossly reckless behavior” by U.S. guards. She said eight, and as many as 12, were the direct result of torture.

Maj. Marotto said, “The Army has processed over 50,000 individuals and there are currently about 600 investigations into detainee-related incidents. … That would be less than one-tenth of one percent.

“Also, at the height of the numbers of soldiers in theater, the number of soldiers who were implicated in detainee abuse was less than half of a percent. Remember that these incidents occurred while conducting military operations in demanding, stressful and dangerous conditions against enemies who regularly violate the law of war.”

Different conclusions

The Bush administration has conducted more than 20 investigations and reviews of detainee abuses. They have come to somewhat different conclusions on the question of torture:

• An investigation by U.S. Southern Command found no torture at Guantanamo, where about 500 suspected Taliban and al Qaeda from Afghanistan are being held.

“As the bottom line, though, we found no torture,” Lt. Gen. Randall Schmidt, the senior investigator, told the Senate Armed Services Committee. “Detention and interrogation operations were safe, secure and humane.”

His findings conflicted with the observations of FBI agents assigned to the prison. Some sent e-mails to headquarters telling of “torture techniques, such as depriving inmates of food and water, playing loud music, cranking up air conditioning and shackling an inmate to the floor.”

Gen. Schmidt said he found that no detainee was denied food and water, and that the shackling, although unauthorized, was done to control an unruly inmate. Claims of beatings were not confirmed by medical records, he said.

Ms. Shamsi of Human Rights First declined to directly contradict Gen. Schmidt’s finding of no torture. But she did rebut his report’s failure to find any law breakers.

“In almost all these instances there were violations of U.S. and international law,” Ms. Shamsi said. “I think that, depending on the circumstances and techniques used in combination over a period of time, it can amount to torture. But clearly what happened here was illegal.”

• An Army overview of abuses at Abu Ghraib never explicitly stated that torture took place. But it called insults, threats and humiliations as “tantamount to torture.”

Another section talked of “head blows,” “sexual posing,” and “forced participation in group masturbation.” The report said, “Such abuse cannot be directly tied to a systemic U.S. approach to torture.”

• Mr. Schlesinger seemed to conclude that torture did take place by Graner’s shift when the former defense secretary told the Senate Armed Services Committee that, “Some have seized upon the photographs to suggest that torture was condoned. This is simply wrong. The actions of the night shift on Tier 1 were an action or an aberration. The members were off on their own.”

The four-member panel termed the abuse at Abu Ghraib “acts of brutality and purposeless sadism.”

No official reports so far have attempted to say how many detainees were abused, much less tortured. Mr. Schlesinger’s report did not use the word “torture.”

The ACLU lawsuit identified one of the men who said he was tortured by U.S. soldiers as Thahe Mohammed Sabbar, 36, who it says was detained for six months in 2003 and 2004.

While in American custody, Sabbar was subjected to acts of torture and cruel and degrading treatment, the ACLU states. “Sabbar received frequent and severe beatings from U.S. military personnel. Soldiers used guns and an electric weapon to beat and shock Sabbar, and forced him and other detainees to run through a gauntlet of 10 to 20 uniformed soldiers, who screamed at them and beat them with wooden batons. Sabbar was also shackled to a fence with his hands behind his back and was left for several hours at temperatures exceeding 120 degrees Fahrenheit.”

Maj. Marotto, the Army spokesman, said, “The Army CID reviewed the allegations and determined there was insufficient information upon which to initiate an investigation.”

Separately, Mr. Sabbar told American journalists that U.S. soldiers attacked him with lions. The Army said it looked into the charge and found no evidence that lions were ever employed to attack detainees.

Asked by The Times to respond to the lawsuit, the Army issued a statement that said it “reviewed the allegations and determined there was insufficient evidence upon which to initiate an investigation with reference to six of the eight individuals. There was enough information to investigate the allegations made by Mehboob Ahmad and Said Nabi Siddiqi. The investigations were later closed as unfounded.”

The Army’s campaign to clean up its prison system and revamp the training of guards appears to be paying off. In the July-December 2005 time frame, the Army confirmed only 21 cases of detainee abuse in prisons and checkpoints. The complaints ranged from slapping to assault, the Army said. None involved homicides.

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