[Congressional Record (Bound Edition), Volume 152 (2006), Part 7]
[Extensions of Remarks]
[Pages 9950-9952]
[From the U.S. Government Publishing Office, www.gpo.gov]




      ON THE NEED FOR ACCOUNTABILITY IN THE DETAINEE ABUSE SCANDAL

                                 ______
                                 

                           HON. RUSH D. HOLT

                             of new jersey

                    in the house of representatives

                         Thursday, May 25, 2006

  Mr. HOLT. Mr. Speaker, it's been more than 2 years now since the 
world saw the infamous photographs showing prisoner abuse at Abu 
Ghraib. To date, mostly junior enlisted personnel have been tried and 
prosecuted for various offenses related to detainee abuse in Iraq and 
Afghanistan. These individuals did not commit these acts in a vacuum; 
senior leaders allowed this abuse--and in several cases, deaths--to 
occur on their watch. That's not simply my opinion. It's the judgment 
of men like retired Rear Admiral John D. Hutson, a former senior Navy 
Judge Advocate General officer who has said ``One such incident would 
be an isolated transgression; two would be a serious problem; a dozen 
of them is policy.''
  Admiral Hutson and other senior former officers offered those kinds 
of comments, and their endorsement, for a report issued earlier this 
year by Human Rights First entitled Command's Responsibility: Detainee 
Deaths in U.S. Custody in Iraq and Afghanistan. I strongly encourage my 
colleagues to take the time to read at least the executive summary of 
this meticulously documented 82-page report. You can find this report 
on the web at: http://www.humanrightsfirstinfo/pdf/06221-etn-hrf-dic-
rep-web.pdf.
  I would also recommend that my colleagues familiarize themselves with 
Human Rights First 2004 report, Getting to Ground Truth, which formed 
the foundation of their work on the detainee abuse issue. That report 
can be found on the Human Rights First website at: http://
www.humanrightsfirst.org/us_law/PDF/detainees/Getting_to_Ground_Truth_
0908.04.pdf.
  Let me take a moment to share with you some of the key findings from 
Command's Responsibility, which I am also including for the Record. The 
report documents 98 detainee deaths in U.S. custody. Of those 98 
deaths, 45 are suspected or confirmed homicides. Thirty-four deaths 
were classified as homicides under the U.S. military's own definition. 
Human Rights First found 11 additional cases where the facts suggest 
that deaths were the result of physical abuse or the harsh conditions 
of detention. In 48 cases--close to half of all the cases--the cause of 
death remains officially undetermined or unannounced. At least 8 
detainees, and possibly as many as 12, were tortured to death. To date, 
only 12 deaths have resulted in any kind of punishment, and the highest 
punishment for a torture-related death has been 5 months confinement.
  Most tellingly, no civilian official or officer above the rank of 
colonel responsible for interrogation and detention policies or 
practices has been charged in connection with any death of a detainee 
in U.S. custody, including the deaths of detainees by torture or abuse.
  As retired Army Brigadier General David Irvine noted in the Human 
Rights First report, ``What is unquestionably broken is the fundamental 
principle of command accountability,

[[Page 9951]]

and that starts at the very top. The Army exists not just to win 
America's wars, but to defend America's values. The policy and practice 
of torture without accountability has jeopardized both.''
  I whole-heartedly agree, which is why last June I joined over 170 of 
my colleagues in cosponsoring HR 3003, which would establish an 
independent Commission on the Investigation of Detainee Abuses to 
conduct a full, complete, independent, and impartial investigation of 
the abuses of detainees in connection with Operation Iraqi Freedom, 
Operation Enduring Freedom, or any operation within the wider war 
against Al Qaeda. The Commission would be charged with determining: (1) 
the extent of the abuses; (2) why the abuses occurred; and (3) who is 
responsible, and to provide recommendations for corrective action.
  This Commission is necessary because the work of uncovering all of 
the facts in these cases has yet to be done. This Commission must also 
help Congress determine why no flag-rank officers have been held 
accountable for the deaths and abuse that occurred on their watch. If 
we are to avoid future cases of abuse and rebuild our reputation as a 
nation that lives by the rule of law, we must air the full facts about 
how aggressive interrogation techniques resulted in serious injury or 
death for dozens of detainees in our custody.
  Mr. Speaker, the detainee abuse scandal has done grievous harm to our 
moral standing in the world, and given our terrorist enemies a powerful 
recruiting tool. We cannot allow it to happen again. I urge the House 
leadership to bring H.R. 3003 to floor for an immediate vote. Congress 
has allowed too much time to pass already; we need answers, and we need 
to hold senior civilian and military leaders accountable for this sorry 
episode.
  Finally, I commend Human Rights First for their unflagging commitment 
to preserving and protecting human rights, for the high quality of 
their work on these issues, and for holding our Government and its 
representatives accountable in the court of public opinion on this 
critically important issue.

                    [From Command's Responsibility]

                            I. Introduction

       ``Do I believe that [abuse] may have hurt us in winning the 
     hearts and minds of Muslims around the world? Yes, and I do 
     regret that. But one of the ways we address that is to show 
     the world that we don't just talk about Geneva, we enforce 
     Geneva. . . . [T]hat's why you have these military court-
     martials; that's why you have these administrative penalties 
     imposed upon those responsible because we want to find out 
     what happened so it doesn't happen again. And if someone has 
     done something wrong, they're going to be held 
     accountable.''--U.S. Attorney General Alberto Gonzales, 
     Confirmation Hearings before the Senate Judiciary Committee, 
     January 6, 2005.
       ``Basically [an August 30, 2003 memo] said that as far as 
     they [senior commanders] knew there were no ROE [Rules of 
     Engagement] for interrogations. They were still struggling 
     with the definition 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 they were to be 
     considered `unprivileged combatants' we received no guidance 
     from them [on the status of detainees].''-- Chief Warrant 
     Officer Lewis Welshofer, Testifying during his Court Martial 
     for Death of Iraqi General Abed Hamed Mowhoush, January 19, 
     2006.
       Since August 2002, nearly 100 detainees have died while in 
     the hands of U.S. officials in the global ``war on terror.'' 
     According to the U.S. military's own classifications, 34 of 
     these cases are suspected or confirmed homicides; Human 
     Rights First has identified another 11 in which the facts 
     suggest death as a result of physical abuse or harsh 
     conditions of detention. In close to half the deaths Human 
     Rights First surveyed, the cause of death remains officially 
     undetermined or unannounced. Overall, eight people in U.S. 
     custody were tortured to death.
       Despite these numbers, four years since the first known 
     death in U.S. custody, only 12 detainee deaths have resulted 
     in punishment of any kind for any U.S. official. Of the 34 
     homicide cases so far identified by the military, 
     investigators recommended criminal charges in fewer than two 
     thirds, and charges were actually brought (based on decisions 
     made by command) in less than half. While the CIA has been 
     implicated in several deaths, not one CIA agent has faced a 
     criminal charge. Crucially, among the worst cases in this 
     list--those of detainees tortured to death--only half have 
     resulted in punishment; the steepest sentence for anyone 
     involved in a torture-related death: five months in jail.
       It is difficult to assess the systemic adequacy of 
     punishment when so few have been punished, and when the 
     deliberations of juries and commanders are largely unknown. 
     Nonetheless, two patterns clearly emerge: (1) because of 
     investigative and evidentiary failures, accountability for 
     wrongdoing has been limited at best, and almost non-existent 
     for command; and (2) commanders have played a key role in 
     undermining chances for full accountability. In dozens of 
     cases documented here, grossly inadequate reporting, 
     investigation, and follow-through have left no one at all 
     responsible for homicides and other unexplained deaths. 
     Commanders 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.
       The failure to deal adequately with these cases has opened 
     a serious accountability gap for the U.S. military and 
     intelligence community, and has produced a credibility gap 
     for the United States--between policies the leadership says 
     it respects on paper, and behavior it actually allows in 
     practice. 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.
       This report examines how cases of deaths in custody have 
     been handled. It is about how and why this ``accountability 
     gap'' between U.S. policy and practice has come to exist. And 
     it is about why ensuring that officials up and down the chain 
     of command bear responsibility for detainee mistreatment 
     should be a top priority for the United States.


                           The Cases to Date

       The cases behind these numbers have names and faces. This 
     report describes more than 20 cases in detail, to illustrate 
     both the failures in investigation and in accountability. 
     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 over days 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, a 52-year-old Iraqi, was killed while in 
     U.S. custody at a holding 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; in the blistering 
     Baghdad heat, the organs were destroyed; the throat bone that 
     would have supported the Army medical examiner's findings of 
     strangulation was never found.
       Although policing crimes in wartime is always challenging, 
     government investigations into deaths in custody since 2002 
     have been unacceptable. The cases discussed in this report 
     include incidents where deaths went unreported, witnesses 
     were never interviewed, evidence was lost or mishandled, and 
     record-keeping was scattershot. They also include 
     investigations that were cut short as a result of decisions 
     by commanders--who are given the authority to decide whether 
     and to what extent to pursue an investigation--to rely on 
     incomplete inquiries, or to discharge a suspect before an 
     investigation can be completed. Given the extent of the non-
     reporting, under-reporting, and lax record keeping to date, 
     it is likely that the statistics reported here, if anything, 
     under-count the number of deaths.
       Among our key findings:
       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;
       Overbroad 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 been too little and too late.


                     Closing the Accountability Gap

       The military has taken some steps toward correcting the 
     failings identified here. Under

[[Page 9952]]

     public pressure following the release of the Abu Ghraib 
     photographs in 2004, the Army reopened over a dozen 
     investigations into deaths in custody and conducted multiple 
     investigation reviews; many of these identified serious 
     flaws. The Defense Department also ``clarified'' some 
     existing rules, reminding commanders that they were required 
     to report ``immediately'' the death of a detainee to service 
     criminal investigators, and barring release of a body without 
     written authorization from the relevant investigation agency 
     or the Armed Forces Medical Examiner. It also made the 
     performance of an autopsy the norm, with exceptions made only 
     by the Armed Forces Medical Examiner. And the Defense 
     Department says that it is now providing pre-deployment 
     training on the Geneva Conventions and rules of engagement to 
     all new units to be stationed in Iraq and responsible for 
     guarding and processing detainees.
       But these reforms are only first steps. They have not 
     addressed systemic flaws in the investigation of detainee 
     deaths, or in the prosecution and punishment of those 
     responsible for wrongdoing. Most important, they have not 
     addressed the role of those leaders who have emerged as a 
     pivotal part of the problem--military and civilian command. 
     Commanders are the only line between troops in the field who 
     need clear, usable rules, and policy-makers who have provided 
     broad instructions since 2002 that have been at worst 
     unlawful and at best unclear. Under today's military justice 
     system, commanders also have broad discretion to insist that 
     investigations into wrongdoing be pursued, and that charges, 
     when appropriate, be brought. And commanders have a historic, 
     legal, and ethical duty to take responsibility for the acts 
     of their subordinates. As the U.S. Supreme Court has 
     recognized since World War II, commanders are responsible for 
     the acts of their subordinates if they knew or should have 
     known unlawful activity was underway, and yet did nothing to 
     correct or stop it. That doctrine of command responsibility 
     has yet to be invoked in a single prosecution arising out of 
     the ``war on terror.''
       Closing this accountability gap will require, at a minimum, 
     a zero-tolerance approach to commanders who fail to take 
     steps to provide clear guidance, and who allow unlawful 
     conduct to persist on their watch. Zero tolerance includes at 
     least this:
       First, 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. Full 
     implementation requires that the President clarify his 
     commitment to abide by the ban (which was called into 
     question by the President's statement signing the bill into 
     law). It also requires the President to instruct all relevant 
     military and intelligence agencies involved in detention and 
     interrogation operations to review and revise internal rules 
     and legal guidance to make sure they are in line with the 
     statutory mandate.
       Second, 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. The President should issue regular reminders 
     to command that abuse will not be tolerated, and commanders 
     should regularly give troops the same, serious message. 
     Relevant agencies should welcome independent oversight--by 
     Congress and the American people--by establishing a 
     centralized, up-to-date, and publicly available collection of 
     information about the status of investigations and 
     prosecutions in torture and abuse cases (including trial 
     transcripts, documents, and evidence presented), and all 
     incidents of abuse. And the Defense and Justice Departments 
     should move forward promptly with long-pending actions 
     against those involved in cases of wrongful detainee death or 
     abuse.
       Third, 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. Such a plan might include the 
     implementation of a single, high-level convening authority 
     across the service branches for allegations of detainee 
     torture and abuse. Such a convening authority would review 
     and make decisions about whom to hold responsible; bring 
     uniformity, certainty, and more independent oversight to the 
     process of discipline and punishment; and make punishing 
     commanders themselves more likely.
       Finally, 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.'' Such a commission could investigate and 
     identify the systemic causes of failures that lead to 
     torture, abuse, and wrongful death, and chart a detailed and 
     specific path going forward to make sure those mistakes never 
     happen again. The proposal for a commission has been endorsed 
     by a wide range of distinguished Americans from Republican 
     and Democratic members of Congress to former presidents to 
     leaders in the U.S. military. We urge Congress to act without 
     further delay.
       This report underscores what a growing number of Americans 
     have come to understand. As a distinguished group of retired 
     generals and admirals put it in a September 2004 letter to 
     the President: ``Understanding what has gone wrong and what 
     can be done to avoid systemic failure in the future is 
     essential not only to ensure that those who may be 
     responsible are held accountable for any wrongdoing, but also 
     to ensure that the effectiveness of the U.S. military and 
     intelligence operations is not compromised by an atmosphere 
     of permissiveness, ambiguity, or cofusion. This is 
     fundamentally a command responsibility.'' It is the 
     responsibility of American leadership.

                          ____________________