A Human Rights First Report

Command.s

Responsibility

Written by Hina Shamsi and Edited by Deborah Pearlstein

February 2006

I. Introduction................................................................ 1

II. Homicides: Death by Torture, Abuse or Force ......... 5

Twelve Individual Cases Profiled.................... 6

III. Death by Officially Unknown, .Natural.

or Other Causes.................................................... 21

Nine Individual Cases Profiled......................21

IV. Failures in Investigation ........................................ 29

V. Failure of Accountability......................................... 35

VI. The Path Ahead .................................................... 41

VII. Appendices .......................................................... 43

VIII. Endnotes.......................................................... 103

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Human Rights First is a leading human rights advocacy organization

based in New York City and Washington, DC. Since 1978, we

have worked in the United States and abroad to create a secure

and humane world – advancing justice, human dignity, and

respect for the rule of law. All of our activities are supported by

private contributions. We accept no government funds.

This report was written by Hina Shamsi and edited by

Deborah Pearlstein.

Others who contributed to the report are Maureen Byrnes,

Avi Cover, Miriam Datskovsky, Ken Hurwitz, Allison Johnson,

Priti Patel, Michael Posner, and Lauren Smith. Michael Russo

made substantial contributions at all stages of research and

report-writing.

Human Rights First would like to thank the many former military

officers and other experts who generously provided insights on

aspects of the report.

Human Rights First gratefully acknowledges the generous support

of the following: Anonymous (2); Arca Foundation; The Atlantic

Philanthropies; The David Berg Foundation; Joan K. Davidson

(The J.M. Kaplan Fund); Charles Lawrence Keith and Clara Miller

Foundation; The Elysium Foundation; FJC – A Foundation of Donor

Advised Funds; Florence Baker Martineau Foundation;

Ford Foundation; The Arthur Helton Fellowship; Herb Block

Foundation; JEHT Foundation; John D. & Catherine T. MacArthur

Foundation; John Merck Fund; The Kaplen Foundation; Merlin

Foundation; Open Society Institute; The Overbrook Foundation;

Puget Sound Fund of Tides Foundation; Rhodebeck Charitable

Trust; The Paul D. Schurgot Foundation, Inc.; TAUPO Community

Fund of Tides Foundation; The Oak Foundation.

Cover design: Sarah Graham

Cover photo: Mark Wilson/Getty Images

John D. Hutson

Rear Admiral (Ret.), JAGC, USN

David R. Irvine

Brig. Gen. (Ret.) USA

Command.s Responsibility . 1

A Human Rights First Report

U.S. Attorney General Alberto Gonzales

Confirmation Hearings before the Senate Judiciary Committee

January 6, 2005

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)

2 . I. Introduction

A Human Rights First Report

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 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.

Command.s Responsibility . 3

A Human Rights First Report

Among our key findings:

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;

collect useable evidence, or maintain

evidence that could be used for any subsequent

prosecution;

undermining chances for effective investigation or

appropriate prosecution;

have compromised chances for

accountability;

investigation restrictions have left CIA and Special

Forces essentially immune from accountability;

including the cause or circumstance of death,

in close to half the cases examined;

too late.

The military has taken some steps toward correcting

the failings identified here. Under 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:

4 . I. Introduction

A Human Rights First Report

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.

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 longpending

actions against those involved in cases of

wrongful detainee death or abuse.

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.

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.

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 confusion. This is fundamentally a

command responsibility.. It is the responsibility of

American leadership.

Command.s Responsibility . 5

A Human Rights First Report

Hossam Mowoush (in translation)

Son of Iraqi Maj. Gen. Abed Hamed Mowhoush,

Killed in U.S. Custody November 26, 20031

Of the close to 100 deaths in U.S. custody in the global

least eight men, and as many as 12, were tortured to

military initially classified as due to .natural causes,.

and deaths that the military continues to classify as

.justified.. This chapter briefly reviews the facts of some

of these worst cases, and the consequences . or not .

for those involved.

In this report, we include any death of a detainee under effective

U.S. control as a .death in custody.. We adopt the definition of

.detainee. used by the U.S. Army Criminal Investigative Command

(CID) . the Army.s agency for investigating crimes committed by

soldiers . .any person captured or otherwise detained by an armed

killed in the course of combat or as a result of injuries sustained

during combat, or persons shot at checkpoints when it is alleged

that they disobeyed orders to stop their vehicle. We do include

prisoners in U.S. military detention centers, as well as those who

have been killed while being interrogated in their homes, or shot at

the point of their capture, after surrendering to U.S. troops. Once a

person has been captured, the U.S. military or intelligence agency

assumes control over him, and can restrain him against his will. It is

under these circumstances that American law and values are most

acutely tested.

6 . II. Homicides: Death by Torture, Abuse or Force

A Human Rights First Report

Mohammed Mowoush (in translation), describing his

last sight of his father, Iraqi Maj. Gen. Abed Hamed

Mowhoush. Killed in U.S. Custody November 26, 20036

Major General Abed Hamed

Mowhoush with a grandson

Abed Hamed Mowhoush turned himself over to U.S.

before U.S. forces captured ousted Iraqi leader

Saddam Hussein, and at a time when pressure on

Army intelligence to produce information was at its

height. At Forward Operating Base (.FOB.) Tiger,

where Mowhoush appeared, the U.S. Army had set up

a base camp and prison operations earlier in the year;

the facility was near the town of Al Qaim at the western

edge of Anbar province, about a mile from the Syrian

with about 1,000 soldiers from the 1st Squadron of the

3rd Armored Cavalry Regiment (.ACR.), based in Fort

included the detention and interrogation of captured

prisoners, a mission that took on added importance that

November, as U.S. forces picked up Iraqi men

and boys in the region in an effort to quell a rising

insurgency.

According to Chief

Warrant Officer

Lewis Welshofer,

who was deployed

to Iraq in March

2003 as part of the

military intelligence

on how to conduct

Welshofer described a captain.s memo he had received

in late August 2003, which stated that there were no

specific rules of engagement for interrogations in Iraq,

and that U.S. Army Central Command officials were still

Although specific rules were hard to come by, command

was clear that intelligence to date was

inadequate and, as Welshofer put it: .[t]hey were

captured detainees were to be considered .unprivileged

Command.s Responsibility . 7

A Human Rights First Report

had separately suggested meant detainees were not to

be afforded the protections of the Geneva Conventions.

conflicts the United States would have considered

Soon after, a September 10, 2003 memo from Lt. Gen.

Ricardo S. Sanchez, then U.S. Army Commander of

the Coalition Joint Task Force in Iraq, underscored with

new specificity the confusion over the applicability of

that other countries might view certain practices as

inconsistent with the Geneva Conventions, General

Sanchez authorized such harsh interrogation techniques

as sleep and environmental manipulation, the

use of aggressive dogs, and the use of stress positions.

.stress positions. had never been explained in his Army

to his own devices to fill in the meaning of the term.

According to Welshofer, the Sanchez memo (disclosed

publicly for the first time in January 2006) was the only

guidance on permissible interrogation techniques in

By the time Mowhoush, 57, arrived at FOB Tiger in

mid-November, his four sons had been in U.S. custody

for approximately 11 days, held in a prison outside

forces made clear to the sons in the course of interrogations

that they had been arrested for the purpose of

According to the son, Mowhoush arrived at the base

But Mowhoush.s sons remained in detention; one of

them would later play a part in U.S. efforts to extract

from their father what information they could.

Chief Welshofer was among the first interrogators

Mowhoush would see. According to Welshofer, his

interrogation of Mowhoush on the day of Mowhoush.s

arrival on November 10 was limited to direct questions

. a two-hour affair that passed with little of consequence.

had begun to take a different approach. Welshofer took

Mowhoush, his hands bound, before an audience of

fellow detainees and slapped him . an attempt,

according to Welshofer, to show Mowhoush who was in

Still unsatisfied with Mowhoush.s answers in interrogation,

Welshofer.s unit brought Mowhoush with them

when they moved a few days later from FOB Tiger to a

The .Hotel. was a makeshift facility, set up to handle an

influx of Iraqi prisoners anticipated from sweeps

November 24, Welshofer called in interrogation

trial testimony, Welshofer engaged CIA and possibly

Army Special Forces personnel . together with a

.Scorpion. team of Iraqi paramilitary forces on the CIA

soldiers eventually recounted what they saw and

of the non-military forces .interrogate[d] Mowhoush and

guard at the Blacksmith Hotel, was standing outside the

interrogation room the night of November 24 when

some of the beatings were going on, and described

hearing the thudding sound of Mowhoush being hit. .It

wasn.t like they were hitting a wall,. said Loper, .[t]here

Army autopsy revealed the effects of the beatings:

Mowhoush had .massive. bruising and five broken

The next day, Welshofer interrogated Mowhoush again,

this time on the roof of the interrogation building. Here,

in the absence of any more specific instructions for

interrogation techniques, Welshofer reached back

beyond his basic training in the Army, to his own

service as a trainer at a military school in Hawaii where

U.S. service members are coached on what they might

military.s .SERE. courses (standing for Survival,

Evasion, Resistance, Escape) were based on studies

of North Korean and Vietnamese efforts to break

American prisoners; the courses aimed to subject

trainees to the brutal detention conditions they would

have faced at the hands of the United States. former

through prolonged isolation, sleep deprivation, and

painful body positions; studies of the effects on troops

subjected to these techniques showed most suffering

from overwhelming stress, despair, and intense

anxiety, and some from hallucinations and delusions as

pointed to SERE training as the basis for some of the

harshest techniques authorized for use on detainees by

asked during his court martial whether anyone told him

8 . II. Homicides: Death by Torture, Abuse or Force

A Human Rights First Report

that SERE techniques were not to be used in Iraq,

With these techniques in his interrogator.s mind,

Mowhoush.s next session included having his hands

bound, being struck repeatedly on the back of his arms,

in the painful spot near the humerus, and being doused

others who later testified, drawn from the lessons of

Welshofer arranged for a short meeting between

Mowhoush and his youngest son, Mohammed, then 15

years old; Welshofer hoped the meeting would compel

later described Mowhoush as being moved to tears

though, the meeting was more than a conversation; in

interviews with Human Rights First, Mohammed

explained that U.S. personnel made Mowhoush believe

his son would be executed if he did not speak to their

satisfaction, and soldiers fired a bullet into the ground

near Mohammed.s head within earshot but just beyond

By November 26, Welshofer was ready to try yet

another technique . stuffing his subject into a sleeping

Welshofer had already proposed the sleeping bag

technique to his Company Commander, Major Jessica

testimony would make clear that the technique had

catastrophically ineffective in Mowhoush.s case. During

his final interrogation, Mowhoush was shoved head-first

into the sleeping bag, wrapped with electrical cord, and

rolled from his stomach to his back. Welshofer sat on

At one point, according to Loper, Mowhoush started to

clinch and kick his legs, .almost like he was being

dying (according to the autopsy report) of asphyxia due

The day after his death, the U.S. military issued a press

release stating that Mowhoush had died of natural

Despite the brutality of Mowhoush.s death, and the

likely involvement of officials from the CIA, only one

individual, Chief Welshofer, has faced court martial for

his actions. Over the course of a 6-day trial in Colorado,

more than two years after Mowhoush.s final

interrogation, a 6-member Army jury heard testimony

that civilian leaders in the Administration had instructed

that Geneva Convention protections against cruel and

inhuman treatment would not apply in this conflict; that

the U.S. commanding general in Iraq, General Sanchez,

had authorized .stress positions. in

own commanding officer, Major Voss, stuffing a

detainee in a sleeping bag was widely understood to

testimony, some closed to the public, of the involvement

of the CIA and Special Forces, as well as of the

documents had long noted this involvement: .[T]he

circumstances surrounding the death are further

complicated due to Mowhoush being interrogated and

reportedly beaten by members of a Special Forces

team and other government agency (OGA) employees

tearful testimony . that he was trying to be a loyal

Although he was originally charged with murder,

Welshofer was convicted of lesser charges: negligent

conviction carried a possible sentence of more than

three years in prison, but Welshofer received a far

more lenient sentence from the Army jury: a written

reprimand, a $6,000 fine, and 60 days with movement

The others implicated in Mowhoush.s death have faced

less. Chief Warrant Officer Jefferson Williams and

Specialist Jerry Loper, who were present during

Mowhoush.s interrogation, were originally charged with

murder, but the charges were later dropped. In

exchange for testimony against Welshofer, Williams will

receive administrative (not criminal) punishment, and

Loper will be tried in a summary proceeding rather than

William Sommer, had his murder charge dropped as

charges have been brought (nor are charges expected

to be brought according to law enforcement and

intelligence officials) against CIA personnel, and

Special Forces Command determined (without public

explanation) that none of their personnel were guilty of

Command.s Responsibility . 9

A Human Rights First Report

the Military Intelligence unit responsible for interrogating

Mowhoush, was reprimanded for her failure to

provide adequate supervision, but she was not charged

2002-2004 (including the period of Mowhoush.s death)

hearing in Welshofer.s case, Teeples testified to his

belief that the sleeping bag technique was approved

press charges against Welshofer, despite the view of

Teeples does not appear to have been disciplined in

connection with Mowhoush.s death.

The involvement of special military forces and members of other governmental agencies in the interrogation and detention of detainees

has raised serious concerns regarding proper investigative procedures and accountability. The Army.s CID has jurisdiction over crimes

committed by all U.S. Army personnel; CID.s Field Investigative Units are trained to conduct investigations that implicate classified activities,

alternative investigative procedures have sometimes been used where Special Forces were involved. For example, in one case involving

Brigadier General Richard Formica completed an investigation into allegations of detainee abuse in Iraq by Special Forces personnel, but

Deaths in which the CIA has been implicated (alone or jointly with Army Special Forces or Navy SEALS) have presented additional

contract worker associated with the CIA has to date faced criminal charges for his role in the death of detainees. Further, the CIA has

Manadel al-Jamadi, CIA representatives protested questions regarding the position of al-Jamadi.s body when he died, and the role of

Department of Justice is unlikely to bring criminal charges against CIA employees for cases involving the death, torture, or other abuse of

detainees, including the deaths of al-Jamadi and General Abed Hamed Mowhoush and a detainee whose name has not been made public

decisions known.

Reports of internal efforts at the CIA to address detainee abuse by agents are less than encouraging. After completing a review in spring

2004 of CIA detention and interrogation procedures in Afghanistan and Iraq, the CIA Inspector General made 10 recommendations for

10 . II. Homicides: Death by Torture, Abuse or Force

A Human Rights First Report

Lieutenant Colonel Abdul Jameel, a former officer in

the Iraqi army, was detained at a Forward Operating

Base near Al Asad, Iraq, and died there on January 9,

According to Pentagon documents obtained by the

interrogation by Army Special Forces soldiers, he

allegedly lunged and grabbed the shirt of one soldier

subsequent interrogation session, Jameel refused his

interrogators. orders to stay quiet, and was put in a

.stress position.: he was tied by his hands to the top of

Jameel had been .lifted to his feet by a baton held to

his throat,. causing a throat injury that .contributed. to

According to an autopsy conducted by the U.S. Armed

Forces Medical Examiner.s Office and reviewed by

Human Rights First, Jameel.s death was a homicide

force injuries, the hanging position, and the obstruction

The autopsy detailed evidence of additional abuse

Jameel suffered: a fractured and bleeding throat, more

than a dozen fractured ribs, internal bleeding, and

numerous lacerations and contusions all over his

Among the findings of the Army.s criminal investigators

was that Jameel .was shackled to the top of a doorframe

with a gag in his mouth at the time he lost

investigators found probable cause to recommend

prosecution of 11 soldiers . including members of the

3rd Armored Cavalry Regiment (the same Regiment

involved in the death of Iraqi Major General Mowhoush),

as well as the Special Forces personnel . for

charges including negligent homicide, assault, and

Special Forces Command declined to follow the

recommendations, and investigation findings of any

Upon reviewing the case, Army commanders decided

that the soldiers. actions were at all points a lawful

the commanders. decisions are unclear. The same

person, Colonel David A. Teeples, was commander of

the 3rd Armored Cavalry at the time of Jameel.s death

Because the killing was found to be justified, no

The Armed Forces Medical Examiner.s report on

autopsy number ME 04-309 reads: .This approximately

27 year-old male civilian, presumed Iraqi national, died

in US custody approximately 72 hours after being

apprehended. By report, physical force was required

during his initial apprehension during a raid. During his

confinement, he was hooded, sleep deprived, and

subjected to hot and cold environmental conditions,

including the use of cold water on his body and

minor injuries, abrasions and contusions. and .blunt

the cause of death and manner of death .undetermined.

The autopsy, which was not conducted until three

accounts pieced together in subsequent inquiries.

Command.s Responsibility . 11

A Human Rights First Report

Mohammed was apparently apprehended by members

of Navy SEAL Team 7, which was operating with the

SEALS then brought Mohammed to an Army base

Mohammed subjected him to hooding, sleep deprivation,

and exposure to extreme temperatures.all

methods that deviate from the techniques described in

the Army Field Manual on Intelligence Interrogation FM

34-52, but that were approved by the Secretary of

A Pentagon official relates that after an interrogation,

2004.

We know very little about Mohammed.s last hours and

the military has released even less information about its

investigation into his death and charges brought

against those responsible. The most recent press

reports indicate that as many as three Navy SEALS

were charged with abusing Mohammed; charges

included assault with intent to cause death and serious

bodily harm, assault with a dangerous weapon,

maltreatment of detainees, obstruction of justice, and

dereliction of duty. Murder or manslaughter charges

were not brought, reportedly because of lack of

evidence.

of Defense on January 26, 2006 for an update on the

status and outcome of any prosecutions in Mohammed

.s case; as of February 10, 2006 we had received

no response.

108 Charles Graner next to

the corpse of

Manadel al-Jamadi

Dr. Michael Baden, Chief Forensic Pathologist, New York

State Police, giving his opinion of the cause of Manadel

al-Jamadi.s death114

According to press accounts, Manadel al-Jamadi, an

Iraqi citizen of unknown age, was captured and tortured

to death in Abu Ghraib by Navy SEALS and CIA

personnel working closely together; he died on

captured al-Jamadi took turns punching, kicking and

striking him with their rifles after he was detained in a

small area in the Navy camp at Baghdad International

guard later told CIA investigators that after al-Jamadi

was stripped and doused with water a CIA interrogator

threatened him, saying: .I.m going to barbecue you if

reported that the CIA interrogator leaned into al-

Jamadi.s chest with his forearm, and found a pressure

report states that another CIA security guard

.recalled al-Jamadi saying, .I.m dying. I.m dying,.

translated by the interpreter, to which the interrogator

replied, .I don.t care,. and, .You.ll be wishing you were

When al-Jamadi was taken to Abu Ghraib, he was not

entered on the prison rolls . he was a .ghost. detainee.

shower room where,

military police

testified, a non-covert

CIA interrogator

(identified as Mark

to shackle al-Jamadi

to a window about five

feet from the floor, in

a posture known as

the .Palestinian

hanging,. making it

impossible for him to kneel or sit without hanging from

summoned guards to re-position al-Jamadi, claiming

arrived they found al-Jamadi.s corpse, hooded with a

sandbag and with his arms handcuffed behind his back

and still shackled to the window . which was now

blood gushed from al-Jamadi.s mouth as the guards

released him and his arms were almost coming out of

. II. Homicides: Death by Torture, Abuse or Force

A Human Rights First Report

Jamadi.s body be held overnight and stated that he

morning the .body was removed from Abu Ghraib on a

litter, to make it appear as if he were only ill, so as not

to draw the attention of the Iraqi guards and detainees.

Abu Ghraib prisoner-abuse scandal, after photographs

of prison guards giving the thumbs-up over his body

U.S. forces did not release al-Jamadi.s body to the

International Committee of the Red Cross (.ICRC.) until

February 11, 2004, more than three months after his

mortuary the same day, but one expert from Baghdad.s

main forensic medico-legal institute said that the

refrigeration of al-Jamadi.s body for that period made it

difficult for the Iraqis to establish the real cause of

military five days after al-Jamadi.s death had found that

the cause of death was .Blunt Force Injuries Complicated

report noted al-Jamadi had six broken ribs and a

who later examined the autopsy report at the request of

a lawyer for one of the SEALS and was informed of al-

Jamadi.s shackling position gave the opinion that the

likely cause of his death was the hanging position,

rather than beatings inflicted prior to his arrival at Abu

State police chief forensic pathologist, .asphyxia is

Donahue, the president of the American Academy of

Forensic Scientists, who reviewed the autopsy at the

request of National Public Radio, gave a similar

opinion, saying: .When you combine [the hanging

position] with having a hood over your head and having

the broken ribs, it.s fairly clear that this death was

caused by asphyxia because he couldn.t breathe

During a later court martial proceeding, one Navy SEAL

testified that he and his fellow SEALS were not trained

testified they trained the SEALS to treat detainees

humanely, one SEAL stated: .The briefing I remember

is that these [prisoners] did not fall under the Geneva

Convention because they were not enemy combatants.

Of the 10 Navy personnel . 9 SEALS and one sailor .

accused by Navy prosecutors of being involved in al-

criminal felony conviction, nonjudicial or administrative

punishment is usually imposed by an accused.s

commanding officer for minor disciplinary offenses, and

formally prosecuted in the case was Navy SEAL

Lieutenant Andrew K. Ledford, the commander of the

SEAL platoon, who was charged with dereliction of

duty, assault, making a false statement to investigators,

whether to prosecute CIA personnel for possible

interrogator, Mark Swanner, continues to work for the

criminally in connection with al-Jamadi.s death. Human

Rights First asked the Department of Defense on

January 26, 2006 the status of the al-Jamadi case; as

of February 10, we had received no response.

Nagem Sadoon Hatab, a 52-year-old Iraqi, was killed in

U.S. custody at a Marine-run temporary holding camp

including allegedly .karate-kicking. him while he stood

developed severe diarrhea, and was covered in

Hatab was stripped and examined by a medic, who

base commander.s order, a clerk with no training in

handling prisoners dragged Hatab by his neck to an

outdoor holding area, to make room for a new prisoner.

150

The clerk later testified to the ease with which he was

able to drag the prisoner: Hatab.s body, covered by

was then left on the ground, uncovered and exposed in

the heat of the sun. He was found dead sometime after

Command.s Responsibility . 13

A Human Rights First Report

Hatab found that he had died of strangulation . a victim

Hatab.s ribs were broken and his back, buttocks, legs

The guards at the detention center to which Hatab had

been brought were ill-prepared for their duty at best.

The previous commander of the facility, Major William

Vickers, would later testify that none of the approximately

30 Marines at the camp had been trained to run

a jail before their assignment: .Not then or even

guard role after Army and other Marine units refused

Paulus, had been in that position for a week before

Hatab.s death, and had spent only a day observing the

predecessor, Major Vickers, added that the camp had

originally been designated a temporary holding facility,

where Marines would interrogate prisoners for a day or

were kept for longer, resulting in overcrowding and

The treatment of Hatab.s body did not improve after his

death. A Navy surgeon, Dr. Ray Santos, testified that

when Hatab.s body arrived at the morgue: .It kept

The U.S. Army Medical Examiner, Colonel Kathleen

Ingwersen, who performed the autopsy, reportedly

acknowledged that Hatab.s body had undergone

decomposition because it was stored in an unrefrigerated

a later court martial indicated that a container of

Hatab.s internal organs was left exposed on an airport

tarmac for hours; in the blistering Iraqi heat, the organs

larynx were later found in medical labs in Washington,

D.C. and Germany, due to what the Medical Examiner,

Colonel Ingwersen, described as a .miscommunication.

couldn.t recall whether she removed the bone from the

piece of evidence, because it supported the Army

Medical Examiner.s finding that Hatab died of strangulation.

167

Although eight Marines were initially charged in the

Paulus, who ordered Hatab dragged by his neck and

permitted him to lie untreated in the sun, was originally

charged with a number of offenses, including negligent

homicide, while Sergeant Gary P. Pittman was charged

with five counts of assault for beating prisoners

(including Hatab) and two counts of dereliction of

however, in part because of the lax handling of the

proceedings, Colonel Robert Chester, ruled that the

autopsy findings and other medical evidence .

evidence which was also Hatab.s remains . could not

be considered, because it had been lost or destroyed

judge.s decision eliminated the possibility that prosecutors

could win conviction on the most serious charges

they had brought. In addition, at Sergeant Pittman.s

court martial, prosecutors acknowledged that the

military had either lost or destroyed photos of Hatab

As a result, prosecutors were unable to win conviction

on any charges relating to culpability for Hatab.s death:

Paulus was convicted of dereliction of duty and

maltreatment for ordering a subordinate to drag Hatab

by the neck, and for allowing Hatab to remain unmonitored

abusing Hatab, though he was sentenced for assaulting

Christian Hernandez (who dragged Hatab by the neck),

including negligent homicide, were dropped, and the

cases against the other Marines similarly did not

reduction in rank from a lance corporal to a private first

class in exchange for his testimony. But because the

demotion was a non-judicial punishment, and the basis

for it is not public, the precise contours of his culpability

14 . II. Homicides: Death by Torture, Abuse or Force

A Human Rights First Report

On June 18, 2003, Abdul Wali turned himself in to

soldiers at an Army firebase in Asadabad, Afghanistan,

the governor of the province where the base is located

accompanied Wali and initially acted as his interpreter

U.S. interrogator was so aggressive in questioning Wali

The man who interrogated Abdul Wali was not a

soldier; David Passaro was a former Army Ranger who

Reportedly convinced that Wali had information about

weapons that would be used to attack U.S. personnel,

of these sessions, the U.S. government alleges,

Passaro beat Wali, both with his hands and with a

who apparently suffered from poor health, did not

Army criminal investigators looked into Wali.s death,

found that no Army personnel were implicated and

referred the case to the Department of Justice for

federal grand jury in the Eastern District of North

As of February 2006, the case against Passaro was

moving toward trial, with the government and defense

engaged in arguments about the defenses that would

be allowed, and which witnesses would testify in the

position at trial will be that abusive questioning

techniques were not criminal because they were

consistent with authorized interrogation policies, and

that his actions were legally justified under a series of

Executive Branch memos that appear to permit

No one has been charged with murder or manslaughter

in connection with Wali.s death. Human Rights First

asked the Department of Defense on January 26, 2006

for any update on the status of Wali.s case; as of

February 10, 2006 we had received no response.

Habibullah died on the night of December 3, 2002,

because of abuses inflicted upon him by U.S. soldiers

Habibullah was captured by an Afghan warlord and,

was brought to the Bagram detention facility on the last

Military Police Company at that facility reportedly

subjected detainees held at the base to peroneal

strikes .a knee strike aimed at a cluster of nerves on

the side of the thigh, meant to quickly disable an

he gave Habibullah five peroneal strikes for being

Immediately upon his arrival, Habibullah was placed in

an isolation cell and shackled to the ceiling by his

allowed him to sit on the floor because his knees would

not bend enough for him to sit on a chair; as Habibullah

One day later, Habibullah was found hanging from the

felt the almost-incapacitated prisoner spit on him; the

soldier yelled and began beating Habibullah while he

The U.S.-conducted autopsy found that Habibullah had

died of an embolism . a blood clot, almost certainly the

product of the repeated beatings, had traveled through

Command.s Responsibility . 15

A Human Rights First Report

his bloodstream and clogged the arteries leading to his

Command looked into the death, and initially recommended

investigators. findings it was impossible to determine

who was responsible for Habibullah.s injuries because

maintain critical evidence in the case. A sample of

Habibullah.s blood was kept in the butter dish of

investigators. office refrigerator until the office was

Press interest in Habibullah.s death.and that of

Dilawar, another detainee who died a week later at the

same facility.sparked renewed progress in the

criminal investigation, resulting in charges against the

almost two years after Habibullah.s death, criminal

investigators recommended that charges be brought

against 27 soldiers for their roles in the death of

Dilawar and against 15 of the same soldiers for the

death of Habibullah, including .two captains, the

military intelligence officer in charge of the interrogation

group, and the reservist commander of the military

To date, less than half of the soldiers against whom

charges were recommended .12 out of 27. have

actually been prosecuted for their roles in the deaths of

only four of these individuals were given

sentences that included confinement, and the sentences

January 2006, after a pre-trial inquiry, the Army

dropped its criminal case against the only officer

charged (with lying to investigators and dereliction of

duties) in connection with the deaths, Military Police

Lieutenant Colonel Thomas J. Berg, the Army judge

who oversaw the pretrial inquiry, criticized the prosecution

for not presenting sufficient evidence to support

military policy company had not been adequately

trained before deployment for its mission at the Bagram

actual mission that the 377th [Military Police Company]

anticipated that it would assume upon arrival in theater

. . . . Much of the 377th.s training was described as

.notional. in that soldiers were asked to imagine or

pretend that they had the proper equipment for training

been charged with murder or voluntary manslaughter

Dilawar was the second detainee killed in a week at the

Afghan citizen whose case similarly became the

was driving his taxi past U.S. Camp Salerno when he

was stopped and his car searched by a local Afghan

then taken into custody as a suspect in a rocket

later suspected of having launched the attack

Dilawar was brought to the Bagram detention facility on

labeled a .noncompliant. detainee by U.S. soldiers, and

was subjected to the same

kind of peroneal strikes that

eventually contributed to the

During one of the beatings

by soldiers, Dilawar cried

According to a U.S. soldier,

U.S. military personnel found

these cries funny and hit

Dilawar repeatedly to hear

hour period, one soldier

estimated that Dilawar was

Dilawar

16 . II. Homicides: Death by Torture, Abuse or Force

A Human Rights First Report

According to an interpreter, during his fourth interrogation

session on December 8, Dilawar was unable to

comply with commands to keep his hands above his

During the same interrogation, two interrogators

shoved Dilawar against a wall when he was unable to

sit in a .chair. position against the walls because of the

one of the soldiers ordered Dilawar to be chained to the

December 10, Dilawar could not obey the orders the

interrogators gave him to stand in stress positions and

The official autopsy, conducted three days after his

death, showed that Dilawar.s legs had suffered

.extensive muscle breakdown and grossly visible

damage was .nearly circumferential,. from below the

skin down to the bone. The manner of death was found

Criminal investigation into his death, and that of

renewed investigation also cast into stark relief the

flaws in the original investigative efforts: agents had not

interviewed the commanders of the soldiers responsible

for the deaths, failed to interview an interrogator

who had witnessed most of Dilawar.s questioning

during his detention, and mishandled critical evidence.

investigation . and at the individual initiative of at least

one soldier . that investigators finally took statements.

had previously been overlooked had crucial information,

including an eyewitness account of an interrogator

apparently choking Dilawar by pulling on his hood, and

that .most [soldiers at the base] were convinced that

The status of prosecutions of the soldiers responsible

for Dilawar.s death is described above.

Sajid Kadhim Bori al-Bawi, an Iraqi actor, was shot and

killed in his home in Baghdad early in the morning of

soldiers raided the house by crashing through the gate

were bound and held on their knees and the women

and children were kept in the living room while he was

troops took with them a robed and hooded man, and

when the family went into the room where he had been

questioned, they found al-Bawi.s corpse, stuffed behind

been shot five times: in the leg, throat, armpit, and

Sajid Kadhim Bori al-Bawi.s

son holds a portrait

of his father

reported in its initial public statements about the

shooting that al-Bawi had

grabbed a U.S. soldier.s

pistol, switched the safety

off, and the soldier then

fired five shots in selfdefense.

military.s statements

became the subject of

dispute. An Iraqi medical

examiner who examined

the body found that the

shots had been fired from

two different directions; al-

Bawi.s family reported that

they found two kinds of

casings in the room where

investigators only began their investigation a month

after al-Bawi.s death, when an investigation was

requested by the military.s Detainee Assessment Task

.s Responsibility . 17

A Human Rights First Report

between the findings of the administrative investigation

and allegations by al-Bawi.s family and the medical

scant four hours reviewing the findings of the administrative

investigation, did not attempt any independent

News reports detailing the family.s allegations were

included in the file, but the only change the criminal

investigator made to the initial probe was to correct the

restated the conclusion that the killing was justified and

The lack of any independent investigation into al-Bawi.s

family.s allegations . or any investigation beyond a

review of the administrative findings . is troubling. At a

minimum, there is a disconnect between the administrative

finding that one soldier fired all the shots with

was shot from two directions with two different calibers

Al-Bawi.s family reportedly was offered $1,500 in

compensation by military officials, conditioned on their

agreeing that the United States has no responsibility for

Obeed Hethere Radad was shot to death on September

11, 2003, in his detention cell in an American

and administrative investigations were conducted into

Specialist Juba Martino-Poole, stated during the

administrative investigation that he had shot Radad

without giving any verbal warning because Radad was

.fiddling. with his hand restraints and standing close to

The administrative investigation found .sufficient cause

to believe. Martino-Poole violated the Army.s use of

force policy and the base.s particular directives on the

use of deadly force with which Radad could be

charged; the administrative investigation recommended

a criminal investigation be initiated to determine

there was inadequate clarity on the use of weapons

and force with regard to detainee operations at the

base, and noted in particular the lack of any written

also criticized the location of weapons within the

detention facilities, and the insufficient numbers of

who later reviewed the administrative investigation

found it legally insufficient, apparently because it failed

to determine what, if any, briefing on the use of force

Army criminal investigators were only notified of the

death after the administrative investigation concluded.

over, Martino-Poole had sought a military discharge in

Poole.s commander, Major General Raymond T.

Odierno, approved the request for discharge without

waiting for criminal investigative agents to conclude

more than a week later, criminal investigators found

The Radad case was reviewed along with all detainee

deaths in custody after the revelations at Abu Ghraib,

and the reviewer noted flaws in both the criminal and

the administrative investigations, but decided against

reopening the criminal investigation because .further

Martino-Poole later accused his commanders of

wanting to avoid disclosure of the lax security practices

at the base . practices that would likely have come to

18 . II. Homicides: Death by Torture, Abuse or Force

A Human Rights First Report

Mohammed Sayari was in the custody of members of

the U.S. Army Special Forces when he was killed near

an Army firebase on August 28, 2002 in Lwara,

reviewed by Human Rights First, an Army staff

who was supporting the Special Forces team was

dispatched to the site of the shooting of a .suspected

aggressor. on a road just outside the firebase, to take

arrived, the members of the Special Forces unit told the

sergeant they had stopped Sayari.s truck because he

passengers traveling in Sayari.s truck to leave the area

to their later testimony, the soldiers neglected to

restrain Sayari.s hands, and left his AK-47 weapon ten

moment, they said, Sayari lunged for the rifle and

managed to point it at the Special Forces soldiers

Sayari.s body was fingerprinted and turned over to his

name is redacted in the records Human Rights First

reviewed) then instructed other military personnel to

transfer DNA evidence taken at the scene and other

September 24, 2002 the captain of the Special Forces

group that shot Sayari told the sergeant that a member

of the Staff Judge Advocate General.s Corps would be

coming as part of the administrative investigation to

take statements from Special Forces soldiers involved

photographs, the Special Forces captain told the

sergeant to include only certain of the photographs in

the investigation and ordered him to delete all the other

investigation would eventually find Sayari.s shooting to

The following day, the sergeant contacted criminal

According to one criminal investigation agent.s report,

the sergeant had not reported his concerns to criminal

authorities earlier because he had waited to see the

results of the administrative investigation and he had

feared for his safety while working with the Special

several details at the scene made him question the

veracity of the Special Forces soldiers. story. He said

that Sayari had been shot five or more times . in the

torso and head . but all the entry wounds appeared to

be in the back of the body, which made it unlikely that

he had been facing the soldiers and pointing his rifle at

brain matter on it, suggesting that his hands were on or

first arrived, he had noticed that Sayari.s corpse still

clutched a set of prayer beads in the right hand, which

was inconsistent with the Special Forces soldiers.

report that he had picked up and pointed an assault

Forces captain instructed the sergeant to delete was

one showing Sayari.s right hand clenched around the

prayer beads and another depicting bullet holes in

Criminal investigators eventually found probable cause

to recommend charges of conspiracy and murder

against the four members of the Special Forces unit;

they also recommended dereliction of duty charges

against three of them, and a charge of obstruction of

that a fifth person, a chief warrant officer, be

After consultation with their legal advisors, however,

commanders decided not to pursue any of the recommended

action commanders have taken in response to the

criminal investigators. recommendations is to reprimand

captain was disciplined . he had inarguably destroyed

commanders who declined to report Sayari.s death .

and who later declined to prosecute the soldiers

involved . received similar leniency; they have received

no disciplinary action for their conduct. Human Rights

First asked the Department of Defense on January 20

and 26, 2006 for an update on the status of Sayari.s

case; as of February 10, 2006, we had received no

response.

Command.s Responsibility . 19

A Human Rights First Report

Zaidoun Hassoun, (also known as Zaydoon Fadhil), a

19-year-old Iraqi civilian, and his cousin Marwan were

arrested by members of the 1st Battalion, 8th Infantry

Regiment, 3rd Brigade, 4th Infantry Division in January

2004 on the streets of Samarra, in Iraq, at or around an

then ordered his platoon to take the two Iraqis to a 10-

foot-high bridge over the Tigris River and force the two

Rincon, Specialist Terry Bowman and Sgt. Reggie

Sgt. Tracy Perkins had earlier that night stated that

.someone was going to get wet tonight. and .someone

three weeks previously and planned on starting a family

According to his cousin, he was sucked into the current

Criminal charges initially filed against Saville alleged

that he had also pushed another Iraqi into the Tigris in

Zaidoun Hassoun

The platoon.s three immediate commanders, Lt. Col.

Nathan Sassaman, the battalion commander, Captain

Matthew Cunningham, a company commander, and

Major Robert Gwinner, the deputy battalion commander,

did not report the incident to criminal

investigators, based on the assumption that there was

Sgt. Irene Cintron, a criminal investigative agent

assigned to the case, suspected, however, .that the

the criminal investigation into Hassoun.s death, agents

administered a polygraph test to a member of the

soldier told agents that his chain of command had

ordered him to deny soldiers had forced Hassoun into

the river, and not to cooperate with criminal investigators.

Lt. Col. Sassaman, the battalion commander, informed

Major General Raymond Odierno, the commander of

the Fourth Infantry Division, of the truth; soldiers had in

to the official investigative report, which Human Rights

First reviewed, the officer who conducted a subsequent

. also found the commanders had .coach[ed].

their soldiers on what to say

The three commanders . Lt.

Col. Sassaman, Captain

Cunningham, and Major

Gwinner . obtained grants

of immunity from prosecution,

and admitted at the

soldiers. trial that the

The commanders testified

that they thought the

investigation into Hassoun.s death was the result of .a

personal vendetta. between Sassaman and the brigade

commander, motivated by personal antipathy and

Hassoun had not actually drowned as a justification for

their refusal to cooperate with investigators; Cunningham

protested that .[they] were not covering up

a reduced charge of assault and received 45 days in

prison and Perkins was convicted of the same charge

Sergeant Reggie Martinez (originally charged with

involuntary manslaughter) and Sergeant Terry Bowman

(originally charged with assault), received non-judicial

reprimands for obstruction of justice but were not

Command.s Responsibility . 21

A Human Rights First Report

Dr. Steven Miles

Professor and Bioethicist, University of Minnesota Medical School on autopsy of

Fashad Mohamed, died in U.S. custody, April 5, 2004319

For close to half of the deaths Human Rights First has

analyzed . 48 out of 98 . the cause of death remains

classified another 15 deaths as due to natural causes

and one as accidental. But a significant number of all of

these deaths occurred under suspicious circumstances

and may more appropriately be considered homicides

themselves; 17% of the deaths in which the official

cause of death is unknown or due to natural causes

either followed severe injuries consistent with, or

occurred in circumstances suggesting, physical abuse

reviews the facts of some of these cases and the

consequences . or not . for those involved. Given the

passage of time since each of these deaths, and flaws

in the investigations that have already taken place, it is

now unlikely that the facts of their deaths will ever be

known. If there has been wrongdoing, no one will be

punished.

Administrative Investigation into the Death of Abu

Malik Kenami322

Abu Malik Kenami (also referred to as Abdureda Lafta

Abdul Kareem), a 44-year-old Iraqi man, died on

December 9, 2003, in a U.S. detention facility in Mosul,

investigation, Kenami had arrived at the facility four

days earlier, and according to the soldiers who

interrogated him upon his arrival, he said he did not

the night of December 8, Kenami allegedly talked out

loud in the presence of guards, and tried to look out

22 . III. Death by Officially Unkown, .Natural. or Other Causes

A Human Rights First Report

from underneath his hood to see what was happening.

form of punishment: .up and downs. . an exercise in

which detainees were made to stand up, then sit down,

over and over again for periods of up to twenty

Kenami had been subjected repeatedly to .up and

downs. during his detention, but this night turned out to

flexicuffed Kenami.s hands behind his back and

then ordered to lie down among other detainees in his

When a guard attempted to rouse the prisoners in the

The Army.s initial criminal investigation into Kenami.s

death could not determine the cause of death because

months later, after the revelations from Abu Ghraib,

that the Army reviewed this case and it became clear

how troubling the original criminal investigation had

science officer who reviewed the initial criminal

investigation: .it was weak in Thoroughness and

review determined that important interviews were not

conducted of the interrogators, medics, or detainees

present at the scene of the death, and that key details

mention the presence, or lack of, signs of a struggle, or

of blood or body fluids,. .the crime scene sketch. [did]

not document where guard personnel found the

deceased,. and .records of medical treatment of the

Army.s administrative investigation had recommended

that an Iraqi physician be brought in to treat the

detainees, noting that among other benefits, .[i]t would

[also] decrease the perception of our involvement or

According to military records made public to date, the

cause of Kenami.s death remains officially undetermined.

conclusion. Dr. Steven Miles is a professor and

bioethicist at the University of Minnesota Medical

School, who has reviewed the Army.s records related

to Kenami.s death. Kenami.s body .had bloodshot

eyes, lacerations on his wrists from the plastic ties,

unexplained bruises on his abdomen and a fresh

bruised laceration on the back of his head,. Miles

explains, expressing particular concern that .Army

investigators noted that the body did not have defensive

bruises on his arms, an odd notation given that a

his analysis, Dr. Miles found: .It is likely that Mr.

Kenami suffocated because of how he was restrained,

hooded and positioned. Positional asphyxia looks just

like death by a natural heart attack except for those

Human Rights First asked the Department of Defense

on January 20 and 26, 2006 for comments on Dr. Miles.

findings; as of February 10, 2006, we had received no

response.

The Army has taken no punitive or disciplinary action in

Dilar Dababa, an approximately 45-year-old Iraqi

civilian detainee, died on June 13, 2003 at Camp

Cropper, after being subjected to what press accounts

of unreleased Army investigation records describe as

.physical and psychological stress. and restraint in a

documents cite an autopsy finding that Dababa died

Forces Medical Examiner.s autopsy report on Dilar

Dababa does not use the same language, but states

that .[p]hysical force was required to subdue the

detainee, and during the restraining process, his

The medical examiner.s autopsy lists the cause of

Dababa.s death as a .Closed Head Injury with a

The autopsy describes a litany of injuries in technical

detail, and makes clear that Dababa was subjected to

head and neck suffering the most significant abuse,

May 2004 that Army criminal investigators were looking

into Dababa.s death, but there has been no documentation

of any charges being brought against those

publicly provided an official cause of death. Human

Rights First asked the Department of Defense on

January 20 and 26, 2006 for the status of any investigation

or prosecution in Dababa.s case; as of February

10, 2006 we had received no response.

Command.s Responsibility . 23

A Human Rights First Report

Nasef Ibrahim

All that is known about Hadi Abdul Hussain Hasson al-

Zubaidy (Hasson) is his name, his identification number

and the fact that he died in Iraq, at Camp Bucca, some

went officially unnoticed until nearly a year after it

review of all detainee deaths following the public Abu

what happened to Hasson . including when and how

he died . investigators were only able to determine that

Hasson had been treated on board a U.S. Navy

In the end, investigators closed the Hasson case

without being able to determine whether his death was

report notes that inadequate record-keeping made it

impossible for them to learn anything more: .All efforts

disclosed there as [sic] virtually no documentation in

reference to Mr. HASSON.s manner, cause, or

officer told an investigator that .the documentation on

deceased Detainees was very limited . . . the majority

of the time prior to earlier this year [2004], when the

Mortuary received the remains of a deceased Detainee

they would only know that the deceased was a

detainee, and would not have any other info on the

remains, so they would have a list of the remains as

Nasef Ibrahim was 63 at the

time of his death of what an

initial autopsy report called

.atherosclerotic cardiovascular

disease.. He died at Abu

Ghraib in January 2004 . a

death the Army attributes to

criminal investigators on the

case attended the autopsy and

interviewed a number of

soldiers who stated that Ibrahim.s son, detained with

him, brought his collapse to the attention of prison

that pursuing the case further would be of little value,

and that remaining leads were not significant, the

The case was re-examined on May 19, 2004, as part of

the Army.s review of detainee death and abuse cases

following the revelations from Abu Ghraib. This time,

the Army found several grounds for criticism. The initial

investigation had not included a visit to the scene of the

death, interviews of the witnesses who found the victim,

or any .effort . to interview the alleged . son of the

victim who [was] reportedly at the prison at the time of

died, says that his father.s death came only after his

the abuses Ibrahim suffered included being beaten,

menaced by dogs, repeatedly doused with cold water

during the height of winter, being left naked outside for

days and deprived of food to the point of fainting, and

left on his stomach with hands tied above his head for

The May 2004 Army review indicated that .[t]he

investigation has not yet received the final autopsy

ROI..an additional report of investigation.be

Government documents to date regarding the investigation

reviewed by Human Rights First do not indicate

whether this request was ever acted upon, or if there

was any further action taken. Human Rights First asked

the Department of Defense on January 20 and 26,

2006 for the status of the investigation and any

prosecution in Ibrahim.s case; as of February 10, 2006,

we had received no response.

24 . III. Death by Officially Unkown, .Natural. or Other Causes

A Human Rights First Report

Evidentiary failures pervaded the investigation into the

death of Abed Mohammed Najem, who died at Abu

original criminal investigation, Najem began a hunger

strike on August 6 (during the hottest part of the Iraqi

year) and refused food, water, and even his diabetes

of his prescription, which appears to have precipitated

cause of death may never be known. Investigators.

later review of the original criminal investigation found

that there had been no crime scene examination; no

interviews of anyone who was with Najem at the time of

his death; no interview of an Iraqi medical professional

listed in the original investigation as having pertinent

information; no medical records or interviews to

substantiate claims that Najem had a preexisting

The evidence collected in the investigation into the

death of Jassim Al-Obodi on August 3, 2003 is

collapsed in Camp Cropper in Iraq, and criminal

investigation interviews of other detainees indicate he

medical records were collected, and no autopsy

included in the file; the investigating agent was told that

an autopsy would be conducted in the United States,

the agent.s supervisor reviewed the file four months

later and noticed the omission, the investigator

attempted to collect the evidence he had missed, but

perhaps due to the delay, could not locate any medical

records, the autopsy report, or even a death certificate.

prove the cause or manner of death.; among other

things, investigators could not determine if an autopsy

had been done or even to whom the body had been

the agent not to .get so focused on your opinion that

you want to do a stat and close this [sic] keep you from

Mohammad Munim al-Izmerly, a 65-year-old Iraqi

chemist, was detained at the Camp Cropper facility,

where high-value detainees were kept, in April 2003;

weeks of their visit in January 2004, al-Izmerly was

was conducted by the Director of Baghdad Hospital.s

Department of Forensics, Dr. Faik Amin Baker, at the

Izmerly died from a .sudden hit to the back of his

head,. and that the cause of the death was blunt

U.S. forces retained al-Izmerly.s body for 17 days after

his death, and did not inform Army criminal investigators

that al-Izmerly had died in U.S. custody until after

learned of his death after U.S. forces delivered his body

to an Iraqi hospital, accompanied by a death certificate

stating that al-Izmerly had died of a .sudden brainstem

compression.; the certificate had no explanation of the

investigation into the case only appears to have been

The Army.s Criminal Investigation Command records

have not been publicly released, but according to

published reports, the records list al-Izmerly.s death as

of .undetermined cause. . because the body was

Al-Izmerly.s family reportedly filed a wrongful death

claim for $10,000, but the Army dismissed it, saying the

family had presented no evidence of wrongdoing by

Izmerly.s death remains pending; to date, no charges

Department of Defense on January 20 and 26, 2006

the status of the investigation and any prosecution in

al-Izmerly.s case; as of February 10, we had received

no response.

Command.s Responsibility . 25

A Human Rights First Report

The military.s classification of a number of deaths as .natural. gives Human Rights First cause for concern. Of the nearly 100 deaths

Human Rights First reviewed, official records indicate more than a fifth involved instances in which heart attack or heart disease was

have died from heart disease is 25; those apparently dead from heart attacks also include men aged 30, 31, and 43.

In part, concern about the accuracy of the .natural causes. label comes from the Army.s track record of having publicly labeled torturerelated

deaths .natural,. only to have to revise that assessment when case facts came to light. This was the pattern in the cases, discussed

above, of Iraqi Major General Mowhoush, and Afghan detainees Habibullah and Dilawar.

Another reason for concern was identified in the recent testimony of Maj. Michael Smith, U.S. Army Forensic Pathologist, on Jan. 19,

2006, during the trial of a junior officer for Mowhoush.s death: .The forensic pathologist, who does not gather information on the circumstances

of a death, will invariably miss homicides and suicides. It is incumbent on the pathologist to look at the circumstances of a death.

Otherwise, a homicide or a suicide may appear like a natural death. .

Additional concern about the accuracy of deaths deemed .natural causes. flows from the inadequacy of investigations into many of these

deaths. Army investigators themselves criticized the investigation into the death of one of these men: a subsequent Army review of the

original investigation into the death of Abed Najem, who allegedly died due to heart disease complicated by diabetes, found the investigation

the victim had a preexisting medical condition aggravated by a self imposed hunger strike, the investigation did not obtain any medical

Other findings of detainee deaths by .natural causes. have been rejected as outright impossible by surviving families. An Army criminal

Finally, medical personnel told have told military investigators of confusion about the proper standard of care to apply to detainees.

According to the Army Inspector General: .Coalition Provisional Authority treatment policy. reportedly dictated that U.S. medical care

Surgeon General found .the use of different classifications for detained personnel (Enemy Prisoner of War (EPW), detainees, Retained

Personnel (RP), Civilian Internees (CI)) that, under Department of Defense (DoD) and Department of the Army (DA) guidance, receive

factor in incidents of detainee abuse.

26 . III. Death by Officially Unkown, .Natural. or Other Causes

A Human Rights First Report

Sher Mohammed Khan

Jamal Naseer

The circumstances of Sher

Mohammed Khan.s death

remain unclear despite an

Army criminal investigation.

An Afghan citizen, Khan was

arrested on September 24,

2004, in his home in the village

of Lakan, Khost province,

subsequently taken to

the nearby Salerno Firebase,

which doubled as a temporary

detention facility for U.S.

forces, and placed in a holding cell. The next evening,

the U.S. military says that he complained to guards that

a snake had entered his cell and bitten him; medical

personnel examined him, but could find no punctures in

the skin, and no action was taken, though a medic was

detailed to check on Khan throughout that night. During

one such check, the medic found that Khan had

Immediately after Khan.s death, Army officials informed

the governor of Khost province that a man in U.S.

custody had died of a heart attack, an explanation on

which Department of Defense officials continued to

insist publicly until January 2005, when details of the

the uncertainty, Khan.s family has said that his body

was bruised when they picked it up from the Salerno

In January 2005, more than three months after Khan.s

death, the commander of the U.S. troops who detained

Khan said that he had not yet received a final autopsy

found .no signs of abuse or trauma. on Khan.s body;

yet neither details of the investigation nor a death

certificate listing the official cause of death has been

Human Rights First asked the Department of Defense

on January 20 and 26, 2006 the status of the investigation

and any prosecution in Khan.s case; as of

February 10, we had received no response.

Jamal Naseer was an 18-

year-old Afghan soldier who

died in the custody of U.S.

Special Forces soldiers in

into his case, begun

some nine months after his

death, had been closed due

investigated the case

independently, and wrote a feature-length article about

Naseer.s death, alleging that Naseer had been tortured,

and that the Afghan government had conducted a

According to these accounts, Naseer was arrested by

U.S. forces as a result of a complicated series of feuds

between the local governor, a warlord, and local

entire unit as Taliban agents, and U.S. forces, acting on

the tip, arrested the detachment and imprisoned them

in a forward operating base near Gardez . a base

named in claims by a number of former detainees

interviewed by Human Rights First who have described

was done to Naseer are scarce, but seven Afghan

soldiers detained with him attest to an extended period

they were questioned about their relationship with Al

Qaeda; when they denied any involvement, they were

subjected to severe abuse, including beatings with fists

and cables . sometimes while suspended upside-down

(allegations that again echo those of other Afghan

immersed in cold water and exposed to the winter

After Naseer.s death, U.S. commanders allegedly relied

on local authorities to transfer the body to his family

entered a local hospital and ordered an ambulance to

go to the U.S. base to get Naseer.s body; according to

a doctor, no driver could be found, and the police

began to beat the .frightened. medical personnel with

doctors performed an autopsy; according to a hospital

Command.s Responsibility . 27

A Human Rights First Report

administrator, .none of the [local] doctors wanted to

look into the cause of death because they were afraid

appears that the only contact any U.S. military personnel

had with Naseer.s family was when an officer

apologized to Naseer.s brother . who had been

detained with Naseer . while the brother was still held

The Army initiated a criminal investigation based on a

tip about the incident, but later determined the tip was

.unfounded,. because investigators were unable to find

any documentation confirming the death or identifying

previously unknown details . including the existence of

a hundred-page investigation into Naseer.s death

launched by Afghan military prosecutors, which

contained the names of and interviews with several

could not even determine which Special Forces unit

had been assigned to the firebase at which Naseer

died: according to one criminal investigator, .[t]here are

no records. The reporting system is broke across the

First asked the Department of Defense on January 20

and 26, 2006 the status of the investigation and any

prosecution in Naseer.s case; as of February 10, we

had received no response.

Command.s Responsibility . 29

A Human Rights First Report

National Security Advisor Stephen Hadley

Remarks at Press Briefing, November 2, 2005425

Brigadier General David R. Irvine, U.S. Army (Ret.)

Interview with Human Rights First, October 14, 2005

When conducted according to the military.s own rules,

the U.S. Armed Forces. procedures for investigating the

deaths of detainees can effectively uncover the

underlying facts through interviews and evidence

gathering, and determine whether to seek accountability.

But the handling of death cases to date shows

internal government mechanisms to secure accountability

were badly dysfunctional during a time when

Commanders failed to convey that detainee deaths

were fundamentally flawed, and often did not

meet the Army.s own regulations. The result has been

a pattern of impunity for the worst violations, with

punishment for bad behavior too little and too late, and

a still incomplete picture of what really went wrong.

This chapter highlights the major investigative failures

in the range of cases involving detainee deaths in U.S.

30 . IV. Failures In Investigation

A Human Rights First Report

Military regulations require that the death of a detainee in the custody of the U.S. Armed Forces must be investigated by the criminal

court proceedings generally do not apply to administrative investigations. The Army.s Judge Advocate General Corps provides legal oversight

Brigadier General Stephen N. Xenakis, U.S. Army (Ret.)

Former Commanding General of the Southeast Regional Army Medical Command442

Accountability for detainee deaths caused by criminal

misconduct is impossible if evidence is never collected,

or not catalogued, stored, or maintained following its

collection. For these reasons, the Army.s Manual on

Legal Guidance to Commanders emphasizes: .[t]he

most difficult form of evidence to collect and preserve

evidence is missing or mishandled, it becomes useless

importance is the autopsy, which was not required until

after the revelations of Abu Ghraib, when the Defense

Department clarified policies for handling detainee

Yet in case after case, before and after the Abu Ghraib

photos were released in 2004, Army criminal investigators

did not interview those most likely to have

witnessed a death, or the events leading up to it.

Physical evidence was not collected, and evidence that

was collected was at times grossly mishandled.

Autopsies were not conducted, and bodies themselves

were treated carelessly. In some of these cases, the

omissions were not crucial; where agents have

interviewed half a dozen bystanders, any remaining

similarly situated witnesses are unlikely to add much

have been caused by abusive detention or interrogation

practices were not fully investigated, and charges

could not be brought.

Human Rights First found 16 cases in which investigators

appear to have failed to collect useable evidence

and/or did not maintain evidence; flaws ranged from a

failure to adequately examine a crime scene to the

failure to properly collect and maintain a decedent.s

of these failures: no accountability for U.S. forces

responsible for the deaths.

The case of Nagem Sadoon Hatab, detailed above, is

illustrative. Because of a series of errors, the medical

evidence necessary to substantiate the prosecutors.

case for death by strangulation was destroyed or

missing: Hatab.s body was allowed to partially decompose

before autopsy; some of his organs were

destroyed in heat; body parts were stored on different

Command.s Responsibility . 31

A Human Rights First Report

as a result of these errors, six of the soldiers initially

charged in his death were never court-martialed, and

In another case, criminal investigators were unable to

determine the cause of Abu Malik Kenami.s death

because no autopsy was performed; Kenami died after

Criminal investigators also failed to interview key

witnesses, including detainees, other interrogators and

one has been held accountable.

In more than a dozen cases, Human Rights First also

found a failure to interview key witnesses, ranging from

other detainees who witnessed the death, to military

personnel with possible knowledge of the circumstances

Nasef Ibrahim, the failure to interview the decedent.s

investigators never learned that abusive detention

practices may have contributed to the death. The

investigation into the death of Abed Mohammed Najem

was similarly scant; a subsequent Army review itself

criticized the original investigators. failure to interview

Apart from being a regulatory requirement, it is

common sense that an investigation into an alleged

crime should begin as soon as possible after its

discovery. Delay in reporting can reduce the evidentiary

value of both physical evidence and witness

Commanders explains: .As time passes, witnesses

may forget, develop a biased view of the facts, hesitate

to give statements, or become difficult to find. The

scene of the incident may also change, perhaps due to

For this reason, Army regulations require commanders

to report the deaths of detainees in their custody within

The standards governing command behavior in

response to a death in custody are particularly

stringent. Commanders are required to report criminal

information .concerning ongoing [criminal] investigations.

commander must review the case and, in consultation

with military lawyers, determine what disciplinary

ongoing, a commander may not take actions that could

affect or pre-empt the investigation, in order to allow it

are prohibited from interfering with the investigations or

After the prolonged public exposure of the Abu Ghraib torture

scandal, the Army.s Criminal Investigation Division Headquarters

initiated an operational review of all detainee abuse and

Army criminal investigators assessed the quality of the investigation

report based on the file; they did not conduct an

independent investigation. The reviewers. findings were appended

to the investigation reports, some of which have been

publicly released. Of the 42 criminal or administrative investigations

into the detainee deaths Human Rights First reviewed,

reviewers found two of the original investigations to be adequate,

found eight investigations to be incomplete because autopsy

reports had not been included in the original investigation

2004 that autopsy reports were sent for eight deaths that had

at the Army Criminal Investigation Division headquarters

also reviewed rosters of prison deaths, and discovered what

opened investigations into at least two of these deaths, one of

Too often these reviews have come only after public exposure of

a death. The fact that the subsequent reviews have repeatedly

shown circumstances worse than those originally found raises

serious questions about the quality of investigative practice

when the cameras are not focused squarely upon investigations.

And they raise questions about the validity of the investigations

into more than 60 deaths that are still listed as of unknown

nature or of natural causes. These questions underscore the

importance of building in more robust, independent checks of

prisoner abuse and death.

32 . IV. Failures In Investigation

A Human Rights First Report

Yet the possibility of accountability in at least 17 cases

examined by Human Rights First was compromised

from the beginning as a result of delays in reporting a

death, failure to report a death at all, and in one case,

commanders. deliberate attempt to conceal the death

deaths in custody were neither isolated nor limited to a

handful of cases. An Army tally of criminal investigations

into prisoner abuse as of November 2004

suggests that as many as 17 detainee deaths were not

reported through proper channels. (The Army.s tally is

heavily redacted, but based on dates of deaths, eight

of the Army.s cases overlap with those Human Rights

being questioned by Army Special Forces in January

2003, was not reported to criminal

investigators at all. Instead, the .[b]asic allegation

[was] discovered during the conduct of another

CID investigation. and an investigation was

half years after the death occurred.

2003 was not reported until over two weeks after it

of this delay, the autopsy could only find that he

Iraqi detainee Mohammed al-Izmerly.s death until

17 days after it occurred on January 31, 2004. By

that time, the body had been released to al-

Izmerly.s family and Army investigators could not

Ghraib prison in Iraq on November 24, 2003 were

not reported to Army criminal investigators until

December 2, 2003. As a result, investigators were

not able to examine the body of one of the victims,

which had already been taken away from the

died in at Camp Bucca in Iraq in the middle of

2003, but Army investigators did not learn of Hasson

resulting investigation could not determine a cause

of death or any other information about circumstances.

The Army.s CID is the sole agency responsible for investigating

felony crimes that involve Army personnel and that carry a

CID agents.approximately 2000 soldiers and civilians and

agents are required to maintain detailed records of their

The final investigation report includes the findings of the

completed, the official report is forwarded to the local JAG

unit for legal review, including whether the facts warrant

legal review, the final report is forwarded to CID Headquarters

to determine if it merits further investigation or if it may be

the commander of the soldier.s unit will consult with the

commander.s assigned JAG officer to decide whether or not

to follow the recommendations. The decision to press charges

The effectiveness of internal investigations was also

undermined in a number of instances by careless use

of the Army.s multiple-investigative-avenues structure

. one in which commanders have the option to request

both administrative and criminal investigations that

may run on parallel tracks. In some instances, an

administrative investigation may be an effective means

of conducting an investigation into wrongdoing. Major

General Antonio Taguba.s investigation into the

Military Police Brigade in the context of the Abu Ghraib

abuse scandal, for example, is a model of an administrative

investigation conducted with objectivity and

But review of the individual deaths that were subjects

of both criminal and administrative investigations

indicates that the existence of both investigative

procedures, each with their own reporting and evidentiary

standards, has sometimes functioned to reduce

subsequent criminal investigator simply served to

Command.s Responsibility . 33

A Human Rights First Report

at least one other case, administrative investigators

failed to observe the standards of evidence collection

required in criminal investigations and, as a result, the

possibility of prosecution for what turned out to be a

The .rubber stamp. problem is in part structural: under

a policy memorandum issued on April 3, 2002, Army

criminal investigators were authorized to decide that an

administrative investigation into allegations of felonies

or war crimes committed against detainees was

adequate and close the case without independent

An example of the problem is the investigation into the

death of Sajid Kadhim Bori al-Bawi, the Iraqi actor who

was shot and killed in his Baghdad home. The

administrative investigation found the shooting to be

justified; it concluded that al-Bawi had grabbed at a

U.S. soldier.s rifle, switched the safety off, and that the

Public statements about the killing made by the military

detailed the family.s allegations of wrongdoing by U.S.

spent an hour and a half reviewing the administrative

investigation, and did not attempt any independent

verification before requesting approval from his unit.s

investigators concurred in the administrative investigation

Another example is the criminal investigation report

into the shooting death of an Iraqi detainee at Camp

Cropper, Akel Abedal Hussein Jabar; the criminal

investigation report also references an attached

Jabar, an Iraqi detainee, was ostensibly killed during a

riot. The file contains an .Outstanding Leads Worksheet,

. which lists 17 items for follow-up, including

such basic investigation tasks as completing the crime

scene examination, sending evidence to a lab for

forensic evaluation, interviews of soldiers and detainee

witnesses to the death, collection of the weapon and

shell casings used to shoot Jabar, and conduct of an

criminal investigating agent, the Special Agent in

Charge, and the Staff Judge Advocate concluded the

administrative investigation adequately supported a

Administrative investigations, or so-called .Army Regulation

15-6 investigations,. are standard procedures for administrative

broken air-conditioners, to a missing soldier, to a death in

designates whether the administrative investigation will be

guidelines and documentation standards depend on

whether an investigation is formal (more stringent requirements;

require proceedings to be documented) or informal

(not required to meet specific guidelines; no documentation of

administrative investigation must be submitted to the appointing

provided to the appointing commander, who determines what

the appointing commander is .neither bound nor limited

Administrative investigations can only be used to investigate

an incident or individual within the appointing commander.s

chain of command, in other words, the investigator cannot

investigate wrongdoing at the level of, or higher than, the

One of the fundamental tenets of the laws of war is

that full and adequate records regarding the capture

Department of Defense and Army regulations codify

these regulations were not followed, and investigations

into most of these detainee deaths appear to have

The Army.s medical record-keeping was particularly

poor, with detainees. medical records often left

incomplete or entirely missing. Thus, although Army

investigations found that fourteen detainees died of

least five case files do not include records documenting

to have been an administrative oversight by criminal

In others, however, there were simply no medical

records to be found. For example, although it was

policy at Iraq.s Camp Warhorse that a record of a

34 . IV. Failures In Investigation

A Human Rights First Report

detainee.s intake medical screening be attached to his

detainee file, the officer who investigated Hassan

Ahmed.s death found that there was .no documentation

also certainly the case in the deaths of at least two

prisoners whose names were unlawfully kept off the

prison.s rolls in an effort to keep the International

Committee of the Red Cross from knowing about

example, until mid-August 2004, at Camp Warhorse,

no records had been kept of .sick call. treatment given

the death of an unidentified detainee at that

facility recommended that .[a]ll medical information

and encounters. [be] documented,. because such

record keeping was .standard of care throughout the

For criminal investigators, the absence of medical

records can be pivotal. Inadequate records kept in the

cases of Hadi Abdul Hussain Hasson al-Zubaidy and

Jassim Al-Obodi made determining the cause of death

basis in either of these cases to determine or substantiate

the cause of death, let alone seek any

accountability for it.

The Army Surgeon General.s April 2005 Report on Detainee

Medical Operations in Iraq, Afghanistan, and Cuba found

.wide variability in medical records generation at level I and II

[non-hospital] facilities. In some cases, no records were

generated . . . . In others cases, care was documented on

including screenings, at or near the time of interrogation, was

neither consistently documented nor consistently included in

detainees. records, medical personnel .did not consistently

nor uniformly document [actual or suspected detainee] abuse

in the medical record,. and the Surgeon General.s investigating

team .discovered no DoD, Army, or theater policies

requiring that actual or suspected abuse be documented in a

they may not have been followed because .less than 3% of

medical personnel surveyed from the AC [active component]

and 7% from the RC [reserve component] . . . reported

Command.s Responsibility . 35

A Human Rights First Report

U.S. Department of the Army Field Manual on Leadership 22-100

There are surprisingly few detainee death cases in

which anyone has been identified as responsible; there

are fewer still in which someone accused of wrongdoing

has been punished. Of the 34 homicide cases

end, we know of only 12 detainee deaths that have

The punishments in eight of the 12 cases appear

detainees tortured to death have resulted in punishment;

the steepest sentence for anyone implicated in a

While it is difficult to assess the systemic adequacy of

punishment when the deliberations of juries and

commanders remain largely unknown, two things are

clear: (1) command has played a key role in undermining

chances for full accountability, and (2) investigative

and evidentiary failures have limited accountability up

and down the chain of command.

Command failures to provide clear guidance and lawful

instruction on interrogation and detention rules appear

to have played a role in limiting accountability, especially

in cases involving torture. Punishments for

torture-related deaths have been much less severe

than punishments meted out for homicides involving,

for example, a wrongful shooting. In part, evidence of

command.s responsibility in the torture cases may have

caused military juries or judges to award lenient

sentences or accept lesser pleas for lower ranking

troops; if troops received guidance that appeared to

justify (or turn a blind eye to) harsh or torturous

treatment, or if they received no guidance, it could

seem unfair to hold them solely or fully accountable for

a death.

Indeed, inadequate or unlawful guidance has been

For example:

Officer Lewis Welshofer, for the murder of Iraqi

detainee General Abed Hamed Mowhoush, Welshofer

claimed that he was .not at all. trained for

he was authorized to force Mowhoush

36 . V. Failures of Accountability

A Human Rights First Report

into a sleeping bag based in part on a memorandum

from General Ricardo Sanchez, the highestranking

memorandum, General Sanchez authorized harsh

interrogation techniques, including sleep and environmental

manipulation, the use of aggressive

dogs, and stress positions . even as Sanchez acknowledged

that other countries might view these

techniques as inconsistent with the Geneva Conventions.

The use of the sleeping bag technique was also

authorized by Welshofer.s Company Commander,

murder but found guilty of negligent homicide, for

which he received a reprimand, a $6,000 fine, and

confinement to his home, base, or place of worship

judge who oversaw a pretrial inquiry in the death of

two Afghan detainees Dilawar and Habibullah,

noted that the Military Police Company responsible

for detainees at the Bagram detention facility had

not been adequately trained before deployment for

its mission; Berg recommended that charges be

dropped against the accused officer, Captain

Iraqi Obeed Hethere Radad, shot to death in his

detention cell by Army Specialist Juba Martino-

Poole, found that Martino-Poole violated the

found that there were no written standard operating

procedures and that there was inadequate clarity

on the use of force with regard to detainee operations

by his commander before a criminal investigation

could be completed; the investigation ultimately

Authorization and training are also at issue in cases

implicating the CIA. Recently, the judge in a federal

criminal case against CIA contractor David Passaro

ruled that Passaro can present evidence that he was

following orders in his interrogation of Abdul Wali, an

two days before Wali died, Passaro beat Wali with his

proceeding toward trial.

People charged with any

offense related to these

People who received

any kind of punishment

Highest rank punished

for a death

Defendants asserting at

court-martial their lack of

training or that actions

were authorized as a

defense.

25 years

Enlisted personnel

punished

Civilian contractors

charged

Civilian contractors

punished

0 (trial pending) 0

In addition to the failure to provide clear guidance,

commanders have in some cases exercised their

discretion to lessen the punishment subordinates are

given following investigations in which troops are found

responsible for wrongdoing.

allegedly shot to death by U.S. Special Forces,

criminal investigators found probable cause to recommend

charges of conspiracy and murder

Command.s Responsibility . 37

A Human Rights First Report

against four members of the Special Forces unit

and dereliction of duty charges against three of the

captain be charged with murder, conspiracy, dereliction

of duty, and obstruction of justice (likely

because the captain ordered a subordinate to destroy

recommended that a fifth, a chief warrant officer,

the commander of the 2/3 Special Forces Group,

based in Fort Bragg, decided not to pursue any of

Instead, the captain was given only received a written

reprimand for destruction of evidence; charges

against other Special Forces soldiers were

decisions is unknown.

into the Tigris River, resulting in the death of one,

Zaidoun Hassoun, three Army commanders failed

The commanders . Lt. Col. Nathan Sassaman, the

battalion commander, Captain Matthew Cunningham,

a company commander, and Major Robert

Gwinner, the deputy battalion commander . allegedly

ordered subordinates to deny the incident

occurred, to resist cooperation with criminal investigators,

grants of immunity from prosecution, and

admitted at their subordinates. trial that their subordinates

had forced Hassoun to jump into the

received reprimands for obstruction of justice but

subordinates were charged in connection with

Hassoun.s death, two were acquitted of manslaughter

and two others received non-judicial punishment,

highest punishment any of the four junior soldiers

received was six months imprisonment, reduction

work and found cause to charge Army Specialist

Juba Martino-Poole with murder in the death of

Iraqi Obeed Hethere Radad, Martino-Poole.s commander,

Major General Raymond T. Odierno, had

Martino-Poole did not, therefore, have to face the

possible harsher punishment of a criminal proceeding.

The reasons for Major General Odierno.s

decision are unknown.

Perhaps most significant, commanders themselves

continue to escape accountability almost entirely.

Again, this has been particularly striking in torturerelated

deaths, where command guidance and policy

have been directly implicated; in these cases, enlisted

personnel have been punished at a rate three times

greater than those in command.

Both U.S. and international law provide that commanders

are responsible for the acts of their subordinates;

this law of command responsibility was discussed in

detail by the U.S. Supreme Court since in a landmark

for the acts of their subordinates in the chain of

command if commanders: (1) exercised effective

control over those subordinates; (2) knew or had

reason to know of their subordinates. unlawful conduct;

and (3) despite that knowledge, failed to take reasonable

and necessary measures to prevent their

Despite this longstanding rule, no civilian official or

officer above the rank of major 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. Consider these examples.

with a death in custody and 31% of those who received

any kind of punishment are officers; the

majority of those charged and punished are noncommissioned

personnel.

for detainee death is a Major: Major Clarke Paulus

was convicted of dereliction of duty and maltreatment

for ordering a subordinate to drag Iraqi

detainee Hatab by the neck, and for allowing Hatab

to remain unmonitored for hours in the blazing Iraqi

sun; he was discharged but received no prison

for her failure to provide adequate supervision in

the death of Iraqi General Mowhoush; she was not

Cunningham, and Major Robert Gwinner, the three

commanders who attempted to cover up Iraqi detainee

Hassoun.s death and who instructed their

subordinates not to cooperate with investigators,

were not punished in connection with the death.

They received only reprimands for obstruction of

38 . V. Failures of Accountability

A Human Rights First Report

charge of the 519th Military Intelligence Battalion,

members of which were involved in the killing of

Afghan detainees Habibullah and Dilawar. Within

weeks of those killings, Wood was awarded the

first of two Bronze Star medals for .exceptionally

to the Army.s Intelligence Center in Fort

to verify whether Captain Wood was an instructor

for new interrogators but was told by a Fort Huachuca

representative that the information could not

hold accountable Colonel David A. Teeples, commander

of the 3rd Armored Cavalry, on whose

watch two senior members of the Iraqi military,

General Mowhoush and Lieutenant Colonel

of the Coalition Joint Task Force in Iraq in

2003 and 2004, who authorized the use of sleep

and environmental manipulation, aggressive dogs,

Chief Warrant Officer Welshofer pointed to one of

Sanchez.s memoranda as a basis for his belief that

he could use a sleeping bag technique that lead to

Division came forward to describe abuse of detainees

by members of their Division in both

Afghanistan and Iraq; they specifically described

systematic and recurrent torture and other abuse of

Iraqi detainees from September 2003 to April 2004,

has not been held accountable for the acts of his

As the case stories reviewed in this report make clear,

repeated failures to adequately investigate, document,

or pursue cases in the face of allegations of wrongdoing

or abuse have been central contributing factors in

creating the accountability gap. While a few nontorture-

related homicides have resulted in stiff sentences,

sentences that seem strikingly lenient compared to the

severity of the offense.

Examples of cases in which investigative failures or a

lack of action have undermined accountability include:

body) was destroyed, and partly as a result,

charges of negligent homicide against a soldier

could not be supported and were reduced to assault

Habibullah and Dilawar, the hearing officer in an

article 32 proceeding (analogous to a grand jury

proceeding) criticized the prosecution in part for not

presenting sufficient evidence to support their

charges before recommending that the case be

chemist who died in January 2004, was found by

the Director of Baghdad Hospital.s Department of

Forensics, Dr. Faik Amin Baker, to have .died from

into al-Izmerly.s death was re-opened after press

attention, and, two years since his death, remains

reviewed by Human Rights First, describes a number

of injuries in detail, indicating he was the

the most significant harm, resulting in hemorrhaging

2003. Since then, there has been no documentation

of the outcome of the investigation into his

death or of charges being brought against those

to the Army Medical Examiner.s autopsy report,

.he was hooded, sleep deprived, and subjected to

hot and cold environmental conditions, including

Command.s Responsibility . 39

A Human Rights First Report

and although the cause of death was listed as undetermined,

the report explicitly did not rule out

asphyxia .from various means. as a possible contributing

murder or manslaughter charges were brought as

a result of Mohammed.s death. Although three

Navy SEALS have been charged with assault and

other lesser charges, the status of the charges has

In addition to highlighting other systemic defects,

investigative and evidentiary lapses themselves raise

concerns about command.s failure to police the rules

governing how crimes should be investigated and

evidence maintained. At all stages in the investigation

of deaths or other abuses, from investigation to (if

justified) prosecution and punishment, command has

significant work to do . work that to date has gone too

often undone.

Command.s Responsibility . 41

A Human Rights First Report

William S. Shepard, U.S. Army Reserve, Judge Advocate General.s Corps (Ret.)

Interview with Human Rights First, November 9, 2005

Addressing the accountability gap documented in this

report is critical both in the interest of justice and also

as a matter of national security for the United States.

The fear and suspicion that abusive interrogation and

detention practices have engendered among Muslim

populations have undermined U.S. efforts to gather

intelligence, and to fight virulent insurgencies now

underway. The persistent lack of clarity on the rules

governing detainee interrogation and detention has

exposed front-line soldiers to needless risk, and

increased the threat of harm for all U.S. officials

overseas. And the secrecy that still permeates the

system . including information about investigations,

prosecutions, and steps toward accountability . raises

the likelihood that torture and abuse will continue.

Human Rights First urges the United States to develop

and implement a zero-tolerance policy for commanders

who fail to provide clear guidance to their subordinates,

and who allow unlawful conduct to persist on their

watch. The key elements of such a policy include the

following.

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 first and foremost

that the President clarify his commitment to

abide by the ban.

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 McCain statutory mandate and existing

constitutional and treaty obligations. The

President should issue regular reminders to command

that abuse will not be tolerated, and

commanders should regularly give troops the

same, serious message.

agencies should evaluate and update training for

all U.S. officials engaged in human intelligence and

detention operations to ensure they have a full

practical understanding of the implications of the

bans on torture and cruel, inhuman or degrading

treatment . and the consequences of violating it.

Personnel in each of the military and intelligence

agencies charged with investigating crimes by U.S.

soldiers and agents must also receive regular, high

VI. The Path Ahead . 42

A Human Rights First Report

quality training, so that when commanders do order

investigations those processes are thorough and

complete.

agencies should take steps to welcome independent

oversight . by Congress and civil society . by

immediately disclosing with specificity the status of

all investigations into, and prosecution of cases

concerning, detainee deaths, torture and abuse.

Going forward, these agencies should establish a

centralized, up-to-date, and publicly available collection

of information about the status of

investigations and prosecutions (including trial

transcripts, documents, and evidence presented),

and all incidents of abuse.

move forward promptly with long-pending actions

against those involved in cases of wrongful detainee

death or abuse, and state the basis of

decisions not to prosecute.

obligation of command responsibility by developing,

in consultation with congressional, military

justice, human rights, and other advisors, a public

accountable. Such a plan could include the

implementation of a single, high-level convening

authority across the branches of the military for

allegations of detainee torture and abuse. The

convening authority would: review and make decisions

about whom to hold responsible; take critical

decisions about whether and when to charge

troops with crimes out of the hands of individual

commanders in the field; bring uniformity, certainty,

and more independent oversight to the process of

discipline and punishment; and make the punishment

of commanders themselves more likely. An

accountability plan might also include, for example,

an increase in the maximum allowable punishments

for maltreatment, dereliction of duty, and

other offenses under the Uniform Code of Military

Justice that are applicable in cases of abuse.

promotions . such as those put in place for the

Navy following the Tailhook scandal . by requiring

that each branch of the military certify, for any officer

whose promotion requires Senate confirmation,

that the officer was not involved in any case of detainee

death, torture or abuse.

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 of recommendations going forward to

make sure those mistakes never happen again.

The .accountability gap. documented in this report is

about more than just a failure to correct past mistakes.

It is about how the United States is conducting detention

and interrogation operations today, and whether

officials up and down the chain of command . and in

every U.S. agency . recognize and answer for the

consequences that come with breaking the law. The

United States will not be successful at ending torture

and abuse until it has an established system designed

to prevent abuse before it happens, punish it when it

does, and deter any who might think it is possible to get

away with abuse.

Command.s Responsibility . 43

A Human Rights First Report

Visual breakdown of Human Rights First.s findings.

http://www.humanrightsfirst.info/pdf/06217-etn-app-ahrf-

dic.pdf

On December 2, 2002, Secretary of Defense Donald Rumsfeld

personally approved a list of interrogation techniques for use on

detainees at Guantanamo. Many of these techniques were not

consistent with international and U.S. law and contrary to the

established rules and military standards governing detention and

interrogation as set forth in Army Field Manual 34-52. They

included the use of .stress positions,. 20-hour interrogations, the

removal of clothing, the use of dogs, isolation, and sensory

deprivation. Although approved for Guantanamo, the techniques

were later used by subordinates in Afghanistan and Iraq. Some of

the techniques were later rescinded, and Secretary Rumsfeld

personally approved a new list in April 2003, which still included

dietary manipulation, sensory deprivation and .false flag. (leading

detainees to believe that they have been transferred to a country

that permits torture). He also made clear that harsher techniques

could be used with his personal authorization. Appendix B contains

http://www.humanrightsfirst.org/us_law/etn/pdf/dodmemos-

120202.pdf

On September 10, 2003, a memo from Lt. Gen. Ricardo S.

Sanchez, then U.S. Army Commander of the Coalition Joint Task

Force in Iraq, authorized such harsh interrogation techniques as

sleep and environmental manipulation, the use of aggressive dogs,

and the use of stress positions. The memo, discussed for the first

time as evidence in the January 2006 trial of a Chief Warrant

Officer accused of involvement in a detainee.s murder, is at

Appendix C. It underscores both the confusion in the military over

the applicability of Geneva Convention protections in Iraq and

commanders. recognition that techniques could violate law:

http://www.humanrightsfirst.info/pdf/06124-etn-sep-10-

sanchez-memo.pdf

A Human Rights First Report

Human Rights First.s analysis of deaths in U.S. custody includes

the case of Iraqi Major General Abed Hamed Mowhoush, who

suffocated to death after two soldiers forced him inside a sleeping

bag, wrapped him in an electric cord, sat on him, and blocked his

airways. Chief Warrant Officer Lewis Welshofer faced a murder

charge at court martial. At an initial stage in the investigation, Chief

Welshofer was given a letter of reprimand by his commanding

officer, General Charles H. Swannack, commander of the 82nd

Airborne Division. Both in a written rebuttal to Swannack.s

reprimand and as part of his defense at court martial, Chief

Welshofer argued that he understood .the sleeping bag technique.

was authorized by General Sanchez.s September 10, 2003 memo,

which specifically authorized the use of stress positions. Chief

Welshofer was found guilty of negligent homicide and negligent

dereliction of duty, and received punishment of a reprimand, a

$6,000 fine, and movement restricted to his home, base, and place

of worship. Appendix D contains Chief Welshofer.s rebuttal to his

http://www.humanrightsfirst.info/pdf/memdic021104.

pdf

Among the investigation flaws identified in Human Rights First.s

review of deaths in U.S. custody are military investigators. belated

efforts to find out what happened to some detainees whose deaths

were never reported and whose cases simply slipped through the

cracks. Hadi Abdul Hussain Hasson al-Zubaidy (Hasson) is one of

those cases. Appendix E is an extract from the Army.s October

2004 investigation report into Mr. Hasson.s death. As it describes,

the Army.s eventual efforts to find out what happened to Mr.

Hasson went nowhere because U.S. record-keeping about

detainees was so poor. According to a U.S. Mortuary Affairs officer:

http://www.humanrightsfirst.info/pdf/06216-etn-dic-appe.

pdf

Abu Malik Kenami died after he was subjected to extreme exercise

. made to stand up, then sit down, over and over again . then

cuffed, hooded and returned to a crowded cell. The investigation

into his death is an example of other flaws Human Rights First

identified: investigators failed to conduct interviews of critical

witnesses and did not gather and maintain physical evidence. The

Army.s own subsequent review of the investigation into Mr.

Kenami.s death found .it was weak in Thoroughness and Timeliness.

. Appendix F contains two excerpts from the Kenami

investigation records. The first is the Army.s review of the initial

criminal investigation, and lists that investigation.s inadequacies.

http://www.humanrightsfirst.info/pdf/06216-etn-dic-appf.

pdf

Command.s Responsibility . 45

A Human Rights First Report

Among the deaths for which the official cause is unknown but which

Human Rights First identifies as a possible homicide is an unnamed

man, killed in Balad, Iraq, on January 3, 2004. The only publiclyavailable

record of his death is in Appendix F, in which his family.s

claim for compensation is considered by U.S. forces . and denied.

Human Rights First found no indication that the man.s death was

criminally investigated and has requested that information from the

Department of Defense. According to Appendix G, U.S. forces

allege that the man, whom they describe as a suspected insurgent,

reached for a pistol while detained during a raid on his home. On

the second page of Appendix G is what the Army document

describes as a .verbatim transcription. of the man.s family.s claims.

The family asserted that their father was shot without cause and

http://www.humanrightsfirst.info/pdf/06216-etn-dic-appg.

pdf

Lists the Freedom of Information Act requests Human Rights First

has filed in connection with deaths in U.S. custody.

Command.s Responsibility

A Human Rights First Report

Command.s Responsibility . 99

A Human Rights First Report

1. June 11, 2004, Request to the U.S. Army Crime

Records Center [CID] for all records and reports of

criminal investigations by the Army Criminal Investigation

Command of possible misconduct against

detainees in Iraq and Afghanistan since January

2002.

2. June 11, 2004, Request to the Central Intelligence

Agency for all records concerning investigations by

the Office of the Inspector General of the Central

Intelligence Agency of deaths of three detainees in

Iraq and Afghanistan in 2003 . Manadel al-Jamadi,

Abid Hamid Mowhoush, and Abdul Wali.

3. June 18, 2004, Request to the Department of

Justice for all records concerning the Department

of Justice.s criminal investigation of alleged homicide

of a detainee in Iraq or Afghanistan by a

contractor employed by the Central Intelligence

Agency.

4. July 20, 2005, Request to the U.S. Army Crime

Records Center [CID] for all records relating to the

Army Criminal Investigation Command (CID) investigation

into the death of Sher Mohammed Khan.

5. July 21, 2005, Request to the U.S. Army Crime

Records Center [CID] for all records relating to an

Army Criminal Investigation Command (CID) investigation

with sequence number 0011-04-CID469-

79630 (drowning death of Zaidoun Hassoun).

6. July 21, 2005, Request to NCIS Headquarters for

all documents related to the Naval Criminal Investigative

Service (NCIS) investigation into the death

of Nagem Sadoon Hatab.

7. July 21, 2005, Request to the 5th Special Forces

Group for all documents related to the Commander

.s Inquiry conducted, pursuant to AR 15-6,

into the death of Sajid Kadhim Bori al-Bawi on May

8. July 21, 2005, Request to the U.S. Army Medical

Command for all medical records pertaining to the

care of Sher Mohammed Khan, including his autopsy.

for all records relating to the Commander.s Inquiry

conducted pursuant to AR 15-6 to investigate the

shooting death of Obeed Hethere Radad.

10. July 22, 2005, Request to NCIS Headquarters for

all documents relating to the Naval Criminal Investigative

Service (NCIS) investigation into the

deaths of Hamaady Kareem and Tahah Ahmead

Hanjil.

11. July 22, 2005, Request to the U.S. Army Crime

Records Center [CID] for all records relating to an

Army Criminal Investigation Command (CID) investigation

into the death of Lt. Col. Abdul Jameel.

12. July 22, 2005, Request to Marine Corps Base

Camp Lejeune for investigation reports and supporting

or otherwise related materials for all

commander.s inquiries commenced on or after

January 1, 2002 within the 2nd Battalion of the 2nd

Marine Regiment regarding incidents occurring

outside the territorial United States and involving

bodily injury or death.

13. July 22, 2005, Request to Marine Corps Base

Camp Pendleton for investigation reports and supporting

or otherwise related materials for all

commander.s inquiries investigations commenced

on or after January 1, 2002 within the 3rd Battalion

of the 1st Marine Regiment regarding incidents

A Human Rights First Report

occurring outside the territorial United States and

involving bodily injury or death.

for investigation reports and supporting or otherwise

related materials for all Army Regulation 15-6

investigations commenced on or after January 1,

2002 within the 301st Military Police regarding incidents

occurring outside the territorial United States

and involving bodily injury or death.

15. July 22, 2005, Request to the 5th Special Forces

Group for investigation reports and supporting or

otherwise related materials for all Army Regulation

15-6 investigations commenced on or after January

1, 2002 within 5th Special Forces Group regarding

incidents occurring outside the territorial United

States and involving bodily injury or death.

for investigation reports and supporting or otherwise

related materials for all Army Regulation 15-6

investigations commenced on or after January 1,

2002 within the 1/8th Infantry Battalion of the 3rd

Brigade of the 4th Infantry Division regarding incidents

occurring outside the territorial United States

and involving bodily injury or death.

for investigation reports and supporting or otherwise

related materials for all Army Regulation 15-6

investigations commenced on or after January 1,

2002 within the 4th Forward Support Battalion of

the 4th Infantry Division regarding incidents occurring

outside the territorial United States and

involving bodily injury or death.

18. July 22, 2005, Request to Marine Corps Base

Camp Lejeune for investigation reports and supporting

or otherwise related materials for all

commander.s inquiries commenced on or after

January 1, 2002 within the 2nd Regiment Combat

Team of the 2nd Marine Expeditionary Brigade

regarding incidents occurring outside the territorial

United States and involving bodily injury or death.

19. July 22, 2005, Request to the XVIII Airborne Corps

for investigation reports and supporting or otherwise

related materials for all Army Regulation 15-6

investigations commenced on or after January 1,

2002 within the 7th Special Forces Group regarding

incidents occurring outside the territorial United

States and involving bodily injury or death.

20. July 22, 2005, Request to the 3rd Armored Cavalry

Regiment for investigation reports and supporting

or otherwise related materials for all Army Regulation

15-6 investigations commenced on or after

January 1, 2002 within the 3rd Armored Cavalry

Regiment regarding incidents occurring outside the

territorial United States and involving bodily injury

or death.

21. July 22, 2005, Request to the 1st Cavalry Division

for investigation reports and supporting or otherwise

related materials for all Army Regulation 15-6

investigations commenced on or after January 1,

2002 within the 1st Battalion of the 41st Infantry

Regiment of the 1st Cavalry Division regarding

incidents occurring outside the territorial United

States and involving bodily injury or death.

22. July 22, 2005, Request to the XVIII Airborne Corps

for investigation reports and supporting or otherwise

related materials for all Army Regulation 15-6

investigations commenced on or after January 1,

2002 within the 519th Military Intelligence Battalion

regarding incidents occurring outside the territorial

United States and involving bodily injury or death.

23. July 22, 2005, Request to the 20th Special Forces

Group for investigation reports and supporting or

otherwise related materials for all Army Regulation

15-6 investigations commenced on or after January

1, 2002 within the 20th Special Forces Group regarding

incidents occurring outside the territorial

United States and involving bodily injury or death.

24. July 25, 2005, Request to NCIS Headquarters for

all records relating to a Naval Criminal Investigative

Service (NCIS) investigation into the death of

Manadel al-Jamadi.

25. July 25, 2005, Request to the U.S. Army Crime

Records Center [CID] for all records relating to an

Army Criminal Investigation Command (CID) investigation

into the death of Manadel al-Jamadi.

26. July 26, 2005, Request to the U.S. Army Crime

Records Center [CID] for all records relating to an

Army Criminal Investigation Command (CID) investigation

with sequence number 0174-04-CID259,

an investigation into a death which occurred at an

unknown location, probably in Iraq or Afghanistan,

on September 13th, 2003.

27. July 27, 2005, Request to the U.S. Army Crime

Records Center [CID] for all records relating to an

Army Criminal Investigation Command (CID) investigation

with sequence number 0233-04-CID789,

an investigation into the possible death of a detainee

at Abu Ghraib, Iraq, in June of 2004, as the

result of a blood transfusion of the wrong type.

Command.s Responsibility . 101

A Human Rights First Report

28. July 28, 2005, Request to the U.S. Army Crime

Records Center [CID] for all records relating to an

Army Criminal Investigation Command (CID) investigation

with sequence number 0537-04-CID034,

an investigation into a death which occurred at an

unknown location, probably in Iraq or Afghanistan,

on December 1st, 2003.

29. August 1, 2005, Request to the U.S. Army Crime

Records Center [CID] for all records relating to an

Army Criminal Investigation Command (CID) investigation

into the killing of Naser Ismail.

30. August 2, 2005, Request to the U.S. Army Crime

Records Center [CID] for all records relating to an

Army Criminal Investigation Command (CID) investigation

into the killing of Jamal Naseer.

31. August 3, 2005, Request to the U.S. Army Crime

Records Center [CID] for all records relating to an

Army Criminal Investigation Command (CID) investigation

with sequence number 0239-04-CID259,

an investigation into a death which occurred at

Camp Bucca, Iraq, on an unknown date.

32. August 5, 2005, Request to the U.S. Army Crime

Records Center [CID] for all records relating to an

Army Criminal Investigation Command (CID) investigation

with sequence number 0326-04-CID056,

an investigation into a death which occurred at an

unknown location, probably in Iraq or Afghanistan,

on an unknown date.

33. August 8, 2005, Request to the U.S. Army Crime

Records Center [CID] for all records relating to an

Army Criminal Investigation Command (CID) investigation

with sequence number 0035-03-CID259-

61144, an investigation into the death of an Iraqi

Army Private.

34. August 10, 2005, Request to the Department of

Defense for all records relating to the detention,

treatment, and transfer of Hadi Abdul Hussain

Hasson al-Zubaidy, an Iraqi citizen, treated aboard

the USNS Comfort in 2003.

Command.s Responsibility . 103

A Human Rights First Report

1 Human Rights First Telephone Interview with Hossam Mowhoush, son of Iraqi Maj. Gen. Abed Hamed Mowhoush (Sept. 22, 2005)

(transcription on file with Human Rights First).

based on documents released under the Freedom of Information Act, press reports, and Human Rights First interviews (.DIC Table.).

Unless otherwise specified, supporting citations in footnotes to a detainee.s last name refer to the entries concerning that detainee.s death

in the DIC Table, which is available upon request from Human Rights First. The DIC Table is organized chronologically by date of death.

In a number of instances, the name of a detainee is not known, although the date and location of death is; such detainees have been

sequentially numbered (Unknown 1, Unknown 2, etc.), based on date of death and are referred to in this Report by the sequential number.

This Report focuses on deaths that implicate interrogation or detention policy or practice and Human Rights First includes in its count of 98

deaths any death caused by one or more members of the U.S. Armed Forces or other official U.S. governmental agency while the person

was under U.S. control, including a death at a detainee.s home, a death during an alleged escape attempt, and death at the point of

capture but after a person.s surrender. The 98 deaths also include ten deaths about which only minimal information, such as name or a

date of death is publicly available, and for which there is no publicly available information on cause or circumstances of death. For the

purposes of this Report, Human Rights First has not included in its analysis deaths in situations where U.S. custody is open to question

(including deaths allegedly caused at check-point stops where circumstances of the stop or surrender are unclear), or deaths allegedly

caused at a later point in time by injuries sustained during combat (including alleged .mercy. killings).

The total number of deaths Human Rights First counts is 141; this number includes 38 detainees who died when their detention facilities

were struck by mortar attacks, and five deaths of detainees killed in U.S. custody by other detainees. While these latter 43 deaths are of

concern . and appear to be in part a reflection of poor operational decisions, noted by former Defense Secretary James Schlesinger, to

OF THE INDEP. PANEL TO REVIEW DOD DETENTION OPERATIONS, Aug. 2004, at 63, 77.

3 We use the same definition of .homicide. as the Army.s Criminal Investigation Division: .Death resulting from the intentional (explicit or

implied) or grossly reckless behavior of another person or persons.. As the Army itself points out, this definition is different from murder,

which, like manslaughter, is a legal term that requires a judge or jury to find that the intent behind the death had a degree of maliciousness.

Table: There are 20 homicides in which investigators found unjustified homicide or in which there were prosecutions for a death and 14

that investigators found justifiable. The 20 unjustified homicides are: Sayari (criminal investigators found probable cause for conspiracy to

murder); Dilawar and Habibullah (probable cause for crimes ranging from involuntary manslaughter to lying to investigators); Unknown 2

(murder charge); Hatab (charges initially brought included voluntary manslaughter; commanders later dropped the charge), Wali (federal

criminal assault charges in connection with death); Radad (criminal investigators found probable cause for murder); F. Mohammed

(prosecutors brought charges including assault with intent to cause death); al-Jamadi (pathologist ruled case a homicide; court martial for

assault and battery); Mowhoush (court martial brought on murder charge); Hassoun (two soldiers charged with manslaughter, one other

charged with involuntary manslaughter); Ismail (soldier charged with murder, but acquitted); Jameel (criminal investigators recommended

charges including negligent homicide); Kadir (manslaughter conviction); Kareem and Hanjil (criminal investigators recommended, and

commanders considered but ultimately dropped, murder charges); Unknowns 18 and 19 (two soldiers court-martialed for murders,

received 25 and 5 years in jail, respectively); T. Ahmed (soldier guilty of murder); Unknown 22 (soldier charged with murder). The 14

deaths found by the military to be justified homicides are: al-Haddii; Jabar; A. Hassan; Unknown 7; Sayar; Salman; Shalaan; Thawin; Amir;

Farhan; K. Mahmood; al-Bawi; Ghafar and Habib.

severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his

(detainee killed at the .Salt Pit. facility in Afghanistan); al-Jamadi; Mowhoush; and, Jameel. In addition, the publicly-available evidence and

circumstances surrounding the deaths of Dababa, F. Mohammed, Hatab and al-Izmerly raise concerns that they may also have been

subjected to torture.

A Human Rights First Report

http://www.aclu.org/torturefoia/released/042105/9290_9388.pdf, at 68-69 (accessed Feb. 3, 2006). Throughout this Report, page number

citations for PDF files of records released by the military and other government agencies refer to the physical number of pages in the files

and may not correspond to agency-assigned page number stamps.

6 Human Rights First Telephone Interview with Mohammed Mowhoush, son of Iraqi Major General Abed Hamed Mowhoush (Nov. 9, 2005)

(transcription on file with Human Rights First).

(accessed Feb. 3, 2006).

11 Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with Human

14 Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with Human

15 While the Administration had issued guidance stating that the Geneva Conventions would apply in Iraq (Department of Defense News

http://www.defenselink.mil/transcripts/2003/t04072003_t407genv.html (accessed Feb. 3, 2006)), this guidance conflicted with other public

statements. Secretary of Defense Donald Rumsfeld said, .technically unlawful combatants do not have any rights under the Geneva

Conventions.. Dep.t of Defense News Briefing, Secretary of Defense Donald Rumsfeld and Joint Chiefs of Staff Chairman General

http://www.humanrightsfirst.org/us_law/PDF/EndingSecretDetentions_web.pdf (accessed Feb. 3, 2005) (describing changes in designations

for detainees in Iraq). It also conflicted with how detainees were classified and held throughout Iraq in practice. Dep.t of the Army,

http://www.humanrightsfirst.org/us_law/PDF/abuse/mikolashekdetaineereport.pdf (accessed Feb. 3, 2006).; MAJ. GEN. GEORGE R. FAY, AR

6/AR15-6.pdf (accessed Feb. 3, 2006) [hereinafter FAY REPORT]. (.In addition to EPWs [enemy prisoners of war] and compliant, nonhostile

CIs [civilian internees], units in OEF [Operation Enduring Freedom] and OIF [Operation Iraqi Freedom] were confronted with

16 Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with Human

http://www.guardian.co.uk/Iraq/Story/0,2763,1094984,00.html (accessed Feb. 7, 2006).

18 Geneva Convention (III) Relative to the Treatment of Prisoners of War, Geneva, August 12, 1949, 75 U.N.T.S. 135, art. 4 (.[p]risoners of

war are persons who fall into enemy hands and belong to one of the following categories: .(1) Members of the armed forces of a party to

the conflict, as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and

members of other volunteer corps, including those of organized resistance movements, belonging to a party to the conflict and operating

in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized

resistance movements, fulfill the following conditions: (a) They are commanded by a person responsible for his subordinates (b) They

have a fixed distinctive sign recognizable at a distance; (c) They carry arms openly; and (d) They conduct their operations in accordance

http://www.humanrightsfirst.org/us_law/etn/gonzales/memos_dir/memo_20020126_Powell_WH%20.pdf (accessed Feb. 3, 2006).

19 Memorandum from General Ricardo Sanchez to Combined Joint Task Force Seven and the Commander, 205th Intelligence Brigade

21 Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with Human

24 Human Rights First Telephone Interview with Hossam Mowhoush, son of Iraqi Maj. Gen. Abed Hamed Mowhoush (Oct. 10, 2005)

(transcription on file with Human Rights First).

26 Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with Human

Command.s Responsibility . 105

A Human Rights First Report

http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006m.asp (accessed Feb. 3, 2006).

012006m.asp (accessed Feb. 3, 2006).

from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with Human Rights First), excerpts

http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-011906d.asp (accessed Jan. 31, 2006)), Chief Warrant Officer Jefferson

012006m.asp (accessed Feb. 3, 2006)).

http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-011806.asp (accessed Feb. 3, 2006).

http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006m.asp (accessed Feb. 3, 2006).

37 Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with Human

http://www.aclu.org/projects/foiasearch/pdf/DOD045202.pdf (accessed Feb. 3, 2006).

41 Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with Human

http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-011906d.as (accessed Feb. 3, 2006).

44 Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with Human

46 Human Rights First Telephone Interview with Mohammed Mowhoush, son of Iraqi Maj. Gen. Abed Hamed Mowhoush (Nov. 9 and Nov.

14, 2005) (transcription on file with Human Rights First).

012006d.asp (accessed Feb. 3, 2006); Memorandum for Commander 82nd ABN DIV, re: CW3 Welshofer, Lewis E. Rebuttal to General

http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-011906d.as (accessed Feb. 3, 2006).

50 Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with Human

A Human Rights First Report

http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006). .

http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006m.asp (accessed Feb. 3, 2006).

54 Press Release, Multi-National Force, Iraq, Combined Joint Task Force 7, Iraqi General Dies of Natural Causes, No. 31127a (Nov. 27,

2003). The release has since been removed from military websites, but an archived copy is available at

http://web.archive.org/web/20041128154754/http://www.cjtf7.army.mil/media-information/november2003/031127a.htm (accessed Feb. 3,

2006).

55 Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with Human

59 Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006 (on file with Human

3, 2006).

ROCKY MOUNTAIN NEWS, Jan. 13, 2006, at 17A.

Release, Army Criminal Investigation Command, Army Criminal Investigators Outline 27 Confirmed or Suspected Detainee Homicides for

20Homicides.pdf, at 2 (accessed Feb. 8, 2006) [hereinafter Criminal Investigators Outline 27 Homicides].

66 Dep.t of the Army, Blood and Steel: The History, Customs, and Traditions of the 3d Armored Cavalry Regiment (2002), at. 35, 73,

69 Dep.t of the Army, Criminal Investigative Division, CID.s Mission . In Depth, http://www.cid.army.mil/mission2.htm (accessed Feb. 3,

2006).

[hereinafter Criminal Investigation, al-Bawi].

http://www.dss.mil/training/acro.pdf (accessed Feb. 3, 2006).

73 U.S. Dep.t of State, Second Periodic Report of the United States of America to the Committee Against Torture, Annex I, Part Two,

Unknown 1 (detainee killed at .Salt Pit. facility in Afghanistan in Nov. 2002) (CIA), Unknown 2 (detainee killed in Wazi village, Afghanistan

between Jan. 1 and Jan. 13, 2003) (Special Forces), Abdul Wali (CIA), al-Jamadi (CIA and Navy SEALS), Mowhoush (CIA and Special

Forces), Jameel (Special Forces/CIA), Fashad Mohamed (Navy SEALS), Jameel Naseer (Special Forces).

75 Exec. Order No. 12333 §1.7, U.S. Intelligence Activities, 46 Fed. Reg. 59941, 59945 (Dec. 4, 1981).

Command.s Responsibility . 107

A Human Rights First Report

prosecution arising from the death of Mowhoush, ability to produce a verbatim transcript of trial proceedings complicated by requirement

demise has been difficult because the circumstances are listed as .classified. on his official autopsy, court records have been censored to

hide the CIA.s involvement in his questioning, and reporters have been removed from a Fort Carson courtroom when testimony relating to

might have destroyed evidence; an apparent refusal to inform pathologists as to circumstances of a detainee.s death might have led to an

contractor in connection with the Wali death, evidence provided to defendant was severely censored, reducing his ability to mount .an

adequate defense.).

http://www.cbsnews.com/stories/2004/06/25/iraq/main626121.shtml (accessed Feb. 3, 2006). Jameel.s last name is sometimes given as

.Jaleel..

http://www.aclu.org/torturefoia/released/041905/m001_203.pdf, at 108 (accessed Feb. 3, 2006) [hereinafter Autopsy, Jameel].

94 MedLine Plus: Medical Dictionary, http://www.nlm.nih.gov/medlineplus/mplusdictionary.html (accessed Feb. 3, 2006).

2004, at A25.

Mohammed].

http://www.aclu.org/torturefoia/released/041905/m001_203.pdf, at 133 (accessed Feb. 7, 2006) [Preliminary Autopsy, F. Mohammed].

Secretary of Defense Rumsfeld on Dec. 2, 2002, with hand-written notation: .However, I stand for 8-10 hours a day. Why is standing

A Human Rights First Report

limited to 4 hours?.). Haynes. memo attaches a memo from General James Hill (Oct. 25, 2002); a memo from Maj. Gen. Michael Dunlavey

(Oct. 11, 2002), a memo (legal review) by Lt. Col. Diane Beaver (Oct. 11, 2002) and a Request for Approval for Counter-Resistance

http://www.humanrightsfirst.org/us_law/etn/gonzales/memos_dir/mem_20030416_Rum_IntTec.pdf (accessed Feb. 7, 2006).

111 Memorandum from Ricardo S. Sanchez to Commander, U.S. Central Command (Sept. 14, 2003) (attaching Combined Joint Task

2006).

al-Jamadi].

slack to allow al-Jamadi to kneel).

supra note 121.