A Human Rights First Report

Command.s

Responsibility

Detainee Deaths in U.S. Custody in Iraq and Afghanistan

Written by Hina Shamsi and Edited by Deborah Pearlstein

February 2006

Table of Contents

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

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Acknowledgements

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

Command.s Responsibility documents a dozen brutal deaths as the result

of the most horrific treatment. One such incident would be an isolated

transgression; two would be a serious problem; a dozen of them is policy.

The law of military justice has long recognized that military leaders are

held responsible for the conduct of their troops. Yet this report also

documents that no civilian official or officer above the rank of major

responsible for interrogation and detention practices has been charged in

connection with the torture or abuse-related death of a detainee in U.S.

custody. And the highest punishment for anyone handed down in the case

of a torture-related death has been five months in jail. This is not

accountability as we know it in the United States.

 

John D. Hutson

Rear Admiral (Ret.), JAGC, USN

 

The torture and death catalogued in excruciating detail by this important

Human Rights First report did not happen spontaneously. They are the

consequence of a shocking breakdown of command discipline on the part

of the Army.s Officer Corps. It is very clear that cruel treatment of

detainees became a common Army practice because generals and

colonels and majors allowed it to occur, even encouraged it. What is

unquestionably broken is the fundamental principle of command

accountability, and that starts at the very top. The Army exists, not just to

win America.s wars, but to defend America.s values. The policy and

practice of torture without accountability has jeopardized both.

 

David R. Irvine

Brig. Gen. (Ret.) USA

 

Command.s Responsibility . 1

A Human Rights First Report

I. Introduction

Do I believe that [abuse] may have hurt us in winning the hearts and minds of Muslims around

the world? Yes, and I do regret that. But one of the ways we address that is to show the world

that we don.t just talk about Geneva, we enforce Geneva . . . . [T]hat.s why you have these military

court-martials; that.s why you have these administrative penalties imposed upon those

responsible because we want to find out what happened so it doesn.t happen again. And if

someone has done something wrong, they.re going to be held accountable.

U.S. Attorney General Alberto Gonzales

Confirmation Hearings before the Senate Judiciary Committee

January 6, 2005

Basically [an August 30, 2003 memo] said that as far as they [senior commanders] knew there

were no ROE [Rules of Engagement] for interrogations. They were still struggling with the definition

for a detainee. It also said that commanders were tired of us taking casualties and they

[told interrogators they] wanted the gloves to come off . . . . Other than a memo saying that they

were to be considered .unprivileged combatants. we received no guidance from them [on the

status of detainees].

Chief Warrant Officer Lewis Welshofer

Testifying during his Court Martial for Death of Iraqi General Abed Hamed Mowhoush

January 19, 2006

Since August 2002, nearly 100 detainees have died

while in the hands of U.S. officials in the global .war on

terror.. According to the U.S. military.s own classifications,

34 of these cases are suspected or confirmed

homicides; Human Rights First has identified another

11 in which the facts suggest death as a result of

physical abuse or harsh conditions of detention. In

close to half the deaths Human Rights First surveyed,

the cause of death remains officially undetermined or

unannounced. Overall, eight people in U.S. custody

were tortured to death.

Despite these numbers, four years since the first known

death in U.S. custody, only 12 detainee deaths have

resulted in punishment of any kind for any U.S. official.

Of the 34 homicide cases so far identified by the

military, investigators recommended criminal charges in

fewer than two thirds, and charges were actually

brought (based on decisions made by command) in

less than half. While the CIA has been implicated in

several deaths, not one CIA agent has faced a criminal

charge. Crucially, among the worst cases in this list .

those of detainees tortured to death . only half have

resulted in punishment; the steepest sentence for

anyone involved in a torture-related death: five months

in jail.

It is difficult to assess the systemic adequacy of

punishment when so few have been punished, and

when the deliberations of juries and commanders are

largely unknown. Nonetheless, two patterns clearly

emerge: (1) because of investigative and evidentiary

failures, accountability for wrongdoing has been limited

at best, and almost non-existent for command; and (2)

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 to Date

The cases behind these numbers have names and

faces. This report describes more than 20 cases in

detail, to illustrate both the failures in investigation and

in accountability. Among the cases is that of Manadel

al-Jamadi, whose death became public during the Abu

Ghraib prisoner-abuse scandal when photographs

depicting prison guards giving the thumbs-up over his

body were released; to date, no U.S. military or

intelligence official has been punished criminally in

connection with Jamadi.s death.

The cases also include that of Abed Hamed Mowhoush,

a former Iraqi general beaten over days by U.S.

Army, CIA and other non-military forces, stuffed into a

sleeping bag, wrapped with electrical cord, and

suffocated to death. In the recently concluded trial of a

low-level military officer charged in Mowhoush.s death,

the officer received a written reprimand, a fine, and 60

days with his movements limited to his work, home,

and church.

And they include cases like that of Nagem Sadoon

Hatab, in which investigative failures have made

accountability impossible. Hatab, a 52-year-old Iraqi,

was killed while in U.S. custody at a holding camp

close to Nasiriyah. Although a U.S. Army medical

examiner found that Hatab had died of strangulation,

the evidence that would have been required to secure

accountability for his death . Hatab.s body . was

rendered unusable in court. Hatab.s internal organs

were left exposed on an airport tarmac for hours; in the

blistering Baghdad heat, the organs were destroyed;

the throat bone that would have supported the Army

medical examiner.s findings of strangulation was never

found.

Although policing crimes in wartime is always challenging,

government investigations into deaths in custody

since 2002 have been unacceptable. The cases

discussed in this report include incidents where deaths

went unreported, witnesses were never interviewed,

evidence was lost or mishandled, and record-keeping

was scattershot. They also include investigations that

were cut short as a result of decisions by commanders

. who are given the authority to decide whether and to

what extent to pursue an investigation . to rely on

incomplete inquiries, or to discharge a suspect before

an investigation can be completed. Given the extent of

the non-reporting, under-reporting, and lax record

keeping to date, it is likely that the statistics reported

here, if anything, under-count the number of deaths.

Command.s Responsibility . 3

A Human Rights First Report

Among our key findings:

• Commanders have failed to report deaths of

detainees in the custody of their command, reported

the deaths only after a period of days and

sometimes weeks, or actively interfered in efforts to

pursue investigations;

• Investigators have failed to interview key witnesses,

collect useable evidence, or maintain

evidence that could be used for any subsequent

prosecution;

• Record keeping has been inadequate, further

undermining chances for effective investigation or

appropriate prosecution;

• Overlapping criminal and administrative investigations

have compromised chances for

accountability;

• Overbroad classification of information and other

investigation restrictions have left CIA and Special

Forces essentially immune from accountability;

• Agencies have failed to disclose critical information,

including the cause or circumstance of death,

in close to half the cases examined;

• Effective punishment has been too little and

too late.

Closing the Accountability Gap

The military has taken some steps toward correcting

the failings identified here. Under 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

First, the President, as Commander-in-Chief,

should move immediately to fully implement the

ban on cruel, inhuman and degrading treatment

passed overwhelmingly by the U.S. Congress

and signed into law on December 30, 2005. Full

implementation requires that the President clarify his

commitment to abide by the ban (which was called into

question by the President.s statement signing the bill

into law). It also requires the President to instruct all

relevant military and intelligence agencies involved in

detention and interrogation operations to review and

revise internal rules and legal guidance to make sure

they are in line with the statutory mandate.

Second, the President, the U.S. military, and

relevant intelligence agencies should take

immediate steps to make clear that all acts of

torture and abuse are taken seriously . not from

the moment a crime becomes public, but from

the moment the United States sends troops and

agents into the field. The President should issue

regular reminders to command that abuse will not be

tolerated, and commanders should regularly give

troops the same, serious message. Relevant agencies

should welcome independent oversight . by Congress

and the American people . by establishing a centralized,

up-to-date, and publicly available collection of

information about the status of investigations and

prosecutions in torture and abuse cases (including trial

transcripts, documents, and evidence presented), and

all incidents of abuse. And the Defense and Justice

Departments should move forward promptly with longpending

actions against those involved in cases of

wrongful detainee death or abuse.

Third, the U.S. military should make good on the

obligation of command responsibility by developing,

in consultation with congressional,

military justice, human rights, and other advisors,

a public plan for holding all those who

engage in wrongdoing accountable. Such a plan

might include the implementation of a single, high-level

convening authority across the service branches for

allegations of detainee torture and abuse. Such a

convening authority would review and make decisions

about whom to hold responsible; bring uniformity,

certainty, and more independent oversight to the

process of discipline and punishment; and make

punishing commanders themselves more likely.

Finally, Congress should at long last establish

an independent, bipartisan commission to

review the scope of U.S. detention and interrogation

operations worldwide in the .war on terror..

Such a commission could investigate and identify the

systemic causes of failures that lead to torture, abuse,

and wrongful death, and chart a detailed and specific

path going forward to make sure those mistakes never

happen again. The proposal for a commission has

been endorsed by a wide range of distinguished

Americans from Republican and Democratic members

of Congress to former presidents to leaders in the U.S.

military. We urge Congress to act without further delay.

This report underscores what a growing number of

Americans have come to understand. As a distinguished

group of retired generals and admirals put it in a

September 2004 letter to the President: .Understanding what

has gone wrong and what can be done to avoid systemic

failure in the future is essential not only to ensure that those

who may be responsible are held accountable for any wrongdoing,

but also to ensure that the effectiveness of the U.S.

military and intelligence operations is

not compromised by an atmosphere of permissiveness,

ambiguity, or confusion. This is fundamentally a

command responsibility.. It is the responsibility of

American leadership.

Command.s Responsibility . 5

A Human Rights First Report

II. Homicides: Death by Torture, Abuse or Force

An American soldier told us of our father.s death. He said: .Your father died during the interrogation.

. So we thought maybe it was high blood pressure under personal stress. This would

happen in American detention centers. People would die of high blood pressure. But afterwards

the people who were imprisoned, detained with him said: .No. They would torture him and they

assigned American soldiers to him especially for the torture. He died during the torture.. . . .

Honestly, my mother, after the case, after they brought my father dead, she entered a state we

can say a coma or like a coma. She withdrew from life.

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

.war on terror,. 2 at least a third were victims of homicide

at the hands of one or more of their captors.3 At

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

death. 4 The homicides also include deaths that the

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.

Definition of a Detainee

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

force..5 For the purposes of this report, we do not include people

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

PROFILE: HOMICIDE

So then the interrogator came that used to interrogate [me] in the Baghdadi jail. . . . He told me:

.We are going to let you see your father.. Of course this was a point of relief. [Mohammed was

taken by U.S. forces to the facility where his father was held, the .Blacksmith Hotel..]. . . . They

took me to my father.s room. He was under very tight security. I looked in and I saw him. He

looked completely drained and distraught and the impacts or signs of the torture were clear on

him. His clothes were old and torn. He was really upset. When I first saw him I was overwhelmed

and had a breakdown. I started crying and I embraced him and I told him: .Don.t

worry. I am brave. I am going to be able to handle these circumstances like you taught me.. At

this instant the interrogator stormed in. He grabbed me and I tried to remain seated . . . . So he

threatened my father that if he didn.t speak he would turn me over to the men who interrogated

my father and do to me what they did to him or he would have me killed in an execution operation

. . . . So they took me to him and they said: .This is your son, we are going to execute him if

you don.t confess.. My father didn.t confess. One of them pulled me to a place where my father

couldn.t see. He pulled his gun, he took it out of the place where it was kept and he shot a fire

into the sky. And he hit me a hit so that I would cry out. So, this moment there was at the place

where I was, blood, I mean drops of blood. They [then] took [me] to the side and they brought

my father and said: .This is your son.s blood. We killed him. So, it is better for you to confess

lest this happen to the rest of your sons.. My father, when he saw the blood, he must have

thought that I had been killed. At this moment, he fell to the ground.

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

Abed Hamed Mowhoush turned himself over to U.S.

forces in Iraq on November 10, 2003,7 about a month

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

border.8 By mid-October 2003, FOB Tiger was staffed

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

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

Carson, Colorado Springs, Colorado.9 Their mission

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

company of the 3rd

ACR,10 guidelines

on how to conduct

prisoner interrogations at FOB Tiger were sparse.11

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

struggling with the basic definition of a .detainee..12

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

looking for ideas outside the box..13 In the meantime,

captured detainees were to be considered .unprivileged

Command.s Responsibility . 7

A Human Rights First Report

combatants.14 . a status that the Bush Administration

had separately suggested meant detainees were not to

be afforded the protections of the Geneva Conventions.

15 Welshofer understood this guidance to include

detainees like Mowhoush,16 a former uniformed Major

General in the Iraqi Army,17 and a soldier whom in past

conflicts the United States would have considered

presumptively under Geneva protections.18

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

Geneva protections in Iraq.19 Even as he recognized

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.

20 Welshofer testified later that the meaning of

.stress positions. had never been explained in his Army

training back in the States; 21 Welshofer was left largely

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

Iraq he ever received.22

The Interrogations

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

Baghdad.23 According to one of them, Hossam, U.S.

forces made clear to the sons in the course of interrogations

that they had been arrested for the purpose of

making sure General Mowhoush turned himself in.24

According to the son, Mowhoush arrived at the base

expecting that he would be able to set his sons free.25

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.

26 By the end of that week, though, Welshofer

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

charge.27

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

converted railroad station called the Blacksmith Hotel.28

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

influx of Iraqi prisoners anticipated from sweeps

intended to stop the growing insurgency.29 There, on

November 24, Welshofer called in interrogation

reinforcements.30 According to military documents and

trial testimony, Welshofer engaged CIA and possibly

Army Special Forces personnel . together with a

.Scorpion. team of Iraqi paramilitary forces on the CIA

payroll . to ratchet up the pressure.31 Three separate

soldiers eventually recounted what they saw and

heard.32 The new team beat Mowhoush with sledgehammer

handles;33 as one soldier testified, eight to ten

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

.beat the crap. out of him..34 Specialist Jerry Loper, a

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

were loud screams..35 After Mowhoush.s death, an

Army autopsy revealed the effects of the beatings:

Mowhoush had .massive. bruising and five broken

ribs.36

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

face if there were to fall into enemy hands.37 The

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

enemies.38 Among other things, the courses put troops

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

well.39 Internal FBI memos and press reports have

pointed to SERE training as the basis for some of the

harshest techniques authorized for use on detainees by

the Pentagon in 2002 and 2003.40 When Welshofer was

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,

Welshofer was unequivocal: .No sir..41

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

with water42 . all these, according to Welshofer and

others who later testified, drawn from the lessons of

techniques learned in SERE.43 Later that evening, Chief

Welshofer arranged for a short meeting between

Mowhoush and his youngest son, Mohammed, then 15

years old; Welshofer hoped the meeting would compel

Mowhoush to convey more useful information. 44 He

later described Mowhoush as being moved to tears

upon seeing his son.45 According to Mohammed

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

the eyesight of Mowhoush.46 Mohammed reports this

was the last time he saw his father alive.47

By November 26, Welshofer was ready to try yet

another technique . stuffing his subject into a sleeping

bag until Mowhoush was prepared to respond.48

Welshofer had already proposed the sleeping bag

technique to his Company Commander, Major Jessica

Voss, who authorized its use.49 Much later, trial

testimony would make clear that the technique had

been used on at least 12 detainees.50 It proved

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

Mowhoush.s chest and blocked his nose and mouth.51

At one point, according to Loper, Mowhoush started to

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

electrocuted..52 It was at this point Mowhoush gave out,

dying (according to the autopsy report) of asphyxia due

to smothering and chest compression.53

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

release stating that Mowhoush had died of natural

causes.54

Taking Account

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

interrogation55; and that, according to Welshofer and his

own commanding officer, Major Voss, stuffing a

detainee in a sleeping bag was widely understood to

fall within that general authorization.56 Jurors also heard

testimony, some closed to the public, of the involvement

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

Iraqi paramilitary group, the .Scorpions..57 Secret Army

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

two days earlier..58 And jurors heard Welshofer.s own

tearful testimony . that he was trying to be a loyal

soldier, and trying to do his job.59

Although he was originally charged with murder,

Welshofer was convicted of lesser charges: negligent

homicide and negligent dereliction of duty.60 That

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

restricted to his home, base, and church.61

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

a full court martial.62 Another soldier, Sgt. 1st Class

William Sommer, had his murder charge dropped as

well and may receive nonjudicial punishment.63 No

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

wrongdoing.64 Major Voss, the officer who commanded

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

in the death.65 The commander of the 3rd ACR from

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

was Colonel David A. Teeples.66 At a preliminary

hearing in Welshofer.s case, Teeples testified to his

belief that the sleeping bag technique was approved

and effective;67 Teeples was reportedly .reluctant. to

press charges against Welshofer, despite the view of

military lawyers that Welshofer should be prosecuted.68

Teeples does not appear to have been disciplined in

connection with Mowhoush.s death.

Special Forces & the CIA

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,

69 and individual detachments have investigated deaths in which Special Forces personnel played a part.70 Yet it appears that

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

the 2nd Battalion of the 5th Special Forces Group, commanders conducted their own investigation and failed to inform CID of the death.71

When CID did learn of the incident, it simply reviewed and approved the pre-existing inquiry . an inquiry that itself remains classified. 72

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

the Army has also classified the resulting report, refusing to release even a summary of its findings.73

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

problems.74 Such deaths are required to be investigated by the CIA Inspector General and, if cause exists, referred to the Department of

Justice for prosecution.75 Yet while five of the deaths in custody analyzed by Human Rights First appear to involve the CIA,76 only a

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

sought to keep closed the courts-martial of Army personnel where CIA officers may be implicated,77 and has in military autopsies classified

the circumstances of the death.78 These efforts have encumbered the investigation and prosecution of both CIA officials and military

personnel.79 Thus, for example, in the military trial of Navy SEAL Lt. Andrew Ledford, charged in connection with the death of detainee

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

water in al-Jamadi.s interrogation; questions by defense lawyers were often prohibited as a result. 80 Finally, press reports suggest, the

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

and who died of hypothermia at a CIA-run detention center in Afghanistan.81 The Department of Justice has not made the reasons for its

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

changes, including more safeguards against abuse, to CIA Director Porter Goss. 82 Eight of the 10 have been .accepted,. 83 but the

changes did not apparently prevent consideration of a proposal for handling deaths of detainees in CIA custody. According to the Washington

Post: .One proposal circulating among mid-level officers calls for rushing in a CIA pathologist to perform an autopsy and then

quickly burning the body..84

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

A Human Rights First Report

PROFILE: HOMICIDE

Abdul Jameel

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,

2004.85 He was 47 years old.86

According to Pentagon documents obtained by the

Denver Post, Jameel had been kept in isolation with his

arms chained to a pipe in the ceiling.87 During an

interrogation by Army Special Forces soldiers, he

allegedly lunged and grabbed the shirt of one soldier

and was then beaten.88 Three days later, Jameel

escaped from his cell, but was recaptured.89 During a

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

his cell door, then gagged. 90 Within five minutes, he

was dead.91 A .senior Army legal official. admitted that

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

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

his death.92

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

caused by .Blunt Force Injuries and Asphyxia.93 . a

lack of oxygen.94 The autopsy found .[t]he severe blunt

force injuries, the hanging position, and the obstruction

of the oral cavity with a gag contributed to [his] death..95

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

body.96

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

consciousness and became pulseless..97 Criminal

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

lying to investigators.98 The investigation into Jameel.s

death also examined CIA involvement.99 The Army

Special Forces Command declined to follow the

recommendations, and investigation findings of any

CIA involvement have not been publicly released.100

Upon reviewing the case, Army commanders decided

that the soldiers. actions were at all points a lawful

response to Jameel.s .misconduct..101 The reasons for

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

and also that of Iraqi Major General Abed Mowoush.102

Because the killing was found to be justified, no

disciplinary action was taken.103

PROFILE: HOMICIDE

Fashad Mohammed

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

hood..104 Although the autopsy described .multiple

minor injuries, abrasions and contusions. and .blunt

force trauma and positional asphyxia,.105 it found both

the cause of death and manner of death .undetermined.

.106

The autopsy, which was not conducted until three

weeks after Mohammed.s death,107 is a drier version of

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

CIA, in northern Iraq on or about April 2, 2004.108 The

SEALS then brought Mohammed to an Army base

outside Mosul.109 The Navy SEALS who interrogated

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

Defense for use at Guantanamo,110 and later authorized

in part by Lt. Gen. Ricardo S. Sanchez for use in Iraq.111

A Pentagon official relates that after an interrogation,

the SEALS let Mohammed sleep. He never woke up.112

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.

113 Human Rights First asked the Department

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.

PROFILE: HOMICIDE

108 Charles Graner next to

the corpse of

Manadel al-Jamadi

Asphyxia is what he died from . as in a crucifixion.

Dr. Michael Baden, Chief Forensic Pathologist, New York

State Police, giving his opinion of the cause of Manadel

al-Jamadi.s death114

Manadel al-Jamadi

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

November 4, 2003.115 The SEAL and CIA team that

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

Airport known as the .Romper Room..116 A CIA security

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

you don.t tell me the information..117 A Navy SEAL

reported that the CIA interrogator leaned into al-

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

point, causing al-Jamadi to moan in pain.118 A government

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

dying...119

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

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

120 The intelligence agents took him to the

shower room where,

military police

testified, a non-covert

CIA interrogator

(identified as Mark

Swanner by The New

Yorker) ordered them

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

his arms in pain.121 Less than one hour later, Swanner

summoned guards to re-position al-Jamadi, claiming

the detainee was not cooperating.122 When the guards

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

above his head.123 According to one of the guards,

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

released him and his arms were almost coming out of

their sockets.124 A CIA supervisor requested that al12

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

A Human Rights First Report

Jamadi.s body be held overnight and stated that he

would call Washington about the incident.125 The next

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.

.126 Al-Jamadi.s death became public during the

Abu Ghraib prisoner-abuse scandal, after photographs

of prison guards giving the thumbs-up over his body

were released.127

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

death.128 The ICRC delivered the body to Baghdad.s

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

death by autopsy.129 An autopsy conducted by the U.S.

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

the cause of death was .Blunt Force Injuries Complicated

by Compromised Respiration..130 The autopsy

report noted al-Jamadi had six broken ribs and a

gunshot wound to the spleen.131 A medical examiner

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

Ghraib.132 According to Dr. Michael Baden, New York

State police chief forensic pathologist, .asphyxia is

what he died from . as in a crucifixion..133 Dr. Edmund

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

properly..134

During a later court martial proceeding, one Navy SEAL

testified that he and his fellow SEALS were not trained

to deal with Iraqi prisoners.135 Although Navy lawyers

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.

.136

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

accused by Navy prosecutors of being involved in al-

Jamadi.s death,137 nine were given nonjudicial punishment.

138 In contrast to a general court martial, which is a

criminal felony conviction, nonjudicial or administrative

punishment is usually imposed by an accused.s

commanding officer for minor disciplinary offenses, and

does not include significant jail time.139 The only person

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,

and conduct unbecoming an officer.140 At court-martial,

Ledford was acquitted of all charges.141 The decision

whether to prosecute CIA personnel for possible

wrongdoing is pending,142 but government officials have

indicated that charges are unlikely to be brought.143 The

interrogator, Mark Swanner, continues to work for the

CIA.144 To date, no U.S. official has been punished

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.

PROFILE: HOMICIDE

Nagem Sadoon Hatab

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

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

close to Nasiriyah.145 Soon after his arrival at the camp

in June 2003, a number of Marines beat Hatab,146

including allegedly .karate-kicking. him while he stood

handcuffed and hooded.147 A day later, Hatab reportedly

developed severe diarrhea, and was covered in

feces.148 Once U.S. forces discovered his condition,

Hatab was stripped and examined by a medic, who

thought that Hatab might be faking sickness.149 At the

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

sweat and his own feces, slid over the sand.151 Hatab

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

midnight. 152 A U.S. Army medical examiner.s autopsy of

Hatab found that he had died of strangulation . a victim

of homicide.153 The autopsy also found that six of

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

and knees covered with bruises.154

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

after..155 Most were reservists and according to Major

Vickers. testimony, the Marines, members of the 2nd

Battalion, 25th Marine Regiment, were assigned to the

guard role after Army and other Marine units refused

it.156 The base commander at the time, Major Clarke

Paulus, had been in that position for a week before

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

prison operations before taking command.157 His

predecessor, Major Vickers, added that the camp had

originally been designated a temporary holding facility,

where Marines would interrogate prisoners for a day or

two before their release or transfer.158 Instead, prisoners

were kept for longer, resulting in overcrowding and

a strain on guards.159

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

slipping from my hands so I did drop it several times..160

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

drawer before the autopsy.161 In fact, testimony at

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

were destroyed.162 Hatab.s ribcage and part of his

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.

with her assistant.163 Hatab.s hyoid bone . a U-shaped

throat bone located at the base of the tongue164 . was

never found,165 and Colonel Ingwersen testified that she

couldn.t recall whether she removed the bone from the

body during the autopsy or not.166 The bone was a key

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

case, only two were actually court-martialed.168 Major

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

duty.169 Neither was sentenced to any prison time,

however, in part because of the lax handling of the

medical evidence.170 The judge in the court martial

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

and thus could not be examined by the defense.171 The

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

being interrogated in the days before his death.172

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

in the sun.173 Sergeant Pittman was acquitted of

abusing Hatab, though he was sentenced for assaulting

other detainees.174 Charges against Lance Corporal

Christian Hernandez (who dragged Hatab by the neck),

including negligent homicide, were dropped, and the

cases against the other Marines similarly did not

proceed to trial.175 One Marine, William Roy, accepted a

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

remain unclear.176

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

A Human Rights First Report

PROFILE: HOMICIDE

Abdul Wali

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

soldiers at an Army firebase in Asadabad, Afghanistan,

after he learned they were looking for him.177 The son of

the governor of the province where the base is located

accompanied Wali and initially acted as his interpreter

during interrogation.178 According to this interpreter, the

U.S. interrogator was so aggressive in questioning Wali

that the interpreter left in disgust.179 Three days later, on

June 21, Wali was dead.180

The man who interrogated Abdul Wali was not a

soldier; David Passaro was a former Army Ranger who

had been hired as a civilian contractor by the CIA.181

Reportedly convinced that Wali had information about

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

Passaro questioned Wali on June 19 and 20.182 At each

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

Passaro beat Wali, both with his hands and with a

flashlight.183 According to prosecutors, Passaro kicked

Wali in the groin .on at least one occasion..184 Wali,

who apparently suffered from poor health, did not

survive to see a third such interrogation.185

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

possible prosecution of Passaro.186 In June 2004, a

federal grand jury in the Eastern District of North

Carolina indicted Passaro on four counts of assault.187

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

proceedings.188 According to his lawyer, Passaro.s

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

aggressive interrogation techniques.189

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.

PROFILE: HOMICIDE

Habibullah

Habibullah died on the night of December 3, 2002,

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

at the Bagram detention facility in Afghanistan.190

Habibullah was captured by an Afghan warlord and,

according to detailed reporting by the New York Times,

was brought to the Bagram detention facility on the last

day of November, 2002.191 Members of the 377th

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

escaping or resistant prisoner.192 One soldier stated that

he gave Habibullah five peroneal strikes for being

.noncompliant and combative..193

Immediately upon his arrival, Habibullah was placed in

an isolation cell and shackled to the ceiling by his

wrists.194 During one interrogation, an interrogator

allowed him to sit on the floor because his knees would

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

coughed up phlegm, soldiers laughed at his distress.195

One day later, Habibullah was found hanging from the

ceiling and unresponsive.196 One soldier thought that he

felt the almost-incapacitated prisoner spit on him; the

soldier yelled and began beating Habibullah while he

was still chained to the ceiling.197 The next time anyone

checked on Habibullah, he was dead.198

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

lungs;199 the autopsy determined the manner of death to

be homicide.200 The Army Criminal Investigation

Command looked into the death, and initially recommended

closing the case.201 According to criminal

investigators. findings it was impossible to determine

who was responsible for Habibullah.s injuries because

so many were involved.202 Investigators also failed to

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

closed.203

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

soldiers allegedly responsible.204 In October 2004,

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

police guards..205 The recommended charges ranged

from dereliction of duty to involuntary manslaughter.206

The soldiers included members of the 377th Military

Police Company and interrogators from the 519th

Military Intelligence Battalion.207

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

Habibullah and Dilawar.208 Eleven cases have been

concluded.209 Apart from demotions and some discharges,

only four of these individuals were given

sentences that included confinement, and the sentences

ranged from 60 days to five months.210 In

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

Captain Christopher M. Beiring.211

Lieutenant Colonel Thomas J. Berg, the Army judge

who oversaw the pretrial inquiry, criticized the prosecution

for not presenting sufficient evidence to support

their charges against him.212 Berg added that the

military policy company had not been adequately

trained before deployment for its mission at the Bagram

detention facility: 213 .Little of the training focused on the

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

exercises..214 As of January 2006, the trial of Sergeant

Alan J. Driver is pending.215 Notably, no soldier has yet

been charged with murder or voluntary manslaughter

for either of the deaths of Habibullah or Dilawar.216

PROFILE: HOMICIDE

Dilawar

Dilawar was the second detainee killed in a week at the

Bagram detention facility in Afghanistan.217 A 22-yearold

Afghan citizen whose case similarly became the

focus of New York Times investigative reports, Dilawar

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

was stopped and his car searched by a local Afghan

commander working with the Americans.218 Dilawar was

then taken into custody as a suspect in a rocket

attack.219 The commander of the Afghan soldiers was

later suspected of having launched the attack

himself.220

Dilawar was brought to the Bagram detention facility on

December 5, 2002.221 The 122-pound taxi driver was

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

was subjected to the same

kind of peroneal strikes that

eventually contributed to the

death of Habibullah.222

During one of the beatings

by soldiers, Dilawar cried

.Allah. when he was hit.223

According to a U.S. soldier,

U.S. military personnel found

these cries funny and hit

Dilawar repeatedly to hear

him cry out.224 Over a 24-

hour period, one soldier

estimated that Dilawar was

Dilawar

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

A Human Rights First Report

struck over 100 times by soldiers.225

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

head, leading one soldier to push his hands back up.226

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

injuries to his legs.227 At the end of the interrogation,

one of the soldiers ordered Dilawar to be chained to the

ceiling.228 During his final interrogation session on

December 10, Dilawar could not obey the orders the

interrogators gave him to stand in stress positions and

kneel.229 Dilawar died that day.230

The official autopsy, conducted three days after his

death, showed that Dilawar.s legs had suffered

.extensive muscle breakdown and grossly visible

necrosis with focal crumbling of the tissue.. 231 The

damage was .nearly circumferential,. from below the

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

to be homicide.232 Despite this conclusion, the military

initially said that Dilawar had died of natural causes.233

Criminal investigation into his death, and that of

Habibullah had been at a .virtual standstill,.234 and only

accelerated after the New York Times reported in new

detail how both men died in U.S. custody.235 The

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.

236 It was only during the subsequent

investigation . and at the individual initiative of at least

one soldier . that investigators finally took statements.

237 The statements revealed that witnesses who

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

[Dilawar] was innocent..238

The status of prosecutions of the soldiers responsible

for Dilawar.s death is described above.

PROFILE: HOMICIDE

Sajid Kadhim Bori al-Bawi

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

killed in his home in Baghdad early in the morning of

May 17, 2004.239 According to his family, U.S. and Iraqi

soldiers raided the house by crashing through the gate

in a Humvee.240 Al-Bawi.s brother, uncle, and nephew

were bound and held on their knees and the women

and children were kept in the living room while he was

interrogated in a bedroom.241 While they were waiting,

the family heard shots ring out.242 The troops left an

hour after they arrived.243 According to the family, the

troops took with them a robed and hooded man, and

told the family that they were arresting al-Bawi.244 But

when the family went into the room where he had been

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

a refrigerator and hidden under a mattress.245 He had

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

chest.246

Sajid Kadhim Bori al-Bawi.s

son holds a portrait

of his father

An administrative investigation247 into al-Bawi.s death

found the shooting to be justified.248 The military

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.

249 But the

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

he died.250 Army criminal

investigators only began their investigation a month

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

requested by the military.s Detainee Assessment Task

Force, based on a Washington Post article detailing alCommand

.s Responsibility . 17

A Human Rights First Report

Bawi.s family.s allegations.251 Despite the contradictions

between the findings of the administrative investigation

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

examiner,252 the criminal investigating agent spent a

scant four hours reviewing the findings of the administrative

investigation, did not attempt any independent

verification, and then forwarded the case for closure.253

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

spelling of al-Bawi.s name.254 The criminal probe

restated the conclusion that the killing was justified and

recommended no charges be brought.255

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

one weapon,256 and the family.s allegations that al-Bawi

was shot from two directions with two different calibers

of bullet.257

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

al-Bawi.s death.258 The family has refused the money.259

PROFILE: HOMICIDE

Obeed Hethere Radad

Obeed Hethere Radad was shot to death on September

11, 2003, in his detention cell in an American

forward operating base in Tikrit, Iraq.260 Both criminal

and administrative investigations were conducted into

his death.261 The soldier accused of the shooting,

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 wire at the entrance to his cell.262

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

offenses.263 But the investigation also determined that

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

standard operating procedures.264 The investigation

also criticized the location of weapons within the

detention facilities, and the insufficient numbers of

guards assigned to guard detainees.265 A military lawyer

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

guards received.266

Army criminal investigators were only notified of the

death after the administrative investigation concluded.

267 And before the criminal investigation was

over, Martino-Poole had sought a military discharge in

lieu of a court martial for manslaughter.268 Martino-

Poole.s commander, Major General Raymond T.

Odierno, approved the request for discharge without

waiting for criminal investigative agents to conclude

their investigation and forward their findings.269 A little

more than a week later, criminal investigators found

probable cause to charge Martino-Poole with murder.270

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

investigation would not change the outcome..271

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

light in a court martial proceeding.272

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

A Human Rights First Report

PROFILE: HOMICIDE

Mohammed Sayari

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,

Afghanistan.273 According to Army investigative records

reviewed by Human Rights First, an Army staff

sergeant from the 519th Military Intelligence Battalion

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

photographs documenting the scene.274 When he

arrived, the members of the Special Forces unit told the

sergeant they had stopped Sayari.s truck because he

had been following them.275 The soldiers ordered the

passengers traveling in Sayari.s truck to leave the area

and then, they said, they disarmed Sayari.276 According

to their later testimony, the soldiers neglected to

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

feet from him.277 When a soldier turned away for a

moment, they said, Sayari lunged for the rifle and

managed to point it at the Special Forces soldiers

before they shot him in self-defense.278

Sayari.s body was fingerprinted and turned over to his

family.279 The Military Intelligence sergeant (whose

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

photographs to the Bagram Collection Point.280 On

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

in the shooting.281 The captain then asked the sergeant

for the photographs he had taken.282 After reviewing the

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

crime-scene photographs.283 The administrative

investigation would eventually find Sayari.s shooting to

be justified.284

The following day, the sergeant contacted criminal

investigators to report .a possible war crime..285

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

Forces team.286 The sergeant told the agents that

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

them when he was shot.287 One of Sayari.s sleeves had

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

over his head when he was shot.288 When the sergeant

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

rifle at them.289 Among the photos that the Special

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

Sayari.s back. 290 The AK-47 could not be found.291

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

justice against the captain.292 Finally, they recommended

that a fifth person, a chief warrant officer, be

charged as an accessory after the fact.293

After consultation with their legal advisors, however,

commanders decided not to pursue any of the recommended

charges in a court martial.294 To date, the only

action commanders have taken in response to the

criminal investigators. recommendations is to reprimand

the captain for destroying evidence.295 The

captain was disciplined . he had inarguably destroyed

evidence . but received only a letter of reprimand.296 No

further action was taken against the soldiers.297 The

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

PROFILE: HOMICIDE

Zaidoun Hassoun

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

11 p.m. curfew time.298 Army Lieutenant Jack Saville

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

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

to jump.299 Three soldiers, Sergeant (.Sgt..) Alexis

Rincon, Specialist Terry Bowman and Sgt. Reggie

Martinez, complied with the order.300 Saville and Staff

Sgt. Tracy Perkins had earlier that night stated that

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

is going for a swim..301 Marwan surfaced and swam to

the shore.302 Zaidoun, who had proposed to his fiancée

three weeks previously and planned on starting a family

once he graduated from high school, did not.303

According to his cousin, he was sucked into the current

near an open dam gate and was unable to escape.304

Criminal charges initially filed against Saville alleged

that he had also pushed another Iraqi into the Tigris in

Balad the previous month.305

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

no proof Hassoun had drowned.306

Sgt. Irene Cintron, a criminal investigative agent

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

whole chain of command was lying to [her]..307 During

the criminal investigation into Hassoun.s death, agents

administered a polygraph test to a member of the

squad that allegedly pushed him into the river.308 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.

309 After the criminal investigation was underway,

Lt. Col. Sassaman, the battalion commander, informed

Major General Raymond Odierno, the commander of

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

fact forced Hassoun to jump into the Tigris.310 According

to the official investigative report, which Human Rights

First reviewed, the officer who conducted a subsequent

Article 32 hearing.analogous to a grand jury proceeding311

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

their soldiers on what to say

to the investigating agents.312

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

allegations were true.313

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

jealousy.314 They also maintained their belief that

Hassoun had not actually drowned as a justification for

their refusal to cooperate with investigators; Cunningham

protested that .[they] were not covering up

anything that injured anybody..315 Saville plead guilty to

a reduced charge of assault and received 45 days in

prison and Perkins was convicted of the same charge

and sentenced to six months.316 Two other soldiers,

Sergeant Reggie Martinez (originally charged with

involuntary manslaughter) and Sergeant Terry Bowman

(originally charged with assault), received non-judicial

punishment.317 The three commanders received

reprimands for obstruction of justice but were not

relieved of their command.318

 

Command.s Responsibility . 21

A Human Rights First Report

III. Death by Officially Unknown, .Natural.

or Other Causes

The autopsy findings in this 27-year-old man seem insufficient to explain his death. The fact that

they seem to have found pulmonary edema, water in the lungs, is very unusual in a man of this

age without heart disease. The available information is insufficient to explain his death. A full investigation

report that describes the circumstances preceding his death and the manner in

which the body was found shortly before any attempt at resuscitation is needed to explain the

cause of death and to rule out a homicide which seems more likely than not in a 27-year-old

man who suddenly died in captivity.

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

officially undetermined or unannounced.320 The military

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

or harsh conditions of detention.321 This chapter briefly

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.

PROFILE: UNDETERMINED CAUSE

[Bringing in an Iraqi physician to treat

detainees] would decrease the perception of

our involvement or cover-up in events similar

to this.

Department of the Army, 101st Airborne Division,

Administrative Investigation into the Death of Abu

Malik Kenami322

Abu Malik Kenami

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,

Iraq.323 According to the findings of an administrative

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

suffer from any pre-existing medical conditions.324 On

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.

325 That earned him what had become a standard

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

minutes.326

Kenami had been subjected repeatedly to .up and

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

be different.327 Following the forced workout, soldiers

flexicuffed Kenami.s hands behind his back and

covered his head with a sandbag hood.328 Kenami was

then ordered to lie down among other detainees in his

overcrowded cell; built for 30 prisoners, it housed 66.329

When a guard attempted to rouse the prisoners in the

morning, Kenami, still bound and hooded, was dead.330

The Army.s initial criminal investigation into Kenami.s

death could not determine the cause of death because

no autopsy was ever conducted.331 It was only five

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

been.332 In the words of the military police forensic

science officer who reviewed the initial criminal

investigation: .it was weak in Thoroughness and

Timeliness..333 In addition to the lack of an autopsy, the

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

were omitted from the report.334 The file .[did] not

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

deceased were not collected and reviewed..335 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

cover-up in events like these..336

According to military records made public to date, the

cause of Kenami.s death remains officially undetermined.

337 But there could be a more troubling

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

man cannot raise bound arms in defense.. 338 Based on

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

telltale bloodshot, [conjunctival hemorrhage] eyes.. 339

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

the case.340

PROFILE: UNKNOWN CAUSE

Dilar Dababa

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

chair during interrogation.341 Military investigation

documents cite an autopsy finding that Dababa died

from a .hard, fast blow to the head..342 The Armed

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

forehead hit the ground..343 Twelve hours later, he was

dead.344

The medical examiner.s autopsy lists the cause of

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

Cortical Brain Contusion and Subdural Hematoma..345

The autopsy describes a litany of injuries in technical

detail, and makes clear that Dababa was subjected to

physical violence.346 Dababa.s body was covered with

at least 22 bruises,347 and at least 50 abrasions.348 His

head and neck suffering the most significant abuse,

resulting in hemorrhaging throughout his brain.349 He

also had a fractured rib.350 A military official stated in

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

responsible for the death.351 The military has not

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

PROFILE: UNDETERMINED CAUSE

Hadi Abdul Hussain Hasson

al-Zubaidy (Hasson)

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

time between April and September 2003.352 His death

went officially unnoticed until nearly a year after it

happened, 353 when Army investigators conducted a

review of all detainee deaths following the public Abu

Ghraib scandal.354 Despite later attempts to determine

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

hospital ship.355

In the end, investigators closed the Hasson case

without being able to determine whether his death was

due to natural causes or homicide.356 The investigators.

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

circumstances of death..357 A U.S. Mortuary Affairs

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

unknown John Doe..358

PROFILE: NATURAL CAUSE

Nasef Ibrahim

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

natural causes.359 Army

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

guards.360 After the special agent in charge determined

that pursuing the case further would be of little value,

and that remaining leads were not significant, the

criminal investigation was closed.361

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

death..362 Ibrahim.s son, who was with him when he

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

father suffered extensive abuse. 363 The son alleges that

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

hours.364

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

investigation has not yet received the final autopsy

report..365 The May review asked that a .supplemental

ROI..an additional report of investigation.be

submitted as soon as the final autopsy was received.366

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

PROFILE: NATURAL CAUSE

Abed Mohammed Najem

Evidentiary failures pervaded the investigation into the

death of Abed Mohammed Najem, who died at Abu

Ghraib in August 2003. 367 According to accounts in an

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

medication;368 on August 8, Najem took a double dose

of his prescription, which appears to have precipitated

a fatal heart attack.369 The official criminal investigation

found Najem died of .natural causes..370 But the true

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

condition; and no copies of autopsy reports. 371

PROFILE: UNKNOWN CAUSE

Jassim Al-Obodi

The evidence collected in the investigation into the

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

fragmentary.372 Al-Obodi, a 38-year-old Iraqi male,

collapsed in Camp Cropper in Iraq, and criminal

investigation interviews of other detainees indicate he

had .not been feeling well. earlier in the day.373 But no

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,

but he apparently failed to request the results.374 When

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.

375 The investigation results state that it .failed to

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

released.376 In a note in the file, the supervisor warned

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

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

being thorough..377

PROFILE: UNDETERMINED CAUSE

Mohammad Munim al-Izmerly

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;

his family was allowed to visit him once. 378 Within a few

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

dead.379 The only autopsy ever performed on the body

was conducted by the Director of Baghdad Hospital.s

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

request of al-Izmerly.s family. 380 Dr. Baker found that al-

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

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

trauma. 381 According to Dr. Baker, al-Izmerly .died from

a massive blow to the head..382

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

his body was released.383 Al-Izmerly.s family only

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

compression.s cause. 384 An initial, inconclusive

investigation into the case only appears to have been

reopened after press accounts of al-Izmerly.s death.385

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

released and no U.S. autopsy was performed.386

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

U.S. personnel.387 The re-opened investigation into al-

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

have been brought.388 Human Rights First asked the

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

Death by Heart Attacks or Other Natural Causes

Many prisoners suffered .natural. deaths from heart attacks or atherosclerotic cardiovascular disease. None of the forensic investigation of

these .heart attacks. explores the possibility that these men died of stress-induced heart attacks. Threats, beatings, fear, police interrogation,

and arrests are known to cause .homicide by heart attack. or life-threatening heart failure. People with pre-existing heart disease,

dehydration, hyperthermia, or exhaustion are especially susceptible.

Dr. Steven Miles, Professor and Bioethicist, University of Minnesota Medical School389

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

determined to be part or all of the cause of death.390 A number of the victims were surprisingly young: the youngest detainee alleged to

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

.operationally insufficient and administratively insufficient..391 The reviewers noted that .[t]hough U.S. Army medical personnel alleged

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

records or conduct interviews to substantiate the information..392

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

investigation attributed the death of Nasef Jasem Ibrahim to a compression of the heart often associated with heart attacks.393 Army

investigators closed the case finding .[f]urther investigation would be little or no value..394 But Ibrahim.s son, who was with Ibrahim in

detention, was not interviewed as part of the investigation into Ibrahim.s death.395 The family has since alleged in a lawsuit that Ibrahim

died as a result of abusive detention conditions.396

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

was only available to detainees to prevent loss of life, limb, or eyesight,. which conflicted with the governing Army regulation.397 The Army

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

different levels care..398 Similar confusion over novel detainee classifications detached from the Geneva Conventions was a contributing

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

PROFILE: UNKNOWN CAUSE

Sher Mohammed Khan

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,

Afghanistan.399 Khan was

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

stopped breathing.400

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

snake-bite story were reported in the press.401 Adding to

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

was bruised when they picked it up from the Salerno

base,402 and alleges that he appeared to have been

beaten in custody.403

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

report.404 An Army criminal investigation has reportedly

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

released.405 No disciplinary action has been taken.406

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.

PROFILE: UNKOWN CAUSE

Jamal Naseer

Jamal Naseer was an 18-

year-old Afghan soldier who

died in the custody of U.S.

Special Forces soldiers in

March 2003.407 An investigation

into his case, begun

some nine months after his

death, had been closed due

to a lack of leads.408 It was

reopened when a Los

Angeles Times journalist

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

detailed investigation into the death.409

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

military commanders.410 The governor labeled Naseer.s

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

suffering torture and serious abuse.411 Details of what

was done to Naseer are scarce, but seven Afghan

soldiers detained with him attest to an extended period

of interrogation and abuse.412 According to the soldiers,

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

detainees held by U.S. forces in Gardez).413 They were

immersed in cold water and exposed to the winter

weather, sometimes being forced to lie in the snow.414

Some say they were electrocuted.415 On a particularly

cold day in March, Naseer collapsed and died.416

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

on local authorities to transfer the body to his family

rather than doing so themselves.417 Afghan police

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

their rifle butts.418 Neither U.S. personnel nor the local

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

that they would be beaten again by the police..419 It

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

at the Gardez facility.420

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

witnesses.421 Record-keeping remained a problem even

after the Los Angeles Times journalist uncovered many

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

witnesses.422 Army criminal investigators reportedly

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

board..423 The criminal investigation remains ongoing;

no charges have been announced. 424 Human Rights

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

IV. Failures in Investigation

[T]he President has been pretty clear on that, that while we have to do . . . what is necessary to

defend the country against terrorists attacks and to win the war on terror, the President has

been very clear that we.re going to do that in a way that is consistent with our values. And that

is why he.s been very clear that the United States will not torture. The United States will conduct

its activities in compliance with law and international obligations . . . . And to the extent people

do not meet up, measure up to those principles, there will be accountability and responsibility.

National Security Advisor Stephen Hadley

Remarks at Press Briefing, November 2, 2005425

There is an old Army aphorism: the unit does what the commander checks . . . . If rigorous adherence

to humane treatment had been deemed important, someone wearing stars would have

required a thorough, impartial investigation of every death of a detainee.

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

torture and abuse in U.S. custody was at its worst.426

Commanders failed to convey that detainee deaths

were to be taken seriously.427 Detainee death investigations

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.

custody.428

30 . IV. Failures In Investigation

A Human Rights First Report

How An Investigation Should Work

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

investigation command of the service that held the detainee.429 The Army may conduct two types of investigations in a case involving a

detainee death. The first is the mandatory criminal investigation by the Army Criminal Investigation Division.430 The criminal investigation is

governed by a detailed set of regulations,431 including rules on how evidence must be gathered and maintained: victims and eyewitnesses

should be interviewed within 24 hours of the event, evidence collected within a single duty day,432 and requests for lab-work and coordination

with other branches or agencies should be sent out within five duty days.433 Army commanders in the field also have the discretion to order an

administrative investigation governed by its own set of regulations.434 An administrative investigation may be conducted before, during, or

after, any other investigation, including a criminal one.435 Thus, while a criminal investigation is absolutely required into any death in

custody,436 it is not uncommon to see an administrative investigation into that death also. The rules of evidence applicable to trials or other

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

and advice on both criminal and administrative investigations.437 Military commanders have the discretion to determine whether and how an

offender should be charged after an investigation, criminal or administrative, has taken place.438 Commanders. options include taking no

action, initiating non-judicial action (which can range from counseling to a reprimand to correctional custody to discharge),439 and referring the

case for court martial.440 Punishment by court martial can, depending on the crime, include punitive discharges and confinement, including in

certain types of murder cases, life imprisonment or death.441

No Evidence for the Prosecution

I would have directed the death of any detainee to be thoroughly investigated. Any poor medical

care should have been thoroughly investigated. The absence of autopsies, body parts, and evidence

is really just astonishing.

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

is also the most important . testimonial evidence..443 If

evidence is missing or mishandled, it becomes useless

in any subsequent judicial proceeding.444 Of critical

importance is the autopsy, which was not required until

after the revelations of Abu Ghraib, when the Defense

Department clarified policies for handling detainee

deaths.445

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

new information.446 But in others, deaths that appear to

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

body organs, or weapons used.447 The result of many

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

continents;448 and a neck bone was never found. Partly

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

charged in his death were never court-martialed, and

others had their charges reduced or were acquitted.449

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

he was cuffed and hooded in a crowded cell.450

Criminal investigators also failed to interview key

witnesses, including detainees, other interrogators and

medics who treated Kenami.451 As a consequence, no

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

of the death.452 For example, in the case of

Nasef Ibrahim, the failure to interview the decedent.s

son, who was with his father at his death, 453 meant that

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

witnesses to a death allegedly due to hunger strike.454

No Reporting, Underreporting,

and Delayed Reporting of Deaths

in Custody

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

statements.455 The Army.s own Legal Guide for

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

repairing damaged property or moving evidence..456

For this reason, Army regulations require commanders

to report the deaths of detainees in their custody within

24 hours of the incident.457

The standards governing command behavior in

response to a death in custody are particularly

stringent. Commanders are required to report criminal

incidents458 and cooperate in any ensuing investigation;

459 they may release .accurate and timely.

information to the public,460 but may not release

information .concerning ongoing [criminal] investigations.

.461 Once an investigation is completed, the

commander must review the case and, in consultation

with military lawyers, determine what disciplinary

action to take.462 While a criminal investigation is

ongoing, a commander may not take actions that could

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

to reach an unbiased result.463 Indeed: .Commanders

are prohibited from interfering with the investigations or

impeding the use of investigative techniques..464

The Impact of Public Attention

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

death cases, in Iraq and Afghanistan, which were then on file.465

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,

seven include notes from this operational review.466 Army

reviewers found two of the original investigations to be adequate,

but identified flaws in the others.467 The reviewers also

found eight investigations to be incomplete because autopsy

reports had not been included in the original investigation

reports.468 It was only after these files were reviewed in May

2004 that autopsy reports were sent for eight deaths that had

occurred as far back as August of 2003.469 In July 2004, investigators

at the Army Criminal Investigation Division headquarters

also reviewed rosters of prison deaths, and discovered what

appeared to be four previously unreported deaths.470 They

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

which had occurred in 2003471 and the other in April 2004.472

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

of a detainee.473 Delays in reporting of incidents of

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

First identified).474 Our examples include:

• The death of an unnamed Afghan, killed while

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

opened only in September 2004,475 over one and a

half years after the death occurred.

• The death of Hamza Byaty in Iraq on August 7,

2003 was not reported until over two weeks after it

occurred.476 Army criminal investigators had difficulty

finding witnesses,477 and perhaps as a result

of this delay, the autopsy could only find that he

had died of an .undetermined atraumatic cause..478

• Army criminal investigators were not informed of

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

conduct an autopsy.479

• Four deaths that occurred during riots at Abu

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

prison.480

• Hadi Abdul Hussain Hasson al-Zubaidy (Hasson)

died in at Camp Bucca in Iraq in the middle of

2003, but Army investigators did not learn of Hasson

.s death until a year after it occurred.481 The

resulting investigation could not determine a cause

of death or any other information about circumstances.

Criminal Investigations

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

felony crimes that involve Army personnel and that carry a

maximum punishment of one or more years of confinement.482

CID agents.approximately 2000 soldiers and civilians and

900 special agents483. are deployed worldwide and are

concentrated in combat zones. 484 For every investigation, CID

agents are required to maintain detailed records of their

investigation plans and the outcomes of any investigation.485

The final investigation report includes the findings of the

agents,486 pending leads,487 chronological summaries of the

investigative proceedings,488 and any other relevant documents

(such as medical reports or crime lab results).489 Drafts

are reviewed by a Special Agent in Charge490 and, once

completed, the official report is forwarded to the local JAG

unit for legal review, including whether the facts warrant

prosecution and the charges that may be brought.491 After the

legal review, the final report is forwarded to CID Headquarters

at Fort Belvoir, Virginia,492 where the case is reviewed again

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

closed.493 Based on the report of the investigating CID agent,

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

is at the discretion of the unit.s commanders.494

Overlapping Investigations

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

detention and internment operations of the 800th

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

thoroughness.495

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

accountability for unlawful acts. 496 In one case, a

subsequent criminal investigator simply served to

Command.s Responsibility . 33

A Human Rights First Report

.rubber stamp. a prior administrative investigation.497 In

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

criminal offense was limited.498

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

investigation.499

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

soldier then fired his pistol five times in self-defense.500

Public statements about the killing made by the military

were consistent with these findings.501 But subsequent

articles in the Washington Post and the Boston Globe

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

forces.502 These articles were in the criminal investigation

file;503 despite this, the criminal investigating agent

spent an hour and a half reviewing the administrative

investigation, and did not attempt any independent

verification before requesting approval from his unit.s

Staff Judge Advocate to close the case.504 The criminal

investigators concurred in the administrative investigation

.s finding that the killing was in self-defense.505

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

administrative investigation into the detainee.s death.506

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

autopsy.507 None of the leads was followed and the

criminal investigating agent, the Special Agent in

Charge, and the Staff Judge Advocate concluded the

administrative investigation adequately supported a

finding of justifiable homicide.508

Administrative Investigations

Administrative investigations, or so-called .Army Regulation

15-6 investigations,. are standard procedures for administrative

fact-finding in the Army509 and .may be used as a general

guide for investigations.510 into anything from a series of

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

custody.511 At its inception, the appointing commander

designates whether the administrative investigation will be

formal or informal,512 and assigns an investigating officer who

need not be a professional investigator or lawyer.513 Procedural

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

proceedings required).514 On completion, the report of an

administrative investigation must be submitted to the appointing

commander.s JAG officer for legal review,515 then

provided to the appointing commander, who determines what

action, if any, should be brought.516 In making that determination,

the appointing commander is .neither bound nor limited

by the findings or recommendations of an investigation..517

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

commander who initiated the investigation.518

Inadequate Record Keeping

One of the fundamental tenets of the laws of war is

that full and adequate records regarding the capture

and treatment of detainees must be kept;519 a host of

Department of Defense and Army regulations codify

this requirement.520 Yet in more than a dozen cases,

these regulations were not followed, and investigations

into most of these detainee deaths appear to have

been undermined as a result.521

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

natural causes because of pre-existing conditions,522 at

least five case files do not include records documenting

these conditions.523 In some instances, this appears

to have been an administrative oversight by criminal

investigators who may not have requested records.524

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

of a medical screening . . . in his file..525 This was

also certainly the case in the deaths of at least two

.ghost. detainees526 killed in American custody .

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

them.527 It was also at times a matter of policy. For

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

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

to detainees.528 The administrative officer who investigated

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

world..529

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

impossible.530 Without basic records, there was no

basis in either of these cases to determine or substantiate

the cause of death, let alone seek any

accountability for it.

Medical Records

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

Field Medical Cards . . . only..531 Further, .[m]edical care,

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

neither consistently documented nor consistently included in

detainee medical records..532 Notable among omissions from

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

detainee.s medical records..533 Even if those policies existed,

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

receiving training on detainee medical records..534

Command.s Responsibility . 35

A Human Rights First Report

V. Failure of Accountability

Command is a sacred trust. The legal and moral responsibilities of commanders exceed those

of any other leader of similar position or authority. . . .Our society and the institution look to

commanders to make sure that missions succeed, that people receive the proper training and

care, that values survive. On the one hand, the nation grants commanders special authority to

be good stewards of its most precious resources: freedom and people. On the other hand,

those citizens serving in the Army also trust their commanders to lead them well.

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

surveyed in this report,535 investigators recommended

criminal charges in fewer than two thirds,536 and

charges were actually brought in less than half.537 In the

end, we know of only 12 detainee deaths that have

resulted in punishment of any kind for any individual.538

The punishments in eight of the 12 cases appear

strikingly lenient.539 Critically, only half of the cases of

detainees tortured to death have resulted in punishment;

the steepest sentence for anyone implicated in a

torture-related death has been five months in jail.540

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.

The Role 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

raised as an issue in at least four detainees. deaths.541

For example:

• In court martial proceedings against Chief Warrant

Officer Lewis Welshofer, for the murder of Iraqi

detainee General Abed Hamed Mowhoush, Welshofer

claimed that he was .not at all. trained for

the interrogation of captured detainees.542 He understood

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

military official in Iraq at the time.543 In that

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.

544 That memorandum was the only intheater

guidance Welshofer testified he received.545

The use of the sleeping bag technique was also

authorized by Welshofer.s Company Commander,

Major Jessica Voss.546 Welshofer was charged with

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

for 60 days.547 Voss was not criminally charged.

• Lieutenant Colonel Thomas J. Berg, the Army

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

Christopher M. Beiring.548

• An administrative investigation into the death of

Iraqi Obeed Hethere Radad, shot to death in his

detention cell by Army Specialist Juba Martino-

Poole, found that Martino-Poole violated the

Army.s use of force policy.549 The investigation also

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

at the base.550 Martino-Poole was discharged

by his commander before a criminal investigation

could be completed; the investigation ultimately

found probable cause to charge him with murder.551

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

Afghan detainee.552 The government alleges that in the

two days before Wali died, Passaro beat Wali with his

fists and a flashlight.553 As of February 2006, the case is

proceeding toward trial.

Of all Deaths, Only 12 Have Resulted in Punishment

Punishment

& Defense

Deaths involving

torture (four)554

Deaths

not involving

torture (eight)555

People charged with any

offense related to these

deaths556

28557 25558

People who received

any kind of punishment

20559 15560

Highest rank punished

for a death

Major561 Major562

Convictions with jail time 4563 6564

Defendants asserting at

court-martial their lack of

training or that actions

were authorized as a

defense.

6565 1566

Highest punishment 5 months in prison

and a bad-conduct

discharge567

25 years

in prison568

Lowest punishment Reprimand569 Reprimand 570

Who was charged? Deaths involving

torture

Deaths not

involving torture

Officers charged 6571 9572

Officers punished 5 573 6574

Enlisted personnel

charged

21575 16576

Enlisted personnel

punished

15577 9578

Civilian contractors

charged

1579 0

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.

• In the case of Mohammed Sayari, an Afghan

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

four.580 Among these, investigators recommended a

captain be charged with murder, conspiracy, dereliction

of duty, and obstruction of justice (likely

because the captain ordered a subordinate to destroy

evidence).581 Criminal investigators also

recommended that a fifth, a chief warrant officer,

be charged as an accessory after the fact.582 Yet

the commander of the 2/3 Special Forces Group,

based in Fort Bragg, decided not to pursue any of

the recommended charges in a court martial.583

Instead, the captain was given only received a written

reprimand for destruction of evidence; charges

against other Special Forces soldiers were

dropped.584 The reasoning behind the commander.s

decisions is unknown.

• After their subordinates ordered two Iraqis to jump

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

Zaidoun Hassoun, three Army commanders failed

to inform criminal investigators of the incident.585

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,

586 and they .coach[ed]. their soldiers on

what to say to investigators.587 The three later obtained

grants of immunity from prosecution, and

admitted at their subordinates. trial that their subordinates

had forced Hassoun to jump into the

Tigris.588 Sassaman, Cunningham and Gwinner

received reprimands for obstruction of justice but

were not relieved of their command.589 Four of their

subordinates were charged in connection with

Hassoun.s death, two were acquitted of manslaughter

but received punishment for assault,590

and two others received non-judicial punishment,

details of which have not been disclosed.591 The

highest punishment any of the four junior soldiers

received was six months imprisonment, reduction

in rank, and a fine of $2,004.592

• By the time criminal investigators completed their

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

already given Martino-Poole a discharge.593

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

case following World War II.594 Commanders are liable

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

subordinates. conduct.595

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.

• Only 28% of the individuals charged in connection

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.

• The highest ranking officer to be held responsible

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

time.596 Major Jessica Voss received a reprimand

for her failure to provide adequate supervision in

the death of Iraqi General Mowhoush; she was not

charged in the death.597

• Lt. Col. Nathan Sassaman, Captain Matthew

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

justice.598

38 . V. Failures of Accountability

A Human Rights First Report

• Captain Carolyn Wood was the commander in

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

meritorious service..599 She was subsequently assigned

to the Army.s Intelligence Center in Fort

Huachuca, Arizona.600 Human Rights First sought

to verify whether Captain Wood was an instructor

for new interrogators but was told by a Fort Huachuca

representative that the information could not

be disclosed.601

• No action has been taken to discipline or otherwise

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

Jameel, died of abuse.602

• Lt. Gen. Ricardo S. Sanchez, U.S. Army Commander

of the Coalition Joint Task Force in Iraq in

2003 and 2004, who authorized the use of sleep

and environmental manipulation, aggressive dogs,

and stress positions against detainees,603 was promoted

to head the Army.s V Corps in Europe.604

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

the death of Iraqi General Mowhoush.605 General

Sanchez recently indicated plans to retire early.606

• In 2005, three members of the 82nd Airborne

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,

during their deployment.607 Major General Charles

H. Swannack, Commander of the 82nd Airborne,

has not been held accountable for the acts of his

subordinates. 608

Failures of Investigation and Evidence

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,

609 more have led to no punishment at all, or to

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:

• In the death of Hatab, key evidence (the detainee.s

body) was destroyed, and partly as a result,

charges of negligent homicide against a soldier

could not be supported and were reduced to assault

and battery.610

• In a prosecution against an officer for the deaths of

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

dismissed.611

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

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

a massive blow to the head.612 The investigation

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

attention, and, two years since his death, remains

pending.613

• The Army autopsy of the death of Dilar Dababa,

reviewed by Human Rights First, describes a number

of injuries in detail, indicating he was the

recipient of numerous beatings.614 Dababa.s body

was covered with at least 22 bruises,615 and at least

50 abrasions,616 with his head and neck suffering

the most significant harm, resulting in hemorrhaging

throughout his brain.617 Dababa died in June

2003. Since then, there has been no documentation

of the outcome of the investigation into his

death or of charges being brought against those

responsible.618

• Fashad Mohammed died in April 2004.619 According

to the Army Medical Examiner.s autopsy report,

.he was hooded, sleep deprived, and subjected to

hot and cold environmental conditions, including

the use of cold water on his body and hood.. 620 The

report found multiple abrasions and contusions,621

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

factor.622 It does not appear that any

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

not been publicly disclosed.623

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

VI. The Path Ahead

I was part of a three-man Army JAG officer team sent by the Judge Advocate General’s School

in Charlottesville, at the time of the Vietnam War, to lecture on our obligations under the Geneva

Conventions. The interest shown in Geneva.s requirements by our toughest fighters, and

their perceptive questions, was a revelation to me. That is because they wanted to know that

they were doing the right thing. I am sure that our fighting men and women still do . . . . If we do

not yet understand what has been lost by disregarding these rules, at least it is beginning to

permeate the collective understanding that by failing to live up to them we are placing our own

people in constant danger of retaliation. At the same time, of course, we are helping a determined

enemy to recruit more volunteers against us.

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.

• The President should move immediately to fully

implement the ban on cruel, inhuman and degrading

treatment passed overwhelmingly by the U.S.

Congress and signed into law on December 30,

2005. Full implementation requires first and foremost

that the President clarify his commitment to

abide by the ban.

• The President should 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 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.

• The Defense Department, CIA and other relevant

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.

• The Defense Department, CIA and other relevant

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.

• The Departments of Defense and Justice should

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.

• The U.S. military should make good on the

obligation of command responsibility by developing,

in consultation with congressional, military

justice, human rights, and other advisors, a public

plan for holding all those who engage in wrongdoing

accountable. Such a plan 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.

• Congress should implement a check on officer

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.

• Congress should at long last establish an independent,

bipartisan commission to review the

scope of U.S. detention and interrogation operations

worldwide in the .war on terror.. Such a

commission could investigate and identify the systemic

causes of failures that lead to torture, abuse,

and wrongful death, and chart a detailed and specific

path 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

VII. Appendices

Appendix A

The Numbers

Visual breakdown of Human Rights First.s findings.

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

dic.pdf

Appendix B

Secretary Rumsfeld authorizes coercive

interrogation techniques

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

the December 2, 2002 authorization and list of techniques. The

handwritten notation by Secretary Rumsfeld, on the first page,

reads: .However, I stand for 8-10 hours a day. Why is standing

limited to 4 hours?.

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

120202.pdf

Appendix C

General Sanchez authorizes harsh interrogation

techniques, including stress positions

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:

General Sanchez authorized harsh techniques even as he

recognized that other countries might view them as inconsistent

with the Geneva Conventions.

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

sanchez-memo.pdf

44 — VII. Appendices: Summary

A Human Rights First Report

Appendix D

Junior officer claims use of .sleeping bag technique.

that caused detainee death was authorized stress

position

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

reprimand. The handwritten notation at the top, from his

superior officer, General Swannack, reads: .Death was from

asphyxiation! I expect better adherence to standards

in the future!.

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

pdf

Appendix E

Record keeping failure means cause of death

may never be known

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:

.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 unknown John Doe..

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

pdf

Appendix F

Army recommendation to lessen perception

of cover up

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.

The second is an excerpt from the Army.s administrative

investigation, which recommends that an Iraqi physician be

brought in to treat detainees because, among other benefits,

.[i]t would [also] decrease the perception of our involvement

or cover-up in events like these..

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

pdf

Command.s Responsibility . 45

A Human Rights First Report

Appendix G

No criminal investigation: shooting death of allegedly

elderly and disabled man

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

attach medical records to support their assertion that the father

.was [a] physically disabled retired old man, walking only

through the aid of crutches due [to] peripheral neuropathy and

muscular atrophy caused by long standing disease of Diabetes

Mellitus and hypertension . . ..

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

pdf

Appendix H

List of Human Rights First Freedom of Information Act

Requests

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

Appendix A . G (pages 47 . 98) are available online and in the printed version.

 

Command.s Responsibility . 99

A Human Rights First Report

Appendix H

Human Rights First.s Freedom of Information Act Requests Relating to Deaths in Custody

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

17th, 2004, in Baghdad, Iraq.

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.

9. July 21, 2005, Request to the 4th Infantry Division

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

100 — VII. Appendix H

A Human Rights First Report

occurring outside the territorial United States and

involving bodily injury or death.

14. July 22, 2005, Request to the 301st Military Police

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.

16. July 22, 2005, Request to the 4th Infantry 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 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.

17. July 22, 2005, Request to the 4th Infantry 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 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

VIII. Endnotes

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).

2 The total number of deaths in custody analyzed by Human Rights First is 98. See research compilation 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

house detainees in areas of active danger . they were not a function of interrogation or detention policy or practice. See FINAL REPORT

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.

Dep.t of the Army, Criminal Investigation Division, Frequently Asked Questions, http://www.cid.army.mil/faqs.htm (accessed Feb. 3,

2006) (citing to Title 18, U.S. Code definition of .Murder. as .the unlawful killing of a human being with malice aforethought..). See DIC

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.

4 See 18 U.S.C. §2340 (1998) (..torture. means an act committed by a person acting under the color of law specifically intended to inflict

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

custody or physical control.). See DIC Table: The detainees tortured to death are: Habibullah; Dilawar; Naseer; Abdul Wali; Unknown 1

(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.

104 — VIII. Endnotes

A Human Rights First Report

5 Dep.t of the Army, CID, CID Report of Investigation . Initial/Final SSI . 0037-04-CID201-54050 (Nov. 16, 2004), available at

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).

7 Josh White, Documents Tell of Brutal Improvisation by GIs, WASH. POST, Aug. 3, 2005, at A1 [hereinafter White, Brutal Improvisation].

8 Monte Morin and Alissa Rubin, Abuse Suspected in Iraqi General.s Death, L.A. TIMES, May 23, 2004, at A9; GlobalSecurity.org, Iraq

Facilities, FOB Tiger, Al Qaim, available at http://www.globalsecurity.org/military/world/iraq/al-qaim.htm (accessed Feb. 3, 2006).

9 GlobalSecurity.org, Iraq Facilities, FOB Tiger, Al Qaim, available at http://www.globalsecurity.org/military/world/iraq/al-qaim.htm

(accessed Feb. 3, 2006).

10 Human Rights First notes from observation of Welshofer court martial, Day Four, Jan. 20, 2006, available at

http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006); Eric Schmitt, Army Interrogator Is

Convicted of Negligent Homicide in 2003 Death of Iraqi General, N.Y. TIMES, Jan. 23, 2006, at A16.

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

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

12 Id.

13 Id.; Josh White, U.S. Army Officer Convicted in Death Of Iraqi Detainee, WASH. POST, Jan. 23, 2006, at A2.

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

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

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

Release, Briefing on Geneva Convention, EPW.s and War Crimes, (Apr. 7, 2003), available at,

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

Richard Myers (Jan. 11, 2002), available at http://www.defenselink.mil/transcripts/2002/t01112002_t0111sd.html (accessed Feb. 3, 2005);

See also Human Rights First, ENDING SECRET DETENTIONS, (June 2004) at 11.12, available at

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,

The Inspector General, DETAINEE OPERATIONS INSPECTION (July 21, 2004) at 76, available at

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

15-6 INVESTIGATION OF INTELLIGENCE ACTIVITIES AT ABU GHRAIB, Aug. 2004, at 11-12, available at http://www4.army.mil/ocpa/reports/ar15-

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

capturing . other classifications of detainees, such as non-state combatants and non-compliant CIs,.); see also, Douglas Jehl & Neil

Lewis, U.S. Said to Hold More Foreigners in Iraq Fighting, N.Y. TIMES, Jan. 8, 2006, at A1.

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

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

17 Michael Howard, Ex-Iraqi general dies in US custody, THE GUARDIAN, Nov. 28, 2003, available at

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

with the laws and customs of war.); see also, Memorandum from Colin Powell for the President on the Applicability of the Geneva

Convention to the Conflict in Afghanistan (Jan. 26, 2002), available at

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

(Sept. 10, 2003), available at http://www.humanrightsfirst.info/pdf/06124-etn-sep-10-sanchez-memo.pdf (accessed Feb. 3, 2006).

20 Id.

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

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

22 Id.

23 White, Brutal Improvisation, supra note 7.

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).

25Id.

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

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

Command.s Responsibility . 105

A Human Rights First Report

27 Human Rights First notes from observation of Welshofer court martial, Day Four, Jan. 20, 2006, available at

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

28 White, Brutal Improvisation, supra note 7.

29 White, Brutal Improvisation, supra note 7.

30 White, Brutal Improvisation, supra note 7; Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own

Words, Jan. 20, 2006 (on file with Human Rights First), excerpts available at http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-

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

31 White, Brutal Improvisation, supra note 7; Arthur Kane, Guardsman: CIA Beat Iraqis with Hammer Handles, DENVER POST, July 27,

2005, at A9; Arthur Kane, Iraqi General Beaten Two Days Before Death, DENVER POST, Apr. 5, 2005, at A1; Human Rights First notes

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

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

32 The three soldiers were Sergeant Gerold Pratt (see Matthew D. LaPlante, Utah G.I. Exposed Abuses at Prison, SALT LAKE TRIB., July

31, 2005, at A1; Human Rights First notes from observation of Welshofer court martial, In Their Own Words, Jan. 19, 2006, available at

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

Williams (see Josh White, U.S. Army Officer Convicted in Death Of Iraqi Detainee, WASH. POST, Jan. 23, 2006, at A02; Human Rights

First notes from observation of Welshofer court martial, In Their Own Words, Jan. 19, 2006, excerpts available at

http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-011906d.asp (accessed Jan. 31, 2006)), and Specialist Jerry Loper (see Josh

White, U.S. Army Officer Convicted in Death Of Iraqi Detainee, WASH. POST, Jan. 23, 2006, at A2; Human Rights First notes from

observation of Welshofer court martial, Day Four, Jan. 20, 2006, available at http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-

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

33 Arthur Kane, Guardsman: CIA Beat Iraqis with Hammer Handles, DENVER POST, July 27, 2005, at A9; Arthur Kane, Iraqi General Beaten

Two Days Before Death, DENVER POST, Apr. 5, 2005, at A1.

34 Human Rights First notes from observation of Welshofer court martial, Day Two, Jan. 18, 2006, available at

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

35 Human Rights First notes from observation of Welshofer court martial, Day Four, Jan. 20, 2006, available at

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

36 Office of the Armed Forces Med. Exam.r, Autopsy Examination Report, Autopsy No. ME03-571 (Dec. 18, 2003) [Autopsy, Mowhoush],

available at http://www.aclu.org/torturefoia/released/041905/m001_203.pdf, at 93-100 (accessed Feb. 3, 2006) [hereinafter Autopsy,

Mowhoush]; Arthur Kane, Iraqi General Beaten 2 Days Before Death, DENVER POST, Apr. 5, 2005, at A1.

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

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

38 M. Gregg Bloche and Jonathan H. Marks, Doing Unto Others as They Did Unto Us, N.Y. TIMES, Nov. 14, 2005, at A21.

39 Jane Mayer, The Experiment: The military trains people to withstand interrogation. Are those methods being misused at Guantanamo?,

THE NEW YORKER, July 11, 2005, available at http://www.newyorker.com/fact/content/articles/050711fa_fact4 (accessed Feb. 7, 2006); M.

Gregg Bloche and Jonathan H. Marks, Doing Unto Others as They Did Unto Us, N.Y. TIMES, Nov. 14, 2005, at A21.

40 See, e.g., Jane Mayer, The Experiment: The military trains people to withstand interrogation. Are those methods being misused at

Guantanamo?, THE NEW YORKER, July 11, 2005, available at http://www.newyorker.com/fact/content/articles/050711fa_fact4 (accessed

Feb. 7, 2006); see also Memorandum for Commander 82nd ABN DIV, re: CW3 Welshofer, Lewis E. Rebuttal to General Letter of

Reprimand (Feb. 11, 2004), at 2, available at http://www.lchr.org/pdf/mem-dic021104.pdf (accessed Feb. 3, 2006); see also Memorandum,

Dep.t of Defense, JTF GTMO .SERE. Interrogation SOP DTD (Dec. 10, 2002), available at

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

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

42 Id.

43 Id.; Human Rights First notes from observation of Welshofer court martial, In Their Own Words, Jan. 19, 2006, available at

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

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

45 Id.

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).

47 Id.

48 White, Brutal Improvisation, supra note 7; Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own

Words, Jan. 20, 2006, (on file with Human Rights First), excerpts available at http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-

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

Letter of Reprimand (Feb. 11, 2004), available at http://www.lchr.org/pdf/mem-dic021104.pdf (accessed Feb. 3, 2006).

49 Josh White, U.S. Army Officer Convicted in Death Of Iraqi Detainee, WASH. POST, Jan. 23, 2006, at A2; Human Rights First notes from

observation of Welshofer court martial, In Their Own Words, Jan. 19, 2006, available at

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

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

106 — VIII. Endnotes

A Human Rights First Report

51 White, Brutal Improvisation, supra note 7; Arthur Kane, Iraqi General Beaten Two Days Before Death, DENVER POST, Apr. 5, 2005, at

A1; Matthew D. LaPlante, Utah G.I. Exposed Abuses at Prison, SALT LAKE TRIB., July 31, 2005, at A1; Human Rights First notes from

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

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

52 Human Rights First notes from observation of Welshofer court martial, Day Four, Jan. 20, 2006, available at

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

53 Autopsy, Mowhoush, supra note 36, at 93.100.

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

Rights First), excerpts available at http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-012006d.asp (accessed Feb. 3, 2006); Erin

Emery, Carson Soldier Takes the Stand, DENVER POST, Jan. 20, 2006, available at http://www.denverpost.com/news/ci_3419775.

56 See Human Rights First notes from observation of Welshofer court martial, In Their Own Words, Jan. 19, 2006, available at

http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-011906d.asp (accessed Feb. 3, 2006); Nicholas Riccardi, Interrogator Convicted

in Iraqi.s Death, L.A. TIMES, Jan. 22, 2006, available at http://www.latimes.com/news/printedition/la-na-interrogate22jan22,1,81943.story

(accessed Feb. 3, 2006); Josh White, U.S. Army Officer Convicted in Death Of Iraqi Detainee, WASH. POST, Jan. 23, 2006, at A2.

57 Human Rights First notes from observation of Welshofer court martial, Day Three, Jan. 19, 2006, available at

http://www.humanrightsfirst.org/us_law/etn/trial/welshofer-011906m.asp (accessed Feb. 3, 2006); Josh White, U.S. Army Officer

Convicted in Death Of Iraqi Detainee, WASH. POST, Jan. 23, 2006, at A2.

58White, Brutal Improvisation, supra note 7 (quoting Army memo dated May 10, 2004).

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

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

60 Nicholas Riccardi, Interrogator Convicted in Iraqi.s Death, L.A. TIMES, Jan. 22, 2006, available at

http://www.latimes.com/news/printedition/la-na-interrogate22jan22,1,81943.story (accessed Feb. 3, 2006); Erin Emery, Carson GI

Convicted in Death of Detainee, DENVER POST, Jan. 21, 2006, available at http://www.denverpost.com/search/ci_3426219 (accessed Feb.

3, 2006).

61 Jon Sarche, Jury Orders Reprimand, No Jail for Soldier, ASSOC, PRESS, Jan. 24, 2006, available at http://www.washingtonpost.com/wpdyn/

content/article/2006/01/24/AR2006012400177.html (accessed Jan. 27, 2006); Josh White, Army Interrogator Reprimanded in Iraqi.s

Death, WASH. POST, Jan. 24, 2006, at A2.

62 Dick Foster, Army Drops Murder Charges, ROCKY MOUNTAIN NEWS, Jan. 13, 2006, at 17A.

63 Arthur Kane, Lesser Charges Urged in Death of Iraqi, DENVER POST, May 11, 2005, at B3; Dick Foster, Army Drops Murder Charges,

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

64 Douglas Jehl and Tim Golden, C.I.A. Is Likely to Avoid Charges in Most Prisoner Deaths, N.Y. TIMES, Oct. 23, 2005, at A6; Press

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

Operation Enduring Freedom, Operation Iraqi Freedom, (Mar. 25, 2005), available at http://www.cid.army.mil/Documents/OIFOEF%

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

65 Lawyers: Army Backed Interrogation Methods, ASSOC. PRESS, Apr. 1, 2005, available at

http://www.newsmax.com/archives/articles/2005/3/31/205753.shtml (accessed Feb. 3, 2006); Arthur Kane and Miles Moffeit, U.S. General

Backed Lightest Penalty in Interrogation Death, DENVER POST, May 10, 2005, at A6.

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

available at http://www.carson.army.mil/UNITS/3RD%20ACR/main%20pages/3d%20ACR%20History.pdf (accessed Feb. 12, 2006).

67 Josh White, Documents Tell of Brutal Improvisation by GIs, WASH. POST, Aug. 3, 2005, at A1.

68 Miles Moffeit and Arthur Kane, Army charges 4 in death, DENVER POST, Oct. 5, 2004, at A1.

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).

70 Criminal Investigators Outline 27 Homicides, supra note 64 at 7.

71 See, e.g., Dep.t of the Army, CID, CID Report of Investigation-Corrected/Initial/Final/SSI-0171-04-CID259-80223-/5H6 (Aug. 7, 2004)

[Criminal Investigation, al-Bawi], available at http://www.aclu.org/torturefoia/released/4894_4927.pdf, at 2, 5, 16 (accessed Feb. 3, 2006)

[hereinafter Criminal Investigation, al-Bawi].

72 Criminal Investigation, al-Bawi, supra note 71, at 2, 8. .(S). next to the listing of the administrative investigation denotes it as .secret..

See Defense Security Service Internet Web Site, Security Related Acronyms, Abbreviations, And Basic Security Forms, (Mar. 2001), at 9,

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,

III(B)(2) (May 6, 2005), available at http://www.state.gov/g/drl/rls/45738.htm (accessed Feb. 3, 2006).

74 See DIC Table: The eight cases of deaths in which the involvement of the CIA, Special Forces and/or Navy SEALS is alleged are:

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

76 See DIC Table: These are the deaths of Unknown 1, Wali, al-Jamadi, Mowhoush, and Jameel.

77 White, Brutal Improvisation, supra note 7.

78 White, Brutal Improvisation, supra note 7.

79 Transcript from United States v. CW2 Williams, Sgt. 1st Class Sommer and Spc. Loper, Article 32 investigation, at 14-16 (in the

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

for keeping certain information secret) (Dec. 2, 2004); White, Brutal Improvisation, supra note 7 (.Determining the details of [Mowhoush.s]

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

the CIA has surfaced..); Jane Mayer, A Deadly Interrogation, THE NEW YORKER, Nov. 14, 2005, at 44 [hereinafter Mayer, A Deadly

Interrogation] (regarding death of al-Jamadi, CIA officials protested questions asked by lawyers in court-martial; individual CIA personnel

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

incorrect finding); Andrea Weigl, Passaro Says Assault Charges Political, NEWS & OBSERVER, Oct. 20, 2005, at B1 (in prosecution of CIA

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

adequate defense.).

80 Mayer, A Deadly Interrogation, supra note 79.

81 Douglas Jehl and Tim Golden, CIA Is Likely to Avoid Charges in Most Prisoner Deaths, N.Y. TIMES, Oct. 23, 2005, at A6.

82 Dana Priest, CIA Avoids Scrutiny of Detainee Treatment, WASH. POST, Mar. 3, 2005, at A1.

83 Douglas Jehl, Report Warned CIA about Interrogations, N.Y. TIMES, Nov. 9, 2005, at A1.

84 Dana Priest, Covert CIA Program Withstands New Furor, WASH. POST, Dec. 30, 2005, at A1.

85 Criminal Investigators Outline 27 Homicides, supra note 64, at 7; Douglas Jehl, Pentagon Will Not Try 17 GIs Implicated in Prisoners.

Deaths, N.Y. TIMES, Mar. 26, 2005, at A1; Intel GIs to be Charged in Death, ASSOC. PRESS, June 24, 2004, available at

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

.Jaleel..

86 Office of the Armed Forces Med. Exam.r, Final Autopsy Report, Autopsy No. ME04-14 (Apr. 30, 2004) [Autopsy, Jameel], available at

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

87 Miles Moffeit, Brutal Interrogation in Iraq, DENVER POST, May 19, 2004, at A1.

88 Id.

89 Id.

90 Id.

91 Id.

92 Douglas Jehl, Pentagon Will Not Try 17 GIs Implicated in Prisoners. Deaths, N.Y. TIMES, Mar. 26, 2005, at A1.

93 Autopsy, Jameel, supra note 86, at 108.

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

95 Autopsy, Jameel, supra note 86, at 114.

96 Autopsy, Jameel, supra note 86, at 108-114.

97 Autopsy, Jameel, supra note 86, at 114.

98 Criminal Investigators Outline 27 Homicides, supra note 64, at 7.

99 Arthur Kane and Miles Moffeit, Memos: Abuse rife in Iraq Interrogation techniques banned at Guantanamo, DENVER POST, June 27,

2004, at A25.

100 Criminal Investigators Outline 27 Homicides, supra note 64, at 7; Douglas Jehl, Pentagon Will Not Try 17 GIs Implicated in Prisoners.

Deaths, N.Y. TIMES, Mar. 26, 2005, at A1.

101 Criminal Investigators Outline 27 Homicides, supra note 64, at 7; Douglas Jehl, Pentagon Will Not Try 17 GIs Implicated in Prisoners.

Deaths, N.Y. TIMES, Mar. 26, 2005, at A1.

102 See Mowhoush case profile, supra text accompanying note 66.

103 Criminal Investigators Outline 27 Homicides, supra note 64, at 7; Douglas Jehl, Pentagon Will Not Try 17 GIs Implicated in Prisoners.

Deaths, N.Y. TIMES, Mar. 26, 2005, at A1.

104 Office of the Armed Forces Med. Exam.r, Final Autopsy Report, Autopsy No.: ME 04-309 (Nov. 22, 2004) [Autopsy, F. Mohammed],

available at http://www.defenselink.mil/pubs/foi/detainees/army_previous_releases/eighth_release/, at 96 [hereinafter Autopsy, F.

Mohammed].

105 Autopsy, F. Mohammed, supra note 104, at 96; Criminal Investigators Outline 27 Homicides, supra note 64, at 3-4.

106 Autopsy, F. Mohammed, supra note 104, at 96.

107 Office of the Armed Forces Med. Exam.r, Preliminary Autopsy Report ME 04-309 (June 23, 2004), available at

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

108 Josh White, 3 More Navy SEALs Face Abuse Charges, WASH. POST, Sept. 25, 2004, at A16.

109 Eric Schmitt, Navy Charges 3 Commandos With Beating of Prisoners, N.Y. TIMES, Sept. 24, 2004, at A7.

110 See App. A, Memorandum from William J. Haynes, II, Action Memo: Counter-Resistance Techniques (Nov. 27, 2002) (approved by

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

108 — VIII. Endnotes

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

Strategies from Lt. Col. Jerald Phifer (Oct. 11, 2002); see also Memorandum from Donald Rumsfeld to Commander, US Southern

Command, Counter-Resistance Techniques in the War on Terrorism (Apr. 16, 2003), available at

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

Force-7 interrogation policy), available at http://www.humanrightsfirst.org/us_law/etn/pdf/sanc-%20memo-091403.pdf (accessed Feb. 7,

2006).

112 Josh White, 3 More Navy SEALS Face Abuse Charges, WASH. POST, Sept. 25, 2004, at A16.

113 Eric Schmitt, Navy Charges 3 Commandos With Beating of Prisoners, N.Y. TIMES, Sept. 24, 2004, at A7.

114 Mayer, A Deadly Interrogation, supra note 79.

115 Mayer, A Deadly Interrogation, supra note 79; David S. Cloud, Navy Officer Found Not Guilty in Death of an Iraqi Prisoner, N.Y. TIMES,

May 28, 2005 at A6; Office of the Armed Forces Med. Exam.r, Final Autopsy Report, Autopsy No. ME03-504 (Jan. 9, 2004) [Autopsy, al-

Jamadi], available at http://www.aclu.org/torturefoia/released/041905/m001_203.pdf, at 85 (accessed Feb. 3, 2006) [hereinafter Autopsy,

al-Jamadi].

116 Mayer, A Deadly Interrogation, supra note 79; Seth Hettena, Navy SEAL: CIA Roughed Up Iraqi Prisoner, ASSOC. PRESS, Nov. 1, 2004,

available at http://www.phillyburbs.com/pb-dyn/news/1-11012004-393371.html (accessed Feb. 3, 2006).

117 John McChesney, All Things Considered: The Death of an Iraqi Prisoner (National Public Radio broadcast, Oct. 27, 2005) [hereinafter

McChesney, Death of an Iraqi Prisoner].

118 McChesney, Death of an Iraqi Prisoner, supra note 117.

119 McChesney, Death of an Iraqi Prisoner, supra note 117.

120 Sworn Statement of Col. Thomas Pappas, May 14, 2004, available at

http://www.aclu.org/torturefoia/released/030905/DOD616_653.pdf, at 15 (accessed Feb. 3, 2006); FAY REPORT, supra note 15, at 53 . 55,

75 . 76; see also Mayer, A Deadly Interrogation, supra note 79.

121 Mayer, A Deadly Interrogation, supra note 79; Seth Hettena, Iraqi Died While Hung From Wrists, ASSOC. PRESS, Feb. 17, 2005,

available at http://www.commondreams.org/headlines05/0217-09.htm (accessed Feb. 3, 2006) [hereinafter Hettena, Hung From Wrists] .

But see McChesney, Death of an Iraqi Prisoner, supra note 117 (reporting that one of the MP guards maintains that there was enough

slack to allow al-Jamadi to kneel).

122 Mayer, A Deadly Interrogation, supra note 79; Hettena, Hung From Wrists, supra note 121.

123 Mayer, A Deadly Interrogation, supra note 79; McChesney, Death of an Iraqi Prisoner, supra note 117; Hettena, Hung From Wrists,

supra note 121.

124 Mayer, A Deadly Interrogation, supra note 79; McChesney, Death of an Iraqi Prisoner, supra note 117; Hettena, Hung From Wrists,

supra note 121.

125 FAY REPORT, supra note 15, at 76.

126 FAY REPORT, supra note 15, at 53.

127 Mayer, A Deadly Interrogation, supra note 79; Hettena, Hung From Wrists, supra note 121.

128 Luke Harding, How Abu Ghraib Torture Victim Faces Final Indignity: An Unmarked Grave, THE GUARDIAN, June 1, 2004, at 4.

129 Id.

130 Autopsy, al-Jamadi, supra note 115, at 85.

131 Autopsy, al-Jamadi, supra note 115, at 86

132 Mayer, A Deadly Interrogation, supra note 79

133 Id.

134 McChesney, Death of an Iraqi Prisoner, supra note 117.

135 T.R. Reid, Trial Starts in Abu Ghraib Death; Navy SEAL Faces Charges; CIA Agents Not Named in Case, WASH. POST, May 25, 2005,

at A2.

136 Tony Perry, SEALs Instructed to Treat Prisoners Well, L.A. TIMES, May 26, 2005, at A29.

137 Hettena, Hung From Wrists, supra note 121; David S. Cloud, SEAL Officer Hears Charges in Court Martial in Iraqi.s Death, N.Y. TIMES,

May 25, 2005, at A8.

138 Douglas Jehl and Tim Golden, CIA is Likely to Avoid Charges in Most Prisoner Deaths, N.Y. TIMES, Oct. 23, 2005, at A6; Hettena,

Hung From Wrists, supra note 121; David S. Cloud, SEAL Officer Hears Charges in Court Martial in Iraqi.s Death, N.Y. TIMES, May 25,

2005, at A8.

139 See Dep.t of Defense, Victim and Witness Assistance, Military Justice Overview, http://www.defenselink.mil/vwac/military.html

(accessed Feb. 3, 2006); U.S. Navy Judge Advocate General, NonJudicial Punishment,

http://www.jag.navy.mil/html/NLSOGlakesNonjudicial_punishment.htm (accessed Feb. 3, 2006); Military.com, Benefits and Resources,

Legal Matters, NonJudicial Punishment, http://www.military.com/Resources/ResourcesContent/0,13964,30901--1,00.html (accessed Feb.

3, 2006).

140 David S. Cloud, Navy Officer Retracts Confession in Death of Iraqi Prisoner, N.Y. TIMES, May 27, 2005, at A18; Tony Perry, Navy

Lieutenant Denies Assaulting Iraqi Prisoner, L.A. TIMES, May 27, 2005, at A31.

Command.s Responsibility . 109

A Human Rights First Report

141 David S. Cloud, Navy Officer Found Not Guilty in Death of an Iraqi Prisoner, N.Y. TIMES, May 28, 2005, at A6; Seth Hettena, Navy

SEAL Acquitted of Abusing Iraqi Prisoner who Later Died, ASSOC. PRESS, May 28, 2005, available at

http://abcnews.go.com/US/wireStory?id=798587 (accessed Feb. 3, 2006).

142 David S. Cloud, Navy Officer Found Not Guilty in Death of an Iraqi Prisoner, N.Y. TIMES, May 28, 2005, at A6; Seth Hettena, Navy

SEAL Acquitted of Abusing Iraqi Prisoner who Later Died, ASSOC. PRESS, May 28, 2005, available at

http://abcnews.go.com/US/wireStory?id=798587 (accessed Feb. 3, 2006).

143 Douglas Jehl and Tim Golden, CIA is Likely to Avoid Charges in Most Prisoner Deaths, N.Y. TIMES, Oct. 23, 2005, at A6.

144 Mayer, A Deadly Interrogation, supra note 79.

145 Alex Roth, Marine Guilty in Death of Iraqi, SAN DIEGO UNION-TRIB., Nov. 11, 2004 at B1.

146 Office of the Armed Forces Med. Exam.r, Final Autopsy Report, Autopsy No. A03-51 (Oct. 22, 2003) [Autopsy, Hatab], available at

http://www.aclu.org/torturefoia/released/041905/m001_203.pdf, at 37 (accessed Feb. 3, 2006) [hereinafter Autopsy, Hatab]; Alex Roth,

Marine Guilty in Death of Iraqi, SAN DIEGO UNION-TRIB., Nov. 11, 2004 at B1.

147 Alex Roth, Trial Starts for Marine in Iraqi.s Jail Death; Prosecutor Paints Reservist as Rogue, SAN DIEGO UNION-TRIB., Aug. 25, 2004 at

NC-1; Alex Roth, Iraqi Prisoner Called Thug for Hussein, SAN DIEGO UNION-TRIB., Aug. 27, 2004 at NC-1. One of the accused denied

during his court martial proceedings that he had abused Hatab or any other detainee. Alex Roth, Never Abused Iraqi Prisoners, Marine

Says At Court-Martial, SAN DIEGO UNION-TRIB., Sept. 2, 2004 at NC-1.

148 Deborah Hastings, The Death of Iraqi Prisoner No. 0310337, ASSOC. PRESS, July 31, 2004, available at

http://www.dailytimes.com.pk/default.asp?page=story_2-8-2004_pg7_40 (accessed Feb. 3, 2006); David Hasemyer, Marine Says He was

Ordered to Grab Prisoner.s Neck, SAN DIEGO UNION-TRIB., Nov. 4, 2004, at B2.

149 Philip Sherwell and Colin Freeman, Iraqi Prisoner .was beaten, kicked, and left to die by Marines,. TELEGRAPH, May 23, 2004, at 24;

Jeff McDonald, Behavior of Detainee Who Died Is at Issue; Was Iraqi Ill or Just Belligerent, SAN DIEGO UNION-TRIB., Nov. 5. 2004, at NC-

1.

150 Alex Roth, Marine Guilty In Death of Iraqi, SAN DIEGO UNION-TRIB., Nov. 11, 2004, at B1; David Hasemyer, Marine Says He was

Ordered to Grab Prisoner.s Neck, SAN DIEGO UNION-TRIB., Nov. 4, 2004, at B2.

151 David Hasemyer, Marine Says He was Ordered to Grab Prisoner.s Neck, SAN DIEGO UNION-TRIB., Nov. 4, 2004, at B2.

152 Autopsy, Hatab, supra note 146, at 37 (Hatab pronounced dead at 12:30 a.m.); David Hasemyer, Marine Says He was Ordered to Grab

Prisoner.s Neck, SAN DIEGO UNION-TRIB., Nov. 4, 2004, at B2; Alex Roth, Marine Guilty in Death of Iraqi, SAN DIEGO UNION-TRIB., Nov. 11,

2004, at B1.

153 Seth Hettena, Court Martial Begins in Iraq Prison Death, ASSOC. PRESS, Nov. 2, 2004, available at http://msnbc.msn.com/id/6394480/

(accessed Feb. 3, 2006). Three medical experts retained by the different defendants in subsequent courts-martial disputed this finding.

Alex Roth, Heart Failure Caused Death of Prisoner, Witness Says; Defense Expert Testifies at Marine.s Court-Martial; SAN DIEGO UNIONTRIB.,

Sept. 1, 2004, at NC-1. One expert gave the opinion that Hatab likely died of natural causes, probably heart failure. Id. Two experts

stated that he likely died of asthma or pneumonia. Id. According to one of the experts, it was hard to pinpoint the cause of death because

Hatab.s body was left for four days in extreme heat before the autopsy. Id.

154 Alex Roth, Trial starts for Marine in Iraqi.s Jail Death; Prosecutor Paints Reservist as Rogue, SAN DIEGO UNION-TRIB., Aug. 25, 2004, at

NC-1 (quoting prosecutor in court martial of one of the Marines charged in connection with Hatab.s death).

155 David Hasemyer, Marine Says He was Ordered to Grab Prisoner.s Neck, SAN DIEGO UNION-TRIB., Nov. 4, 2004, at B2 (quoting Major

William Vickers).

156 Id.

157 Id.

158 Id.

159 Id..

160 Alex Roth, Heart Failure Caused Death of Prisoner, Witness Says; Defense Expert Testifies at Marine.s Court-Martial, SAN DIEGO

UNION-TRIB., Sept. 1, 2004, at NC-1 (describing pathologist.s testimony).

161 Id.

162 Seth Hettena, Military Loses Key Evidence in Iraqi Death, ASSOC. PRESS, Sept. 9, 2004, available at http://68.166.163.242/cgibin/

readart.cgi?ArtNum=65771 (accessed Feb. 3, 2006).

163 Seth Hettena, Army Pathologist Concedes Errors in Prisoner-Abuse Case, Assoc. Press, Oct. 14, 2004, available at

http://www.usatoday.com/news/nation/2004-10-14-errors-abuse_x.htm (accessed Feb. 3, 2006) (rib cage found at Armed Forces Institute

of Pathology, Washington D.C.; part of larynx found at Landstuhl military base in Germany).

164 Dep.t of the Army, Field Manual 19-20, Law Enforcement Investigations (Nov. 1985), at 200.

165 Seth Hettena, Court Martial Begins in Iraq Prison Death, ASSOC. PRESS, Nov. 2, 2004, available at http://msnbc.msn.com/id/6394480/

(accessed Feb. 3, 2006).

166 Alex Roth, Iraqi.s Body May Be Dug Up Again in Abuse Case, SAN DIEGO UNION-TRIB., Oct. 15, 2004, at B3.

167 Autopsy, Hatab, supra note 146, at 37; Seth Hettena, Army Pathologist Concedes Errors in Prisoner-Abuse Case, Assoc. Press, Oct.

14, 2004, available at http://www.usatoday.com/news/nation/2004-10-14-errors-abuse_x.htm (accessed Feb. 3, 2006).

168 Alex Roth, Marines Involved in Iraqi Abuse Frustrated After Their Convictions, SAN DIEGO UNION-TRIB., Dec. 13, 2004, at A1.

169 Jonathan Heller, 8 Marine Reservists Charged in Beating Death of Iraqi POW, SAN DIEGO UNION-TRIB., Oct. 19, 2003, at A2.

110 — VIII. Endnotes

A Human Rights First Report

170 Seth Hettena, Court Martial Begins in Iraq Prison Death, ASSOC. PRESS, Nov. 2, 2004 available at http://msnbc.msn.com/id/6394480/

(accessed Feb. 3, 2006) (.most of the Marines had their cases dismissed in large part because of the breakdown in forensic evidence that

has marred the case.); Alex Roth, Reservist Convicted of Assault on Inmates; Sergeant Acquitted in Iraqi.s Death at Camp, SAN DIEGO

UNION-TRIB., Sept. 3, 2004, at A1.

171 Seth Hettena, Court Martial Begins in Iraq Prison Death, ASSOC. PRESS, Nov. 2, 2004, available at http://msnbc.msn.com/id/6394480/

(accessed Feb. 3, 2006); Jeff McDonald, Behavior of Detainee Who Died Is at Issue; Was Iraqi Ill or Just Belligerent, SAN DIEGO UNIONTRIB.,

Nov. 5. 2004, at NC-1.

172 Alex Roth, Reservist.s Court Martial Postponed; Defense in Iraqi Death Gets More Prep Time, SAN DIEGO UNION-TRIB., July 29, 2004,

at NC-1.

173 Gidget Fuentes, Major Convicted, Avoids Jail Time in Abuse Trial, MARINE CORPS TIMES, Nov. 22, 2004, at 11; Alex Roth, Marine Guilty

in Death of Iraqi, SAN DIEGO UNION-TRIB., Nov. 11, 2004, at B1.

174 Alex Roth, Judge Postpones a Court-Martial, Rips Prosecutors, SAN DIEGO UNION-TRIB. Sept. 10, 2004, at B1; Tony Perry, Marine

Sentenced for Beating Iraqi Captives, L.A. TIMES, Sept. 4, 2004, at B8.

175 Katie Thomas, Marines on Trial, N.Y. NEWSDAY, Aug. 30, 2004, at A4; John J. Lumpkin, Details about deaths of prisoners in U.S.

custody in Iraq, Afghanistan, ASSOC. PRESS, May 8, 2004, available at http://www.signonsandiego.com/news/world/iraq/20040508-1007-

theprisonersdeaths.html (accessed Feb. 7, 2006); Jonathan Heller, 8 Marine Reservists Charged in Beating Death of Iraqi POW, SAN

DIEGO UNION-TRIB., Oct. 19, 2003, at A2..

176 Gidget Fuentes, Major Convicted, Avoids Jail Time in Abuse Trial, MARINE CORPS TIMES, Nov. 22, 2004, at 11; Robert Jablon, Witness:

Marines Hit Iraq Inmate Who Died, ASSOC. PRESS, Aug. 26, 2004, available at

http://www.prisonplanet.com/articles/august2004/260804marineshit.htm (accessed Feb. 7, 2006).

177 R. Jeffrey Smith, Interrogator Says U.S. Approved Handling of Detainee who Died, WASH. POST, Apr. 13, 2005, at A7; Susan Schmidt

and Dana Priest, Civilian Charged in Beating Death of Afghan Detainee, WASH. POST, June 18, 2004, at A1.

178 Doubt Cast Over Defense Claim in Afghan Abuse, ASSOC. PRESS, June 20, 2004, available at http://www.msnbc.msn.com/id/5234259/

(accessed Feb. 3, 2006); Susan Schmidt and Dana Priest, Civilian Charged in Beating Death of Afghan Detainee, WASH. POST, June 18,

2004, at A1.

179 Doubt Cast Over Defense Claim in Afghan Abuse, ASSOC. PRESS, June 20, 2004, available at http://www.msnbc.msn.com/id/5234259/

(accessed Feb. 3, 2006).

180 Id.; R. Jeffrey Smith, Interrogator Says U.S. Approved Handling of Detainee who Died, WASH. POST, Apr. 13, 2005, at A7.

181 U.S. Indicts CIA Contractor in Afghanistan Prison Death, CNN, June 22, 2004, available at

http://www.cnn.com/2004/LAW/06/17/afghan.indictment/ (accessed Feb. 3, 2006); Andrea Weigl, Room Designed to Keep Secrets, NEWS

AND OBSERVER, Mar. 29, 2005, at B1.

182 R. Jeffrey Smith, Interrogator Says U.S. Approved Handling of Detainee who Died, WASH. POST, Apr. 13, 2005, at A7.

183 Indictment of David Passaro, U.S. v. Passaro, No. 5:04-CR-211-1, June 17, 2004, available at

http://news.findlaw.com/hdocs/docs/torture/uspassaro61704ind.html (accessed Feb. 3, 2006); R. Jeffrey Smith, Interrogator Says U.S.

Approved Handling of Detainee who Died, WASH. POST, Apr. 13, 2005, at A7.

184 Andrea Weigl, Trial.s Weight Hinges on Ruling, NEWS AND OBSERVER, Dec. 16, 2005, at B1.

185 Doubt Cast Over Defense Claim in Afghan Abuse, ASSOC. PRESS, June 20, 2004, available at http://www.msnbc.msn.com/id/5234259/

(accessed Feb. 7, 2006).

186 Criminal Investigators Outline 27 Homicides, supra note 64, at 3.

187 Indictment of David Passaro, U.S. v. Passaro, No. 5:04-CR-211-1, June 17, 2004, available at

http://news.findlaw.com/hdocs/docs/torture/uspassaro61704ind.html (accessed Feb. 3, 2006).

188See U.S. v. Passaro, No. 04 CR 211-1, E.D.N.C., Order, Dec. 30, 2005.

189 R. Jeffrey Smith, Interrogator Says U.S. Approved Handling of Detainee who Died, WASH. POST, Apr. 13, 2005, at A7; Andrea Weigl,

Trial.s Weight Hinges on Ruling, NEWS AND OBSERVER, Dec. 16, 2005, at B1.

190 Tim Golden, In U.S. Report, Brutal Details Of 2 Afghan Inmates. Deaths, N.Y. TIMES, May 20, 2005, at A1 [hereinafter Golden, Brutal

Details Of 2 Afghan Inmates. Deaths].

191 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

192 Tim Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190; Tim Golden, Abuse Cases Open Command Issues at Afghan

Prison, N.Y. TIMES, Aug. 8, 2005, at A1.

193 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

194 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

195 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

196 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

197 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

198 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

199 Office of the Armed Forces Med. Exam.r, Final Report of Postmortem Examination, (Dec. 6-8, 2002) [Autopsy, Habibullah], available at

http://www.aclu.org/torturefoia/released/041905/m001_203.pdf at 19-28 [hereinafter Autopsy, Habibullah].

200 Autopsy, Habibullah, supra note 199, at19-28.

Command.s Responsibility . 111

A Human Rights First Report

201 Tim Golden, Army Faltered in Investigating Detainee Abuse, N.Y. Times, May 22, 2005, at A1.

202 Id.

203 Id.

204 Id.

205 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190; Tim Golden, Abuse Cases Open Command Issues at Afghan

Prison, N.Y. TIMES, Aug. 8, 2005, at A1.

206 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

207 Tim Golden, Case Dropped Against U.S. Officer in Beating Deaths of Afghan Inmates, Jan. 8, 2006, N.Y. TIMES, at A13.

208 See DIC Table: They are Private First Class (.Pfc..) Willie Brand (assault, maiming, maltreatment, false statement), Specialist (.Spc..)

Brian Cammack (assault, two counts of false statement), Spc. Glendale Walls (dereliction, assault), Sergeant (.Sgt..) Anthony Morden

(assault, two counts of dereliction), Sgt. Selena Salcedo (dereliction, assault), Sgt. Joshua Claus (maltreatment, assault), Sgt. Christopher

Greatorex (assault, maltreatment, false statement), Sgt. Darin Broady (assault, maltreatment, false statement), Sgt. James Boland

(maltreatment, dereliction, assault), Sgt. Alan Driver (assault, maltreatment), Staff Sergeant (.Staff Sgt..) Brian Doyle (dereliction,

maltreatment), and Captain (.Capt..) Christopher Beiring (dereliction, false statement).

209 See DIC Table: Pfc. Brand (convicted, demoted to Private (.Pvt..)), Spc. Cammack (pled guilty, 3 months confinement, demoted to

Pvt., bad-conduct discharge), Spc. Walls (pled guilty, 2 months confinement, demoted to Pvt., bad-conduct discharge), Sgt. Morden (pled

guilty, 75 days confinement, demoted to Pvt., bad-conduct discharge), Sgt. Salcedo (pled guilty, fined $1,000, demoted to Spc. or

Corporal, reprimanded), Sgt. Claus (pled guilty, 5 months confinement, demoted to Pvt., bad-conduct discharge), Sgt. Greatorex

(acquitted, faces administrative reprimand), Sgt. Broady (acquitted), Sgt. Boland (charges dropped, reprimanded for dereliction); Staff Sgt.

Doyle (acquitted in connection with Habibullah.s death); Capt. Beiring (charges dropped, reprimanded).

210 Id.

211 Tim Golden, Case Dropped Against U.S. Officer in Beating Deaths of Afghan Inmates, N.Y. TIMES, Jan. 8, 2006, at A13.

212 Id.

213 Id.

214 Rowan Scarborough, Senior Prison Officer Cleared, WASH. TIMES, Dec. 23, 2005, available at

http://www.washingtontimes.com/national/20051223-121235-3444r.htm (accessed Feb. 13, 2006).

215 A Look at the Soldiers Charged in the Afghanistan Abuse Investigation, ASSOC. PRESS, Oct. 5, 2005, available at

http://www.kxan.com/Global/story.asp?S=3942230 (accessed Feb. 3, 2006); Tim Golden, Case Dropped Against U.S. Officer in Beating

Deaths of Afghan Inmates, N.Y. TIMES, Jan. 8, 2006, at A13.

216 A Look at the Soldiers Charged in the Afghanistan Abuse Investigation, ASSOC. PRESS, Oct. 5, 2005, available at

http://www.kxan.com/Global/story.asp?S=3942230 (accessed Feb. 3, 2006); see also DIC Table. A charge of involuntary manslaughter

was initially brought against Pfc. Brand, but it was dropped before trial. Tim Golden, Abuse Cases Open Command Issues at Army Prison,

N.Y. TIMES, Aug. 8, 2005, at A1.

217 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

218 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

219 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

220 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

221 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

222 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

223 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

224 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

225 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

226 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

227 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

228 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

229 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

230 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

231 Office of the Armed Forces Med. Exam.r, Autopsy Examination Report, A0295 (Dec. 13, 2002) [Autopsy, Dilawar], available at

http://www.aclu.org/torturefoia/released/041905/m001_203.pdf at 29-36 [hereinafter Autopsy, Dilawar].

232 Autopsy, Dilawar, supra note 231, at 29-36.

233 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190.

234 Tim Golden, Army Faltered in Investigating Detainee Abuse, N.Y. TIMES, May 22, 2005, at A1.

235 Id.; Carlotta Gall, U.S. Military Investigating Death of Afghan in Custody, N.Y. TIMES, Mar. 4, 2003, at A14.

236 Tim Golden, Army Faltered on Investigating Detainee Abuse, N.Y. TIMES, May 22, 2005, at A1.

237 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190; Tim Golden, Army Faltered on Investigating Detainee Abuse, N.Y.

TIMES, May 22, 2005, at A1.

112 — VIII. Endnotes

A Human Rights First Report

238 Golden, Brutal Details Of 2 Afghan Inmates. Deaths, supra note 190; Tim Golden, Army Faltered on Investigating Detainee Abuse, N.Y.

TIMES, May 22, 2005, at A1.

239 Dep.t of the Army, CID, CID Report of Investigation-Corrected/Initial/Final/SSI-0171-04-CID259-80223-/5H6 (Aug. 7, 2004) [Criminal

Investigation, al-Bawi], available at http://www.aclu.org/torturefoia/released/4894_4927.pdf, at 1 (accessed Feb. 3, 2006) [hereinafter

Criminal Investigation, al-Bawi]; Jackie Spinner, Family Seeks Justice in Case Of Iraqi Slain by U.S. Troops, WASH. POST, June 15, 2004,

at A13.

240 Jackie Spinner, Family Seeks Justice in Case Of Iraqi Slain by U.S. Troops, WASH. POST, June 15, 2004, at A13; Liz Sly, Family Prods

Military on Iraqi.s Death, CHI. TRIB., July 6, 2004, at 4.

241 Thanassis Cambanis, Shooting Death Angers Iraqi Family, BOSTON GLOBE, June 21, 2004, at A1.

242 Id.

243 Jackie Spinner, Family Seeks Justice in Case Of Iraqi Slain by U.S. Troops, WASH. POST, June 15, 2004, at A13; Thanassis Cambanis,

Shooting Death Angers Iraqi Family, BOSTON GLOBE, June 21, 2004, at A1.

244 Jackie Spinner, Family Seeks Justice in Case Of Iraqi Slain by U.S. Troops, WASH. POST, June 15, 2004, at A13; Thanassis Cambanis,

Shooting Death Angers Iraqi Family, BOSTON GLOBE, June 21, 2004, at A1.

245 Thanassis Cambanis, Shooting Death Angers Iraqi Family, BOSTON GLOBE, June 21, 2004, at A1; Liz Sly, Family Prods Military on

Iraqi.s death, CHI. TRIB., July 6, 2004, at 4.

246 Jackie Spinner, Family Seeks Justice in Case Of Iraqi Slain by U.S. Troops, WASH. POST, June 15, 2004, at A13; Thanassis Cambanis,

Shooting Death Angers Iraqi Family, BOSTON GLOBE, June 21, 2004, at A1.

247 For a description of administrative investigations, see infra p. 33.

248 Criminal Investigation, al-Bawi, supra note 239, at 5.

249 Liz Sly, Family Prods Military on Iraqi.s Death, CHI. TRIB., July 6, 2004, at 4 (quoting portions of military.s statements).

250 Id.; Thanassis Cambanis, Shooting Death Angers Iraqi Family, BOSTON GLOBE, June 21, 2004, at A1.

251 Criminal Investigation, al-Bawi, supra note 239, at 16.

252 The Army.s subsequent criminal investigation into al-Bawi.s death also found that it was a rifle, not a pistol, that al-Bawi allegedly tried

to grab from a soldier. Criminal Investigation, al-Bawi, supra note 239, at 1.

253 Criminal Investigation, al-Bawi, supra note 239, at 5.

254 Criminal Investigation, al-Bawi, supra note 239, at 33.

255 Criminal Investigation, al-Bawi, supra note 239, at 1.

256 Criminal Investigation, al-Bawi, supra note 239, at 5; see also Liz Sly, Family Prods Military on Iraqi.s Death, CHI. TRIB., July 6, 2004, at

4 (military statement alleging that all shots fired by one soldier).

257 Liz Sly, Family Prods Military on Iraqi.s Death, CHI. TRIB., July 6, 2004, at 4.

258 Id.

259 Id.

260 Dep.t of the Army, CID, CID Report of Investigation . Final (C) . 0149-03-CID469-60209-5H1A (Nov. 23, 2003) [Criminal Investigation,

Radad], available at http://www.aclu.org/torturefoia/released/DOA_1053_1082.pdf, at 2, 15 (accessed Feb. 3, 2006) [hereinafter Criminal

Investigation, Radad].

261 Criminal Investigation, Radad, supra note 260, at 2.

262 Criminal Investigation, Radad, supra note 260, at 15.

263 Dep.t of the Army, Informal Investigation of Shooting of Obeed Hethere Radad (Sept. 13, 2003), available at

http://www.aclu.org/projects/foiasearch/pdf/DOD044873.pdf at 23 (accessed Feb. 3, 2006) [hereinafter Administrative Investigation,

Radad].

264 Administrative Investigation, Radad, supra note 263, at 22.

265 Administrative Investigation, Radad, supra note 263, at 22.

266 Memorandum for Commander, 4th Infantry Division (Mechanized), FOB Ironhorse, Tikrit, Iraq, AR 15-5 Investigation . Legal Review,

Obeed Hethere Radad (Sept. 14, 2003), at 1 (on file with Human Rights First).

267 Criminal Investigation, Radad, supra note 260, at 2-3 (incident reported on September 15; administrative investigation dated September

14 attached).

268 Memorandum from Spec. Juba Martino-Poole to Commander, 4th Infantry Division, Request for Discharge in Lieu of Trial by Court

Martial (Oct. 16, 2003), available at http://www.aclu.org/torturefoia/released/041905/6768_7065.pdf, at 45-46 (accessed Feb. 3, 2006).

269 Criminal Investigation, Radad, supra note 260, at 2; Memorandum from Maj. Gen. Raymond T. Odierno for Commander, 502d

Personnel Service Battalion, Request for Discharge in Lieu of Trial by Court-Martial, available at

http://www.aclu.org/torturefoia/released/041905/6768_7065.pdf, at 53 (accessed Feb. 3, 2006).

270 Criminal Investigation, Radad, supra note 260, at 2.

271 Criminal Investigation, Radad, supra note 260, at 29.

272 Miles Moffeit and Arthur Kane, Iraq GIs Allowed to Avoid Trial, DENVER POST, Aug. 22, 2004, at A1.

Command.s Responsibility . 113

A Human Rights First Report

273 Dep.t of the Army, CID, CID Report of Investigation . Final . 0114-02-CID369-23525 -5H1A, Part 1 (May 23, 2003) [Criminal Investigation,

Sayari], available at http://www.aclu.org/torturefoia/released/745_814.pdf, at 11-12, 27 (accessed Feb. 3, 2006) [hereinafter Criminal

Investigation, Sayari].

274 Criminal Investigation, Sayari, supra note 273, at 11-12, 27.

275 Criminal Investigation, Sayari, supra note 273, at 27-28.

276 Criminal Investigation, Sayari, supra note 273, at 28.

277 Criminal Investigation, Sayari, supra note 273, at 38-46. The criminal investigators found probable cause to charge three members of

the squad with the crime of Dereliction of Duty for their failure to abide by standard operating procedures for detaining captives. Criminal

Investigation, Sayari, supra note 273, at 12.

278 Criminal Investigation, Sayari, supra note 273, at 28.

279 Criminal Investigation, Sayari, supra note 273, at 28.

280 Criminal Investigation, Sayari, supra note 273, at 28.

281 Criminal Investigation, Sayari, supra note 273, at 28.

282 Criminal Investigation, Sayari, supra note 273, at 28.

283 Criminal Investigation, Sayari, supra note 273, at 27-28, 65-66. The sergeant complied, although the photos were not lost because he

had previously made another copy. Criminal Investigation, Sayari, supra note 273, at 64.

284 Criminal Investigation, Sayari, supra note 273, at 19.

285 Criminal Investigation, Sayari, supra note 273, at 19, 28.

286 Dep.t of the Army, CID, CID Report of Investigation . Final . 0114-02-CID369-23525 -5H1A, Part 4 (May 23, 2003) [Criminal Investigation,

Sayari, Part 4], available at http://www.aclu.org/torturefoia/released/908_963.pdf, at 16 (accessed Feb. 3, 2006) [hereinafter Criminal

Investigation, Sayari, Part 4].

287 Criminal Investigation, Sayari, supra note 273, at 27, 31, 64; see also Criminal Investigation, Sayari, Part 4, supra note 286, at 15.

288 Criminal Investigation, Sayari, supra note 273, at 27, 31, 64; see also Criminal Investigation, Sayari, Part 4, supra note 286, at 15.

289 Criminal Investigation, Sayari, supra note 273, at 27; see also Criminal Investigation, Sayari, Part 4, supra note 286, at 15.

290 Criminal Investigation, Sayari, supra note 273, at 27-28, 65-66.

291 Criminal Investigation, Sayari, supra note 273, at 29.

292 Criminal Investigation, Sayari, supra note 273, at 11.

293 Criminal Investigation, Sayari, supra note 273, at 11.

294 Criminal Investigation, Sayari, supra note 273, at 1-10.

295 Criminal Investigation, Sayari, supra note 273, at 1-10; Army: Soldiers Shouldn.t be Charged, ASSOC. PRESS, Jan. 24, 2005, available

at http://www.msnbc.msn.com/id/6863659/ (accessed Feb. 3, 2006).

296 Criminal Investigation, Sayari, supra note 273, at 1; Army: Soldiers Shouldn.t be Charged, ASSOC. PRESS, Jan. 24, 2005, available at

http://www.msnbc.msn.com/id/6863659/ (accessed Feb. 3, 2006).

297 Criminal Investigation, Sayari, supra note 273, at 1-10.

298 Dexter Filkins, The Fall of the Warrior King, N.Y. TIMES MAG., Oct. 23, 2005, at 52 [hereinafter Filkins, Warrior King]; Hamza Hendawi,

Iraqi: U.S. Soldiers Laughed at Drowning, ASSOC. PRESS, July 6, 2004, available at http://www.chinadaily.com.cn/english/doc/2004-

07/07/content_346293.htm (accessed Feb. 3, 2006).

299 Filkins, Warrior King, supra note 298; U.S. Soldier Goes on Trial for Allegedly Drowning Iraqi Civilian, Xinhua General News Service,

Jan. 5, 2005 available at http://english.people.com.cn/200501/05/eng20050105_169731.html (accessed Feb. 7, 2006).

300 Filkins, Warrior King, supra note 298.

301 Information Paper on Samarra Bridge Incident, July 15, 2004, available at

http://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 47 (accessed Feb. 3, 2006).

302 Hamza Hendawi, Iraqi: U.S. Soldiers Laughed at Drowning, ASSOC. PRESS, July 6, 2004, available at

http://www.chinadaily.com.cn/english/doc/2004-07/07/content_346293.htm (accessed Feb. 3, 2006); Filkins, Warrior King, supra note 298.

303 Hamza Hendawi, Iraqi: U.S. Soldiers Laughed at Drowning, ASSOC. PRESS, July 6, 2004, available at

http://www.chinadaily.com.cn/english/doc/2004-07/07/content_346293.htm (accessed Feb. 3, 2006).

304 Id.; Filkins, Warrior King, supra note 298.

305 G.I. Gets 45 Days for Assault of Iraqis, ASSOC. PRESS, Mar. 15, 2005, available at http://www.msnbc.msn.com/id/7200520/ (accessed

Feb. 3, 2006). See also, Charge Sheet, available at http://action.aclu.org/torturefoia/released/063005/11950_12130PartB.pdf , at 80-81

(accessed Feb. 3, 2006).

306 Filkins, Warrior King, supra note 298; Cover-up of Iraq Bridge Incident Admitted, ASSOC. PRESS, July 30, 2004, available at

http://www.msnbc.msn.com/id/5560805/ (accessed Feb. 3, 2006).

307 Filkins, Warrior King, supra note 298.

308 Information Paper on Samarra Bridge Incident, July 15, 2004, available at

http://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 47 (accessed Feb. 3, 2006).

309 Id.

114 — VIII. Endnotes

A Human Rights First Report

310 Filkins, Warrior King, supra note 298.

311 U.S. Navy Judge Advocate General.s Corps, Article 32 Investigations,

http://www.jag.navy.mil/html/NLSOGlakesArticle_32_investigations.htm (accessed Feb. 3, 2006) (.grand jury indictment is expressly

inapplicable to the Armed Forces. In its absence, Article 32 of the Uniform Code of Military Justice . requires a thorough and impartial

investigation of charges.).

312 Investigating Officer.s Report of Charges Under Article 32, Aug. 19, 2004, available at

http://action.aclu.org/torturefoia/released/063005/11950_12130PartB.pdf, at 99-100 (accessed Feb. 3, 2006).

313 Cover-up of Iraq Bridge Incident Admitted, ASSOC. PRESS, July 30, 2004, available at http://www.msnbc.msn.com/id/5560805/

(accessed Feb. 3, 2006).

314 Id.; see also Filkins, Warrior King, supra note 298.

315 Cover-up of Iraq Bridge Incident Admitted, ASSOC. PRESS, July 30, 2004, available at http://www.msnbc.msn.com/id/5560805/

(accessed Feb. 3, 2006).

316 Filkins, Warrior King, supra note 298; Suzanne Goldenberg, 45 Days Jail for U.S. Officer Who Had Cousins Thrown Into Tigris, THE

GUARDIAN, Mar. 16, 2005, at Home Pages 2.

317 Dick Foster, Case Against 4 GI.s Waning; 2 Won.t Face Charges in Alleged Drowning, ROCKY MOUNTAIN NEWS, Sept. 9, 2004, at 6A;

Dick Foster, Soldier: Iraqis Told to Jump; Several Issues Cloud Army.s Case Against GIs in Drowning, ROCKY MOUNTAIN NEWS, July 29,

2004, at 4A; Dick Foster, Fort Carson Soldiers May Use Drug Defense in Courts-Martial, ROCKY MOUNTAIN NEWS, July 28, 2004, at 5A.

318 Filkins, Warrior King, supra note 298; Information Paper on Samarra Bridge Incident, July 15, 2004, available at

http://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 47 (accessed Feb. 3, 2006).

319 Human Rights First Email Interview with Dr. Steven Miles, Professor, University of Minnesota Medical School (Nov. 4, 2005) (transcription

on file with Human Rights First); for date of death, see Eric Schmitt, Navy Charges 3 Commandos with Beating of Prisoners, N.Y.

TIMES, Sept. 25, 2004, at A7.

320 See DIC Table: The military officially ruled five deaths as due to undetermined causes after investigation (Hasson, al-Obodi, Kenami, F.

Mahmood, and F. Najem). Forty-three other deaths have either not been investigated, or the results of any investigation have not been

publicly announced or are unclear (Unknown 1, Naseer, el-Gashame, Dababa, Unknown 3, Unknown 4, Unknown 5, Unknown 6,

Unknown 8, Unknown 9, Unknown 10, Unknown 11, Unknown 12, Unknown 13, Unknown 14, Unknown 15, al-Izmerly, Unknown 16,

Unknown 17, Sher Mohammed Khan, Mohammed Nahar, Unknown 20, Unknown 21, Unknown 23, Unknown 24, Unknown 25, Unknown

26, Unknown 27, Unknown 28, Unknown 29, Sumaidaie, Unknown 30, Unknown 31, Unknown 32, Unknown 33, Unknown 34, Unknown

35, Unknown 36, Unknown 37, Unknown 38, Hamza al-Zubaidi, Unknown 39, Unknown 40).

321 See DIC Table: Unknown 1 (died in November 2002 in Afghanistan .Salt Pit. prison of hypothermia after being chained to the floor and

left without blankets; official cause of death not released); Naseer (allegedly tortured to death by Army Special Forces soldiers in Mar.

2003; official investigation findings not released); al-Sumaidae (unarmed 21-year-old student allegedly killed in cold blood in June 2005 by

Marine during a search of his home; case referred to Navy criminal investigators 10 days after death); Dababa (June 2003 autopsy

indicates body covered by bruises and at least 50 abrasions, with head and neck suffering the most significant abuses, resulting in

hemorrhaging throughout his brain; official cause of death not announced); Kenami (death after detainee subjected to extreme exercise,

cuffed, hooded and left in overcrowded cell; cause officially undetermined); al-Izmerly (chief of forensics at Baghdad Hospital found

January 2004 death was due to .massive blow. to head; investigation pending); Unknown 15 (U.S. forces allege male shot during home

raid while reaching for a pistol; family alleges he was a physically disabled old man and reportedly provides medical records indicating a

spinal condition or degeneration; no criminal investigation or any other action appears to have been initiated); Nasef Ibrahim (military ruled

death due to natural causes; son, with him at the time, filed lawsuit alleging death from abuse); Khan (military initially stated death due to

heart attack, until press reports of snakebite; family alleges abuse; no medical or other investigation records released since death in

September 2004); A. Najem (military ruled death from natural causes after hunger strike, but no medical records or interviews in support);

Zaid (U.S.-conducted autopsy stated accidental death from heat stroke; army official stated possibility that Zaid was not given enough

water or proper care). Human Rights First asked the Department of Defense on January 20 and 26, 2006 the status of the investigations

and any prosecutions in the following cases for which, as of February 10, we had received no response: Naseer; al-Sumaidae; Dababa;

Kenami [sought comment on medical expert finding that death caused by suffocation]; al-Izmerly; Ibrahim; Khan; Zaid.

322 Dep.t of the Army, AR 15-6 Investigation Into the Death of Abu Malik Kenami (Dec. 28, 2003), available at

http://www.aclu.org/torturefoia/released/032505/1281_1380.pdf, at 2, (accessed Feb. 3, 2006) [hereinafter Administrative Investigation,

Kenami].

323 Dep.t of the Army, CID, CID Report of Investigation . Final . 0140-03-CID389-61697-5H9B (Jan. 1, 2004) [Criminal Investigation,

Kenami], available at http://www.aclu.org/torturefoia/released/DOA_1206_1234.pdf, at 1 (accessed Feb. 3, 2006) [hereinafter Criminal

Investigation, Kenami].

324 Administrative Investigation, Kenami, supra note 322, at 1.

325 Administrative Investigation, Kenami, supra note 322, at 16; Criminal Investigation, Kenami, supra note 323, at 5 . 6.

326 Administrative Investigation, Kenami, supra note 322, at 4, 16; Criminal Investigation, Kenami, supra note 323, at 19, 26.

327 Administrative Investigation, Kenami, supra note 322, at 4-5.

328 Administrative Investigation, Kenami, supra note 322, at 4-5; Criminal Investigation, Kenami, supra note 323, at 5-6, 11.

329 Administrative Investigation, Kenami, supra note 322, at 5.

330 Administrative Investigation, Kenami, supra note 322, at 5-6.

331 Criminal Investigation, Kenami, supra note 323, at 2.

332 Criminal Investigation, Kenami, supra note 323, at 13.

Command.s Responsibility . 115

A Human Rights First Report

333 Criminal Investigation, Kenami, supra note 323, at 13.

334 Criminal Investigation, Kenami, supra note 323, at 13.

335 Criminal Investigation, Kenami, supra note 323, at 13.

336 Dep.t Administrative Investigation, Kenami, supra note 322, at 1, 2. The administrative investigation made a number of recommendations:

1) that a physical exam be conducted on all detainees, preferably by an Iraqi physician; 2) that facilities be provided for remote

audio/video monitoring of the detainee area by an Arabic speaker; 3) that autopsy facilities be created at Mosul.

337 Criminal Investigation, Kenami, supra note 323, at 1.

338 STEVEN MILES, OATH BETRAYED: MILITARY MEDICINE AND THE WAR ON TERROR, (forthcoming 2006) (Homicides Chapter, at 15, manuscript

on file with Human Rights First).

339 Id.

340 Criminal Investigation, Kenami, supra note 323, at 1.

341 Miles Moffeit, Brutal Interrogation in Iraq, DENVER POST, May 19, 2004, at A1 (quoting military investigative report); Office of the Armed

Forces Med. Exam.r, Autopsy Examination Report, Autopsy No. ME03-273 (May 11, 2004) [Autopsy, Dababa], available at

http://www.aclu.org/torturefoia/released/041905/m001_203.pdf, at 56 (accessed Feb. 3, 2006) [hereinafter Autopsy, Dababa]; New Probes

of Prison Deaths, ASSOC. PRESS, June 30, 2004, available at http://www.cbsnews.com/stories/2004/07/02/iraq/main627244.shtml

(accessed Feb. 3, 2006); Spreadsheet of Military Investigations, (Nov. 5, 2004), available at

http://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 12 (accessed Feb. 3, 2006) (reporting two detainee deaths on June 13,

2003, one at Camp Cropper, the other at Camp Vigilant, a compound at Abu Ghraib. The death at Abu Ghraib is that of Alla Hassan, see

Dep.t of the Army, CID, Report of Investigation . Final/SSI . 0145-04-CID146-71444-5H9C2 / 5H6 / 5Y3 (Oct. 26, 2004) [Criminal

Investigation, Hassan], available at http://www.aclu.org/torturefoia/released/4193_4332.pdf (accessed Feb. 3, 2006).

342 Miles Moffeit, Brutal Interrogation in Iraq, DENVER POST, May 19, 2004, at A1.

343 Autopsy, Dababa, supra note 341, at 56.

344 Autopsy, Dababa, supra note 341, at 56.

345 Autopsy, Dababa, supra note 341, at 56.

346 Autopsy, Dababa, supra note 341, at 58-61.

347 Autopsy, Dababa, supra note 341, at.58-61.

348 Autopsy, Dababa, supra note 341, at 58-61.

349 Autopsy, Dababa, supra note 341, at 59.

350 Autopsy, Dababa, supra note 341, at 60.

351 John Lumpkin, 9 Prisoner Deaths in Iraq, Afghanistan Probed as Homicides, ASSOC. PRESS, May 23, 2004, available at

http://www.news-star.com/stories/052304/New_31.shtml (accessed Feb. 3, 2006).

352 Dep.t of the Army, CID, CID Report of Investigation . Final/SSI . 0237-04-CID259-80273-5H9B (Oct. 18, 2004) [Criminal Investigation,

Hasson], available at http://www.aclu.org/torturefoia/released/4153_4192.pdf , at 2 (accessed Feb. 3, 2006) [hereinafter Criminal

Investigation, Hasson].

353 Criminal Investigation, Hasson, supra note 352, at 1-2.

354 Criminal Investigation, Hasson, supra note 352, at 6.

355 Investigators contacted the current and former Detainee Operations officers for the camp, the U.S. field hospital staff, officials at a

British hospital, and requested searches of Military Police, Military Intelligence, and medical databases. Criminal Investigation, Hasson,

supra note 352, at 4, 8..

356 See generally, Criminal Investigation, Hasson, supra note 352.

357 Criminal Investigation, Hasson, supra note 352, at 1-2.

358 Criminal Investigation, Hasson, supra note 352, at 19.

359 Dep.t of the Army, CID, CID Report of Investigation Final Supplemental /SSI Report -0007-04-CID259-80133-5H9A (Aug. 23, 2004)

[Criminal Investigation, Ibrahim], available at http://www.aclu.org/torturefoia/released/DOA_1443_1479.pdf, at 1 (accessed Feb. 7, 2006)

[hereinafter Criminal Investigation, Ibrahim].

360 Criminal Investigation, Ibrahim, supra note 359, at 7 . 8.

361 Criminal Investigation, Ibrahim, supra note 359, at 4.

362 Criminal Investigation, Ibrahim, supra note 359, at 9.

363 Third Amended Complaint, Saleh v. Titan Corp., No. 1:05-CV-1165 (U.S. District Court for the District of Columbia, filed Sept. 12,

2005), ¶¶135-139. See also Tom Squitieri, Documents Give Different Explanation for Inmate.s Death, USA TODAY, June 28, 2004, at 2A.

364 Third Amended Complaint, Saleh v. Titan Corp., No. 1:05-CV-1165 (U.S. District Court for the District of Columbia, filed Sept. 12,

2005), ¶¶135-139. See also Tom Squitieri, Documents Give Different Explanation for Inmate.s Death, USA TODAY, June 28, 2004, at 2A.

365 Criminal Investigation, Ibrahim, supra note 359, at 9.

366 Criminal Investigation, Ibrahim, supra note 359, at 9.

367 Criminal Investigation, Najem, supra note 391.

368 Criminal Investigation, Najem, supra note 391.

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369 Criminal Investigation, Najem, supra note 391.

370 Criminal Investigation, Najem, supra note 391, at 4.

371 Criminal Investigation, Najem, supra note 391.

372 Dep.t of the Army, CID, CID Report of Investigation-Final(C)- 0025-03-CID919-63733, at 41-43 (Feb. 4, 2004) [Criminal Investigation,

al-Obodi], available at http://www.aclu.org/torturefoia/released/DOA_1727_1780.pdf (accessed Feb. 7, 2006) [hereinafter Criminal

Investigation, al-Obodi].

373 Criminal Investigation, al-Obodi, supra note 372, at 7.

374 Criminal Investigation, al-Obodi, supra note 372, at 41-43.

375 Criminal Investigation, al-Obodi, supra note 372, at 35-36.

376 Criminal Investigation, al-Obodi, supra note 372, at 1.

377 Criminal Investigation, al-Obodi, supra note 372, at 48.

378 Charles Hanley, Heat on U.S. Over Iraqi Weapons Scientists, ASSOC. PRESS, July 21, 2005; Sinan Salaheddin, Family of Iraqi Scientist

Welcomes Probe, ASSOC. PRESS, Mar. 27, 2005, available at http://www.armytimes.com/story.php?f=1-292925-745460.php (accessed

Feb. 3, 2006) [hereinafter Salaheddin, Family Welcomes Probe]; Luke Harding, I Will Always Hate You People, THE GUARDIAN, May 24,

2004, at Home Pages 1.

379 Salaheddin, Family Welcomes Probe, supra note 378; Luke Harding, I Will Always Hate You People, THE GUARDIAN, May 24, 2004, at

Home Pages 1.

380 Luke Harding, I Will Always Hate You People, THE GUARDIAN, May 24, 2004, at Home Pages 1.

381 Id.

382 Id.; Salaheddin, Family Welcomes Probe, supra note 378.

383 Salaheddin, Family Welcomes Probe, supra note 378; Charles Hanley, Heat on U.S. Over Iraqi Weapons Scientists, ASSOC. PRESS,

July 21, 2005.

384 Luke Harding, Family.s Fury at Mystery Death, THE GUARDIAN, May 24, 2004, at Home Pages 1; Salaheddin, Family Welcomes Probe,

supra note 378.

385 Salaheddin, Family Welcomes Probe, supra note 378 (.Now the Army.s Criminal Investigation Command in Washington, after an

inquiry by The Associated Press, says it has reopened an investigation into what it calls a previously closed case..); Charles Hanley, Heat

on U.S. Over Iraqi Weapons Scientists, ASSOC. PRESS, July 21, 2005.

386 Salaheddin, Family Welcomes Probe, supra note 378; Charles Hanley, Heat on U.S. Over Iraqi Weapons Scientists, ASSOC. PRESS,

July 21, 2005.

387 Salaheddin, Family Welcomes Probe, supra note 378.

388 Charles Hanley, Experts Urge Release of Iraq Scientists, ASSOC. PRESS, July 17, 2005.

389 STEVEN MILES, OATH BETRAYED: MILITARY MEDICINE AND THE WAR ON TERROR, (forthcoming 2006) (Homicides Chapter, at 15, manuscript

on file with Human Rights First).

390 See DIC Table: Deaths likely caused by heart attack: Mahmood (age unknown, death certificate reportedly identified cardiac arrest, but

cause of death officially undetermined); Mohammed Hamza al-Zubaidi (age 67, death reportedly by heart attack but no investigative

findings); Unknown 3 (age 60; administrative investigation discussed but didn.t rule on heart attack as cause); Unknown 17 (age unknown;

death reportedly by heart attack but investigative findings unknown); Unknown 23 (age 31; death reportedly by heart attack but investigative

findings unknown); Unknown 29 (age 30 reportedly by heart attack but investigative findings unknown); Unknown 33 (age 65,

reportedly by heart attack but investigative findings unknown); Unknown 36 (age 43; reportedly by heart attack but investigative findings

unknown); Unknown 38 (age 65 reportedly by heart attack but no investigative findings); Unknown 11 (age unknown; death reportedly by

heart attack, but investigative findings unknown).

Deaths likely caused by heart disease: A. Najem (age approx. 50; death from heart disease; criminal investigation found death from

natural causes); Mihdy (age unknown; death from arteriosclerotic cardiovascular disease; criminal investigation found death from natural

causes); Spah (age approx. 50; death from arteriosclerotic cardiovascular disease after hunger strike; criminal investigation found death

from natural causes); Taleb (age approx. 40; death from arteriosclerotic cardiovascular disease; criminal investigation found death from

natural causes); Ibrahim (age 63, death from atherosclerotic cardiovascular disease; criminal investigation determined further investigation

would be of little value); al-Hussen (age 25; death from myocarditis; criminal investigation found death from natural causes); Ahmed (age

61; death from atherosclerotic cardiovascular disease; criminal investigation found death from natural causes); Abbas (age 55; death from

atherosclerotic cardiovascular disease; criminal investigation found probable death from the disease); Altia (age: approx. 65; atherosclerotic

cardiovascular disease; criminal investigation found death from natural causes); al-Razak (age 52; atherosclerotic cardiovascular

disease; criminal investigation found death from natural causes); Unknown 35 (age 60; heart failure after surgery; investigative findings

unknown or not available).

Of these 21 deaths, military investigators determined: eight were due to natural causes; the probable cause in one was heart disease; in

one the cause is officially undetermined; in one investigators found further investigation would not be helpful. Of the remaining 11 deaths,

official investigative findings are not known or not publicly available.

391 Dep.t of the Army, CID, Report of Investigation-Final Supplemental- 0136-03-CID259-61187-5H9A (June 4, 2004) [Criminal Investigation,

Najem], available at http://www.aclu.org/torturefoia/released/24TF.pdf, at 1, 34 (accessed Feb. 3, 2006) [hereinafter Criminal

Investigation, Najem].

392 Criminal Investigation, Najem, supra note 391, at 34.

393 Criminal Investigation, Ibrahim, supra note 359, at 1, 3.

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394 Criminal Investigation, Ibrahim, supra note 359, at 4.

395 Criminal Investigation, Ibrahim, supra note 359, at 29.

396 Third Amended Complaint, Saleh v. Titan Corp., No. 1:05-CV-1165 (U.S. District Court for the District of Columbia, filed Sept. 12,

2005), ¶¶135-139. See also Tom Squitieri, Documents Give Different Explanation for Inmate.s Death, USA TODAY, June 28, 2004, at 2A

(reporting allegation that Ibrahim had been doused with cold water over three days; he then became ill and died three days later).

397 Dep.t of the Army, the Inspector General, DETAINEE OPERATIONS INSPECTION (July 21, 2004), at 76, available at

http://www.humanrightsfirst.org/us_law/PDF/abuse/mikolashekdetaineereport.pdf (accessed Feb. 3, 2006).

398 Id. at 1-3.

399 Rights Group Puts Rumsfeld on Spot over Afghan Deaths, REUTERS, Dec. 14, 2004, available at

http://www.commondreams.org/headlines04/1214-02.htm (accessed Feb. 7, 2006).

400 Afghan who died in U.S. custody complained of snake bite, American commander says, ASSOC. PRESS, Jan. 3, 2005, available at

http://www.fox23news.com/news/world/story.aspx?content_id=B22E7E94-260B-4D5A-9AE5-D194D5F59C4F (accessed Feb. 7, 2006).

401 U.S. Investigates 8 Afghan Prison Deaths, ASSOC. PRESS, Dec. 13, 2004; Rights Group Puts Rumsfeld on Spot over Afghan Deaths,

REUTERS, Dec. 14, 2004, available at http://www.commondreams.org/headlines04/1214-02.htm (accessed Feb. 7, 2006); Afghan who died

in U.S. custody complained of snake bite, American commander says, ASSOC. PRESS, Jan. 3, 2005, available at

http://www.fox23news.com/news/world/story.aspx?content_id=B22E7E94-260B-4D5A-9AE5-D194D5F59C4F (accessed Feb. 7, 2006).

402 Afghan who died in U.S. custody complained of snake bite, American commander says, ASSOC. PRESS, Jan. 3, 2005, available at

http://www.fox23news.com/news/world/story.aspx?content_id=B22E7E94-260B-4D5A-9AE5-D194D5F59C4F (accessed Feb. 7, 2006).

403 R. Jeffrey Smith, Army Reprimand Reported in Slaying, WASH. POST, Dec. 14, 2004, at A24; Letter from Human Rights Watch to

Secretary Rumsfeld (Dec. 13, 2004), available at http://hrw.org/english/docs/2004/12/10/afghan9838_txt.htm (accessed Feb. 7, 2006).

404 Afghan Who Died in U.S. Custody Complained of Snake Bite, American Commander Says, ASSOC. PRESS, Jan. 3, 2005, available at

http://www.fox23news.com/news/world/story.aspx?content_id=B22E7E94-260B-4D5A-9AE5-D194D5F59C4F (accessed Feb. 7, 2006).

405 Id.; U.S. Army Acknowledges Eight Deaths in Military Custody in Afghanistan, AGENCE FRANCE-PRESSE, Dec. 14, 2004, available at

http://www.keepmedia.com/pubs/AFP/2004/12/13/682161 (accessed Feb. 7, 2006); Human Rights First submitted a Freedom of

Information Act request for the criminal investigation into Khan.s death to the Crime Records Center on July 25, 2005, and a request to the

Army Medical Command for Khan.s final autopsy report on July 21, 2005. The autopsy request was denied on Oct. 31, 2005 based on

privacy grounds, while the criminal investigation request remains pending as of February 2006.

406 Afghan Who Died in U.S. Custody Complained of Snake Bite, American Commander Says, ASSOC. PRESS, Jan. 3, 2005, available at

http://www.fox23news.com/news/world/story.aspx?content_id=B22E7E94-260B-4D5A-9AE5-D194D5F59C4F (accessed Feb. 7, 2006);

Adrian Levy and Cathy Scott-Clark, .One Huge U.S Jail., THE GUARDIAN, Mar. 19, 2005, available at

http://www.guardian.co.uk/afghanistan/story/0,1284,1440836,00.html (accessed Feb. 3, 2006).

407 Craig Pyes and Mark Mazzetti, U.S. Probing Alleged Abuse of Afghans, L.A. TIMES, Sept. 21, 2004, at A1.

408 Id.

409 Id.

410 Id.

411 Id.; Craig Pyes, A Torture Killing by U.S. forces in Afghanistan, Crimes of War Project, Sept. 20, 2004, available at

http://www.crimesofwar.org/special/afghan/news-tortureafghan.html (accessed Feb. 3, 2006); see also Amended Complaint, Ali, et al., v.

Rumsfeld, et al. No. 05-CV-1377 (D.D.C., filed Jan. 5, 2006), ¶¶172-188.

412 Craig Pyes, A Torture Killing by U.S. forces in Afghanistan, Crimes of War Project, 9/20/04, available at

http://www.crimesofwar.org/special/afghan/news-tortureafghan.html (accessed Feb. 3, 2006).

413 Id.; see also Amended Complaint, Ali, et al., v. Rumsfeld, et al. No. 05-CV-1377 (D.D.C., filed Jan. 5, 2006), ¶174.

414 Craig Pyes, A Torture Killing by U.S. forces in Afghanistan, Crimes of War Project, 9/20/04, available at

http://www.crimesofwar.org/special/afghan/news-tortureafghan.html (accessed Feb. 3, 2006).

415 Id.

416 Craig Pyes and Mark Mazzetti, U.S. Probing Alleged Abuse of Afghans, L.A. TIMES, Sept. 21, 2004, at A1.

417 Craig Pyes for the Crimes of War Project, A Torture Killing by U.S. Forces in Afghanistan, Sept. 20, 2004, available at

http://www.crimesofwar.org/special/afghan/news-tortureafghan.html (accessed Feb. 3, 2006).

418 Id.

419 Id.

420 Id.

421 Id.

422 Id.

423 Id.

424 Id.

425 Press Briefing with National Security Advisor Stephen Hadley, Office of the Press Secretary (Nov. 2, 2005), available at

http://www.whitehouse.gov/news/releases/2005/11/20051102-10.html (accessed Feb. 3, 2006).

426 See, e.g., Criminal Investigation, Radad, supra note 260, at 29 (investigation was .not completely thorough (i.e. [failure to collect] the

weapon [allegedly used in the killing] for fingerprint analysis).); Dep.t of the Army, CID, CID Report of Investigation . 3D Final Supplemen118

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A Human Rights First Report

tal - 0013-04-CID789-83982 (Aug. 24, 2004), available at http://www.aclu.org/torturefoia/released/DOA_1480_1541.pdf, at 55 (accessed

Feb. 7, 2006) (review .disclosed the investigation was weak in the areas of thoroughness and documentation. because, inter alia, .the

photographs . were not taken consistent with the requirements or protocols of a homicide investigation,. the decision not to request an

autopsy .should [have been] explained somewhere in the report,. and .agents should have conducted a thorough investigation of

detainee.s remains..); Criminal Investigation, Ibrahim, supra note 359, at 29 (.investigation did not conduct a crime scene examination .

did not conduct interviews of those witnesses who found the victim . no effort [was] made to interview the alleged brother and son of the

victim..); Dep.t of the Army, CID, CID Report of Investigation . Final . 0140-03-CID389-61697-5H9B (Jan. 1, 2004) [Criminal Investigation,

Kareem], available at http://www.aclu.org/torturefoia/released/DOA_1206_1234.pdf, (accessed Feb. 3, 2006) (investigation .was weak in

Thoroughness and Timeliness . no documentation . explaining the lack of an autopsy . [n]o interrogators were interviewed . [the file]

does not mention the presence, or lack of, signs of a struggle, or of blood or body fluids..).

427 The term .commander. is a functional one, used by the U.S. Armed Forces to refer to a variety of top officers: brigades, battalions,

regiments, and companies all have commanding officers, and each exercises broad discretion over the soldiers in their command. See

Army Regulation 600-20, Army Command Policy, §1-5, (Feb. 1, 2006), available at http://www.army.mil/usapa/epubs/pdf/r600_20.pdf at 7-

8 (accessed Feb. 8, 2006) (.[t]he key elements of command are authority and responsibility.. The commander is responsible for

establishing leadership climate of the unit and developing disciplined and cohesive units.. The commanding officer. assigns appropriate

duties [to soldiers]..). Army regulations regularly use the blanket term to set out broad policy directives. See, e.g. Army Regulation 360-1,

The Army Public Affairs Program, §1-5, Oct. 15, 2000 (assigning responsibilities to .[a]ll commanders,. .Major Army Commander

commanders,. .installation commanders,. and .local commanders..). In the context of the death investigations discussed here, .commander

. refers to officer-rank personnel with authority over subordinate enlisted soldiers and, as applicable, over other officers.

428 See DIC Table: The findings in this chapter are based on a review of the administrative and criminal investigation records of 41 deaths;

the records of any investigations into the remaining 57 deaths in custody have not been made publicly available. Of these 41 deaths for

which military investigation records have been publicly released, 32 are records of Army criminal investigations, covering 37 deaths.

These records cover the deaths of: Kenami, Spah, al-Obodi, Abbas, Kadir, Sayari, Zaid, Byaty, Taleb, A. Najem, Mihdy, al-Haddii, al-

Juwadi, H. Ahmed, Basim, F. Mahmood, Amir, [Salman, Shalaan, Sayar, Thawin], al-Bawi, Fadil, Altia, Ibrahim, Abdullah, [K. Mahmood,

Farhan], Jabar, al-Hussen, al-Razak, Hasson, A. Hassan, F. Najem, [Habib, Ghafar], Radad (square brackets denote multiple deaths

covered in a single investigation). The Army has also publicly released nine administrative investigations (described below). For six of the

administrative investigations (which cover nine deaths, Radad, Kenami, H. Ahmed, [Salman, Shalaan, Sayar, Thawin], Jabar, A. Hassan)

criminal investigation records were also released. For another three administrative investigations, each covering a single death (Unknown

3, Unknown 4 and Unknown 5), no corresponding criminal investigation records have been released. Only one Navy criminal investigation,

into the death of Hemdan Haby Heshfan el-Gashame, has been publicly released. No details of investigations into CIA involvement in any

of the deaths have been released.

429 Depending on the service, investigations may be conducted by the Army Criminal Investigation Division (CID), the Naval Criminal

Investigative Service (NCIS), or the Air Force Office of Special Investigations. See, respectively, Army Regulation 195-1, Army Criminal

Investigation Program (Aug. 12, 1974), available at http://www.army.mil/usapa/epubs/pdf/r195_1.pdf (accessed Feb. 8, 2006); SECNAV

Instruction 5520.3B, Criminal and Security Investigations and Related Activities Within the Dep.t of the Navy (Jan. 4, 1993), available at

http://neds.daps.dla.mil/Directives/5520b3.pdf (accessed Feb. 8, 2006); Army Regulation 195-7/AFR 124-19, Criminal Investigative

Support to the Army and Air Force Exchange Service (AAFES) (Apr. 25, 1986), available at

http://www.army.mil/usapa/epubs/pdf/r195_7.pdf (accessed Feb. 8, 2006).

430 The Army.s Criminal Investigation Division is required to investigate any death in which a member of the Armed Forces is involved,

including both U.S. soldiers and their prisoners or detainees, as prescribed in Army Regulation 195-2, Criminal Investigation Activities,

Appendix B (Oct. 30, 1985), available at http://www.army.mil/usapa/epubs/pdf/r195_2.pdf (accessed Feb. 8, 2006).

431 Two series of military regulations detail the investigative procedures that Army CID must follow: Army Regulation Series 195, which is

publicly available (see Official Dep.t of the Army Administrative Publications, 195 Series Collection, available at

http://www.army.mil/usapa/epubs/195_Series_Collection_1.html (accessed Feb. 8, 2006); and CID Regulation Series 195, which is not

publicly available. Human Rights First attempted to obtain copies of the CID Regulation series both from CID Headquarters and from the

Department of Defense. According to the Department of Defense Public Affairs Office, the CID Regulation Series 195 is .a non-releasable

document and is protected under a law enforcement exemption.. Email from Maj. Wayne Marotto, Public Affairs Staff Officer, Dep.t of the

Army, to Human Rights First, Feb. 10, 2006 (on file with Human Rights First).

432 A single duty day is the equivalent of a single business day in the Army. See, e.g., Dep.t of the Army, 121st Signal Battalion, Policy

Memorandum 15 (June 24, 2003), available at http://www.1id.army.mil/1ID/Units/121sig/Policy_Letters/121%20Bn%20Policy%2015-

%20Battalion%20Rhythm.pdf (accessed Feb. 8, 2006).

433 See, e.g., Dep.t of the Army, CID, CID Report of Investigation . Initial/SSI - 0040-04-CID469-79638-5H1A, (Apr. 30, 2004) [Criminal

Investigation, Kadir], available at http://www.aclu.org/torturefoia/released/5399_5486.pdf at 49 (accessed Feb. 8, 2006) [hereinafter

Criminal Investigation, Kadir].

434 Army Regulation 15-6, Procedure for Investigating Officers and Board of Officers (Sept. 30, 1996), available at

http://www.usma.edu/EO/regspubs/r15_6.pdf (accessed Feb. 8, 2006) [hereinafter AR 15-6].

435 AR 15-6, supra note 434, at § 1-4(d).

436 Army Regulation 195-2, Criminal Investigation Activities, Appendix B (Oct. 30, 1985), available at

http://www.army.mil/usapa/epubs/pdf/r195_2.pdf (accessed Feb. 8, 2006). (CID is required to investigate the death of anyone in which the

Armed Forces were involved, including both soldiers and detainees, as prescribed in Appendix B.).

437 Each Army command unit is assigned a Staff Judge Advocate office, which is required to provide legal services to the command. Dep.t

of the Army, Field Manual 27-100, Legal Support to Operations, 2.1.7 (Mar. 1, 2000), available at

http://www.globalsecurity.org/military/library/policy/army/fm/27-100/index.html (accessed Feb. 3, 2006).

438 See, e.g., Staff Judge Advocate of the Commandant of the Marine Corps , Military Justice Fact Sheets, Reporting Crime and First

Stages of Investigation in the Military, http://sja.hqmc.usmc.mil/JAM/MJFACTSHTS.htm (accessed Feb. 3, 2006) (.[t]o help commanders

Command.s Responsibility . 119

A Human Rights First Report

decide how to resolve charges, commanders must make a .preliminary inquiry. into any allegations against a member of the command

under military procedural Rules for Courts-Martial (R.C.M.) found in the Manual for Courts-Martial..The commander can conduct this

inquiry himself, appoint someone else in his command to do it, or, as happens in very serious cases, request assistance from civilian or

military criminal investigative agencies..When the commander finishes the preliminary inquiry, he must make a decision on how to

resolve the case. Unlike civilian communities, where a district attorney decides whether or not to .press. charges, in the military, commanders

make that decision..)

439 See, e.g., id. (.The commander could decide that no action at all is warranted. Or he could take administrative action, such as an

admonition or reprimand, or making an adverse comment in performance evaluations, or seeking discharge of the member from the

service. The commander also possesses nonjudicial punishment authority under the procedures of Article 15, UCMJ. The commander

may also determine that criminal charges are appropriate. The .preferral. of charges, similar to .swearing out a complaint. in civilian

jurisdictions, initiates the court martial process.).

440 See, e.g., id. There are three different levels of court martial . summary, special and general . with general court martial, the military.s

highest level trial court, used for the most serious offenses, including charges of murder or manslaughter. See Uniform Code of Military

Justice, Subchapter IV: Court Martial Jurisdiction, § 816, Art. 816, available at

http://www.au.af.mil/au/awc/awcgate/ucmj.htm#SUBCHAPTER%20IV.%20COURT-MARTIAL%20JURISDICTION (accessed Feb. 3.

2006); Military.com, Benefits and Legal Matters, Legal Matters: Courts-Martial,

http://www.military.com/Resources/ResourcesContent/0,13964,30902--1,00.html (accessed Feb. 3, 2006). Manual for Courts-martial,

United States (2005 Edition), available at http://www.au.af.mil/au/awc/awcgate/law/mcm.pdf (accessed Feb. 3, 2006).

441 See Uniform Code of Military Justice, Subchapter VIII: Sentences, § 858a, Art. 58, available at

http://www.au.af.mil/au/awc/awcgate/ucmj.htm#SUBCHAPTER%20IV.%20COURT-MARTIAL%20JURISDICTION (accessed Feb. 3.

2006); Uniform Code of Military Justice, Subchapter VIII: Sentences, § 852, Art. 52(2), available at

http://www.au.af.mil/au/awc/awcgate/ucmj.htm#SUBCHAPTER%20IV.%20COURT-MARTIAL%20JURISDICTION (accessed Feb. 3.

2006) (.[n]o person may be sentenced by life imprisonment or to confinement for more than ten years, except by the concurrence of threefourths

of the members at the time the vote is taken.). Manual for Courts-martial, United States (2005 Edition), Rule 1003, available at

http://www.au.af.mil/au/awc/awcgate/law/mcm.pdf (accessed Feb. 3, 2006), at 173 . 177.

442 Human Rights First Telephone Interview with Brigadier General Stephen N. Xenakis, USA (Ret.), Former Commanding General of the

Southeast Regional Army Medical Command (Nov. 10, 2005) (notes on file with Human Rights First).

443 Dep.t of the Army, Field Manual 27-1, Legal Guide for Commanders, Chapter 8 (Jan. 13, 1992), available at

http://www.globalsecurity.org/military/library/policy/army/fm/27-1/Ch8.htm (accessed Feb. 3, 2006). The same is true for physical

evidence. As the Army Field Manual for Law Enforcement Investigations states, .physical evidence is one of [an investigator.s] most

valuable investigative assets.. Dep.t of the Army, Field Manual 19-20, Law Enforcement Investigations (Nov. 25, 1985), available at

https://134.11.61.26/CD7/Publications/DA/FM/FM%2019-20%2019851125.pdf, at 9 (accessed Feb. 3, 2006); see also Dep.t of the Army,

Field Manual 19-20, Law Enforcement Investigations, (Nov. 25, 1985), at 10 (.[t]o achieve the maximum benefit from physical evidence,

you must be not only skilled in its collection, but careful in your handling of it to preserve it for laboratory examination and/or for presentation

in court. You must retain the item.s evidential integrity by keeping the item as nearly as possible in its original condition..) (emphasis in

original).

444 Recognizing these dangers, Army Regulation 195-5 sets out 28 pages of detailed procedures on the proper handling and storage of

physical evidence. Army Regulation 195-5, Evidence Procedures (Aug. 28, 1992).

445 Memorandum from the Secretary of Defense for Secretaries of the Military Departments, Procedures for Investigation into Deaths of

Detainees in the Custody of the Armed Forces of the United States (June 9, 2004), available at

http://www.aclu.org/torturefoia/released/navy3797.3798.pdf (accessed Feb. 3, 2006).

446 Dep.t of Army, CID, CID Report of Investigation . Corrected Final . (C) 0264-03-CID259-61231/5H6 (Aug. 7, 2004) [Criminal Investigation,

Salman, Shalaan, Sayar, and Thawin], available at http://www.aclu.org/torturefoia/released/DOA_1902_1950.pdf at 29 (accessed

Feb. 8, 2006) [hereinafter Criminal Investigation, Salman, Shalaan, Sayar, and Thawin] (reporting that .due to the daily operations at the

Abu Ghraib Prison, every soldier in the incident could not be located and/or were on duty.), but see id., at 2-3 (listing as attachments

around ten sworn statements as well as canvass interviews); see also Dep.t of the Army, CID, CID Report of Investigation . Final

Supplemental - 0004-04-CID789-83980-5H6-5Y3, (July 22, 2004) [Criminal Investigation, Amir], available at

http://www.aclu.org/torturefoia/released/DOA_2156_2205.pdf, at 16.18 (accessed Feb. 8, 2006) (noting difficulty interviewing detainee

witness to a riot shooting death, but agents spoke to medical personnel, the shooters, and numerous other witnesses).

447 See DIC Table: Habibullah (victim.s blood stored in the butter dish of investigating agents. refrigerator, records and logs lost during the

course of investigation), Dilawar (records lost during the course of the investigation); Hatab (medical evidence lost and destroyed due to

lax handling); Jabar (no evidence collected from scene, including weapon and shells); al-Obodi (no fingerprints of deceased taken); A.

Najem (no crime scene examination, no photographs); Radad (investigators did not collect weapon used in the killing); Kenami (crime

scene examination incomplete); Ibrahim (no crime scene investigation conducted); Amir (crime scene investigation not conducted); Farhan

and K. Mahmood (no crime scene examination conducted, photographs of victim and scene inadequate, no death certificates collected);

al-Bawi (criminal investigator failed to collect any evidence supporting the conclusions of a prior investigation); F. Mahmood (no crime

scene exam conducted); Ghafar and Habib (no crime scene investigation conducted).

448 Seth Hettena, Army Pathologist Concedes Errors in Prisoner-Abuse Case, Assoc. Press, Oct. 14, 2004, available at

http://www.usatoday.com/news/nation/2004-10-14-errors-abuse_x.htm (accessed Feb. 3, 2006) (rib cage found at Armed Forces Institute

of Pathology, Washington D.C.; part of larynx found at Landstuhl military base in Germany).

449 Alex Roth, Marines involved in Iraqi abuse frustrated after their convictions THE SAN DIEGO UNION-TRIB., Dec. 13, 2004, at A1.

450 Criminal Investigation, Kenami, supra note 323, at 2.

451 Criminal Investigation, Kenami, supra note 323, at 13.

120 — VIII. Endnotes

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452 See DIC Table: Habibullah (investigators failed to interview commanders and guards in original investigation); Dilawar (investigators

failed to interview commanders and guards in original investigation, as well as an interrogator who later came forward to describe abuse);

Jabar (7 interview-related leads remained open when case was closed); Hussain (witnesses, including other detainees, were not

interviewed); Byaty (medics who tended to detainee not interviewed); Najem (no interviews with any witnesses to the death, nor with an

Iraqi who had provided medical care to the detainee); Unknown 4 (no interviews of other detainees); Zaid (medical personnel not

interviewed); Kenami (no interviews conducted with interrogators, doctor who filled out death certificate, one medic, guards, or other

detainees); Ibrahim (no interviews with witnesses present at death, including son of detainee who later alleged detainee was abused);

Abdullah (no interviews of other detainee witnesses); F. Mahmood (some medical personnel not interviewed); al-Bawi (no interviews of

any person conducted); Fadil (no interview of possible medical witness).

453 Criminal Investigation, Ibrahim, supra note 359, at 7, 23-25, 29.

454 Criminal Investigation, Najem, supra note 391, at 34.

455 See, e.g., Dep.t of the Army, Field Manual 19-20, Law Enforcement Investigations (Nov. 1985), available at

https://134.11.61.26/CD7/Publications/DA/FM/FM%2019-20%2019851125.pdf, at 174 (evidentiary value of some medical evidence may

be reduced by delayed examination), 176 (physical evidence may be destroyed if not secured promptly), 243 (delaying interviews allows

suspects to coordinate their testimony and destroy evidence) (accessed Feb. 3, 2006).

456 See Dep.t of Army, Field Manual 27-1, Legal Guide for Commanders, Chapter 8 (Jan. 13, 1992), available at

http://www.globalsecurity.org/military/library/policy/army/fm/27-1/ ) (accessed Feb. 3, 2006).

457 Army Regulation 190-40, Serious Incident Report (Jun. 15, 2005), available at http://www.usapa.army.mil/pdffiles/r190_40.pdf

(accessed Feb. 8, 2006). Appendix C-1(g) lists .all prisoner deaths. as Category-2 Reportable Serious Incidents, Section 3-2(b) mandates

the same 24-hour reporting period, and Section 3-5(a) also includes the Army.s Criminal Investigation Command (CID) as an addressee of

the report. The revised version of this regulation, issued June 15, 2005, contains identical requirements (section 2-3(g) lists .all prisoner

deaths. as Category-2 Reportable Serious Incidents; 3-2(b) requires that Category-2 incidents be reported within 24 hours; 3-5(a) requires

that all Serious Incident Reports be sent to CID); see also Memorandum from the Secretary of Defense for Secretaries of the Military

Departments, Procedures for Investigation into Deaths of Detainees in the Custody of the Armed Forces of the United States (June 9,

2004), available at http://www.aclu.org/torturefoia/released/navy3797.3798.pdf (accessed Feb. 3, 2006) (the June 7, 2004 memorandum

modifies an Army CID Regulation that is not publicly available; it is not, therefore, clear what was the prior requirement of this specific

regulation); Dep.t of the Army, CID, CID Report of Investigation . Initial/Final SSI . 0037-04-CID201-54050 (Nov. 16, 2004), available at

http://www.aclu.org/torturefoia/released/042105/9290_9388.pdf, at 68-69 (accessed Feb. 3, 2006); United States Marine Corps, Military

Police in Support of the MAGTF [Marine Air-Ground Task Force], MCWP 3-34. §1,5-4 (.[u]pon receiving information concerning alleged

war crimes committed by Marines, commanders must immediately notify the nearest CID field office..).

458 Army Regulation 95-1, Army Criminal Investigation Program, §3(b) (Aug. 12, 1974) (commanders .will insure that known or suspected

criminal activity is reported to the military police and, when appropriate, to CID for investigation..).

459 Army Regulation 195-2, Criminal Investigation Activities, §1-4(d) (Oct. 30, 1985).

460 Army Regulation 190-45, Law Enforcement Reporting, §3-1(a) (Jun. 6, 2005).

461 Army Regulation 360-1, The Army Public Affairs Program, §5-45, (Oct. 15, 2000).

462 Army Regulation 600-20, Army Command Policy, §5-8(1)(a) (July 15, 1999) (after a report of investigation has been forwarded to a

commander, .the case will be disposed of at the lowest level having authority consistent with the gravity of the case..).

463 See Dep.t of Army Field Manual 27-1, Legal Guide for Commanders, Chapter 3 (Jan. 13, 1992), available at

http://www.globalsecurity.org/military/library/policy/army/fm/27-1/ ) (accessed Feb. 3, 2006) (.Investigators must always remain impartial. A

one-sided investigation may result in an injustice to the accused and an embarrassment to the command.); United States Marine Corps,

Military Police in Support of the MAGTF [Marine Air-Ground Task Force], MCWP 3-34.1, §5-4 (Oct. 13, 2000) (.Commanders are

prohibited from interfering with the investigations or impeding the use of investigative techniques..)

464 United States Marine Corps, Military Police in Support of the MAGTF [Marine Air-Ground Task Force], MCWP 3-34.1, §5-4 (Oct. 13,

2000).

465 See Criminal Investigation, Radad, supra note 260, at 28.

466 See supra note 428 for details of the number of military criminal and administrative investigation records released.

467 See, e.g., Radad (review found that failure to collect evidence jeopardized any possible prosecution), Criminal Investigation, Radad,

supra note 260, at 28.29); Taleb (review found that autopsy report had not been received, Dep.t of the Army, CID, Report of Investigation

. Final Supplemental . 0147-03-CID259-61195-5H9A (June 3, 2004) [Criminal Investigation, Taleb], available at

http://www.aclu.org/torturefoia/released/23TFa.pdf, at 5 (accessed Feb. 3, 2006) [hereinafter Criminal Investigation, Taleb]); Abed Najem

(review found that .the investigation was operationally insufficient and was administratively insufficient. due to lack of interviews and

records, Criminal Investigation, Najem, supra note 391, at 34).

468 See criminal investigation reports for: Ibrahim (Criminal Investigation, Ibrahim, supra note 359; Abdullah (Dep.t of the Army, CID, CID

Report of Investigation- Corrected Final (C)/SSI- 0036-04-CID259-80151 (Aug. 20, 2004) [Criminal Investigation, Abdullah] available at

http://www.aclu.org/torturefoia/released/DOA_1872_1901.pdf, at 1-2, 6-7 (accessed Feb. 8, 2006) [hereinafter Criminal Investigation,

Abdullah]); Byaty (Criminal Investigation Byaty supra note 476); Mihdy (Dep.t of the Army, CID, CID Report of Investigation Final

Supplemental . 0239-03-CID259-61189-5H9A, (Jun. 4, 2004) [Criminal Investigation, Mihdy] available at

http://www.aclu.org/torturefoia/released/DOA_1542_1582.pdf (accessed Feb. 8, 2006) [hereinafter Criminal Investigation, Mihdy]); Najem

(Criminal Investigation, Najem, supra note 391);Taleb (Criminal Investigation, Taleb, supra note 467); Zaid (Dep.t of the Army CID, CID

Report of Investigation . Initial/Final C/SSI . 0168-04-CID899-81718-5H8, (May 31, 2004) [Criminal Investigation, Zaid] available at

http://www.aclu.org/torturefoia/released/DOA_2206_2216.pdf (accessed Feb. 8, 2006)); al-Hussen (Dep.t of the Army CID, CID Report of

Investigation . Final Supplemental 0012-04-CID259-80136-5H9A, (Sept. 3, 2004) [Criminal Investigation, al-Hussen] available at

http://www.aclu.org/torturefoia/released/DOA_1837_1871.pdf (accessed Feb. 8, 2006) [hereinafter Criminal Investigation, al-Hussen]).

Command.s Responsibility . 121

A Human Rights First Report

469 The earliest death in this group was that of Byaty, which occurred on August 7, 2003. Criminal Investigation, Byaty infra note 476, at 1.

470 Dep.t of the Army, CID to Commander, Request for Investigation 0370-04-CID001, (Sept. 7, 2004) (.A review of unclassified military

intelligence files revealed a spreadsheet titled .PMO Detainee Not in Camp Roster. which documented eight detainee deaths, four of

which were previously documented under a CID Report of Investigation..). Army CID was not the only agency to initiate such a review in

May 2004. When the Abu Ghraib abuses became public, the FBI sent a request to all of its agents who had served in Guantanamo Bay for

information related to prisoner abuses. See E-mail from Steven C. McGraw to multiple redacted recipients, Subject GTMO (July 7, 2004,

02:10 PM EST) available at http://www.aclu.org/torturefoia/released/FBI_3944_3947.pdf (accessed Feb. 3, 2006). Several previously

unreported incidents . later substantiated by an official Pentagon investigation . came to light as a result. Dep.t of the Army, Army

Regulation 15-6: Final Report: Investigation Into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba, Detention Facility, (Jun. 9,

2005) available at http://www.defenselink.mil/news/Jul2005/d20050714report.pdf, at 2 (accessed Feb. 3, 2006).

471 Criminal Investigation, Hasson, supra note 352, at 2.

472 Dep.t of the Army, CID, CID Report of Investigation . Final/SSI . 0236-04-CID259-80272-5H9B, (Aug. 3, 2004) [Criminal Investigation,

Mashnadane] available at http://www.aclu.org/torturefoia/released/5000_5014.pdf (accessed Feb. 8, 2006). CID agents later found that

Mashnadane.s death had previously been investigated. This was a death caused by mortar attack, so although it is included in our total

count of deaths in U.S. custody, it is not included in the sample analyzed in the DIC Table. See supra note 1.

473 See DIC Table: Sayari (death not reported to criminal investigators by Special Forces commanders; criminal investigation began only

after sergeant reported possible war crime to investigators); Unknown 2 (case does not appear to have been reported; came to light

during the course of another criminal investigation 20 months after the death); Jabar (allegedly shot and killed during escape attempt;

death not reported by commanders and investigation did not begin until a year later); Hassan (shooting of detainee during prison riot not

reported; investigation not begun until 13 months after death); Byaty (investigation does not appear to have begun until nine months after

death; reason unknown); Naseer (allegedly tortured to death by Special Forces; initial criminal investigation opened nine months after

death, closed for lack of leads, reopened a year and a half after death); Hasson (death not reported; criminal investigation opened one

year after death of detainee for whom no records but name, identification number and location of death were known); Radad (death not

reported to criminal investigators until after administrative investigation); Unknown 6 (criminal investigation appears only to have opened

10 months after death, following ICRC report of death); al-Izmerly (criminal investigators not informed of death of high-value detainee until

after body had been released, precluding a U.S. autopsy); Hassoun (commanders attempted to conceal detainee.s death by drowning);

Unknown 15 (death of man military claims was shot when he reached for a pistol does not appear to have been criminally investigated;

family claims the man was elderly and disabled); al-Bawi (death does not appear to have been reported to criminal investigators; only

administrative investigation originally conducted); Salman, Sayar, Shalaan, Thawin (deaths during prison riot not reported to criminal

investigators for at least a week by which time body of one decedent had been taken away and could not be examined).

474 Among documents produced by the military in response to FOIA litigation is a spreadsheet dated November 5, 2004, listing cases of

alleged abuse and deaths under investigation. The spreadsheet contains a .Rpt. by. column, in which the entries for 17 of the deaths

include .Taguba report,. .AFIP [Armed Forces Institute of Pathology],. and .ICRC [International Committee of the Red Cross] Report. . i.e.

entities other than the unit commanders who are obligated to report deaths to criminal investigators. Spreadsheet of Military Investigations

(dated Nov. 5, 2004), available at http://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 11-21 (accessed Feb. 7, 2006).

475 Criminal Investigators Outline 27 Homicides, supra note 64, at 5.

476 Dep.t of the Army, CID, CID Report of Investigation . Initial/Final C/SSI . 0167-04-CID899-81717 (May 31, 2004) [Criminal Investigation,

Byaty], available at http://www.aclu.org/torturefoia/released/535_544.pdf, at 5 (accessed Feb. 3, 2006) [hereinafter Criminal

Investigation, Byaty].

477 Criminal Investigation Byaty supra note 476, at 29, 48.

478 Office of the Armed Forces Med. Exam.r, Autopsy Examination Report, ME03-385, (Sept. 29, 2003) [Autopsy, Byaty], available at

http://www.aclu.org/torturefoia/released/041905/m001_203.pdf, at 77 (accessed Feb. 3, 2006).

479 Salaheddin, Family Welcomes Probe, supra note 378.

480 Criminal Investigation, Salman, Shalaan, Sayar, and Thawin, supra note 446, at 10.

481 Criminal Investigation, Hasson, supra note 352, at 1-2.

482 Army Regulation 195-2, Criminal Investigation Activities, § 1-5a (Oct. 30, 1985), available at

http://www.army.mil/usapa/epubs/pdf/r195_2.pdf (accessed Feb. 8, 2006); Dep.t of the Army, Field Manual 19-10, Military Police Law and

Order Operations, Ch 14: MPI and USACIDC (Sept. 30, 1987), available at http://www.globalsecurity.org/military/library/policy/army/fm/19-

10/index.html (accessed Feb. 8, 2006).

483 Dep.t of the Army, CID, General Questions About CID, How many people are in CID?, http://www.cid.army.mil/faqs.htm#faq2

(accessed Feb. 8, 2006).

484 Dep.t of the Army, CID, General Questions About CID, What is CID.s mission?, http://www.cid.army.mil/faqs.htm#faq1 (accessed Feb.

8, 2006).

485 See, e.g., Criminal Investigation, Radad, supra note 260, at 23. Throughout the investigative process, the investigating agents draw up

drafts of what will be, at the completion of the investigation, a final Report of Investigation. A Report of Investigation is defined as .an

official written record of all pertinent information and facts obtained in a criminal investigation.. Army Regulation 195-2, Criminal Investigation

Activities (Oct. 30, 1985), available at http://www.army.mil/usapa/epubs/pdf/r195_2.pdf (accessed Feb. 8, 2006).

486 See, e.g., Criminal Investigation, Radad, supra note 260, at 2.

487 See, e.g., Dep.t of the Army, CID, CID Report of Investigation-Final Supplemental/SSI- 0071-04-CID065-62019 (Sept. 2, 2004)

[Criminal Investigation, Jabar], available at http://www.aclu.org/torturefoia/released/DOA_1121_1144.pdf, at 12 (accessed Jan. 30, 2006)

[hereinafter Criminal Investigation, Jabar].

488 See, e.g., Criminal Investigation, Radad, supra note 260, at 12.

122 — VIII. Endnotes

A Human Rights First Report

489 Criminal Investigation, Sayari, supra note 273, at 12.17.

490 See, e.g., Criminal Investigation, Radad, supra note 260, at 22.

491 See, e.g., Criminal Investigation, Salman, Shalaan, Sayar, and Thawin, supra note 446, at 8 . 9.

492 See, e.g., Dep.t of the Army, CID, CID Report of Investigation-Final Supplemental- 0016-04-CID789-83983, (July 22, 2004) [Criminal

Investigation, F. Mahmood], available at http://www.aclu.org/torturefoia/released/DOA_1181_1205.pdf, at 2 (accessed Feb. 3, 2006)

[hereinafter Criminal Investigation, F. Mahmood].

493 See, e.g., Criminal Investigation, F. Mahmood, supra note 492, at 24.

494 Criminal Investigators Outline 27 Homicides, supra note 64, at 1 (.it is important to note that CID does not charge persons with a crime,

that is the responsibility of the appropriate commanders and their legal staffs.) (emphasis in original).

495 Maj. Gen. Antonio Taguba, AR 15-6, INVESTIGATION OF THE 800TH MILITARY POLICE BRIGADE, Feb. 2004, available at

http://www.humanrightsfirst.org/us_law/800th_MP_Brigade_MASTER14_Mar_04-dc.pdf (accessed Feb. 3, 2006) [hereinafter TAGUBA

REPORT].

496 See supra note 428 for details of the number of military criminal and administrative investigation records released. Based on references

in the 32 publicly-released criminal investigation reports, press accounts, and reports of administrative investigations that have been

publicly released, Human Rights First has identified 12 cases of overlap, covering 15 detainee deaths. See DIC Table: The deaths are

those of Kenami, H. Ahmed, Sayar, Salman, Shalaan, Thawin , Jabar, A. Hassan, Radad, Kadir, Sayari, al-Bawi, Mowhoush, Dilawar, and

Habibullah. Based on a review of the publicly released investigation reports, administrative and criminal investigations were concurrent in

three cases: Mowhoush, Kenami and Hassan Ahmed.

497 Criminal Investigation, al-Bawi, supra note 71, at 5.

498 Criminal Investigation, Radad, supra note 260, at 29.

499 Dep.t of the Army, CID,CID Report of Investigation . Initial/Final SSI-0037-04-CID201-54050, (Nov. 16, 2004), available at

http://www.aclu.org/torturefoia/released/042105/9290_9388.pdf, at 70 (accessed Feb. 3, 2006) (stipulating that if .an AR 15-6 investigation

or equivalent. was conducted .prior to notifying CID of an allegation . the supporting CID element will obtain a copy of and review the

inquiry to determine if it thoroughly and fairly investigated the incident(s) . if further investigative efforts are deemed appropriate, the

supporting CID element will initiate an ROI to continue the investigation..).

500 Criminal Investigation, al-Bawi, supra note 71, at 5.

501 Thanassis Cambanis, Shooting Death Angers Iraqi Family, BOSTON GLOBE, June 21, 2004, at A1; Liz Sly, Family Prods Military on

Iraqi.s Death, CHI. TRIB., July 5, 2004, at 4.

502 Jackie Spinner, Family Seeks Justice in Case of Iraqi Slain by U.S. Troops, WASH. POST, June 15, 2004, at A13; Thanassis Cambanis,

Shooting Death Angers Iraqi Family, BOSTON GLOBE, June 21, 2004, at A1..

503 Criminal Investigation, al-Bawi, supra note 71, at 21 . 28.

504 Criminal Investigation, al-Bawi, supra note 71, at 8.

505 Criminal Investigation, al-Bawi, supra note 71, at 1.

506 Criminal Investigation, Jabar, supra note 487, at 5. The administrative investigation report was released independent of the criminal

investigation report, as one of the annexes to the report of Major General Taguba. TAGUBA REPORT, supra note 495.

507 Criminal Investigation, Jabar, supra note 487, at 12.

508 Criminal Investigation, Jabar, supra note 487, at 2, 14.

509 AR 15-6, supra note 434, at 1-4a.

510 AR 15-6, supra note 434, at 1-1.

511 AR 15-6, supra note 434, at 2-1a(3).

512 AR 15-6, supra note 434, at 1-4b, 2-1b.

513 AR 15-6, supra note 434, at 2-1c..

514 AR 15-6, supra note 434, at 5.

515 AR 15-6, supra note 434, at 2-3.

516 AR 15-6, supra note 434, at 2-3b.

517 AR 15-6, supra note 434, at 2-3a..

518 AR 15-6, supra note 434, at 2-1a.

519 See, e.g., Geneva Convention (III) Relative to the Treatment of Prisoners of War, Geneva, August 12, 1949, 75 U.N.T.S. 135, arts. 70

(requiring prisoners of war be allowed to send a card to their families with details of their capture and health), 122 (requiring states to set

up an information bureau to gather and transmit information on the identity, health, and death of all prisoners of war) , available at

http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6fef854a3517b75ac125641e004a9e68 (accessed Feb. 3, 2006);

Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Geneva, August 12, 1949, 75 U.N.T.S. 287, arts.

106 (requiring civilian internees be allowed to send a card to their families with details of their capture and health), 136, 138 (requiring

states to set up an information bureau to gather and transmit information on the identity, health, and death of civilian internees), available

at http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6756482d86146898c125641e004aa3c5 (accessed Feb. 3, 2006).

520 See, e.g., Dep.t of Defense, Directive No. 2310.1, Dep.t of Defense Program for Enemy Prisoners of War and Other Detainees, D.2

(Aug. 18, 1994), available at http://www.fas.org/irp/doddir/dod/d2310_01.htm (accessed Feb. 3, 2006) (.[t]he Secretary of the Army [shall]

. [d]evelop and provide policy and planning guidance for the treatment, care, accountability, legal status, and administrative procedures

Command.s Responsibility . 123

A Human Rights First Report

to be followed about [detainees, and] ensure that a national-level information center exists that can fully serve to account for all persons

who pass through the care, custody, and control of the U.S. Military Services.); see also Army Regulation 190-8, Enemy Prisoners of War,

Retained Personnel, Civilian Internees, and Other Detainees, 1-7 (Oct. 1, 1997), available at

http://www.usapa.army.mil/pdffiles/r190_8.pdf (accessed Feb. 3, 2006) (requiring that information on detainees be collected and stored,

including .[c]apturing unit,. .[c]ircumstances of capture,. and .personal data [on]. state of health, and changes to this data.); Army

Regulation 40-66, Medical Record Administration and Health Care Documentation, 1-4(h) (July 20, 2004), available at

http://www.army.mil/usapa/epubs/pdf/r40_66.pdf (accessed Feb. 3, 2006) (.[h]ealth-care providers will promptly and correctly record all

patient observations, treatment, and care.).

521 See DIC Table: Unknown 1 (.ghost. detainee was not on any agency.s registry of prisoners; death was kept secret for two years prior

to investigation); al-Jamadi (.ghost. detainee kept off prison records; body not released to ICRC until three months after his death); Naseer

(lack of documentation of death, witnesses or even unit assigned to facility where death occurred stymied criminal investigation) , al-Haddii

(two-month delay in criminal investigation into death because file was misplaced), Jabar (investigation into death failed to follow up on 17

outstanding leads, including interviews of relevant witnesses, crime scene examination and an autopsy; death was determined to be

justifiable homicide), Unknown 3 (failure to do medical screening of detainee and lack of documentation prevented definitive determination

of cause of death), Unknown 4 (cause of death could not be determined because of inadequate medical reporting and record keeping),

Unknown 5 (determination of cause of death difficult to determine because of lack of medical monitoring of detainee), Taleb (cause of

death undetermined due to lack of autopsy results until nine months after death when autopsy report was received), Kenami (cause of

death could not be determined, in part, because of what the review characterized , as a criminal investigation .weak in thoroughness and

timeliness. and faulted it for lack of autopsy; lack of interviews of pertinent witnesses, and a failure to collect records of medical treatment);

al-Hussen (no medical records attached to investigation), H. Ahmed (failure to read medical intake records and to conduct witness

interviews), Amir (investigation into death was reopened because of failure to obtain death certificate; few records regarding custody exist

because of lack of clarity over whether detainee was in U.S. or Iraqi custody) ; al-Obodi (cause of death could not be determined because

of failure to collect medical records including autopsy); al-Zubaidy (cause of death could not be determined because of almost no

documentation, resulting in his death.s going unreported for almost a year).

522 Criminal Investigation, Abdullah, supra note 468, at 1-2, 6-7 (reporting detainee Abdullah died of a perforated ulcer); Abbas, Dep.t of

the Army, CID, CID Report of Investigation- Final (C)- 0050-04-CID259-80155 (Mar. 16, 2004) [Criminal Investigation, Abbas], available at

http://www.aclu.org/torturefoia/released/DOA_2097_2155.pdf, at 1, 6-7, 22 (accessed Feb. 8, 2006) (reporting detainee Abbas, who had

suffered a number of heart attacks, died of cardiac arrest); Criminal Investigation, al-Obodi, supra note 372, at 1-2, 7-8 (reporting detainee

al-Obodi .appeared extremely ill. and complained of feeling unwell prior to his death of an apparent heart attack); Basim, Dep.t of the

Army, CID, CID Report of Investigation-Final Supplemental- 0014-03-CID919-63732 (July 21, 2004) [Criminal Investigation, Basim]

available at http://www.aclu.org/torturefoia/released/DOA_2060_2096.pdf, at 1, 6 (accessed Feb. 8, 2006) (reporting detainee Basim was

diagnosed with tuberculosis a day before his death); Criminal Investigation, Najem, supra note 391, at 1, 15 (reporting detainee Abed

Najem died of heart attack arising from diabetes); Criminal Investigation, Mihdy, supra note 468, at 1, 11 (June 4, 2004) (reporting

detainee Mihdy died of an apparent heart attack after telling medics that he had a prior heart condition); Criminal Investigation, al-Hussen,

supra note 468, at 1, 26 (reporting detainee al-Hussen had been in medical hold when he died of myocarditis); Ahmed, Dep.t of the Army,

CID, CID Report of Investigation-Final Supplemental- 0025-04-CID469-79635, (July 14, 2004) [Criminal Investigation, Ahmed], at 1, 6

(reporting detainee Ahmed had been ill for .a couple. of days before his heart-attack death) and Dep.t of the Army, AR 15-6 Investigation

of the Death Detainee [sic] # [redacted], p. 5 (Mar. 2, 2004) (detainee Ahmed suffered from diabetes, anemia, and kidney failure); Criminal

Investigation, F. Mahmood, supra note 492, at 1, 12 (reporting detainee Mahmood died about 20 days after complaining of chest pains);

al-Juwadi, Dep.t of the Army, CID, CID Report of Investigation-Final/SSI- 0032-04-CID789-83985, (June 30, 2004) [Criminal Investigation,

al-Juwadi] available at http://www.aclu.org/torturefoia/released/DOA_2222_2248.pdf, at 1, 3-4 (accessed Feb. 8, 2006) [hereinafter

Criminal Investigation, al-Juwadi] (reporting detainee al-Juwadi, who had a history of high blood pressure and diabetes, died of a heart

attack); Altia, Dep.t of the Army, CID, CID Report of Investigation-Final Supplemental- 0040-04-CID789-83990, (Aug. 14, 2004) [Criminal

Investigation, Altia] available at http://www.aclu.org/torturefoia/released/DOA_2578_2595.pdf, at 1, 5 (accessed Feb. 8, 2006) (reporting

detainee Altia, who had a prior history of diabetes, died of a heart attack two days after complaining of chest pains); al-Razak, Dep.t of the

Army, CID, CID Report of Investigation-Final/SSI- 0059-04-CID789-83991 (Oct. 15, 2004) [Criminal Investigation, al-Razak], available at

http://www.aclu.org/torturefoia/released/021605/6022_6039.pdf, at 1, 3 (accessed Feb. 8, 2006) (reporting detainee Abd al-Razak, who

had had previous heart problems, died of a heart attack several days after returning to the prison from a hospital); Unknown 3, Dep.t of the

Army, 15-6 Investigation [Into Death of an Unknown Detainee] (July 26, 2003) [Administrative Investigation, Unknown 3], available at

http://www.aclu.org/torturefoia/released/041905/6233_6312.pdf, at 5, (accessed Feb. 3, 2006). (noting unidentified detainee (listed in DIC

Table as Unknown 3) was diagnosed with diabetes, angina, and coronary artery disease 20 days before his death); Unknown 4, Dep.t of

the Army, Informal Investigation of Death of Iraqi Detainee [redacted] (Aug. 24, 2003) [Administrative Investigation, Unknown 4], available

at http://www.aclu.org/torturefoia/released/041905/6233_6312.pdf, at 3-4, (accessed Feb. 3, 2006) [hereinafter Administrative Investigation,

Unknown 4] (noting unidentified detainee (listed in DIC Table as Unknown 4) complained to medics of various ailments the day

before his death).

523 Criminal Investigation, al-Obodi, supra note 372, at 2-3, 35-36 (no medical records or autopsy found for al-Obodi); Criminal Investigation,

Najem, supra note 391, at 1-2, 10, 13 (no records confirming that Abed Najem had diabetes); Criminal Investigation, Mihdy, supra

note 468, at 1-2, 8-9, 11, 16 (no medical records for Mihdy attached); Criminal Investigation, al-Hussen, supra note 468, at 1-4, 18 (no

medical records for al-Hussen attached because attempts to locate them were unsuccessful); Administrative Investigation, Unknown 4,

supra note 522, at 3- (records of intake screening, sick call, and treatment could not be found for unnamed detainee (listed in DIC Table

as Unknown 4)).

524 See, e.g., Criminal Investigation, al-Obodi, supra note 372, at 1, 43-44 (CID informed immediately after detainee death, but results of

autopsy not requested for eight months due to apparent administrative neglect).

525 Criminal Investigation, al-Juwadi, supra note 522.

526 See TAGUBA REPORT, supra note 495, at 26-27 (stating the .320th MP Battalion . held a handful of .ghost detainees. . that they

moved around within the facility to hide them from a visiting International Committee of the Red Cross (ICRC) survey team. This maneuver

124 — VIII. Endnotes

A Human Rights First Report

was deceptive, contrary to Army Doctrine, and in violation of international law.); see also Dep.t of Defense, Directive No. 2310.1, Dep.t of

Defense Program for Enemy Prisoners of War and Other Detainees D.2.d (Aug. 18, 1994), available at

http://www.fas.org/irp/doddir/dod/d2310_01.htm (accessed Feb. 3, 2006); U.N. Hum. Rts. Comm., General Comment No. 20, Replaces

General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment (Art. 7), 44th Sess., at ¶ 11 (1992), U.N. Doc.

HRI/GEN/1/Rev.7 at 150 (2004), available at

http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/ca12c3a4ea8d6c53c1256d500056e56f/$FILE/G0441302.pdf

(accessed Feb. 3, 2006).

527 The two are Manadel al-Jamadi and the .Salt Pit. detainee. See Eric Schmitt, 4 Navy Commandos are Charged in Abuse, N.Y. TIMES,

Sept. 4, 2004, at A6; Seth Hettena, Reports Detail Abu Ghraib Prison Death, ASSOC. PRESS, Feb. 17, 2005; Dana Priest, CIA Avoids

Scrutiny of Detainee Treatment, WASH. POST, Mar. 3, 2005, at A1.

528 Dep.t of the Army, AR 15-6 Investigation . Detainee Death at 2d BCT Detainment Facility (Sept. 7, 2004), available at

http://www.aclu.org/torturefoia/released/041905/6233_6312.pdf , at 52 (accessed Feb. 3, 2006).

529 Id. at 54. See DIC Table Unknown 4.

530 See supra notes 352-358 and accompanying text (case of Hasson) and supra notes 372-377 and accompanying text (case of al-

Obodi).

531 Dep.t of the Army, Office of the Surgeon General, Army, ASSESSMENT OF DETAINEE MEDICAL OPERATIONS FOR OEF, GTMO, AND OIF, at

9 (1 . 4) (Apr. 13, 2005), available at http://www.globalsecurity.org/military/library/report/2005/detmedopsrpt_13apr2005.pdf (accessed

Feb. 3, 2006).

532 Id.

533 Id. at 83 (15.1).

534 Id. at 36 (6.1).

535 As described above, supra note 3, these cases include 20 homicides that military investigators found to be unjustified or in which

prosecutions were brought. They also include 14 cases in which investigators found the homicide to be justified. We include in our count

homicides that investigators found justified because the classification of many of these deaths as justifiable is open to question. For

example, in the death of al-Bawi, a criminal investigator only gave an administrative investigation finding of justified homicide a cursory

review, without independent investigation, despite allegations by al-Bawi.s family and an Iraqi medical examiner that called findings into

question. See supra notes 247-255 and accompanying text. Another four of the deaths investigators classified as justified are those of

Salman, Sayar, Shalaan and Thawin, killed during the same prison riot by U.S. guards. The ICRC has criticized the military for use of

excessive force in the riot that lead to those deaths. International Committee of the Red Cross, REPORT OF THE INTERNATIONAL COMMITTEE

OF THE RED CROSS (ICRC) ON THE TREATMENT BY THE COALITION FORCES OF PRISONERS OF WAR AND OTHER PROTECTED PERSONS BY THE

GENEVA CONVENTIONS IN IRAQ DURING ARREST INTERNMENT AND INTERROGATION, Feb. 2004, at 20, ¶46, available at

http://www.humanrightsfirst.org/iraq/ICRC_Report.pdf (accessed Feb. 8, 2006). The ICRC.s criticism is supported by the military.s own

findings. See TAGUBA REPORT, supra note 495, at 28-29 (finding that the riot was in protest of living conditions. Although use of deadly

force was found to be authorized, contributing factors were .lack of comprehensive training of guards, poor or non-existent [standard

operating procedures]. no rehearsals or ongoing training, the mix of less than lethal rounds with lethal rounds in weapons . . . [Rules of

Engagement] not posted and not understood, overcrowding . . . poor communication between the command and Soldiers.) (referencing

Dep.t of the Army, 15-6 Investigation on Riot and Shootings at Abu Ghurayb on (24 November 2003), Taguba Report Annex 8, available

at http://www.defenselink.mil/pubs/foi/detainees/taguba/ANNEX_008_15-6_INVESTIGATION_24_NOV_2003.pdf (accessed Feb. 3,

2006)).

536 See DIC Table: Criminal charges were recommended against U.S. personnel for the deaths of Sayari, Habibullah, Dilawar, Unknown 2,

Hatab, Wali, Radad, Jamadi, Mowhoush, Hassoun, F. Mohammed, Ismail, Jameel, Kadir, Kareem, Hanjil, Unknown 18, Unknown 19, T.

Ahmed, and Unknown 22.

537 See DIC Table: Most cases involve multiple accused; in relation to any particular detainee death, proceedings against some individuals

may be complete while others remain pending. Criminal charges have been brought in 14 cases: Habibullah, Dilawar, Hatab, Wali,

Mowhoush, Jamadi, Hassoun, Kadir, Unknown 18, Unknown 19, Ismail, T. Ahmed, Unknown 22 and F. Mohammed. In another case, that

of Unknown 2, killed while being questioned in a village in Afghanistan by Army Special Forces in January 2003, criminal charges were

recommended but Human Rights First has been unable to determine whether they were eventually brought. Criminal Investigators Outline

27 Homicides, supra note 64, at 5. Criminal proceedings have not proceeded to completion in at least ten cases. Charges were recommended

but no individual was ever punished for the deaths of Jameel, Kareem, and Hanjil because, in each of these cases, commanders

decided not to proceed with either criminal or administrative punishment. There has been no public explanation of the reduction in charges

in the Kareem or Hanjil cases, and a Human Rights First Freedom of Information Act request for case documents remains pending. In two

cases (Sayari and Radad) criminal charges were recommended but commanders declined to bring them and punished the suspects

administratively instead. Trials for some of the individuals charged in the deaths of Habibullah, Dilawar, and Wali are pending as of this

writing. Finally, while the CIA has reportedly referred the cases of Mowhoush and al-Jamadi to the Department of Justice for possible

prosecution, no further action has yet been taken. The status of the cases of Unknown 2 and Unknown 22 remains uncertain. Human

Rights First sought from the Department of Defense on January 20 and 26, 2006 an update on the cases of Unknown 2 and 22; as of

February 10, we had received no response.

538 See DIC Table: The twelve cases resulting in punishment of any kind are: Sayari (administrative reprimand against one soldier for

destruction of evidence), Habibullah and Dilawar (punishments include convictions and guilty pleas at court martial and administrative

punishments), Hatab (criminal and administrative punishment), Radad (administrative punishment), al-Jamadi (administrative punishment),

Mowhoush (criminal and administrative punishment), Hassoun (criminal and administrative punishment), Kadir (criminal

punishment), Unknown 18 (criminal punishment), Unknown 19 (criminal punishment), and T. Ahmed (criminal punishment).

539 See DIC Table: In eight out of twelve cases, punishments were disproportionately lenient: Sayari (commanders reduced charge against

one accused to written reprimand, no action taken against four others); Dilawar and Habibullah (Three soldiers were charged with

Command.s Responsibility . 125

A Human Rights First Report

offenses relating only to Habibullah; all three were acquitted of all charges. Two were charged with offenses relating only to Dilawar; both

pled guilty and were sentenced to 5 months and 75 days in prison, respectively, among other punishments. Seven were charged with

offenses relating to both detainees; two soldiers had their charges dismissed before being court-martialed and were reprimanded, one

was convicted of assault and reduced in rank, three pled guilty . one received 3 months in prison and a second received 2 months,

among other punishments, while the third was fined and reprimanded with no prison time . and the trial of one remains pending.); Hatab

(charges against one accused were reduced to assault and battery, dereliction of duty, and maltreatment, and upon conviction on the

latter two counts the punishment was discharge; another received nonjudicial punishment (reduction in rank) as part of plea agreement for

testimony; another was acquitted of charges at court-martial, and the charges against all other accused were dismissed); Radad

(commander authorized administrative discharge of only soldier accused; criminal investigators later found probable cause for murder);

Hassoun (two soldiers acquitted of manslaughter (though convicted of other charges and given prison sentences of six months and 45

days), three commanders who had instructed subordinates not to cooperate with investigators received reprimands, two other soldiers

received non-judicial punishment); Kadir (single accused charged with unpremeditated murder instead convicted of voluntary manslaughter

and sentenced to three years in prison); Mowhoush (accused charged with murder convicted of negligent homicide and negligent

dereliction of duty, fined $6,000, 60 days restricted duty, reprimanded).

540 Of the eight deaths Human Rights First considers as involving torture, only four cases have resulted in any kind of punishment. See

DIC Table: These are in the deaths of: Habibullah, Dilawar, Jamadi and Mowhoush. The most punishment in any of these cases to date is

5 months imprisonment and a bad conduct discharge for an Army Sergeant, for the death of Dilawar.

541 Dilawar (Army Reservist Sentenced to 75 Days in Prison, ASSOC. PRESS, Aug. 31, 2005, available at

http://abclocal.go.com/ktrk/story?section=state&id=3399051 (accessed Feb. 3, 2006, 2005); Alicia Caldwell, Cincinnati Soldier Found

Guilty in Death of Detainee, ASSOC. PRESS, Aug. 18, 2005, available at

http://news.cincypost.com/apps/pbcs.dll/article?AID=/20050818/NEWS01/508180382 (accessed Feb. 3, 2006)); Habibullah, (Army

Reservist Sentenced to 75 Days in Prison, ASSOC. PRESS, Aug. 31, 2005, available at

http://abclocal.go.com/ktrk/story?section=state&id=3399051 (accessed Feb. 3, 2006, 2005); Alicia Caldwell, Cincinnati Soldier Found

Guilty in Death of Detainee, ASSOC. PRESS, Aug. 18, 2005, available at

http://news.cincypost.com/apps/pbcs.dll/article?AID=/20050818/NEWS01/508180382 (accessed Feb. 3, 2006); Hatab (David Hasemyer,

Marine Says He Was Ordered to Grab Iraqi Prisoner’s Neck, SAN DIEGO UNION-TRIB., Nov. 4, 2004, at B2; Tony Perry, Marine Convicted

of Assault, L.A. TIMES, Sept. 3, 2004, at B1); Mowhoush (Nicholas Riccardi, Mild Penalties in Military Abuse Cases, L.A. TIMES, Jan. 25,

2006, available at http://www.latimes.com/news/printedition/asection/la-na-abuse25jan25,1,6318208.story (accessed Feb. 3, 2006); Jon

Sarche, Jury Orders Reprimand, No Jail for Soldier, ASSOC. PRESS, Jan. 24, 2006, available at http://www.washingtonpost.com/wpdyn/

content/article/2006/01/24/AR2006012400177.html (accessed Feb. 3, 2006); Nicholas Riccardi, Interrogator Convicted in Iraqi’s

Death, L.A. TIMES, Jan. 22, 2006, available at http://www.latimes.com/news/printedition/la-na-interrogate22jan22,1,81943.story (accessed

Feb. 3, 2006); Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006,

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

542 Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006, excerpts available

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

543 Id.

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

(Sept. 10, 2003), available at http://www.humanrightsfirst.info/pdf/06124-etn-sep-10-sanchez-memo.pdf (accessed Feb. 3, 2006).

545 Human Rights First notes from observation of Welshofer court martial, Welshofer In His Own Words, Jan. 20, 2006, excerpts available

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

546 Josh White, U.S. Army Officer Convicted in Death Of Iraqi Detainee, WASH. POST, Jan. 23, 2006, at A2; Human Rights First notes from

observation of Welshofer court martial, In Their Own Words, Jan. 19, 2006, available at

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

547Jon Sarche, Army Officer Found Guilty In Iraqi.s Death, ASSOC. PRESS, Jan. 22, 2006, available at

http://www.msnbc.msn.com/id/10950946/ (accessed Feb. 8, 2006).

548 Tim Golden, Case Dropped Against U.S. Officer in Beating Deaths of Afghan Inmates, N.Y. TIMES, Jan. 8, 2006, at A13.

549 Administrative Investigation, Radad, supra note 263, at 23.

550 Administrative Investigation, Radad, supra note 263, at 22.

551 Criminal Investigation, Radad, supra note 260, at 2; Memorandum from Maj. Gen. Raymond T. Odierno for Commander, 502d

Personnel Service Battalion, Request for Discharge in Lieu of Trial by Court-Martial, available at

http://www.aclu.org/torturefoia/released/041905/6768_7065.pdf, at 53 (accessed Feb. 3, 2006).accessed Feb. 3, 2006.

552 Operative in Abuse Case Can Blame Orders, ASSOC. PRESS, Feb. 3, 2006, available at http://www.washingtonpost.com/wpdyn/

content/article/2006/02/03/AR2006020302197.html, (accessed Feb. 6, 2006).

553 Id.

554 Of the eight deaths Human Rights First considers as involving torture, only four cases have resulted in any kind of punishment. These

are for the deaths of: Habibullah, Dilawar, Jamadi and Mowhoush.

555 These are the deaths by homicide of: Sayari, Hatab, Radad, Hassoun, Kadir, Unknown 18, Unknown 19, T. Ahmed.

556 This includes both criminal and administrative charges.

557 Death of Habibullah (Sgt. Greatorex, Sgt. Broady, Staff Sgt. Doyle charged, supra note 208); death of Dilawar (Sgt. Claus, Sgt. Morden

charged, supra note 208); deaths of both Habibullah and Dilawar (Sgt. Salcedo, Sgt. Boland, Spc. Cammack, Pfc. Brand, Capt. Beiring,

Sgt. Driver, Spc. Walls charged, supra note 208); death of Wali (Passaro charged, supra text accompanying note 187); death of Jamadi

(Lt. Ledford, 9 unnamed other Navy Personnel charged, supra text accompanying note 137); death of Mowhoush (Chief Warrant Officer

126 — VIII. Endnotes

A Human Rights First Report

Welshofer charged, supra text accompanying note 60, Chief Warrant Officer Jefferson Williams charged, supra text accompanying note

62, Sgt. 1st Class Sommer charged, supra text accompanying note 63, Spc. Loper charged, supra text accompanying note 62, Maj. Voss

charged, supra text accompanying note 65).

558 Death of Sayari (Captain, name unknown, charged, supra text accompanying note 192); death of Hatab (Maj. Paulus, Sgt. Pittman

charged, supra text accompanying note 169, Lance Cpl. Roy, Maj. Vickers, charged, see DIC Table, Lance Cpl. Hernandez charged,

supra text accompanying note 175, Sgt. Rodriguez-Martinez, Lance Cpl. Mikholap, Lance Cpl. Rodney charged, see DIC Table); death of

Radad (Spc. Martino-Poole charged, supra text accompanying note 270); death of Hassoun (Lt. Saville charged, supra text accompanying

note 305, Staff Sgt. Perkins charged, supra text accompanying note 316, Lt. Col. Sassaman, Maj. Gwinner, Capt. Cunningham charged,

see DIC Table, Sgt. Martinez, Sgt. Bowman charged, supra text accompanying note 317); death of Ismail (Staff Sgt. Werst charged, see

DIC Table); death of Kadir (Pfc. Richmond charged, see DIC Table); deaths of Kareem and Hanjil (1st Lt. Pantano charged, see DIC

Table); death of Unknown 18 (Sgt. Michael Williams charged, infra note 609, 2nd Lt. Anderson charged, see DIC Table); death of

Unknown 19 (Sgt. Michael Williams charged, infra note 609, Spc. May charged, see DIC Table); death of T. Ahmed (Sgt. 1st Class Diaz

charged, see DIC Table); death of Unknown 22 (Sergeant, name unknown, charged, see DIC Table).

559 Death of Dilawar (Sgt. Claus, Sgt. Morden, supra note 209); deaths of Habibullah and Dilawar (Sgt. Salcedo, Sgt. Boland, Spc.

Cammack, Pfc. Brand, Capt. Beiring, Spc. Walls, supra, note 209); death of al-Jamadi (9 unnamed Navy personnel other than Lt. Ledford

supra, text accompanying note 138); death of Mowhoush (Chief Warrant Officer Welshofer, supra text accompanying note 61, Chief

Warrant Officer Jefferson Williams, supra text accompanying note 62, Maj. Voss, supra text accompanying note 65).

560 Death of Sayari (Captain, name unknown, supra text accompanying note 296); death of Hatab (Maj. Paulus, supra text accompanying

note 173, Lance Cpl. Roy, see DIC Table); death of Radad (Spc. Martino-Poole, supra text accompanying note 269); death of Hassoun

(Lt. Saville, Staff Sgt. Perkins, supra text accompanying note 316, Lt. Col. Sassaman, Maj. Gwinner, Capt. Cunningham, infra text

accompanying note 589, Sgt. Martinez, Sgt. Bowman, supra text accompanying note 317); death of Kadir (Pfc. Richmond, see DIC Table);

death of Unknown 18 (Sgt. Michael Williams, infra note 606); death of Unknown 19 (Sgt. Michael Williams, infra note 609, Spc. May, see

DIC Table); death of T. Ahmed (Diaz, see DIC Table).

561 Death of Mowhoush (Maj. Voss, supra text accompanying note 65).

562 Death of Hatab (Maj. Paulus, supra text accompanying note 169).

563 Death of Dilawar (Sgt. Claus, supra note 209, Sgt. Morden, supra note 209); deaths of Habibullah and Dilawar (Spc. Cammack, supra

note 209, Spc. Walls, supra note 209).

564 Death of Hassoun (Lt. Saville, supra text accompanying note 316, Staff Sgt. Perkins, supra text accompanying note 316); death of

Kadir (Pfc. Richmond, see DIC Table), deaths of Unknown 18 and Unknown 19 (Spc. Williams, infra note 609, Sgt. May, see DIC Table),

T. Ahmed (Sgt. 1st Class Diaz, see DIC Table).

565 Death of Dilawar (Sgt. Morden, see DIC Table); deaths of Habibullah and Dilawar (Sgt. Salcedo, see DIC Table, Spc. Cammack, see

DIC Table, Pfc. Brand, see DIC Table, Spc. Walls, see DIC Table); death of Mowhoush (Welshofer, supra text accompanying notes 10-22,

55-56, 542-547).

566 Death of Hatab (Maj. Paulus, see DIC Table).

567 Death of Dilawar (Sgt. Claus, supra note 209).

568 Deaths of Unknowns 18 and 19 (Sgt. Michael Williams, infra note 609).

569 Deaths of Dilawar and Habibullah (Capt. Beiring, supra note 209, Sgt. Boland, supra note 210); death of Mowhoush (Maj. Voss, infra

text accompanying note 594).

570 Death of Sayari (Captain, name unknown, supra note 538); death of Hassoun (Lt. Col. Sassaman, infra, text accompanying note 589,

Maj. Gwinner, infra text accompanying note 589, Capt. Cunningham, supra text accompanying note 318).

571 This number includes both criminal and administrative charges. Deaths of Habibullah and Dilawar (Capt. Beiring, supra text accompanying

notes 211 and 548); death of al-Jamadi (Lt. Ledford, supra text accompanying note 80, one other SEAL Lieutenant, see DIC Table);

death of Mowhoush (Chief Warrant Officer Welshofer, supra text accompanying note 60, Chief Warrant Officer Jefferson Williams, supra

text accompanying note 62, Maj. Voss,* supra text accompanying note 65). *Denotes administrative charge only.

572 This number includes both criminal and administrative charges. Death of Sayari (Captain, name unknown,* supra text accompanying

note 293); death of Hatab (Maj. Paulus, supra text accompanying note 169, Maj. Vickers, see DIC Table); death of Hassoun (Lt. Saville,

supra text accompanying note 305, Lt. Col. Sassaman,* infra text accompanying note 589, Maj. Gwinner,* infra text accompanying note

589, Capt. Cunningham,* infra text accompanying note 589); deaths of Kareem and Hanjil (1st Lt. Pantano, see DIC Table); death of

Unknown 18 (2nd Lt. Anderson, see DIC Table). *Denotes administrative charge only.

573 This number includes both criminal and administrative punishments. Deaths of Habibullah and Dilawar (Capt. Beiring,* see DIC Table);

death of al-Jamadi (SEAL Lieutenant other than Lt. Ledford,* see DIC Table); death of Mowhoush (Chief Warrant Officer Welshofer, supra

text accompanying note 60, Chief Warrant Officer Jefferson Williams,* supra text accompanying note 62, Voss,* supra text accompanying

note 65). *Denotes administrative punishment only.

574 This number includes both criminal and administrative punishments. Death of Sayari (Captain, name unknown,* supra text accompanying

note 295); death of Hatab (Maj. Paulus, supra text accompanying note 173); death of Hassoun (Lt. Saville, supra text accompanying

note 316, Lt. Col. Sassaman,* infra text accompanying note 589, Maj. Gwinner,* infra text accompanying note 589, Capt. Cunningham,*

infra text accompanying note 589). *Denotes administrative punishment only

575 This number includes both criminal and administrative charges. Death of Habibullah (Sgt. Greatorex, supra note 208, Sgt. Broady,

supra note 208, Staff Sgt. Doyle, supra note 208); death of Dilawar (Sgt. Claus, supra note 208, Sgt. Morden, supra note 208); deaths of

Habibullah and Dilawar (Sgt. Salcedo, supra note 208, Sgt. Boland, supra note 208, Spc. Cammack, supra note 208, Pfc. Brand, supra

note 208, Sgt. Driver, supra note 208, Spc. Walls, supra note 208); death of al-Jamadi (eight unnamed enlisted Navy personnel, supra text

accompanying notes 138-140); death of Mowhoush (Sgt. 1st Class Sommer, supra note 62, Spc. Loper, supra note 62).

Command.s Responsibility . 127

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576 This number includes both criminal and administrative charges. Death of Hatab (Sgt. Pittman, supra text accompanying note 169,

Lance Cpl. Roy, supra text accompanying note 176, Lance Cpl. Hernandez, supra text accompanying note 175, Sgt. Rodriguez-Martinez,

see DIC Table, Lance Cpl. Mikholap, see DIC Table, Lance Cpl. Rodney, see DIC Table); death of Radad (Spc. Martino-Poole, supra text

accompanying note 270); death of Hassoun (Staff Sgt. Perkins, supra text accompanying note 316, Sgt. Martinez, supra text accompanying

note 317, Sgt. Bowman, supra text accompanying note 317); death of Ismail (Staff Sgt. Werst, see DIC Table); death of Kadir (Pfc.

Richmond, see DIC Table); death of Unknown 18 (Sgt. Michael Williams, infra note 609); death of Unknown 19 (Sgt. Michael Williams,

infra note 609, Spc. May, see DIC Table); death of T. Ahmed (Sgt. 1st Class Diaz, see DIC Table); death of Unknown 22 (Sergeant, name

unknown, see DIC Table).

577 This number includes both criminal and administrative punishments. Death of Dilawar (Sgt. Claus, supra note 209, Sgt. Morden, supra

note 209); deaths of Habibullah and Dilawar (Sgt. Salcedo, supra note 209, Sgt. Boland,* supra note 209, Spc. Cammack, supra note 209,

Pfc. Brand, supra note 209, Spc. Walls, supra note 209); death of al-Jamadi (eight unnamed enlisted Navy personnel,* supra text

accompanying notes 138-140). *Denotes administrative punishment only

578 This number includes both criminal and administrative punishments. Death of Hatab (Lance Cpl. Roy,* supra text accompanying note

176); death of Radad (SPC. Martino-Poole, supra text accompanying note 551); death of Hassoun (Staff Sgt. Perkins, supra text

accompanying note 316, Sgt. Martinez,* supra text accompanying note 317, Sgt. Bowman,* supra text accompanying note 317); death of

Kadir (Pfc. Richmond, see DIC Table); death of Unknown 18 (Sgt. Michael Williams, infra note 609), death of Unknown 19 (Sgt. Michael

Williams, infra note 609, Spc. May, see DIC Table); death of T. Ahmed (Sgt. 1st Class Diaz, see DIC Table). *Denotes administrative

punishment only

579 Death of Wali (Passaro, supra text accompanying note 187).

580 Criminal Investigation, Sayari, supra note 273, at 11.

581 Criminal Investigation, Sayari, supra note 273, at 11.

582 Criminal Investigation, Sayari, supra note 273, at 11.

583 Criminal Investigation, Sayari, supra note 273, at 1-10.

584 Criminal Investigation, Sayari, supra note 273, at 1; Army: Soldiers Shouldn’t be Charged, ASSOC. PRESS, Jan. 24, 2005, available at

http://www.msnbc.msn.com/id/6863659/ (accessed Feb. 3, 2006).

585 Filkins, Warrior King, supra note 298; Cover-up of Iraq Bridge Incident Admitted, ASSOC. PRESS, July 30, 2004, available at

http://www.msnbc.msn.com/id/5560805/ (accessed Feb. 3, 2006).

586 Information Paper on Samarra Bridge Incident, July 15, 2004, available at

http://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 47 (accessed Feb. 3, 2006).

587 Investigating Officer’s Report of Charges Under Article 32, Aug. 19, 2004, available at

http://action.aclu.org/torturefoia/released/063005/11950_12130PartB.pdf, at 99-100 (accessed Feb. 3, 2006).

588 Cover-up of Iraq Bridge Incident Admitted, ASSOC. PRESS, July 30, 2004, available at http://www.msnbc.msn.com/id/5560805/

(accessed Feb. 3, 2006).

589 Filkins, Warrior King, supra note 298; Information Paper on Samarra Bridge Incident, July 15, 2004, available at

http://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 47 (accessed Feb. 3, 2006).

590 Filkins, Warrior King, supra note 298; Suzanne Goldenberg, 45 Days Jail for U.S. Officer Who Had Cousins Thrown Into Tigris,

GUARDIAN, Mar. 16, 2005, at Home Pages 2.

591 Filkins, Warrior King, supra note 298; Several Issues Cloud Army.s Case Against GIs in Drowning, July 29, 2004, at 4A; Dick Foster,

Fort Carson Soldiers May Use Drug Defense in Courts-Martial, Rocky Mountain News, ROCKY MOUNTAIN NEWS, at 5A; Charges Dropped

Against U.S. Soldier in Iraqi Man’s Death, ASSOC. PRESS, Sept. 7, 2004, available at http://www.foxnews.com/story/0,2933,131717,00.html

(accessed Feb. 8, 2006).

592 Criminal Investigators Outline 27 Homicides, supra note 64, at 5; Filkins, Warrior King, supra note 298.

593 Criminal Investigation, Radad, supra note 260, at 2 (accessed Feb. 3, 2006); Memorandum from Maj. Gen. Raymond T. Odierno for

Commander, 502d Personnel Service Battalion, Request for Discharge in Lieu of Trial by Court-Martial, available at

http://www.aclu.org/torturefoia/released/041905/6768_7065.pdf, at 53 (accessed Feb. 3, 2006).

594 In re Yamashita, 327 U.S. 1 (1946).

595 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed

Conflicts (Protocol I), 1977, 1125 U.N.T.S. 3 art. 86 (not ratified by United States), available at http://www.unhchr.ch/html/menu3/b/93.htm

(accessed Feb. 8, 2006) (.knew, or had information which should have enabled them to conclude in the circumstances at the time.); Dep.t

of the Army, Field Manual 27-10, The Law of Land Warfare, Chapter 8, § 2, art. 501 (.if he has actual knowledge, or should have

knowledge, through reports received by him or through other means.); Statute of the International Criminal Tribunal for the former

Yugoslavia (ICTY) (1993), art. 7(3), available at http://www.un.org/icty/basic/statut/statute.htm (accessed Feb. 8, 2006) (.knew or had

reason to know.); Statute of the International Criminal Tribunal for Rwanda (ICTR), art. 6(3) (.knew or had reason to know.).

596 Gidget Fuentes, Major Convicted, Avoids Jail Time in Abuse Trial, MARINE CORPS TIMES, Nov. 22, 2004, at 11; Alex Roth, Marine Guilty

in Death of Iraqi, SAN DIEGO UNION-TRIB., Nov. 11, 2004, at B1.

597 Lawyers: Army Backed Interrogation Methods, ASSOC. PRESS, Apr. 1, 2005, available at

http://www.newsmax.com/archives/articles/2005/3/31/205753.shtml (accessed Feb. 3, 2006); Arthur Kane and Miles Moffeit, U.S. General

Backed Lightest Penalty in Interrogation Death, DENVER POST, May 10, 2005, at A6.

598 Filkins, Warrior King, supra note 298; Information Paper on Samarra Bridge Incident, July 15, 2004, available at

http://www.aclu.org/torturefoia/released/051805/8055_8181.pdf, at 47 (accessed Feb. 3, 2006).

128 — VIII. Endnotes

A Human Rights First Report

599 Elise Ackerman, Interrogators Linked to Prior Prison Abuse; Afghanistan-Iraq Pattern Cited; Army.s Covering Up, Critics Say, DETROIT

FREE PRESS, Aug. 23, 2004.

600 Elise Ackerman, Only 2 Low-Ranking Reservists Face Punishment in Detainees. Deaths, KNIGHT RIDDER, Mar. 8, 2005, available at

http://www.commondreams.org/headlines05/0308-02.htm (accessed Feb. 9, 2006); Several With Ties to Prison Abuse Linked to Fort,

ARIZ. DAILY STAR, July 31, 2005 available at http://www.dailystar.com/dailystar/news/86554.php (accessed Feb. 8, 2006).

601 Human Rights First Telephone Conversation with Fort Huachuca representative (Feb. 9, 2006) (notes on file with Human Rights First).

602 See Mowhoush case study, supra pp. 6-11 and Jameel case study, supra pp. 12-13.

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

(Sept. 10, 2003), available at http://www.humanrightsfirst.info/pdf/06124-etn-sep-10-sanchez-memo.pdf (accessed Feb. 3, 2006). See also

Memorandum from General Ricardo Sanchez to the Commander, U.S. Central Command (Sept. 14, 2003), available at

http://www.humanrightsfirst.org/us_law/etn/pdf/sanc-%20memo-091403.pdf (accessed Feb. 7, 2006); Memorandum from General Ricardo

Sanchez to Combined Joint Task Force Seven and the Commander, 205th Intelligence Brigade (Oct. 12, 2003), available at

http://www.aclu.org/FilesPDFs/october%20sanchez%20memo.pdf (accessed Feb. 7, 2006).

604 See Cnn.com Specials, Forces: U.S & Coalition/Commanders, Gen. Ricardo S. Sanchez,

http://www.cnn.com/SPECIALS/2003/iraq/forces/commanders/us.command/index.html (accessed Feb. 8, 2006).

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

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

606 Eric Schmitt, Career of General in Charge During Abu Ghraib May End, N.Y. Times, Jan. 5, 2006, at A3.

607 Human Rights Watch, LEADERSHIP FAILURE: FIRSTHAND ACCOUNTS OF TORTURE OF IRAQI DETAINEES BY THE U.S. ARMY.S 82ND AIRBORNE

DIVISION (Sept. 2005), available at http://hrw.org/reports/2005/us0905/ (accessed Feb. 13, 2006).

608 Dep.t of Defense, News Release, 82nd Airborne Division Commanding General’s Briefing from Iraq (Mar. 10, 2004), available at

http://www.defenselink.mil/transcripts/2004/tr20040310-1281.html (accessed Feb. 13, 2006).

609 Sergeant Michael Williams was court-martialed for his involvement in the deaths of two detainees, shot during house searches, and

received a life sentence (later reduced to 25 years). Williams agreed to testify against an officer in related proceedings as part of the plea

deal; he later admitted he had falsely implicated the officer in order to get the lesser sentence. Gina Cavallaro, Witnesses Defend Accused

Lieutenant, ARMY TIMES, Nov. 17, 2005, available at http://www.armytimes.com/story.php?f=1-292925-1307022.php (accessed Feb. 7,

2006); Michael Sangiacomo, Soldier Will Fight New Murder Charges, CLEVELAND PLAIN DEALER, Oct. 18, 2005; John Milburn, Fort Riley

Officer Faces Hearing on Murder Charges, ASSOC. PRESS, Nov. 16, 2005, available at http://www.armytimes.com/story.php?f=1-292925-

1304495.php (accessed Feb. 3, 2006); John Milburn, Hearing for Accused Fort Riley Officer Concludes with Drama, ASSOC. PRESS, Nov.

17, 2005, available at http://www.signonsandiego.com/news/military/20051117-2252-fortriley-officercharged.html (accessed Feb. 3, 2006).

610 Rick Rogers, Main Charge is Reduced in Court-Martial, SAN DIEGO UNION-TRIB., Nov, 6, 2004, at NC-1; Court Martial Begins in Iraq

Prison Death, ASSOC. PRESS, Nov. 2, 2004, available at http://msnbc.msn.com/id/6394480/ (accessed Feb. 3, 2006).

611 Tim Golden, Case Dropped Against U.S. Officer in Beating Deaths of Afghan Inmates, N.Y. TIMES, Jan. 8, 2006, at A13.

612 Luke Harding, I Will Always Hate You People, THE GUARDIAN, May 24, 2004, at Home Pages 1; Salaheddin, Family Welcomes Probe,

supra note 378.

613 Salaheddin, Family Welcomes Probe, supra note 378; Charles J. Hanley, Experts Urge Release of Iraq Scientists, ASSOC. PRESS, July

17, 2005, available at http://www.phillyburbs.com/pb-dyn/news/93-07172005-515623.html (accessed Feb. 3, 2006).

614 Autopsy, Dababa, supra note 341, at 56-64.

615 Autopsy, Dababa, supra note 341, at 58-61.

616 Autopsy, Dababa, supra note 341, at 58-61.

617, Autopsy, Dababa, supra note 341, at 59.

618 John Lumpkin, 9 Prisoner Deaths in Iraq, Afghanistan Probed as Homicides, ASSOC. PRESS, May 22, 2004, available at

http://www.usatoday.com/news/world/iraq/2004-05-23-death-probe_x.htm (accessed Feb. 8, 2006).

619 Autopsy, F. Mohammed, supra note 104, at 96.

620 Autopsy, F. Mohammed, supra note 104, at 96.

621 Autopsy, F. Mohammed, supra note 104, at 99-100.

622 Autopsy, Dababa, supra note 341, at 105.

623 Josh White, 3 More Navy SEALs Face Abuse Charges, WASH. POST, Sept. 25, 2004, at A16.