Command's Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan

The Path Ahead: Recommendations

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 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 Command's Responsibility 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.