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

Human Rights First:  Press Briefing on
“Command’s Responsibility: Deaths in U.S. Custody in Iraq and Afghanistan”
February 22, 2006

STATEMENT OF HINA SHAMSI, SENIOR COUNSEL, HUMAN RIGHTS FIRST

Hina Shamsi, Senior Counsel, U.S. Law and Security Program at  Human Rights First, is the author of “Command’s Responsibility.”  She is an expert on counterterrorism, U.S. interrogation and detention policy and national security.

Good afternoon. I’m going to briefly walk you through our research approach and key findings, including causes of death, investigation flaws, and failures of accountability. 

Sources and who is included?  We began with a review of thousands of pages of the military’s own documents, many now released under FOIA; we also looked to open source materials, and conducted our own interviews.  We included in our count deaths of prisoners in U.S. military detention centers or facilities, as well as those who were killed while being interrogated in their homes, or at the point of their capture, after being taken into U.S. custody.  Because we wanted to focus on deaths that are most likely connected to detention or interrogation policy or practice, we excluded deaths that appeared to result from injuries sustained during combat, checkpoint deaths, so-called “mercy killings” as well as deaths that were caused by mortar attacks or by detainee-on-detainee violence.  Some of these deaths are problematic for other reasons but are not the focus of this report.  One of our guiding principles throughout was to use official classifications and sources wherever possible and then to evaluate these based on our own assessments.  Because of our conservative approach, our numbers may indeed even be an undercount.  Also, we asked the military to comment or provide an update on the status of a number of death cases.  To date, they’ve responded to only a few questions, essentially stating that investigations are open and they cannot comment further.

Numbers and causes of death.  We count 98 detainees who died in U.S. custody.  Appendix A to the report contains a breakdown of some of our numbers; and you can find a separate chart breaking down the deaths by cause on our website.   

Of this 98, the military says 34 are suspected or confirmed homicides.  Based on our independent review, and using the same definition of homicide as Army criminal investigators – death caused by the intentional or reckless action of another person – we counted an additional 11 deaths that could be homicides – that appear to be the result of abuse or harsh detention conditions.  In the vast majority of the remaining deaths, 48, the cause is officially undetermined or not disclosed. According to the military, 15 of the 98 were deaths by natural causes. 

Most troubling among all of these cases are those we describe as detainees tortured to death, a number we put at 8-12.  These are detainees who were beaten, suffocated, or otherwise died in circumstances meeting the definition of torture set out in the federal law banning the practice, which criminalizes acts “specifically intended to inflict severe physical or mental pain or suffering.”
From the pool of officially undetermined and “natural” deaths, we found additional cases of concern.  For example, we include as a possible homicide the death of Mohammed al-Izmerly, who died in January 2004.  The Army kept Mr. al-Izmerly’s body for 17 days after he died, and didn’t tell criminal investigators of the death until the body had been released to the family.  This means that an official U.S. autopsy couldn’t be conducted.  Dr. Faik Baker, Chief of Forensics at Baghdad Hospital, conducted an autopsy at the family’s request and found that Mr. al-Izmerly’s died from a “massive blow to the head.”  While it’s been over two years since Mr. al-Izmerly died in what look like violent circumstances, the Army told HRF that the investigation into his death was ongoing and they couldn’t comment further. 

Investigation Flaws. One of the most striking features of nearly all of these cases is what happened after the detainees died. Military regulations unsurprisingly require that potential crimes be reported immediately so an investigation can begin while memories and evidence are fresh.  Witnesses are to be interviewed, evidence collected and secured, and records are kept either to show that no wrong was done or to provide support for a prosecution.  But we found case after case in which what would be standard procedure for a burglary wasn’t followed for death.  In 17 cases, commanders failed to report a death or reported it late.  In 16 cases, evidence was not collected or not maintained (and here, we excluded cases in which an investigation couldn’t be done because of identified security concerns).  The result has been cases like that of Nagem Hatab, who was essentially abused twice -- before his death and after, when it was investigated. A U.S. Army autopsy found Hatab’s body was covered with bruises, and had several broken ribs.  While in Marines custody, he was apparently kicked and beaten. He developed diarrhea and was dragged outdoors by the neck, a process that appears to have caused strangulation, the cause of death according to military records.  Yet when his body was sent for further investigation, a container of his body organs was destroyed in the heat after being left on airport tarmac.  His ribcage wound up in Washington DC, and his larynx in Germany.  A crucial piece of evidence, a throat bone, was never found. Partly because 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.

Accountability. In part due to treatment like this, we found only 12 cases in which anyone was punished in any way for a detainee death.  In eight of these cases, we considered the punishment lenient, compared to the circumstances of death.  This was particularly the case in deaths by torture, only four of which have resulted in any kind of punishment – the highest is five months in prison.  No officer above the rank of major has been held responsible for a death in torture-related 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.  And no officer has been held accountable under the doctrine of command responsibility for a death. In brief, command responsibility doctrine provides that commanders be held liable when they knew or should have known of unlawful behavior by their subordinates but fail to take steps to prevent or punish it.

We think there are likely several reasons for the small number of disciplinary actions and the comparative leniency of punishment.  First, inadequate investigation means lack of evidence for prosecution.  Second, a number of accused have raised as a defense a lack of training or that bad acts were authorized by their commanders.  This is the case in 4 of the deaths caused by beatings or suffocation.  And prosecution results suggest that military judges and juries are responding to this defense.  Chief Warrant Officer Lewis Welshofer argued that stuffing a detainee in a sleeping bag was a stress position authorized by General Sanchez in Iraq – after all, his superior, Major Jessica Voss admitted to signing off on it (and her superior, a Lt. Col., also later expressed support for Welshofer’s role).  Welshofer was charged with murder but found guilty of negligent homicide; he got a reprimand, a $6,000 fine and 60 days of confined movement. 

Finally, commanders themselves have acted to reduce the charges that criminal investigators recommend, and have not themselves been held accountable.  So, for example, after a Special Forces captain tried to cover up his men’s shooting of Mohammed Sayari in Afghanistan in 2002, and instructed a subordinate to destroy evidence, U.S. investigators recommended charges including murder.  Special Forces commanders dropped all charges and the captain received only a reprimand.  In the death of unarmed detainee Obeed Radad, shot in his cell in Iraq, the commander allowed a soldier to be discharged before a criminal investigation was complete.  The investigation ultimately found probable cause to charge the soldier with murder, but by then it was too late.  Command’s role has thus been key in undermining chances for full accountability.