Did anyone in the Bush White House cast an uneasy eye over the new indictment of Gen. Augusto Pinochet? It may seem over the top to mention that old buzzard in the same breath as an elected US President. But consider Task Force 6-26. It sounds like a relic of Pinochet’s Operation Condor, whose state-sanctioned acts of murder resulted in the dictator’s finally being brought to book after thirty years. In fact, Task Force 6-26 is a secret unit composed mostly of US Navy SEALs operating in Baghdad–its existence unacknowledged by the Pentagon. According to the Washington Post, a fact-finding mission for Army generals warned a year ago that Task Force 6-26 was running an off-the-books prison for detainees and applying more-than-moderate physical pressure–and that same task force is implicated in two prisoner deaths. Despite those warnings, Task Force 6-26, with its bland bureaucratic label, operates in Baghdad to this day.
The infamous photographs of depravity at Abu Ghraib may now actually be impeding public reckoning with the latest evidence of operations like Task Force 6-26. The pornographic violence of Abu Ghraib could be hung on low-level, poorly trained reservists like Lynndie England. The latest reports trickling out of prisons in Iraq, Afghanistan and Guantánamo paint another picture: systematic violence by trained interrogators and systematic deceit by their bosses up the chain of command. FBI and Defense Intelligence Agency (DIA) memos released to the ACLU under the Freedom of Information Act depict Defense Department interrogators–not “rogue” reservists–gagging a Guantánamo prisoner with “duct tape that covered much of his head” for reciting the Koran; squeezing a prisoner’s genitalia and bending back his thumbs; punching another’s face to a pulp and leaving beaten prisoners moaning in a fetal position on the cell floor. The International Committee of the Red Cross reports physical and psychological coercion “tantamount to torture,” with the collusion not just of career leg-breakers but physicians and psychologists. These reports match in sickening detail affidavits from Camp Delta detainees David Hicks of Australia and British national Moazzam Begg.
Critically, in the new reports the chain of evidence ends just a whisper away from Donald Rumsfeld. In June, DIA director Vice Adm. Lowell Jacoby complained in a letter to Stephen Cambone, Rumsfeld’s under secretary for intelligence, that two of his staffers had witnessed Special Forces in Baghdad beating a prisoner in the face severely enough to require medical attention. When they protested, Jacoby told Cambone, the DIA officers were threatened and their photos of the injuries confiscated. Meanwhile, FBI officials at Guantánamo were firing off alarmed and frustrated memos to Washington describing beatings, the use of dogs and other “aggressive” measures, which they found morally repugnant as well as likely to produce “unreliable results.” The agents were overruled by Guantánamo’s commanders and cautioned against too-vigorous a dissent by senior FBI officials. (No one in Congress has asked the obvious: If, as Rumsfeld insists, it is against US policy to torture prisoners, where did these skilled military interrogators learn their craft?)
What can be done? That’s the pressing question, since US political and judicial institutions seem to be failing spectacularly. The CIA Inspector General’s report on the role of intelligence officers at Abu Ghraib has yet to be released. It has been three months since the last–superficial–Congressional hearings on prison abuse. And although ranking Senate Judiciary Committee Democrat Patrick Leahy promises to ask tough questions about Abu Ghraib when Alberto Gonzales comes up for confirmation as Attorney General, that’s no substitute for a proper investigation, for which Congressional Republicans show no inclination. Neither house has passed legislation to correct the Administration’s contorted interpretation of US war-crimes statutes and the Geneva Conventions. Even the Supreme Court seems to have little leverage: For months the White House has dragged its feet about scheduling Geneva Convention prisoner-of-war status reviews demanded by the Justices, finally establishing guilty-until-proven-innocent hearings so unfair that a federal judge has now issued an injunction against them.
No wonder the Center for Constitutional Rights, in New York–whose bold litigation won Guantánamo’s detainees their Supreme Court recognition–has now turned to overseas human rights laws. On behalf of four Iraqis, CCR has appealed to Germany’s federal prosecutor to initiate an inquiry under the universal-jurisdiction doctrines of that country’s war-crimes statutes. German law–encoding that nation’s revulsion at its past–allows for the prosecution of killing, torture, cruel and inhumane treatment, forcible transfers and sexual coercion, “even when the offense was committed abroad and bears no relation to Germany.” At this writing prosecutors in Karlsruhe are poring over CCR’s brief, and Secretary Rumsfeld–named in the German complaint along with Cambone, Gen. Ricardo Sanchez and others–has informed the German government that he will cancel his planned attendance at a Munich security conference in February should an investigation be moving forward.
As a legal doctrine, universal jurisdiction has hazards–it could easily be manipulated as a tool for imposing US policies. But in this case, the abuses of US military prisons are so systemic, severe and corrosive that transnational legal intervention is amply justified–all the more so, given US abstention from the International Criminal Court. And using Europe’s rapidly evolving human rights law to hold the United States to what our own laws call “evolving standards of decency” follows healthy recent precedent: When Chilean politicians maintained General Pinochet’s immunity, his victims appealed through Spanish law, leading to his 1998 arrest in London and paving the way for Chile to finally make leaders accountable, under its own constitution, for atrocities.
After 9/11, supporters of the Bush Administration were quick to quote, in distorted fashion, Supreme Court Justice Robert Jackson’s admonition that the Bill of Rights is not a suicide pact. These latest revelations from Iraq, Afghanistan and Guantánamo bring Jackson to mind for different reasons. In 1945 Justice Jackson helped to initiate the German war-crimes tribunals, writing in a June 7 Report to the President on Atrocities and War Crimes: “We do not accept the paradox that legal responsibility should be the least where power is the greatest.”