The Case for Rumsfeld’s Prosecution

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In 2009, Manfred Nowak, the U.N. Special Rapporteur on Torture, stated that there was already enough evidence to try former U.S. Defense Secretary Donald Rumsfeld for war crimes. Nowak’s statement confirmed what human rights and legal organizations have been saying for several years, and spotlights one of the Bush administration’s most controversial decisions regarding the use of torture.

Nowak’s statement followed a bipartisan Senate Arms Services Committee investigation made public in December. In scathing and unequivocal terms, the investigation revealed that Rumsfeld and other high-ranking administration officials, including former National Security Adviser Condoleezza Rice, bore major responsibility for detainee abuse by American troops at Abu Ghraib in Iraq; Guantanamo Bay, Cuba; and other military detention centers.

The abuse was not the result of only a few soldiers acting on their own, but the consequence of interrogation policies approved by Rumsfeld and other top officials who “conveyed the message that physical pressures and degradation were appropriate treatment for detainees.”

The use of torture in Guantánamo, Afghanistan and Iraq has a long history. On Dec. 2, 2002, following a request by Guantanamo officials that additional techniques beyond those in the U.S. Army field manual be approved for use, Rumsfeld authorized new interrogation policies for Guantanamo, including placing prisoners in “stress positions,” hooding detainees for 20-hour interrogations, exploiting phobias to induce stress, sensory deprivation, and isolation.

These techniques were later used in Afghanistan and Iraq. Complaints of abuses at Guantanamo by FBI officials to the Defense Department in December 2002 were disregarded. According to the American Civil Liberties Union (ACLU), in January of 2003 senior officers of the Judge Advocate General’s (JAG) office repeatedly objected to interrogation techniques used at Guantanamo, but “Pentagon officials ‘didn’t think this was a big deal, so they just ignored the JAG.’”

During this period, Rumsfeld designated a “Working Group” to assess legal, policy and operational issues for detainee interrogation in the “war on terrorism.” In April 2003, the Working Group issued its final report recommending 35 interrogation techniques to Rumsfeld, who recommended 24 of the 35, including dietary and environmental manipulation, sleep interruption and isolation.

One month later, the Red Cross reported 200 cases of alleged detainee abuse of prisoners in U.S. custody in Iraq to the U.S. Central Command. Meanwhile, the FBI reiterated its objections to the Guantanamo base commander.

In August 2003, Rumsfeld sent the Guantanamo commander to Iraq to “GITMO-ize” Iraqi detention facilities, promoting wide-scale deployment of more aggressive interrogation techniques in Iraq.

In February 2004, Maj. Gen. Antonio Taguba reported that “systematic” and “sadistic, blatant and wanton criminal abuses” were taking place at Abu Ghraib.

In May 2006, the U.N. Committee against Torture issued a strong and thorough critique of the U.S. record on torture. The U.N. assessment was confirmed by Maj. Gen. Taguba who in June 2008 stated, “After years of disclosures by government investigations, media accounts and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes,” and called for those responsible to be held to account.

In December 2006, the ACLU and Human Rights First argued before a federal court that Rumsfeld should be held accountable for the torture and abuse of detainees in U.S. military custody. Retired military officers and military legal experts filed a legal brief in support of the lawsuit. In March 2007, Chief Judge Thomas A. Hogan of the Federal District Court for the District of Columbia dismissed the case.

The Center for Constitutional Rights in New York, the International Federation for Human Rights, and the European Center for Constitutional and Human Rights have filed three cases against Rumsfeld and others in Germany and France for the alleged torture of detainees in Iraq, Afghanistan, Guantanamo and at secret sites outside the U.S. They did so under universal jurisdiction laws that would let those countries indict U.S. officials for torture if the United States does not fulfill its obligation to try Rumsfeld.

Decades ago, Hannah Arendt coined the phrase “the banality of evil” to describe how “normal people”, given the circumstances, could commit atrocious crimes. I have just finished watching the documentary “The Unknown Known,” which draws its title from one of Mr. Rumsfeld’s most famous rhetorical pronouncements.

In the film, Morris interviews Rumsfeld at length, and allows him to give his version of the facts that led to the Iraq war and subsequent events. Looking at Rumsfeld, totally oblivious and uncaring about the devastation he and his accomplices unleashed in Iraq, I am tempted to call the process “the impunity of evil.”

Cesar Chelala, M.D. and Ph.D., is a co-winner of an Overseas Press Club of America award for an article on human rights.

Dr. Cesar Chelala is an international public health consultant.

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