The Gaps That Remain - 11

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capability and systemic shortfalls" in conducting detention and interrogation." Put differently, the Inspector General was studying whether policy changes needed to be adopted, not whether existing policies played any role in past abuses. This is an important charge, but it is not onc designed to get to the bottom of what abuses have occurred and why.

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The Schlesinger panel report, issued in August 2004, reviewing Defense Department detention operations was similarly constrained. While this panel - unlike all of the other investigations listed above - was able to interview key civilian leadership in the Defense Department, "[i]ssues of personal accountability" were expressly excluded from its purview. The panel "did not have full access to information involving the role of the Central Intelligence Agency in detention operations," an area the panel identified as in need of further review." And the panel did not investigate any individual case of abuse, or indeed conduct any original research beyond the highlevel interviews, but relied instead on "various completed and on-going reports covering the causes for the abuse" (that is, the panel reviewed the other reports listed above).

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A final Pentagon report. set to be released this month, may prove to be unconstrained by these limitations. In June 2004, Defense Secretary Rumsfeld directed Vice Adm. Albert Church to expand an investigation he had begun into the treatment of detainees at Guantanamo Bay, Cuba, and in Charleston, South Carolina. to include detention and interrogation operations in Iraq and Afghanistan as well. According to the Pentagon, the forthcoming Church report is to "fill the gaps and seams" in policy, doctrine, force structure, and command relationships left by the other "comprehensive" investigations already completed. While we remain concerned that the Church report, like any self-examination, will lack the objectivity and independence essential to an effective investigation, we look forward to its release.

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Failure to Investigate All Relevant Agencies and Personnel

Closely related to the limitations on the investigative charges these officers have been given, Pentagon investigations to date either have not been able, or simply have not, explored the full range of agencies, actors, documents, or other sources of information necessarily implicated by the widespread incidence of abuse. Some of this is due to the scoping issue, described above. The reasons for other omissions are not immediately apparent.

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Troops. A number of reports indicate that investigators may have failed to contact - or failed to inquire after - individual soldiers and officials who were in a position to witness events at Abu Ghraib first hand. For example, Ken Davis, a reservist Army Sergeant described to the press, senior officers, and members of Congress witnessing several brutal scenes of abuse at Abu Ghraib. In particular, Davis identified four intelligence officers in one of the October 2003 photos taken at Abu Ghraib. But Davis says no one from the Fay or Jones teams spoke with him for the report. Sgt. Samuel Provance, who served at Abu Ghraib, was interviewed, but was told by his commanders in May that his security clearance was being pulled for disobeying orders to remain quiet about events there after Provance spoke to ABC News about the alleged abuse at the prison. Provance told ABC that he was concerned the military was covering up the extent of the abuse at Abu Ghraib. Finally, onc non-commissioned officer has told Human Rights First that Fay investigators also never spoke to the soldiers who comprised a key Abu Ghraib security detail, soldiers who escorted detainees to interrogation booths and often watched the interrogations take place.

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Other Agencies and Actors. Most of the reports make reference on multiple occasions to the involvement of other agencies or actors in the detention and interrogation operations that are the subject of their investigation. But no investigation to date has explored the involvement or even

borors. The Famym wng then find that medica personaci nay ve been aware of At Abu Ghraib and fanod to report a Ioccod, a stat putustoo drys ocfore the by report in the reageered medical journa. The Lancer found that a pay-sucian and a paychatrist helped design apptors, and mon for matorrogadom at Abu Ghraib" that work pricholopathy and pally W10190 And the independent group Physicians for Human Rights has recommended interviews with health personnel at Guantanamo. Ane Grab. Afghanistan and erhero to gowns the role of physicians before or aftur crrogations But the Fay report ile if hazing identified a possible problem investigated no further, noting that the "scope of this repent was Innbtury intelligence) personnel involvement Fay thus recommended launching a @pmcate inquiry into whether modical personnel were aware of detainee abuse and falod to propert, document and report the abuse

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The Gaps That Remain 13

Lawyers. None of the investigations to date make more than passing mention of the role of JAG officers and civilian legal advisors in reviewing, rejecting, or approving detention and interrogation policies and techniques that may have been inconsistent with existing U.S. legal obligations. For example, the Fay report indicates that various staff judge advocates produced a set of interrogation rules - based on approaches used at Guantanamo Bay and approved in an April 16, 2003 memo from the Secretary of Defense that included the use of dogs, stress positions, and other unlawful techniques. These rules, for a period, were guidance military intelligence officials relied on in conducting interrogations at Abu Ghraib.

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Although much of this section of the Fay report is redacted as classified (an issue discussed further below), military lawyers in Iraq and in Washington, D.C. appeared to have played a central role in the adoption of policies in Iraq that were confusing and illegal. Indeed, information redacted from this section of the Fay report covers the period of time in the spring of 2003 when top military and civilian lawyers at the Pentagon were writing memos arguing that interrogation techniques advocated by senior civilians at the Defense Department and by the commander of the military detention center at Guantanamo Bay, would contravene longstanding military practice and be subject to abuse." Yet the Fay report makes no recommendations concerning the actions of legal advisors, and none of the investigations appear to have interviewed senior military or civilian lawyers who played a role in crafting (or criticizing) these detention and interrogation policies.

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While additional reports may be produced - Fay has recommended the Army "review" the role of civilian contractors," Schlesinger has recommended further study of the role of the CIA," and a separate report is underway on the role of detainee operations in Afghanistan" it is critical that one outside investigator look at the interaction between these agencies in the field, both to understand what really happened, and to prevent the temptation every organization naturally feels to shift blame from one set of actors to another.

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Detainees. Detainees and former detainees are the most obvious and direct sources of information for investigations into instances of abuse. Looking to these individuals as sources of information is of course extremely difficult. Former detainees are likely to be afraid of or hostile to US officials seeking to learn the scope of any wrongdoing. As time passes, these individuals many of whom were not identified or accounted for while in US detention become harder to find. And the credibility of their accusations - as with any witness statement must be evaluated against other testimony and available evidence. Despite the complexities in these circumstances, evidence from firsthand witnesses is fundamental to any investigation. Yet of the major investigations so far, only Fay conducted direct interviews of detainees; Fay reports conducting three such interviews in the course of his investigation. Taguba investigators do not appear to have met with any detainees directly, but did review multiple sworn statements by detainees Neither the Inspector General's report nor the Schlesinger panel report reflect the review of any detainee interviews or statements.

Cumulative Reporting

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A feature common to all of the reports is the cumulative nature of the research they reflect. Each successive investigation has been initiated with a review of the findings of previous investigators. Of itself, this practice need not be cause for concern. On the contrary, prior investigations can be important sources of information, both so current investigators can learn facts already uncovered, and so they can identify gaps left open by their predecessors.

14- Getting to Ground Truth

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However, some of the investigations rely on prior investigative findings to the exclusion of necessary original research or investigation - a practice that presents a high risk of perpetuating any errors or omissions made by previous investigators. Perhaps the worst example of this is the Schlesinger panel report. In part, this failing is a function, again, of its specific charge - namely, to review other "completed and pending" investigations by the Department of Defense. Likewise, while this panel was able to interview key civilian leadership in the Defense Department, "[1]ssues of personal accountability were expressly excluded from its purview. Fundamentally, however, the Schlesinger report is not an inquiry into "DOD Detention Operations," as it is named, offering "answers to the questions of how this happened, and more importantly, who let it happen." Rather, it is an investigation of other invesugations of Defense Department detention operations. The report contains no footnotes or internal citations to evidence or statements attributed to any individual. It is characterized frequently by conclusory policy analysis ("With the events of September 11, 2001, the President, the Congress, and the American people recognized we were at war with a different kind of enemy"),° not factual reporting And while such review reports can offer useful insights, they should not be mistaken for a "comprehensive investigation of any underlying facts. circumstances, or policies. The Schlesinger report is best understood as a memorandum of policy recommendations written at the request of the Secretary of Defense, not as an investigation of actual events.

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Contradictory Conclusions

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Particularly striking across the reports all issued within months of one another contradictions among them, ranging from factual variations to fundamental disagreements on key conclusions. The fact of disagreement may be natural and healthy; or it may reflect inadequacies or errors by one investigation or another. Either way, the scope of abuse in U.S. detention and interrogation is such that unresolved conflicts such as these should not be permitted to stand. Consider, for example, the varying findings on even these few basic questions.

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Had soldiers been adequately trained to understand their obligation under all circumstances to treat detainees humanely and in accordance with the law of war? The Inspector General answered this question in the affirmative, finding that soldiers "do understand their duty to treat detainees humanely and in accordance with the laws of land warfare. Maj. Gen. Fay, however, reached just the opposite conclusion: "Soldiers on the ground are confused about how they apply the Geneva Conventions and whether they have a duty to report violations of the conventions

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Did systemic failures contribute to torture and other forms of abuse in U.S. custody? As noted above the Inspector General again concluded that he was "unable to identify system failures that resulted in incidents of abuse. Again finding to the contrary, Maj. Gen. Fay reported that "Icader responsibility and command responsibility, systemic problems and issucs also contributed to the volatile environment in which the abuse occurred.

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Does command responsibility for the abuses at Abu Ghraib rest with leaders in Iraq or can it be attributed to command actions and omissions in Washington, D.C.? Maj. Gen. Miller believed that abuses at Abu Ghraib were caused by a small number of leadership and small number of soldiers who violated regulations and procedures and committed criminal acts The Army Inspector General to some extent agreed: "These incidents of abuse resulted from the failures of individuals to follow known standards of discipline and, in some cases, the failures of a few leaders to enforce those standards of discipline. Yet the Schlesinger panel reached

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essentially the opposite conclusion: "The abuses were not just the failure of some individuals to follow known standards, and they are more than the failure of a few leaders to enforce proper discipline. There is both institutional and personal responsibility at higher levels.

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Questionable Use of Classification to Withhold Information

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The Federation of American Scientists, among others, raised serious questions as to whether the Taguba report and other key executive branch documents have been properly designated "classified. Section 1.7 of Executive Order 12958, as amended (EO 13292). states: "In no case shall information be classified in order to conceal violations of law, inefficiency, or administrative error [or to] prevent embarrassment to a person, organization or agency." Questions of unnecessary classification are particularly acute with respect to the Fay report on the activities of the 205th Military Intelligence Brigade. The unclassified version of the report includes substantial redactions from pages 21 through 30, the section of the report discussing intelligence and interrogation policy development." Among the excerpts included in the unclassified version of the report are passages describing the role of the Secretary of Defense in reviewing and approving certain interrogation techniques and procedures. The section appears to trace - with significant gaps due to redaction the development of U.S. interrogation policies from Afghanistan to Guantanamo to Iraq beginning in 2002. The unclassified report later states that while no documentation was found showing that Lt. Gen. Ricardo S. Sanchez, the former top commander in Iraq. approved the use of dogs in interrogations, certain "[l]eaders in key positions failed properly to supervise the interrogation operations at Abu Ghraib and failed to understand the dynamics created at Abu Ghraib.`

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Classified information from the redacted sections subsequently published in the New York Times and Washington Post - specifically describing a September 14, 2003 cable from Lt. Gen. Sanchez outlining his plans for more aggressive interrogation techniques including the use of dogs - calls this relatively exculpatory public account into question. The Times reported that "[classified parts of the report by three Army generals on the abuses at Abu Ghraib prison say Lt. Gen. Ricardo S. Sanchez, the former top commander in Iraq, approved the use in Iraq of some severe interrogation practices intended to be limited to captives held in Guantánamo Bay, Cuba, and Afghanistan."

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Failure to Investigate Senior Military and Civilian Command
Responsibility

The single greatest failing of the reports to date has been the inadequacy of investigation into the specific role played by senior military and civilian commanders.

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Under U.S. and international law, both military and civilian leaders may be held responsible for acts committed by their subordinates rising to the level of war crimes, such as torture or other inhumane treatment, when the commander knew or should have known about the acts, yet failed to take reasonable steps to punish or prevent them. The United States followed this doctrine of command responsibility in World War II, when a US military tribunal convicted Japanese General Tomoyuki Yamashita for war crimes committed by his troops. The US Supreme Court upheld his conviction on the grounds that Yamashita should have known that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in war crimes. The U.S. Army manual today incorporates this standard. This rule docs not apply to hold leaders responsible for random and

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