II.

Events Prior to the Scandal

A.

Internal Debates

The Bush administration framed the U.S.-Iraq War as a part of the global war on terror. The policies that guided the U.S. invasion and occupation of Iraq resulted from decisions made by the administration after the September 11 attacks, which were carried out by the al-Qaeda terrorist network based in Afghanistan. Some officials in the Bush administration argued that the war on terror was “a new kind of war” and that the old norms and policies governing U.S. military campaigns were now obsolete.

At issue were two fundamental questions. The first concerned whether prisoners—specifically suspected members of al-Qaeda and the Taliban government in Afghanistan that harbored them—should be accorded the legal protections outlined in the Geneva Conventions. The second concerned what methods U.S. military and security personnel should be permitted to use in interrogating those prisoners.

In the first debate, White House and Justice Department officials argued that al-Qaeda and Taliban prisoners captured in Afghanistan were not entitled to Geneva Convention protections because they were “illegal combatants.” The president’s chief counsel, Alberto Gonzales, argued that “this new paradigm [of the war on terrorism] renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” Conversely, the Department of State (and certain segments of the Defense Department) harbored grave reservations about any decision to circumvent a tradition of according all prisoners taken on the battlefield the formal status and rights accorded POWs. Secretary of State Colin Powell, for one, voiced his concern that such a move would “reverse over a century of U.S. policy and practice in supporting the Geneva conventions and undermine the protections of the law of war for our troops.”

The position taken by Gonzales won out in this debate. In February 2002 President Bush issued a memo finding that the Geneva Conventions did not apply to al-Qaeda and Taliban detainees but that U.S. armed forces would “treat detainees humanely” and “in a manner consistent with the principles of Geneva.” Prior to the invasion of Iraq, the Bush administration determined that the Geneva Conventions would apply to prisoners of war there. Due to the earlier memos, however, there was some ambiguity about whether the Geneva Conventions would apply to “foreign fighters,” possibly members of the al-Qaeda network, captured in Iraq.

The second debate, over what interrogation methods should be permitted in this “new kind of war,” involved a discussion of what coercive techniques should and should not be considered torture—and thus illegal under both U.S. and international law. In this case the discussion was driven by arguments put forward by Justice Department lawyers. They contended in an August 2002 memo that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”—a standard that allowed for many brutal interrogation techniques theretofore commonly regarded as torture.

This definition was distinctly different from the definition of torture outlined in the Convention Against Torture, which the United States ratified in 1994, making it part of U.S. law. The August 2002 memo and subsequent memos that approved specific interrogation techniques in effect raised the threshold of what constitutes torture, allowing many procedures that formerly would have been considered illegal. This in turn laid the groundwork for the detainee abuses that took place first in Afghanistan, then in Guantánamo Bay, and ultimately in Iraq.

B.

U.S. Invasion of Iraq and the Use of Abu Ghraib Prison

On May 1, 2003, President Bush declared an end to “major combat operations” in Iraq. The last remnants of the organized Iraqi military had been defeated. The U.S. and coalition forces effectively controlled the physical territory of the country and its essential infrastructure. The U.S. armed forces governed from Saddam Hussein’s former palaces and controlled the largest and most notorious of his prisons, Abu Ghraib, which had been used as a penitentiary and as a place of torture for the worst Iraqi criminals and for political opponents of the Hussein regime. During the summer and fall of 2003, an insurgency erupted against the U.S. occupation. The U.S. military began detaining thousands of Iraqis at Abu Ghraib under suspicion of contributing to, or having knowledge of, the insurgency. The insurgents consisted mainly of Sunni Muslims but also of foreign fighters linked to the al-Qaeda network and for a time of radical Shia Muslim militias.

The infamous photographs from Abu Ghraib were taken during the autumn of 2003. In November 2003, shortly after the incidents depicted in the photos, Army Specialist Joseph M. Darby returned to his posting at Abu Ghraib and heard about a shooting incident that had taken place at the prison while he was away on leave. Darby asked the military policeman in charge of the night shift, Charles A. Graner, if he had pictures of the incident; Graner handed Darby two compact discs (CDs) containing hundreds of images of U.S. personnel torturing prisoners, many of them naked. Alarmed by what he saw, on January 13, 2004, Darby handed over the CDs to the Army’s Criminal Investigation Division (CID). What they saw, in turn, led CID officers to launch an investigation and to interview a number of Iraqi prisoners who claimed to have been abused at Abu Ghraib.

In the weeks following the broadcast of the photos by CBS in April 2004, a number of other documents relating to the internal military investigation were leaked to the media. These included the Taguba Report and a confidential report submitted to the Pentagon by the Red Cross in February 2004. The report was written by members of an independent Red Cross inspection team who had visited Abu Ghraib repeatedly over the summer and fall of 2003.

The Red Cross report, which was never meant to be made public, was leaked to the Wall Street Journal in May 2004. It described horrifically substandard conditions in the prison and stated that many procedures used in interrogating detainees in Abu Ghraib were “tantamount to torture.” In the words of its authors, the report was meant “to draw the attention of the Coalition Forces to a number of serious violations of International Humanitarian Law” at Abu Ghraib. It also included an estimate, provided by military intelligence officers, that between 70 and 90 percent of the detainees held at Abu Ghraib “had been arrested by mistake” in the massive sweeps that followed insurgent attacks.

Soon after the Red Cross report was made public, the sworn statements of Iraqi detainees, taken by Army CID officials over the course of their investigation, were leaked to the Washington Post. In these depositions, the prisoners themselves—many of whom had been arbitrarily detained and held for months in the prison without charge or trial—gave first-person accounts of how they were treated by U.S. military personnel.