Two and a half months after the public saw the first photographs of the abuse and torture of prisoners at Abu Ghraib prison in Iraq, the issue has faded from the news headlines. Seven low-level reservists are being prosecuted for their role in the affair, and a number of military investigations are slowly playing out. The Senate Armed Service Committee may also hold further hearings, but the political appetite for pursuing investigations seems to be fading. Yet several of the most troubling questions raised by the Iraq prison scandal - and the wider revelations about U.S. detention and interrogation policy that have followed - remain unanswered. In this special feature, we attempt to present a clear picture of what has been uncovered and what remains to be learnt.

The war in Iraq was covered by the Geneva Conventions, and the United States has accepted that all Iraqi prisoners were either POWs protected by the 3rd Geneva Convention, or civilian detainees protected by the 4th Geneva Convention. Both Conventions contain provisions banning the use of torture or other forms of coercion, and requiring that captives be humanely treated at all times. Although there is no consensus about the precise way that coercion should be defined, there is no doubt that many of the actions shown in the photographs from Abu Ghraib are a flagrant violation of these parts of the law.

Beyond the most sensational and lurid violations, there is also a growing body of evidence that such practices as forced nudity and intimidating suspects through the presence of unmuzzled dogs were used at Abu Ghraib as a matter of routine. Most people would agree that these actions are also forbidden under the Geneva Conventions.

A third category of practices were not only routinely used, but - at various times and with varying degrees of authorization required - officially sanctioned. These measures include sensory deprivation, exposing prisoners to cold, keeping them awake by subjecting them to loud noise and bright lights, forcing them to stand in stressful positions and manipulating their diet. Many people would argue that these actions qualify as coercion or inhumane treatment under international law, though others would disagree. One test is whether those making the judgment would be prepared to accept as legitimate the use of such measures against their own soldiers or civilians if they were detained by another power. If not, these practices should not be thought acceptable for use on opposing forces or civilians.

Several of those charged with offences arising from Abu Ghraib have said their actions were carried out in response to requests from military intelligence officers at the prison. So far, no military intelligence personnel have been charged with any wrongdoing, though the Army is conducting an investigation into their role. One specific incident involving military
and civilian intelligence personnel concerns the apparent death during interrogation of an Iraqi suspect, whose body was kept on ice and then disposed of. In his report, Maj. Gen. Taguba suggested that two senior military intelligence officers, Col. Thomas Pappas and Lt. Col. Steven Jordan, and two private contractors were “directly or indirectly responsible” for the abuses at Abu Ghraib.

Within the military police, only those at a relatively low level have been charged. The military police officer in charge of the Iraqi prison system, Brig. Gen. Janis Karpinski, has been admonished and suspended from command, but not charged. Under the principle of command responsibility, she would be guilty if she knew or should have known about what was happening, and did nothing to stop it.

Beyond the most abusive actions at Abu Ghraib, there is plentiful evidence that senior officers were aware of practices like forced nudity and the use of unmuzzled dogs to intimidate prisoners. Col. Thomas Pappas, the military intelligence officer in charge of interrogations at Abu Ghraib, is reported as having openly acknowledged the use of forced nudity as part of the intelligence process.

An unanswered question is whether the most senior commanders in Iraq, and officials in Washington DC, explicitly or tacitly encouraged the use of such practices in order to obtain information from detainees. At the least, there was little consistency or clarity about the rules that were laid down for interrogations. Moreover, many of the practices reported in Iraq have also been alleged to have taken place at U.S. detention centres in Afghanistan, suggesting a widespread pattern of abuse as part of the “war on terror.”

It is also clear that the worst abuses at Abu Ghraib occurred at a time when senior officials in Iraq and Washington DC were pressing for more information about the Iraqi insurgency, and after the Pentagon had sent the head of the Guantanamo Bay detention centre, Maj. Gen. Geoffrey Miller, to Iraq to advise on improving the flow of intelligence. One indication that there may be a link is that Col. Pappas has apparently said that Gen. Miller suggested the use of dogs in interrogation to him.

Military investigations into the abuses at Abu Ghraib began after Specialist Joseph Darby brought some of the photographs to the attention of his superiors in January 2004. But senior officials had been given credible reports of similar practices well before this date. The International Committee of the Red Cross visited Abu Ghraib twice during October 2003 and complained in writing about what they found - in particular the forced nudity of detainees - in a letter of November 6, 2003. A meeting to discuss the response to the report was held between Brig. Gen. Karpinski, Col. Pappas, Maj. Gen. Walter Wojdakowski (deputy to Lt. Gen. Sanchez, the U.S. commander in Iraq), and others, and a response sent on December 24, 2003. Despite the serious allegations raised in the ICRC report, no attempt was made to investigate.

In addition, it has now been revealed that a detainee assessment unit at Abu Ghraib had begun collecting allegations of ill-treatment from prisoners in mid-November 2003 and including them in reports that were sent to both Brig. Gen. Karpinski and Maj. Gen. Barbara Fast (the top military intelligence officer in Iraq). Again, there is no evidence that any action was taken in response to these reports.

During the “war on terror,” there have been repeated indications of brutality and abuse against detained terrorist suspects. Detainees in Afganistan have apparently been killed during interrogation (including two in separate incidents in December 2002 whose deaths the Army says it is still investigating) and many others have reported suffering abuse similar to that recorded in Iraq. There have also been repeated suggestions that senior al-Qaeda figures in captivity are being subjected to actions such as “water-boarding,” a form of torture in which the victim is held under water, or that medical treatment for wounds suffered during capture has been withheld.

The use of abusive interrogation techniques against detainees in order to obtain information from them appears to form part of a consistent pattern both in Iraq and the military campaign against al-Qaeda. It is not yet clear whether these practices formed part of an official policy. There are a number of specific links that have emerged, however. The worst abuses in Iraq took place after Maj. Gen. Geoffrey Miller, who was in charge of Guantanamo Bay, visited Abu Ghraib. In addition, the military intelligence unit that had been in charge of interrogations at the Bagram holding centre in Afghanistan when two detainees were apparently killed there was transferred to Iraq at some point in 2003, and some of its members were involved in interrogations at Abu Ghraib.

The Bush administration has stated that the Geneva Conventions apply to the war in Iraq, but asserts that they are not applicable to detainees held as part of the wider campaign against al-Qaeda. In recent months, several memos from within the administration have been published in the press that assert that under some circumstances the torture or coercive interrogation of terrorist suspects might be permissible.

There is no doubt, however, that torture and inhuman treatment of all military detainees are forbidden under both international and U.S. law. Even if the full protection of the Geneva Conventions are not available to terrorist suspects, it remains beyond dispute that prohibitions against torture and inhuman treatment form part of customary international law, which is binding on all military operations during armed conflict. They are also forbidden by the Torture Convention, which the United States has ratified. This forbids not only torture, but also cruel and inhumane treatment.

According to Jennifer Martinez, Professor of Law at Stanford University and one of the lawyers acting for Jose Padilla, the analysis of U.S. law in the so-called torture memos is “deeply flawed.” Martinez says that the memos’ argument that the President can override domestic laws against torture “would undermine the rule of law on which America is based.” She points out that the Constitution requires the president to “take care that the laws be faithfully executed,” and points to the Supreme Court decision in the Steel Seizure case (when the Court ruled that President Truman’s seizure of steel mills during the Korean war was unconstitutional) as evidence that the Court has clearly rejected such a sweeping interpretation of the Commander-in-Chief’s power.

In Iraq, a number of so-called “ghost detainees” have been held in secret, without being listed on prison rolls or visited by the International Committee of the Red Cross. In one case, an order to hold a prisoner in secret was ordered directly by U.S. Defense Secretary Donald Rumsfeld, acting on the request of then-CIA director George Tenet. Under the 4th Geneva Convention, where detainees are “under definite suspicion of activity hostile to the security of the Occupying Power” and if “absolute military security so requires” they can be deprived of rights of communication - though these must be restored at the earliest date possible. Nevertheless it is hard to see that this provision would justify refusing to allow the ICRC to visit detainees.

Outside Iraq, there are an unknown number of al-Qaeda suspects - including those thought to be the most senior in the organization - being held with no indication of their whereabouts. Most are thought to be in the custody of the CIA in secret facilities outside the United States, and several have reportedly been subjected to interrogation techniques that seem clearly to constitute torture. Although detainees from the “war on terror” at Guantanamo Bay have been given the opportunity to challenge their detention in U.S. courts, there is no judicial oversight of the CIA’s clandestine prisoners. One internal U.S. government memo revealed that during discussions on whether the President should announce that the U.S. would - as a policy decision - treat detainees from the war on terror in line with the provisions of the Geneva Conventions, CIA lawyers requested an explicit statement that this declaration did not apply to the CIA.

It is not thought that there are any official investigations looking into the CIA’s detention and interrogation policies.

There have been repeated allegations that some terrorist suspects have been turned over to third countries where they may be tortured - a process known as rendition. For instance, a Syrian-Canadian named Maher Arar was detained by U.S. authorities in transit through Kennedy Airport in New York and deported to Syria, where he was tortured.

International law is clear that states cannot get around the prohibition against torture by farming it out to other countries. The Geneva Conventions explicitly forbid transferring prisoners of war or detained civilians to other countries that are not likely to offer them the protection they are entitled to. Similarly, the Convention Against Torture forbids sending anyone to a state where “there are substantial grounds for believing that he would be in danger of being subjected to torture.”

Text by Anthony Dworkin