by Ahmed Rashid
The International Committee of the Red Cross, based in Geneva, which serves as the guardian of the GC, wrote to the Bush administration after 9/11 saying that the upcoming war was an “international armed conflict, ” and the United States was urged to treat humanely any combatant taken prisoner. The ICRC received no reply. Instead Bush decided to predetermine all al Qaeda and Taliban prisoners as “illegal enemy combatants” and deny them status as POWs under the GC or any legal rights under the U.S. Constitution. A legal black hole was willfully created in which all manner of abuse could be carried out. The holding of prisoners outside the jurisdiction of U.S. territory and law, in Kandahar, Bagram, Guantánamo Bay, and around the world in dozens of secret CIA jails called black sites, created a parallel system of justice that was to undermine the core values of the U.S. justice system.
What prompted the Bush administration’s drastic measures? Initially it was believed that the sheer shock of the attacks on the U.S. homeland called for extreme measures. Bush’s depiction of a war between good and evil and more talk of a war between civilizations conjured up strong feelings of revenge and retribution. There was little discussion in the media or Congress as to how this war would be carried out, as people wanted the administration to get tough with terrorism. There were fears of al Qaeda using nuclear weapons in a second strike, especially after Pakistani nuclear scientists were arrested for helping bin Laden. When the bombing campaign began in October 2001, phone intercepts hinted at something more to come. “We began to get serious indications that nuclear plans, material and know-how were being moved out of Pakistan [by al Qaeda]. . . . It was the vibrations coming out of everybody reviewing the evidence,” Bush told Bob Woodward.2
However, it is now clear that the key impulse for the drastic measures was from the neoconservatives in the administration who wanted to exploit the crisis in order to gain more powers for the president and the executive branch. They reckoned that presidential authority could be increased enormously at the expense of Congress and the judiciary, who were never consulted about the new laws. The very checks and balances within the U.S. political system that should have restrained this cynical agenda were bypassed. Once Bush moved away from depicting the war as one against al Qaeda to one against terrorism in general, the neocons were able to move the goalposts of their agenda from Afghanistan to Iraq and later to Iran. Rejecting the GC also helped create fear and awe among the public by implying that the terrorist threat was greater than anything the United States had ever experienced before. Madeleine Albright wrote that Americans had had an overdose of fear. “We have been told to be afraid so that we might be less protective of our Constitution, less mindful of international law.”3
Immediately after 9 /11 a small group of political appointees in the Office of Legal Counsel at the Department of Justice and the White House Counsel’s Office began to develop the new policy. Many of these lawyers belonged to the right-wing Federalist Society and shared a contempt for the Geneva Conventions. The White House Counsel, Alberto R. Gonzales, who became attorney general in the second Bush term, sent a now-infamous memo to Bush on January 25, 2001, stating, “The war against terrorism is a new kind of war. . . . In my judgment this new paradigm renders obsolete Geneva’s strict limitations on questioning enemy prisoners and renders quaint [my italics] some of its provisions.”4 He argued that “Afghanistan was a failed state because the Taliban did not exercise full control over the territory and people . . . the Taliban and its forces were in fact, not a government, but a militant, terrorist-like group.” Gonzales asserted that such a determination meant that the obligation to abide by the GC need not apply. Gonzales’s entire analysis was false. The war on terrorism was not a new war, and the idea of failed states or what to do with them was not even covered by the GC. Moreover, the Taliban could hardly be considered terrorists when the Clinton administration had negotiated with them in the 1990s.
In a reply to the White House the next day, the State Department wrote that abrogating the GC would have a negative effect on the image of the United States abroad, the lives of captured American soldiers would be at risk, and U.S. leaders could be accused of war crimes. State argued that the United States was still obligated to determine the status of each prisoner by a military tribunal, and even if al Qaeda was to be refused POW status, the same could not be said for the Taliban. The Judge Advocate General’s Corps, or JAG—the army’s own lawyers—also protested. The army’s Uniform Code of Military Justice made maltreatment of POWs a crime. JAG pointed out that with the U.S. military’s global deployments, defiance of international law could create huge risks for U.S. soldiers. All this was to emerge in May 2004 when these memos were first published.5
Gonzales had the support of Bush and Cheney, and the debate was won. Bush stated on February 7 that al Qaeda and the Taliban would be collectively given the status of “illegal enemy combatants,” and the United States would treat them “humanely and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the GC.” This clause allowed the administration to cherry-pick those parts of the GC it wanted. Coining the phrase “illegal enemy combatant” was masterful because it was outside the lexicon of humanitarian law and allowed the United States to term the whole world a potential battlefield. In the first few months after 9/11, more than ten thousand people were arrested by the United States and its allies in the war on terror. In the United States alone, the FBI arrested several thousand Muslims on suspicion of being involved in terrorism. These people were held without trial and many were freed without an apology or explanation.
At home, the U.S. administration built up public hysteria. “We are keeping them off the street and out of the airlines and out of nuclear power plants and out of ports across the country and across other countries,” said Rumsfeld, as though he were an actor in a science-fiction movie. When he visited Guantánamo for the first time in February 2002, he said the United States was holding “the most dangerous, best-trained, vicious killers on the face of the earth.”6 Although most of the prisoners would turn out to be innocent of any crime, Rumsfeld had already determined their guilt. Even before the February 7 decision, the White House was considering a favorable prison site that “would be safe from attack and quiet enough for sustained interrogations,” one U.S. official told me.7 Prison ships parked in the ocean were considered, as was the island of Diego Garcia, a naval base in the Indian Ocean that the United States leases from Britain. However, the U.S. naval station at Guantánamo—the oldest overseas U.S. military base, dating back to 1903, when Washington leased forty-five square miles from Cuba for a refueling station at a cost of four thousand dollars a year— was both isolated and close to the U.S. mainland.
The ICRC only vaguely suspected that the United States was going to defy the GC. When U.S. officers gave the organization access to prisoners at the Kandahar detention center in December, they assured the ICRC that they would be applying the GC. Yet a few weeks later—on January 17, 2002—when the ICRC paid its first visit to Camp X-Ray, at Guantánamo, they saw sedated, hooded, and chained prisoners who had arrived by plane a week earlier. Once prisoners from places not connected to Afghanistan started to arrive in Guantánamo, it became clear to the ICRC that Washington had no intentions of adhering to the GC. Nobody in Washington had briefed the ICRC or given any indication of what U.S. plans were. Clearly the ICRC had been duped.
U.S. SOF and the CIA operating in northern Afghanistan also appeared to know that the rules of war were about to be changed, as they tolerated unprecedented abuse, torture, and death of Taliban prisoners at the hands of commanders such as General Dostum. “When we got to Shiberghan we could not believe the extent of the abuses and starvation carried out by the NA commanders and what U.S. SOF on the scene had tolerated there,” a senior Western aid official told me. “It was because the Americans knew the rules of war were about to change.”
For the most part Europeans refused to follow suit and did not dil
ute their obligations under GC, even after the devastating bombing of trains in Madrid in March 2004 that left 192 people dead. Britain was the only European country to follow the U.S. example, when Tony Blair removed Britain from its obligations under the European Convention on Human Rights. Parliament passed an Anti-Terrorism, Crime and Security Act, extending the government’s powers of arrest and detention.
The Americans introduced at least six different systems of holding prisoners and then encouraged their allies in the region to do the same. These systems included the main holding area at Guantánamo, jails at Bagram and Kandahar, a dozen secret sub-jails at U.S. firebases in the Afghan mountains where the SOF held their own prisoners, jails run by Afghan warlords and by General Fahim’s intelligence service, jails run by the ISI, and, finally, the process of “rendition” by which the CIA transported prisoners to allied countries where they could be interrogated and tortured by local intelligence agencies. Each system had levels of secrecy, nontransparency, the lack of legal redress, and noncompliance with U.S. law, contradicting even what Bush had promised in February—that prisoners would be treated “humanely.” What the United States imposed in those early months in Afghanistan would later be transported wholesale to Iraq. One Western official who knew all the prison systems well said it was “a descent into hell which the American legal system may never recover from.”
The first prisoner abuses in Afghanistan took place in Kandahar’s detention center, set up by U.S. Task Force 500, at the airport outside the city. Through the winter, prisoners from all over Afghanistan and Pakistan were flown there, including those captured outside the battlefields or those sold to the Americans by the warlords and Pakistani officials. Without documentation and only hearsay evidence that they were al Qaeda, the U.S. interrogators in Kandahar had to determine whether they should be sent onward to Guantánamo. Ultimately it was easier for the understaffed, undertrained, and all too few U.S. interrogators to send the prisoners to Guantánamo. In Pakistan the arrests were even more haphazard, due to the CIA paying bounties for any al Qaeda. As a result the army and police rounded up hundreds of innocent Arabs and Pashtuns.
The Afghanistan-Pakistan border region became an immense human bazaar where lives were traded with no limits or rules. Often the very old or the very young were sent to Kandahar. Three Afghan boys aged between thirteen and sixteen were held at Kandahar and then Guantánamo until March 2003. Another Afghan boy who had been a dishwasher at a restaurant where Taliban once ate was also held. Men over eighty years old, barely able to stand up straight, including one eighty-eight-year-old, also ended up in Guantánamo. Some Afghans just happened to be in the wrong place at the wrong time, such as Noor Habibullah, a landless Afghan farmer from a village near Jalalabad who had been conscripted by the Taliban at the end of the war. His story is typical of many:
Immediately after the U.S. attack on the Taliban, I was forced to join Taliban ranks and was sent to the front lines in Bamiyan. The Taliban would have spared my conscription if I could have paid them six million Afghanis [some two hundred dollars]. On 5 November 2001, I was arrested by the NA and jailed in Bamiyan along with twenty-seven others. We were never seriously interrogated beyond being asked a few questions about our identity. After six months in Bamiyan, foreign military people arrived and selected me and eleven others and we were flown in helicopters to Bagram. My hands and feet were tightly tied and my head was covered with a bag.
Once in Bagram we were questioned by foreigners through translators. After one day I was flown to Kandahar where . . . I was forced to strip down in front of four or five people. We were forty-seven prisoners in one big room in different cages. I was mostly asked questions about why I was fighting for the Taliban. Which people I knew among the Taliban and al Qaeda. Did I know Osama bin Ladin? Although the interrogators were usually nice to us, those guarding our cages were very bad. One of the most disgusting things they did was to throw away the Koran, which angered many prisoners. One of the most difficult things in Kandahar was the lack of sleep. We were forced to sleep under strong lights and too much noise, so it was very difficult to sleep more than two hours at one time. After eight months in Kandahar, I was told that we were being taken somewhere else. In the plane I was tied to my seat and black goggles were tied around my eyes. Once in Guantánamo I was taken to a hospital, where again I was stripped naked. The prison guards there were very harsh, especially with Arabs or senior Taliban leaders.8
Habibullah was eventually freed from Guantánamo in September 2003 without any charges being filed. Western officials who visited Kandahar jail told me prisoners were detained in open-air cages where twenty men jostled for space in the freezing cold of winter or the blistering desert heat of the summer. They were strip-searched before every interrogation and their hands and feet were always shackled. Guards on raised platforms pointed guns at them and at night shone searchlights into their faces. There were dozens of American female guards—far too many for a conservative people such as the Afghans to get used to. Female guards began to use the tactics that would become infamous at Abu Ghraib—unbuttoning their blouses and displaying cleavage, taunting the prisoners by shouting obscenities at them or staring at them through the cages. The guards knew well enough how provocative this could be for conservative Muslims.
U.S. interrogators were operating under enormous constraints because of the catastrophic decline in intelligence and foreign language training within the CIA and the U.S. Army since the end of the cold war. Even though it had been combating al Qaeda since 1996, CENTCOM had failed to prepare for the task. U.S. SOF units could speak to their NA allies only in Arabic or Russian, as none was trained to speak Afghan or Pakistani languages. Interrogators were even worse off, depending entirely on interpreters. At the start of the war the U.S. Army had only 510 fully trained interrogators, including 108 who spoke Arabic—which is spoken by very few Afghans. Instead, the Americans had to depend on hastily trained Afghan translators—a surefire way to lose content, emphasis, and nuance in the interrogation process. After 9/11, U.S. recruiting agencies were used to hire Persian and Pushtu speakers in the United States. They recruited hundreds of Afghan Americans, including New York taxi drivers who had not lived in Afghanistan for years. Others, recruited from the Shia Hazara community in Quetta, Pakistan, had little connection with Afghanistan but spoke Persian. The exiled Taliban were to target these Hazaras, killing them in suicide bombings and worsening the Sunni-Shia conflict in Pakistan.
The few U.S. interrogators in Kandahar had completed only a sixteen-week military-intelligence training course at Fort Huachuca, in Arizona. Their knowledge of the region was close to zero. When Uighur prisoners—Muslims from western China—were delivered, there was no information in the CENTCOM database about who they were. The interrogators had to depend on the Encyclopaedia Britannica to learn more about them.9
Adding to the pressure of interrogators in Kandahar were Washington’s demands for “immediate actionable intelligence” about any new attacks al Qaeda might be planning. Abuses, threats, and torture became the quickest way to try to glean intelligence from the prisoners—though most interrogators know that winning over the prisoner is far more profitable than beating him. Soon Kandahar’s haphazard system of interrogation and prisoner abuse was to be transferred to other U.S. detention centers around the world.
The CIA fared no better in gaining reliable intelligence. Robert Baer, a former CIA officer, wrote that in the 1990s hardly anyone in the CIA spoke Pushtu or Persian. Case officers with knowledge of Afghanistan were too few.10 CIA director Porter Goss was to admit in 2004 that it would take five years to rebuild CIA’s HUMINT (for HUMan INTelligence) capability. “I can’t emphasize enough that if you don’t have case officers who can deal with the cultures and the language, you are not going to get much,” he told a Senate hearing.11 The CIA did not even have photographs of Taliban leaders. Afghan con men earned thousands of dollars from the CIA by selling them alleged photographs of Mullah Omar, although
most were false. As a superpower engaged in a global war against Islamic extremism, having just invaded one Muslim country and preparing to invade an Arab country, the United States was in a pitiful state of readiness.
The Kandahar interrogation center was closed down in the summer of 2002 and prisoners were transferred to Bagram, where living conditions were equally abysmal. Bagram became the principal long-term detention area in Afghanistan, even though Kandahar jail was reopened in 2003 after the Taliban resurgence began. Known as the Bagram Collection Point, or BCP, the jail was in the middle of the large U.S. Army camp and air force base. Prisoners were housed in a dilapidated former Soviet machine workshop with corrugated iron roofs and cement floors that froze in winter and burned in summer. The building was refitted with five large wire pens for holding prisoners and several isolation cells constructed of plywood. Up to 250 Afghans were incarcerated there at a time. The ICRC complained consistently about the appalling conditions, but improvements were made only after the Abu Ghraib scandal in Iraq broke. Frequent reports by Carlotta Gall of The New York Times exposing cases of abuse and death of Afghan prisoners were ignored by U.S. commanders.12
Since 2002 at least eight Afghan prisoners have died in U.S. custody in Afghanistan, and for years the military did its utmost to restrict information about their cases. The first was Mohammed Sayari, who died while in the custody of U.S. SOF in August 2002, followed in November 2002 by the death of an unnamed detainee at a secret CIA interrogation center in Kabul called the Salt Pit. Dilawar, a taxi driver, and Mullah Noor Habibullah died at Bagram in December 2002. In January 2003, Wakil Mohammed, a woodcutter, was killed by the U.S. SOF near Gardez. Jamal Naseer, a recruit for the Afghan army, died at the hands of the same U.S. SOF unit in March 2003. Abdul Wali, who died at the Asadabad base in June 2003, and Sher Mohammed Khan, who died at a base near Khost, were also in the hands of U.S. SOF.13