U.S. Rules on Prisoners Seen as a Back and Forth of Mixed Messages to G.I.'s

By DOUGLAS JEHL

The New York Times

June 22, 2004

The following article was reported by Douglas Jehl, Eric Schmitt and Kate Zernike and was written by Mr. Jehl.

WASHINGTON, June 21 — Since the Sept. 11 attacks, the Bush administration's new rules governing treatment of foreign prisoners have been contradictory and have sent mixed messages to American soldiers, according to military personnel and documents.

Six investigations are under way into abuses of detainees; none are expected to produce any conclusions soon. A close review of recently disclosed documents and interviews with soldiers, officers and government officials find a broader pattern of misconduct and knowledge about it stretching into the middle chain of command. But there is no clear evidence to date that the highest military or civilian leaders ordered or authorized the mistreatment of prisoners at American-run prisons in Iraq, Afghanistan and Guantánamo Bay, Cuba.

Still, the ever-shifting rules, in which lists of accepted interrogation tactics were widened drastically before being reined in over 17 crucial months, helped foster a climate in which abuse could flourish.

Starting with the 17 interrogation techniques approved in a standard Army manual, commanders at the Guantánamo prison doubled the permitted methods by late 2002, before shrinking the list. In Iraq last fall, directives on treatment of prisoners were changed at least three times in six weeks. Some of the procedures authorized in Iraq had been banned as too harsh months earlier at Guantánamo.

Some officers skirted international treaties governing prisoner treatment, some soldiers have said, instructing subordinates to hide detainees from monitors sent by the International Committee of the Red Cross. In one instance, Defense Secretary Donald H. Rumsfeld approved an order to hold a suspected Iraqi terrorist but to keep his name off the prison rolls, effectively shielding the "ghost detainee" from Red Cross inspectors.

Lacking clear guidance, soldiers at various jails were apparently confused about the rules. In Iraq, some guards were such sticklers that they demanded paperwork to take away detainees' blankets, while others did not understand that they needed written authorization to intimidate prisoners with dogs.

Many guards at the Abu Ghraib prison in Iraq said they had been told by intelligence officers to "soften up" detainees, but some thought that meant making them do calisthenics to tire them out, while others took it to mean forcing them to crawl naked on leashes for hours.

Beatings were accepted enough at Abu Ghraib that some soldiers recorded the number of stitches their victims required with tack marks on the wall. In the worst cases in Afghanistan and Iraq, abuse resulted in deaths, including 10 cases now being investigated as homicides.

While President Bush has portrayed the events at Abu Ghraib as the actions of just a few soldiers at one prison, the picture emerging from documents, interviews and Congressional testimony points to a broader pattern of misconduct and knowledge about it stretching up the chain of command.

While the mistreatment did not go entirely unnoticed, many soldiers who had hints of the abuse did not report it. In a chaotic environment in the midst of a war, some soldiers said later, they assumed it must have been authorized.

"It was confusing the way the place was run," Sgt. Samuel Jefferson Provance III, who worked in interrogations at Abu Ghraib as part of the 302nd Military Intelligence Battalion, testified at a military hearing last month. "It was a shocking experience."

For military officials at the highest levels, the administration's fight against terrorism was a new kind of war. As Gen. James T. Hill, head of the military's Southern Command, said, describing the government's post-Sept. 11 effort to rewrite longstanding practices about prisoner treatment, "we really were moving into uncharted waters."

Geneva Rules Didn't Apply

Soon after the attacks of Sept. 11, 2001, as planning began for the invasion of Afghanistan, the Pentagon asked Justice Department lawyers to assess whether detainees held in Afghanistan or in the new American-run prison at Guantánamo Bay could claim they had been mistreated under the Geneva Conventions and federal and international laws.

The lawyers concluded that the Geneva Conventions did not apply, because Guantánamo was outside the territorial United States, and because Al Qaeda and the Taliban were not legitimate states, so were not parties to the agreements. One memorandum argued that the president could authorize even "cruel, inhuman, and degrading" treatment to protect national security, as long as it did not cause "great suffering or serious bodily injury" to detainees, like "killing or torturing them."

Secretary of State Colin L. Powell and State Department lawyers fired back objections, but apparently lost. An August 2002 memo on interrogation standards from the Justice Department to the White House counsel further whittled down the definition of torture. To qualify, the document said, mistreatment had to inflict pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Military officials have described those legal arguments as theoretical and removed from the decision making about rules for interrogation and treatment of prisoners.

But first in Guantánamo and Afghanistan, and then in Iraq, commanders authorized procedures harsher than those spelled out in the Army's interrogations field manual. The 17 general techniques, like manipulating a prisoner's emotions or persuading the prisoner that it was futile to resist, formed a boundary that the American military had heeded in the recent past.

Like the legal memorandums, the decision to go beyond the field manual was based on the ground that the Geneva Conventions did not apply. For prisoners in Iraq, the reasoning was that the protections were not as restrictive as previously interpreted by the United States.

Harsher Procedures Added

At Guantánamo, the first clear widening of authority came in December 2002, when commanders asked the Pentagon for more latitude in interrogating a Saudi Arabian prisoner believed to be the planned 20th hijacker of Sept. 11.

The authorities thought the man, Mohamed al-Kahtani, had information about possible future attacks, but he had resisted standard interrogation techniques.

In response, Mr. Rumsfeld authorized at least 17 new procedures beyond those in the field manual, a senior Pentagon official said. They applied to all Guantánamo prisoners.

Those harsher techniques included hooding; exploiting a prisoner's phobias, sometimes using muzzled dogs in interrogations; removing some of a detainee's clothing; and the use of "minimum physical contact" like poking or grabbing.

Even though these harsher techniques were approved, senior military officials said last week that those four specific practices were never used at Guantánamo. Still, interrogators at the site and military lawyers in Washington objected. Just over a month later, Mr. Rumsfeld ordered a group of military lawyers, intelligence analysts and policy makers to review the rules.

On April 16, 2003, Mr. Rumsfeld narrowed the list of approved techniques. He permitted 24 methods at Guantánamo, including 17 from the Army manual, but stipulated that 4 of them required his explicit approval. They involved using incentives to cooperate, like offering hot showers in the winter, segregation for more than 30 days, good-cop-bad-cop interrogation and an approach called "pride and ego down," which exploits a prisoner's loyalty, intelligence or perceived weakness.

Defense officials said those more aggressive techniques had been used with only two prisoners at Guantánamo and did not constitute torture.

In Iraq, there had been no formal interrogation rules in place beyond those in the Army manual until late August 2003.

Then, officers at Abu Ghraib sought to give interrogators more freedom and proposed a set of rules drafted by an Army unit that had recently arrived from Afghanistan. The unit, the 519th Military Intelligence Battalion, had a questionable record. Two prisoners under its supervision at Bagram Collection Point in Afghanistan died in December 2002, apparently in homicides that are still being reviewed by criminal investigators.

The battalion's commander, Capt. Carolyn A. Wood, proposed 30 interrogation techniques, and two lawyers working for Lt. Gen. Ricardo S. Sanchez, the ground commander in Iraq, approved them. Defense officials have refused to say exactly what procedures were authorized under the proposal or under later directives put into effect in Iraq. A senior Pentagon official said last week that it was unclear whether those additional techniques had ever been used in interrogations.

Wider, Then Narrower Policy

Meanwhile, another crucial chain of events had already been set in motion. Stephen A. Cambone, Mr. Rumsfeld's top intelligence official, encouraged Maj. Gen. Geoffrey D. Miller, then the head of detention operations at Guantánamo, to visit Iraq to find ways to improve the quality of intelligence extracted from detainees about the growing anti-American insurgency.

On Sept. 9, General Miller completed a review of operations in Iraq and recommended a detainee interrogation policy that borrowed heavily from the procedures approved for Guantánamo. He proposed establishing a new interrogation and debriefing center and ensuring that military police officers were assigned to help set the conditions for questioning.

On Sept. 14, General Sanchez authorized variations on what General Miller had recommended. Those rules allowed the use of harsh procedures banned from Guantánamo, including using sleep deprivation, to as little as four hours' rest each 24 hours, and making prisoners stand or crouch in positions for up to an hour, according to Senate aides who have read the confidential document.

As in Guantánamo, the policy ignited a debate among military lawyers, with particular objections coming from the Central Command.

So on Oct. 12, General Sanchez issued a much narrower policy. Most of the harsher methods automatically authorized in the earlier directive, like segregating a prisoner for more than 30 days, would not be permitted without the general's approval.

According to General Sanchez's top lawyer, Col. Marc Warren, the new procedures were consistent with the Geneva Conventions. But the policy still allowed interrogators to improvise if they received approval, according to a senior military official who briefed reporters at the Pentagon last month.

It remains unclear whether the changes were communicated through the ranks of interrogators and guards, particularly those at Abu Ghraib. Rules posted on the wall in the prison's Joint Interrogation and Debriefing Center, for example, were apparently outdated.

Some troubling practices were clearly tolerated, soldiers said in interviews and sworn statements. Forced nudity was common in the prison's highest-security area, or "hard site," overseen by military intelligence officers. One interrogator told investigators that he "generally" threw tables around a room holding detainees, while another said she did not regard slapping a detainee as abusive.

Several soldiers said in interviews that Lt. Col. Steven L. Jordan, who was in charge of the interrogation center, had handcuffed and hooded detainees who had been beaten and had hidden them in a cell during a Red Cross visit. Others said Col. Thomas M. Pappas, the highest-ranking military intelligence officer at the prison, had permitted them to intimidate detainees with dogs. None of the dog handlers have been charged with wrongdoing, and two of them have said they were following orders from Colonel Pappas.

By the accounts of the seven soldiers now charged, the abuses seen in the notorious photographs from the prison began as an attempt to encourage prisoners to talk.

Pfc. Lynndie R. England, telling investigators last month about what was going on in prison photographs, said making prisoners crawl with leashes was intended as a "humiliation tactic" to get them to tell more about the rape of an Iraqi boy.

But several of the soldiers charged said later acts depicted in photographs, like piling prisoners naked or forcing them to masturbate, had nothing to do with interrogations. "We thought it looked funny, so pictures were taken," Private England told investigators.

Senior Army officers in Baghdad say they did not learn about those abuses until a soldier came forward in January. But several senior Army officers knew by last November that the Red Cross had complained about problems at the prison, including forced nudity and physical and verbal abuse of prisoners.

Among those aware of the concerns were General Sanchez's top deputy, Maj. Gen. Walter Wojdakowski; his intelligence officer, Maj. Gen. Barbara G. Fast; and his top lawyer, Colonel Warren. In addition, a small unit inside the prison began reporting beatings and other abuses last fall in documents sent to military lawyers in Baghdad and a review board of colonels, according to military intelligence officers.

The role played by General Sanchez remains a particular focus of investigators. He authorized interrogation procedures in September that he banned 28 days later, and he visited Abu Ghraib at least three times in October, when the worse of the abuses occurred. He has said he did not learn of the incidents until January.

Last month, in response to growing concerns in Congress, General Sanchez narrowed the interrogation rules in Iraq once again, barring virtually all coercive tactics.

In early June, the general removed himself as the officer overseeing an inquiry into the role of military intelligence soldiers in the prisoner abuse, clearing the way for an Army general to interview him for the investigation.