As grotesque revelations in a Senate report on the CIA’s torture of ‘war on terror’ detainees are being mulled over, it has been announced that the last three remaining detainees in United States custody in Afghanistan have been transferred out of American hands. The Bagram detention facility is finally, after 13 years, closed. As AAN’s Kate Clark reports, US detention operations in Afghanistan may finally have concluded, but the repercussions of CIA torture and rendition have not yet ended. They include the possibility of the US being held to account at the International Criminal Court.U.S Senate report reveals extent to CIA torture.
The last three detainees held by the US in Afghanistan have finally been transferred out of Bagram (see this AAN update of detainees and those recently transferred, from the start of October 2014). One remains un-named; all that we know is he is a Jordanian and is reportedly being repatriated. The other two, both Tunisian, have been handed over to the Afghan authorities: Ridha al-Najjar, who was the first detainee to be tortured by the CIA in Afghanistan, and a man named for the first time, Lutfi al-Arbai al-Gharisi. Up till now, he was a ‘ghost detainee’, his existence unknown to the outside world, but it seems likely he was in US custody for twelve years. (1) Both men, according to the newly released report, the Senate Select Committee on Intelligence’s “Study of the Central Intelligence Agency’s Detention and Interrogation Program” were tortured. The US military spokesman told AAN the “two Tunisians are in Afghan custody for potential prosecution.” The Afghan presidential spokesman would only tell AAN that they would deal with them “according to the law.” As both men appear to have been rendered (ie kidnapped and brought against their will) to Afghanistan, it is difficult to imagine what charge they could possibly face or indeed, what grounds the Afghan state would have to detain them at all.
So at the close of America’s sorry detentions’ venture in Afghanistan, we have two detainees whose identities are still not properly known and two who are facing an uncertain fate. Finally, though, some of the story of the CIA’s use of torture in Afghanistan and elsewhere has been officially published.
The release of the Senate report contains some new disclosures – the numbers of those tortured were higher than the CIA had previously admitted and it used some previously unknown methods such as ‘rectal feeding’ – not for medical reasons but to try to break the detainee. Generally, though, the shock – and yet no surprise – comes in the combination of CIA duplicity and sloppiness. The agency was so keen to carry out torture, it changed its long-standing belief that torture was not effective and lied about the effectiveness of its post-9/11 torture programme. Yet it was not keen enough to keep proper records, learn from mistakes or deploy senior, experienced people to the field. The CIA’s ‘enhanced interrogation techniques’, which included water-boarding, forced standing, stress positions and suspension, threats to family members, prolonged sleep deprivation (up to a week, according to the report) and keeping detainees in nappies, rather than letting them use a toilet, were finally banned by President Obama in 2009.
In the years after the 9/11 attacks, it was not just the CIA which was torturing. The US military used similar interrogation methods, as the 2008 Senate Armed Services Committee “Inquiry into the Treatment of Detainees in U.S Custody” (in Iraq, Afghanistan and Guantanamo Bay) detailed, in an attempt to understand why the abuses at Abu Ghraib happened. However, the germ of the idea to change the nation’s rules on the treatment of detainees began at the CIA.
The Senate report is compelling and grotesque, 500 pages – the executive summary only of a 6000 page report, based on six million pages of CIA material – detailing how the United States’ intelligence agency came to torture more than one hundred people in the years after the 9/11 attacks. Much of the information had already been painstakingly put together by the media and human rights groups – on abuses and deaths in US detention and the global spider-web of CIA’s rendition and torture programme. Here though, we get the view from the inside, see how decisions came to be made, justified and lied about.
Many of the victims of this programme were Afghans or foreign nationals rendered to Afghanistan, to four sites, in particular the ‘Salt Pit’ (code-named ‘Cobalt’ in the Senate report), a detention facility in an old Afghan factory building taken over by the CIA north of Kabul, which housed half of those who were subject to CIA torture. (The photographer, Trevor Paglan, has published shots of the site on his website: The agency, says the report, wanted to build its own facilities so that it could evade visits by the International Committee of the Red Cross (ICRC) which it thought likely to happen if detainees were housed on military bases. The report says conditions were poor at the CIA sites and were especially bleak early on:
CIA detainees at the COBALT detention facility were kept in complete darkness and constantly shackled in isolated cells with loud noise or music and only a bucket to use for human waste. Lack of heat at the facility likely contributed to the death of a detainee. The chief of interrogations described COBALT as a “dungeon.” Another senior CIA officer stated that COBALT was itself an enhanced interrogation technique. At times, the detainees at COBALT were walked around naked or were shackled with their hands above their heads for extended periods of time. Other times, the detainees at COBALT were subjected to what was described as a “rough takedown,” in which approximately five CIA officers would scream at a detainee, drag him outside of his cell, cut his clothes off, and secure him with Mylar tape. The detainee would then be hooded and dragged up and down a long corridor while being slapped and punched.
The Tunisian, Ridha al-Najjar, who was among the last to leave US custody was also the first detainee to be held at the CIA’s Salt Pit. His interrogation became, said the Senate report, a “model” for how subsequent interrogations were performed. He had been identified as one of Osama Bin Laden’s body guards and arrested in Pakistan in May 2002 and rendered to Afghanistan in June, arriving at the Salt Pit in September.
…the legal advisor indicated that the CIA’s interrogation plan [for Najjar] included “isolation in total darkness; lowering the quality of his food; keeping him at an uncomfortable temperature (cold); [playing music] 24 hours a day; and keeping him shackled and hooded.” In addition, al-Najjar was described as having been left hanging—which involved handcuffing one or both wrists to an overhead bar which would not allow him to lower his arms—for 22 hours each day for two consecutive days, in order to “‘break’ his resistance.” It was also noted al- Najjar was wearing a diaper and had no access to toilet facilities.
After more than a month of interrogations, the report said CIA interrogators described al-Najjar as “clearly a broken man” and “on the verge of complete breakdown” as result of the isolation.
The CIA’s first killing
Two months later, the Salt Pit saw the first killing of a detainee. Gul Rahman, “a suspected Islamic extremist” according to the Senate report, actually the driver of Ghairat Bahir, son-in-law of Gulbuddin Hekmatyar, who was detained, along with Bahir in Pakistan and rendered to Afghanistan. The CIA used “48 hours of sleep deprivation, auditory overload, total darkness, isolation, a cold shower, and rough treatment” and then, as the report details:
On November [redacted] 2002, [CIA OFFICER 1] ordered that Gul Rahman be shackled to the wall of his cell in a position that required the detainee to rest on the bare concrete floor. Rahman was wearing only a sweatshirt, as [CIA OFFICER 1] had ordered that Rahman’s clothing be removed when he had been judged to be uncooperative during an earlier interrogation. The next day, the guards found Gul Rahman’s dead body. An internal CIA review and autopsy assessed that Rahman likely died from hypothermia—in part from having been forced to sit on the bare concrete floor without pants. [CIA OFFICER I’s] initial cable to CIA Headquarters on Rahman’s death included a number of misstatements and omissions that were not discovered until internal investigations into Rahman’s death.
As far as his family was concerned, Gul Rahman had disappeared. The facts of his death were only uncovered in a 2010 report by the Associated Press. No-one was punished and indeed, the officer involved would receive a “cash award” of 2,500 dollars for his “consistently superior work” and the CIA station chief (housed then, as now, in the old Ariana Hotel, between presidential palace, ISAF, the ministry of defence and the US embassy) would be promoted. Moreover, says the report, in December 2002, less than a month after the death of Gul Rahman, CIA headquarters approved plans for the interrogation of three detainees which included removing their clothes “in a facility that was described to be 45 degrees Fahrenheit [7 degrees Celsius].”
‘Not torture when we’re doing it’
As Human Rights Watch has documented, the techniques authorised included those condemned as torture by the US when used by other countries, including Sri Lanka, North Korea, Iran, Turkey, China and Libya. Rather than being the last resort to wrest information from a detainee, as the CIA has claimed, we now know they were often the first methods used.
Yet, this was a turn around from what had been accepted practice. In 1989, the CIA had told Congress that “inhumane physical or psychological techniques are counterproductive because they do not produce intelligence and will probably result in false answers.” Even as late as October 2001, CIA policy was to comply with the Department of the Army Field Manual on Intelligence Interrogation. The CIA does not, said the CIA manual, engage in “human rights violations,” defined as: “Torture, cruel, inhuman, degrading treatment or punishment, or prolonged detention without charges or trial.” (2) In early November 2001, said the report, the CIA determined that “[s]pecific methods of interrogation w[ould] be permissible so long as they generally comport with commonly accepted practices deemed lawful by U.S. courts.”
How then did it come to subject detainees to torture and cruel and inhuman treatment? The report details how, by the end of November 2001, CIA officers had begun “researching potential legal defenses for using interrogation techniques that were considered torture by foreign governments and a non-governmental organizations,” including justifying it as a “necessary defence” to “prevent imminent, significant, physical harm to persons, where there is no other available means to prevent the harm”, a line which is still being heard from former Vice President Dick Cheney and former director of the CIA, Michael Hayden. Legally, there is no defence of ‘necessity’; the prohibition on torture is absolute. (3) What followed were attempts to re-define what amounted to torture. They included Deputy Assistant Attorney General John Yoo’s advice to the CIA that “the criminal prohibition on torture would not prohibit the methods proposed by the interrogation team because of the absence of any specific intent to inflict severe physical or mental pain or suffering.” (The document is undated, but Yoo sent a letter to the CIA in July 2002 with the same message.) (Similar legal machinations were going on in the Department of Defence. (4))
There is some evidence of awareness that they were trying to authorise the illegal methods. Before the ‘enhanced interrogation methods’ were ever used, a letter to the Attorney General was drafted and, although it may or may not have been sent, was circulated internally, which asked for a ‘declination’ – a formal assurance that those who used “aggressive methods” would not be prosecuted: they were prohibited by the torture statute, the letter acknowledged apart from potential reliance upon the doctrines of necessity or of self-defense.” (5)
Not even minimum protection
Exceptionalism for the ‘war on terror’ had already been asserted by President George W. Bush. On 7 February 2002, he issued a memorandum stating that al-Qaida and Taleban detainees did not qualify as prisoners of war under the Geneva Conventions and that even the most minimal protection, Common Article 3, requiring humane treatment of individuals in a conflict, did not apply to them. The text of the article says that detainees, civilians and those who are sick or who have surrendered:
…shall in all circumstances be treated humanely… To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever… :
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment (6)
Bush did go on to say that the al-Qaeda and Taliban detainees would, as “a matter of policy” be treated “humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions.” Yet, the Senate report into the use of torture by the US military, said:
… the decision to replace well established military doctrine, i.e., legal compliance with the Geneva Conventions, with a policy subject to interpretation, impacted the treatment of detainees in U.S. custody.
All this meant that detainees were left with not even the minimal protection of Common Article 3 or visits by the ICRC. Their detentions were kept secret, their names not publically released (the case till the end); and to their families, they had disappeared. After lawyers had redefined torture, poor management and an atmosphere of impunity then meant those on the ground also frequently went beyond the authorised techniques.
One of the major consequences of this, as John Sifton from Human Rights Watch said in an interview with AAN, is that “the CIA did enormous damage to the norm itself by insisting that what they were doing was legal.” In other words, the US argued that what had been considered torture (including by the US) was not torture and therefore legal. Moreover, as the Senate report also asserted, the CIA’s use of torture was not even effective – although the agency kept claiming it was.
Lies and Sloppiness
For all its keenness to get methods of torture authorised, the CIA, as this report shows, was sloppy about basic record-keeping and ‘human resources’. It sent junior people into the field (such as the man in charge of the Salt Pit when Gul Rahman was killed), placing, as the report says, “individuals with no applicable experience or training in senior detention and interrogation roles” and “provided inadequate linguistic and analytical support to conduct effective questioning.” Numerous CIA officers, we are told, had “serious documented personal and professional problems—including histories of violence and records of abusive treatment of others.”
Management was “deeply flawed,” with, until at least 2003, “divergent lines of authority for interrogation activities.” Knowledge of what was happening on the ground was weak, as the report said, “the CIA’s leadership and senior attorneys acknowledged that they had little or no awareness of operations at COBALT, and some believed that enhanced interrogation techniques were not used there.” A year later, in December 2003, CIA personnel, said the report, said “they had made the ‘unsettling discovery’ that the CIA had been ‘holding a number of detainees about whom’” the CIA knew ‘very little’ at multiple detention sites in Country [redacted].”
At the Salt Pit, the CIA “kept few formal records of the detainees… Untrained CIA officers at the facility conducted frequent, unauthorized, and unsupervised interrogations of detainees using harsh physical interrogation techniques that were not—and never became—part of the CIA’s formal ‘enhanced’ Interrogation program.”
Overall, the CIA “never conducted a comprehensive audit or developed a complete and accurate list of the individuals it had detained or subjected to its enhanced interrogation techniques.”
According to the report, the agency also fabricated information, lying to Congress, the Executive and the media about what it said was the necessity of using torture. ‘Enhanced interrogation techniques’, it concluded, were not effective in “acquiring intelligence or gaining cooperation from detainees.” Indeed, it says, multiple CIA detainees “fabricated information, resulting in faulty intelligence.” The CIA told the executive, congress and the public that its interrogation techniques had resulted in specific terrorist plots having been “thwarted” and specific terrorists captured, insisting the methods were “not only effective, but also necessary to acquire “otherwise unavailable” actionable intelligence that “saved lives.” This, said he report, was simply not true:
The Committee reviewed 20 of the most frequent and prominent examples of purported counterterrorism successes that the CIA has attributed to the use of its enhanced interrogation techniques, and found them to be wrong in fundamental respects.
In some cases, there was no relationship, the report concluded. In others, information had come from the detainee before the CIA’s interrogation or had been available from other sources. “The examples provided by the CIA included numerous factual inaccuracies,” it said. The CIA also under-reported the brutality of its methods, “marginalized and ignored numerous internal critiques, criticisms, and objections” and smeared the ICRC when it reported its concerns. It obstructed oversight and those who went beyond what was authorised were rarely disciplined.
The few detentions cases concerning the CIA or military which have come to prosecution have predominantly been of junior soldiers and, in one case, a CIA civilian contractor. When officers have been prosecuted, it is for their direct involvement in crimes. No-one has been prosecuted for command responsibility. Yet, this is one of the key ways in ensuring systemic failures do not go unchecked. (7)
It is also worth recalling that, during this period, it was US pressure which forced the United Nations to discontinue the post of UN Special Expert on Human Rights in Afghanistan: the final incumbent, the Nobel Peace Prize-nominated law professor, Cherif Bassiouni, believed he lost his job after criticising US detention facilities in Afghanistan.
Consequences of torture
Add army and CIA torture together (early media reports about US military torture here: and here: and, as John Sifton told AAN, thousands of Iraqis and Afghans have been subject to abuses in detention. “The CIA is the historical antecedent, but in terms of scale, it was only the tip of the iceberg,” he said. Bagram has been, Aimal Faizi, formerly President Karzai’s spokesperson, reminding everyone of Karzai’s contention, a “factory for producing Taleban.” This is undoubtedly the case, although torture of Afghan security detainees by Afghans, largely the NDS, but also the police and local police, has also been a driver of recruitment to the insurgency. This was less interesting for Karzai and he did virtually nothing to stamp out the practice. Now, both historical torture by US forces and ongoing torture by the Afghan NDS and police of conflict-related detainees have been included in the list of potential cases being assessed by the International Criminal Court in The Hague. On 2 December 2014, it said:
Certain of the enhanced interrogation techniques apparently approved by US senior commanders in Afghanistan in the period from February 2003 through June 2004, could, depending on the severity and duration of their use, amount to cruel treatment, torture or outrages upon personal dignity as defined under international jurisprudence. (8)
As for the Afghan government, it is also under the ICC’s scrutiny for what it said was the “common practice” of “torturing conflict-related detainees in order to obtain information or confessions.” (See AAN reporting here and here (Several potential cases against the Taleban are also being considered including the deliberate targeting of civilians (see AAN reporting here .)
Impunity for torture and other abuses continues in Afghanistan. On the Afghan government side, as the UN’s human rights chief in Afghanistan, Georgette Gagnon, has said: “Despite significant remedial steps, torture continues because there’s no real deterrent… We’re not aware of any NDS official who has been prosecuted or fired for using torture.” As to the US, as AAN said in a major report on transitional justice and reconciliation in Afghanistan:
The US military seldom publicizes the results of investigations into specific abuses, including torture, deaths in detention and indiscriminate or disproportionate use of force during ground operations. In the majority of cases, there is little indication that anyone has been held accountable for these abuses. (9)
What is particularly upsetting for someone who has reported on war crimes in Afghanistan since the late 1990s was the repeat of patterns of abuse from that decade and earlier. The 2001 intervention could have marked a new way of doing things in Afghanistan. It was largely popular, as Afghans expected the Americans to do what they promised and, among other things, uphold human rights. Instead, that intervention marked the start of the undermining of international legal norms, the start of a new wave of impunity, of deaths in detention and torture.
(1) Al-Gharisi’s name appeared – without further details – on a 2009 list of detainees released after a Freedom of Information forced the US government’s hand. The investigative reporter, Andy Worthington, “tentatively identified” him as one ‘Abou Hudeifa’, a Tunisian whom he said was a possible “ghost prisoner” and had possibly been captured in Pakistan at the end of 2002 and then reportedly rendered by the CIA to Afghanistan.
(2) The manual also said, in October 2001, that the CIA did not participate directly in torture, nor did it “encourage interrogation which involves the use of force, mental or physical torture, extremely demeaning indignities or exposure to inhumane treatment of any kind as an aid to interrogation.
(3) The Convention Against Torture (which the US has ratified) says:
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
(4) According to the 2008 Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S Custody”:
On August 1, 2002… the Department of Justice’s Office of Legal Counsel (OLC) issued two legal opinions. The opinions were issued after consultation with senior Administration attorneys, including then-White House Counsel Alberto Gonzales and then-Counsel to the Vice President David Addington. Both memos were signed by then-Assistant Attorney General for the Office of Legal Counsel Jay Bybee. One opinion, commonly known as the first Bybee memo, was addressed to Judge Gonzales and provided OLC’s opinion on standards of conduct in interrogation required under the federal torture statute. That memo concluded:
[F]or an act to constitute torture as defined in [the federal torture statute], it must inflict pain that is difficult to endure. 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. For purely mental pain or suffering to amount to torture under [the federal torture statute], it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.
In his book The Terror Presidency, Jack Goldsmith, the former Assistant Attorney General of the OLC who succeeded Mr. Bybee in that job, described the memo’s conclusions:
Violent acts aren’t necessarily torture; if you do torture, you probably have a defense; and even if you don’t have a defense, the torture law doesn’t apply if you act under the color of presidential authority.
(5) Key to the introduction of the coercive methods, including water-boarding, were two behavioural scientists who had worked on a training programme to help captured US servicemen survive interrogation by countries who did not feel bound by the Geneva Conventions (the US Air Force Survival, Evasion, Resistance and Escape (SERE) school. The two are referred to in the Senate report, as Dr Grayson Swigert and Dr Hammond Dunbar, pseudonyms for James E. Mitchell and Bruce Jessen. The report said, “Neither psychologist had any experience as an interrogator, nor did either have specialized knowledge of al-Qa’ida, a background in counterterrorism, or any relevant cultural or linguistic expertise.”
The two would go on to become CIA contractors getting contracts worth 81 million dollars, says the report. By 2005, 85% of those working on the programme were not CIA employees, but were outsourced.
(6) Full text of Common Article 3:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘ hors de combat ‘ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
(7) For a commander to be held responsible for the acts of his subordinates (according to Art. 28 of the Rome Statute of the International Criminal Court):
• The subordinates must be under the effective command and control, or the effective authority or control of the superior;
• The military commander knew or should have known that his forces were committing or about to commit such a crime;
• The military commander failed to take all necessary and reasonable measures to prevent the crimes or to punish them by submitting them to the competent authorities for investigation and prosecution;
• If the superior is a civilian, he will be responsible if he knew or consciously disregarded information which indicated that his subordinates were committing crimes.
(8) The United Nations Special Rapporteur on counter terrorism and human rights, Ben Emmerson has also called for the individuals involved in the CIA’s programme to be brought to justice, given, he said, that “the Congressional report confirms what the international community has long believed – that there was a clear policy orchestrated at a high level within the Bush administration, which allowed to commit systematic crimes and gross violations of international human rights law.”
(9) The impunity with which the CIA and US army used has continued (see here ) for more detail). Incidents for which there has been no accountability – and frequently cover up – include deaths in custody, including Habib Rahman and Dilawar, two Afghans who died under torture conducted by the US military, in separate incidents at Bagram in 2002. It was media investigations which uncovered the fact that Dilawar had not died of ‘natural causes’ as the military had claimed. At a trial in 2005, those involved in the killings received sentences ranging from three months in jail to reductions in rank and temporary reductions in pay. (See reporting here and here).
Human Rights First in 2008 counted one hundred deaths in custody (both CIA and military) in Guantanamo Bay, Afghanistan and Iraq; 8 people, it says, were tortured to death. It said the army had confirmed or suspected 34 were homicides and to these, Human Rights First had added a further eleven “in which the facts suggest death as a result of physical abuse or harsh conditions of detention.” The cause of half of the 100 deaths were still, it said, “officially undetermined or unannounced.”
More recent incidents include:
The possible involvement of US forces in the forced disappearance, murder and torture of people last year in Nerkh district of Wardak.
The indiscriminate firing in March 2007 in Jalalabad by US Marines fleeing an ambush, fired at people along a lengthy stretch of road, which 19 civilians, including a 16 year old girl and a 75 year old man. (Human Rights Watch said, “Although the unit was withdrawn from Afghanistan and an investigation opened, no one was ever charged.”).
The covering up of the killing of civilians, including pregnant women in Khataba, Gardez, in a botched night raid in 2010. The soldiers dug bullets out of the women’s bodies and claimed they had been murdered in an ‘honour killing’ (see the original US military version here and the actual story here) and tried to besmirch the reputation of the reporter who uncovered the crime. – Jerome Starkey of The Times who told AAN that, as far as he knows, no-one has been charged or disciplined over the incident.
The killing of ten election workers were killed in a US air strike in Takhar in 2010 after intelligence mixed up who held a telephone SIM card and failed to make even the most basic ‘human intelligence’ checks. The US air force targeted the wrong man, a civilian, Zabit Amanullah, killing him and nine of his companions. Despite being presented with overwhelming evidence (see AAN reporting here) which included an interview with the man the military claimed to have killed, the US command continued to insist they had killed a Taleban deputy governor and his Taleban fighters. Subsequently, when journalists asked the US military about the case, spokesmen deceived them as to the evidence on which they had based the targeting.
This article was last updated on 9 Mar 2020