Former Secretary of State Gen. Colin Powell was informed by the Red Cross of its concerns about torture in 2004. (Photo: Getty Images)
The International Committee of the Red Cross began an investigation of US war crimes in Iraq from the first days of the invasion, interviewing Iraqi captives from March to November 2003.
On January 15, 2004, Red Cross President Jakob Kellenberger expressed his concern to Secretary of State Colin Powell about the Bush administration's attitude regarding international law.
An ICRC January 16, 2004, news release, which summarized Kellenberger's meeting with Powell, said, "the ICRC is increasingly concerned about the fate of an unknown number of people captured as part of the so-called global war on terror and held in undisclosed locations."
Kellenberger, according to minutes of the meeting, "raised ICRC concerns over detention issues in Guantanamo Bay, Afghanistan and Iraq.
"Mr. Kellenberger echoed previous official requests from the ICRC for information on these detainees and for eventual access to them, as an important humanitarian priority and as a logical continuation of the organization's current detention work in Guantanamo and Afghanistan."
Kellenberger's meeting with Powell also centered on an op-ed piece by then-State Department legal adviser William Taft IV in the Financial Times four days earlier.
In that op-ed, Taft wrote that there was no law that required the US to afford due process to foreigners captured in the "war on terror."
"American treatment of detainees held at Guantanamo Bay in Cuba is fully consistent with international law and with centuries-old norms for treating individuals captured in wartime," Taft wrote. "We are engaged in a war."
It's unclear exactly what Kellenberger cited in Taft's column, because the minutes of the meeting were heavily redacted. But the conversation segued into Powell asking Kellenberger "where, in addition to Afghanistan, did ICRC have problems with notification and access to detainees?"
Powell is quoted as saying, "we are confident of our legal position, (referring to legal adviser Taft's op-ed), but we also know the world is watching us."
Notes of the meeting state that Powell "indicated that he would have to talk to his colleagues [including Taft] on ICRC's issue of access to detainees in Afghanistan and elsewhere."
The next month, February 2004, the ICRC gave Bush administration officials a confidential report, which found that US occupation forces in Iraq often arrested Iraqis without good reason and subjected them to abuse and humiliation that sometimes was "tantamount to torture" in violation of the Geneva Conventions.
Some excessive violence, including the use of live ammunition against detainees, had led to seven deaths, the ICRC report said.
"According to the allegations collected by the ICRC, ill-treatment during interrogation was not systematic, except with regard to persons arrested in connection with suspected security offenses or deemed to have an 'intelligence' value," the report said.
"In these cases, persons deprived of their liberty under supervision of the Military Intelligence were at high risk of being subjected to a variety of harsh treatments ranging from insults, threats and humiliations to both physical and psychological coercion, which in some cases was tantamount to torture, in order to force cooperation with their interrogators."
One recipient of the ICRC confidential report was Lt. Gen. Ricardo Sanchez, senior US military officer in Iraq, an ICRC official said later. Sanchez had instituted a "dozen interrogation methods beyond" the Army's standard interrogation techniques that comply with the Geneva Conventions, according to a 2004 report by a panel headed by former Defense Secretary James Schlesinger.
Sanchez said he based his decision on "the President's Memorandum" justifying "additional, tougher measures" against detainees, the Schlesigner report said. The memorandum Sanchez referred to was an order that President George W. Bush signed on February 7, 2002, excluding "war on terror" suspects from Geneva Conventions protections.
As the ICRC gathered more information about the Bush administration's detention policies, it began to make some of its concerns public. On March 1, 2004, for instance, Gabor Rona, the ICRC's legal adviser, wrote an op-ed also in the Financial Times that took issue with the Bush administration's posture on the Geneva Conventions.
"The US is proceeding with plans to subject prisoners to military commission trials, citing the Geneva Convention provision that prisoners of war be tried by military courts. How can it do so while maintaining that no detainees are entitled to PoW status?" Rona wrote.
"That aside, the US risks throwing into the military-trial pot people whose alleged crimes have no connection with armed conflict, as understood in international humanitarian law. Such people can and should face trial, but not by military courts," Rona added.
Taft responded with an angry letter to Kellenberger on March 16, 2004.
"Your staff states categorically that detainees are entitled to an individualized procedure to challenge the basis of their detention," Taft wrote. "No citation or support is provided for this assertion. There is, in fact, no such entitlement in the 1949 Geneva Conventions.
"However, the implication in the article is that the Geneva Conventions do provide such entitlement. This again has the unfortunate effect of misleading the public."
The Abu Ghraib Scandal
The behind-the-scenes dispute over detainee treatment went public in another way in April 2004, when photos were leaked showing US prison guards at Abu Ghraib forcing naked Iraqi detainees into fake sexual positions, intimidating detainees with attack dogs, committing other abuses and posing with the corpse of an Iraqi who had died in custody.
After a public scandal erupted, Bush blamed the Abu Ghraib abuses on low-level prison guards.
"I shared a deep disgust that those prisoners were treated the way they were treated," Bush said. "Their treatment does not reflect the nature of the American people."
However, Bush's finger-pointing at a few "bad apples" was soon contradicted when the contents of the February 2004 ICRC report were leaked to The Wall Street Journal in May 2004. The ICRC findings made clear that the Abu Ghraib abuses were not an isolated case.
After The Wall Street Journal published excerpts of the ICRC report in May 2004, ICRC Director of Operations Pierre KrÃ¤henbÃ¼hl held an unusual press conference to respond to reporters' queries on the findings.
"Various aspects of its contents had been discussed with the Coalition authorities at different times and at different levels during 2003 and included in documents submitted to them; I won't go into the details, but ... they don't concern only issues of water and food, but also clearly of treatment," KrÃ¤henbÃ¼hl said.
Eleven enlisted soldiers, who were guards at Abu Ghraib, were convicted in courts-martial. Cpl. Charles Graner Jr. received the harshest sentence - 10 years in prison - while Lynndie England, a 22-year-old single mother who was photographed holding an Iraqi on a leash and pointing at a detainee's penis, was sentenced to three years in prison.
Superior officers at Abu Ghraib were cleared of wrongdoing or received mild reprimands.
But the February 2004 ICRC report on Iraq took on added meaning with the disclosure of another ICRC report, dated February 14, 2007. Based on interviews that the ICRC finally arranged with 14 "high-value" detainees held at secret CIA prisons, the report concluded those prisoners had been subjected to similar humiliating and abusive treatment, including forced nudity and stress positions, as well as the drowning sensation of waterboarding.
The ICRC concluded that the treatment "constituted torture," a finding that has legal weight because the ICRC is responsible for ensuring compliance with the Geneva Conventions and supervising the treatment of prisoners of war.
Taken together, the two reports suggest that the Bush administration adopted a policy of torture against "high-value" detainees captured in 2002 and that the policy spread to Iraq in 2003 when US forces were grappling with a rising Iraqi insurgency against the American occupation.
A recently declassified Senate Armed Services Committee report reached a similar conclusion, tracing the US abuse of detainees at Guantanamo Bay and later Abu Ghraib to Bush's February 7, 2002, action memorandum that excluded "war on terror" suspects from Geneva Conventions protections.
The report said Bush's memo opened the door to "considering aggressive techniques," which were then developed with the complicity of then-Defense Secretary Rumsfeld, Bush's National Security Adviser Condoleezza Rice and other senior officials.
The public record - as it now exists - also makes clear that the Bush administration had a selective view of international law. When it worked to American advantage - as when Iraqis videotaped captured US soldiers in March 2003 - Bush and his aides saw the rules as binding, but not when the laws of war constrained their own behavior.
After Iraqi troops captured several US soldiers and let them be interviewed on Iraqi TV, senior Bush administration officials expressed outrage over this violation of the Geneva Conventions.
"If there is somebody captured," Bush told reporters on March 23, 2003, "I expect those people to be treated humanely. If not, the people who mistreat the prisoners will be treated as war criminals."
No one in the Bush administration, however, acknowledged the extent of US violations of rules governing humane treatment of enemy combatants. Nor did the US news media offer any context, ignoring the US handling of Afghan war captives at Guantanamo Bay in 2002 and the fact that the US military also had paraded captured Iraqi soldiers before cameras.
During those heady days of "embedded" war correspondents reporting excitedly about Bush's "shock and awe" invasion, what Americans got to see and hear was how the Iraqi violation of the Geneva Conventions - the videotaped interviews - demonstrated the barbarity of the enemy and justified their punishment as war criminals.
Bush's fury over the POW interviews echoed across Washington. "It is a blatant violation of the Geneva Conventions to humiliate and abuse prisoners of war or to harm them in any way," declared Pentagon spokeswoman Victoria Clarke on March 24.
That same day, Deputy Defense Secretary Paul Wolfowitz told the BBC, "The Geneva Convention is very clear on the rules for treating prisoners. They're not supposed to be tortured or abused, they're not supposed to be intimidated, they're not supposed to be made public displays of humiliation or insult, and we're going to be in a position to hold those Iraqi officials who are mistreating our prisoners accountable, and they've got to stop."
On March 25, Defense Secretary Donald Rumsfeld added, "In recent days, the world has witnessed further evidence of their [Iraqi] brutality and their disregard for the laws of war. Their treatment of coalition POWs is a violation of the Geneva Conventions."
In other words, international law applied to the other guy, but not to Bush. He surely didn't mean to implicate himself when he declared "the people who mistreat the prisoners will be treated as war criminals."