New York – Secretary of Defense Donald Rumsfeld could be criminally liable for the torture of a detainee at Guantanamo Bay in late 2002 and early 2003, Human Rights Watch said today.

A December 20, 2005 Army Inspector General’s report, obtained by Salon.com this week, contains a sworn statement by Lt. Gen. Randall M. Schmidt that implicates Secretary Rumsfeld in the abuse of detainee Mohammad al-Qahtani. Based on an investigation that he carried out in early 2005, which included two interviews with Rumsfeld, Gen. Schmidt describes the defense secretary as being “personally involved” in al-Qahtani’s interrogation. 
 
Human Rights Watch urges the United States to name a special prosecutor to investigate the culpability of Rumsfeld and others in the al-Qahtani case. 
 
“The question at this point is not whether Secretary Rumsfeld should resign, it’s whether he should be indicted,” said Joanne Mariner, Terrorism and Counterterrorism Program director at Human Rights Watch. “General Schmidt’s sworn statement suggests that Rumsfeld may have been perfectly aware of the abuses inflicted on al-Qahtani.” 
 
Gen. Schmidt said that Secretary Rumsfeld was “talking weekly” with Gen. Miller about the al-Qahtani interrogation, and that the secretary of defense was “personally involved in the interrogation of [this] one person.” Schmidt’s statement indicates that Rumsfeld maintained a high level of knowledge of and supervision over al-Qahtani’s treatment. Although Schmidt said that he believed that Rumsfeld did not specifically order the more abusive methods used in the al-Qahtani interrogation, he concluded that Rumsfeld’s policies facilitated the abuse. 
 
The Pentagon has acknowledged that al-Qahtani’s mistreatment was not unplanned. “Al-Kahtani’s interrogation was guided by a very detailed plan, conducted by trained professionals in a controlled environment, and with active supervision and oversight,” wrote Jeffrey Gordon, a Pentagon spokesman, in an email to Salon.com. “Nothing was done randomly.” 
 
Human Rights Watch has obtained an unredacted copy of al-Qahtani’s interrogation log, and believes that the techniques used during al-Qahtani’s interrogation were so abusive that they amounted to torture. 
 
The interrogation log reveals that al-Qahtani was subjected to a regime of physical and mental mistreatment from mid-November 2002 to early January 2003. For six weeks, he was intentionally deprived of sleep, forced into painful physical positions (known as stress positions) and subjected to forced exercises, forced standing, and sexual and other physical humiliation. 
 
After refusing water, al-Qahtani was forced to accept an intravenous drip for hydration and, on several occasions, was refused trips to a latrine, so that he urinated on himself at least twice. He was also threatened with forced enemas, and on one occasion was forced to undergo an enema. 
 
“A six-week regime of sleep deprivation, forced exercises, stress positions, white noise, and sexual humiliation amounts to acts that were specifically intended to cause severe physical pain and suffering and severe mental pain and suffering,” said Mariner. “That’s the legal definition of torture.” 
 
In 2005, the Judge Advocates General of the U.S. Army, Navy and Marine Corps told the U.S. Senate Committee on Armed Services that the techniques used on al-Qahtani violated the U.S. Army Field Manual on Intelligence Interrogation, and would have been illegal if perpetrated by another country on captured U.S. personnel. The U.S. State Department also regularly condemns as torture the same techniques in its annual Country Report on Human Rights, citing their use in countries such as North Korea and Iran. 
 
Human Rights Watch believes that Secretary Rumsfeld, Gen. Geoffrey Miller – a senior commander at Guantanamo in 2002 and early 2003 – and the interrogators who took part in the interrogations could be criminally liable under federal or military criminal law for torture, assaults and sexual abuse. (The Inspector General’s report is focused on Gen. Miller’s conduct.)
 
 
Rumsfeld could be liable under the doctrine of “command responsibility” – the legal principle that holds a superior responsible for crimes committed by his subordinates when he knew or should have known that they were being committed, but fails to take reasonable measures to stop them. 
 
A special prosecutor is needed because Attorney General Alberto Gonzales was himself deeply involved in the policies leading to the abuse of detainees, a conflict of interest that is likely to prevent a proper investigation from being carried out. U.S. Department of Justice regulations call for the appointment of an outside counsel when such a conflict exists and the public interest warrants a prosecutor without links to the government. 
 
“A special prosecutor should look carefully at what abuses Rumsfeld either knew of or condoned,” said Mariner. 
 
On December 2, 2002, as the Pentagon has previously acknowledged, Rumsfeld approved 16 interrogation techniques for al-Qahtani and other detainees, including the use of forced nudity, stress positions and “using detainees’ individual phobias (such as fear of dogs).” 
 
Al-Qahtani, who is alleged to have been a “20th hijacker,” was denied entry to the United States in August 2001. Pentagon spokesman Gordon told Salon.com on Thursday that al-Qahtani was an “al-Qaida terrorist” who provided a “treasure trove” of information during his interrogation. (The information al-Qahtani is said to have provided, however, is still classified.) 
 
Human Rights Watch expressed concern that the Pentagon has never released the full version of Gen. Schmidt’s report on abuses at Guantanamo. The report’s recommendations were rejected by the head of U.S. Southern Command, Gen. Bantz J. Craddock, who said in July 2005 that the al-Qahtani interrogation did not violate military law or policy.

 

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