How common is US abuse of detainees?
The military has not been subject to such intense public scrutiny before.
Any analysis of America's record on detainee abuse in the war on terror begins with a single set of numbers: Amid the handling of an estimated 70,000 detainees, military officials say they have found fewer than 600 credible allegations of abuse.
It is a rate of 1 investigation for more than 100 detainees, and for the Pentagon, it is a point of pride - apparent proof that abuses are the work of a misguided few.
Outside the Pentagon, however, those numbers - and the positive assessment - are open to doubt. As the world, and increasingly the country's lawmakers, look at how America has treated those captured in the war against terror, many have come to the conclusion that, as one expert puts it: "The one thing we know is that we don't know everything."
Clearly, this is the first time that the health and status of detainees have been such a pressing issue for the American public, and the military justice system is straining to meet the desires for a more open process. Taken together with President Bush's decision to exempt certain prisoners from the protections of the Geneva Conventions, it has brought the fog of war to the cellblock, as activists and attorneys alike wonder whether the military is faithfully investigating abuse and meting out appropriate punishments.
"The ability of anyone to get a handle on it is becoming impossible," says Eugene Fidell, president of the National Institute of Military Justice here, which studies trends in military law. "The net effect is that public opinion is lost in a fog, and I don't think that's healthy."
From the military's perspective, it has done its job as best it can. Of the 600 investigations conducted by military officials, about 450 have been closed, yielding 280 punishments, which ranged from imprisonment to admonishment.
"This is the most investigated Army in history," says Maj. Wayne Marotto, an Army spokesman. "We've taken every allegation of detainee abuse seriously."
Moreover, the Pentagon has taken the unprecedented step of impaneling a dozen reviews of detainee abuse. The latest, chaired by Vice Adm. Albert Church, found "no policy that condoned or authorized either abuse or torture."
None of the reviews found evidence that torture and abuse were part of any servicewide policy. Yet critics note that each of the reviews was initiated by the Pentagon, and they note that certain questionable interrogation techniques migrated from one detention facility to another. The review by former Defense Secretary James Schlesinger concluded that the scandal went beyond a few rogue soldiers: "There is both institutional and personal responsibility at higher levels."
The question, say some analysts, is whether senior leaders knowingly neglected to provide clear standards as to what were acceptable interrogation tactics. When the administration elected not to afford Geneva protections to detainees taken in Afghanistan, "there was a lot of uncertainty," says William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University in New York.
The result, many say, is the scandal that now encompasses Iraq, Afghanistan, and Guantánamo Bay. "The main reason that the abuse was so widespread was the lack of clarity, and the lack of desire to be clear," says Jumana Musa of Amnesty International.
An amendment by Sen. John McCain (R) of Arizona seeks to provide that clarity. In recent years, the Army has revised its field manual to eliminate much of the ambiguity over which techniques are permissible during interrogations. But those rules apply only to the Army. Senator McCain wishes to apply the Army's code to any detainee held in a Defense Department-run facility - as well as intelligence agencies such as the CIA.
That is a significant point, given that the CIA's activities remain an almost complete mystery. "One gap in the investigations to date is what was the role of 'other government agencies,' primarily the CIA, in detainee abuse," said Sen. Carl Levin (D) of Michigan at a May hearing.
The amendment, which was attached to the 2006 Defense appropriations bill, passed the Senate 90 to 9, and it appears the motion would enjoy overwhelming support in the House, making it likely that Congress could override a presidential veto. The White House, concerned about Congress diluting its authority to run the war as it sees fit, is seeking a compromise with McCain.
Interestingly, though, Americans in general appear conflicted about the use of torture against suspected terrorists. Some 61 percent of respondents said that torture could be justified at least on rare occasions, according to a new AP-Ipsos poll.
Despite the public uncertainty over the use of torture, the scandal surrounding it has clearly come at a cost for the American soldier. The military's investigations have pointed to low-level troops, leading Senator Levin to suggest that "only an independent review can fully and objectively assess both the institutional and personal accountability for the abuse of detainees."
In addition, the allegations have tarnished the image of the troops. The Pentagon, citing its data, says it's an unfair reputation. Yet with the constant emergence of allegations of torture and degrading treatment, the Pentagon has been hard pressed to win over public opinion with its statistics.
The problems partly stem from the military-justice system itself, say some analysts. In a country that has become accustomed to openness in its legal proceedings, the military's modes of justice tend toward the unfamiliar: "It is a system of military justice that Lord [Horatio] Nelson would largely recognize," says Mr. Fidell, referring to the late 18th-century British naval legend.
Commanders in the field have an enormous amount of discretion in disciplinary actions, and their decisions are "largely unreviewable," Fidell says. Moreover, the various services have different rules and compile their data separately, meaning that a marine and a soldier standing side by side would be subject to two different legal authorities.
It is not a system built to be transparent, partly because it has never needed to be. But freedom-of-information legislation in the 1970s has changed the public's expectations.