The Case Against the Bush Administration for War Crimes

Enemy Combatant: Human Rights and the Narrative of Moazzam Begg

M. M. Millican

The US Army Field Manual on Interrogation FM 54-32 (FMI)
Unlawful Enemy Combatant: Unlawful enemy combatants are persons not entitled to combatant immunity, who engage in acts against the United States or its coalition partners in violation of the laws and customs of war during an armed conflict. For the purposes of the war on terrorism, the term “unlawful enemy combatant” is defined to include, but is not limited to, an individual who is or was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.

…No person in the custody or under the control of DOD, regardless of nationality or physical location, shall be subject to torture or cruel, inhuman, or degrading treatment or punishment, in accordance with and as defined in US law.

Detainee Treatment Act of 2005(Detainee 2005)

In General- No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

Cruel, Inhuman, or Degrading Treatment or Punishment Defined- In this section, the term 'cruel, inhuman, or degrading treatment or punishment' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.

Universal Declaration of Human Rights (UDHR)

Article 5- No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

International Covenant on Civil and Political Rights (ICCPR)

Article 4-
1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may takes measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.
2. No derogation from Article(s) […7…] may be made under this provision.

Article 7- No one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment…

Article 9 (not protected from derogation by Article 4)
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial…
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Article 10 (not protected from derogation by Article 4) - All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

Article 16 (not protected from derogation by Article 4)- Everyone shall have the right to recognition everywhere as a person before the law.

UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Article 1- For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

In the early hours of January 31st 2002 Moazzam Begg, a British citizen born and raised in Birmingham, UK was abducted from a home in Islamabad, Pakistan by Inter Service Intelligence (Pakistani intelligence services) and the CIA. Moazzam Begg had just recently been reunited with his family, his wife, daughter and son, from whom he had been separated since their flight from Kabul, Afghanistan when the first American cruise missiles starting falling on October 17th 2001, thereby initiating the 7-plus year war on terror conducted by NATO and the US, under the orchestration of the Bush Administration. He was in Islamabad seeking shelter after losing his home and occupation in Kabul. Mr. Begg had been living and working in Kabul in a humanitarian capacity for just under one year when the war began. He was responsible for the foundation of a girl’s school in Kabul, a city which constituted a vacuum of opportunity for young women in Afghanistan under the Taliban Government; essentially, Begg was engaged in a noble humanitarian effort. Mr. Begg was affiliated with neither the Taliban, nor Al-Qaeda. He considered himself a British citizen, with the desire to aid a country with strong links to his ancestral past, and his proclaimed religious faith. Moazzam was and is a practicing Muslim. Mr. Begg had also been involved in similar humanitarian efforts in other Muslim countries, such as Bosnia during the war in the Balkans, Chechnya in their battle against Russia, and Afghanistan. Mr. Begg had never taken up arms himself, and had never been involved with groups who fought or otherwise attacked the US, NATO or the UK. Mr. Begg had no knowledge of the planning or intent to attack the US by Al Qaeda until September 11, 2001 when he, with the rest of the world, discovered that fact.
From January 31, 2002 to January 26, 2005 Moazzam Begg was detained by ISI, the CIA, the US Military, MI5, MI6, and Scotland Yard in Islamabad, Pakistan; Kandahar, Afghanistan, Bagram Air Force Base, Afghanistan; Guantanamo Bay, Cuba; and London, England. For 22 months Mr. Begg was held in solitary confinement at Camp Echo in Guantanamo. He was the first prisoner ever to be housed in that cell block. No charges were ever brought against him by the US or the UK. What was the reason for his detainment? Someone in the bureaucracy of the United States Government had labeled Mr. Begg an ‘unlawful enemy combatant’. In Enemy Combatant: My Imprisonment at Guantanamo, Bagram, and Kandahar Begg relates the story and experience of his internment by the United States, and provides an autobiographical sketch of his life prior to his involvement with the so called “war on terror”. His narrative is an indictment of the United States’ policies of indefinite detention, extraordinary rendition, and detainee interrogation techniques, which have led to egregious human rights abuses and which have broken a plethora of international laws and treaties to which the United States is bound. These policies have also crossed constitutional boundaries by attempting to expand the power of the executive branch in the United States and abroad, at the expense of some the core values central to American life.
At the outset of this paper are listed just a few of the international human rights conventions that the US has overstepped, or nearly shattered due to US policy in the wars against Afghanistan and Iraq. Also listed are the Detainee Act of 2005 and the Army Field Manual for Interrogations, which was updated in 2006 with an Appendix detailing interrogation techniques which are prohibited and those which are allowed. The intent of this paper is to use the aforementioned conventions and jurisprudence, along with the Geneva Convention III Relative to the Treatment of the Prisoners of War, the UN Standard Minimum Rules for the Treatment of Prisoners, and the US Uniform Code of Military Justice in conjunction with Mr. Begg’s narrative, in order to “make a case” against the handling of the wars in Afghanistan and Iraq by the US and the executive branch, and to show how far the US has overstepped its international commitments via the declaration of a state of emergency founded on the attacks of September 11. The intent is not to apply the rights conventions to the narrative as if they were some form of technology, but instead to give examples of how the US has shattered the possibility for a world that it had hitherto aspired towards. Following the discussion of the narrative proper, some of the theoretical concerns pertaining to the policies of indefinite detention, extraordinary rendition and harsh interrogation will be taken into account.
I. Prisoners of War?
On August 12, 1949 countries from around the world convened in Geneva, Switzerland to complete the draft of Geneva Convention III Relative to the Treatment of Prisoners of War (GIII). This convention was a supplement to the two previous international agreements concerning the status of prisoners of war, the 1899 Hague Convention II and the 1907 Hague Convention IV. GIII covered everything from the treatment of prisoners of war during internment and their rights during the course of hostilities, to the repatriation of POWs after hostilities are ceased. GIII has been the guiding principle of war time captivity since its ratification. The US Uniform Code of Military Justice, to which POWs are bound, has been written with the provisions of GIII contained therein. The inspiration for GIII was the abuse POWs suffered during World War Two at the hands of the German army, which included forced labor, torture, arbitrary murder and the crime of Genocide, all of which took place in the internment and concentration camps in German occupied territory. The countries which ratified GIII sought a way in which to practice a more enlightened form of warfare, in which prisoners on both sides were treated humanely. The provisions of the convention are, therefore, aimed toward this end. Importantly the convention also stipulates in Article 131 that,
No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding article.

Article 130, to which 131 refers, provides a guiding thread for examining the manner in which the US has neglected its commitment to an enlightened form of warfare, by listing the myriad abuses which have been perpetrated in the name of justice in the war on terror:
Grave breaches [of the convention] shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or willfully depriving a prisoner of war of the rights of a fair and regular trial prescribed by this convention.

The Convention clearly stipulates that all prisoners of war must be treated in a humane manner in Article 13:
Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present convention…prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity… Measures of reprisal against prisoners of war are prohibited.

The Convention also has a strict ban on the use of coercive interrogation techniques in order to obtain military or civilian intelligence in Article 17, or of forcing a confession of guilt in Article 99:
17- No physical or mental torture, nor any other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.

99- No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.

Most importantly, Article 12 stipulates that, “Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them [POWs].” This clearly states that regardless of who, in particular, is responsible for the actual internment of POWs in a POW camp or detainment facility, it is ultimately the Detaining Power, or the High Contracting Party, the state, that is responsible for the treatment of POWs. In the US during war-time, this power is held by the Executive Branch, and ultimately, the Commander-in-Chief. This responsibility is not something the Bush administration has relinquished, however. The administration has just chosen to play by a different set of rules.
To be entitled to the rights provided by GIII, a prisoner must initially be regarded as a ‘lawful enemy combatant’ by the detaining power. Lawful enemy combatants are defined in Article 4 of GIII; however, for our purposes here, I suggest that we use the definition of lawful enemy combatant contained in the US Army Field Manual on Interrogation (FMI), the obverse of which is quoted at the beginning of this work. The FMI is true to the definition of lawful enemy combatants provided in GIII.
Lawful enemy combatants, who are entitled to protections under the Geneva Conventions, include members of the regular armed forces of a State Party to the conflict; militia, volunteer corps, and organized resistance movements belonging to a State Party to the conflict, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the laws of war; and members of regular armed forces who profess allegiance to a government or an authority not recognized by the detaining power.

The most important part of this definition, and a part on which countless unlawful enemy combatant classifications have been made, is the reference to “a fixed distinctive sign recognizable at a distance.” This requirement thereby provides the justification for labeling anyone dressed in civilian clothes while taking up arms against a hostile force as an unlawful enemy combatant. In Afghanistan, where many of the fighters in Al Qaeda, the Taliban and other groups hostile to the NATO force, have nothing to wear other than civilian clothing, or traditional Afghan dress, this distinction becomes a ludicrous means to justifying the classification of an enemy combatant as unlawful. However, this is not the only ludicrous means of justifying the classification of unlawful enemy combatant to members of Al Qaeda and the Taliban, which thereby denies these people the rights provided by GIII. In its definition of ‘unlawful enemy combatants’ FMI states:
For the purposes of the war on terrorism, the term “unlawful enemy combatant” is defined to include, but is not limited to, an individual who is or was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.

Therefore, even if an Al Qaeda or Taliban member were to clearly follow all of the laws of war as they are laid out in the Geneva Conventions (necessary for the classification as a lawful enemy combatant by GIII), and the detaining power came to the conclusion that the person in detention was directly or materially involved with Al Qaeda or the Taliban, etc., then they would thereby be classified as unlawful and therefore lose all of the privileges and rights which GIII provides, even though they had followed all the necessary procedures for legal warfare. FMI thereby contradicts itself through its two definitions of lawful and unlawful enemy combatants.
This Contradiction inherent to FMI contravenes Article 5 of GIII which states:
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4 [which defines who counts as a lawful or unlawful enemy combatant], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

If the aforementioned “competent tribunal” is forced to decide between GIII Article IV and FMI, then the tribunal will come to an impasse. Thankfully, via Article 5, if the tribunal comes to an impasse, it is thereby unable to determine the status of a detainee, and therefore, the Detaining Power must provide the detainee the protections supplied by GIII, as stipulated in Article 5. Unfortunately, the US has not created a competent tribunal for this function during the wars in Iraq and Afghanistan, and has instead relied on similar definitions as those enumerated in FMI. Therefore, if the military, the CIA, or any other American agency suspects that a detainee has had direct or material contact with “Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners,” then the detainee is thereby classified as unlawful, and is therefore denied the protection of GIII and that of POW status. Thus we arrive at the murky legal realm which Moazzam Begg occupied during his interment by the US.
First of all, Moazzam Begg was never caught in the midst of a belligerent act against Coalition forces, therefore his classification as combatant is questionable. Moazzam was also never brought before a tribunal whose function was to decide whether or not he was protected as a prisoner of war, or whether he was or should be classified as an illegal enemy combatant. However, since he was never brought before a tribunal to decide his status as a detainee (legal or illegal), the US is therefore in direct contravention of GIII; since it failed to follow the necessary steps for classifying the status of military detainees provided by the convention, and failed to provide Mr. Begg the protections of the convention until it had done so. The treatment of Mr. Begg from the moment he was “detained” resembled nothing like the treatment demanded by GIII.

II. Moazzam Begg
Moazzam Begg was kidnapped by a security agency which was not officially at war (ISI), under the direction of an agency that officially was (CIA). He was then held at a facility in Pakistan for a short period of time under the supervision of ISI; however, there he learned that his real captor was the US. In a conversation with one of the Pakistani guards he was told exactly that:
The first thing he said to me was, ‘Look, son, I don’t know what you’ve done or why the Americans want you so desperately, but you can see that I’ve put you in a room here and not a cell. You’ve done nothing wrong in Pakistan that I know about and I feel bad about having come to your house in the middle of the night…The only reason we‘re doing this is because of the Americans…If we don’t, we’ll be hit so hard by the Americans, by President Bush’s Army. You know that statement of their, “You’re either with us or against us”? Well, we’ve had to take a position.’
The position the ISI had chosen to take was one which was in direct contravention of GIII and international law. The treatment of detainees Begg witnessed during his time in the Pakistani detention center appeared to relay that both the US and Pakistan were in direct violation or Article 3 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which states that, “No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” The US had interned a British citizen in Pakistan, (where torture was common practice), and Pakistan later agreed to hand over the same citizen to the USA, with full knowledge that some of the detainees in US custody would then be sent to countries where harsh interrogation techniques amounting to torture would occur. Both the USA and Pakistan are signatories to the UN Convention preventing torture. During his time in the Pakistani detention facility, Begg witnessed first-hand the effects of torture on a fellow cell-mate, which he described in detail:
…I learned first hand something about what Pakistani security officials could really do, and it jolted me out of some of my naivety. At night, I used to hear banging…The banging was not workmen; it was torturers. It went on every single night. They had used a long, thick rubber pipe to whack him, he told me. He had bruises and lacerations all over his back. They also put him on sleep deprivation, and guards came in and out to keep him awake. They also said he could not sit. He had to stand up the entire time, and they made sure he did. (15)

The treatment of this man constitutes a crime under the UN Torture convention. Moazzam was never physically harmed in this manner during his time in Pakistan; however, he was threatened by US officials with extradition to a country where such treatment was likely.
Mr. Begg’s time in the Pakistani facility came to end when the ISI finally transferred custody of Moazzam to the US Military for transport to Khandahar, Afghanistan. From that point on Begg was officially a detainee in the custody of the US military, and under GIII the US was required to determine his status as a POW or as an unlawful enemy combatant by a “competent tribunal”. It was also required that he be provided with all of the rights guaranteed by GIII until such a time that his status as a military detainee be determined. However, the treatment to which Mr. Begg was submitted was not that which was required by GIII.
Article 20 of GIII provides for the protection of detainees during transportation. It states that the “evacuation of prisoners of war shall always be effected humanely and in conditions similar to those for the forces of the Detaining Power in their change of station.” However, Begg was blindfolded and chained in an uncomfortable position for the duration of his ride to Khandahar; conditions which are not those required by Article 20. Upon his arrival in Khandahar he was processed as a criminal convicted of a crime and sentenced to time in prison; however, no charge had been laid against him, and no sentence announced. Begg was in a group of detainees, each of whom was processed in a similar manner:
The most humiliating thing was witnessing the abuse of others, and knowing how utterly dishonored they felt. These were men who would never have appeared naked in front of anyone, except maybe their wives; who had never removed their facial hair, except to clip their moustache or beard; who never used vulgarity, nor were likely to have had it used against them. I felt that everything I held sacred was being violated, and they must have felt the same. (112)

The degradation that these men felt, and the dishonor which was laid upon them by US Military personnel was another affront to human dignity, which is not only banned by the Geneva Conventions, The UDHR, the International Covenant on Civil and Political Rights, and the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, but also by the Uniform Code of Military Justice :
When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.

and by the FMI:

All captured or detained personnel, regardless of status, shall be treated humanely, and in accordance with the Detainee Treatment Act of 2005 and DOD Directive 2310.1E, “Department of Defense Detainee Program”, and no person in the custody or under the control of DOD, regardless of nationality or physical location, shall be subject to torture or cruel, inhuman, or degrading treatment or punishment, in accordance with and as defined in US law.

The humiliation to which these men were exposed was degrading and inhuman. The immoral character of the actions of these soldiers is enhanced by the fact that some or all of the detainees had not been, and never would be charged with a crime, while the treatment they received could be construed as criminal under Military, International and Constitutional Law.

However, the human rights abuses and the contravention of GIII did not end with this humiliating treatment. After Begg was processed at the Khandahar facility he was given a number and an EPOW, or Enemy Prisoner or War card; a provision which GIII stipulates must be given to all POWs. Here was Moazzam Begg, with a card which classified him as a POW, and yet none of the rights to which the US was bound to provide for POWs under GIII had been granted; a hypocrisy that did not get past the intelligent Briton. The facility in which they were housed in Khandahar was also in direct violation of GIII Article 25: “Prisoners of war shall be quartered under conditions as favorable as those for the forces of the Detaining Power who are billeted in the same area.” At the Khandahar facility the detainees were kept in a “barn [that] was floodlit from both ends- day and night” (115). The toilet consisted of a bucket, to be emptied each day, and the meals were Army rations, with some of the items removed: accommodations that an American soldier would balk at. Article 25 was ignored at every American detention facility in which Begg was held, from Afghanistan to Guantanamo.
At the American detention center in Khandahar, Begg was able to meet with representatives of the International Committee of the Red Cross (ICRC), which viewed the status of Begg as a prisoner or war: “the ICRC viewed our status as POWs, as far as rights were concerned, but…the Americans had labeled us ‘illegal combatants’, with no rights at all. “(117). Little did Begg realize at that time, but the conflicting views of his position under US military custody would help ignite moral outrage in the UK and the US, which would eventually provide for his release; this conflict was only beginning in 2002. Begg’s conviction that he was without rights was influenced by the fact that no charges were ever made against him during his time in Afghanistan and that he was still captive. “There was never an accusation of being involved in anything, or having prior knowledge of anything.” (130)
During his time in Afghanistan Begg first heard about the process of extraordinary rendition from a man with whom he was interned. This man told Begg the story of how, “he and his stepmother had both been kidnapped by the Indonesian security services, and he had been sent to Egypt, where he was held in a tiny room and interrogated brutally for three moths, before being handed over to the Americans.” (142) This man’s fate was similar to Begg’s in Pakistan; however, the interrogation techniques used against this man were much more harsh, and probably constitute torture under the UN ban on the use of torture. As noted above, the extradition of this man to Egypt from Indonesia is a crime under international law, perpetrated by Indonesia, Egypt and the US. After Begg’s transfer to Bagram Air Force Base, Moazzam too, got a taste of some of the cruel and inhumane interrogation techniques, which the US military has since denied constitute torture.
Begg describes in detail one of his experiences of torture at the hands of the United States in a striking passage from his time at Bagram Air Force Base:
After that first heavy interrogation they took me into another room and left me there. Guards tied my hands behind my back, hog-tied me so that my hands were shackled to my legs, which were also shackled. Then they put a hood over my head. It was stuffy and hard to breathe, and I was on the verge of asthmatic panic. The perpetual darkness was frightening. A barrage of kicks to my head and back followed. Lying on the ground with my back arched, my wrists and ankles chafing against the metal chains, was excruciating… I lost track of day or night, because not only was I usually in the hood, but even when they took it off for me to eat the window was boarded up and although there were little gaps, I couldn’t tell if it was natural light… I was in isolation for about a month or so. Once they kept me from sleeping for about two days and nights. A guard kept coming in, and if I nodded off he woke me. By the end of that I was completely drained and disoriented. I never knew what was going to happen. (157-8)

This harsh interrogation/ torture constitutes an egregious abuse of human rights under numerous conventions and treaties to which the USA is a signatory. Below I will demonstrate that the systematic abuse of detainees in the war on terror was and has been sanctioned by legal opinions regarding the status of certain interrogation techniques at the executive level of the US government. These opinions caused a chain reaction within different agencies and the military, which allowed for abuse to go unchecked for years, while military personnel were unwittingly participating in criminal acts. Begg was exposed to this blatant disregard for the rule of law first hand.
They had autonomy to do whatever they wanted; they could extract information from people in any way they liked. That was the way with all the law-enforcement and intelligence agencies Id experienced in Kandahar and Bagram. The CIA’s unscrupulous methods rubbed off onto the others. (197)

The involvement of the CIA in the interrogation of detainees, notorious for the use of torture through the last half of the 20th century, opened the flood gates for other government personnel to copy or retain CIA interrogation techniques, and to incorporate them into day to day interrogation procedure. These techniques would eventually sneak their way into the world’s collective imagination with the publication of the detainee photos from Abu Ghraib.