Sexual Torture, Rape, and Gender-Based Violence in the Senate Torture Report

The ramifications and significance of the Senate Torture Report continue to spin out in various fora. While I have noted that the use of certain torture methods used at Guantanamo meet the legal definition of rape under contemporary international law standards, there has been little sustained attention to the depth and breadth of sexual harms experienced by detainees at the detention facility. This lack of attention tracks a more profound gap, whereby sexual harms to men are routinely ignored, and the kinds of vulnerabilities men experience are typecast in generic ways, that fail to grasp the scale and specificity of harms men experience. Here, I take a preliminary step in cataloging the range of sexual harms identified in the Senate Report, emphasizing the gendered and sexual dimensions of the violence experienced by detainees. For the purposes of this analysis I have focused on the the use of the following terms: “sex,” “genital,” “nudity,” “naked,” “rape,” “diaper,” “sodomy,” “HIV,” “rectal,” “rough takedown,” and “female.” Tracking these terms throughout the document allows us to have a more nuanced grasp of the scale and forms of sexual harms experienced by male detainees, and to better understand the integration of sexual harms into the totality of harm experienced by these men.

 THREATS TO SEXUALLY HARM DETAINEES’ FAMILIES

Sexual harm has both direct and indirect dimensions.  A small number of decisions from regional and international courts have considered how threats to sexually harm a detained person’s family while that person is being interrogated may constitute torture, inhuman, or degrading treatment under international law. In Akkoc v. Turkey (2000), the European Court of Human Rights wrote that:

Over the period of her detention, the applicant was exposed to the following treatment. [Lists extensive physical & sexual abuses] … She was told that her children had been brought into detention and were being tortured.

…

The Court accepts the findings of the Commission concerning the ill-treatment inflicted upon the applicant, which involved electric shocks, hot-and-cold water treatment, and blows to the head (see paragraphs 24–25 above). It notes the elements of psychological pressure suffered by the applicant, in particular the threats made concerning the ill-treatment of her children, which caused the applicant intense fear and apprehension. This treatment left the applicant with long-term symptoms of anxiety and insecurity, diagnosed as post-traumatic stress disorder and requiring treatment by medication.

Having regard to the severity of the ill-treatment suffered by the applicant and the surrounding circumstances, the Court finds that she was a victim of very serious and cruel suffering that may be characterised as torture … .

From close examination of the Senate Torture Report we find out that: 

• “CIA officers … threatened at least three detainees with harm to their families—to include threats to harm the children of a detainee, threats to sexually abuse the mother of a detainee, and a threat to ‘cut [a detainee’s] mother’s throat.’”
• Mentioned in relation to a specific case: “[T]he CIA Office of Inspector General conducted a review of [various] interrogation incidents, and issued a report … in the fall of 2003. … The Office of Inspector General later described additional allegations of unauthorized techniques used against al-Nashiri by [REDACTED] [CIA OFFICER 2] and other interrogators, including … implying that his mother would be brought before him and sexually abused … .”

The effect of such threats is manifold.  They heighten the vulnerability of the detainee, and are precisely designed to undermine the masculinity of the man to whom the sexual threat is issued.  Threatened sexual harm to family members leverages cultural and social identity in a way that affirms the powerlessness of the detainee, precisely to undermine manhood, honor and the integrity of the sexual self.

 FORCED NUDITY

Forced nudity is now recognised by regional and international criminal courts as reaching the threshold for torture, inhuman, and degrading treatment and as a stand-alone sexual harm. In the case of Aydin v. Turkey (1997), the European Court of Human Rights found that:

The applicant was also subjected to a series of particularly terrifying and humiliating experiences while in custody at the hands of the security forces at Derik gendarmerie headquarters having regard to her sex and youth and the circumstances under which she was held. She was detained over a period of three days during which she must have been bewildered and disoriented by being kept blindfolded, and in a constant state of physical pain and mental anguish brought on by the beatings administered to her during questioning and by the apprehension of what would happen to her next. She was also paraded naked in humiliating circumstances thus adding to her overall sense of vulnerability and on one occasion she was pummelled with high-pressure water while being spun around in a tyre.

…

Against this background the Court is satisfied that the accumulation of acts of physical and mental violence inflicted on the applicant and the especially cruel act of rape to which she was subjected amounted to torture in breach of Article 3 of the Convention. Indeed the Court would have reached this conclusion on either of these grounds taken separately.

Similarly, the Inter-American Court in Miguel Castro-Castro Prison v. Peru, Merits, Reparations and Costs, (2006) forcefully articulated the profound nature of the sexual harm that resulted from enforced nudity:

Having forced the females inmates to remain nude in the hospital, watched over by armed men, in the precarious health conditions in which they were, constituted sexual violence in the aforementioned terms, which caused them constant fear of the possibility that said violence be taken even further by the police officers, all of which caused them serious psychological and moral suffering, which is added to the physical suffering they were already undergoing due to their injuries. Said acts of sexual violence directly endangered the dignity of those women. The State is responsible for the violation of the right to humane treatment enshrined in Article 5(2) of the American Convention .. (para 308)

The Senate Report confirms that non-consentual nudity was a routine part of detainee’s experiences.

• “Beginning with the CIA’s first detainee, Abu Zubaydah, and continuing with numerous others, the CIA applied its enhanced interrogation techniques with significant repetition for days or weeks at a time. Interrogation techniques such as slaps and ‘wallings’ (slamming detainees against a wall) were used in combination, frequently concurrent with sleep deprivation and nudity.” (Findings and Conclusions, Page 3 of 19; Abu Zubaydah’s nudity is also mentioned in a number of other locations in the Executive Summary, including a note that he was “typically kept naked” on Page 29). Abu Zubaydah was (for part or all of his time?) at CIA DETENTION SITE GREEN (Executive Summary Page 463 of 499
•  “Prior to mid-2004, the CIA routinely subjected detainees to nudity and dietary manipulation. . . . None of these techniques had been approved by the Department of Justice.” (Findings and Conclusions, Page 12 of 19, also mentioned in Executive Summary starting at Page 105)
•  Forced nudity was used at DETENTION SITE COBALT: “[t]he CIA maintained such poor records of its detainees in Country [REDACTED] during this period that the CIA remains unable to determine the number and identity of the individuals it detained. The full details of the CIA interrogations there remain largely unknown, as DETENTION SITE COBALT was later found to have not reported multiple uses of [lists a number of interrogation techniques, including “nudity”].” (Executive Summary, Page 51 of 499)
•  Similar mention of use of certain EITs, including nudity, going unreported at DETENTION SITE COBALT. (Executive Summary Page 56 of 499)
• Reports that detainee KSM, DETENTION SITE COBALT, was subjected to nudity along with other EITs. (Executive Summary, Page 82–84 of 499)
•  Nudity was also used at DETENTION SITE BLUE; the Committee found that an interrogation plan was developed for a detainee called bin al-Shibh that later “became a template, and subsequent requests to CIA Headquarters to use the CIA’s enhanced interrogation techniques against other detainees relied upon near identical language.” The interrogation plan included a plan to subject bin al-Shibh, immediately after psychological and medical assessments and before any questioning or negotiation, to ‘sensory dislocation,’ which meant “shaving [his] beard and face, exposing him to loud noise in a white room with white lights, keeping him ‘unclothed and subjected to uncomfortably cool temperatures,’ and shackling him ‘hand and foot with arms outstretched over his head . . . .’” At least six detainees experienced some version of this, including being “stripped and shackled nude,” in 2003. After interrogators concluded that bin al-Shibh didn’t have the information sought, at the urging of those at the CIA’s Alec Station, “CIA officers at DETENTION SITE BLUE . . . continued to use the CIA’s enhanced interrogation techniques against bin al-Shibh for approximately three additional weeks . . . including . . . nudity . . . .” (Executive Summary, Page 76–77, 79 of 499)
  • Additional detainees who are listed by name as having been subjected to nudity, in some cases without higher approval: Majid Khan (Executive Summary Page 89 of 499, note 497); Abd al-Rahim al Nashiri (Executive Summary Page 72 of 499 and Page 103 of 499, note 597); Asadullah (Executive Summary Page 103 of 499, note 599); Abu Hazim (Executive Summary Page 103 of 499, note 604); Bashir Nasri Ali al-Marwalah (Executive Summary Page 104 of 499, note 610); Bin Attash (Executive Summary Page 117 of 499, note 692); Abu Ja’far al-Iraqi (Executive Summary Page 149 of 499, note 901); Janat Gul (Executive Summary Page 346–47 of 499); Suleiman Abdullah (Executive Summary Page 421–22 of 499, note 2366); Abu Hudhaifa (Executive Summary Page 421–22 of 499, note 2366); Hambali (Executive Summary Page 421–22 of 499, note 2366); Sa’id Salih Sa’id (Executive Summary Page 101 of 499, note 589)
• At least once in the report is a mention of a detainee (Bashir Nasir Ali al-Marwalah) who “told debriefers that, when he was first captured, he ‘had to stand up for five days straight and answer questions’ and ‘was also forced to strip naked and stand in front of a female interrogator’ . . . . (Executive Summary Page 101 of 499, note 589)
• Detainees were often naked while doused with water. “At DETENTION SITE COBALT, detainees were often held down, naked, on a tarp on the floor, with the tarp pulled up around them to form a makeshift tub, while cold or refrigerated water was poured on them. Others were hosed down repeatedly while they were shackled naked, in the standing sleep deprivation position.” (Executive Summary, Page 105 of 499)
•  In November 2002, at detainee named Gul Rahman at DETENTION SITE COBALT “who had been held partially nude and chained to a concrete floor died from suspected hypothermia at the facility.” (Findings and Conclusions, Page 10 of 19; see also Executive Summary Page 497 of 499)
•  On July 30, 2004, the CIA provided the OLC a description of its use of various EITs, including nudity. The descriptions “were incongruent with how the CIA had applied the techniques in practice.” “The CIA represented to the OLC that nude detainees were ‘not wantonly exposed to other detainees or detention facility staff,’ even though nude detainees at the CIA’s DETENTION SITE COBALT were ‘kept in a central area outside the interrogation room’ and were ‘walked around’ by guards as a form of humiliation.” (Executive Summary Page 414–15 of 499; see also Page 453 of 499, note 2536)

Here, the forced exposure of the naked male body must be understood as a powerful tool to strip the detainee of his masculine sense of self. Forced nudity is now routinely deemed a sexual harm for women in situations of detention.  We should not presume that because the exposed body is male that the harm is any less or the sexual component absent. My reading requires seeing men’s bodies in these settings as vulnerable and sexual, and that sex-based vulnerability is no less targeted against men in detention than against women.

DIAPERS

The use of diapers does not have an easy parallel example in the coercive behaviours addressed in the jurisprudence of regional human rights courts or ad hoc criminal tribunals. Nonetheless, there is an instinctive sense for scholars and practitioners addressing the complexity of sexual harms in detention settings, that the humiliation engaged by diaper wearing involves engages a sexual dimension. An analogy can be found in the decision by the European Court of Human Rights in Tyrer v. U.K (1978) where it was held that the birching of a child with his trousers and underpants pulled down, by a police office (and in front of other police officers, a doctor and the child’s father) amounted to degrading treatment. It is precisely the element of intimate exposure, the presentation of body parts that are connected to self-and sexual identity to others that brings the action into the zone of sexual harm.

• The use of diapers is listed on Page 32 (Executive Summary) as one of the SERE techniques originally proposed, in early July 2002, by SWIGERT (contractor) for use on Abu Zubaydah. On July 24, 2002, the attorney general verbally approved a number of these techniques, including the use of diapers (Executive Summary Page 36 of 499). In January 2003, the DCI’s January 2003 interrogation guidelines included the approval of the use of diapers for ‘prolonged periods,’ though such use was ‘generally not to exceed 72 hours.’ (Executive Summary Page 63 of 499)
• In some instances, interrogators forced detainees to wear diapers. On July 30, 2004, the CIA described its use of this technique (which the Committee later found to be inaccurate). “The CIA . . . represented to the OLC that the use of diapers was ‘for sanitation and hygiene purposes,’ whereas CIA records indicate that in some cases, a central ‘purpose’ of diapers was ‘[t]o cause humiliation’ and ‘to induce a sense of helplessness.’” (Executive Summary Page 415 of 499)
• During his detention, a detainee name al-Najjar “was wearing a diaper and had no access to toilet facilities.” (Executive Summary Page 53 of 499)
• Others listed as having been forced to use diapers include: Janat Gul (Executive Summary Page 137, 414 of 499); Rahim (“CIA interrogators would provide Rahim with a cloth to further cover himself as an incentive to cooperate.”) (Executive Summary Page 165 of 499).
• “Diapers [and other techniques] were used extensively by the CIA prior to any Department of Justice review.” (Executive Summary Page 453 of 499)
• “CIA detainees, particularly those subjected to standing sleep deprivation, were routinely placed in diapers. Waster buckets were not always available. In the interrogation of Abu Hazim, a waste bucket was removed from his cell for punishment. According to a CIA cable, Abu Hazim ‘requested a bucket in which he could relieve himself, but was told all rewards must be earned.’” (Executive Summary Page 489 of 499)

ROUGH TAKEDOWN

This aspect of the detention regime, while not overtly sexual, arguably further engages and compounds sexual harms.  In the context of gendered harms to women, it is now broadly recognized that sexual harm can be layered into other physical violence including physical and psychological ill-treatment.  Where the body is engaged and made vulnerable, when cultural and social practices connected to the integrity of the sexual self are compromised, there is a need to fully acknowledge the sexual dimensions of the actions taken.  If we now understand this for sexual violence experienced by women, we should be no less sensitive to the violence experienced by men.

• The ‘rough takedown’ is described as follows: “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.” (Findings and Conclusions Page 4 of 19; also described in detail on Executive Summary Page 190 of 499, note 1122, my emphasis)
• Rough takedowns were used at DETENTION SITE COBALT including against Gul Rahman, who eventually died. After his death multiple surface abrasions were found on his body (shoulders, pelvis, arms, legs and face), which the report guesses may have been the result of rough takedown(s). (Executive Summary Page 489 of 499)

RECTAL REHYDRATION

This method, above all others utilized by CIA officers, underscores the normalization of sexual harm within the ordinary practice of the US post 9/11 detention regime. Human Rights Courts and ad hoc Tribunals alike have consistently held that sexual penetration can occur in a number of forms, using various methods, and that such non-consensual intimate violence constitutes rape under international law. Thus, the Inter-American Court in Miguel Castro-Castro Prison v. Peru, Merits, Reparations and Costs, (2006):

Following the jurisprudential and legal criterion that prevails both in the realm of International Criminal Law as in comparative Criminal Law, the Tribunal considers that sexual rape does not necessarily imply an non-consensual sexual vaginal relationship, as traditionally considered. Sexual rape must also be understood as act of vaginal or anal penetration, without the victim’s consent, through the use of other parts of the aggressor’s body or objects, as well as oral penetration with the virile member (para 310)

The Court acknowledges that the sexual rape of a detainee by a State agent is an especially gross and reprehensible act, taking into account the victim’s vulnerability and the abuse of power displayed by the agent. Similarly, sexual rape is an extremely traumatic experience that may have serious consequences and it causes great physical and psychological damage that leaves the victim “physically and emotionally humiliated”, a situation difficult to overcome with time, contrary to what happens with other traumatic experiences (para 301).

Corresponding, the International Criminal Tribunal for the Former Yugoslavia, held in Prosecutor v. Akayesu, (1998) that,

 “[A]cts of sexual violence include forcible sexual penetration of the vagina, anus or oral cavity by a penis and/or of the vagina or anus by some other object, and sexual abuse, such as forced nudity” (para. 10A).

The Senate Report reveals consistent resort to rectal penetration on a number of detainees, a methods designed not only to exert control but arguably to underscore their sexual vulnerability.  Non-consentual penetration violates the most fundamental of human dignity values, that of sexual autonomy and integrity.

• Detainee KSM, at DETENTION SITE COBALT, was subjected to rectal rehydration. “Chief of Interrogations [REDACTED] also ordered the rectal rehydration of KSM without a determination of medical need, a procedure that the chief of interrogations would later characterize as illustrative of the interrogator’s ‘total control over the detainee.’” KSM was subjected to this procedure on more than one occasion. (Executive Summary, Page 82–83 of 499)
• A summary of the information available in the report about rectal rehydration: “At least five detainees were subjected to rectal rehydration or rectal feeding. There is at least one record of Abu Zubaydah receiving ‘rectal fluid resuscitation’ for ‘partially refusing liquids.’ According to CIA records, Majid Khan was ‘very hostile’ to rectal feeding and removed the rectal tube as soon as he was allowed to. KSM was subject to rectal rehydration without a determination of medical need, a procedure that KSM interrogator and chief of interrogations, [REDACTED], would later characterize as illustrative of the interrogator’s ‘total control over the detainee.’ Marwan al-Jabbur was subjected to what was originally referred to in a cable as an ‘enema,’ but was later acknowledge to be rectal rehydration. Both al-Nashiri and Majid Khan were subjected to rectal feeding.” (Executive Summary Page 487 of 499)
•  “Rectal exams were standard operations procedure for security purposes. A June 2002 cable noted that Abu Zubaydah was mildly ‘tense,’ ‘likely an anticipatory reaction given his recent unexpected rectal exam’ the previous day.” (Executive Summary Page 487 of 499)
• “Three detainees, Ramzi bin al-Shibh, Khallad hin Attash and Adnan al-Libi, were threatened with rectal rehydration.” (Executive Summary Page 489 of 499)
•  Rectal feeding and rectal rehydration were used in response to hunger strikes and refusal of water. “CIA medical officers discussed rectal rehydration as a means of behavior control. As one officer wrote, ‘[w]hile IV infusion is safe and effective, we were impressed with the ancillary effectiveness of rectal infusion on ending the water refusal in a similar case.’ . . . As described in the context of the rectal feeding of al-Nashiri, Ensure was infused into al-Nashiri ‘in a forward-facing position . . . with heard lower than torso.’ . . . Majid Khan’s ‘lunch tray,’ consisting of hummus, pasta with sauce, nuts, and raisins was ‘pureed’ and rectally infused. . . . The CIA’s June 2013 Response does not address the use of rectal feeding with CIA detainees, but defends the use of rectal rehydration as a ‘well acknowledge medical technique.’ CIA leadership, including General Counsel Scott Muller and DDO James Pavitt, was also alerted to allegations that rectal exams were conducted with ‘excessive force’ on two detainees at DETENTION SITE COBALT. CIA attorney [REDACTED] was asked to follow up, although CIA records to not indicate any resolution of the inquiry. CIA records indicate that one of the detainees, Mustafa al-Hawsawi, was later diagnosed with chronic hemorrhoids, an anal fissure, and symptomatic rectal prolapse.” (Executive Summary Page 100 of 499, note 584).

KNOWING EMPLOYMENT OF INTERROGATORS WITH A HISTORY OF SEXUAL ASSAULT

International criminal law now provides a vocabulary enabling doctrines of command responsibility to be applied to the foreseeability of sexual harm when persons who have previously committed sexual violations are left unsupervised or when sexual harm is a reasonably foreseeable consequence of a permissible environment for state agents. Thus, in Prosecutor v. Akayesu (1998) the Court applied a test of command responsibility to the extensive sexual violence that took place and the responsibility of the defendant to prevent or limit it.

The Tribunal has found that the Accused had reason to know and in fact knew that acts of sexual violence were occurring on or near the premises of the bureau communal and that he took no measures to prevent these acts or punish the perpetrators of them. The Tribunal notes that it is only in consideration of Counts 13, 14 and 15 that the Accused is charged with individual criminal responsibility under Section 6(3) of its Statute. As set forth in the Indictment, under Article 6(3) “an individual is criminally responsible as a superior for the acts of a subordinate if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or punish the perpetrators thereof.” Although the evidence supports a finding that a superior/subordinate relationship existed between the Accused and the Interahamwe who were at the bureau communal, [the Court declines to pursue command responsibility related to the conduct of Interahamwe out of fairness for the Accused because, a superior/subordinate relationship between the two was not pled] . . . (para 691).

The Senate Report reveals carelessness about and a lack of attention to the prior sexual harassment histories of key interrogators.

• Related to a finding that “[d]espite [r]ecommendation from CIA [a]ttorneys, the CIA [f]ail[ed] to [a]dequately [s]creen [p]otential [i]nterrogators in 2002 and 2003,” the report notes: “[c]ontrary to statements later made by CIA Director Michael Hayden and other CIA officials that ‘[a]ll those involved in the questioning of detainees are carefully chose and screened for demonstrated professional judgment and maturity,’ CIA records suggest that the vetting sought by [REDACTED] did not take place. . . .The Committee identified a number of personnel whose backgrounds include notable derogatory information . . . . In nearly all cases, the derogatory information was known to the CIA prior to the assignment of the CIA officers to the Detention and Interrogation Program. This group of officers included individuals who, among other issues, had engaged in inappropriate detainee interrogations, had workplace anger management issues, and had reportedly admitted to sexual assault.” (Executive Summary, Page 59 of 499)
•  The same issue, is further identified on page 424 and again on page 470 of the Executive Summary.

In sum, on close reading of the Senate Report we gain an extraordinary insight into the normalization of sexual harm within the detention regime applied post 9/11. The Report demonstrates not only the breath of such harms, but mandates that we pay close attention to the vulnerability of men to gender-based harms in situations of detention.  This ought to give us pause, not only because it reveals and calls for broad recognition of sex-based harms but because it also underscores that men and women are vulnerable to sexual harm.  Manhood is not a per se protection from sexual violence.  Rather, the fact of being a man may result in the sexual dimensions of harm being ignored and  simply classified in the torture category, impoverishing our understand of the nature of the harms experienced, and of the appropriate remedies that follow.