Rules of engagement

BY JON STEPHENSON

EXCLUSIVE: SAS commanders warned the troops leaving for Afghanistan to obey the law. "Just because there's a war," one said, "doesn't mean there are no rules. Whatever you do on the ground, imagine there's a New Zealander over your shoulder looking at that."

An SAS trooper stationed in Afghanistan in 2002 recalls some less formal advice from a top US special forces commander. "Don't kill anyone," the American said as they prepared to go on a mission, "that you don't need to kill."

In the hard land of Afghanistan, the rule of law is not conspicuous. The tribes are in a constant state of internecine war. When America's Afghan allies took Taliban prisoners, they stuffed them in containers and left them to suffocate or shot them by the roadside, their bodies stripped of shoes and valuables.

And it is now notorious that many American soldiers did not obey the rules either. A Danish special forces soldier told the Sunday Star-Times he clearly recalls the reaction of a US commando after the Danes took prisoners on a joint operation. "Why didn't you just shoot these guys?"

Torture of prisoners has been part of the war. It took place repeatedly at the US detention centre at Kandahar air base in southern Afghanistan, where the Kiwis were quartered along with special forces from the US, Denmark, Norway, Germany and Canada.

Murat Kurnaz, a German-born Turk captured in Pakistan, was being tortured at Kandahar at the very time in early 2002 that the Kiwis were there and delivering dozens of prisoners to the centre. He had refused to sign a confession saying he was a terrorist, he told the Sunday Star-Times in a December interview in the German city of Bremen. He was released without charge after spending five years in prison more than four of them at the US detention centre in Guantanamo Bay.

"There was a lot of beatings, punchings and kickings going on [in Kandahar]. It was just always the same thing." He was hung from chains with his feet off the floor. "Every eight hours the doctor came to check my heart. They took me down when he came so he could check whether I could survive or not." The interrogator would ask if he was now ready to sign, and when he refused the interrogator would give the thumbs-up sign to the guards, "and they would put me back up".

The people of New Zealand, he told the Star-Times, "had to know" the truth about what happened to the prisoners at Kandahar, many of whom were innocent. "Every innocent person who got handed over to the Americans, it doesn't matter by who, [those who handed them over] supported torture."

Several members of the German special forces (KSK) at Kandahar came up to him in the prison compound and told him, "You chose the wrong side," and beat and kicked him. The Kurnaz case sparked European and German parliamentary inquiries.

He said the prisoners were separated into groups of about 20 and held in tents in an open-air compound behind razor wire. "It was ice cold," he said, and the tents were flimsy. He spent three months there during a bitter Kandahar winter, when more than 170 people in the nearby city reportedly froze to death in December alone.

So did the other special forces based at Kandahar know about the abuse? "Of course," he said. "I mean, they could hear the screamings of people getting tortured."

SAS sources say none of the Kiwis visited the detention centre. "We weren't allowed inside," said one. Another SAS member said the detention centre was at least half a kilometre away from the SAS quarters, and the soldiers could not hear anything or see much. He did not visit the detention centre. But he added: "I can understand that they got the shit kicked out of them." Another SAS man said he went to a high point of the base to check out the centre. "It looked like Guantanamo Bay."

We will probably never know which of the prisoners handed over at the Kandahar detention centre were captured and handed over by New Zealanders.

One SAS man told the Star-Times that each prisoner's personal details were written on standard-issue army cards, with one attached to the prisoner's clothing and another to a bag containing his belongings. Although height, eye colour and place of detention were recorded, the prisoner's name and date of birth were not.

The issue of identification is critical. International law, and the New Zealand Defence Force's own rules, say a New Zealand commander cannot transfer prisoners to another country unless he or she is satisfied they will be treated humanely. Clearly it is far more difficult to locate and check a prisoner handed over to the Americans if you don't know his name.

WHAT DID the New Zealand government know about all this, and what did it do about it? Here, much also remains unclear. A top US international human rights lawyer, Michael Ratner, says the New Zealand government should have heard alarm bells as early as Feburary 2002, when President Bush and US defense secretary Donald Rumsfeld said that alQaeda and Taliban prisoners were not entitled to prisoner-of-war status or the legal protections of the Geneva Convention.

"It was obvious to everybody what was going on," says Ratner. "The New Zealand authorities knew that turning prisoners over to the Americans was very likely or very possibly going to cause inhumane treatment."

By March 2002 there were reports in the New York Times and other major media outlets that prisoners were being mistreated at Kandahar. The treatment of prisoners was also raised by SAS boss Jim Blackwell at a meeting he called in April at the air base with other special forces commanders.

The New Zealand defence force's top lawyer, Brigadier Kevin Riordan, says New Zealand took its responsibilities under the Geneva Conventions and international law very seriously.

He said it was unclear what Rumsfeld meant by his February statement. The defense secretary seemed unsure about which part of the conventions he was talking about. Even legal experts were unsure about the legal status of al Qaeda captives. And besides, he said, the Americans still maintained that in any case they would treat prisoners humanely.

The SAS did not report that prisoners had been tortured or mistreated, Riordan said, but that the Americans' handling of the prisoners was "far more robust than the way our special forces guys would have done themselves". After one incident the New Zealand commander at Kandahar "remonstrated with the Americans about the way they were initially handling people who were handed over to them".

As for the news reports, Riordan says: "The fact is that we were working on official lines of report and what our obligations were. I really can't start responding to media [reports]."

Ratner says the Geneva Conventions require all prisoners to be logged, but the New Zealand military transferred prisoners "without even knowing their names".

"You can't have any `ghost' detainee, because what that means when you've got a ghost detainee is that it leads directly to mistreatment and abuse."

Riordan says that "obtaining somebody's name in Afghanistan is not a straightforward process". Afghans often went by a number of different names, and to make sense of what they said "you would have to be able to speak their particular language, perhaps their dialect".

The prisoners were in New Zealand hands for only four or five hours, and the SAS was not trained in interrogation techniques. The job of ascertaining this information was beyond the SAS's capabilities.

In one case, the prisoners' beards and hair had been shaved off, and one SAS source said the reason given by the Americans was that there was an infestation of lice at the detention centre. But American law professor and humans rights expert Eric Stover, who has interviewed Kandahar prisoners released from Guantanamo, said this was a way of humiliating Muslim men and part of a "mosaic of abuse" of the prisoners. Shaving off hair and beards was a warning sign that the prisoners were not being treated humanely.

Certainly some other special forces at Kandahar seemed to have noticed more about what was happening to the prisoners. A Danish special forces interpreter working in the detention centre witnessed severe mistreatment and torture. After reporting the abuse in early 2002 to the Danish special forces commander, Frank Lissner, he was sent home to Denmark, relieved of his duties and told not to discuss the issue.

A 2006 Danish television documentary revealing the abuse of prisoners handed over by the Danes caused a political uproar. One of the prisoners is now suing the Danish military.

Riordan said New Zealand went into the war confident that the US would observe its obligations under the Geneva Conventions. In the First Gulf War in 1991, for instance, "the US ran an amazingly advanced and well-run prisoner of war handling system". Or, as one senior officer put it, "We thought we were dealing with the US, not the SS."

A senior SAS source says some prisoners the Kiwis handed over "probably" ended up at Guantanamo Bay. "In fact, I'm pretty sure some did." Asked whether that sat well with him he said: "Would it sit well with any soldier? But you do the best you can and trust that your allies do the same."

Auckland freelance journalist Jon Stephenson has spent two years investigating what happened to the prisoners handed by the SAS to the Americans in Afghanistan. Stephenson, who reported from the US-led invasions of Afghanistan and Iraq, interviewed people in England, Germany, Denmark and the US.

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