(The findings were later published in the Los Angeles Times on September 21, 2004.)

Jamal Naseer, a soldier in the Afghan National Army, was killed in March 2003 after he and seven other soldiers were mistakenly arrested by US forces and taken to a base in Gardez. Their case was investigated by the United Nations office in Gardez, the office of the Attorney General of the Afghan National Army, and the Crimes of War project. The investigations showed that US forces severely beat Naseer and the other soldiers while in custody. Numerous witnesses who saw them at the time (including UN representatives) described them as bearing wounds and heavy bruises. The surviving detainees themselves allege that US forces punched them, kicked them, hung them upside down, and hit them with sticks or cables, among other abuses. Some said they were soaked in cold water and forced to lie in snow, and shocked with electricity on their toes.

The Army Criminal Investigative Command opened an investigation into this case in May 2004. Over two years later, in early 2007, CID sent recommendations to Special Forces Command in Fort Bragg, North Carolina, that two soldiers be charged with abuse in relation to the death and beatings. On the evening of January 27, 2007 – a Friday night after close of business – Special Operations Command released a statement that two soldiers would receive administrative reprimands, but not face courts-martial.

Case from Gardez in 2004 An Afghan detainee died in US custody in Gardez in September 2004. Sher Mohammad Khan was arrested on September 24, 2004 during a raid on his family's home near Khost in which his brother, Mohammad Rais Khan, was shot and killed by US forces. Sher Mohammad Khan died sometime later the next day at a US military base. Military officials in Khost told journalists that he had died of a heart attack, and that the Khan family were "bad guys." As noted above, Khan died within hours of being taken into US custody. Khan's family has told investigators with AIHRC that the body was bruised when they retrieved it from US forces. But later, in January 2005, a US military official said that Khan, before he died, had complained of "being bitten by a snake." Human Rights Watch is not aware of any criminal investigation into the death.

Two Deaths at Bagram in December 2002 Two detainees died at the US air base at Bagram in December 2002. The two detainees, named Habibullah and Dilawar, died after suffering extensive beatings and mistreatment by military intelligence and military police. The killings were not fully investigated by Army criminal investigators until details of the deaths were reported in the New York Times. Investigators ultimately recommended that at least 27 different personnel, including military police, be criminally charged, both for crimes relating to the deaths and for other abuses of detainees at Bagram that were documented during the investigation. As of February 2007, however, few of the soldiers and officers implicated in connection with the killings have been punished, and none of those convicted were sentenced to more than a few months in prison (the sentences were two months, two-and-a-half months, three months, and five months, respectively).

Two of the military police received particularly light punishments: Willie Brand, who admitted to kicking and striking one of the detainees over 30 times, and who was initially charged with homicide and ultimately found guilty of cruelty and maltreatment, assault, maiming, and making a false official statement – crimes that carried a potential 16-year prison sentence – was only punished with a rank reduction and received an honorable discharge. Selena Salcedo, another soldier directly involved in beating the detainees and found guilty of assault and dereliction of duty, was merely fined $1,000 (payable in four installments of $250) and given a letter of reprimand. Two other guards, though implicated by other soldiers who testified as witnesses, were acquitted.

Although evidence uncovered during the investigation that commanders up the chain of command had authorized harsh interrogation methods at the time of the beatings, no senior officers have even been investigated for criminal liability under the command responsibility doctrine. One officer charged for command failure was charged for dereliction of duty in failing to properly train his troops, and he was acquitted. The military intelligence officer overseeing the interrogations of the detainees who were killed – Captain Carolyn Wood – was not charged with any crime, nor even reprimanded. No other officer has been charged in this case as a principal in the commission of any crime.

Background on the Passaro Case David Passaro was convicted in August 2006 of assault charges in connection with the killing of Abdul Wali, an Afghan farmer arrested in Asadabad, in Eastern Afghanistan, June 2003, suspected of involvement in rocket attacks on a military post. Passaro, a former CIA contractor, had no experience in military intelligence or interrogations, but took a lead role in interrogating Wali.

According to the prosecution, Wali was subjected to a "chamber of horrors" by Passaro, who ordered guards to keep Wali from sleeping and to limit his access to food and water. According to witnesses, Passaro subjected Wali to over 48 hours of interrogation and beatings, hitting Wali on the shins, elbows and wrists, and kicking Wali in the groin so hard that the blow lifted him off the ground. Witnesses said Wali begged them to shoot him, and before he died, was moaning "I'm dying." Throughout the ordeal, Wali repeatedly denied any role in the rocket attacks. He died on his fourth day in custody.

Although Passaro could have been charged under federal homicide and torture statutes, prosecutors charged him only with assault charges; he was ultimately convicted of only one felony assault charge and three charges of "simple assault."

Passaro faced a minimum of 15 months in prison and a maximum of 11-and-a-half years. Federal sentencing guidelines specified a baseline at the minimum of 15 months. During the sentencing hearing on February 13, Judge Terrence Boyle grilled prosecutors about their requests for upward departures from the sentencing guidelines. Prosecutors provided various justifications, noting that Wali was shackled and prone; that the detainee had died; and that the crime had damaged US operations in Afghanistan. In the end, although Judge Boyle questioned their assertions, he made a significant upward departure to 8-and-a-half years, closer to the maximum than the minimum.

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