The Torture Papers: The Road to Abu Ghraib, edited by Karen

Your relationship with government is simple: government knows everything about you, and you know nothing about government. In practice this means government can do whatever it wants to you before you know it's going to happen. Government policy makers think this is a good way of ensuring citizen compliance. Thus, all of these investigations are retrospective -- they look back at the squirrely shit that government has pulled, and occasionally wring their hands about trying to avoid it happening in the future. Not inspiring reading, but necessary if you are to face the cold reality that Big Brother is more than watching.

Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 7:50 pm

MEMO 7

DRAFT
1/25/2002-3:30 pm

January 25, 2002

MEMORANDUM FOR THE PRESIDENT

FROM: ALBERTO R. GONZALES

SUBJECT: DECISION RE APPLICATION OF THE GENEVA CONVENTION ON PRISONERS OF WAR TO THE CONFLICT WITH AL QAEDA AND THE TALIBAN

Purpose

On January 18, I advised you that the Department of Justice had issued a formal legal opinion concluding that the Geneva Convention III on the Treatment of Prisoners of War (GPW) does not apply to the conflict with al Qaeda. I also advised you that DOJ's opinion concludes that there are reasonable grounds for you to conclude that GPW does not apply with respect to the conflict with the Taliban. I understand that you decided that GPW does not apply and, accordingly, that al Qaeda and Taliban detainees are not prisoners of war under the GPW.

The Secretary of State has requested that you reconsider that decision. Specifically, he has asked that you conclude that GPW does apply to both al Qaeda and the Taliban. I understand, however, that he would agree that al Qaeda and Taliban fighters could be determined not to be prisoners of war (POWs) but only on a case-by-case basis following individual hearings before a military board.

This memorandum outlines the ramifications of your decision and the Secretary's request for reconsideration.

Legal Background

As an initial matter, I note that you have the constitutional authority to make the determination you made on January 18 that the GPW does not apply to al Qaeda and the Taliban. (Of course, you could nevertheless, as a matter of policy, decide to apply the principles of GPW to the conflict with al Qaeda and the Taliban.) The Office of Legal Counsel of the Department of Justice has opined that, as a matter of international and domestic law, GPW does not apply to the conflict with al Qaeda. OLC has further opined that you have the authority to determine that GPW does not apply to the Taliban. As I discussed with you, the grounds for such a determination may include:

A determination that Afghanistan was a failed state because the Taliban did not exercise full control over the territory and people, was not recognized by the international community, and was not capable of fulfilling its international obligations (e.g., was in widespread material breach of its international obligations).

A determination that the Taliban and its forces were, in fact, not a government, but a militant, terrorist-like group.

OLC's interpretation of this legal issue is definitive. The Attorney General is charged by statute with interpreting the law for the Executive Branch. This interpretive authority extends to both domestic and international law. He has, in turn, delegated this role to OLC. Nevertheless, you should be aware that the Legal Adviser to the Secretary of State has expressed a different view.

Ramifications of Determination that GPW Does Not Apply

The consequences of a decision to adhere to what I understood to be your earlier determination that the GPOW does not apply to the Taliban include the following:

Positive:

Preserves flexibility:


As you have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians. In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, script (i.e., advances of monthly pay), athletic uniforms, and scientific instruments.

Although some of these provisions do not apply to detainees who are not POWs, a determination that GPW does not apply to al Qaeda and the Taliban eliminates my argument regarding the need for case-by-case determinations of POW status. It also holds open options for the future conflicts in which it may be more difficult to determine whether an enemy force as a whole meets the standard for POW status.

By concluding that GPW does not apply to al Qaeda and the Taliban, we avoid foreclosing options for the future, particularly against nonstate actors.

Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act (18 U.S.C. 2441).
That statute, enacted in 1996, prohibits the commission of a "war crime" by or against a U.S. person, including U.S. officials. "War crime" for these purposes is defined to include any grave breach of GPW or any violation of common Article 3 thereof (such as "outrages against personal dignity"). Some of these provisions apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that the GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actions taken with respect to the Taliban.

Adhering to your determination that GPW does not apply would guard effectively against misconstruction or misapplication of Section 2441 for several reasons.

First, some of the language of the GPW is undefined (it prohibits, for example, "outrages upon personal dignity" and "inhuman treatment"), and it is difficult to predict with confidence what actions might be deemed to constitute violations of the relevant provisions of GPW.

Second, it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.

Third, it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.

Negative:

On the other hand, the following arguments would support reconsideration and reversal of your decision that the GPW does not apply to either al Qaeda or the Taliban:

Since the Geneva Conventions were concluded in 1949, the United States has never denied their applicability to either U.S. or opposing forced engaged in armed conflict, despite several opportunities to do so. During the last Bush Administration, the United States tated that it "has a policy of applying the Geneva Conventions of 1949 whenever armed hostilities occur with regular foreign armed forces, even if arguments could be made that the threshold standards for the applicability of the Conventions ... are not met."

The United States could not invoke the GPW if enemy forces threatened to mistreat or mistreated U.S. or coalition forces captured during operations in Afghanistan, or if they denied Red Cross access or other POW privileges.

The War Crimes Act could not be used against the enemy, although other criminal statutes and the customary law of war would still be available.

Our position would likely provoke widespread condemnation among our allies and in some domestic quarters, even if we make clear that we will comply with the core humanitarian principles of the treaty as a matter of policy.

Concluding that the Geneva Convention does not apply may encourage other countries to look for technical "loopholes" in future conflicts to conclude that they are not bound by GPW either.

Other countries may be less inclined to turn over terrorists or provide legal assistance to us if we do not recognize a legal obligation to comply with the GPW.

A determination that GPW does not apply to al Qaeda and the Taliban could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries.

Response to Arguments for Applying GPW to the al Qaeda and the Taliban

On balance, I believe that the arguments for reconsideration and reversal are unpersuasive.

The argument that the U.S. has never determined that GPW did not apply is incorrect. In at least one case (Panama in 1989) the U.S. determined that GPW did not apply even though it determined for policy reasons to adhere to the convention. More importantly, as noted above, this is a new type of warfare -- one not contemplated in 1949 when the GPW was framed -- and requires a new approach in our actions towards captured terrorists. Indeed, as the statement quoted from the administration of President George Bush makes clear, the U.S. will apply GPW "whenever hostilities occur with regular foreign armed forces." By its terms, therefore, the policy does not apply to a conflict with terrorists, or with irregular forces, like the Taliban, who are armed militants that oppressed and terrorized the people of Afghanistan.

In response to the argument that we should decide to apply GPW to the Taliban in order to encourage other countries to treat captured U.S. military personnel in accordance with the GPW, it should be noted that your policy of providing humane treatment to enemy detainees gives us the credibility to insist on like treatment for our soldiers. Moreover, even if GPW is not applicable, we can still bring war crimes charges against anyone who mistreats U.S. personnel. Finally, I note that our adversaries in several recent conflicts have not been deterred by GPW in their mistreatment of captured U.S. personnel, and terrorists will not follow GPW rules in any event.

The statement that other nations would criticize the U.S. because we have determined that GPW does not apply is undoubtedly true. It is even possible that some nations would point to that determination as a basis for failing to cooperate with us on specific matters in the war against terrorism. On the other hand, some international and domestic criticism is already likely to flow from your previous decision not to treat the detainees as POWs. And we can facilitate cooperation with other nations by reassuring them that we fully support GPW where it is applicable and by acknowledging that in this conflict the U.S. continues to respect other recognized standards

In the treatment of detainees, the U.S. will continued to be constrained by (i) its commitment to treat the detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of GPW, (ii) its applicable treaty obligations, (iii) minimum standards of treatment universally recognized by the nations of the world, and (iv) applicable military regulations regarding the treatment of detainees.

Similarly, the argument based on military culture fails to recognize that our military remain bound to apply the principles of GPW because that is what you have directed them to do.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 7:53 pm

MEMO 8

United States Department of State
Washington, D.C. 20520

January 26, 2002

MEMORANDUM

TO: Counsel to the President
Assistant to the President for National Security Affairs

FROM: Colin L. Powell

SUBJECT: Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan

Option 1: Determine that the Geneva Convention on the treatment of Prisoners of War (GPW) does not apply to the conflict on “failed State” or some other grounds. Announce this position publicly. Treat all detainees consistent with the principles of the GPW;

and

Option 2: Determine that the Geneva Convention does apply to the conflict in Afghanistan, but that members of al Qaeda as a group and the Taliban individually or as a group are not entitled to Prisoner of War status under the Convention. Announce this position publicly. Treat all detainees consistent with the principles of the GPW.

The final memorandum should first tell the President that both options have the following advantages—that is there is no difference between them in these respects:

Both provide the same practical flexibility in how we treat detainees, including with respect to interrogation and length of the detention.
Both provide flexibility to provide conditions of detention and trial that take into account constraints such as feasibility under the circumstances and necessary security requirements.
Both allow us not to give the privileges and benefits of POW status to al Qaeda and Taliban.
Neither option entails any significant risk of domestic prosecution against U.S. officials.
The memorandum should go on to identify the separate pros and cons of the two options as follows:

Option 1—Geneva Convention does not apply to the conflict

Pros:

This is an across-the-board approach that on its face provides maximum flexibility, removing any question of case-by-case determination for individuals.
Cons:

It will reverse over a century of U.S. policy and practice in supporting the Geneva conventions and undermine the protections of the law of war for our troops, both in this specific context and in general.
It has a high cost in terms of negative international reaction, with immediate adverse consequences for our conduct of foreign policy.
It will undermine public support among critical allies, making military cooperation more difficult to sustain.
Europeans and others will likely have legal problems with extradition or other forms of cooperation in law enforcement, including in bringing terrorists to justice.
It may provoke some individual foreign prosecutors to investigate and prosecute our officials and troops.
It will make us more vulnerable to domestic and international legal challenge and deprive us of important legal options:
It undermines the President’s Military Order by removing an important legal basis for trying the detainees before Military Commissions.
We will be challenged in international for a (UN Commission on Human Rights; World Court; etc.).
The Geneva Conventions are a more flexible and suitable legal framework than other laws that would arguably apply (customary international human rights, human rights conventions). The GPW permits long-term detention without criminal charges. Even after the President determines hostilities have ended, detention continues if criminal investigations or proceedings are in process. The GPW also provides clear authority for transfer of detainees to third countries.
Determining GPW does not apply deprives us of a winning argument to oppose habeas corpus actions in U.S. courts.
Option 2—Geneva Convention applies to the conflict

Pros:

By providing a more defensible legal framework, it preserves our flexibility under both domestic and international law.
It provides the strongest legal foundation for what we actually intend to do.
It present a positive international posture, preserves U.S. credibility and moral authority by taking the high ground, and puts us in a better position to demand and receive international support.
It maintains POW status for U.S. forces, reinforces the importance of the Geneva Conventions, and generally supports the U.S. objective of ensuring its forces are accorded protection under the Convention.
It reduces the incentives for international criminal investigations directed against U.S. officials and troops.
Cons:

If, for some reason, a case-by-case review is used for Taliban, some may be determined to be entitled to POW status. This would not, however, affect their treatment as a practical matter.
I hope that you can restructure the memorandum along these lines, which it seems to me will give the President a much clearer understanding of the options available to him and their consequences. Quite aside from the need to identify options and their consequences more clearly, in its present form, the draft memorandum is inaccurate or incomplete in several respects. The most important factual errors are identified on the attachment.

Comments on the Memorandum of January 25, 2002

Purpose


(Second paragraph) The Secretary of State believes that al Qaeda terrorists as a group are not entitled to POW status and that Taliban fighters could be determined not to be POWs either as a group or on a case-by-case basis.

Legal Background

(First bullet) The Memorandum should note that any determination that Afghanistan is a failed state would be contrary to the official U.S. government position. The United States and the international community have consistently held Afghanistan to its treaty obligations and identified it as a party to the Geneva Conventions.

(Second paragraph) The Memorandum should note that the OLC interpretation does not preclude the President from reaching a different conclusion. It should also note that the OLC opinion is likely to be rejected by foreign governments and will not be respected in foreign courts or international tribunals which may assert jurisdiction over the subject matter. It should also note that OLC views are not definitive on the factual questions which are central to its legal conclusions.

Ramifications of Determination that GPW Does Not Apply

(Positive) The Memorandum identifies several positive consequences if the President determines the GPW does not apply. The Memorandum should note that those consequences would result equally if the President determines that the GPW does apply but that the detainees are not entitled to POW status.

(Negative. First bullet) The first sentence is correct as it stands. The second sentence is taken out of context and should be omitted. The U.S. position in Panama was that Common Article 3 of the Geneva Conventions did apply.

Response to Arguments for Applying GPW to the al Qaeda and the Taliban

(First bullet) The assertion in the first sentence is incorrect. The United States has never determined that the GPW did not apply to an armed conflict in which its forces have been engaged. With respect to the third sentence, while no one anticipated the precise situation that we face, the GPW was intended to cover all types of armed conflict and did not by its terms limit its application.

(Fourth bullet) The point is not clear. If we intend to conform our treatment of the detainees to universally recognized standards, we will be complying with the GPW.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 7:53 pm

MEMO 9

Office of the Attorney General
Washington, D.C. 20530

February 1, 2002

The President
The White House
Washington, DC

Dear Mr. President:

With your permission, I would like to comment on the National Security Council's discussion concerning the status of Taliban detainees. It is my understanding that the determination that al Qaeda and Taliban detainees are not prisoners of war remains firm. However, reconsideration is being given to whether the Geneva Convention III on prisoners of war applies to the conflict in Afghanistan.

There are two basic theories supporting the conclusion that Taliban combatants are not legally entitled to Geneva Convention protections as prisoners of war:

1. During relevant times of the combat, Afghanistan was a failed state. As such it was not a party to the treaty, and the treaty's protections do not apply;

2. During relevant times, Afghanistan was a party to the treaty, but Taliban combatants are not entitled to Geneva Convention III prisoner of war status because they acted as unlawful combatants.

If a determination is made that Afghanistan was a failed state (Option 1 above) and not a party to the treaty, various legal risks of liability, litigation, and criminal prosecution are minimized. This is a result of the Supreme Court's opinion in Clark v. Allen providing that when a President determines that a treaty does not apply, his determination is fully discretionary and will not be reviewed by the federal courts.

Thus, a Presidential determination against treaty applicability would provide the highest assurance that no court would subsequently entertain charges that American military officers, intelligence officials, or law enforcement officials violated Geneva Convention rules relating to field conduct, detention conduct or interrogation of detainees. The War Crimes Act of 1996 makes violation of parts of the Geneva Convention a crime in the United States.

In contrast, if a determination is made under Option 2 that the Geneva Convention applies but the Taliban are interpreted to be unlawful combatants not subject to the treaty's protections, Clark v. Allen does not accord American officials the same protection from legal consequences. In cases of Presidential interpretation of treaties which are confessed to apply, courts occasionally refuse to defer to Presidential interpretation. Perkins v. Elg is an example of such a case. If a court chose to review for itself the facts underlying a Presidential interpretation that detainees were unlawful combatants, it could involve substantial criminal liability for involved U.S. officials.

We expect substantial and ongoing legal challenges to follow the Presidential resolution of these issues. These challenges will be resolved more quickly and easily if they are foreclosed from judicial review under the Clark case by a Presidential determination that the Geneva Convention III on prisoners of war does not apply based on the failed state theory outlined as Option 1 above.

In sum, Option 1, a determination that the Geneva Convention does not apply, will provide the United States with the highest level of legal certainty available under American law.

It may be argued that adopting Option 1 would encourage other states to allege that U.S. forces are ineligible for Geneva Convention III protections in future conflicts. From my perspective, it would be far more difficult for a nation to argue falsely that America was a "failed state" than to argue falsely that American forces had, in some way, forfeited their right to protections by becoming unlawful combatants. In fact, the North Vietnamese did exactly that to justify mistreatment of our troops in Vietnam. Therefore, it is my view that Option 2, a determination that the Geneva Convention III applies to the conflict in Afghanistan and that Taliban combatants are not protected because they were unlawful, could well expose our personnel to a greater risk of being treated improperly in the event of detention by a foreign power.

Option 1 is a legal option. It does not foreclose policy and operational considerations regarding actual treatment of Taliban detainees. Option 2, as described above, is also a legal option, but its legal implications carry higher risk of liability, criminal prosecution, and judicially-imposed conditions of detainment -- including mandated release of a detainee.

Clearly, considerations beyond the legal ones mentioned in this letter will shape and perhaps control ultimate decision making in the best interests of the United States of America.

Sincerely,

John Ashcroft
Attorney General
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 7:55 pm

MEMO 10

THE LEGAL ADVISER DEPARTMENT OF STATE
WASHINGTON

February 2, 2002

MEMORANDUM

TO: Counsel to the President

FROM: William H. Taft, IV

SUBJECT: Comments on Your Paper on the Geneva Convention

The paper should make clear that the issue for decision by the President is whether the Geneva Conventions apply to the conflict in Afghanistan in which U.S. armed forces are engaged. The President should know that a decision that the Conventions do apply is consistent with the plain language of the Conventions and the unvaried practice of the United States in introducing its forces into conflict over fifty years. It is consistent with the advice of DOS lawyers and, as far as is known, the position of every other party to the Conventions. It is consistent with UN Security Council Resolution 1193 affirming that "All parties to the conflict (in Afghanistan) are bound to comply with their obligations under international humanitarian law and in particular the Geneva Conventions. ..." It is not inconsistent with the DOJ opinion that the Conventions generally do not apply to our world-wide effort to combat terrorism and to bring al Qaeda members to justice.

From a policy standpoint, a decision that the Conventions apply provides the best legal basis for treating the al Qaeda and Taliban detainees in the way we intend to treat them. It demonstrates that the United States bases its conduct not just on its policy preferences but on its international legal obligations. Agreement by all lawyers that the War Crimes Act does not apply to our conduct means that the risk of prosecution under that statute is negligible. Any small benefit from reducing it further will be purchased at the expense of the men and women in our armed forces that we send into combat. A decision that the Conventions do not apply to the conflict in Afghanistan in which our armed forces are engaged deprives our troops there of any claim to the protection of the Convention in the event they are captured and weakens the protections accorded by the Conventions to our troops in future conflicts.

The structure of the paper suggesting a distinction between our conflict with al Qaeda and our conflict with the Taliban does not conform to the structure of the Conventions. The Conventions call for a decision whether they apply to the conflict in Afghanistan. If they do, their provisions are applicable to all persons involved in that conflict -- al Qaeda, Taliban, Northern Alliance, U.S. troops, civilians, etc. If the Conventions do not apply to the conflict, no one involved in it will enjoy the benefit of their protections as a matter of law.

Status of Legal Discussions re
Application of Geneva Convention to
Taliban and al Qaeda

1. Legal Conclusion re War Crimes Act Liability

All lawyers involved in these discussions agree that the War Crimes Act does not apply to any actions being taken by U.S. officials with respect to al Qaeda or Taliban detainees.

2. Applicability of GPW to Conflict With al Qaeda

DOJ lawyers have concluded as matter of law that our conflict with al Qaeda, regardless of where it is carried out, is not covered by GPW. Lawyers from DOD, WHC, and OVP support that legal conclusion.

DOJ, DOD, WHC, and OVP lawyers believe that this conclusion is desirable from a domestic law standpoint because it provides the best possible insulation from any misapplication of the War Crimes Act to the conflict with al Qaeda, whether in Afghanistan or elsewhere.

DOJ, DOD, WHC, and OVP lawyers further believe that this conclusion is appropriate for policy reasons because it emphasizes that the worldwide conflict with al Qaeda is a new sort of conflict, one not covered by GPW or some other traditional rules of warfare.

DOS lawyers believe that GPW applies to our treatment of al Qaeda members captured in Afghanistan on the theory that GPW applies to the conflict in Afghanistan, not to particular individuals or groups.

DOS lawyers believe this conclusion is desirable from a domestic and international law standpoint because it provides the best legal basis for our intended treatment of the detainees and strengthens the Geneva Convention protections of our forces in Afghanistan and other conflicts. DOS lawyers further believe this conclusion is appropriate for policy reasons because it emphasizes that even in a new sort of conflict the United States bases its conduct on its international treaty obligations and the rule of law, not just on its policy preferences.

JCS lawyers do not object to DOJ's (or DOS's) legal conclusion, provided that JCS' policy concerns are addressed by statements that (1) the U.S. will treat all detainees as if the convention applied; (2) emphasize the importance we attach to theconvention; and (3) emphasize our expectation that all other countries will treat our armed forces consistent with the convention.

3. Applicability of GPW to Conflict With the Taliban

DOJ, WHC and OVP lawyers agree that the President has authority to determine to suspend GPW as between the U.S. and Afghanistan based on a conclusion that Afghanistan is a failed state.

DOS lawyers disagree with this conclusion and oppose such a determination

DOS lawyers do not agree that Afghanistan is failed State, that a failed State is relieved of its treaty obligations, or that the ***************

JCS lawyers oppose the determination on policy grounds to the extent that those policy considerations are not addressed as set forth in the last bullet of 1. above.

All lawyers agree that (a) Taliban detainees are not POWs and (b) they do not fit within the class of those entitled to any of the other (i.e. non-Pow) protections of GPW. Thus all relevant lawyers agree that Taliban detainees will not benefit at all from GPW, whether or not GPW is suspended.

DOJ lawyers believe that it is desirable to adhere to the President's determination of January 18 that GPW does not apply to our conflict with the Taliban in order to provide the best possible level of protection against misapplication of the War Crimes Act. OVP, DOD and WHC lawyers agree that the President's January 18 determination provides the best possible level of protection.

4. POW Status

The lawyers involved all agree that al Qaeda or Taliban soldiers are presumptively not POWs, consistent with the President's determination of January 18.

5. Further Screening

DOJ, WHC, and OVP lawyers believe that the President has definitively determined that al Qaeda and Taliban soldiers who come under U.S. control are not entitled to POW status. They further believe that this determination is conclusive and that no procedures are needed for further screening of any al Qaeda or Taliban detainees. They also believe that non-POW status affords the flexibility to release or transfer any prisoner determined not to be an appropriate candidate for detention, e.g., because he is a low-level recruit who poses no continuing threat and who has no relevant information.

DOD, JCS and DOS lawyers believe that, in the unlikely event that "doubt should arise" as to whether a particular detainee does not qualify for POW status, we should be prepared to offer additional screening on a case-by-case basis, either pursuant to Article 5 of GPW (to the extent the Convention applies) or consistent with Article 5 (to the extent it does not). The National Security Advisor has advised the Canadian government that this is our policy.

6. CIA Issues

The lawyers involved all agree that the CIA is bound by the same legal restrictions as the U.S. military

They further agree that the CIA enjoys the same high level of protection from liability under the War Crimes Act as the U.S. military

CIA lawyers believe that, to the extent that GPW's protections do not apply as a matter of law but those protections are applied as a matter of policy, it is desirable to circumscribe that policy so as to limit its application to the CIA. The other lawyers involved did not disagree with or object to CIA's view.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 7:56 pm

MEMO 11

by George W. Bush

THE WHITE HOUSE
WASHINGTON

February 7, 2002

MEMORANDUM FOR THE VICE PRESIDENT
THE SECRETARY OF STATE
THE SECRETARY OF DEFENSE
THE ATTORNEY GENERAL
CHIEF OF STAFF TO THE PRESIDENT
DIRECTOR OF CENTRAL INTELLIGENCE
ASSISTANT TO THE PRESIDENT FOR NATIONAL SECURITY AFFAIRS
CHAIRMAN OF THE JOINT CHIEFS OF STAFF

SUBJECT: Humane Treatment of al Qaeda and Taliban Detainees

1. Our recent extensive discussions regarding the status of al Qaeda and Taliban detainees confirm that the application of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (Geneva) to the conflict with al Qaesa and the Taliban involves complex legal questions. By its terms, Geneva applies to conflicts involving "High Contracting Parties," which can only be states. Moreover, it assumes the existence of "regular" armed forces fighting on behalf of states. However, the war against terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states. Our Nation recognizes that this new paradigm -- ushered in not by us, but by terrorists -- requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva.

2. Pursuant to my authority as Commander in Chief and Chief Executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the Attorney General in his letter of February 1, 2002, I hereby determine as follows:

a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a High Contracting Party to Geneva.

b. I accept the legal conclusion of the Attorney General and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban. I reserve the right to exercise this authority in this or future conflicts.

c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to "armed conflict not of an international character."

d. Based on the facts supplied by the Department of Defense and the recommendations of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al Qaeda, as Qaeda detainees also do not qualify as prisoners of war.

3. Of course, our values as a Nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

4. The United States will hold states, organizations, and individuals who gain control of United States personnel responsible for treating such personnel humanely and consistent with applicable law.

5. I hereby reaffirm the order previously issued by the Secretary of Defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

6. I hereby direct the Secretary of State to communicate my determination in appropriate manner to our allies, and other countries and international organizations cooperating in the war against terrorism of global reach.

[Signed George Bush]

--------------------------------------------------------------------------------

George W. Bush
XLIII President of the United States: 2001-2009

Fact Sheet: Status of Detainees at Guantanamo

February 7, 2002

United States Policy.

The United States is treating and will continue to treat all of the individuals detained at Guantanamo humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 1949.

The President has determined that the Geneva Convention applies to the Taliban detainees, but not to the al-Qaida detainees.

Al-Qaida is not a state party to the Geneva Convention; it is a foreign terrorist group. As such, its members are not entitled to POW status.

Although we never recognized the Taliban as the legitimate Afghan government, Afghanistan is a party to the Convention, and the President has determined that the Taliban are covered by the Convention. Under the terms of the Geneva Convention, however, the Taliban detainees do not qualify as POWs.

Therefore, neither the Taliban nor al-Qaida detainees are entitled to POW status.

Even though the detainees are not entitled to POW privileges, they will be provided many POW privileges as a matter of policy.

All detainees at Guantanamo are being provided:

three meals a day that meet Muslim dietary laws

water

medical care

clothing and shoes

shelter

showers

soap and toilet articles

foam sleeping pads and blankets

towels and washcloths

the opportunity to worship

correspondence materials, and the means to send mail

the ability to receive packages of food and clothing, subject to security screening

The detainees will not be subjected to physical or mental abuse or cruel treatment. The International Committee of the Red Cross has visited and will continue to be able to visit the detainees privately. The detainees will be permitted to raise concerns about their conditions and we will attempt to address those concerns consistent with security.

Housing. We are building facilities in Guantanamo more appropriate for housing the detainees on a long-term basis. The detainees now at Guantanamo are being housed in temporary open-air shelters until these more long-term facilities can be arranged. Their current shelters are reasonable in light of the serious security risk posed by these detainees and the mild climate of Cuba.

POW Privileges the Detainees will not receive. The detainees will receive much of the treatment normally afforded to POWs by the Third Geneva Convention. However, the detainees will not receive some of the specific privileges afforded to POWs, including:

access to a canteen to purchase food, soap, and tobacco

monthly advance of pay

the ability to have and consult personal financial accounts

the ability to receive scientific equipment, musical instruments, or sports outfits

Many detainees at Guantanamo pose a severe security risk to those responsible for guarding them and to each other. Some of these individuals demonstrated how dangerous they are in uprisings at Mazar-e-Sharif and in Pakistan. The United States must take into account the need for security in establishing the conditions for detention at Guantanamo.

Background on Geneva Conventions. The Third Geneva Convention of 1949 is an international treaty designed to protect prisoners of war from inhumane treatment at the hands of their captors in conflicts covered by the Convention. It is among four treaties concluded in the wake of WWII to reduce the human suffering caused by war. These four treaties provide protections for four different classes of people: the military wounded and sick in land conflicts; the military wounded, sick and shipwrecked in conflicts at sea; military persons and civilians accompanying the armed forces in the field who are captured and qualify as prisoners of war; and civilian non-combatants who are interned or otherwise found in the hands of a party (e.g. in a military occupation) during an armed conflict.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 7:58 pm

MEMO 12

U.S. Department of Justice
Office of Legal Counsel

Office of the Assistant Attorney General
Washington, D.C. 20530

February 7, 2002

Memorandum for Alberto R. Gonzales
Counsel to the President

RE: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949

You have asked for our Office's views concerning the status of members of the Taliban militia under Article 4 of the 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War ("GPW"). Assuming the accuracy of various facts provided to us by the Department of Defense ("DoD"), we conclude that the President has reasonable factual grounds to determine that no members of the Taliban militia are entitled to prisoner of war ("POW") status under GPW. First, we explain that the Taliban militia cannot meet the requirements of Article 4(A)(2), because it fails to satisfy at least three of the four conditions of lawful combat articulated in Article 1 of the Annex to the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land ("Hague Convention"), which are expressly incorporated into Article 4(A)(2). Second, we note that neither Article 4(A)(I) nor Article 4(A)(3) apply to militia, and that the four conditions of lawful combat contained in the Hague Convention also govern Article 4(A)(I) and (3) determinations in any case. Finally, we explain why there is no need to convene a tribunal under Article 5 to determine the status of the Taliban detainees.

I

Article 4(A) of GPW defines the types of persons who, once they have fallen under the control of the enemy, are entitled to the legal status of POWs. The first three categories are the only ones relevant to the Taliban. Under Article 4(A)(1), individuals who are "members of the armed forces of a Party to the conflict," are entitled to POW status upon capture. Article 4(A)(3) includes as POWs members of "regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. "

Article 4(A)(2) concludes as POWs members of "other militias" and "volunteer corps," including "organized resistance movements" that belong to a Party to the conflict. In addition, members of militias and volunteer corps must "fulfill" four conditions: (a) "being commanded by a person responsible for his subordinates"; (b) "having a fixed distinctive sign recognizable at a distance"; (c) "carrying arms openly"; and (d) "conducting their operations in accordance with the laws and customs of war." Those four conditions reflect those required in the 1907 Hague Convention IV. See Commentary to the Geneva Convention Relative to the Treatment of Prisoners of War 49 (Red Cross 1952) ("Red Cross Commentary") ("during the 1949 Diplomatic conference ... there was unanimous agreement that the categories of persons to whom the Convention is applicable must be defined, in harmony with the Hague Regulations").

Should "any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy," GPW Article 5 requires that these individuals "enjoy the protections of" the Convention until a tribunal has determined their status.

Thus, in deciding whether members of the Taliban militia qualify for POW status, the President must determine whether they fall within any of these three categories. Under Article II of the Constitution, the President possesses the power to interpret treaties on behalf of the Nation. Memorandum for John Bellinger, III, Senior Associate Counsel and Legal Adviser to the National Security Council, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty (Nov. 15, 2001), This includes, of course, the power to apply treaties to the facts of a given situation. Thus, the President may interpret GPW, in light of the known facts concerning the operation of Taliban forces during the Afghanistan conflict, to find that all of the Taliban forces do not fall within the legal definition of POW. A presidential determination of this nature would eliminate any legal "doubt" as to the prisoners' status, as a matter of domestic law, and would therefore obviate the need for Article 5 tribunals.

We believe that, based on the facts provided by the Department of Defense, see Rear Admiral L.E. Jacoby, U.S. Navy, J-2, Information Paper, Subject; Background Information on Taliban Forces (Feb. 6, 2002), the President has reasonable grounds to conclude that the Taliban, as a whole, is not legally entitled to POW status under Articles 4(A)(1) through (3).

II

As the Taliban have described themselves as a militia, rather than the armed forces of Afghanistan, we begin with GPW's requirements for militia and volunteer corps under Article 4(A)(2). Based on the facts presented to us by DoD, we believe that the President has the factual basis on which to conclude that the Taliban militia, as a group, fails to meet three of the four GPW requirements, and hence are not legally entitled to POW status.

First, there is no organized command structure whereby members of the Taliban militia report to a military commander who takes responsibility for the actions of his subordinates. The Taliban lacks a permanent, centralized communications infrastructure. Periodically, individuals declared themselves to be "commanders" and organized groups of armed men, but these "commanders" were more akin to feudal lords than military officers. According to DoD, the Taliban militia functioned more as many different armed groups that fought for their own tribal, local, or personal interests.

Moreover, when the armed groups organized, the core of the organization was often al Qaeda, a multinational terrorist organization, whose existence was not in any way accountable to or dependent upon the sovereign state of Afghanistan. We have previously concluded, as a matter of law, that al Qaeda members are not covered by GPW. See Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes II, General Counsel of the Department of Defense, from Jay S. Bybee, Assistant Attorney General, Re: Applications of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 22, 2002). After October 7, when the United States armed forces began aerial bombing of al Qaeda and Taliban targets in Afghanistan, the distinction between Taliban and al Qaeda became even more blurred as al Qaeda assumed the lead in organizing the defense.

DoD's facts suggest that to the extent the Taliban militia was organized at all, it consisted of a loose array of individuals who had shifting loyalties among various Taliban and al Qaeda figures. According to DoD, the Taliban lacked the kind of organization characteristic of the military. The fact that at any given time during the conflict the Taliban were organized into some structured organization does not answer whether the Taliban leaders were responsible for their subordinates within the meaning of GPW. Armed men who can be recruited from other units, as DoD states, through defections and bribery are not subject to a commander who can discipline his troops and enforce the laws of war.

Second, there is no indication that the Taliban militia wore any distinctive uniform or other insignia that served as a "fixed distinctive sign recognizable at a distance." DoD has advised us that the Taliban wore the same clothes they wore to perform other daily functions, and hence they would have been indistinguishable from civilians. Some have alleged that members of the Taliban would wear black turbans, but apparently this was done by coincidence rather than design. Indeed, there is no indication that black turbans were systematically worn to serve as an identifying feature of the armed group.

Some of the Taliban militia carried a tribal flag. DoD has stated that there is no indication that any individual members of the Taliban wore a distinctive sign or insignia that would identify them if they were not carrying or otherwise immediately identified with a tribal flag. Moreover, DoD has not indicated that tribal flags marked only military, as opposed to civilian, groups.

Third, the Taliban militia carried arms openly. This fact, however, is of little significance because many people in Afghanistan carry arms openly. Although Taliban forces did not generally conceal their weapons, they also never attempted to distinguish themselves from other individuals through the arms they carried or the manner in which they carried them. Thus, the Taliban carried their arms openly, as GPW requires military groups to do, but this did not serve to distinguish the Taliban from the rest of the population. This fact reinforces the idea that the Taliban could neither be distinguished by their uniforms and insignia nor by the arms they carried from Afghani civilians.

Finally, there is no indication that the Taliban militia understood, considered themselves bound by, or indeed were even aware of, the Geneva Conventions or any other body of law. Indeed, it is fundamental that the Taliban followed their own version of Islamic law and regularly engaged in practices that flouted fundamental international legal principles. Taliban militia groups have made little attempt to distinguish between combatants and non-combatants when engaging in hostilities. They have killed for racial or religious purposes. Furthermore, DoD informs us of widespread reports of Taliban massacres of civilians, raping of women, pillaging of villages, and various other atrocities that plainly violate the laws of war.

Based on the above facts, apparently well known to all persons living in Afghanistan and joining the Taliban, we conclude that the President can find that the Taliban militia is categorically incapable of meeting the Hague conditions expressly spelled out in Article 4(A)(2) of GPW.

III

One might argue that the Taliban is not a "militia" under Article 4(A)(2), but instead constitutes the "armed forces" of Afghanistan. Neither Article 4(A)(1a), which grants POW status to members of the armed forces of a state party, nor Article 4(A)(3), which grants POW status to the armed forces of an unrecognized power, defines the term "armed forces." Unlike the definition of militia in Article 4(A)(2), these two other categories contain no conditions that these groups must fulfill to achieve POW status. Moreover, because GPW does not expressly incorporate Article 4(A)(2)'s four conditions into either Article 4(A)(1) or (3), some might question whether members of regular armed forces need to meet the Hague conditions in order to qualify for POW status under GPW.

We conclude, however, that the four basic conditions that apply to militias must also apply, at a minimum, to members of armed forces who would be legally entitled to POW status. In other words, an individual cannot be a POW, even if a member of an armed force, unless forces also are: (a) "commanded by a person responsible for his subordinates"; (b) "hav[e] a fixed distinctive sign recognizable at a distance"; (c) "carry [] arms openly"; and (d) "conduct [] their operations in accordance with the laws and customs of war." Thus, if the President has the factual basis to determine that Taliban prisoners are not entitled to POW status under Article 4(A)(2) as members of a militia, he therefore has the grounds to also find that they are not entitled to POW status as members of an armed force under either Article 4(A)(1) or Article 4(A)(3).

Article 4(A)'s use of the phrase "armed force," we believe, incorporated by reference the four conditions for militia, which originally derived from the Hague Convention IV. There was no need to list the four Hague conditions in Article 4(A)(1) because it was well understood under preexisting international law that all armed forces were already required to meet those conditions. As would have been understood by the GPW's drafters, use of the term "armed forces" incorporated the four criteria, repeated in the definition of militia, that were first used in the Hague Convention IV.

The view that the definition of an armed force includes the four criteria outlined in Hague Convention IV and repeated in GPW is amply supported by commentators. As explained in a recently issued Department of the Army pamphlet, the four Hague conditions are "arguably part and parcel of the definition of a regular armed force. It is unreasonable to believe that a member of a regular armed force could conduct military operations in civilian clothing, while a member of the militia or resistance groups cannot. Should a member of the regular armed forces do so, it is likely that he would lose his claim to immunity and be charged as a spy or as an illegal combatant." Major Geoffrey S. Corn & Major Michael L. Smidt," To Be Or Not To Be, That Is The Question"; Contemporary Military Operations and the Status of Captured Personnel, Department of the Army Pamphlet 27-50-319, 1999-June. Army Law. 1, 14 n. 127 (1999). One scholar has similarly concluded that "[u]nder the Hague Convention, a person is a member of the armed forces of a state only if he satisfies the [four enumerated] criteria." Gregory M. Travalio, Terrorism, International Law, and the Use of Military Force, 18 Wis. Int'l LJ. 145, 184 n.140 (2000). See also Michael N. Schmitt, Bellum Americanum; The U.S. View of Twenty-First Century War and Its Possible Implications For the Law of Armed Conflict, 19 Mich. J. Int'l L. 1051, 1078 (1998) ("[U]nder the Regulations annexed to Hague Convention IV, combatants were those who were members of the regular armed forces (or formal militia), were commanded by a person responsible for their conduct, wore a fixed distinctive emblem (or uniform), carried their weapons openly, and conducted operations in accordance with the law of war. The 1949 Geneva Convention on Prisoners of War extended this status to members of an organized resistance movement which otherwise complied with the Hague IV requirements.").

Further, it would be utterly illogical to read "armed forces" in Article 4(A)(1) and (3) as somehow relieving members of armed forces from the same POW requirements imposed on members of a militia. There is no evidence that any of the GPW's drafters or ratifiers believed that members of the regular armed forces ought to be governed by lower standards in their conduct of warfare than those applicable to militia and volunteer forces. Otherwise, a sovereign could evade the Hague requirements altogether simply by designating all combatants as members of the sovereign's regular armed forces. A sovereign, for example, could evade the status of spies as unlawful combatants simply by declaring all spies to be members of the regular armed forces, regardless of whether they wore uniforms or not. Further, it would make little sense to construe GPW to deny some members of militias or volunteer corps POW protection for failure to satisfy the Hague conditions (under Article 4(A)(2)), while conferring such status upon other members simply because they have become part of the regular armed forces of a party (under Article 4(A)(I).

This interpretation of "armed force" in GPW finds direct support in the International Committee of the Red Cross, the non-governmental organization primarily responsible for, and most closely associated with, the drafting and successful completion of GPW. After the Conventions were established, the Committee started work on a Commentary on all of the Geneva Conventions. In its discussion of Article 4(A)(3) of GPW, the ICRC construed both Article 4(A)(1) and (3) to require all regular armed forces to satisfy the four Hague IV (and Article 4(A)(2)) conditions:

[t]he expression "members of regular armed forces" denotes armed forces which differ from those referred to in subparagraph (1) of this paragraph in one respect only: the authority to which they profess allegiance is not recognized by the adversary as a Party to the conflict. These "regular armed forces" have all the material characteristics and all the attributes of armed forces in the sense of sub-paragraph (1): they wear uniform, they have an organized hierarchy and they know and respect the laws and customs of war. The delegates to the 1949 Diplomatic Conference were therefore fully justified in considering that there was no need to specify for such armed forces the requirements stated in subparagraph (2) (a), (b), (c) and (d).


Red Cross Commentary at 62-63 (emphasis added).

Numerous scholars have similarly interpreted GPW as applying the four conditions to Article 4(A)(I) and (3) as well as to Article 4(A)(2). As Professor Howard S. Levie, a leading expert on the laws of war and the Geneva Conventions in particular, has explained in his authoritative treatise:

This enumeration [of the four conditions] does not appear in subparagraph 1, dealing with the regular armed forces. This does not mean that mere membership in the regular armed forces will automatically entitle an individual who is captured to prisoner-of-war status if his activities prior to and at the time of capture have not met these requirements. The member of the regular armed forces wearing civilian clothes who is captured while in enemy territory engaged in an espionage or sabotage mission is entitled to no different treatment than that which would be received by a civilian captured under the same circumstances. Any other interpretation would be unrealistic as it would mean that the dangers inherent in serving as a spy or saboteur could be immunized merely by making the individual a member of the armed forces; and that members of the armed forces could act in a manner prohibited by other areas of the law of armed conflict and escape the penalties therefore, still being entitled to prisoner-of-war status.


Howard S. Levie, 59 International Law Studies: Prisoners of War in International Armed Conflict 36-37 (Naval War College 1977). Oxford Professor Ingrid Detter has similarly concluded that, under the 1949 Geneva Conventions,

to be a combatant, a person would have to be:

(a) commanded by a person responsible for his subordinates;

(b) having a fixed distinctive sign recognizable at a distance;

(c) carrying arms openly;

(d) conducting their operations in accordance with the laws and customs of war.

The same requirements as apply to irregular forces are presumably also valid for members of regular units. However, this is not clearly spelt out: there is no textual support for the idea that members of regular armed forces should wear uniform. On the other hand, there is ample evidence that this is a rule of law which has been applied to a number of situations to ascertain the status of a person. Any regular soldier who commits acts pertaining to belligerence in civilian clothes loses his privileges and is no longer a lawful combatant. 'Unlawful' combatants may thus be either members of the regular forces or members of resistance or guerilla movements who do not fulfil the conditions of lawful combatants.


Ingrid Detter, The Law of War 136-37 (Cambridge 2d ed. 2000). See also Christopher C. Burris, The Prisoner of War Status of PLO Fedayeen, 22 N.C.J. Int'l L. & Com. Reg. 943,987 n.308 (1997) ("I am using Article 4A(2)'s four criteria because the armed forces of the Palestinian Authority, over 30,000 men under arms organized into roughly ten or more separate paramilitary units, are more characteristic of militia units than the regular armed forces of a state. This is because these units are organized as police/security units, not exclusive combat units. See Graham Usher, Palestinian Authority, Israeli Rule, The Nation, Feb. 5, 1996, at 15, 16. Whether the Palestinian Authority's forces are considered militia or members of the armed forces, they still must fulfill Article 4A(2)'s four criteria."). [l]

Therefore, it is clear that the term "armed force" includes the four conditions first identified by Hague Convention IV and expressly applied by GPW to militia groups. In other words, in order to be entitled to POW status, a member of an armed force must (a) be "commanded by a person responsible for his subordinates"; (b) "hav[e] a fixed distinctive sign recognizable at a distance"; (c) "carry[] arms openly"; and (d) "conduct[] their operations in accordance with the laws and customs of war." We believe that the President, based on the facts supplied by DoD, has ample grounds upon which to find that members of the Taliban have failed to meet three of these four criteria, regardless of whether they are characterized as members of a "militia" or of an "armed force." The President, therefore, may determine that the Taliban, as a group, are not entitled to POW status under GPW.

IV

Under Article 5 of GPW, "[s]hould any doubt arise as to whether persons ... belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." As we understand it, DoD in the past has presumed prisoners to be entitled to POW status until a tribunal determines otherwise. The presumption and tribunal requirement are triggered, however, only if there is "any doubt" as to a prisoner's Article 4 status.

Under Article II of the Constitution, the President possesses the power to interpret treaties on behalf of the Nation. [2] We conclude, in light of the facts submitted to us by the Department of Defense and as discussed in Parts II and III of this memorandum, that the President could reasonably interpret GPW in such a manner that none of the Taliban forces fall within the legal definition of POWs as defined by Article 4. A presidential determination of this nature would eliminate any legal "doubt" as to the prisoners' status, as a matter of domestic law, and would therefore obviate the need for Article 5 tribunals.

This approach is also consistent with the terms of Article 5. As the International Committee of the Red Cross has explained, the "competent tribunal" requirement of Article 5 applies "to cases of doubt 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." Red Cross Commentary at 77 Tribunals are thus designed to determine whether a particular set of facts falls within one of the Article 4 categories; they are not intended to be used to resolve the proper interpretation of those categories. The President, in other words, may use his constitutional power to interpret treaties and apply them to the facts, to make the determination that the Taliban are unlawful combatants. This would remove any "doubt" concerning whether members of the Taliban are entitled to POW status.

We therefore conclude that there is no need to establish tribunals to determine POW status under Article 5.

Please let us know if we can provide further assistance.

Jay S. Bybee
Assistant Attorney General

_______________

Notes:

1. The only federal court we are aware of that has addressed this issue denied Article 4(A)(3) status to defendants because they could not satisfy the Hague conditions. In United States v. Buck, 690 F. Supp. 1291 (S.D.N. Y. 1988), the defendants claimed that they were entitled to POW status as military officers of the Republic of New Afrika, "a sovereign nation engaged in a war of liberation against the colonial forces of the United States government." Id. at 1293. That nation, it was contended, included "all people of African ancestry living in the United States." Id. at 1296. The court refused to extend POW status to the defendants. After determining that GPW did not apply at all due to the absence of an armed conflict as understood under Article 2, the court alternatively reasoned that the defendants could not satisfy any of the requirements of Article 4. See id. at 1298 (stating that, even if GPW applied, "it is entirely clear that these defendants would not fall within Article 4. upon which they initially relied"). The court first concluded that the defendants failed to meet the four Hague conditions expressly spelled out in Article 4(A)(2). The court then rejected POW status under Article 4(A)(3) "[f]or comparable reasons:"

Article 4(A)(2) requires that to qualify as prisoners of war, members of 'organized resistance movements' must fulfill the conditions of command by a person responsible for his subordinates; having a fixed distinctive sign recognizable at a distance; carrying arms openly; and conducting their operations in accordance with the laws and customs of war. The defendants at war and their associates cannot pretend to have fulfilled those conditions. For comparable reasons, Article 4(3)'s reference to members of 'regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power', also relied upon by defendants, does not apply to the circumstances of this case.


Id. (emphasis added). The court reached this conclusion even though the Hague conditions are not explicitly spelled out in Article 4(A)(3) nothing in the court's discussion suggests that it would have construed Article 4(A)(1) any differently.

2. See Memorandum for John Bellinger, III, Senior Associate Counsel and Legal Adviser to the National Security Council, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re; Authority of the President to Suspend Certain Provisions of the ABM Treaty (Nov. 15, 2001).
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Fri Oct 11, 2013 8:00 pm

PART 1 OF 2

MEMO 13

U.S. Department of Justice
Office of Legal Counsel

Office of the Assistant Attorney General
Washington, D.C. 20530

February 26, 2002

MEMORANDUM FOR WILLIAM J. HAYNES, II, GENERAL COUNSEL, DEPARTMENT OF DEFENSE

RE: Potential Legal Constraints Applicable to Interrogations of Persons Captured by U.S. Armed Forces in Afghanistan

You have asked a series of questions concerning legal constraints that may potentially apply to interrogation of persons captured in Afghanistan. Several of the issues you have raised relate to the applicability of the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966), to interrogations that may be conducted for various purposes (and by various personnel) ranging from obtaining intelligence for military operations and force protection to investigating crimes with a view to bringing subsequent prosecutions. As explained below, the Self-Incrimination Clause of the Fifth Amendment, as interpreted by the Supreme Court in Miranda, provides a trial right in a criminal prosecution before U.S. courts and governs the admissibility of statements made by the defendant in a custodial interrogation. The issue of the applicability of Miranda and restrictions it may place on conduct in interrogations, therefore, is best addressed in the context of the subsequent use that is made of statements obtained in custodial interrogation.

As we explain below, the Self-Incrimination Clause (and hence Miranda) does not apply in the context of a trial by military commission for violations of the laws of war. Accordingly, military commissions may admit statements made by a defendant in a custodial interrogation conducted without Miranda warnings. Therefore, to the extent that the only trial-related use of statements obtained in an interrogation will be before a military commission, there is no need to provide Miranda warnings.

As we understand it, the inquiry cannot end there because decisions have not yet been made concerning whether individuals being interrogated will be prosecuted and if so in what forum charges will be brought. The possibility still exists that some detainees may be prosecuted on criminal charges in Article III courts. Thus, you have asked how Article III courts may treat statements obtained in various scenarios without Miranda warnings and whether Miranda warnings should be given as a prudential matter to preserve the possibility of using statements in a criminal trial. Although unwarned statements made in the course of custodial interrogation by law enforcement officers are generally presumed to be compelled under Miranda, thereby rendering them inadmissible in criminal prosecutions before domestic courts, Miranda does not provide an iron-clad rule governing the voluntariness of all custodial statements. Miranda was designed to provide a constitutional rule of conduct to regulate the practices of law enforcement, and where its deterrent rationale does not apply, the Supreme Court has not extended it. Many of the interrogations in question here, which will be conducted for purposes of obtaining information for military operations and intelligence purposes, do not come within the rationale of Miranda. In addition, one of the specific exceptions to Miranda that the Supreme Court has crafted should extend, by a close analogy, to some of the interrogations contemplated here. We divide our discussion to address four categories of statements the United States may wish to admit into evidence in a subsequent criminal prosecution: (1) statements arising out of interrogation conducted by military and intelligence personnel to develop military operations and intelligence information; (2) statements obtained for criminal law enforcement purposes, whether by FBI interrogators or military personnel; (3) statements obtained in the course of a war crimes investigation by members of the criminal investigative services of one of the U.S. Armed Forces; and (4) statements obtained where the objectives of the questioning may be mixed, and the interrogation thus may not fall squarely into only one of the first three categories.

We conclude that the first category of statements is likely to be admissible in an Article III trial even if the statements are obtained without Miranda warnings. Statements from the second category are likely to be inadmissible if they arise from unwarned interrogation. There is a substantial risk that courts will apply Miranda to the third category as well. Finally, in the fourth category -- where the objectives of the questioning may be mixed -- results may be highly fact-dependent, but we believe that the subjective motivations of interrogators in pursuing particular questions should not alter the conclusion that an interrogation conducted for obtaining military and intelligence information should not require Miranda warnings.

We also explain that, even after statements are obtained in an unwarned custodial interrogation governed by Miranda, any subsequent, Mirandized confessions would be admissible in an Article III court, at least so long as any prior, unwarned interrogation did not involve coercion, or where there was an adequate break in events between any coercion and the subsequent, properly Mirandized interrogation.

Finally, in response to your other inquiries, we explain that the Sixth Amendment right to counsel does not apply prior to the initiation of adversary judicial criminal proceedings, and thus is not likely to apply to persons seized in Afghanistan and held overseas. In addition, the Citizens Protection Act, 28 U.S.C. § 530B (Supp. IV 1998), commonly known as the McDade Act -- which places restrictions on government attorneys' conduct with respect to interrogations -- does not apply to Defense Department lawyers.

I. The Self-Incrimination Clause Provides a Trial Right

As the Supreme Court has explained, the Self Incrimination Clause of the Fifth Amendment, on which the Miranda decision is premised, is a "trial right of criminal defendants." United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990). The clause provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V (emphasis added). "The Amendment has its roots in the Framers' belief that a system of justice in which the focus is on the extraction of proof of guilt from the defendant himself is often an adjunct to tyranny and may lead to the conviction of innocent persons. Thus, a violation of the constitutional guarantee occurs when one is 'compelled' by governmental coercion to bear witness against oneself in the criminal process." Duckworth v. Eagan, 492 U.S. 195, 209 (1989) (O'Connor, J., concurring).

The protection of the Self-Incrimination Clause is not limited, however, to statements compelled during the course of a court proceeding. Rather, it extends to prior statements subsequently introduced into evidence at a court proceeding. Beginning with Bram v. United States, 168 U.S. 532 (1897), the Supreme Court has held that the Clause bars the introduction in federal cases of involuntary confessions made during certain forms of custodial interrogation. See also Withrow v. Williams, 507 U.S. 680, 688 (1993). In Miranda, the Court held that the privilege against self-incrimination prohibits the admission into evidence of statements given by a suspect to the police during custodial interrogation unless a prior warning has been given advising the defendant of his rights. See 384 U.S. 436 (1966); see also Illinois v. Perkins, 496 U.S. 292, 296 (1990); Duckworth, 492 U.S. at 201 (in Miranda, "the Court established certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation"). The Court in Miranda "presumed that interrogation in certain custodial circumstances is inherently coercive and ... that statements made under those circumstances are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forego those rights." New York v. Quarles, 467 U.S. 649, 654 (1984) (footnote omitted). In the years since first announcing the Miranda presumption, the Supreme Court has "frequently reaffirmed the central principle established by that case: if the police take a suspect into custody and then ask him questions without informing him of the rights enumerated [in Miranda], his responses cannot be introduced into evidence to establish his guilt." Berkemer v. McCarthy, 468 U.S. 420, 429 (1984).

It bears repeating that the Miranda presumption is premised on the "trial right of criminal defendants" provided by the Self- Incrimination Clause. Verdugo-Urquidez, 494 U.S. at 264 (emphasis added). The "sole concern" of that Clause, the Supreme Court has explained, is "insur[ing] that the testimony cannot lead to the infliction of criminal penalties on the witness." Kastigar v. United States, 406 U.S. 441, 453 ( 1972). Thus, "[a]lthough conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial." Verdugo-Urquidez, 494 U.S. at 264 (emphasis added). [1] Thus, neither the Self-Incrimination Clause nor Miranda established a free-floating code of conduct regulating the manner in which agents of the federal government may conduct interrogations in any and all circumstances. In other words, neither the Self-Incrimination Clause nor Miranda prohibits an unwarned custodial interrogation as a constitutional violation in itself. Accordingly, it confuses analysis somewhat to speak in terms of an FBI or military interrogator "violating" Miranda or the Fifth Amendment simply by conducting an unwarned custodial interrogation. Whether or not Miranda applies to a given circumstance or requires warnings can only be assessed in view of the use the government makes of statements obtained in the interrogation. If the government never uses the statement in a criminal prosecution where the Self-Incrimination Clause applies, no question of a Miranda "violation" can ever arise. See Quarles, 467 U.S. at 686 (Marshall, J., dissenting) ("[T]he police are free to interrogate suspects without advising them of their constitutional rights. ... All the Fifth Amendment forbids is the introduction of coerced statements at trial.").

In addition, in addressing the scope of proper application of the Miranda warnings, it is critical to bear in mind that the Supreme Court has made clear both in Miranda and in subsequent decisions that the purpose of the Miranda rule is to provide a rule of conduct for law enforcement officers to prevent practices that might lead to defendants making involuntary statements. As the Court put it in Miranda, its goal was to set out "concrete constitutional guidelines for law enforcement agencies and courts to follow." 384 U.S. at 442. The Court has not treated Miranda as establishing an immutable rule that any statement made in any unwarned, custodial interrogation is necessarily involuntary under the Fifth Amendment and cannot be admitted at trial. Rather, in circumstances where the purpose of regulating the conduct of law enforcement officers would not be served, or is outweighed by other considerations, the Court has consistently declined to require that the Miranda procedures be followed in order for a custodial statement to be deemed admissible. For example, in New York v. Quarles, the Court held that when the police arrest a suspect under circumstances presenting an imminent danger to the public safety, they may, without informing him of his Miranda rights, ask questions necessary to elicit information that would neutralize the threat. The Court concluded that in such circumstances, the need to ensure public safety outweighed any benefit that might be gained from the ordinary rule of requiring Miranda warnings. 467 U.S. at 657. Similarly, in Harris v. New York, 401 U.S. 222 (1971), the Court sanctioned the use of statements obtained without Miranda warnings for purposes of impeaching a defendant upon cross-examination. Again, the Court explained that the goal of shaping the conduct of law enforcement officers did not require extending Miranda to exclude the use of unwarned statements for purposes of cross examination: "Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief." Id. at 225.

As explained in more detail below, moreover, the Court's decisions limiting Miranda to circumstances where the purposes of Miranda's judicially crafted code of conduct would be served have not been undermined by the recent pronouncement that Miranda states a constitutional requirement. See Dickerson v. United States, 530 U.S. 428 (2000). The Dickerson Court did not suggest that Miranda warnings are an absolute prerequisite for any custodial statement to be voluntary under the Fifth Amendment and that any statement obtained without the warnings is necessarily inadmissible. Rather, Dickerson expressly endorsed past decisions such as Quarles and Harris that made exceptions to the requirements of Miranda warnings and explained that they simply "illustrate the principle ... that no constitutional rule is immutable." Id. at 441.

II. Trials by Military Commissions

The Self-Incrimination Clause does not apply to trials by military commissions for violations of the laws of war. The Clause is limited by its terms to "any criminal case," U.S. Const., Amend. V, and the Supreme Court has long understood the rights guaranteed by the amendment to be limited to the scope they had at common law in criminal prosecutions at the time of the founding. See, e.g., Ex parte Quirin, 317 U .S. 1, 39-40 (1942); Ex parte Wilson, 114 U.S. 417, 423 (1885) ("The Fifth Amendment, declaring in what cases a grand jury should be necessary, ... in effect, affirm[ed] the rule of the common law upon the same subject."). In Quirin, the Court concluded that a trial by military commission for violations of the laws of war was not a criminal prosecution that required a grand jury indictment at common law and thus expressly held that the Fifth Amendment's requirement of indictment by grand jury does not apply to military commissions. See Quirin, 317 U.S. at 40. See also Application of Yamashita, 327 U.S. 1 (1946). Under the same reasoning, the Self-Incrimination Clause also does not constrain the evidence that military commissions may receive. Trials by military commissions are not "criminal case[s]" within the terms of the Amendment. Rather, they are entirely creatures of the President's authority as Commander-in-Chief under Article II and are part and parcel of the conduct of a military campaign. [2] As a result, they are not constrained by the strictures placed on "criminal case[s]" by the Self-Incrimination Clause (or other provisions in the Bill of Rights). As the Quirin Court stated broadly (albeit in dicta), "the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission." 317 U.S. at 45. Cf Miller v. United Slates, 78 U.S. (11 Wall.) 268, 305 (1870) ("the war powers of the government ... are not affected by the restrictions imposed by the Fifth and Sixth Amendments").

Accordingly, incriminating statements may be admitted in proceedings before military commissions even if the interrogating officers do not abide by the requirements of Miranda. Cf United States v. Bin Laden, 132 F. Supp. 2d 168, 181, 182 n.10 (S.D.N.Y. 2001) (distinguishing, for purposes of application of the Fifth Amendment, "proceeding[s]" against "'subject[s] of a foreign state at war with the United States'" and "operated pursuant to a temporary military commission specially constituted under the authority of the Joint Chiefs of Staff" from criminal trials before Article III courts (quoting Johnson v. Eisentrager, 339 U.S. 763, 769) n.2 (1950)); Id. at 189 ("Miranda only prevents an unwarned or involuntary statement from being used as evidence in a domestic criminal trial"). [3]

Moreover, with respect to trials of foreign nationals conducted outside U.S. territory, our conclusion is additionally supported by the well-established fact that the Fifth Amendment does not confer rights upon aliens outside the sovereign territory of the United States. See Verdugo-Urquidez, 494 U.S. at 269 ("we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States"); Johnson v. Eisentrager, 339 U.S. 763, 783 (1950) (finding "no authority whatever for holding that the Fifth Amendment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offenses"); cf United States v. Curtiss Wright Export Carp. , 299 U.S. 304, 318 (1936) ("Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens. ..."). Accordingly, U.S. military tribunals convened abroad are not required to grant aliens rights under the Self-Incrimination Clause.

III. Criminal Trials Before Article III Courts

Although the Self-Incrimination Clause of the Fifth Amendment does not confer rights upon aliens outside the sovereign territory of the United States, no issue of extraterritoriality would be involved if aliens were brought into the United States for trial in an Article III court. As the Supreme Court has explained, "[t]he privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants." Verdugo-Urquidez, 494 U.S. at 264. Any violation of the right would occur at the trial conducted here in the United States when statements made by the accused were offered into evidence.

The Supreme Court has never squarely held that the Self-Incrimination Clause applies in the criminal trial of an alien whose only connections to the United States consist of an attack on the country followed by his arrest overseas and transportation to the United States to stand trial. The United States, moreover, has recently argued in at least one case that the Self-Incrimination Clause does not apply in such a trial. See Bin Laden, 132 F. Supp. 2d at 181 & n.8. [4]

As a matter of original interpretation of the Fifth Amendment, there may be sound reasons for concluding that the Self- Incrimination Clause does not apply to a trial of an alien whose only connections to this country consist of the commission of a federal crime (perhaps taking place entirely abroad) and involuntary transportation to this country to stand trial. The Clause states: "nor shall any person ... be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V. In extending this right to "any person," the Framers may have intended to encompass only a limited class of "person[s]" who could claim the protections of the Constitution. Some support for this interpretation can be found in the analysis the Supreme Court has applied in holding that the Fifth Amendment does not apply extraterritorially. In Johnson v. Eisentrager, the Court made clear that the terms of the amendment cannot be read literally to confer rights on "any person" -- a reading that would include aliens overseas who had no connection whatsoever to the United States. As Justice Kennedy summarized in Verdugo-Urquidez, "the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens, who are beyond our territory." 494 U.S. at 275 (Kennedy, J., concurring). In describing the limitations on the class of "person[s]" to whom the Fifth Amendment extends, the Court explained that the alien "has been accorded a generous and ascending scale of rights as he increases his identity with our society." Eisentrager, 339 U.S. at 770. Arguably, an alien whose only connection with the United States is an attack upon the country (or its citizens) followed by his arrest overseas and transportation to the United States to stand trial has not established any sort of connection with the country that warrants allowing him the protections of the Fifth Amendment.

Nevertheless, whatever the merits of such an interpretation as an original matter, we understand that your inquiry concerns the likely treatment of the Self-Incrimination Clause given the current state of the Supreme Court's jurisprudence. Approaching the question on that basis, we believe that the Supreme Court's analysis in prior decisions points to the conclusion that the Self-Incrimination Clause would likely be applied in a criminal trial of an alien in the United States even if the alien had no previous connection to this country. That is because the Court's decisions generally reflect a view that any criminal prosecution within the territorial boundaries of the United States is constrained by the requirements of the Fifth Amendment. Even in Eisentrager, for example, the Court's analysis centered repeatedly on the absence of the aliens in question from the territorial jurisdiction of the United States. See 339 U.S. at 769-78; Id. at 771 ("[I]n extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within the territorial jurisdiction that gave the Judiciary power to act.") (emphasis added).

More importantly, in Wong Wing v. United States, 163 U.S. 228 (1896), the Court long ago concluded that the Fifth Amendment rights to grand jury indictment and due process applied to aliens subject to criminal punishment within the United States, see id. at 238. The Court's textual analysis of the Amendment focused on its broad terms guaranteeing that no "person" should be subject to certain treatments and concluded that it should have broad application covering all persons. Thus, the Court first noted that the Fourteenth Amendment's Due Process and Equal Protection Clauses, like the Fifth Amendment, speak in terms of rights guaranteed to "any person." See id. The Court explained that "[t]hese provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or nationality." Id. It concluded that "[a]pplying this reasoning to the Fifth and Sixth Amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by those amendments." Id.

On its face, the analysis in Wong Wing was not limited to aliens who had established particular connections with this country. To the contrary, the Court framed its reasoning in terms applicable to aliens who had established no ties to the country because they had never effected a lawful entry into the United States. It thus contrasted Congress's power to "forbid aliens or classes of aliens from" entering the country with its power to subject "such aliens to infamous punishment at hard labor," which could be done only through "a judicial trial to establish the guilt of the accused." Id. at 237. Similarly, in one of the decisions marking the most restrictive view of the extraterritorial application of the Constitution -- denying its application even to citizens abroad -- the Court has stated in dicta that the constitutional guarantees in the Fifth and Sixth Amendments "apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere." Ross v. McIntyre, 140 U.S. 453, 464 (1891) (emphasis added). Taking a similar territorial approach, the Court has held that the Fifth Amendment's Due Process Clause applies to aliens even if their "presence in this country is unlawful, involuntary, or transitory." Matthews v. Diaz, 426 U.S. 67, 77 (1976). [5]

To be sure, in Verdugo-Urquidez the Court stated that Wong Wing addressed "resident aliens" and thus the decision cannot avail "an alien who has had no previous significant voluntary connection with the United States." 494 U.S. at 271. See also id. ("These cases, however [including Wong Wing], establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country."). Despite that characterization, however, as noted above the analysis in Wong Wing did not distinguish between resident aliens and other aliens, and in subsequent cases since Verdugo-Urquidez the Court has described the decision in broader terms -- terms consistent with the view that the Self-Incrimination Clause would apply to criminal trials of any aliens in the United States. See Zadvydas v. Davis, 121 S. Ct. 2491, 2501 (Wong Wing held that "all persons within the territory of the United States are entitled to the protection" of the Fifth Amendment, noting that decisions limiting application of constitutional rights to aliens "rested upon a basic territorial distinction"); see also id. at 2506 (Scalia, J., joined by Thomas, J., dissenting) (suggesting that Wong Wing draws no distinction between "aliens arrested and detained at the border" before entry and those already within the country).

The analysis in Verdugo-Urquidez itself, moreover, on balance tends to suggest that the present Court would be inclined to reach the same conclusion. Verdugo-Urquidez involved the application of the Fourth Amendment to searches and seizures conducted by U.S. law enforcement personnel on an alien's property outside the United States. In approaching that issue, the Court framed its entire analysis by first distinguishing the Fifth Amendment and explaining that the Fourth Amendment "operates in a different manner than the Fifth Amendment, which is not at issue in this case." 494 U.S. at 264. The Fifth Amendment, the Court emphasized, provides a "fundamental trial right," rather than directly regulating the conduct of police prior to trial. Id. In addition, the Court based its analysis largely on the particular terms of the Fourth Amendment, which limit the right it describes to "the people." Id. The Court emphasized that this limitation "contrasts with the words 'person' and 'accused' used in the Fifth and Sixth Amendments regulating procedure in criminal cases," thus suggesting that the procedure in criminal cases (within the United States) would be the same for all persons. Id. at 265-66. See also id. at 265 (the Fourth Amendment "by contrast with the Fifth and Sixth Amendments, extends its reach only to 'the people"') (emphasis added); id. at 269 (noting that the Fifth Amendment "speaks in the relatively universal term of 'person"'). Justice Kennedy, moreover, who provided the fifth vote for the majority, also wrote separately and noted that, where the "United States is prosecuting a foreign national in a court established under Article III, ... all of the trial proceedings are governed by the Constitution." Id. at 278 (Kennedy, J., concurring). Given the Court's explicit acknowledgment of the textual differences between the Fourth Amendment and the Fifth Amendment, we think that Verdugo-Urquidez does not provide strong support for the claim that the Fifth Amendment does not apply to the trial in the United States of an alien who has no previous connections with this country.

Finally, it bears noting that the Court has consistently described the Self-Incrimination Clause as a fundamental trial right that is critical for protecting the integrity of the trial process. At times the Court has suggested that the Clause plays a critical role in ensuring the reliability of confessions and thus protects the truth-finding function of a trial. See, e.g., Application of Gault , 387 U.S. 1, 47 ( 1967) ("The privilege against self-incrimination is, of course, related to the question of the safeguards necessary to assure that admissions or confessions are reasonably trustworthy, that they are not the mere fruits of fear or coercion, but are reliable expressions of the truth."); Molloy v. Hogan, 378 U.S. 1, 7-8 (1964) ("[T]he American system of criminal prosecution is accusatorial, not inquisitorial, and ... the Fifth Amendment privilege is its essential mainstay. Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.") (citation omitted). At other points the Court has stressed that the privilege is critical "to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution 'shoulder the entire load."' Tehan v. United States ex rel. Shott, 382 U.S. 406, 415 (1966); see also id. at 416 ("[T]he Fifth Amendment's privilege against self-incrimination is not an adjunct to the ascertainment of truth."). Under either rationale, the protection provided by the Clause is treated as critical for the integrity of the trial process itself. It thus seems likely that the Court would conclude that it applies in any criminal case, regardless of the status of the defendant as an alien.

Lower courts that have addressed the issue (albeit only in dicta in some cases), have concluded that the Self-Incrimination Clause does apply to trials of aliens, even if they have not established any connection with this country. [6]

The conclusion that the Self-Incrimination Clause will likely apply in any future trial, however, does not in itself answer the question how the decision in Miranda will apply. Under Miranda, evidence developed from custodial interrogation is not inflexibly presumed to be compelled, and thereby rendered inadmissible, simply because interrogators have neglected to provide the warnings outlined in Miranda. Not all custodial interrogation is subject to Miranda's requirements. We address below four kinds of statements that the United States might wish to admit into evidence in an Article III trial: (1) statements arising out of interrogations intended to develop military operations and intelligence information; (2) statements obtained for criminal law enforcement purposes, whether by FBI interrogators or military personnel; (3) statements obtained in the course of a war crimes investigation by members of the criminal investigative services of one of the U.S. Armed Forces; and (4) statements obtained in an interrogation that may have mixed objectives and does not fall purely into only one of the previous categories. We conclude that the first category of evidence is likely to be admissible in an Article III trial even if Miranda warnings are not given. The second category of evidence is likely to be inadmissible unless the interrogators comply with Miranda. There is a substantial risk that courts will apply Miranda to the third category as well. Finally, for interrogations in the fourth category, results will likely turn on a highly fact-dependent inquiry.

A. Questioning by military and intelligence personnel for military operations and intelligence information

We conclude that statements obtained in the course of interrogation by military and intelligence personnel for purposes of gathering intelligence and military operations information need not satisfy Miranda standards in order to be admitted at an Article III criminal trial. Our conclusion is based on two separate, independent grounds. First, although Miranda establishes a presumption that statements made during unwarned custodial interrogation are involuntary, and thus inadmissible at trial under the Self-Incrimination Clause, Miranda and its progeny make clear that this presumption of involuntariness is not immutable or universally applicable. In particular, the Court has treated Miranda as a rule designed to guide the conduct of officials in law enforcement agencies and has repeatedly limited the reach of Miranda's warning requirements based on the need for regulating the conduct of law enforcement officers. The fundamental objective of regulating that conduct has no application whatsoever in the context of interrogations of battlefield detainees for purposes of obtaining intelligence and military operations information. Under the reasoning that the Supreme Court has used to define the limits of Miranda, we conclude that interrogators engaged in such questioning need not give Miranda warnings to ensure that voluntary statements will be admissible in a later criminal trial. Second, we conclude that the established public-safety exception to Miranda should extend by analogy to interrogations of battlefield detainees for purposes of gathering intelligence and military operations information.

I. Miranda's deterrence rationale does not apply

As previously explained, the Supreme Court crafted the requirements of Miranda as a means for implementing the protections of the Self Incrimination Clause. In Miranda, the Court held that, because the environment in a custodial police interrogation "contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely," 384 U.S. at 467, confessions made during the course of such custodial interrogation are presumptively involuntary and, unless certain warnings are given to defuse the coerciveness of the environment, must be excluded at trial under the Self-Incrimination Clause. See generally Dickerson v. United States, 530 U.S. 428 (2000). If Miranda stated an immutable presumption concerning the voluntariness of custodial statements, it might well mean that in any custodial interrogation -- even an interrogation of a battlefield detainee undertaken to obtain information for military operations -- Miranda warnings would have to be given for any statements to be admissible at a later trial. Interrogation in the custody of the armed forces after capture on the battlefield might be considered at least as inherently coercive a scenario as questioning in custody at a police station. And if Miranda provided an absolute rule concerning the voluntariness of statements in such a custodial interrogation, it might be read to mean that statements obtained in a military interrogation could not be used in a subsequent criminal trial if the requisite warnings had not been given.

The Supreme Court, however, has never taken such an approach to Miranda. To the contrary, the Court has emphasized that the presumption crafted in Miranda and the warnings outlined there were intended to establish guidelines for the conduct of law enforcement officers pursuing criminal investigations. Although the purpose of the guidelines was to ensure the voluntariness of any statements obtained from custodial interrogations, the standards of conduct were not intended to set down an inflexible rule for evaluating voluntariness under the Fifth Amendment. The focus of Miranda, in other words, is not establishing a universally applicable (and constitutionally mandated) standard for measuring the voluntariness of statements made in any custodial situation. Rather, it is designed to provide rules of conduct specifically for the guidance of U.S. law enforcement officials -- or, as the Court put it, "concrete constitutional guidelines for law enforcement agencies and courts to follow." Miranda, 384 U.S. at 442. [7] See also Dickerson, 530 U.S. at 434-35 (quoting same language from Miranda). Thus, the Supreme Court has repeatedly emphasized that the requirements of Miranda are designed to regulate the conduct of custodial interrogations arising out of criminal law enforcement investigations. The Miranda Court focused its concern on "police" interrogation and practices, and in later cases the Court has emphasized that the rationale behind Miranda is providing a "deterrent effect on proscribed police conduct." Harris, 401 U.S. at 225. Similarly, in Thompson v. Keohane, 516 U.S. 99 (1995), the Court described Miranda in terms of the requirements it imposed on "law enforcement officers." Id. at 107. See also Quarles, 467 U.S. at 656 ("The Miranda decision was based in large part on this Court's view that the warnings which it required police to give to suspects in custody would reduce the likelihood that the suspects would fall victim to constitutionally impermissible practices of police interrogation. ..."); Rhode Island v. Innis, 446 U.S. 291, 301 (1980) ("the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices"); Fare v. Michael C. , 442 U .S. 707, 718 ( 1979) ("Miranda's holding has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation. ..."). When the Court has applied Miranda to interrogation by government officials other than law enforcement agents, it has done so based upon some finding of a nexus between the interrogation in question and criminal law enforcement. See, e.g., Mathis v. United States, 391 U.S. 1, 4 (1968) (applying Miranda to interview conducted by Internal Revenue Service agents with person in state custody largely upon basis that "tax investigations frequently lead to criminal prosecutions"); Estelle v. Smith, 451 U.S. 454, 466-69 (1981) (applying Miranda to court-ordered psychiatric examinations of criminal defendants); United States v. Mata-Abundiz, 717 F.2d 1277, 1279-80 (9th Cir. 1983) (applying Miranda to INS questioning of criminal suspect); United States v. Gupta, 183 F.3d 615, 617-18 (7th Cir. 1999) ("Miranda ... is a mismatch for the immigration process, at least at the outset. ... Much more difficult is the question when ... the criminal investigation is far enough advanced [to trigger Miranda]."); see also 2 Wayne R. LaFave et al., Criminal Procedure § 6.10(c), at 622 (2d ed. 1999) ("[T]he courts have generally held that government agents not primarily charged with enforcement of the criminal law are under no obligation to comply with Miranda.").

Where the rationale of shaping the conduct of law enforcement officers does not apply or is outweighed by other considerations, the Court has consistently concluded that Miranda's requirements do not apply and that statements obtained during custodial interrogation without Miranda warnings may still be introduced into evidence consistent with the Fifth Amendment's prohibition on compelled testimony. Thus, in New York v. Quarles, the Court concluded that where police need to obtain information critical for ensuring public safety, they need not provide Miranda warnings before initiating custodial questioning. 467 U.S. at 657-58. And in Harris v. New York, the Court concluded that Miranda's purpose of providing a deterrent to regulate police conduct would be served sufficiently if un-Mirandized statements were excluded solely from the prosecution's case in chief, but were permitted for impeachment purposes on cross- examination. See Harris, 401 U.S. at 225 ("Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief."). As the Harris Court explained, the benefits in terms of guiding conduct that would be derived from precluding the use of an unwarned statement upon cross-examination were too speculative and attenuated to outweigh the clear benefits that admitting the statements would provide in aiding "the jury in assessing [the defendant's] credibility." Id. The Court has thus demonstrated that the deterrent rationale behind Miranda limits the range of situations in which the case will be applied.

Similarly, drawing on the Supreme Court's analysis in Miranda and its progeny, lower courts have identified other situations where Miranda's goal of shaping police conduct has no application and where Miranda's warning requirements therefore do not apply. For example, federal courts have repeatedly admitted unwarned custodial statements obtained by foreign police officers. [8] [9] If Miranda provided an immutable rule that an unwarned statement made in custodial interrogation is necessarily involuntary, such statements would be absolutely barred from use at trial under the Self-Incrimination Clause, regardless of whether they were obtained by foreign police or anyone else. Such statements are admitted into evidence, however, because the rationale behind Miranda -- shaping police conduct -- does not apply to foreign police. Foreign police, of course, are not subject to the requirements of the federal Constitution, and there is thus no basis for attempting to force them to comply with Miranda's guidelines. Moreover, excluding statements obtained by foreign police without Miranda warnings would have no practical deterrent effect, because ensuring admissibility of evidence in U.S. courts is not a relevant incentive for police in another nation. As one court of appeals has explained,

the United States Constitution cannot compel such specific, affirmative action by foreign sovereigns, so the policy of deterring so-called 'third degree' police tactics, which underlies the Miranda exclusionary rule, is inapposite to this case. Here the statements were not coerced, as revealed by testimony at the original trial which we have scrutinized. The evidence was therefore admissible.


Kilday v. United States, 481 F.2d 655 (5th Cir. 1973) (citations omitted). [10]

The Supreme Court's recent declaration that Miranda is a "constitutional decision," Dickerson, 530 U.S. at 438, does not alter the above analysis. It might be argued that after Dickerson, Miranda must be understood as a "constitutional rule" establishing a fixed test for determining whether statements are "compelled" for purposes of the Fifth Amendment. Cf: id. at 455-56 (Scalia, J., dissenting) (suggesting that this must be the implication of the Court's decision). That gloss on Dickerson might be used to cast doubt on the exceptions to Miranda noted above based on the theory that the exceptions are rooted in the mistaken idea that Miranda sets a prophylactic rule that is not constitutionally required. In Quarles, for example, the Court based its analysis in part on the statement that "[t]he prophylactic Miranda warnings therefore are 'not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.'" 467 U.S. at 654. [11] Now that the Court has made clear that Miranda is a constitutional requirement in its own right, the argument would go, practical considerations such as deterrence cannot limit the application of Miranda's rules.

That approach, however, distorts Dickerson. In establishing Miranda as a constitutional rule, Dickerson merely held that the body of law established by Miranda and its progeny set constitutional requirements determined by the Court that could not be disturbed by an act of Congress. [12] Nowhere did the Dickerson Court suggest that it was radically reforming the rationale behind Miranda and later cases to make Miranda an inflexible constitutional determination that all unwarned custodial statements are necessarily "compelled" testimony under the Fifth Amendment. Instead, the Court treated Miranda, as the language from the original decision itself suggests, as "constitutional guidelines for law enforcement agencies" crafted by the Court. 384 U.S. at 442. Because they were defined by the Court as constitutional requirements, Congress could not modify them, but in the Court's view, that did not mean that courts could not define limits on Miranda based on the same balancing of interests outlined in the cases above (and employed by courts in other constitutional contexts). In keeping with that understanding, the Court never cast doubt on the various limitations and exceptions to Miranda already embedded in the Court's jurisprudence. To the contrary, Dickerson explicitly embraced the Court's existing decisions. Addressing the decisions in Quarles and Harris specifically, the Court stated that they "illustrate the principle -- not that Miranda is not a constitutional rule -- but that no constitutional rule is immutable." 530 U.S. at 441. The Court concluded that "the sort of modifications represented by these cases are as much a normal part of constitutional law as the original decision," id. (emphasis added), and held that Miranda "and its progeny in this Court" continue to "govern the admissibility of statements made during custodial interrogation in both state and federal courts" id. at 432 (emphasis added). Thus, as one court of appeals has observed, "the Dickerson majority expressly incorporated existing decisions, like Quarles, into the 'constitutional' right to a Miranda warning it elucidated in Dickerson." United States v. Talley, 275 F.3d 560, 564-65 (6th Cir. 2001).

There is certainly nothing in Dickerson that expands Miranda to require warnings in all forms of custodial interrogation. In fact, the Dickerson Court repeatedly recognized that the core function of Miranda was to address "the advent of modern custodial police interrogation," which "brought with it an increased concern about confessions obtained by coercion." 530 U.S. at 434-35 (emphasis added). See also id. at 443 ("Miranda has become embedded in routine police practice") (emphasis added); id. (discussing the "impact of the Miranda rule on legitimate law enforcement") (emphasis added). Nowhere in the opinion did the Court indicate any inclination to depart from past practice and unhinge the scope of Miranda from the rationale of regulating U.S. law enforcement officers that has guided the Court in the past.

The same logic that has underpinned the exceptions to Miranda outlined above demonstrates that Miranda warnings have no application in interrogations conducted by military and intelligence officers for purposes of gathering intelligence and military operations information from a battlefield detainee. Nothing in the Court's explanation of Miranda and its progeny applies to, or even addresses, the interrogation of enemy prisoners in a military theater of operations for the purpose of obtaining military and intelligence information. Applying Miranda's requirements in this context would do nothing to advance the goal that the Supreme Court has repeatedly treated as a guiding factor in determining the scope of Miranda -- namely, regulating the conduct of law enforcement officials in criminal investigations. Indeed, where an interrogation is conducted for obtaining military operations and intelligence information, Miranda's concerns for regulating questioning in the law enforcement context are irrelevant. The goal in such a scenario is not to carefully balance the rights of a criminal defendant under our constitutional system against the needs of law enforcement, but rather to ensure that our troops and intelligence officers can extract as much useful information as possible for protecting our troops and securing our military objectives. The Court's stated concerns for providing "constitutional guidelines for law enforcement agencies and courts," in other words, are a mismatch for this context. Miranda, 384 U .S. at 442.

The conclusion that the purposes of Miranda would not be served by applying the decision to interrogations conducted for military operations and intelligence information is bolstered by the fact that restrictions imposed by the Fourth, Fifth, and Sixth Amendments generally do not apply to the actions of our armed forces in an armed conflict. This Office recently opined that the Fourth Amendment does not apply to United States military actions, both within the United States and abroad, taken to combat terrorists in the wake of the September 11 attacks. See Memorandum for Alberto R. Gonzales, Counsel to the President & William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General & Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force To Combat Terrorist Activities Within the United States. at 22-34 (act. 23, 2001). As we explained, in reversing a lower court decision to apply the Fourth Amendment extraterritorially to non-U.S. citizens, the Supreme Court pointed out the untenable consequences of applying the Fourth Amendment to United States military operations abroad. See Verdugo-Urquidez, 494 U.S. at 273-74. Such a rule would result in applying the Fourth Amendment "also to other foreign policy operations which might result in 'searches or seizures'" -- a result that "would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries." Id. at 273. The Court explained:

The United States frequently employs Armed Forces outside this country -- over 200 times in our history -- for the protection of American citizens or national security. ... Application of the Fourth Amendment to those circumstances could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest ... [and] plunge [the political branches] into a sea of uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad.


Id. at 273-74 (citations omitted). The Court further noted that in 1798 during the Quasi War with France, Congress authorized President Adams to order the seizure of French vessels on the high seas) and "it was never suggested that the Fourth Amendment restrained the authority of Congress or of United States agents to conduct operations such as this." Id. at 268. Thus, within the first decade after the Constitution's ratification, the Fourth Amendment was understood not to restrict military operations against the Nation's enemies.

Likewise, the Just Compensation Clause of the Fifth Amendment does not attach to actions taken as a matter of military necessity by United States Armed Forces in the field, even when those actions entail the destruction of property owned by United States citizens (and, indeed, even when the destruction occurs within the territory of the United States). The general rule is that "the government cannot be charged for injuries to, or destruction of, private property caused by military operations of armies in the field." United States v. Pacific R.R., 120 U.S. 227, 239 (1887).

We believe that, as in the above cases, "significant and deleterious consequences," Verdugo-Urquidez, 494 U.S. at 273, would result from applying Miranda to the interrogation of a prisoner who was apparently a member of a transnational terrorist group, who was captured while engaged in military operations against the United States and its allies, and who was being questioned for the purpose of gathering intelligence of military value to the United States in the conflict. Interrogation of enemy prisoners is a practical necessity for waging war effectively. Prisoners are always interrogated for information concerning their unit, enemy troop positions and strength, and other information that may be relevant to military operations in the area, to force protection, and (particularly in this conflict) to broader national security and intelligence objectives. Such interrogation serves the specifically military and intelligence objectives of the armed forces in the field of combat and the interests of national security. It is not, and is not intended to be, a part of the law enforcement apparatus of the United States. Subjecting the conduct of all such interrogations to the standards outlined in Miranda based on the possibility that some statements from an interrogation might later be used in a criminal trial would make no sense.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 2 OF 2 (MEMO 13 CONT'D.)

To be sure, there is a distinction between applying the Fourth Amendment and other constitutional constraints to the conduct of military operations and "applying" Miranda to military interrogations. The Fourth Amendment, if applicable, would impose mandatory requirements on the conduct of the armed forces in the field. It would directly regulate the ways in which operations could be conducted and failures to comply would, in themselves, be violations of the Constitution. If Miranda applied, however, an unwarned custodial interrogation would not in itself constitute any constitutional violation. [13] Thus, in one sense, "applying" Miranda would not prohibit the government from conducting interrogations as it chooses; rather, it would simply put the government to the choice of following Miranda or foregoing the use of any statements in later criminal trials.

But that distinction does not make a difference for the analysis here. The entire purpose behind Miranda as a constitutional rule is to put constraints on conduct. Where the rationale for developing those constraints does not apply, the correct result under Miranda and its progeny is that Miranda itself does not apply. And for many of the same reasons that it makes no sense to have the Fourth Amendment constrain the conduct of military operations, it also makes no sense to have the constitutionally based rules for interrogations in Miranda apply.

2. Statements obtained during interrogations undertaken to obtain military or intelligence information should be admissible under the public safety exception

Even if the broader rationale for rejecting the application of Miranda outlined above were not accepted, we believe that statements obtained in the course of interrogation for purposes of gathering intelligence and military operations information would be admissible at trial in all Article III court under an exception to Miranda closely analogous to, and based upon the same rationale as, the "'public safety' exception" announced by the Supreme Court in New York v. Quarles, 467 U.S. 649 (1984).

In Quarles, the police had chased a rape suspect -- who was reportedly armed -- into a supermarket, where they arrested him, frisked him, and discovered an empty shoulder holster. A police officer asked the suspect, "Where is the gun?" Id. at 674. The suspect, gesturing toward a stack of soap cartons, replied, "The gun is over there." Id. The Court held that "on these facts there is a 'public safety' exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved." Id. at 655-56. The Court explained that in such a situation, the "need for answers to questions in a situation posing a threat to the public safety outweighs the need" for the "[p]rocedural safeguards" imposed by Miranda. Id. at 657. As the Court made clear in Quarles, the exception applies to "questions necessary to secure [police officers'] own safety or the safety of the public." Id. at 659. See, e.g., United States v. DeSantis, 870 F.2d 536, 539 (9th Cir. 1989) ("The 'public safety' exception ... was intended to protect the police, as well as the public, from danger."); United States v. Mobley, 40 F.3d 688, 693 (4th Cir. 1994) (Quarles applies to "such circumstances posing an objective danger to the public or police"); United States v. Khalil, 214 F.3d 111, 121 (2d Cir. 2000) (Quarles applies to statements about construction and stability of bombs seized during raid on defendant's apartment the night before).

We conclude that, where the interrogation of an enemy combatant captured in an area of military operations is at issue, the same reasoning applied in Quarles should apply to provide all exception from Miranda for questioning directed at eliciting information relevant to military operations and intelligence. If the police are permitted to bypass Miranda warnings in order to "secure their own safety or the safety of the public," 467 U.S. at 659, surely the exigencies of combat justify a similar exception for the interrogations contemplated here. As we understand it, interrogation of prisoners seized in battle is undertaken as a matter of course to determine information such as what units of the enemy forces are operating in the area, their position, strength, supply status, etc., as well as information of broader use for intelligence concerning enemy plans and capabilities for launching strikes against U.S. positions. In the context of an armed conflict, it seems readily apparent that all such information relates directly to the safety and protection of American troops, who are constantly exposed to the dangers of combat. In addition, in this conflict, given the demonstrated ability of the enemy to attack military and civilian targets around the globe, including within the United States (and given the repeated vows to continue such attacks), interrogations for intelligence and national security purposes may additionally develop information critical for thwarting further imminent loss of American lives far from the immediate scene of battle in Afghanistan. Thus, as in Quarles, the lives and safety of both the questioners and others will be directly at stake.

B. Interrogations for criminal law enforcement purposes

By contrast, we believe that statements obtained through interrogations conducted abroad for criminal law enforcement purposes -- whether by FBI interrogators or military personnel are unlikely to be admitted in an Article III criminal trial if Miranda requirements are not met. [14]

As outlined above, we believe that the Supreme Court would almost certainly conclude that the Self-Incrimination Clause applies to trials in Article III courts of aliens, even where an alien's only connection to this country is that he has been brought here to be tried. That in itself, however, does not automatically dictate that law enforcement officers interrogating aliens abroad to prepare for such prosecutions must be bound by the Miranda regime. There are sound arguments that the Miranda system of warnings, while a useful system for controlling the conduct of law enforcement officials operating in the United States, imposes an unwieldy burden in the vastly varying situations law enforcement officers must face while operating abroad. As some courts have noted, for example, when a suspect is in the custody of a foreign police force, some of the Miranda rights that are normally described to a suspect may not actually be available because they conflict with the law and procedures of the nation that has custody of the suspect. See, e.g., Bin Laden, 132 F. Supp, 2d at 188 ("foreign law may ... ban all manner of defense counsel from even entering the foreign stationhouse, and such law necessarily trumps American procedure"); United States v. Dopf; 434 F.2d 205, 207 (5th Cir. 1970) (Miranda satisfied where FBI agent told defendants held by Mexican officials that, because he had no jurisdiction in Mexico, "he could not furnish them with a lawyer in Mexico but [that he could] contact the American Consul on their behalf"). Even where, as here, the suspects are held by the United States government abroad, other factors may make the burdens of Miranda outweigh any benefits that Miranda may provide in deterring misconduct in run-of-the-mill prosecutions. In particular, it seems likely that when a battlefield detainee is being interrogated for military and intelligence information -- a process that may extend over many days or weeks -- the provision of Miranda warnings by other U.S. personnel who may wish to question the same detainee during the same time period for purposes of building a criminal case will make the detainee less likely to provide information vital to the objectives of military and intelligence questioning. In such a scenario, there is a sound argument that the disadvantages that will result from providing Miranda warnings (in terms of lost information of military and intelligence value) outweigh any benefits to be gained from applying Miranda as a device for regulating police conduct.

It is difficult to predict with any accuracy how the Court would receive such arguments concerning why Miranda should not be extended here. Nevertheless, we believe that the weight of authority suggests that courts would require Miranda warnings in interrogations conducted by U.S. personnel abroad for law enforcement purposes. Several courts of appeal have already held that when U.S. law enforcement officers interrogate a suspect abroad or direct the questioning carried out by foreign police who are acting essentially as their agents, Miranda warnings must be given for any statements to be admissible at trial in the United States. See Cranford v. Rodriguez, 512 F.2d 860, 863 (10th Cir. 1975); United States v. Heller, 625 F.2d 594, 599 (5th Cir. 1980). Similarly, earlier this year the Southern District of New York concluded that in prosecutions stemming from the al Qaeda bombings of U.S. embassies in Africa, "Miranda must apply to any portion of all overseas interrogation that is, in fact or form, conducted by U.S. law enforcement." Bin Laden, 132 F. Supp. 2d at 187 (emphasis added). The court justified its holding by relying in large part on cases holding that "the lack of Miranda warnings will still lead to suppression if U.S. law enforcement themselves actively participated in the questioning, or if U.S. personnel, despite asking no questions directly, used the foreign officials as their interrogationl agents in order to circumvent the requirements of Miranda." Id. (citations omitted). The same principle could be applied to ally interrogation conducted by U.S. personnel for law enforcement purposes -- even if conducted by the military. Thus, we believe that there is a substantial risk that an Article III court would regard any attempt by military officers to engage in unwarned interrogation for the sole purpose of either developing criminal charges or facilitating a criminal prosecution as an attempt to "circumvent the requirements of Miranda." Id.

That said, it may not be necessary under these circumstances to apply the full panoply of warnings and rights that would ordinarily be required under Miranda. Under normal conditions, Miranda requires that a suspect be warned not only that he has a right to remain silent and that his statements will be used against him, but also that he has a right to have counsel present and to have counsel appointed if necessary. By contrast, courts have found that, at least where an individual is in the custody of officials of another country, whose practices may limit access to counsel, there may be practical limitations on the right to counsel. In other words, the right to counsel as it would be applied in the United States applies only "if the particular overseas context actually presents no obvious hurdle to the implementation of an accused's right to the assistance and presence of counsel." Bin Laden, 132 F. Supp. 2d at 188. Even then, only "due care" is required to avoid "foreclos[ing] an opportunity" to be represented by counsel "that in fact exists" -- that is to say, only the opportunity to obtain counsel subject to the limits of applicable foreign law. Id. See also Cranford, 512 F.2d at 863 (FBI agents satisfied Miranda by advising suspect held abroad that he had right to consult U.S. Consul in Mexico rather than lawyer); Dopf, 434 F.2d at 206-7 (same). [15]

It is not clear whether analogous considerations would apply when the individual is in the custody of U.S. Armed Forces overseas. There may be strong arguments that providing a detainee appointed counsel while he is held by the armed forces is not a practical alternative (perhaps for reasons of security of the detention facility) and would unduly interfere with the military's own ongoing questioning of the subject for military and intelligence information. We could pursue further the extent to which modifications to the traditional Miranda warnings might be justified in this context if you so request.

C. Interrogations by investigative services of one of the U.S. Armed Forces investigating war crimes

We understand that members of the criminal investigative services of the individual branches of the U.S. Armed Forces may wish to interrogate persons in order to investigate the possible commission of war crimes for subsequent prosecution before military commissions. As noted in Part II of this memorandum, Miranda does not bar the admission of evidence in a proceeding before a military commission. We understand, however, that even if the armed forces begin interrogating an individual with a view to a military commission trial, the possibility remains that the individual will later be transferred to civilian custody for purposes of criminal prosecution before an Article III court in the United States. The question will then be whether Miranda bars any unwarned statements obtained by the military investigators.

Based on the analysis above, we believe that war crimes investigations by military personnel preparing for a possible trial by military commission are not the kind of law enforcement investigations that Miranda was intended to regulate. Although such investigations are, in some sense, "criminal" in nature, their primary purpose is the execution of the President's wartime power as Commander-in-Chief "to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war," and not his authority as the nation's chief law enforcement officer. Application of Yamashita, 327 U.S. 1, 11 (1946). [16] After all, "[t]he trial and punishment of enemy combatants who have committed violations of the law of war is ... a part of the conduct of war operating as a preventive measure against such violations." Id. (emphasis added). Miranda's guiding rationale based on regulating the conduct of law enforcement agencies does not properly apply in such a case. Thus, unwarned statements obtained by military investigators in that context should be admissible in a later trial in federal court.

Nevertheless, we caution that no courts have addressed this issue, the matter is not at all free from doubt, and there is a very substantial risk that a court would reach the opposite conclusion and decide that Miranda's requirements do properly apply. A court could conclude that, while interrogations of battlefield detainees for intelligence and information related to operations are one matter (and outside the ambit of Miranda), a different matter is presented when there is a switch to any form of criminal investigation -- even if the only intended objective at the time of the questioning is developing a case for a military commission trial. There is always the possibility that the investigation will lead to trial in an Article III court. Indeed, it might be argued that this possibility is enhanced here because the only person charged so far in relation to the attacks of September 11 has been charged in federal court (even though the attacks appear to involve several violations of the laws of war), and, in any event, some war crimes can also be prosecuted as violations of federal criminal law, see 18 U.S.C. § 2441 (Supp. III 1997).

Further support for applying Miranda to custodial interrogations by war crimes investigators might be drawn from Supreme Court decisions involving interrogation by government officials other than police officers. In Mathis v. United States, 391 U.S. 1 (1968), the Court extended the requirement of Miranda warnings to an interview conducted by an IRS agent with a person in custody on the ground that, even though the IRS had not yet begun any criminal investigation, "tax investigations frequently lead to criminal prosecutions," id. at 4. See also id. ("(A]s the investigating revenue agent was compelled to admit, there was always the possibility during his investigation that his work would end up in a criminal prosecution."); cf: id. at 7 (White, J., dissenting) (suggesting that the majority's statement may be "a hint that any in-custody questioning by an employee of the Government must be preceded by warnings if it is within the immensely broad area of investigations which 'frequently lead' to criminal inquiries"). Similarly, in Estelle v. Smith, 451 U.S. 454 (1981), the court applied Miranda to statements made during a court-ordered psychiatric examination when the prosecution later attempted to use those statements against the defendant during the penalty phase of a criminal trial. The fact that the defendant "was questioned by a psychiatrist designated by the trial court to conduct a neutral competency examination, rather than by a police officer, government informant, or prosecuting attorney" was "immaterial." Id. at 467. Once the psychiatrist "went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of respondent's future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a post-arrest custodial setting." Id. (emphasis added). [17] Thus, a court might exclude statements made during custodial interrogation by war crimes investigators unless the Miranda requirements are satisfied, on the grounds that such interrogation bears a similarly close nexus to law enforcement.

While we do not believe that this analysis would be correct, it undeniably presents a substantial risk. Accordingly, if a decision has not yet been made concerning where an individual will be prosecuted and if it is deemed essential to ensure that any statements obtained by military investigators may be used in a subsequent trial in an Article III court, we believe that it would be prudent to provide Miranda warnings.

D. Interrogations with Mixed or Dual Purposes

In some cases there may be claims that a given interrogation does not fall neatly into only one of the categories outlined above, or claims that the lines between categories have been blurred because there were different motives behind the questioning. It is possible, for example, that military interrogators primarily seeking information relevant to operations and intelligence may have some interest in determining whether a detainee was engaged in conduct chargeable as a crime or a war crime. As explained below, for the most part we believe that the subjective motives of the interrogator should not alter analysis, which should be guided instead by an objective assessment of the nature of the questioning.

First, and most importantly, under the reasoning outlined above, we have concluded that Miranda should not apply at all to military and intelligence officers' questioning conducted for obtaining military and intelligence information because officers acting in this capacity are not the intended objects of Miranda's rules of conduct. Their subjective motivations in asking any particular questions should not alter this analysis. Nor should the analysis be affected even if it turns out after the fact that an objective assessment of certain particular questions demonstrates that the information sought was relevant solely to establishing the role of the detainee in a past criminal act. Such factors should not matter as long as overall, the primary objective of the questioning is military operations and intelligence information and the interrogators are in good faith pursuing their role in developing such information. Their particular motivations for asking certain questions or the exact nature of the information sought in particular questions should not serve as a basis for later claiming that Miranda warnings should have been supplied in such an interrogation. [18]

Second, we explained above that an extension of the public-safety exception should apply by analogy to interrogations for military and intelligence information, and the Supreme Court has directly addressed the question of dual motives behind questioning in the context of that exception. The court made clear that the "availability of [the public-safety] exception does not depend upon the motivation of the individual officers involved." 467 U.S. at 656. See also id. ("[T]he application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer."). "Whatever the motivation" of those conducting the questioning, the Court concluded that the exception should apply if there were an objective basis for concluding that the questions were "reasonably prompted by a concern for the public safety." Id. In other words, where there is objectively "a situation posing a threat to the public safety," id. at 657, questions reasonably aimed at eliminating that threat can be asked without Miranda warnings. The Court thus drew a distinction between "questions necessary to secure [police officers'] own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect." Id. at 659.

We conclude that, to the extent the public-safety exception is extended by analogy to military and intelligence questioning, the same analysis of dual motives should apply. Thus, as long as there was an objectively reasonable basis to believe that the information sought by military and intelligence officers would reduce the dangers to the lives and safety of American military personnel, allied forces or others, we believe it would not matter if the questioners were also partially motivated by a law-enforcement concern. [19] Questions in the sort of interrogation we have described above seem reasonably related to the former purpose and are certainly not directed solely at the latter.

Finally, a similar dual motive analysis might be applied to argue that when law enforcement personnel -- such as FBI agents --are questioning a detainee, it is only when they ask questions solely for law-enforcement purposes that Miranda is required. Where questions objectively can be said to be related to securing public safety, the Quarles exception should apply. Stated thus generally, we think this is a correct statement of the law, but we nevertheless caution, that it likely does not provide a very useful guide for conduct. As we understand the factual situation, detainees will likely be seized by the military and initially interrogated for operational and intelligence information. Much of this information will be most critical for securing safety within the theater and addressing military threats. The detainee may later be questioned by law enforcement personnel (and others acting at the direction of law enforcement). We think there is a substantial risk in this context that courts will view the change in personnel conducting the interrogations as a proxy for a change in the focus of the questioning and conclude that all such interrogations are for law enforcement purposes. Thus, even if some questions are reasonably related to "public safety" (as broadly conceived in this context), it may be more difficult to establish that the public-safety exception applies. In addition, to receive the benefit of the public-safety exception, it seems likely that law enforcement interrogators would have to ask questions related to public safety first before Mirandizing the detainee and proceeding with further questioning. We think it unlikely that a court would take the record of a broad-ranging interview, much of which was conducted plainly for the purpose of eliciting incriminating evidence, and parse out those questions and answers that are related to public safety to admit them into evidence. The Supreme Court's analysis in Quarles suggested that the exception was designed to permit officers to ask questions immediately as reasonably needed to address safety matters and then to Mirandize a suspect before further questioning. It seems likely that courts will attempt to adhere to that pattern. Because of these concerns, we think the most prudent approach would be to provide Miranda warnings at the outset when the interrogation is being conducted by law enforcement officers building a criminal case. [20]

IV. Subsequent Mirandizing after failure to warn

For purposes of determining whether Miranda warnings should be applied in the more doubtful scenarios considered above, it may be important to understand that if Miranda warnings are not given in an interview where it is later determined they were required, the result will not be that all statements subsequently made by the individual in later interviews will be inadmissible as "fruit of the poisonous tree." To the contrary, as a general matter, a subsequent, properly Mirandized statement may be used against an individual even if that individual has previously given an unwarned statement during questioning when Miranda warnings should have been provided.

The Supreme Court has held that a second, Mirandized statement is admissible so long as the earlier statement, although inadmissible itself under Miranda, was nevertheless voluntarily made. Where the first statement was involuntarily made; the second, Mirandized statement can still be admitted, but only where there has been an adequate break in events between the two statements to ensure that the later one is voluntary. In Oregon v. Elstad, 470 U.S. 298 (1985), the Court explained:

[T]here is no warrant for presuming coercive effect [in a second, Mirandized confession] where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. ... [A] suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.


Id. at 318. Thus, where the first statement was voluntary (even if unwarned), the Court refused to require the "break in the stream of events" that would have been required had the first statement been coerced. Id. at 310; see also id. at 318 ( declining to require "a passage of time or break in events before a second, fully warned statement can be deemed voluntary"); cf Miranda, 384 U.S. at 496 ("A different case would be presented if an accused [who had previously given an involuntary confession] were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them.").

Elstad, moreover, has not been undermined by Dickerson and the determination that Miranda is a constitutional rule. Although the Elstad opinion relied in part on the view that Miranda was not a constitutional ruling, see, e.g., 410 U.S. at 308, that rationale was not essential to its holding. As the Court noted, "[f]ailure to administer Miranda warnings creates a presumption of compulsion." Elstad, 470 U.S. at 307. Whether the presumption arises out of the Constitution or by judicial creation, it is that compulsion that triggers the Self-Incrimination Clause in the first place. Once warnings are given, however, the presumption of coercion evaporates. In the Court's words,

a careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible. The warning conveys the relevant information and thereafter the suspect's choice whether to exercise his privilege to remain silent should ordinarily be viewed as an 'act of free will.'


Id. at 310-11 (citation omitted). Indeed, to rule otherwise would

effectively immunize a suspect who responds to pre-Miranda warning questions from the consequences of his subsequent informed waiver of the privilege of remaining silent. This immunity comes at a high cost to legitimate law enforcement activity, while adding little desirable protection to the individual's interest in not being compelled to testify against himself. When neither the initial or the subsequent admission is coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder.


Id. at 312 (citations omitted).

Nothing in this logic depends upon whether the presumption arose out of the Fifth Amendment itself or by judicial creation. [21] The touchstone of both the Self-Incrimination Clause and Miranda is compulsion, and as Elstad makes clear, there is no basis for presuming compulsion once an individual has been given Miranda warnings. Nothing in Dickerson alters that result. Rather, the Dickerson court expressly noted that Elstad was consistent with its approach to treating Miranda as a constitutional decision and explained that Elstad "simply recognizes the fact that unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment." 530 U .S. at 441. The Court thus made plain that the result in Elstad did not depend on the theory that Miranda was a "non-constitutional decision." Id. Instead, it rested on other differences between all unlawful search and unwarned interrogations, foremost among them being the fact (emphasized in Elstad) that, while an unlawful search may lead inexorably to the discovery of pieces of evidence such that they are the products of the unlawful act, in the context of interviews with a suspect who has "attributes of will, perception, memory and volition," Elstad, 470 U.S. at 309, there can be an intervening act of will when the suspect has been warned of his rights and yet consents to continue making statements to his interrogators.

The courts of appeals that have addressed the issue have agreed that the result in Elstad survives the decision in Dickerson. See United States v. DeSumma, 272 F.3d 176, 180 (3d Cir. 2001) ("We cannot agree with the defendant's reading of Dickerson because the Supreme Court appeared to anticipate and reject it. ... We hold that the fruit of the poisonous tree doctrine does not apply to derivative evidence secured as a result of a voluntary statement obtained before Miranda warnings are issued."); United States v. Orso, 266 F.3d 1030, 1034 n.3 (9th Cir. 2001) ("The distinction was originally premised on the fact that a Miranda violation was not a violation of the Constitution, whereas a Fourth Amendment violation was. ... Nonetheless, Dickerson seems to signal that the distinction set forth in Elstad continues unabated.").

VI. The Sixth Amendment Right to Counsel Does Not Apply Prior to the Initiation of Adversary Judicial Criminal Proceedings

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of counsel for his defence." U.S. Const. Amend. VI. Unless access to counsel must be provided in order to safeguard an independent constitutional right (such as the Fifth Amendment's protection against coerced confession), it is generally necessary that adversary proceedings be formally initiated before a particular phase of a prosecution call be said to "involve critical confrontations of the accused by the prosecution" such as to trigger application of the Sixth Amendment. United States v. Wade, 388 U.S. 218, 224 (1967). "'The Sixth Amendment right [to counsel] ... does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."' Texas v. Cobb, 532 U.S. 162, 167-68 (2001) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175 (1991).

VII. The McDade Act Does Not Apply to Defense Department Interrogators

The McDade Act, 28 U.S.C. § 530B (Supp. IV 1998), reads as follows: § 530B. Ethical standards for attorneys for the Government

(a) An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State.

(b) The Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section.

(c) As used in this section, the term "attorney for the Government" includes any attorney described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations and also includes any independent counsel, or employee of such a counsel, appointed under Chapter 40.

Among the "State laws and rules" incorporated by this provision are likely to be state analogues to the American Bar Association's ("ABA") Model Rule of Professional Conduct 4.2 (2001). Rule 4.2 reads as follows:

Rule 4.2 "Communication with Person Represented by Counsel"

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized by law to do so.


Assuming that a state bar rule similar to Rule 4.2 is among the "State laws and rules" incorporated by section 530B, you have asked specifically whether lawyers on the Judge Advocate Generals' staffs in the Department of Defense are barred from questioning persons detained in Afghanistan or transferred to the custody of the Department of Defense who are represented by counsel. In particular, you have asked whether Defense Department lawyers could question John Walker (Lindh) without the consent of an attorney, Mr. James Brosnahan, claiming to represent him. [22]

Even assuming that a rule similar in substance to Rule 4.2 is incorporated by section 530B, it would not preclude questioning of Mr. Walker by military lawyers even without Mr. Brosnahan's consent for at least two reasons. [23]

First, section 530B does not apply to Department of Defense lawyers. Section 530B by its terms applies only to the conduct of an "attorney for the Government." And subsection 530B(c) expressly defines the term "attorney for the Government" to mean (in addition to an independent counsel and his employees under chapter 40) "any attorney described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations." That regulation provides a definition of "government attorney" that largely limits the term to Department of Justice lawyers and does not include lawyers of the Department of Defense. [24] In addition, subsection 530B(b) directs the Attorney General to "make and amend rules of the Department of Justice to assure compliance with this section." That implementing mechanism -- relying on rules for the Department of Justice -- reinforces the conclusion that the provision applies solely to lawyers in that Department.

Second, Rule 4.2 would permit a covered Government attorney to communicate with a represented party even absent the party's counsel's consent if the Government attorney is "authorized by law to do so." We believe that an Executive Order by the President permitting Government attorneys to communicate with persons held by the armed forces in the current conflict -- even if those persons are represented by counsel -- would constitute, in the circumstances of this case, legal authorization within the meaning of such a rule. To assume otherwise would be to read a State ethics rule in a manner that significantly trammeled the President's authority as Commander-in-Chief to take necessary and appropriate measures to acquire information about enemy forces. Such a construction of state law should be avoided since state law cannot stand as an impermissible burden on the exercise of the President's constitutional authority with respect to military and foreign affairs. See United States v. Pink, 315 U.S. 203 (1942).

Finally, we note that even if the Government did in fact violate Rule 4.2 by having military lawyers interrogate represented persons (including Mr. Walker) without consent of counsel, it would not follow that the evidence obtained in that questioning would be inadmissible at trial. The Eleventh Circuit has held that neither section 530B nor the State ethics rules it incorporates requires the suppression in a federal proceeding of evidence obtained through a violation of such rules. "[A] state rule of professional conduct cannot provide an adequate basis for a federal court to suppress evidence that is otherwise admissible. Federal law, not state law, determines the admissibility of evidence in federal court." United States v. Lowery, 166 F.3d 1119, 1124 (11th Cir.), cert. denied, 528 U.S. 889 (1999). Moreover, the court held, section 530B did not require suppression of evidence obtained in violation of such State laws and rules: Congress did not "intend by that enactment to turn over to state supreme courts in every state -- and state legislatures, too, assuming they can also enact codes of professional conduct for attorneys -- the authority to decide that otherwise admissible evidence cannot be used in federal court." Id. at 1125; accord Stern v. United States District Court for the District of Mass., 214 F.3d 4, 20 (1st Cir. 2000).

Please let us know if we can be of further assistance.

Jay S. Bybee
Assistant Attorney General

_______________

Notes:

1. See also Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998) ("Even if it can be shown that a statement was obtained by coercion, there can be no Fifth Amendment violation until that statement is introduced against the defendant in a criminal proceeding."); United States v. Yunis, 859 F.2d 953, 970 (D.C. Cir. 1988) (Mikva, J., concurring specially) ("[T]he focus of the Fifth Amendment protection continues to be the use of compelled, self-incriminatory evidence against the defendant at trial.").

2. See Memorandum for Alberto R. Gonzales, Counsel to the President, from Patrick F. Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Legality of the Use of Military Commissions to Try Terrorists (Nov. 6, 2001).

3. Cf: also Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No. 10, at 59 (William S. Hein & Co., Inc. 1997) (1949) (although "interrogations ... were carried out in a thoroughly humane fashion, and no objectionable means were used to elicit information from those who were questioned," "[t]hey were not carried out in the manner of 'pretrial interrogations' as known to American courts, and it would never have occurred to the interrogators, for example, to warn the individual being questioned that anything he said 'might be used against him.'").

4. It appears that in other cases involving similar fact patterns the United States has not contested the application of the Fifth and Sixth Amendments. See, e.g., Yunis, 859 F.2d at 957 ("The parties have stipulated that Yunis, despite his alien status, can claim the protection of the Fifth Amendment to the American Constitution for interrogation that occurred outside the territory of the United States."). Cf also United States v. Yousef, 925 F. Supp. 1063 (S.D.N.Y. 1996) (denying motion to suppress statement made on airplane from Pakistan to United States, because defendant had validly waived Miranda rights); United States v. Noriega, 746 F. Supp. 1506, 1529-32 (S.D. Fla. 1990) (rejecting motion to dismiss indictment on grounds that American invasion of Panama violated Due Process Clause, because alleged violations of rights involved only third parties and not Noriega himself).

5. It bears mention that in the immigration context the Court has developed a doctrine known as the "entry fiction" under which an alien who is detained at the border, even though physically present within the boundaries of the United States, is deemed legally not to have entered the United States. As a result, the alien does not possess constitutional protections that would attach upon entry. See, e.g., Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953). It might be argued that an alien whose only presence in the country consists of his transportation here for trial similarly should be treated legally as lacking any presence sufficient to confer rights. Given the analysis outlined in text, we cannot predict that such an argument is likely to prevail. The one circuit court that has addressed the issue has rejected such an approach. See United State, v. Henry, 604 F.2d 908, 914 (5th Cir. 1979).

6. See United States v. Henry, 604 F.2d 908, 914 (5lh Cir. 1979) (stating in dicta that "an alien who is within the territorial jurisdiction of this country, whether it be at the border or in the interior ... is entitled to those protections guaranteed by the Fifth Amendment in criminal proceedings which would include the Miranda warning") (citation omitted); Jean v. Nelson, 727 F.2d 957, 972-73 & n.22 (11th Cir, 1984) (dicta); Bin Laden, 132 F. Supp, 2d at 183 ("Fifth Amendment ... protections seemingly apply with equal vigor to all defendants facing criminal prosecution at the hands of the United States, and without apparent regard to citizenship or community connection").

7. To the extent the Court has referred to Miranda as providing "concrete constitutional guidelines" for courts to follow, it seems clear that what is meant is guidelines for courts to follow in their role of deterring improper conduct by law enforcement through exclusion of evidence.

8. See, e.g., United States v. Nagelberg, 434 F.2d 585, 587 n. 1 (2nd Cir. 1970) ("The Miranda rule has no application ... where the arrest and interrogation were by Canadian officers interested in Canadian narcotic and immigration offenses under their investigation. There is no showing that the statement was coerced or taken in violation of the laws of Canada. There is no claim of 'rubbing pepper in the eyes,' or other shocking conduct. The presence of an American officer should not destroy the usefulness of evidence legally obtained on the ground that methods of interrogation of another country, at least equally civilized, may vary from ours."); United States v. Chavarria, 443 F.2d 904, 905 (9th Cir. 1971) ("so long as the trustworthiness of the confession satisfies legal standards, the fact that the defendant was not given Miranda warnings before questioning by foreign police will not, by itself, render his confession inadmissible"); United States v. Heller, 625 F.2d 594, 599 (5th Cir, 1980) ("statements obtained by foreign officers conducting interrogations in their own nations have been held admissible despite a failure to give Miranda warnings to the accused," at least where the conduct does not "shock[] the conscience of the American court," American officials did not "participate[] in the foreign search or interrogation," and the foreign agents were not "acting as agents for their American counterparts"); United States v. Covington, 783 F.2d 1052, 1056 (9th Cir. 1985) ("the exclusionary rule is not applicable to interrogations performed by foreign police officers acting in their own country"); United States v. Khan, 993 F.2d 1368, 1376 n.7 (9th Cir, 1993) ("Statements given to police officers of a foreign country are not excludable because Miranda warnings are not given.") (citation omitted).

9. See Neely v. Henkel, 180 U.S. 109, 122-23 (1901) ("[T]he provisions of the Federal Constitution relating to the writ of habeas corpus, bills of attainder, ex post facto laws, trial by jury for crimes, and generally to the fundamental guaranties of life, liberty, and property embodied in that instrument ... have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country. ... When an American citizen commits a crime in a foreign country he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people.").

10. Another court of appeals has similarly concluded that, "[w]hen the interrogation is by the authorities of a foreign jurisdiction, the exclusionary rule has little or no effect upon the conduct of foreign police." Chavarria, 443 F.2d at 905. Put simply, "applying the Miranda rule to foreign police officers will not affect their conduct, and therefore we decline to so extend the scope of that decision." Commonwealth v. Wallace, 248 N.E.2d 246, 248 (Mass. 1969). See also United States v. Welch, 455 F.2d 211, 212 (2d Cir. 1972) ('[S]ince the Miranda requirements were primarily designed to prevent United States police officers from relying upon improper interrogation techniques and as the requirements have little, if any, deterrent effect upon foreign police officers, the Miranda warnings should not serve as the sine qua non of admissibility."); Yousef, 925 F. Supp. at 1076 ("[T]he purpose of the rule that any statement taken in violation or Miranda is inadmissible is to prevent and deter United States law enforcement personnel from taking involuntary statements that are the result of unduly coercive custodial circumstances.")

11. Similarly, at least some courts tied the exception for foreign police interrogations to the concept that Miranda is a "prophylactic" rule. One court, for example, explained that, because "[w]e have generally held that prophylactic constitutional rules designed to deter police misconduct do not apply to foreign police behavior," the "Miranda rules [have been held] inapplicable to Mexican police interrogations," just as the "Fourth Amendment exclusionary rule does not apply to illegal searches conducted by Mexican authorities acting without substantial involvement by American officials." United States v. Wolf, 813 F.2d 970, 972 n.3 (9th Cir 1987) (citations omitted, emphasis added),

12. Two years after Miranda was decided, Congress enacted a provision now codified at 18 U.S.C. §3501 (1994). By purporting to eliminate the warnings requirements of Miranda and restore voluntariness as the "touchstone of admissibility," section 3501 was intended to override Miranda. Dickerson, 530 U.S. at 436. Dickerson held that Congress could not override Miranda. See id. at 432 ("We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress[.]").

13. See, e.g., Calif. Attorneys for Criminal Justice v. Butts, 195 F.3d 1039, 1046-47 (9th Cir. 2000) ("a bare violation of Miranda is not enough to sustain a claim under § 1983," although "a failure to comply with Miranda can be viewed as an aggravation of other coercive tactics"); Cooper v. Dupnik, 963 F.2d 1220, 1243-44 (9th Cir. 1992) ("Our holding ... does not create a Fifth Amendment cause of action under § 1983 for conduct that merely violates Miranda safeguards without also trespassing on the actual Constitutional right against self-incrimination that those safeguards are designed to protect.").

14. Whether an interrogation is conducted for criminal law enforcement purposes should not be evaluated based on the subjective motivations of the interrogators. Rather, it should be determined objectively based on the nature of the questions. If the questions are directed at eliciting information that is designed to build a case for a criminal prosecution, we believe that most courts would conclude that Miranda's warning requirements apply.

15. In Bin Laden, which involved suspects in the custody of foreign officials, the court suggested that the following advice of rights could constitutionally be given to aliens interrogated by U.S. law enforcement officials:

Under U.S. law, you have the right to talk to a lawyer to get advice before we ask you any questions and you can have a lawyer with you during questioning. Were we in the United States, if you could not afford a lawyer, one would be appointed for you, if you wished, before any questioning.

Because you are not in our custody and we are not in the United States, we cannot ensure that you will be permitted access to a lawyer or have one appointed for you, before or during any questioning.

However, if you want a lawyer we will ask the foreign authorities to permit access to a lawyer or to appoint one for you. If the foreign authorities agree, then you can talk to that lawyer to get advice before we ask you any questions and you can have that lawyer with you during questioning.

If you want a lawyer, but the foreign authorities do not permit access at this time to a lawyer or will not now appoint one for you, then you still have the right not to speak to us at any time without a lawyer present.

132 F. Supp. 2d at 188 n. 16.


16. This distinction is not a novel one. We recently opined that the Posse Comitatus Act, 18 U.S.C, § 1385 (1994), which generally prohibits the domestic use of the Armed Forces for law enforcement purposes absent constitutional or statutory authority to do so, does not forbid the use of military force for the military purpose of preventing and deterring terrorism within the United States. See Memorandum for Alberto R. Gonzales, Counsel to the President & William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General & Robert J. Delahunty, Special Counsel, Office Of Legal Counsel, Re: Authority for Use of Military Force To Combat Terrorist Activities Within the United States at 15-20 (Oct. 23, 2001).

17. See also United States v. D.F:, 63 F.3d 671, 682-83 (7th Cir. 1995) (Under Mathis, "it is not the particular job title that determines whether the government employee's questioning implicates the Fifth Amendment, but whether the prosecution of the defendant being questioned is among the purposes, definite or contingent, for which the information is elicited. ... [A]lthough a government employee need not be a law enforcement official for his questioning to implicate the strictures of the Fifth Amendment, his questioning must be of a nature that reasonably contemplates the possibility of criminal prosecution.") (footnotes omitted); Battie v. Estelle, 655 F.2d 692, 699 (5th Cir. 1981) ("[T]he particular office that the official who performs the custodial interrogation represents is inconsequential because Miranda was not concerned with the division of responsibility between the various state investigatory agencies but was concerned with official custodial interrogations of an accused and the use of statements obtained from an accused without an attorney in such circumstances to prove the State's case against the accused.").

18. Of course, a different issue would be raised if it appeared that military and intelligence officers had taken it on themselves to develop a criminal investigation in order to exploit the absence of Miranda warnings in their interrogations or were merely acting as the proxies for law enforcement by asking questions at the direction of, for example, FBI agents. Determining where the line would be drawn requiring Miranda in such cases would likely depend on a highly fact-intensive inquiry into the particular circumstances.

19. The Court's holdings in "dual motive" cases under the Fourth Amendment also tend to support our conclusion in this context. As a general matter, the Fourth Amendment case law does not require that a search or seizure have only a single purpose so long as it is otherwise legitimate. Thus, the police may engage in (objectively justified) traffic stops even if their underlying motive may be to investigate other violations as to which no probable cause or even articulable suspicion exists. See Whren v. United States, 517 U.S. 806 ( 1996); see also United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983) (otherwise valid warrantless boarding of vessel by customs officials not invalidated by facts that state police officer accompanied customs officials and officers were following tip that vessel might be carrying marijuana).

20. Of course, there may be some specialized branches of law enforcement agencies (such as a counter-terrorism unit in the FBI) whose mission is instead to expose and thwart pending terrorist attacks. Their questioning, therefore, may be much more similar to questioning conducted for intelligence and national security objectives, and should be treated the same. Thus, an objective assessment of the type of information being sought in the questioning remains the critical touchstone for assessing the application of Miranda. We note simply that questioning by personnel traditionally associated with law enforcement will likely serve as a rough proxy for most courts in concluding that the questioning was for law-enforcement purposes.

21. See also id. at 308 ("[T]he absence of any coercion or improper tactics undercuts the twin rationales trustworthiness and deterrence [of constitutional violations] -- for a broader rule. Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities."); id. at 308-9 ("A living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. ... The living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.") (quotations omitted); id. at 314 ("A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.").

22. On December 4, 2001, Mr. James J. Brosnahan wrote to you, stating "I have been retained by the parents of John Walker Lindh to represent him in any matters that might arise." Letter for William J. Haynes, II, General Counsel, Department of Defense, from James J. Brosnahan, Morrison & Forester, LLP at 1 (Dec. 4, 2001). In that letter, Mr. Brosnahan also stated, "I would ask that no further interrogation of my client occur until I have the opportunity to speak with him. As an American citizen, he has the right to counsel and, under all applicable legal authorities, I ask for the right to speak with my client as soon as possible." id.

23. We note that Rule 4.2 applies only if Mr. Walker is in fact "represented by another lawyer in the matter." In his letter, Mr. Brosnahan stated that he was retained by Mr. Walker's parents to represent their son. We understand, however, that at the time the letter was written Mr. Brosnahan had never spoken with Mr. Walker. This case thus bears a striking resemblance to Moran v. Burbine, 475 U.S. 412 ( 1986). There, the suspect's sister had attempted to retain a lawyer to represent him, but the suspect waived his Miranda rights and confessed before learning of his sister's efforts. The Court found no violation of either Miranda or the Sixth Amendment. See id. at 425 ("Nor are we prepared to adopt a rule requiring that the police inform a suspect of an attorney's efforts to reach him."). The Court additionally noted "the Rhode Island Supreme Court's finding that, as a matter of state law, no attorney-client relationship existed between respondent and [the counsel obtained by his sister]." Id. at 429 n.3 (citing State v. Burbine, 451 A.2d 22, 29 (R.I. 1982)), See also State v. Cline, 405 A.2d 1192, 1199 (R.I. 1979) ("Generally, the relationship of attorney and client arises by reason of agreement between the parties. ... Obviously, such a relationship could not exist between persons who had never met and who in all probability were unaware of each other's existence prior to the meeting in the Providence police station."); cf: United States v. Weinstein, 511 F.2d 622, 628 (2d Cir. 1975) ("[I]n a criminal proceeding any action taken by the court at the behest of a representative appointed without the defendant's knowledge or consent could not bind the fugitive defendant. ... [T]he attorney moving on his behalf must at least have been authorized by the defendant to act as his counsel in the case.").

24. See 28 C.F.R. f; 77.2(a) (2001) ("The phrase attorney for the government means the Attorney General; the Deputy Attorney General; the Solicitor General; the Assistant Attorneys General for, and any attorney employed in the Antitrust Division, Civil Division, Civil Rights Division, Criminal Division, Environment and Natural Resources Division, and Tax Division; the Chief Counsel for the DEA and any attorney employed in that office; the General Counsel of the FBI and any attorney employed in that office or in the (Office of General Counsel) of the FBI; any attorney employed in, or head of, any other legal office in a Department of Justice agency, any United States Attorney; any Assistant United States Attorney; any Special Assistant to the Attorney General or Special Attorney duly appointed pursuant to 28 U.S.C. 515; any Special Assistant United States Attorney duly appointed pursuant to 28 U.S.C. 543 who is authorized to conduct criminal or civil law enforcement investigations or proceedings on behalf of the United States; and any other attorney employed by the Department of Justice who is authorized to conduct criminal or civil law enforcement proceedings on behalf of the United States. The phrase attorney for the government also includes any independent counsel, or employee of such counsel, appointed under chapter 40 of title 28, United States Code. The phrase attorney for the government does not include attorneys employed as investigators or other law enforcement agents by the Department of Justice who are not authorized to represent the United States in criminal or civil law enforcement litigation or to supervise such proceedings.").
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 1 OF 3

MEMO __

U.S. Department of Justice
Office of Legal Counsel

Office of the Assistant Attorney General
Washington, D.C. 20530

March 13, 2002

Memorandum for William J. Haynes, II
General Counsel, Department of Defense

Re: The President's power as Commander in Chief to transfer captured terrorists to the control and custody of foreign nations
You have asked for our Office's views on the laws applicable to the transfer of members of the Taliban militia, al Qaeda, or other terrorist organizations, who have come under the control of the United States armed forces, to other countries. We conclude that the President has plenary constitutional authority, as the Commander in Chief, to transfer such individuals who are captured and held outside the United States to the control of another country. Individuals who are detained within the United States, however, may be subject to a more complicated set of rules established by both treaty and statute.

Part I of this memorandum discusses the President's constitutional authority, supported by two centuries of historical practice, to detain and transfer enemy prisoners captured in wartime. It reviews the two relevant treaties that regulate transfer -- the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316 ("GPW"), and the Torture Convention and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Apr. 18, 1987, 23 I.L.M. 1027 (entered into force June 26, 1987) (the "Torture Convention" or the "Convention"), -- and it explains that these conventions do not apply to the factual situation posed by the transfer of al Qaeda or Taliban prisoners to third countries. As you have requested, we also survey in Part II the domestic legal rules governing extradition, and in Part III the domestic standards that govern removal under the immigration laws.

We conclude that the President has full discretion to transfer al Qaeda and Taliban prisoners captured overseas and detained outside the territorial jurisdiction of the United States to third countries. GPW does not restrict the President's discretion because the President has determined that the al Qaeda or Taliban detainees are not legally entitled to prisoner of war ("POWs") status within the meaning of the Conventions. The Torture Convention poses no obstacle to transfer because the treaty does not apply extraterritorially. As removal applies only to the transfer of individuals already within the territorial jurisdiction of the United States, and as extradition is rarely if ever applied to individuals held abroad, those methods of transfer do not apply to the detainees held either in Afghanistan or at the U.S. Naval Base at Guantanamo Bay, Cuba.

I. THE COMMANDER-IN-CHIEF POWER

Throughout history, army commanders-in chief have exercised the power to "dispose of the liberty" of prisoners captured during military engagements. This power has traditionally included the right to transfer such prisoners to the custody of third parties, including neutral countries and allied belligerents. As a matter of constitutional text and structure, the location of the Commander-in-Chief power in Article 11 of the Constitution makes clear that this function, historically held by military commanders-in chief, lies within the discretion of the executive branch. Our constitutional history and practice confirms this: the President has since the Founding era exercised exclusive and virtually unfettered control over the disposition of enemy soldiers and agents captured in time of war. Indeed, on several occasions throughout American history, the President, either in furtherance of particular diplomatic or military objectives or merely for the sake of convenience, has transferred POWs from the custody and control of the United States to the custody and control of other foreign nations.

Those treaties that purport to govern the transfer of detained individuals generally do not apply in the context of the current war against al Qaeda and other terrorist groups. Even if those treaties were applicable to the present conflict, however, they do not impose significant restrictions on the operation of the President's Commander-in-Chief authority. The GPW imposes some limitations on the transfer of United States-held POWs to other nations. These limitations, however, apply only to individuals who are legally entitled to POW status, and leave the President considerable discretion as to when such transfers are permissible. Further, as this Office has explained elsewhere, the members of non-state terrorist organizations such as al Qaeda are not entitled to POW status as a matter of law because the GPW's protections for POWs apply only to international armed conflicts between state parties. See Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes, II, General Counsel, Department of Defense, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Application of Treaties and Laws to at Qaeda and Taliban Detainees at 9-10 (Jan. 22, 2002) ("GPW Memo"). Therefore, there are no GPW constraints on the President's ability to transfer al Qaeda prisoners to third countries. The Torture Convention also imposes limitations on transfer, but those restrictions have no extraterritorial effect and thus are not applicable to prisoners who are captured and detained abroad. [1]

A. Presidential Authority Under The Constitution

This Part discusses the sources of the President's constitutional authority to transfer military detainees to third countries. Throughout United States history, the Constitution's vesting of the Commander-in-Chief and Chief Executive powers in the President has been understood to provide this affirmative legal authority. These grants have long been understood to include the authority to "dispose of the liberty" of enemy soldiers and agents captured in time of war. This view of the President's war powers is supported by the Constitution's text and a comprehensive understanding of its structural allocation of powers, but also by an unbroken chain of historical practice dating back to the Founding era. In tandem, these factors conclusively demonstrate that the Commander-in-Chief Clause constitutes an independent grant of substantive authority to engage in the detention and transfer of prisoners captured in armed conflicts.

1. Constitutional text and structure

The text, structure, and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to control and conduct military operations engaged in by the United States. Article II, Section 2 states that the "President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." U.S. Const. art. II, § 2. He is vested broadly with all of "[t]he executive Power" and the duty to execute the laws. Id. art. II, § 1.

By their terms, these provisions vest full control of the military operations of the United States in the President. It has long been the view of this Office that the Commander-in-Chief Clause is a substantive grant of authority to the President, see, e.g., Memorandum for Honorable Charles W. Colson, Special Counsel to the President, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: The President and the War Power: South Vietnam and the Cambodian Sanctuaries (May 22, 1970), and that the authority conferred includes all those powers not expressly delegated by the Constitution to Congress that have traditionally been exercised by commanders-in chief of armed forces.

Moreover, as the courts have consistently recognized, the President's discretion in exercising the Commander-in-Chief power is complete, and his military decisions are not subject to challenge in the courts. In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court faced the question whether the President "in fulfilling his duties as Commander in Chief" could treat the rebellious States as belligerents by instituting a blockade. The Court concluded that this was a question "to be decided by him" and which the Court could not question, but must leave to "the political department of the Government to which this power was entrusted." [2]

The Constitution's textual commitment to the President of control over the minutiae and the grand strategy of military operations alike is reinforced by analysis of the Constitution's structure. First, it is clear that the Constitution secures all federal executive power in the President to ensure a unity in purpose and energy in action. "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number... ." The Federalist No. 70, at 472 (Alexander Hamilton) (Jacob E. Cooke ed., 1982 reprint) (1961). The centralization of authority in the President alone is particularly crucial in matters of national defense, war, and foreign policy, where a unitary executive can evaluate threats, consider policy choices, and make command decisions affecting operations in the field with a speed and energy that is far superior to any other branch. As Hamilton noted, "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." Id. No. 74, at 500 (Alexander Hamilton).

The handling and disposition of individuals captured during military operations requires command-type decisions and the swift exercise of judgment that can only be made by "a single hand." The strength of enemy forces, the morale of our troops, the gathering of intelligence about the dispositions of the enemy, the construction of infrastructure that is crucial to military operations, and the treatment of captured United States servicemen may all be affected by the policies pursued in this arena. Quick, decisive determinations must often be made in the face of the shifting contingencies of military fortunes. [3] This is the essence of executive action.

Second, the constitutional structure requires that any ambiguity in the allocation of a power that is executive in nature must be resolved in favor of the executive branch. As this Office has recently explained, see Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sept. 25, 2001) ("September 25 War Powers Memorandum"), Article II, Section 1 provides that "[t]he executive Power shall be vested in a President of the United States." U.S. Const. art. II, § 1. By contrast, Article I's Vesting Clause gives Congress only the powers "herein granted." Id. art. 1, § 1. This difference in language indicates that Congress's legislative powers are limited to the list enumerated in Article 1, Section 8, while the President's powers include inherent executive powers that are unenumerated in the Constitution. The unification of executive power in Article II requires that unenumerated powers that can fairly be described as "executive" in nature belong to the President, except where the Constitution expressly vests the power in Congress. For example, as Commander in Chief, the President would ordinarily have plenary power to provide rules for the armed forces, but Article 1, Section 8, Clause 14 excepts this power from the executive by expressly committing it to Congress. U.S. Const. Art. 1, sec. 8, cl. 14 ("The Congress shall have Power... [t]o make Rules for the Government and Regulation of the land and naval Forces"). Even if the Constitution's entrustment of the Commander-in-Chief power to the President did not bestow upon him the authority to make unilateral determinations regarding the disposition of captured enemies, the President would nevertheless enjoy such a power by virtue of the broad sweep of the Vesting Clause. Thus, the power to dispose of the liberty of individuals captured and brought under the control of United States armed forces during military operations remains in the hands of the President alone unless the Constitution specifically commits the power to Congress.

The debates over the Constitution confirm that the Framers understood the Commander- in-Chief power to include all powers related to the conduct of war, with the exception only of those few powers that were expressly carved out and delegated to Congress. During the debates in the Federal Convention, for example, a clause that would have given Congress the power to "make" war was amended to give Congress the power only to "declare" it, in part because it was understood that as the Commander in Chief the President should enjoy the sole authority to conduct warfare. [4] The treatment of captured enemy soldiers is but one of the many facets of the conduct of war, entrusted by the Constitution in plenary fashion to the President by virtue of the Commander-in-Chief Clause. Moreover, it is an area in which the President appears to enjoy exclusive authority, as the power to handle captured enemy soldiers is not reserved by the Constitution in whole or in part to any other branch of the government.

It might be argued that Article I, Section 8, Clause 11, which grants Congress the power to "make Rules concerning Captures on Land and Water," addresses captured enemy soldiers. That provision has never been applied by the courts or by Congress to captured persons, however, and appears always to have been understood as pertaining to captured property only. Article IX of the Articles of Confederation, from which the provision is derived, more clearly indicated that the power extended only to property, stating that Congress would have the power of establishing rules for deciding, in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated." Articles of Confederation, art. 1X, reprinted in Encyclopedia of the American Constitution app. 2, at 2094 (Leonard W. Levy ed., 1986). The Articles of Confederation provision clearly did not apply to captured enemy soldiers, as persons can neither be "divided" nor "appropriated." Moreover, the term capture, which is used both in the Articles of Confederation and in the Constitution, is defined by international law as "[t]he taking of property by one belligerent from another or from an offending neutral." 1 Bouvier's Law Dictionary 422 (Rawle's 3d rev. 1914) (emphasis added). Thus, in his exhaustive commentaries on the Constitution, Justice Story noted that Article I, Section 8, Clause 11 confers on Congress the power to "authorize the seizure of and condemnation of the property of the enemy within, or without the territory of the United States," yet he made no mention of any authority being vested in Congress over captured persons. Joseph Story, Commentaries on the Constitution of the United States § 1172, at 64 (reprinted 1991) (1833). This contextual understanding of the text of Article I, Section 8, Clause 11, buttressed by the absence in the historical record of any invocations of the clause by Congress or the courts in support of legislation applying to captured persons, leaves no doubt that Congress's power "to make Rules concerning Captures on Land or Water" applies only to captured property.

Article I, Section 8, Clause 12, which vests Congress with the authority to "raise and support Armies," and Clause 14, which vests it with power to "make Rules for the Government and Regulation of the land and naval Forces," might also be thought to confer on Congress the power to promulgate prisoner of war policy. Using its funding power, Congress might attempt to place legislative riders on military appropriations that would seek to require certain treatment of prisoners of war. While this Office has concluded elsewhere that Congress cannot use the appropriations power to interfere with areas of plenary presidential power, see Memorandum for Abner J. Mikva, Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Bill to Relocate United States Embassy From Tel Aviv to Jerusalem (May 16, 1995), Congress has not done so here, and so we need not reach that question. Congress also could attempt to use its authority to make rules for regulation of the military to establish standards for prisoner detention and transfer. While we believe that Congress's power on this point is limited to the discipline of U.S. troops, and not to issues such as the rules of engagement and treatment concerning enemy combatants, we have no need to directly address the question because Congress has not enacted any such statute. In fact, Congress's historical silence, as we will explain below, demonstrates that Congress itself has not understood its powers to reach so far into areas of presidential competence.

The historical context in which the Constitution was ratified supplies additional support for our view that the constitutional structure allocates to the President the plenary power to dispose of the liberty of military detainees. In particular, our understanding of the Constitution's allocation of powers between Congress and the President is informed by the British Constitution's allocation of powers between Parliament and the Crown. The Framers had lived under the British Constitution as English colonists, and in drafting their own Constitution they borrowed heavily from the legal and political concepts that formed the foundation principles of British constitutional government. Significant departures from the framework of the British government were explicitly spelled out in the Constitution's text, with the gaps left to be filled in by the Framers' shared understanding of the functional workings of the government under which they had lived. Reference to the British Constitution may shed particular light on those broad questions of power allocation that are not clearly answered by the text of the Constitution alone, for the British Constitution supplied the Framers with their contextual expectations about the manner in which sovereign powers should be allocated in a constitutional system of government.

By the late 18th century, it was well established under the British Constitution that the Crown had absolute authority to dispose as it saw fit of prisoners of war and other detainees. At the Battle of Agincourt in 1415, for example, King Henry V ordered the execution of a large number of French prisoners of war in retaliation for a French attack on part of the English baggage train. [5] Similarly, during the War of the Roses in 1471 it was understood to be the prerogative of King Edward IV to decide which Lancastrian prisoners of war should live and which would die. [6] Although the treatment of prisoners of war generally improved as time went on, the Crown's unilateral control of their handling remained undiminished. When the Spanish Armada was destroyed by a storm off the coast of Scotland in 1588, Queen Elizabeth and her Privy Council dictated every detail of the confinement of captured sailors, including the amount of the allowance to which they were entitled as prisoners of war. [7] The Privy Council also assumed responsibility for determining which captured soldiers were entitled to prisoner of war status, denying the legal classification to those sailors it determined had simply been shipwrecked on their way home to Spain. [8] During this and future periods, Parliament never sought to interfere with the executive's prerogatives regarding the disposition of prisoners of war.

The Crown's control of prisoners of war as a matter incident to military operations was also left untouched by the restructuring of the British Constitution during the civil wars of the mid-17th century. Queen Anne rejected a prisoner of war exchange cartel proposed by King Louis XIV of France in 1703, largely because she was personally insulted that Louis refused to recognize her as the legitimate heir to the English throne. [9] And during the Revolutionary War in America, the British field commanders, who ultimately were controlled by the King, took charge of handling POWs. General Howe, for example, established a Commissary General of Prisoners in 1776 to handle the many soldiers he had captured during his campaigns in New Jersey and New York, and he later determined that many of the soldiers should be held at sea in prison ships. [10] There was no doubt, under the British constitutional system in the 18th Century, that the executive's commander-in-chief power included the sole authority to control POWs. When drafting the Constitution in 1787, the Framers similarly would have understood the President's Commander-in-Chief and Chief Executive powers as encompassing the power to dispose of the liberty of prisoners of war. The Framers made no express allocation in the Constitution of the power to dispose of persons captured during military engagements; their silence on the point signals their intent to leave the power allocated to the Executive, as it was under the British Constitution.

2. Historical practice

Both the Supreme Court and the political branches have often recognized that governmental practice plays a highly significant role in establishing the contours of the constitutional separation of powers: "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on 'executive Power' vested in the President by § I of Art. II." Youngstown Sheet & Tube Co. V. Saxyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring). Indeed, as the Court has observed, the role of practice in fixing the meaning of the separation of powers is implicit in the Constitution itself: "'the Constitution ... contemplates that practice will integrate the dispersed powers into a workable government."' Mistretta v. United States, 488 U.S. 361, 381 (1989) (citation omitted). The role of practice is heightened in dealing with issues affecting foreign affairs and national security, where "the Court has been particularly willing to rely on the practical statesmanship of the political branches when considering constitutional questions." Whether Uruguay Round Agreements Required Ratification as a Treaty, 18 Op. O.L.C. 232, 234 (1994). [11]

Accordingly, we must give great weight to the practice of the President and Congress in determining the scope of the President's authority to detain and transfer prisoners captured in war. In this case, the historical record unequivocally demonstrates that the President has exercised unchallenged and exclusive control over individuals captured during military operations since the time of the Founding. Presidents have established confinement conditions for prisoners of war, negotiated terms and conditions for the exchange of captured soldiers, promulgated rules requiring captured enemy personnel to perform productive labor, and, significantly, transferred prisoners of war to the custody and control of other foreign nations. With respect to each of these functions, Congress has never seriously questioned the President's authority. The history of prisoner of war policy strongly supports reading the Constitution as vesting in the President all of the traditional authority enjoyed by army commanders-in-chief to dispose of the liberty of captured individuals. Because of the novelty of this question and the lack of any direct guidance from the opinions of this Department or decisions by the federal judiciary, we review the relevant history here to demonstrate the depth of support for the conclusion that the President enjoys the unrestricted constitutional power to dispose of prisoners of war.

The Revolutionary War. The absence of a constitutionally recognized chief executive during the revolutionary period and the dominance of the Continental Congress in directing certain aspects of the Continental Army's military operations casts a cloud upon the utility of United States practices during the revolutionary era in discerning constitutional meaning. Nevertheless, the prisoner of war policies practiced by early American military forces indicate that the Founders recognized the power of the sovereign, consistent with contemporary European practices, to transfer prisoners of war to the custody and control of foreign nations. American naval forces that captured British prisoners at sea typically turned the prisoners over to French control. [12] On the home front, General George Washington established the living conditions of captured British soldiers who had fallen under his control. [13] Although not yet in the position of President as created by Article II of the Constitution, General Washington held the title of Commander in Chief of the Continental Army, and neither the Continental Congress (which itself was more of an executive branch than a legislature that could tax or legislate) nor the state assemblies questioned his authority to handle and control prisoners of war. In this respect, General Washington exercised his authority in line with the traditional Anglo-American understanding of the scope of the Commander-in-Chief power.

The Ouasi-War with France. As tensions between the United States and France intensified during the late 1790s, Congress passed a series of statutes pertaining to the disposition of French vessels captured during military engagements defending American shipping. [14] The first such statute merely authorized the President "to seize, take and bring into any port of the United States" French ships found to be "committing depredations" on vessels belonging to citizens of the United States. Act of May 28, 1798, ch. 48, 1 Stat. 561. Three subsequent statutes, however, also included provisions relating to the disposition of the crews and officers of captured enemy ships. [15] See Act of June 28,1798, ch. 62, §4, 1 Stat 574, 575; Act of July 9, 1798, ch. 68, § 8, 1 Star 578. 580; Act of Feb. 28, 1799, ch. 18, 1 Star 624.

The first statute relating to captured sailors provided that "it shall be lawful for the President of the United States, to cause the officers and crews of the vessels so captured... to be confined in any place of safety within the United States... and all marshals and other officers of the United States are hereby required to execute such orders as the President may issue for the said purpose." Act of June 28, 1798, 1 Stat. at 575. It appears that this statute was designed to serve two purposes. First, it was intended to send a clear message to France that her predations would no longer be tolerated, and that her countrymen would suffer the penalty of imprisonment if attacks on American shipping did not cease. [16] Second, the statute's language indicates that it was designed to instruct non-military law-enforcement personnel that it was lawful and indeed required for them to imprison captured Frenchmen on the President's instruction, without any allegation that the Frenchmen had committed domestic crimes. These dual purposes provide ample explanation for the structure of the statute's text, and we do not read the statute as expressing an opinion or intending to imply that the President would not have had the power to imprison the captured sailors in the statute's absence.

The second statute, enacted just two weeks later, provided that "all French persons... who shall be found acting on board any French armed vessel... shall be reported to the collector of the port in which they shall first arrive, and shall be delivered to the custody of the marshal, or of some civil or military officer of the United States... who shall take charge for their safe keeping and support, at the expense of the United States." Act of July 9, 1798, § 8, 1 Stat. at 580. That provision clearly was meant to apply only to Frenchmen captured by private parties, and not to Frenchmen who were captured by armed forces of the United States. Although the first provision of the statute related solely to actions taken by the President, see id. § 1, 1 Stat. at 578, the six intervening statutory sections authorized "private armed ships and vessels of the United States" to capture French marauders, id. § 2, 1 Stat. at 579, and further prescribed rules regulating such captures and the ensuing distribution of captured property, id. §§ 3-7, 1 Stat. at 579-80. The requirement that captured Frenchmen be turned over to a marshal or to "some civil or military officer of the United States" makes sense only as applied to private captures, as Frenchmen captured by United States forces would already have been in the custody of "military officer[s] of the United States." Id. § 8, 1 Stat. at 580. This statute, then, merely directed private citizens to turn captured Frenchmen over to the control of the President, but did not purport in any way to control the actions of the President once the prisoners were in his custody.

The third statute, which was passed half a year later, similarly imposed no requirements on the President. That statute provided that "the President... is authorized to exchange or send away from the United States to the dominion of France, as he may deem proper and expedient, all French citizens that have been or may be captured and brought into the United States... ." Act of Feb. 28, 1799, ch. 18, 1 Stat. 624. Any debates that this provision may have occasioned were not recorded in the Annals of Congress, and it is therefore difficult to place this statute within the context of the events that led to its passage. On its face, however, the statute appears to be designed to encourage the President to use captured Frenchmen as bargaining chips to secure the release of Americans being held prisoner in France. The statute provides no substantive standards, and expressly leaves all prisoner exchanges to the complete discretion of the President. Thus, we do not read the statute to imply that the President would have been without power to effect such exchanges absent congressional authorization.

The one statute from this time period that does appear to require the President to take certain actions was passed only a few days later. That statute provided that if the President received information that a United States citizen who was impressed into serving on a foreign vessel of war was put to death or subjected to corporal punishment after being captured by France, "it shall be lawful for the President of the United States, and he is hereby empowered and required to cause the most rigorous retaliation to be executed on any such citizen of the French Republic, as have been or hereafter may be captured in pursuance of any of the laws of the United States." See Act of March 3, 1799, ch. 45, 1 Stat. 743 (emphasis added). On its face, the statute seems to require the President to take retaliatory measures against captured Frenchmen in his custody, and thus might be read to imply that Congress was asserting that it had the authority to dictate prisoner of war policy. A careful examination of the legislative history of the statute, however, belies such a reading.

The statute was passed in response to a French arrêt ordering the execution of United States citizens found on captured war ships belonging to nations that were at war with France. As originally passed by the Senate and introduced into the House, the measure authorized and required retaliation against any Frenchmen that the President could get his hands on, including Frenchmen who were legally in the United States. The President would indeed have needed congressional authorization to effect such sweeping retaliatory measures. As the United States was not at war with France, and the United States citizens who were threatened by the arrêt were not working on vessels belonging to the United States or its citizens, the President could not have invoked the Commander-in-Chief power to support such unilateral retaliation on his own authority.

Only after it had been passed by the Senate and debated for several days in the House was the retaliation provision narrowed by limiting retaliation to captured Frenchmen who were already in the President's custody. Representatives Gallatin and Smith successfully argued that retaliation should be limited to those Frenchmen who had actually engaged in predation against the United States and been captured, and the amendment was agreed to immediately prior to the passage of the entire bill. 9 Annals of Cong. 3047 (March 3, 1799) (remarks of Mr. Gallatin); Id. at 3051 (March 3, 1799) (remarks of Mr. S. Smith). Although as Commander in Chief the President already enjoyed authority to retaliate against French prisoners who had fallen into his custody, the rest of the provision was not rewritten to conform with the last-minute amendment, and the word "required" remained in the statute as a vestige of its original construction. [17] Had Congress actually purported to require the President to retaliate against prisoners whom he held by virtue of his authority as Commander in Chief, the provision would have constituted an unconstitutional interference with presidential prerogatives. [18]

This contextual reading of the statute also indicates that the statute should not be understood to imply that the President could not have engaged in retaliation against captured enemy agents absent congressional authorization. As originally constructed, the bill authorized retaliation against Frenchmen who were legally within the territory of the United States, and over whom the President would have had no inherent authority to inflict death or corporal punishment. As has been noted, the President would indeed have required congressional authorization to retaliate against such Frenchmen. Congress seems not even to have realized that the amendment to the statute brought the issue of retaliation within the President's power as Commander in Chief, and thus did not think to amend the statute to remove the reference to authorization. Moreover, even if Congress had intentionally included the word "authorized" in the amended provision, absent evidence to the contrary we would read its inclusion as designed to encourage the President to take action, rather than as an expression of an opinion that the President had no inherent authority as Commander in Chief to engage in such retaliation.

The War of 1812. The Congress that presided over the War of 1812 provides the only other historical instance that we have been able to identify of direct congressional involvement in prisoner of war issues. On July 6, 1812, just three weeks after the U.S.'s declaration of war against Britain, the Twelfth Congress passed "An Act for the safe keeping and accommodation of prisoners of war." The Act authorized the President "to make such regulations and arrangements for the safe keeping, support and exchange of prisoners of war as he may deem expedient." Act of July 6, 1812, ch. 128, 2 Stat. 777. It also appropriated funds for the purpose of detaining prisoners of war. The statute, however, did not establish any substantive standards governing the disposition of prisoners, and it did not lay any claim to congressional authority in the area. Although the statute spoke in terms of "authoriz[ing]" the President to take action, it at best represented a recognition by Congress of powers that President Madison already enjoyed by virtue of his position as Commander in Chief and provided the funds for the exercise of his responsibilities. Indeed, we read the 1812 Act in the same manner as we have construed the War Powers Resolution, which also purports to "authorize the President to exercise his Commander- in-Chief authority. See, e.g., September 25 War Powers Memorandum. As the President possess the Commander-in-Chief and Executive powers alone, Congress cannot constitutionally restrict or regulate the President's decision to commence hostilities or to direct the military, once engaged. This would include not just battlefield tactics, but also the disposition of captured enemy combatants.

In Brown v. United States, Chief Justice Marshall observed in dicta that Congress's passage of the Act suggested that the President had no inherent authority to hold and detain captured enemy soldiers. 12 U.S. (8 Cranch) 110, 126 (1814) (noting that the Act "affords a strong implication that [the President) did not possess these powers by virtue of the declaration of war"). Brown was exclusively concerned with the President's authority to confiscate enemy property within the United States, however, a subject that is expressly reserved to Congress by Article I, Section 8, Clause 11 of the Constitution. [19] Marshall's offhand reference to the handling of prisoners of war was intended to provide an additional example of a war-related power that the President could not exercise without express statutory authorization. Marshall was unable, however, to cite any constitutional provision comparable to the Captures Clause of Article I, Section 8, Clause 11 that expressly delegates to Congress the power to make rules concerning captured persons. Indeed, there is no such comparable constitutional provision, and Marshall's comment in Brown cannot hold up under the weight of longstanding historical practice to the contrary. Despite the fact that the 1812 Act was repealed by Congress in 1817, see Act of March 3, 1817, ch. 34, 3 Stat. 358, Presidents have continued, with Congress's blessing - usually in the form of supporting appropriations [20] -- to exercise exclusive control over prisoner-of-war policy.

A second prisoner of war issue confronted by the Twelfth Congress indicates that Congress did not believe that the President required legislative authorization before determining the treatment of captured enemy combatants. From the very beginning of the war, the United States protested the treatment that the British accorded captured American soldiers. To induce the British to give them better treatment, a bill was introduced in Coy= in 1813 to vest the President "with [the] power[ of retaliation [against British POWs]." [21] The bill was initially rejected by the House in November of 1812, and the Annals of Congress report that "[t]he objections to the bill were not to the principle of retaliation, but arose from the opinion that such a power already existed, from usage and from the nature of things, and was inseparable from sovereignty." [22] The Act was subsequently reconsidered and enacted in the face of a growing furor over British atrocities, see Act of March 3, 1813, ch. 61, 2 Stat. 829, but documents entered without rebuke or challenge to his authority already instituted several retaliatory measures in order to protect captured American soldiers [23] Congress never asserted that it possessed any constitutional authority to regulate prisoner treatment, nor did it challenge the President's Commander in Chief and executive powers in this area. Rather, Congress merely sought to encourage the President to take a more aggressive approach toward Britain.

The Mexican War. During the Mexican War, the cost of maintaining captured Mexican soldiers was deemed to be too high. President James K. Polk therefore approved a policy in 1846 whereby captured Mexican soldiers would be released on parole and permitted to return to their homes on the condition that they would not reengage in hostilities [24] President Polk hoped that this policy not only would allow the army to prosecute the attack on Mexico without having to devote an undue number of troops to guard duty, but also that the leniency of the policy would curry favor with Mexican citizens and encourage them to put pressure on their government to bring about a quick settlement to the war. President Polk later modified the parole policy in 1847, ordering that captured Mexican officers be detained with an eye toward exchanging them for captured American soldiers being held by the Mexicans. [25] At no time during the course of the war did anyone in Congress challenge the President's constitutional authority to regulate and establish prisoner of war policy on behalf of the United States.

The Civil War. During the Civil War, President Abraham Lincoln was faced with the task of managing thousands of captured Confederate soldiers. President Lincoln created the post of Commissary General of Prisoners in 1861 to direct the disposition of POWs [26] Although the Commissary General's office was originally placed under the jurisdiction of the Quartermaster General, that arrangement was later changed in 1862, and the office thereafter became subject only to the orders of the War Department. [27] As can be seen from this command structure, POWs were throughout the Civil War subject to the exclusive control of the President, exercised under the auspices of the War Department.

President Lincoln's War Department made various uses of the POWs as the war progressed. In July of 1862 the administration entered into an agreement with Confederate authorities setting forth procedures for the exchange of captured soldiers. [28] Later, in 1863 and 1864, the President approved a proposed War Department plan to recruit captured Confederate soldiers who agreed to take an oath of loyalty to serve in the Union army. During the same time period, a handful of Confederate POWs held in Illinois and New York were ordered to perform labor on various minor construction projects, including water works and drainage ditches. [29] Finally, after the surrender of the Confederate army at Appomatox on April 9, 1865, explicit terms and conditions were established for the release of captured soldiers who were still being held in confinement. [30]

A spirited debate in the Senate during January of 1865 regarding a measure urging the President to retaliate against captured Confederate soldiers strongly demonstrates Congress's view that the ultimate authority to decide prisoner of war policy resided in the President by virtue of his constitutional position as Commander in Chief--In the face of mounting evidence that the Confederacy was starving and otherwise mistreating captured Union soldiers, Senator Wade of Ohio moved the adoption of S.R. No. 97, a joint resolution urging President Lincoln to take retaliatory measures. [31] Significantly, rather than speaking in terms of "authorizing" or "commanding" the President to take action, the resolution declared that "in the judgment of Congress, it has become justifiable and necessary that the President should, in order to prevent the continuance and recurrence of such barbarities...resort at once to measures of retaliation." [32]

To emphasize congressional recognition of the President's prerogative in this area, the resolution explicitly stated that "Congress do not, however, intend by this resolution to limit or restrict the power of the President to the modes or principles of retaliation herein mentioned, but only to advise a resort to them as demanded by the occasion." [33] Indeed, during the debates over the resolution, several Senators expressly remarked that the President already had inherent authority to effect retaliatory measures by virtue of his position as the Chief Executive and the Commander in Chief of the armed forces. Senator McDougall forcefully expressed this sentiment in a floor speech, stating that:

we have been for a week talking about a thing that does not belong to the... Senate or House of Representatives, but belongs to the province of the Executive, and undertaking to give advice to the President of the United States, who has charge of this business, and whose particular duty it is to see that he understand it, and that he executes his office in a proper manner ... . I vote against this proposition upon the ground that it has no business either in this Hall or in the other Hall of Congress, but belongs to a department of the Government which has full authority over it. [34]
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 2 OF 3

Of further significance, the retaliation statute that Congress passed during the War of 1812 was characterized during the debate as merely expressing Congress's opinion "that [retaliation in the face of outrageous enemy practices] was a duty which was then incumbent upon the Executive as the Commander in Chief of the Army as it is now." [35] In sum, the Civil War Congress firmly recognized that the President possessed inherent authority to dispose of the liberty of prisoners of war by virtue of his constitutional position as Commander in Chief, and consequently made no challenge at any time during the war to his repeated unilateral exercise of that power.

The Spanish-American War. The War Department began its planning for the utilization of POWs captured during the Spanish-American War prior to actually engaging in hostilities. [36] Plans were drafted but ultimately abandoned to use Spanish POWs captured in Santiago de Cuba and Puerto Rico to build roads accessing the interior of the islands for use by the army. [37] Later, during the occupation of the Philippines, the War Department determined how to handle the detention of captured Filipino insurrectionists. It ultimately decided to parole insurrectionists who agreed to take an oath of allegiance to the United States, but deported insurrectionists who refused to take the oath to Guam. [38] As in previous wars, it appears that Congress made no effort to intervene in the President's control over the detention and disposition of prisoners of war.

World War I. Planning for World War I began in July of 1916. It was quickly determined that "the War Department should take charge of prisoners of all classes captured or arrested by any agency of the government in time of war." [39] Within the War Department, responsibility for handling POWs was assigned at first to the office of the Adjutant General, and later to the newly created office of the Provost Marshal General ("PMG"). [40] In March 1918, the War Department promulgated extensive regulations governing the domestic employment of POWs who were shipped to the United States from Europe for internment. [41] The regulations provided that POWs could either be hired out on a case-by-case basis to private parties and corporations or made to perform labor on public works projects such as road building, for which the government would pay them the prevailing private wage. [42] Although POWs were used during World War Ito perform construction and salvage work in Europe, it was the announced policy of the United States throughout the conflict not to transfer any POWs to the control of Allied powers. [43] Nevertheless, the United States did allow the Allies to transfer numerous prisoners of war to its control, particularly during the campaign in France. [44] Again, Congress took no action in regard to prisoners of war that indicates it believed it had any constitutional authority or competence in that area.

The Interwar Years. The War Department engaged in significant prisoner of war planning during the 20-odd year period between the two World Wars. The Provost Marshal General's Department was abolished soon after the end of World War L This left a significant vacuum of responsibility, however, when the United States signed the Geneva Prisoner of War Convention of 1929, thereby assuaging the obligation to establish a domestic War Information Bureau to collect and dispense information about POWs in the event of a war. [45] Responsibility for prisoner of war planning was therefore transferred to the Adjutant General's office and remained there until a new Provost Marshal General was appointed in the summer of 1941. [46] Anticipating the entry of the United States into World War II, the PMG ordered the construction of detention facilities in the southwestern United States beginning in the fall of 1941. The PMG also issued regulations establishing the conditions under which POWs could be employed as a source of wartime labor. [47]

World War II. American prisoner of war policy underwent several significant transformations during the Second World War. Moreover, POW policy varied from front to front depending on the tactical conditions that the army faced and the types of operations in which the army was engaged. Rather than examine the handling of POWs during World War II in minute detail, it is easier to sketch the broad themes that characterized United States policy.

Although the army underwent several reorganizations during the course of the war, the Office of the Provost Marshal General remained at all times directly in charge of handling POWs. [48] The PMG's office was broken up into different sections for operations on the various theaters of the war, each under the ultimate command of the Allied Commander in Chief. [49] At the Commander in Chief's direction, soldiers captured in North Africa and in Europe were extensively employed in support of advancing troops on construction and other projects, freeing Allied units to directly participate in combat on the front lines. [50] This was particularly true of non-fascist Italian POWs, who proved to be more cooperative than their German counterparts and who were formed into regular work companies called "Italian Service Units" or ISUs. [51] POWs who refused to work or were otherwise deemed unfit for employment were kept in central enclosures well away from the front lines, where there was no danger that the Axis armies would attempt to free them. [52]

Many prisoners of war captured in early campaigning were shipped to the United States, there to be either put to work or placed in interment camps. Homefront employment of POWs became sufficiently extensive by the summer of 1943 that the Secretary of War enlisted the aid of another executive agency, the War Manpower Commission, to aid in the effective utilization of POW labor resources and to ensure that POW labor was distributed to areas of pressing need, such as food processing, lumbering, and the railroad industry. [53] The War Department and the War Manpower Commission not only determined which industries POWs could, consistent with the dictates of the Geneva Convention, be employed in, but also established wage scales for the various types of work performed by the POWs. [54] Furthermore, at the close of hostilities the President and the War Department determined the conditions and the timetable under which POWs would be released. [55]

World War II provides the first large-scale example of massive prisoner of war transfers to foreign nations. It is significant that this transfer occurred pursuant to unilateral Presidential order, without the need for congressional approval. During the course of World War II, the United States transferred tens of thousands of prisoners of war to the control of other nations. Shortly after the surrender of the Italian and German forces in Tunisia in May of 1943, the United States transferred 15,000 of its Italian POWs and 5,000 of its German POWs to French control for labor purposes. [56] A similar arrangement was made on the continent after V-E Day in 1945, whereby the United States agreed to transfer 1,300,000 POWs to the control of France, Belgium, and Luxembourg to perform necessary labor on public works projects. [57] 700,000 POWs were ultimately transferred, and it is highly significant that a POW transfer of this scale was made in the sole discretion of the President even after the hostilities in Europe had been concluded.

The most complicated and elaborate transfer schemes employed by the United States during World War U were tailored to the unusual conditions that prevailed in the Middle Eastern theater. In early 1943, the Provost Marshal General's office found itself unprepared to handle a large influx of POWs in this area, and therefore directed that any enemy soldiers who were captured be immediately turned over to British control. [58] By the summer of 1943, however, the American command had established an infrastructure capable of handling POW internment, and the United States and Great Britain agreed that "[e]ach nation, after the initial documentation [of the capture], was to assume responsibility for one-half the total number of prisoners of war captured, after the deduction of any [POWs] captured by a third ally." [59] Later, a new wrinkle was added to this policy when an additional complication arose: The British had an agreement with the Egyptian government allowing them to import prisoners of war into the country, but the United States did not. An arrangement was therefore agreed to whereby American-held POWs were transferred to British control, shipped into Egypt as British POWs, and then restored to the United States. [60]

Although relatively few POWs were captured in the Pacific theatre during World War U, the United States nevertheless made arrangements to turn POWs captured there over to foreign control. Japanese forces that were captured in the "Southwest Pacific Area" were transferred to the control of the Commonwealth of Australia, largely because the United States lacked sufficient rear area facilities and personnel to adequately maintain the POWs itself. [61] Similar complications in the "China-Burma-India Theater" led the United States to turn all POWs captured in that vicinity over to the nearest British headquarters. [62]

The United States also on several occasions during World War II agreed to accept control of prisoners of war captured by its Allies; in August of 1942, for example, the Joint Chiefs of Staff agreed to accept 150,000 POWs from the British because the British were having a difficult time mustering sufficient supplies to sustain them. [63] A similar arrangement was agreed to in November of 1942 whereby 25,000 Italian POWs captured by the British in Kenya were shipped to the United States and maintained there under United States control. [64] Finally, at the outset of the joint American-British invasion of North Africa in 1943 it was agreed that all POWs captured in Northwest Africa by either nation would be considered to be under the control of the United States. [65]

Vietnam. [66] The United States did not have to develop a detailed prisoner of war policy during the Vietnam War, as it agreed early on in the hostilities to transfer all enemy soldiers that it captured in Vietnam to the custody and control of the South Vietnamese government. [67] This arrangement was formalized by the commander of the United States forces in Vietnam and the South Vietnamese Minister of Defense in the Westmoreland-Co Agreement on September 27, 1965. [68] The United States was not satisfied with the efforts made by the South Vietnamese government to exchange POWs for captured American soldiers, however, and therefore seized on an opportunity that materialized in July of 1966 to retain some POWs under its own control when the crewmembers of several North Vietnamese patrol torpedo boats ("PT boats") were captured in the Gulf of Tonkin. [69] The State and Defense Departments worked jointly to establish the conditions under which the POWs were confined and interrogated, and later worked jointly to try to repatriate the prisoners to North Vietnam in exchange for the release of American POWs. [70] The Defense Department ordered that the Geneva Convention guidelines be strictly adhered to with respect to the PT boat prisoners in order to put pressure on North Vietnam to accord captured Americans similarly humane treatment. [71] When it became obvious that no formal exchange agreement would be secured, the State department ordered that all of the POWs be released anyway in the hope that the release might induce North Vietnam to voluntarily reciprocate. [72]

Panama. At the conclusion of Operation Just Cause in Panama in 1990, approximately 4,000 military detainees were transferred to the control of Panamanian authorities. [73] Although the Panamanian detainees were accorded POW treatment as a matter of policy, the Bush administration never reached "any conclusion that the United States was obligated to do so as a matter of law." [74] Thus, Operation Just Cause provides an additional example of the unilateral transfer by the President of military detainees who were not entitled to prisoners of war status to the custody of a foreign nation.

The Gulf War. The United States transferred thousands of captured Iraqi soldiers to the custody of Saudi Arabia during the Gulf War. [75] No statute authorized the President to transfer the detainees, yet Congress did not protest the transfers and took no action indicating that it believed that it had authority under the Constitution to address them.

Conclusion. Since the Founding, no one has seriously questioned that the Constitution's vesting of the Commander-in-Chief and Chief Executive powers in the President constitutes an affirmative grant of authority to the President to "dispose of the liberty" of prisoners of war. Control over prisoners has been considered the prerogative of army commanders in chief throughout American history. With the exception of the statutes passed during the Quasi-War with France and the War of 1812 authorizing the President to take and retaliate against prisoners of war, Congress has never sought to regulate the disposition of POWs or asserted that it has any authority over them. Indeed, even the statutes from the Quasi-War with France and the War of 1812 did not truly "regulate" the disposition of POWs, but rather, without providing binding rules or standards, authorized and provided financial support for vigorous Presidential action. The unbroken historical chain of exclusive Presidential control over enemy soldiers and agents captured in time of war establishes that the President's powers have been understood by the political branches to include the inherent authority to develop and implement United States policy respecting prisoners of war.

Moreover, historical practice clearly demonstrates that the President's inherent authority over prisoners of war includes discretion to transfer custody and control over prisoners of war to other sovereign nations. There is a rich historical tradition of such transfers, beginning as far back as the Revolutionary War and with the most prominent examples occurring in World War II and Vietnam. The admittedly considerable expanse of time during which no such transfers were effected by the United States, which spans the War of 1812, the Mexican War, the Civil War, and the Spanish-American War, is easily explained by the absence of any allies in those wars to which a POW transfer might have been deemed desirable. The advent of alliance warfare during World War I provided the United States with its first opportunity in over a century to engage in prisoner of war transfers, but the military made the policy determination - without ever disclaiming the authority to engage in POW transfers - that it preferred to retain control over all soldiers that it captured. The extensive use of prisoner of war transfers during subsequent conflicts, however, confirms the widespread acceptance of the President's authority and discretion to dispose of the liberty of captured enemy personnel as he sees fit. During this history, neither Congress nor the Judiciary ever challenged or called into question the power of the President to do so.

In sum, the power of the President to set forth and establish all aspects of the prisoner of war policy of the United States, including the power to transfer prisoners of war to the custody and control of other nations, has always been understood as being within the Commander-in- Chief power. Further, it has never been challenged -or called seriously into question by the coordinate branches of the government.

3. Commander-In-Chief Control Of Captured Individuals Not Entitled To POW Status

The President's power as Commander in Chief to dispose of the liberty of individuals captured during military engagements is not limited to those who are entitled to prisoner of war status. During the Civil War, for example, the President negotiated terms for the exchange of civilian prisoners captured by the Union army during military operations. [76] And during World War II, the Commander in Chief of the Allied Expeditionary Force issued regulations governing the disposition of captured individuals not in uniform. Those regulations provided that "unless they can produce evidence to prove that they have the right to treatment as Prisoners of War, [captured personnel not in uniform] will be detained as civilian suspects. Those of FRENCH nationality may be handed over to the FRENCH while those of other nationalities will be retained in custody." [77] Finally, even though Viet Cong captured in South Vietnam during the Vietnam War were indigenous rebels and therefore arguably not entitled to prisoner of war status, the United States nevertheless transferred them to the custody and control of South Vietnam. [78] In sum, historical practice firmly supports the power of the President to transfer and otherwise dispose of the liberty of all individuals captured incident to military operations, and not merely those individuals who may technically be classified as prisoners of war under relevant treaties.

B. Limitations on POW Transfers Imposed by the Geneva Convention

It has long been a recognized international practice for one nation to transfer prisoners of war that it has captured to the custody and control of other nations that are either neutral countries or co-belligerents. [79] Articles drawn up at an international conference in Brussels in 1874 expressly provided for the transfer of prisoners of war to neutral countries during ongoing hostilities, and the 1929 Geneva Convention Relating to Prisoners of War also authorized such transfers under certain circumstances. [80] Indeed, the 1929 Convention expressly distinguished the obligations of the "Capturing Power" from the obligations of the "Detaining Power," implicitly recognizing that the two Powers frequently would not be one and the same. Rather than authorize transfer, these agreements appear to have recognized and codified pre-existing practice under the customary laws of war.

The historical practice of POW transfer is perhaps most explicitly recognized and regulated by the most recent international agreement on the subject, the 1949 GPW. Among other things, the GPW establishes rules governing the transfer of POWs between sovereign nations. Article 12 states that "[p]risoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention." Articles 109 and 110 provide for the accommodation of POWs in neutral countries under certain circumstances. Although these provisions are intended to limit the circumstances under which POWs can be transferred between nations, their inclusion in the Convention establishes that in their absence commanders-in-chief have virtually unfettered discretion to transfer custody of POWs to other nations under international law.

It is exactly this legal rule that applies to al Qaeda and Taliban prisoners. The GPW's protections for POWs apply only in "all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them." [81] As this Office has concluded elsewhere, members of al Qaeda have no rights under GPW because al Qaeda, as a non-state terrorist organization, is not a "High Contracting Party" to the Geneva Conventions. See GPW Memo. GPW, therefore, does not apply to the conflict between the United States and al Qaeda and any members of al Qaeda who are captured consequently are not legally entitled to POW status.

On the other hand, both the United States and Afghanistan are High Contracting Parties to the Geneva Conventions. GPW entered into force in the United States on February 2, 1956, and Afghanistan acceded to it on September 26, 1956. [82] As this Office has concluded elsewhere, however, the President has the authority to interpret the GPW to find that members of the Taliban are not legally entitled to GPW status because they do not meet the requirements for POWs set out in GPW Article 4. See GPW Memo. Individuals are not entitled to POW status under GPW unless they meet certain standards, including being a member of an armed force or related militia or volunteer corps that wears uniforms, bears arms openly, and obeys the laws of war. On February 7, 2002, the President exercised this authority and found that none of the Taliban prisoners are entitled to POW status. Consequently, GPW's limitations on the ability to transfer POWs do not apply. GPW establishes no minimum standards regulating the transfer of combatants who do not meet the definition of a POW under Article 4.

Thus, although the transfer provisions of GPW are inapplicable to members of al Qaeda or the Taliban militia, the President could, of course, decide to transfer members of al Qaeda or the Taliban consistent with GPW. If the President were to decide to apply GPW, it would govern POW transfer in the following fashion. Article 12 provides that "[p]risoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention." The GPW thus imposes two initial limitations on transfers of prisoners of war. The first requirement, which holds that the Transferee Power must be a party to the GPW, is both easy to understand and relatively unproblematic, as virtually every nation in the world has signed it. [83] The requirement that the Detaining Power "satisfy itself' that the Transferee Power is "willing" to apply the GPW, however, is considerably more vague. The International Committee of the Red Cross ("ICRC") has expressed the opinion that the Detaining Power can fulfill its obligation only through a prior investigation, which it suggests be conducted under the auspices of the Power assigned to protect the prisoners. See 3 The Geneva Conventions of 12 August 1949: Commentary 136 (Jean S. Pictet ed., ICRC 1960). We do not agree, however, that Article 12 requires that the Detaining Power have actual knowledge of the conditions in which the other power will keep a transferred POW, or that the other power guarantee a certain kind of treatment The phrase "satisfy[y] itself," certainly does not require a prior investigation of the sort contemplated by the ICRC, but instead suggests that whether the receiving nation will meet with GPW is for the transferring country to determine. Further, Article 12 does not state that the Detaining Power must satisfy itself that the transferee nation will honor the strict letter of the GPW in every respect. Rather, a separate sentence of Article 12 indicates that the Detaining Power's responsibility is limited to ascertaining that the transferee nation will not breach the GPW "in any important respect." [84] The ICRC has interpreted that phrase to mean "systematic violations of the Convention," breaches causing "serious prejudice to the prisoners," and "grave breaches of the Convention" as defined by Article 130. Pictet, supra. at 138. Even the ICRC, therefore, acknowledges that the Detaining Power need not satisfy itself that the transferee nation will meet every requirement of GPW in its treatment of POWs.

Once a POW is formally transferred, GPW establishes that the Detaining Power is no longer responsible for the treatment that the POW receives. [85] If, however, the "Protecting Power" - typically the ICRC - complains that the Transferee Nation is not honoring GPW's limitations, the Detaining Power must investigate the Protecting Power's claim, and might even be required to request the return of the prisoner. Like the up-front limitations on POW transfers, however, these back-end GPW requirements are entirely self-enforcing and subject to interpretation, and the manner in which the United States elects to uphold its treaty obligations is left entirely to its own discretion. Your Department would likely have more information that the Department of Justice concerning United States practice, if any, under this provision.

C. Limitations Imposed on the Transfer Of Detainees By the Torture Convention

In addition to GPW, the Torture Convention establishes certain restrictions on the ability of state parties to transfer individuals within its control. The Torture Convention prohibits contracting parties from transferring individuals who are in their custody within their territory to the control of foreign governments that are more likely than not to torture them. Article 3 of the Torture Convention specifies that "[n]o 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." [86] Article 2 provides that "[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture." [87] The United States is a party to the Convention. President Reagan signed the Convention on April 18, 1988, and the Senate consented to it on October 27, 1990.

Two of the Senate's reservations, understandings, and declarations accompanying the Convention are worth mentioning here. First, the United States expressed the understanding that the phrase "substantial grounds for believing that he would be in danger of being subjected to torture" in Article 3 means that "it is more likely than not that he would be tortured." [88] Second, the United States expressly declared that Article 3 of the Convention is not self-executing. [89] As a non-self-executing treaty, the Torture Convention does not, without implementing legislation, provide a private cause of action in federal court for an individual to oppose his expulsion or extradition. See generally Memorandum for Mary B. DeRosa, Legal Adviser, National Security Counsel, from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, Re: Identifying Self-Executing Treaty Provisions at 1-2 (Dec. 26, 2000); 1 Restatement (Third) of the Foreign Relations Law of the United States § 111 & cmt. h (1987). Thus, the Torture Convention does not itself provide a prisoner with the legal grounds to ask a federal court to block his transfer to another country.

Congress has also passed laws implementing the Torture Convention, however, and such laws generally are domestically enforceable. First, Congress has required all "heads of appropriate agencies" to "prescribe regulations to implement the obligations of the United States under Article 3" of the Convention. Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L No. 105-277, § 2242(b), 112 Stat. 2681, 2681-822 (1998); 18 U.S.C. § 1231 note (1994). This provision does not concern us here, as no regulations that have been promulgated pursuant to it are applicable to military transfers. [90] Congress has also broadly proclaimed, however, that "[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States." Id. § 2242(a), 112 Stat. at 2681- 822; 18 U.S.C. § 1231 note. This provision largely tracks the language of the Torture Convention, but it significantly extends the Convention's protections to persons who are not physically present in the United States. Congress expressly referred to this proclamation as a "policy statement," id., indicating that it should not be construed as an actual interpretation of the treaty language or as a provision creating judicially enforceable rights. See Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 454-55 (1988) (holding with respect to statutory language similarly setting forth the "policy of the United States" that "[n]owhere in the law is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights"); Attakai v. United States, 746 F. Supp 1395, 1405 (D. Arizona 1990) (same). Furthermore, even if it were an interpretation of the Convention, the interpretation would not be binding on the Executive, and indeed it would arguably constitute unconstitutional interference with the President's constitutional authority over treaties. See generally Memorandum for John Bellinger, a Senior Associate Counsel to the President and Legal Adviser to the National Security Council, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty (Nov. 15, 2001) (the "ABM Suspension Memo").

The non-self-executing nature of the Torture Convention does not answer the question whether the executive branch has a legal obligation to enforce the treaty by refusing to transfer individuals, held in custody in United States territory, to foreign governments under circumstances where it is more likely than not that they will be tortured. [91] But we need not address this latter issue because the Torture Convention has no extraterritorial effect (except in the case of extradition) and, hence, cannot apply to al Qaeda and Taliban prisoners detained outside of United States territory at Guantanamo Bay or in Afghanistan. Although the United States Supreme Court has never interpreted the scope of Article 3, under which the United States cannot "expel," "return," or "extradite" individuals to countries in which it is more likely than not that they will be tortured, it has interpreted identical language elsewhere. As. the Supreme Court has held, a treaty's use of the words "return" and "expel" means that the treaty's requirements apply only to individuals being held within the territory of the United States. See Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993) (construing the same words as used in the Conventions Relating to the Status of Refugees). The Court explained that the word expel `refers to the deportation or expulsion of an alien who is already present in the host country." Id. at 180. The word return, on the other hand, which the treaty defines in part by a parenthetical reference to the French word "refouler," "has a legal meaning [that is] narrower than its common meaning." Id. "Refouler" is not a synonym for the English word "return," but rather means to "repulse," "repel," or "drive back." Id. at 180-81. Thus, in the context of international treaties such as the Torture Convention, the word "return" refers to the involuntary removal of individuals who have not been legally admitted into the territory of the host country, but rather have been turned back or detained at the border. [92] Id. at 181-82. "A treaty cannot impose uncontemplated extraterritorial obligations on those who ratify it through no more than its general humanitarian intent." Id. at 183. [93]

Given the Supreme Court's interpretation of identical language in the Refugee Convention, it makes no sense to view the Torture Convention as affecting the transfer of prisoners held outside the United States to another country. [94] Our conclusion receives further support from the canon of construction that statutes and treaties are not to be read to have extraterritorial effect unless Congress clearly states its intentions otherwise in the text. See, e.g., Sale, 509 U.S. at 177-87. That presumption plays an important role in ensuring that the political branches have the discretion to manage the Nation's foreign affairs, unless there is a clear intention to regulate such matters by statute or treaty. See McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20-22 (1963). Furthermore, we must interpret statutes and treaties so as to protect the President's constitutional powers from impermissible encroachment and thereby to avoid any potential constitutional problems. Cf. Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 466 (1989). Here, reading the Torture Convention to apply extraterritorially would interfere with the President's powers as Commander in Chief and Chief Executive to direct the operations of the military. We do not read the Torture Convention to have such an effect without a clear statement in the text of the treaty or any implementing legislation.

Further, construing the Torture Convention as applying to the extraterritorial detention of prisoners of war would create an unacceptable conflict with the GPW. As noted earlier, the GPW establishes a legal regime for the treatment of prisoners of war. The highly detailed provisions of GPW are designed to provide a comprehensive set of requirements defining the full set of obligations that signatories undertake with respect to the subject matter covered. In generally prohibiting the extradition, expulsion, or return of individuals under certain conditions, the Torture Convention does not displace the GPW's distinct and specialized body of law in its sphere of operation. To the contrary, the standard rule of construction, applicable to both treaties and statutes, is that the specific governs the general. Thus "where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment" Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987) (emphasis in original) (internal quotation marks and citations omitted). See also Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) ("it is a commonplace of statutory construction that the specific governs the general").

Thus, the United States is free from any constraints imposed by the Torture Convention in deciding whether to transfer detainees that it is holding abroad to third countries.

D. Criminal Penalties for Conspiring to Commit Acts of Torture Abroad

Although the President is free from ex ante constitutional and domestic law constraints on his ability to transfer military detainees held outside the United States to the custody of foreign nations, criminal penalties could apply to such transfers if they were deemed to be part of a conspiracy to commit an act of torture abroad. 18 U.S.C. § 2340A(a) (1994), provides:

Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.


18 U.S.C.A. § 2340A(c) (2000), amended by USA Patriot Act, Pub. L. No. 107-56, sec. 811(g), 11S Stat. 272, 381 (2001), provides that the same penalties are applicable to "[a] person who conspires to commit an offense under this section." This law applies to official conduct engaged in by United States military personnel, as 18 U.S.C. § 2340 (1994) defines "torture" to mean "an act committed by a person acting under the color of law," and 18 U.S.C. § 2340A(b)(l) explicitly provides United States courts with jurisdiction where "the alleged offender is a national of the United States."

The scope of the provision is limited by its applicability only to acts of torture committed "outside the United States." Id. § 2340A(a). Because conspiracy liability under section 2340(c) is predicated on an individual's having conspired to perform an act that would have constituted an offense under section 2340(a), section 2340(c) applies only to conspiracies the object of which is the commission of acts of torture abroad. We do not, however, read the statute to exclude from its coverage conspirators who are inside the United States at the time that they enter into an otherwise covered conspiracy. So long as the design of a conspiracy is to commit an act of torture abroad, the locus of the conspirators at the time that they agree to commit the act of torture is irrelevant under the statute.

The statute therefore would provide criminal penalties for any transfer that is found to be part of a conspiracy to commit torture abroad. Under the general federal criminal conspiracy statute, to establish the existence of a criminal conspiracy a prosecutor must demonstrate beyond a reasonable doubt :

(1) that two or more people agreed to pursue an unlawful objective; (2) that the defendant voluntarily agreed to join the conspiracy, and (3) that one or more members of the conspiracy committed an overt act in furtherance of the conspiracy.


United States v. Loe, 262 F.3d 427, 432-33 (5th Cir. 2001) (referring to 18 U.S.C. § 371), cert. denied, No. 01-919, 2002 WL 233060 (Feb. 19, 2002). The Supreme Court has read the first two of these general requirements into other statutes criminalizing "conspiracies" without further defining the term. See, e.g., Salinas v. United States, 522 U.S. 52, 63-65 (1997) (reading the requirements into the RICO statute, 18 U.S.C. § 1962(d)). The Court has ruled, however, that the requirement-of an overt act is a statutory creation that should not be read into statues that do not expressly provide for it. See id. at 64; Fiswick v. United States, 329 U.S. 211, 216 n.4 (1946). It is irrelevant for present purposes whether an overt act is required under the criminal torture statute, however, as the transfer of an individual would almost certainly itself be sufficient to qualify as the requisite overt act.

Thus, to fully shield our personnel from criminal liability, it is important that the United States not enter into an agreement with a foreign country, explicitly or implicitly, to transfer a detainee to that country for the purpose of having the individual tortured. Such an agreement would not have to be explicit to be prosecuted, as an agreement "can instead be inferred from the facts and circumstances of the case." Iannelli v. United States, 420 U.S. 770, 777 n.10 (1975). So long as the United States does not intend for a detainee to be tortured post-transfer, however, no criminal liability will attach to a transfer, even if the foreign country receiving the detainee does torture him. For criminal liability to attach, the accused must be shown to have intended to effectuate the criminal object of the conspiracy. United States v. U.S. Gypsum Co., 438 U.S. 422, 443 n.20 (1978). Thus, so long as the United States personnel who agree to transfer a detainee do not intend to effectuate the criminal object that is forbidden by the criminal torture statute - here, the torturing of the detainee - they cannot be prosecuted under the statute.

II. DOMESTIC RULES GOVERNING EXTRADITION

Extradition is "the normal process by which individuals charged with or convicted of a crime against the law of one state and found in a second state are returned by the second state to the first for trial or punishment." [95] It is a highly specialized process, the basic characteristics of which are outlined below, and it is accordingly subject to its own particularized set of rules and limitations. Thus, the more generic restrictions that the Geneva Convention places on transfers of prisoners of war do not apply to requests for extradition, and, reciprocally, the specialized rules and requirements that are applicable to the extradition process do not restrict other methods of transfer. Extradition requests typically relate to individuals being held within a nation's territorial jurisdiction, and it is therefore unlikely that the process can be invoked with respect to alien combatants captured in Afghanistan and detained in Guantanamo Bay or Afghanistan. See Memorandum for William J. Haynes, II, General Counsel, Department of Defense, from Patrick F. Philbin, Deputy Assistant Attorney General and John Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba (Dec. 28, 2001). Although we do not believe that extradition is involved in the extraterritorial transfer of prisoners of war, in the interests of fully informing you of the different legal regimes that might apply in the future we will analyze the applicable procedural requirements and legal restrictions.

A. Extradition Must Be Authorized by Law

In Valentine v. United States ex rel. Neidecker, the Supreme Court ruled that "the Constitution creates no executive prerogative to dispose of the liberty of the individual. Proceedings against him must be authorized by law. There is no executive discretion to surrender him to a foreign government, unless that discretion is granted by law." 299 U.S. 5, 9 (1936). Although Valentine was decided in the context of an attempt to extradite a citizen of the United States, its requirement that all executive initiatives to surrender individuals to foreign governments must be authorized by law has consistently been applied by the lower courts to attempted extraditions of foreign nationals. [96] See, e.g., Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir. 1999), cert. denied, 528 U.S. 1135 (2000).

Valentine establishes that the executive's power to extradite an individual "must be found [in a] statute or treaty [that] confers the power." Valentine, 299 U.S. at 9. Where an extradition treaty is in force between the United States and a country to which the executive wishes to extradite an individual, the treaty will establish most of the terms and requirements for extradition. Some generalizations about extradition procedures can be made, however, on the basis of applicable statutes. First, no person can be surrendered absent "the requisition of the proper authorities of [a] foreign government." 18 U.S.C. § 3184 (Supp. II 1996). Second, the crime that is the subject of the requisition re nest must be listed in the applicable treaty, must not be a crime that is purely political in nature, [97] must have taken place "within the jurisdiction of [the] foreign government," and must be considered a crime under United States law. Id. Additionally, a court reviewing the extradition request must "deem[] the evidence sufficient to sustain the charge" before the individual can be extradited. Id. [98]

These same procedural rules also apply to extradition authorized by statute rather than by treaty. Id. The most significant statutory provision that allows the executive to extradite individuals without regard to the existence of a treaty is 18 U.S.C. § 3181(b) (Supp. II 1996), which, in the interest of comity with foreign nations, authorizes "the surrender of persons, other than citizens, nationals, or permanent residents of the United States, who have committed crimes of violence against nationals of the United States in foreign countries." The predicate crime justifying extradition under section 3181 must be a crime of violence as defined by 18 U.S.C. § 16 (1994) and cannot be political in nature. Section 3181 is relatively narrow in scope. The person to be surrendered cannot be a United States citizen and must have committed a crime of violence against a United States national while outside of United States territory.

B. Domestic Law Limitations on Extradition Based on the Torture Convention

Once all of the applicable procedures have been followed and the statutory or treaty- based requirements have been met, the Secretary of State has virtually absolute discretion whether or not to extradite the individual in question. There are some significant domestic law constraints, however, imposed by statutes and regulations that implement the Torture Convention.

As has been noted, in 1998 Congress passed a statute requiring "the heads of the appropriate agencies shall prescribe regulations to implement the obligations of the United States under Article 3" of the Torture Convention, "subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention." Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, § 2242(b), 112 Stat 2681, 2681-822 (1998); 18 U.S.C. § 1231 note (1994). Pursuant to this statute, the State Department has issued a set of regulations designed to implement the Convention. Those regulations declare that "to implement the obligation assumed by the United States pursuant to Article 3 of the Convention, the Department considers the question of whether a person facing extradition from the U.S. 'is more likely than not' to be tortured in the State requesting extradition." [99] 22 C.F.R § 95.2(2)(b) (2001). The regulations go on to specify that "where allegations relating to torture are made or the issue is otherwise brought to the Department's attention, appropriate policy and legal offices review and analyze information relevant to the case in preparing a recommendation to the Secretary," and further provide that "[b]ased on the resulting analysis of relevant information, the Secretary may decide to surrender the fugitive to the requesting State, to deny surrender of the fugitive, or to surrender the fugitive subject to conditions." Id. § 95.3. In this way, the State Department regulations preserve the Secretary's discretion and avoid the imposition of any hard-and-fast rules concerning the circumstances under which extradition is permissible.

The failure of the regulations to establish any definable standards does not necessarily give the Secretary carte blanche to do as he pleases, however. By stating that Convention protections are to be extended to individuals whenever it is found that it "is more likely than not" that they will be tortured if they are extradited, 22 C.F.R. § 95.2 at the very least strongly suggests that the Secretary should not surrender individuals to foreign countries that are likely to torture them. But the provision does not create any judicially enforceable rights, and 22 C.F.R. § 95.4 specifies that "[d]ecisions of the Secretary concerning surrender of fugitives for extradition are matters of executive discretion not subject to judicial review." But see Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1014 (9th Cir. 2000) (dicta "that the Secretary's duty to implement the [Foreign Affairs Reform & Restructuring] Act is non-discretionary and that the statute does not preclude review, [such that] a fugitive fearing torture may petition for review of the Secretary's decision to surrender him").
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