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 » Sat Oct 12, 2013 12:38 am

PART 1 OF 3

MEMO __

U.S. Department of Justice
Office of Legal Counsel
Washington, D.C. 20530

Office of the Principal Deputy Assistant Attorney General

May 30, 2005

MEMORANDUM FOR JOHN A. RIZZO
SENIOR DEPUTY GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY

Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogation of High Value al Qaeda Detainees

You have asked us to address whether certain "enhanced interrogation techniques" employed by the Central Intelligence Agency ("CIA") in the interrogation of high value al Qaeda detainees are consistent with United States obligations under Article 16 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for U.S. Nov. 20, 1994) ("CAT"). We concluded that use of these techniques, subject to the CIA's careful screening criteria and limitations and its medical safeguards, is consistent with United States obligations under Article 16. [1]

By its terms, Article 16 is limited to conduct within "territory under [United States] jurisdiction." We conclude that territory under United States jurisdiction includes, at most, areas over which the United States exercises at least de facto authority as the government. Based on CIA assurances, we understand that the interrogations do not take place in any such areas. We therefore conclude that Article 16 in inapplicable to the CIA's interrogation practices and that those practices thus cannot violate Article 16. Further. the United States undertook its obligations under Article 16 subject to a Senate reservation, which, as relevant here, explicitly limits those obligations to the "cruel, unusual and inhumane treatment ... prohibited by the Fifth Amendment ... to the Constitution of the United States." [2] There is a strong argument that through this reservation the Senate intended to limit the scope of United States obligations under Article 16 to those imposed by the relevant provision of the Constitution. As construed by the courts, the Fifth Amendment does not apply to aliens outside the United States. The CIA has assured us that the interrogation techniques are not used within the United States or against United States persons, including both United States citizens and lawful permanent residents. Because the geographic limitation on the face of Article 16 renders it inapplicable to the CIA interrogation program in any event, we need not decide in the memorandum the precise effect, if any, of the Senate reservation on the geographic reach of United States obligations under Article 16. For these reasons, we conclude in Part II that the interrogation techniques where and as used by the CIA are not subject to, and therefore do not violate, Article 16.

Notwithstanding these conclusions, you have also asked whether the interrogation techniques at issue would violate the substantive standards applicable to the United States under Article 16 if, contrary to our conclusion in Part II, those standards did extend to the CIA interrogation program. As detailed below in Part III, the relevant constraint here, assuming Article 16 did apply, would be the Fifth Amendment's prohibition of executive conduct that "shocks the conscience." The Supreme Court has emphasized that whether conduct "shocks the conscience" is a highly context-specific and fact-dependent question. The Court, however, has not set forth with precision a specific test for ascertaining whether conduct can be said to "shock the conscience" and has disclaimed the ability to do so. Moreover, there are few Supreme Court cases addressing whether conduct "shocks the conscience," and the few cases there are have all arisen in very different contexts from that which we consider here.

For these reasons, we cannot set forth or apply a precise test for ascertaining whether conduct can be said to "shock the conscience." Nevertheless, the Court's "shocks the conscience" cases do provide some signposts that can guide our inquiry. In particular, on balance the cases are best read to require a determination whether the conduct is "'arbitrary in the constitutional sense,'" County of Sacrament to v. Lewis, 523 U.S. 833, 846 (1998) (citation omitted); that is, whether it involves the "exercise of power without any reasonable justification in the service of a legitimate governmental objective," id. "[C]conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level." Id. at 849. Far from being constitutionally arbitrary, the interrogation techniques at issue here are employed by the CIA only as reasonably deemed necessary to protect against grave threats to United States interests, a determination that is made at CIA Headquarters, with input from the on-scene interrogation team, pursuant to careful screening procedures that ensure that the techniques will be used as little as possible on as few detainees as possible. Moreover, the techniques have been carefully designed to minimize the risk of suffering or injury and to avoid inflicting any serious or lasting physical or psychological harm. Medical screening, monitoring, and ongoing evaluations further lower such risk. Significantly, you have informed us that the CIA believes that this program is largely responsible for preventing a subsequent attack within the United States. Because the CIA interrogation program is carefully limited to further a vital government interest and designed to avoid unnecessary or serious harm, we conclude that it cannot be said to be constitutionally arbitrary.

The Supreme Court's decisions also suggest that it is appropriate to consider whether, in light of "traditional executive behavior, of contemporary practice, and the standards of blame generally applied to them," use of the techniques in the CIA interrogation program "is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Id. at 847 n.8. We have not found evidence of traditional executive behavior or contemporary practice either condemning or condoning an interrogation program carefully limited to further a vital government interest and designed to avoid unnecessary or serious harm. We recognize, however, that use of coercive interrogation techniques in other contexts -- in different settings, for other purposes, or absent the CIA's safeguards -- might be thought to "shock the conscience." Cf., e.g., Rochin v. California, 342 U.S. 165, 172 (1952) (finding that pumping the stomach of a criminal defendant to obtain evidence "shocks the conscience"); U.S. Army Field Manual 34-52: Intelligence Interrogation (1992) ("Field Manual 34-52") (detailing guidelines for interrogations in the context of traditional warfare); Department of State, Country Reports on Human Rights Practices (describing human-rights abuses condemned by the United States). We believe, however, that each of these other contexts, which we describe more fully below, differs critically from the CIA interrogation program in ways that would be unreasonable to ignore in examining whether the conduct involved in the CIA program "shock[s] the contemporary conscience." Ordinary criminal investigations within the United States, for example, involve fundamentally different government interests and implicate specific constitutional guarantees, such as the privilege against self-incrimination, that are not at issue here. Furthermore, the CIA interrogation techniques have all been adapted from military Survival, Evasion, Resistance, Escape ("SERE") training. Although there are obvious differences between training exercises and actual interrogation, the fact that the United States uses similar techniques on its own troops for training purposes strongly suggests that these techniques are not categorically beyond the pale.

Given that the CIA interrogation program is carefully limited to further the Government's paramount interest in protecting the Nation while avoiding unnecessary or serious harm, we conclude that the interrogation program cannot "be said to shock the contemporary conscience" when considered in light of "traditional executive behavior" and "contemporary practice." Lewis, 523 U.S. at 847 n.8.

I.

[Big delete]

Elsewhere, we have described the CIA interrogation program in great detail. See Memorandum for John A. Rizzo, Senior Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of 18 U.S.C. §§2340-2340A to Certain Techniques that May Be Used in the Interrogation of a high Value al Qaeda Detainee at 4-15, 28-45 (May 10, 2005) ("Techniques"); Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of 18 U.S.C. §§ 2340-2340A to the Combined Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees at 3-9 (May 10, 2005) ("Combined Use"). The descriptions of the techniques, including all limitations and safeguards applicable to their use, set forth in Techniques and Combined Use are incorporated by reference herein, and we assume familiarity with those descriptions. Here, we highlight those aspects of the program that are most important to the question under consideration. Where appropriate, throughout this opinion we also provide more detailed background information regarding specific high value detainees who are representative of the individuals on whom the techniques might be used. [3]

A.

Under the CIA's guidelines, several conditions must be satisfied before the CIA considers employing enhanced techniques in the interrogation of any detainees. The CIA must, based on available intelligence, conclude that the detainee is an important and dangerous member of an al Qaeda-affiliated group. The CIA must then determine, at the Headquarters level and on a case-by-case basis with input from the on-scene interrogation team, that enhanced interrogation methods are needed in a particular interrogation. Finally, the enhanced techniques, which have been designed and implemented to minimize the potential for serious or unnecessary harm to the detainees, may be used only if there are no medical or psychological contraindications.

1.

[Big delete] the CIA uses enhanced interrogation techniques only if the CIA's Counterterrorist Center ("CTC") determines an individual to be a "High Value Detainee," which the CIA defines as:

a detainee who, until time of capture, we have reason to believe: (1) is a senior member al-Qai'da or an al-Qai'da associated terrorist group (Jemaah Islamiyyah, Egyptian Islamic Jihad, al-Zarqawi Group, etc.); (2) has knowledge of imminent terrorist threats against the USA, its military forces, its citizens and organization, or its allies; or that has/had direct involvement in planning and preparing terrorist actions against the USA or its allies, or assisting the al-Qai'da leadership in planning and preparing such actions; and (3) if released, constitutes a clear and continuing threat to the USA or its allies.


Fax for Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, from [delete], Assistant General Counsel, Central Intelligence Agency, at 4 (Jan. 4, 2005) (January 4 [delete] Fax"). The CIA, therefore, must have reason to believe that the detainee is a senior member (rather than a mere "foot soldier") of al Qaeda or an associated terrorist organization, who likely has actionable intelligence concerning terrorist threats, and who poses a significant threat to United States interests.

The "waterboard," which is the most intense of the CIA interrogation techniques, is subject to additional limits. It may be used on a High Value Detainee only if the CIA has "credible intelligence that a terrorist attack is imminent"; "substantial and credible indicators that the subject has actionable intelligence that can prevent, disrupt or delay this attack"; and "[o]ther interrogation methods have failed to elicit the information [or] CIA has clear indications that other ... methods are unlikely to elicit this information within the perceived time limit for preventing the attack." Letter from John A. Rizzo, Acting General Counsel, Central Intelligence Agency, to Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel at 5 (Aug. 2, 2004) ("August 2 Rizzo Letter") (attachment).

To date, the CIA has taken custody of 94 detainees [big delete] and has employed enhanced techniques to varying degrees in the interrogations of 28 of these detainees. We understand that two individuals, [delete] [delete] are representative of the high value detainees on whom enhanced techniques have been, or might be, used. On [delete] the CIA took custody of [delete] whom the CIA believed had actionable intelligence concerning the pre-election threat to the United States. See Letter from [delete], Associate General Counsel, Central Intelligence Agency, to Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel at 2 (Aug. 25, 1004) ("August 25 [delete] Letter"). [Delete] extensive connections to various al Qaeda leaders, members of the Taliban, and the al-Zarqawi network, and intelligence indicated [delete] arranged a ... meeting between [delete] and [big delete] at which elements of the pre-election threat were discussed." Id. at 2-3; see also Undated CIA Memo, [big delete].

Intelligence indicated that prior to his capture, [delete] "perform[ed] critical facilitation and finance activities for al-Qa'ida," including "transporting people, funds, and documents." Fax for Jack L. Goldsmith, III, Assistant Attorney General, Office of Legal Counsel, from [delete], Assistant General Counsel, Central Intelligence Agency (March 12, 2004). The CIA also suspected [delete] played and active part in planning attacks against United States forces [big delete] had extensive contacts with key members of al Qaeda, including, prior to their captures, Khalid Shayk Muhammad ("KSM") and Abu Zubaydah. See id. [Delete] was captured while on a mission from [delete] to establish contact with al-Zarqawi. See CIA Directorate of Intelligence, U.S. Efforts Grinding Down al-Qa'ida 2 (Feb. 21, 2004).

Consistent with its heightened standard for use of the waterboard, the CIA has used this technique in the interrogations of only three detainees to date (KSM, Zubaydah, and Abd Al-Rahim Al-Nashiri) and has not used it since the March 2003 interrogation of KSM. See Letter from Scott W. Muller, General Counsel, Central Intelligence Agency, to Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel at 1 (June 14, 2004).

We understand that Abu Zubaydah and KSM are representative of the types of detainees on whom the waterboard has been used, or might be, used. Prior to his capture, Zubaydah was "one of Usama Bin Laden's key lieutenants." CIA, Zayn al-Abidin Muhammad Husayn ABU ZUBAYDAH at 1 (Jan. 7 2002) ("Zubaydah Biography"). Indeed, Zubaydah was al Qaeda's third or fourth highest ranking member and had been involved "in every major terrorist operation carried out by al Qaeda." Memorandum for John Rizzo, Acting General Counsel, Central Intelligence Agency, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, Re: Interrogation of al Qaeda Operative at 7 (Aug. 1 2003) ("Interrogation Memorandum"); Zubaydah Biography (noting Zubaydah's involvement in the September 11 attacks). Upon his capture on March 27, 2002, Zubaydah became the most senior member of al Qaeda in United States custody. See IG Report at 12.

KSM, "a mastermind" of the September 11, 2001, attacks, was regarded as "one of al-Qa'ida's most dangerous and resourceful operatives" (CIA "Khalid Shayk Muhammad (Nov. 1, 2002) ("CIA KSM Biography"). [Big delete] Prior to his capture, the CIA considered KSM to be one of al Qaeda's "most important operational leaders ... based on his close relationship with Usama Bin Laden and his reputation among the al-Qa'ida rank and file." Id. After the September 11 attacks, KSM assumed "the role of operations chief for al-Qa'ida around the world." CIA Directorate of Intelligence, Khalid Shayk Muhammad, Preeminent Source on A-Qa'ida 7 (July 13, 2004) ("Preeminent Source"). KSM also planned additional attacks within the United States both before and after September 11. See id. at 7-8; see also The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States 150 (official gov't ed. 2004) ("9/11 Commission Report"). [4]

2.

Even with regard to detainees who satisfy these threshold requirements, enhanced techniques are considered only if the on-scene interrogation team determines that the detainee is withholding or manipulating information. In order to make this assessment, interrogators conduct an initial interview "in a relatively benign environment." Fax for Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, from [delete] Associate General Counsel, Central Intelligence Agency, Re: Background Paper on CIA's Combined Use of Interrogation Techniques at 3 (Dec. 30, 2004) ("Background Paper"). At this stage, the detainee is "normally clothed but seated and shackled for security purposed," and the interrogators take "an open, non-threatening approach." Id. In order to be judged participatory, however, a high value detainee "would have to willingly provide information on actionable threats and location information on High-Value Targets at large -- not lower level information." Id. If the detainee fails to meet this "very high" standard, the interrogation team develops an interrogation plan, which generally calls for the use of enhanced techniques only as necessary and in escalating fashion. See id. at 3-4; Techniques at 5.

Any interrogation plan that involves techniques must be reviewed and approved by "the Director, DCI Counterterrorist Center, with the concurrence of the Chief, CTC Legal Group." George J. Tenet, Director of Central Intelligence Guidelines on Interrogations Conducted Pursuant to the [big delete] at 3 (Jan. 28, 2003) ("Interrogation Guidelines"). [5] Each approval lasts for a period of at most 30 days, see id. at 1-2, although enhanced interrogation techniques are generally not used for more than seven days, see Background Paper at 17.

For example, after medical and psychological examinations found no contraindications, [delete]'s interrogation team sought and obtained approval to use the following techniques: attention grasp, walling, facial hold, facial slap, wall standing, stress positions, and sleep deprivation. See August 25 [delete] Letter at 2. The interrogation team "carefully analyzed Gul's responsiveness to different areas of inquiry" during this time and noted that his resistance increased as questioning moved to his "knowledge of operational terrorist activities." Id. at 3. [Delete] feigned memory problems (which CIA psychologists rules out through intelligence and memory tests) in order to avoid answering questions. Id.

At that point, the interrogation team believed [delete] "maintains a tough, Mujahidin fighter mentality and has conditioned himself for a physical interrogation." Id. The team therefore concluded that "more subtle interrogation measures designed more to weaken [delete] physical ability and mental desire to resist interrogation over the long run are likely to be more effective." Id. For these reasons, the team sought authorization to use dietary manipulation, nudity, water dousing, and abdominal slap. Id. at 4-5. In the team's view, adding these techniques would be especially helpful [delete] because he appeared to have a particular weakness for food and also seemed especially modest. See id. at 4.

The CIA used the waterboard extensively in the interrogations of KSM and Zubaydah but did so only after it became clear that standard interrogation techniques were not working. Interrogators used enhanced techniques in the interrogation of al-Nashiri with notable results as early as the first day. See IG Report at 35-36. Twelve days into the interrogation, the CIA subjected al-Nashiri to one session of the waterboard during which water was applied two times. See id. at 36.

3.

Medical and psychological professionals from the CIA's Office of Medical Services ("OMS") carefully evaluate detainees before any enhanced technique is authorized in order to ensure that the detainee "is not likely to suffer any severe physical or mental pain or suffering as a result of interrogation." Techniques at 4; see OMS Guidelines on Medical and Psychological Support to Detainee Rendition, Interrogation and Detention at 9 (Dec. 2004) ("OMS Guidelines"). In addition, OMS officials continuously monitor the detainee's condition throughout any interrogation using enhanced techniques, and the interrogation team will stop the use of particular techniques or the interrogation altogether if the detainee's medical or psychological condition indicates that the detainee might suffer significant physical or mental harm. See Techniques at 5-6. OMS has, in fact, prohibited the use of certain techniques in the interrogations of certain detainees. See id. at 5. Thus, no technique is used in the interrogation of any detainee -- no matter now valuable the information the CIA believes the detainee has -- if the medical and psychological evaluations or ongoing monitoring suggest that the detainee is likely to suffer serious harm. Careful records are kept of each interrogation, which ensures accountability and allows for ongoing evaluation of the efficacy of each technique and its potential for any unintended or inappropriate results. See id.

B.

Your office has informed us that the CIA believes that "the intelligence acquired from these interrogations has been a key reason why al-Qa'ida has failed to launched a spectacular attack in the West since 11 September 2001." Memorandum for Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, from [big delete] OCI Counterterrorist Center, Re: effectiveness of the CIA Counterintelligence Interrogation Techniques at 2 (Mar. 2, 2005) ("Effectiveness Memo"). In particular, the CIA believes that it would have been unable to obtain critical information from numerous detainees, including KSM and Abu Zubaydah without these enhanced techniques. Both KSM and Zubaydah had "expressed their belief that the general U.S. population was 'weak," lacked resilience, and would be unable to 'do what was necessary' to prevent the terrorists from succeeding in their goals." Id. at 1. Indeed, before the CIA used enhanced techniques in its interrogation of KSM, KSM resisted giving any answers to questions about future attacks, simply noting, "Soon, you will know." Id. We understand that the use of enhanced techniques in the interrogations of KSM, Zubaydah, and others, by contrast, has yielded critical information. See IG Report at 86, 90-91 (describing increase in intelligence reports attributable to use of enhanced techniques). As Zubaydah himself explained with respect to enhanced techniques, "brothers who are captured and interrogated are permitted by Allah to provide information when they believe they have reached the limit of their ability to withhold it in the face of psychological and physical hardships." Effectiveness Memo at 2. And, indeed, we understand that since the use of enhanced techniques, "KSM and Abu Zubaydah have been pivotal sources because of their ability and willingness to provide their analysis and speculation about the capabilities, methodologies, and mindsets of terrorists." Preeminent Source at 4.

Nevertheless, current CIA threat reporting indicates that, despite substantial setbacks over the last year, al Qaeda continues to pose a grave threat to the United States and interests. See CIA [big delete]. You have informed us that the CIA believes that enhanced interrogation techniques remain essential to obtaining vital intelligence necessary to detect and disrupt such emerging threats.

In understanding the effectiveness of the interrogation program, it is important to keep two related points in mind. First the total value of the program cannot be appreciated solely by focusing on individual pieces of information. According to the CIA Inspector General:

CTC frequently uses the information from one detainee, as well as other sources, to vet the information of another detainee. Although lower-level detainees provide less information than the high value detainees, information from these detainees has, on many occasions, supplied the information needed to probe the high value detainees further... [T]he triangulation of intelligence provides a fuller knowledge of Al-Qa'ida activities than would be possible from a single detainee.


IG Report at 86. As illustrated below, we understand that even interrogations of comparatively lower-tier high value detainees supply information that the CIA uses to validate and assess information elicited in other interrogations and through other methods. Intelligence acquired from the interrogation program also enhances other intelligence methods and has helped to build the CIA's overall understanding al Qaeda and its affiliates. Second, it is difficult to quantify with confidence and precision the effectiveness of the program. As the IG Report notes, it is difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks. See id. at 88. And, because the CIA has used enhanced techniques sparingly, "there is limited data on which to assess their individual effectiveness." Id. at 89. As discussed below, however, we understand that interrogations have led to specific, actionable intelligence as well as a general increase in the amount of intelligence regarding al Qaeda and its affiliates. See id. at 85-91.

With these caveats, we turn to specific examples that you have provided to us. You have informed us that the interrogation of KSM -- once enhanced techniques were employed -- led to the discovery of a KSM plot, the "Second Wave," "to use East Asian operatives to crash a hijacked airliner into" a building in Los Angeles. Effectiveness Memo at 3. You have informed us that information obtained from KSM also led to the capture of Riduan bin Isomuddin, better known as Hambali, and the discovery of the Guraba Cell, a 17-member Jemaah Islamiyah cell tasked with executing the "Second Wave." See id. at 3-4; CIA Directorate of Intelligence, Al-Qa'ida's Ties to Other key Terror Groups: Terrorists Links in a Chain 2 (Aug. 28, 2003). More specifically, we understand that KSM admitted that he had tasked Majid Khan with delivering a large sum of money to an al Qaeda associate. See Fax from [big delete] DCI Counterterrorist Center, Briefing Note on the Value of Detainee Reporting at 1 (Apr. 15, 2005) ("Briefing Notes"). Khan subsequently identified the associate (Zubair), who was then captured. Zubair, in turn, provided information that led to the arrest of Hambali. See id. The information acquired from theses captures allowed CIA interrogators to pose more specific questions to KSM, which led the CIA to Hambali's brother, al-Hadi. Using information obtained from multiple sources, al-Hadi was captured, and he subsequently identified the Guraba cell. See id. at 1-2. With the aid of this additional information, interrogations of Hambali confirmed much of what was learned from KSM. [6]

Interrogations of Zubaydah -- again, once enhanced techniques were employed -- furnished detailed information regarding al Qaeda's "organizational structure, key operatives, and modus operandi" and identified KSM as the mastermind of the September 11 attacks. See Briefing Notes at 4. You have informed us that Zubaydah also "provided significant information on two operatives, [including] Jose Padilla[,] who planned to build and detonate a 'dirty bomb' in the Washington DC area." Effectiveness Memo at 4. Zubaydah and KSM have also supplied important information about al-Zarqawi and his network. See Fax for Jack L. Goldsmith III, Assistant Attorney General, Office of Legal Counsel, from [delete] Office of General Counsel, CIA, [very big delete].

More generally, the CIA has informed us that, since March 2002, the intelligence derived from CIA detainees has resulted in more than 6,000 intelligence reports and, in 2004, accounted for approximately half of CTC's reporting on al Qaeda. See Briefing Notes at 1; see also IG Report at 86 (noting that from September 11, 2001, through April 2003, the CIA "produced over 3,000 intelligence reports from" a few high value detainees). You have informed us that the substantial majority of this intelligence has come from detainees subjected to enhanced interrogation techniques. In addition, the CIA advises us that the program has been virtually indispensable to the task of deriving actionable intelligence from other forms of collection. [Big delete]

C.

There are three categories of enhanced interrogation techniques: conditioning techniques, corrective techniques, and coercive techniques. See Background Paper at 4. As noted above, each of the specific enhanced techniques has been adapted from SERE-training, where similar techniques have been used, in some form, for years on United States military personnel. See Techniques at 6; IG Report at 13-14.

1. Conditioning techniques

Conditioning techniques are used to put the detainee in a "baseline" state, and to "demonstrate to the (detainee] that he has no control over basic human needs." Background Paper at 4. This "creates ... a mindset in which [the detainee] learns to perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting." Id. Conditioning techniques are not designed to bring about immediate results. Rather, these techniques are useful in view of their "cumulative effect..., used over time and in combination with other interrogation techniques and intelligence exploitation methods" Id. at 5. The specific conditioning techniques are nudity, dietary manipulation, and sleep deprivation.

Nudity is used to induce psychological discomfort and because it allows interrogators to reward detainees instantly with clothing for cooperation. See Techniques at 7. Although this technique might cause embarrassment, it does not involve any sexual abuse or threats of sexual abuse. See id. at 7-8. Because ambient air temperature are kept above 68°F, the techniques is at most mildly physically uncomfortable and poses no threat to the detainee's health. Id. at 7.

Dietary manipulation involved substituting a bland, commercial liquid meal for a detainee's normal diet. We understand that its use can increase the effectiveness of other techniques, such as sleep deprivation. As a guideline, the CIA uses a formula for caloric intake that depends on a detainee's body weight and expected level of activity and that ensures that caloric intake will always be set at or above 1,000 kcal/day. See id. at 7 & n.10. [8] By comparison, commercial weight-loss programs used within the United States not uncommonly limit intake to 1000 Kcal/day regardless of body weight. Detainees are monitored at all times to ensure that they do not lose more than 10% of their starting body weight. See id. at 7. The CIA also sets a minimum fluid intake, but a detainee undergoing dietary manipulation may drink as much water as he pleases. See id.

Sleep deprivation involves subjecting a detainee to an extended period of sleeplessness. Interrogators employ sleep deprivation in order to weaken a detainee's resistance. Although up to 180 hours may be authorized, the CIA has in fact subjected only three detainees to more than 96 hours of sleep deprivation. Generally, a detainee undergoing this technique is shackled in a standing position with his hands in front of his body, which prevents him from failing asleep but also allows him to move around within a two- to three-foot diameter. The detainee's hands are generally positioned below his chin, although they may not be raised above the head for a period not to exceed two hours. See id. at 11-13 (explaining the procedures at length). As we have previously noted, sleep deprivation itself generally has few negative effects (beyond temporary cognitive impairment and transient hallucinations), though some detainees might experience transient "unpleasant physical sensations from prolonged fatigue, including such symptoms as impairment to coordinated body movement, difficulty with speech, nausea, and blurred vision." Id. at 37; see also Id. 37-38. Subjects deprived of sleep in scientific studies for longer than the 180-hour limit imposed by the CIA generally return to normal neurological functioning with as little as one night of normal sleep. See id. at 40. In light of the ongoing and careful medical monitoring undertaken by OMS and the authority and obligation of all members of the interrogation team, and of OMS personnel and other facility staff, to stop the procedure if necessary, this technique is not to be expected to result in any detainee experiencing extreme physical distress. See id. at 38-39. [9]

With respect to the shackling, the procedures in place (which include constant monitoring by detention personnel, via closed-circuit television, and intervention if necessary) minimize the risk that a detainee will hang by his wrists or otherwise suffer injury from the shackling. See id. at 11. Indeed, these procedures appear to have been effective, as no detainee has suffered any lasting harm from the shackling. See id.

Because releasing a detainee from the shackles would present a security problem and would interfere with the effectiveness of the technique, a detainee undergoing sleep deprivation frequently wears and adult diaper. See Letter from [delete] Associate General Counsel, Central Intelligence Agency, to Dan Levin, Acting Assistant Attorney General, Office of Legal Counsel at 4 (Oct, 12, 2004) ("October 12 [delete] Letter"). Diapers are checked and changed as needed so that no detainee would be allowed to remain in a soiled diaper, and the detainee's skin condition is monitored. See Techniques at 12. You have informed us that diapers are used solely for sanitary and health reasons and not in order to humiliate the detainee.

2. Corrective techniques

Corrective techniques entail some degree of physical interaction with the detainee and are used "to correct, startle, or to achieve another enabling objective with the detainee." Background Paper at 5. These techniques "condition a detainee to pay attention to the interrogator's questions and ... dislodge expectations that the detainee will not be touched. Techniques at 9. This category comprises the following techniques: insult (facial) slap, abdominal slap, facial hold, and attention grasp. See Background Paper at 5; see also Techniques at 8-9 (describing these techniques). [10] In the facial hold technique, for example, the interrogator uses his hands to immobilize the detainee's head. The interrogator's fingers are kept closely together and away from the detainee's eyes. See Pre-Academic Laboratory (PREAL) Operating Instructions at 19 ("PREAL Manual"). The Technique instills fear and apprehension with minimal physical force. Indeed, each of these techniques entails only mild uses of force and does not cause any significant pain or any lasting harm. See Background Paper at 5-7.

3. Coercive techniques

Coercive techniques "place the detainee in more physical and psychological stress" than the other techniques and are generally "considered to be more effective tools in persuading a resistant [detainee] to participate with CIA interrogators." Background Paper at 7. These techniques are typically not used simultaneously. The Background Paper lists walling, water dousing, stress positions, wall standing, and cramped confinement in this category. We will also treat the waterboard as a coercive technique.

Walling is performed by placing the detainee against what seems to be a normal wall but is in fact a flexible false wall. See Techniques at 8. The interrogator pulls the detainee towards him and then quickly slams the detainee against the false wall. The false wall is designed, and a c-collar or similar device is used, to help avoid whiplash or similar injury. See id. The technique is designed to create a loud sound and shock the detainee without causing significant pain. The CIA regards walling as "one of the most effective interrogation techniques because it wears down the [detainee] physically, heightens uncertainty in the detainee about what the interrogator may do to him, and creates a sense of dread when the [detainee] know he is about to be walled again." Background Paper at 7. A detainee "may be walled one time (one impact with the wall) to make a point or twenty to thirty times consecutively when the interrogator requires a more significant response to a question," and "will be walled multiple times" during a session designed to be intense. Id. At no time, however, is the technique employed in such a way that could cause severe physical pain. See Techniques at 32 n.38. [11]

In the water dousing technique, potable cold water is poured on the detainee either from a container or a hose without a nozzle. Ambient air temperatures are kept above 64°F. The maximum permissible duration of water exposure depends on the water temperature, which may be no lower than 41°F and is usually no lower than 50°F. See id. at 10. Maximum exposure durations have been "set at two-thirds the time at which, based on extensive medical literature and experience, hypothermia could be expected to develop in healthy individuals who are submerged in water of the same temperature" in order to provide adequate safety margins against hypothermia. Id. This technique can easily be used in combination with other techniques and "is intended to weaken the detainee's resistance and persuade him to cooperate with interrogators." Id. at 9.

Stress positions and wall standing are used to induce muscle fatigue and the attendant discomfort. See Techniques at 9 (describing techniques); see also PREAL Manual at 20 (explaining that stress positions are used "to create a distracting pressure" and "to humiliate or insult"). The use of these techniques is "usually self-limiting in that temporary muscle fatigue usually leads to the [detainee's] being unable to maintain the stress position after a period of time." Background Paper at 8. We understand that these techniques are used only to induce temporary muscle fatigue; neither of these techniques is designed or expected to cause severe physical pain. See Techniques at 33-34.

Cramped confinement involves placing the detainee in an uncomfortably small container. Such confinement may last up to eight hours in a relatively large container or up to two hours in a smaller container. See Background Paper at 8; Techniques at 9. The technique "accelerate[s] the physical and psychological stresses of captivity." PREAL Manual at 22. In OMS's view, however, cramped confinement "ha[s] not proved particularly effective" because is provides "a safehaven offering respite from interrogation." OMS Guidelines at 16.

The waterboard is generally considered to be "the most traumatic of the enhanced interrogation techniques," id. at 17, a conclusion with which we have readily agreed, see Techniques at 41. In this technique, the detainee is placed face-up on a gurney with his head inclined downward. A cloth is placed over his face on which cold water is then poured for periods of at most 40 seconds. This creates a barrier through which it is either difficult of impossible to breathe. The technique thereby induce[s] a sensation of drowning." Id. at 13. The waterboard may be authorized for, at most, one 30-day period, during which the technique can actually be applied on no more than five days. See id. at 14 (describing, in detail, these and additional limitations); see also Letter from [delete] Associate General Counsel, Central Intelligence Agency, to Dan Levin, Acting Assistant Attorney General, Office of Legal Counsel at 1 (Aug. 19, 2004) ("August 19 [delete] Letter"). Further, there can be no more than two sessions in any 24-hour period. Each session -- the time during which the detainee is strapped to the waterboard -- lasts no more than two hours. There may be at most six applications of water lasting 10 seconds or longer during any session, and water may be applied for a total of no more than 12 minutes during any 24-hour period. See Techniques at 14.

As we have explained, "these limitations have been established with extensive input from OMS, based on experience to date with this technique and OMS's professional judgment that the health risks associated with the use of the waterboard on a healthy individual subject to these limitations would be 'medically acceptable.'" Id. at 14 (citing OMS Guidelines at 18-19). In addition, although the waterboard induces fear and panic, it is not painful. See id. at 13.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 2 OF 3

II.

We conclude, first, that the CIA interrogation program does not implicate United States obligations under Article 16 of the CAT because Article 16 has limited geographic scope. By its terms, Article 16 places no obligations on a State Party outside "territory under its jurisdiction." The ordinary meaning of the phrase, the use of the phrase elsewhere in the CAT, and the negotiating history of the CAT, and the negotiating history of the CAT demonstrate that the phrase "territory under its jurisdiction" is best understood as including, at most, areas where a State exercises territory-based jurisdiction; that is areas over which the State exercises at least de facto authority as the government. As we explain below, based on CIA assurances, we understand that the interrogations conducted by the CIA do not take place in any "territory under [United States] jurisdiction" within the meaning of Article 16. We therefore conclude that the CIA interrogation program does not violate the obligations set forth in Article 16.

Apart from the terms of Article 16 as stated in the CAT, the United States undertook its obligations under the CAT subject to a Senate reservation that provides: "[T]he United States considers itself bound by the obligation under Article 16 ... only insofar as the term 'cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States." There is a strong argument that in requiring this reservation, the Senate intended to limit United States obligations under Article 16 to the existing obligations already imposed by these Amendments. These Amendments have been construed by the courts no to extend protections to aliens outside the United States. The CIA has also assured us that the interrogation techniques are not used within the United States or against United States persons, including both U.S. citizens and lawful permanent resident aliens.

A.

"[W]e begin with the text of the treaty and the context in which the written words are used." Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534 (1991) (quotation marks omitted). See also Vienna Convention on the Law of Treaties, May 23, 1969, art.. 31(1), 1155 U.N.T.S. 331, 340 (1980) ("A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.") [12] Article 16 states that "[e]ach State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture." CAT Art. 16(1) (emphasis added). [13] This territorial limitation is confirmed by Article 16's explication of this basic obligation: "In particular, the obligations contained in articles 10, 11 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment." Id. Articles 11 through 13 impose on each State Party certain specific obligations, each of which is expressly limited to "territory under its jurisdiction." See infra pp. 18-19 (describing requirements). Although Article 10, which as incorporated in Article 16 requires each State Party to "ensure that education and information regarding the prohibition" against cruel, inhuman, or degrading treatment or punishment is given to specified government personnel, does not expressly limit its obligation to "territory under [each State's] jurisdiction," Article 10's reference to the "prohibition" against such treatment or punishment can only be understood to refer to the territorially limited obligation set forth in Article 16.

The obligations imposed by the CAT are thus more limited with respect to cruel, inhuman, or degrading treatment or punishment than with respect to torture. To be sure, Article 2, like Article 16, imposes an obligation on each State Party to prevent torture "in any territory under its jurisdiction." Article 4(1), however, separately requires each State Party to "ensure that all acts of torture are offenses under its criminal law." (emphasis added.) The CAT imposes no analogous requirement with respect to cruel, inhuman, or degrading treatment or punishment. [14]

Because the CAT does not define the phrase "territory under its jurisdiction," we turn to the dictionary definitions of the relevant terms. See Olympic Airways v. Husain, 540 U.S. 644, 654-55 (2004) (drawing on dictionary definitions in interpreting a treaty); Sale v. Haitian Centers Council, Inc. 509 U.S. 155, 180-1 (1993) (same). Common dictionary definitions of "jurisdiction" include "[t]he right and power to interpret and apply the law[; a]uthority or control[; and t]he territorial range of authority or control." American Heritage Dictionary 711 (1973); American Heritage Dictionary 978 (3d ed. 1992) (same definitions); see also Black's Law Dictionary 766 (5th ed. 1979) ("[a]reas of authority"). Common dictionary definitions of "territory" include "[a]n area of land[; or t]he land and waters under the jurisdiction of a state, nation, or sovereign." American Heritage Dictionary at 1329 (1973); American Heritage Dictionary at 1854 (3d ed. 1992) (same); see also Black's Law Dictionary at 1321 ("A part of a country separated from the rest, and subject to a particular jurisdiction. geographical area under the jurisdiction of another country or sovereign power."); Black's Law Dictionary at 1512 (8th ed. 2004) ("[a] geographical area included within a particular government's jurisdiction; the portion of the earth's surface that is in a state's exclusive possession and control"). Taking these definitions together, we conclude that the most plausible meaning of the term "territory under its jurisdiction" is the land over which a State exercises authority and control as the government. Cf. Rasul v. Bush, 124 S. Ct. 2686, 2696 (2004) (concluding that "the territorial jurisdiction of the United States" subsumes areas over which "the United States exercises complete jurisdiction and control") (internal quotation marks omitted); Cunard S.S. Co. v. Mellon, 262, U.S. 100, 123 (1923) ("It now is settled in the United States and recognized elsewhere that the territory subject to its jurisdiction includes the land areas under its dominion and control[.]").

This understanding of the phrase "territory under its jurisdiction" is confirmed by the way the phrase is used in various provisions throughout the CAT. See Air France v. Sakes, 470 U.S. 392, 398 (1985) (treaty drafters "logically would ... use[] the same word in each article" when they intend to convey the same meaning throughout); J. Herman Burgers & Hans Danelius, The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 53 (1988) ("CAT Handbook") (noting that "it was agreed that the phrase 'territory under its jurisdiction' has the same meaning" in different articles of the CAT).

For example, Article 5 provides:

Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 [requiring each State Party to criminalize all acts of torture[ in the following cases:

(a) When the offenses are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

(b) When the alleged offender is a national of that State;

(c) When the victim is a national of that State if the State considers it appropriate.


CAT art. 5(1) (emphasis added). The CAT thereby distinguishes jurisdiction based on territory from jurisdiction based the nationality of either the victim or the perpetrator. Paragraph (a) also distinguishes jurisdiction based on territory based on registry of ships and aircraft. To read the phrase "territory under its jurisdiction" to subsume these other types of jurisdiction would eliminate these distinctions and render most of Article 5 surplusage. Each of Article 5's provisions, however, "like all the other words of the treaty, is to be given a meaning, if reasonably possible, and rules of construction may not be resorted to render it meaningless or inoperative." Factor v. Laubenheimer, 290 U.S. 276, 303-04 (1933).

Articles 11 through 13, moreover, use the phrase "territory under its jurisdiction" in ways that presuppose that the relevant State exercises the traditional authorities of the government in such areas. Article 11 requires each States to "keep under systematic review ... arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction." Article 12 mandates that "[e]ach State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction." Similarly, Article 13 requires "[e]ach State Party [to] ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities." These provisions assume that the relevant State exercises traditional governmental authority -- including the authority to arrest, detain, imprison, and investigate crime -- within any "territory under its jurisdiction."

Three other provisions underscore this point. Article 2(1) requires each State Party to "take effective legislative, administrative, judicial or other measures to prevent such acts of torture in any territory under its jurisdiction." "Territory under its jurisdiction," therefore, is most reasonably read to refer to areas over which States exercises broad governmental authority -- the areas over which States could take legislative, administrative, or judicial action. Article 5(2), moreover, enjoins "[e]ach State Party ... to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him." Article 7(1) similarly requires State Parties to extradite suspects or refer them to "competent authorities for the purpose of prosecution." These provisions evidently contemplate that each State Party has authority to extradite and prosecute those suspected of torture in any "territory under its jurisdiction." That is, each State Party is expected to operate as the government in "territory under its jurisdiction." [15]

This understanding is supported by the negotiating record. See Zicherman V. Korean Air Lines Co., 516 U.S. 217, 226 (1996) ("Because a treaty ratified by the United States is not only the law of this land, see U.S. Const., Art. II, §2, but also an agreement among sovereign powers, we have traditionally considered as aids to its interpretation the negotiating and drafting history ..."); Vienna Convention on the Law of Treaties, art. 32 (permitting recourse to "the preparatory work of the treaty and the circumstances of its conclusion" inter alia "to confirm" the ordinary meaning of the text). The original Swedish proposal, which was the basis for the first draft of the CAT, contained a predecessor to Article 16 that would have required that "[e]ach State Party undertake[] to ensure that [a proscribed act] does not take place within its jurisdiction." Draft International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, submitted by Sweden on January 18, 1978, arts. 2-3, E/CN.4/1285, in CAT Handbook app. 6, at 203 (emphasis added); CAT Handbook at 47. France objected that the phrase "within its jurisdiction" was too broad. For example, it was concerned that the phrase might extend to signatories' citizens located in territory belonging to other nations. See Report of the Pre-Sessional Working Group, E/CN.4/L 1470 (1979), reprinted in Report of the United Nations Commission on Human Rights, E/CN.4/1347 35, 40 (1979); CAT Handbook at 48. Although France suggested replacing "within its jurisdiction" with "in its territory," the phrase "any territory under its jurisdiction" was chosen instead. See CAT Handbook at 48.

There is some evidence that the United States understood these phrases to mean essentially the same thing. See, e.g., Exec. Report 101-30, 101st Cong., 2d Sess., 23-24 (Aug. 31), 1994) (senate Foreign Relations Committee Report) (suggesting that the phrase "in any territory under jurisdiction" would impose obligations on a State Party with respect to conduct committed "in its territory" but not with respect to conduct "occurring abroad"); Convention Against Torture: Hearing Before the Committee on Foreign Relations, United States Senate, S. Heg. 101-718 at 7 (Jan. 30, 1990) (prepared statement of Hon. Abraham D. Sofaer, Legal Adviser, Department of State) (stating that under Article 2, State Parties would be obligated "to take administrative, judicial or other measures to prevent torture within their territory") emphasis added). Other evidence, however, suggests that the phrase "territory under its jurisdiction" has a somewhat broader meaning that "in its territory." According to the record of the negotiation relating to Article 12 and 13 of the CAT, "[i]n response to the question on the scope of the phrase 'territory under its jurisdiction' as contained in these articles, it was said that it was intended to cover, inter alia, territories still under colonial rule and occupied territory." U.N. Doc. E/CN/4/1367, Mar. 5, 1980, at 13. And one commentator has stated that the negotiating record suggests that the phrase "territory under its jurisdiction" "is not limited to a State's land territory, its territorial sea and the airspace over its land and sea territory, but it also applied to territories under military occupation, to colonial territories and to any other territories over which a State has factual control." Id. at 131. Others have suggested that the phrase would also reach conduct occurring on ships and aircraft registered in a State. See CAT Handbook at 48; Message from the President of the United States Transmitting the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Treaty Doc. No. 100-20, at 5 (1988) (Secretary of State Schultz) (asserting that the "territory under its jurisdiction" "refers to all places that the State Party controls as a governmental authority, including ships and aircraft registered in that State"). [16]

Thus, although portions of the negotiating record of the CAT may support reading the phrase "any territory under its jurisdiction" to included not only sovereign territory but also areas subject to de facto government authority (and perhaps registered ships and aircraft), the negotiating record as a whole tends to confirm that the phrase does not extend to place where a State Party does not exercise authority as the government.

The CIA has assured us that the interrogations at issue here do not take place within the sovereign territory of special maritime and territorial jurisdiction ("SMTJ") of the United States. See 18 U.S.C. § 5 (defining "United States"); id. § 7 (defining SMTJ). As relevant here, we believe that the phrase "any territory under its jurisdiction " certainly reaches no further than the sovereign territory and the SMTJ of the United States. [17] Indeed, in many respects, it probably does not reach this far. Although many provisions of the SMTJ invoke territorial bases of jurisdiction, other provisions assert jurisdiction on other grounds, including, for example, sections 7(9), which assert jurisdiction over certain offenses committed by or against United States citizens. Accordingly, we conclude that the interrogation program does not take place within "territory under United States[ jurisdiction" and therefore does not violate Article 16 -- even absent the Senate's reservation limiting United States obligations under Article 16, which we discuss in the next section.

B.

As a condition to its advice to the ratification of the CAT, the Senate required a reservation that provides that the United States is

bound by the obligation under Article 16 to prevent "cruel, inhuman or degrading treatment or punishment," only insofar as the term "cruel, inhuman or degrading treatment or punishment" means the cruel, inhuman or degrading treatment or punishment, prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.


Cong. Rec. 36,198 (1990). This reservation, which the United States deposited with its instrument of ratification, is legally binding and defines the scope of United States obligations under Article 16 of the CAT. See Relevance of Senate Ratification History to Treaty Interpretation, 11 Op. O.L.C. 28, 33 (1987) (Reservations deposited with the instrument of ratification "are generally binding ... both internationally and domestically ... in subsequent interpretation of the treaty.") [18]

Under the terms of the reservation, the United States is obligated to prevent "cruel, inhuman or degrading treatment or punishment" only to the extent that such treatment amounts to the "cruel, inhuman or degrading treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments." Giving force to the terms of this reservation, treatment that is not "prohibited by" these amendments would not violate United States obligations as limited by the reservation.

Conceivably, one might read the text of the reservation as limiting only the substantive (as opposed to the territorial) reach of United States obligations under Article 16. That would not be an unreasonable reading of the text. Under this view, the reservation replaced only the phrase "cruel, inhuman or degrading treatment or punishment" and left untouched the phrase "in any territory under its jurisdiction," which defines the geographic scope of the Article. The text of the reservation, however, is susceptible to another reasonable reading -- one suggesting that the Senate intended to ensure that the United States would, with respect to Article 16, undertake no obligations not already imposed by the Constitution itself. Under this reading, the reference to the treatment or punishment prohibited by the constitutional provisions does not distinguish between the substantive scope of the constitutional prohibitions and their geographic scope. As we discuss below, this second reading is strongly supported by the Senate's ratification history of the CAT.

The Summary and Analysis of the CAT submitted by the President to the Senate in 1988 expressed concern that "Article 16 is arguably broader than existing U.S. law." Summary and Analysis of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in S. Treaty Doc. No. 100-20, at 15. "In view of the ambiguity of the terms," the Executive Branch suggested "that U.S. obligations under this article [Article 16] should be limited to conduct prohibited by the U.S. Constitution." S. Exec. Rep. No. 101-30, at 8 (1990) (emphasis added); see also id. at 25-26. Accordingly, it proposed what became the Senate's reservation in order "[t]o make clear that the United States construes the phrase ["cruel, inhuman or degrading treatment or punishment"] to be coextensive with its constitutional guarantees against cruel, unusual, and inhumane treatment." Id. at 25-26; S. Treaty Doc. No. 100-20, at 15 (same). As State Department Legal Adviser Abraham D. Sogaer explained, "because the Constitution of the United States directly addresses this area of the law ... [the reservation] would limit our obligations under this Convention to the proscriptions already covered in our Constitution.." Convention Against Torture: Hearing Before the Senate Comm. on Foreign Relations, 101st Cong. 11 (1990) (prepared statement). The Senate Foreign Relations Committee expressed the same concern about the potential scope of Article 16 and recommended the same reservation to the Senate. See S. Exec. Rep. No. 101-30, at 8, 25-26.

Furthermore, the Senate declared that Articles 1 through 16 of the CAT are not self-executing, see Cong. Rec. 36,198 (1990), and the discussions surrounding this declaration in the ratification history also indicate that the United States did not intend to undertake any obligations under Article 16 that extended beyond those already imposed by the Constitution. The Administration expressed the view that "as indicated in the original Presidential transmittal, existing Federal legislation would be required only to establish criminal jurisdiction under Article 5." Letter for Senator Pressler, from Janet Mullins, Assistant Secretary, Legislative Affairs, Department of State (April 4, 11190), in S. Exec. Rep. No. 101-30, at 41 (emphasis added). It was understood that "the majority of the obligations to be undertaken by the United States pursuant to the Convention [were] already covered by existing law" and that "additional implementing legislation [would] be needed only with respect to article 5." S. Exec. Rep. No. 101-30, at 10 (emphasis added). Congress then enacted 18 U.S.C. § 2340-2349A, the only "necessary legislation to implement" United States obligations under the CAT, noting that the United States would "not become a party to the Convention until the necessary implementing legislation is enacted." S. Rep. No. 103-107, at 366 (1993). Reading Article 16 to extend the substantive standards of the Constitution in contexts where they did not already apply would be difficult to square with the evident understanding of the United States that existing law would satisfy its obligations under the CAT except with respect to Article 5. The ratification history thus strongly support the view that United States obligations under Article 16 were intended to reach no further -- substantively, territorially, or in any other respect -- than its obligations under the Fifth, Eighth, and Fourteenth Amendments.

The Supreme Court has repeatedly suggested in various contexts that the Constitution does not apply to aliens outside the United States. See, e.g. United States v. Belmont, 301 U.S. 324, 332 (1937) ("[O]ur Constitution, laws, and policies have no extraterritorial operation, unless in respect of our own citizens."); United States v. Curtiss-Wright Export Corp., 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 citizen ..."); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (noting that cases relied upon by an alien asserting constitutional rights "establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with his country"). Federal courts of appeals, in turn, have held that "[t]he Constitution does not extend its guarantees to nonresident aliens living outside the United States," Vancouver Women's Health Collective Soc'y v. A.H. Robing Co., 820 F.2f 1359, 1363 (4th Cir. 1987); that "non-resident aliens ... plainly cannot appeal to the protection of the Constitution or laws of the United States," Pauling v. McElroy, 278 F.2d 252, 254 n.3 (D.C. Cir. 1960) (per curiam); and that a "foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise," 32 County Sovereignty Comm. v. Dep't of State, 292 F. 3d 797, 799 (D.C. Cir. 2002) (quoting People's Mojahedin Org. of Iran v. Dep't of State, 182 F. 3d 17, 22 (D.C. Cir. 1999)). [19]

As we explain below, it is the Fifth Amendment that is potentially relevant in the present context. With respect to that Amendment, the Supreme Court has "rejected the claim that aliens are entitled to Fifth Amendments rights outside the sovereign territory of the United States." Verdugo-Urquidez, 494 U.S. at 269. In Verdugo-Urquidez, 494 U.S. at 269, the Court noted its "emphatic" "rejection of extraterritorial application of the Fifth Amendment" in Johnson v. Eisentrager, 339 U.S. 763 (1950), which rejected "[t]he doctrine that the term 'any person' in the Fifth Amendment spreads its protection over alien enemies anywhere in the word engaged in hostilities against us," id. at 782. Accord Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (citing Verdugo-Urquidez and Eisentrager and noting that "[i]t is well established that" Fifth Amendment protections "are unavailable to aliens outside of our geographic borders"). Federal courts of appeals have similarly held that "non-resident aliens who have insufficient contacts with the United States are not entitled to Fifth Amendment protections." Jifry v. F.A.A., 370 F.3d 1174, 1182 (D.C. Cir 2004); see also Harbury v. Deutch, 233 F.3d 596, 604 (D.C. Cir. 2000) (relying on Eisentrager and Verdugo-Urquidez to conclude that an alien could not state a due process claim for torture allegedly inflicted by United States agents abroad), rev'd on other grounds sub nom, Christopher v. Harbury, 536 U.S. 403 (2002); Cuban Am. Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1428-29 (11th Cir. 1995) (relying on Eisentrager and Verdugo-Urquidez to conclude that aliens held at Guantanamo Bay lack Fifth Amendment rights). [20]

The reservation required by the Senate as a condition of its advice and consent to the ratification of the CAT thus tends to confirm the territorially limited reach of U.S. obligations under Article 16. Indeed, there is a strong argument that, by limiting United States obligations under Article 16 to those that certain provisions of the Constitution already impose, the Senate's reservation limits the territorial reach of Article 16 even more sharply than does the text of Article 16 standing alone. Under this view, Article 16 would impose no obligations with respect to aliens outside the United States. [21] And because the CIA has informed us that these techniques are not authorized for use against United States persons, or within the United States, they would not, under this view, violate Article 16, however, or even if it is read not to bear on this question at all, the program would still not violate Article 16 for the reasons discussed in Part II.A. Accordingly, we need not decide here the precise effect, if any, of the Senate reservation on the geographic scope of U.S. obligations under Article 16. [22]

III.

You have also asked us to consider whether the CIA interrogation program would violate the substantive standards applicable to the United States under Article 16 if, contrary to the conclusions reached in Part II above, those standards did extend to the CIA interrogation program. Pursuant to the Senate's reservation, the United States is bound by Article 16 to prevent the "cruel, inhuman or degrading treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States." As we explain, the relevant test is whether use of the CIA's enhanced interrogation techniques constitutes government conduct that "shocks the conscience." Based on our understanding of the relevant case law and the CIA's descriptions of the interrogation program, we concluded that use of the enhanced interrogation techniques, subject to all applicable conditions, limitations and safeguards, does not "shock the conscience." We emphasize, however, that this analysis calls for the application of a somewhat subjective test with only limited guidance from the Court. We therefore cannot predict with confidence whether a court would agree with our conclusions, though, as discussed more fully below, we believe the interpretation of Article 16's substantive standard is unlikely to be subject to judicial inquiry.

A.

Although, pursuant to the Senate's reservation, United States obligations under Article 16 extend to "the cruel, inhuman or degrading treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States," only the Fifth Amendment is potentially relevant here. The Fourteenth Amendment provides, in relevant part: "No State shall ... deprive any person of life, liberty, or property, without due process of law." (Emphasis added.) This Amendment does not apply to actions taken by the federal Government. See; e.g., San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 542 m.21 (1987) (explaining that the Fourteenth Amendment "does not apply" to the federal Government); Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954) (noting that the Fifth Amendment rather than the Fourteenth Amendment applies to actions taken by the District of Columbia). The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." (Emphasis added.) As the Supreme Court has repeatedly held, the Eighth Amendment does not apply until there has been a formal adjudication of guilt. E.g.; Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979); Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977). See also In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 480 (D.D.C. 2005) (dismissing detainees' claims based on Eighth Amendment because "the Eighth Amendment applies only after an individual is convicted of a crime") (stayed pending appeal). The same conclusion concerning the limited applicability of the Eighth Amendment under Article 16 was expressly recognized by thee Senate and the Executive Branch during the CAT ratification deliberations:

The Eighth Amendment prohibition of cruel and unusual punishment is, of the three [constitutional provisions cited in the Senate reservation], the most limited in scope, as this amendment has consistently been interpreted as protecting only "those convicted of crime." Ingraham v. Wright, 430 U.S. 651, 664 (1977). The Eighth Amendment does, however, afford protection against torture and ill-treatment of persons in prison and similar situations of criminal punishment.


Summary and Analysis of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in S. Treaty Doc. No. 100-20, at 9 (emphasis added). Because the high value detainees on whom the CIA might use enhanced interrogation techniques have not been convicted of any crime, the substantive requirements of the Eighth Amendment would not be relevant here, even if we assume that Article 16 has application to the CIA's interrogation program. [23]

The Fifth Amendment, however, is not subject to these same limitations. As potentially relevant here, the substantive due process component of the Fifth Amendment protects against executive action that "shocks the conscience." Rochin v. California, 342 U.S. 165, 172 (1952); see also County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) ("To this end, for half century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience."). [24]

B.

We must therefore determine whether the CIA interrogation program involves conduct that "shocks the conscience". The Court has indicated that whether government conduct can be said to "shock the conscience" depends primarily on whether the conduct is "arbitrary in the constitutional sense," Lewis, 523 U.S. at 846 (internal quotation marks omitted); that is, whether it amounts to the "exercise of power without any reasonable justification in the service of a legitimate governmental objective," id. "[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level," id. at 849, although, in some cases, deliberate indifference to the risk of inflicting such unjustifiable injury might also "shock the conscience," id. at 850-51. The Court has also suggested that it is appropriate to consider whether, in light of "traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them," conduct "is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Id. at 847 n.8. [25]

Several considerations complicate our analysis. First, there are relatively few cases in which the Court has analyzed whether conduct "shocks the conscience," and these cases involve context that differ dramatically from the CIA interrogation program. Further, the Court has emphasized that there is "no calibrated yard stick" with which to determine whether conduct "shocks the conscience." Id. at 847. To the contrary: "Rules of due process are not ... subject to mechanical application in unfamiliar territory." Id. at 850. A claim that government conduct "shocks the conscience," therefore, requires "an exact analysis of circumstances." Id. The Court has explained:

The phrase [due process of law] formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights. Its application is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in light of other considerations, fall short of such a denial.


Id. at 850 (quoting Betts v. Brady, 316 U.S. 4555, 462 (1942)) (alteration in Lewis). Our task, therefore, is to apply in a novel context a highly fact-dependent test with little guidance from the Supreme Court.

1.

We first consider whether the CIA interrogation program involves conduct that is "constitutionally arbitrary." We conclude that it does not. Indeed, we find no evidence of "conduct intended to injure in some way unjustifiable by any government interest," id. at 849, or of deliberate indifference to the possibility of such unjustifiable injury, see id. at 853.

As an initial matter, the Court has made clear that whether conduct can be considered to be constitutionally arbitrary depends vitally on whether it furthers a government interest, and, if it does, the nature and importance of that interest. The test is not merely whether the conduct is "intended to injure," but rather whether it is "intended to injure in some way unjustifiable by any government interest." Id. at 849 (emphasis added). It is the "exercise of power without any reasonable justification in the service of a legitimate governmental objective" that can be said to "shock the conscience." Id. at 846 (emphasis added). In United States v. Salerno, 481 U.S. 739, 748 (1987), for example, the Court explained that the Due Process Clause "lays down [no] ... categorical imperative," and emphasized that the Court has "repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest." See also Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2646 (2004) (plurality opinion) (explaining that the individual's interests must be weighed against the government's). The government's interest is thus an important part of the context that must be carefully considered in evaluating an asserted violation of due process. [26]

Al Qaeda's demonstrated ability to launch sophisticated attacks causing mass casualties within the United States and against United States interests worldwide, as well as its continuing efforts to plan and to execute such attacks, see supra p. 9, indisputably pose a grave and continuing threat. "It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981) (citations omitted); see also Salerno, 481 U.S. at 748 (noting that "society's interest is at its peak" "in times of war or insurrection"). It is this paramount interest that the Government seeks to vindicate through the interrogation program. Indeed, the program, which the CIA believes "has been a key reason why al-Qa'ida has failed to launch a spectacular attack in the West since 11 September 2001," Effectiveness Memo at 2, directly furthers that interest, producing substantial quantities of otherwise unavailable actionable intelligence. As detailed above, ordinary interrogation techniques had little effect on either KSM or Zubaydah. Use of enhanced techniques, however, led to critical, actionable intelligence such as the discovery of the Guraba Cell, which was tasked with executing KSM's planned Second Wave attacks against Los Angeles. Interrogations of these most valuable detainees and comparatively lower-tier high value detainees [big delete] have also greatly increased the CIA's understanding of our enemy and its plans.

As evidenced by our discussion in Part I, the CIA goes to great lengths to ensure that the techniques are applied only as reasonably necessary to protect this paramount interest in "the security of the Nation." Various aspects of the program ensure that enhanced techniques will be used only in the interrogations of the detainees who are most likely to have critical, actionable intelligence. The CIA screening procedures, which the CIA imposes in addition to the standards applicable to activities conducted pursuant to paragraph four of the Memorandum of Notification, ensure that the techniques are not used unless the CIA reasonably believes that the detainee is a "senior member of al-Qai'da or [its affiliates]," and the detainee has "knowledge of imminent terrorist threat against the USA" or has been directly involved in the planning of attacks. January 4 [delete] Fax, at 5, supra p. 5. The fact that enhanced techniques have been used to date in the interrogations of only 28 high value detainees out of the 94 detainees in CIA custody demonstrates this selectivity.

Use of the waterboard is limited still further, requiring "credible intelligence that a terrorist attack is imminent; ... substantial and credible indicators that the subject has actionable intelligence that can prevent, disrupt or delay this attack; and [a determination that o]ther interrogation methods have failed to elicit the information [and that] ... other ... methods are unlikely to elicit this information within the perceived time limit for preventing the attack." August 2 Rizzo Letter (attachment). Once again, the CIA's practice confirms the program's selectivity. CIA interrogators have used the waterboard on only three detainees to date -- KSM, Zubaydah, and Al-Nashiri -- and have not used it at all since March 2003.

Moreover, enhanced techniques are considered only when the on-scene interrogation team considers them necessary because a detainee is withholding or manipulating important, actionable intelligence or there is insufficient time to try other techniques. For example, as recounted above, the CIA used enhanced techniques in the interrogations of KSM and Zubaydah only after ordinary interrogation tactics had failed. Even then, CIA Headquarters must make the decision whether to use enhanced techniques in any interrogation. Officials at CIA Headquarters can assess the situation based on the interrogation team's reports and intelligence from a variety of other sources and are therefore well positioned to assess the importance of the information sought.

Once approved, techniques are used only in escalating fashion so that it is unlikely that a detainee would be subjected to more duress than is reasonably necessary to elicit the information sought. Thus, no technique is used on a detainee unless use of that technique at that time appears necessary to obtaining the intelligence. And use of enhanced techniques ceases "if the detainee is judged to be consistently providing accurate intelligence or if he is no longer believed to have actionable intelligence." Techniques at 5. Indeed, use of the techniques usually ends after just a few days when the detainee begins participating. Enhanced techniques, therefore, would not be used on a detainee not reasonably thought to possess important, actionable intelligence that could not be obtained otherwise.

Not only is the interrogation program closely tied to a government interest of the highest order, it is also designed, through its careful limitations and screening criteria, to avoid causing any severe pain or suffering or inflicting significant or lasting harm. As the OMS Guidelines explain, "[i]n all instances the general goal of these techniques is a psychological impact, and not some physical effect, with a specific goal of 'dislocate[ing] [the detainee's] expectations regarding the treatment he believes he will receive.'" OMS Guidelines at 8-9 (second alteration in original). Thus, no technique is ever used if there is reason to believe it will cause the detainee significant mental or physical harm. When enhanced techniques are used, OMS closely monitors the detainees' condition to ensure that he does not, in fact, experience severe pain or suffering or sustain any significant or lasting harm.

This facet of our analysis bears emphasis. We do not conclude that any conduct, no matter how extreme, could be justified by a sufficiently weighty government interest coupled with appropriate tailoring. Rather, our inquiry is limited to the program under consideration, in which the techniques do not amount to torture considered independently or in combination. See Techniques at 28-45; Combined Use at 9-19. Torture is categorically prohibited both by the CAT, see art. 2(2) ("No exceptional circumstances whatsoever ... may be invoked as a justification of torture."), and by implementing legislation, see 18 U.S.C §§2340-2340A.

The program, moreover, is designed to minimize the risk on injury or any suffering that is unintended or does not advance the purpose of the program. For example, in dietary manipulation, the minimum caloric intake is set at or above levels used in commercial weight-loss programs, thereby avoiding the possibility of significant weight loss. In nudity and water dousing, interrogators set ambient air temperatures high enough to guard against hypothermia. The walling technique employs a false wall and a C-collar (or similar decide) to help avoid whiplash. See Techniques at 8. With respect to sleep deprivation, constant monitoring protects against the possibility that detainees might injure themselves by hanging from their wrists, suffer from acute edema, or even experience non-transient hallucinations. See Techniques at 11-13. With the waterboard, interrogators use potable saline rather than plain water so that detainees will not suffer from hyponatremia and to minimize the risk of pneumonia. See id. at 13-14. The board is also designed to allow interrogators to place the detainee in a head-up position so that water may be cleared very quickly, and medical personnel and equipment are on hand should any unlikely problems actually develop. See id. 14. All enhanced techniques are conducted only as authorized and pursuant to medical guidelines and supervision. [27]

As is clear from these descriptions and the discussion above, the CIA uses enhanced techniques only as necessary to obtain information that it reasonably views as vital to protecting the United States and its interests from further terrorist attacks. The techniques are used only in the interrogation of those who are reasonably believed to be closely associated with al Qaeda and senior enough to have actionable intelligence concerning terrorist threats. Even then, the techniques are used only to the extent reasonably believed to be necessary to obtain otherwise unavailable intelligence. In addition, the techniques are designed to avoid inflicting severe pain or suffering, and no technique will be used if there is reason to believe it will cause significant harm. Indeed, the techniques have been designed to minimize the risk of injury or any suffering that does not further the Government's interest in obtaining actionable intelligence. The program is clearly not intended "to injure in some way unjustifiable by any government interest." Lewis 523 U.S. at 849. Nor can it be said to reflect "deliberate indifference" to a substantial risk of such unjustifiable injury. Id. at 851. [28]

2.

We next address whether, considered in light of "an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them," use of the enhanced interrogation techniques constitutes government behavior that "is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Id, at 847 n.8. We have not found evidence of traditional executive behavior or contemporary practice either condemning or condoning an interrogation program carefully limited to further a vital government interest and designed to avoid unnecessary or serious harm. [29] However, in many contexts, there is a strong tradition against the use of coercive interrogation techniques. Accordingly, this aspect of the analysis poses a more difficult question. We examine the traditions surrounding ordinary criminal investigations within the United States, the military's tradition of not employing coercive techniques in intelligence interrogations and the fact that that United States regularly condemns conduct undertaken by other countries that bears at least some resemblance to the techniques at issue.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 3 OF 3

These traditions provide significant evidence that the use of enhanced interrogation techniques might "shock the contemporary conscience" in at least some contexts. Id. As we have explained, however, the due process inquiry depends critically on setting and circumstance, see, e.g., id. at 847, 850, and each of these contexts differs in important ways from the one we considerer here. Careful consideration of the underpinnings of the standards of conduct expected in these other contexts, moreover, demonstrates that those standards are not controlling here. Further, as explained below, the enhanced techniques are all adapted from techniques used by the United States on its own troops, albeit under significantly different conditions. At a minimum, this confirms that use of these techniques cannot be considered to be categorically impermissible, that is, in some circumstances, use of these techniques is consistent with "traditional executive behavior" and "contemporary practice." Id. at 847 n.8. As explained below, we believe such circumstances are present here.

Domestic Criminal Investigations. Use of interrogation practices like those we consider here in ordinary criminal investigation might well "shock the conscience." In Rochin v. California, 342 U.S. 165 (1952), the Supreme Court reversed a criminal conviction where the prosecution introduced evidence against the defendant that had been obtained by the forcible pumping of the defendant's stomach. The Court concluded that the conduct at issue "shocks the conscience" and was "too close to the rack and the screw." Id. at 172. Likewise, in Williams v. United States, 341 U.S. 97 (1951), the Court then considered a conviction under a statute that criminalized depriving an individual of a constitutional right under color of law. The defendant suspected several persons of committing a particular crime. He then

over a period of three days took four men to a paint shack ... and used brutal methods to obtain a confession from each of them. A rubber hose, a pistol, a blunt instrument, a sash cord and other implement were used in the project. ... Each was beaten, threatened, and unmercifully punished for several hours until he confessed.


Id. at 98-99. The Court characterized this as "the classic use of force to make a man testify against himself," which would render the confessions inadmissible. Id. at 101. The Court concluded:

But where police take matters in their own hands, seize victims, beat and pound them until they confess, there cannot be the slightest doubt that the police have deprived the victim of a right under the Constitution. It is the right of the accused to be tried by a legally constituted court, not by a kangaroo court.


Id. at 101.

More recently, in Chavez v. Martinez, 538 U.S. 760 (2003), the police had questioned the plaintiff, a gunshot wound victim who was in severe pain and believed he was dying. At issue was whether a section 1983 suit could be maintained by the plaintiff. The Court rejected the plaintiff's Fifth Amendment Self-Incrimination Clause claim, see id. at 773 (opinion of Thomas, J.); id. at 778-79 (Souter, J., concurring in judgment), but remanded for consideration of whether the questioning validated the plaintiff's substantive due process rights, see id. at 779-80. Some of the justices expressed the view that the Constitution categorically prohibits such coercive interrogations. See id. at 783, 788 (Stevens, J., concurring in part and dissenting in part) (describing the interrogation at issue as "torturous" and asserting that such interrogation "is a classic example of a violation of a constitutional right implicit in the concept of ordered liberty") (internal quotation marks omitted); id. at 796 (Kennedy, J., concurring in part and dissenting in part) ("The Constitution does not countenance the official imposition of severe pain or pressure for purposes of interrogation. This is true whether the protection is found in the Self-Incrimination Clause, the broader guarantees of the Due Process Clause, or both.").

The CIA program is considerably less invasive or extreme than much of the conduct at issue in these cases. In addition, the government interest at issue in each of these cases was the general interest in ordinary law enforcement (and, in Williams, even that was doubtful). That government interest is strikingly different from what is at stake here: the national security -- in particular, the protection of the United States and its interests against attacks that may result in massive civilian casualties. Specific constitutional constraints, such as the Fifth Amendment's Self-Incrimination Clause, which provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself," (emphasis added), apply when the government acts to further its general interest in law enforcement and reflect explicit fundamental limitations on how the government may further that interest. Indeed, most of the Court's police interrogation cases appear to be rooted in the policies behind the Self-Incrimination Clause and concern for the fairness and integrity of the trial process. In Rochin, for example, the Court was concerned with the use of evidence obtained by coercion to bring about a criminal conviction. See, e.g., 342 U.S. at 173 ("Due process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely than to say that convictions cannot be brought about by methods that offend 'a sense of justice.'") (citation omitted); id. (refusing to hold that "in order to convict a man the police cannot extract by force what is in his mind but can extract what is in his stomach"). See also Jackson v. Denno, 378 U.S. 368, 377 (1964) (characterizing the interest at stake in police interrogation cases as the "right to be free of a conviction based upon a coerced confession"); Lyons v. Oklahoma, 322 U.S. 596, 605 (1944) explaining that "[a] coerced confession is offensive to basic standards of procured by torture are not premises from which a civilized forum will infer guilt"). Even Chavez, which might indicate the Court's receptiveness to a substantive due process claim based on coercive police interrogation practices irrespective of whether the evidence obtained was ever used against the individual interrogated, involved an interrogation implicating ordinary law enforcement interests.

Courts have long distinguished the government's interest in ordinary law enforcement from other government interests such as national security. The Foreign Intelligence Surveillance Court of Review recently explained that, with respect to the Fourth Amendment, "the [Supreme] Court distinguishes[s] general crime control programs and those that have another particular purpose, such as protection of citizens against special hazards or protection of our borders." In re Sealed Case, 310 F.3d 717, 745-46 (For. Intel Surv. Ct. Rev. 2002) (discussing the Court's "special needs" cases and distinguishing "FISA's general programmatic purpose" of "protect[ing] the nation against terrorists and espionage threats directed by foreign powers" from general crime control). Under the "special needs" doctrine, the Supreme Court has approved of warantless and even suspicionless searches that serve "special needs, beyond the normal need for law enforcement." Vermonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (quotation marks and citation omitted). Thus, although the Court has explained that it "cannot sanction [automobile] stops justified only by the" "general interest in crime control," Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (quotation marks and citation omitted), it suggested that it might approve of a "roadblock set up to thwart an imminent terrorist attack," id. See also Memorandum for James B. Comey, Deputy Attorney General, from Noel J. Francisco, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Whether OFAC May Without Obtaining a Judicial Warrant Enter the Commercial Premises of a Designated Entity to Security Property That Has Been Blocked Pursuant to IEEPA (April 11, 2005). Notably, in the due process context, the Court has distinguished the Government’s interest in detaining illegal aliens generally from its interest in detaining suspected terrorists. See Zadvydas, 533 U.S. at 691. Although the Court concluded that a statute permitting the indefinite detention of aliens subject to a final order or removal but who could not be removed to other countries would raise substantial constitutional questions, it suggested that its reasoning might not apply to a statute that "appl[ied] narrowly to a small segment of particularly dangerous individuals, say, suspected terrorists." Id. at 691 (quotation marks and citation omitted).

Accordingly, for these reasons, we do not believe that the tradition that emerges from the police interrogation context provides controlling evidence of a relevant executive tradition prohibiting use of these techniques in the quite different context of interrogations undertaken solely to prevent foreign terrorist attacks against the United States and its interests.

United States Military Doctrine. Army Field Manual 34-52 sets forth the military's basic approach to intelligence interrogations. It lists a variety of interrogation techniques that generally involve only verbal and emotional tactics. In the "emotional love approach," for example, the interrogator might exploit the love a detainee feels for his fellow soldiers, and use this to motivate the detainee to cooperate. Id. at 3-15. In the "fear-up (harsh) approach," "the interrogator behaves in an overpowering manner with a loud and threatening voice [and] may even feel the need to throw objects across the room to heighten the [detainee's] implanted feelings of fear." Id. at 3-16. The Field Manual counsels that "[g]reat care must be taken when [using this technique] so any actions would not violate the prohibition on coercion and threats contained in the GPW, Article 17." Id. Indeed, from the outset, the Field Manual explains that the Geneva Conventions "and US policy expressly prohibit acts of violence or intimidation, including physical or mental torture, threats, insults, or exposure to inhumane treatment as a means of or aid to interrogation." Id. at I-8. As prohibited acts of physical and mental torture, the Field Manual lists "[f]ood deprivation" and "[a]bnormal sleep deprivation" respectively. Id.

The Field Manual provides evidence "of a traditional executive behavior[ and] of contemporary practice," Lewis, 523 U.S. at 847 n.8, but we do not find it dispositive for several reasons. Most obviously, as the Field Manual makes clear, the approach it embodies is designed for traditional armed conflicts, in particular, conflicts governed by the Geneva Conventions. See Field Manual 34-52 at 1-7 to 1-8; see also id. at iv-v (noting that interrogations must comply with the Geneva Conventions and the Uniform Code of Military Justice). The United States, however, has long resisted efforts to extend the protections of the Geneva Conventions to terrorists and other unlawful combatants. As President Reagan stated when the United States rejected Protocol I to the Geneva Conventions, the position of the United States is that it "must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law." President Ronal Reagan, Letter of Transmittal to the Senate of Protocol II (Jan. 29, 1987). President Bush, moreover, has expressly determined that the Geneva Convention Relative to the Treatment of Prisoner of War ("GPW") does not apply to the conflict with al Qaeda. See Memorandum from the President, Re: Humane Treatment of al Qaeda and Taliban Detainees at 1 (Feb. 7, 2002); see also 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 al Qaeda and Taliban Detainees at 9-10 (Jan. 22, 2002) (explaining that GPW does not apply to non-state actors such as al Qaeda).

We think that a policy premised on the applicability of the Geneva Conventions and not purporting to bind the CIA does not constitute controlling evidence of executive tradition and contemporary practice with respect to untraditional armed conflict where those treaties do not apply, where the enemy flagrantly violates the laws of war by secretly attacking civilians, and where the United States cannot identity the enemy or prevent its attacks absent accurate intelligence.

State Department Reports. Each year, in the State Department's Country Reports on Human Rights Practices, the United States condemns coercive interrogation techniques and other practices employed by other countries. Certain of the techniques the United States has condemned appear to bear some resemblance to some of the CIA interrogation techniques. In their discussion of Indonesia, for example, the reports list as "[p]sychological torture" conduct that involves "food and sleep deprivation," but give no specific information as to what these techniques involve. In their discussion of Egypt, the reports list as "methods of torture" "stripping and blindfolding victims; suspending victims from a ceiling or doorframe with feet just touching the floor, beating victims [with various objects]; ... and dousing victims with cold water." See also, e.g. Algeria (describing the "chiffon" method, which involves "placing a rag drenched in dirty water in someone's mouth"); Iran (counting sleep deprivation as either torture or severe prisoner abuse); Syria (discussing sleep deprivation and "having cold water thrown on" detainees as either torture or "ill-treatment"). The State Department's inclusion of nudity, water dousing, sleep deprivation, and food deprivation among the conduct it condemns is significant and provides some indication of an executive foreign relations tradition condemning the use of these techniques. [30]

To the extent they may be relevant, however, we do not believe that the reports provide evidence that the CIA interrogation program "shocks the contemporary conscience." The reports do not generally focus on or provide precise description of individual interrogation techniques. Nor do the reports discuss in any detail the contexts in which the techniques are used. From what we glean from the reports, however, it appears that the condemned techniques are often part of a course of conduct that involves techniques and is undertaken in ways that bear no resemblance to the CIA interrogation program. Much of the condemned techniques goes far beyond the CIA techniques and would almost certainly constitute torture under United States law. See, e.g., Egypt (discussing "suspending victims from a ceiling or doorframe with feet just touching the floor" and "beating victims [with various objects]"); Syria (discussing finger crushing and severe beatings); Pakistan (beatings, burning with cigarettes, electric shock); Uzbekistan (electric shock, rape, sexual abuse, beating). The condemned conduct, moreover, is often undertaken for reasons totally unlike the CIA's. For example, Indonesia security forces apparently use their techniques in order to obtain confessions, to punish, and to extort money. Egypt "employ[s] torture to extract information, coerce opposition figures to cease their political activities, and to deter others from similar activities." There is no indication that techniques are used only as necessary to protect against grave terrorist threats of for any similarly vital government interests (or indeed for any legitimate government interest). On the contrary, much of the alleged abuses discussed in the reports appears to involve either the indiscriminate use of force, see, e.g., Kenya, or the targeting of critics of the government, see, e.g., Liberia, Rwanda. And there is certainly no indication that these countries apply careful screening procedures, medical monitoring, or any of the other safeguards required by the CIA interrogation program.

A United States foreign relations tradition of condemning torture, the indiscriminate use of force, the use of force against the government's political opponents, or the use of force to obtain confessions in ordinary criminal cases says little about the propriety of the CIA interrogation practices. The CIA's careful screening procedures are designed to ensure that enhanced techniques are used in the relatively few interrogations of terrorists who are believed to possess vital, actionable intelligence that might avert an attack against the United States or its interests. The CIA uses enhanced techniques only to the extent reasonably believed necessary to obtain the information and takes great care to avoid inflicting severe pain or suffering or any lasting or unnecessary harm. In short, the CIA program is designed to subject detainees to no more duress than is justified by the Government's interest in protecting the United States from further terrorist attacks. In these essential respects, it differs from the conduct condemned in the State Department reports.

SERE Training. There is also evidence that use of these techniques is in some circumstances consistent with executive tradition and practice. Each of the CIA's enhanced interrogation techniques has been adapted from military SERE training, where the techniques have long been used on our own troops. See Techniques at 6; IG Report at 13-14. In some instances, the CIA uses a milder form of the technique than SERE. Water dousing, as done in SERE training, involved complete immersion in water that may be below 40°F. See Techniques at 10. This aspect of SERE training is done outside with ambient air temperatures as low as 10°F. See id. In the CIA technique, by contrast, the detainee is splashed with water that is never below 41°F and is usually warmer. See id. Further, ambient air temperatures are never below 64°F. See id. Other techniques, however, are undeniably more extreme as applied in the CIA interrogation program. Most notably, the waterboard is used quite sparingly in SERE training -- at most two times on a trainee for at most 40 seconds each time. See id. at 13, 42. Although the CIA program authorizes waterboard use only in narrow circumstances (to date, the CIA has used the waterboard on only three detainees), where authorized, it may be used for two "sessions" per day of up to two hours. During a session, water may be applied up to six times for ten seconds or longer (but never more than 40 seconds). In a 24-hour period, a detainee may be subjected to up to twelve minutes of water application. See id. at 42. Additionally, the waterboard may be used on as many as five days during a 30-day approval period. See August 19 [delete] Letter at 1-2. The CIA used the waterboard "at least 83 times during August 2002" in the interrogation of Zubaydah, IG Report at 90, and 183 times during March 2003 in the interrogation of KSM, see id. at 91.

In addition, as we have explained before:

Individuals undergoing SERE training are obviously in a very different situation from detainees undergoing interrogation; SERE trainees know it is part of a training program, not a real-life interrogation regime, they presumably know it will last only a short time, and they presumably have assurances that they will not be significantly harmed by the training.


Techniques at 6. On the other hand, the interrogation program we consider here furthers the paramount interest of the United States in the security of the Nation more immediately and directly than SERE training, which seeks to reduce the possibility that United States military personnel might reveal information that could harm the national security in the event they are captured. Again, analysis of the due process question must pay careful attention to these differences. But we can draw at least one conclusion from the existence of the SERE training. Use of the techniques involved in the CIA's interrogation program (or at least the similar techniques from which these have been adapted) cannot be considered to be categorically inconsistent with "traditional executive behavior" and "contemporary practice" regardless of context. [31] It follows that use of these techniques will not shock the conscience in at least some circumstances. We believe that such circumstances exist here, where the techniques are used against unlawful combatants who deliberately attack civilians in an untraditional armed conflict in which intelligence is difficult or impossible to collect by other means and is essential to the protection of the United States and its interests, where the techniques are used only when necessary and only in the interrogation of key terrorist leaders reasonably thought to have actionable intelligence, and where every effort is made to minimize unnecessary suffering and to avoid inflicting significant or lasting harm.

Accordingly, we conclude that, in light of "an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them," the use of the enhanced interrogation techniques in the CIA interrogation program as we understand it, does not constitute government behavior that "is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Lewis, 523 U.S. at 847 n.8.

C.

For the reasons stated, we conclude that the CIA interrogation techniques, with their careful screening procedures and medical monitoring, do not "shock the conscience." Given the relative paucity of Supreme Court precedent applying this test at all, let alone in anything resembling this setting, as well as the context-specific, fact independent, and somewhat subjective nature of the inquiry, however, we cannot predict with confidence that a court would agree with our conclusion. We believe, however, that the question whether the CIA's enhanced interrogation techniques violate the substantive standard of United States obligations under Article 16 is unlikely to be subject to judicial inquiry.

As discussed above, Article 16 imposes no legal obligation on the United States that implicate the CIA interrogation program in view of the language of Article 16 itself and, independently, the Senate's reservation. But even if this were less clear (indeed, even if it were false), Article 16 itself has no domestic legal effect because the Senate attached a non-self execution declaration to its resolution of ratification. See Cong. Rec. 36,198 (1990) ("the United States declares that the provisions of Articles 1 through 16 of the Convention are not self-executing") It is well settled that non-self executing treaty provisions "can only be enforced pursuant to legislation to carry them into effect." Whitney v. Robertson, 124 U.S. 190, 194 (1888); see also Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) ("A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, ... but is carried in to execution by the sovereign power of the respective parties to the instrument."). One implication of the fact that article 16 is non-self-executing is that, with respect to Article 16, "the courts have nothing to do and can give no redress." Head Money Cases, 112 U.S. 580. 598 (1884). As one court recently explained in the context of the CAT itself, "Treaties that are not self-executing do not create judicially-enforceable rights unless they are first given effect by implementing legislation." August v. Ridge, 395 F.3d 2 n.7 (3d Cir. 2005) (citations omitted). Because (with perhaps one narrow exception [32]) Article 16 has not been legislatively implemented, the interpretation of its substantive standard is unlikely to be subject to judicial inquiry. [33]

* * *

Based on CIA assurances, we understand that the CIA interrogation program is not conducted in the United States or "territory under [United States] jurisdiction," and that it is not authorized for use against United States persons. Accordingly, we conclude that the program does not implicate Article 16. We also conclude that the CIA interrogation program, subject to its careful screening, limits, and medical monitoring, would not violate the substantive standards applicable to the United States under Article 15 even if those standards extended to the CIA interrogation program. Given the paucity of relevant precedent and the subjective nature of the inquiry, however, we cannot predict with confidence whether a court would agree with this conclusion, though for the reasons explained, the question is unlikely to be subject to judicial inquiry.

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

Steven G. Bradbury
Principal Deputy Assistant Attorney General

_______________

Notes:

1. Our analysis and conclusions are limited to the specific legal issues we address in this memorandum. We note that we have previously concluded that use of these techniques, subject to the limits and safeguards required by the interrogation program, does not violate the federal prohibition on torture, codified at 18 U.S.C. §§ 2340-2340A. See Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of 18 U.S.C. §§2340-2340A to Certain Techniques that May Be Used in the Interrogation of a High Value al Qaeda Detainee (May 10, 2005); see also Memorandum for John A. Rizzo, Senior Deputy General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of 18 U.S.C. §§2340-2340A to the Combine Use of Certain Techniques in the Interrogation of High Value al Qaeda Detainees (May 10, 2005) (concluding that the anticipated combined use of these techniques would not violate the federal prohibition on torture). The legal advice provided in this memorandum does not represent the policy view of the Department of Justice concerning the use of any interrogation methods.

2. The reservation provides in full:

That the United States considers itself bound by the obligation under Article 16 to prevent "cruel, inhuman or degrading treatment or punishment," only insofar as the term "cruel, inhuman or degrading treatment or punishment" means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, eighth, and/or Fourteenth amendments to the Constitution of the United States.


136 Cong. Rec. 36198 (1990). As we explain below, the Eighth and Fourteenth Amendments are not applicable in this context.

3. The CIA has reviewed and confirmed the accuracy of our description of the interrogation program, including its purposes, methods, limitations, and results.

4. Al-Nashiri, the only other detainee to be subjected to the waterboard, planned the bombing of the U.S.S. Cole and was subsequently "recognized as the chief of al Qaeda operations in and around the Arabian Peninsula." 9/11 Commission Report at 153.

5. You have informed us that the current practice is for the Director of the Central Intelligence Agency to make this determination personally.

6. We discuss only a small fraction of the important intelligence the CIA interrogators have obtained from KSM. [Big delete].

7. As with KSM, we discuss only a portion of the intelligence obtained through interrogations of Zubaydah.

8. As we explained in Techniques: "The CIA generally follows as a guideline a calorie requirement of 900 kcal/day + 10 kcal/kg/day. This quantity is multiplied by 1.2 for a sedentary activity level or 1.4 for a moderate activity level. Regardless of this formula, the recommended minimum calorie intake is 1500 kcal/day, and in no event is the detainee allowed to receive less than 1000 kcal/day." Id. at 7 (footnote omitted). The guideline caloric intake for a detainee who weighs 150 pounds (approximately 68 kilograms) would therefore be nearly 1,900 kcal/day for sedentary activity and would be more than 2,200 kcal/day for moderate activity.

9. In addition, as we observed in Techniques, certain studies indicate that sleep deprivation might lower pain thresholds in some detainees. See Techniques at 36 n.44. The ongoing medical monitoring is therefore especially important when interrogators employ this technique in conjunction with other techniques. See Combined Use at 13-14 & m.9, 16. In this regard, we note once again that the CIA has "informed us that the interrogation techniques at issue would not be used during a course of extended sleep deprivations with such frequency and intensity as to induce in the detainee a persistent condition of extreme physical distress such as may constitute 'severe physical suffering.'" Id. at 16.

10. As noted in our previous opinions, the slap techniques are not used in a way that could cause severe pain. See, e.g., Techniques at 8-9, 33 & n. 39; Combined Use at 11.

11. Although walling "wears down the [detainee] physically," Background Paper at 7, and undoubtedly may startle him, we understand that it is not significantly painful. The detainee hits a flexible false wall designed to create a loud sound when the individual bits it and thus to cause shock and surprise. See Combined Use at 6 n.4. But the detainee's head and neck are supported with a rolled hood or towel that provides a C-collar effect to help prevent whiplash; it is the detainee's shoulder blades that hit the wall; and the detainee is allowed to rebound from the flexible wall in order to reduce the chances of any injury. See id. You have informed us that a detainee is expected to feel "dread" at the prospect of walling because of the shock and surprise caused by the technique and because of the sense of powerlessness that comes from being roughly handled by the interrogators, not because the technique causes significant pain. See id.

12. The United States is not a party to the Vienna Convention and is therefore not bound by it. Nevertheless, Article 31(1)'s emphasis on textual analysis reflects international interpretive practice. See e.g., Rudolf Bernhardt, "Interpretation in International Law," in 2 Encyclopedia of Public International Law 1416, 1420 (1995) ("According to the prevailing opinion, the starting point in any treaty interpretation is the treaty text and the normal or ordinary meaning of its terms.").

13. Article 16(1) provides in full:

Each State Party undertakes to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.


14. In addition, although Article 2(2) emphasized 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," the CAT has no analogous provision with respect to cruel, inhuman, or degrading treatment or punishment. Because we conclude that CIA interrogation program does not implicate United States obligations under Article 16 and that the program would conform to United States obligations under Article 16 even if that provision did apply, we need not consider whether the absence of a provision analogous to Article 2(2) implies that States Parties could derogate from their obligations under Article 16 in extraordinary circumstances.

15. Article 6 may suggest an interpretation of the phrase "territory under its jurisdiction" that is potentially broader than the traditional notion of "territory." Article 6(1) directs a State Party "in whose territory a person alleged to have committed [certain offenses] is present" to take the suspected offender into custody. (Emphases added.) The use of the word "territory" in Article 6 rather than the phrase "territory under its jurisdiction" suggests that the terms have distinct meanings. See Factor, 290 U.S. at 303-04 (stating that treaty language should not be construed to render certain phrases "meaningless or inoperative"). Article 6 may thus support the position, discussed below, that "territory under its jurisdiction" may extend beyond sovereign territory to encompass areas where a State exercises de facto authority as the government, such as occupied territory. See infra p. 20. Article 20, which refers to "the territory of a State Party" may support the same inference.

16. This suggestion is in tension with the text of Article 5(10(a), which seems to distinguish "territory under [a State's] jurisdiction" from "ship[s] or aircraft registered in that State." See Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 n.5 (1989) (noting that where treaty text is not perfectly clear, the "natural meaning" of the text "could properly be contradicted only by clear drafting history"). Because the CIA has assured us that its interrogations do not take place on ships or aircraft registered in the United States, we need not resolve this issue here.

17. As we have explained, there is an argument that "territory under [a State's] jurisdiction" might also include occupied territory. Accordingly, at least absent the Senate's reservation, Article 16's obligations might extend to occupied territory. Because the United States is not currently an occupying power within the meaning of the laws of war anywhere in the world, we need not decide whether occupied territory is "territory under [United States] jurisdiction."

18. "The Senate's right to qualify its consent to ratification by reservations, amendments and interpretations was established through a reservation to the lay treaty of 1794." Quincy Wright, The Control of American Foreign Relations 253 (1992), and has been frequently exercises since then. The Supreme Court has indicated its acceptance of this practice. See Haver v. Yoker, 76 U.S. (9 Wall.) 32, 35 (1869); United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 107 (1801). See also Constitutionality of Proposed Conditions to Senate Consent to the Interim Convention on the Conservation of North Pacific Fur Seals, 10 Op. O.L.C. 12, 16 (1986) ("[T]he Senate's practice of conditioning its consent to particular treaties is well-established.").

19. The Restatement (Third) of Foreign Relations Law asserts that "[a]lthough the matter has not been authoritatively adjudicated, at least some actions by the United State in respect to foreign nationals outside the country are also subject to constitutional limitations." Id. § 722, cmt. m. This statement is contrary to the authorities cited in the text.

20. The Court's decision in Rasul v. Bush, 124 S. Ct. 2686 (2004), is not to the contrary. To be sure, the Court state in a footnote that:

Petitioner's allegations -- that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in Executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing -- unquestionably describe "custody in violation of the Constitution or laws or treaties of the United States."


Id. at 2698 n.15. We also believe this footnote is best understood to leave intact the Court's settled understanding of the Fifth Amendment. First, the Court limited its holding to the issue before it: whether the federal courts have statutory jurisdiction over habeas petitions brought by such aliens held at Guantanamo as enemy combatants. See id. at 2699 ("Whether and what further proceedings may become necessary ... are matters that we need not address now. What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing."). Indeed, the Court granted the petition for writ of certiorari "limited to the following Question: Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba." Rasul v. Bush, 540 U.S. 1003 (2003).

Second, the footnote relies on a portion of Justice Kennedy's concurrence in Verdugo-Urquidez "and the cases cited therein," Rasul, 124 S. Ct. at 2698 n.15. In this portion of Justice Kenney's Verdugo-Urquidez concurrence, Justice Kennedy discusses the Insular Cases. These cases stand for the proposition that although not every provision of the Constitution applies in United States territory overseas, certain core constitutional protections may apply in certain insular territories of the United States. See also, e.g., Reid v. Covert, 354 U.S. 1, 74-75 (1957) (Harlan, J., concurring in judgment) (discussing Insular Cases); Baltac v. Porto Rico, 258 U.S. 298 (1922). Given that the Court in Rasul stressed GTMO's unique status as "territory subject to the long-term, exclusive jurisdiction and control of the United States," Rasul, 124 S. Ct. at 2698 n.15, in the very sentence that cite Justice Kennedy's concurrence, it is conceivable that foot note 15 might reflect, at most a willingness to consider whether GTMO is similar in significant respects to the territories at issue in the Insular Cases. See also id. at 2696 (noting that under the agreement with Cuba "the United States exercises complete jurisdiction and control over the Guantanamo Bay Naval Base") (internal quotation marks omitted); id. at 2700 (Kennedy, J., concurring) (asserting that "Guantanamo Bay is in every practical respect a United States territory" and explaining that "[w]hat matters is the unchallenged and indefinite control that the United States has long exercised over Guantanamo Bay").

21. Additional analysis may be required in the case of aliens entitled to lawful permanent resident status. Compare Kwong Hai Chew v. Colding, 344 U.S. 590 (1953), with Shaughnessy v. United States ex re. Mezei, 345 U.S. 206 (1953). You have informed us that the CIA does not used these techniques on any United States persons, including lawful permanent residents, and we do not here address United States obligations under Article 16 with respect to such aliens.

22. Our analysis is not affected by the recent enactment of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and tsunami Relief, 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005). Section 1031(a)(1) of that law provides that:

[n]one of the funds appropriated or otherwise made available by this Act shall be obligated or expended to subject any person in the custody or under the physical control of the United States to torture or cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States.


119 Stat. at 256. Because the Senate reservation, as deposited with the United States instrument of ratification, defines United States obligations under Article 16 of the CAT, this statute does not prohibit the expenditure of funds for conduct that does not violate United States obligations under Article 16, as limited by the Senate reservation. Furthermore, this statute itself defines "cruel, inhuman, or degrading treatment or punishment" as "the cruel, unusual, and inhuman treatment or punishment prohibited by the fifth amendment, eighth amendment, or fourteenth amendment to the Constitution of the United States." Id. § 1031(b)(2).

23. To be sure, treatment amounting to punishment (let alone, cruel and unusual punishment) generally cannot be imposed on individuals who have not been convicted of crimes. But this prohibition flows from the Fifth Amendment rather than the Eighth. See Wolfish, 441 U.S. at 535 n.16; United States v. Salerno, 481 U.S. 739, 746-47 (1987). See also infra note 26.

24. Because what is at issue under the text of the Senate reservation is the subset of "cruel, inhuman or degrading treatment" that is "the cruel, unusual and inhumane treatment ... prohibited by the Fifth ... Amendment[]," we do not believe that the procedural aspects of the Fifth Amendment are relevant, at least in the context of interrogation techniques unrelated to the criminal justice system. Nor, given the language of Article 16 and the reservation, do we believe that United States obligations under this Article include other aspects of the Fifth Amendment, such as the Takings Clause or the various privacy rights that the Supreme Court has found to be protected by the Due Process Clause.

25. It appears that conscience-shocking conduct is a necessary but perhaps not sufficient condition to establishing that executive conduct violates substantive due process. See Lewis, 523 U.S. at 847 n.8 ("Only if the necessary condition of egregious behavior were satisfied would there be a possibility of recognizing a substantive due process right to be free of such executive action, and only then might there be a debate about the sufficiency of historical examples of enforcement of the right claimed, or its recognition in other ways.") (emphases added); see also, e.g., Terrell v. Larson, 396 F.3d 975, 978 n.1 (8th Cit. 2005) ("To violate substantive due process, the conduct of and executive official must be conscience shocking and must violate" a fundamental right); Slusarchuck v. Hoff, 346 F.3d 1175, 1181 (8th Cir. 2003). It is therefore arguable that conscience-shocking behavior would not violate the Constitution if it did not violate a fundamental right or if it were narrowly tailored to serve a compelling state interest. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Because we conclude that the CIA interrogation program does not "shock the conscience," we need not address these issues here.

26. The pretrial detention context is informative. Analysis of the government's interest and purpose in imposing a condition of confinement is essential to determining whether there is a violation of due process in this context. See Salerno, 481 U.S. at 747-50.0The government has a legitimate interest in "effectuat[ing] th[e] detention, Salerno, 481 U.S. at 747 (internal quotation marks omitted). By contrast, inflicting cruel and unusual punishment on such detainees would violate due process because the government has no legitimate interest in inflicting punishment prior to conviction. See Wolfish, 441 U.S. at 535 & n.16.

In addition, Lewis suggests that the Court's Eighth Amendment jurisprudence sheds at least some light on the due process inquiry. See 523 U.S. at 825-53 (analogizing the due process inquiry to the Eighth Amendment context and noting that in both cases "liability should turn on 'whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm'") (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). The interrogation program we consider does not involve or allow the malicious or sadistic infliction of harm. Rather, as discussed in the text, interrogation techniques are used only as reasonably deemed necessary to further a government interest of the highest order, and have been carefully designed to avoid inflicting severe pain or suffering or any other lasting or significant harm and to minimize the risk of any harm that does not further this government interest. See infra pp. 29-31.

27. The CIA’s CTC generally consults with the CIA's Office of General Counsel (which in turn may consult with this Office) when presented with novel circumstances. This consultation further reduces any possibility that CIA interrogators could be thought to be "abusing [their] power, or employing it as an instrument of oppression," Lewis, 523 U.S. at 840 (citation and quotation marks omitted; alteration in Lewis); see also Chavez, 538 U.S. at 774 (opinion of Thomas, J.), so as to render their conduct constitutionally arbitrary.

28. This is not to say that the interrogation program has worked perfectly. According to the IG Report, the CIA, at least initially, could not always distinguish detainees who had information but were successfully resisting interrogation from those who did not actually have the information. See IG Report at 83-85. On at least one occasion, this may have resulted in what might be deemed in retrospect to have been the unnecessary use of enhanced techniques. On that occasion, although the on-scene interrogation team judged Zubaydah to be compliant elements within CIA Headquarters still believed he was withholding information. [Big delete] See id. 84. At the direction of CIA Headquarters, interrogators therefore used the waterboard one more time on Zubaydah. [Big delete] See id. at 84-85.

This example, however, does not show CIA "conduct [that is] intended to injure in some way unjustifiable by any government interest," or "deliberate indifference" to the possibility of such unjustifiable injury. Lewis, 523 U.S. at 849. As long as the CIA reasonably believed that Zubaydah continued to withhold sufficiently important information, use of the waterboard was supported by the Government's interest in protecting the Nation from subsequent terrorist attacks. The existence of a reasonable, good faith belief is not negated because the factual predicates for that belief are subsequently determined to be false. Moreover, in the Zubaydah example, CIA techniques were no longer needed. See IG Report at 85. Thus, the CIA did not simply rely on what appeared to be credible intelligence but rather ceased using enhanced techniques despite this intelligence.

29. CIA interrogation practice appears to have varied over time. The IG Report explains that the CIA "has had intermittent involvement in the interrogation of individuals whose interests are opposed to those of the United States." IG Report at 9. In the early 1980, for example, the CIA initiated the Human Resource Exploitation ("HRE") training program, "designed to train foreign liaison services on interrogation techniques." Id. The CIA terminated the HRE program in 1986 because of allegations of human rights abuses in Latin America. See id. at 10. [Big delete]

30. We recognize that as a matter of diplomacy, the United States may for various reasons in various circumstances call another nation to account for practices that may in some respects resemble conduct in which the United States might in some circumstances engage, covertly or otherwise. Diplomatic relations with regard to foreign countries are not reliable evidence of United States executive practice and thus may be of only limited relevance here.

31. In addition, the fact that individuals voluntarily undergo the techniques in SERE training is probative. See Breithoupt v. Abram, 352 U.S. 432, 436-37 (1957) noting that people regularly voluntarily allow their blood to be drawn and concluding that involuntary blood testing does not "shock the conscience").

32. As noted above, Section 1031 of Public Law 109-13 provides that "[n]one of the funds appropriated or otherwise made available by this Act shall be obligated or expended to subject any person in the custody of under the physical control of the United States to ... cruel, inhuman, or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States." To the extent this appropriations rider implements Article 16 ,it creates a narrow domestic law obligation not to expend funds appropriated under Public Law 109-13 for conduct that violates Article 16. This appropriations rider, however, is unlikely to result in judicial interpretation of Article 16's substantive standards since it does not create a private right of action. See, e.g., Alexander v. Sandobal, 532 U.S. 275, 286 (2001) ("Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress."); Resident Council of Allen Parkway VIII. v. Dep't of Hous. & Urban Dev., 980 F2d 1043, 1052 (5th Cir. 1993) ("courts have been reluctant to infer congressional intent to create private rights under appropriations measure") (citing California v. Sierra Club, 451 U.S. 287 (1981)).

It is possible that a court could address the scope of Article 16 if a prosecution were brought under the Antideficiency Act, 31 U.S.C. § 1341 (2000), for a violation of section 1031's spending restriction. Section 1341 (a)(1)(A) of title 31 provides that officers or employees of the United States may not "make or authorize an expenditure or obligation exceeding an amount available in an appropriation of fund for the expenditure or obligation." "[K]nowing[] and willful[] violati[ons]" of section 1341(a) are subject to criminal penalties. Id. §1350.

33. Although the interpretation of Article 16 is unlikely to be subject to judicial inquiry, it is conceivable that a court might attempt to address substantive questions under the Fifth Amendment if, for example, the United States sought a criminal conviction of a high value detainee in an Article III court in the United States using evidence that had been obtained from the detainee through the use of enhance interrogation techniques.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Sat Oct 12, 2013 12:41 am

MEMO __

U.S. Department of Justice
Office of Legal Counsel
Washington, D.C. 20530

Office of the Principal Deputy Assistant Attorney General

October 6, 2008

MEMORANDUM FOR THE FILES

Re: October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities

The purpose of this memorandum is to advise that caution should be exercised before relying in any respect on the Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States (Oct. 23, 2001) ("10/23/01 Memorandum") as a precedent of the Office of Legal Counsel, and that certain propositions stated in the 10/23/01 Memorandum, as described below, should not be treated as authoritative for any purpose.

It is important to understand the context of the 10/23/01 Memorandum. It was the product of an extraordinary -- indeed, we hope, a unique -- period in the history of the Nation: the immediate aftermath of the attacks of 9/11. Perhaps reflective of this context, the 10/23/01 Memorandum did not address specific and concrete policy proposals; rather it addressed in general terms the broad contours of hypothetical scenarios involving possible domestic military contingencies that senior policymakers feared might become a reality in the uncertain wake of the catastrophic terrorist attacks of 9/11. Thus, the 10/23/01 Memorandum represents a departure, although perhaps for understandable reasons, from the preferred practice of OLC to render formal opinions only with respect to specific and concrete policy proposals and not to undertake a general survey of a broad area of the law or to address general or amorphous hypothetical scenarios that implicate difficult questions of law.

We also judge it necessary to point out that the 10/23/01 Memorandum states several specific propositions that are either incorrect or highly questionable. The memorandum's treatment of the following propositions is not satisfactory and should not be treated as authoritative for any purpose:

The memorandum concludes in part V, pages 25-34, that the Fourth Amendment would not apply to domestic military operations designed to deter and prevent further terrorist attacks. This conclusion does not reflect the current views of this Office. The Fourth Amendment is fully applicable to domestic military operations, though the application of the Fourth Amendment's essential "reasonableness" requirement to particular circumstances will be sensitive to the exigencies of military actions. The 10/23/01 Memorandum itself concludes in part VI, pages 34-37, that domestic military operations necessary to prevent or address further catastrophic terrorist attacks within the United States likely would satisfy the Fourth Amendment's reasonableness requirement, if the Fourth Amendment were held to apply; thus, the erroneous conclusion in part V was not necessary to the opinion.

Part V of the memorandum also contains certain broad statements on page 24 suggesting that First Amendment speech and press rights and other guarantees of individual liberty under the Constitution would potentially be subordinated to overriding military necessities. These statements, too, were unnecessary to the opinion, are overbroad and general, and are not sufficiently grounded in the particular circumstances of a concrete scenario, and therefore cannot be viewed as authoritative.

The memorandum concludes in part IV(A), pages 16-20, that the domestic deployment of the Armed Forces by the President to prevent and deter terrorism would fundamentally serve a military purpose, rather than a law enforcement purpose, and therefore the Posse Comitatus Act, 18 U.S.C. § 1385 (2000), would not apply to such operations. Although the "military purpose" doctrine is a well-established limitation on the applicability of the Posse Comitatus Act, the broad conclusion reached in part IV(A) of the 10/23/01 Memorandum is far too general and divorced from specific facts and circumstances to be useful as an authoritative precedent of OLC.

The memorandum, on pages 20-21, treats the Authorization for Use of Military Force ("AUMF"), enacted by Congress in the immediate wake of 9/11, Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001), as a statutory exception to the Posse Comitatus Act's restriction on the use of the military for domestic law enforcement. The better view, however, is that a reasonable and necessary use of military force taken under the authority of the AUMF would be a military action, potentially subject to the established "military purpose" doctrine, rather than a law enforcement action.

The memorandum reasons, on pages 21-22, that in the aftermath of the 9/11 attacks, the Insurrection Act, 10 U.S.C. § 333 (2000), would provide general authority for the President to deploy the military domestically to prevent and deter future terrorist attacks; whereas, consistent with the longstanding interpretation of the Executive Branch, any particular application of the Insurrection Act to authorize the use of the military for law enforcement purposes would require the presence of an actual obstruction of the execution of federal law or a breakdown in the ability of state authorities to protect federal rights.

For all of the foregoing reasons, we have concluded that appropriate caution should be exercised before relying in any respect on the 10/23/01 Memorandum as a precedent of OLC, and that the particular propositions identified above should not be treated as authoritative. We have advised the Counsel to the President, the Acting General Counsel of the Department of Defense, and appropriate offices within the Department of Justice of these conclusions.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Sat Oct 12, 2013 12:49 am

PART 1 OF 2

The ICRC Report

REPORT OF THE INTERNATIONAL COMMITTEE OF THE RED CROSS (ICRC) ON THE TREATMENT BY THE COALITION FORCES OF PRISONERS OF WAR AND OTHER PROTECTED PERSONS BY THE GENEVA CONVENTIONS IN IRAQ DURING ARREST, INTERNMENT AND INTERROGATION

FEBRUARY 2004

Table of Contents

• Executive Summary
• Introduction
• 1. Treatment during arrest
o 1.1 Notification to families and information for arrestees
• 2. Treatment during transfer and initial custody
• 3. Treatment during interrogation
o 3.1 Methods of ill-treatment
o 3.2 Military intelligence section, Abu Ghraib Correctional Facility
o 3.3 Umm Qasr (JFIT) and Camp Bucca (JIF/ICE)
o 3.4 Previous action taken by the ICRC in 2003 on the issue of treatment
o 3.5 Allegations of ill-treatment by the Iraqi police
• 4. Treatment in regular internment facilities
o 4.1 General conditions of treatment
o 4.2. "High Value Detainees" section, Baghdad International Airport
• 5. Disproportionate and excessive use of force against persons deprived of their liberty
• 6. Seizure and confiscation of personal belongings of persons deprived of their liberty
• 7. Exposure of persons deprived of their liberty to danger tasks
• 8. Protection of persons deprived of their liberty against shelling
• Conclusion

EXECUTIVE SUMMARY

In its "Report on the Treatment by the Coalition Forces of Prisoners of War and other protected persons in Iraq", the International Committee of the Red Cross (ICRC) draws the attention of the Coalition Forces (hereafter called "the CF") to a number of serious violations of International Humanitarian Law. These violations have been documented and sometimes observed while visiting prisoners of war, civilian internees and other protected persons by the Geneva Conventions (hereafter called persons persons deprived of their liberty when their status is not specifically mentioned) in Iraq between March and November 2003. During its visits to places of internment of the CF, the ICRC collected allegations during private interviews with persons deprived of their liberty relating to the treatment by the CF of protected persons during their capture, arrest, transfer, internment and interrogation.

The main violations, which are described in the ICRC report and presented confidentially to the CF, include:

• Brutality against protected persons upon capture and initial custody, sometimes causing death or serious injury
• Absence of notification of arrest of persons deprived of their liberty to their families causing distress among persons deprived of their liberty and their families
• Physical or psychological coercion during interrogation to secure information
• Prolonged solitary confinement in cells devoid of daylight
• Excessive and disproportionate use of force against persons deprived of their liberty resulting in death or injury during their period of internment

Serious problems of conduct by the CF affecting persons deprived of their liberty are also presented in the report:

• Seizure and confiscation of private belongings of persons deprived of their liberty
• Exposure of persons deprived of their liberty to dangerous tasks
• Holding persons deprived of their liberty in dangerous places where they are not protected from shelling

According to allegations collected by ICRC delegates during private interviews with persons deprived of their liberty, ill-treatment during capture was frequent. While certain circumstances might require defensive precautions and the use of force on the part of battle group units, the ICRC collected allegations of ill-treatment following capture which took place in Baghdad, Basrah, Ramadi and Tikrit, indicating a consistent pattern with respect to times and places of brutal behavior during arrest. The repetition of such behavior by CF appeared to go beyond reasonable, legitimate and proportional use of force required to apprehend suspects or restrain persons resisting arrest or capture, and seemed to reflect a usual modus operandi by certain CF battle group units.

According to the allegations collected by the ICRC, ill-treatment during interrogation was not systematic, except with regard to persons arrested in connected with suspected security offences or deemed to have an "intelligence" value. In these cases, persons deprived of their liberty under supervision of Military Intelligence were at high risk of being subjected to a variety of harsh treatments ranging from insults, threats and humiliations to both physical and psychological coercion, which in some cases was tantamount to torture, in order to force cooperation with their interrogators.

The ICRC also started to document what appeared to be widespread abuse of power and ill-treatment by the Iraqi police which is under the responsibility of the Occupying Powers, including threats to hand over persons in their custody to the CF so as to extort money from them, effective hand over of such persons to the custody of the CF on allegedly fake accusations, or invoking CF orders or instructions to mistreat persons deprived of their liberty during interrogation.

In the case of the "High Value Detainees" held in Baghdad International Airport, their continued internment, several months after their arrest, in strict solitary confinement in cells devoid of sunlight for nearly 23 hours a day constituted a serious violation of the Third and Fourth Geneva Conventions.

The ICRC was also concerned about the excessive and disproportionate use of force by some detaining authorities against persons deprived of their liberty involved during their internment during periods of unrest or escape attempts that cause death and serious injuries. The use of firearms against persons deprived of their liberty in circumstances where methods without using firearms could have yielded the same result could amount to a serious violation of International Humanitarian Law. The ICRC reviewed a number of incidents of shootings of persons deprived of their liberty with live bullets, which have resulted in deaths or injuries during periods of unrest related to conditions of internment or escape attempts. Investigations initiated by the CF into these incidents concluded that the use of firearms against persons deprived of their liberty was legitimate. However, non-lethal measures could have been used to obtain the same results and quell the demonstrations or neutralize persons deprived of their liberty trying to escape.

Since the beginning of the conflict, the ICRC has regularly brought its concern to the attention of the CF. The observations in the present report are consistent with those made earlier on several occasions orally and in writing to the CF throughout 2003. In spite of some improvements in the material conditions of internment, allegations of ill-treatment perpetrated by members of the CF against persons deprived of their liberty continued to be collected by the ICRC and thus suggested that the use of ill-treatment against persons deprived of their liberty went beyond exceptional cases and might be considered as a practice tolerated by the CF.

The ICRC report does not aim to be exhaustive with regard to breaches of International Humanitarian Law by the CF in Iraq. Rather, it illustrates priority areas that warrant attention and corrective action on the part of CF, in compliance with their International Humanitarian Law obligations.

Consequently the ICRC asks the authorities of the CF in Iraq:

- to respect at all times the human dignity, physical integrity and cultural sensitivity of the persons deprived of their liberty held under their control

- to set up a system of notifications of arrest to ensure quick and accurate transmission of information to the families of persons deprived of their liberty

- to prevent all forms of ill-treatment, moral or physical coercion of persons deprived of their liberty in relation to interrogation

- to set up an internment regime which ensures the respect of the psychological integrity and human dignity of the persons deprived of their liberty

- to ensure that all persons deprived of their liberty are allowed sufficient time every day outside in the sunlight, and that are allowed to moved and exercise in the outside yard

- to define and apply regulations and sanctions compatible with International Humanitarian Law and to to ensure that persons deprived of their liberty are fully informed upon arrival of such regulations and sanctions

- to thoroughly investigate violations of International Humanitarian Law in order to determine responsibilities and prosecute those found responsible for violations of International Humanitarian Law

- to ensure that battle group units arresting individuals and staff in charge of internment facilities receive adequate training enabling them to operate in a proper manner and fulfill their responsibilities as arresting authority without resorting to ill-treatment or making excessive use of force.

INTRODUCTION

1. The International Committee of the Red Cross (ICRC) is mandated by the High Contracting Parties to the Geneva Conventions to monitor the full application of and respect for the Third and Fourth Geneva Conventions regarding the treatment of persons deprived of their liberty. The ICRC reminds the High Contracting Parties concerned, usually in a confidential way, of their humanitarian obligations under all four Geneva Conventions, in particular the Third and Fourth Geneva Conventions as far as treatment of persons deprived of their liberty is concerned and under Protocol 1 of 1977 additional to the Geneva Conventions, confirmed and reaffirmed rules of customary law and universally acknowledged principles of humanity.

The information contained in this report is based on allegations collected by the ICRC in private interviews with persons deprived of their liberty during its visits to places of internment of the Coalition forces (CF) between March and November 2003. The allegations have been thoroughly revised in order to present this report as factually as possible. The report is also based on other accounts given either by fellow persons deprived of their liberty inside internment facilities by family members. During this period, the ICRC conducted some 29 visits in 14 internment facilities in the central and southern parts of the country. The testimonies were collected in Camp Cropper (Core Holding Area, Military Intelligence section, "High Value Detainees" section); Al-Salihiyye, Tasferat and Al-Russafa prisons; Abu Ghraib Correctional Facility (including Camp Vigilant and the "Military Intelligence" section); Umm Qasr and Camp Bucca, as well as several temporary internment places such as Tallil Trans-Shipment Place, Camp Condor, Amarah Camp and the Field Hospital in Shaibah.

The ICRC conditions for such visits to persons deprived of their liberty in internment facilities are common for all countries where the organization operates. The can be expressed as follows:

• The ICRC must have access to all persons deprived of their liberty who come within its mandate in their place of internment
• The ICRC must be able to talk freely and in private with the persons deprived of their liberty of its choice and to register their identity
• The ICRC must be authorized to repeat its visits to the persons deprived of their liberty
• The ICRC must be notified of arrests, transfers and releases by the detaining authorities

Each visit to persons deprived of their liberty is carried out in accordance with ICRC's working procedures expressed as follows:

• At the beginning of each visit, the ICRC delegates speak with the detaining authorities to present the ICRC's mandate and the purpose of the visit as well as to obtain general information on internment conditions, total of interned population and movements of persons deprived of their liberty (release, arrest, transfer, death, hospitalization).
• The ICRC delegates, accompanied b the detaining authorities tour the internment facilities.
• The ICRC delegates hold private interviews with persons of their choice who are deprived of their liberty, with no time limit in a place freely chosen and if necessary register them.
• At the end of each visit, the delegates hold a final talk with the detaining authorities to inform them about the ICRC's findings and recommendations.

2. The aim of the report is to present information collected by the ICRC concerning the treatment of prisoners of war by the CF, civilian internees and other protected persons deprived of their liberty during the process of arrest, transfer, internment and interrogation.

3. The main places of internment where mistreatment allegedly took place included battle group unit stations; the military intelligence sections of Camp Cropper and Abu Ghraib Correctional Facility; Al-Baghadadi, Heat Base and Habbania Camp in Ramadi governorate; Tikrit holding area (former Saddam Hussein Islamic School); a former train station in Al-Khaïm, near the Syrian border, turned into a military base; the Ministry of Defense and Presidential Palace in Baghdad, the former mukhabarat office in Basrah, as well as several Iraqi police stations in Baghdad.

4. In most cases, the allegations of ill-treatment referred to acts that occurred prior to the internment of persons deprived of their liberty in regular internment facilities, while they were in the custody of arresting authorities or military and civilian intelligence personnel. When persons deprived of their liberty were transferred to regular internment facilities, such as those administered by the military police, where the behavior of guards was strictly supervised, ill-treatment of the type described in this report usually ceased. In these places, violations of the provisions of International Humanitarian Law relating to the treatment of persons deprived of their liberty were a result of the generally poor standard of internment conditions (long term internment in unsuitable temporary facilities) or of the use of what appeared to be excessive force to quell unrest or to prevent attempted escapes.

1. TREATMENT DURING ARREST

5. Protected persons interviewed by ICRC delegates have described a fairly consistent pattern with respect for times and places of brutality by members of the CF arresting them.

6. Arrests as described in these allegations tended to follow a pattern. Arresting authorities entered houses usually after dark, breaking down doors, waking up residents roughly, yelling orders, forcing family members into one room under military guard while searching the rest of the house and further breaking doors, cabinets and other property. They arrested suspects, tying their hands in the back with flexi-cuffs, hooding them, and taking them away. Sometimes they arrested all adult males present in a house, including elderly, handicapped and sick people. Treatment often included pushing people around, insulting, taking aim with rifles, punching and kicking and striking with rifles. Individuals were often led away in whatever they happened to be wearing at the time of arrest -- sometimes in pyjamas or underwear -- and were denied the opportunity to gather a few essential belongings, such as clothing, hygiene items, medicine or eyeglasses. Those who surrendered with a suitcase often had their belongings confiscated. In many cases personal belongings were seized during the arrest, with no receipt being issued (see section 6, below).

7. Certain CF military intelligence officers told the ICRC that in their estimate between 70% and 90% of persons deprived of their liberty in Iraq had been arrested by mistake. They also attributed the brutality of some arrests to the lack of proper supervision of battle group units.

8. In accordance with provisions of International Humanitarian Law which oblige the CF to treat prisoners of war and other protected persons humanely and to protect them against acts of violence, threats thereof, intimidation and insults (Art. 13, 14, 17, 87, Third Geneva Convention; Art. 5, 27, 31, 32, 33 Fourth Geneva Convention), the ICRC asks the authorities of CF to respect at all times the human dignity, physical integrity and cultural sensitivity of the persons deprived of their liberty held under their control. The ICRC also asks the authorities of CF to ensure that battle group units arresting individuals receive adequate training enabling them to operate in a proper manner and fulfill their responsibilities without resorting to brutality or using excessive force.

1.1 Notification to families and information for arrestees

9. In almost all instances documented by the ICRC, arresting authorities provided no information about who they were, where their base was located, nor did they explain the cause of arrest. Similarly, they rarely informed the arrestee or his family where he was being taken and for how long, resulting in the de facto "disappearance" of the arrestee for weeks or even months until contact was finally made.

10. When arrests were made in the streets, along the roads, or at checkpoints, families were not informed about what had happened to the arrestees until they managed to trace them or received news about them through persons who had been deprived of their liberty, or ICRC Red Cross messages. In the absence of a system to notify the families of the whereabouts of their arrested relatives, many were left without news for months, often fearing that their relatives unaccounted for were dead.

11. Nine months into the present conflict, there is still no satisfactory functioning system of notification to the families of captured or arrested persons, even though hundreds of arrests continue to be carried out every week. While the main places of internment (Camp Bucca and Abu Ghraib) are part of a centralized notification system through the National Information Bureau (and their data are forwarded electronically to ICRC on a regular basis), other places of internment such as Mossul or Tikrit are not. Notifications from those places therefore depend solely on capture or internment cards as stipulated by the Third and Fourth Geneva Conventions.

Since March 2003 capture cards have often been filled out carelessly, resulting in unnecessary delays of several weeks or months before families were notified, and sometimes resulting in no notification at all. It is the responsibility of the detaining authority to see to it that each capture or internment card is carefully filled out so that the ICRC is in a position to effectively deliver them to families. The current system of General Information Centers (GIC), set up under the responsibility of the Humanitarian Assistance Coordination Centers (HACC), while an improvement, remains inadequate, as families outside the main towns do not have access to them, lists made available are not complete and often outdated and do not reflect the frequent transfers from one place of internment to another. In the absence of a better alternative, the ICRC's delivery of accurate capture cards remains the most reliable, prompt and effective system to notify the families, provided cards are properly filled out.

The ICRC has raised this issue repeatedly with the detaining authorities since March 2003, including at the highest level of the CF in August 2003. Despite some improvement, hundreds of families had had to wait anxiously for weeks and sometimes months before learning of the whereabouts of their arrested family members. Many families travel for weeks throughout the country from one place of internment to another in search of their relatives and often come to learn about their whereabouts informally (through released detainees) or when the person deprived of his liberty is released and returns home.

12. Similarly, transfers, cases of sickness at the time of arrest, deaths, escapes or repatriations, continue to be notified only insufficiently or are not notified at all by the CF to families in spite of their obligation to do so under International Humanitarian Law.

13. In accordance with provisions of both the Third Geneva Convention (Art. 70, 122, 123) and the Fourth Geneva Convention (Art. 106, 136, 137, 138, 140), the ICRC reminds the CF of their treaty-based obligation to notify promptly the families of all prisoners of war and other protected persons captured or arrested by them. Within one week, prisoners of war and civilian detainees must be allowed to fill out capture cards or internment cards mentioning at the very least their capture/arrest, address (current place of detention/internment) and state of health. These cards must be forwarded as rapidly as possible and may not be delayed in any manner. As long as there is no centralized system of notifications of arrest set up by CF, it is of paramount importance that these capture cards be filled out properly, so as to allow the ICRC to transmit them rapidly to the concerned families.

14. The same obligation of notification to families of captured or arrested persons applies to transfers, cases of sickness, deaths, escapes and repatriation and identification of the dead of the adverse party. All these events must be notified to the ICRC with the full details of the persons concerned, so as to allow the ICRC to inform the concerned families (Art. 120, 121, 122, 123 Third Geneva Convention; Art. 129, 130, 136, 137, 140 Fourth Geneva Convention).

2. TREATMENT DURING TRANSFER AND INITIAL CUSTODY

15. The ICRC collected several allegations indicating that following arrest persons deprived of their liberty were ill-treated, sometimes during transfer from their place of arrest to their initial internment facility. This ill-treatment would normally stop by the time the persons reached a regular internment facility, such as Camp Cropper, Camp Bucca or Abu Ghraib. The ICRC also collected one allegation of death resulting from harsh conditions of internment and ill-treatment during initial custody.

16. One allegation collected by the ICRC concerned the arrest of nine men by the CF in a hotel in Basrah on 13 September 2003. Following their arrest, the nine men were made to kneel, face and hands against the ground, as if in a prayer position. The soldiers stamped on the back of the neck of those raising their head. They confiscated their money without issuing a receipt. The suspects were taken to Al-Hakimiya, a former office previously used by the mukhabarat in Basrah and then beaten severely by CF personnel. One of the arrestees died following the ill-treatment [Name redacted], aged 28, married, father of two children). Prior to his death, his co-arrestees heard him screaming and asking for assistance.

The issued "International Death Certificate" mentioned "Cardio-respiratory arrest -- asphyxia" as the condition directly leading to the death. As to the cause of that condition, it mentioned "Unknown" and "Refer to the coroner". The certificate did not bear any other mention. An eyewitness description of the body given to the ICRC mentioned a broken nose, several broken ribs and skin lesions on the face consistent with beatings. The father of the victim was informed of his death on 18 September, and was invited to identify the body of his son. On 3 October, the commander of the CF in Basrah presented to him his condolences and informed him that an investigation had been launched and that those responsible would be punished. Two other persons similarly deprived of their liberty were hospitalized with severe injuries. Similarly, a week later, an ICRC medical doctor examined them in the hospital and observed large haematomas with dried scabs on the abdomen, buttocks, sides, thigh, wrists, nose and forehead consistent with their accounts of beatings received.

17. During a visit of the ICRC in Camp Bucca on 22 September 2003, a 61-year-old person deprived of his liberty alleged that he had been tied, hooded, and forced to sit on the hot surface of what he surmised to be the engine of a vehicle, which had caused severe burns to his buttocks. The victim had lost consciousness. The ICRC observed large crusted lesions consistent with his allegation.

18. The ICRC examined another person deprived of his liberty in the "High Value Detainees" section in October 2003 who had been subjected to a similar treatment. He had been hooded, handcuffed in the back, and made to lie face down, on a hot surface during transportation. This had caused severe skin burns that required three months hospitalization. At the time of the interview he had been recently discharged from hospital. He had to undergo several skin grafts, the amputation of his right index finger, and suffered permanent loss of the use of his left fifth finger secondary to burn-induced skin retraction. He also suffered extensive burns over the abdomen, anterior aspects of lower extremities, the palm of his right hand and the sole of his left foot. The ICRC recommended to the CF that the case be investigated to determine the cause and circumstances of the injuries and the authority responsible for the ill-treatment. At the time of writing the results of the report were still pending.

19. During transportation following arrest, persons deprived of their liberty were almost always hooded and tightly restrained with flexi-cuffs. They were occasionally

[Balance of text and paragraphs 20 and 21 missing, perhaps a full page.]

haematoma and linear marks compatible with repeated whipping or beating. He had wrist marks compatible with tight flexi-cuffs.

The ICRC also collected allegations of deaths as a result of harsh internment conditions, ill-treatment, lack of medical attention, or the combination thereof, notably in Tikrit holding area formerly known as the Saddam Hussein Islamic School.

22. Some CF military intelligence officers told the ICRC that the widespread ill-treatment of persons deprived of their liberty during arrest, initial internment and "tactical questioning" was due to a lack of military police on the ground to supervise and control the behavior and activities of the battle group units, and the lack of experience of intelligence officers in charge of the "tactical questioning".

23. In accordance with provisions of International Humanitarian Law which oblige the CF to treat prisoners of war and other protected persons humanely and to protect them against acts of violence, threats thereof, intimidation and insults (Art. 13, 14, 17, 87, Third Geneva Convention; Art. 5, 27, 31, 32, 33 Fourth Geneva Convention), the ICRC asks the authorities of CF to respect at all times the human dignity, physical integrity and cultural sensitivity of the persons deprived of their liberty held under their control.

The ICRC also asks the authorities of CF to ensure that battle group units transferring and/or holding individuals receive adequate training enabling them to operate in a proper manner and fulfill their responsibilities without resorting to brutality or using excessive force.

3. TREATMENT DURING INTERROGATION

24. Arrests were usually followed by temporary internment at battle group level or at initial interrogation facilities managed by military intelligence personnel, but accessible to other intelligence personnel (especially in the case of security detainees). The ill-treatment by the CF personnel during interrogation was not systematic, except with regard to persons arrested in connection with suspected security offenses or deemed to have an "intelligence" value. In these cases, persons deprived of their liberty supervised by the military intelligence were subjected to a variety of ill-treatments ranging from insults and humiliation to both physical and psychological coercion that in some cases might amount to torture in order to force them to cooperate with their interrogators. In certain cases, such as in Abu Ghraib military intelligence section, methods of physical and psychological coercion used by the interrogators appeared to be part of the standard operating procedures by military intelligence personnel to obtain confessions and extract information. Several military intelligence officers confirmed to the ICRC that it was part of the military intelligence process to hold a person deprived of his liberty naked in a completely dark and empty cell for a prolonged period to use inhumane and degrading treatment, including physical and psychological coercion, against persons deprived of their liberty to secure their cooperation.

3.1 Methods of Ill-Treatment

25. The methods of ill-treatment most frequently alleged during interrogation included

• Hooding, used to prevent people from seeing and to disorient them, and also to prevent them from breathing freely. One or sometimes two bags, sometimes with an elastic blindfold over the eyes which, when slipped down, further impeded proper breathing. Hooding was sometimes used in conjunction with beatings thus increasing anxiety as to when blows would come. The practice of hooding also allowed the interrogators to remain anonymous and thus to act with impunity. Hooding could last for periods from a few hours to up to two to four consecutive days, during which hoods were lifted only for drinking, eating or going to the toilets;
• Handcuffing with flexi-cuffs, which were sometimes made so tight and used for such extended periods that they caused skin lesions and long-term aftereffects on the hands (nerve damage), as observed by the ICRC;
• Beating with hard objects (including pistols and rifles), slapping, punching, kicking with knees or feet on various parts of the body (legs, sides, lower back, groin);
• Pressing the face into the ground with boots;
• Threats (of ill-treatment, reprisals against family members, imminent executive or transfer to Guantanamo);
• Being stripped naked for several days while held in solitary confinement in an empty and completely dark cell that included a latrine;
• Being held in solitary confinement combined with threats (to intern the individual indefinitely, to arrest other family members, to transfer the individual to Guantanamo), insufficient sleep, food or water deprivation, minimal access to showers (twice a week), denial of access to open air and prohibition of contacts with other persons deprived of their liberty;
• Being paraded naked outside cells in front of other persons deprived of their liberty and guards, sometimes hooded or with women's underwear over the head;
• Acts of humiliation such as being made to stand naked against the wall of the cell with arms raised or with women's underwear over the head for prolonged periods -- while being laughed at by guards, including female guards, and sometimes photographed in this position;
• Being attached repeatedly over several days, for several hours each time, with handcuffs to the bars of their cell door in humiliating (i.e. naked or in underwear) and/or uncomfortable position causing physical pain;
• Exposure while hooded to loud noise or music, prolonged exposure while hooded to the sun over several hours, including during the hottest time of the day when temperatures could reach 50 degrees Celsius (122 degrees Fahrenheit) or higher;
• Being forced to remain for prolonged periods in stress positions such as squatting or standing with or without the arms lifted.

26. These methods of physical and psychological coercion were used by the military intelligence in a systematic way to gain confessions and extract information or other forms of cooperation from persons who had been arrested in connection with suspected security offences or deemed to have an "intelligence value."
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 2 OF 2 (ICRC Report Cont'd.)

3.2 Military Intelligence section, "Abu Ghraib Correctional Facility"

27. In mid-October 2003, the ICRC visited persons deprived of their liberty undergoing interrogation by military intelligence officers in Unit 1A, the "isolation section" of "Abu Ghraib" Correctional Facility. Most of these persons deprived of their liberty had been arrested in early October. During the visit, ICRC delegates directly witnessed and documented a variety of methods used to secure the cooperation of the persons deprived of their liberty with their interrogators. In particular they witnessed the practice of keeping persons deprived of their liberty completely naked in totally empty concrete cells and in total darkness, allegedly for several consecutive days. Upon witnessing such cases, the ICRC interrupted its visits and requested an explanation from the authorities. The military intelligence officer in charge of the interrogation explained that this practice was "part of the process". The process appeared to be a given-and-take policy whereby persons deprived of their liberty were "drip-fed" with new items (clothing, bedding, hygiene articles, lit cell, etc.) in exchange for their "cooperation". The ICRC also visited other person deprived of their liberty held in total darkness, others in dimly lit cells who had been allowed to dress following periods during which they had been held naked. Several had been given women's underwear to wear under their jumpsuit (men's underwear was not distributed), which they felt to be humiliating.

The ICRC documented other forms of ill-treatment, usually combined with those described above, including threats, insults, verbal violence, sleep deprivation caused by the playing of loud music or constant light in cells devoid of windows, tight handcuffing with flexi-cuffs causing lesions and wounds around the wrists. Punishment included being made to walk in the corridors handcuffed and naked, or with women's underwear on the head, or being handcuffed either dressed or naked to the bed bars or cell door. Some persons deprived of their liberty presented physical marks and psychological symptoms, which were compatible with these allegations. The ICRC medical delegate examine persons deprived of their liberty presenting signs of concentration difficulties, memory problems, verbal expression difficulties, incoherent speech, acute anxiety reactions, abnormal behavior and suicidal tendencies. These symptoms appeared to have been caused by the methods and duration of interrogation. One person held in isolation that ICRC examined, was unresponsive to verbal and painful stimuli. His heart rate was 120 beats per minute and his respiratory rate 18 per minute. He was diagnosed as suffering from somatoform (mental) disorder, specifically a conversion disorder, most likely due to the ill-treatment he was subjected to during interrogation.

According to the allegations collected by the ICRC, detaining authorities also continued to keep persons deprived of their liberty during the period of interrogation, uninformed of the reasons for their arrest. They were often questioned without knowing what they were accused of. They were not allowed to ask questions and were not provided with an opportunity to seek clarification about the reason for their arrest. Their treatment tended to vary according to their degree of cooperation with their interrogators: those who cooperated were afforded preferential treatment such as being allowed contacts with other persons deprived of their liberty, being allowed to phone their families, being given clothes, bedding equipment, food, water or cigarettes, being allowed access to showers, being held in a lit cell, etc.

3.3 Umm Qasr (JFIT) and Camp Bucca (JIF/ICE)

28. Since the establishment of Umm Qasr and its successor, Camp Bucca, persons deprived of their liberty undergoing interrogation, whether they had been arrested by British, Danish, Dutch or Italian armed forces were segregated from other detainees in a separate section of the camp designated for investigation. This section was initially operated by the British Armed Forces who called it Joint Field Intelligence Team (JFIT). On 7 April, its administration was handed over to the US Armed Forces, which renamed it Joint Interrogation Facility/Interrogation Control Element (JIF/ICE). On 25 September 2003, its administration was handed back to the British Armed Forces.

29. CF intelligence personnel interrogated persons deprived of their liberty of concern to them in this section. They were either accused of attacks against the CF or deemed to have an "intelligence value". They could be held there from a few days to several weeks, until their interrogation was completed. During a visit in September 2003, the ICRC interviewed in that section several persons deprived of their liberty that had been held there for periods from three to four weeks.

30. Initially, inmates were routinely treated by their guards with general contempt, with petty violence such as having orders screamed at them and being cursed, kicked, struck with rifle butts, roughed up or pushed around. They were reportedly handcuffed in the back and hooded for the duration of the interrogation and were prohibited from talking to each other or to the guards. Hooding appeared to be motivated by security concerns as well as to be part of standard intimidation techniques used by military intelligence personnel to frighten inmates into cooperating. This was combined with deliberately maintaining uncertainty about what would happen to the inmates, and a generally hostile attitude on the part of the guards. Conditions of internment improved according to the degree of cooperation of the persons deprived of their liberty. Interrogated persons deprived of their liberty were held in two separate sections. Those under initial investigation were reportedly not allowed to talk to each other (purportedly to avoid exchange of information and "versions of events" between them). They were not allowed to stand up or walk out of the tent but they had access to water with which to wash themselves. Once they had cooperated with their interrogators, they were transferred to the "privileged" tent where the above-mentioned restrictions were lifted.

31. Persons deprived of their liberty undergoing interrogation by the CF were allegedly subjected to frequent cursing, insults and threats, both physical and verbal, such as having rifles aimed at them in a general way or directly against the temple, the back of the head, or the stomach, and threatened with transfer to Guantanamo, death or indefinite internment. Besides mentioning the general climate of intimidation maintained as one of the methods used to pressure persons deprived of their liberty to cooperate with their interrogators, none of those interviewed by the ICRC in Umm Qasr and Camp Bucca spoke of physical ill-treatment during interrogation. All allegations of ill-treatment referred to the phase of arrest, initial internment (at collection points, holding areas) and "tactical questioning" by military intelligence officers attached to battle group units, prior to transfer to Camp Bucca.

3.4 Previous action taken by the ICRC in 2003 on the issue of treatment

32. On 1 April, the ICRC informed orally the political advisor or the commander of British Armed Forces at the CF Central Command in Doha about methods of ill-treatment used by military intelligence personnel to interrogate persons deprived of their liberty in the internment camp of Umm Qasr. This intervention had the immediate effect to stop the systematic use of hoods and flexi-cuffs in the interrogation section of Umm Qasr. Brutal treatment of persons deprived of their liberty also allegedly ceased when the 800th MP Brigade took over the guarding of that section in Umm Qasr. UK Forces handed over Umm Qasr holding area to the 800th MP Brigade on 09.04.03. The 800th MP Brigade then built Camp Bucca two kilometers away.

33. In May 2003, the ICRC sent to the CF a memorandum based on over 200 allegations of ill-treatment of prisoners of war during capture and interrogation at collecting points, battle group stations and temporary holding areas. The allegations were consistent with marks on bodies observed by the medical delegate. The memorandum was handed over to [Name redacted] US Central Command in Doha, Sate of Qatar. Subsequently, one improvement consisted in the removal of wristbands with the remark "terrorist" given to foreign detainees.

34. In early July the ICRC sent the CF a working paper detailing approximately 50 allegations of ill-treatment in the military intelligence section of Camp Cropper, at Baghdad International Airport. They included a combination of petty and deliberate acts or violence aimed at securing the cooperation of the persons deprived of their liberty with their interrogators: threats (to intern individuals indefinitely, to arrest other family members, to transfer individuals to Guantanamo) against persons deprived of their liberty or against members of their families (in particular wives and daughters); hooding; tight handcuffing; use of stress positions (kneeling, squatting, standing with arms raised over the head) for three or four hours; taking aim at individuals with rifles, striking them with rifle butts, slaps, punches, prolonged exposure to the sun, and isolation in dark cells. ICRC delegates witnessed marks on the bodies of several persons deprived of their liberty consistent with the allegations. In one illustrative case, a person deprived of his liberty arrested at home by the CF on suspicion of involvement in an attack against the CF, was allegedly beaten during interrogation in a location in the vicinity of Camp Cropper. He alleged that he had been hooded and cuffed with flexi-cuffs, threatened to be tortured or killed, urinated on, kicked in the head, lower back and groin, force-fed a baseball which was tied into the mouth using a scarf and deprived of sleep for four consecutive days. Interrogators would allegedly take turns ill-treating him. When he said he would complain to the ICRC he was allegedly beaten more. An ICRC medical examination revealed haematoma in the lower back, blood in urine, sensory loss in the right hand due to tight handcuffing with flexi-cuffs, and a broken rib.

Shortly after that intervention was sent, the military intelligence internment section was closed to persons deprived of their liberty were transferred to what became the "High Value Detainees" section of the airport, a regular internment facility under the command of the 115th Military Police Battalion. From this time onwards, the ICRC observed that the ill-treatment of this category of persons deprived of the their liberty by military intelligence declined significantly and even stopped, while their interrogation continued through to the end of the year 2003.

3.5 Allegations of ill-treatment by Iraqi police

35. The ICRC has also collected a growing body of allegations relating to widespread abuse of power and ill-treatment of persons in the custody of Iraqi police. This included the extensive practice of threatening to handover these persons to the CF for internment, or claiming to act under the CF instructions, in order to abuse their power and extort money from persons taken in custody. Allegations collected by the ICRC indicated that numerous people had been handed over to the CF on the basis of unfounded accusations (of hostility against the CF, or belonging to opposition forces) because they were unable or unwilling, to pay bribes to the police. Alleged ill-treatment during arrest and transportation included hooding. tight handcuffing, verbal abuse, beating with fists and rifle butts, and kicking. During interrogation, the detaining authorities allegedly whipped persons deprived of their liberty with cables on the back, kicked them in the lower parts of the body, including in the testicles, handcuffed and left them hanging from the iron bars of the cell windows or doors in painful positions for several hours at a time, and burned them with cigarettes (signs on bodies witnessed by ICRC delegates). Several persons deprived of their liberty alleged that they had been made to sign a statement that they had not been allowed to read. These allegations concerned several police stations in Baghdad including Al-Qana. Al-Jiran Al-Kubra in al-Amariyya, Al-Hurriyyeh in Al-Doura, Al-Salhiyye in Salhiyye, and Al-Baiah. Many persons deprived of their liberty drew parallels between police practices under the occupation with those of the former regime.

36. In early June 2003, for instance, a group or persons deprived of their liberty was taken to the former police academy after they had been arrested. There, they were allegedly hooded and cuffed and made to stand against a wall while a policeman placed his pistol against their heads and pulled the trigger In a mock execution (the pistol was in fact unloaded); they were also allegedly forced to sit on chairs where they were hit on the legs, the soles of their feet and on their sides with sticks. They also allegedly had water poured on their legs and had electrical shocks administered to them with stripped tips of electric wires. The mother of one of the persons deprived of liberty was reportedly brought in and the policemen threatened to mistreat her. Another person deprived of his liberty was threatened with having his wife brought in and raped. They were made to fingerprint their alleged confessions of guilt. which resulted in their transfer to the CF to be interned pending trial.

37. The ICRC reminds the authorities of the CF that prisoners of war and other protected persons in the custody of occupying forces must be humanely treated at all times; they must not be subjected to cruel or degrading treatment; and must be protected against all acts of violence (Art. 13, 14, Third Geneva Convention: Art. 27, Fourth Geneva Convention). Torture and other forms of physical and psychological coercion against prisoners of war and other interned persons for the purpose of extracting confession of information is prohibited in all cases and under all circumstances without exception (Art. 17 and 87, Third Geneva Convention; Art. 5, 31 and 32, Fourth Geneva Convention). Confessions extracted under coercion or torture can never be used as evidence of guilt (Art. 99, Third Geneva Convention, Art. 31, Fourth Geneva Convention). Such violations of International Humanitarian Law should be thoroughly investigated in order to determine responsibilities and prosecute those found responsible (Art. 129, Third Geneva Convention and Art. 146, Fourth Geneva Convention).

4. TREATMENT IN REGULAR INTERNMENT FACILITIES

4.1. General conditions of treatment


38. The ICRC assessed the treatment of persons deprived of their liberty in regular internment facilities by CF personnel as respectful, with a few individual exceptions due to individual personalities or occasional loss of control on the part of the guards. Abusive behavior by guards, when reported to their officers, was usually quickly reprimanded and disciplined by superiors.

39. The ICRC often noted a serious communication gap between detention personnel and persons deprived of their liberty, primarily due to the language barrier, which resulted in frequent misunderstandings. This was compounded by a widespread attitude of contempt on the part of guards, in reaction to which persons deprived of their liberty, which often complained of being treated like inferiors, adopted a similar attitude.

40. The ICRC occasionally observed persons deprived of their liberty being slapped, roughed up, pushed around or pushed to the ground either because of poor communication (a failure to understand or a misunderstanding of orders given in English was construed by guards as resistance or disobedience), a disrespectful attitude on the part of guards, a reluctance by persons deprived of their liberty to comply with orders, or a loss of temper by guards.

41. Disciplinary measures, included being taken out of the compound, handcuffed and made to stand, sit, squat or lie down in the sand under the sun for up to three or four hours, depending on the breach of discipline (disrespectful behavior towards guards, communication between persons deprived of their liberty transferring from one compound to another, disobeying orders); temporary suspension of cigarette distribution, and temporary segregation in disciplinary confinement sections of the detention facilities.

42. Despite the fact that reductions in the availability of water or food rations or, more commonly, cigarettes were occasionally observed, the prohibition on collective punishment provided for under International Humanitarian Law (Art. 26.6, 87.3, Third Geneva Convention and Art. 33, Fourth Geneva Convention) appeared to be generally respected by detaining authorities.

4.2. "High Value Detainees" section, Baghdad International Airport

43. Since June 2003, over a hundred "high value detainees" have been held for nearly 23 hours a day in strict solitary confinement in small concrete cells devoid of daylight. This regime of complete isolation strictly prohibited any contact with other persons deprived of their liberty, guards, family members (except through Red Cross Messages) and the rest of the outside world. Even spouses and members of the same family were subject to this regime. Persons deprived of their liberty whose "investigation" was nearing completion were reportedly allowed to exercise together outside their cells for twenty minutes twice a day or go to the showers or toilets together. The other persons deprived of their liberty still under interrogation reportedly continued to be interned in total "segregation" (i.e., they were allowed to exercise outside their cells for twenty minutes twice a day and to go to the showers or toilets but always alone and without any contact with others). Most had been subjected to this regime for the past five months. Attempts to contact other persons deprived of their liberty or simply to exchange glances or greetings were reportedly sanctioned by reprimand or temporary deprivation of time outside their cells. Since August 2003, the detainees have been provided with the Koran. They have been allowed to receive books of a non-political nature, but no newspapers or magazines on current affairs; The internment regime appeared to be motivated by a combination of security concerns (isolation of the persons deprived of their liberty from the outside world) and the collection of intelligence. All had been undergoing interrogation since their internment, in spite of the fact that none had been charged with criminal offence.

On 30 October 2003, the ICRC wrote to the Detaining Authorities recommending that this policy be discontinued and replaced by a regime of internment consistent with the CF's obligations under the Geneva Conventions.

44. The internment of persons in solitary confinement for months at a time in cells devoid of daylight for nearly 23 hours a day is more severe than the forms of internment provided for in the Third and Fourth Geneva Conventions (investigation of criminal offences or disciplinary punishment). It cannot be used as a regular, ordinary mode of holding of prisoners of war or civilian internees. The ICRC reminds the authorities of the Coalition Forces in Iraq that internment of this kind contravenes Articles 21, 25, 89, 90, 95, 103 of the Third Geneva Convention and Articles 27, 41, 42, 78, 82, 118, 125 of the Fourth Geneva Convention. The ICRC recommends to the authorities of the CF that they set up an internment regime which ensures respect for the psychological integrity and human dignity of the person deprived of their liberty and that they make sure that all persons deprived of their liberty are allowed sufficient time every day outside in the sunlight and the opportunity to move about and exercise in the outside yard.

5. EXCESSIVE AND DISPROPORTIONATE USE OF FORCE AGAINST PERSONS DEPRIVED OF THEIR LIBERTY BY THE DETAINING AUTHORITIES
45. Since March 2003, the ICRC recorded, and in some cases, witnessed, a number of incidents in which guards shot at persons deprived of their liberty with live ammunition, in the context of either unrest relating to internment conditions or of escape attempts by individuals:

Camp Cropper, 24 May 2003: In the context of a hunger strike, unrest broke out in the camp prior to ICRC visit. One person deprived of his liberty suffered a gunshot wound.

Camp Cropper, 9 June 2003: Six persons deprived of their liberty were injured by live ammunition after a guard opened fire on the group in an attempt to quell a demonstration.

Camp Cropper, 12 June 2003: Two, or possibly three, persons deprived of their liberty were shot at when they attempted to escape through the barbed wire fence. One of them, Akheel Abd Al-Hussein from Baghdad, was wounded and later died after being taken to the hospital. The other person deprived of his liberty was recaptured and received treatment for gunshot wounds.

Abu Ghraib, 13 June 2003; when unrest flared up, guards from three watchtowers opened fire at the demonstrators, injuring seven persons deprived of their liberty and killing another, Alaa Jasim Hassan. The authorities investigated the matter and concluded that the "shooting was justified as the three tower [guards] determined that the lives of the interior guards were threatened".

Abu Ghraib, late June 2003: During unrest, one person deprived of his liberty was injured by live ammunition when a guard opened fire.

Abu Ghraib, 24 November 2003: During a riot four detainees were killed by US MP guards. The killing took place after unrest erupted in one of the compounds (no. 4). The detainees claimed to be unhappy with the situation of detention. Specifically, lack of food, clothing, but more importantly the lack of judicial guarantees and, especially important during the time of Eid al-Fitr, lack of family visits or lack or contacts all together. The detainees alleged to have gathered near the gate whereupon the guards panicked and started shooting. Initially, non-lethal ammunition was used which was subsequently replaced by live ammunition.

The report handed over by the CF to the ICRC states that detainees were trying to force open the gate. It further states that several verbal warnings were given and non-lethal ammunition fired at the crowd, After 25 minutes deadly force was applied resulting in the death of four detainees.

[Four names redacted.]

The narrative report furnished by the CF does not address the reason for the riot in any way and does not give any recommendations as to how a similar incident could be avoided. It does not question the use of lethal force during such and incident.

Camp Bucca, 16-22 April 2003: ICRC delegates witnessed a shooting incident, which caused the death of one person deprived of his liberty and injury of another. A first shot was fired on the ground by a soldier located outside the compound in a bid to rescue one of the guards, allegedly being threatened by a prisoner of war armed with a stick; the second shot injured a prisoner of war in the left forearm, and third shot killed another prisoner of war.

Camp Bucca, 22 September 2003: Following unrest in a section of the camp, one person deprived of his liberty, allegedly throwing stones, was fired upon by a guard in a watchtower. He suffered a gunshot wound to the upper part of the chest, the bullet passed through the chest and exited from the back. The investigation undertaken by the CF concluded that "the compound guards correctly utilized the rules of engagement and that numerous non-lethal rounds were dispersed to no avail". The person deprived of his liberty "was the victim of a justifiable shooting". An ICRC delegate and an interpreter witnessed most of the events. At no point did the persons deprived of their liberty, and the victim shot at, appear to pose a serious threat to the life or security of the guards who could have responded to the situation with less brutal measures. The shooting showed a clear disregard for human life and security of the persons deprived of their liberty.

46. These incidents were investigated summarily by the CF. They concluded in all cases that a legitimate use of firearms had been made against persons deprived of their liberty, who, except perhaps in Abu Ghraib on 13 June 2003, were unarmed and did not appear to pose any serious threat to anyone's life justifying the use of firearms. In all cases, less extreme measures could have been used to quell the demonstrations or neutralize persons deprived of their liberty trying to escape.

47. In connection with the 22 September 2003 incident, the ICRC wrote on 23 October to the Commander of the 800th MP Brigade and recommended the adoption of crowd control measures consistent with the rules and principles of the Third and Fourth Geneva Conventions and other applicable international norms relating to the use of force or fire arms by law-enforcement personnel.

48. Since May 2003, the ICRC repeatedly recommended to the CF to use non-lethal methods to deal with demonstrations, riots or escape attempts. In Camp Cropper. its recommendations were heeded. After initial deplorable incidents no further shooting of persons deprived of their liberty has occurred since November 2003. In mid-July, the ICRC witnessed a demonstration in that camp: in spite of some violence by the persons deprived of their liberty, the problem was efficiently dealt with by the camp commander without any excessive use of force. He called in anti-riot military policemen, refrained from any act that might have provoked further anger from the persons deprived of their liberty, waited patiently for the emotions to calm down and then sought to establish dialogue with the persons deprived of their liberty through their section representatives. The unrest was quieted down without any violence.

49. The ICRC reminds the authorities of the CF that the use of firearms against persons deprived of their liberty, especially against those who are escaping or attempting to escape is an extreme measure which should not be disproportionate to the legitimate objective to be achieved (to apprehend the individuals) and shall always be preceded by warning appropriate to the circumstances (Art. 42 Third Geneva Convention). The CF detaining personnel should be provided with adequate training to deal with incidents in their internment facilities. Firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and only when less extreme measures are not sufficient to restrain or apprehend him (Article 3 of the Code of Conduct for Law Enforcement Officials and Article 9 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials).

In every instance in which a firearm is discharged. a report should be made promptly to the competent authorities. All deaths or serious injuries of a person deprived of his liberty caused or suspected to have been caused by a sentry should be immediately followed by a proper inquiry by the Detaining Power which should ensure the prosecution of any person(s) found responsible (Art. 121, Third Geneva Convention; Art. 131, Fourth Geneva Convention).

6. SEIZURE AND CONFISCATION OF PRIVATE BELONGINGS OF PERSONS DEPRIVED OF THEIR LIBERTY

50. The ICRC collected numerous allegations of seizure and confiscation of private property (money, cars and other valuables) by the CF in the context of arrests. In only a few cases were receipts issued to the arrested person or his family, detailing the items confiscated. This was perceived by persons deprived of their liberty as outright theft or pillage. The following examples will serve to illustrate the allegations:

• [Name redacted] alleged that the CF took US $22,000 in cash and his personal luggage during his arrest;
• [Name redacted] claimed that large amounts of money and personal effects were confiscated by the CF when he was arrested at his home on 27-28 May 2003. The items confiscated allegedly included 71,450,000 Iraqi dinars, 14,000 US dollars, two wedding rings, a video camera, a watch, real-estate property documents, his wife's residential documents, his father's will, his private diaries, as well as most of the family private documents and personal identity and other papers;
• [Name redacted] claimed that his car was confiscated when he was arrested by the CF in Basrah on 16 July 2003;
• [Name redacted] claimed that CF confiscated two million Iraqi dinars when arrested at his home on 21 August 2003;
• [Name redacted] claimed that his money and two cars were confiscated when he was arrested by the CF on 11 August 2003.

51. In Camp Cropper, Camp Bucca and Abu Ghraib, a system was gradually put in place whereby personal belongings in the possession of persons deprived of their liberty at the time of their arrival in these facilities which they could not keep with them (money, other valuables, spare clothing, identity papers) were registered and kept until their release. In these cases, a receipt was usually issued to the person deprived of his liberty and his belongings were returned when he was released. However, this system took no account of the property seized during arrest.

52. In response to property loss or damage caused to property by the CF during raids and also to complaints regarding pension or salaries, the CF established a compensation system open to everyone, including internees and the general public. Complaints could be filed at General Information Centers (GIC), set up under the responsibility of the Humanitarian Assistance Coordination Centers (HACC).

Supporting evidence, which is problematic given that arresting authorities rarely issue receipts, should back claims. The ICRC is not yet able to assess the efficiency of this compensation system although it has had the possibility to visit one of the GICs. There are nine GICs in the city of Baghdad and one In the city of Mosul. There are however none in the other parts of the country therefore depriving a large number of persons of the possibility to file complaints.

53. In accordance with international legal provisions, the ICRC reminds the authorities of the CF that pillage is prohibited by International Humanitarian Law (Art. 33, Fourth Geneva Convention), that private property may not be confiscated (Art. 46.2. 1907 Hague Convention No IV), and that an army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State. (Art. 53. 1907 Hague Convention No IV).

In addition, persons deprived of their liberty shall be permitted to retain articles of personal use. Valuables may not be taken from them except in accordance with an established procedure and receipts must be issued; (Art. 18, 68.2, Third Geneva Convention and Art. 97, Fourth Geneva Convention).

7. EXPOSURE OF INTERNEES/DETAINEES TO DANGEROUS TASKS

54. On 3 September 2003 in Camp Bucca, three persons deprived of their liberty were severely injured by the explosion of what apparently was a cluster bomb:

[Name redacted] (bilateral below-knee amputation)

[Name redacted] (bilateral above-knee amputation)

[Name redacted] (left above-knee amputation)

They were part of a group of 10 persons deprived of their liberty involved in voluntary work to clear rubbish along the barbed-wire fence of the camp. They were transferred to the British Field Military Hospital where they received appropriate medical treatment. Their injuries required limb amputations.

55. On 23 October 2003, the ICRC wrote to the officer commanding the 800th MP Brigade to request an investigation into the incident. The ICRC encouraged the CF not to engage persons deprived of their liberty in dangerous labour.

56. The ICRC recommends to the authorities of the CF that all three victims be properly compensated as provided for by both Third and Fourth Geneva Conventions (Art. 68, Third Geneva Convention and Art. 95, Fourth Geneva Convention).

8. PROTECTION OF PERSONS DEPRIVED OF THEIR LIBERTY AGAINST SHELLING

57. Since its reopening by the CF, Abu Ghraib prison has been the target of frequent night shelling by mortars and other weapons. which resulted, on several occasions, in persons deprived of their liberty being killed or injured. During the month of July, the Commander of the facility reported at least 25 such attacks. On 16 August, three mortar rounds landed in the prison compound, killing at least five and injuring 67 persons deprived of their liberty. Subsequent attacks caused further deaths and injuries. An ICRC team visited Abu Ghraib on 17 August and noticed the lack of protective measures: while the CF personnel were living in concrete buildings, all persons deprived of their liberty were sheltered under tents in compounds which had no bunkers or any other protection, rendering them totally vulnerable to shelling.

Persons deprived of their liberty alleged that they had not been advised on what to do to protect themselves in the event of shelling. They were dismayed and felt that the authorities "did not care". After these attacks, security was improved around the prison compound to reduce the risk of further attacks. However, steps taken to ensure the protection of persons deprived of their liberty remained insufficient. The inmates were allowed to fill and place sandbags around the perimeter of each tent. By late October, sandbags had not been placed around all tents and those sandbags that were in place did not offer adequate protection from shelling or projectile explosions.

58. In accordance with International Humanitarian Law provisions. the ICRC reminds the authorities of the CF that the detaining power must not set up places of internment in areas particularly exposed to the dangers of war (Art. 23.1. Third Geneva Convention and Art, 83, Fourth Geneva Convention). In all places of internment exposed to air raids and other hazards of war, shelters adequate in number and structure to ensure the necessary protection must be made available. In the event of an alarm, the internees must be free to enter such shelters as quickly as possible (Art. 23.2 Third Geneva Convention and Art. 88, Fourth Geneva Convention). When a place of internment is found to be unsafe, persons deprived of their liberty should be transferred to other places of interment offering adequate security and living conditions in accordance with the Third and Fourth Geneva Conventions.

CONCLUSION

59. This ICRC report documents serious violations of International Humanitarian Law relating to the conditions of treatment of the persons deprived of their liberty held by the CF in Iraq. In particular, it establishes that persons deprived of their liberty face the risk of being subjected to a process of physical and psychological coercion, in some cases tantamount to torture, in the early stages of the internment process.

60. Once the interrogation process is over, the conditions of treatment for the persons deprived of their liberty generally improve, except in the "High Value Detainee" section at Baghdad International Airport where persons deprived of their liberty have been held for nearly 23 hours a day in strict solitary confinement in small concrete cells devoid of daylight, an internment regime which does not comply with provisions of the Third and Fourth Geneva Conventions.

61. During internment, persons deprived of their liberty also risk being victims of disproportionate and excessive use of force on the part of detaining authorities attempting to restore order in the event of unrest or to prevent escapes.

62. Another serious violation of International Humanitarian Law described in the report is the CF's inability or lack of will to set up a system of notifications of arrests for the families of persons deprived of liberty in Iraq. This violation of provisions of International Humanitarian Law causes immense distress among persons deprived of their liberty and their families, the latter fearing that their relatives unaccounted for are dead. The uncaring behaviour of the CF and their inability to quickly provide accurate information on persons. deprived of their liberty for the families concerned also seriously affects the image of the Occupying Powers amongst the Iraqi population.

63. In addition to recommendations highlighted in the report relating to conditions of internment, information given to persons deprived of their liberty upon arrest, and the need to investigate violations of International Humanitarian Law and to prosecute those found responsible, the ICRC wishes particularly to remind the CF of their duty:

• to respect at all times the human dignity, physical integrity and cultural sensitivity of persons deprived of their liberty held under their control;
• to set up a system of notifications of arrests to ensure that the families of persons deprived of their liberty are quickly and accurately informed;
• to prevent all forms of ill-treatment and moral or physical coercion of persons deprived of their liberty in connection with interrogations;
• to instruct the arresting and detaining authorities that causing serious bodily injury or serious harm to the health of protected persons is prohibited under the Third and Fourth Geneva Conventions
• to set up an internment regime that ensures respect for the psychological integrity and human dignity of the persons deprived of their liberty
• to ensure that battle group units arresting individuals and staff in charge of internment facilities receive adequate training enabling them to operate in a proper manner and fulfill their responsibilities without resorting to ill-treatment or using excessive force.

The practices described in this report are prohibited under International Humanitarian Law. They warrant serious attention by the CF. In particular, the CF should review their policies and practices, take corrective action and improve the treatment of prisoners of war and other protected persons under their authority. This report is part of the bilateral and confidential dialogue undertaken by the ICRC with the CF. In the future, the ICRC will continue its bilateral and confidential dialogue with the CF in accordance with provisions of International Humanitarian Law, on the basis of monitoring the conditions of arrest, interrogation and internment of persons deprived of their liberty held by the CF.

- End of report -
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PART 1 OF 3

ICRC REPORT ON THE TREATMENT OF FOURTEEN "HIGH VALUE DETAINEES" IN CIA CUSTODY

February 2007

Table of Contents

• Introduction
• 1. Main Elements of the CIA Detention Program
o 1.1. Arrest and Transfer
o 1.2. Continuous Solitary Confinement and Incommunicado Detention
o 1.3. Other Methods of Ill-treatment
 1.3.1. Suffocation by water
 1.3.2. Prolonged stress standing
 1.3.3. Beatings by use of a collar
 1.3.4. Beating and kicking
 1.3.5. Confinement in a box
 1.3.6. Prolonged nudity
 1.3.7. Sleep deprivation and use of loud music
 1.3.8. Exposure to cold temperature/cold water
 1.3.9. Prolonged use of handcuffs and shackles
 1.3.10. Threats
 1.3.11. Forced shaving
 1.3.12. Deprivation/restricted provision of solid food
o 1.4. Further Elements of the Detention Regime
• 2. Conditions of Detention In Later Stages
• 3. Health Provision and Role of Medical Staff
• 4. Legal Aspects Related to Undisclosed Detention
• 5. Fate of Other Persons who Passed Through the CIA Detention Program
• 6. Future use of the CIA Detention Program
• Conclusion
• Annex 1.
• Annex 2.

INTERNATIONAL COMMITTEE OF THE RED CROSS
REGIONAL DELEGATION FOR UNITED STATES AND CANADA
1100 Connecticut Ave. N.W., Suite 500
Washington, DC 20036
Tel: (202) 587-4600 • Fax: (202) 587-4696

Washington, 14 February 2007
WAS 07/76

John Rizzo
Acting General Counsel
Central Intelligence Agency
Langley, Virginia

Dear Sir,

Please find enclosed a report on the findings and recommendations of the International Committee of the Red Cross following its visits to fourteen “high value detainees” transferred to Guantanamo in September 2006. The report covers the period during which these persons were held in the detention program run by the Central Intelligence Agency.

We hope that you will find the report useful and thank you in advance for the action you will take on the matters raised.

Yours sincerely,
Geoff Loane
Head of Regional Delegation

Strictly Confidential

ICRC REPORT ON THE TREATMENT OF FOURTEEN “HIGH VALUE DETAINEES” IN CIA CUSTODY

February 2007

This report is strictly confidential and intended only for the Authorities to whom it is presented. It may not
be published, in full or in part, without the consent of the International Committee of the Red Cross.

[Editors’ Note: These lines appear at the bottom of every page of the original version of the report]

INTRODUCTION

The International Committee of the Red Cross (ICRC) has consistently expressed its grave concern over the humanitarian consequences and legal implications of the practice by the United States (US) authorities of holding persons in undisclosed detention in the context of the fight against terrorism [1]. In particular, the ICRC has underscored the risk of ill-treatment, the lack of contact with the outside world as a result of being held incommunicado, the lack of a legal framework, and the direct effects of such treatment and conditions on the persons held in undisclosed detention and on their families.

The ICRC made its first written interventions to the US authorities in 2002, requesting information on the whereabouts of persons allegedly held under US authority in the context of the fight against terrorism. Since then, it has made regular written and oral interventions to the US authorities on the issue of undisclosed detention (see Annex 2). In particular, the ICRC transmitted two reports on undisclosed detention on 18 November 2004 and 18 April 2006 respectively which consolidated the information previously transmitted [2] and included more recent allegations of undisclosed locations, hidden detainees and third country detention. Both reports annexed a non-exhaustive nominal list of persons allegedly held in undisclosed detention by the US authorities [3]. Despite repeated requests at various levels of the US Government (USG), the ICRC has not received a response to most of these written interventions. The main written response by the US authorities is the Note Verbale of 8 June 2005 which responds to three earlier written interventions [4]. The US authorities have never responded to the two ICRC consolidated reports.

On 6 September 2006, President Bush publicly announced that fourteen “high value” detainees had been transferred from the High Value Detainee Program run by the Central Intelligence Agency (hereafter CIA detention program) to the custody of the Department of Defense in Guantanamo Bay Internment Facility (hereafter Guantanamo). The fourteen detainees (hereafter the fourteen) were reportedly held in the CIA detention program from the time of their arrest, or shortly thereafter, until their arrival in Guantanamo [5]. Throughout their time in CIA custody—which ranges from 16 months to almost four and a half years—these persons were held in undisclosed detention.

Prior to this public announcement, the ICRC had never been informed by the US authorities of the existence of the CIA detention program, nor of the presence in US custody of the fourteen. This is despite the fact that thirteen of the fourteen had been included in the above-mentioned ICRC written requests to the US authorities concerning undisclosed detention, the first of which were made in January 2003 [6]. The remaining detainee was not known to the ICRC.

The ICRC was granted access to the fourteen in Guantanamo, and met with each of them in private for the first time from 6 to 11 October 2006.

The ICRC regards the confirmation of the present whereabouts of the fourteen by the US authorities, and the subsequent access granted to the ICRC, as positive steps. However, it deplores the fact that these persons were held in undisclosed detention during a prolonged period by the US authorities and the conditions of detention and treatment to which they were subjected during that time. It is also gravely concerned by the lack of information provided to the ICRC regarding their fate despite regular and repeated requests.

The ICRC recognizes the right of the US authorities to take measures to address legitimate security concerns, including the detention and interrogation of individuals suspected of posing a threat to national security. However, the ICRC believes that the US can achieve these objectives while respecting its obligations and historical commitment to respect international law.

The aim of the present report is to provide a description of the treatment and material conditions of detention of the fourteen during the period they were held in the CIA detention program, as reported to the ICRC during its private interviews with these persons. Section One reports in detail the main elements of the CIA detention program, including arrest and transfers, incommunicado detention and other conditions and treatment, in particular during the initial stages of interrogation; Section Two outlines the conditions of detention and treatment in the later stages; Section Three considers the provision of health care and the role of medical staff during the entire period of undisclosed detention; Section Four details the legal aspects related to undisclosed detention; Section Five discusses the issue of the persons other than the fourteen who passed through the CIA detention program; and, finally, Section Six addresses the issue of future use of the CIA detention program.

A separate ICRC report has been transmitted to the Department of Defense regarding the material conditions and treatment of the fourteen since their arrival in Guantanamo [7].

1. MAIN ELEMENTS OF THE CIA DETENTION PROGRAM

Following the transfer of the fourteen from CIA custody to the custody of the Department of Defense in Guantanamo in September 2006, the ICRC met with each of these persons in private from 6 to 11 October, and from 4 to 14 December, 2006. The information provided in this report is based on the information gathered during those interviews, to the extent that each detainee agreed for it to be transmitted to the authorities.

The fourteen, who are identified individually below, described being subjected, in particular during the early stages of their detention, lasting from some days up to several months, to a harsh regime employing a combination of physical and psychological ill-treatment with the aim of obtaining compliance and extracting information. This regime began soon after arrest, and included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements.

It is essential to a proper understanding of this report that all of the elements of treatment and material conditions of detention individually outlined below be considered as forming a whole, as each constitutes an integral part of the situation of the detainees in the CIA detention program. In addition to the information contained in the following section, it is also necessary to consider the prolonged duration of the detention, the conditions of detention and treatment in the later stages of detention. and the role of health personnel and, in particular, the lack of legal framework governing the undisclosed detention of the fourteen. When understood in their totality, the undisclosed detention regime to which these persons were subjected becomes all the more disturbing.

The ICRC wishes to underscore that the consistency of the detailed allegations provided separately by each of the fourteen adds particular weight to the information provided below.

The general term “ill-treatment” has been used throughout the following section, however, it should in no way be understood as minimising the severity of the conditions and treatment to which the detainees were subjected. Indeed, as outlined in Section 4 below, and as concluded by this report, the ICRC clearly considers that the allegations of the fourteen include descriptions of treatment and interrogation techniques—singly or in combination— that amounted to torture and/or cruel, inhuman or degrading treatment.

1.1. ARREST AND TRANSFER

The following fourteen persons are referred to in this report, in chronological order according to date of arrest:

Image

The fourteen were arrested in four different countries. In each case, they were reportedly arrested by the national police or security forces of the country in which they were arrested. In some cases US agents were present at the time of arrest. All fourteen were detained in the country of arrest for periods ranging from a few days up to one month before their first transfer to a third country (reportedly Afghanistan, see below) and from there on to other countries. Interrogation in the country of arrest was conducted by US agents in nearly all cases. In two cases, however, detainees reported having been interrogated by the national authorities, either alone or jointly with US agents: Mr Abdelrahim Hussein Abdul Nashiri was allegedly interrogated for the first month after arrest by Dubai agents, and one detainee who did not wish his name to be transmitted to the authorities was allegedly interrogated by both Pakistani and US agents. During their subsequent detention, outlined below, detainees sometimes reported the presence of non-US personnel (believed to be personnel of the country in which they were held), even though the overall control of the facility appeared to remain under the control of the US authorities.

Throughout their detention, the fourteen were moved from one place to another and were allegedly kept in several different places of detention, probably in several different countries. The number of locations reported by the detainees varied, however ranged from three to ten locations prior to their arrival in Guantanamo in September 2006.

The transfer procedure was fairly standardised in most cases. The detainee would be photographed, both clothed and naked prior to and again after transfer. A body cavity check (rectal examination) would be carried out and some detainees alleged that a suppository (the type and the effect of such suppositories was unknown by the detainees), was also administered at that moment.

The detainee would be made to wear a diaper and dressed in a tracksuit. Earphones would be placed over his ears, through which music would sometimes be played. He would be blindfolded with at least a cloth tied around the head and black goggles. In addition, some detainees alleged that cotton wool was also taped over their eyes prior to the blindfold and goggles being applied. Mr Abu Zubaydah alleged that during one transfer operation the blindfold was tied very tightly resulting in wounds to his nose and ears. He does not know how long the transfer took but, prior to the transfer, he reported being told by his detaining authorities that he would be going on a journey that would last twenty-four to thirty hours.

The detainee would be shackled by hands and feet and transported to the airport by road and loaded onto a plane. He would usually be transported in a reclined sitting position with his hands shackled in front. The journey times obviously varied considerably and ranged from one hour to over twenty-four to thirty hours. The detainee was not allowed to go to the toilet and if necessary was obliged to urinate or defecate into the diaper.

On some occasions the detainees were transported lying flat on the floor of the plane and/or with their hands cuffed behind their backs. When transported in this position the detainees complained of severe pain and discomfort.

In addition to causing severe physical pain, these transfers to unknown locations and unpredictable conditions of detention and treatment placed mental strain on the fourteen, increasing their sense of disorientation and isolation. The ability of the detaining authority to transfer persons over apparently significant distances to secret locations in foreign countries acutely increased the detainees’ feeling of futility and helplessness, making them more vulnerable to the methods of ill-treatment described below.

The ICRC was informed by the US authorities that the practice of transfers was linked specifically to issues that included national security and logistics, as opposed to being an integral part of the program, for example to maintain compliance. However, in practice, these transfers increased the vulnerability of the fourteen to their interrogation, and was performed in a manner (goggles, earmuffs, use of diapers, strapped to stretchers, sometimes rough handling) that was intrusive and humiliating and that challenged the dignity of the persons concerned.

As their detention was specifically designed to cut off contact with the outside world and emphasise a feeling of disorientation and isolation, some of the time periods referred to in the report are approximate estimates made by the detainees concerned. For the same reasons, the detainees were usually unaware of their exact location beyond the first place of detention in the country of arrest and the second country of detention, which was identified by all fourteen as being Afghanistan. This report will not enter into conjecture by referring to possible countries or locations of places of detention beyond the first and second countries of detention, which are named, and will refer, where necessary, to subsequent places of detention by their position in the sequence for the detainee concerned (eg. third place of detention, fourth place of detention). The ICRC is confident that the concerned authorities will be able to identify from their records which place of detention is being referred to and the relevant period of detention.

Moreover, the ICRC notes that four detainees believed that they had previously been held in Guantanamo, for periods ranging from one week to one year during 2003/4. They reported recognising this location upon return there in September 2006, as each had been allowed outdoors on a daily basis during their earlier time there. The ICRC has been assured by DoD that it was given full notification of and access to all persons held in Guantanamo during its regular detention visits. The ICRC is concerned, if the allegations are confirmed, it had in fact been denied access to these persons during the period in which they were detained there.

1.2. CONTINUOUS SOLITARY CONFINEMENT AND INCOMMUNICADO DETENTION

Throughout the entire period during which they were held in the CIA detention program— which ranged from sixteen months up to almost four and a half years and which, for eleven of the fourteen was over three years—the detainees were kept in continuous solitary confinement [8] and incommunicado detention. They had no knowledge of where they were being held, no contact with persons other than their interrogators or guards. Even their guards were usually masked and, other than the absolute minimum, did not communicate in any way with the detainees. None had any real—let alone regular—contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee. None had any contact with legal representation. The fourteen had no access to news from the outside world, apart from in the later stages of their detention when some of them occasionally received printouts of sports news from the internet and one reported receiving newspapers.

None of the fourteen had any contact with their families, either in written form or through family visits or telephone calls. They were therefore unable to inform their families of their fate. As such, the fourteen had become missing persons. In any context, such a situation, given its prolonged duration, is clearly a cause of extreme distress for both the detainees and families concerned and itself constitutes a form of ill-treatment.

In addition, the detainees were denied access to an independent third party. In order to ensure accountability, there is a need for a procedure of notification to families, and of notification and access to detained persons, under defined modalities, for a third party, such as the ICRC. That this was not practiced, to the knowledge of the ICRC, neither for the fourteen nor for any other detainee who passed through the CIA detention program, is a matter of serious concern.

1.3. OTHER METHODS OF ILL-TREATMENT

As noted above, the fourteen were subjected to an extremely harsh detention regime, characterised by ill-treatment. The initial period of interrogation, lasting from a few days up to several months was the harshest, where compliance was secured by the infliction of various forms of physical and psychological ill-treatment. This appeared to be followed by a reward based interrogation approach with gradually improving conditions of detention, albeit reinforced by the threat of returning to former methods.

The methods of ill-treatment alleged to have been used include the following:

• Suffocation by water poured over a cloth placed over the nose and mouth, alleged by three of the fourteen.
• Prolonged stress standing position, naked, held with the arms extended and chained above the head, as alleged by ten of the fourteen, for periods from two or three days continuously, and for up to two or three months intermittently, during which period toilet access was sometimes denied resulting in allegations from four detainees that they had to defecate and urinate over themselves.
• Beatings by use of a collar held around the detainees neck and used to forcefully bang the head and body against the wall, alleged by six of the fourteen.
• Beating and kicking, including slapping, punching, kicking to the body and face, alleged by nine of the fourteen.
• Confinement in a box to severely restrict movement alleged in the case of one detainee.
• Prolonged nudity alleged by eleven of the fourteen during detention, interrogation and ill-treatment; this enforced nudity lasted for periods ranging from several weeks to several months.
• Sleep deprivation was alleged by eleven of the fourteen through days of interrogation, through use of forced stress positions (standing or sitting), cold water and use of repetitive loud noise or music. One detainee was kept sitting on a chair for prolonged periods of time.
• Exposure to cold temperature was alleged by most of the fourteen, especially via cold cells and interrogation rooms, and for seven of them, by the use of cold water poured over the body or, as alleged by three of the detainees, held around the body by means of a plastic sheet to create an immersion bath with just the head out of the water.
• Prolonged shackling of hands and/or feet was alleged by many of the fourteen.
• Threats of ill-treatment to the detainee and/or his family, alleged by nine of the fourteen.
• Forced shaving of the head and beard, alleged by two of the fourteen.
• Deprivation/restricted provision of solid food from 3 days to 1 month after arrest, alleged by eight of the fourteen.

In addition, the fourteen were subjected for longer periods to a deprivation of access to open air, exercise, appropriate hygiene facilities and basic items in relation to interrogation, and restricted access to the Koran linked with interrogation (see Section 1.4 Other Aspects of the Detention Regime).

The following section provides various examples of each of the methods of ill-treatment alleged to have been used on the fourteen during their time in CIA detention. The examples provided are only samples to illustrate each particular method and are not in any way meant to be a representation of all of the allegations recorded.

For the purposes of clarity in this report, each method of ill-treatment mentioned below has been detailed separately. However, each specific method was in fact applied in combination with other methods, either simultaneously, or in succession. Not all of these methods were used on all detainees [9], except in one case, namely that of Mr Abu Zubaydah, against whom all of the methods outlined below were allegedly used.

In order to provide as complete and accurate a picture as possible, some excerpts from the interviews conducted with some of the fourteen, as recorded by the ICRC, are attached in Annex 1.

The information contained in the following section was reported to the ICRC by twelve of the fourteen. Two detainees did not report allegations of the other methods of ill-treatment outlined in Section 1.3. These two detainees were, nevertheless, subjected to ill-treatment in the form of continuous solitary confinement and incommunicado detention.

1.3.1. SUFFOCATION BY WATER

Three of the fourteen alleged that they were repeatedly subjected to suffocation by water. They were: Mr Abu Zubaydah, Mr Khaled Shaik Mohammed and Mr Al Nashiri.

In each case, the person to be suffocated was strapped to a tilting bed and a cloth was placed over the face, covering the nose and mouth. Water was then poured continuously onto the cloth, saturating it and blocking off any air so that the person could not breathe. This form of suffocation induced a feeling of panic and the acute impression that the person was about to die. In at least one case, this was accompanied by incontinence of the urine. At a point chosen by the interrogator the cloth was removed and the bed was rotated into a head-up and vertical position so that the person was left hanging by the straps used to secure him to the bed. The procedure was repeated at least twice, if not more often, during a single interrogation session. Moreover, this repetitive suffocation was inflicted on the detainees during subsequent sessions. The above procedure is the so-called ‘water boarding’ technique.

In all three cases this caused considerable pain, particularly for Mr Abu Zubaydah who had undergone surgery just three months earlier. He stated that he vomited on several occasions during this procedure.

Mr Abu Zubaydah described the suffocation method of ill-treatment, used in his third place of detention, as follows: “I was put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds caused severe pain. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled without success to breathe. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.” The suffocation procedure was applied during five sessions of ill-treatment that took place during an approximately one-week intense period of interrogation allegedly in Afghanistan in 2002. During each session, apart from one, the suffocation technique was applied once or twice; on one occasion, it was applied three times.

Mr Khaled Shaik Mohammed gave the following description of this method of ill-treatment, used in his third place of detention: “I would be strapped to a special bed, which can be rotated into a vertical position. A cloth would be placed over my face. Water was then poured onto the cloth by one of the guards so that I could not breathe. This obviously could only be done for one or two minutes at a time. The cloth was then removed and the bed was put into a vertical position. The whole process was then repeated during about 1 hour”. The procedure was applied during five different sessions during the first month of interrogation in his third place of detention. He also said that injuries to his ankles and wrists occurred during the suffocation as he struggled in the panic of not being able to breathe. As during other forms of ill-treatment he was always kept naked during the suffocation. Female interrogators were also present during this form of ill-treatment, again increasing the humiliation aspect. Mr Khaled Shaik Mohammed described a device attached to one of his fingers, the reading of which was checked regularly by a person he assumed to be a doctor. From the description, this appears to have been a pulse oxymeter, a medical device for measuring the saturation of oxygen in the blood (also see Sect. 3 Health Provision and the Role of Medical Staff).

1.3.2. PROLONGED STRESS STANDING

Ten of the fourteen alleged that they were subjected to prolonged stress standing positions, during which their wrists were shackled to a bar or hook in the ceiling above the head for periods ranging from two or three days continuously, and for up to two or three months intermittently. All those detainees who reported being held in this position were allegedly kept naked throughout the use of this form of ill-treatment.

For example, Mr Khaled Shaik Mohammed alleged that, apart from the time when he was taken for interrogation, he was shackled in the prolonged stress standing position for one month in his third place of detention (he estimates he was interrogated for approximately eight hours each day at the start of the month gradually declining to four hours each day at the end of the month).

Mr Ramzi Binalshib alleged that he was shackled in this position for two to three days in Afghanistan his second place of detention and for seven days in his fourth; Mr Al Nashiri for at least two days in Afghanistan and again for several days in his third place of detention; Mr Majid Khan for three days in Afghanistan and seven days in his third place of detention, Mr Bin Attash for two weeks with two or three short breaks where he could lie down in Afghanistan and for several days in his fourth place of detention; Mr Bin Lep for seven days in Afghanistan and Mr Hambali for four to five days, blindfolded with a type of sack over his head, while still detained in Thailand.

Mr Bin Attash commented that during the two weeks he was shackled in the prolonged stress standing position with his hands chained above his head, his artificial leg was sometimes removed by the interrogators to increase the stress and fatigue of the position.

One detainee who did not wish his name to be transmitted to the authorities alleged that he was shackled in this position for two to three months, seven days of prolonged stress standing followed by two days able to sit or lie down.

While being held in this position some of the detainees were allowed to defecate in a bucket. A guard would come to release their hands from the bar or hook in the ceiling so that they could sit on the bucket. None of them, however, were allowed to clean themselves afterwards. Others were made to wear a garment that resembled a diaper. This was the case for Mr Bin Attash in his fourth place of detention. However, he commented that on several occasions the diaper was not replaced so he had to urinate and defecate on himself while shackled in the prolonged stress standing position. Indeed, in addition to Mr Bin Attash, three other detainees specified that they had to defecate and urinate on themselves and remain standing in their own bodily fluids. Of these, only Mr Bin Lep agreed that his name be transmitted to the authorities.

Many of the detainees who alleged that they had undergone this form of ill-treatment commented that their legs and ankles swelled as a result of the continual forced standing with their hands shackled above their head. They also noted that while being held in this position they were checked frequently by US health personnel.

Although this position prevented most detainees from sleeping, three of the detainees stated that they did fall asleep once or more while shackled in this position. These include Mr Khaled Shaik Mohammed and Mr Bin Attash; the third did not wish his name to be transmitted to the authorities. When they did fall asleep held in this position, the whole weight of their bodies was effectively suspended from the shackled wrists, transmitting the strain through the arms to the shoulders.

1.3.3. BEATING BY USE OF A COLLAR

Six of the fourteen alleged that an improvised thick collar or neck roll was placed around their necks and used by their interrogators to slam them against the walls. For example, Mr Abu Zubaydah commented that when the collar was first used on him in his third place of detention, he was slammed directly against a hard concrete wall. He was then placed in a tall box for several hours (see Section 1.3.5., Confinement in boxes). After he was taken out of the box he noticed that a sheet of plywood had been placed against the wall. The collar was then used to slam him against the plywood sheet. He thought that the plywood was in order to absorb some of the impact so as to avoid the risk of physical injury. Mr Abu Zubaydah also believed that his interrogation was a form of experimentation with various interrogation techniques. Indeed some forms of ill-treatment were allegedly used against him that were not reported to have been used on other detainees. He claimed that he was told by one of the interrogators that he was one of the first to receive these interrogation techniques.

Mr Bin Attash alleged that during interrogation in Afghanistan: “on a daily basis during the first two weeks a collar was looped around my neck and then used to slam me against the walls of the interrogation room. It was also placed around my neck when being taken out of my cell for interrogation and was used to lead me along the corridor. It was also used to slam me against the walls of the corridor during such movements”.

Mr Khaled Shaik Mohammed alleged that, in his third place of detention: “a thick plastic collar would be placed around my neck so that it could then be held at the two ends by a guard who would use it to slam me repeatedly against the wall”.

1.3.4. BEATING AND KICKING

Nine of the fourteen alleged that they had been subjected to daily beatings during the initial period, involving repeated slapping, punching and, less often, kicking, to the body and face, as well as a detainee having his head banged against a solid object. These beatings lasted up to half an hour and were repeated throughout the day and again on subsequent days. They took place during periods ranging from one week up to two to three months.

For example, one detainee who did not wish his name to be transmitted to the authorities alleged that: “In Kabul the treatment got worse. I was punched and slapped in the face and on the back to the extent that I was bleeding. While having a rope round my neck and being tied to a pillar my head was banged against the pillar repeatedly.” The interrogators then allegedly took a picture of the detainee to show to another suspect, in order to threaten the same treatment to that person (see Section 1.3.10. Threats).

Mr Khaled Shaik Mohammed alleged that on a daily basis during the first month of interrogation in his third place of detention: “if I was perceived not to be cooperating I would be placed against a wall and subjected to punches and slaps in the body, head and face”.

Mr Bin Attash alleged that: “every day for the first two weeks [in Afghanistan] I was subjected to slaps to the face and punches to the body during interrogation. This was done by one interrogator wearing gloves. He was then replaced by a second interrogator who was more friendly and pretended that he could save me from the first interrogator”.

One detainee who did not wish his name to be transmitted to the authorities said that: “during the early days of the interrogation [in Kabul] I was often subjected to punches and slaps to the face by the interrogator. Two Afghan guards held me by the shoulders during the beatings.”

1.3.5. CONFINEMENT IN A BOX

One of the fourteen reported that confinement inside boxes was used as a form of ill-treatment. Mr Abu Zubaydah, alleged that during an intense period of his interrogation in Afghanistan in 2002 he was held in boxes that had been specially designed to constrain his movement. One of the boxes was tall and narrow and the other was shorter, forcing him to crouch down. Mr Abu Zubaydah stated that: “As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant that my wounds both in the leg and stomach became very painful. I think this occurred about three months after my last operation”. He went on to say that a cover was placed over the boxes while he was inside making it hot and difficult to breathe. The combination of sweat, pressure and friction from the slight movement possible to try to find a comfortable position, meant that the wound on his leg began to reopen and started to bleed. He does not know how long he remained in the small box; he says that he thinks he may have slept or fainted. The boxes were used repeatedly during a period of approximately one week in conjunction with other forms of ill-treatment, such as suffocation by water, beatings and use of the collar to slam him against the wall, sleep deprivation, loud music and deprivation of solid food. During this period, between sessions of ill-treatment he was made to sit on the floor with a black hood over his head until the next session began.

1.3.6. PROLONGED NUDITY

The most common method of ill-treatment noted during the interviews with the fourteen was the use of nudity. Eleven of the fourteen alleged that they were subjected to extended periods of nudity during detention and interrogation, ranging from several weeks continuously up to several months intermittently.

For example, Mr Bin Attash alleged that he was kept naked for two weeks in Afghanistan, followed by one month of being clothed. However, after being transferred to his next place of detention, he was allegedly again kept naked for another one month.

Mr Hambali alleged that he was kept naked for four to five days while still detained in Thailand and was then held for one week naked in Afghanistan. He was then provided with clothes, which were again removed after one week after which he remained naked for another month before clothes were finally provided.

Mr Abu Zubaydah alleged that after spending several weeks in hospital following arrest he was transferred to Afghanistan where he remained naked, during interrogation, for between one and a half to two months. He was then examined by a woman he assumed to be a doctor who allegedly asked why he was still being kept naked. Clothes were given to him the next day. However, the following day, these clothes were then cut off his body and he was again kept naked. Clothes were subsequently provided or removed according to how cooperative he was perceived by his interrogators.

Mr Khaled Shaik Mohammed alleged that he was kept naked for one month in Afghanistan. Mr Majid Khan alleged that he was kept naked for three days in Afghanistan and for seven days in his third place of detention. Mr Bin Lep alleged that he was kept naked for three to four days while still detained in Thailand followed by nine days naked in Afghanistan.

One of the detainees who did not wish his name to be transmitted to the authorities alleged that while detained in Afghanistan he was kept naked for two to three months with clothes being provided approximately every seven days for a two day period and then being again removed.

Most of the detainees commented that the provision of clothes was determined by how cooperative they were perceived by the interrogators.

1.3.7. SLEEP DEPRIVATION AND USE OF LOUD MUSIC

Eleven of the fourteen alleged that they were deprived of sleep during the initial interrogation phase from seven days continuously to intermittent sleep deprivation that continued up to two or three months after arrest. Sleep was deprived in various ways, and therefore overlaps with some of the other forms of ill-treatment described in this section, from the use of loud repetitive noise or music to long interrogation sessions to prolonged stress standing to spraying with cold water.

For example, Mr Abu Zubaydah alleged that, while detained in Afghanistan, “I was kept sitting on a chair, shackled by hands and feet for two to three weeks. During this time I developed blisters on the underside of my legs due to the constant sitting. I was only allowed to get up from the chair to go to the toilet, which consisted of a bucket”. He alleged that he was constantly deprived of sleep during this period, “if I started to fall asleep a guard would come and spray water in my face”, he said. The cell was kept very cold by the use of air-conditioning and very loud “shouting” music was constantly playing on an approximately fifteen minute repeat loop twenty-four hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise.

One detainee who did not wish his name to be transmitted to the authorities alleged that loud music played for twenty-four hours a day throughout the one year period he believed he was held in Afghanistan. He reported that during the last month it changed to sounds of wind, waves and birds.

1.3.8. EXPOSURE TO COLD TEMPERATURE/COLD WATER

Detainees frequently reported that they were held for their initial months of detention in cells which were kept extremely cold, usually at the same time as being kept forcibly naked. The actual interrogation room was also often reported to be kept cold. Requests for clothing or for blankets went unanswered. For example, Mr Abu Zubaydah alleged that his cell was excessively cold throughout the nine months he spent in Afghanistan.

Seven of the fourteen reported that they were also subjected to dousing with cold water during interrogation sessions. In four cases the water was allegedly thrown or poured onto the detainee with buckets or a hose-pipe while held in a stress standing position with their arms shackled above their head for prolonged periods. Several thought that this was in order to clean away the feces which had run down their legs when they defecated while held in the prolonged stress standing position (see Section 1.3.2. Prolonged Stress Standing). In three cases cold water was also poured over the detainee while he was lying on a plastic sheet raised at the edges by guards to contain the water around his body creating an immersion bath with just the head exposed. In one case a detainee was strapped to a tilting bed and cold water was poured over his body while he was threatened with “water boarding” (although that procedure was not actually carried out on that individual).

For example, one detainee who did not wish his name to be transmitted to the authorities alleged that, during his detention in Afghanistan, his interrogators “threw cold water on me with buckets” during the early days of the interrogation; Mr Ramzi Binalshib alleged that he was: “splashed with cold water from a hose” during interrogation in his fourth place of detention and that in his eighth place of detention he was: “restrained on a bed, unable to move, for one month, February 2005 and subjected to cold air-conditioning during that period.”

Another detainee who did not wish his name to be transmitted to the authorities alleged that: “when I was taken for interrogation I would first be splashed with cold water by the guards while still in the [cell in the prolonged stress standing] position. I'm not sure if this was to clean me or as part of the interrogation process—or both. I was then blindfolded and walked the fifteen minutes to another room, separate from the interrogation room, where I was made to lie on a plastic sheet, which was then raised at the edges. Cold water was then poured onto me using a kettle or hose for between fifteen and thirty minutes. I was still blindfolded. My interrogator told me that a woman was also present during the cold water treatment. I think I heard a female voice on at least one occasion”. He alleged that this was repeated on an almost daily basis, with breaks of two days approximately once a week, during two to three months while he was detained in Afghanistan.

Mr Bin Attash described the following from his detention in Afghanistan: “on a daily basis during the first two weeks I was made to lie on a plastic sheet placed on the floor which would then be lifted at the edges. Cold water was then poured onto my body with buckets. They did not have a hosepipe to fill the sheet more easily. This jail was not so well equipped for torture”. He was kept enveloped within the sheet with the cold water for several minutes. In his next place of detention, he was allegedly doused every day during the month of July 2003 with cold water from a hosepipe. He commented that: “in this place of detention they were rather more sophisticated than in Afghanistan because they had a hosepipe with which to pour water over me”.

1.3.9. PROLONGED USE OF HANDCUFFS AND SHACKLES

Many of the detainees alleged that they were kept for long periods continuously shackled and/or handcuffed. For example, Mr Khaled Shaik Mohammed was allegedly kept continuously shackled, even when inside his cell for nineteen months.

One detainee who did not wish his name to be transmitted to the authorities alleged that he was kept for four and a half months continuously handcuffed and seven months with the ankles continuously shackled while detained in Kabul in 2003/4. On two occasions, his shackles had to be cut off his ankles as the locking mechanism and ceased to function, allegedly due to rust.

Mr Bin Attash alleged that he was kept permanently handcuffed and shackled throughout his first six months of detention. During the four months he was held in his third place of detention, when not kept in the prolonged stress standing position, his ankle shackles were allegedly kept attached by a one meter long chain to a pin fixed in the corner of the room where he was held.

1.3.10. THREATS

Nine of the fourteen alleged that they had been subjected to threats of ill-treatment. Seven of these cases took the form of a verbal threat, including of ill-treatment in the form of “water boarding”, electric shocks, infection with HIV, sodomy of the detainee and the arrest and rape of his family, torture, being brought close to death, and of an interrogation process to which “no rules applied”. The other two threats were made by visual means, namely of ill-treatment which would make the detainee resemble a co-detainee (through use of a photo of a co-detainee showing physical signs of ill-treatment), and of a return to past methods of ill-treatment (through displaying during interrogation a neck collar previously used for ill-treatment). In all cases, the threats were made to induce cooperation with the interrogation.

For example, Mr Khaled Shaik Mohammed alleged that, in his third place of detention, one of his interrogators stated that the green light had been received from Washington to give him a “hard time” and that, although they would not let him die, he would be brought to the “verge of death and back again”.

Mr Abu Zubaydeh alleged that, in his third place of detention, he was told by one of the interrogators that he was one of the first to receive these interrogation techniques, “so no rules applied”.

Mr Hambali alleged that, in his third place of detention, he was threatened with a return to previous methods of ill-treatment (namely, having his head slammed against the wall by use of a collar, see Section 1.3.3 Beatings by use of a collar), by his interrogators showing him the collar during interrogation sessions. Similarly, Mr Khaled Shaik Mohammed stated that the collar previously used had been placed on the table in front of him during interrogation sessions in his third place of detention.

Mr Al Nashiri alleged that, in his third place of detention, he was threatened with sodomy, and with the arrest and rape of his family.

1.3.11. FORCED SHAVING

Two of the fourteen alleged that their heads and beards were forcibly shaved. Mr Abu Zubaydah alleged that his head and beard were shaved during the transfer to Afghanistan.

Mr Ramzi Binalshib alleged that, in his eighth place of detention, first his head was shaved and then some days later his beard was also shaved off. He was particularly distressed by the fact that the people who shaved him allegedly deliberately left some spots and spaces in order to make him look and feel particularly undignified and abused.

1.3.12. DEPRIVATION/RESTRICTED PROVISION OF SOLID FOOD

Eight of the fourteen alleged that they were deprived of solid food for periods ranging from three days to one month. This was often followed by a period when the provision of food was restricted and allegedly used as an incentive for cooperation. Two other detainees alleged that, whilst they were not totally deprived of solid food, food was provided intermittently or provided in restricted amounts.

For example, Mr Abu Zubaydah alleged that in Afghanistan, during the initial period of two to three weeks while kept constantly sitting on a chair, he was not provided with any solid food, but was provided with Ensure (a nutrient drink) and water. After about two to three weeks he began to receive solid food (rice) to eat on a daily, once a day, basis. Approximately one month later, during a resumption of intense questioning he was again deprived of food for approximately one week and only given Ensure and water.

Mr Binalshib alleged that during a period of three weeks in his fourth place of detention he was deprived of solid food for three to four weeks and only provided with Ensure and water.

One detainee who did not wish his name to be transmitted to the authorities alleged that during the initial two to three months of his detention in Afghanistan, although not totally deprived of solid food, he was given just one meal every two to three days. Later this increased to one meal a day, until the last month in that place of detention, when he finally received three meals a day. He believes he was detained in Afghanistan for approximately one year.

Mr Bin Attash alleged that he was not provided with any solid food during the first two weeks of his detention in Afghanistan; only Ensure and water being provided during that period. During the third week the Ensure continued, but he was also given one solid meal a day. This consisted of either bread and gravy or rice and potatoes. He was held in Afghanistan for three weeks. In his next place of detention food was adequately provided.

Mr Khaled Shaik Mohammed alleged that during the first month in his third place of detention, he was not provided with any solid food apart from on two occasions as a reward for perceived cooperation. A drink of Ensure was provided once every four hours. If he refused to drink then his mouth was forced open by a guard and the Ensure was poured down his throat. After about one month solid food began to be provided twice a day.

Mr Majid Khan alleged that he did not receive any solid food for seven days in Afghanistan.

One detainee who did not wish his name to be transmitted to the authorities alleged that during the one week he was held in his first place of detention he was not provided with any food and was only given Ensure and water to drink. After arriving in where he believes was Kabul, he was kept another two days without food, after which he was provided with meals irregularly for the next two months, after which meals were provided on a regular basis.

Mr Bin Lep alleged that he was not provided with any solid food until twelve days after his arrest.

Mr Hambali alleged that throughout his four to five days of detention in Thailand, where he was allegedly held in US custody, he was not provided with any solid food. During the two months he was detained in Afghanistan he received solid food irregularly, sometimes twice a day and sometimes only once in two to three days. Ensure was provided throughout to supplement the lack of solid food.
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

Postby admin » Sat Oct 12, 2013 1:01 am

PART 2 OF 3 (ICRC REPORT ON THE TREATMENT OF FOURTEEN "HIGH VALUE DETAINEES" IN CIA CUSTODY cont'd.)

1.4. FURTHER ELEMENTS OF THE DETENTION REGIME

The conditions of detention under which the fourteen were held, particularly during the earlier period of their detention, formed an integral part of the interrogation process as well as an integral part of the overall treatment to which they were subjected as part of the CIA detention program. This report has already drawn attention to certain aspects associated with basic conditions of detention, which were clearly manipulated in order to exert pressure on the detainees concerned.

In particular, the use of continuous solitary confinement and incommunicado detention, lack of contact with family members and third parties, prolonged nudity, deprivation/restricted provision of solid food and prolonged shackling have already been described above.

The situation was further exacerbated by the following aspects of the detention regime:

• Deprivation of access to the open air
• Deprivation of exercise
• Deprivation of appropriate hygiene facilities and basic items in pursuance of interrogation
• Restricted access to the Koran linked with interrogation

These aspects cannot be considered individually, but must be understood as forming part of the whole picture. As such, they also form part of the ill-treatment to which the fourteen were subjected.

Little or no access to open air was granted to the fourteen throughout their detention period. For most, their arrival in Guantanamo was the first time they had been allowed outdoors at all since their arrest (apart from during transfer from one place of detention to another). Two detainees said they were taken outdoors twice during their periods of detention in Afghanistan and only four detainees claimed that they received a regular outdoor period during any part of their detention. These four believed that they were previously detained in Guantanamo for periods ranging from one week to one year during 2003/4. During this time they were allowed to go outdoors on a daily basis. Apart from these few exceptions, none of the fourteen received any access to open air throughout their period in the CIA detention program.

Access to exercise was also severely limited, particularly during the early months and years of detention for the detainees arrested during 2002 and 2003. According to many of the detainees it was after several months or years of detention that the authorities constructed or provided such facilities. For example, Mr Bin Attash was kept for approximately two and a half years without any possibility to exercise outside his cell apart from a one month period in his fifth place of detention which was equipped with a gym/exercise area. Mr Hambali was allegedly detained for nine months before he was provided with any possibility to exercise outside of his cell. Mr Khaled Shaik Mohammed was allegedly held for nineteen months before he was provided with access to a small gym located outside his cell in his fifth place of detention.

Basic materials such as toothbrushes, toothpaste, soap, towels, toilet paper, clothes, underwear, blankets and mattress were not provided at all during the initial detention period, in some instances lasting several months. The timing of initial provision and continued supply of all these items was allegedly linked with compliance and cooperation on the part of the detainee. Even after being provided, these basic items allegedly were sometimes removed in order to apply pressure for purposes of interrogation.

In the early phase of interrogation, from a few days to several weeks, access to shower was totally denied and toilet, as mentioned above, was either provided in the form of a bucket or not provided at all—in which case those detainees shackled in the prolonged stress standing position had to urinate and defecate on themselves and remain standing in their own bodily fluids for periods of several days (see Section 1.3.2. Prolonged Stress Standing).

During the initial stages of detention, particularly during the most intense interrogation phase, the fourteen were not provided with access to the Koran. The cultural and religious significance of this lack of access added significant psychological pressure to the detainees. Later, usually about two months after arrest, Korans were provided and the direction of Mecca was indicated. Detainees alleged, however, that throughout their detention period the timing of the prayer schedule was inaccurate. Several detainees alleged that on occasion their Korans, along with other items, were removed according to the needs of the interrogation. For example, Mr Bin Attash was provided with a Koran in his third place of detention, approximately two months after arrest. He was able to keep the Koran for one month. It was then removed as the interrogation again became harsher and was finally returned to him one month later. Mr Khaled Shaik Mohammed alleged that he was not allowed to pray until approximately one month after his arrest. He was provided with a Koran in April 2003, approximately six weeks after arrest. It was confiscated on four occasions during his stay in his third place detention. Mr Hambali was provided with a Koran about four days after his arrival in his third place of detention, approximately two months after arrest. He stated that: “A few days later the air conditioning was made very cold and everything was removed from my cell, including the Koran. I was only left with a T-shirt and shorts”.

2. CONDITIONS OF DETENTION IN LATER STAGES

The ICRC notes that conditions of detention and treatment, following the initial period during which the methods described above were used, gradually improved. The timing for the implementation of these improvements varied for each detainee and appears linked to the needs of the interrogation. The introduction of improvements appears to mark the transition from the phase where compliance was obtained by force to what resembled a more incentive-based approach (see Section 1.3 for examples of approximate timeframes).

Following the initial stages of interrogation described above, all detainees were provided with clean clothes on a weekly basis, were gradually provided with solid food three times per day (although some complaints of quality and quantity lasted throughout), and were provided with books in English or their mother tongue and magazines.

In the latter stages of detention, usually six to eight months after arrest, all fourteen were provided with toilet facilities in their cells, to which they had unlimited access, some also had unlimited access to washbasins, and all were able to shower either on a weekly basis or more often. After a period which varied between several months to two and a half years following the arrest, all detainees were allowed to move from their cells to a closed indoor area in which they were able to use exercise machines. Also in the latter stages of detention, the cell temperature was usually maintained at a proper level. In the final place of detention prior to their arrival in Guantanamo, some detainees were able to watch a film on a weekly basis and/or use a portable DVD player.

Although each of these aspects represents an improvement in the situation in which the fourteen were held, such improvements must be understood against the earlier background of severe ill-treatment and ongoing threats of such treatment, continuous solitary confinement and incommunicado detention, ongoing transfers, and the lack of legal framework governing their detention.

3. HEALTH PROVISION AND THE ROLE OF MEDICAL STAFF

During the course of their detention, detainees described three principal roles for health personnel whom they encountered. Firstly, there was a direct role in monitoring the ongoing ill-treatment which, in some instances, involved the health personnel directly participating while certain methods were used. Secondly, there was a role in performing a medical check just prior to, and just after, each transfer. Finally, there was the provision of healthcare, to treat both the direct consequences of ill-treatment detailed in previous sections, and to treat any natural ailments that arose during the prolonged periods of detention.

Throughout the course of the initial phase of the detention, the ICRC received allegations that health personnel were directly involved in monitoring the health effects of ill-treatment. In some cases it was alleged that, based on their assessments, health personnel gave instructions to interrogators to continue, to adjust, or to stop particular methods. As with other personnel within the detention facilities, the health personnel did not identify themselves, but the detainees presumed from their presence and function that they were either physicians or psychologists. [10]

For certain methods, notably suffocation by water, the health personnel were allegedly directly participating in the infliction of the ill-treatment. In one case, it was alleged that health personnel actively monitored a detainee’s oxygen saturation using what, from the description of the detainee of a device placed over the finger, appeared to be a pulse oxymeter. For example, Mr Khaled Shaik Mohammed alleged that on several occasions the suffocation method was stopped on the intervention of a health person who was present in the room each time this procedure was used.

Other detainees who were shackled in a stress standing position for prolonged periods in their cells were monitored by health personnel who in some instances recommended stopping the method of ill-treatment, or recommended its continuation, but with adjustments. For example, Mr Bin Attash (the detainee has had a right-sided below knee amputation) alleged that while being held in a form of stress standing position with his arms shackled above his head, and his feet touching the floor, had his lower leg measured on a daily basis with a tape measure by a person he assumed to be a doctor for signs of swelling; the health person finally ordered that he be allowed to sit on the floor, albeit with his arms still shackled above his head. Mr Hambali alleged that, after a period of the same form of prolonged stress standing, a health person intervened to prevent further use of the method, but told him that “I look after your body only because we need you for information”.

As well as the monitoring of specific methods of ill-treatment, other health personnel were alleged to have directly participated in the interrogation process. One detainee, who did not wish his name to be transmitted to the authorities, alleged that a health person threatened that medical care would be conditional upon cooperation with the interrogators.

The second alleged role of the health personnel was to perform a medical check prior to and after each transfer from one detention location to another. The purpose and results of this medical examination appear not to have been divulged to the detainees.

The third alleged role was to provide medical care to detainees, either for injuries resulting directly from the various forms of ill- treatment employed, or treatment for common ailments that arose throughout the course of the detention.

With regard to this third role, when such medical treatment was necessary it appears from the descriptions given that the care was appropriate and satisfactory. In two specific cases, detainees indicated that exceptional lengths were taken to provide very high standards of medical intervention.

Medical ethics are based on a number of principles [11] which include the principle of beneficence (a medical practitioner should act in the best interest of the patient—salus aegroti suprema lex), non-malefiance (first do no harm—primum non nocere) and dignity (the patient and the person treating the patient have the right to dignity). These principles guide any relationship between a medical doctor and a person whom he or she is relating to as a medical doctor.

There are accepted roles for health professionals working in recognised, official, places of detention such as police stations and prisons wherein the health professionals have the health care and best interests of the detainee as their primary consideration. [12] To this end, when a person enters an official detention facility or system, a medical assessment of their medical status is required in order to meet their current and ongoing health needs. In the case of a normal, lawful interrogation, a physician may be asked to provide a medical opinion, within the usual bounds of medical confidentiality, as to whether existing mental or physical health problems would preclude the individual from being questioned. Secondly, a physician may rightly be requested to provide medical treatment to a person suffering a medical emergency during questioning. This accepted role of the physician, or any other health professional, clearly does not extend to ruling on the permissibility, or not, of any form of physical or psychological ill-treatment. The physician, and any other health professionals, are expressly prohibited from using their scientific knowledge and skills to facilitate such practices in any way. On the contrary, the role of the physician and any other health professional involved in the care of detainees is explicitly to protect them from such ill-treatment and there can be no exceptional circumstances invoked to excuse this obligation. [13]

With the exceptions detailed in the above paragraph, any interrogation process that requires a health professional to either pronounce on the subject’s fitness to withstand such a procedure, or which requires a health professional to monitor the actual procedure, must have inherent health risks. As such, the interrogation process is contrary to international law and the participation of health personnel in such a process is contrary to international standards of medical ethics. In the case of the alleged participation of health personnel in the detention and interrogation of the fourteen detainees, their primary purpose appears to have been to serve the interrogation process, and not the patient. In so doing the health personnel have condoned, and participated in ill-treatment.

4. LEGAL ASPECTS IN RELATION TO UNDISCLOSED DETENTION

As described in the following paragraphs, it is a basic tenet of international law that any person deprived of liberty must be registered and held in an officially recognized place of detention.

International humanitarian law (IHL) applicable to international armed conflicts contains numerous provisions and provides extensive requirements concerning the registration of persons deprived of their liberty, ICRC visits to places of detention and the transmission of information related to such persons to, inter alia, their next of kin [14]. The entire system of detention provided for by the Geneva Conventions of 1949, in which the ICRC plays a supervisory role, is based on the idea that detainees must be registered and held in officially recognised places of detention. While under the Geneva Conventions ICRC access to certain detainees may be restricted for reasons of imperative military necessity, such restriction should be of a temporary and exceptional nature only [15].

Customary rules of IHL and human rights soft law instruments contain similar explicit provisions on the obligation of registration of detainees and the prohibition of unacknowledged detention, as well as provisions on contacts with family, applicable in situations of non-international armed conflicts and other situations of violence [16]. All of the above-mentioned rules aim at preventing, inter alia, enforced disappearance, which is prohibited under international law, including customary IHL. As far as IHL is concerned, the phenomenon of enforced disappearance violates, or risks violating, a range of customary rules, most notably the prohibition of arbitrary deprivation of liberty and the prohibition of torture and/or other cruel, inhuman or degrading treatment (CID) [17].

In the ICRC’s view, the fourteen were placed outside the protection of the law during the time they spent in CIA custody. Indeed, one of the main effects of the transfers was to place the fourteen in secret detention facilities in unspecified locations in a number of different countries, outside the reach of any judicial or administrative system. As such, they were, for instance, apparently both precluded from knowing the reasons for their detention and denied access to any mechanism capable of independently reviewing the lawfulness of their detention. They were also denied contact with their families, including any information to the families of their detention. The totality of the circumstances in which the fourteen were held effectively amounted to an arbitrary deprivation of liberty and enforced disappearance, in contravention of international law. [18]

As regards conditions of detention and treatment of the fourteen, the effects of their being in undisclosed detention were severe and multifaceted, as the present report shows. The absence of scrutiny by any independent entity—including the ICRC— inevitably creates conditions conducive to excesses that would not otherwise be permitted. Persons held in undisclosed detention are especially vulnerable to being subjected to ill-treatment. Indeed, the allegations of the fourteen include descriptions of treatment and interrogation techniques—singly or in combination—that amounted to torture and/or cruel, inhuman or degrading treatment.

In that regard, the ICRC wishes to remind the US authorities that international law absolutely prohibits CID and torture. Torture is defined by the 1984 UN Convention against Torture as: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity” [19]. In particular, the provisions of common article 3 to the Geneva Conventions, which reflects elementary considerations of humanity, stipulate that persons taking no active part in the hostilities “shall in all circumstances be treated humanely”, and that “cruel treatment and torture”, “outrages upon personal dignity, in particular humiliating and degrading treatment” are prohibited at any time and in any place whatsoever.

5. FATE OF OTHER PERSONS WHO PASSED THROUGH THE CIA DETENTION PROGRAM

During his speech of 6 September 2006, President Bush also stated that the CIA detention program held a limited number of persons at a given time, and that a number of other persons had also been detained by the CIA in the context of the fight against terrorism. President Bush added that: “many of them have been returned to their home countries for prosecution or detention by their governments” once the US authorities had determined that they had “little or no intelligence value”.

In subsequent discussions with various US Government departments, it was again stated to the ICRC that the majority, if not all, other detainees who went through this program have been transferred to their countries of origin.

It is the ICRC’s understanding that these transfers are all subject to formal agreements between the USG and the respective countries which include, inter alia, assurances of humane treatment on the part of the countries of origin. The ICRC has a number of legal and operational concerns about this practice. In particular, the ICRC regrets that the USG has not informed the ICRC of the countries of destination so that the ICRC can seek access from the relevant authorities in order to monitor human treatment and to ensure communication with their families.

In light of the conditions of detention and treatment of the fourteen during the period they were held in the CIA detention program, as reported above, the ICRC remains gravely concerned by the fact that a significant number of other persons have passed through this detention program and may have been subjected to similar, if not the same, conditions and treatment. The ICRC has not received any clarification of the fate of these persons, and has therefore not been able to seek access to them following their reported transfer to their home countries. Consequently, it has not been able to assess the detention regime experienced by these persons whilst in CIA custody, nor to assess whether they are currently assured humane treatment by the detaining authorities in their respective countries of origin, nor whether they have been given the possibility of re-establishing contact with their families.

The ICRC welcomes the fact that it has been able to begin discussions with the CIA on this question. It considers the issue to be a humanitarian priority and anticipates a continuation of the discussions aimed at resolving this question.

6. FUTURE USE OF THE CIA DETENTION PROGRAM

According to information provided to the ICRC by the US authorities, no persons were held in the CIA detention program as of October 2006. Nevertheless, in his speech of 6 September 2006, President Bush made clear that the CIA detention program had not been discontinued and could again be used in the future.

The ICRC is concerned by the maintenance or resumption of any type of undisclosed detention, particularly in view of the information described in the body of this report, including the legal aspects. It urges the US authorities to end the practice of undisclosed detention.

Without prejudice to this position, the ICRC requests that, should persons nevertheless be held in the CIA detention program in the future, it be notified of their detention and be granted access to conduct its traditional visits to the persons detained. In addition, it urges the authorities to ensure that conditions of detention and treatment are humane. [20] Finally, the ICRC wishes to remind the CIA that persons whose continued detention is deemed necessary for imperative reasons of security should be afforded an independent and impartial review of deprivation of liberty that appropriately addresses their status. Review processes should enable the internees to challenge the reasons for their continued internment by application of appropriate procedural safeguards [21]

CONCLUSION

All of the fourteen were subjected to a process of ongoing transfers to places of detention in unknown locations and continuous solitary confinement and incommunicado detention throughout the entire period of their detention. The fourteen were placed outside the protection of the law during the time they spent in the CIA detention program. The totality of the circumstances in which they were held effectively amounted to an arbitrary deprivation of liberty and enforced disappearance, in contravention of international law.

Moreover, and in addition to the continuous solitary confinement and incommunicado detention which itself was a form of ill- treatment, twelve of the fourteen alleged that they were subjected to systematic physical and/or psychological ill-treatment. This was a consequence of both the treatment and the material conditions which formed part of the interrogation regime, as well as the overall detention regime. This regime was clearly designed to undermine human dignity and to create a sense of futility by inducing, in many cases, severe physical and mental pain and suffering, with the aim of obtaining compliance and extracting information, resulting in exhaustion, depersonalisation and dehumanisation.

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel inhuman or degrading treatment.

The alleged participation of health personnel in the interrogation process and, either directly or indirectly, in the infliction of ill- treatment constituted a gross breach of medical ethics and, in some cases, amounted to participation in torture and/or cruel, inhuman or degrading treatment.

In light of the above, the ICRC remains gravely concerned by the fate of the other persons previously held in the CIA detention program, who remain unaccounted for. It continues to request that the relevant US authorities provide clarification concerning the fate of all persons for whom it has information.

The ICRC also remains gravely concerned about the announcement by President Bush that the US authorities intend to continue the practice of undisclosed detention by holding persons arrested in the context of the fight against terrorism in the CIA detention program in the future.

The ICRC urges the US authorities to end the practice of undisclosed detention and to ensure that all persons detained in the context of the fight against terrorism are held in conformity with the rules and principles of international law.

Without prejudice to its position on undisclosed detention, the ICRC requests that, should persons nevertheless be held in the CIA detention program in the future, it be notified of their detention and granted access to these detainees. Moreover, it urges the US authorities to provide the ICRC with notification and access to all detainees held under US authority in the context of the fight against terrorism. Such access, of a purely humanitarian nature, should not be seen as inconsistent with any legitimate security concerns of the US authorities in relation to the concerned detainees.

To this end, the ICRC recommends the following:

• that the US authorities take all measures to eliminate abusive conditions of detention and treatment in all places of detention under their authority;
• that all persons detained in the context of the fight against terrorism be treated humanely at all times;
• that all persons detained in the context of the fight against terrorism be permitted to communicate with family members within a reasonable time;
• that all persons detained in the context of the fight against terrorism be held in a legal framework affording all fundamental guarantees;
• that the ICRC be notified of all arrests carried out by the US authorities or by third country authorities acting on behalf of or in cooperation with the US authorities in the context of the fight against terrorism;
• that the ICRC be granted access to all persons held under US authority in the context of the fight against terrorism;
• that the US authorities investigate all allegations of ill-treatment and take steps to punish the perpetrators, where appropriate, and to prevent such abuses from happening again.
• that the US authorities inform the ICRC of the identities of the other persons who have passed through the CIA detention program, the country to which they have been returned and any other relevant details to allow the ICRC to seek access to these persons.

The ICRC trusts that the information in the present report will provide a useful tool for the relevant US authorities to take the necessary measures to ensure that all persons deprived of liberty in the context of the fight against terrorism are treated in accordance with the provisions of international law and internationally recognised standards. The ICRC looks forward to continue its dialogue with the US authorities on this issue.

ANNEX 1

The following examples of excerpts from some of the interviews conducted with the fourteen are in no way meant to represent the entirety of any one those interviews or to be representative of all of the interviews carried out. These excerpts are reproduced verbatim. They are presented only to illustrate how the various alleged methods of ill-treatment described in Section 1. of the report were reportedly used in combination with each other.

i) Abu Zubaydeh reported the following regarding his detention in Afghanistan were he was held for approximately nine months from May 2002 to February 2003. He had previously been held in hospital for what he believes were several weeks and had several operations to severe gunshot injuries sustained at the time of arrest:


“I woke up, naked, strapped to a bed, in a very white room. The room measured approximately 4m x 4m. The room had three solid walls, with the fourth wall consisting of metal bars separating it from a larger room. I am not sure how long I remained in the bed. After some time, I think it was several days, but can’t remember exactly, I was transferred to a chair where I was kept, shackled by hands and feet for what I think was the next 2 to 3 weeks. During this time I developed blisters on the underside of my legs due to the constant sitting. I was only allowed to get up from the chair to go the toilet, which consisted of a bucket. Water for cleaning myself was provided in a plastic bottle.

I was given no solid food during the first two or three weeks, while sitting on the chair. I was only given Ensure and water to drink. At first the Ensure made me vomit, but this became less with time.

The cell and room were air-conditioned and were very cold. Very loud, shouting type music was constantly playing. It kept repeating about every fifteen minutes twenty-four hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise.

The guards were American, but wore masks to conceal their faces. My interrogators did not wear masks.

During this first two to three week period I was questioned for about one to two hours each day. American interrogators would come to the room and speak to me through the bars of the cell. During the questioning the music was switched off, but was then put back on again afterwards. I could not sleep at all for the first two to three weeks. If I started to fall asleep one of the guards would come and spray water in my face.

After about two or three weeks I began to receive food, rice, to eat on a daily basis. They gave it once a day. I could eat with my hand, but I was not allowed to wash. It was also around this time that I was allowed to lie on the floor. I remained naked and in shackles, but I could sleep a little. It went on like this for about another one and a half months.

During the first few days a doctor came and gave me an injection. I was told it was an anti-biotic. After about one and a half to two months I was examined by a female doctor who asked why I was still naked. My measurements were taken and the next day, I was provided with orange clothes to wear. This was followed however, by more threats that worse was to follow.

Indeed, the next day guards came into my cell. They told me to stand up and raise my arms above my head. They then cut the clothes off of me so that I was again naked and put me back on the chair for several days. I tried to sleep on the chair, but was again kept awake by the guards spraying water in my face.

When my interrogators had the impression that I was cooperating and providing the information they required, the clothes were given back to me. When they felt I was being less cooperative the clothes were again removed and I was again put back on the chair. This was repeated several times.

Eventually, (I don't remember after how long), I was allowed to have a mattress and was given a towel to use as a sheet to cover myself with while sleeping. I was allowed some tissue paper to use when going to toilet on the bucket.

There then followed a period of about one month with no questioning. During this period I was given food, rice and beans, on a daily basis, varying between once or twice a day. They also continued to give me Ensure to drink. My cell was still very cold and the loud music no longer played, but there was a constant loud hissing or crackling noise, which played twenty-four hours a day. I tried to block out the noise by putting tissue in my ears.

There then followed a period of about one month with no questioning. Then, about two and a half or three months after I arrived in this place, the interrogation began again, but with more intensity than before. Then the real torturing started. Two black wooden boxes were brought into the room outside my cell. One was tall, slightly higher than me and narrow. Measuring perhaps in area 1m x 0.75m and 2m in height. The other was shorter, perhaps only 1m in height. I was taken out of my cell and one of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room. I was also repeatedly slapped in the face. As I was still shackled, the pushing and pulling around meant that the shackles pulled painfully on my ankles.

I was then put into the tall back box for what I think was about one and a half to two hours. The box was totally black on the inside as well as the outside. It had a bucket inside to use as a toilet and had water to drink provided in a bottle. They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply. It was difficult to breathe. When I was let out of the box I saw that one of the walls of the room had been covered with plywood sheeting. From now on it was against this wall that I was then smashed with the towel around my neck. I think that the plywood was put there to provide some absorption of the impact of my body. The interrogators realized that smashing me against the hard wall would probably quickly result in physical injury.

During these torture sessions many guards were present, plus two interrogators who did the actual beating, still asking questions, while the main interrogator left to return after the beating was over. After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about 3 months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed. I don’t know how long I remained in the small box, I think I may have slept or maybe fainted.

I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.

I was then placed again in the tall box. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket with urine tipped over and spilt over me. I remained in the box for several hours, maybe overnight. I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before.

I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold.

This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocation.

During that week I was not given any solid food. I was only given Ensure to drink. My head and beard were shaved everyday.

I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor.

I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people.

At the end of this period two women and a man came to interrogate me. I was still naked and, because of this, I refused to answer any questions. So they again repeatedly slapped me in the face and smashed me against the wall using the towel around my neck. The following day I was given a towel to wear around my waist, but I was still very cold.

Then, little by little, things started to get better. I was again given rice to eat. Then my mattress was returned. I was allowed to clean my cell. The tall box was removed, but the short one remained in the room outside my cell, I think as a deliberate reminder as to what my interrogators were capable of. One week after the end of torture I was given a pair of green shorts and a top to wear. The food also improved with the addition of beans and fruit.

I was provided with water and allowed to wash inside the cell. However, the loud noise continued throughout the nine months I spent in that place. I was never given any outdoor time.”

ii) Walid Bin Attash reported the following regarding his detention in Afghanistan, where he was held for approximately three weeks from mid-May to the start of June 2003 and in his subsequent place of detention, where he was held from June to October 2003:


“On arrival at the place of detention in Afghanistan I was stripped naked. I remained naked for the next two weeks. I was put in a cell measuring approximately 1m x 2m. I was kept in a standing position, feet flat on the floor, but with my arms above my head and fixed with handcuffs and a chain to a metal bar running across the width of the cell. The cell was dark with no light, artificial or natural.

During the first two weeks I did not receive any food. I was only given Ensure and water to drink. A guard would come and hold the bottle for me while I drank. During the third week the Ensure continued, but I was also provided with one meal each day. This consisted of either gravy and bread or rice and potatoes. The toilet consisted of a bucket in the cell, which was removed once a day. I was not allowed to clean myself after using the bucket. Loud music was playing twenty-four hours each day throughout the three weeks I was held there.

After some time of being held in this position my stump began to hurt so I removed my artificial leg to relieve the pain. Of course my one good leg then began to ache and soon started to give way so that I was left hanging with all my weight on my wrists. I shouted for help but at first nobody came. Finally, after about one hour a guard came and my artificial leg was given back to me and I was again placed in the standing position with my hands above my head. After that the interrogators sometimes deliberately removed my artificial leg in order to add extra stress to the position. For the first two weeks I was held in this position apart for two or three times when I was allowed to lie down, but I cannot remember for how long.

Usually, throughout the interrogation, the methods they used were specifically designed not to leave marks. However, when I was in this position the cuffs cut into my wrists and made wounds. When this happened the doctor would be called.

For interrogation I was blindfolded and removed from the cell and taken to another room. Every day for the first two weeks I was subjected to slaps to my face and punches to my body during the interrogation. This was done by one interrogator wearing gloves. He was then replaced by a second interrogator who was more friendly and pretended that he could save me from the first interrogator.

Also on a daily basis during the first two weeks a collar was looped around my neck and then used to slam me against the walls of the interrogation room. It was also placed around my neck when being taken out of my cell for interrogation and was used to lead me along the corridor. It was also used to slam me against the walls of the corridor during such movements.

Also on a daily basis during the first two weeks I was made to lie on a plastic sheet placed on the floor which would then be lifted at the edges. Cold water was then poured onto my body with buckets. They did not have a hose-pipe to fill the sheet more easily. This jail was not so well equipped for torture. I would be kept wrapped inside the sheet with the cold water for several minutes. I would then be taken for interrogation to a separate room. At the end of the interrogation I would be placed under hot lights to dry out thoroughly and warm up. This was sometimes done during the interrogation.

The interrogators threatened to infect me with HIV. I was given at least two injections by the doctor during this period, but I have no idea what they were for.

Female interrogators were also present which I found highly humiliating in my naked state. The female interrogators did not take part in physical ill-treatment.

After about two weeks the torture stopped. I was given some clothes, a tracksuit, to wear and was no longer kept in the standing position with my hands above my head. I was still shackled, by my ankles, but was allowed to sit or lie down in my cell. I was also provided with a blanket.

After approximately three weeks in Afghanistan I was transferred to another place. I was blindfolded and earphones were placed over my ears. I was transported in a sitting position, shackled by the ankles and by the wrists with my hands in front of my body. I think that the flight lasted probably more than eight hours. On this occasion the transfer was done using a military plane. If I shifted my position too much during the journey somebody hit me by hand on the head.

I arrived in the next place of detention during June 2003. I think I was detained underground as I had to walk down some stairs in order to reach the cell. My blindfold was then removed. The cell was about 4m x 5m. I was kept chained by my ankle shackles to a pin fixed in the floor. For the first month here I was not subjected to any torture.

I was not allowed to shower. Meals were provided three times a day in addition to Ensure and multivitamins. Toilet consisted of a bucket in the cell which was removed everyday. Loud music was playing twenty-four hours each day. I was provided with a Styrofoam mattress.

After about one month the torture began again. I was stripped naked and remained naked throughout the month of July. Also during this time I was again kept for several days in a standing position with my arms above my head and fixed with handcuffs and a chain to a metal ring in the ceiling. My lower leg was examined on a daily basis by a doctor using a tape measure for signs of swelling. I do not remember for exactly how many days I was kept standing, but I think it was about ten days The doctor finally ordered that I be allowed to sit on the floor, I was still kept with my arms extended above my head. This was very painful on my back. During the standing I was made to wear a diaper. However, on some occasions the diaper was not replaced and so I had to urinate and defecate over myself. I was washed down with cold water everyday.

In this place of detention they were rather more sophisticated than in Afghanistan because they had a hose-pipe with which to pour the water over me. After having been washed down with cold water in my cell I was taken for interrogation. On one occasion I heard sounds of a person being tortured next door. In this place of detention, female interrogators were again present while I was naked. One of them was particularly aggressive in her questioning. [He would not go further into detail on this subject]. However , I was not subjected to any more beatings.”

iii) Khaled Shaik Mohammed reported the following regarding his transfer to and detention in Afghanistan, where he was held for three days at the start of March 2003 and in his subsequent place of detention, where he was held from 06 March to 22 September 2003:


“During the transfer from Pakistan to Afghanistan my eyes were covered with a cloth tied around my head and with a cloth bag pulled over it. A suppository was inserted into my rectum. I was not told what the suppository was for. I was dressed in a shalwar kameez, shackled hands and feet and put sitting in a vehicle for the journey to the airport. I was then put in a sitting position on a plane. The transfer was OK, with no particular problems to report. The flight was short, only about 1 hour. I arrived at night. The transfer from the plane to the place of detention took about 15–20 minutes. During my time in this place of detention I could hear planes taking off and landing. I think the place was Bagram.

After arrival my clothes were cut off of me, the bag and blindfold were removed and photographs were taken of me naked. I remained naked throughout the three days I stayed in this place of detention.

I was checked by a doctor and asked about my medical history. I told the doctor about the pain I was still suffering from the beating in Pakistan. [During the two days he was detained at Rawlapindi he was questioned by a CIA agent who allegedly punched him several times in the stomach, chest and face. The same agent reportedly threw him on the floor and trod on his face three times. He was not allowed to sleep during his detention in Pakistan].

I was then placed in a cell, about 2m x 4 m, naked, where I was kept in a standing position with my hands cuffed and chained to a bar above my head. My feet were flat on the floor. At first I was questioned for about one hour with no other forms of ill-treatment. After about one hour I was taken to another room where I was made to stand on tiptoes for about two hours during questioning. Approximately thirteen persons were in the room. These included the head interrogator (a man) and two female interrogators, plus about ten muscle guys wearing masks. I think they were all Americans. From time to time one of the muscle guys would punch me in the chest and stomach. This was repeated during two nights.

Also during this period I was on four occasions taken to a separate room away from the main interrogation room. Here cold water from buckets was thrown onto me for about forty minutes. Not constantly as it took time to refill the buckets. After which I would be taken back to the interrogation room.

On one occasion during the interrogation I was offered water to drink, when I refused I was again taken to another room where I was made to lie of the floor with three persons holding me down. A tube was inserted into my anus and water poured inside. Afterwards I wanted to go to the toilet as I had a feeling as if I had diarrhoea. No toilet access was provided until four hours later when I was given a bucket to use. Whenever I was returned to my cell I was always kept in the standing position with my hands cuffed and chained to a bar above my head.

On one occasion I was taken to another cell and was allowed to sleep for a little while, I think for only about one hour, before being returned to my cell standing, naked with my hands shackled above my head.

Music was always playing in the corridor outside my cell, but it was not very loud. For a toilet a bucket was provided inside the cell. A guard came and lowered my hands to allow me to use it. However, I was not allowed to clean myself afterwards and was immediately again returned to the former position.

I was not allowed to pray. I could not bathe or wash. I was not provided with any time outdoors. Some Afghani style bread was given to me on some occasions, as a reward for when they thought I was cooperating.

After three days in Afghanistan I was dressed in a tracksuit. My eyes were covered with a cloth tied around my head. A cloth bag was then pulled over my head. Headphones were placed over my ears—playing music, but not too loud. I was transported about ten minutes by vehicle and then placed in a plane sitting, leaning back, with my hands and ankles shackled in a high chair. I fell asleep. The first proper sleep in over five days. I therefore don’t know how long the journey lasted.

On arrival the transfer from the airport to the next place of detention took about one hour. I was transported sitting on the floor of a vehicle. I could see at one point that there was snow on the ground. Everybody was wearing black, with masks and army boots, like Planet-X people. I think the country was Poland. I think this because on one occasion a water bottle was brought to me without the label removed. It had e-mail address ending in “.pl”. The central-heating system was an old style one that I would expect only to see in countries of the former communist system.

After arrival my clothes were again cut off of me, the bag and blindfold were removed and photographs were again taken of me naked. I was put in a cell with cameras where I was later informed by an interrogator that I was monitored 24 hours a day by a doctor, psychologist and interrogator. I think the cell was underground. I had to go down steps to get to it. It was about 3m x 4m with wooden walls.

It was here that the most intense interrogation occurred, led by three experienced CIA interrogators, all over 65 years old and all strong and well trained. There were the “emirs.” Although of course they never revealed their own names, I gave them names by which I could refer to them, all beginning with ‘Abu’. I think that ‘Abu Captain’ was of South American origin, whereas ‘Abu Hanan’ was perhaps of Moroccan origin and ‘Abu White’ was of Eastern European descent.

As the interrogation again resumed I was told by one of the “emirs” that they had received the green-light from Washington to give him “a hard time”. They never used the word “torture” and never referred to “physical pressure”, only to “a hard time”, I was never threatened with death, in fact I was told that they would not allow me to die, but that I would be brought to the “verge of death and back again”.

Apart from when I was taken for interrogation to another room, I was kept for one month in the cell in a standing position with my hands cuffed and shackled above my head and my feet cuffed and shackled to a point in the floor. Of course during this month I fell asleep on some occasions while still being held in this position. This resulted in all my weight being applied to the handcuffs around my wrists resulting in open and bleeding wounds. The cuffs around my ankles also created open, bleeding wounds. [Scars consistent with this allegation were visible on both wrists as well as on both ankles.] Both my feet became very swollen after one month of almost continual standing.

Initially I was interrogated for approximately eight hours each day. This gradually became less until after one month it was about four hours each day.

For the interrogation I was taken to a separate room. The number of people present varied greatly from one day to another. Other interrogators, including women, were also sometimes present along with the ‘emirs’. A doctor was also usually present. If I was perceived not to be cooperating I would be put against a wall and punched and slapped in the body, head and face. A thick flexible plastic collar would also be placed around my neck so that it could then be held at the two ends by a guard who would use it to slam me repeatedly against the wall. The beatings were combined with the use of cold water, which was poured over me using a hose-pipe. The beatings and use of cold water occurred on a daily basis during the first month.

In addition I was also subjected to ‘water-boarding’ on five occasions, all of which occurred during that first month. I would be strapped to a special bed, which could be rotated into a vertical position. A cloth would be placed over my face. Cold water from a bottle that had been kept in a fridge was then poured onto the cloth by one of the guards so that I could not breathe. This obviously could only be done for one or two minutes at a time. The cloth was then removed and the bed was put into a vertical position. The whole process was then repeated during about one hour. Injuries to my ankles and wrists also occurred during the water-boarding as I struggled in the panic of not being able to breathe. Female interrogators were also present during this form of ill-treatment and a doctor was always present, standing out of sight behind the head of bed, but I saw him when he came to fix a clip to my finger which was connected to a machine. I think it was to measure my pulse and oxygen content in my blood. So they could take me to breaking point.

After each session of torture I was put into a cell where I was allowed to lie on the floor and could sleep for a few minutes. However, due to shackles on my ankles and wrists I was never able to sleep very well.

The harshest period of the interrogation was just prior to the end of the first month. The beatings became worse and I had cold water directed at me from a hose-pipe by guards while I was still in my cell. The worst day was when I was beaten for about half an hour by one of the interrogators. My head was banged against the wall so hard that it started to bleed. Cold water was poured over my head. This was then repeated with other interrogators. Finally I was taken for a session of water boarding. The torture on that day was finally stopped by the intervention of the doctor. I was allowed to sleep for about one hour and then put back in my cell standing with my hands shackled above my head.

Music was playing 24 hours/day in the corridors, but not very loud. I was allowed to pray after about one month. Koran was given in April 2003. It was confiscated on four occasions during my stay in that place of detention. The toilet consisted of a bucket in the cell, which I could use on request, but I was not allowed to clean myself after toilet during the first month. I was allowed to shower twice during the first month. After these two showers I was allowed to sleep for a little while on the floor of my cell before being returned to the standing position with hands cuffed above my head. During the first month I was not provided with any food apart from on two occasions as a reward for perceived cooperation. I was given ‘Ensure’ to drink every 4 hours. If I refused to drink then my mouth was forced open by the guard and it was poured down my throat by force. At my request the Ensure was later provided a little warmed. I was weighed every day during the first month. This was done on a weekly basis later. At the time of arrest I weighed 78kg. After one month in detention I weighed 60kg.

I wasn’t given any clothes for the first month. Artificial light was on 24 hours a day, but I never saw sunlight. I was never taken outdoors.

After about one month I was moved to another cell. I was given clothes to wear. I was no longer kept in a standing position. I was only shackled by the ankles. I could shower once a week. The interrogation became less harsh. No more physical assault, but threats along the lines of “we will take you to another room” or by having the plastic collar put on the table in front of me during the questioning. I was provided with a Styrofoam mattress. They started to give me food twice a day. To begin with the it consisted only of rice and beans. Later, after June 2003, I began to receive some meals with sardines, canned meat and bread buns. The guards would sometimes bring the food already bitten, and would handle me roughly when they took me to the shower. These things improved after I complained to one of the ‘emirs’.

On June 4th I was moved to a third cell. This move occurred after I complained about the constant music that was still being played outside my cell. The new cell was a cage like structure built inside an underground room. I preferred it as there was no music and, as it was a cage structure instead of solid walls, the ventilation was better. I was again kept shackled by the feet, but not the wrists. Water was provided in two bottles. One for drinking, one for the toilet. Toilet paper was provided. Toilet still consisted of a bucket inside the cell. It was removed on a daily basis.

During the harshest period of my interrogation I gave a lot of false information in order to satisfy what I believed the interrogators wished to hear in order to make the ill-treatment stop. I later told the interrogators that their methods were stupid and counterproductive. I’m sure that the false information I was forced to invent in order to make the ill-treatment stop wasted a lot of their time and led to several false red-alerts being placed in the US.”
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Re: The Torture Papers: The Road to Abu Ghraib, edited by Ka

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PART 3 OF 3 (ICRC REPORT ON THE TREATMENT OF FOURTEEN "HIGH VALUE DETAINEES" IN CIA CUSTODY cont'd.)

_______________

Notes:

1. The ICRC has defined “undisclosed detention” broadly, to include: the detention of individuals by US authorities in undisclosed locations; the non-disclosure or hiding of detainees from the ICRC by US authorities and/or the denial of ICRC access to detainees known to the ICRC; and detention by third country authorities working in cooperation with US authorities, including the practice of rendition, when carried out in violation of the rules and principles of international law.

2. A list of the nine main written interventions was attached in annex to the 2004 report. In the 2006 report, a list of the 17 main written interventions was attached in annex.

3. This list contained 42 names in 2004, and 59 names in 2006. In both cases, the list included two children.

4. The content of this Note VerbaIe is acknowledged by the ICRC in its consolidated report of 18 April 2006.

5. The terms “detainee” and “detention” are also intended to cover “internees” and “internment”.

6. For four of these detainees, the first written request was made in January 2003; for nine detainees the first request was in 2004 (two in March, six in July 2004 and one in November 2004); and for one detainee the first request was made in November 2005. A complete list of the interventions made for each of these detainees has been attached in Annex 2. In the ICRC consolidated report on undisclosed detention of April 2006, these persons are identified in annex as identities number 3, 4, 7, 11, 12, 18, 19, 22, 23, 24, 25, and 38.

7. Report of ICRC Washington on the ICRC Visit to Fourteen Newly Arrived “High Value” Internees in Guantanamo Bay Internment Facility 06 October to 11 October 2006, WAS 06/210, 31 October 2006.

8. ‘Solitary confinement’ is the confinement of a detainee and the partial (where the restriction is nevertheless severe) or complete denial of contact with other detainees and/or the outside world. While solitary confinement often implies other forms of restrictions it does not necessarily require them.

9. The ICRC does not have access to the initial interrogation plan and use of techniques approved by the CIA. It has been informed by the Director of the CIA, General W. Hayden, that the objective of the CIA detention program was focused exclusively on the holding of foreign nationals for the purpose of extracting intelligence information in relation to the fight against terrorism, as directed by President Bush. Gen. Hayden outlined that the initial interrogation plan for a detainee was drafted by the interrogation team and submitted to the CIA headquarters for approval. Currently (and this may always have been the case, although the ICRC is not aware), both the interrogation plan and specific use of techniques must be approved by the Director or Deputy Director of the CIA.

10. Health personnel is nevertheless a broader term and should be understood to include physicians, psychiatrists, psychologists, nurses and other para-health staff.

11. Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN 1982; International Code of Medical Ethics World Medical Association 1949 (amended 1983); Declaration of Tokyo, World Medical Association 1975; Regulations in times of armed conflict, World Medical Association 1956, amended 2004; Resolution on the responsibility of physicians in the denunciation of acts of torture or cruel or inhuman or degrading treatment of which they are aware, World Medical Association 2003; International Council of Nurses Position Statement on Torture, Death Penalty and Participation by Nurses in Executions, Revised 2006; International Council of Nurses Position Statement on Nurses’ Role in the Care of Detainees and Prisoners. Revised 2006; International Council of Nurses Position Statement on Nurses and Human Rights. Revised 2006;World Psychiatric Association Declaration of Madrid, Amended 2002.

12. UN Standard Minimum Rules for the Treatment of Prisoners, United Nations 1955; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UN General Assembly 1988.

13. Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN 1982.

14. Articles 71, 122, 126 of the Geneva Convention III (GC III); articles 25, 106, 107, 116, 138, 143 of the Geneva Convention III (GC IV).

15. Article 126 (2) GC III; article 143 (3) GC IV.

16. E.g. principles 16, 19 of the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment (1998); rule 37 of the Standard Minimum Rules for the Treatment of Prisoners (1977).

17. Enforced disappearance has been defined in article 2 of the Convention for the Protection of all Persons from Enforced Disappearance (2006): “enforced disappearance is considered to be the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”; as well as in the UN Declaration on the Protection of All Persons from Enforced Disappearance (1992): “enforced disappearances occur, in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government or by organized groups or private individuals, acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law”.

18. E.g. articles 21, 118 GC III; articles 42, 78 GC IV; common article 3 to the Geneva Conventions; article 9 (1) of the International Covenant on Civil and Political Rights (ICCPR, 1966).

19. Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).

20. The ICRC notes the remarks by General Hayden on 18 October 2006 that certain procedures would not be used in subsequent detention programs and the affirmation that common article 3 of the four Geneva Conventions applied as a matter of law to the treatment of any future CIA detention program. It was also indicated that the CIA did not intend to undertake detention of the duration previously used and that a significant reduction may be considered.

21. For an elaboration on the procedural principles and safeguards that should be applied as a minimum to all cases of deprivation of liberty for security reasons, please see the ICRC document entitled “Procedural principles and safeguards for interment/administrative detention in armed conflict and other situations of violence”, Jelena Pejic, International Review of the Red Cross, Vol. 87, number 858, pp. 375–391 (June 2005).

ANNEX 2

ICRC written interventions to the US authorities requesting information on the fourteen


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

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PART 1 OF 13 (The Taguba Report)

The Taguba Report

ARTICLE 15-6 INVESTIGATION OF THE 800th MILITARY POLICE BRIGADE

March 2004

Table of Contents

• References
• Background
• Assessment of DoD Counter-Terrorism Interrogation and Detention Operations In Iraq (MG Miller’s Assessment)
• IO Comments on MG Miller’s Assessment
• Report on Detention and Corrections In Iraq (MG Ryder’s Report)
• IO Comments on MG Ryder’s Report
• Preliminary Investigative Actions
• Findings and Recommendations
• Part One (Detainee Abuse)
o Findings
o Recommendations
• Part Two (Escapes and Accountability)
o Findings
o Recommendations
• Part Three (Command Climate, Etc…)
o Findings
o Recommendations
• Other Findings/Observations
• Conclusion
• Annexes

References

1. Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949

2. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, 12 August 1949

3. Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949

4. Geneva Convention Protocol Relative to the Status of Refugees, 1967

5. Geneva Convention Relative to the Status of Refugees, 1951

6. Geneva Convention for the Protection of War Victims, 12 August 1949

7. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949

8. DOD Directive 5100.69, “DOD Program for Prisoners of War and other Detainees,” 27 December 1972

9. DOD Directive 5100.77 “DOD Law of War Program,” 10 July 1979

10. STANAG No. 2044, Procedures for Dealing with Prisoners of War (PW) (Edition 5), 28 June 1994

11. STANAG No. 2033, Interrogation of Prisoners of War (PW) (Edition 6), 6 December 1994

12. AR 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees, and Other Detainees, 1 October 1997

13. AR 190-47, The Army Corrections System, 15 August 1996

14. AR 190-14, Carrying of Firearms and Use of Force for Law Enforcement and Security Duties, 12 March 1993

15. AR 195-5, Evidence Procedures, 28 August 1992

16. AR 190-11, Physical Security of Arms, Ammunition and Explosives, 12 February 1998

17. AR 190-12, Military Police Working Dogs, 30 September 1993

18. AR 190-13, The Army Physical Security Program, 30 September 1993

19. AR 380-67, Personnel Security Program, 9 September 1988

20. AR 380-5, Department of the Army Information Security, 31 September 2000

21. AR 670-1, Wear and Appearance of Army Uniforms and Insignia, 5 September 2003

22. AR 190-40, Serious Incident Report, 30 November 1993

23. AR 15-6, Procedures for Investigating Officers and Boards of Officers, 11 May 1988

24. AR 27-10, Military Justice, 6 September 2002

25. AR 635-200, Enlisted Personnel, 1 November 2000

26. AR 600-8-24, Officer Transfers and Discharges, 29 June 2002

27. AR 500-5, Army Mobilization, 6 July 1996

28. AR 600-20, Army Command Policy, 13 May 2002

29. AR 623-105, Officer Evaluation Reports, 1 April 1998

30. AR 175-9, Contractors Accompanying the Force, 29 October 1999

31. FM 3-19.40, Military Police Internment/Resettlement Operations, 1 August 2001

32. FM 3-19.1, Military Police Operations, 22 March 2001

33. FM 3-19.4, Military Police Leaders' Handbook, 4 March 2002

34. FM 3-05.30, Psychological Operations, 19 June 2000

35. FM 33-1-1, Psychological Operations Techniques and Procedures, 5 May 1994

36. FM 34-52, Intelligence Interrogation, 28 September 1992

37. FM 19-15, Civil Disturbances, 25 November 1985

38. FM 3-0, Operations, 14 June 2001

39. FM 101-5, Staff Organizations and Functions, 23 May 1984

40. FM 3-19.30, Physical Security, 8 January 2001

41. FM 3-21.5, Drill and Ceremonies, 7 July 2003

42. ARTEP 19-546-30 MTP, Mission Training Plan for Military Police Battalion (IR)

43. ARTEP 19-667-30 MTP, Mission Training Plan for Military Police Guard Company

44. ARTEP 19-647-30 MTP, Mission Training Plan for Military Police Escort Guard Company

45. STP 19-95B1-SM, Soldier’s Manual, MOS 95B, Military Police, Skill Level 1, 6 August 2002

46. STP 19-95C14-SM-TG, Soldier’s Manual and Trainer’s Guide for MOS 95C Internment/Resettlement Specialist, Skill Levels 1/2/3/4, 26 March 1999

47. STP 19-95C1-SM MOS 95C, Corrections Specialist, Skill Level 1, Soldier's Manual, 30 September 2003

48. STP 19-95C24-SM-TG MOS 95C, Corrections Specialist, Skill Levels 2/3/4, Soldier's Manual and Trainer's Guide, 30 September 2003

49. Assessment of DOD Counter-Terrorism Interrogation and Detention Operations in Iraq, (MG Geoffrey D. Miller, Commander JTF-GTMO, Guantanamo Bay, Cuba), 9 September 2003

50. Assessment of Detention and Corrections Operations in Iraq, (MG Donald J. Ryder, Provost Marshal General), 6 November 2003

51. CJTF-7 FRAGO #1108, Subject: includes- para 3.C.8 & 3.C.8.A.1, Assignment of 205 MI BDE CDR Responsibilities for the Baghdad Central Confinement Facility (BCCF), 19 November 2003

52. CJTF-7 FRAGO #749, Subject: Intelligence and Evidence-Led Detention Operations Relating to Detainees, 24 August 2003

53. 800th MP BDE FRAGO # 89, Subject: Rules of Engagement, 26 December 2003

54. CG CJTF-7 Memo: CJTF-7 Interrogation and Counter-Resistance Policy, 12 October 2003

55. CG CJTF-7 Memo: Dignity and Respect While Conducting Operations, 13 December 2003

56. Uniform Code of Military Justice and Manual for Courts Martial, 2002 Edition

BACKGROUND

1. (U) On 19 January 2004, Lieutenant General (LTG) Ricardo S. Sanchez, Commander, Combined Joint Task Force Seven (CJTF-7) requested that the Commander, US Central Command, appoint an Investigating Officer (IO) in the grade of Major General (MG) or above to investigate the conduct of operations within the 800th Military Police (MP) Brigade. LTG Sanchez requested an investigation of detention and internment operations by the Brigade from 1 November 2003 to present. LTG Sanchez cited recent reports of detainee abuse, escapes from confinement facilities, and accountability lapses, which indicated systemic problems within the brigade and suggested a lack of clear standards, proficiency, and leadership. LTG Sanchez requested a comprehensive and all-encompassing inquiry to make findings and recommendations concerning the fitness and performance of the 800th MP Brigade. (ANNEX 2)

2. (U) On 24 January 2003, the Chief of Staff of US Central Command (CENTCOM), MG R. Steven Whitcomb, on behalf of the CENTCOM Commander, directed that the Commander, Coalition Forces Land Component Command (CFLCC), LTG David D. McKiernan, conduct an investigation into the 800th MP Brigade’s detention and internment operations from 1 November 2003 to present. CENTCOM directed that the investigation should inquire into all facts and circumstances surrounding recent reports of suspected detainee abuse in Iraq. It also directed that the investigation inquire into detainee escapes and accountability lapses as reported by CJTF-7, and to gain a more comprehensive and all-encompassing inquiry into the fitness and performance of the 800th MP Brigade. (ANNEX 3)

3. (U) On 31 January 2004, the Commander, CFLCC, appointed MG Antonio M. Taguba, Deputy Commanding General Support, CFLCC, to conduct this investigation. MG Taguba was directed to conduct an informal investigation under AR 15-6 into the 800th MP Brigade’s detention and internment operations. Specifically, MG Taguba was tasked to:

a. (U) Inquire into all the facts and circumstances surrounding recent allegations of detainee abuse, specifically allegations of maltreatment at the Abu Ghraib Prison (Baghdad Central Confinement Facility (BCCF));

b. (U) Inquire into detainee escapes and accountability lapses as reported by CJTF-7, specifically allegations concerning these events at the Abu Ghraib Prison;

c. (U) Investigate the training, standards, employment, command policies, internal procedures, and command climate in the 800th MP Brigade, as appropriate;

d. (U) Make specific findings of fact concerning all aspects of the investigation, and make any recommendations for corrective action, as appropriate. (ANNEX 4)

4. (U) LTG Sanchez’s request to investigate the 800th MP Brigade followed the initiation of a criminal investigation by the US Army Criminal Investigation Command (USACIDC) into specific allegations of detainee abuse committed by members of the 372nd MP Company, 320th MP Battalion in Iraq. These units are part of the 800th MP Brigade. The Brigade is an Iraq Theater asset, TACON to CJTF-7, but OPCON to CFLCC at the time this investigation was initiated. In addition, CJTF-7 had several reports of detainee escapes from US/Coalition Confinement Facilities in Iraq over the past several months. These include Camp Bucca, Camp Ashraf, Abu Ghraib, and the High Value Detainee (HVD) Complex/Camp Cropper. The 800th MP Brigade operated these facilities. In addition, four Soldiers from the 320th MP Battalion had been formally charged under the Uniform Code of Military Justice (UCMJ) with detainee abuse in May 2003 at the Theater Internment Facility (TIF) at Camp Bucca, Iraq. (ANNEXES 5-18, 34 and 35)

5. (U) I began assembling my investigation team prior to the actual appointment by the CFLCC Commander. I assembled subject matter experts from the CFLCC Provost Marshal (PM) and the CFLCC Staff Judge Advocate (SJA). I selected COL Kinard J. La Fate, CFLCC Provost Marshal to be my Deputy for this investigation. I also contacted the Provost Marshal General of the Army, MG Donald J. Ryder, to enlist the support of MP subject matter experts in the areas of detention and internment operations. (ANNEXES 4 and 19)

6. (U) The Investigating Team also reviewed the Assessment of DoD Counter-Terrorism Interrogation and Detention Operations in Iraq conducted by MG Geoffrey D. Miller, Commander, Joint Task Force Guantanamo (JTF-GTMO). From 31 August to 9 September 2003, MG Miller led a team of personnel experienced in strategic interrogation to HQ, CJTF-7 and the Iraqi Survey Group (ISG) to review current Iraqi Theater ability to rapidly exploit internees for actionable intelligence. MG Miller’s team focused on three areas: intelligence integration, synchronization, and fusion; interrogation operations; and detention operations. MG Miller’s team used JTF-GTMO procedures and interrogation authorities as baselines. (ANNEX 20)

7. (U) The Investigating Team began its inquiry with an in-depth analysis of the Report on Detention and Corrections in Iraq, dated 5 November 2003, conducted by MG Ryder and a team of military police, legal, medical, and automation experts. The CJTF-7 Commander, LTG Sanchez, had previously requested a team of subject matter experts to assess, and make specific recommendations concerning detention and corrections operations. From 13 October to 6 November 2003, MG Ryder personally led this assessment/assistance team in Iraq. (ANNEX 19)

ASSESSMENT OF DoD COUNTER-TERRORISM INTERROGATION AND DETENTION OPERATIONS IN IRAQ (MG MILLER’S ASSESSMENT)

1. (S/NF) The principal focus of MG Miller’s team was on the strategic interrogation of detainees/internees in Iraq. Among its conclusions in its Executive Summary were that CJTF-7 did not have authorities and procedures in place to affect a unified strategy to detain, interrogate, and report information from detainees/internees in Iraq. The Executive Summary also stated that detention operations must act as an enabler for interrogation. (ANNEX 20)

2. (S/NF) With respect to interrogation, MG Miller’s Team recommended that CJTF-7 dedicate and train a detention guard force subordinate to the Joint Interrogation Debriefing Center (JIDC) Commander that “sets the conditions for the successful interrogation and exploitation of internees/detainees.” Regarding Detention Operations, MG Miller’s team stated that the function of Detention Operations is to provide a safe, secure, and humane environment that supports the expeditious collection of intelligence. However, it also stated “it is essential that the guard force be actively engaged in setting the conditions for successful exploitation of the internees.” (ANNEX 20)

3. (S/NF) MG Miller’s team also concluded that Joint Strategic Interrogation Operations (within CJTF-7) are hampered by lack of active control of the internees within the detention environment. The Miller Team also stated that establishment of the Theater Joint Interrogation and Detention Center (JIDC) at Abu Ghraib (BCCF) will consolidate both detention and strategic interrogation operations and result in synergy between MP and MI resources and an integrated, synchronized, and focused strategic interrogation effort. (ANNEX 20)

4. (S/NF) MG Miller’s team also observed that the application of emerging strategic interrogation strategies and techniques contain new approaches and operational art. The Miller Team also concluded that a legal review and recommendations on internee interrogation operations by a dedicated Command Judge Advocate is required to maximize interrogation effectiveness. (ANNEX 20)

IO COMMENTS ON MG MILLER’S ASSESSMENT

1. (S/NF) MG Miller’s team recognized that they were using JTF-GTMO operational procedures and interrogation authorities as baselines for its observations and recommendations. There is a strong argument that the intelligence value of detainees held at JTF-Guantanamo (GTMO) is different than that of the detainees/internees held at Abu Ghraib (BCCF) and other detention facilities in Iraq. Currently, there are a large number of Iraqi criminals held at Abu Ghraib (BCCF). These are not believed to be international terrorists or members of Al Qaida, Anser Al Islam, Taliban, and other international terrorist organizations. (ANNEX 20)

2. (S/NF) The recommendations of MG Miller’s team that the “guard force” be actively engaged in setting the conditions for successful exploitation of the internees would appear to be in conflict with the recommendations of MG Ryder’s Team and AR 190-8 that military police “do not participate in military intelligence supervised interrogation sessions.” The Ryder Report concluded that the OEF template whereby military police actively set the favorable conditions for subsequent interviews runs counter to the smooth operation of a detention facility. (ANNEX 20)

REPORT ON DETENTION AND CORRECTIONS IN IRAQ (MG RYDER’S REPORT)

1. (U) MG Ryder and his assessment team conducted a comprehensive review of the entire detainee and corrections system in Iraq and provided recommendations addressing each of the following areas as requested by the Commander CJTF-7:

a. (U) Detainee and corrections system management

b. (U) Detainee management, including detainee movement, segregation, and accountability

c. (U) Means of command and control of the detention and corrections system

d. (U) Integration of military detention and corrections with the Coalition Provisional Authority (CPA) and adequacy of plans for transition to an Iraqi-run corrections system

e. (U) Detainee medical care and health management

f. (U) Detention facilities that meet required health, hygiene, and sanitation standards

g. (U) Court integration and docket management for criminal detainees

h. (U) Detainee legal processing

i. (U) Detainee databases and records, including integration with law enforcement and court databases (ANNEX 19)

2. (U) Many of the findings and recommendations of MG Ryder’s team are beyond the scope of this investigation. However, several important findings are clearly relevant to this inquiry and are summarized below (emphasis is added in certain areas):

A. (U) Detainee Management (including movement, segregation, and accountability)

1. (U) There is a wide variance in standards and approaches at the various detention facilities. Several Division/Brigade collection points and US monitored Iraqi prisons had flawed or insufficiently detailed use of force and other standing operating procedures or policies (e.g. weapons in the facility, improper restraint techniques, detainee management, etc.) Though, there were no military police units purposely applying inappropriate confinement practices. (ANNEX 19)

2. (U) Currently, due to lack of adequate Iraqi facilities, Iraqi criminals (generally Iraqi-on-Iraqi crimes) are detained with security internees (generally Iraqi-on-Coalition offenses) and EPWs in the same facilities, though segregated in different cells/compounds. (ANNEX 19)

3. (U) The management of multiple disparate groups of detained people in a single location by members of the same unit invites confusion about handling, processing, and treatment, and typically facilitates the transfer of information between different categories of detainees. (ANNEX 19)

4. (U) The 800th MP (I/R) units did not receive Internment/Resettlement (I/R) and corrections specific training during their mobilization period. Corrections training is only on the METL of two MP (I/R) Confinement Battalions throughout the Army, one currently serving in Afghanistan, and elements of the other are at Camp Arifjan, Kuwait. MP units supporting JTF-GTMO received ten days of training in detention facility operations, to include two days of unarmed self-defense, training in interpersonal communication skills, forced cell moves, and correctional officer safety. (ANNEX 19)

B. (U) Means of Command and Control of the Detention and Corrections System

1. (U) The 800th MP Brigade was originally task organized with eight MP(I/R) Battalions consisting of both MP Guard and Combat Support companies. Due to force rotation plans, the 800th redeployed two Battalion HHCs in December 2003, the 115th MP Battalion and the 324th MP Battalion. In December 2003, the 400th MP Battalion was relieved of its mission and redeployed in January 2004. The 724thMP Battalion redeployed on 11 February 2004 and the remainder is scheduled to redeploy in March and April 2004. They are the 310th MP Battalion, 320th MP Battalion, 530th MP Battalion, and 744th MP Battalion. The units that remain are generally understrength, as Reserve Component units do not have an individual personnel replacement system to mitigate medical losses or the departure of individual Soldiers that have reached 24 months of Federal active duty in a five-year period. (ANNEX 19)

2. (U) The 800thMP Brigade (I/R) is currently a CFLCC asset, TACON to CJTF-7 to conduct Internment/Resettlement (I/R) operations in Iraq. All detention operations are conducted in the CJTF-7 AO; Camps Ganci, Vigilant, Bucca, TSP Whitford, and a separate High Value Detention (HVD) site. (ANNEX 19)

3. (U) The 800th MP Brigade has experienced challenges adapting its task organizational structure, training, and equipment resources from a unit designed to conduct standard EPW operations in the COMMZ (Kuwait). Further, the doctrinally trained MP Soldier-to-detainee population ratio and facility layout templates are predicated on a compliant, self-disciplining EPW population, and not criminals or high-risk security internees. (ANNEX 19)

4. (U) EPWs and Civilian Internees should receive the full protections of the Geneva Conventions, unless the denial of these protections is due to specifically articulated military necessity (e.g., no visitation to preclude the direction of insurgency operations). (ANNEXES 19 and 24)

5. (U) AR 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees, and other Detainees, FM 3-19.40, Military Police Internment and Resettlement Operations, and FM 34-52, Intelligence Interrogations, require military police to provide an area for intelligence collection efforts within EPW facilities. Military Police, though adept at passive collection of intelligence within a facility, do not participate in Military Intelligence supervised interrogation sessions. Recent intelligence collection in support of Operation Enduring Freedom posited a template whereby military police actively set favorable conditions for subsequent interviews. Such actions generally run counter to the smooth operation of a detention facility, attempting to maintain its population in a compliant and docile state. The 800th MP Brigade has not been directed to change its facility procedures to set the conditions for MI interrogations, nor participate in those interrogations. (ANNEXES 19 and 21-23)

6. MG Ryder’s Report also made the following, inter alia, near-term and mid-term recommendations regarding the command and control of detainees:

a. (U) Align the release process for security internees with DoD Policy. The process of screening security internees should include intelligence findings, interrogation results, and current threat assessment.

b. (U) Determine the scope of intelligence collection that will occur at Camp Vigilant. Refurbish the Northeast Compound to separate the screening operation from the Iraqi run Baghdad Central Correctional Facility. Establish procedures that define the role of military police Soldiers securing the compound, clearly separating the actions of the guards from those of the military intelligence personnel.

c. (U) Consolidate all Security Internee Operations, except the MEK security mission, under a single Military Police Brigade Headquarters for OIF 2.

d. (U) Insist that all units identified to rotate into the Iraqi Theater of Operations (ITO) to conduct internment and confinement operations in support of OIF 2 be organic to CJTF-7. (ANNEX 19)

IO COMMENTS REGARDING MG RYDER’S REPORT

1. (U) The objective of MG Ryder’s Team was to observe detention and prison operations, identify potential systemic and human rights issues, and provide near-term, mid-term, and long-term recommendations to improve CJTF-7 operations and transition of the Iraqi prison system from US military control/oversight to the Coalition Provisional Authority and eventually to the Iraqi Government. The Findings and Recommendations of MG Ryder’s Team are thorough and precise and should be implemented immediately. (ANNEX 19)

2. (U) Unfortunately, many of the systemic problems that surfaced during MG Ryder’s Team’s assessment are the very same issues that are the subject of this investigation. In fact, many of the abuses suffered by detainees occurred during, or near to, the time of that assessment. As will be pointed out in detail in subsequent portions of this report, I disagree with the conclusion of MG Ryder’s Team in one critical aspect, that being its conclusion that the 800th MP Brigade had not been asked to change its facility procedures to set the conditions for MI interviews. While clearly the 800th MP Brigade and its commanders were not tasked to set conditions for detainees for subsequent MI interrogations, it is obvious from a review of comprehensive CID interviews of suspects and witnesses that this was done at lower levels. (ANNEX 19)

3. (U) I concur fully with MG Ryder’s conclusion regarding the effect of AR 190-8. Military Police, though adept at passive collection of intelligence within a facility, should not participate in Military Intelligence supervised interrogation sessions. Moreover, Military Police should not be involved with setting “favorable conditions” for subsequent interviews. These actions, as will be outlined in this investigation, clearly run counter to the smooth operation of a detention facility. (ANNEX 19)

PRELIMINARY INVESTIGATIVE ACTIONS

1. (U) Following our review of MG Ryder’s Report and MG Miller’s Report, my investigation team immediately began an in-depth review of all available documents regarding the 800th MP Brigade. We reviewed in detail the voluminous CID investigation regarding alleged detainee abuses at detention facilities in Iraq, particularly the Abu Ghraib (BCCF) Detention Facility. We analyzed approximately fifty witness statements from military police and military intelligence personnel, potential suspects, and detainees. We reviewed numerous photos and videos of actual detainee abuse taken by detention facility personnel, which are now in the custody and control of the US Army Criminal Investigation Command and the CJTF-7 prosecution team. The photos and videos are not contained in this investigation. We obtained copies of the 800th MP Brigade roster, rating chain, and assorted internal investigations and disciplinary actions involving that command for the past several months. (All ANNEXES Reviewed by Investigation Team)

2. (U) In addition to military police and legal officers from the CFLCC PMO and SJA Offices we also obtained the services of two individuals who are experts in military police detention practices and training. These were LTC Timothy Weathersbee, Commander, 705th MP Battalion, United States Disciplinary Barracks, Fort Leavenworth, and SFC Edward Baldwin, Senior Corrections Advisor, US Army Military Police School, Fort Leonard Wood. I also requested and received the services of Col (Dr) Henry Nelson, a trained US Air Force psychiatrist assigned to assist my investigation team. (ANNEX 4)

3. (U) In addition to MG Ryder’s and MG Miller’s Reports, the team reviewed numerous reference materials including the 12 October 2003 CJTF-7 Interrogation and Counter-Resistance Policy, the AR 15-6 Investigation on Riot and Shootings at Abu Ghraib on 24 November 2003, the 205thMI Brigade’s Interrogation Rules of Engagement (IROE), facility staff logs/journals and numerous records of AR 15-6 investigations and Serious Incident Reports (SIRs) on detainee escapes/shootings and disciplinary matters from the 800th MP Brigade. (ANNEXES 5-20, 37, 93, and 94)

4. (U) On 2 February 2004, I took my team to Baghdad for a one-day inspection of the Abu Ghraib Prison (BCCF) and the High Value Detainee (HVD) Complex in order to become familiar with those facilities. We also met with COL Jerry Mocello, Commander, 3rd MP Criminal Investigation Group (CID), COL Dave Quantock, Commander, 16th MP Brigade, COL Dave Phillips, Commander, 89th MP Brigade, and COL Ed Sannwaldt, CJTF-7 Provost Marshal. On 7 February 2004, the team visited the Camp Bucca Detention Facility to familiarize itself with the facility and operating structure. In addition, on 6 and 7 February 2004, at Camp Doha, Kuwait, we conducted extensive training sessions on approved detention practices. We continued our preparation by reviewing the ongoing CID investigation and were briefed by the Special Agent in Charge, CW2 Paul Arthur. We refreshed ourselves on the applicable reference materials within each team member’s area of expertise, and practiced investigative techniques. I met with the team on numerous occasions to finalize appropriate witness lists, review existing witness statements, arrange logistics, and collect potential evidence. We also coordinated with CJTF-7 to arrange witness attendance, force protection measures, and general logistics for the team’s move to Baghdad on 8 February 2004. (ANNEXES 4 and 25)

5. (U) At the same time, due to the Transfer of Authority on 1 February 2004 between III Corps and V Corps, and the upcoming demobilization of the 800th MP Brigade Command, I directed that several critical witnesses who were preparing to leave the theater remain at Camp Arifjan, Kuwait until they could be interviewed (ANNEX 29). My team deployed to Baghdad on 8 February 2004 and conducted a series of interviews with a variety of witnesses (ANNEX 30). We returned to Camp Doha, Kuwait on 13 February 2004. On 14 and 15 February we interviewed a number of witnesses from the 800th MP Brigade. On 17 February we returned to Camp Bucca, Iraq to complete interviews of witnesses at that location. From 18 February thru 28 February we collected documents, compiled references, did follow-up interviews, and completed a detailed analysis of the volumes of materials accumulated throughout our investigation. On 29 February we finalized our executive summary and out-briefing slides. On 9 March we submitted the AR 15-6 written report with findings and recommendations to the CFLCC Deputy SJA, LTC Mark Johnson, for a legal sufficiency review. The out-brief to the appointing authority, LTG McKiernan, took place on 3 March 2004. (ANNEXES 26 and 45-91)

FINDINGS AND RECOMMENDATIONS (PART ONE)

(U) The investigation should inquire into all of the facts and circumstances surrounding recent allegations of detainee abuse, specifically, allegations of maltreatment at the Abu Ghraib Prison (Baghdad Central Confinement Facility).

1. (U) The US Army Criminal Investigation Command (CID), led by COL Jerry Mocello, and a team of highly trained professional agents have done a superb job of investigating several complex and extremely disturbing incidents of detainee abuse at the Abu Ghraib Prison. They conducted over 50 interviews of witnesses, potential criminal suspects, and detainees. They also uncovered numerous photos and videos portraying in graphic detail detainee abuse by Military Police personnel on numerous occasions from October to December 2003. Several potential suspects rendered full and complete confessions regarding their personal involvement and the involvement of fellow Soldiers in this abuse. Several potential suspects invoked their rights under Article 31 of the Uniform Code of Military Justice (UCMJ) and the 5th Amendment of the U.S. Constitution. (ANNEX 25)

2. (U) In addition to a comprehensive and exhaustive review of all of these statements and documentary evidence, we also interviewed numerous officers, NCOs, and junior enlisted Soldiers in the 800th MP Brigade, as well as members of the 205th Military Intelligence Brigade working at the prison. We did not believe it was necessary to re-interview all the numerous witnesses who had previously provided comprehensive statements to CID, and I have adopted those statements for the purposes of this investigation. (ANNEXES 26, 34, 35, and 45-91)

REGARDING PART ONE OF THE INVESTIGATION, I MAKE THE FOLLOWING SPECIFIC FINDINGS OF FACT:

1. (U) That Forward Operating Base (FOB) Abu Ghraib (BCCF) provides security of both criminal and security detainees at the Baghdad Central Correctional Facility, facilitates the conducting of interrogations for CJTF-7, supports other CPA operations at the prison, and enhances the force protection/quality of life of Soldiers assigned in order to ensure the success of ongoing operations to secure a free Iraq. (ANNEX 31)

2. (U) That the Commander, 205th Military Intelligence Brigade, was designated by CJTF-7 as the Commander of FOB Abu Ghraib (BCCF) effective 19 November 2003. That the 205th MI Brigade conducts operational and strategic interrogations for CJTF-7. That from 19 November 2003 until Transfer of Authority (TOA) on 6 February 2004, COL Thomas M. Pappas was the Commander of the 205th MI Brigade and the Commander of FOB Abu Ghraib (BCCF). (ANNEX 31)

3. (U) That the 320th Military Police Battalion of the 800th MP Brigade is responsible for the Guard Force at Camp Ganci, Camp Vigilant, & Cellblock 1 of FOB Abu Ghraib (BCCF). That from February 2003 to until he was suspended from his duties on 17 January 2004, LTC Jerry Phillabaum served as the Battalion Commander of the 320th MP Battalion. That from December 2002 until he was suspended from his duties, on 17 January 2004, CPT Donald Reese served as the Company Commander of the 372ndMP Company, which was in charge of guarding detainees at FOB Abu Ghraib. I further find that both the 320th MP Battalion and the 372ndMP Company were located within the confines of FOB Abu Ghraib. (ANNEXES 32 and 45)

4. (U) That from July of 2003 to the present, BG Janis L. Karpinski was the Commander of the 800th MP Brigade. (ANNEX 45)

5. (S) That between October and December 2003, at the Abu Ghraib Confinement Facility (BCCF), numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees. This systemic and illegal abuse of detainees was intentionally perpetrated by several members of the military police guard force (372nd Military Police Company, 320thMilitary Police Battalion, 800th MP Brigade), in Tier (section) 1-A of the Abu Ghraib Prison (BCCF). The allegations of abuse were substantiated by detailed witness statements (ANNEX 26) and the discovery of extremely graphic photographic evidence. Due to the extremely sensitive nature of these photographs and videos, the ongoing CID investigation, and the potential for the criminal prosecution of several suspects, the photographic evidence is not included in the body of my investigation. The pictures and videos are available from the Criminal Investigative Command and the CTJF-7 prosecution team. In addition to the aforementioned crimes, there were also abuses committed by members of the 325th MI Battalion, 205th MI Brigade, and Joint Interrogation and Debriefing Center (JIDC). Specifically, on 24 November 2003, SPC Luciana Spencer, 205th MI Brigade, sought to degrade a detainee by having him strip and returned to cell naked. (ANNEXES 26 and 53)

6. (S) I find that the intentional abuse of detainees by military police personnel included the following acts:

a. (S) Punching, slapping, and kicking detainees; jumping on their naked feet;

b. (S) Videotaping and photographing naked male and female detainees;

c. (S) Forcibly arranging detainees in various sexually explicit positions for photographing;

d. (S) Forcing detainees to remove their clothing and keeping them naked for several days at a time;

e. (S) Forcing naked male detainees to wear women’s underwear;

f. (S) Forcing groups of male detainees to masturbate themselves while being photographed and videotaped;

g. (S) Arranging naked male detainees in a pile and then jumping on them;

h. (S) Positioning a naked detainee on a MRE Box, with a sandbag on his head, and attaching wires to his fingers, toes, and penis to simulate electric torture;

i. (S) Writing “I am a Rapest” (sic) on the leg of a detainee alleged to have forcibly raped a 15-year old fellow detainee, and then photographing him naked;

j. (S) Placing a dog chain or strap around a naked detainee’s neck and having a female Soldier pose for a picture;

k. (S) A male MP guard having sex with a female detainee;

l. (S) Using military working dogs (without muzzles) to intimidate and frighten detainees, and in at least one case biting and severely injuring a detainee;

m. (S) Taking photographs of dead Iraqi detainees.

7.(U) These findings are amply supported by written confessions provided by several of the suspects, written statements provided by detainees, and witness statements. In reaching my findings, I have carefully considered the pre-existing statements of the following witnesses and suspects (ANNEX 26):

a. (U) SPC Jeremy Sivits, 372nd MP Company - Suspect

b. (U) SPC Sabrina Harman, 372nd MP Company – Suspect

c. (U) SGT Javal S. Davis, 372nd MP Company - Suspect

c. (U) PFC Lynndie R. England, 372nd MP Company - Suspect

d. (U) Adel Nakhla, Civilian Translator, Titan Corp., Assigned to the 205th MI Brigade- Suspect

e. (U) Adel Nakhla, Civilian Translator, Titan Corp., Assigned to the 205th MI Brigade -- Suspect

f. (U) SPC Joseph M. Darby, 372nd MP Company

g. (U) SGT Neil A. Wallin, 109th Area Support Medical Battalion

h. (U) SGT Samuel Jefferson Provance, 302nd MI Battalion

i. (U) Torin S. Nelson, Contractor, Titan Corp., Assigned to the 205th MI Brigade

j. (U) CPL Matthew Scott Bolanger, 372nd MP Company

k. (U) SPC Mathew C. Wisdom, 372nd MP Company

l. (U) SSG Reuben R. Layton, Medic, 109th Medical Detachment

m. (U) SPC John V. Polak, 229th MP Company

8. (U) In addition, several detainees also described the following acts of abuse, which under the circumstances, I find credible based on the clarity of their statements and supporting evidence provided by other witnesses (ANNEX 26):

a. (U) Breaking chemical lights and pouring the phosphoric liquid on detainees;

b. (U) Threatening detainees with a charged 9mm pistol;

c. (U) Pouring cold water on naked detainees;

d. (U) Beating detainees with a broom handle and a chair;

e. (U) Threatening male detainees with rape;

f. (U) Allowing a military police guard to stitch the wound of a detainee who was injured after being slammed against the wall in his cell;

g. (U) Sodomizing a detainee with a chemical light and perhaps a broom stick.

h. (U) Using military working dogs to frighten and intimidate detainees with threats of attack, and in one instance actually biting a detainee.

9. (U) I have carefully considered the statements provided by the following detainees, which under the circumstances I find credible based on the clarity of their statements and supporting evidence provided by other witnesses:

a. (U) Amjed Isail Waleed, Detainee # 151365

b. (U) Hiadar Saber Abed Miktub-Aboodi, Detainee # 13077

c. (U) Huessin Mohssein Al-Zayiadi, Detainee # 19446

d. (U) Kasim Mehaddi Hilas, Detainee # 151108

e. (U) Mohanded Juma Juma (sic), Detainee # 152307

f. (U) Mustafa Jassim Mustafa, Detainee # 150542

g. (U) Shalan Said Alsharoni, Detainee, # 150422

h. (U) Abd Alwhab Youss, Detainee # 150425

i. (U) Asad Hamza Hanfosh, Detainee # 152529

j. (U) Nori Samir Gunbar Al-Yasseri, Detainee # 7787

k. (U) Thaar Salman Dawod, Detainee # 150427

l. (U) Ameen Sa’eed Al-Sheikh, Detainee # 151362

m. (U) Abdou Hussain Saad Faleh, Detainee # 18470 (ANNEX 26)

10. (U) I find that contrary to the provision of AR 190-8, and the findings found in MG Ryder’s Report, Military Intelligence (MI) interrogators and Other US Government Agency’s (OGA) interrogators actively requested that MP guards set physical and mental conditions for favorable interrogation of witnesses. Contrary to the findings of MG Ryder’s Report, I find that personnel assigned to the 372ndMP Company, 800th MP Brigade were directed to change facility procedures to “set the conditions” for MI interrogations. I find no direct evidence that MP personnel actually participated in those MI interrogations. (ANNEXES 19, 21, 25, and 26).

11. (U) I reach this finding based on the actual proven abuse that I find was inflicted on detainees and by the following witness statements. (ANNEXES 25 and 26):

a. (U) SPC Sabrina Harman, 372nd MP Company, stated in her sworn statement regarding the incident where a detainee was placed on a box with wires attached to his fingers, toes, and penis, “that her job was to keep detainees awake.” She stated that MI was talking to CPL Grainer. She stated: “MI wanted to get them to talk. It is Grainer and Frederick’s job to do things for MI and OGA to get these people to talk.”

b. (U) SGT Javal S. Davis, 372nd MP Company, stated in his sworn statement as follows: “I witnessed prisoners in the MI hold section, wing 1A being made to do various things that I would question morally. In Wing 1A we were told that they had different rules and different SOP for treatment. I never saw a set of rules or SOP for that section just word of mouth. The Soldier in charge of 1A was Corporal Granier. He stated that the Agents and MI Soldiers would ask him to do things, but nothing was ever in writing he would complain (sic).” When asked why the rules in 1A/1B were different than the rest of the wings, SGT Davis stated: “The rest of the wings are regular prisoners and 1A/B are Military Intelligence (MI) holds.” When asked why he did not inform his chain of command about this abuse, SGT Davis stated: “ Because I assumed that if they were doing things out of the ordinary or outside the guidelines, someone would have said something. Also the wing belongs to MI and it appeared MI personnel approved of the abuse.” SGT Davis also stated that he had heard MI insinuate to the guards to abuse the inmates. When asked what MI said he stated: “Loosen this guy up for us.” Make sure he has a bad night.” “Make sure he gets the treatment.” He claimed these comments were made to CPL Granier and SSG Frederick. Finally, SGT Davis stated that (sic): “the MI staffs to my understanding have been giving Granier compliments on the way he has been handling the MI holds. Example being statements like, “Good job, they’re breaking down real fast. They answer every question. They’re giving out good information, Finally, and Keep up the good work . Stuff like that.”

c. (U) SPC Jason Kennel, 372nd MP Company, was asked if he were present when any detainees were abused. He stated: “I saw them nude, but MI would tell us to take away their mattresses, sheets, and clothes.” He could not recall who in MI had instructed him to do this, but commented that, “if they wanted me to do that they needed to give me paperwork.” He was later informed that “we could not do anything to embarrass the prisoners.”

d. (U) Mr. Adel L. Nakhla, a US civilian contract translator was questioned about several detainees accused of rape. He observed (sic): “They (detainees) were all naked, a bunch of people from MI, the MP were there that night and the inmates were ordered by SGT Granier and SGT Frederick ordered the guys while questioning them to admit what they did. They made them do strange exercises by sliding on their stomach, jump up and down, throw water on them and made them some wet, called them all kinds of names such as “gays” do they like to make love to guys, then they handcuffed their hands together and their legs with shackles and started to stack them on top of each other by insuring that the bottom guys penis will touch the guy on tops butt.”

e. (U) SPC Neil A Wallin, 109th Area Support Medical Battalion, a medic testified that: “Cell 1A was used to house high priority detainees and cell 1B was used to house the high risk or trouble making detainees. During my tour at the prison I observed that when the male detainees were first brought to the facility, some of them were made to wear female underwear, which I think was to somehow break them down.”

12. (U) I find that prior to its deployment to Iraq for Operation Iraqi Freedom, the 320th MP Battalion and the 372nd MP Company had received no training in detention/internee operations. I also find that very little instruction or training was provided to MP personnel on the applicable rules of the Geneva Convention Relative to the Treatment of Prisoners of War, FM 27-10, AR 190-8, or FM 3-19.40. Moreover, I find that few, if any, copies of the Geneva Conventions were ever made available to MP personnel or detainees. (ANNEXES 21-24, 33, and multiple witness statements)

13.(U) Another obvious example of the Brigade Leadership not communicating with its Soldiers or ensuring their tactical proficiency concerns the incident of detainee abuse that occurred at Camp Bucca, Iraq, on May 12, 2003. Soldiers from the 223rd MP Company reported to the 800th MP Brigade Command at Camp Bucca, that four Military Police Soldiers from the 320th MP Battalion had abused a number of detainees during inprocessing at Camp Bucca. An extensive CID investigation determined that four soldiers from the 320th MP Battalion had kicked and beaten these detainees following a transport mission from Talil Air Base. (ANNEXES 34 and 35)

14. (U) Formal charges under the UCMJ were preferred against these Soldiers and an Article-32 Investigation conducted by LTC Gentry. He recommended a general court martial for the four accused, which BG Karpinski supported. Despite this documented abuse, there is no evidence that BG Karpinski ever attempted to remind 800th MP Soldiers of the requirements of the Geneva Conventions regarding detainee treatment or took any steps to ensure that such abuse was not repeated. Nor is there any evidence that LTC(P) Phillabaum, the commander of the Soldiers involved in the Camp Bucca abuse incident, took any initiative to ensure his Soldiers were properly trained regarding detainee treatment. (ANNEXES 35 and 62)

RECOMMENDATIONS AS TO PART ONE OF THE INVESTIGATION:

1. (U) Immediately deploy to the Iraq Theater an integrated multi-discipline Mobile Training Team (MTT) comprised of subject matter experts in internment/resettlement operations, international and operational law, information technology, facility management, interrogation and intelligence gathering techniques, chaplains, Arab cultural awareness, and medical practices as it pertains to I/R activities. This team needs to oversee and conduct comprehensive training in all aspects of detainee and confinement operations.

2. (U) That all military police and military intelligence personnel involved in any aspect of detainee operations or interrogation operations in CJTF-7, and subordinate units, be immediately provided with training by an international/operational law attorney on the specific provisions of The Law of Land Warfare FM 27-10, specifically the Geneva Convention Relative to the Treatment of Prisoners of War, Enemy Prisoners of War, Retained Personnel, Civilian Internees, and Other Detainees, and AR 190-8.

3. (U) That a single commander in CJTF-7 be responsible for overall detainee operations throughout the Iraq Theater of Operations. I also recommend that the Provost Marshal General of the Army assign a minimum of two (2) subject matter experts, one officer and one NCO, to assist CJTF-7 in coordinating detainee operations.

4. (U) That detention facility commanders and interrogation facility commanders ensure that appropriate copies of the Geneva Convention Relative to the Treatment of Prisoners of War and notice of protections be made available in both English and the detainees’ language and be prominently displayed in all detention facilities. Detainees with questions regarding their treatment should be given the full opportunity to read the Convention.

5. (U) That each detention facility commander and interrogation facility commander publish a complete and comprehensive set of Standing Operating Procedures (SOPs) regarding treatment of detainees, and that all personnel be required to read the SOPs and sign a document indicating that they have read and understand the SOPs.

6. (U) That in accordance with the recommendations of MG Ryder’s Assessment Report, and my findings and recommendations in this investigation, all units in the Iraq Theater of Operations conducting internment/confinement/detainment operations in support of Operation Iraqi Freedom be OPCON for all purposes, to include action under the UCMJ, to CJTF-7.

7. (U) Appoint the C3, CJTF as the staff proponent for detainee operations in the Iraq Joint Operations Area (JOA). (MG Tom Miller, C3, CJTF-7, has been appointed by COMCJTF-7).

8. (U) That an inquiry UP AR 381-10, Procedure 15 be conducted to determine the extent of culpability of Military Intelligence personnel, assigned to the 205th MI Brigade and the Joint Interrogation and Debriefing Center (JIDC) regarding abuse of detainees at Abu Ghraib (BCCF).

9. (U) That it is critical that the proponent for detainee operations is assigned a dedicated Senior Judge Advocate, with specialized training and knowledge of international and operational law, to assist and advise on matters of detainee operations.
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